nedjelja, 22. srpnja 2012.

Richard Marshall intervjuira filozofe 1: Robert Stern, Mitch Berman, Andrei Marmor, Meir Dan-Cohen, Christine M. Korsgaard


Književni kritičar Richard Marshall radi fantastičan niz intervjua sa suvremenim filozofima, i to onima koji kod nas uopće nisu referirani. Okej, Žižek, Badiou i Agamben, ali što je s metafizičarima, platonistima, logičarima, etičarima... Važno je da Marshall nije filozof pa i razgovor vodi na način koji može biti razmjerno pristupačan i čitateljima-nefilozofima.

U ovom postu donosimo prvi pregršt intervjua: Robert Stern, Mitch Berman, Andrei Marmor, Meir Dan-Cohen, Christine M. Korsgaard.
Slijede: Cecile Fabre,  Bryony Pierce, Gila Sher, Scott Berman, Sarah Sawyer, J. C. Beall, Craig Callender, Eddy Nahmias, Michael Lynch, Eric Olson, Pete Mandik, Katerina Deligiorgi, Mark Rowlands, Patricia Churchland, Alan Gilbert, Japa Pallikkathayil, Kit Fine, Graham Priest, Kieran Setiya, Claire White, Alfred Mele, Hilde Lindemann, Eli Friedlander, Jason Stanley, Roger Teichmann, Eric Schwitzgebel, Jeffrey Bell, Brian Leiter, Peter Carruthers, Jean-Michel Rabaté i Josh Knobe.

Hegel’s modest metaphysician

Richard Marshall interviews Robert Stern.
Robert Stern is an ice cool metaphysician brooding on Kant, Hegel, Kierkegaard, Deleuze and the whole of nineteenth century philosophy. He has written Hegel, Kant and the Structure of the Object, Transcendental Arguments and Scepticism: Answering the Question of Justification, Hegel and the Phenomenology of Spirit, Hegelian Metaphysics and Understanding Moral Obligations: Kant, Hegel, Kierkegaard. He thinks the British Hegelians were heavy dudes and that his own metaphysics isn’t house-trained. He thinks McDowell and Peirce plough the Hegelian groove and that Hegel is the funky bridge between Kant and Frege. Holy Hegeliana Batman!
3:AM: What made you decide to become a philosopher? Were you always in the grip of dialectical musings from an early age?
RS: Like most people, I suppose my development was greatly influenced by my parents and family. My mother and father both came from the Jewish community in London, and both left school without going to university, as they needed to earn a living by taking on jobs. But my mother, in particular, loved debate and argument, so liked to discuss issues in politics and religion. I also had a colourful uncle, who had moved from being a communist in his youth to a Malthusian conservative in his middle age – so he was a constant source of provocation.
If I remember correctly, my mother was also responsible for my first encounter with philosophy as such – she brought home a second-hand copy of Will Durant’s The Story of Philosophy, and gave it to me to read when I was about 13. I remember being amazed that such a subject existed, and I was particularly taken by the chapter on Spinoza – I hadn’t realized that speculation on such a grant scale was possible. I don’t recall being quite so struck by the discussion of Kant and Hegel. But I had perhaps come across Hegel a little through an interest I had in T.S. Elliot, which led me to being vaguely aware of the British Idealists (Elliot had written his thesis on Bradley). But Durant gave me some sense of the history of the subject from the beginning, I suppose. Thank goodness my mother didn’t buy me Russell’s awful History of Western Philosophy – that might have put me off Hegel altogether. Anyway, all this awakened a school-boy interest in the subject, and (despite some misgivings from my parents, but encouraged by a much admired school teacher) I decided to study philosophy at university.
3:AM: Hegel has been understood in all sorts of ways. Peirce, Royce and Dewey had their version, Croce and Gentile theirs, Kojève, Sartre, Lukács and the Frankfurt School theirs again. Bradley, McTaggart, Green and Bosanquet made it dark and distant. So what is your Hegel like? Is it a synthesis?
RS: I agree that viewed from a certain perspective, it can look as if there are as many interpretations of Hegel as there are readers, with fundamental differences between them all. And of course, this can encourage hostile critics to believe that Hegel is ultimately a philosophical mess, where his thought lacks coherence and the exposition of his ideas is hopelessly obscure, so in the end anyone can take it any way they like. Indeed, the response to Hegel from the very beginning of his reception history was remarkably various, reflected in the famous division between ‘left’ and ‘right’ Hegelians, as well as the frequently forgotten ‘middle’ Hegelians (such as Karl Rosenkranz).
However, while Hegel’s interpreters do indeed cover a broad spectrum of views, I think this is not a sign of Hegel’s obscurity or incoherence, but really reflects the fundamentally dialectic nature of his project, which is to try to get beyond certain ingrained and very tempting dichotomies in our thinking – between reason and desire, freedom and determinism, theory and practice, the divine and the human, and so on – where his strategy is generally not to pick one side or the other, but to look for some way to combine both in a more stable synthesis. But then, of course, not only is there a danger of failing to satisfy either side, but there is also a danger of interpreters focusing more on one element at the expense of the other, and so seeming to come up with contradictory readings of his views – where again, what is often needed is some balance between them.
So, while ‘left Hegelians’ are no doubt right to emphasise Hegel’s closeness to certain themes in humanism, ‘right Hegelians’ are also correct to emphasise that Hegel is no straightforward atheist, although again to some religious thinkers his view of God may seem to amount to that. Likewise, there are both ‘conservative’ and ‘liberal’ strands in his political thought, so he can seem to be pushed both ways on this dispute, where really he is trying to get beyond it. So if you like, my view of Hegel is indeed perhaps a synthesis of a number of different readings or approaches to his thought – but that is only because I think his own position involves such a synthesis, not because I am just setting out to be eclectic in my interpretation just for the sake of it! I therefore find I have learnt something about reading Hegel from all the people you mention, and more. Of course, that does not mean there are not real interpretative disagreements and uncertainties over how best to understand Hegel and particular passages in his work – but then that is true of most philosophers.
3:AM: You see Hegel as a bridge between Kant and Frege that often is ignored in discussions of the development of Anglo-American philosophy. Is this the kind of historical absence that has left some thinking there’s a divide that the labels Analytical and Continental philosophy are supposed to identify? What do you think about the claims about there being such a divide?
RS: Yes, I agree that in many standard analytic accounts of the history of modern philosophy, there is a strange jump from Kant to Frege or perhaps Mill, as if post-Kantian German idealism never existed. And that is certainly reflected in the reading of many analytic philosophers. At the same time, it would not be true of the education of most ‘continental’ philosophers, for whom Hegel and the other idealists would all be equally significant. This then means, of course, that there is a crucial point of reference in that tradition which is missing in the analytic one, so that any number of subsequent figures, from Heidegger to Sartre to Derrida to Deleuze are then very hard to make sense of, if one lacks the necessary background in Hegel and German idealism generally. Not only do the issues of concern become hard to fathom, but also the language, terminology, method of argument and so on. (Something similar is also true of Nietzsche, and his place in this historical ‘gap’.)
Ironically, however, I think that once Hegel’s work is taken into account, it can them be seen that the differences between ‘analytic’ and ‘continental’ philosophy are less extreme than when his thought is ignored. So, for example, Hegel can be seen as addressing issues in metaphysics that of interest to both sides, where without Hegel as a mediating figure, this will be obscured. Thus, while there are no doubt other factors involved in the analytic/continental split, until Hegel forms part of the analytic canon, it will remain hard see how it can be overcome. Conversely, it is I think that no accident that figures such as John McDowell and Robert Brandom who have time for Hegel are also comfortable in dealing with thinkers from both traditions.
3:AM: You argue that John McDowell’s Mind and World is an attempt to understand the relationship between Kant and Hegel. He reads Hegel as attempting to complete Kant’s thought in some way. Is that right? Can you say something about this reading?
RS: Fundamentally, I think, McDowell reads Hegel in the way that Hegel often liked to present himself, as attempting to get beyond the dualisms and dichotomies that seem to remain in Kant’s system, notwithstanding its undoubted significance – say, the division between appearances and things-in-themselves, phenomena and noumena, freedom and necessity, reason and desire, duty and inclination, and so on. The central division that concerns McDowell in the book you mention, of course, is that between mind and world, which McDowell traces back to a further distinction in Kant, between intuitions on the one hand, and concepts on the other.
While there are ways of making this distinction that are harmless, McDowell thinks there is a tendency encouraged by Kant to come to hold that the use of concepts in our experience and thinking cuts us off from the world, rather than bringing us closer to it, thereby opening up an apparently unbridgeable gap between the two sides. McDowell urges instead that we should not think of our concepts as bounded on the outside by a world that is alien to them, or imposed on a form of basic experience that is itself non-conceptual, where he attributes something like this view to Hegel, in showing a way beyond Kant and the apparently troubling questions raised by his thought.
Of course, since the publication of Mind and World, all these issues have been much debated, both as interpretations of Kant and Hegel, and in themselves. And it is also true that there are other important historical influences at work on McDowell, including particularly Aristotle and Wittgenstein. Moreover, the way McDowell reads and uses Hegel also differs importantly from the way he is understood by Robert Brandom, who also started to employ Hegel in his own project at around the same time. Nonetheless, I think reading Mind and World still makes a very useful and stimulating way of trying to engage with Hegel, in a way that shows where his significance may lie.
3:AM: So is McDowell right to think of Hegel as he does? And isn’t his version somewhat quietistic compared to Hegel’s and as such, should that give us pause?
RS: As I have said, I think McDowell is right to think of Hegel as trying to ‘complete’ Kant’s project – and in many ways that in itself is pretty uncontroversial. Where it becomes more problematic, is to say (i) in what ways Kant’s project falls short (where Kantians will resist the suggestion that his project needs completing in the first place, while even non-Kantians will differ over where exactly they take the difficulties to lie); (ii) how precisely Hegel proposed to go further; and (iii) whether he succeeded. Moreover, it is increasingly being recognized that Hegel is not the only option available to us here, but that Fichte, Schelling and others may have a claim to be preferred.
Thus, for example, McDowell has been criticized for exaggerating Kant’s dualisms; for being too modest in his reading of Hegel’s alternative; and hence underestimating how problematic Hegel’s own position is. Personally, I would be inclined to defend McDowell on the first point, but do perhaps feel that there are aspects to Hegel’s response to Kant which are downplayed by McDowell, particularly relating to some of Hegel’s metaphysical commitments – though I would in general be prepared to defend them as not too outlandish, and suggest we can (to use a McDowellian phrase) ‘take them in our stride’!
And you are right that this difference between Hegel and McDowell can be related to the question of quietism. Although the issue is complex, quietism may perhaps be thought of as a combination of two views: (a) the claim that philosophical problems can be dissolved rather than directly answered, if it is shown that the framework that gives rise to the problem is itself questionable or misconceived; and (b) the claim that the way to do this is not through more philosophy, in the sense of taking on further metaphysical or ontological commitments, but by turning to our linguistic practices, or common sense, or our ‘form of life’. Now, while I think his dialectical approach means that (a) can be found in Hegel, I am less sure about his commitment to (b). This is because, I think, Hegel held that we cannot avoid having metaphysical commitments, as these are implicit in our language and our ordinary ways of thinking, so there is (so to speak) no escape from philosophy here – instead, we must rather try to do philosophy better, in a way that enables us to get beyond the problems which need to be dissolved.
Now, when it comes to McDowell, it is clear that he opts for (a) as well; and in so far as he is a quietist, it may be that he also hopes to opt for (b). But in fact (as some of his critics have argued), it is not always clear that he actually does so. So, for example, in Mind and World, McDowell hopes to show us how we can avoid the fruitless debates between ‘rampant Platonism’ on the one side, with all its spooky supernatural commitments, and ‘bald naturalism’ on the other, with its reductionism and excessive scientism, hence dissolving the apparently intractable philosophical issues that neither side can really answer satisfactorily.
This approach therefore seems to fit well with (a), and to echo Hegel’s dialectical strategy. But McDowell’s way to achieve this seems to be to argue for a ‘partial re-enchantment of nature’ as a middle way, but where this looks like it might itself be a metaphysically minded suggestion or a form of ontology concerning the way in which values, reasons, norms and so on can be fitted into the natural world; but if so, this would not comply with the second aspect of quietism mentioned above. From my Hegelian perspective, this would not itself be a problem, for as I have said, I think Hegel would also reject (b); and then if so, McDowell’s position would again turn out not to be so far removed from Hegel’s after all – though it would perhaps be further from one of his other heroes, namely Wittgenstein.
3:AM: Diagnosis, therapy and dissolution – you say Hegel introduced this notion of philosophy to European philosophy way before Wittgenstein. Hegel’s approach is a kind of optimism about the Kantian transcendental dialectic in that he thought we might overcome the problems rather than stay stuck. Is that right? Can you say something about this?
RS: Yes, I think Kant is a very important influence here, and gives us another place where Hegel thinks he can ‘go further’, in a more positive direction than Kant did himself. So, when it comes to Kant’s dialectic of reason, there is the suggestion that reason can find itself faced with apparently irresoluble contradictions and aporia, such as Kant’s antinomies, where there is also the suggestion of the therapeutic idea that it is our own thinking that is bewitching us, and leading us into confusion.
However, from Hegel’s perspective, there is also a significant price to be paid for adopting Kant’s approach; for in the resolution Kant offers to his antinomies, much depends on accepting Kant’s distinction between appearances and things-in-themselves, which for Hegel is to set up a kind of limit to our knowledge which he does not want to accept. So, for example, in the Third Antinomy, Kant argues that we may seem to face a contradiction between freedom and determinism; but this can be overcome once we accept transcendental idealism and distinguish between the realm of causally ordered nature as it appears to us, and things in themselves that are outside this order in which freedom can therefore be found.
To Hegel, however, the cure here seems worse than the disease. Instead, he argues, we need to come up with deeper ways of understanding freedom, cause, law, determinism, explanation, reasons and so on, in order to see how both sides can be made compatible, and the tension between them dissolved. Now, Hegel recognizes that this is difficult for us to do, where he agrees with Kant that there is a natural tendency to be led astray here – but against Kant, he holds that this is due to the understanding (Verstand) which thinks in terms of simple polarized categories and thereby creates problems for us in seeing how a resolution is possible, not reason (Vernunft) which can be more dialectical and many-sided in its thinking in a way that the solution requires. So again, we can see how here Hegel turns Kant on his head, where for the latter the understanding is viewed as unproblematic, while it is reason that was seen as leading is astray.
3:AM: A key question for Kant is about how synthetic a priori knowledge is possible? His letter to Herz of 1772 puts the point: ‘[i]f such intellectual representations depend on our inner activity, whence comes the agreement they are supposed to have with objects — how do they agree with these objects, since the agreement has not been reached with the aid of experience?’ Does Hegel really overcome the problem do you think?
RS: This is a good question for the Kantian to press, and oddly perhaps Hegel does not say very much about the issue explicitly. However, I think this is because from his perspective, it is less of a puzzle than it seems to be from Kant’s.
As in other cases, one way to see why is to treat Hegel as holding that Kant is operating here with a false dichotomy: between representations that are directly caused by their objects on the one hand, and those that come about through our ‘inner activity’ on the other. Based on this distinction, Kant not unnaturally holds that the former are unproblematic, and the latter are problematic – for how could a representation that appears to bear no relation to the world outside our minds in fact give us knowledge of it?
But now, suppose I have experience of the world, and then come up with a concept that helps me explain that experience in various ways – such as ‘atom’, or ‘force’, or ‘essence’. Hegel would agree with Kant that such representations are not directly given in experience, in the sense that I do not just observe such things; but on the other hand, it seems wrong to treat them as coming about through my ‘inner activity’ either, as if they had no relation to my encounters with the world around me – on the contrary, they are arrived at precisely to better understand and explain those encounters. But then, if so, is it really such a mystery that concepts of this sort can give us knowledge of the world? From Hegel’s perspective, I don’t think it is – which is why he would take transcendental idealism to be redundant as an attempt to resolve the puzzle Kant poses, as it is based on premises he sees no reason to accept.
Of course, the Kantian might respond to Hegel by saying that even if his answer works for empirical concepts like ‘atom’ and ‘force’, there is still a special difficulty about metaphysics, and its peculiar modal claims like ‘every change must have a cause’ – where, again, it appears we are going way beyond anything given to us in experience in holding such beliefs. But here again, I am not sure Hegel would accept the clear distinction the Kantian is trying to draw. After all, claims in science also involve modal notions (e.g. concerning the necessity of empirical laws), while on the other hand metaphysics also arrives at its theories in an attempt to make sense of the world and our experience of it, rather than being the result of some ‘inner activity’ cut off from that world – where only if this were so, would it be such a mystery how ideas concocted in purely ‘inner space’ could turn out to tell us anything about reality outside it.
