Legal indeterminacy is inherent and requires a justified role for conscience
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
Categorization
- DEFINE: Clarifies Bobbitt’s modalist view: legal decision procedures cannot determine outcomes in advance without losing legitimacy, and conscience ends the regress because it needs no further legitimation.
- XREF: Connects to Bobbitt’s broader modalist theory of constitutional interpretation and to debates over legal indeterminacy from Critical Legal Studies (Unger) and Dworkin. — connects to: Obeying rules, precedent, and authority means deciding against one’s own best judgment. — Frederick Schauer, Thinking Like a Lawyer, 15; 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.; 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. (+5 more)
Related
- 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 0.88)
- Constitutional conscience depends on faith, else it degenerates into expediency (similarity 0.84)
- Portraying constitutional conscience truthfully requires offering a moral choice (similarity 0.81)
- A society that accepts moral responsibility still faces the question of how to decide. (similarity 0.78)
- Bobbitt’s appeal to conscience is not an escape hatch from the modalities. (similarity 0.78)
Broader Connections
- Portraying constitutional conscience truthfully requires offering a moral choice
#expands(0.60) — Philip Chase Bobbitt, Reflections Inspired by My Critics, 169 - Constitutional conscience depends on faith, else it degenerates into expediency
#qualifies(0.50) — Philip Chase Bobbitt, Reflections Inspired by My Critics, 402