Excellence & Authority in the Craft of Constitutional Adjudication
Rough Draft Re-write
I. Lind’s Externalism/Internalism Distinction
In his essay “Constitutional Adjudication as a Craft-Bound Excellence” (1994) Doug Lind claims that there are two mutually exclusive and competing approaches to evaluating the results of Constitutional rulings; one approach Lind calls ‘internalism,’ and another he calls ‘externalism.’ This distinction functions in a way similar to the distinction of internalism and externalism in analytic epistemology, in that it includes all possible approaches to evaluating Constitutional adjudication: any given evaluation will either be internalist, and therefore based entirely on that which is internal to a practice, or it will not. Externalism is any view or approach that does not evaluate Constitutional Adjudication by standards generated from within the craft of adjudication.
By formulating this distinction, it seems as though Lind is able to accomplish a very complex task; and in fact, it appears that this distinction ties together what are really, on my view, two different ways of conceiving of the nature of Constitutional adjudication:
1) On the one hand Constitutional adjudication is analyzed as a craft-bound excellence, a practice that creates its own standards of evaluation. On this model, judicial results are to be evaluated in terms of the craft that produced them, the method. But the standards of evaluating method are found internal to the method.
2) On the other hand, Constitutional adjudication is analyzed as a language use. The language of the Constitution is applied within the life form of judicial practice. The meaning of Constitutional language is therefore determined by the act of judging, since judging just is the application of the Constitution. Thus, Wittgenstein’s insights about language-meaning apply directly to the nature and standards of Constitutional adjudication. The meanings of words are found in their use, not in essences that lay behind concrete linguistic practice, essences that can be discovered or located by the method of definition.
According to the first approach, adjudication is understood as a craft of decision making, the determination of what laws or previous rulings of lower courts are Constitutional. Adjudication is conceived in general terms, and the internalist/externalist distinction is applied the way it may be applied to any craft. According to the second approach, adjudication is understood more specifically as grasping the meaning of a special text. The Constitution comprises special language that the judges must use, or apply within the language game of their craft.
According to Lind, the externalist evaluates the outcomes of judicial decision making according to principles or rules that are independent and outside the practice of judicial decision. What follows from this is the additional habit of searching for Constitutional meaning independent of the craft of judicial decision; adjudication’s resulting promulgation of the Constitution’s meaning is scrutinized according to standards outside judicial practice; in other words, the Constitution’s words are believed to have essential meanings external to the language game of adjudication.
This latter assumption about the language of the Constitution seems to be a stance independent of the more basic habit of evaluating the results of adjudication according to standards external to the practice of adjudication: evaluating adjudication as practice appears distinct from evaluating it as language use. But these two stances seem to be tied together: the externalist stance regarding language meaning necessarily follows from an external evaluation of practice. The meaning of the Constitution’s text cannot be determined by Constitutional adjudication unless this adjudication could be evaluated entirely in terms of the standards that arise internal to the practice of adjudication. The entailment could also run the other way: an externalist assumption about the Constitution’s language would entail an externalist approach to evaluating the practice of Constitutional adjudication. This, then, seems to be one way in which the distinction between internalism and externalism tie together the two different ways to conceive of Constitutional adjudication; externalism regarding practice requires externalism regarding language meaning, and externalism regarding language meaning entails externalism regarding practice.
Yet, mere entailment does not tell us much about Lind’s internalist requirement. Just what is the mechanism underlying this distinction between internalism and externalism? What is exactly the difference between these two points of view as applied to both the practice of adjudication and the language game of adjudication? What is it precisely to view a practice from the inside? I think that in answering these questions, we can arrive at not only a deeper understanding of Lind’s analysis but also a way to better explain the unity of these two ways of conceiving Constitutional adjudication. Lind, I believe, gives us what we need by noting the lack of experiential knowledge from the external point of view. However, I conclude by arguing that Constitutional adjudication is a unique practice and language game. Not only must the determination of the Constitution’s meaning be evaluated as language use internal to the practice of adjudication, but also in terms of the political authority and function of the Court.
II. Experiential Knowledge
Lind mildly suggested another distinction between understanding that we associate with discursive or propositional knowledge and understanding we associate with experiential knowledge. Lind explained externalism as an “evaluative or descriptive” (358) enterprise, whereas internalism seeks to gain a “working knowledge” of the craft in question; this internalist approach is a different “point of view,” and requires “experiential understanding” (258). The significance of the practice’s “results of its doing, its understanding, its gestures, and its discourse” are therefore understood in a way rooted in “doing, understanding, gesturing, discoursing” (362). “Experiential understanding” makes “the gulf between the craft master and the externalist unbridgeable.” (368) On my view, then, a practice’s results are rooted in something associated or equivalent to knowing what it is like to be a practitioner. The internalist stance appears to be grounding in the intuition that evaluation requires some form of “experiential knowledge” that someone from the external point of view lacks.
