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…

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.

Evidence

Winter heatedly denies that he “believes that there must be ‘something standing between the Constitution and our understanding of it … I have argued, in contrast, that . . ‘the meaning of [the Court’s] constitutional interpretation is as much a matter of… our interpretive commitments, as it is a matter of the understanding of the Justices.’"" g And here one begins to see the problem: What exactly does Winter think this “understanding” consists in? If it is a matter of interpretive commitments, objectified sedimentations, and the like, then is Winter’s outrage really justified? — Philip Chase Bobbitt, Reflections Inspired by My Critics, 366 (#corroborates, via linked claim)

Categorization

• XREF: connects to: I did not wish to maintain that, even as to the conflicts within modalities, the decider had to consult some parameter to make a decision; I argue only that the parameter can be derived. So the lack of a parallel parameter when the modalities conflict tells us something about the kind of decision being made-that it is among incommensurables-but nothing about whether a decision is possible or not.; Winter asserts: ‘[C]onsider 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 precipitates this kind of all-or-nothing conclusion. Second, and relatedly, he would deny that there are any such “pictures.”… On his view, law is the activity of decisionmaking within the existing modalities.’ Not at all. First, I would acknowledge Unger’s focus on justification, which can only be the product of political and moral debate. Second, I would agree that there are an infinite number of mental pictures we hold that guide us in writing, interpreting, and applying law. And I would agree that these are, in the main, representations of social life.; 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. (+1 more)

Related

• Winter’s denial may be inconsistent with his own theory of meaning (similarity 0.86)
• Winter is not writing about Wittgenstein, but about the Wittgensteinian account, which I fear must mean me. (similarity 0.84)
• Winter’s entire essay is structured around such small coups de theatre, which culminate in announcements of such banality that they are made ludicrous by the portentous, jargon-ridden analysis… (similarity 0.81)
• US constitutional argument forms derive from common-law modes overlaid on the state. (similarity 0.81)
• 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 0.81)
• Philip Chase Bobbitt — Reflections Inspired by My Critics (similarity 0.80)
• 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 0.80)
• Yet, there is scarcely a page of Wittgenstein’s work, including his work on the foundations of mathematics, that is not devoted to an attempt to rescue our understanding of meaning by linking it… (similarity 0.79)
• Constitutional doctrine develops as replications and mutations of one fundamental structure (similarity 0.78)

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 (0.70)
• Winter’s denial may be inconsistent with his own theory of meaning #corroborates (0.60) — Philip Chase Bobbitt, Reflections Inspired by My Critics, 366