To Prof. Eugenio Bulygin (1931 – 2021)
«Whereof one cannot speak, thereof one must be silent»
Ludwig Wittgenstein (Tractatus Logico-Philosopicus)
«The life of the law is not logic, but experience»
Oliver Wendell Holmes
«It is not the form that gives the rule its institutional character;
it is the circumstance of its use»
Kenneth Ehrenberg (The Functions of Law)
- THE QUESTION OF METHODOLOGY BETWEEN “PHENOMENOLOGY” AND “POLITICAL”.
1.1. General questions concerning phenomenological methodology and some first methodological tools emerging from shared phenomenological convictions
The last years have shown a significant increase in phenomenological investigations of the political. Since 2016, alone four collected volumes appeared that not only have “phenomenology” and “political” in their title, but also explicitly address the question of methodology. This growing interest is exciting and speaks to the urgent relevance of the topic. At the same time, it is revealing and no coincidence that method is often in the center of these contributions. It points to the rather complicated relation phenomenology has with political inquiry, which seems to require an extra methodological reflection. As is well known, several representatives of the phenomenological movement have compromised themselves politically, first and foremost Heidegger, but also Scheler’s appraisal of WWI, or von Hildebrand’s involvement with Austrofascism are no easy burdens (cf. Gubser 2014). If we move beyond authors – and despite the heated discussions on Heidegger’s Black Notebooks, I believe that this is what most scholars want to do – one would think: there is still the “method,” phenomenology’s core. But access and applicability are neither easy nor straightforward as far as political issues are concerned. Phenomenology has often been accused of solipsism, internalism, subjectivism, transcendentalism, essentialism – and I say “accused” because these are all labels that were definitely meant to rule out that phenomenology could say anything relevant about political or social issues. As Gayle Salamon (2018, 11) has recently and rightly insisted again, this is of course a “caricature” of phenomenology. Neither is there just one rigid method, nor is there just one grand master who set the course in stone (Husserl), nor are these limited interpretations of Husserl correct, as numerous studies in the last twenty-five years have shown. If we look at the landscape right now, these productive and careful re-readings of the phenomenological tradition from the mid 90ies and early 2000 have not only opened several new interdisciplinary paths (from cognitive science up to nursing studies) but have basically triggered a whole wave of investigations on intersubjectivity, empathy, collective intentionality, generativity, and the like. Phenomenology has probably never been so “social” as it is now.
Still, one could object, this does not solve the issue that political inquiries have with phenomenology. I agree. To consider social relations does not yet mean that one has a sense for their political significance. Such investigations can, in fact, remain quite unpolitical and, as a consequence, remain naïve with respect to issues of exclusion, discrimination, and, most of all, the mechanisms of power that cause them. Phenomenologists interested in politics hence want to be critical and want to be able to analyze and question power-relations. This motivates new methodological inquiry, as mentioned above. On the other hand, critical theorists and politically interested scholars increasingly want to make use of phenomenological methods. This desire on both sides is, I believe and will argue below, not just an intellectual fashion of the day but stems from an urgent theoretical need to analyze the experiential side of politics or of societal orders in general. It has even given rise to a new brand in phenomenology, called “critical phenomenology,” which is still on the way of defining itself, but seems to set out as a “crossing over” of phenomenology and critical theory, “where each lends insights to the other” (Salamon 2018, 15). As this paper is written, the first volume of a new journal dedicated to Critical Phenomenology is published and some of the involved authors announce to publish a book called Fifty Concepts for a Critical Phenomenology soon. This, again, points us to methodological issues. The main figures that are named as patrons of Critical Phenomenology are, not surprisingly, Maurice Merleau-Ponty, Frantz Fanon, Simone de Beauvoir, Hannah Arendt, Jean-Paul Sartre, and Emmanuel Levinas. All of them have contributed essentially to phenomenological research as such. But what is even more important, is that they have contributed to its methodological development and transformation by raising the issues of alterity, plurality, race, gender, embodied existence, and conflict. By making these issues central concerns, these authors have politicized phenomenology and have made it sensitive for normative issues of marginalization and hegemony, while holding on to a certain style and some main categories of phenomenological analysis.
Critical phenomenologists today are of course not the first ones to notice this and take it up with a theory-building intent. They themselves point to their predecessors in feminist phenomenology, and e.g., to figures like Iris Marion Young. What is unfortunately lesser known in the English-speaking world because of missing translations, is the work of Bernhard Waldenfels and several of his followers. Since the late 80ies, Waldenfels (1987, 1994, 1997) has been explicitly engaging with the phenomenon of order, the alien, and phenomenology as a responsive enterprise by explicitly going back to French phenomenologists Merleau-Ponty and Levinas, but also Foucault, Derrida, or Lacan. The group around him has dealt with issues in political and legal phenomenology since that time. And, certainly, also other scholars are to be mentioned (Robert Bernasconi, Miguel Abensour and others) who have long used phenomenological tools for a political and critical inquiry.
What I would like to do in the following, is to present some of these methodological tools and topics, and also add some new ones. For this toolbox to make sense, it will be necessary, first, to clarify some general questions concerning phenomenological methodological frameworks as such and, second, to point to some methodological challenges that specifically come up with our topic in question: political and legal orders. These considerations will already contribute to the tools themselves, as a reflection that is “on the way” to its topic.
1.2. How pluralistic can methods be to still belong to the same intellectual project? Do we need an orthodoxy of methods or a canon?
In my following remarks I am thinking of a newcomer to phenomenology who is interested in working with phenomenology in the field of political and legal theory and who asks: “What methods to use? Which authors to turn to?” It is clear that there is not just one right answer to this question. But it might help to reflect on some basic questions concerning phenomenological methodology to sort out the main challenges for setting the course.
This is, of course, a tricky question that directly connects to the political worry of exclusion. The challenge here is to navigate between the Scylla of a well-meaning openness that loses specifity (“a phenomenological approach can be simply anything”) and the Charybdis of a rigid orthodoxy (“only someone who uses method x and y can claim to carry out a phenomenological investigation”). Neither is it desirable, especially for critical reasons, to completely lose one’s contours as an approach, nor will a jealously defended pureness foster creativity. I would thus like to argue that we do not need an orthodoxy of methods but rather something like “best practice”-models or exemplary approaches, as well as a toolbox to freely (and coherently) work with. As things stand, phenomenological methods are no manual, anyway—which can be a frustrating experience for the beginner. She hears that it is a method but at the same time that the subject prescribes the method. The hints that phenomenology is about “learning to see” (Heidegger) or a certain “style” (Merleau-Ponty) appear fuzzy for a philosophy that seems to be defined so much by its method. Yet, these hints illustrate some core convictions: that phenomenology cannot be done without engaging already with the phenomenon in question, and that subjectivity is nothing without the world it moves in.
Although this seems to imply that there are precisely no methods to acquire for guiding one’s inquiries, the methodological lesson to be learned here is “correlation” or “relationality.” To what extend one wants to take this basic insight into a transcendental, existential, hermeneutic etc. direction depends on the taste of the phenomenologist. What remains a shared conviction is that anything that is given, requires a certain mode of givenness that is bound up with it. To inquire into these modes of givenness while givenness is happening, is phenomenological “style,” instead of applying abstractly acquired tools and frameworks to a topic and thereby adjusting (and petrifying) it. Having said that, “modes of givenness” and “correlation,” certainly also give the beginning phenomenologist an open framework that she is called to adopt and develop further: that of the what of the given (ontological regions of phenomena), correlating to the how of givenness (different types of cts, activity/passivity, perception, body, affectivity etc.) and the whom of givenness (subjectivity, self, intersubjectivity, anonymity etc.). Furthermore, the category of meaning (you can also call it intentionality, transcendence, operativity), which comprises this whole relation, is a central methodological category. For the question how meaning comes about, phenomenology uses the term “constitution” – which does not yet imply the politically much dreaded and criticized “sovereign subject” but can also mean passive bestowal, dynamic interrelatedness, coconstitution, ex-cendence. These are some main cornerstones that have been described in enlightening details elsewhere and that one can take up and practice – which is, as all practices, always a bit like learning to “play” an instrument and not merely “apply” it.
But what seems to be crucial is also what one chooses as one’s phenomenon, as the subject of interest. What one sees or comes to see as his or her phenomenon. There are historical, political, cultural, subjective, personal relativities to this selection and visibility. All of these admitted conditions do not preclude scientific integrity or accurateness. Rather, they allow for different perspectives on an issue or even for the discovery of a yet unseen phenomenon. Whatever theories will be developed, they will always have to prove their claims in intersubjective critique and justification – another general conviction of phenomenology. If we look, for example, at the history of phenomenology of law, we can get an idea of how many aspects the phenomenon or field of law actually has (a challenge not only for phenomenology but philosophy of law in general) and how the choice of phenomenon relates to the method taken.
Adolf Reinach, to begin with, puts the social act of promising in the center of Civil Law which he inquires with an eidetic and correlational analysis, investigating the essence of the promising act and its correlate, the appeal. The legal positivists Fritz Schreier and Paul Amselek are interested in how law is given to the legal theorist and therefore look at the correlated act-types. Gerhart Husserl locates the Being of law in its validity and hence develops a transcendental theory of intersubjective recognition and validity-constitution; later on, he becomes intrigued with the experience of law, its temporality, its givenness to judges, laymen, and professional users, and turns to a more lifeworldly and existential analysis. Alfred Schütz, influenced by the methods of Edmund Husserl, Hans Kelsen and Max Weber, sees legal theory as a science of normative ideal types that are applied to the lifeworld like abstract schemes. Simone Goyard-Fabre, by contrast, emphasizes the ambiguities of law as a lived and even incorporated category of social life on the one hand, and its abstract normative forms on the other hand, finding her resources in Merleau-Ponty’s methodological approach beyond empiricist and intellectualist preconceptions. Levinas is interested in the basis of human rights which he methodically traces in our responsibility to alterity. Waldenfels regards the phenomenon of order as crucial and turns to a structural analysis, which shows that order essentially produces in- and exclusion and thus the extra-ordinary as a surplus, to which the order in turn “responds” and by which it is constantly irritated and challenged.
Even these shorthand descriptions show that there is definitely not one intellectual project called “phenomenology of law” but a plurality of approaches, and that it would not make sense to lump them together under one methodological orthodoxy. The phenomenon inquired correlates with the method and, eventually, shapes the respective concept of law. However, it is also possible that one has first acquired a “way of seeing” (a fair translation of the Greek word “theoria”) through engaging with an exemplary methodological approach that now opens up perspectives on a different subject. Phenomenological inquiry works both ways. Our short look on the history of this pluralistic branch of phenomenology gives a good example of how futile it would be to prescribe the one and only correct methodology. What we can nevertheless identify as a sort of family resemblance, is that phenomenological investigations are attentive to modes of givenness, and thus to experience, subjectivity, intersubjectivity, appearance, world, and meaning. Although these terms seem to indicate a more substantial than methodological orientation, their interconnectedness points to the essential but dynamic methodological framework of phenomenology that is correlational, coconstitutional, and interrelational and that has been articulated as the triangle of “subjectivity – intersubjectivity – world” (cf. Zahavi 2001). These are methodological orientation points rather than a strict manual and they ask from the phenomenologist to be further developed as she continues her specific inquiry (written below).
1.3. Is phenomenology descriptive, responsive, or both? How is this reflected in methodology?
One important question for normative disciplines like political or legal theory is if the method in question is purely descriptive or can be used to justify norms. Phenomenology does not fit easily into this dichotomy. To be “descriptive” is a phenomenological ethos that aims to refrain from deforming the phenomenon methodologically, as described above. This does not rule out normative inquiry at all. If the description of a phenomenon, like the ethical encounter with the other, or the social act of the promise, implies ethical or even legal normativity, the phenomenologist will exactly turn to that. Waldenfels therefore described phenomenology as a “responsive” method. On the one hand, this means that it often uncovers a certain protonormativity within certain acts or practices. For example, to be addressed puts the addressee in the position to respond. She cannot choose. Even if she does not respond, this will be a response. We can regard this as an implicit normativity that is revealed in the description of the phenomenon. Furthermore, our whole apparatus of perception, guided by habitualized expectancies, horizons etc. can be described as operating with an implicit, historically and culturally acquired normativity. To describe these workings can be a powerful tool for critical and political inquiry by tracing the inscriptions of power into our very basic modes of bodily being and perception.
On the other hand, the responsiveness of the phenomenological method turns onto the method itself. It is hence the method itself which is questioned by the encounter with the phenomenon and which is called to answer, by transforming its tools and becoming sensitive, for example, to issues of alterity. This is most famously done in Levinas’ phenomenology of alterity which transforms phenomenology into an ethics as “first philosophy,” thereby turning around such important methodological notions like intentionality (into “counterintentionality”) and shifting the theoretical interrelatedness between subjectivity, intersubjectivity, and world to an ethical structure of responsibility entailing the disrupted self, the other, and the third. Phenomenology thereby doesn’t present itself as a neutral method but lets itself be questioned and disturbed: The appeal to responsibility as well as the “cry for justice” (Levinas 1991, 185) are now, as it were, not a duty imposed on phenomenology from outside, but something that springs from the very description of the phenomenon itself. Hence, the critical work that phenomenology can do concerning, for example, issues of equality and emancipation, is not to take them as abstract normative concepts (that might motivate a certain critique from outside), but to demonstrate and analyze their basic meaning on an experiential, sometimes proto-normative level (cf. Loidolt 2018b).
But does this normatively engaged view not interfere with what Husserl and Fink called a purely describing and “disengaged transcendental viewer”? Before one accuses Husserl of a disengaged view, one should keep in mind that, first, his ethical and normative considerations are primarily conducted in the “personalistic” and not the “transcendental” attitude (Husserl is actually quite a good example of a phenomenologist who explicitly shifts attitudes with the subject because the matter requires it); and that, second, even transcendental phenomenology itself is a deeply critical project, namely that of criticizing the objectivism and reductionism of modernity, as Husserl (1970) extensively argues in the Crisis. This brings me to my third basic question (written below).
1.4. What is the relation of our contemporary investigations to the phenomenological tradition or “classic phenomenology”? Should it be included or rejected?
The fact that many of the later phenomenological approaches (roughly since the 1970s) use the prefix “post” in order to characterize their endeavor, seems to express a desire to relate to phenomenological thought on the one hand, but to take a distance from “classical phenomenology” and its “transcendental subject-philosophy” or “metaphysics of presence” on the other hand. Ironically, this seems to be the movement of phenomenology itself, no matter if “classical” or “post.” Since 1913 (the publication date of Husserl’s Ideas I), it has been a good and cherished phenomenological tradition to distance oneself from Husserl and his transcendental project, but nevertheless to refer to him and modify his approach in the name of the phenomenon – the “early phenomenologists” were the first ones to do so, Heidegger followed in his own way, and so on. The dialectical antithesis in this dynamic movement is that there are so many misunderstandings in the interpretation of Husserl’s works and, additionally, a whole universe of unpublished manuscripts that has revealed several different and still coherent “Husserls” so far, that defenses of Husserl could also always go beyond the official doctrine and creatively present a new side of phenomenology – Fink was the first one, Merleau-Ponty followed, and so on.
What to do with these scholarly debates? My advice for political and legal issues would be a pragmatic one: to work productively with the tradition, without necessarily getting caught in specialists’ disputes, but also without just superficially repeating prejudices and producing caricatures one does not even want to take the time to account for. A second advice would be not to straightforwardly see a teleology in the phenomenological tradition. Political and critical thinkers should be especially aware of this point: A later approach that criticizes an earlier one opens up new perspectives, but to equate this with “progress” that makes the earlier perspective simply obsolete, seems philosophically a little naïve and precisely gives up on a plural-perspective view.
Let me add one comment on the disputed methodological approach of “transcendental phenomenology” here: Dan Zahavi (2019) argues in this volume that it is “safe to ignore the epoché” in applied phenomenology. I think this can safely be extended also to political and legal issues – even if they are not “applied phenomenology” at all but pursue a deeply philosophical project. The reason is not because I simply agree with the often quoted and seldomly demonstrated statement by Merleau-Ponty about the “impossibility of a complete reduction” (Merleau-Ponty 2005, xv). Rather, the project of a reconstruction of world-constitution through transcendental intersubjectivity from its basic passive and genetic grounds is such a multi-layered, complex endeavor that Husserl himself, when thinking about norms, law, personal interrelations, group persons, the state, etc. very often just omits it and directly turns to the personalistic attitude – a part of the natural attitude – and eidetic analysis. This does not mean that he wouldn’t claim that everything finally must have its place in the big transcendental project. But the most interesting things he and other phenomenologists have to say about ethical, political, and legal issues actually arise from a direct engagement with the phenomena that does not worry too much about the transcendental reduction. Furthermore, I think it makes sense to keep the specific operation of the transcendental (or phenomenological) reduction clear: it is a “bracketing” not just of anything or everything, but very explicitly only of the “general thesis of the natural attitude” (Husserl 1982, §§30-32). And this means that the only thing that is “bracketed” – in the sense of not actively affirmed but just “viewed as such” without “joining in” – is the passive ongoing judgment concerning the independent existence of everything I perceive, and thus the world. (So, again, it is importantly the judgment of existence that is bracketed and not the world itself). The term “bracketing” is often used in so many and many confusing ways that it loses its methodological sharpness. If it means that the “world” is bracketed, it is far away from Husserl’s project and indeed internalist and introspectionist. If it just means that I focus on this and that or that I try to get rid of my preconceptions and prejudices, I do not think that it merits the very precise methodological term “phenomenological reduction.” Rather, this is simply what everyone should try to reflect on when investigating an issue philosophically.
Finally, what I would much more like to advocate for, is to use the term “transcendental” in a broader sense, namely in the correlational and inter-relational sense I have pointed out above, and to replace the talk of “phenomenological reduction” with “transcendental reflection”(which can have a much broader meaning). Heidegger, Sartre, Merleau-Ponty, Levinas (1969, 25) and many other phenomenologists who are not under urgent suspicion to defend a “sovereign subject” have done so. Furthermore, the term today rather signals an anti-naturalist position claiming “only” that inter/subjectivity, embodiment, historicity, and language are intrinsically and irreducibly involved in the production of meaning. This is a position most phenomenologists can agree on. In political matters, it still seems to be a sensitive issue to appeal to “the transcendental,” since many still hear a rigid Kantian tone in it, implying a constructivist “transcendental politics” far from worldly interrelatedness (cf. Salamon 2018, 10, 13, 15). But also in these matters, it is important to insist how different the notion of “the transcendental” or “transcendental life” in phenomenology is in comparison to a Kantian, conceptually based notion. I would, therefore, welcome further elaborations on the specific historistic, genetic, and generative aspects of transcendentality in phenomenology (cf. Merleau-Ponty 2005, Steinbock 1995, Crowell 2001) that perfectly fit into the project of deconstructing a Cartesian or Hobbesian “sovereign” subject-conception while, at the same time, they are able to maintain a strong anti-naturalist position. No one is nailed down to a strictly Husserlian project by the term “transcendental.” And yet, using it, enables one to relate, also with critique, to the tradition of Husserl’s criticism of objectivism in the Crisis. A relation to the phenomenological tradition can thus be as fluid and dynamic as phenomenological analyses themselves.
1.5. Methodological challenges for phenomenology in the domain of normative orders and further tools to tackle them
The second part of my considerations now rather speaks to fellow researchers who share my interest in developing methodical guidelines and tools in order to tackle the broadly framed field “order, experience, and critique.” I try to identify what I take to be the most important methodological challenges, give some concrete examples for it, and will propose a phenomenological framework at the end of this section that I hope can be useful for further analyses. But let me also be clear that I do not think that phenomenology is a universal method to just explain everything. Some issues, like for example complex and abstract institutional systems (think of European law or globalized capitalism) are better explained by other approaches. I believe that it is very important to reflect on what phenomenology can do and what it cannot do – and also does not have to do. Having said that, I am convinced that in the current theoretical landscape a methodically grounded and differentiated approach to the experiential dimension of normative orders is urgently needed. Phenomenology has its strengths here and should positively face the challenges other approaches – and their difficulties – have confronted us with.
1.6. Constitution – Sub-ject – Structures
Power and institutions produce subject-positions and possibilities of action, but they also manifest themselves in the lived experiences of these subjects – and eventually, they can only be changed by them. The challenge of theory building at this point of intersection is to integrate these different insights also methodically. For phenomenologists this requires and extra methodological reflection, since their core notions of experience and subjectivity have been criticized heavily in this context. Even if the theories of Habermas (1984), Foucault (1981), and Luhmann (1995), do not have much in common, in all of them experience is only ascribed a minor role and even regarded with suspicion. Rational discourse, as found in Habermas or Apel, aims at justifications that are often brought about by formal procedures; discourse, as conceived by Foucault, produces and forms subject-positions and subjects’ corresponding experiences; while Luhmann’s systems theory, per se, prioritizes systemic structures over experiences. All of these general theoretical assumptions result in specific conceptions of normative orders and the (non-existent or unimportant) place of experience in it. Foucault’s argument, which regards experience as a “discursive effect” has been especially scrutinized by feminists (Butler 1990, Scott 1991) who endeavored to counter essentialist accounts or claims that there was something untouched and untouchable “outside” discourse. While these important criticisms from the 70s to the 90s have been tackled at a general level and have given rise to a renaissance of refined phenomenological approaches towards experience (Young 1980, Zahavi 1996, Heinämaa 2003, Oksala 2016), the specific issue of societal structures and normative orders is still dominated by theories that tend to reduce experience to discursive constellations.
