Practice Theory. Chapter 6

Transcription

1 Chapter 6 Practice Theory Readings from Phillip Bobbitt and Dennis Patterson Due appreciation of the strong arguments adanced by critical legal theorists has as its net effect a heightened awareness of legal indeterminacy and of the difficulty of defending the idea that law is an autonomous realm of thought and practice in which people are capable of neutrality and objectiity in judgment and decision-making. Haing, for good reason, called into question these and other cherished assumptions and beliefs of contemporary legal thought, a sympathetic reader may wonder how to aoid sliding down the slippery slope of critical insight toward either legal cynicism or some een less attractie skeptical alternatie. We turn in this chapter to a type of legal theory that can be credited as a new attempt to reinstate cognitie jurisprudence new, at least compared with the types of theory studied in preious chapters, and compared with theories with long and richly deeloped historical roots. The originality of practice theory is largely due to the later work of Wittgenstein, who deeloped a highly influential account of the nature of rule following, one that has found recent legal application and extension in the work of both Philip Bobbitt and Dennis Patterson. By way of introduction to the jurisprudential implications of Wittgenstein s ideas it is well to look at two important passages from his Philosophical Inestigations There is a way of grasping a rule which is not an interpretation, but which is exhibited in what we call obeying the rule and going against it in actual cases... There is an inclination to say: eery action according to the rule is an interpretation. But we ought to restrict the term interpretation to the substitution of one expression of the rule for another Obeying a rule is a practice. And to think one is obeying a rule is not to obey a rule. 1 As we hae seen in earlier readings, many authors take the iew that the deepest understanding of law is achieed by taking the reasoning of judges and lawyers as theory formation or construction. The clearest example is Dworkin for whom an adequate conception of law must always be seen as the product of interpretation. Een in easy cases, he says, understanding a case is a matter of constructing an interpretation of it: the point of jurisprudence is to adance our knowledge of how to make an interpretation the best it can be. Dworkin s iews in this regard are met with a direct challenge in Wittgenstein s passage cited aboe. The idea that all understanding is a matter of interpretation generates a philosophical puzzle, he says, for if all understanding requires interpretation, then why does not all interpretation require interpretation? Wittgenstein thinks the solution to this puzzle is to be found in the rejection of the ery idea that all understanding is a matter of interpretation. Assuming that all understanding is not interpretation, then what is it? Wittgenstein argued that understanding is best thought of not as an actiity but as a capacity or ability. To use an example of Patterson s from Law and Truth, 2 if I ask you to pass the salt at the dinner table, your understanding of the request is exhibited by your action in passing the salt, and the understanding in question is not a reflection or interpretation of some kind. If we understand what is said we simply respond in the right way, gien a certain context. This way of thinking about understanding casts a different light on the actiity of interpretation: it is better understood as a reflectie response after understanding breaks down. To keep with the example of the request to pass the salt, imagine the request is made not at a dinner party but at a wine tasting. In this context, if one participant in a wine tasting asks another to pass the salt, what would count as understanding the request? On its face, at least, the request has no meaning. We might, of course, construe or interpret the request in different ways, and we might een come to accept one of these as the meaning of the request. Thus to respond to what is already understood

2 exhibits an unreflectie feature absent in interpretation. When we interpret something, we construct and reflect upon (possible) meanings; when we understand we rely upon meaning in responding or going on. Put ery simply, understanding is knowing how to go on in a practice of one kind or another. Philip Bobbitt s work in constitutional theory can be understood as an adaptation for jurisprudential purposes of this account of understanding. In a 1979 publication, he deeloped the idea that all the assertions in a well-formed judicial opinion can be translated into one of six modalities or forms of argument. Taken together, these are understood as constituting a system that functions as the grammar of constitutional argument. Understanding in constitutional law means knowing how to use these six modalities to make constitutional arguments. What is important about these modalities is that they are neither true nor false: they are the means by which propositions of constitutional law are shown to be true or false. They are what constitutional argument depends upon, what must be understood in order to engage in the practice. As Bobbitt puts it, there is no constitutional argument outside these forms. Reading 1 From Philip Bobbitt, CONSTITUTIONAL INTERPRETATION The Modalities of Constitutional Argument First, what is a modality? It is the way in which we characterize a form of expression as true. For instance, a logical modality may be attributed to a proposition, p, by saying that it is logically necessary or contingent or logically impossible, that p. This is to say that from a logical point of iew, the dimension of possibility is critical to engage the inexorable force of inference while other dimensions of the proposition are from this point of iew irreleant. To say that it is known or unknown or known that it is not true that p, is to employ an epistemic mode. That is to say that from an epistemological point of iew, the role of knowledge engages the force of logic, while other features of p, are irreleant. And so on for other modalities. To say that it is obligatory, permissible or forbidden, that p, is to mark a moral or deontic mode. To say that it is now or will be or was the case that p, attributes a temporal modality. By contrast, simply to say that p, or it is de fide true that p, does not characterize the way in which p, is true. To see the difference among modalities, consider the following propositions with respect to a logical modality: it is necessarily the case that a professor