For me, the use of the six forms of constitutional argument is the way we decide constitutional questions in the American legal culture. The use of these six forms maintains the legitimacy of…

For me, the use of the six forms of constitutional argument is the way we decide constitutional questions in the American legal culture. The use of these six forms maintains the legitimacy of judicial review. Llewellyn was interested in the practices of not just legal deciders, but also interest groups and citizens at large.

Evidence

The available forms of argument are different for those deciders who are confined to legal argument-like government officials sometimes are-and those who are not. Sometimes, as in the confirmation example, the forms of legal argument (here, the text) will direct the decider to enlarge her list. And sometimes those deciders who are not so limited-the People, for example-will wish to consult the specifically legal forms, as I shall discuss below. — Philip Chase Bobbitt, Reflections Inspired by My Critics, 496 (#expands, via linked claim)

In my case, I will sometimes correct an argument that is poorly formed. Or I may say, “That is a conclusion. Give me an argument.” Or I may say, “That is not a legal argument. Give me an argument in law.” And this practice, the way a golf pro at a country club might watch a club member hit tee shots, is meant to familiarize the student with the forms of constitutional argument. So it can be said that I am (tacitly, perhaps) approving certain forms of argument, but the reason I am doing so is because these forms of argument are the ones that are approved-are validated by their ever-presence in the practice. The “normativity” here is simply that the rules constituting a practice are norms. It is not the normativity of justification. I am not approving these forms of argument because I approve of them. — Philip Chase Bobbitt, Reflections Inspired by My Critics, 437 (#corroborates, via linked claim)

Categorization

• XREF: connects to: As he does with Wittgenstein, Winter intends to indict me for the particularist fallacy and for practice fetishism, though in my case it is not because I am a behaviorist, but because I am a Wittgensteinian. The first charge is supported by evidence of a contrived conflict with Karl Llewellyn. For me, the use of the six forms of constitutional argument is the way we decide constitutional questions in the American legal culture. The use of these six forms maintains the legitimacy of judicial review. Llewellyn was interested in the practices of not just legal deciders, but also interest groups and citizens at large. ‘A national constitution… involves in one phase or another the ways of a huge number of people-well-nigh the whole population.’ The practices on which we have each focused may overlap, but they are different because the institutions we are examining are different. The whole population is rarely called upon to make legal decisions with respect to the Constitution, although they are involved in constitutional discourse almost continuously, a distinction that this Symposium has underscored as important to my work.; Forms of constitutional argument are validated by their presence in practice, not by approval — Philip Chase Bobbitt, Reflections Inspired by My Critics, 437; Legal and non-legal deciders draw on different but overlapping argument forms. — Philip Chase Bobbitt, Reflections Inspired by My Critics, 496 (+4 more)

Related

• Forms of constitutional argument are validated by their presence in practice, not by approval (similarity 0.91)
• US constitutional argument forms derive from common-law modes overlaid on the state. (similarity 0.91)
• 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 0.88)
• Balkin and Levinson conclude that I must either accept whatever is practiced or abandon my pose as simply a descriptive observer. These descriptions depend on several assumptions that I do not… (similarity 0.86)
• It is true that, in my law classes, I spend a good deal of time with students practicing various kinds of argument. Every professor does this-every one must, although perhaps usually less… (similarity 0.86)
• Legal and non-legal deciders draw on different but overlapping argument forms. (similarity 0.85)
• I further believed that journalists, and citizens generally, could make use of these forms of legal argument, although they were not confined to legal argument in making constitutional decisions… (similarity 0.85)
• Constitutional interpretation and constitutional discourse are distinct practices. (similarity 0.84)
• Constitutional argument and constitutional discourse are distinct activities with different boundaries. (similarity 0.83)
• Legitimacy can be derived from constitutional practices rather than from justifications. (similarity 0.82)
• A constitutional grammar lets nonjudicial actors reason legally about constitutional questions. (similarity 0.82)
• Opinion arguments rationalize decisions rather than explain how they are reached. (similarity 0.81)
• Criticisms of a taxonomy of argument forms can attack either completeness or decisional adequacy. (similarity 0.81)
• Legal propositions are true only within the practice’s own recognized forms (similarity 0.81)
• When Winter discloses that ‘in effect, then, Bobbitt concedes that law faces the very predicament that Unger identifies’—that legal decisions are sometimes indeterminate—he discloses nothing… (similarity 0.81)

Broader Connections

• Legal and non-legal deciders draw on different but overlapping argument forms. #expands (0.75) — Philip Chase Bobbitt, Reflections Inspired by My Critics, 496
• Forms of constitutional argument are validated by their presence in practice, not by approval #corroborates (0.60) — Philip Chase Bobbitt, Reflections Inspired by My Critics, 437
• 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… #corroborates (0.55)
• Sound legal arguments require both valid reasoning and true premises #expands (0.45) — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 250