Attitudinalism in Medicine

[Samuel Bagenstos]

I'm neither a postmodernist (though, to my amusement, I've been accused
of being one) nor a moral relativist,  so I should probably let them
assert their own point of personal privilege.  But if these terms have
any meaning, I think it's clear that one can be a moral relativist
without being a postmodernist.  (Of course, maybe Scott means to say
that they don't, in which case he's internalized more of the
postmodernist mood than he thinks :-).)  Postmodernism may embrace a
kind of moral relativism, but it also incorporates perspectives on power
and language (among other things) that it would be easy for a moral
relativist to reject.

And it seems to me that one need not be either a postmodernist nor a
moral relativist to embrace the position that much of legal doctrine,
including constitutional doctrine, is largely indeterminate, and that
Scott is wrong to think there is a single right answer to each and every
question of what the Constitution means as applied to particular fact
settings.  The Legal Realists embraced that position, but lots of them
weren't moral relativists and they certainly weren't postmodernists
(though some of them in some of their thinking anticipated some but
hardly all of the aspects of postmodernist thinking).  Heck, even Hart
and Sacks really embraced that position.

This is probably taking us off topic.  But I don't think it advances
analysis to call any position recognizing any indeterminacy in the law
postmodernist or moral relativist, particularly when used as epithets.

====================================
Samuel R. Bagenstos
Professor of Law
Washington University School of Law
One Brookings Drive
St. Louis, MO  63130
314-935-9097
Personal Web Page: 
http://law.wustl.edu/Academics/Faculty/Bagenstos/index.html
Disability Law Blog:  http://disabilitylaw.blogspot.com/

>>> Scott Gerber <s-gerber at onu.edu> 6/8/2006 6:53 AM >>>
Mark:

We are engaged in a disagreement that has occupied law, politics, and 
society since at least the rise of post-modernism (witness, for 
example, Pope Benedict's recent speeches criticizing moral relativism 
[a lifelong concern of his, it seems]).  I reject post-modernism, 
although I concede, as I state in my prior post, that most of the 
academy (and society also, according to the Pope), has embraced it.

I hope your summer is going well.
Scott


Mark Graber 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 <s-gerber at onu.edu> 06/06/06 10:19 AM >>>
>Mark G:
>
>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.
>
>Scott G
>
>
>
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu 
>To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof 
>
>Please note that messages sent to this large list cannot be viewed as

private.  Anyone can subscribe to the list and read messages that are 
posted; people can read the Web archives; and list members can (rightly

or wrongly) forward the messages to others.
>

--------------------------------------

Scott Gerber
Law College
Ohio Northern University
Ada, OH 45810
419-772-2219
http://www.law.onu.edu/faculty/gerber/ 
_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu 
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof 

Please note that messages sent to this large list cannot be viewed as
private.  Anyone can subscribe to the list and read messages that are
posted; people can read the Web archives; and list members can (rightly
or wrongly) forward the messages to others.