s husband is a married man; it is possible that a professor could be a married man; it is impossible that a professor s wife could be a married man. The way in which these propositions are true, from a logical point of iew, is determined by the relationship between the facts they assert and the possibility of those facts (principally the fact that a husband is a married man is necessarily true, i.e., it is impossible that it could be false). There are rules that will determine the truth or falsity of a proposition in this modality; these rules construe the facts stated by the proposition according to the standards of the modality, in this case, the logical possibility of the facts stated. Now consider instead the proposition: all professors should be unmarried men. Whether this is true or not cannot be determined by our knowing the extent to which this state of affairs is possible. It might be true een if it were impossible; it might be false een if it were absolutely necessary (as once was the case at some uniersities). Thus we must apply the standards of a different modality a moral or deontic mode to determine the truth of the facts asserted. To see the difference between a modal statement and an ordinary proposition, consider these two statements: (1) One can neer know whether another person is telling the truth ; and (2) You are lying or I beliee you are lying to me. To determine whether (1) is true requires an inquiry into the conditions of knowledge: what counts as knowing, what are grounds for doubt, and so on. But to determine the truth of (2) we need to find out something in the world (although it is not always clear precisely what, particularly in taking testimony from one

3 whose word you doubt!). That is, (2) asserts the truth of a particular statement about the world while (1) asserts a truth about a statement, namely, that it cannot be known. I will be speaking of constitutional modalities the ways in which legal propositions are characterized as true from a constitutional point of iew. In my earlier work I identified six such modalities. Of course, these might be diided or recategorized in different ways, but this particular array has been accepted, I think, by persons working in this area. These six modalities of constitutional argument are: the historical (relying on the intentions of the framers and ratifiers of the Constitution); textual (looking to the meaning of the words of the Constitution alone, as they would be interpreted by the aerage contemporary man on the street ); structural (inferring rules from the relationships that the Constitution mandates among the structures it sets up); doctrinal (applying rules generated by precedent); ethical (deriing rules from those moral commitments of the American ethos that are reflected in the Constitution); and prudential (seeking to balance the costs and benefits of a particular rule). Now let us look at some examples, and a somewhat more formal statement of each form of argument. Consider the question whether a state may alidly enforce a law that makes it a crime to procure an abortion. An historical modality may be attributed to constitutional arguments that claim that the framers and ratifiers of the Fourteenth Amendment intended, or did not intend, or that it cannot be ascertained whether it was their intention, to protect pregnant women from a state s coercion, through threats of fines and imprisonment, to bear children. Similarly, a historical modality might approach the abortion question as did the framers and ratifiers of the Fourteenth Amendment intend to countenance, or to oerturn by means of the Amendment, or are their intentions unclear as to the effect of the Amendment regarding those state laws that existed at the time of ratification that prohibited abortions? Oftentimes this modality is confused with textual argument since both can hae reference to the specific text of the Constitution. Historical, or originalist approaches to construing the text, howeer, are distinctie in their reference back to what a particular proision is thought to hae meant to its ratifiers. Thus, when Justice Taney in the Dred Scott case was called upon to construe the scope of the diersity jurisdiction in Article III, which proides for suits between citizens of the seeral states, so that he might decide whether a slae could seek his freedom in a diersity suit before a federal court, he wrote: It becomes necessary to determine who were the citizens of the seeral states when the constitution was adopted. And in order to do this we must recur to the goernments and institutions of the colonies. We must inquire who at the time were recognized as citizens of the states, whose rights and liberties outraged by the English goernment and who declared their independence and assumed the powers of goernment to defend their rights of arms. We refer to these historical facts for the purpose of showing the fixed opinions concerning the Negro race upon which the statesmen of that day spoke and acted. Now consider the same question who are the citizens of the phrase that proides for suits in federal court between citizens of different states ( diersity suits) from another point of iew. A textual modality may be attributed to arguments that the text of the Constitution would, to the aerage person, appear to declare, or deny, or be too ague to say whether, a suit between a black American citizen resident in a state and a white American citizen resident in another state, is a controersy between citizens of different states. I would imagine that the contemporary meaning of these words is rather different than that which Taney found them to mean to the framers and ratifiers of One should not be tempted to conclude, howeer, that textual approaches are ineitably more progressie than originalist approaches. Sometimes the text can be a straitjacket, confining the judge to language that would hae been different if its drafters had foreseen later eents. Thus, consider whether wiretapping is prohibited by the Fourth Amendment, which guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. Here is Chief Justice Taft in a case in which incriminating information was largely obtained by federal prohibition officers intercepting messages on the telephones of the conspirators: The amendment itself [he says] shows that the search is to be of material things the person, the house, his papers or his effects. The amendment does not forbid what was done here for there was no seizure. The eidence was secured by the sense of hearing and that only. There was not entry of the houses. The language of the amendment cannot be extended and expanded.

