The "Law and Policy" Mistake

(sent to conlaw and lawcourts)
 
... we have it, because it is a language game. It is the quintessential case where confusion in the act of languaging affects BOTH sides of people who talk about it. In fact, it is the perfect situation that shows why Wittgenstein was correct about apparent disputes coming from "bewitchment of our intelligence by means of language." The key to the dispute is seeing what is being said, leading to peace, not truth, as the final resolution.

Whenever one says that judges do or do not "make policy," one needs to ask what in God's name are they talking about and -- most importantly -- what is being ruled out of consideration if we grant the idea. Two common mistakes are frequently hiding in the nomenclature: (a) that law is a sort of self-contained algebra (the Neanderthal premise); or (b) that, if it is not, that means "policy wins" (political science's favorite mistake from about 1989 through -- what? -- 2006). One would want to avoid BOTH of these pitfalls.

Really, one ought to avoid deploying the language pair "law versus policy" -- most especially when making systemic comments -- because it is a facile sort of grammar that cannot get to the real intellectual work that needs to be done.