Theme: Grammar

SKETCH

(massive headache so gotta stop for today – but might be interesting to some)

Differences

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IDENTICAL: indistinguishable from one another.

FUNGIBLE: each unit of a commodity is replaceable other units of the same commodity.

SUBSTITUTABLE: performs the same utility in the context of a given purpose.

MARGINALLY INDIFFERENT: insufficiently different to cause a change in state.

MARGINALLY DIFFERENT: sufficiently different to cause a change in state.

COMMENSURABLE: measurable by the same standard.

INCOMMENSURABLE: having no common standard of measurement.

Propositions

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DECIDABLE: A decision can be made without the addition of external information.

CALCULABLE: An operation can be performed without the addition of external information.

DEDUCIBLE: A prediction can be made without the need for external information.

OPERATIONAL: a conclusion can be reached by a series of existentially possible operations.

STRICTLY OPERATIONAL : the theory is constructible (i)using existentially possible operations, (ii)does not include use of analogy, (iii)does not require inference (deduction), and (iv) survives all argumentative falsification.

ORIGINAL INTENTION (CONTEXT / ARBITRARY PRECISION) : in interpreting a text, a court should determine what the authors of the text were trying to achieve, and to give effect to what they intended the statute to accomplish, the actual text of the legislation notwithstanding.

TEXTUAL / NARROW/ TRUE (Conservative – normative and legislative) vs ALLEGORICAL / WIDE / MEANING(judicial) interpretation.

In textual/Narrow/True (conservative) legal interpretation, a law is analogous to an operational recipe and changes to the recipe must be enacted by the legislature. In Allegorical / Wide / Meaning (Progressive) interpretation, the judges can invent law if they can justify the extension of the principle of the law into new areas of application not considered by it’s authors. In practice conservative TRUTH and progressive MEANING place the construction of law into the hands of the judiciary rather than the hands of the legislature and people.

HOLMES’ LIE

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The life of the law may have been experience but that is not license for judges to write law at will – it is an admission of the failure of legal theorists to develop propertarianism, and to separate the resolution of disputes according to the law, from the development of contracts (legislative law) on behalf of the citizenry. The separation of functions of government is necessary for the defense of the people against tyranny. Holmes justified tyranny with his deceptive use of rationalism.

Propertarianism

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See Wiki (or legal dictionary) Textualism (the law is only what is written in the text), Originalism(the text must be interpreted as the authors intended it) and Strict Constructionism ( which is weak textualism and is not practiced ).

In Propertarianism, have attempted to prevent deceptions by requiring law be written to include its precision – original intention – as a preamble for any prohibition, thus requiring both the obverse and inverse propositions, such that when conditions fail (precision is exceeded) then we must revert to strict operationalism to construct new law.

In history, judges ‘discovered’ law, and asked the people (the legislature) to approve it. This constraint – the request for legislative approval – extends the period of resolution of disputes. (Which I address elsewhere.) But under Propertarian Property rights, it should be possible to construct new precision from first principles – or not. If not, then it is not a matter of law, but a matter of contract. If it is a matter of contractual exchange, then it is a legislative matter, not one for the courts to decide.

Purpose

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The American constitution was an innovative experiment that nearly achieved law in logical form. However, the problem of contextual precision that we came to understand in the twentieth century was not known at the time.

The purpose of the law is to (negative or inverse) identify and prohibit involuntary operations, and to (positive or obverse) identify and codify voluntary operations.

Obverse statements determine precision (conditions), that operational analysis can later demonstrate conditions to have exceeded. Such extensions then require new law (new conditions) constructed as Obverse (positive) statements.

(Much more … but too much of a headache)