Finally, one might instead have a kind of sceptical worry here: how can the mind, which is one thing, be so well equipped at discovering fundamental features of the world, which is something else – how can we assume that using the one we are able to find out about the other? Isn’t this rather miraculous, and so requires an explanation in transcendental idealist terms, if we are to avoid postulating some sort of ‘pre-established’ harmony between the two, underwritten by God? Now, in response to this worry, I think Hegel would again question the starting point, and hold that there is no reason to think the mind and world are so very different from one another in the first place, not because they are put into conformity by God, or because the mind somehow makes the world, but because while the mind is capable of grasping general laws, principles, kinds, universals and so on, the world itself also embodies such things, so it is again no great mystery that we find reality to be intelligible and accessible to our inquiries.
3:AM: You say that there is also a standard objection to Hegel in relation to a whole bunch of post-Kantian philosophers such as Schelling, Feuerbach, Kierkegaard, Nietzsche even Derrida and Deleuze. This is the Nietzschean objection that concepts distort because they generalize and so they can’t pick out the individuality in the word. Is Nietzsche right in this challenge, or do you think Hegel’s notion of the ‘concrete universal’ developed in his Logic gets to grips with the problem?
RS: Yes, I see this as a thread in the critique of Hegel that goes back to the very early days of the reception of his work, and shapes a lot of the issues that we now associate with ‘continental’ philosophy, which is a kind of suspicion that reason, ideas, concepts and thought in general distort or cut us off from reality, and that ultimately some other kind of access to it is required – where the difficulty is that things are inherently individual, specific and particular, whereas thought involves concepts that are inherently general, arrived at by a kind of abstraction from the concrete specificity of things. The worry is, then, that thought leads us into a realm of unreal abstractions, away from the concrete reality of lived experience and an immediate grasp of beings in their unique individuality.
Now, as I see it, Hegel’s doctrine of the ‘concrete universal’ was designed precisely to try to address this worry. According to Hegel, when we form the concept of what he calls ‘abstract universals’, we do in a sense abstract from the difference between things in various ways, and so move from what is specific to what is general: so, for example, when I form the concept ‘red’ by looking at a red bus and a red book, I ignore the differences between the bus and the book, and just focus on what makes them similar.
However, in the case of Hegel’s ‘concrete universals’, he thinks, the situation is different: for example, suppose I have the concept ‘human being’. To grasp that concept, I cannot just abstract away from all the things that make individual human beings different and just focus on what makes them similar, as arguably I would have virtually nothing left and certainly not the richness that is characteristic of our concept. Thus, Hegel argues, the various individual ways of being a human being are included within our concept, so that this concept is not really such an abstraction after all. In this way, he thinks, it is a mistake to think of the concept of a concrete universal like ‘human being’ as ‘hollow and empty’ or somehow cut off from the individuals that exemplify it; on the contrary, they are included under the concept, as part of what thought grasps in grasping the concept itself.
3:AM: As an aside, does talk of the ‘concrete universal’ and his Logic suggest that the British Idealists get left out of contemporary Hegelian talk because these were things they were interested in, and most people skip the Logic because its very very tough? So does the fact that British idealists were asking whether thought distorts because concepts can’t individualise suggest that they’re worth rereading after all and shouldn’t be written off quite as quickly as they usually are these days?
RS: I think that’s right. On the one hand, until relatively recently Hegel’s Logic was generally passed over by commentators (in the English speaking world, at least) in favour of other texts, partly because of its difficulty and partly because of a lack of sympathy with the kind of metaphysical theorizing it involves. On the other hand, for the British Idealists, the Logic was the key text, while they were unabashed metaphysical theorizers! So they were one of the few schools of Hegel reception to make much of his talk of the concrete universal, and other aspects of his metaphysics – which means that, as people are returning to this side of Hegel’s thought, I hope that they might be rediscovered as a helpful resource in speculating about these issues.
3:AM: Did Hegel think that what is rational is actual and what is actual is rational? You say that there are two ways of understanding what he’s arguing in the Doppelsatz, one conservative and one progressive. You reject both and say that really what Hegel is getting at is to ground philosophy in reason. Is this right?
Doesn’t this deflate his metaphysics to something rather more tame and domesticated than his reputation suggests? Frederick Beiser would take issue with you wouldn’t he, arguing that against the modest metaphysical project you impute, Hegel ‘ … had a conception of philosophy that … saw the purpose of philosophy as the rational knowledge of the absolute. This conforms to one of the classical senses of the term “metaphysics” a sense given to it by Kant in the Critique of Pure Reason: the attempt to know the unconditioned through pure reason’? So is your Hegel too house- trained?
RS: I think this question runs together two issues, which I would prefer to keep separate if possible.
First, you are right that when it comes to Hegel’s famous (or notorious) Doppelsatz, I want to argue that this should be understood in a normatively neutral way, so that neither the conservative nor progressive readings of it are correct, according to which he is either endorsing the world as it happens to be, or the world as it would be if fully ‘actual’ or further developed in some sense. Instead, I want to suggest that his primary target here is those who think reality is not to be understood through reason and rational inquiry, so that the dictum is really a slogan in defense of his rationalistic approach to philosophy.
Now, other commentators will certainly disagree with me on this – but I am not sure they would do so primarily on the grounds that I hereby make Hegel’s metaphysics too modest or ‘house-trained’.
But you are still right that I have been criticized on this score, for claiming on the one hand to take Hegel seriously as a metaphysician, but on the other not making enough of what appear to be the more outlandish aspects of that metaphysical position, such as his claims concerning absolute knowledge, or his conception of Spirit, and so on.
Now, I certainly think that it is possible to take these aspects of Hegel’s thinking in an extravagant way. However, in practice when one comes to look in detail at what Hegel is actually doing with these notions, I honestly find this impression of extravagance quickly evaporates. So, for example, as Beiser himself allows, we should not take Hegel’s talk of the absolute to imply by this that he means something transcendent – for, as Hegel argues, that would put the finite outside the infinite, and so compromise its infinitude and thus undermine its status as the absolute. But then, metaphysics no longer amounts to speculation about a world beyond the finite, and so is no longer immodest in this sense. I therefore like to think that I am not merely ‘domesticating’ Hegel in my reading of him, or cherry-picking the palatable bits and ignoring the rest!
3:AM: Does this neutral reading link with your plea for modesty in terms of all transcendental arguments? You argue that there’s really no more force to transcendental arguments than demonstrating how things must appear to us or how we must believe them to be, so we should calm down and mute the transcendental urges. Doesn’t this kind of defeat the purpose of transcendental arguments, at least those that Kant and Hegel wanted? And doesn’t it make philosophy less bold and kill its speculative experiments?
RS: Well, perhaps there is a bit of a pattern here, though I confess it isn’t one I have been consciously pursuing as such!
But again, you are right that when it comes to transcendental arguments, I hold that we should perhaps be more modest in what we can expect them to achieve. That is, I broadly go along with Barry Stroud’s view that at most they seem to establish how things must appear to us or how we must believe them to be, not how things are (though my reasons for thinking this differ from Stroud’s). But I then claim that we should not be too disheartened by this, as even such modest claims can be of value against certain forms of scepticism – for example, a form of scepticism which claims we are not justified in believing what we do about the world, because it doesn’t even appear to us as we take it to be.
Now, when it comes to Kant, I am not sure he did intend anything much more ambitious than this – or at least, if he did, he only meant such claims to work within the context of transcendental idealism, which is another kind of modesty. When it comes to Hegel, I agree that in a way he may have wanted to make transcendental claims of a more metaphysical kind. But on the other hand, those claims are also arguably not meant to be Hegel’s way of dealing with the sceptic, who I think Hegel hopes to overcome in a different manner, while I was focusing primarily on the sceptical context – so again, perhaps there is not such a great divergence here either.
3:AM: The American pragmatist Peirce makes the connection between methods of science, realism and what he called Secondness which is that there are real things independent of thought and then attacks Hegel for leaving out this notion so that we end up in his metaphysics with just circles of thought going round without the friction of inhuman reality. This is a version of what many today might say to metaphysics generally and Hegel in particular – the need for metaphysics is over because we have science and that can do all we need. How would Hegel answer both the scientistic and pragmatist challenge?
RS: Well, I guess there are really two challenges you are posing to Hegel here: one in Peirce’s name, that Hegel is not enough of a realist, and another in the name of science, that metaphysics is somehow made irrelevant or ended by the rise of scientific inquiry.
When it comes to the first challenge, you are right that Peirce claimed that Hegel ‘has committed the trifling oversight of forgetting that there is a real world with real actions and reactions’ – remarking with sarcastic understatement that this oversight was ‘rather serious’. Thus, while Peirce had a high regard for certain aspects of Hegel’s philosophy, this was one place where he is critical.
However, I am not sure Peirce is really fair to Hegel here, or properly understood him on this point. In fact, although Peirce knew Hegel’s writings reasonably well in parts, his view of Hegel was greatly influenced by another writer of the time, called Francis Ellingwood Abbot, who treated all the German idealist since Kant in a Berkeleyean manner, as reducing matter to mind, and the world to ideas inside consciousness, and hence opposed idealism in this subjectivist or mentalistic sense to realism. It is therefore understandable that Peirce may have come to think that Hegel is guilty of the ‘trifling oversight’ he mentions.
Nonetheless, I would argue that Peirce has been misled here, and that while Hegel is of course an idealist in some way, this is not because he thinks the external world does not exist outside our minds. Rather, I would say, he is an idealist in holding that that world is not mere matter, but is also form, but where that form is not imposed on the world by the mind – which is why he is perhaps closer to Aristotle than to Kant, and so more of a realist in this sense. Ironically, moreover, Peirce himself has a somewhat similar view, in rejecting nominalism and defending a realism about what he calls Thirdness, or general terms like laws and kinds – so that rather setting them at odds, I like to think that had Peirce been exposed to a more adequate reading of Hegel than Abbot’s, he might have accepted that they were both on the same side!
I also think that Peirce and Hegel are on the same side when it comes to the second issue you raise, which is whether metaphysics has somehow been made irrelevant by the natural sciences. Again, it can appear that they are rather different, where Peirce can seem to have a much greater respect and affinity for the sciences than Hegel, who can appear to insist rather dogmatically on the priority of philosophy over the other disciplines, and to reject the claims of scientific inquiry. However, again it is important not to fall into a view of Hegel that is too limited here: in fact, he was impressively knowledgeable about the science of his time, and took its recent breakthroughs seriously, particularly in chemistry and biology.
Moreover, where I think both Peirce and Hegel agreed is in thinking that science cannot claim to have replaced or surpassed metaphysics, as it inevitably involves certain kinds of metaphysical claims and commitments of its own – so in the end, metaphysics is inescapable. So, for example, Peirce writes: ‘Find a scientific man who proposes to get along without any metaphysics…and you have found one whose doctrines are thoroughly vitiated by the crude and uncriticized metaphysics with which they are packed’. And in general I think this is true – that the sort of scientistic view that claims we can do without metaphysics is generally one that rests upon a rather simplistic metaphysics of its own.
Now of course, not all pragmatists have shared Peirce’s outlook here – where one thinks of Rorty, for example, who I think is made uncomfortable by Peirce precisely because he wants to divorce pragmatism from metaphysics in a way that the latter does not allow. It may be, then, that pragmatists of this sort will have more problems with Hegel, and so will turn instead to other parts of his work (as Rorty does). But this is precisely what interests me in Peirce, where like Hegel we find a philosopher trying to make room for metaphysics in a post-Kantian and scientifically informed world, and so retain a distinctive role for philosophy while abandoning some of the more grandiose and transcendent pretentions of its past.
3:AM: In your book Hegelian Metaphysics you show how Hegel has been influential in the so-called continental tradition, and in particular you defend Hegel against Deleuze and his metaphysics. So what’s this argument about? How seriously should we take Deleuze as a philosopher?
RS: As I mentioned above, I think a central issue for continental philosophy concerns the relation of thought to things, and in particular whether the generality of the former can grasp the individuality of the latter. I therefore see Deleuze’s emphasis on difference as an aspect of this debate, encapsulated in his objection that philosophers like Aristotle, Leibniz and Hegel wanted to capture what makes one thing different from another in conceptual terms, which he thinks cannot be done, as in the end concepts can only tell us what things have in common, not what makes them unique or what they are qua individuals – which is why instead Deleuze seeks to return the medieval idea of ‘haecceity’, or primitive ‘thisness’.
Now, I think this is a fair worry to have about Hegel, but (on good days, at least) I think Hegel has an adequate way of responding, partly by attacking the doctrine of haecceity (as he does, for example, in his account of the sense-certainty in the Phenomenology), and partly by showing how his doctrine of the concrete universal avoids the problem Deleuze raises, as here the universal contains within itself an important element of difference. But I agree that the issues here are extremely complex, so I wouldn’t want to say I think the matter is fully settled, or that I have done full justice to all of Deleuze’s thinking on this matter – where I probably still have a lot to learn.
3:AM: In your latest book Understanding Moral Obligation, you set up an intriguing three-cornered fight between philosophical greats: Kant vs Hegel vs Kierkegaard on the source of the obligatoriness of morality. But you kind of leave it as a draw. So are you arguing that you can’t decide whether moral obligatoriness lies in ourselves (Kant), others (Hegel) or God (Kierkegaard) or that their arguments are all equally good and if considered from any of their views we should be undecided? I guess this is asking about what their views are and whether yours are theirs?
RS: Well, when I started writing the book, I assumed that I would eventually end up picking one of them as the ‘winner’! And it did worry me that perhaps readers would find it unsatisfactory to just leave the matter undecided. But the more I thought about the views, the more I thought it would be dishonest of me to just pick one over the rest, as I could see pros and cons for each of the sides – so I decided to end the book that way, which I hope will not prove annoying or frustrating to its audience!
The way I see it, then, Kant, Hegel and Kierkegaard form a kind of dialectical circle, each finding problems with the other, but each encountering problems of their own. I begin by arguing that because of his concerns about autonomy, Kant did not want obligation to come from God, as on traditional divine command theories, and instead saw obligation as a matter of reason constraining desire. Hegel then resisted this view, as it led Kant to view the self as a divided and as naturally disinclined to act morally, and hence incapable of genuine virtue; he therefore introduced a social command view instead, whereby obligations come from the way in which we hold each other to account.
For Kierkegaard, however, this meant that Hegel could not treat morality as too demanding, as this would push us back to a more Kantian position in which we would resist its claims; but, Kierkegaard argues, morality requires more of us than we can readily achieve, where he thinks this only makes sense if we take it to come from a God that will forgive us if we fail, so returning us to the kind of divine command view which Kant started out by rejecting.
If this historical story is broadly correct, the questions it raises are: How far should considerations of autonomy drive one from a divine command theory to a Kantian one? How far should concerns about dualism drive one to an Hegelian social command theory? And how far should considerations of moral complacency drive one from a social command theory to a Kierkegaardian divine command theory? As I said, when I came to consider these questions, there seemed to me to be no straightforward winner, as much can be said for and against each option – so I hope the interest of the book will lie in how those options are explored, rather than in settling the dispute once and for all. And of course, it may be that these three possibilities do not exhaust all the conceptual space, so maybe there is also some better alternative available – though I have to say that most of the alternatives I have considered tend to fall under one of these three headings. But this is something I may develop further in future work.
3:AM: So as you survey the situation in philosophy now, what role do you see for metaphysics? Is it in ethics, political philosophy and philosophy of history that you think it has the biggest role, or are these just the areas you find of interest? Why should anyone listen to a contemporary metaphysician?
RS: Although I have moved more towards ethics in my most recent work, this is not because I have given up on metaphysics and somehow abandoned it. I know of course that on the one hand metaphysics will always have its critics, and on the other I do not doubt that metaphysics can be done badly. And I do find it strange that contemporary metaphysicians do not take more seriously the problems Kant raised; while Kant sometimes gets a brief nod, his worries are rarely addressed explicitly, so at times modern metaphysicians seem to proceed as if he had never existed.
Again, this is why I prefer to focus on figures like Hegel and Peirce, who were acutely aware of the Kantian challenge, while seeing to evade it. And, as Kant himself warned, there is perhaps a danger of some contemporary debates in metaphysics becoming bogged down in a sterile dispute, with neither side proving able to make headway over the other. But overall, I remain broadly optimistic that metaphysics remains a vital part of the discipline of philosophy, and is no less amenable to rational inquiry than any other aspect of our deepest concerns.
3:AM: Are there any books outside of philosophy that you’ve found enlightening?
RS: When it comes to reading for pleasure, I tend to read mostly fiction, as this makes a change after a day of thinking about philosophy (assuming, of course, philosophy is not fiction too). And that means I also tend to avoid novels with philosophical pretentions. I guess my tastes are pretty predictable: a mix of the standard classics, and more recent work. I very rarely re-read novels, but Joyce’s Ulysses is an exception, as this seems pretty inexhaustible. I also enjoy reading poetry, where I retain my youthful enthusiasm for T. S. Elliot, and the images and atmosphere he conjures up. My interest in Hegel has also led me to think about some literary works which influenced him, such as Antigone.
