Between Description and Prescription: Law, Wittgenstein, and Constitutional Faith

64 Pages Posted: 9 Jan 2015 Last revised: 21 Feb 2018

Gregory Brazeal

Tulane University - Law School

Date Written: December 1, 2017

Abstract

The occasions on which a judge or legal scholar has peered into the depths of the Constitution and found, to her surprise, that the Constitution requires the opposite of her ideological preferences, are extremely rare. Yet judges and scholars continue to present their conclusions as the product of ideologically neutral reasoning, while often criticizing the ideological bias in the reasoning of their opponents.

A Wittgensteinian perspective on the nature of legal discourse can shed light on this puzzlingly persistent state of affairs. Legal discourse, including constitutional argument, is partly defined by the blending of descriptive reasoning about what the law is with prescriptive reasoning about what the law ought to be. To reach a legal conclusion based on a blend of descriptive and prescriptive reasoning, and to phrase this conclusion as purely descriptive, as legal actors habitually do, is not to violate the rules of legal discourse, but to abide by them.

Taking this conception of legal discourse as a starting point, the Article extends Sanford Levinson’s analogy between U.S. constitutionalism and religious faith. Just as we can distinguish at least three attitudes toward a religious belief—fundamentalism, atheism, and non-fundamentalist faith—so we can distinguish at least three analogous approaches to legal and constitutional discourse. Jack Balkin’s Constitutional Redemption illustrates the often neglected possibility of a constitutional faith without fundamentalism.

Keywords: Formalism, Atheism, Constitutional Faith, Constitutional Theory, Fundamentalism, Jack Balkin, Legal Realism, Legal Theory, Ludwig Wittgenstein, Philosophy of Religion, Faith, Sanford Levinson, Skepticism, Søren Kierkegaard, Theology

Suggested Citation

Brazeal, Gregory, Between Description and Prescription: Law, Wittgenstein, and Constitutional Faith (December 1, 2017). West Virginia Law Review, Vol. 100, No. 2, 2017. Available at SSRN: https://ssrn.com/abstract=2547088 or http://dx.doi.org/10.2139/ssrn.2547088

Gregory Brazeal (Contact Author)

Tulane University - Law School ( email )

6329 Freret Street
New Orleans, LA 70118
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
147
rank
185,227
Abstract Views
1,581
PlumX