Extra-legal justifications of judicial review lead to infinite regress

Evidence

For example, if it were sufficient to say that the framers’ intention to rely on courts for constitutional review justified that review, we would already have assumed the very legitimacy for historical argument for which we sought a justification in the first place. Grounding legitimacy in extra-legal justifications leads to an infinite regress: Each justification must be independently legitimated, and that legitimacy in turn demands a fresh justification. — Philip Chase Bobbitt, Reflections Inspired by My Critics, 646

Categorization

• XREF: Echoes the regress problem familiar from epistemology and foundations debates. — connects to: Judicial review is the judiciary’s core duty and province — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 1368; Motivation for a ruling must be distinguished from constitutional causality — Philip Chase Bobbitt, Reflections Inspired by My Critics, 807; When I began writing Constitutional Interpretation, constitutional criticism (and jurisprudence) reflected the universalist ideals of empiricism and scarcely questioned the premises of autonomous human reason (if only on the part of the analyst), which were taken as unproblematic, indeed axiomatic. Since then, many movements have sprung up in the law schools that renounce such an epistemology, especially the hermeneuticist and the communitarian movements. I will say here only that there are many nonfoundationalist, nonrepresentationalist accounts one might give, and that these accounts may differ sharply, especially as to their prescriptive character. (+2 more)

Related

• Classical constitutional puzzles reduce fundamentally to questions of legitimacy and legitimation. (similarity 0.81)
• 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… (similarity 0.79)

Broader Connections

• Motivation for a ruling must be distinguished from constitutional causality #expands (0.70) — Philip Chase Bobbitt, Reflections Inspired by My Critics, 807
• 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… #responds-to (0.65)
• When I began writing Constitutional Interpretation, constitutional criticism (and jurisprudence) reflected the universalist ideals of empiricism and scarcely questioned the premises of autonomous… #expands (0.60)
• Judicial review is the judiciary’s core duty and province #complicates (0.55) — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 1368