Forms of constitutional argument are validated by their presence in practice, not by approval

Evidence

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

Categorization

• SEED: The distinction between practice-validated norms and norms of justification could anchor an essay on how legal education inculcates legitimacy without justifying content.
• XREF: connects to: Historical prevalence of a practice does not immunize it from the Eighth Amendment. — , The Rod and the Child: A Global History…, 9425; Written constitutional rights fail when the community collectively opposes them; 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 share, and especially on conflating the ideas of legitimacy and justification and ignoring the distinction between constitutional decisionmaking and constitutional discourse. (+16 more)

Related

• 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 0.92)
• 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… (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 0.91)
• 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 0.89)
• Legal propositions are true only within the practice’s own recognized forms (similarity 0.86)
• Legitimacy can be derived from constitutional practices rather than from justifications. (similarity 0.86)
• Constitutional argument and constitutional discourse are distinct activities with different boundaries. (similarity 0.85)
• US constitutional argument forms derive from common-law modes overlaid on the state. (similarity 0.84)
• 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 0.83)
• A constitutional grammar lets nonjudicial actors reason legally about constitutional questions. (similarity 0.83)
• Constitutional interpretation and constitutional discourse are distinct practices. (similarity 0.83)
• Constitutional law’s foundational modalities derive legitimacy from use alone, not external validation. (similarity 0.82)
• Legal and non-legal deciders draw on different but overlapping argument forms. (similarity 0.81)
• Legitimacy and justification are distinct concepts in constitutional theory. (similarity 0.81)
• Opinion arguments rationalize decisions rather than explain how they are reached. (similarity 0.79)

Broader Connections

• 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… #responds-to (0.80)
• Legal and non-legal deciders draw on different but overlapping argument forms. #expands (0.70) — Philip Chase Bobbitt, Reflections Inspired by My Critics, 496
• Appeal to tradition may be legitimate within constitutional law #exemplifies (0.60) — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 1068
• A constitutional grammar lets nonjudicial actors reason legally about constitutional questions. #expands (0.60) — Philip Chase Bobbitt, Reflections Inspired by My Critics, 526