4 By contrast, a later court had no trouble finding that wiretapping came within the Amendment. It simply relied upon historical argument the intentions that animated the adoption of the amendment and concluded that: The purpose of the... Fourth Amendment [is] to keep the state out of constitutionally protected areas until it has reason to beliee that a specific crime has been or is being committed. Consider another constitutional question: can a court issue a subpoena (or should it enjoin some other subpoena) for the disclosure of the President s working notes and diaries? To say that the institutional relationships promulgated by the Constitution require or are incompatible with or tolerate a particular answer to this question is to use a structural mode of argument. There are many recent, celebrated examples of this form of argument to be found in the cases of the U.S. Supreme Court; indeed the 1980s were particularly notable for the Court s focus on structural issues. But structural argument is hardly a recent inention. McCulloch. Maryland, the principal foundation case for constitutional analysis, relies almost wholly on structural approaches. In determining whether a Maryland tax on the Federal Bank of the United States could be enforced, Chief Justice Marshall studiedly refuses to specify the particular text that supports his argument, and explicitly rejects reliance on historical arguments, preferring instead to state the rationale on inferences from the structure of federalism. Such a structure could not be maintained, he concluded, if the states, whose officials are elected by a state s constituency, could tax the agencies of the federal goernment present in a state and thereby tax a nationwide constituency. The constitutional structure would not tolerate such a practice. In the following passage, taken from an 1884 case, we may obsere another typical example. In this case the defendant and others were conicted in a federal court for haing conspired to intimidate a black person from oting for a member of Congress, in iolation of federal statutes. The question was: does Congress hae the power to punish iolations of election laws under the Constitution since the text nowhere proides such a power? Justice Miller wrote for the Court: That a goernment whose essential character is republican... has no power by appropriate laws to secure this election from the influence of iolence, of corruption, and of fraud, is a proposition so startling as to arrest attention and demand the graest consideration.... The proposition that it has no such power is supported by the old argument often heard, often repeated, and in this court neer assented to, that when a question of the power of Congress arises the adocate of the power must be able to place his finger on words which expressly grant it.... It is not true, therefore, that electors for members of Congress owe their right to ote to the State law in any sense which makes the exercise of the right to depend exclusiely on the law of the State.... It is as essential to the successful working of this goernment that the great organisms of its executie and legislatie branches should be the free choice of the people as that the original form of it should be so... In a republican goernment like ours... the temptation to control these elections by iolence and corruption is a constant source of danger. Structural arguments are a little less intuitiely obious than arguments from the text or history of the Constitution, so perhaps it would be well to briefly outline their characteristic form. Usually, arguments in this modality are straightforward: first, an uncontroersial statement about a constitutional structure is introduced [for example, in the case aboe, the statement that the right to ote for a member of Congress is proided for in the Constitution]; second, a relationship is inferred from this structure [that this right, for example, gies rise to the federal power to protect it and is not dependent on state protection]; third, a factual assertion about the world is made [that, if unprotected, the structure of federal representation would be at the mercy of local iolence]. Finally a conclusion is drawn that proides the rule in the case... Consider whether the state can require mandatory testing for the AIDS irus antibodies. To say that it is wise, or unwise, or simply unclear on the present facts whether or not it is wise to permit such testing is to propose an ealuation from a prudential point of iew. In the first half of this century, this mode of constitutional argument was principally associated with doctrines that sought to protect the political position of the courts. But the dramatic national crises of depression and world war soon proided ample reason to introduce the practical effects of constitutional doctrine into the rationales underpinning doctrine. For example, one such case arose when, in the depths of the midwestern farm depression, the Minnesota legislature passed a statute proiding that anyone who was unable to pay a mortgage could be granted a moratorium from foreclosure. On its face such a

5 statute not only appeared to realize the fears of the framers that state legislatures would compromise the credit market by enacting debtor relief statutes, but also plainly to iolate the Contracts Clause that was the textual outcome of such concerns. Moreoer, the structure of national economic union strongly counseled against permitting states to protect their constituents by exploding a national recoery program that depended on restoring confidence to banking operations. Neertheless the Supreme Court upheld the statute, obsering that: An emergency existed in Minnesota which furnished a proper occasion for the exercise of the resered power of the state to protect the ital interests of the community. Very simply, the Court recognized the political expediency of the legislature s action and acquiesced in it. Another national crisis framed the background of the Bowles case, ten years later. Congress had passed the Emergency Price Control Act proiding for administratie action to freeze or reduce rents for housing accommodations in areas adjacent to defense establishments. The district court held against the goernment and struck down the Act as unconstitutional, but the Supreme Court reersed the decision in language that is frankly prudential: We need not determine what constitutional limits there are to price-fixing legislation. Congress was dealing here with conditions created by actiities resulting from a great war effort. A nation which can demand the lies of its