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Did Socrates say "Know Thyself", or was he misunderstood, as all are. Show Thyself is all we can do. The knowing is unknowable.  

I am filled with joy.  It can't be helped.  

Became a Farmer, Builder, Musician, Tank Commander, Librarian, Lawyer and Minister. I have failed at many things. And now retired.  Filled, just filled, with Joy. 

Saturday, August 18, 2007

"The law" pretends to be what it is not.

At all levels of adjudication, the judge tries to appear as a "standard bearer" or even the "servant of law", as if his or her discretion was bound by its letter. Rule of Law is often presented as the alternative to a Tyrant's Will. In fact, however, the "rule of law" is not well understood. Like "justice" it is a concept that all sides invoke, simultaneously and from conflicting interests. There is universal and profound ignorance of "The Law", an abstraction, no matter how lengthy its recitation.

And if a Rule appears to apply, it has subjective exceptions which can, and often should, swallow it up. For example, there is the principle that the specific rule "prevails" over the general expression -- which is an admission that the law is swiss cheese. Semantically, words have no objective meaning - not a single word can survive deconstruction, and nor can the law.

In addition, judges are keenly aware of the maxim that "the spirit prevails over the letter" of the law, which is another way ultimately giving sway to the subjective will of the judge over any possible theoretical objectivity in the realm of semantics.

And of course, one is always left wondering what the Legislative Law-maker intended in the first place? Where lobbyists write most of our laws, where many of the laws are simply reactions to extreme cases of abuse, where there is No Lobby willing to fund objectivity, order, common sense, and "public good" where factions write the rules.

However, there are a number of institutional self-correcting mechanisms "at work" in the legal system. One is the Separation of Powers, the "independence" of the judiciary from legislative and executive power. Another is the "due process" cluster of rights in which the conflict is ventilated by professional advocates with Notice and Opportunity to respond to each other; this creates a kind of "record" or precedence which give validity to the derivative decision.

Finally, there is the concept of EPIKEIA, which dates back to Classical Greece. This is rooted in fairness -- whatever the law says, its application must go beyond mere policing its margins, or automatically spitting out a result. Epikeia commands the consideration of application: In addition to the letter of the law, the executive police work, the matching up of the facts of the case to the laws which "apply", the Epikeian Step requires consideration of the result in the particular case in its possibly unique circumstances. Without throwing out or amending the law, is it sensible and fair to apply it to the parties before the court now?

Modern courts, however, are paralyzed by the accusation of "subjectivity" -- most judges want to hide the political facts of their appointment, the lack of merit in the "choice" made in seating them. They are sensitive, after all, to the mystery of how they ended up in such a seat of power; they understandably do not invite scrutiny into that example of a process of "application". Judges cling to the appearance -- and it is pure fiction -- of "objectivity". Now, Judges rarely discuss "fairness". Chief Justice Earl Warren was one of the last great judges to test the outcome against this segment of the franchise of the court. He understood the Epikeian burden, the importance of that pause before application of the Rule, to ask if it works appropriately in the particular case.

Just as Plato wrote that "Without an Absolute, the particulars are meaningless" -- and 2500 years of philosophy is the footnote consequence, and the phenomenon of angst is as fresh today as then-- so is every judgment meaningless without Justice.