Phenomenology could therefore make a much-needed contribution to these debates by focusing on the experiential dimension in a way that incorporates and even deepens these insights. Let us take the example of law. Influential post-structuralist critiques of the last decades (Menke 2015, Butler 2004, Agamben 1998) have helped us to understand how law “produces” subjectivities and expresses power formations. Yet, a positive articulation of what “being through law” amounts to is still missing: the importance of legal frameworks for being a self, for being with others, and for being in a political community. A phenomenological thesis could be that law is not just an instrument or tool by which we realize our intentions. It expresses and mediates our individuality in modern society where human actions are to a large extent realized through formalized legal categories. Such legally formalized actions are in no way existentially trivial. On the contrary, they are in many ways the kind of actions through which we come to express who we are. Furthermore, there is “something it is like” to act within these structures, meaning that this yields specific experiences of ourselves, the world, and others. By paying heed to the ontological and existential dimensions of law we come to recognize that a formal system of law always also expresses and mediates – or fails to express and mediate – our individuality in a common world.
Important studies of the last years (Gündogdu 2015, Borren 2014, Ahmed 2006) that have already explored this terrain have very often started with the negative, privative experiences—a lesson that is to be learned, for example, from the “classic” Hannah Arendt who famously stated in her analysis of the condition of refugees and stateless persons that a deprivation of rights manifests itself “first and above all in the deprivation of a place in the world which makes opinions significant and actions effective” (Arendt 1973, 296). The existential significance of realizing oneself through the medium of law is hence revealed most clearly in its absence in zones of legal transition where people’s legal status is negotiated and changed. Concrete experiences of the loss of rights are often expressed in existential terms: not just as a loss of access to basic necessities, but as a loss of belonging, which Arendt called “worldlessness.” I take Arendt as an example for a “best practice” model and a provider of important concepts here. But one could also think of other phenomenological authors. What is crucial, is that a phenomenological framework allows one to conceive the workings of structures, orders, procedures etc. as a “making and unmaking of world” (cf. Scarry 1985, Günther 2013, Ferrari et al. 2018, 6f.) for the concerned subjects. To describe this process by drawing, on the one hand, on existing empirical documentation of the lived experience of the loss of rights, and, on the other hand, on the rich phenomenological framework and tools available for description and analysis, is one important way of doing phenomenology in these current debates.
Another field where an investigation of experiences within pregiven socio-technological structures and orders is definitely a desideratum, is our online behavior in the so-called “digital lifeworld,” from communicating in social networks, to presenting oneself on a homepage, up to being shamefully exposed on the net. To understand how these practices and experiences constitute whole “worlds” and spaces of meaning in which we move on an everyday basis, a phenomenological investigation is needed. Perhaps not surprisingly, sociologists Nick Couldry, Aristea Fotopoulou, and Luke Dickens (2016) have, therefore, recently called for a “phenomenology of the digital world.” This “novel approach” promises to provide “research that recognizes people’s ongoing reflexivity about their conditions of entanglement with digital infrastructures” (Couldry/Fotopoulou/Dickens 2016, 124). Furthermore, it renders insights into how deeply digital infrastructures now impact on a “sense of self from the image of our self that others reflect back to us in interaction” and thus on technological conditions “through which social actors, increasingly, come to know themselves” (Couldry/Fotopoulou/Dickens 2016, 124). A phenomenological method in these new contexts will have to consider the multi-conditionality of experience and has the task to make the world-and meaning structures graspable that emerge from the respective experiences and practices.
1.7. Experience and normativity
Another methodological challenge that relates to one of my “basic questions” in the first part is to clarify the relation between experience and normativity. Phenomenology, I contend, has the potential to elucidate this relation as a dynamic and reciprocal one. Dominant approaches in the field of social and political theory have either maintained an empiricist dichotomy between “is” and “ought,” where experience is a psychological datum or episode; or they have viewed, as mentioned above, experiences as products of power structures. In both cases, the relation between experience and normativity is somehow external or even disconnected, which manifests itself also in methodological difficulties.
Let us take the example of the public sphere for this issue, whose “structural transformation” through mass media and now the internet continues to be discussed in political and critical theory. In the last few decades, experience in the context of the public sphere has increasingly been addressed by social psychology and other empirical research. But as Habermas (1991, §24) has already critically argued, it is the social-psychological conceptualization and vocabulary itself that, in a positivistic fashion, levels down “the public” to “social groups,” and “public opinion” to “expression of an attitude,” thereby losing grip on the politically crucial and demanding concept of a public sphere. The public is not just a “group” and the opinions formed in public discourse are not just mere “attitudes” or “beliefs.” Hence, while a normative concept of the public sphere looms large in the principles of our democracies, at least as a “constitutional fiction,” the dominant discourse obviously lacks an understanding of how to scientifically describe politically relevant and normatively significant lifeworld experiences.
This problem is continued in today’s analyses of “net behavior” where social psychology and game theory have definitely helped us to understand how informational cascades, boom-thinking, bubbles, bystander- and bandwagon- effects can emerge out of and are increased by the technologies of algorithmic selection (Hendricks/Hansen 2014). But there is still a deep theoretical unclarity as to how these structural patterns produce experiences and spaces of meaning; and how these experiences relate to the inherent normativity in the concept of the public sphere. Take the discussion on algorithmic pre-selection enclosing us in “bubbles”: it is based on the implicit assumption that there are certain types of experiences that integrate or disintegrate us with what is taken to be a functioning public sphere. Openness, plurality, and confrontation with dissent seem to be crucial features here. But contemporary socio-psychological or informational theories cannot cash out these normative expectations, since they do not possess an account of how experiences constitute public spheres in the first place. The socio-psychological approach alone hence cannot answer the question of what an experience of the public sphere is supposed to be and whether there is any inherently normative potential to it. Answering this question, however, is the precondition for understanding how in/exclusions as well as democratic potentials show themselves on the basic level of human interaction. And this is where phenomenology can play its part. The methodological framework I propose in the final step shall serve as a means to elucidate and explain how societal structures and norms both condition our experiences and are conditioned by them and how this brings forth a “world,” into which we can integrate or from which we are excluded.
1.8. A methodological framework for analyzing spaces of meaning
The phenomenological approach has plenty of resources to tackle both challenges mentioned above, starting with the rich methodological resources of classic phenomenology, such as the eidetic analyses and correlation analyses of constitution theory (Husserl, Scheler, Stein) up to the hermeneutic analysis of existence and being-in-the-world, of bodily being, and intersubjectivity (Heidegger, Merleau-Ponty, Sartre).
“Experience” is thereby understood as a rich and complex term. The basic understanding is that experience is the medium which opens up a “world” to us, in which we live on an everyday basis and develop understandings of ourselves, others, and the world. As far as the relation between experience and normativity is concerned, the key idea is that norms are embedded in contexts where they make sense and that sense-making and contextualization take place at the experiential level, where we are engaged in situations that matter to us in one way or another. Hence, these experiences and practices are not merely readymade for empirical registration within already established conceptual grids. In fact, they occur in spaces where the social, the political, the economic, the public, and the private etc. are blurred and overlap with each other. Here we can describe meaning and normativity, as Merleau-Ponty says, “in statu nascendi.” Furthermore, experiences do not simply occur in an isolated mind/brain but involve the body and intersubjective relations, thereby forming a world which is to be described in its temporality, its spatiality, its affectivity, and its overall orientation.
Now, in order to specifically grasp the constitution of normatively loaded “spaces of meaning” (Crowell 2001, Loidolt 2017) such as politicized or racialized or economized spaces with their different conditioning aspects, I would like to propose a methodological framework, distilled from some basic phenomenological insights and the work of political theorist Hannah Arendt, that aims at systematically expanding phenomenological analyses to the field of the political. How is this done and what is a “space of meaning”? Also, how does this align with the analysis of experiences and practices and their relation to normativity? To shortly illustrate, let’s take the simple example of making music which allows to highlight some basic processes of meaning. Making music requires a space where acoustic sound waves can be heard (conditional space); it is an activity with which we make an experience: it orients a space with respect to where sounds can be heard better or worse; it orients time with respect to the duration or interference of tones. Thus, an inner logic of combination, rhythm, harmony and disharmony, volume, sound level and intensity etc. unfolds. Although this example is nonpolitical (for a more political example, one could think of Iris Marion Young’s paper “Throwing like a Girl” from 1980, relating to the case of gendered embodiment), it demonstrates that there is an inherent normativity in the structure of the related moments of conditional space, activity, experience of this activity, and emergence of a space of meaning. This inherent hermeneutic and normative framework of our activities is normally not explicitly noticed by us while we are engaged in a certain activity. Rather, it remains tacit but can be made explicit, which is the task of thought. By making use of this model, we can analyze different kinds of experiences and practices (“activities”) and can see which “world” or, more specifically, which space of meaning concomitantly unfolds. To conclude by giving a short insight into the toolbox that comes with this framework, let me summarize the main working theses of this theory of “spaces of meaning” (cf. also Loidolt 2017, 126-133):
1) A space of meaning is an oriented world with a certain temporality, spatiality, a certain form of intersubjectivity, a certain inner organization of sequence, rhythm, combination, and modality. These descriptive tools can be used to analyze experiences and practices.
2) Spaces of meaning are basic forms of how lived space and time can be structured. Arendt addresses these forms by seeking out certain types of experiences (like producing a work, laboring, or acting together) and paying attention to our visibility to others (public/private spaces of meaning). These categories are, for example, vital in analyzing the experiences of the public realm.
3) Because spaces of meaning are oriented spaces, they possess an inherent normativity in the sense that they allow for something to unfold in a better or worse or, simply, different way depending on how the activity fits into the particular context. This is relevant, since pre-orientation tends to prompt certain activities and deter others.
4) At the same time, spaces of meaning are always conditioned. This allows us, for example, to inquire into technological and socio-economic conditions that, thereby, indirectly shape experiences.
5) We always operate in “spaces of meaning”; there is no experience “outside” of such spaces. This amounts to the phenomenological insight that to be conscious/to be inthe-world is to find oneself in the midst and the medium of meaning, rather than to find oneself an element in a blind causal chain. This characterizes the rich notion of experience that is used in phenomenology, which is conceived as “world-opening.”
6) This description of a space of meaning or a “world” does not refer to an “internal” state of mind (as opposed to an outside world) or mere “behavior.” Instead, it looks at processes that make (or fail to make) certain “behaviors” possible. Arendt explicitly criticizes most of her contemporaries’ approaches for being concerned with “only a possible change in the psychology of human beings – their so-called behavior patterns – not a change of the world they move in” (Arendt 1998, 49). For Arendt (1981, 67), it is “this psychological interpretation of human existence, on which the social sciences are based” which passes over the basic phenomenon of being-in-the-world: the phenomenon of meaningful orientedness in a structured space.
7) Finally, what is also crucial about the emphasis on “spaces” is that, through a certain structuring, a certain “in-between” is created-like lines on a piece of paper shaping the arrangement of the blank spaces in-between, or like pieces of furniture shaping a room. This requires further reflections on conditions of appearance and possible forms of intersubjectivity. Intersubjectivity, i.e. the social world, hence plays an important role in actualizing, maintaining and altering spaces of meaning.
- Experience and Normativity: The Phenomenological Approach
2.1. The relation between experience and normativity
The relation between experience and normativity is often conceived as a hierarchical one. In practical life, norms and normative principles are supposed to enable us to evaluate the experiences we have, thereby leading us to actions that are consistent with these norms. In theoretical life, normative guidelines such as logical, methodical and argumentative reasoning help us to sort out which experiences are the ones that allow us to formulate true statements about the world. Both sets of norms, practical and theoretical, are taken to be gained from a faculty that differs from experience. In rather classical terms, this faculty would be called “reason” or “rational insight” as opposed to “sensibility” or “experiential input.”
This conception, employed by rationalists as well as by empiricists, can have problematic implications. One is that experience by itself does not tell us anything bout the world or about what we ought to do. The former has been famously criticized by Wilfrid Sellars as the “myth of the given.” The category mistake of this myth is that experience is conceived as blind, causally induced “input”, which is, at the same time, supposed to deliver justifications for our judgments. Without being part of the “space of reasons,” however, neither justification nor normativity can be achieved. This critique has generated two diverging positions in the contemporary debate that are interesting with respect to the different ways in which they reconceptualize the relation between experience and normativity: while the more Kantian-inspired John McDowell aims at reformulating the notion of experience as pervaded by rationality, the more pragmatism – and Davidson – inspired Robert Brandom denies experience (qua “causal impact”) any role in the normative practice of employing concepts by being committed to inferences.
But even if we look at the more sophisticated conception of experience in McDowell’s work, we can still see that it is conceptuality which warrants normativity, having always already structured what would otherwise be “blind intuition.” Like Brandom, McDowell hence sees conceptuality as rooted in language and linguistic practices and takes experience to be informed or formed by it. This Kantian picture has been criticized by phenomenologists for a long time, in the theoretical as well as in the practical field. Husserl, Heidegger, and Scheler have univocally objected that experience is not “formed” by conceptuality and therefore normatively permeated, but that it yields and carries these normative structures within itself thanks to its intrinsic feature of intentionality. In more recent times, Hubert Dreyfus has drawn on phenomenological accounts of experience by Merleau-Ponty and Heidegger to criticize McDowell’s notion of a conceptualizing mind as being too intellectualist and ignorant of the “phenomenology of bodily coping.” By this, he understands the immersed and non-conceptual response to affordances which, according to the phenomenological position, opens up a world in the first place.
Without going into this debate, known as “The Myth of the Mental,” I would like to explore what characterizes phenomenological approaches to the relation of experience and normativity. Although these approaches are manifold, there is one common trait which unites them: normativity is gained from experience. Or, to put it more precisely: normativity is explained as emerging from different features and structures of experiencing and of that which is experienced. What this means concretely will be spelled out in the next sections. Generally, it can be claimed that for phenomenologists, there is no faculty “beyond” experience. The very broad notion of experience that is at work here implies that everything we live through, be it the perception of an airplane crossing the sky, an abstract thought, or concrete interaction with others, is something we experience. Consequently, concepts as well as norms are rooted in this intentional relation to the world. Experience is not conceived as causal, blind impact but as presenting us with something: objects and subjects in the world, the world itself in its infinite horizon, our thoughts and feelings, mathematical and eidetic insights, etc. This acquainting or presenting mode where something is “given” or “appears” is the core feature of experience which Husserl called by the Brentanian term “intentionality.” All phenomenological claims about normativity can be traced back to the intentionality of experience which has been reformulated as being-in-the-world (Heidegger), as transcending (Heidegger, Levinas), or as the operative intentionality of our lived body (Merleau-Ponty) – without losing its general characteristic of being responsible for our fundamental openness to the world, which is always already a normatively structured openness. However, there are very different kinds of givenness: the way I experience the glass of water I am drinking is different from the way I appreciate the value of freedom, and again, different from the way I experience the alterity of and responsibility for the other. Consequently, there are also different kinds of normativity to be gained from an analysis of intentional experience.
The most important distinction we know from the tradition is that between theoretical normativity, the normativity of truth, and practical normativity, the measures we can live up to or fail to live up to. The latter can either be relative to the goals I pursue, or they address me categorically with what ought to be done. Kant famously decided to argue for an embeddedness of normativity within experience through the concepts of the understanding in the theoretical field, whereas in the practical field, he fiercely rejected that a pure and universally valid moral principle could ever be gained from experience. This, of course, is only consequent, given that for Kant all normativity is located exclusively in reason and understanding. The absolute ought that should guide my actions can never be deduced from the mix of sensible affection and concepts that makes up “experience” in the Kantian sense.
Phenomenologists, by contrast, do not think of experience along these lines. Instead, they maintain that normativity springs from experience in both cases (theoretical and practical). This not only takes us beyond the dichotomy of rationalist and empiricist approaches in the practical field. It also makes us perceive the difference between “is” and “ought” in a new way. To spell out what an experience of an ought is (which Kant certainly did without acknowledging it) blurs this difference. At the same time, it holds that experience is not just contingent affection but that there are a priori structures that make it an experience of this sort.
In the following, I will systematize and spell out three different forms of normativity that all relate to our engagement with the world and others (hence, I will not discuss the normativity of logic or other ideal entities as elaborated by Husserl in the Logical Investigations). I start out with the normativity in perception and bodily experience. This involves a discussion of the experiential relation of mind and world I invoked above. Then, I move on to another kind of normativity in experience that confronts me with an “ought.” Finally, I take a look at how the proto-normative and normative structures gained from experience become norms with a “critical” function.
This means that they become norms which we actively apply to our practical lives and which we constantly have to re-examine. I do not claim to give an exhaustive picture of the forms of normativity phenomenology can disclose. Instead, I see this as a first attempt to examine how different forms of normativity emerge from our engagement with the world and others, how they hang together, and how they potentially interrupt each other.
2.2. Forms of normativity and corresponding structures of experience
I will call the three forms of normativity I address “operative normativity,” “imperative normativity,” and “critical normativity.” My aim is to show how each of these forms is rooted in a respectively different kind or structure of experience. This will give us a panorama of phenomenology’s conceptions of experience with respect to questions of normativity. Certainly, one can question to which extent the different phenomenological authors and approaches I interweave here can be interwoven at all.
I believe that they should be brought into dialogue since they work out different registers of experiences which are all present in our lives. One register should not be cancelled out in favor of emphasizing the importance of the other. Instead of presenting a unified account of experience and normativity, I hence opt for a pluralistic approach.
2.3. Operative normativity
Operative normativity guides our everyday practices and is also acquired by a practice: the basic practice of bodily perception and movement, in which others are involved from the very beginning. The claim here is that already on the passive level of bodily spatial orientation a meaningful embeddedness is at work that implies normativity: there is a successful and a non-successful way of responding to affordances that are simply there by walking down a crowded street. Or, to give a genetically relevant example emphasizing the crucial relevance of intersubjectivity for being initiated into meaningful practices: there are successful and non-successful ways of playful interaction in joint attention between a toddler and a caretaker. The cases of passively responding to affordances have been spelled out extensively by pragmatist interpreters of Heidegger’s and Merleau-Ponty’s work, first and foremost by Hubert Dreyfus and his students. Many of their discussions, however, revolve around an argument that rejects the picture of a detached “Cartesian mind” and aims to replace it with the embeddedness of “mindless coping.” Unfortunately, the continuity of the phenomenological tradition concerning the issue of normativity and experience got obscured in this debate, since Dreyfus can only see Husserl as “the Cartesian” and Heidegger and Merleau-Ponty as “the pragmatists.” However, there are far too many investigations by Husserl on passive bodily immersedness and the passive constitution of normality to make this dichotomic configuration in any way plausible. Therefore, I suggest integrating Husserl’s, Heidegger’s and Merleau-Ponty’s positions to get a clearer picture of why it is so crucial that phenomenologists conceive experience through intentionality and thereby account for its inherent normativity.
The intentional relation is world-opening and can only be world-opening and world-presenting by being, from the very first moment, a meaningful relation. Meaning is not something which is beside, beyond or behind the thing itself but simply the way it is consciously present. There is no “outside” of this “space of meaning,” as Steven Crowell has called it. Crowell’s interpretation of Heidegger, which also draws on Husserl’s transcendental phenomenology, emphasizes that meaning and understanding are intrinsically intertwined with normativity. A meaningful practice, like drinking coffee from my cup, is something I can fail at. It holds an inherent measure. The normative embeddedness goes even deeper: I only directly see a cup of coffee on the table (and not a yellow patch before a brown patch or an unknown object), because I understand what it is, which equals being embedded in a certain (bodily) practice. Heidegger calls this the “as-structure”: to always take something as something. This entails that we are always already embedded in a meaningful whole: a “world.” In Heideggerian terms, any form of significance of worldly objects is disclosed through practices that are inherently normative. Significance is thus bound up with normativity and with a holistic structure called “worldliness” – which we disclose, to add Merleau-Ponty to the picture – with our living and perceiving bodies. Heidegger replaced the term of intentionality (which Merleau-Ponty again reactivated) with being-in-the-world, since he wanted to account for the dynamic structure of our experience as always being ahead of ourselves. Heidegger takes this to be ontologically rooted in the temporal structure of Dasein, which is more a “project” than a “subject.” However, what he retains from the concept of intentionality, just like Husserl, is that it is experience itself that is disclosive of the world.