men and women in waging of that war is under no constitutional necessity of proiding a system of price control on the domestic front which will assure each landlord a fair return on his property.... Congress has done all that due process under the war emergency requires. These cases proide examples of prudential argument, but this approach is by no means confined to the extremes a nation undergoes in emergencies. Of course in such circumstances prudential arguments are likeliest to be decisie. But, as one of prudentialism s most eloquent practitioners argued, such an approach has a place in eery decision: The accomplished fact, affairs and interests that hae formed around it, and perhaps popular acceptance of it these are elements... that may properly enter into a decision...; and they may also enter into the shaping of the judgment, the applicable principle itself. Prudential argument is actuated by facts, as these play into political and economic policies as to which the Constitution is itself agnostic. The legal rule to be applied is deried from a calculus of costs and benefits, when the facts are taken into account. Accordingly, this often gies rise to a balancing test (the balance being a scales, not a tightrope.) By contrast, when we say that a neutral, general principle deried from the caselaw construing the Constitution should apply, does not apply or may apply, we make an appeal in a doctrinal mode. (It should also be obsered... that doctrinal arguments are not confined to arguments originating in caselaw; there are also precedents of other institutions, e.g., the practices of earlier Presidents as well as the arious corollaries incident to fashioning rules on the basis of precedent.) To familiarize oneself with this form of argument, let us take up this question: to what extent can a state constitutionally aid parochial schools? Suppose, for example, that parochial school students whose schools are not on the route of free public school buses are gien a cash allowance by the state to proide for their transportation. Does this offend the Establishment Clause of the First Amendment because the state is bearing the burdens of costs that would otherwise be born by church members, in much the way that the goernment in Great Britain, a country that has an established church, proides funds to supplement the income of the Church of England? A judge confronting such a case would probably begin, not by reading the text of the First Amendment which states a rule in rather general terms, but by turning to precedent to find similar cases in which authoritatie decisions would goern the present one. Not surprisingly, in the area of Establishment jurisprudence there is a great deal of constitutional doctrine, deeloped in many cases. The standards these cases deelop and apply can be stated as legal rules; the case on point that is, whose facts are similar in those aspects that are releant to the legal question being posed is probably Eerson. Board of Education, which sustained the power of local authorities to proide free transportation for children attending church schools. In Eerson the Supreme Court treated the proision of transportation as a form of public welfare legislation, noting

6 that it was being extended by the state to all its citizens without regard to their religious belief. The Court wrote: It is undoubtedly true that children are helped to get to church schools. There is een a possibility that some of the children might not be sent to the church schools if the parents were compelled to pay their children s bus fares out of their pockets when transportation to a public school would hae been paid for by the State. Transportation, howeer, benefited the child in the same way as did police protection at crossings, fire protection, connections for sewage disposal, public highways, and sidewalks. Based on this rationale, subsequent cases hae deeloped a three-pronged test: does the state program hae a secular purpose; is its principal effect neither to adance nor inhibit religion; does its administration excessiely entangle the state in religious affairs? Applying this test to the question aboe, the judge might write: Eerson must be distinguished from the instant case because the program in Eerson proided transportation common to all students, whereas here only some students the parochial ones are gien cash allowances. While we do not question that the legislature had a secular purpose in mind, we think the eidence indicated that the effect of these allowances was in fact to make the parochial schools more attractie to parents than their secular counterparts, and thereby adance the cause of religious institutions. Moreoer, the oersight required of the state to ensure that the allowances are in fact spent on proiding a system of parochial school transportation intrudes the administratie apparatus of the state into the affairs of the church schools. This can only lead to the interference with budgets and an insistence on allocations for transportation that will excessiely entangle the state in the administration of church affairs. Accordingly the program must be held unconstitutional. Or a judge might write: Eerson, which also inoled public transportation to parochial school students, goerns this case. Here as there, the state s program proides aid to students and their parents, and not as in cases that hae applied Eerson and struck down state assistance in this area direct assistance to church-related schools. Its secular purpose, to proide school transportation at greater efficiency and less cost to the state than expanding its own bus fleets, is apparent. Like school lunches, public health serices, and secular textbooks, the transportation proided here confers a benefit on the parochial student that is at parity with what the secular student receies. Thus its effect is neither to adance nor inhibit religion, but rather to aoid exacting a penalty from the parochial student. Finally, whateer state management is required to administer the program will be limited to the oersight of transportation; such inolement as there may be need not, therefore, excessiely entangle the state in those religious matters with regard to which it has no role. In either case, the hypothetical judge has applied a rule deried from the releant case law. The rule is neutral as to the parties; that is, it applies equally to Catholics and Jews and atheist claimants and does not ary depending on who is bringing or defending the suit. And the rule is general, that is, it applies to all cases in which the state is arguably giing assistance