3:AM: And for the budding metaphysicians here at 3am, can you recommend five contemporary books you think will be really helpful (other than your own, of course, which we’ll be dashing out to buy at the end of reading this!)?
RS: Given the way I read Hegel, most of the work in contemporary analytic metaphysics I enjoy is broadly within the Aristotelian tradition. So, for example, I would recommend David Wiggins’s Sameness and Substance (the most recent version was published in 2001, though it first appeared in 1980); Michael Loux, Substance and Attribute (1978), and E. J. Lowe’s The Four-Category Ontology (2006). Timothy Williamson’s The Philosophy of Philosophy (2007) is an important recent contribution to reflection on the methodology of metaphysics. Finally, I am currently reading and greatly enjoying Adrian Moore’s new book The Evolution of Modern Metaphysics: Making Sense of Things (2012), which is both historically informed in a way I appreciate and also broad in its tastes, encompassing both analytic and continental philosophers – where (like Hegel and Peirce, as I have been stressing) Adrian also thinks that ‘we are all, to a greater or lesser extent, natural metaphysicians’.

Clearing away confusions and debris

Richard Marshall interviews Mitch Berman.
Mitch Berman is a dude-cool philosopher of law who philosophises about the jurisprudence of sport, criminal law and constitutional theory. He thinks action replays bring with them costs. But they’re here to stay. And soccer can’t hold out forever. He wonders about paradoxes of blackmail. If I own photos of your infidelity, why can’t I sell them? He has good words for ‘Posadas’, which makes him rare. He’s always open to the idea that settled understandings rest on insecure foundations and can be changed by digging deeper. Which makes him another groove sensation.
3:AM: What made you turn to philosophy? Were you always philosophical or was it something you grew to be?
MB: I suppose that I have always had a philosophical sensibility, though I came rather late to recognize it. I majored in political science—concentrating in political theory—in college, and took only two or three straight philosophy courses, failing to distinguish myself in any. No doubt a large part of the fault was mine: I was a pretty indifferent student across disciplines. But I suspect too that my philosophical development was stunted by the general failure of my instructors to motivate the questions we were investigating. I remember taking philosophy of law as a freshman. We started with the ‘Pure Theory of Law’ on Day 1. I had no idea what Kelsen was up to or why we should care.
Toward the end of my undergraduate career, the usual set of influences combined to interest me in eastern philosophies, ultimately drawing me to India and Sri Lanka to explore Buddhism. It wasn’t until law school, a couple of years later, that I started to study Western philosophy with seriousness.
3:AM: Physicists take a pop at philosophers generally. Chief Justices takes a pop at philosophers of law – like Justice Roberts’ ‘Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in eighteenth-century Bulgaria, or something. . .’ Why should lawyers take heed of philosophy?
MB: There are at least two reasons. First, some legal norms demand on their own terms that we incorporate philosophical understandings. Rules or principles of criminal law, constitutional law and even contract law, for example, will often explicitly invoke normative concepts like blameworthiness or equality or duress or coercion. In cases like this, philosophical understanding is made legally relevant in much the same way that historical understanding is made legally relevant by interpretive principles that make the legal meaning or content of an enactment depend upon the understandings or purposes of some set of historical actors.
The second reason is more interesting. A central difference between legal inquiry and philosophical inquiry, in my view, is that the former but not the latter can come to rest at stopping points created by convention and practice. Somebody recently wrote—I think it was Delia Graff Fara—that we do philosophy “by subjecting our most commonly or firmly held beliefs to what would otherwise be perversely strict scrutiny.” I think that’s right. To engage in philosophy is to keep asking “what does that mean?” or “what makes it so?” or “how do we know that is so?” well beyond the point at which most people would have lost patience or interest. If this is broadly right, it’s important for the lawyer or law student to understand that just because she is entitled to stop inquiring beyond a certain point, that doesn’t mean that she always must stop there. A good lawyer should always be prepared to at least try to unsettle settled legal understandings when in the interests of her client. To be always open to the possibility that settled understandings rest on insecure foundations and can therefore be changed by deeper digging is to embrace a fundamentally philosophic frame of mind. At least that’s how it looks to me.
3:AM: You disagree with the distinction between justification and excuse as used in law: justification defences say that an actor’s behaviour wasn’t immoral: an excuse defence says the behaviour was wrong but not morally blameworthy. So what’s wrong with the distinction?
MB: I don’t think I’d quite say that I disagree with the law’s use of the justification/excuse distinction; rather, I disagree with the predominant academic take on that distinction. The prevailing view among criminal law theorists is that the categories of justification and excuse have the same content both in ethics and in law, such that a defense is properly classified as a justification if and only if the conduct it covers is not morally wrongful, all things considered. I believe, in contrast, that justification and excuse serve the same structural or logical functions across normative discourses but may well have different content. On my view, a defense is properly classified as a justification if the conduct it covers is permissible as a matter of criminal law, whether or not it is morally permissible. A defense is an excuse if it provides that an actor should not be condemned and punished for engaging in conduct that does violate the law. To deploy the old Benthamite distinction, helpfully glossed by the legal philosopher Meir Dan-Cohen, justifications pertain to the law’s conduct rules, excuses reside within the decision rules.
As an illustration, consider the self-defense rule—sometimes called the “castle doctrine”—that permits people to use deadly force even without availing themselves of a safe opportunity to retreat. (It’s an extremely common rule, not always taken to the pernicious extremes that Florida and my home state of Texas, marching to the NRA’s tune, have taken it.) This is part of the action-guiding conduct rules of the criminal law, hence is a justification for purposes of criminal law classification, even if it is not morally justifiable to take advantage of this particular legal permission. It is possible, then, that George Zimmerman was legally justified in shooting Trayvon Martin, and not merely legally excused, even though he was not morally justified. So much the worse for the law, I would say.
3:AM: Is this a distinction that you think should have been applied to the nightmare case of Kesen Hu? Can you say something about what this case was about and why you thought the law should just lay off in this case? Did it?
MB: Kesen Hu forgot to drop off his 18-month-old son at day care one morning and ended up leaving the boy in the family’s minivan when he reached his workplace. When he suddenly remembered the child some hours later, and ran down to the parking lot, it was too late: the boy was dead. An absolute nightmare, as you say. And a less exceptional one than many people might suspect. I read somewhere that more than 500 children in the United States have died over the past 15 years from being left in a hot car.
How should the law respond? Often, prosecutors press charges for criminally negligent homicide or some similar offense. Hu himself was prosecuted for child endangerment, a state jail felony carrying a sentence of up to two years. The prosecution struck me as unjust for at least two reasons, both of considerable philosophical interest. The first concerns the moral status of negligence, in the sense of inadvertence to a risk. The dominant view in Anglophone criminal law is that it is at least presumptively unjust to punish somebody who is not morally blameworthy or who lacks negative desert, or something of the sort. Roughly speaking, this is the old common law principle that no crime exists and no punishment should attach absent mens rea. Putting incompatibilist worries aside and thus accepting arguendo that people can be and sometimes are morally blameworthy for their choices or conduct, there remains the question of whether and under what circumstances one can be blameworthy for inadvertence.
Basically, I’m disposed to think (agreeing, in broad strokes, with Holly Smith) that inadvertence can be blameworthy but only when it is traceable, in the right sorts of ways, to morally deficient upstream choices. In some cases when parents forget their children in cars, with disastrous consequences, traceability is satisfied. Whether it was satisfied in Hu’s case, however, is doubtful. By all accounts, he was a loving and conscientious father, and the scary truth, I think, is that mistakes or forgetfulness happen to the best of us. So there was good reason to believe that moral blameworthiness is a necessary condition for the imposition of criminal punishment and that Hu wasn’t morally blameworthy.
But suppose he was. All bets aren’t off, though, because it is generally agreed not only that nobody should be punished who isn’t morally blameworthy, but also that a blameworthy wrongdoer shouldn’t be punished more than she deserves. If this latter claim is true (and I happen to believe that matters are a little more complicated than this, but not in ways relevant to the present issue), then we should worry about whether a wrongdoer’s extra-juridical “punishment” or suffering can ever count for purposes of legal punishment. That is, is it ever unjust for the state to inflict punishment on somebody on the grounds that she has “already suffered enough”? This is, in my view, one of the more difficult and important as yet undertheorized questions with which philosophers of the criminal law should grapple. It seems plausible to me that the answer to this question is yes and that, if it is, defendants like Kesen Hu are quintessentially appropriate beneficiaries.
Although, as I said, cases like Hu’s arise not so infrequently, Hu was prosecuted right outside Austin. I wrote an op-ed in the local newspaper urging the DA to drop the case. Not long thereafter, the DA did allow Hu to avoid prison by pleading guilty to misdemeanor child endangerment charges. I don’t flatter myself to think that my short contribution influenced the prosecutor’s decision at all. But it was a good outcome.
3:AM: The removal of Dennis Kucinich, the good republican who made sane points against the war in Iraq against Cheney and Bush Jr, by bad ones, was due to gerrymandering. In your paper about gerrymandering you make the case that excessive partisanship in redistricting is unconstitutional. This is part of a bigger concern of yours which is about general fairness and justice which runs through most of your work as I read it. Is that right? But you also say that crafting standards that are fair, that administer this constitutional norm’ is really really hard. Are you optimistic that gaps between constitutional norms and actual practice are bridgeable, especially when we’re talking about partisanship where the forces against fairness are really powerful?
MB: It’s interesting to me that you read my work differently than I do. I like fairness and justice as much as the next guy (or much more so, my parents would say), but I very rarely seek, in my academic writing, to argue about what justice or fairness requires. I’m generally trying, in a quasi-Wittgensteinian spirit, to clear away confusion and debris and thereby to enable straightforwardly normative argumentation to proceed on straightforwardly normative terms. Putting aside pieces written for a lay audience, like my op-ed about Kesen Hu, I’d have thought that fairness and justice are generally offstage in my scholarship.
My work on justification and excuse that we just discussed is a good example. A central impetus for my project was my disagreement with theorists who sought to derive conclusions about the proper content of the criminal law from essentially conceptual inquiries into the difference between justification and excuse. In contrast, under the rather thin conception of the difference between these two concepts that I advanced, theorists or law reformers who want the law to have this or that content would have to defend their preferred positions with moral and prudential arguments. And I generally think that’s not my department. My analysis of justification and excuse was intended to be deflationary.
Now take my work on partisan gerrymandering. I do believe that it is a corrupt and destructive practice. I also believe that, properly understood, the U.S. Constitution prohibits it. But I did not defend either of those claims in my work on the subject. Instead, I started from the observation that, in a 2004 case, all nine Justices of the Supreme Court agreed that “excessive” partisanship in redistricting is unconstitutional. What they disagreed about was whether this supposed constitutional rule or norm was judicially manageable. A plurality of the Court concluded that it wasn’t, and therefore that the judiciary should not enforce this particular constitutional prohibition. My contribution to the debate was to explain that the questions of whether the constitutional norm, properly understood, is itself judicially manageable and whether the Court could and should craft judicially manageable rules to administer that constitutional norm are distinct.
American constitutional theorists had increasingly recognized that much of the judiciary’s output in constitutional adjudication was something other than a statement of what the reviewing court understood the Constitution to mean or direct or provide of its own force. Instead, many rules of constitutional law are judicially crafted rules intended to sensibly implement or administer the interpreted norms. That is a descriptive claim that I have labeled “the two-output thesis.” Whether it is legitimate for courts to craft implementing rules that are non-identical to and often more expansive than the constitutional rules themselves, and then enforce these implementing rules against the coordinate branches, is a separate question. In a characteristically forceful 2000 opinion, Justice Scalia answered that latter question in the negative. In a 2004 article, “Constitutional Decision Rules,” I conceptualized the distinction between judicially interpreted norms and judicially constructed doctrine in a slightly different way than had previous theorists—a way, I argued, that showed the latter to be ineliminable and therefore necessarily legitimate.
My work on partisan gerrymandering was intended as an application of my more general conceptualization of the logical structure of constitutional adjudication. I wasn’t trying to persuade anyone that the Constitution, rightly interpreted, prohibits excessive partisanship in redistricting although, as I said above, I did and do believe that to be the case. I was trying to explain, just by showing how things fit together, that Justices who shared that view and wished to do something about it had more tools at their disposal than they seemed to appreciate.
Am I optimistic that the Court will exercise its capacity to do something about the problem of partisan gerrymandering? Not terribly. But I’m also far from confident in my ability to predict the course of legal and political change. Maybe I’ll be pleasantly surprised.
3:AM: In that paper you say that there’s a stage when lawyers should ask social scientists for help and data. Do you think law is too insulated from other disciplines that could help? So in philosophical domains like epistemology and ethics we find philosophers working alongside cognitive scientists and neurologists, and the xphil movement and people like Eric Schwitzgebel and Tamar Gendler doing work that shakes up presupposed norms. In economics Paul Seabright is challenging economists to look at the facts of cognition and decision-making rather than fantasize. Do you sympathise with this?
MB: I’m not sure how insulated law is from other disciplines. Surely the fundamental trend is toward ever-greater interdisciplinarity. Not only do more and more law faculty have advanced degrees in other disciplines (especially economics, political science, history, and philosophy), but it’s probably also true that more of these interdisciplinary scholars are pretty strong in their other disciplines than used to be the case. Furthermore, law faculties are increasingly willing to make part-time or even full-time appointments to scholars in other disciplines who lack formal legal training. For a complex of reasons, I believe that law has something of a natural advantage as a broker among disciplines. So I think this trend is both extremely desirable and very likely to continue. That said, I also believe that, while law isn’t exactly an “autonomous” discipline, it’s not at all reducible to other disciplines, even in combination. So the challenge for law faculties going forward is to successfully integrate greater interdisciplinarity with excellent traditional legal scholarship.
As for my own work, well, I’m an armchair guy. But that’s testament to my particular tastes and abilities. It’s not a view about what sort of philosophical work should be undertaken, or about what’s most of value. The experimental work with which I have some familiarity strikes me hugely interesting.
3:AM: What you’re best known for is your work on the use of the replay system in the NFL. Here in the UK there’s a constant call to have something like it brought in to adjudicate tough calls in football (soccer). It’s already here in Wimbledon (tennis) and the Olympics have it. Those wanting it say that it will reduce error. But you have warnings from the NFL don’t you? Can you explain why replay systems aren’t problem free?
MB: I’m best known for my work on instant replay? Well, that’s a buzz kill.
Although you might well be right, I’m going to interpret your observation more expansively as a claim about my role in birthing or promoting the nascent field of which my paper on instant replay is a part—a field that I have dubbed “the jurisprudence of sport.” (It’s fair to think of this field as a neighborhood within the philosophy of sport.) Jurisprudes have long drawn on games and sports to illuminate problems or principles in law. Well-known examples could be drawn from Hart, Dworkin, and Rawls. But this attention has generally been entirely ad hoc. I have argued that organized sports are legal systems of a sort and therefore that legal theorists could learn a great deal from attending to sports in a sustained and systematic way. I first presented this claim in an article that explored whether, as the commonly heard cry “let ‘em play” would have it, some rules of some sports ought to be enforced less strictly at “crunch time.”
The use of instant replay to review on-field calls is really just an instance of appellate review and therefore a natural case study within the jurisprudence of sport. We might suspect either that the law’s settled principles for crafting systems of appellate review would usefully inform the optimal design of instant replay in sports or that successful instant replay systems might tell jurists something new and interesting about the design of appellate review in law. Or perhaps illumination will be bi-directional.
In American football—both in the NFL and at the collegiate level—on-field calls are upheld unless the replay provides “indisputable” visual evidence that the call was wrong. That’s a strikingly demanding standard, one that seems all but certain to result in more total final errors—the aggregate of reversals of initially correct calls and affirmances of initially incorrect calls—than would a less demanding standard. I tried to figure out what could be said in favor of such a demanding standard, but I ultimately concluded that it should be lowered. That conclusion is not itself of interest to persons who don’t follow American football or sports more generally. But I hope that some pieces of the analysis are of more general jurisprudential and philosophical interest. For example—and this is just a teaser—I think that the investigation just might suggest some lessons of importance regarding the relationships among desert, entitlement, and justice.
I guess that this answer isn’t fully responsive to your question. So I’ll just add my opinion that decision-aid technology is here to stay and that soccer can’t hold out indefinitely.
3:AM: You’ve engaged with the ‘elegant question’ of the ‘greater-includes-the-lesser’ question. You discussed this in the context of Puorto Rico and whether it should ban advertising of gambling or not. However, it seems that the principles of ‘commercial speech’ is important beyond just that particular case. It’s basically at the heart of the issue as to whether commercial speech advertising cigarettes, prostitution and gambling, say, should be protected in the same way as other speech, such as Huckleberry Finn or Ulysses. Can you say something about how this pans out for you and what the legal status of commercial speech is for you?