Now, in Husserl, operative normativity can be traced down to the most basic features of intentionality, which he already develops in the “Sixth Logical Investigation”: the structure of signitive intention and fulfillment. A “signitive intention” meaningfully intends something, however the intention is “empty,” and not intuitively filled. By putting myself in the fitting epistemic situation, the empty intention can become intuitively fulfilled—or not, depending on whether the signitive intention “got it right.” A very basic example illustrates that Husserl does not only mean high-level cognition-functions here but something that happens in perception all the time: for example, in the simple perception of a chair or a tree, signitive intentions passively anticipate that there is a backside to the presented perspective I see, and even that this backside looks like such and such (ergo, these signitive intentions are not totally empty but pre-structured by the experience and original givenness that has already occurred). By going around the chair or tree, these intentions will be fulfilled or disappointed. They can be deliberate, attentive signitive intentions but do not at all have to be. Rather, this is just the way we smoothly and normally perceive. Mostly, we only realize that these intentions were at work at all if they are disappointed. For example, when we are surprised that a billiard ball is not round and red on the backside, as we expected (given its front), but rather green and dented. The condition of being able to be surprised at all is the minimal expectation inherent in the signitive component of intentionality.
For Husserl, this movement of intending and fulfilling, and thus of a certain normativity in intentionality itself, permeates the whole of intentional life. In his later genetic phenomenology, he spells out this basic motivational structure of experience in what he calls the “pre-predicative” sphere. The body plays a constitutive role here, as do the intersubjectively constituted forms of “normality” and normativity we grow into by sedimentation and habitualization. Husserl’s statement “I am what I am as an heir” speaks for his awareness of the culturally, historically, and linguistically preformed nature of experience. However, this formation is only possible because intentional experience itself is guided by “expectancies of normality,” by types, models and patterns that were built up in our previous experiences.
Normativity hence comes from the experiencing subject – but it is also dependent on the experienced object. This not only concerns the fulfillment of a signitive intention that does not depend on me but on the real properties of the object. In addition to this kind of objective epistemic normativity, a whole system of optimal and less optimal forms of givenness is constituted in the experience of an object. Consider, for example, listening to a violin playing while moving in a room, then out of it, and then in again. The objectivity of the played tune, the fact that it is “out there” and not in your head, is constituted precisely by its becoming louder and quieter in relation to your movement and in relation to the room. This constitutes whole systems of normativity in the sense of “optimal givenness.”
Finally, this basic structure of experience itself allows one to comprehend how norms and reasons can emerge from it. In contrast to norms that are imposed on experience in order to measure it, phenomenological approaches take the measures as well as the structure of measuring itself to originate in intentional experience. In a dynamic movement (which Husserl spells out in his genetic phenomenology), these measures again apply themselves to experience and have to prove themselves in experience through the structure of fulfillment and disappointment.
We can now also see why phenomenology does not fall prey to the “myth of the given” (if the similar vocabulary of the “given” and “givenness” might have suggested this). To speak about givenness in phenomenology does not at all mean to speak about an untouched piece of natural, causal input. On the contrary, it addresses the meaningful structure of appearance. Appearance is always appearance of something for someone. This space of appearance is, from the outset, a potential space of reasons: why?
Neither meaning, nor reasons, nor information simply occur, but they presuppose intentionality. When it comes to the question whether experience itself can hold reasons or not, to put all the weight exclusively on content (be it conceptual or nonconceptual), as done in contemporary debates, not only prolongs the problematic Kantian picture of a subject forming an unformed matter, it also ignores the phenomenological insight that no matter how structured, how conceptually “loaded” some “content” might be, if it is not consciously taken up as something – directly in experiencing and not in a belief-structure – it remains as meaningless as a structured carpet is in itself. For something to be information, it is not enough that it is just structured; there must be a conscious relation to it that takes it as information. Phenomenology thus urges us not only to look at the what but at the how of experience. Although McDowell wants to emphasize our “taking in” of the world, this aspect misses.
My claim is thus that the normative aspect constitutive of justificatory practices is not only there in concept use but already in the intentional relation to the object. Reasons do not add to the world by language or social practices. That the world is a “reasonable”/intelligible one (i.e., that we are, as McDowell says, “open to reasons”), is not just a language game we play. It must principally be prefigured in our very openness to the world. This is not to deny that we act out the world’s understandability by playing language games. It is to say that we are put in a potential space of reasons by experiencing in the first place.
2.4. Imperative normativity
Operative normativity does not confront us with an “ought.” In order for this new form of “imperative normativity” to emerge, a different kind of experience and experiential structure is needed. In the phenomenological tradition, it has often been described as the experience of a “call”: Heidegger famously speaks of the “call of conscience.” But also for Scheler and Husserl, a “call” is at the center of their ethics, namely in form of a “vocation” to which the person lovingly responds. Finally, Levinas explains the encounter with the other as the experience of having always already been called into responsibility.
But are these not very different experiences? It is indeed true that Scheler and Husserl speak of values calling me and affecting me as this unique person. For Heidegger, by contrast, it is Dasein itself issuing the call of conscience, demanding to become one’s own true self and to escape the fake moral complacency of “the they” (das Man). In Levinas’s case, again, it is the other that interrupts the self with a call.
One can hardly claim that vocational values, self, and other belong to the same category of being, let alone that they yield unifiable forms of experiences. However, my claim is rather that imperative normativity is instituted through a particular interrelated experiential structure to which all three cases belong: an affective encounter with something other than the (present) self, where a specific structure of the self is disclosed that it can fail at or succeed in. This makes ethical relevance possible in the first place – and thus the experience of a vocation and an ought. As especially Levinas is eager to show, subjectivity is permeated by alterity and is only instituted as a self by responding to the other. Levinas carefully demonstrates this by examining all sorts of experiences: the experience of caress, of time-consciousness, of affectivity, of the faceto-face encounter, of speech, etc. The common feature he identifies in all these experiences is that subjectivity is always there “too late.” This means that it is radically open in the sense of being interrupted and separated from itself. This confronts subjectivity with a withdrawal that cannot be articulated in terms of classic or existential ontology. Rather, the interrupting absence of the other presents itself as a trace to which only a “metaphysical desire” can respond. Levinas thereby describes how “the very node of the subjective is knotted in ethics understood as responsibility.”
Like in the previous section on operative normativity, it is essential to see that experience can only play such a central role in investigating imperative normativity, because it is conceived as the intentional openness of subjectivity – even if that conception is modified through the impact of analyzing the experience in question. One of Levinas’s central aims is to show how the classic notion of objectifying intentionality gets inverted by taking the encounter with alterity seriously. Since intentionality can never make the other “fully present,” it is ruptured in its return to the self. Instead of “getting a grip on the world,” it loses itself in the constant withdrawal of the other and fails in constituting the other as other. Thus, the only mode for appropriately encountering alterity is responding to the experienced appeal of its withdrawal, which means fully entering into the encounter with the other. For Levinas, this amounts to not being able to cease responding in a completely unreserved way, beyond oneself.
The openness to the other is thus different from the openness to the world. I want to claim that this difference is to be captured precisely in the different forms of normativity that are respectively instituted. Whereas the other summons me in the form of a command, my normatively loaded openness to the world allows me to pursue myself in (more or less trivial) practices I can succeed in or fail at: the practices of gaining knowledge, of catching the streetcar, of being a good parent, of riding a bicycle, of being my true self, etc. It should be clear that there is a decisive difference here: while the mentioned examples indicate a somewhat self-sufficient and self-related normativity (although very different in its aims), the normativity tied to the other happens in and as an encounter – in German, one could use the word “Widerfahrnis” which, in contrast to “Erfahrung” (experience), is something that resists me or runs against me as I experience.
In two recent papers, Steven Crowell has called for a “second-person phenomenology” to investigate this specific situation of being “the addressed,” and has elaborated on the normative significance that is instituted in the encounter with the other. Crowell argues that already in Sartre’s analysis of shame, the normative significance of the other is discovered. In the embarrassment felt before the other’s gaze, s/he is recognized as someone who judges me. Thus, others are not only there as transcendental co-constituters. Rather, I become “responsive to norms” through the concrete encounter with the other. However, Crowell also argues that Sartre fails to grasp the establishment of normativity correctly, because he still conceptualizes the situation from an “ontological” point of view (i.e., as a symmetrical encounter of two consciousnesses) and not, like Levinas, in a strictly asymmetrical first-person perspective. For Levinas, ethical experience is precisely characterized by being a radical experience of asymmetry: to be in the position of the addressed. Only from a first-person perspective converted into the position of the addressed – that is, the second person – can the appeal of the other be understood as a command, an imperative which comes “from a height” and which constitutes me normatively: “Thou shalt not commit murder.” This command does not limit my freedom in the factical sense – I can kill the other – but it calls my freedom into question normatively and so puts me under its obligation.
Since imperative normativity in phenomenology is frequently addressed through an investigation of experiential and subjective structures, it is often affective, passive, and proto-normative elements that play an important role. Levinas, for example, does not aim at sketching out a normative theory. Rather, he seeks to describe the fundamental structure of subjectivity in ethical terms. This neither generates a catalogue of moral norms, nor a moral principle like the categorical imperative. Hence, what I mean by “proto-normative” in connection to the term “imperative normativity” is that these analyses do not result in prescriptive judgments but rather take up a descriptive effort: that of capturing how the ethical or the normative can gain meaningful relevance for a subject in the first place. Or, to put it differently: How subjectivity is ethically instituted in the first place. To show this means to subvert the strict separation of “is” and “ought,” as the “ontology” of subjectivity itself is shown to transcend toward the normative (which is why Levinas ultimately rejects ontology as a possible approach to capture the ethical). The experience of being “second person” yields a phenomenology that explores how imperative normativity is possible at all, how we can be ethical beings at all—without yet coming up with a set of justified norms. This will be the task of the third kind of normativity I would like to address here.
2.5. Critical normativity
Finally, I come back to the sort of normativity I mentioned at the very beginning. It is a consciously employed normativity that has a guiding function rather than an operative one. It helps me to judge according to measures I have actively endorsed. Furthermore, it implies that not only my actions and convictions can be justified according to these measures, but that the measures themselves can be justified. This is why I call it critical normativity, implying not a static set of norms but rather the activity that constantly affirms or questions them. I have, in a more detailed study, tried to describe this constant demand for justification as the “dynamics of normative intentionality” which is genetically rooted in the basic structure of anticipation and disappointment, introducing the normative possibilities of “getting it right” or “getting it wrong.” Since even basic perception is never a purely harmonious and smooth process, but one that is irritated again and again by resistances, disappointments, and surprises, the question of justification slumbers at the heart of this basic activity. The experience of actively endorsing it amounts to a conscious and reflective engagement in the continuous movement of normative intentionality, unceasingly pushing the critical question further to its own measures that it employs. Both aspects, the critical activity as such, as well as the dynamics of justification are classic characteristics of reason.
For Husserl, a “phenomenology of reason” comes down to investigating different forms of evidences and the degree of justification they can provide (apodictic, assertoric, inadequate, adequate, etc.). Here again it is central to emphasize that justification for phenomenology occurs in experience and that it can only occur intersubjectively. Both elements are crucial and not to be substituted. Just to give a very rough account of a complicated matter: the experience of evidence is the experience of the intuitive fulfillment of the signified intention (both are intentionalities, so this is not a correspondence theory). Without this experience, a critical assessment of any statement by myself will not be possible. Moreover, my own evidences need to be assessed intersubjectively. Finally, since even apodictic evidences pass in time, and evidences concerning the world are by definition always inadequate, George Heffernan is right to speak of a “relativity theory of evidence” in the late Husserl. Justification is hence a constant and infinite process, one that accompanies the very process of experiencing and belongs to it.
The same holds for the practical field. What Husserl articulates as “critique” and “justification” in theoretical matters, he calls “renewal” in his ethics. Although his “Essays on Renewal” read like a perfectionist ethics close to a Korsgaardian approach and combined with the ultimate telos of anticipating an “ethical mankind,” one also has to consider his—until recently—unpublished writings about ethics. If one holds this together, Husserl can be taken as a good starting point for giving a comprehensive phenomenological account of normativity, starting with the very passive and affective experiences of a person up to her active critical engagement in leading a life according to justified norms.
As mentioned in the last chapter, the experience of a “call” is a strongly affective and passive one. In describing it, Husserl finds unusually drastic words, entitling it the “deepest center of the person,” the “deepest interiority of the I” that “instinctively” responds to the call, confronting it with an “absolute ought.” Yet, for Husserl this does not go without justification. He instantly adds that this affective and passive experience “calls me to new ‘self-responsibilities’ and ‘self-justifications’”.
I would thus like to claim that the experiential structure from which critical normativity emerges is that of actively answering to either a passively experienced call or a passively experienced disappointment. To be sure, disappointment in perception is a lot less urgent than experiencing an ethical call. As I have argued, the “ought” is only to be understood from experiencing oneself in the position of the “second person.” The question I have to leave open here is whether critical normativity in the theoretical field is in need of that “ought.” One prominent phenomenologist arguing in favor of this thesis is Emmanuel Levinas. For Levinas, all reason, theoretical and practical, as well as all justification, is to be traced back to the ethical responsibility for the other.
Levinas gives us a twofold answer concerning the genealogy and universality of reason: he claims that the imperative normativity of practical reason opens up in the other’s interrupting command (“Thou shalt”). Its critical normativity and universalizing capacity unfolds in answering to plural appeals, for which Levinas has coined the term “the third (party).” With the figure of the “third,” who is “other than the neighbor but also another neighbor, and also a neighbor of the other,” the cry for justice emerges and with it, the need for “comparison, coexistence, contemporaneousness, assembling, order, thematization, the visibility of faces, and thus intentionality and the intellect” – in short: “a copresence on an equal footing as before a court of justice.” The criterion of universalization, and with it, the capacities of practical as well as theoretical reason are hence invested by the relation of proximity to the other. This is why, for Levinas, universalizations must constantly let themselves be irritated and questioned in order to resist a closure or self-immunization of reason. In this sense, the universalism of reason is never enough; it is just as “reasonable” to let the experience of “proximity” speak.
Does this not make me completely heteronomous? – An urgent question if we are to speak about critical normativity. It seems that the Kantian setup of autonomy and heteronomy generally has to be rethought in phenomenological, and not only in Levinasian, terms. For Kant, the demand for autonomy, and thus, for a principled independence from experience with respect to moral judgments, is motivated by his conception of experience being contingent affection. Consequently, moral judgments informed by experience can only be heteronomous, contingent, and ultimately hedonistic.
We have seen, however, that phenomenologists propose a very different conception of experience, which is intentional and disclosive of a priori structures. Consequently, phenomenologists see the range of autonomy and heteronomy lying within experience itself, namely in how I relate to it: by mere passive affection or by taking an active stance toward it (Husserl); by being open and actively responding to that which manifests itself, or by fleeing it (Heidegger); by taking over myself or by veiling a situation (Sartre), etc. All of these “disclosing” attitudes do not come out of nowhere. They originate in normatively relevant experiences and are motivated by them.
In this sense, the phenomenologists’ focused attention on experience is precisely a break with the “natural attitude” and, by itself, an engagement with critical normativity from the standpoint of reflecting on experience itself. In fact, one could claim that many of the prominent phenomenological motifs – the transcendental reduction (Husserl), the distancing from “das Man” (Heidegger), the condemnation to freedom (Sartre), the evasion from Being (Levinas) – are connected with normative demands concerning theory and practice and with concepts of critique, renewal, and a consciously undertaken relation to our existence.
- Selecting Feasibility Constraints: the Circularity of Normative Criteria
In the last few years, scholars have paid growing attention to the impact of facts affecting the implementation and the content of normative principles and rules. Some kind of accordance between facts and norms is necessary in order to obtain feasible normative political prescriptions, and the feasibility is very often interpreted as a requirement of normative political theories.
However, currently there is not a commonly accepted formalisation of such a feasibility requirement. So, the prior purpose of the research is to establish a criterion suggesting which facts are feasibility constraints. The main problem of such an analysis is to find out a formal and adequate methodological rule to distinguish simple facts from facts that can be considered feasibility constraints. In order to solve this problem, two approaches have been suggested: the first approach introduces practical criteria for the selection of feasibility constraints; the second approach introduces normative criteria for the selection of feasibility constraints. In these pages, I will analyse and criticize the normative criteria that are used for the selection of feasibility constraints.
My aim is to show that normative criteria selecting factual constraints are methodologically circular given that they allow that the normative theories themselves define the features of soft constraints. So, I will hold that these criteria are vicious because they allow that morality interfere in the selection of factual constraints. I will conclude that normative feasibility requirements are not adequate. In order to hold this argument, I will consider the normative feasibility criteria suggested by Hahn and by Räikkä, that are the two main normative criteria to select feasibility constraints.
This part of paper is structured in three paragraphs. In the first paragraph, I will roughly introduce some fundamental notions used in the research about feasibility. The aim of this paragraph is to clarify some terms that I will use hereinafter. In the second paragraph, I will describe the Griffin/Hahn normative criterion for the selection of factual constraints. So, I will try to show that it is methodologically circular. In the third paragraph, I will describe Räikkä’s normative criterion for the selection of factual constraints. So, I will try to show that it is methodologically circular. Thus, I will suggest that practical feasibility requirements could be preferable because they do not collapse in this circularity.
3.2. Hard Constraints and Soft Constraints
As already introduced, the main purpose of the research about feasibility is to establish a criterion for the selection of relevant facts constraining the feasibility of normative theories. In order to understand which facts should be considered feasibility constraints, we should formalise an adequate feasibility requirement that normative political theories should respect. Such an aim is clearly meaningful because of the widely accepted idea that not any currently existing fact should be considered a feasibility constraint. So, normative political prescriptions should not conform with all existing facts.
Given the idea that there are facts that constrain the feasibility of normative political theories and facts that do not, a first distinction can be drawn between facts that are hard feasibility constraints and facts that could be soft feasibility constraints (Gilabert, 2009).
Thus, we consider hard feasibility constraints those facts that normative political theories should respect if they aim to suggest possible actions. That is to say, some actions are impossible to obtain for human beings at any place and any time because of certain facts of the world. So, a theory prescribing impossible actions is unfeasible at any time and place. Therefore, such facts of the world determining the distinction between possible and impossible actions are named hard feasibility constraints. Logic rules, physical laws and biological laws are usually considered hard constraints (Gilabert 2009). Therefore, we say that: if a normative political theory is be feasible, then it conforms with these facts (hard feasibility constraints). Thus, for example a prescription demanding to people to do both the action a and the action non-a is demanding a logically impossible action. So, it is unfeasible at any time and place. A prescription demanding to people to create aubergines from the vacuum is physically impossible. So, it is unfeasible at any time and place. A prescription demanding to human beings to stay alive forever is biologically impossible. So, it is unfeasible at any time and place.
Differently, any fact of the world that is not a hard feasibility constraint could be a soft feasibility constraint. Soft feasibility constraints could be: social facts, institutional settings, state of technology, psychological facts or other facts, but there is not an agreed definition of soft feasibility constraints. Then, in order to understand what soft feasibility constraints are and why they are, it is necessary to establish a criterion that enables us to distinguish between simple facts and constraining facts.
So, despite the most pre-eminent scholars agree about the relevance of certain hard practical constraints, it seems that they disagree about the choice of the best criterion to select soft constraints and distinguish them from simple facts. The analysis about the criteria to select soft constraints can be distinguished in two groups: there are authors proposing practical criteria (famously Jensen, 2009; Gilabert, 2009, 2011; Lawford-Smith, 2012; Gilabert-Lawford-Smith, 2012) and authors proposing normative criteria (Hahn, 2011; Räikkä, 1998).
Roughly, practical criteria suggest that facts influencing the success of a certain prescription are soft feasibility constraint (for that prescription). In other words, given a certain context characterized by certain facts, soft feasibility constraints of a normative political prescription x are: those facts influencing the probability or the (contextual) possibility that the prescription x be successfully implemented in that context, now and in a predictable future.
For example, let us consider a theory prescribing the implementation of a liberal-democratic institutional system. Let us suppose that we want to implement such a prescription in a context characterised by literacy low degree, dictatorship and very good climate condition. Then, let us suppose that: i) the literacy low degree makes people acquiescent toward the currently existing political system; ii) the dictator has a strong personal interest to preserve the currently existing political system; iii) climate condition does not influence any kind of regime. In other words, let us suppose that literacy low degree and dictatorship are facts influencing the probability that liberal-democratic institutions will be successfully implemented, and the climate condition is not. Given the practical criterion to select feasibility constraints, we should conclude that literacy low degree and dictatorship are soft feasibility constraints, and climate condition is just a fact.
Differently, through normative criteria, scholars suggest that only those normatively valuable facts can be feasibility constraints. Roughly, only normatively valuable facts are soft feasibility constraints. Thus, they hold that a normative theory is not conforming with soft feasibility constraints if only if it prescribes actions that cannot be performed without undermining the existence of certain normatively valuable facts. Of course, through these criteria, scholars themselves choose which facts are normatively valuable. That is to say, given a normative feasibility criterion, the feasibility of normative prescriptions depends from internal moral values (or principles) assumed or defined by normative theories. I argue that these criteria are methodologically circular. In order to avoid circularity, feasibility constraints should be selected through criteria that are independent from internal moral claims.