to religious institutions, and is not confined to the facts of the original case that gae birth to the rule. One more point, howeer, should be made about this modality: its operation is not confined to the application of stare decisis, that is, the strict adherence to preiously decided cases. On the contrary, in the American system one of the principles of doctrinalism is that the Supreme Court may reerse the releant precedent. This would appear to follow from the family of modalities that proide alternatie legal rules and the supremacy of the Constitution to the acts of goernment (including, of course, the judicial branch). The Court is entitled, indeed obligated, to oerrule itself when it is persuaded that a particular precedent was wrongly decided and should not be applied. Finally, let us consider the modality of ethical argument. This form of argument denotes an appeal to those elements of the American cultural ethos that are reflected in the Constitution. The fundamental American constitutional ethos is the ideal of limited goernment, the presumption of which holds that all residual authority remains in the priate sphere. Thus when we argue that a particular constitutional conclusion is obliged by, or permitted, or forbidden by the American ethos that has allocated certain decisions to the indiidual or to priate institutions, we are arguing in an ethical mode. Ethical arguments arise as a consequence of the fundamental constitutional arrangement by which rights in the American system can be defined as those choices beyond the power of goernment to compel. Thus structural and ethical arguments hae some similarities, as each is essentially an inferred set of arguments. Like structural arguments, ethical arguments do not depend on the construction of any particular piece of text, but rather on the

7 necessary relationships that can be inferred from the oerall arrangement expressed in the text. Structural argument infers rules from the powers granted to goernments; ethical argument, by contrast, infers rules from the powers denied to goernment. The principal error one can make regarding ethical argument is to assume that any statute or executie act is unconstitutional if it causes effects that are incompatible with the American cultural ethos. This equates ethical argument, a constitutional form, with moral argument generally. Let us reiew a hypothetical example that shows the basic pattern of ethical argument. Note that while the American cultural ethos may encompass cheeseburgers, rock and roll, and a passion for Japanese electronics, the American constitutional ethos is largely confined to the reseration of powers not delegated to a limited goernment. It was recently reported that a state judge in South Carolina had gien the choice of thirty-year prison sentences or castration to three conicted sex offenders. Suppose a conicted man accepted the bargain and was released on probation terms that incorporated this pledge (as by drug-induced impotence). Then suppose that he ceased taking the prescribed drug. If his probation were reoked, a constitutional challenge to the terms of his probation might take this form: 1. The reseration to the indiidual of the decision to hae children is deeply rooted in the American notion of autonomy; there is no express constitutional power to implement a program of eugenics. 2. Moreoer, such programs are not a conentionally appropriate means to any express power. 3. Those means denied the federal goernment are also denied the states. 4. The South Carolina sentence amounted to ordering a man to comply with a eugenics scheme that deemed him ineligible to procreate. The element of the American ethos at stake is the reseration to indiiduals and families of the freedom to make certain kinds of decisions. Similar sorts of arguments are to be found in cases in which a state attempted to bar schools from teaching foreign languages; in which a state passed a compulsory education act requiring eery school-age child to attend public school (that is, implicitly outlawing priate schools); in which a local zoning ordinance was applied to prohibit a grandmother from liing with her grandchildren; in which a hospital sought authority to amputate a gangrenous limb from an elderly man who refused his consent; in which a man allegedly suffering from delusions (but concededly harmless) was confined to a mental hospital for almost twenty-fie years without treatment. One may test one s mastery of this form of argument by taking each of these examples and stating an ethical argument to resole it, e.g., (1) There is no express constitutional power to monopolize education; (2) moreoer, a statute outlawing priate education is not an appropriate means to any express power (such as regulating commerce or proiding for armed forces); (3) the decision to educate one s children priately or parochially or publicly is resered to the family; (4) a statute compelling attendance exclusiely at public schools amounts to a scheme to coerce families into a particular educational choice and destroy priate educational options. These then are the six modalities of constitutional argument in the United States. I hae argued elsewhere that each of these forms of argument can be used to construct an ideology, a set of political and practical commitments whose alues are internally consistent and can be distinguished, externally, from competing ideologies... For the moment, howeer, I am merely concerned that the reader should not conclude that, because of this relationship because, for example, some persons may beliee that one particular modality represents the only legitimate means of interpreting the Constitution (e.g., historical argument) since it is erifiable by a result to materials (e.g., the intentions of the ratifiers) that are mandated according to a particular political theory of interpretation (e.g. originalism ) the modalities of argument are no more than instrumental, rhetorical deices to be deployed in behalf of arious political ideologies. The modalities of constitutional argument are the ways in which law statements in constitutional matters are assessed; standing alone they assert nothing about the world. But they need only stand alone to proide the means for making constitutional argument. There is no constitutional legal argument outside these modalities. Outside these forms, a proposition about the U.S. constitution can be a fact, or be elegant, or be amusing or een poetic, and although such assessments exist as legal statements in some possible legal world, they are not actualized in our legal world.