MB: Here’s a quick sketch of the relevant jurisprudential context. Some categories of expression—obscenity, child pornography, criminal solicitation, copyright violations, and a few others—are deemed (more or less) outside of the First Amendment’s protection. But the Court’s general approach—and most commentators agree with this, I think—has been that if some category of speech is protected, it’s fully protected. That is, the Court has been reasonably comfortable with classifying expression as “in” or “out,” and not at all comfortable with classifying covered expression as “high value” or “low value.” Thus, non-obscene sexually explicit films are subject to the same level of judicial protection as is core political speech.
Commercial speech was for a long time the most conspicuous exception to this principle, as the courts subjected regulations of advertising to an intermediate level of scrutiny less searching than the “strict scrutiny” it applied to regulations of other types of expression. In a 1986 case called ‘Posadas’, a narrow majority of the Supreme Court applied this intermediate scrutiny to uphold a Puerto Rican law that barred island casinos from advertising in the local media. In what seemed like an alternative rationale, the majority also observed that “the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling.”
As it happens, ‘Posadas’ was perhaps the high-water mark for treating commercial speech differently from other categories of expression. Scholars savaged the opinion, and within a decade the Court had disavowed its embrace of the greater-includes-the-lesser. Furthermore, Justices have increasingly raised doubts about the propriety of treating commercial speech as of lesser value than other forms of expression or of subjecting regulations of advertising to less than strict scrutiny. The doctrinal status of commercial speech today is a little unclear.
I might be the only constitutional scholar ever to have had a good word for ‘Posadas’. To be sure, the greater-includes-the-lesser is a logical fallacy. The Court was surely wrong to suggest that a state’s power to prohibit some activity necessarily includes the power to ban advertising about it. But there is far more to the instinct than anyone has given the Court credit for. Regulations of advertising differ from most other regulations of expression in an important respect: they can often be conceptualized as conditional offers to be permitted to engage in some conduct that the state is constitutionally entitled to prohibit. Puerto Rico can be understood to have said to persons or entities that wished to operate casinos: “We’ll allow you to operate a casino—as we might not—on the condition that you agree not to advertise it to the locals.” A criminal ban on my criticizing the administration for its foreign policy cannot be modeled in that way. The “benefit” on offer—my staying out of prison—is not something that the state may withhold.
If we understand regulations of commercial advertising in this way, we can see that they instantiate a far more general phenomenon: offers of a benefit that the state is not obligated to provide, conditioned on the offeree’s waiver of a constitutional right. Offers that assume this form are nearly ubiquitous across doctrinal areas: public welfare benefits are often conditioned on the recipients’ agreement to submit to suspicionless searches of their homes that would otherwise violate the Fourth Amendment; the federal government conditions grants to states on their enactment of regulatory schemes that the feds could not mandate; local land use commissions condition zoning variances on landowners’ grants of easements that the state could not take without paying just compensation; even plea bargains are really just offers of sentences lower than the state could otherwise impose conditioned on defendants’ waiver of their rights to jury trial; and so on. For decades, courts and scholars have struggled to articulate general principles that can determine when such conditional offers are permissible, and when they aren’t. (The case law and scholarship travel under the heading of the “unconstitutional conditions doctrine,” but the “conditional offer problem” would be more apt, I think.) In a 2001 article, I offered my own solution to that puzzle—a solution that drew in turn on my previous effort to solve “the paradox of blackmail.”
The solution I proposed is complicated. I won’t try your readers’ patience with the details. The key point is just that regulations of advertising can often be fairly conceptualized as conditional offers, and thus are properly analyzed under a trans-substantive framework for resolving the conditional offer problem. Because the correct framework is complex, it does not follow that all regulations of commercial speech are constitutional. Not at all. But it does follow, I think, that many are—even without characterizing commercial speech as “low value.” I confess to being somewhat fond of my solution to the unconstitutional conditions problem and of its application to the commercial speech problem despite the fact that, as far as I can tell, it has won zero converts. That’s especially unfortunate because the same analysis might plausibly justify other regulations of corporate speech, including the restrictions on independent political expenditures by corporations and unions that the Supreme Court struck down in its momentous 2010 Citizens United decision.
3:AM: You mention that your proposed solution to the conditional offer problem derives from your analysis of the “paradox of blackmail.” Would you say a little about that paradox and your approach to solving it?
MB: Take the paradigmatic case: a conditional threat to reveal someone’s infidelity. Suppose you know that I’ve been having an extramarital affair (which you don’t, because I haven’t). You’re free to tell my wife. We might fairly say you have a right to do so. But generally speaking, you are free to negotiate payment in exchange for refraining from exercising a right. We could put this point in property terms too. Suppose not only that you knew about my affair but that you had photos. They’re your property. One of the nice features about property is that, normally, you can sell it. So we might reasonably expect that you would be allowed to offer me your silence and the photos, in exchange for cash. But you’re not: that would be the crime of blackmail. The puzzle is to justify the criminalization of conditional proposals like this, or to explain why it isn’t justifiable.
The puzzle has attracted thinkers across disciplines, from philosophers like Feinberg and Nozick to economists like Nobel Laureate Ronald Coase and Judge Richard Posner. Economists tend to justify criminalization as a way to deter an economically wasteful practice (blackmailers expend resources to dig up dirt only to rebury it). Philosophers have taken a variety of approaches, but probably a majority start from the assumption that the key is to explain how the conditional threat to Φ could be more wrongful than Φing.
I believe, in contrast, that the key is to recognize that the conditional threat to reveal the information (i.e., the conditional offer of silence) has evidentiary, and not aggravating, significance. Ordinarily, it licenses (or, at a minimum, strengthens) an inference that the person making the conditional proposal would himself be acting with the wrong sorts of beliefs or motives were he to do as he threatens. In particular, he would be knowingly causing harm without actually believing that doing so is morally justified on the facts of the particular case, or without being actually moved by the justificatory reasons as might exist. Under certain circumstances, I believe, an actor’s beliefs and motives bear constitutively on the moral quality of her action, and are relevant not merely to agent evaluations. That’s pretty brutally condensed, of course, but the core ideas, again, are that the disclosure itself would be wrongful if done without the right sorts of beliefs and/or motives and that the fact of the conditional offer of silence is good evidence (for reasons, admittedly, I have not spelled out for you) that were the actor to make the threatened disclosure it would be without the beliefs or motives necessary to justify the knowing infliction of harm.
3:AM: Under the radar is the obscure Pierce County v Guillen case, which upheld on commercial clause grounds the law preventing information collected in various highway safety programs from being admitted as evidence in state or federal trials. Is this important because it is a move restricting the surveillance state? What’s so significant about this?
MB: My interest in Guillen—a case that earns its obscurity honestly—has nothing to do with the surveillance state. When the case reached the Supreme Court from a state supreme court, it raised seemingly difficult questions under the conditional spending doctrine—the rules governing conditional federal grants to the states. As I noted above, the conditional spending doctrine falls under the broader unconstitutional conditions doctrine, or conditional offer problem, and is therefore a subject on which I had significant interest apart from the particulars of the statute at issue in Guillen. So I co-wrote a brief analyzing the spending issues with a colleague, Lynn Baker, who had first turned me on to the case. To everyone’s surprise, the Court unanimously upheld the challenged legislation as a valid exercise of Congress’s commerce power and therefore did not reach questions concerning whether the legislation could also stand as an exercise of Congress’s conditional spending power. In so doing, the Court said some things about the commerce power that implicated views I had by then developed regarding the relationship between judicial interpretations of constitutional meaning and judicially crafted doctrine—what I call “decision rules”—designed to administer that meaning. In the Commerce Clause context, as in the partisan gerrymandering context, the Court is often led astray by its failure to appreciate that interpreting the Constitution and crafting doctrine can be two distinct tasks, both legitimate.
3:AM: It’s hard in the UK not to see the Supreme Court as being actively politically partisan in its recent activities around Obamas’ Health Care programme. Brian Leiter continually posts news of things happening that seems blatantly wrong. This seems shocking and out of order. Is the Supreme Court in the USA unhealthily contemptuous of justice and merely a tool of the plutocrats? Is it different from how it used to be?
MB: After ‘Bush v. Gore’, anybody who expresses surprise at what appears to be politically partisan decision making by the Supreme Court looks to be playing the part of Captain Renault. Of course, many of my more conservative friends thought that the Warren Court had taught that lesson long before ‘Bush v. Gore’, and wonder aloud that it took others of us so long to see it. Maybe it all depends upon whose ox is being gored. That said, I confess that, from where I sit, it doesn’t look like an especially admirable group of Justices.
3:AM: The role of the American Legislative Exchange Council is funded by Exxon Mobil, the Olin and Scaife families, has foundations tied to the Koch Industries and includes many huge corporations. Is the law generally no longer able to do what it was supposed to do? Are the lessons of the Arab Spring and other pro-democracy revolutions and upheavals relevant in a way that John Locke, founder of the US model of liberal government, would have understood?
MB: Oh, the law continues to do some of the things it’s supposed to do, including some things that are tremendously important. But it’s probably true that liberals and progressives, overly enamored with the Warren-Brennan Court, have been unrealistically optimistic about the capacity of law to effectuate major change that disserves the interests of the powerful. As for the lessons of the Arab Spring, I guess I’m with Zhou Enlai: (much) too soon to tell.
3:AM: There’s a huge sense of unfairness and injustice more or less everywhere. Plutocrats get richer, more powerful and more protected. The rest get poorer, weaker and more vulnerable. Are you optimistic or pessimistic generally about the current political and social context?
MB: I vacillate, depending on the particular issue and on my mood. On some issues of great social importance, we are living through profoundly positive changes. The LGBT community and the disabled community too have benefitted from huge gains on the ledger of justice. And I’m also pretty optimistic about race. Economic justice is, sadly, a different story. It seems that, whenever my personal optimism level is ticking upward, I read a story like the one in last Sunday’s New York Times about Ed Conard, the former Bain managing director and major Romney donor, who has written a long book predicated, it seems, on the fundamental premise that personal income in the contemporary developed world really does correspond extraordinarily closely to one’s contributions to human welfare. By all accounts, Conard is a super smart guy. It’s just hard to get inside the head of somebody who believes that the problem with economic inequality today is that there’s not enough of it.
I do worry that the American political system is close to dysfunctional, thanks in part to two factors we’ve already touched upon: partisan gerrymandering (aided by remarkably detailed databases and advanced computing power) that all but ensures that legislators will be more extreme than the median member of their own party in their districts; and rules, like ‘Citizen United’, that facilitate the electoral influence of wealth. Then again, if past performance is no guarantee of future results, it’s still the single best predictor, and we’ve muddled along pretty well so far.
3:AM: Are there books, art or music that you have found inspirational or enlightening outside of your jurisprudential brooding?
MB: Sure, but the works that affected me most profoundly are all from my youth—Beethoven’s symphonies, Coltrane’s ‘A Love Supreme’, the writings of Chuang Tzu. All standard fare.
3:AM: And are there five books you could recommend for the engaged readers here at 3am that will give us further insights into your world?
MB: I’ll start with one book in or near each of my three principal fields—the philosophy of criminal law, constitutional theory, and the jurisprudence of sport—and then offer two more to round out my world, as you put it.
1. Victor Tadros, The Ends of Harm: The Moral Foundations of Criminal Law (2011). This recent book develops and defends an original theory aiming to justify criminal punishment. I think the affirmative account does not succeed, but it provides a good snapshot of the state of criminal law theory today. Furthermore, because Tadros is a committed anti-retributivist, the book is particularly valuable as a challenge to those, like me, with retributivist sympathies.
2. Scott J. Shapiro, Legality (2011). I haven’t loved many recent books in constitutional theory. I also think, however, that real advances in constitutional interpretation will depend upon, or proceed hand in glove with, advances in general jurisprudence. Legality is the latest major contribution to general jurisprudence. As with Tadros’s contribution to the justification of punishment, I am skeptical of Shapiro’s affirmative account of law as social plans. But, if nothing else, the first few chapters summarizing the state of the literature are worth the price of admission.
3. Bernard Suits, The Grasshopper: Games, Life and Utopia. There is no book in the jurisprudence of sport. This, however, is the classic text in the philosophy of sport. Short and charming.
4. Keigo Higashino, The Devotion of Suspect X (English translation 2011). I like mysteries. I finished this one last night. Nothing spectacular, but highly enjoyable.
5. Richard Adams, Watership Down (1972). Most of my fiction reading over the past half dozen years has been aloud, to my three wonderful children. We’ve read lots of great books over the years, but Watership Down probably remains our favorite. A beautiful and moving story, appropriate for children of all ages. I doubt that many of your readers have missed it, but any who have shouldn’t wait long to rectify that.

The endless search for truth

Richard Marshall interviews Andrei Marmor.
Andrei Marmor is a fo rizzle legal philosopher who has written Law and Interpretation, Interpretation and Legal Theory, Positive Law & Objective Values, Law in the Age of Pluralism, Social Conventions and Philosophy of Law. He’s impressed by Hans Kelson and thinks Anglo/Americal legal philosophers have underestimated him. He thinks the Constitutional regime of the USA is entrenched and problematic compared to younger regimes like Canada and the EU. You can’t really be saying anything serious about philosophy of law if you haven’t absorbed his stuff. Which means that if he was a Cadillac he’d be the one with da Bomb Dayton Rims.
3:AM: What was it that drew you to philosophy? When did it occur to you to become a philosopher and what are its rewards?
AM: Tim Williamson once told me that the most difficult task in philosophy is to say something that is, actually, true. Over the decades of doing philosophy I have come to learn, over and over again, how true this is, and how difficult it is to say something in philosophy that is, indeed, true. But, personally, I find this endless search for truth, the need to make a careful argument, and the need to revise one’s argument once its weakness is exposed, to be the most exciting profession one can dream of. Abstract yet careful and accurate thought, in its purest form, is, I think, one of the most remarkable achievements of our species. Having the luxury to do philosophy should not be taken lightly, and personally, I am truly grateful for the opportunity.
Whether I also deserve this opportunity took me decades to agonize about, and I am not yet sure that I have an answer, to myself, anyway. Which is partly the explanation of my legal training. I studied philosophy and law concomitantly at Tel Aviv University. I studied law because I wasn’t sure that I could become a philosopher, and I studied philosophy because I wasn’t sure that I want to become a lawyer. So here I am, decades later, still half in a philosophy department and half in a law school, and still agonizing….
3:AM: In your book ‘Interpretation and Legal Theory’ you pose an interesting question about the role of philosophy in giving accounts of law. Law is a social practice, so if philosophy is about giving an account of its nature, why shouldn’t we turn to sociologists, historians, economists, theologians? How do you go about defining the philosophical project with respect to law?
AM: There is a curious and confusing story behind this issue. Historically, philosophers have often engaged with issues and asked questions that later came to be answered by other disciplines. Over the millennia philosophy has undergone a long process of purification, so to speak, shedding questions better left for other sciences to try to answer. And then, of course, philosophy reformulated its questions on the sciences that have emerged, putting pressure on the kind of answers they offered and raised new ones as a consequence. So this is really a process all over the philosophical domain, and philosophy of law is no exception. But if we focus on the emergence of contemporary analytical philosophy of law, a more curious and somewhat special picture emerges, one that gave rise to endless confusion. When analytical philosophers started to think about the main questions about the nature of law, somewhere around the 1950s, and mostly in Oxford, the dominant view in philosophy was the so called “ordinary language analysis” school of thought.
Prominent philosophers at the time, such as Wittgenstein, Ryle, Austin and others, took natural language to be both the main guide to philosophical answers, but also, the main source of philosophical problems, problems that they thought mostly emerge from linguistic confusions. Thus the idea came about that what is truly unique to philosophical inquiry is the realm of the conceptual, and that philosophy just is a form of conceptual analysis. Nobody has done more to entrench this notion in philosophy of law than H.L.A. Hart, of course, whose book The Concept of Law, published in 1961, is rightly considered the founding text of analytical legal philosophy.
Now I have to admit that it took me a very long time to realize that Hart himself was not a true believer. He paid considerable lip-service to the official philosophical dogma at the time and certainly gave the impression that his work is a form of conceptual analysis, as the very title of his seminal book would seem to suggest. But then, if you look closely at the actual questions that preoccupied him in this book, you come to see that there is nothing particularly conceptual about them, not to say, linguistic in essence. What he was really after is precisely the question that emerged almost a century earlier, in the mid 19th century, and mostly by John Austin, of whether the social phenomenon we call law is something that can be fully reduced to facts of a non-normative kind, that is, to facts about people’s actual conduct, beliefs and attitudes. And his whole project, I think, was not essentially different from Austin’s, namely, to try to provide an affirmative answer to the possibility of reduction.
In other words, I think that Hart’s main philosophical question about the law is the question about the possibility of reduction: can we reduce the essential features we identify in law and our legal practices to facts about people’s behavior, beliefs and attitudes. And his whole work is an attempt to show how this can be done, without compromising the complexity of our legal concepts and the various normative beliefs and attitudes we associate with legal requirements of various kinds. Understood in this light, I fully share the endeavor, I would consider myself a Hartian, so to speak. I think that the possibility of reduction is central to philosophy of law, it is a pivotal question about the nature of law and how it relates to other normative domains, such as morality and religion.
