Bobbitt asks whether Patterson believes in the pricelessness of human beings because humans are capable of love, that our decisions are impossible to explain causally because they are products of free will, and that our legal decisions are inevitably moral because of the fact-laden, culture-laden nature of legal judgment that cannot be captured by an external moral calculus (because the decider is also the critic, the observer is the participant) and thus requires an account be given in its own terms, which alone can satisfy the conscience; as Bobbitt reads Patterson, he does believe these things.
Evidence
Thus, when Winter discloses that “[i]n effect, then, Bobbitt concedes that law faces the very predicament that Unger identifies""-that legal decisions are sometimes indeterminate-he discloses nothing because I “concede” nothing. Rather, it is a fundamental part of my views that the modalities may conflict, that they are incommensurable, and thus that no decision-procedure can determine the outcome in advance without sacrificing legitimacy. … It is justified to the extent that it produces results that can be justified-can be judged according to the prevailing moral sense of the day. The system as a whole, however, is justified because it has a role for the conscience within a legitimate system, though it is not the only conceivable system that can be justified on these grounds. — Philip Chase Bobbitt, Reflections Inspired by My Critics, 786 (
#expands, via linked claim)
Categorization
- XREF: connects to: Bobbitt argues that such knowledge Patterson describes ‘does not spell the end of feminism as an emancipatory discourse, but does require that the problem of normative critiques of law be reconceived.’; Legal indeterminacy is inherent and requires a justified role for conscience — Philip Chase Bobbitt, Reflections Inspired by My Critics, 786; Illegitimacy is not delivered to the law from outside, as virtually all contemporary theorists maintain. Patterson also sees why, in Constitutional Fate, I chose the problem of judicial review as the vehicle to make these arguments. Examining the role of the legitimacy of the forms of argument in that context is analogous to determining whether an arithmetical system is complete, consistent, and comprehensive by looking not at a particular well-formed mathematical equation, but by looking at the expression of the axioms themselves.
Related
- Legal indeterminacy is inherent and requires a justified role for conscience (similarity 0.88)
- Pre-political publics read legal injustice through law rather than political categories (similarity 0.80)
- Legitimacy and justification are distinct concepts in constitutional theory. (similarity 0.80)
- Maintaining core moral beliefs requires faith, not causal explanation (similarity 0.79)
- Extra-legal justifications of judicial review lead to infinite regress (similarity 0.79)
- Justifying a legal system differs fundamentally from causally explaining it through politics or psychology (similarity 0.79)
- and their presence in our political discourse does not require us to deny them legitimacy or to corrupt our forms of decision according to law. American constitutional law can be a profoundly… (similarity 0.78)
Broader Connections
- Illegitimacy is not delivered to the law from outside, as virtually all contemporary theorists maintain. Patterson also sees why, in Constitutional Fate, I chose the problem of judicial review as…
#corroborates(0.80) - Legal indeterminacy is inherent and requires a justified role for conscience
#expands(0.70) — Philip Chase Bobbitt, Reflections Inspired by My Critics, 786