3.3. Griffin/Hahn requirement of feasibility
Griffin/Hahn requirement assumes that normative political prescriptions should not conform with all facts; normative political prescriptions should conform with hard practical constraints and other normatively relevant facts. The question is to define normatively valuable facts.
In Hahn, normatively valuable facts are those facts that are constitutive features of moral model of agent assumed in our normative theory.
Hahn (2011, p.150-151): “Griffin restricts what we can demand of a person to the capabilities this person would have if she were the kind of person we have reason to want her to be… an ideal that appears to be morally desirable in itself and that is feasible in principle [conform to hard constraints] might nevertheless turn out to be practically infeasible from the point of reference set by other normative ideas concerning the circumstances of ideal’s realization”.
In other words, if a theory is grounded on a certain moral agent model, it cannot prescribe rules of behaviour that are not conform with the features of that moral model of agent.
Hence, let us suppose that our normative theory X (from which will rise the prescription x) assumes the moral model of agent Ix. Then let us suppose that Ix’s actions are driven by the morally valuable motivations a and b. Then, the prescription x of X must respect: first, all hard practical constraints; second, the normatively relevant motivations a and b. Therefore, the prescription x cannot demand actions that Ix is not motivated to perform (given its features a and b).
For instance, let us suppose a theory assuming that agents are solidarity driven. Suppose that: first, the agent has an interest in her own well being that is equal to her interest in the well being of other people; second, the agent thinks that well-being is given by a certain amount of material goods and affections. In this case, any prescription must respect: first, all hard practical constraints; second, the motivational facts driving the actions of this moral agent model. For example, the fact that this agent is motivated to share her material goods and affections with all other people.
Intuitively, I think that we would not obtain a feasible theory if we formalised a set of prescriptions in accordance with this model of agent, given a common sense definition of feasible as something capable of being successfully used. Even if prescriptions were in accordance with this model of agent, it would be difficult to say that they would be feasible, because the model is not corresponding to reality. Anyway, I am not going to analyse this intuitive comment.
I try to explain why this normative requirement leads to circularity. Feasibility requirements define which conditions a prescription must respect in order to be implemented in the external world. Griffin/Hahn criterion to select soft feasibility constraints is dependent by features of the moral model of agent assumed by the theories themselves. That means that: in order to be feasible, a normative theory should conform with features of moral model of agent assumed by the theory itself. In my opinion, this requirement warrants internal coherence between theoretical assumptions and prescriptions of the theory. However, it leads to a methodological circularity between internal parts of the normative theory and external constraints.
Precisely, I hold that this normative feasibility requirement brings to a circular relation because: in order to be implemented in the external world, normative prescriptions must respect some facts of the world; however, in order to be assessed as feasibility constraint, a fact of the world is relevant because of a theoretical assumptions regarding the moral model of agent.
Formally Hahn/Griffin argument could be this:
- The theory M has to conform with soft feasibility constraints;
- A fact is a soft feasibility constraint iff it is a constitutive feature of the moral model of agent;
- The theory M defines in its assumptions the moral model of agent (selecting its features);
- Therefore, the theory M indirectly defines soft feasibility constraints;
- Therefore, the theory M has to conform with facts that theory M defines in its assumptions.
i) Normative theory M should conform with soft feasibility constraints;
ii) Only those facts assumed by normative theory M are soft feasibility constraints;
iii) Therefore, normative theory M should conform with those constraints assumed by normative theory M.
This is the circularity of Griffin/Hahn requirement.
3.4. Räikkä requirement of feasibility
Räikkä’s criterion to select feasibility constraints is grounded on the notion of moral costs of changing (Räikkä, 1998, pp. 33-38). The moral costs of changing are those costs in terms of values that could emerge when we try to implement a normative political prescription in the external world.
Räikkä thinks that when we try to implement a certain normative prescription we could undermine the existence of certain facts. Some of these facts are just facts, some other facts could be normatively valuable facts. Normatively valuable facts are facts that we consider values bearers (e.g. human life etc.). Thus, when we decide to implement a certain prescription we could undermine the existence of normatively valuable facts, when we undermine the existence of these facts we have moral costs. So, given that we pay a moral cost, these facts should be considered feasibility constraints.
For instance, let us suppose that: in order to build a street that enables people to go to a water spring, Dakar City Government coercively prescribes to destroy lands of other people (without owners approval). In this case, the prescription produces moral costs since when we consider normatively relevant the fact of private property. Therefore, Räikkä’s criterion suggests that: the more a prescription conform with normatively valuable facts, the more it is feasible. (In other words, the more a prescription does not undermine the existence of certain normatively valuable facts the more it is feasible).
I try to show how Räikkä’s criterion works. Let us assume the set of facts F: [i, m, e, c]. Such as; m or c neutralization produces moral costs; i or e neutralization does not. We can say that m and c are feasibility constraints, while i and e are not. Thus, let us assume the prescriptions x, y, z and let us suppose that: i) any prescription respects hard constraints; ii) in order to implement prescription x it is necessary to neutralise (undermine the existence of) facts i and e; iii) in order to implement prescription y it is necessary to neutralise facts m and c; iv) in order to implement prescription z it is necessary to neutralise fact m. Given Räikkä’s criterion for the selection of feasibility constraints we should conclude that: i) prescription x is “completely” feasible (because does not undermine the existence of normatively valuable facts); ii) prescription z is more feasible than prescription y. The reason to conclude ii) is that z undermines the existence of valuable facts less than y.
So for example, let us suppose that to ensure water to people, Dakar City Government has an alternative strategy. For instance, they could import water from Iceland and this does not imply any moral cost. Given Räikkä’s requirement, such a second strategy is more feasible than the first one (to destroy people’s lands and build the street). Intuitively, also this case shows that Räikkä’s requirement of feasibility has some troubles related with the common sense meaning of feasibility. Especially because Räikkä himself defines a feasible object as something capable of being successfully used.
However, as for Hahn case, such an intuition does not shows that Räikkä’s argument is methodologically circular.
I try to show the circularity of Räikkä’s criterion to select feasibility constraints. I formalise his criterion in this way: ‘only those facts which neutralisation undermines moral values and principles assumed by our theory are soft feasibility constraints’. So, when scholars devise and/or implement a normative prescription, they should deal with this rule: ‘in order to be feasible, the prescription should be conform with those facts of the world which neutralisation undermines values and principles of our theory’.
Formally the argument is this:
- The theory M has to conform with soft constraints;
- A fact is a soft constraint iff it implies moral costs;
- A fact implies a moral cost only iff it is morally valuable;
- The theory M defines moral values. So, the theory M indirectly defines morally valuable facts;
- Therefore, the normative theory M selects soft constraints;
- Therefore, the normative theory M has to conform with facts that the normative theory M selected.
- Normative theory M should be conform with feasibility constraints;
- Feasibility constraints are those selected facts to which the theory M assign a normative value in accordance with its moral assumptions. Therefore;
- Normative theory M should be conform with those facts selected by normative theory M.
So, given Räikkä’s criterion, the selection of constraints of normative theory is not independent by the theory itself: facts are feasibility constraints only if they are valued by the moral principles of normative theories.
- The Phenomenological Argument for Essential Normativity
There is an unresolved, insufficiently articulated stand-off between ontological naturalism and phenomenological thought regarding the question whether normativity can be reduced to physical entities. While the ontological naturalist line of thought is well-known and near-orthodoxical in analytic philosophy, the phenomenological reasoning for the irreducibility of normativity has been largely left ignored.
Drawing on the work of Husserl, Heidegger, Schütz, Stein and others, I systematize and reconstruct a phenomenological argument according to which natural science (as the foundation of naturalization projects) is itself a part of the essentially normative life-world to the effect that ontological naturalism faces a bootstrapping problem. I then posit some responses the ontological naturalist can mount as a defence. I close by arguing that this stand-off between naturalism and phenomenology regarding normativity turns on which conception about the nature of (natural) science is true. This result pits a perfectionist model of science (implied by ontological naturalism) against a pragmatist conception of science (in favour of the phenomenological argument).
The question whether normativity is either a genuine feature of the world or reducible is of central importance to both ontological naturalists and the phenomenological tradition. Resistance against ontological naturalism within the tradition of analytic philosophy has been growing in the last few decades. The main strategy of critics of different forms of naturalism (“scientific”, “ontological”, “methodological”, “strict”, “bald”) is to offer a different kind of non-reductive naturalism (“liberal naturalism”, “relaxed naturalism”, “soft naturalism”, “naïve naturalism”, “Aristotelian naturalism”, “near-naturalism”, “subject naturalism”) that countenances normativity (among other things) as a genuine part of the world. Apart from this more recent line of critique, the phenomenological tradition has been critical of any kind of reductive naturalism virtually since its inception, but has provoked fewer responses than the aforementioned non-reductive forms. This paper deals with a dialectical standoff between these two parties regarding the question whether normativity is reducible to entities amenable to physical inquiry. At the heart of this stand-off lies the question, as will be demonstrated, whether the so-called life-world itself is fundamental in the sense that it figures as a transcendental enabling condition for science as such (as the phenomenologist asserts), or whether naturalism can bootstrap itself out of this predicament.
Forms of naturalism are common and popular in contemporary philosophy. Large swathes of the debate have been dominated by Moore’s open question argument (Moore 1903, §13). However, another more recent strand of the debate is informed more directly by ontological naturalism as is a form of physicalism according to which everything that exists must be physical in some sense. Forms of ontological naturalism have been given exemplary expression in Sellars’ scientia mensura dictum: “science is the measure of all things, of what it is that it is, and of what is not that it is not” (Sellars 1997, §41). One of the greatest challenges for ontological naturalism comes in the form of placement problems (Price 2013): hard-to-place phenomena like morality, rationality, normativity and mental properties seemingly do not fit into a physicalist landscape. This sets the stage for so-called naturalization projects which aim to demonstrate (usually by way of reduction, elimination or supervenience relations) that the hard-to-place phenomena turn out to be physical in some sense after all. Indeed, as Robert Audi remarks, contemporary “philosophy is witnessing an age of naturalization projects“ (Audi 2012, 169.) Ontological naturalists thus commonly believe that normative concepts pose in principle no problem for the project of naturalization (e.g. Jackson 1998, Searle 1995, List & Pettit 2011) because future-ideal physics will be able to convincingly demonstrate that normative facts reduce to physical facts (e.g. Ney 2008, Papineau 2009, Kim 2005).
However, before the current shape of ontological naturalism rose to prominence and before opposition to it in form of different liberalized, non-reductive naturalisms took foothold, thinkers in the phenomenological tradition have already objected to ontological naturalism. Such thinkers have steadfastly resisted any such attempt at naturalization insofar it means doing away with something that phenomenologists deem a genuine part of reality insofar it is a direct part of our experience. For example, Husserl writes that “only blindness to the transcendental, as it is experienceable and knowable only through phenomenological reduction, makes the revival of physicalism in our time possible” (Husserl 1970, §72, p. 265). Much later, partially as a result of his engagement with Heidegger, Husserl formulates the key phenomenological idea that natural science, on which such reductive physicalism is dependent, is itself merely a part of an irreducible life-world. And this, mutatis mutandis, amounts to the idea that normativity itself cannot be naturalized by way of physicalist reduction.
Hence, naturalists and phenomenologists are diametrically opposed regarding the status of normativity. There has been some engagement between these traditions in recent decades. The majority of these contributions, however, have dealt with the question whether something like a naturalized phenomenology is possible (Moran 2013, Zahavi 2013). But there has been no focus on the question whether the phenomenological tradition has resources to offer a counter-weight against naturalization projects. There is still space to study the relationship between the naturalistic and phenomenological framework, as these two traditions may perhaps be viewed as prime competitors which are actually not much interested in what the other has to say. It sometimes seems instead that these traditions develop like two parallel lines which are, for the most part, content never to intersect. Part of what makes answering the question about normativity difficult is an apparent lack of engagements with this problem from the naturalist side although iterations of the phenomenological argument go back at least to the beginning of the 20th century. This is perhaps partially due to the dominance of analytic approaches and partially due to the fact that some phenomenologists have rarely articulated their arguments for the irreducibility of normativity in a way that is accessible for ‘outsiders’. A reconstruction and re-appreciation can re-affirm a way of resisting ontological naturalism which comes ‘outside’ the current framework of non-reductive naturalisms.
In this paper, I aim to unite these two sides in argument. To that end, this paper pursues two aims, one interpretive, one systematic. The interpretive aim is to make sense of the anti-reductive sensibilities regarding normativity shared by a number of influential phenomenologists by way of capturing these sensibilities in argument form. The systematic aim is to investigate how the stand-off between phenomenological and naturalist intuitions can be resolved. Rather than giving a straight solution, I argue that this question turns on another, broader matter. Whether normativity is reducible depends on whether naturalization projects can be ‘purged’ of normativity; but this in turn depends on what conception of science is correct. The overall trajectory of this paper is modest: it tries to clarify the respective positions and specific points of contention between the two sides of the argument. And it argues that in trying to find the correct answer to this question, we have to start looking elsewhere, at a ‘broader picture’, namely at the nature of (natural) science – assumptions about which often are implicitly invested in debates regarding the reduction of normativity.
Some preliminary remarks are in order. Firstly, it is sometimes stated that one of the defining features of phenomenology as a methodology is its priority over metaphysics in the sense that it brackets metaphysical questions about certain objects in order to pay actual “attention to the phenomenon under study” (Gallagher & Zahavi 2008, 6). This general rule certainly has to be specified in each context, however. The phenomenological argument reconstructed here is such a specification of this general rule: an argument that can demonstrate why one is entitled to look at normative phenomena in a way that is prior to metaphysical theorizing, and thereby logically prior to reductive efforts.
Secondly, the concept of normativity is familiar, yet not always easy to pin down. I use the term “normativity” here loosely in order to allude to the whole realm of matters in which correct and incorrect, right and wrong can play a role. This means the whole domain of interpersonal social phenomena, from I-Thou relations to complex social institutions like nation states involve some form of normativity. Phenomenologists are often not wont to using the terms “normative” or “normativity”. Some phenomenologists may, nevertheless, prefer to speak of “second person” or the “Other”. There are obviously manifold conceptual differentiations and types of normativity since von Wright’s seminal Norm and Action (1963) and it would be impossible to do these debates justice without entirely derailing this paper.
Third, some who call themselves naturalists will not feel represented by what is called “ontological naturalism” (or sometimes “scientific naturalism”) in the debate. Some will feel, for example, that they still deserve the ‘honorary badge’ of being called “naturalist” in virtue of endorsing something weaker than ontological naturalism. Weaker forms of naturalism have been called “modest naturalism” which consists in (i) respect for science, (ii) rejection of philosophical foundationalism, and (iii) rejection of supernaturalism (magic, witches, ghosts, goblins) (De Caro & Macarthur 2004). To be clear: modest naturalism is not the kind of naturalism in question in this context since its content is not potent enough to underwrite a controversial forms of naturalism that aims to reduce normativity. Whether or not endorsing a modest form of naturalism is sufficient for being allowed into the naturalist club is a matter to be kept separate here – this paper mainly operates with the relatively demanding notion of ontological naturalism (cf. part 4.1).
The roadmap is then this: I will first provide a birds-eye overview of a part of the dialectical situation regarding projects aimed at naturalizing normativity in part one. The second part reconstructs what I call the phenomenological argument, based off different expressions by prominent figures of seemingly the same idea: that (natural) science itself is part of the life-world. And since science is part of the life-world, which itself is normative, the results of natural science, most notably those of a future-ideal physics, necessitate a form of genuine normativity. This lays bare a problematic bootstrapping assumption of some naturalization projects: ontological naturalists at least implicitly have to assume that naturalization projects can use natural-scientific theories as a basis for a reductive account of normativity although the means to produce such natural-scientific theories are themselves essentially normative. I close by suggesting that whether and how this question is resolved depends on which conception of science is correct.
4.2. A generalized naturalist treatment of normativity
Ontological naturalists treat normativity as something that needs to be naturalized as it is not part of nature as such. Naturalization projects can typically take the shape of reduction (e.g. Jackson 1998, Millikan 2000, Brandom 1994) or supervenience (Lewis 1983, Stoljar 2010, Ridge 2012), and elimination (Churchland 1981). While the reductionist and supervenience accounts of aim to solve the placement problems by identifying normativity as something ultimately physical, eliminativist accounts would aim to demonstrate that normativity does not exist simpliciter.
Some popular forms of ontological naturalism are supervenience-based. For the context of this paper, these supervenience-based approaches are not primarily relevant. This is for two reasons. First, supervenience-based ontological naturalism faces some difficult challenges (cf. Fodor 1974, Horgan 1993, Buekens 2018) including critiques of bridge laws (von Kutschera 2011). The more important, second reason is, however, that supervenience-based ontological naturalism is not sufficiently demanding in order to constitute a position that could not also be held by critics of naturalism. Of course, even supervenience-based ontological naturalism would be anathema to a classical substance dualist. Yet, even card-carrying non-naturalists like, for example, John McDowell or Thomas Nagel, as well as a number of phenomenologists, could endorse supervenience-based ontological naturalism without contradicting their other philosophical convictions. This is because the idea that normative (and mental) properties supervene on physical properties is not very demanding in and of itself. Reduction-based ontological naturalism admittedly faces problems as well, yet these challenges can be reasonably set aside in this context in order to take the reductive claim itself seriously. Therefore, the kind of ontological naturalism that is relevant to the context of this paper is reductive-based, i.e. the idea that normative features of the world are nothing over-and-above physical features.
There has been a steadfast defiance against the naturalization of normativity. Critiques of ontological naturalism (i.e. physicalism) and its treatment of normativity come in different forms. One traditional line of argument is, for example, to attack the metaphysical reduction relation directly as unsuitable. Another principled and general argument, however, is that the main problem for ontological naturalism lies in the fact that current physics does not provide a theoretical basis which is sufficient to demonstrate that things like normativity and the mind turn out to be nothing but physical themselves. This latter argument leads to a specification of ontological naturalism: It is not current, but future-ideal physics which provides to foundation on which normativity (and other phenomena like the mind) can be naturalized.
On what grounds can the ontological naturalist defer to a future-ideal physics of which we know nothing yet? There are typically two related arguments for this: the success argument and the miracle argument. The success argument is neatly expressed in the following statements:
“So what are the fruits of naturalism? First, the scientific enterprise has a remarkably successful history, and naturalism is little more than a statement of our continued support for that enterprise.” (Colyvan 2009, 307).
“Commitment to the method [of natural science] can be sufficiently justified by appealing to past successes at finding naturalistic explanations. One might argue even that the success rate has been going up for the past 300 years.” (Giere 2000, 214f.).
“[…] even if naturalism depends on metaphysical assumptions, the naturalist can argue that the metaphysical assumptions in question are vindicated by the success of science, by contrast with the metaphysical assumptions on which autonomous metaphysics is based which are not vindicated by the success of metaphysics since it can claim no such success.” (Ladyman & Ross 2007, 7).
The success arguments states that since natural science can boast an unprecedented history of success, a commitment to ontological naturalism (relying on a future-ideal physics) is justified. Adjusted to the context of normativity, the past successes of natural science, as it were, should give us a justified confidence that future-ideal physics will be able to provide a metaphysical framework for a full naturalization of normativity (among other things).
The success argument is closely related, yet not identical to the more familiar miracle argument. The miracle argument dates back to Hilary Putnam’s earlier work:
“The positive argument for realism is that it is the only philosophy that doesn’t make the success of science a miracle. That terms in mature scientific theories typically refer […], that the theories accepted in a mature science are typically approximately true, that the same term can refer to the same thing even when it occurs in different theories – these statements are viewed by the scientific realist not as necessary truths but as part of the only scientific explanation of the success of science, and hence as part of any adequate scientific description of science and its relations to its objects.” (Putnam 1975, 73).
The miracle argument is restated in an even more impassioned manner by arguably naturalism’s most fervent proponent Alexander Rosenberg:
“The reason we trust physics to be scientism’s metaphysics is its track record of fantastically powerful explanation, prediction, and technological application. If what physics says about reality doesn’t go, that track record would be a totally inexplicable mystery or coincidence. […] The no-miracles and inference-to-the-best-explanation arguments are on the right track. Their alternatives are obviously mistaken.” (Rosenberg 2014, 19).
The miracle argument states that the best explanation for the explanatory success of the natural sciences is that natural-scientific theories are both true and refer to entities that really do exist (against, say, instrumentalist accounts like van Fraasen 1980). Rosenberg even adds that any alternative is “obviously mistaken”. Adjusted to the current context, the miracle argument lends support to the idea that the explanatory track-record of the natural science is so well-established and documented that an ontological naturalist would be justified in assuming that the success of physics converges on an account of reality which can serve as a basis for the naturalization of normativity, even if such an account is still forthcoming.