8 After publication of Constitutional Fate 2 in which the idea of a grammar of constitutional argument was deeloped, Bobbitt s work was subjected to the kind of scrutiny normal for recognition of a major contribution to jurisprudence. As a result of this scrutiny he acknowledged a serious shortcoming in the original work: failure to address the problem of conflict between and among the modalities. In Constitutional Interpretation, published ten years after the original work, he concludes not only that such conflict is ineitable but that modal arguments are not commensurable, that is, that conflicting outcomes deried from them cannot be brought into harmony and/or assessed by any single measure or method of ealuation. How do we justify the result of a constitutional decision in a particular case? It would appear that the incommensurate nature of the arious modalities of argument that enable legitimation makes such an assessment impossible. For if these modes lead to different outcomes, we hae no rule that enables us to choose among them... This is the contradiction so beloed of law professors generally, and especially the theorists of the Critical Legal Studies group. 3 Bobbitt concludes that so far as the grammar of constitutional argument is concerned, at least in some cases it will be impossible to say that one outcome is legally better than another. Legal argument, in other words, is modular in nature: each mode of argument deelops in accordance with its own internal logic, without regard to concern about whether its conclusion will be compatible with the outcome of other modes of argument. Where diergence of outcome is extreme, a case cannot be resoled apart from reliance on exercise of indiidual conscience. A judge who neer felt the constraints of the arious modalities, who felt that any decision could be satisfactorily defended, would be ery foolish and ery unimaginatie. Only a law student or a law professor could say that eerything can be defended or that it will always be possible to find conincing ways to make a set of distinctions look credible... And yet, in difficult cases, these constraints are not determinatie. The case must be decided. What justifies the sensibility that makes such a decision, if, as I hae claimed, it is not made according to a rule? There are no grounds independent of the sensibility that is judging those grounds. We can say only: these are the sensibilities we hae. 4 What is important about this deelopment in Bobbitt s thought is that in so-called hard cases resolution of the problem of modal conflict must occur outside the orbit established by use of the forms of argument by appeal to conscience and indiidual decision. This system [the system of constitutional adjudication]... requires indiidual decision precisely because the modalities conflict. The result is not any less law because the outcome is not the same for all deciders; indeed it could not really be law, it could not follow the forms of argument and recognize their character as modalities, if it were any other way. The space for moral reflection on our ideologies is created by the conflict among modalities, just as garden walls can create a space for a garden. (Brackets mine.) 5 Recursion to conscience is a kind of rational end-point in Bobbitt s jurisprudence. It would be a mistake, howeer, to present such reersion as entailed by the conception of law as a practice. At least one adocate of practice theory argues that Wittgenstein s understanding of practice rules out reersion to conscience as a rational end-point. The primary reason is that whereas conscience is inherently priate, meaning including legal meaning is inherently public. Dennis Patterson argues that for this reason when modes of legal argument conflict, one must hae recourse to something publicly accessible something susceptible to intersubjectie confirmation. A brief comment on the claim that informs Patterson s argument in the following passage may be helpful. Most people would agree that a person s intention to make a phone call immediately after reading this page is priate in the sense that the person is the only authority for knowledge of that intention we are our own authority for the truth of first-person aowals of intention, and of feeling, including moral feeling or conscience. Descriptions of personal experiences, howeer, inole

9 subsumption of the experience under a concept, for example the experience of an intention, or of excitement or of moral outrage. The key Wittgensteinian point that all concepts must hae criteria and that those criteria must be matters of intersubjectie agreement, een when the experience described by a concept is essentially personal and priate, finds new emphasis and is central to Patterson s argument for the public nature of criteria for application of legal concepts. Reading 2 From Dennis Patterson, LAW AND TRUTH For recursion to conscience to succeed as a solution to the problem of modal conflict, it must be possible to wed to the exercise of indiidual conscience an account of constitutional argument that relies... heaily on a public, intersubjectie practice of legal argument. It is far from clear that this is een possible. Consider any proposition of constitutional law. To the question of how one settles the truth or falsity of a proposition of constitutional law, Bobbitt answers that one employs the modalities. The use of the modalities is a practice they (and the ways they are used) are public, cultural property. This means that the truth of a constitutional proposition is not a function of what anyone thinks or beliees about the proposition; rather, one uses the modalities of argument to show the truth of the