Furthermore, I think that the main objections to Hart’s legal positivism, as his view came to be called, are best seen as arguments against the possibility of reduction. These views aim to show that law cannot be reduced to facts of a non-normative kind because the law is, partly but necessarily, a matter of moral truths. So I think that this debate about reductionism is at the very core of contemporary philosophy about the nature of law.
3:AM. In that book you say that it is with Ronald Dworkin, Hart’s replacement as Oxford Professor of Jurisprudence, that the methodological issues of philosophy’s approach to law have become foregrounded. You label it the ‘methodological turn’. What Dworkin thinks is important is a distinction between rules of law and principles which govern what legal philosophers call ‘rules of recognition.’. Rules are simply on/off imperatives whereas principles are based on reasons that might be disputed. Legal Positivists think that principles are established by convergence of practice. So law is a matter of social facts. Natural Law tradition denies this and argues that legal norms are moral. Dworkin is a kind of anomalous Natural Law guy. Hart is the parade case Positivist. You’re a positivist so what do you see as the main substantive issues in this debate and what is at stake? You think Dworkin’s approach is wrong and that the sting stung no one. Can you give your basic argument for this?
AM: Let me try to answer both of these questions about Dworkin and the issues that are at stake. As far as I can see, there are two main types of objection that Dworkin has raised over the years against Hart’s legal positivism. The first type is precisely the kind that aims to show why Hart’s reductionist project is bound to fail. The argument here is very simple in its core: if it is the case that what the law requires is, at least sometimes, a matter of moral truth, then it just cannot be true that law is reducible to non-normative facts. Dworkin’s argument about legal principles is a prominent example of this type of argument. The idea that there are legal norms that can only be deduced by moral reasoning, aims to show that law is just not the kind of social phenomenon, as Hart envisaged, that can be reduced to rule following, explained in terms of beliefs and attitudes people entertain about social rules they follow. So this is really an argument about the possibility of reduction.
The second and more recent type of argument that Dworkin leveled against Hart is, indeed, a methodological one. Dworkin came to doubt that philosophy of law, as descriptive philosophical enterprise, is possible at all. Here again, the core of the argument is simple, focusing on the essential role that interpretation plays in any understanding of law, and the evaluative nature of interpretation. If any attempt to articulate what law is, in general, as in particular cases, is necessarily a form of interpretation, and if interpretation is necessarily partly a matter of forming and defending evaluative judgments, then every conclusion bout the law, again, both in general and in particular cases, is bound to be partly a matter of moral or other evaluative judgments.
I have great respect for both of these lines of criticism and I think that there are many valuable insights in Dworkin’s theory. However, I also think that both arguments eventually fail. I don’t think that there are legal principles, as Dworkin envisaged, and I think that Dworkin’s methodological argument is based on a very implausible premise, mostly, it is based on a very questionable conception of language and linguistic communication. The essential point, underlying both of these counter arguments, is that interpretation, at least as Dworkin understands this term, is not the ordinary way in which we grasp some content communicated; interpretation is the exception to the normal understanding of communicated content, it arises when something is not entirely clear, when there is some room for doubt or a particular question arises. But for something to call for clarification there must first be a great deal that is already clear in the relevant context. Needless to say, the arguments are very complex and I cannot give the details here.
3:AM: Although Hart is the key figure that Dworkin targets in the postivist camp, you’re a fan of Hans Kelson. Kelson is a more obscure figure than Hart but you see his arguments as seminal. Can you explain what Kelson brought to the table and why he’s so important to your conception of Positivism?
AM: Well, Kelsen is not an obscure figure in legal theory if you think about it globally. True, Kelsen has never quite managed to catch the imagination of Anglo-American jurists, even though he spent the last decades of his long academic career at Berkeley. But he was, and may still be, the most famous and well known legal theorist in the rest of the world. To begin with, many of H.L.A. Hart’s ideas in The Concept of Law are heavily influenced by Kelsen. In fact, as I try to show in my recent book on Philosophy of Law, Hart’s legal theory is pretty much a reductionist version of Kelsen’s.
They may have differed in their methodological presuppositions at some key points, but all the essential elements of Hart’s philosophy of law were already articulated, and in great detail, in Kelsen’s writings. The terminology is different, but the main ideas are very similar. What Kelsen brings to the table, however, is much more than a claim to have been there first…. His own version of legal positivism as a form of a “pure theory of law” is very intriguing and philosophically challenging. The idea is that law cannot be explained by something else, more foundational in nature. And the question of how to reconcile this anti-reductionist project with the main tenets of legal positivism is the main challenge, I think, that faced Kelsen’s philosophy of law.
I don’t think that he quite met the challenge, and in fact, I think that Kelsen’s failure to defend his anti-reductionism is precisely what motivated Hart to offer a much more sociological account of law, but the attempt itself, and the details of Kelsen’s theory, have considerably enriched philosophy of law. Much more so, I think, than Anglo-American jurisprudence tends to recognize.
3:AM: You agree with Brian Leiter’s distinction between ‘reductive-displacement’ and ‘agenda-displacement’ theories where instead of asking for the normative reasons for a law, you just look at what anyone would need to have to predict what the law will do on any issue. This is a legal realist position and what it has to make these predictions is positivism, which instead of being about the nature of law itself is instead ‘… about a scheme of interpretation: it is a question about the collective meaning and self-understandings of a complex social reality.’ Is this right? Can you explain this position, which may initially strike some people as an evasion of philosophy of law questions, rather than an attempt to solve them.
AM: Well, I agree with Brian Leiter’s position, at least his earlier position on this topic, that the American Legal Realists were simply not interested in any major philosophical question about the nature of law. They were much more directly interested in two other projects: how to advance legal research and how to improve legal education. The research they sought to advance was first and foremost empirical in nature. They wanted to find out how law is actually shaped by sociological, economical, and psychological factors in the real world, and how can we make better scientific predictions about the law in the future.
So the project was, by and large, a scientific project, shaped by views about the nature of the social sciences at the time and the kind of tools that are needed to make the relevant types of scientific predictions and generalizations. I think that this is a very worthy project, and one that does not need philosophy to move forward. What it needs is good social science. I think that part of what makes the some of the early realists’ writings a bit questionable in retrospect is the fact that their ideas about the need to engage in empirical legal research were somewhat ahead of their views about the state of the social sciences at the time, that is, in the first few decades of the 20th century.
Some of the realists had pretty naïve views about what psychology and sociology can deliver. But with the advances in social sciences and the more cautious views we now have about empirical research in these areas, the Realists’ project is a thriving academic endeavor, carried out these days by economists and econometricians, sociologists and psychologists. As I said, I don’t think that these scientists need our philosophical support and I certainly don’t think that this kind of empirical research directly challenges any philosophical views about the nature of law.
3:AM: Leiter dismisses the kind of disagreements that Dworkin wants to argue undermine Kelson and Hart partly on the grounds that there aren’t enough of them. Convergence of practice is massive, disagreement happens at the margins. But you think that the requirement that there be reasons for people following, say, the rule of recognition, are still required even if not for the reasons that Dworkin argues for. Is that why you think Raz is so important ? Can you say something about why you think it necessary to defend the binding character of legal norms? What does Raz say and why do you agree with him?
AM: Let me try to answer some of these questions briefly. One of the main challenges we face in legal philosophy is to try to explain in what sense the requirement of law are binding, and what is the kind of reasons for action they purport to provide. When the law tells you to do (or not to do) something, it typically tells you that you ought to do it, and you ought to do it partly because the law says so.
So the question here is, at least, twofold: first, to explain what kind of ought is meant here; is it necessarily a moral ought? If it is, what gives the law this necessary moral dimension? If it is not necessarily a moral ought, what other kind of ought might be in play here? Second, why would it matter that the law tells you to do it? If you have reasons to do it anyway, the law is redundant; and if you have no reasons to do it, what reasons the law can create, and on what grounds?
All these are complicated questions and they need much further elaboration before we try to answer them. One of Joseph Raz’s main contributions to philosophy of law consists in his insight that we need to think about these questions about the normativity of law in terms of a general theory of practical authority. The law is, according to Raz, essentially authoritative in nature, and therefore the kind of reasons for action the law gives us must be considered in light of what practical authorities in general are, what would make an authority legitimate, and how authorities purport to change our reasons for action. I think that this main insight is a very important one and it certainly advanced the ways we think about law’s normativity.
Over the years I came to disagree with Raz on many of the details of his particular theory of practical authority, and some of the conclusions he draws from it. But I think we owe Raz a great deal both about the ways in which we think about the normativity of law, its connection to the nature of authority and about the ways in which we think about the nature of authority itself.
3:AM: This approach has been criticized as being a version of conceptual analysis. This approach hasn’t been an overwhelming success elsewhere, to say the least. So why do you think the approach has merit?
AM: As I explained above, this whole issue of conceptual analysis is a red herring. One of my recent articles in legal philosophy is entitled: “Farewell to Conceptual Analysis (in Jurisprudence)”. It is really time to put this anachronism to rest. Analytical legal philosophy is no more conceptual analysis than any other field in contemporary analytical philosophy and the methods it employs, whether linguistic or other, are really ill described as an analysis of concepts. The conceptual analysis that was central to Oxford philosophy in the 1950s may have influenced contemporary legal philosophy, as it did in other areas, but it is no longer the kind of philosophy we do.
3:AM: The role of interpretation in law is central to Dworkin’s approach. He thinks everything is open to interpretation. Your disagreement and your work on the role of interpretation in law is a key part of your work. So can you explain the role of interpretation in law so we can see that Dworkin’s view is untenable?
AM: As I mentioned earlier, I think that Dworkin has a lot of interesting and insightful things to say about the nature of interpretation and I happily endorse many of them. My main disagreement with Dworkin on this issue is about the ubiquity of interpretation. I just don’t think that it makes much sense to claim that everything is subject to interpretation, especially with respect to linguistic communication. “Everything is interpretation” is no more true or helpful than the idea that because you can, if you will, doubt anything, therefore everything is in doubt. Just about anything meaningful can become, in a certain context or under certain conditions, an object of interpretation. But this does not mean that we engage in some interpretative reasoning whenever we grasp a piece of linguistic communication. Interpretation, as I said earlier, aims to clarify something that is, in a given context, unclear or not sufficiently clear. But you can only seek to clarify something on the background of much else that is clear enough, at least in the relevant context.
3:AM: You discuss a broader idea of interpretation than one limited to law. You discuss interpretation in art. Can you say how you approach this and how interpretation in art differs from when used in law, and also say where there are overlaps?
AM: There are, indeed, many similarities between interpretation in art and interpretation in law. In both cases we seek to understand the content or the significance of a given object or text in light of some reasons or interests we have in the relevant type of objects/texts in question. The main difference, however, is this: works of art are created as objects of interpretation, they are created (partly) as an invitation to appreciate their aesthetic and artistic features, to appreciate the kinds of achievement they manifest, and the like.
Law, however, is not created to become an object of interpretation – law is created to guide human conduct; it has practical purposes. Making a law is not an invitation to the public to offer interpretations of it or to appreciate its legal qualities. Second, there is a clear sense in which art is an essentially contested concept. That is, the word “art” stands for a certain form of human achievement, an aspiration for excellence that is essentially contested, inviting different views about what kind of achievement it is and what its standards of excellence are. Each work of art contributes to this cultural debate, as it were, making an implicit statement about its conception of art, what the creator values in it, etc. And that is why the question of whether a given artifact is a work of art or not, and the question of what we value about art, are very closely linked.
Legality, however, is not an essentially contested concept. We do not regard legality as a form of human achievement, inviting, as it were, different conceptions of what makes it an achievement, what it is an achievement of and the standards of excellence we associate with it. The making of good law – morally, politically, economically or otherwise – is of course a form of achievement. We may have different conceptions of what would be a good law in this or that domain, but the relevant issue that is essentially contested here is not the legality of the lawmaking but the moral or other evaluative dimension of it – that is, the contested element here is the “good,” not the “law.”
3:AM: If interpretation is more limited in scope than some would have thought, then we might want to ask how we fix understandings without interpretation. Social conventions are often thought of as doing this. So you see social conventions as a species of norms, rules regulating human conduct, and also as arbitrary. You make a distinction between deep and surface conventions. Can youexplain this? You also distinguish between coordination conventions and constitutive conventions. The first position is associated with David Lewis I believe and you take issue with him don’t you? Can you say something about the basic approach you take to conventions and why they are important to practical reasoning? And how do you respond to criticism that your account slides between different levels of comparison – for example, between rues for chess and rules for following traffic regulation?
AM: Let me see if I can summarize the main ideas of a book-length project in a few sentences: there are countless social rules, of various kinds, we follow in our daily activities. These rules and social norms are there for reasons, there are reasons for following them. Now, some rules are basically determined by the reasons to have them. A rule to avoid humiliation or torture, or such, is the kind of rule whose content is determined by the reasons for having it. However, countless rules we follow are not like that: There are reasons for having them, but those reasons do not fully determine the content of the rule we follow. There are reasons, for example, to greet or otherwise acknowledge acquaintances when we meet them, but those reasons do not determine the actual content of the greeting conventions followed in different societies.
That is the sense in which a conventional norm is arbitrary: the content of the rule is under-determined by the reasons for having it. And then, part of the reason for following the rule depends on the fact that this is the rule that happens to be followed by others in the relevant community. So these are the kind of rules or norms I am interested in and that I think we by and large call social conventions.
Now, David Lewis had a rather ingenious idea about the nature of conventions and the rationale of following them: the idea was that these rules emerge as solutions to large-scale recurrent coordination problems. This would nicely explain why reasons for following conventions depend on general compliance, and it would also explain the sense in which conventions are under-determined by reasons. I think that Lewis is quite right about numerous cases, many social conventions have this coordinative rationale, including some aspects of language.
However, I argue in my work that there are many other cases, that there are many social conventions that cannot be explained in terms of the solution they offer to a pre-existing recurrent coordination problem. I call these constitutive conventions because, as I try to show, these are the kind of conventions that function as constitutive rules of a certain type of human activity, like playing chess or football, or forming distinct artistic genres, etc.
The distinction between deep and surface conventions is different matter, and a bit more complicated. The intuitive idea here is that there are some conventional practices where we do not follow the underlying conventional norms directly but by following more concrete and more shallow conventions that instantiate them. For example, there is an underlying conventional practice of showing respect for others in certain circumstances by one’s dressing up in certain ways; notice that other cultures might have different conventions here, say, showing respect by some outward appearance that is not a dress code but some other means. However, this deep convention of showing respect by a dress code in itself does not tell how to dress up for, say, a wedding or a funeral… the conventions we follow are the more concrete or specific local and shallow conventions of say, requiring men to wear a suit and tie to a wedding ceremony or such.
These two distinctions, however, between coordination and constitutive conventions, and between deep and shallow conventions, are quite distinct, they pick up different types of phenomena.
3:AM: When you look at conventions of language you disagree with those who say that language is hugely conventional. Presumably Wittgenstein is the parade case for this idea, but also Searle is in trouble if you are right. Can you say why you disagree with what for many has been taken to be an important fact about language that words in natural languages are conventional? Is this a version of Emma Borg’s semantic minimalism? And when you argue that borderline cases typically contain conventional variations of meaning is this the argument that vagueness is application of conventions to literal meaning?
AM: Truth to be told, I am not sure who is in trouble here, if anyone is. The question I deal with, that I think you refer to here, is whether the literal or lexical meaning of words in a natural language, the Fregean “sense” if you like, is conventional or not. This question is not central to semantics, by any means. In fact, very few philosophers of language even posed this question or considered it in any detail. And I am certainly not claiming that the conventionality of literal meaning is something that should become a central issue in semantics.
But it is an interesting question, nevertheless, and partly because it allows us to test our theory of conventions and see how it handles such problematic cases. Now, my argument that literal meaning is much less conventional than generally assumed rests on the rather simple idea that in most cases, though by no means all, there are reasons for having words designating certain things and those reasons pretty much determine what the word means.
In other words, my suggestion is simply this: if you agree that conventions are rules under-determined by reasons, you can easily come to see that the meaning of words in a natural language is not as conventional as one might have thought.
But notice that I am talking about meaning or sense, and not about the notation, or the sound-sense relations. Those are, no doubt, by and large conventional. The fact that in English the word “chair” stands for chairs, is of course, entirely conventional; other languages use a different sound to stand for the same word with the same literal meaning. But the fact that we have a word to designate these types of artifacts is not arbitrary in the relevant sense, and the reason for designating those artifacts by a certain word pretty much determine what the word means or stands for.
Now true, if this is correct, then one should have some doubts about some of Wittgenstein’s ideas, in particular, one should seriously doubt the ubiquity of family resemblance concepts. And I have expressed my doubts about family resemblance concepts in my book in some detail.