There are at least two ways in which an opponent of ontological naturalism could proceed here, both of which the ontological naturalist will find wholly unconvincing. The first way of responding would simply be to double-down on specific critiques of metaphysical relations of reduction or supervenience in an attempt to discredit the ontological naturalist’s preferred philosophical devices. Naturalists could either simply ignore such criticism or refine their accounts of reduction or supervenience further into a specific brand that does not fall prey to the anti-naturalist sentiment. Considering the relatively high amount of different supervenience accounts, this dialectical cat-and-mouse game has been going on for quite some time.
The second rebuttal is about the status of the appeal to future-ideal physics as a promise. An opponent of ontological naturalism could perhaps dig their heels in and simply state that if the ontological naturalist can promise that in the future, accounts of naturalization will be fully vindicated by the empirical natural sciences, then the opponent, too, can promise that future developments in philosophical thought will be able to provide adequate counter-arguments against the naturalistic promise. For example, an opponent of ontological naturalism could perhaps simply counter-promise that future-ideal physics would support an emergentist account of normativity, running counter to naturalization efforts.
It is doubtful that an ontological naturalist would find such rebuttals convincing. Firstly, arguments attacking supervenience and reduction have not caused the philosophical community to abandon such endeavours, but have rather motivated physicalists to come up with more refined versions. It seems to be the case that ontological naturalists will want to hold onto the physicalist picture, no matter what the opposition states. It is even more doubtful that naturalistically minded philosophers would take a counter-promise of the kind alluded to above seriously, especially since, they might claim, philosophy has no such comparable success to offer. It is more likely that naturalists will still view their optimism in future-ideal physics vindicated.
While this assumption is not without its challenges, we shall go forward with this reinforced notion reduction-based ontological naturalism because it presents the greater challenge for a phenomenological argument that aims to vindicate a genuine status of normativity. What, then, would it take to provide a proper argument against ontological naturalism, an argument that has potential to undercut the optimism for a future-ideal account of physics which serves to vindicate current naturalization projects? Such an argument would have to operate on a more fundamental level. The next section is dedicated to demonstrating that the phenomenological tradition has the resources to establish such an argument.
4.3. The Phenomenological Argument
Many thinkers in the phenomenological tradition have been critical of naturalism and the scientific image as a whole. It is a peculiar undertaking to ascribe anything more specific than that to the different, specific thinkers in the broad, multifaceted tradition of phenomenology. This is due to the different influences, aims, and intellectual ramifications special to thinkers like Husserl, Stein, Heidegger, Levinas, Riceour, or Merleau-Ponty. This caveat notwithstanding, a large part of this critical attitude is rooted in the idea of life-world as something more fundamental than the domain of science. The main assumption is that science (and a fortiori natural science) is merely a part of the life-world as a whole. This idea in turn is closely related to the idea constitutive of the phenomenological tradition that the first-person perspective qua experiential character is irreducibly sui generis. The phenomenon of normativity (the realm of the first, second, and third person together in the life-world broadly understood) can then be viewed as an extension of the irreducibility of the first-person perspective. One difficulty is that such an argument itself is rarely fully worked out by thinkers in the phenomenological tradition, at least not to a degree to which the opposing naturalists would find it plausible or worthy of consideration. In this part, I shall first gather and reconstruct phrasings of the thought that normativity is irreducibly part of life-world somehow. I will then show how this thought relates to ontological naturalism, more specifically, how this thought can be elaborated into an argument against ontological naturalism. There are two necessary caveats in order. The first caveat is that Husserl’s concept of the life-world as garnered more scholarly attention than can be reasonably accounted for in this paper. The second caveat is that the authors cited over the course of the following pages – Husserl, Schütz, Heidegger, Stein, Schmitz, Zahavi – are all engaged in vastly different projects, despite being key figures in the phenomenological tradition. The point of this part is to argue that despite their differences, they might share an underlying fundamental idea regarding the relationship of science and the life-world even though it may be expressed in very different contexts and styles. If the idea of the life-world should, in what follows, remain somewhat ‘vague’ by some standards, this is perhaps a necessary feature of this concept which Husserl himself acknowledged (Husserl 1970, §33).
Husserl outlines in his Krisis the following relation between the sciences and his idea of life-world:
“The sciences build upon the life-world as taken for granted in that they make use of whatever in it happens to be necessary for their particular ends. […] But Einstein could make no use whatever of a theoretical psychological-psychophysical construction of the objective being of Mr. Michelson; rather, he made use of the human being who was accessible to him, as to everyone else in the prescientific world, as an object of straightforward experience, the human being whose existence, with this vitality, in these activities and creations within the common life-world, is always the presupposition for all of Einstein’s objective-scientific lines of inquiry, projects, and accomplishments pertaining to Michelson’s experiments. It is, of course, the one world of experience, common to all, that Einstein and every other researcher knows he is in as a human being, even throughout all his activity of research.” (Husserl 1970, §34b, 125f.)
Husserl asserts that the sciences “build upon” the life-world by utilizing parts of it. Using Einstein and Michelson as exemplary scientists, Husserl adds that that a life-world shared by the scientists engaging one another is the condition (“Voraussetzung”) for any kind of objective research. In all their research activity, researchers remain part of the world of experience (“Erfahrungswelt”). What is life-world in Husserl’s technical sense? He describes it as follows:
“The life-world is a realm of original self-evidences. That which is self-evidently given is, in perception, experienced as ‘the thing itself,’ in immediate presence, or, in memory, remembered as the thing itself. All conceivable verification leads back to these modes of self-evidence because the ‘thing itself’ (in the particular mode) lies in these intuitions themselves as that which is actually, intersubjectively experienceable and verifiable and is not a substruction of thought; whereas such a substruction, insofar as it makes a claim to truth, can have actual truth only by being related back to such self-evidences.” (Husserl 1970, §34d, 127f.)
According to Husserl, the life-world is the immediately self-evident. All conceivable justification harkens back, eventually, to the self-evidences of the life-world; it is, in other words, the source of all justification. This holds, a fortiori, all scientific justification. Husserl is very explicit about this:
“As we already know, physicists, who are men like other men, who know themselves as living in the life-world, the world of their human interests, have, under the title of physics, a particular sort of questions and (in a broader sense) practical projects directed toward the things of the life-world, and their ‘theories’ are the practical results. Just as other projects, practical interests, and their realizations belong to the life-world, presuppose it as ground, and enrich it with their activity, so it is with science, too, as a human project and praxis. (Husserl 1970, 140)
Physics here is taken as a pars pro toto for all science. Even the sciences are in this very sense dependent on human practice as mediated by the life-world.
This fundamental idea has been taken up and further developed by students of Husserl. Alfred Schütz adopts Husserl’s idea of the life-world, recoins it as Alltagswelt (i.e. the world of everyday life, also: Welt des Wirkens), and uses it as one of the foundational pillars of his phenomenological sociology. The world of everyday life (or life-world) is “the world […] within which I and you, Peter and Paul, anyone and everyone have confused and ineffable perceptions, act, work, plan, worry, hope, are born, grow up and will die – in a word, live their life as unbroken selves in their full humanity” (Schütz 1962, 255). Schütz argues that life-world constitutes a “paramount” reality (Schütz 1972, 341) under which other domains – among them the domain of science – are somehow subordinated or, at the very least, continuous. Accordingly he writes:
“The finite provinces of meaning are not separated states of mental life in the sense that passing from one to another would require a transmigration of the soul and a complete extinction of memory and consciousness by death. They are merely names for different tensions of one and the same consciousness, and it is the same life, the mundane life, unbroken from birth to death, which is attended to in different modifications.” (Schütz 1972, 257f).
“The paradox of communication [between domains of life] arises, thus, only if we assume that sociality and communication can be realized within another finite province of meaning than the world of everyday life which is the paramount reality. But if we do not make such an unwarranted assumption then science becomes again included in the world of life.” (Schütz 1972, 259).
Schütz is opposed to the idea that human life is a conglomerate of entirely autonomously disjoint domains, not as “separated states of mental life”. The paradox of communication concerns the transposition or crossing over from one domain to another: if such domains of the life-world were starkly separated, the “communication” between such domains would not be possible. To use an example that is directly relevant for the current context: the person coaching a middle school soccer team on Tuesday night does not enter an entirely new domain when he puts on a lab coat on Wednesday morning to grow bacteria cultures as part of his biology graduate program. These different domains are united under and different expressions of a unifying life-world. In such different contexts, the “same consciousness” is in different tensions; it is not that different consciousnesses are going in and out of existence when transgressing different domains of the life-world. So the fact that we can move between different social domains (religion, the as-if word of games, science) seamlessly is made possible by the fact that these domains are grounded always already in the life-world as “paramount reality”. And it is obviously of the highest importance for Schütz that the life-world is permeated by social relations between a multitude of subjects (i.e. normativity) since his life’s work is the development of a genuinely phenomenological approach to sociology.
While Schütz is the student of Husserl who perhaps made most of this idea, similar, yet less elaborate remarks on this matter can be found in Heidegger’s early and late thought. In Being and Time (1927) he writes:
“Scientific research accomplishes, roughly and naively, the demarcation and initial fixing of the areas of subject-matter. The basic structures of any such area have already been worked out after a fashion in our pre-scientific ways of experiencing and interpreting that domain of Being in which the areas of subject-matter is itself confined.” (Heidegger 1962, 29).
While Heidegger is not as concerned here with the relationship between science, Being and Dasein as he is in his later work, this quote already expresses the idea that Heidegger takes there to be a kind of natural continuity between pre-scientific understanding and the domain of institutionalized science. In his Age of the Worldpicture (1938) Heidegger aims to analyse the “essence” of modern science and modernity as such. In this context he identifies constant activity (Betrieb) as one of its essential features:
“For the character of modern science is determined by a third fundamental occurrence: constant activity [Betrieb]. By this term is to be understood, first of all, that phenomenon whereby a science, whether natural or humanistic, in order to achieve proper recognition today as a science is required to be capable of being institutionalized. Research is not, however, constant activity because its work is carried out in institutions; rather, institutions are necessary because science, as, intrinsically, research, has the character of constant activity. That character however is the inner ground for the necessity of its institutional character.” (Heidegger 2002, 63f.).
Heidegger asserts that the institutionalization of scientific research is necessary for the existence of modern science as such. While he does not explicitly state it, institutionalization and professionalization of science (Wissenschaft) imply a certain degree of sociality which is not implicit in the idea of the scholar (Gelehrter) which he puts in contrast with the researcher of constant activity.
And even Husserl’s other key student, Edith Stein, states at the very beginning of her On the Problem of Empathy that “research in natural science” is the “continuation” of “natural experience” (Stein 1964, 4). Natural science is, as it were, somehow embedded in or continuous with natural, everyday experience of the world. Although Stein does not elaborate much on this idea (let alone provide a justification for this intuition), it is perhaps among the more lucid expression of the idea of the primacy of the life-world over science in this tradition.
Lastly, even Hermann Schmitz – the originator of what he calls “New Phenomenology” – expresses the same idea, albeit in a different vocabulary:
“Regarding [the experiment’s, Author] aptitude Schröter phrased the statement: ‘The linguistically disclosed reality is being linked to the everyday reality [Alltagswirklichkeit] through experiments.’ What does ‘connect’ mean here? The wort sounds like benevolent condescension, but if this connection does not imply scientific predictions being successfully tested against the lifeworld [Alltagswelt], then the credibility of the reality disclosed by physical theories is in poor condition.” (Schmitz 2004, 222).
Schmitz asserts here that the lifeworld (Alltagswelt or Alltagswirklichkeit in his terminology) is not dependent upon the veracity of or fit with physical or otherwise scientific theory. It is rather, he claims, that physical (and other scientific theories) have to be evaluated by their compatibility with the lifeworld, lest the picture they paint of reality is rendered simply unbelievable.
These students of Husserl (Stein, Heidegger, Schütz, Schmitz) are also seconded by more recent scholars of phenomenology. Dan Zahavi states that we “cannot look sideways at our experiences in order to see to what extent they match with reality” (Zahavi 2019, 28) and asserts:
“As Merleau-Ponty insists, however, we should never forget that our knowledge of the world, including our scientific knowledge, arises from a bodily anchored first-person perspective, and that science would be meaningless without this experiential dimension. The scientific discourse is rooted in the world of experience, in the experiential world, and if we wish to comprehend the performance and limits of science, we should investigate the original experience of the world of which science is a higher-order articulation. The one-sided focus of science on what is available from a third-person perspective is, for Merleau-Ponty, consequently both naïve and dishonest, since the first practice consequently presupposes the scientist’s first-personal and pre-scientific experience of the world.” (Zahavi 2019, 66)
Zahavi reiterates with Merleau-Ponty that the origin of the third-personal scientific knowledge is intertwined with the first-person perspective. All scientific practice requires the dimension of “first-personal and necessarily pre-scientific experience” of the people engaging in scientific research. This is to the effect that the third-personal results of science – their immense value and impressiveness notwithstanding – presuppose a kind of “original experience” of the world. This world referenced by Zahavi is the same life-world from above, that is, the world that includes many different subjects and their normative interrelations. There are, of course, some who want to resist this point.
It is time to pause and take stock of the ideas expressed in these different quotes by prominent phenomenologists. We can find two interrelated ideas there. The first idea is that the life-world (including the multitude of first-person perspectives) is irreducible and sui generis. This is one of the central ideas of the phenomenological tradition. The second idea is that science as such, most notably natural science, is in some important sense a part of that life-world or an extension of the life-world (despite all of science’s particular features), and does not constitute a kind of privileged domain in total opposition to ordinary experience. In other words, the “life-world is also the world from which the world projected in the natural sciences arises […]” (Kerzsberg 2010, 225). These two points are related. The idea is that science itself is permeated by normativity in virtue of being grounded in some important sense in the life-world. The thought that science itself is part of the life-world can be viewed as an elaboration and extension of the thought that the I or first person itself cannot be naturalized.
How does this relate to the question regarding naturalization and ontological naturalism? Using these interrelated ideas, one can construct an argument directed against the reductive naturalization attempts of ontological naturalism: Science as an institution itself is a part of the life-world – this is the phenomenological thesis defended by Husserl, Schütz, Stein, Heidegger and others. The life-world is essentially normative (even though “normative” is perhaps not their preferred term). Therefore, science as an institution is essentially normative. And since science as an institution is just part of the life-world, then the results of science are a part of the life-world. The results of science are the foundation for naturalization projects. Yet, the results of science are essentially normative. Therefore, the foundation for naturalization projects as such are essentially normative. And if the foundation for naturalization projects are essentially normative, then naturalization projects are inconsistent.
This inconsistency begins by noting that naturalizing normativity necessarily requires the results of natural science, most notably those of physics. The results of the natural sciences themselves require science as a social institution. By trying to naturalize normativity on the grounds of the results of the natural sciences (i.e. theories and theses of physics), naturalization projects are designed to naturalize that what would enable naturalization of anything in the first place. The overall conclusion then is that normativity is essential, i.e. it cannot be “naturalized away” in any reductive or eliminative effort.
- The lifeworld is an enabling condition for there to be science as an institution. [Phenomenological intuition]
- The lifeworld is normative. [phenomenological intuition]
- If x is normative and if x is the enabling condition for y, then y is normative.
- Therefore, science as an institution is normative.
- Science as an institution is the enabling condition for there to be scientific theories at all.
- Therefore, scientific theories are normative.
- Scientific theories are presupposed by naturalization projects.
- If scientific theories are presupposed by naturalization projects and if scientific theories are normative, then naturalization projects presuppose normativity.
- Therefore, naturalization projects presuppose normativity.
- Naturalization projects reduce normativity.
- If x presupposes y, then x cannot reduce y. [Controversial principle]
- Naturalization projects cannot reduce normativity.
- If naturalization projects cannot reduce normativity, then naturalization projects necessarily fail.
- Therefore, naturalization projects necessarily fail.
- If naturalization projects necessarily fail, then normativity is irreducible to non-normative properties.
- Normativity is irreducible to non-normative properties.
The argument itself could certainly be abridged while retaining its force. However, a long-form reconstruction of this kind serves to make explicit important and pervasive assumptions seemingly at play regarding the reducibility of normativity. It should be noted, starting off, that the argument seems to be valid at least. Due charity compels us to construe the phenomenological argument as valid if it is to be in vein of the phenomenological thinkers previously discussed.
Furthermore, the argument can not only be understood as phenomenological, but simultaneously as transcendental. While it is controversial how exactly transcendental arguments are to be understood, this phenomenological argument features at least two key aspects of transcendental arguments. The first aspect is that some of its premises include enabling conditions. Enabling conditions are akin to what Stern (2000) calls “transcendental conditionals” according to which “x is only possible if y”. The second aspect is that it centers on some aspect of reality being genuine; this is analogous to how Strawson’s transcendental argument against skepticism concludes that external objects exist (cf. Strawson 2011). Qua transcendental status, the phenomenological argument will face the additional burdens that normally beset transcendental arguments. However, in order not to dilute the focus, I shall not discuss the transcendental status further as debating this aspect would require its own dedicated investigation (cf. Pihlström 2001).
Moving forward, the argument can be divided in two parts. The first part spans statement 1. through 9. and is arguably not very controversial (save for the transcendental enabling conditions). The second, controversial part begins with statement 10. All the way through the overall conclusion 16. it is the second, controversial part that will become relevant for the rest of this paper.
The first part is mainly comprised of phenomenological intuitions which even a reductive naturalist might share, namely that there is something like normativity. Some might take issue with the idea that scientific theories are in some sense connected to normativity at all (6.). A full appreciation and discussion of this idea would require its own paper. While perhaps not entirely uncontroversial, it shall suffice to say that this idea has at least influential proponents, mainly those in the pragmatist tradition (Dewey 1938, Putnam 1994), constructivist tradition (e,g. Mittelstraß 1973, Kambartel 1974), but also in analytic philosophy (e.g. Resnik 2008). At least prima facie, the idea that scientific theories are intimately connected with normative considerations in a relevant way, is not preposterous. Furthermore, a naturalist may not even take issue with this since he or she can admit that naturalization projects presuppose normativity without contradiction.
The second part of the argument, however, features at least one premise which the reductive naturalist will want to disavow and reject:
- If x presupposes y, then x cannot reduce y. [Controversial principle]
This principle expresses the central point of contention between phenomenologists and reductive naturalists. While the naturalist may have no issue accepting that scientific theories presuppose normativity, he or she will have to fight this principle tooth-and-nail. This is because this principle prevents any reductive ambitions the naturalist has towards normativity. Conversely, this principle is what sets apart the phenomenological argument against the reducibility of normativity as particularly radical. This principle is what the phenomenologist has to assert in order to give his or her argument a transcendental, non-reductive bite since it determines that the lifeworld qua genuine normativity is fundamental for scientific theories in a manner that makes it impossible for naturalization projects to claim that normativity be nothing “over-and-above” the physical.
A defender of naturalism will obviously not simply accept this principle. What resources does naturalism have to mount a defence against this phenomenological assertion of genuine normativity?
4.4. Can Naturalism bootstrap itself out of the Lifeworld?
The situation so far seems to be this: naturalist accounts of normativity must rely on results of the natural sciences (mostly a form of future-ideal physics) in order to reduce normative properties to non-normative, physical properties. Against this, the phenomenological argument suggests that the results of the natural sciences themselves are normative in virtue of science as a holon of socio-normative relations enabling natural sciences in the first place. This turns on the question whether natural science presupposing normativity makes the natural sciences and their results themselves fraught with normativity in a way that does not allow for its reduction – this was expressed in the controversial principle featuring as statement 11. in the phenomenological argument.
This point can be recast in a famous metaphor: Like Baron Münchhausen stuck waist-deep in a bog, the natural sciences are steeped in the ‘normative swamp’ of the lifeworld. And just like Baron Münchhausen tries to pull himself out of the swamp by his own hair, the naturalist tries to pull herself out of the lifeworld by the results of the (future-ideal) physics which itself is not outside the swamp, according to the phenomenological argument. Less metaphorically, bootstrapping amounts to the idea that ontological naturalist accounts of normativity can simply, as it were, naturalize the normative features of the natural-scientific research which provides the theoretical results which are used as a foundation for naturalization of normativity. Naturalists must be able to bootstrap themselves out of the normative practices that permeate natural-scientific research. In other words: The naturalist would have to demonstrate that the results of the natural sciences are not part of the lifeworld in a substantial sense and bestowed with the power to reduce all normativity. Normativity is the target of naturalization, naturalization itself is based on results of scientific practice (i.e. physical science). But this turns out to be unproblematic, as it were, since a full account of the world based on future-ideal physics will simply include a naturalist account of the natural-scientific practice itself.
The bootstrapping assumption seems to provide the ontological naturalist with an easy solution to the phenomenological argument. As Robert Scharff puts it, naturalism exercises a “studied suppression” of natural science’s lifeworld origins (Scharff 2019, 129). However, the bootstrapping assumption is exactly what is targeted by the phenomenological argument which implies that the results of the natural sciences, on which naturalization projects are based, presupposes the phenomenon (normativity) which the naturalist wants to reduce away. Thus, the naturalist and phenomenologist seem to have reached an impasse. The phenomenologist will state that there is no escaping the normative swamp, yet the naturalist will assure us that she can pull herself out of it. The challenge the phenomenologist poses to the ontological naturalist is indeed tricky and harsh: Who can decide the stand-off in favour of their side?