proposition. Because the modalities of constitutional argument are public coin, no priate meanings are possible. Recursion to the priate realm of conscience is necessary only in the eent of modal conflict. Because modal conflict is resoled by conscience, indiiduals most importantly judges must make moral choices. Thus, it is indiidual conscience that decides the truth and falsity of controersial propositions of constitutional law. The process of decision in easy constitutional cases (cases in which the modes do not conflict) will be public, but in hard cases (those of modal conflict), indiidual conscience is the only analytical apparatus at work. Were Bobbitt true to the force of his own argument, he would hae to admit that the ineitable conflicts among the modalities can only be settled in the public sphere. Conflicts among the modalities are resoled not by what indiiduals decide, but by what they ultimately accept as an adequate resolution of modal conflict. No particular resolution of modal conflict springs forth from conscience as a fully formed resolution, as persuasion not conscience ultimately dries choice. In a passage we considered earlier, in... discussion of Ronald Dworkin s jurisprudence, Charles Taylor put the matter this way: What if someone does not see the adequacy of our interpretation, does not accept our reading? We try to show him how it makes sense of the original nonsense or partial sense [or, in Bobbitt s terms, modal conflict]. But for him to follow us he must read the original language as we do, he must recognize these expressions as puzzling in a certain way, and hence be looking for a solution to our problem. If he does not, what can we do? The answer, it would seem, can only be more of the same. We hae to show him through the reading of other expressions why this expression must be read in the way we propose. But success here requires that he follow us in these other readings, and so on, it would seem, potentially foreer. We cannot escape an ultimate appeal to a common understanding of the expressions, of the language inoled.* What is missing in Bobbitt s otherwise compelling account of the practice of constitutional law is some description of the practice of persuasion that is so much a part of constitutional law and law generally. How is it that lawyers conince one another of a particular reading of the law when the meaning of law is put in question? Why is one rendering of a modal conflict followed by some courts or judges and not others? It is an obious and important feature of law that the merits of a single judicial decision play no role in the wider discourse of law unless and until another judge or court finds the reasoning persuasie. The cultural methods and resources for persuasion simply cannot be ignored. By leaing the resolution of modal conflict to the uncharted realm of conscience, Bobbitt leaes for another day further discussion of a central aspect of the practice of constitutional law that he has otherwise described so well.

10 Patterson s rejection of recourse to conscience raises the natural question: If one does not appeal to conscience when faced with modal conflict, what is the next step in the process of adjudication? We hae seen that his answer to this question inoles the deelopment of what he calls the practice of persuasion in law. But in what does this consist? His answer is that persuasion consists of showing someone that a proposition of law is true. But what do we mean when we say that a proposition of law is true? Here his answer is best explained in the final chapters of Law and Truth, where Patterson aligns his iew of legal truth with the holistic conception of truth in science deeloped by W. V. O. Quine. Reading 3 From Dennis Patterson, LAW AND TRUTH In Quine s iew the whole idea of knowledge as a process of building from the simple to the complex, and the concomitant notion that knowledge is a matter of correspondence between word (concept) and world, had to be scrapped. In its place, Quine substituted holism, the iew that the truth of any one statement or proposition is a function not of its relationship to the world but of the degree to which it hangs together with eerything else we take to be true. Quine stated his iew this way: The totality of our so-called knowledge or beliefs, from the most casual matters of geography and history to the profound laws of atomic physics or een of pure mathematics and logic, is a man-made fabric which impinges on experience only along the edges. Or, to change the figure, total science is like a field of force whose boundary conditions are experience. A conflict with experience at the periphery occasions readjustments in the interior of the field. Truth alues hae to be redistributed oer some of our statements. Reealuation of some statements entails reealuation of others, because of their logical interconnections the logical laws being in turn simply certain further statements of the system, certain further elements of the field. Haing reealuated one statement we must reealuate some others, which may be statements logically connected with the first or may be the statements of logical connections themseles. But the total field is so underdetermined by its boundary conditions, experience, that there is much latitude of choice as to what statements to reealuate in the light of any single contrary experience. No particular experiences are linked with any particular statements in the interior of the field, except indirectly, through considerations of equilibrium affecting the field as a whole. If this iew is right, it is misleading to speak of the empirical content of an indiidual statement especially if it is a statement at all remote from the experiential periphery of the field. Furthermore it becomes folly to seek a boundary between synthetic statements, which hold contingently on experience, and analytic statements, which hold come what may. Any statement can be held true come what may, if we make drastic enough adjustments elsewhere in the system.