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…

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 self-consciously. 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.

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 (#corroborates, via linked claim)

Categorization

• XREF: connects to: Day in and day out we send people to jail, or take money away from them, or make them do things they do not want to do, under coercion of force, and we justify all of this by speaking of such persons as having broken the law or having failed to meet their legal obligations, or having interfered with other people’s legal rights. Even in clear cases (a bank robber or a willful breach of contract), when we are confident that someone had a legal obligation and broke it, we are not able to give a satisfactory account of what that means, or why that entitles the state to punish or coerce him. We may feel confident that what we are doing is proper, but until we can identify the principles we are following we cannot be sure that they are sufficient, or whether we are applying them consistently. In less clear cases, when the issue of whether an obligation has been broken is for some reason controversial, the pitch of these nagging questions rises, and our responsibility to find answers deepens.; 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.; Forms of constitutional argument are validated by their presence in practice, not by approval — Philip Chase Bobbitt, Reflections Inspired by My Critics, 437 (+5 more)

Related

• Forms of constitutional argument are validated by their presence in practice, not by approval (similarity 0.92)
• 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 0.87)
• 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 0.86)
• Legal propositions are true only within the practice’s own recognized forms (similarity 0.85)
• 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 0.84)
• Legitimacy can be derived from constitutional practices rather than from justifications. (similarity 0.79)
• Constitutional argument and constitutional discourse are distinct activities with different boundaries. (similarity 0.78)

Broader Connections

• Forms of constitutional argument are validated by their presence in practice, not by approval #corroborates (0.95) — Philip Chase Bobbitt, Reflections Inspired by My Critics, 437
• One can see how important consensus is for this sort of grammarian. He or she is not describing a practice, but is ‘converting’ it into a different practice altogether, one that would be… #expands (0.80)
• Winter asserts ‘Consider how a Wittgensteinian such as Bobbitt might respond to Unger’s argument. First, he would exhort us to abandon the question of justification precisely because it… #responds-to (0.70)