This question is not easily answered. In fact, it is doubtful that a straightforward, simple answer to this question can be found at all. And on top of that, it is even more doubtful that there is any straightforward solution to this stand-off that the ‘losing’ side would willingly accept. I have argued elsewhere, for example, that some critiques of naturalism go virtually ignored (Author 2020); and an analogous case might perhaps be made for some strands in the phenomenological tradition. Therefore, instead of trying to develop an answer to this question that would turn the odds in favour of either the naturalist or phenomenologist side, I shall spend the rest of this paper arguing not what a solution to this stand-off amounts to, but what such a solution would further require. As a short preface for this ‘roundabout’ answer, it is helpful to pin down what the phenomenological argument demands of the naturalist here: An ontological naturalist would have to demonstrate that the propositions or theories of a future-ideal physics are of a different status in a way that it becomes clear that they are entirely divorced from their socio-normative origins. In other words, an ontological naturalist would have to demonstrate that scientific theories as propositions can be used as bootstraps to escape the normative swamp once and for all. Instead of providing a straight answer, I shall instead argue on behalf of the naturalist that an answer to this question is essentially dependent on which conception of science as a real-world institution is correct, i.e. what I call a perfectionist model versus a pragmatist model of science.
Ontological naturalism operates on a perfectionist model of science which it wears on its sleeves. As cited above (section 1), at least some prominent ontological naturalists, like Alex Rosenberg and Ronald Giere, are very vocal about their view that the successes of natural science justify our belief in there being a future state in which natural science as such is more or less concluded. Such a belief to a future-ideal state indeed must be baked into ontological naturalism. This is because at least current physics is not able to account for a seamless reduction of normative properties to physical ones (being one of the reasons for some to reject reductive for supervenience physicalism) (Stoljar 2017, 17f.). According to this model, the teleological end-point of science lies in a set of theories, interlocking to provide a full picture of the universe on which no further improvements can be made. This picture would a fortiori also yield the foundation for assigning normativity a place in the physical world. This final set of theories would also be impersonal, allowing for a complete spectator-perspective on the world, something like a new from nowhere (Nagel 1986). Once this putative perfected state is realized, there is no need for either science nor for scientists anymore. And this is how the perfectionist model would ultimately enable the kind of reduction of normativity the naturalist assumes to work: once we have reached this putative perfected state and attained a hopefully slender, self-standing set of physical theories in the form of propositions, it will be possible to show how normativity is ‘nothing over-and-above’ physical properties. The perfectionist model thus enables or licenses the reductive proclivities of naturalism.
In contrast, the phenomenological argument demands a broadly pragmatist conception of science championed by thinkers in the pragmatist tradition (e.g. Dewey, Kitcher 2015) and also some phenomenologists (most notably Heidegger, at least his pragmatist readings). According to the pragmatist conception, science is a project that accompanies human practice as human life continues. According to the pragmatist model, science is not able to yield a pure observer-perspective on the world without involvement; the participant perspective is essential. The pragmatist model views science more like a democratic process which is open-ended and never finished. As a potentially open-ended project of humankind, science cannot even reproduce itself without personified scientists. Science enables learning processes, not dogmatic beliefs, according to such a view.
And this is how the pragmatist conception of science precludes the reduction of normativity. First, on the pragmatist conception science as an institution is always permeated by normative relations. The quasi-democratic structures of science as an institution require a robust sense of normativity. And secondly, if science is essentially a human practice which is essentially designed to accompany human life as such, then science is never ‘finished’ as a matter of principle. Therefore, on this model, scientific theories can never be ‘emancipated’ from their normative foundations in science as an institution as the perfectionist model aims to. Thus, the pragmatist model precludes any kind of metaphysical reduction of normativity, at least on the basis of scientific theories in naturalization projects.
If it is correct that two different conceptions of science tacitly underlie the naturalist and phenomenological treatment of normativity, then how does that help resolve the stand-off? In the first instance, this shifts the question from (meta-)metaphysical questions regarding reduction and fundamentality onto a different field, namely the ‘nature’ of science. The question regarding the nature of science is, perhaps, no less intricate than the former. After all, the question which conception of science is more accurate will have a multitude of perhaps unforeseeable implications across a wide range of areas. So some may say that maneuver leads from one impasse to the next. Contrary to such pessimism, the shift to a question about the nature of science may help resolve the stalemate as a small dialectical step. This is because the question about the ‘nature’ of science is, unlike questions about reduction, not exclusively a metaphysical question, but rather a question which is investigated by several scientific disciplines (next to philosophy of science itself, of course). More specifically, the transdisciplinary field of science studies, as a kind of science of science, which encompasses approaches from different disciplines, chief among them social science.
This shift is then helpful in two ways. First of all, if the question about whether normativity is genuine leads us to consider the ‘nature’ of science, then we do not have to rely solely on metaphysical reasoning, but can look at evidence provided by scientific investigation into science. Second, and relatedly, this is an approach which ought to be palatable and agreeable particularly to defenders of ontological naturalism. While the kind of naturalism at question here is ontological, and although ontological naturalism does not imply methodological naturalism, ontological naturalists have good reason to endorse some form methodological naturalism. This is mirrored in philosophical practice since, at least anecdotally, ontological naturalists tend to subscribe to some form of methodological naturalism.
Methodological naturalism in the tradition of Quine states that philosophy ought to be continuous with science (Quine 1960, 209). While this can be interpreted in different ways – De Caro (De Caro 2009, 369f.) identifies a dozen possible interpretations – it usually amounts to the idea that science ought to be the ultimate arbiter of how philosophy ought to be done. Applied to the current context, this means that a commitment to methodological naturalism (which many ontological naturalists do hold) renders it attractive to reconceive the question about the reduction of normativity to become a question about the scientific investigation about the nature of science.
This is, of course, not a conclusive answer, but would rather call for further research into what evidence the science of science can be utilized to be applicable for the question what the ‘nature’ of science amounts to.
- Scepticism About the Unity of Practical Normativity
Practical normative deliberation and inquiry aims to settle what to do, broadly construed, in various circumstances. Depending on the situation at hand, there are many kinds of consideration that might bear on the question of what to do. For example, we might consider what moral obligations are relevant. Or we might consider to what extent certain options would make us better or worse off. Further yet, we might wonder what the polite thing to do would be, or the courageous thing. And so on for many other kinds of consideration. Despite this variety, however, a natural and attractive picture of practical normativity is that each consideration is weighed up or otherwise taken into account from a single, unified perspective from which we determine what we ought to do overall, simpliciter, or all things considered. And, when practical reasoning goes well, this conclusion issues in an intention or choice to act accordingly.
However, some philosophers are sceptical of the notion of a normatively privileged standpoint which authoritatively adjudicates conflicts between distinct normative standpoints. Accordingly, they reject any such unified view of practical normativity. Instead, it is claimed, all we have is a plurality of competing normative standpoints, each authoritative from its own point of view, but none authoritative as such. In deciding what to do, we may choose or find ourselves compelled to treat some standpoint or other as authoritatively action-guiding. But there is no overall normative standpoint from which to justify our choice. That we treat morality, prudence, virtue, or whatever as authoritative is ultimately an existential choice, or simply a fact about our psychology. According to this view, therefore, practical normativity is radically disunified.
In this part of paper, I provide a response to scepticism about the unity of practical normativity. I will argue that the sceptical argument against the unified view implicitly relies on a key assumption about what is involved in taking up distinct normative standpoints. Specifically, it assumes that each kind of standpoint purports to settle what to do. However, this assumption can be challenged. I will argue that the proponent of the unified view can respond to the sceptical argument if they can show the assumption to be false. On an alternative view, it is only the standpoint of what we overall ought to do that purports to settle what to do. Thus, on this alternative view, the unity of practical normativity is preserved. However, the aim of this paper is not to establish the falsity of the key assumption, but to highlight the role that this assumption plays in the sceptical argument in order to show how it can be resisted. But I hope that many will find the commitments entailed by rejecting the assumption independently attractive.
The plan for the paper is as follows. First, I will outline the challenge to unity of practical reason by focusing on an influential argument due to Copp (2007). Second, I will highlight the key assumption in Copp’s argument and show how it can be rejected in fully general terms. Third, I will show how a certain kind of fitting attitudes theory of normative concepts might vindicate the general strategy proposed in the previous section.
5.2. The sceptical challenge
A number of philosophers have argued against the unified view of practical normativity (e.g. Hubin 2001; Tiffany 2007; Baker 2018). Here, I will focus on one argument in particular due to Copp (2007). Although Copp’s argument has received critical discussion elsewhere (e.g. McLeod 2001; Dorsey 2016a), I will set these discussions aside for now. In this section, I will first present an example of a ‘conflict case’ in which two normative standpoints seem to provide conflicting verdicts about what to do in the situation described. I will then explain how Copp argues against the unity of practical normativity on the basis of such an example.
Terrence Malick’s 2019 film A Hidden Life tells (spoiler alert) the story of the real life individual Franz Jägerstätter, a conscientious objector in the Second World War. In the film, Franz, a peasant farmer and a devout Catholic, is conscripted into the German Wehrmacht, where he is required to swear an oath of allegiance to Hitler and the Third Reich. However, because he thinks that it is wrong to swear allegiance to someone and something so evil, Franz refuses. Because of this, he is arrested and taken to prison. As events unfold and things get worse, Franz continually wrestles with the question of what his situation requires of him. His case eventually goes to trial, where his lawyer is confident that Franz can escape imprisonment and ultimately death if he opts to serve as a medical orderly. However, this would still require him to swear allegiance. Many people try to convince Franz that the cost of refusing is too high. But Franz cannot silence the voice of his conscience, which still tells him to refuse. So, standing before the court, asked to make his final decision, what should Franz do?
Call the above situation Franz’s Dilemma. A natural way to think about what’s going on in this example is that Franz faces a conflict grounded in the competing verdicts of two distinct normative standpoints. On the one hand, we might think that prudence requires that Franz swear allegiance. The cost to Franz for not doing so is large. He has given up his idyllic farming life with his family, and he will ultimately pay with his life if he refuses. On the other hand, we might think that morality requires Franz to refuse to swear allegiance and support such an individual and regime. In any case, this seems to be the way that Franz sees it. So we seem to have a conflict in which prudence requires us to do one thing and morality another.
Now, to be sure, one might disagree with these first order judgments about what prudence and morality require. One might think that morality could not be so demanding, or that Franz’s obligations to his family are morally more important. Or perhaps one might think that it really is best for one to live according to morality, or that by refusing Franz is fulfilling what he most valued or wanted. So depending on one’s first-order views of morality and prudence, as well as the details of the example, it might be uncontroversial whether morality and prudence do in fact give conflicting verdicts about what Franz ought to do. But it seems highly plausible that morality and prudence could deliver conflicting verdicts, so let’s just stipulate that the details of the case are such that prudence says that Franz ought to swear allegiance and morality says that he ought to refuse. So, again, what should Franz do?
In asking this question, we are not asking what Franz ought to do morally. We already know the answer to that question. Neither are we asking what Franz ought to do prudentially. Again, we already know that. We seem instead to be invoking some further normative standpoint. But it doesn’t seem to be just any other standpoint. For instance, we aren’t asking what etiquette requires of Franz, or virtue. This is because for any such standpoint, one can always ask: okay, I know that this standpoint requires Franz to j, but ought Franz really to j? Plausibly, this use of ‘really’ in ordinary discourse modifies ‘ought’ in order to express the concept of a normatively authoritative ought that weighs up the relative importance of the competing standpoints and conclusively and non-arbitrarily settles what to do (compare Ridge 2014: 20; Wodak 2019: 830f). This has been variously labelled as the free floating and unsubscripted ought (Foot 1972: 169), the all things considered ought (e.g. Wedgwood 2007), the practical ought (e.g. McPherson 2018), ought simpliciter (e.g. Baker 2018), and the just plain ought (e.g. Maguire and Woods 2020), to name a few. But the basic idea is that in conflict cases, the facts about what we overall ought to do are authoritative in settling what to do, bringing practical deliberation to an end.
On this interpretation of Franz’s Dilemma, we can make sense of the question ‘what should Franz do?’ as concerning whether the demands of morality are overall more important in this situation than the demands of prudence. I think that this is a plausible interpretation of Franz’s dilemma. Moreover, I think that it’s highly plausible that it’s intelligible. However, even this much is denied by Copp’s (2007) argument against the unity of practical normativity. This is because according to Copp, the very notion of an overall normative standpoint that can authoritatively adjudicate between conflicting normative standpoints is incoherent. So on Copp’s view, there simply is no standpoint that satisfies this concept.
To arrive at this conclusion, Copp (2007: 302) asks us to suppose for the sake of argument that there is a normative standpoint that is normatively more important that any other. Call this standpoint practical reason as such. What explains why practical reason as such is normatively more important than any other standpoint? Because this is ultimately a normative question, this explanation must come from the standpoint of practical reason as such or some other normative standpoint. If it comes from the standpoint of practical reason as such, then this cannot explain why it has authority over other standpoints. For the issue is not whether some normative standpoint has authority from its own standpoint. After all, morality has authority from its own standpoint, prudence from its own, and so on. So self-endorsement does not seem sufficient to explain what sets practical reason as such apart from other standpoints. This means that the explanation of the authority of practical reason as such must come from some other normative standpoint. However, we now seem to have contradicted our initial assumption that practical reason as such is the normatively most important standpoint. For if this further standpoint was not the most important standpoint, then it would lack the authority to explain why we should follow practical reason as such rather than some other standpoint. But then what explains the relative normative importance of this further standpoint? Again, self-endorsement does not seem sufficient, so we will have to invoke some further even more important standpoint, which sets us off on a regress.
The conclusion Copp draws from this argument is that the concept of a standpoint that is normatively most important simpliciter is incoherent. The resulting view is a disunified, pluralistic conception of practical normativity where different standpoints deliver conflicting verdicts about what we should do but where there is no normatively non-arbitrary way to adjudicate these conflicts. To be sure, as a matter of contingent fact we might care more about certain standpoints than others, and perhaps we necessarily care more about certain standpoints simply in virtue of our agency. But for any conflict case, there is no answer to the question: what should one do really? Again, there are a number of existing responses to Copp’s argument, but I won’t examine these here. Instead, I offer a different avenue of response. In the next section, I outline the basic strategy, before examining a way in which to implement the strategy in the proceeding section.
5.3. The general response
We saw in the scepticism about the unity of practical normativity is motivated conflict cases in which two or more normative standpoints issue conflicting verdicts about what one ought to do. A key assumption in thinking about the cases this way is that different kinds of normative ‘ought’ judgments have the same role in practical deliberation ¾ namely, settling what to do in the sense of bringing practical deliberation to an end by issuing in an intention, choice, or action. However, this assumption can be challenged. In this section, I will argue that if the assumption is false, then the sceptic misdescribes the conflict cases that motivate their challenge in a crucial way. The correct description of such cases, I will suggest, lends support to the unity of normativity. However, the aim of this section is simply to establish the conditional claim about what follows from the falsity of the assumption rather than to argue for its falsity.
Returning to Franz’s Dilemma, we were supposing that Franz prudentially ought to swear allegiance but morally ought to refuse. I’ve followed Copp in describing such an example as a ‘conflict case’. But it’s worth asking exactly wherein lies the conflict. For the judgments themselves do not seem to be in conflict. Morality and prudence are characterised by distinct standards, so there is no inconsistency in judging both claims to be true. Rather, the conflict seems to lie in what follows from each judgment, or what each judgment commits us to. Specifically, the conflict seems to arise because each judgment licenses conflicting verdicts about what to do. As Copp says, “These propositions are action-guiding or normative in a familiar sense.” (2007: 284) So while it is possible that morality and prudence might issue different verdicts about what one ought to do, it is not possible for an agent to follow both verdicts. So the idea seems to be that conflict cases are such because they engender a practical conflict. As Copp sees it, the issue between the proponent of unity and the sceptic is whether such practical conflicts can be adjudicated from a normatively non-arbitrary standpoint.
However, the assumption that moral and prudential ‘ought’ judgments are as such directly action-guiding in this way can be challenged. Instead, one might hold a view according to which only judgments about what one overall ought to do are directly action-guiding. On this view, moral and prudential ‘ought’ judgments have some other role in practical deliberation. Of course, we will need to say what this other role is. But if this view is correct, then ‘conflicting’ judgments about what we morally and prudentially ought to do will not as such issue in any practical conflict. This is because such judgments do not purport to settle what to do. Instead, only judgments about what one overall ought to do purport to settle what to do. As such, only conflicting overall ‘ought’ judgments will engender practical conflict. But in this case, the conflict arises within a single normative standpoint rather than between distinct standpoints. So any such conflict will not support scepticism about the unity of practical normativity.
In the next section, I will examine what such a view might look like in more detail. But to illustrate the general point, let’s reconsider how we should think about Franz’s Dilemma on this alternative view. The suggestion is that the judgment that Franz prudentially ought to swear allegiance and the judgment that he morally ought to refuse (conceptually) entail no commitments about which option to choose. So these judgments do not as such engender any practical conflict. Now, a practical conflict may arise if we make the further following judgments: Franz overall ought to follow morality and Franz overall ought to follow prudence. This is because we are supposing that judgments about what we overall ought to do purport to settle what to do. If this is the case, then either Franz will have more overall reason to follow morality or prudence or he will not. If he does have more overall reason to follow either morality or prudence, then the conflict will be straightforwardly resolved. If he does not have more overall reason to follow either morality or prudence, this might be because the reasons have equal weight, or because they are incommensurable, or because of some other reason. In such case, we might think that either option is permissible, or we might think that there is a genuine practical conflict. But if there is a genuine practical conflict, this is a fact about practical reason as such. On this view, it is not a conflict between different normative standpoints.
Of course, I haven’t said anything about how we should understand moral and prudential ‘ought’ judgments on this picture, and I haven’t given any reasons for thinking that the alternative picture is true. But if it is, then I think this shows that the conflict cases that motivated scepticism about the unity of practical normativity would in fact support the unified view. So what reasons are there to think that the alternative picture is true? One immediate reason might be that it vindicates the unity of practical normativity. In the present context, however, such a reason would be dialectically ineffective. What we therefore want is independent reason for thinking that the alternative picture is true.
In the next section, I argue that the alternative picture can be defended by embracing a fitting attitudes theory of normative concepts. Insofar as there is independent reason to accept such a theory, then there is independent reason to reject the sceptic’s assumption. Obviously, however, the fitting attitudes theory is itself controversial. However, I offer the theory has as an illustrative example of how the sceptic’s key assumption might be challenged rather than as entailed by the general response. Nonetheless, the general response does involve taking on substantive commitments about the nature of different kinds of normative concepts. As such, I do not take the general response offered in this section to be a fully general response to the sceptical challenge, in the sense that not all proponents of the unity of practical normativity will accept it.
Before proceeding to the next section, however, let me offer one general reason for taking the approach suggested in this section. If we accept that there are different normative standpoints, such as morality and prudence, then we are owed an account of what individuates these standpoints. An immediate answer due to Dorsey (2016b) might be given as follows. Morality is that standpoint characterised by the correct first-order account of morality; prudence is that standpoint characterised by the correct first-order account of prudence, and so on. According to Dorsey, there is nothing else we can say about what makes the moral or prudential domain distinctive. The problem with this, however, is that it is left totally mysterious why (say) our moral concepts and judgments are about morality rather than some other standpoint. Surely there is something in virtue of which moral concepts pick out one kind of standard rather than another. Moreover, Dorsey goes as far as to claim that “whether a considered judgment has moral content or not should be determined by its capacity to survive whatever proper epistemic procedure is appropriate for first-order moral inquiry” (2016b: 772). However, this has the absurd consequence that false moral judgment is impossible. So the proposal is surely false. We therefore need some other way of individuating different kinds of normative ‘ought’ judgments. And this is exactly what is offered by the kind of view being suggested here.
5.4. Fitting attitudes theories of normative concepts
In this section, I will briefly outline how accepting a fitting attitudes theory of normative concepts might help to vindicate the unity of normativity by undermining the key assumption in the sceptic’s argument. According to this assumption, taking up the moral or prudential standpoint in normative deliberation fundamentally amounts to the same kind of thing. In both cases, we aim to settle what to do on the basis of what morality or prudence requires of us. What distinguishes taking up one standpoint rather than another according to this view is simply a matter of the ranking we assign to the various options before us. By contrast, according to fitting attitudes theories, what distinguishes taking up one standpoint rather than another is not simply assigning a different ranking to the options before us. Rather, there are important differences in what these rankings are about. I will argue that specifying the content of different kinds of normative judgments along these lines allows us to see how moral and prudential ‘ought’ judgments do not purport to settle what to do and therefore do not as such engender any practical conflict.