Experiential Knowledge and Practice of Adjudication
But how does this distinction explain the internalist requirement about practices? With a practice or craft we focus attention on performance and on know how, not necessarily on the phenomenology of knowing what it is like to be. Borrowing a distinction from Theodore Schick (1982), we could say that the internalist requirement demands only that a judge know “what it is to” adjudicate while leaving aside the question of whether or not he judge knows “what it is like” to adjudicate. Schick intended this distinction to capture the difference between knowing something via direct experience and knowing something via the imagination, such as the process of understanding a work of literature. However, this distinction has not caught on, and Nagel’s language has become the standard use; the reason I think Schick’s distinction did not catch on is due in part to the fact that knowing “what it is to” go about something, or what it is to just experience life, references far more than the phenomenal. Adding the word “like” captures the phenomenology, what the world is “like” for some individual. Thus, knowing what it is to engage in a practice implies more than what it “feels like” to so engage, but rather refers to the activation of all the skills and processes involved. When I know what it is to play the trumpet I have memory of playing the trumpet; but such memory consists in my full capacity to engage in playing the trumpet again. This memory therefore references all the dispositional abilities involved with playing the trumpet in addition to episodic memory—what it was like to be when playing the trumpet. Considering this, Lind’s reference to “experiential understanding” would not seem to refer to merely the understanding of what it is like to be while engaged in the craft of adjudication.
However, the criteria of evaluating a practice are primarily rooted in the very act of learning a craft-bound excellence, and the learning involved in developing this know-how does seem to comprise a conscious, deliberative, and creative activity. Lind writes:
The practitioner develops an understanding of the conditions of excellence for her craft while pressed to meet the internal demand of working within it. Thus the artist acquires a sense of mastery in painting while learning to conform her creative ideals to fit the natural limitations of her medium…Practice and mastery thus relate symbiotically, as the practitioner’s understanding of craft excellence and her sense of working within the internal demands of practice develop concurrently, each reacting to and working upon the other. From the internalist point of view, therefore, the practice of a craft objectively determines its conditions of excellence… (358).
Thus, it is conscious and creative labor of the practitioner that fashions the understanding of the conditions for excellence. This creates that “epistemological distance” between the outside critic and the inside practitioner due to the critic’s lack of “experiential knowledge,” knowing what it is like to conform one’s ideals of the practice of adjudication to the limits of that practice’s medium. The Judge who has gained excellence owns the automatic ability to reason, feel, and judge within the craft of adjudication in virtue of the Judge knowing what it is like to own the conscious pressure “to meet the internal demand of working within” the craft as this automatic ability is fashioned.
Therefore, it is my tentative conclusion that the reason why Lind’s distinction between internalism and externalism is able to capture so much and unify the activities of social practices and language use is because of its ability to locate the necessity of knowing what it is to engage in the life form of a practice, generating conditions of excellence rooted in what it is like to be while engaging in that practice—phenomenal experiential knowledge. The external critic of Constitutional adjudication carves off the knowledge of what it is like to fashion the virtues that qualify a person to evaluate the results of adjudication. As Alasdair MacIntyre put it:
A virtue is an acquired human quality the possession and exercise of which tends to enable us to achieve those goods which are internal to practices and the lack of which effectively prevents us from achieving any such goals (1981).
It is only on the anvil of knowing what it is like to creatively strive towards a practice’s ideal within the limits of that practice that the virtues of that practice are fashioned. And without such virtues, the externalist does not come with the requisite qualification to judge the merits of that practice’s methods and results.
