laws of course are presuppositions. are they beautiful? some. but most are fearful. a beautiful law would presuppose equality, abundance, harmony, not -- inferiority, scarcity, strife.
only by presupposing things are a way can you avoid the oppression upon the future by trying to make things a fixed way. instead, you are governed by hopeful expectations.
the myth of legal infallibility has devastating consequences. if a legislature makes a mistake in drafting a law, for example by declaring all murderers shall be given the death penalty, the unintended and monstrous result of a literal interpretation would require punishing the executor or self-defender. congress surely must make mistakes, and so we must have a check. such a mistake may not be a mere oversight, as in a failure to specify exceptions, but could be an error of judgment. legislatures are not only technically fallible but morally fallible, so the legislature itself cannot be trusted to correct mistakes. hence the judiciary. and hence the judiciary must be able to legislate. but judicial legislation, perhaps more so than legislative legislation at least as it applies to the case, must make sense with the preexisting whole, else it would be unjust to subject litigants to a law they had no reason to expect. a further check on judicial legislation is the distinction of dicta. a decision only makes a law on the narrowest rule necessary for the holding in this particular case, and so applies to the future only insofar as future cases involve similar events. the suppleness of stare decisis is another constraint. the rule of precedent is strongly preferred, but not absolute.