The basic idea behind fitting attitude theories of normative concepts is that different kinds of normative concept can be analysed in terms of a more fundamental normative notion ¾ fittingness ¾ and the attitudes that those concepts are distinctively about. As Darwall puts it: “every normative concept is tied conceptually to some specific attitude or set of attitudes; each is the concept of being a fitting object of its distinctive attitude or attitudes.” (2010: 138f) Relatively uncontroversial examples of fitting attitudes analysis might be taken to include: the desirable being the fitting object of desire; the admirable being the fitting object of admiration; the preferable being the fitting object of preference; and so on. The attractiveness of these views stems from the semantic connection to the attitudes implicated in each of these concepts (Schroeder 2010). But the hope is that the general pattern can be extended to other normative concepts like the moral and prudential ‘ought’.
To get a sense of how what this might look like, consider the following two proposals due to Darwall as applied to Franz’s Dilemma. First, Darwall (2006) proposes that our moral concepts essentially concern a certain kind of accountability that we have towards each other as persons. More specifically, morality is conceptually bound up with the attitudes of guilt, blame, and indignation (see also Strawson 1962; Gibbard 1990). Roughly, then, on this view to judge that Franz morally ought to refuse to swear allegiance is to judge that it is fitting for Franz to feel guilt for not refusing and that it is fitting for us to blame or feel indignation towards Franz for not refusing. Second, Darwall (2002) proposes that our concept of welfare or well-being essentially concerns a kind of sympathetic care that we have towards others. More specifically, our concept of well-being just is our concept of what we have reason to want for those that we care about. Roughly, then, on this view to judge that Franz prudentially ought to swear allegiance is to judge that it is fitting to want Franz to swear allegiance insofar as we care about Franz or have sympathetic concern for him.
Supposing both of these proposals were true, we now have an explanation for why the sceptic was wrong to assume that morality and prudence as such engender a practical conflict. This is because neither judgment says anything about what it would be fitting to intend or choose. On Darwall’s view, that is not what moral and prudential judgments are about; they do not settle the question of what to do but answer a different question. The idea would then be that overall ‘ought’-judgments do settle the question of what to do because our concept of ‘ought, overall’ just is that concept that settles what to do in normative deliberation (compare McPherson 2018).
One might object to the following picture as follows. Isn’t it just obvious that morality is action-guiding? Isn’t it obvious that (say) fulfilling a promise or avoiding harming others provide us with distinctively moral reasons for action, not just for forming attitudes? In response, it is not being suggested that we have no reason to fulfil our promises and avoid harming others. But on the current view, these are facts about what we have overall reason to do. We can call these ‘moral reasons’ insofar as they are practical reasons related to the distinctive or characteristic concerns of morality, whatever exactly those are. But they are reasons that arise from the standpoint of practical reason as such. So while it might be the case that morality is action-guiding, the current picture can explain this in terms of morality’s place within the standpoint of practical reason as such. One might then wonder why we need a distinctive moral standpoint if we already recognise ‘moral reasons’ (de re) from the standpoint of practical reason as such. Clearly, it would be beyond the scope of this paper to answer this question. But if something like Darwall’s view is right, then we might think that our moral concepts allow for a kind interpersonal accountability that isn’t provided for by our concept of ‘ought, overall’ and its cognates. Moreover, given the importance of morality and its purported role in facilitating social coordination, it makes sense that we would have such a practice.
A nearby worry is that the attitudes implicated by our moral concepts are themselves a kind of action-guiding attitude, and so it is not clear that moral judgments can be separated from questions about what to do. However, I think this aspect of the account is a feature of the view rather than a bug. It is plausible to think that morality is inherently normative in a way that other standpoints are not. In contrast, say, to etiquette or feudal norms, the normativity of morality is not merely generic or formal, but authoritative and substantive. I think that this aspect of morality can be captured on the current account. Although moral judgments are not as such about what to do, the reactive attitudes who fittingness they are about are intimately (but not conceptually) related to the attitudes of intention and choice. We can think of such attitudes playing an indirect, regulative role in practical deliberation (compare Gibbard 1990). To make this connection vivid, imagine a community that made judgments about the fittingness of guilt, blame, and indignation much like we do but that did not take themselves to have any overall reason to act morally (where this is read de re). Whether or not such a community is possible, there is surely something bizarre about it. For what would the purpose of such moral practice be if it were not connected to how we act?
Hopefully, a similar story can be told about why prudential judgments are intimately bound up with judgments about what we overall ought to do, even if they are not directly about what to do. But I will leave question aside for now. The point in this section has been to show how a fitting attitudes theory of the concepts distinctive of certain normative standpoints (e.g. morality and prudence) might support the claim that moral and prudential ‘ought’ judgments do not as such settle what to do, even if they are intimately related to action-guiding attitudes. Although the picture drawn here has been little more than a sketch, I hope it is clear how such an approach would ultimately vindicate the unity of practical normativity.
«Some rules regulate antecedently existing activities. For example, the rule “drive on the right side of the road” regulates driving; but driving can exist prior to the existence of that rule. However, some rules do not merely regulate, they also create the very possibility of certain activities»
John Searle (The Construction of Social Reality, London, Penguin, 1996)
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«In so far as a scientific statement speaks about reality, it must be falsifiable:
and in so far as it is not falsifiable, it does not speak about reality»
Karl Popper (The Logic of Scientific Discovery)
«Language is conceived in sin and science is its redemption.
To be is to be the value of a variable.
Language is a social art»
Willard Van Orman Quine (Word and Object)
«A curious thing about the ontological problem is its simplicity.
It can be put into three Anglo-Saxon monosyllables: “What is there?”
It can be answered, moreover, in a word: ‘Everything’ and everyone
will accept this answer as true»
Willard Van Orman Quine
«To teach how to live without certainty, and yet without being paralyzed by hesitation,
is perhaps the chief thing that philosophy, in our age, can still do for those who study it»
Bertrand Russell (A History of Western Philosophy)
- THE EPISTEMIC (AND ANALOGICAL) RELATIONSHIP BETWEEN POLITICS AND CRITICISM.
The aim of my opening pages is to build a connection between the epistemic conception of criticism and the conception of politics within Kantian work. The focal point of my thesis is that even at the basis of the very possibility of criticism lies an “economic” structure of relationships between different epistemic discourses, which coexist in a non-independent and non-separate way. The concrete coexistence of the different families of sentences and their irreducibility to a homogeneous unity, is in this sense specular to the relationship between men and the relationship between peoples, which are not able, because of the sphericity of the Earth, to escape one another forever. In the same way, the different discursive, cognitive and practical sets find themselves living together, intertwining with one another.
Precisely in this interweaving, in this exchanges and loans, mostly made up of formal analogies between different discourses, one can trace a subject, which does not precede such sets of discourses, but arises as a subject capable of criticism precisely from the “transactions” that are established between the different families of sentences. Only this interstitial character allows a critique of the theoretical presuppositions without placing oneself “outside” of what is criticized. In this sense, criticism is political; similarly, politics becomes criticism to the extent that it is able to orient its judgement in a not completely arbitrary way even when it is grappling with “exceptional” cases, so that it is not already given a rule to apply.
1.2. Starting from the Kantian criticism
Opening his essay on Enthusiasm, Lyotard immediately establishes an analogy between criticism and politics within Kantian thought, or rather between the figure of the critic and that of the politician. This association may surprise, also because canonically among Kant’s properly political texts are not included the three Critics, but only (with rare but meaningful exceptions, such as the Beantwortung der Frage: Was ist Aufklärung?) some texts after the 90s of the 18th century, i.e. after the writing of the last Critique, the Critique of Judgement. More generally, the problem of identifying a coherent Kantian political theory is still present nowadays within contemporary works, which often tend to isolate manifestly political texts from the rest of the author’s work. Instead, establishing a relationship, albeit in an analogical way, between criticism and politics, is an effective way of systematically understanding Kant’s treatment of politics, which is only rarely explicit, yet constantly present.
The analogy of the critical phrase (and therefore of what for Kant can be defined properly philosophical phrase) and of the political one arises from their non-doctrinal character. A doctrinal phrase operates a subsumption under an already given rule, within a more or less coherent system of knowledge, depending on the logical hold of the doctrine itself. The critical sentence, instead, cannot rely on already given rules of determination, otherwise it would be incapable of playing the role that makes it “critical”. In fact, the critic cannot rely solely on a pre-constituted doctrine, but must be able to judge precisely the cognitive claim and validity of the different “families of sentences”, and this he can’t do by using only the instruments of legitimation established by the doctrine itself. A doctrine can’t in fact judge its own principles through those same principles.
It must not deceive in this sense Kantian’s continuous reference to a juridical structure, to a “court of reason”, within the Introduction of the Critique of Pure Reason. As pointed out by Nancy (1977), the juridical form is precisely the one that thought, in its passage from the Greek to the Roman, assumes in order to find a stable and legitimizing form, at the cost, however, of producing a fiction, a displacement at the level of the establishment of the law itself and, with it, of the judge. The only court that can be established without reference to previous legislation is in fact an “exceptional court”. This is where political language begins to merge with the language of criticism, overcoming its purely legal characterization.
The critical process can’t be reduced to a non-radical work of epistemological purification, i.e. it can’t only eliminate some logical inconsistencies of the different doctrines, while keeping their assumptions intact. In the same way, an exceptional tribunal cannot cling solely to the rules preceding its institution, since it would thus deny its very purpose. The dynamism brought about by the exceptional state consists precisely in this necessary break with the previous legislation.
The problem that arises in keeping with the exceptional character of the critical process is therefore the possibility of tracing a sort of criterion for it, which cannot, however, be given before-hand, otherwise the same exceptionality, the extraordinariness in the sense of the impossibility of a encompassment within an already pre-ordained system, would be lost. The Kantian instruments for understanding and for opening a way towards the resolution of this difficulty are to be found within the Critique of Judgment, in the distinction that he formulates between the determining Judgment and the reflective Judgment.
The first form of Judgement is that which allows the subsumption of a particular under a given universal. This is a type of Judgement which already appears in the Critique of Pure Reason, because it is necessarily involved in the structure of the intellect, which carries out its task in a subsumptive way, through those transcendental concepts which are the categories. This work of subsumption therefore takes place between two terms, namely the particular and the universal, both of which are already given to the subject: the task of connecting them is naturally not completely passive (as it is nothing in the structure of Kantian knowledge), but does not require the introduction of further terms.
Instead, when one judges in a reflective way, one does not proceed by simple subsumption, but is obliged to “rise up from the particular of nature to the universal”. The principle by which this Judgment operates can’t be found in experience, because otherwise it would not be a principle at all, and at the same time it cannot be derived from anything other than the particular, otherwise we would have to deal with a determining Judgment: it is therefore necessary that it is the reflective Judgment that gives itself this principle. Reflection therefore operates, through its character of exceptionality, an inversion of the direction of knowledge. The logical and chronological relationship between universal and particular is reversed: the second precedes the first, and becomes what the universal can be drawn from.
Kant uses this theoretical distinction to account for two peculiar forms of judgement, which seem to go beyond the boundaries drawn by the first Criticism: the aesthetic Judgement and the teleological Judgement. The knowledge of the beauty and purpose of natural objects, in fact, is not a knowledge that operates in the same way as the theoretical-empirical one. It does not surprise us here that the scope of a reflective judgement theorization is precisely that of the excess with respect to the doctrine of knowledge formulated within the Critique of pure reason:
1) on an aesthetic level with the structure of a subjective universality, that is, a universality without concept;
2) at the teleological level with the inversion of the causal mechanism, of the logicaltemporal relationship between conditioned and conditioned.
The aesthetic problem, in its formulation of a judgement without pre-established rules, formulates with a surprising radicality the problem that underlies right as a whole: the claim of universality of judgement of taste is the claim of “the right of what is right without right”. It is precisely in this last field that the critical philosopher moves. In this sense, the philosopher himself remains a regulatory and ideal figure, towards which to strive, but which will never see a complete realization. Such temporal infinity is the translation of the infinite mode of the legitimation of Judgement. In fact, a criterion for the Judgement would in turn require a further criterion, and so on to infinity; if the same logic is applied to the philosopher, every philosopher would require another philosopher who would recognize him as such, who would question his principles. How, however, can one think of a subject who is capable of criticizing a discursive whole within which he is immersed? How is it possible to formulate a judgment that has a critical claim and at the same time is not to be conceived as totally arbitrary?
It is precisely in the reference to the ideal, in the constant excess that it proposes with respect to the capacity of subsumption of the determining judgement, in its never being completely saturated by concrete historical examples, that lies the possibility of a form of cohesion that does not destroy the heterogeneity of the different “areas” and that together does not lead to a contradiction. The ideal of the philosopher, which is then the ideal of the critic (and, by analogy, of the politician) is what keeps the subject united, who is here not only the subject of every possible experience and not even the moral subject, but the subject of all areas of knowledge, and as such able to exercise a non-dogmatic criticism, further to the preconstituted doctrines.
What I intend to argue here is that this ideal subject, which allows criticism, should not be sought within discursive sets, as one who is capable of “speaking” these languages, neither in a unitary sense, nor as a plurality of different subjects. I do not maintain, however, that it is necessary here to disregard the historical emergence of the different discursive and epistemic formations. Instead, it is precisely within that liminal area that characterizes them that the search for the subject must be carried out. The critical subject is a marginal subject, which arises precisely in the space of intersection made possible by the different discursive ensembles. In fact, they behave like “islands” of an archipelago, which are distant, but only partially independent: the critical philosopher can however move between them, and operate “transactions” or loans between the different areas.
The possible exit from the dogmatism characteristic of critical practice, moves precisely within this relationship of analogy and coherence between the different “families of sentences”, in this exchange between the different fields of application of Reason. The subject capable of criticism is the product of friction (if we want also of antagonism, to take up a concept that characterizes human relations for Kant) between these discursive sets, but at the same time it can become their produc-er, as it is generated precisely in the surplus that they imply in their ideal constitution, giving rise to the possibility of rupture and novelty. He finds in the analogy, in the “as if” [als ob], the condition of his own existence, which is manifested in the form of reflective judgment.
The problem of the relationships between the different “areas” or “islands” of knowledge is therefore not posed as the problem of the search for a unitary origin, for a “solid” foundation given once and for all as a background to knowledge. We are not here looking for a philosophical equivalent of what the transcendental apperception, the “I think“, carries out for experience: it is therefore not the “man” understood as an already determined concept to establish the possibility of transition from one area to another. The subject sought here is not previously given with respect to the discursive structures of which it can become a particular subject: it does not reveal itself as pre-constituted, but is what arises between those discursive structures, precisely through the “transactions” happening between them. It is therefore only in a reformulation of the question of the possibility of a critical subject that the concrete possibility can be found. The subject should not be sought in the point of conjunction of the different discourses: it is this point of conjunction.
The second point, which I intend to make in this direction, is that the analogy between politics and criticism is not limited solely to the non-doctrinal aspect of the two “families of sentences”, but that there is precisely a common structure to the two discourses, namely that the basis of philosophical criticism is fundamentally political and that politics is essentially a practice of criticism. With regard to the first point, it can in fact be said that the different areas of knowledge relate and remodel themselves on the basis of their relationship, in a way that is analogous to that of political relations between men. It includes within itself the need for a “trade” between the different discourses which must interact with each other in order to maintain a possible horizon of meaning for reflective judgement, which would not be possible to find in a simple separate coexistence. The system of knowledge in this way is configured as “open”, capable of a dynamism and refraining any form of crystallization. The “eternal laws” of pure Reason lose overall their hypostatic character, but they come to be formed also thanks to the appearance of new discursive sets with which the individual can confront himself and of new possibilities that the subject has to become a speaker.
Specularly, or rather analogously, politics as such must constantly exercise a critical work, since it is constantly confronted with the happening of events, with the contact with otherness, in which the conflict is not settled, but becomes a historical driving force and a possibility of breaking with the past. The need for a horizon of non pre-determined meaning is constantly pressing at the political level, precisely because of the constitutive intersubjectivity of this field, which constantly leads the politician to take decisions on cases that present themselves as concretely “new”, i.e. liable to a decisive judgement according to concepts already formulated previously. It is no coincidence that the most characteristic moment of politics is precisely the crisis, which originates from the Greek krísis, which means “choice, decision”: the decision is precisely the area in which criticism comes into play, with its “court of exception”, whose judgment, despite not being subsumed under a rule already given, does not give way to complete arbitrariness, precisely because of the horizon of meaning provided by the “commercial” relationship between the different discursive sets and between the different individuals who move in them.
- From Kant to Fichte: or A Reason to Know
It is often thought that desire-based versions of reasons internalism, according to which our practical reasons depend on what we desire, are committed to too much variability in our reason sets. I shall argue, however, that such theories are committed to an invariable desire which gives rise to an unexpected categorical reason – a reason to know our surroundings. I will arrive at this conclusion by an unexpected route: Fichte’s argument for thinking that security from unpredictable and powerful forces of nature is constitutive of agency.
Fichte thinks this is the case because we ought to aim at knowledge of our surroundings, and such environments uniquely facilitate it. I show that his argument fails, but the point that we ought to aim at – or desire – such knowledge is fundamentally sound, and this aim can be leveraged to generate a categorical reason when embedded in a typical internalist conception of agency.
According to desire-based versions of reasons internalism, roughly yet famously, an agent A has a reason to φ just in case she or her idealized counterpart desires to φ. Such theories have often been charged with being unable to explain the pre-theoretical extension of our reason sets. For example, if A lacks a desire to do what is morally right (or her idealized self does), desire-based versions of reasons internalism seem to imply that A lacks reason to be moral.
A common line of response to this worry is to claim that there are certain desires that are rationally mandated and hence universally shared, yielding moral conclusions. Whether or not such arguments work is an open question. But the general worry about reason sets extensions – if A lacks the right desires, she lacks the right reasons, or if she has the wrong desires, she has the wrong reasons – implies that A’s reasons are in principle variable because desires are in principle variable, so there cannot be any reasons that all relevant agents share.
This implication generates another, similar yet unexplored, question: Can there be desire-based reasons, on reasons internalism, that hold categorically independently of whether these reasons have anything to do with morality? Regardless of what we want to say about morality, it would be a remarkable result if it turned out that desire-based versions of reasons internalism could be committed to such reasons. If some categorical reason(s) obtain on reasons internalism, the normative upshots of desire-based reasons internalism need not be as contingent as it normally has been assumed. Here, then, I aim to explore whether desire-based reasons internalism is committed to any categorical reasons at all, quite independently of whether it or these are moral. If that is the case, reasons internalism does not have as contingent results as it often has been assumed.
Taking unexpected cues from Michelle Kosch’s recent work on J.G. Fichte (Kosch, 2015; 2018), I shall argue that desire-based reasons internalism, suitably interpreted, is committed to at least one such reason. This is a (practical) reason to obtain or maintain knowledge about our surroundings. Using Fichte’s insights and some standard desire-based reasons internalist assumptions, my strategy shall be to argue that all agents the desires of which explain reasons are committed to desiring such knowledge. As reasons internalism, suitably understood, takes our reasons to depend on their desires, it follows that all agents have such a reason. And, moreover, if a reason that all agents share is categorical, this is a categorical reason. But it is not obvious whether it has anything to do with morality.
To show this, in this second part of research, I start in section (1) by outlining Kosch’s Fichte. In section 2, I raise some problems for the argument she attributes to him. In section 3, however, I claim that its main insights can be coopted into a reasons internalist framework, generating the conclusion from the last paragraph. In section 4, I evaluate whether the reason I have defended is a moral reason in the light of various interpretations of what it is for a reason to be a moral reason, arguing that it while the reason is categorical, it is highly unclear it should be construed as a moral reason.
2.1. Kosch’s Fichte
In recent work, Michelle Kosch has done much to draw attention to Fichte’s moral philosophy. She has reconstructed his views and differentiated them from Kant’s, making his innovations stand out. Building on her work, I shall incorporate some Fichtean moves into an even more contemporary debate. That also means that I shall not be concerned with historical accuracy, so I want to state this early that I am interested in Kosch’s Fichte, not Fichte himself. Whether or not this rendition is historically accurate is a question I will leave to others to answer. Nevertheless, I shall refer to Kosch’s Fichte as just ‘Fichte’ from here and on.
Fichte, then, takes independence to be of central concern in both the philosophy of action and ethics. More specifically, he thinks that there are several constitutive aims of agency, meaning that there are several things agents aim at, and are agents in virtue of aiming at. The first aim is formal independence: Perfection in the exercise of the disposition to set ends on the basis of concepts of ends through the activity of rational reflection (Kosch, 2018, ch. 4; cf. p. 152). That is a complicated way of saying that is constitutive of agency to set ends (including forming plans or intentions) that the agent aims to live up to by reflecting on what to do.
