The Jurisprudence of Democracy v. Judicial Review: History, Intention, and Finality

The jurisprudence of a democracy cannot be the same as the jurisprudence of republicanism or aristocracy. Legal realism brings the judicial system down from the clouds to the ground where flesh and blood creatures live. On such ground rests the responsibility of the agent’s actions and behaviors if that agent is to be held to moral and legal account. The critical force that brings responsibility for the agent’s action is the presence of a conscious state of being. Should the agent be in an unconscious state that agent is blameless for his or her actions. The Enlightenment Age and modern legal systems expect the agent to comport themselves in a reasonable manner and will so be adjudged by the legal system under the “reasonable” person standard of conduct and behavior. The death of the Enlightenment Age in the trenches that was the First World War has yet to catch up to modern legal systems. Reason has been held as the “gold” standard in many domains of inquiry and especially in the law. How we interpret the “letter” of the law—that is by way of some “neutral” standard, by originalism or by or some other way—it always rebounds to the ground conditions. Language is a funny business. There always appears to be slippage in the communicative phase from the intention to the word via the idea. We certainly will nor explore the world of ideas a la Plato. We are simply trying to get a hold of whether intentionality and any correspondent communication is one and the same thing. They are not. Why not? We are arguing that the condition of communication leaves gaps between intentionality and reality. What one intends to communicate and what in fact is communicated are not one and the same thing. The “originalist” and “intentionalist” see permanence where only a contingent world exists of contingent animals fully aware of their finality. Whereas the originalists expect a static world with permanent animals calling the earth home rather than contingent animals here today, gone tomorrow. History of organicism rest on the “here” and “now” not the beyond land of tomorrow.