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April 02, 2008

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Dominic

Are there limits to the badness or extent of the arguments that are the Constitutional fuel? Are some beyond the pale? Completely destructive with no redeeming value, poisoning all meaning and argument?

This puts me in mind of the section of Godel, Escher, Bach about records specially designed to break record-players (IIRC they encode a pitch which resonates with the record player apparatus itself, causing it to vibrate until it falls apart). It's a sort of constitutional/free speech halting problem, I guess.

Other variants: the Monty Python sketch about the joke so hilarious that anyone who reads it dies laughing.

"He that toucheth pitch shall be defiled therewith".

old

I think you have to fall back on your communist instincts here, Jodi. The most important with actually existing adversarial systems in a capitalist world is that those with more money get to make a stronger case for their arguments, whether bad or good. So a good argument, badly argued, often, often loses to a bad argument, well argued.

My two cents, only partially thought through during my year in law school at Duke, and a bit beyond, is that an adversarial system, at the level of lawyerly representation, with a fairness ensuring *and* truth seeking judiciary is ideal. Part of fairness ensuring would have to include measures to preclude one side or the other from gaining or maintaining a substantial legal resource differential.

The U.S. system strives to include much of what I'm after here, but fails miserably in its attempts with respect to legal resource differential and explicitly refuses the idea of the judiciary as truth seeking. Judges in the U.S. are generally strictly bound to the cases as presented by the two sides and are not allowed to independently pursue the discovery of facts and legal arguments which are relevant to the matter at hand, but haven't been proferred by one side or the other.

Jodi

Dominic--I've been talking about your comment for the past few days; I had responded, but forgotten to do the second step so lost the comment. argh. anyway, I find it weird that a quick revealed no applications of the halting problem in law or political theory. Also, it seems like Rousseau and Hobbes might be understood as giving rules that could be understood as meant to prevent such problems (restrictions on sovereignty in terms of what the sovereign can do to itself). I wonder if there is a good way to describe these problems in political theory.

Old--your point is a good one. I wonder, though, if the contradictions are strictly because of the contradictions of problems/signs of a contradictory world rather than fundamentally undecideable. I think the latter is the case. Where Paul and I disagree is that he seems to think that the undecideability is a product of bad faith--the proper interpretation of precedent would prevent the emergence of contradictions. I don't think so. I think that stains/knots, sticking points are inevitable (which is why I like Dominic's turn to Godel etc). I wonder if they can be understood in terms of drive.

old

Stains, knots, and sticking points are most definitely inevitable, and, in fact, are what makes law so utterly fascinating. One preserves the past in law by destroying it with contradictions that must be dealt with creatively in order to invent the present.

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