Experiential Knowledge and Word Meaning
If we are to unify the two conceptions of constitutional adjudication, we must now turn to the use of language within this practice and ask what role “experiential knowledge” plays. Turning first to the case of knowing what it is like to be, it seems as though phenomenology may play a complex role in the meaning of our words. Take for instance emotion terms. Use of emotion terms are universal, biologically fixed capacities, physically structured with facial gestures. This makes emotion terms seem more like words such as “and,” “I’,” or “that,” and less like those words that are directly tied, in a contingent way, to concrete social practices and changing forms of life. However, part of the meaning of these emotion terms includes a phenomenal dimension. It is only those definitional approaches that reject Wittgenstein’s key insights that are forced to pull away the phenomenal from the “essence” of emotion terms, such as Martha Nussbaum’s project of conceptual analysis (2001). Even Michael Tye (1995) includes the phenomenal as part of emotion and mood term meaning, which is why he refers to their reference as “compound”: a given emotion or mood is “about” something in the world in addition to referencing, phenomenally, bodily states. Many of our nouns seem to bear their meaning in a similar way; for example, the word ‘whale’ means something to me in terms of both the way it is used and also in terms of my knowledge of what the object to which it refers is phenomenally like to me.
But what of the broader knowledge of what it is to engage in language use? According to Wittgenstein, the use of a language is determined by the form of life it is used in. The experiential knowledge—broadly construed—of the form of life becomes necessary to grasp the meaning of a word. A concrete example seems to be the best way to explain this point. Take for example the way we use the word ‘swat.’ The meaning of ‘swat’ is rooted in how we know when it is the case that someone just “swatted” a fly. Perhaps someone hits a fly much like I hit my door to make it close, or perhaps like I hit a ping-pong ball. This is not what we say is swatting a fly. But then what is? Can we recognize the action as swatting without implicitly holding a certain story about bugs and men? Let’s even say an abstract recognitional cognitive faculty kicks in, in which case we use the word “swat” by merely recognizing the action as being of a certain abstract action type. Such a recognitional device only moves the problem another step back. How did we come about possessing the ability to recognize the abstract action type “swatting” to begin with? We come to learn experientially how people get annoyed with bugs and we have our own unpleasant run ins. Bugs come to take on a role of disrespect, particularly when they dare get close to the face of a human person. We develop social style that we mimic from others as we learn to not lung our head around or fall to the ground to emerge again with a big stick. Even if you liked bugs, social grace would not permit the hairy, green, winged specimen to plant itself on your nose while conversing with the guests. And so we take on a highly refined, aesthetic, social action we call “swatting.” It seems that the meaning of ‘swat’ implies such a story we might be able to tell.
‘Swat’ therefore means something only from a point of view internal to human social practice, which entails knowing what it is like to be around flies, swatting at flies, and being in social situations in which other people swat at flies. The meaning of “swat” is rooted in this social practice of swatting. How can the word “swat” have an essential meaning that the externalist can get at through conceptual analysis? Such conceptual analysis must begin by telling stories about alleged swatting scenarios; however, there is no essential meaning, no “common element” within all the usages of a given word, the analysis is getting at beneath the word; at best, this is rather describing in abstract ways the concrete practices, which in turn can only be understand from the internalist perspective—in this case what it is like to be a language user in a form of life involving bugs and people. The resulting definition depends on the practices to which we attribute the word “swat.” But this means that definition must constantly seek to fit the usage and not the other way around, which leads to the unhelpful dialectical circle that Wittgenstein describes. Thus, Wittgenstein dismisses even the case example scenario, the “illustration,” that “first step in the dialectical puzzle of definition” (365). Analytic definition carves off the knowledge of what it is like to use a word within that word’s form of life as well as what certain aspects of the world are like to which the word refers.
A Language Game Like Any Other?
However, the language game of Constitutional adjudication seems to be specially “closed.” Although someone external to the practice can evaluate the product of the practice via “internal investigation” (357), such ad hoc evaluation cannot change how the Constitutional language is now applied. The use of the Constitution is found in the authoritative judgment; the meaning of the text is fashioned in terms of the product of adjudication. The Court has special authority over the meaning of their words. In the case of Constitutional adjudication, externalist theories can only attempt to “discern what the Constitution ‘actually’ means, i.e., not simply what the courts say it means” (372). The Constitution means what the courts say it means since it is the courts that comprise the virtuous users of the Constitution’s language, but also in virtue of the fact that adjudication is an authoritative judgment regarding the meaning of the Constitution’s text.
III. Language Use vs. Authoritative Application
This last point reveals a further complexity about Constitutional adjudication. Every craft-bound excellence must be evaluated according to standards that arise from the experiential knowledge of practicing the craft; and the language used within any given craft—some crafts might not have any special language at all—will have its meaning determined by how it is used within that particular craft; we could say that when language use is essential for a given craft, then that craft has its own language game. These two points hold for adjudication in a general way, in the way they hold for any practice. But not all practices produce outcomes that have a meaning fully determined by the practice.
