[lit-ideas] Re: "false inclusiveness of law over belief" or, vice versa, "... of belief over law"?

  • From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
  • To: lit-ideas@xxxxxxxxxxxxx
  • Date: Sun, 28 Nov 2010 17:19:44 +0000 (GMT)

--- On Sun, 28/11/10, John Wager <jwager@xxxxxxxxxx> wrote:

>One MIGHT expect fundamentalists to hold to the priority of belief over law, 
>but the claim that ALL are bound by the law when it is based on one particular 
>revelation seems to me more a denial of the centrality of revelation rather 
>than a denial of the power of law.  The paradox is that fundamentalists SEEM 
>to say that revelation is central, but by making laws binding on all that are 
>based on that, they promote the law as actually more important than 
>revelation. It doesn't matter whether God has revealed something to me; I 
>still must obey the law based on the revelation to someone else.  Revelation 
>isn't so central after all; law is.>

This is somewhat specious.

The "paradox" mentioned is not a paradox at all in any logical sense. 
Consider: L = the law
          BOL = basis of law (the source from which legality is derived)
Then consider the claim:-
"by making L binding on all, they make L more important than the BOL".
This does not follow as a matter of inference.

The bindingness of law "on all" is linked to the (near universal) view that the 
legitimacy of law is entirely general (within a given jurisdiction) - a claim 
made by (all?) law-based systems. This 'bindingness' of L at a general level is 
entirely consistent with the BOL [L's source] being something much less general 
than the jurisdiction it gives rise or applies to - the BOL may be the order of 
a dictator or an act of Parliament, which may apply to a wider jurisdiction 
than the dictator or the Parliament. In actual fact, the BOL is (always?*) 
narrower and less general than the jurisdiction it applies to - the possible 
counter-example of a person whose own 'legislative' decisions apply no wider 
than the 'jurisdiction of their own person would strike most as not an example 
of a legal system in action but of some strange psychological disorder.

Hence the claim, which is a variant of the above claim, that "by making laws 
binding on all that are based on that, they promote the law as actually more 
important than revelation", is a non sequitur.

To claim the BOL is "revelation" does not imply L is more important than this 
BOL - if anything, the natural tendency would be to assume the BOL (whatever it 
is) is more fundamental than L, since the BOL determines L and not vice-versa, 
and so it is more important.

Pursuing the issue of the relation between L and the BOL further would, I 
anticipate, here draw us into the area of versions of 'natural law' theories of 
law - and the various confusions that can be embedded in these - as the Islamic 
position re 'lawfulness' may be hazarded to be a version of 'natural law' 

My suggested answer to the question "Which is more important - L or the BOL?" 
is that it depends what we mean. If we assume that the BOL determines L, then 
the BOL would seem the more fundamental and important - almost as a matter of 
'conceptual' necessity. But in the actual world of historical contingency we 
know that whatever, given some legal system at some point in time, the BOL is 
taken to be (- the diktat of a dictator, an act of Parliament, "revelation" as 
understood by a priestly caste) - it is vulnerable to being overturned as the 
BOL; and an overturned BOL is, generally speaking, much less important in its 
current effect than whatever is L. 

It might be added that I do not think any great problem is resolved by pointing 
this out - although it may be useful to point it out to avoid some confusions. 
Also, the search for a "BOL", which remains fundamental to nearly all 
jurisprudence as taught in universities (even 'positivist' theories of law, 
such as Hart's, attempt to answer this question; quite unsatisfactorily), may 
be viewed as misconceived in a similar way that the search for a basis for 
knowledge in general may be seen as misconceived. 

Yes, we are back to Popper and the 'non-justificationist' approach to knowledge.

*If the BOL is taken to be God-given, we might insist God is so limitless that 
the BOL is therefore always wider than the jurisdiction to which it gives rise; 
but this kind of claim hardly gets us anywhere and clearly involves some 
radical departure from the 'empirical' world in which law is embedded.


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