The Law is Toothless?

Lex Talionis

"An eye for an eye, a tooth for a tooth."

"Bwimey!"

Eyeless

(Or vice-versa?)

Lee Jae-min on Textual Interpretation

Korea Herald

Professor Lee Jae-min, of Hanyang University's School of Law, writes regularly for the Korea Herald, and his recent article, "Evolutionary text interpretation" (February 20, 2013), proved very interesting for me, though he was mainly referring to legal texts, which is not my expertise:

Once codified, texts are set in stone, but the world we live in continues to change. A critical question then is, should words in these texts be understood as they were agreed upon at the time of the signing or as they are accepted at present?

He offers a contemporary example:

Suppose legislation, enacted in 1990, contains the term "cellphone." Does it mean a cellphone that we knew as of 1990, a brick-sized portable phone, and its future extensions? Or should the term also cover the new electronic products, sporting "all-in-one" digital capabilities, that we carry in our pockets and bags in 2013? This question relates to what is called "evolutionary interpretation" or "dynamic interpretation" of texts, and poses a new challenge.

I was familiar with the concept, of course, but Professor Lee expresses himself exceptionally clearly, as below, where he considers one solution:

This phenomenon is almost inevitable. Even after the words are inscribed on pages and in texts, the world where they apply continues to change. So, a gap is always there. The trouble is, the pace of change continues to quicken -- sometimes to an astonishing degree in a very short time, which means the gap becomes wider and deeper. An amendment is always a possibility, but frequent amendment is neither easy nor feasible, particularly so when the text is a grand document such as a constitution or an important treaty.

Imagine how this applies to religious texts in our rapidly changing world. One can't generally even amend them. One is left with reinterpretation. But even that takes time and seriousness of mind. Meanwhile, the world moves on. I've noticed that the recent polls in America show a decline in religion. Are Americans headed down the European path? Is the reason a fast pace of change that makes religious texts seem ever less relevant?

And are Islamism's suicide bombers the death of Islam writ small as Muslims fail to reconcile Islam with a rapidly changing world?

Eugen Rosenstock-Huessy: on "the prerogative of a leader"?

Max Weber

Another Charismatic 'Extralegal' Thinker?

(Image from Wikipedia)

I'm still trudging through Eugen Rosenstock-Huessy's tome, Out of Revolution: Autobiography of Western Man, and I've just read a passage that could have come from Carl Schmitt's thoughts in his writings on "political theology" concerning the primary characteristic of "the leader":

"Sovereign is he who decides on the exception." (Schmitt, Political Theology)

Rosenstock-Huessy also presents the necessity for a 'commanding' leader during times when a population faces an existential threat:

In such times the prerogative of a leader is indispensable. Without his iron grip on the country all standards would become debatable, doubtful and dissolved. The dilution of faith caused by the emergency forces upon the leader the responsibility of uttering the cry of alarm and commanding, brutally and harshly.

We can even say that he who commands efficiently in such times is or makes himself the leader, even though legal procedure may not take account of him. Timely prerogative creates and restores actual government, legalizes conquest and force. To be sure, the legitimation of brute force is never to be found in its external success. Tyranny remains tyranny, and iniquity is never bleached into the genuine white of sacred authority. Nay, the test of domination is not "success" in an abstract sense, that of a man's being called Emperor or President or leader by intimidated slaves. It is the success in this emergency, and in this particular emergency only. In one special and definite emergency the new government will rise or the old government will be regenerated. Its test, then, is this particular emergency. If it succeeds in its fight against this enemy, this dilution of faith and standards, this famine, people will feel gratified and support or tolerate it in spite of all its other faults. (page 384)

I'm not especially well-read in Schmitt's views on the supposed extralegal political authority necessary for the state to act decisively in legally murky situations. I suppose that there's a genuine issue here in that states are confronted by unexpected circumstances in which decisions must be made despite the state having no clear legal authority to act. Reasoning clearly on this, however, has been tainted ever since Germany's experience of National Socialism (Nazism), for Schmitt's thinking was used by the German state to legitimize Hitler's acts -- and fully with Schmitt's approval, too.

Rosenstock-Huessy, being ethnically Jewish, was no fan of Hitler. I don't know what he thought of Schmitt, but I doubt that he was drawing directly upon Schmitt's writings. Rather, the seeming parallels may stem from a more general movement of thought about sources of political authority. One need only recall Max Weber's analysis of the "charismatic authority" vested in an extraordinary leader to see that various thinkers of the early 20th century were struggling with the issues of legality, legitimacy, and leadership in connection with circumstances of emergency.

I have no special insight on this issue and merely post this out of a curiosity that might bear fruit under the care of others with more knowledge than I.