Take for example the scenario of two English professors debating on the meaning of a particular text from Shakespeare. Let’s say the text is the phrase “Juliet is the sun.” One professor believes that Romeo is speaking only to his particular experience of seeing Juliet one morning; the other professor believes that Romeo is speaking more objectively to the role Juliet plays in his entire relationship with her. The two professors debate the meaning within their 21st century academic language game, the kind of game people partake in only after attempting to write a PhD dissertation for an American English department. Another person Sam, who takes an externalist attitude to what goes on in contemporary English departments, is listening to this debate; Sam does not possess the virtues required to criticize the way the two professors are deliberating since this would require the ability to use words in a language game Sam is not familiar with. He would also not have the experiential knowledge of engaging in the practice, and he would therefore be unable to understand the conditions of excellence associated with this debate between the two professors. However, our intuitions tell us that Sam would be in a position to come to his own reasonable conclusion about the meaning of this text, and might even be in a position to come to a better conclusion than the two professors. Sam might be romantically engaged, whereas the professors never really having experience in passionate romance, perhaps not even in courtship or sex at all. Further, Sam might possess the natural ability to take in the imagery of this metaphor, whereas the professors might have stifled this ability; through the steady engagement of their own craft, they might have acquired some “hunched backs” as Nietzsche once put it.
What we have here is a piece of language from the language game found within a universal form of life, a universal practice comprised of universal narratives and universal emotions, one in which the common man might be in a better position to use than any given expert. However, this does not remove the possibility that the language game of the professors will not yield greater understanding, or be a necessary tool to determining the actual meaning of the text. The text is both external and internal to their craft. The language of “Juliet is the sun” is legitimately taken up in their language game without violence—we hope for the sake of argument any way. However, standards strictly internal to their practice do not determine the meaning of “Juliet is the sun.”
It is at least a logical possibility that the same would be the case with the Constitution. In this case, the language of the Constitution would be taken up into the practice of adjudication, and adjudication would be respected as a tool for resolving disputes about particular sections of the Constitution’s language. However, the meaning of the constitution would be primarily identified with standards arising out of the form of common life and common language use. The method of adjudication could not be criticized by one external to the practice of adjudication, but the results could be.
This possibility might be similar to the protestant view of the meaning of sacred scripture. We could call this the Bible as Religious Constitution analogy. It is the common work of grace within individuals, as well as common abilities of reason and conscience, that come as the most natural determiner of scripture’s application and use. Furthermore, this religious Constitution is self-authenticating and perspicuous for any rational reader; and external guidance is in a sense unnecessary since it is said that “scripture interprets scripture.”
But this is not what the nature of Constitution adjudication seems to be. Constitutional adjudication seems to reveal a tradition more like Rome. The standards that determine the meaning of sacred scripture arise within the tradition of church teaching authority. Those outside the teaching authority of the Church stand external not only to the practice of theology and hermeneutics, but to any form of life dedicated to the deciphering of the meaning of the language of scripture—which, for example, is why keeping the scriptures out of the vulgar tongue was not only justified but practically necessary. The tradition of Constitutional adjudication seems much like this and therefore bears a unique relation between the conditions of excellence internal to its practice, its language game, and its outcomes. To illustrate this, consider the following diagram:
Practice:(S1) Standards Internal to Practice->Outcomes Considered Generally
Language Use:(S2) Rules of Language Game->Language of Method & Result
“Closed” Language Use:S1, S2, & (S3) authority->Determination of Text’s Meaning
In the case of Constitutional adjudication, we see a standard that appears unique (S3). We do not find this standard, for example, in the case of deciphering the meaning of Shakespeare. In the case of adjudication, the combination of standards internal to the practice and the rules of the language game fully determine the meaning of the Constitution’s language. On Lind’s account, it seems that the language of the constitution and the language of adjudicative practice comprise a unified and closed language game: Constitutional language does not arise or sustain itself in terms of the experiential knowledge of the practitioners of life who are external to what it is like to pursue the excellences of the practice of Constitutional adjudication.
Lind, Douglas. 1994 “Constitutional Adjudication as a Craft-Bound Excellence” Yale Journal of Law & Humanities. 6:353-395.
MacIntyre, Alasdair. 1981. After Virtue. University of Notre Dame Press.
Nussbaum, Martha. 2001. Upheavals of Thought: The Intelligence of Emotions. Cambridge University Press.
Schick, Theodore. 1982. “Can Fictional Literature Communicate Knowledge?” Journal of Aesthetic Education 16: 31-39.
Tye, Michael. Ten Problems of Consciousness, MIT Press, 1995.
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