3:AM: I think you argue for a version of pragmatism, the view that meanings depend on conversational situations over and above the pure semantic properties of words. In normal conversation pragmatics help regulate the cooperative exchange of information, in law cooperation is exchanged by strategic interactions. Is this right? Can you say something about this?
AM: I don’t think that any philosopher of language these days would doubt the essential and ubiquitous role played by pragmatic factors in linguistic communication. My interests in the pragmatic aspects of communication in law pertain to some unique features of legal discourse, in particular, to the fact that communication in law, as in many other different contexts, is often very strategic in nature.
Strategic communication requires some modifications to the basic Gricean model in pragmatics, and this is partly what I aim to do. In this case, law is just an example, it is an example where we cannot simply rely on the Gricean model of conversational norms because it is just not the kind of conversation where parties aim at a cooperative exchange of information. I am not saying that Grice was wrong, just that we need to modify and extend his model to account for different types of conversation, and strategic conversation, of the kind we find in law, is one such central case.
3:AM: In your essay ‘Authority, Equality and Democracy’ you argue that fairness plays an essential role in the justification of democracy. Can you explain why you think this and what are the implications for democracies like the USA and UK where inequality and unfairness seem endemic. The protests of the Occupy movements and the Arab Spring and anti-Yeltsin protests in Russia all seem examples of people shouting that things are currently unfair. Is democracy in big trouble because of the fairness deficit that these movements identify all across the political landscape?
AM: Yes, I do think that fairness plays an essential role in the justification of democratic procedures. But first we need to get a better sense of why democracy calls for justification to begin with. Let’s take the core idea of a democratic decision procedure, namely, the idea that an important decision that affects numerous people is reached by a majority vote. It does not take more than a moment’s reflection to be puzzled by this: surely the fact that most people think that X is right does not make X right! So why cherish majoritarian decision procedures? What makes democracy so valuable?
There are two main lines of thought in response to this: some argue that the justification of democracy is, ultimately, a matter of instrumental value. Overall, democratic regimes just tend to generate better outcomes. We may have various explanations of why this is so, but the essential idea here is that there is nothing inherently more fair or just in a democratic decision procedure and the only thing that justifies democracies is the instrumental value they have, namely, the fact that they tend to generate better decisions, or better governance, at least in the long run.
The other line of thought is that in addition to whatever instrumental value democratic procedures may have, democracy is also valuable intrinsically: the idea here is that considerations of fairness ought to apply to the ways in which we make certain public decisions, and that democracy aims to instantiate those considerations of fairness.
Notice, however, that the fairness in play here is the fairness of the decision procedure, not the outcome. Nobody thinks that a fair decision procedure necessarily guarantees decisions that are fair or just.
So even if the second line of reasoning is correct (as I think that it is), and democracy is partly valuable because and in so far as it is a fair decision procedure, democratic decisions are not necessarily fair in their outcome. Fair procedures can easily result in unfair decisions or outcomes. And of course, this is what happens in my cases: democratic regimes end up with unjust laws or policies, not necessarily because the decision was not reached in a fair manner, but simply because a fair decision procedure is rarely a guarantee of a fair outcome.
3:AM: Some will argue that the Supreme Court itself seems as implicated in the lurch to unfairness as anything else. If the law itself is a force of anti-democracy then what hope is there? Are there any signs for optimism?
AM: I would not say that the law itself is a force of anti-democracy, though Constitutionalism is, to some extent, and purposefully so. The realization that fair procedures may result in very unjust decisions brings many to the conclusion that democracy needs to be limited, that there have to be counter-majoritarian elements in the system that would safeguard against the tyranny of the majority.
Surely this concern is not without merit and needs to be taken seriously. The system that American constitutionalism adopted is to have a written Constitution, entrenching certain rights and governmental principles, interpreted and implemented by the US Supreme court, exercising its power of judicial review, that is, the power to strike down laws it deems to be unconstitutional.
But this solution is problematic, of course, and some of us argue that US constitutionalism has taken the anti-majoritarian safeguards too far. We should keep in mind, however, that different legal systems have very different constitutional regimes, and the differences matter. My main concern about the US constitutional regime stems from the combination of a very rigid constitution (namely, one that is extremely difficult to amend), an almost unlimited power of judicial review entrusted with the supreme court (and not, for example, a separate constitutional court as in many other countries), and all this on the background of an increasingly polarized society.
So yes, I do have many concerns about the US constitutional model and I expressed those concerns in some of my writings. I find other constitutional regimes, mostly younger ones, such as the Canadian Charter or the EU constitutional regime, much less problematic. But of course, the US constitutional system is very entrenched and extremely difficult to change, so I don’t think that we are going to get an improved system anytime soon.
Is there reason for optimism? That, of course, very much depends on your reasons for pessimism. If you are disappointed by the results of our democratic decision procedures, then yes, there is reason for optimism. One of the most attractive features of a democratic regime is that the decisions of the majority today may not last all that long and those who are in the minority now may become the majority in the future. If your reasons for pessimism stem from deeper structural elements of the system then, of course, optimism is more difficult to entertain.
3:AM: So, apart from your own books which everyone will be dashing out to read, are there five books you could recommend to the readers here at 3am wanting to get further into these deep waters?
AM: How to answer such a question without offending some of my friends, I am really not sure….On the nature of law, I still think that H.L.A. Hart’s The Concept of Law is the most accessible and the most rewarding read, a bit outdated as it may be. Ronald Dworkin’s most comprehensive critique of Hart’s theory is in his Law’s Empire. On the nature of conventions, David Lewis’s Convention is the classical text and at least the first half of it is not particularly technical or difficult to read. On theories of democracy there are two books recently published, both of them excellent: Tom Christiano’s The Constitution of Equality and David Estlund’s Democratic Authority. I would add, if I may, that the recently published Routledge Companion to Philosophy of Law (that I edited) contains a very wide range of discussions on these and similar matters written for non-professional audience.

A certain distance

Meir Dan-Cohen interviewed by Richard Marshall.
Meir Dan-Cohen is a hard-core Harvard-tough philosopher of law. He has written the books Rights, Persons and Organisations: A legal Theory for Bureaucratic Society and Harmful Thoughts: Essays on Law, Self, and Morality. He is inspired by Kant’s Kingdom of Ends, and thinks that the ideas that we create create us. He thinks legal positivism is a bad thing and dignity better than autonomy. His armchair is definitely not burning.
3:AM: You clerked for the Supreme Court in Israel before you became a philosopher? Is that right? What was it that drew you to philosophy and what are the rewards of philosophical studies and practice for you?
Meir Dan-Cohen: Yes, I did clerk for a year as part of my legal training. In hindsight, this looks like a step in a futile attempt to escape fate. I must have been doomed (or destined) early on to do philosophy by my mother, who, quite atypically for parents, used to chastise me as a child: “Don’t read so much; think for yourself!” This indeed captures the convenience of philosophy as well as one of its main rewards: the feeling that you’re making up stuff.
3:AM: In 2002 you published Harmful Thoughts, a collection of essays that discussed aspects of a moral system that emphasises reasoning, associated with Kant and labeled deontological. It’s an approach to moral theory usually contrasted with utilitarianism, the theory that emphasises the consequences of actions rather than the reasons motivating actions. There you begin your thinking about this approach by identifying two strands that contemporary liberal moral thought draws from Kant. One is the liberal idea of individuals having freewill and autonomy and being able to freely choose their actions. The other is the idea of ‘communication or dialogue as a medium for forging principles of justice or fair terms of social cooperation … an insistence inspired … by Kant’s uplifting fantasy of the Kingdom of Ends.’ You argue that the conception of a self that is asked to play a role in these liberal theories is problematic, don’t you? Can you say something about why the non Dan-Cohen Kantian liberal self is problematic?
MD: The point is not so much that these Kantian themes in contemporary liberal theory are grounded in an inadequate conception of self, as that they are for the most part grounded in none. Kant himself does of course link his moral theory to a conception of self, namely what he calls the noumenal self, defined by a rational free will, whose freedom is a matter of being exempted, on metaphysical grounds, from deterministic causal laws of nature. Morality has a grip on us qua noumenal selves and by virtue of this radical, metaphysically grounded freedom. Relatedly, the Kingdom of Ends is a forum in which noumenal selves are envisaged as engaging in moral self-legislation by spelling out the practical implications of their shared humanity. So the noumenal self with its metaphysical underpinnings plays an absolutely crucial role in Kant’s own moral theory. But no one seems to subscribe to Kant’s metaphysics anymore, and consequently the noumenal self has pretty much dropped out of the vocabulary of contemporary normative Kantians.
A good example of the resulting theoretical gap is provided by the most influential contemporary liberal treatise, John RawlsA Theory of Justice. As you know, Rawls explicitly models his procedure for deriving principles of justice on Kant’s approach. Specifically, the original position, Rawls’ central constructive device, is supposed to resemble Kant’s Kingdom of Ends by serving as the forum in which abstractly conceived individuals generate through joint deliberation shared moral principles. On a closer look, however, Rawls’ approach turns out to be fundamentally different from Kant’s.
Since the Kingdom of Ends is inhabited by noumenal selves, it is designed to capture an essential truth about human beings and morality’s hold on them. By contrast, Rawls’ original position, cutoff from Kant’s metaphysical moorings, is conceived as merely a hypothetical meeting of imaginary representatives. Ingenious though it is as a constructive device, the original position turns out to be just an invitation to conduct a thought experiment. But this invitation can be easily refused. Without the metaphysical support of a noumenal self, or some suitable alternative, it is not at all clear why actual, fully informed individuals would care about the pronouncements of hypothetical others blinded by a veil of ignorance.
3:AM: So if those are the kinds of challenges the conception of self sets, you propose a theory that requires we see normative engagements as not just presupposing a self but as shaping it. Is that right? Can you explain your idea?
MD: Much as I would like to get the credit, I’ve been actually trying to draw some implications of an old and multifaceted theme, human self-creation, which goes back at least as far as the fifteenth century Renaissance philosopher Pico della Mirandola. What according to Pico distinguishes humanity from the rest of creation is that human beings have no essence, and so must create their own. Various more recent schools of thought, such as existentialism, postmodernism, and communitarianism, as well as the talk by sociologists of the social construction of the self, can be all seen as variations on this basic theme.
Now when we think of ourselves as self-creating, we don’t think of ourselves as biological organisms; organisms don’t create themselves, nor do we create ours. The idiom of self-creation belongs to the domain of meaning: only if we think of the self as constituted by meanings does it make sense to think of it as self-creating. This links self-creation to another cluster of partially overlapping approaches which conceive of the self in narrative terms, and so as an unfolding story, or dramaturgical terms, as enacting scripted roles. The core idea common to all these otherwise diverse bodies of literature can be rendered in the form of a slogan: that the meanings we create, create us.
Substituting this broad idea for the noumenal self provides a platform on which I reexamine certain aspects of the Kantian strand in contemporary liberal discourse. The point you mention is probably the main implication. If humanity is self-creating, and the self-creation is a matter of spinning out meanings, our normative engagements must be seen as principal constructive engines. That’s how law and morality don’t only guide what we do but also shape who we are.
3:AM: So this socially constructed self brings about other commitments, such as the contingency of meaning (contrasted with metaphysically underwritten freedom of choice), and a shift from personal autonomy to human dignity (replacing volition with identification). Perhaps you could say something about both of these. So to take the first one first, what does it mean to say we replace “a metaphysically underwritten freedom of choice” with “a recognition of the contingency of meaning”? Can you give an example?
MD: I’d like to comment first on your use of the “social construction” label. I do indeed invoke this idea, but I view it as part of the broader one I’ve just mentioned, that of human self-creation. “Society” is an intermediate category between a universal perspective encompassing humanity as a whole, and an individual perspective. Self-creation takes place at all three levels: the universal, the social, and the individual.
As to your question. It addresses primarily the notion of responsibility and relatedly that of choice. The phrase “metaphysically underwritten freedom of choice” alludes to Kant’s picture, which creates a metaphysical link between the two: responsibility is a matter of the noumenal self’s will being radically free, that is free of the natural causal order. If we don’t buy into this metaphysical picture, we face the challenge of reconciling our responsibility with the possibility that causal determinism prevails. Different “compatibilist” views which attempt such reconciliation have been proposed. According to the one I favor, human beings constitute themselves as subjects or agents primarily by avowals and ascriptions of responsibility. To say “I did A,” where A is some object or event, is to take responsibility for A, and so to constitute oneself as (among many other things) the author of A. This in turn amounts to treating certain bodily movements as meaningful and so as actions.
For bodily movements to be meaningful in this way, however, alternative interpretations must be conceivable. This is the sense in which meanings are always contingent. What is not, however, required for our responsibility is that the bodily motions themselves could have been different in a sense that implies exemption from the causal order. The same is true about choice. The crucial thing is that my will be aligned with the option I realize, not whether or not I might have realized other options instead. In order for my choice to be meaningful, alternative possibilities must be imaginable, but nothing in principle depends on these possibilities being actually available to me, since my identity is in any event progressively shaped by the path taken, not the ones foregone.
3:AM: What about the other shift you advocate, from a focus on autonomy to dignity?
MD: Yes, this too is a result of giving up Kant’s metaphysics. In general liberalism holds individual choices to be sacrosanct, and in the Kantian strand of liberalism, this attitude is linked to the value of autonomy. But when contemporary Kantians drop the notion of a noumenal self with its metaphysical underpinnings, an aberration results. On Kant’s view, the choices that exhibit our autonomy are made in our capacity as noumenal selves, and are conceived as idealized choices which take proper account of all moral considerations. Kant’s theory is therefore far from providing a blanket validation of all individual choices as such.
However, once we abandon the strict separation between the idealized autonomy of a noumenal self and the psychology of the individual chooser, we can no longer assume that choice will be consistent with the demands of morality in general, and those of dignity in particular. When such a gap between choice and dignity opens up, dignity must dominate. Individual choices are themselves valuable only insofar as they are consonant with the moral worth of the individuals themselves.
3:AM: This really is, as you say, an ‘insider’s critique of liberal theory’. The political state is usually presented therein as an evil to be resisted. You find liberal theories of resistance to the state complacent, don’t you? Can you say what the problem is and how your critique avoids this?
MD: The liberal tradition includes some enthusiasts for the state and some opponents of it. So the tradition as a whole can be seen as exhibiting an ambivalence toward the state. I myself espouse the ambivalence, rather than one or the other of the contrasting polarities. The charge of complacence you mention addresses a fairly common style of dealing with what is one of the most salient, necessary, and yet abhorrent aspects of the state, namely its coerciveness. Not surprisingly, a central question discussed by liberal thinkers (as well as many others) is when is coercion justified. What is often missing is an awareness that coercion is at best a lesser evil, and so even when justified, an evil nonetheless. Absent such awareness, we tend to cultivate toward the state attitudes that are blind to the fact that the state often tramples our autonomy, and that its hands are soaked in blood.
3:AM: There are philosophers such as Josh Knobe and Brian Leiter who contend that the notions of agency that are required by Kantians to justify their approaches are not supported by empirical evidence. How do you respond to this kind of criticism which basically seems to be saying that Kantians are relying on a fantasy of agency?
MD: I prefer not to engage in indirect debate with the people you mention, but simply respond to the point you make on their behalf. Understood in a certain way, to speak of “a fantasy of agency” is not to voice an objection. Other ways of making the same point would be to describe agency as a product of the imagination or as a projection of the mind. These are different ways of claiming that the constituents and the incidents of agency are not the recordings of an independent observable reality, in the way in which our senses can be said to record such a reality. The challenge is not to find empirical support for the idea that people are responsible, since no amount of observation would reveal that and no tools for that purpose exist. Empirical evidence, or its absence, has accordingly nothing to do with it. The challenge instead is to replace Kant’s metaphysics with a more satisfactory story, and then explore the implications of that story for the precise shape of agency and its contours.
3:AM: And again linking with Brian Leiter but this time more specifically in the domain of jurisprudence, Leiter famously argues for naturalising jurisprudence. Presumably you resist this. What do you say to the arguments that say that naturalised law is a better description of what legal systems do than Kantian descriptions?
MD: Once again, let me comment on the general project you refer to rather than on any particular version. You won’t be surprised to learn that the project of naturalizing any normative domain strikes me as misguided. We know from the start that any account along these lines can at best tell a parallel story that fits the normative facts without however retaining their normative import. The “ought” in such accounts must lose its force. But if what we’re interested in is precisely the normative import, such accounts will be unsatisfactory. This is not a theoretical point, but a meta-theoretical one. No theory can set its own conditions of adequacy. What interests us, and so what type of theory will give satisfaction in any given domain, is not itself the product of such a theory but a precondition for engaging in the theoretical enterprise.
