Ciceronian Review

Worstward West

I also recently read West's Normative Jurisprudence.   I had found a number of West's works interesting, and helpful, and so was looking forward to reading the Introduction.  Unfortunately, it turned out to be a terrible book.  It read as though a couple of articles had been mashed together.  The arguments seemed ill-considered in large and small ways.  And inconsistencies abounded.  Dworkin is a natural law theorist in chapter 1, while his account of judging is attributed to Legal Positivist in Chapter 3.  Legal Positivism is seen as fundamentally a politically conservative theory -- because?  Who knows really.  Mid-19th century American judges enforced the Fugitive Slave Act.  Why that was particularly positivist is never explained, why the judges are to be classified as positivist is not explained, nor any evidence adduced that the enforcement would have been different had they been more natural lawyers.  What distinctions like Natural Law and Positivism have to do with Normative Jurisprudence is left unexplained, and it is a serious problem.  There is no obvious reason to organize a discussion of normative jurisprudence in that way.  Positivists and Natural Law thinkers are all over the map with respect to normative theories.  There just isn't a normative jurisprudence attached to such schools.  Things don't get any better in the discussion of Critical Legal Studies.  Much of CLS never really had a normative jurisprudence of any kind, and what did was utopian.   

Jack's End

I have only about twenty pages left of Living Originalism.  The body of the second section is three chapters exploring the method of text and principle in application to particular topics.  The reading goes along fine, but it is heavily footnoted, as it should be for an academic work.  The notes, however, make clear that one needs to spend a good deal of time rummaging through lots of other articles and books in order to weigh how convincing the analysis is.  Or one might so think.  In fact, I think it pretty cleverly constructed to permit that as one option, but not a necessity.  The reason is that part of the methodology involves recognition that the arguments re the meaning and application of the Constitution should be (or perhaps have to be) accessible to and persuasive for people outside the academic law school setting.  It cannot be all, or even crucially, an account of historians or specialized lawyers, because of the grounding in the conception of the Constitution as framing a joint project (or something like one).  (Shapiro's Plan Theory there alright.)

But aside from the detailed citations, there are some issues that come up for a reader skimming and skipping endnotes, and that are not solved by the notes.  For example, what is meant by principle and how does one decide on identity of or for a principle?  I saw nothing helpful (so far at least) on that.

And that suggests that material on the topic should be included in a course on originalism and philosophy of law.  The lists grow.

Living Originalism

I am two-thirds fo the way through Balkin's Living Originalism. The book is divided into two parts, the first is the argument for his version of originalism and the second is an exposition of how the theory works as applied to some provisions of the Constitution and current issues.  The shorthand for Balkin's thoery is "text and principles."  It is originallist in the sense that understanding the Constitution starts with the meaning of the texts at the times adopted and the principles then embodied in the texts.  The contrast might be with Solum's semantic originalism in which the public meaning go the texts at the time of adoption determine interpretation, with the rest being 'construction' of the Constitution.  This is too short to set out the differences between Balkin and Solum, though they are substantial.  One of the interesting things about Living Originalism -- setting to one side the substance of the theory advanced -- is the way that Balkin argues his case.  The first part of the book is, in a number of ways, loosely argued.  It is not as closely or as detailed an argument as one might expect from a book.  Law review articles are long, but not long enough to substitute for a book.  I am not saying that the arguments are weak or poorly constructed.  It is that they are a bit loose-jointed.  They move along quickly.  Is it that the book is intended as a more popular rahter than academic effort?  It is quite accessible I think, so maybe that is it.  It is an interesting mix: the notes are quite detailed and useful, and that is where Balkin engages with other writers (for the most part).

One annoying feature is the repetition of examples about meaning or semantics that are ridiculous.  Balkin is another user of the example of "Domestic violence" meaning intra-familial violence and not civil disorder.  I find it hard to believe that high school students reading the Constitution think it is about family fights.  It is not just that the example is "fanciful" but that it is both unpersuasive and built on a plainly false view about written language.  The example supposes a univocal disposition for semantic content of clauses that I find very hard to believe. 

 

Changing Trains

I finished the first volume of Parfit's On What Matters some time ago. The aim of the book is to reconcile consequentialism and Kantian deontic moral theory. The argument is largely constructed by analysis of various examples with an eye to deontic explanations, and then the deontic explanations by consequentialist theory. (Not quite that order, but I think that is one way to read the overall structure.) That volume has elicited a good deal of discussion of the nature and role of reasons, and I think volume 2 takes up the topic in some detail. (Have not read volume 2 as yet.) The book sort of went off the tracks for me relatively early on. The argument formed by examples or cases, and then some analysis. The examples are familiar variations of the Trolley Problems. The Trolley Problems are all variant cases asking about one's intuitions re whether it is morally permissible (or obligatory or prohibited) to cause one death in order to avoid killing a larger number. The cases are, e.g., may one throw a switch causing a trolley to switch tracks killing one person but thereby saving five others. Then you push the one person off a bridge, or open a trap-door, and so on. They are found in discussion of the doctrine of double effect, for example. Here is the problem from volume 1: Parfit introduces examples and then moves to the explanation of how the outcome is made to fit with one or another interpretation of deontic rules. But what happens when the intuition about how the cases should be decided are not shared? Parfit does not argue for particular interpretations of the cases; instead, the argument is from his intuition about the case to its fit with, e.g., maxim of ends as he interprets the maxim. If one does not share the intuition, the rest becomes hypothetical (in the sense that it just seeing how the machine runs). Which means there is no argument about what matters, only a complicated exegesis of what matters to Parfit. Maybe this concern is addressed in volume 2. I will have to read it to find out.