Tuesday, September 22, 2020

Whaddaya wanna do about it?

Dennis Patterson, "Law and Truth: Replies to Critics"

IX. Brian Leiter: Quine, Normativity, and Truth

Brian Leiter sets out to show that Quine is not postmodernist.134 As criticism of the discussion of Quine in Law and Truth, this arrow misses its intended target. never said Quine was postmodernist. What did say was that analytic philosophy has moved into new paradigm, which I identify as postmodern, and that Quine's thought represents significant contribution to the development of this new mode of philosophizing…. 

Leiter correctly identifies Philip Bobbitt's work in constitutional theory as one source for the main argument in Law and Truth. In this connection, it is important to recognize a pervasive influence on both Bobbitt's work and my own, that of the later work of Wittgenstein. Without some appreciation of Wittgenstein's approach to questions of meaning, no clear understanding of my work, or Bobbitt's, is possible…. 

In Law and Truth, argue that Bobbitt is right to claim that the academic debate over the legitimacy of judicial review contributes nothing to our understanding of the normative character of constitutional argument. agree with Bobbitt that more often than not, efforts at legitimation turn out to be little more than an argument for the supremacy of one form of argument over all others. 140 I agree with Bobbitt that if a lawyer wants show that proposition of law is true, she has to employ the forms of argument to do so, for they are the culturally-endorsed modes of constitutional appraisal. 

Professor Leiter is unhappy with this account of the normativity of constitutional argument. He says: 

This whole line of thought seems to trade on an ambiguity in the meaning of the word "legitimate." Legitimacy in the philosophical sense has to do with whether particular practice is justified. "Legitimacy in the sociological sense has to do with whether a particular practice is 'accepted' or 'viewed as legitimate' by participants in the practice." 141  

First, do not see how the argument trades on an ambiguity. Bobbitt employs the distinction between legitimacy and justification. He argues that constitutional argument is legitimate if it is made in the language of constitutional law, the modalities. Whether decision is "just" is a matter of justification, the province of moral, economic, or philosophical argument. Professor Leiter's distinction between two senses of legitimacy, the "sociological" and the "philosophical," is nothing more than a translation. of Bobbitt's own distinction between legitimacy and justification. Professor Leiter provides a translation of Bobbitt's terms, but Bobbitt's distinction remains intact, with no ambiguity having been shown.142 

Second, if we accept Professor Leiter's distinction between two senses of legitimacy, his point is trivial.  Professor Leiter does not want to talk about legitimacy in what he refers to as its "sociological" sense; he prefers to talk about legitimacy the way philosophers do, that is, in the "philosophical" sense. But why is this weakness in Bobbitt's position? It seems as if Professor Leiter wants to talk about a different topic. This is not criticism. 

Professor Leiter then turns to the more important topic of truth. Regrettably, labels appear again, which obscure the discussion. My account of truth is characterized as "internal"'143 to the practice of law. Worse, it is internal "in some sense that remains vague.” 144 I have no idea what this means. What would it mean to say that the weight shown on the grocer's scale is "internal?" Internal to what? To say that the forms of argument are "internal" is just to say that they are the means for deciding what is the case as a matter of law, just as to say that units of measurement are the way the grocer determines weight and price. There is no mystery there.

Professor Leiter's introduction of the adjective "internal" sets the stage for his argument for the primacy of philosophy over legal practice. He begins by stating that my account of truth in law "relies on an attractive intuition, one widely shared… by lawyers” 146 He then recasts the intuition this way:

[W]hen Dworkin gives belabored argument of moral philosophy for the constitutionality of affirmative action or Posner gives complex efficiency argument for the law of negligence, whatever it is they are doing it doesn’t look much like law. 147

In their quest to "reduce" legal categories and legal arguments to economic or philosophical ones, legal academics actually miss the distinctive "internal" logic and integrity of the actual practice of legal argument as we find it in countless oral arguments and lawyer's briefs every day throughout the country.148

This characterization of my position is offered by Professor Leiter as "a sympathetic re-statement of the intuition that animates [my] position (and perhaps also Bobbitt's).149 But the sympathy ends there, as the claims are dismissed as "inadequate as an objection to the theories of scholars like Dworkin and Posner"150 and, worse, "false"151 and "question-begging." 152 

Well, are they? Consider two quotes, the first of which is from Posner and the second from Dworkin: 

[I] think that economic principles are encoded in the ethical vocabulary that is the staple of legal language, and that the language of justice and equity that dominates judicial opinions is to large extent the translation of ethical principles into legal language. 153 

Even in easy cases, that is, even when it goes without saying what the law is, even when ... everyone knows what the law is ... we do better to explain that phenomenon by speaking of convergence on single interpretation, or, at least, on interpretations that have the same results in most cases, because of shared political culture and assumptions. 154 

It is only owing to his initial misunderstanding of the arguments about normativity that Professor Leiter could come to the conclusions he does about my arguments against Dworkin (and, by Leiter's implication, Posner). This leads Professor Leiter, again mistakenly, to characterize my error as one of "description." He states, correctly, that Dworkin claims to be describing the actual practice of law. 155 certainly do not dispute that. What I dispute is the characterization given by Dworkin (and Posner) of the practice of law. This is the distinction, Wittgenstein's distinction between understanding and interpretation, which lies at the heart of Law and Truth. But Professor Leiter has missed it, and with it the point of my criticism. 157 

For clarity's sake, let me repeat the main points of my argument. When a lawyer-or anyone else-says that the law permits, prohibits, or requires given thing, that conduct is best explained normatively. Explanation of a normative act "consists in rendering the act intelligible by clarifying its meaning, elucidating its goal and the reasons for performing it.” 158 If we want to know the meaning of what someone has done, we can ask participants in the practice. Further, we invoke rules to criticize the behavior of others: rules provide reasons and justifications for action. In short, normativity in law is all the activities connected with legal rules, such as guidance, justification, criticism, and explanation.159

deny what Posner and Dworkin maintain, that understanding law requires excavation below the surface. As Professor Leiter correctly points out, Dworkin says that there is something hidden, that it is the job of the philosopher to ferret it out. 160 This is the precise point of disagreement between Professor Dworkin and myself.