More specifically, the ambition of naturalizing law, as I understand it, is to fit law within the causal order. The interest in such an approach is to explain things in terms of common sense causation rather than in terms of some esoteric or ad hoc conception. And although common sense causation is not an altogether clear notion, three tenets define it if anything does: that causation can’t be instantaneous, retroactive, or distant. But when a judge in, say, Sacramento renders a decision annulling a contract made between two Berkeleyans three months ago, she violates all three tenets in one fell swoop.
3:AM: So perhaps I can ask how your theory fairs with something like the Occupy Wall Street movements of protest? Is it possible for your critiqued Kantian liberalism to show how these protesters are acting as good liberal citizens? What do you see as the salient issues to be considered?
MD: An interesting question, though temperamentally I’m averse to being relevant. I’m quite old fashioned in believing in the value of reflection that keeps a certain distance from daily headlines. Even so, let me indicate one connection between things I’ve written about and the present upheavals. The Occupy movement targets the corporate world. In doing so, it’s important not to destroy what is, for all I can tell, an enormously useful social instrument that can serve, when properly handled, as an immense source of prosperity.
But it’s equally important, and vital to the Occupy agenda, to insist that corporations are no more than that, i.e., social instruments. Specifically, they are not human beings, endowed with dignity and capable of autonomy. So it is a grave mistake, and indeed a category mistake, to extend to corporations Kantian rights designed to protect these values. The law commits this mistake on a massive scale. Indeed, in a recent decision (Citizens United v. Federal Election Commission) the Supreme Court has carried this perversion to a new level by extending to corporations rights to participate in the political process.
3:AM: There’s a lot of discussion about global politics and of ‘importing’ ideas of rule of law and democratic liberal political systems into places with little or no experience of this kind. Does liberal theory have a universal mandate as these operations presuppose?
MD: One of the aspects of Kantian moral theory that I find particularly appealing is its universal scope. (It’s not the only variant of liberalism with such scope; in an important, though somewhat different sense, utilitarianism too is a universal doctrine). But liberalism originates and has its main habitat in the West. Any doctrine that makes normative claims that reach beyond the cultural, historical and political boundaries within which it has developed is a potential peril. The danger is exacerbated in this case because of the West’s abhorrent record of colonialism and imperialism. Missionaries of human dignity can in principle be every bit as naïve or arrogant or befuddled and at any rate as destructive as missionaries of Christ have often been. Indeed there is a significant overlap between the two.
So a Kantian liberalism must tread in this area with great care. The fundamental value that defines on my view Kantian liberalism, human dignity, applies to every human being on the globe. That much in non-negotiable. But dignity is an expressive value: it concerns the meanings of actions and practices, insofar as the actions and the practices must convey respect for each individual. And unlike the value itself, which is universal, the meaning of actions and practices, and so what counts as respectful, is cultural and local. So the universality of the Kantian position at the same time requires sensitivity to cultural variation.
3:AM Does liberal theory as you critique it handle interstate disputes as complex as Israel and Palestine, for example?
MD: It would be surprising indeed if the theory had no implications in such matters, though for the reasons I’ve already mentioned, it hasn’t been my goal to spell out these implications. But I welcome the opportunity to draw one rather obvious connection between a dignity-based liberalism I favor and the issue you raise. As you may know, human dignity is now enshrined in Israel’s Basic Law (the equivalent of a constitution). This constitutional provision has had laudable effects on Israeli society through numerous Supreme Court decisions and by other means. But the effects are for the most part limited to Israel proper.
Palestinians’ dignity is regularly being infringed in innumerable ways. The degradations and oppressions visited on them, large and small, are explained by the security exigencies that arise in the occupied territories. These exigencies are indeed real enough, and so often appear to justify the measures used. But the argument really ought to go in the opposite direction. In light of Israel’s own professed values and moral aspirations, the fact that the present state of affairs is taken to require the trampling of human dignity and so leads to the tarnishing of Israel’s moral self-image provides all by itself a compelling reason for ending the occupation.
3:AM: I’m always attracted to arguments that reveal inescapable dilemmas. Yet often people appear to want reasons and arguments and theories that can be the last word on the subject. Your liberalism doesn’t however presuppose that having the right moral theory is enough to solve moral dilemmas, does it? In fact, you think that there will always be dilemmas. One place where you show why is in your discussion of what you call ‘acoustic separation in criminal law.’ Can you say what this is and why it leads to dilemma and why you think having really hard dilemmas will survive any good moral theory?
MD: I’m glad to find in you a soulmate in this respect, Richard. Theories are as likely to reveal unfamiliar problems as they are to help cope with familiar ones. In any case theories don’t solve practical problems. Every theory involves a simplification, and the insight each offers is in part the product of its restricted tunnel vision. It is eventually up to the readers to compose out of many such partial visions what would hopefully be a richer and more accurate picture of the overall lay of the land. And it’s up to people who possess practical judgment, which theories themselves don’t supply, to cope with problems and dilemmas that theories may help identify.
Turning now to my acoustic separation paper, the main observation is that the law speaks to different audiences in different voices, which need not fully coincide. For example, the law addresses the general public, guiding our behavior in part through the threat of sanction, while also addressing officials, specifically judges, instructing them to impose sanctions when we misbehave. But those two, the threat and the execution, may diverge: the law’s bark can be worse than its bite. That is so as long as the condition I call “acoustic separation” obtains. This simply means in this case that for a variety of reasons people may be unaware of the courts’ greater leniency compared to the threats addressed to the public. However, when a dog’s bark is worse than its bite, the dog is bluffing. So here’s a case in which we can mitigate law’s harshness by compromising its candor. I don’t propose how to resolve this dilemma, but insist that it’s perennial and make its details visible. The resulting picture of law is not meant to be a pretty one. This goes back to the point we discussed earlier in connection with our proper attitude to the state in light of its pervasive coerciveness.
3:AM Finally, are there legal philosophers that the savvy non-specialists here at 3:AM should be reading? Other than your own books, are there five books in this realm that you’d recommend to enlighten us?
MD: I’m afraid that I’m going to give you a longer answer than this simple request seems to invite. The reason is that Anglo-American legal philosophy has been stuck for awhile in a rut of its own making, and though some excellent people are writing in the area, few of the results would be of general interest. The name of this rut is legal positivism, a fairly disastrous theory of law that came to dominate the field. In its original form, the basic idea is, roughly, that law is the expression of a sovereign’s will, and so in principle independent of morality or other substantive, rational considerations. Now positivism combines an insight with a mistake. The insight consists in alerting us to a significant pathology to which law is susceptible. The mistake is to treat pathology as physiology. It’s as though having discovered polio one were to consider paralysis as the essential nature of the human organism, or view diabetes as the key to metabolism. The problem with positivism is actually even worse than these analogies suggest, since adopting this attitude to polio and diabetes doesn’t by itself spread the disease. But in the case of law, the theory is to some degree self-supporting. If you teach people in power that whatever they fancy, just because they fancy it has potentially the meaning of law, they are likely to give freer rein to their fancy in exercising power than they would otherwise.
This theory has two unfortunate effects on the practice of legal philosophy. First, having found itself in this rut, legal philosophy has invested great ingenuity into contriving ways of digging itself out. But all the intricate footwork is bound to be lost on the general reader who isn’t charmed by positivism to begin with. Second, law conceived along positivist lines presents a rather narrow and dull philosophical subject matter. The pronouncements of politicians or judges are not as such of great philosophical moment, and so a theory of law that holds these pronouncements to represent what law is, provides a rather narrow and impoverished philosophical agenda.
The conclusion is that your readers might do better to look beyond what counts as the current canon of legal philosophy, and consider books that aren’t a standard part of it. Here are a few illustrations. No one needs me to recommend reading John Rawls, but I’d like to start with him, since re-reading him as a preeminent legal philosopher, not just in his The Law of Peoples but also, and even more importantly, in A Theory of Justice, may prove illuminating both about Rawls and about the field. Similarly Jurgen Habermas’, Between Facts and Norms; not an easy read, but worthwhile, by an author who treats law as part of a broader vision of society, politics, and morality. The third suggestion is Ronald Dworkin’s new book, Justice for Hedgehogs. As I’m sure you know, Dworkin is part of the canon, perhaps its most prominent active representative, but was a critic of positivism from the start, and writes with a breadth and flair that give him a broader appeal. The two other suggestions belong to a somewhat different genre. Since the authors aren’t card-carrying members of the legal philosophy club, their philosophical approach is enriched by an interdisciplinary perspective; and the books themselves don’t attempt a general theory of law but explore one or another aspect of law with attention to the kinds of substantive issues it faces: Elizabeth Povinelli’s The Cunning of Recognition, and Shai Lavi’s, The Modern Art of Dying.

Treating people as ends in themselves

Christine M. Korsgaard interviewed by Richard Marshall.
Christine M Korsgaard is a kool kandy Kantian who spins heads in the philosophical pool by being a Kantian naturalist. That’s bold. She thinks we are laws to ourselves. She thinks a particular form of self constitution is the source of normativity. She has cool advice for Parfit’s Russian nobleman and his wife. Brian Leiter, Pat Churchland and Alex Rosenberg don’t give her sleepless nights. And in Jimmy Stewart she finds a lightening rod for moral reflection. Which makes her not just our most important contemporary Kantian moral philosopher but the grooviest of philosophical groove sensations.
3:AM: When did you decide to become a philosopher? Was this a surprise to you or to people who knew you?
KK: Philosophy comes naturally to me, in the sense that from an early age, I kept journals in which I would write down my thoughts and the reasons for them, and have arguments with myself about those reasons. But I am a first-generation college student, so no one around me really knew about philosophy, and it wasn’t until something like the end of high school that I learned that this activity had a name and was something you could go into. Even then, though, I had no picture of myself becoming a philosopher, or a philosophy professor. I just wanted to pursue my interest in the subject.
After high school I didn’t go to college right away. I hadn’t liked high school much, and wrongly supposed college would be more of the same. I was a bookish kid, but I thought I could be an autodidact. So while I was working I tried to teach myself philosophy. But it’s too hard, so after a while I decided to go to college to study it. I don’t think I ever exactly decided to be a philosopher. After college I went to graduate school, not so much to become a philosopher, as just to keep on studying philosophy. In the 70s the job market in philosophy was pretty bad, and when you applied to graduate school, you got a letter from the schools you applied to that basically said “Don’t come; we can’t find you employment.” But since I had done office work before college and in the summers, I figured I could always find employment, so I didn’t worry about that. From graduate school of course it was natural to go on the job market, so I became a philosopher. I think I’m still surprised.
3:AM: You are perhaps the most important leading Kantian moral philosopher. In your early book ‘Creating the Kingdom of Ends’ you write: ‘Reflection … commits us to the conception of our humanity as a source of value. This is the basis of Kant’s Formula of Humanity, the principle of treating all human beings as ends-in-themselves.’ This is the core to your approach to morality isn’t it? Can you say what this formula is and whether it came to you as a discovery whilst examining Kant’s arguments, or else as a sort of confirmation of what you were already thinking?
KK: The specific idea of humanity as a source of value comes from Kant, but it represents the kind of idea that attracted me to Kant in the first place. I have always been suspicious of the idea that values simply, and without further explanation, exist; that they are, as people say, part of the fabric of the universe. I am what philosophers call a “naturalistic” philosopher, in the sense that I assume that the universe is basically the one that the physical sciences describe, and that the existence of anything other than basic material things requires an explanation: sometimes a scientific explanation, but sometimes a different kind of explanation altogether. I am not what philosophers call a “reductive” naturalist, because I believe that there are good explanations of the existence of lots of kinds of things that the physical sciences have no truck with – or rather, that the physical sciences can only approach by way of these other explanations.
For example, functional or purposive objects – furniture and tools – exist only in the perspective of beings who have the purposes in question. The physical sciences can explain the matter of a hammer, but to explain its form and function, you have to talk about the way creatures who sometimes have to pound on things look at the world. I think values are like that – they exist because people, and in a certain way the other animals too, have to value things. Ultimately, there are values because of the way people (and the other animals) have to value themselves and each other, if they are going to value anything at all.
Philosophers may be startled when I suggest that Kant is a naturalistic philosopher, because he talks about a distinction between the “noumenal world” and the “phenomenal world,” reality and appearances, that makes it sound like he believes in some realm beyond the natural world. But actually, Kant is the best naturalistic philosopher, because he believes that the existence of pretty much anything that isn’t obviously part of the natural world can be explained in terms of the human perspective and human needs, including our cognitive needs as creatures who try to form a conception of the world. He thinks that even reason itself must be explained in terms of our needs as self-consciously cognitive and active beings. And Kant seeks explanations of these “non-natural” things that aren’t “reductive” in a slightly different sense of the word than the one I mentioned above – explanations that don’t make them turn out to be less deep or important, or in some way cheaper, than we thought they were.
But that answer makes it sound too much as if it is only, so to speak, the metaphysics that attracts me to Kant’s Formula of Humanity, and that isn’t true. I also think Kant gets it right here morally, or almost right. I think Kant was correct in pointing to the idea that people should not use each other as mere means as something that is at the core of our moral relations with each other. And it is right to think that the real source of all value in the world lies in people and animals. Kant left the other animals out, which is why I say he only almost got it right.
3:AM: You’ve recently written the introduction to the new edition of Kant’s Groundwork. Can you say why you think Kant’s approach to morality remains extremely relevant?
KK: Partly for the reasons I just mentioned. And partly for a reason that Kant himself insisted on: his theory that obligation is based in autonomy, or rational self-government, gives us the only adequate account of why we have moral obligations. According to Kant, the only way we can actually be obligated to do something is if we ourselves recognize it as a law that we should do that thing – and so, in effect, command ourselves to do it. Kant’s philosophy is an articulation of the view that grown-up people live under their own self-government, and that morality is the ultimate expression of that fact. We are, in St. Paul’s famous words, laws to ourselves.
3:AM: I suppose one of the things that might strike us as being peculiar about Kant is that he thinks that even if I do good things all the time but am not morally motivated (so I just happen to like being nice) then my actions are morally worthless. How does he justify this position and do you agree with him?
KK: “Moral worth” isn’t a synonym for moral value in general; Kant isn’t saying that such actions have no value at all. Moral worth is the specific kind of goodness that characterizes the will, the faculty of choice. Kant brings the issue up because he believes that by reflecting on what exactly constitutes moral worth, we can discover what the moral law is. The idea is that a good will is the will of a person who does the right thing for the right kind of reason, so by thinking about how a person with a good will makes choices, we can discover how we ought to make choices – what the right kind of reason is.
What Kant discovers is that a person of good will does the right thing because he recognizes that there is a law, that is, a claim on him, to act in a certain way. And that leads to the formulation of the categorical imperative, which tells us to act only on principles that we can regard as laws. And yes, I agree with him. If you feed me when I am starving, or keep your promise to me, only because you “like being nice,” but you do not acknowledge that I have any claim on you, or that you owe this to me, then your actions are without moral worth. You have not reflected deeply enough on the relations in which you stand to other people, and what you owe to them.
3:AM: The normativity of self-constitution is a key idea in your philosophy isn’t it? What do you take this to be and why is it so important to you and to what you take philosophizing to be?
KK: It’s not the normativity of self-constitution. It’s that a particular form of self-constitution is the source of normativity.
All living things are self-constituting, in the sense that they are engaged in a constant process of making themselves into themselves. Living things are made of fragile materials which are always decaying or being used up, and they constantly take in new materials and transform those materials into themselves – that is, into their own parts and organs and energy. In fact, a living thing just is such a process.
Human life is a form of life, and I believe that the things that make human life so different from that of the other animals can be traced to a special feature of the way we carry on this process of self-constitution. There is an aspect of our identity – I call it practical identity – which we construct self-consciously. By that I don’t mean that we go around thinking “okay, now I am constructing my identity.” I mean that when we decide what to count as reasons for our actions and what principles of action to commit ourselves to, we are also deciding who to be. What makes this possible is the fact that human beings have a particular form of self-consciousness, which makes us aware of the grounds of our beliefs and actions – in the case of actions, the motives that prompt them, in the case of beliefs, the perceptions, the evidence, the arguments that make them seem compelling. The other animals believe and act as their nature prompts them, but they lack the kind of control over their nature which our awareness of the grounds of our beliefs and actions gives us. Being aware of their grounds, we cannot commit ourselves to belief or action unless we can endorse those grounds. To endorse them is to treat them as reasons. That’s why human beings need to have reasons for what we believe and what we do.
In the practical case, the case of action, we get these reasons from the roles and relationships that life makes available, and perhaps some we carve out for ourselves. That you are someone’s mother or friend, that you have a certain occupation, that you have enrolled yourself to fight for some cause, are all sources of reasons and obligations for you. There are two things interesting about this kind of identity. One is that we carve it out for ourselves and are responsible for it, and the other is that it is normative, or value laden. That is, having a certain practical identity is something that we try to live up to, that we succeed or fail at, that makes us good or bad.
