Neurath, bootstrapping and the law: The philosopher Otto Neurath, writing of the impossibility of reducing language to a set of conclusively established, non vague elements, compared us to sailors who must rebuild their ship on the open sea, never able to dismantle it in dry-dock and to reconstruct it there out of the best materials. This happy image will serve us well, I think, as a metaphor for courts in less-than-perfect legal systems like ours, and it may help illustrate the difficulty of superimposing a requirement of integrity onto the adjudicative process. While at sea, of course, a sailor cannot dismantle his ship and rebuild it from scratch to make it more seaworthy. He must instead go about repairing the ship one plank at a time, removing the most rotten boards and replacing them gradually with new ones, all while the ship is underway. Eventually the ship on which he is sailing may be an entirely different one than the ship on which he left port. But this rebuilding process must be gradual and piecemeal. The judge, too, cannot simply dismantle the law as a whole, or even the whole of a discrete area of the law, if she believes it is decrepit and ought to be replaced. She can make her decisions only in the context of individual cases and the individual issues they raise. In that context, she can repair rotted planks (unjust or outdated prior decisions); but she can do so only one plank at a time. Moreover, and crucially, she never will be able to repair the whole ship alone, because her reach extends only to those planks surrounding her duty station, the jurisdiction in which she serves. Even if she is fortunate enough to be able to repair all the dry rot within her reach, weakened planks, or planks that were poorly constructed to begin with, may remain at her colleagues station, inches beyond her grasp. The legislature is different. The legislature, spotting a ship taking on water, can tow it to dry dock and rebuild it from scratch. The legislature can completely revamp entire areas of the law at one time- securities law, tax law, consumer protection law, antitrust law. And, having renovated one area, the legislature can move on to others - any others - minding as it goes that the different sections of the ship it is rebuilding hold together and that the ship, as a whole, will stay afloat. In other words, the legislature (ideally, at least) can achieve both consistency and repair. The legislature can make the law better by making it more just while at the same time preserving the laws integrity. Foolish Consistency: On Equality, Integrity, and Justice in Stare Decisis, Christopher J. Peters, The Yale Law Journal, Vol. 105, No. 8 (Jun., 1996), pp. 2031-2115
Posted on: Wed, 27 Aug 2014 07:10:45 +0000
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