As I said in Law and Truth, Professor Dworkin reduces all understanding to interpretation.161 I criticized this central aspect of his position because I think Wittgenstein's argument against this philosophical stance is decisive.162  His argument has direct and vast implications for the ongoing debate over the nature of law. We view legal assertion in the same way we typically view all of our conduct, that is 

under the aspect of normativity. We do not interpret it thus, we see it so. Our application of normative predicates to the behavior we view thus does not typically rest on any inference. When chess player makes an appropriate move, do not interpret it as a move (as if it might have been just muscular "tic" causing him to move his queen two squares), take it as one. When someone says "What is the time?",  take him as having asked me the time, not as having made a noise which now needs interpreting (viz. maybe it was Chinese, or just meaningless sound). Yet though our use of normative language in identifying typical human conduct does not generally rest on an inference from non-normative behavior and the existence of a rule under which it is subsumed, nevertheless our explanations of the meanings of the normative terminology we thus use (e.g., "promise", "check", "buy , "sell", "vote", "elect", "marry", "will", "property) will typically involve reference to rules.163 

My argument is not only that "nothing is hidden" in the law. also dispute the claim that understanding law is always and everywhere matter of interpretation. 164  Interpretation is a defective way of characterizing much of the normative activities of lawyers. The forms of argument are not, as Judge Posner might characterize them, the mere epiphenomenal expression of hidden meanings. All of these efforts to understand law from "point of view" (i.e., an interpretive point of view) come to nought, for they are based on philosophically defective account of the nature of meaning. 

The only reason Professor Leiter could dismiss as question-begging165 my claim that theorists such as Dworkin and Posner seek to explain law by virtue of something "outside" law, is that he has failed to come to terms with the argument just given. He claims that my position constitutes "not an argument but the conclusion of an argument that still needs to be made."'166 But think have shown that the argument was made in Law and Truth....  
I described the linguistic axis of postmodernism as the idea that the modernist distinction between reference and expression was no longer viable. I invoked Putnam's discussion of this point in his Representation and Reality171 to make the (postmodern) point that reference (and, hence truth) only enters the picture once meaning is established. In other words, the world is multiply-realizable: the same underlying "brute fact" can be realized in a multiplicity of ways, owing to the language-games then available. Some –including Professor Leiter– belittle this as "relativism,"'173 but that is just name-calling. The debate about realism and anti-realism will continue to be a pseudo-debate for as long as the belief endures that meaning is a matter of truth conditions and not linguistic practices.174

"When a chess player makes an appropriate move, I do not interpret it as a move (as if it might have been just a muscular "tic" causing him to move his queen two squares), I take it as one."

When an acquaintance greets me on the street by lifting his hat, what I see from a formal point of view is nothing but the change of certain details within a configuration forming part of the general pattern of color, lines and volumes which constitutes my world of vision. 

Note 164 reads: "Interpretation is an activity, understanding is not." Both are activities. I'll have to read more to learn how Patterson describes change. Interpretation drives change, or manifests it.
"the primacy of philosophy over legal practice". Nice to see that absurdity stated, flat out. I don't see it too often.
"I never said Quine was a postmodernist. What I did say was that analytic philosophy has moved into a new paradigm, which I identify as postmodern, and that Quine's thought represents a significant contribution to the development of this new mode of philosophizing."
Quine's not a postmodernist, but his philosophy represents a significant contribution to the development of postmodernism. 

Balkin and Levinson on Bobbitt, and therefore Patterson: "Constitutional Grammar."
If Patterson is the lawyer to Leiter's philosopher, he's the philosopher here.
VII. Conclusion
All of the difficulties we have identified in Bobbitt's project flow from his insistence that the concepts of legitimacy and justification be kept separate. We think this insistence is unnecessary to his more general project of offering a grammatical study of constitutional law—a project that we heartily endorse. Moreover, we think that it is false to how languages and practices grow and develop over time. Language games lack purity: they refuse clear-cut boundaries, they borrow and steal from other sources, they overlap with other language games, and their governing rules are always in a state of flux and disputation. Lived language games are unruly and unkempt, untamed and untidy, much as life itself is. We do not doubt that Professor Bobbitt, like his mentor Wittgenstein, would fully agree.Yet in his moments as normative grammarian, Bobbitt still longs to preserve a certain purity within the language game of constitutional argument. We think this attempt is doomed to failure. Living language games are the products of history: they are motley and variegated, often chaotic, and always jerry-rigged. Their heterogeneity continually reasserts itself, especially when, as with constitutional legal argument, they are both a means and an object of intense political dispute. Such language games are both a terrain of cultural struggle and a potential prize in that struggle; they always frustrate the attempts of grammarians, normative and descriptive alike, to police their asserted boundaries and preserve their imagined purity. We think this lesson has general significance beyond the confines of American constitutional law; in any case, it is at least something to muse on, quand on mange le Big Mac avec les fries.
jumping ahead, 1/29/21, Patterson again

No comments:

Post a Comment

Comment moderation is enabled.