* Quine s picture of knowledge of the external world changed the way people thought about the construction of knowledge. The breakthrough was to see knowledge not as a matter of foundations building up from bedrock but a function of one s being able to moe about within a holistic web (be it a web of theory or intersubjectie practice)... How, in law, do we moe from contradiction to truth?... Quine s metaphor of science as a total field of force is the best way to think of legal interpretation.... In law, it is misleading to speak of the truth of a proposition of law in isolation from other propositions within the legal web of belief. In choosing between different interpretations, we faor those that clash least with eerything else we take to be true... In law, we choose the proposition that best hangs together with eerything else we take to be true. In the passages aboe two points are worthy of particular notice. First, Patterson affirms Bobbitt s incommensurability claim about modal argument: he speaks of moing from contradiction, not merely from conflict among the forms of argument, and he cites with approal the idea that constitutional law has a commensurability problem. Second, he introduces a new element into the conception of legal

11 argument: namely, a distinct form of argumentatie practice designed to determine choice among conflicting outcomes produced by use of the forms of argument. Two features of the practice are significant: (1) It consists of interpretation directed toward the resolution of conflict and (2) it is not goerned by the forms of legal argument but by a measure described as fit with what is not in question. In the following passages he describes the actiity of moing beyond contradiction, that is, of resoling modal incommensurability, but his concern is not with incommensurability per se but with resolution of any serious conflict between and/or among the modes of legal argument. In this regard he attempts to deelop a legal-specific ersion of Quinian holism. One form of conflict receies particular attention: conflict between arious conceptions of a form of argument. Two examples are discussed, in each of which the applicability of an established form of argument is persuasiely called into question, that is, is challenged. Patterson explains how, in his iew, the challenge is successful in each case, not in irtue of conscience or priate coniction of any sort, but in irtue of its fit with eerything not legally in question. Reading 4 From Dennis Patterson, LAW AND TRUTH We hae identified... forms of argument as central to law. These forms of argument sere as backing for [legal decision-making].... But backings may themseles be called into question. Consider the most common occasion of the historical form of argument, that of statutory interpretation. The nere of statutory interpretation is appeal to historical facts as backing for the moe from history to decision (historical argument)... Howeer, if historical argument is to hae any alidity, beliefs about legislatie history must themseles be true, for if they are false, then the moe from history to judgment cannot be sustained. Richard Posner has challenged conentional beliefs about the status of facts of legislatie history. On seeral occasions,... [he] has argued that the canons of statutory interpretation are an improper guide to the meaning of statutes because they are based on false assumptions regarding the nature of the legislatie process. The basic assumption Posner calls into question is an imputation of omniscience to Congress: Most of the canons of statutory construction go wrong not because they misconceie the nature of judicial interpretation of the legislatie or political process but because they impute omniscience to Congress. Omniscience is always an unrealistic assumption, and particularly so when one is dealing with the legislatie process. The basic reason why statutes are so frequently ambiguous in application is not that they are poorly drafted though many are and not that the legislators failed to agree on just what they wanted the statute to accomplish in the statute though often they do fail but that a statute necessarily is drafted in adance of, and with imperfect application for the problems that will be encountered in, its application.* As an example of a canon founded on the assumption of legislatie omniscience, consider that of expressio unius est exclusio alterius (the expression of one thing is the exclusion of another). Posner s point, one that is well taken, is that the canon would only make sense if all omissions in legislatie drafting were deliberate. As an example, Posner raises the Supreme Court s decision in Touche Ross Co.. Redington, where the Court used the canon as the basis for refusing to create priate remedies for certain statutory iolations. Posner objects: Whether the result in the priateaction cases is right or wrong, the use of expressio unius is not helpful. If a statute fails to include effectie remedies because the opponents were strong enough to preent their inclusion, the courts should honor the legislatie compromise. But if the omission was an oersight, or if Congress thought that the courts would proide appropriate remedies for statutory iolations as a matter of course, the judges should create the remedies necessary to carry out the legislature s objecties.