Friday, January 11, 2013

The Flexible Constitution

Sean Wilson's book The Flexible Constitution sounds promising:
This is an ambitious work on constitutional theory. Influenced by the views of Ludwig Wittgenstein, Sean Wilson tackles the problem of how a judge can obey a document written in ordinary, flexible language. He argues that whether something is “constitutional” is not an historical fact, but is an artisan judgment. Criteria are set forth showing why some judgments represent superior connoisseurship and why others do not. Along the way, Wilson offers a potent critique of originalism. He not only explains this belief system, but shows why it is inherently incompatible with the American legal system. His conclusion is that originalism can only be understood as a legal ideology, not a meaningful contribution to philosophy of law. The ways of thinking about constitutional interpretation provided in the book end up challenging the scholarship of Ronald Dworkin and numerous law professors. And the findings also challenge the way that professors of politics often think about whether a judge has “followed law.” 
He also has a website with some intriguing material for teaching a course on Wittgenstein.


  1. I read about this also, and it sounds promising. I think it's a context where the philosophy of Wittgenstein can be helpful.

  2. is this so different from Justice Holmes' take on legal pragmatism (with the exception that "superior connoisseurship" sounds like a hard sell in the market of American democracy)?

    1. The book's relationship to Holmes' "pragmatism" is complicated. It would agree with Holmes' rejection of formalism. It would agree that the judicial craft is not a self-contained, autonomous system of reasoning. No surprises here. However, the book does not endorse deference to legislative assemblies and nor would it agree with the idea of "policy science" (the idea that public policy was ultimately an empirical science, popular in Holmes' day). So the question is what sense of "pragmatism" you are referring to here. I want to say it this way: the book agrees with the good sense of legal pragmatism -- that answers are not predetermined and discovered by analytical means (realism) --but not the poor sense (deference to legislative institutions). Of course, the book isn't written at that level of concern. It's a philosophic work that gives us quite a breakthrough: it tells us what kind of thing constitutional judgment actually is. The nature of this behavior has been in dispute among many fields for a while. If you are looking for a quick summary, it's probably very Dworkinian if you simply substitute Wittgenstein for Rawls. The one thing that the Dworkinians won't like is that judging a constitution isn't an act of moral reasoning. Rather, it's an artisan judgment that relies upon cultural forms and arrangements. The one thing that pragmatists won't like is that only connoisseurs can properly carry out the behavior. Constitutional judgment is an elitist project when properly undertaken. The reason why this shouldn't scare us is that being a true expert requires that one have an aspect sight for picking among the best alternatives, given where history, culture and knowledge happen to be at that point in social development. Elitism in this sense is good: artisans save us from the idiots who would have the Constitution mean some of the dumbest things you could imagine (see originalism). It's good Duncan, if folks will let it be.

  3. It's hard to tell just from the blurb how original it all is. Or how good, of course. I'll have to read it before passing any judgment.