blawg

Nietzsche talks about how we have to posit identity where there is only difference, being where there is only becoming, in order to think and act. Similarly, on an ethical level, we have to posit values out of nothing, but because there really are no stable identities or good, we must not only be able to posit values but also continually revaluate, i.e. destroy values and posit new ones. It's the same with law: we have to posit identities between cases and posit rules, but we cannot let ourselves be stuck by them. The law must be allowed to evolve over time and in new context. The task of the judge and of the lawyer is to participate in this process of evolution that constantly balances between preserving the law that is and creating the law that will be.