Attitudinalism in Medicine
whoooo26505 at yahoo.com
Tue Jun 6 09:25:43 PDT 2006
Two reasons: (1) because they cannot conceptually separate justification from belief; and (2) they cannot see the concept of law as existing in any form other than rules. (Dworkin showed 2 is misguided). What you describe are paradigmatic choices. In theory -- and I do stress in theory -- malpractice is the set of choices outside the paradigm. That a physician, faculty member or group of referees has an approach to protocol does not mean "attitudes rule" unless we adopt a vocabulary that cannot distinguish structured from non-structured decision making. Look, the only sorts of things that do not have "attitudes" of the sort you are describing is algebra and computer syntax. In the world of legal decision making, some things do attempt to imitate mathematics (jurisdiction rules, formalism), some rely upon strong standards (content restriction regime), and still others give more license (4th A, your affirmative action doctrine).
Let me say one more thing about lawyers: another reason why lawyers complain when judging is too discretionary is because they are trying to sell this orthodoxy to the public. If you do not have a clear understanding of how the game will be called, it makes it very difficult to play coach. You see the same thing in sports culture. It's not that it is wrong to call the game less closely in game 7; it's wrong not to have an announced reason or a developed expectation for this emergent adjudicatory custom.
Mark Graber <MGRABER at gvpt.umd.edu> wrote:
One of things that struck me when I was in physical therapy for a wrist
injury was the way in which doctors and physical therapists disputed the
best treatment for recovery. There was agreement on some matters, but
what exercises I had to do in any given week seemed to me to be as much
a function of the doctor I saw as anything else. And, I gather from
such works as Frank and Frank, PERSUASION AND HEALING (detailing the
variety of psychotherapies) that the same is true in much medicine, that
there are areas of agreement and disagreement in the treatment of
injury, disease and disorder. My query is this: to the best of my
knowledge, no attitudinal model exists in medicine. That is to say,
people understand that there are good faith disagreements as to what
constitutes appropriate medical treament and that, within very
contestable boundaries (witness malpractice cases), doctors who engage
in these treatments are engaged in the practice of medicine. I could
tell an analogous story about the proper way to open a chess game, or
about bridge bidding contests. So, what puzzles me is why
non-practicing legal scholars should take a different tack with respect
to the law, dividing the world into law and attitude.
Mark A. Graber
>>> Scott Gerber 06/06/06 10:19 AM >>>
Law, at least from a foundationalist perspective, doesn't recognize
"plausible constitutional arguments on both sides of an issue." I
agree that most academic lawyers, and their colleagues in the
humanities and social sciences, believe otherwise--that law is all
about "argument," to quote Dworkin--but that wasn't the tack I was
taking with my posts. In fact, my point was the opposite.
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Dr. Sean Wilson, Esq.
Penn State University
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