That’s something I think is special about being human – having a normative self-conception, wanting, as we say, to respect yourself, thinking of yourself as worthy or unworthy, rating yourself. It’s a condition that gives a strange extra dimension to human life, both a special source of pride and interest and a profound cause of suffering. Some of the other animals seem to have moments of pride, but they don’t seem in general to think of themselves as worthy or unworthy beings. Some of them certainly want to be loved, but I don’t think they worry about being lovable. So having a normative form of identity that you carve out for yourself is one of the most distinctive features of being human. It is because we are self-constituting in this way, I believe, that human beings are governed by rules and laws and norms.
3:AM: Another big theme, of course linked with self-constitution, is that of agency. You say in your book Self-Constitution that humans are condemned to choice and act. And that action is self-constitution. Can you say more about what you mean by this and why action is so significant?
KK: Action is significant because people are their actions. If I push you from behind, having been blown over by a strong wind myself, and we fall like a pair of dominos, that’s a misfortune. But if I push you from behind, to hurry you along so that I can go faster, or to save you from a truck that’s about to hit you, that’s me. Philosophers have always insisted on the point that people are supposed to be responsible for their actions, but what I have in mind is something almost more primitive than that. We take people’s actions personally: for example, we think we are allowed to love and hate people for their actions, while we think it’s wrong to love or hate someone (just) because of his physical characteristics, or where he comes from, or what’s happened to him. And this is related to the fact that people are supposed to be the source of their actions in some special way.
Some philosophers think that special way is that people are the causes of their actions. Other philosophers think that people are the sources of their actions because actions have mental causes, like desires or intentions. They think that causal chains that run through our mental lives somehow reflect what we are more intimately than causal chains that run through our physical lives (like the one that leads from the strong wind blowing me over to my pushing you from behind). I think that people are the sources of their actions in the sense that we constitute our identities as agents when we act.
There are two thoughts working together here, and it will help if I separate them. One is that we make ourselves into agents when we act. I know that sounds odd; I’ll come back to it. The other is that we make ourselves into the particular agents who we are by the content of what we choose to do. That one is easier to understand, of course. When I take on a role, and act on the reasons and obligations associated with it, I make it part of my identity to have that role.
How do I at the same time make myself an agent? When an agent acts, she deliberately brings about a change in the world by determining her own movements. So the question how I make myself an agent comes down to the question how I make my movements efficacious, and how I make them my own. I make my movements efficacious by choosing the right means to my ends. That’s why action is governed by the principle of taking the means to our ends. I make my movements my own by acting on the principles in which I believe, the ones I think of as laws. That’s why action is governed by the categorical imperative, which tells us to act on those principles we can regard as laws. So as I see it, human action has an essentially moral dimension. The argument for that is kind of complicated, but here’s a fairly colloquial way to put it. We think of any creature as acting when its movements are determined by its mind. Even simple creatures like insects are agents who do things because their movements are determined by their perceptions, by sights and sounds and smells. But for human beings, being determined by the mind means being determined by thinking. And your movements are most your own when they are determined by your own thoughts about what you ought to do. So when your movements are governed by your deepest thinking – by the principles that, on reflection, you believe are the right ones to act on, and that you identify with – then they are most genuinely your own. So by acting on principle, I make myself an agent.
3:AM: One of my favourite chapters of yours is ‘The Constitutional model’ where you outline two competing models of the soul. There you engage with issues of the role of instincts and what Hume calls ‘the combat of passion and reason.’ Could you explain the contrast and why you find the constitutional model the more compelling of the two?
KK: According to the combat model of the soul, reason and “passion” (as the 18th century philosophers like to put it) compete for control of our actions. We act morally and rationally when reason wins. This conventional picture makes very little sense, however. How is an agent supposed to choose between reason and passion, when reason itself is the faculty of choice? Or if the agent does not choose between them, but is simply overwhelmed by one of them, why do we attribute the resulting action to the agent at all? (It’s no accident that we speak of being overwhelmed by passion, but not of being overwhelmed by reason.) For that matter, if they serve the same function – providing motives to act – how is the difference between reason and passion any different from the difference between two different passions? According to the constitutional model, which I derive from Plato’s famous comparison between the city-state and the soul, reason and passion are not competitors for the same role, but rather serve different functions – roughly speaking, passion proposes and reason disposes. Our emotions, desires, and passions suggest things we might do, but reason decides. If they are in conflict, passion is getting out of line and trying to usurp reason’s function, which is the government of the self.
I prefer this model because it makes better sense of our psychic economy. Reason and passion do different things; they are not just sources of different kinds of motives. But I also like it because the comparison between the city-state and the soul helps to clarify the nature of self-constitution, especially the part about making yourself into an agent. It’s easier to see how a city-state makes itself into an agent than how an individual person does that. A group of people make themselves into a city-state by adopting principles together, by making shared laws. And when they make themselves into a city-state, they are making themselves into a collective agent, whose actions are governed by its laws.
3:AM: In one of the essays in the collection ‘The Constitution of Agency’ you argue that contemporary moral philosophy is mistaken in viewing its concepts as essentially descriptive rather than constructivist. But some argue that your way of understanding constructivism doesn’t distinguish it from pragmatists who define truth in terms of usefulness nor realists who use descriptions to solve practical problems. How do you respond to these critics?
KK: I argue that practical normative concepts – concepts like “right,” “good,” or “just” which have implications for what we do – are essentially placeholders for the solutions of certain problems that people have to solve. Speaking a bit roughly, “good” names the solution to the problem of what to aim for, what goals to have; “right” names the solution of the problem of what to do, “just” names the solution of the problem of what we may legitimately expect from one another in social and political life.
One advantage of looking at things this way is that it explains what two philosophers who disagree about what, say, justice is, are disagreeing about. Say one thinks justice is maximizing the greatest happiness of the greatest number, and another thinks justice is protecting each person’s liberty to the greatest possible extent compatible with a like liberty for others. Why are they disagreeing about “justice” rather than merely talking about two different things? Well, because they are disagreeing about the principles that determine what we may legitimately expect from one another in social and political life.
The difference between my view and that of the realist is that I think that finding the solutions to these problems is essentially a matter of practical reasoning, not a matter of finding out certain truths about the world – say finding out what things have intrinsic value and are therefore “really” worth aiming for. I think we solve these problems by a kind of thinking that is continuous with ordinary practical deliberation, that is, by asking: what should I do and how should I do it? As for pragmatism, before we can know what is useful, we must know what is good, so the pragmatist standard cannot come into play until after the kind of question I am talking about gets settled.
3:AM: A striking conclusion you argue for in that essay and one that runs through much of your work is that reason is no despot. This is because ‘we identify with the voice of reason.’ Can you explain how this is so and whether you think this is true of most people? I guess the worry is that when we go about our ordinary lives so much seems to be irrational and non-reasonable. Is there a worry that this is too refined and unworldly a view of what actual people are like?
KK: “Reason” and related terms like “rational” can be used in either a normative or a descriptive way. When we use these terms normatively, “reason” is synonymous with “good reason.” When we use the term descriptively, a reason is some consideration on the basis of which we decide to do something. In that sense, there things you do for good reasons, things you do for bad reasons, and things you do, but not for reasons at all – like, say, scream when you see a monster at the window. (It’s not like you think, “oh, a monster. I guess I had better scream now.”) It’s because we use the terms both ways that we can say, “that’s a bad reason” (descriptive use) and “that’s no reason at all” (normative use) and mean essentially the same thing.
So a first point is that when I say that we identify with reason, I am using “reason” in a descriptive sense. The fact that we do some things automatically rather than on consideration doesn’t challenge the claim that we identify with reason, since we don’t always identify with such reactions – in some cases we apologize for them and say we couldn’t help ourselves. And the fact that we do many things for bad reasons doesn’t show that we don’t identify with the voice of reason either. It only shows that often we can’t hear it very well.
As I mentioned when I talked about the contrast between the constitutional model and the combat model, we sometimes say we were overwhelmed by passion when we have acted badly, but we don’t say we were overwhelmed by reason when we have acted well. That’s not just because acting well doesn’t require an excuse. It’s because when you do what you wholeheartedly believe you had excellent reason to do, you identify with the action, and don’t wish to chalk it up to some force working within you rather than to yourself.
3:AM: In ‘Integrity and Interaction’ (chapter 9 of Self-Constitution) you tell the story of Derek Parfit’s Russian nobleman who in his youth was a socialist planning to redistribute his wealth who worries that when he gets old enough to do this he’ll have changed his mind and become conservative. So he decides to act now to make a contract to bind his later self. Only his wife can revoke this contract and he asks that she will not ask him to revoke it even if his later self pleads with her to do so. You disagree with Parfit on this don’t you? Can you say what you take the issue to be and how you resolve it?
KK: “Disagree” isn’t exactly the right word here. Parfit uses the example to illustrate the way we might think about someone who predicts that his values will change, and how we should think about the identity of such a person over time. Parfit suggests that both the nobleman and his wife might think of the nobleman’s later self as a different person. In an earlier paper, I argued that there is something already amiss with taking a merely predictive attitude towards your own future values. Our values are, after all, up to us – they are not something that simply happens to us – and that goes with the ways in which our practical identity is up to us.
In the passage you refer to, I am using the example to make a slightly different point. It is an important part of Parfit’s own argument that the example is not supposed to be like the famous story of Odysseus tying himself to the mast to avoid doing something irrational when he hears the Sirens sing. The younger nobleman does not regard his later self as being irrational, merely as being different. I think that’s a problem. I argue first that it is impossible to interact properly with someone who takes this attitude towards himself – the nobleman puts his wife in an impossible position, since she must either wrong his younger self by breaking her promise to him, or wrong his older self by ignoring his right to do as he likes with his own estates. Then I argue that for similar reasons the nobleman cannot interact properly with himself – after all, what his younger self is doing is setting a trap for a future self with whose values he disagrees.
To put it in slightly different terms than I did in the book, the story is supposed to show that you cannot regard your later self’s values simply as different without falling apart. You must either regard them as irrational – in which case the story is like Odysseus and the Sirens after all – or as giving rise to reasons, in which case you ought to take them into account. But since there is no important difference between your relation to your later self and your relation to other people, that means you should regard other people’s values in just the same way – either as irrational or as giving rise to reasons you have to take into account. Values are the kinds of things that, by their nature, must be shared.
3:AM: What are for you the most serious threats to your system of thinking about ethics? Are there philosophical arguments that still give you sleepless nights? For example, how does your idea of agency fit into recent discussions about freewill and agency? Do you find recent arguments and evidence from natural sciences doubting the reality of a rational agency, say in the works of Josh Knobe and the xphi people, or doubts about freewill itself, at all helpful in refining your own approach to agency? I guess this question is about whether you find the naturalist challenge to agency and sovereign will, as presented by the likes of Alex Rosenberg, Patricia Churchland and Brian Leiter, at all convincing and/or problematic for your approach?
KK: There are philosophical arguments that give me sleepless nights, but the ones you mention here aren’t among them. To see these arguments as a threat would be to make a mistake about what moral philosophy is for. Moral philosophy isn’t armchair theorizing about what people are like. It is addressed to problems that arise when we are deliberating about what to do, problems that arise when we are actually attempting to use reason to determine what we ought to do. There’s no point in saying “oh, you can’t do that anyway.” I believe that the structure of our self-consciousness makes it necessary for us to attempt to use reason to determine our beliefs and actions. As I said earlier, we are aware of the grounds of our beliefs and actions and that makes it both possible and necessary for us to evaluate those grounds, to ask whether they provide good reasons for what we believe and do.
I think it is important to realize that there is no more reason to doubt that reason plays a role in guiding human actions than there is to doubt that reason plays a role in forming human beliefs. In fact there is less, since people believe much crazier things than they do. And all of the people you mention are dedicated to the project of working out what we have good reason to believe. If they came to the conclusion that reason doesn’t play much of a role in forming most people’s beliefs most of the time, they wouldn’t give up that project themselves. They are interested in the kinds of questions that arise when we are trying to use reason to figure out what to believe. As a moral philosopher, I’m interested in questions that arise when we are trying to use reason to figure out what to do.
3:AM: Do you see yourself as developing a metaphysical system of morals? Is this something that you think is sometimes underestimated or missed about your approach to moral philosophy where perhaps people switch too quickly to assessing a particular practical situation rather than stepping back?
KK: It depends on what you mean by “metaphysical.” My view is metaphysical if that means that I am concerned to explain why and how values and obligations exist, how there can be such things as values and obligations. As I mentioned above (in reply to your second question), the desire to figure that out is a driving force of my thought. Sometimes by “metaphysical,” people mean that you have “non-naturalistic” ontological commitments – that you believe in the existence of facts or entities that are not part of the physical world. If metaphysics includes explaining how such entities or facts can exist, then my views are metaphysical. If the facts or entities are supposed to be fundamental and incapable of being explained, however, then my views are anti-metaphysical.
3:AM: Peter van Inwagen writes that one of the great risks of anyone involved in metaphysical enquiry is being meaningless. He doesn’t see being meaningless as an insult but merely a danger that comes with the metaphysical territory. Any metaphysician worth her salt will probably say meaningless things from time to time. Do you agree with him and are there things you’ve argued which now you’d say were meaningless and false?
KK: There is a danger of saying something meaningless. I also think that when you help yourself to views that are metaphysical in the last sense I mentioned – believing in entities or facts that are non-natural but also fundamental and incapable of being explained – there is a very real danger of thinking you’ve solved a problem when all you’ve done is given it a name. In response to an earlier question, I talked about how normative concepts actually name, without specifying, the solution to some problem people face. For example, people face the problem of deciding what to aim for, what goals we should have, and that’s why we use the concept “good.” So here’s one kind of thing you find in philosophy: someone wonders how people decide what to aim for, and the philosopher (we could call him G. E. Moore) replies: “Well, some things are intrinsically good! And furthermore, we know by intuition which things are intrinsically good!” Nobody knows what intuition is, so all that’s really happened here is that the philosopher has affirmed that there is some (unspecified) solution to the problem, and that we have some (unspecified) way of knowing what it is.
I don’t recall having said anything that I now think is meaningless, but that doesn’t mean I haven’t. I’ve said some things I now think are false, of course. However, I have to admit that my views haven’t changed in major ways. Instead I have developed and elaborated them. Some times this seems odd to me – a lifetime spent thinking, with so little change of mind. On the other hand, when I think of other philosophers who have spent their lives developing some system, and I admire their work even though I disagree with it, I think of them as the guardians of some set of ideas and lines of thoughts that philosophers through time have found it fruitful and illuminating to think through. That seems to me a valuable thing to do, even if in the end I don’t think their views are right. But it’s a little hard to think of one’s own work in that way. After all, I believe the things that I believe.
3:AM: Kant is complicated and elaborate but you argue that his views when properly understood are compelling and superior to alternative attempts to establish the unconditional value of humanity. But does the Kantian moral project suffer from a problem. If only knowledge of its philosophical systems and arguments can justify moral behaviour, then doesn’t that imply that only Kantian philosophers can be moral?
KK: No, because Kant’s philosophy is just ordinary reflection – in the case of moral philosophy, practical deliberation – pushed to further limits. Kant undertakes to carry to completion a line of thought on which every reflective person takes the first few steps. Anyone who has ever asked themselves, “What if everyone did that?” or “How would you feel if someone did that to you?” has started a course of reflection that when properly articulated, ends in a commitment to the categorical imperative and the idea that every human being (and in my view, every animal) is a source of value. Decent people can act in a way that embodies these commitments even if they can’t always articulate them.
3:AM: Outside of philosophy have there been books or films that you have found enlightening and helpful for your work?
KK: Of course. Here are a few:
Sigmund Freud, Civilization and its Discontents
Charles Darwin, The Descent of Man
Cheney and Seyfarth, How Monkeys See the World and Baboon Metaphysics
Charles Dickens, Dombey and Son
George Eliot, Middlemarch
Robert Bolt, A Man for All Seasons
Movies: Almost any movie starring Jimmy Stewart, it seems. His persona seemed to make him a kind of lightning rod for moral reflection. Consider, for example: The Man Who Shot Liberty Valance, Vertigo, It’s a Wonderful Life, Anatomy of a Murder, and Winchester ’73. All of these movies reflect in interesting ways on right and wrong, obligation, the nature of identity, and the role of law in our lives.
3:AM: And finally, for the curious, smart but largely philosophically untrained readers here at 3am, are there five books that you would recommend we read (other than your own which we’ll be dashing out to read as soon as we’ve finished here!) to help us think more profoundly about how to be morally wise?
KK: I assume you mean apart from the obvious classics like Plato’s Republic, Aristotle’s Nicomachean Ethics, Book III of Hume’s Treatise of Human Nature, Kant’s Groundwork of the Metaphysics of Morals, Nietzsche’s The Genealogy of Morals and Mill’s Utilitarianism. I would certainly recommend that anyone interested in morality read those. But for some more recent books, here’s a few:
John Rawls, A Theory of Justice
Thomas Nagel, The Possibility of Altruism
Tim Scanlon, What We Owe To Each Other
Bernard Williams, Ethics and the Limits of Philosophy
Derek Parfit, Reasons and Persons, especially Part III

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