Giving valium to patient waiting for an abortion

[Robert Justin Lipkin]

In a message dated 5/31/2002 5:27:49 PM Eastern Daylight Time,
slevinson at MAIL.LAW.UTEXAS.EDU writes:


> Who among us believes 1) that a select
> committee drawn from our listserv could agreee on a "useful framework"
> that would (presumably) limit the "I know it when I see it" aspect to
> balancing in such cases and/or 2) that many judges have either the
> interest or capacity to discuss in a sophisticated way "the epistemics
> behind our intuitions" and/or  3) that the judiciary is effectively
> organized, institutionally, to bring about the kind of clarification that
> Bobby seeks?
>

       First, the relevant community, in my view, is not necessarily
restricted to "a select committee drawn from our listserv" nor to the entire
list serv itself. The relevant community is the community of democrats,
whether legal scholars, lawyers, judges, citizens, and so forth.  Indeed, the
relevant community is the continually expanding and narrowing group of
democrats whose interests in these issues prompts them to converse. The
community expands, and with it the appropriate language(s) or discourses,
when both those credentialed and those self-schooled approach the importance
of religion and secularism in American society, and realize intuitions must
generate principles (which then in turn generate more reflective intuitions)
if conversation is not reduced too mere "I know it when I see it" intuitions.
We can thrust such intuitions at each other advancing very little in seeking
principled consensus about these important matters in American democracy. The
community narrows first when elites (quite unintentionally I suspect) exclude
non-elites from the stage or when those in the audience are bored and see no
purpose in the rarefied, arcane debates by the elites. Second, the group
narrows when powerful entities seek to assuage the audience's frustration by
showering them with material or other (quasi-) permanent distractions.

       With all due respect, Sandy's apparent conception of balancing is at
best only one conception of balancing and at worst an impoverished one.  Call
this, again respectfully, "naive balancing" which has as its paradigm the
type of balancing any individual engages in when deciding trivial matters
like which activity should I choose tonight -- watch the silly movie Skulls
II, or read a book. If we can assume that I  have (at my age) a relatively
unified, (normal) personality (I know both are wildly controversial claims) I
don't have to determine what counts as a value, or possess an elaborate
procedure for weighing values, or embrace a procedure for resolving conflicts
of values, or construct a useful framework for determining how "the law of
Lipkin" is to develop. Perhaps, these questions are real questions for young
people, but they are not for me. (Although, in less trivial cases, the need
for such "epistemics" might reappear.) These individualistic questions or
issues perhaps can (and should) permit me to get along merely with my
intuitions and therefore in this case (perhaps) one can eschew principles.
With the appropriate moral constraints, my intuitions suffice to get me
through the day. That's all I need.

       But in a community of democrats seeking freedom, equality, and
solidarity naive balancing is impossible and woefully undesirable. So in this
context we must seek for want of a better term "complex balancing." Complex
balancing forces us to seek the epistemics of our considered political
intuitions and those of our fellow citizens. And we shouldn't strain at the
term "epistemics;" all it means is how do we know what counts as a value and
how do we prove what we value, and these questions and the form of dialogue
they involve are ones that most high school (college?) graduate, if not
others, can master. Naive balancing gives no chance of structuring political
debate, and if we all just happen to agree on the same judgment through naive
balancing, we have no reason explaining why. Democrats, in my view, can't
tolerate such a 'consensus', because such a consensus becomes authoritarian.
Not knowing why we just happen to agree, provides us without a mechanism for
promoting changing if necessary. Complex balancing asks us to determine what
counts as a value; is it just any need or desire or does value formation
require something more. Its asks us this before we begin to balance. Complex
balancing deals similarly with the other elements of "epistemics" mentioned
in my original post.

       I must confess that I am surprised at Sandy's second and third points.
Sandy has been a leading critic of the judicial model of constitutional law.
Why then should we care whether judges individually or the judicial system
itself  have the capacity or interest in answering these questions. (My own
weak hunch is that a reorganized judiciary can, but never mind.)  The point
is that my conception of conversation can take place in the legislatures,
schools, workshops, churches, and so forth. Our present difficulty is that in
popular culture we shout at each other and everyone has an "agenda" accept
me. Right? Without complex balancing we're supposed to have agendas as long
as we seriously and conscientiously seek to formulate principles with others
having different agendas.  And keep in mind, even now democratic
conversations (complex balancing) occur; indeed, in my view this is
inevitable; the problem is that they occur badly. Why I even witnessed
versions of it on the Fox Cable news channel.

       In conclusion, balancing generally can be performed differently, for
better or worse, and it need not (cannot) occur only on list servs or only by
judges. Complex balancing is the hope of a reasoned democratic consensus.
But, of course, there's no guarantee that the most sophisticated form of
balancing will achieve such consensus.

Bobby Lipkin
Widener University School of Law
Wilmington, DE
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/religionlaw/attachments/20020531/be400923/attachment.htm