Oh So That’s What That Is
I’m going to do a Cool Hand Luke on you. What we have here is an incompletely theorized agreement.
From ‘Incompletely Theorized Agreements,’ chapter 2 of Legal Reasoning and Political Conflict by Cass Sunstein, pp 35-37.
Hence the pervasive legal and political phenomenon of an agreement on a general principle alongside disagreement about particular cases. The agreement is incompletely theorized in the sense that it is incompletely specified. Much of the key work must be done by others, often through casuistical judgments at the point of application.
Well there you go. That’s all I’m saying. It’s not so odd – and in fact it happens all the time. That’s what Sunstein means by referring to a ‘pervasive legal and political phenomenon’ – that you see a lot of it. It’s all over the place. It’s not rare. It’s not astonishing or peculiar or inexplicable; it’s pervasive. Pervasive, I tell you! So all these people knitting their brows in puzzlement and surprise and puzzlement at my persistence in seeing problems and ambiguities where they see simplicity and everything being settled, are puzzled at the unpuzzling. In fact, I should be the one who is puzzled at their puzzlement. I’ll do that: I’ll be puzzled. ‘What ho,’ I’ll say, ‘have they never read Cass Sunstein? Whence comes all this perturbation and surprise? This sort of thing is the merest commonplace; it is pervasive.’ Then I’ll polish off that glass of whiskey and demand another, and a pizza while you’re at it.
Abstract provisions protect ‘freedom of speech,’ religious liberty,’ and ‘equality under the law,’ and citizens agree on those abstractions in the midst of sharp disputes about what those provisions really entail.
Don’t we though. That’s all I’m saying. We agree on the abstractions and then immediately proceed to have sharp disputes about what those provisions really entail – disputes which aren’t always and necessarily easily resolved or settled. Disputes which one party can declare settled but which the other party (or parties) can still, however unaccountably and puzzlingly and brow-knittingly, obstinately declare not settled, still open, still unresolved, in fact perhaps of their nature not resolvable to the satisfaction of all people (even all reasonable people, sensible people, paying attention people). The other party remains at liberty (freedom of speech!) to say no, not settled, there are still tensions and competing goods, and I’m not going to say there aren’t, not if it was ever so.
I’m not even being inconsistent. Incoherent, no doubt, unclear, as one reader mentioned, but not inconsistent. I’ve always said I’m not a free speech absolutist; I think it’s a very great good, and certainly a much greater good than the protection of notions such as the holy, the sacred, blasphemy, heresy, orthodoxy, taboo; but I don’t think it trumps everything; there are some cases about which I’m simply ambivalent, I’m uncertain, I’m torn. I’m incompletely theorized.