However, agency also has the aim of material independence. An action lives up to this aim, Fichte thinks, when it is part of a series of actions in the limit of which one would ‘arrive at the state of absolute freedom from all limitation’ (Kosch, 2018, p. 39; cf. Fichte, 1798). What does that mean? Interpreters are divided, but Fichte seems to think that freedom from limitation is a telos of action the satisfaction of which one should maximize, and consequently that actions are better (or worse) to the extent that they live up to (or fail to live up to) it.
Here, Fichte’s claim seems to be that a formal notion of independence, as encapsulated in his first constitutive aim, is not action-guiding: One can live up to the aim of setting ends via concepts through rational reflection and still act in pretty much any way. However, the rational self has many properties of its own, and these set limitations on how one may do so. Independence for the rational self, qua rational self, grounds three types of duties which are conducive to its material independence. These are duties concerning the preservation and development of its physical power, of its intellect, and of coordinating its own and others’ activities.
How all this hangs together and whether or not it is true are highly debatable issues. But regardless of what we make of Fichte’s framework, he also seems committed to taking the aim of ‘an environment secured against unpredictable, powerful forces of nature’ (Kosch, 2018, p. 158) to be a sub-aim of the aim of material independence. And that is what is of interest here.
More specifically, then, Fichte argues that:
(1) An agent who aims to exercise her capacity rationally to set ends ought (ceteris paribus) to aim to obtain or maintain any conditions necessary for the exercise of that capacity.
(2) Possession of knowledge concerning causal regularities and concerning the disposition of items in the environment is a condition necessary for the exercise of the capacity rationally to set ends.
(3) An agent who aims to exercise her capacity rationally to set ends ought (ceteris paribus) to aim to obtain or maintain of knowledge concerning causal regularities and concerning the disposition of items in the environment (1, 2).
(4) An environment secured against intervention by unpredictable, powerful forces uniquely facilitates the acquisition of knowledge concerning causal regularities and concerning the disposition of items in the environment.
(5) An agent who aims at acquiring knowledge concerning causal regularities and concerning the disposition of items in the environment ought (ceteris paribus) to aim to obtain or secure any conditions uniquely facilitating its acquisition.
(6) An agent who aims at acquiring knowledge concerning causal regularities and concerning the disposition of items in the environment ought (ceteris paribus) to aim to obtain or maintain an environment secured against intervention by unpredictable, powerful forces (4, 5).
(7) An agent who aims to exercise her capacity rationally to set ends ought (ceteris paribus) to aim to obtain or maintain an environment secured against intervention by unpredictable, powerful forces (3, 6).
(8) Every rational agent aims to exercise her capacity rationally to set ends.
Every rational agent ought (ceteris paribus) to aim to obtain or maintain an environment secured against intervention by unpredictable, powerful forces (7, 8).
This argument is taken verbatim from Kosch (2018, pp. 158-159). It is quite a mouthful, so some explication is needed to make sense of it here. Premises (3), (6), (7) and the conclusion follow from other premises, but how are we to understand or motivate the others?
Premise (1) is formulated in terms of ‘[a]n agent who aims to exercise her capacity rationally to set ends’ (Kosch, 2018, p. 159). That is another way to speak of the capacity of formal independence which is constitutive of agency, in Fichte’s sense, as specified above. Fichte thinks that if agents have that constitutive capacity – which they do if it is constitutive of agency, and they are agents – and are instrumentally rational in the sense that they take necessary means to their ends, the agents seem committed to the consequent of the premise, i.e. ‘to aim to obtain or maintain any conditions necessary for the exercise of that capacity.’ This is because the consequent specifies the necessary means they must take to exercise their formal constitutive aim to rationally set ends.
Premise (2) reads: ‘Possession of knowledge concerning causal regularities and concerning the disposition of items in the environment is a condition necessary for the exercise of the capacity rationally to set ends.’ It is supposed to be an expression of ‘the claim that empirical knowledge is required for the exercise of practical reflection that is part of rational agency’ (Kosch, 2018, pp. 159-160).
Why? Kosch – I write ‘Kosch’ because Fichte does not seem to put the point in the same way (Kosch, 2018, pp. 22-24) – argues that it is impossible to intentionally perform an action one does not have any idea about how to perform or aim at an end one has no idea about how to pursue. It therefore follows that it is necessary to have at least some level of knowledge about one’s environment to form plans. Kosch is aware that these claims about the relation between intention-formation and knowledge are controversial, however, and therefore also supplies some additional reformulations of them. These reformulations need not concern us yet, however – I shall return to this argument in section 3 below.
Instead, we reach premise (4). It reads: ‘An environment secured against intervention by unpredictable, powerful forces uniquely facilitates the acquisition of knowledge concerning causal regularities and concerning the disposition of items in the environment.’ Why should we think this? Fichte seems to think that ‘an environment secured against unpredictable forces is required for an agent to have knowledge of the means at her disposal in any given instance of practical deliberation’ (Kosch, 2018, p. 161). This is so because an environment so secured allows the agent to increase the reach of her practical deliberation. In an insecure environment, the agent may have the means to her ends taken away from her while she acts, meaning that she cannot enact the plans she aims to perform. On the other hand, in a secure environment, the agent is able to formulate and execute increasingly complex plans, freeing her from external limitations (as per the aim of material independence).
Fichte uses considerations like the one just mentioned to justify the institution of property (cf. Kosch, 2018, pp. 75-77), but Kosch expands on his points and generalizes them to causal knowledge in general, whether or not it is related to property. However, she also departs from Fichte’s considerations in two ways to generate (4) as it stands here.
First, she denies that a secure environment is ‘required’ – or is a necessary condition – for the relevant kind of knowledge, instead preferring the language of ‘unique facilitation’. This is for two reasons. First, even Fichte seems to allow that it is not necessary for us to counteract natural forces when we act. Instead, if we know enough about them, we can plan around them. For example, instead of using a mosquito net to counteract mosquito bites, we can, at least in principle, avoid sleeping in places where mosquitos risk biting us. Hence, it is not necessary for us to secure our environment against mosquito bites. Second, we do not need full control of our environment to learn about it. Sometimes just observing it is quite enough. It follows that a secure environment is not necessary for knowledge, though it does – Kosch thinks – uniquely facilitate it.
Moreover, Kosch also argues that we need general knowledge of our environment rather than knowledge which merely would enable us to act at the present moment. To defend that claim, she agrees with writers like Nagel (1970) and Parfit (1984) that we should not privilege our present from our future deliberation. Our temporal location makes no difference. Second, she adds that deliberation can be creative, and involves making more and more complex plans over time. If that is the case, we need more knowledge than what we have at present. Adding these two points up with other Fichtean premises, she reconstructs a Fichtean argument for (4) as she states it herself. Again, however, we need not be concerned with the exact details here.
Premise (5) is another application of the instrumental principle. The premise, remember, says that: ‘An agent who aims at acquiring knowledge concerning causal regularities and concerning the disposition of items in the environment ought (ceteris paribus) to aim to obtain or secure any conditions uniquely facilitating its acquisition.’ The core idea here is that acquiring knowledge concerning causal regularities and dispositions of items in the environment is uniquely facilitated by the conditions which facilitate it, so, by a plausible formulation of a norm of instrumental rationality, one ought to attain it (Kosch 2018, p. 159).
Finally, premise (8) is the last controversial premise. To repeat, it reads: ‘Every rational agent aims to exercise her capacity rationally to set ends.’ Kosch claims that she ‘[has] nothing to say in defense of (8) that goes beyond the defenses already abundant in the contemporary Kantian literature’ (Kosch, 2018, p. 159). It would be nice to know which defenses Kosch has in mind here, but I will not push this point. We can assume (8) for now, for the problems I shall identify for Fichte’s argument come much earlier.
2.2. Problems for the controversial premises
I have now explicated Fichte’s argument for why security from unpredictable and powerful forces of nature is constitutive of agency. But one may, of course, have several issues with it. I shall emphasize problems for two premises that, later, shall lead to my reformulation of the argument. The premises in question are (1) and (4). In the next section, I shall argue that premise (1) may be reformulated to avoid the problems I shall present for it. However, the problems for premise (4) seem to me decisive, so there is little need discuss the argument further after this critique.
Let us start with premise (1). In premise (1), as mentioned, Fichte appeals to ‘an agent who aims to exercise her capacity rationally to set ends.’ This is his understanding of the formal constitutive aim of agency. A first problem with such a capacity is that it is unclear why an agent (or rational agent) would have to exercise – or aim to exercise – her capacity to set ends to be an agent (or even a rational agent). This looks like a kind of overintellectualization to me: Agents need not engage in deliberation to set their ends. And if it is not constitutive of agency, rational or not, to have such a capacity, Fichte’s argument does not hold for all relevant agents.
Why is Fichte overintellectualizing? Some ends just naturally occur to us – desires for food, drink, sleep, pleasure, and what have you plausibly just stem from our biological hardwiring. And they can plausibly feature in plans, intentions, or ends for us, without us having to do any cognitive work to reach them. Hence, there is no need to appeal to any rational or reflective end-setting capacity to generate the ends that an agent may have. Hence, it is not constitutive of agency to set ends.
Perhaps Fichte could reply by thinking of the ends I have mentioned as ‘mere inclinations’ or ‘brute desires’ or something like that, where they do not quite qualify as ends, in his sense, whatever else that involves. But that is hardly plausible for all our actual ends. The desires for food, drink, sleep, and pleasure are hardly ‘mere’ or ‘brute’ in any sense of those words according to which such ends count less as important as any more intellectually refined ends – if any ends are common among humans, it is these. Hence, they plausibly count as ends, or at least the bases out of which we set our ends, without any rationalistic machinery. Again, Fichte seems to overintellectualize our end-setting.
A second problem for premise (1) is that, even granting that that agents have a rational capacity to set ends, the exercise of the capacity should not plausibly be construed in a way where instrumental rationality applies to it. And if that is the case, there is no reason for us to connect the capacity to set ends to us having knowledge about our circumstances. Aiming to make use of the capacity to set ends rationally need not have anything to do with aiming to do so in a way that makes instrumental rationality apply.
The reason we need not connect a capacity of instrumental rationality to the exercise of the capacity to set ends is that the capacity to set ends need not be exercised in action or even in conscious deliberation. Sometimes we set our ends actively and through deliberation. But often we form plans or intentions without any prior aim of doing so. For example, if I am walking down the street and I see a venomous snake on the pavement in front of me, I do not need to deliberate (or perform any other action) to make a decision to walk somewhere where I avoid it. I just form the plan or intention to walk elsewhere than in its path.
Because of the non-conscious way in which I form my intention here, a principle of instrumental rationality need not have any bearing on the exercise of the capacity to form the end. On a rough yet standard formulation, instrumental rationality regulates the relation between my ends and means; if I aim (desire or intend) to φ, and I believe φ φ is a necessary means to φ, I am irrational if I do not φ φ. But one need not aim to exercise one’s capacity for intention-formation to exercise it – it is just not the sort of thing that one needs to aim at exercising to exercise. Hence, it seems like a category mistake to connect instrumental rationality to the capacity to set ends; though we may aim to set ends (or form intentions), we need not do so.
Now to premise (4). The reader may remember that the premise reads: ‘An environment secured against intervention by unpredictable, powerful forces uniquely facilitates the acquisition of knowledge concerning causal regularities and concerning the disposition of items in the environment.’ This is hard to interpret – what is an ‘environment’, for example, let alone a ‘secure’ one? What does it mean for a force to be ‘unpredictable’ or ‘powerful’? Kosch does not say, at all. But regardless of how we should interpret the premise, it seems straightforwardly false, and I shall endeavour to show that using some examples which apply on any plausible interpretation one may give it. There are two main problems here.
First, again, it seems false. I grew up close to wild nature, and there were several large animals that I could spot fairly easily in the area – lynx and moose, for example. But I was under no threat of tsunamis, or indeed of any other natural disasters. Assume, however, that everything would have been the same except that the area would suffer from tsunamis every now and then (without anyone knowing exactly when they would appear, so they still count as unpredictable). Why would the risk of tsunamis affect my – or a team of scientists’ – ability to observe the major mammals living in the area?
Well, maybe I (or they) would not get out into the local forest as often to observe them if there had been a risk of tsunamis. But we should still easily be able to get out often enough to observe the animals and learn many interesting things about them. It would take a very extreme environment for us to not be able to go outside to observe the animals every now and then.
Hence, I suspect premise (4) is inflated. Environments at risk of suffering from the effects of unpredictable, powerful forces of nature can still be secure enough for standard human lives – let alone for gathering knowledge about one’s surroundings. Therefore, secure environments do not uniquely facilitate the kind of causal knowledge Fichte thinks agents need.
But there is an even greater problem for (4). Insecure environments often seem better at providing us with knowledge about causal regularities or the dispositions of items in them than secure ones do. This is particularly so in at least two kinds of cases. First, there are cases where the causal regularities or dispositions are fairly hard to systematize. Assume again, for example, that we are trying to learn something about the behaviour of the local fauna. But assume also that the local fauna is able to behave in many different ways. We may then very well learn more about its behaviour in an insecure environment than we would do in a secure one, for the insecure environment may elicit more behaviours from the animals. Birds that ordinarily nest in treetops may start to nest on the ground if a tsunami has knocked all the trees over, for example.
In the light of the second kind of cases in virtue of which insecure environments seem better at giving us knowledge than secure ones, however, premise (4) even seems self-defeating. This is because we can learn very much of interest about the intervention of unpredictable, powerful forces in an environment because they intervene in it. It is hard to predict everything of interest about how a tsunami may impact us, but we may learn quite a bit by observing what impact it has on us after it has had an impact. But then, an environment with unpredictable, powerful forces seems likely to be better at providing us with knowledge about unpredictable, powerful forces than one that is secured from them.
I conclude that premise (4) is unworkable. We can often gain just as much knowledge of our environment when it is subject to unpredictable, powerful forces as when it is secured from them, and in many cases even more knowledge of it when such forces are at play – in particular, we may gain more knowledge about unpredictable and powerful forces when they are at play in our environment than when we are secured from them.
What can Fichte do? Well, in Kosch (2015), Kosch launches a much weaker version of the main argument here, looking like:
(1’) An agent with an interest in the exercise of her capacity rationally to set ends ought (ceteris paribus) to have an interest in the obtaining of any conditions necessary for the exercise of that capacity.
(2’) (Relevant) knowledge is a condition necessary for the exercise of the capacity rationally to set ends.
(3’) Control of (some part of) the environment is a necessary condition of (relevant) knowledge.
(C’) An agent with an interest in the exercise of her capacity to set ends ought (ceteris paribus) to have an interest in control of (some part of) her environment.
Fichte could, maybe, accept something like (3’) instead of (4), and then try to launch an amended argument. This argument would emphasize control of one’s environment rather than security from ‘unpredictable, powerful forces’. But I suspect that there would be no improvement here. Controlling an environment is hardly a necessary condition for relevant knowledge of it – the tsunami case should easily be able to show us that much. Hence, versions of the three counterexamples I just launched for (4) should reappear here too, mutatis mutandis, meaning that Fichte’s argument seems over by premise (4).
2.3. The Fichtean Lesson
I have now criticized premises (1) and (4) in Fichte’s argument for why security from unpredictable and powerful forces of nature is constitutive of agency. As I have mentioned, I think (1) can be reformulated, but the arguments against (4) are decisive. Fichte’s argument seems over by now. But that takes us back to the main line of argument in this paper. Its aim is, after all, to extend Fichte’s insights to develop reasons internalism. We have now seen how Fichte’s line of thought has proceeded (and failed), so it is time to make use of his insights instead.
To start off, I have claimed that we can reformulate (1). But what exactly can we make of it? I think it, very plausibly, can be reformulated in terms which are helpful for desire-based versions of reasons internalism. To say how, I shall first introduce the theory in greater depth.
Desire-based reasons internalism, as I understand it, says that our reasons depend on our desires. Here we may make a distinction: Either reasons depend on an agent’s present desires or her ideal desires. There is disagreement about where one should go here. Schroeder (2007) has influentially defended the former view, but the most common version of reasons internalism is still probably the latter. As I prefer the ideal desires view, I shall help myself to it here and make use of it in the rest of my argument. A somewhat rough definition is the following:
(Ideal desires internalism) For all r(F,A,α,C), r(F,A,α,C) is a reason relation holding between a fact F and an agent A’s action a in circumstances C iff (and because) r(F,A,α,C) holds in virtue of the desires that feature in P’s idealized psychology.
Here, I do not concern myself with the exact interpretation of metaphysical details like what a fact, a desire, an action, or the ‘in virtue of’-relation are, though I shall use the terminology of grounding for the latter for simplicity (cf. Chang, 2009; 2013). I shall, however, say something more about how A and C work.
First, what does ‘the desires that feature in P’s idealized psychology’ mean? I shall assume, like most ideal desires internalists, that the agent whose desires explain reasons has desires, beliefs, and is suitably rational – not least instrumentally rational. These states are all, in some sense, idealized – the idealization plays a role in ensuring us that the desires we have available are those that plausibly can explain reasons. From here and on, I shall follow convention and call fully idealized agents of this kind ‘A+’, while non-idealized ones still will be called ‘A’.
What does the idealization of A+ involve? Ideal desires internalists can adduce different conditions, but there is wide agreement on at least the following ones:
(i) A+ is rational, in some sense of rationality. Most internalists interpret this demand weakly, referring to internal coherence, though there are also some stronger interpretations (e.g. Strandberg, 2018; 2019; cf. Jian, forthcoming).
(ii) A+’s psychology is fit for purpose. For example, if the agent’s mental states are given a functionalist interpretation, she is not supposed to have a psychology where her functionality is impaired.
(iii) A+ has the right mental states, such as some set of true beliefs (or knowledge) (Williams, 1981; Smith, 1994), or even special desires (Lindeman, 2019; Smith, 2011; 2020; forthcoming).
I shall assume, then, that some versions of (i)-(iii) hold for ideal agents, and that it is the desires A+ has when they do that that ground A’s reasons. In all other respects, however, ideal agents are like ordinary agents. And now, with Ideal desires internalism presented, we can use the assumptions behind A+ to develop Fichte’s ideas. I start with premise (1) in his argument.
We can, I think, defend premise (1*) instead of premise (1):
(1*) An agent with a possibly varying set of desires ought to desire to obtain or maintain any conditions necessary for the ability to act on these desires.
The major shift from (1) here is that I talk about desires. Instead of talking about a capacity to set ends that an agent may exercise, I talk about a possibly varying set of desires. This reflects how desires feature in Ideal desires internalism. Moreover, I have changed ‘aim to obtain or maintain’ to ‘desire to obtain or maintain’. This change is also implied by Ideal desires internalism, for there aims are conceived of as desires. Finally, I have removed the ceteris paribus-clause from (1), as it is unclear how we should spell out which conditions are equal or not – though the reader is free to read (1*) with one if she so wishes.
Why, however, am I talking about a ‘possibly varying’ set of desires? One feature of ideal agents is that their desire sets, in general, are never set in stone. Given that they are like ordinary agents with respect to other features than the idealized ones, they can encounter new circumstances, go through new experiences, reason, etc, so it is always possible that their desire sets may change.
Nevertheless, ideal agents ought to obtain or maintain any conditions necessary for their ability to act on their desires – including possible desires that they do not currently have. Why? An agent who is unable to act on her possibly varying set of desires seems like a totally hopeless ideal agent. The agent is, after all, like an ordinary agent in all respects but in those in which she is idealized, and losing the ability to act based on some desires which are part of her possibly varying set of desires would be a very significant deviation from that. Whatever else an ideal agent is, she ought to be ideal enough to be able to act, and hence such that she is able to take the relevant means to satisfy her desires (including her possible desires). And that is what she is with the right knowledge.
This formulation can avoid the problems I raised for Fichte’s premise (1). The first problem was that it is not plausibly the case agent agents are constituted by a capacity to set ends, in his sense of such a capacity. That is an overintellectualization. I have, instead, talked about a set of desires. From the formulation of reasons internalism, an agent already has such a set of desires, and these need not involve any sophisticated end-setting capacities. Moreover, the set of desires an agent has on Ideal desires internalism is plausibly varying, as it allows for agents with many different kinds of desire sets.
The second problem I raised for him is that there seems to be an illicit use of instrumental rationality to infer the consequent from the antecedent here. Instrumental rationality does, in general, not need to have anything to do with making use of the capacity to set ends. However, reasons internalism is different. It is based on the assumption that agents need, or at least standardly use, desires to act. And, as I argued, the agent needs the ability to act on them. So we can defend (1*) by idealization rather than by instrumental rationality.
In the light of similar considerations, we can also reformulate (2) to (2*):
(2*) Possession of knowledge concerning causal regularities and concerning the disposition of items in the environment is a condition necessary for the ability to act on a set of possibly varying desires.
(2*) Does not need much more defence. I did not criticize premise (2) in section (2) above, and I think Kosch’s argument for the principle is plausible. However, it is also controversial – but I can present a much weaker consideration in favour of (2*) than she did for (2), hence yielding a stronger defence of (2*).
This is because I can appeal to variability again. As A+’s desire set may change, she seems in need of a significant amount of knowledge about her surroundings to be able to act on the different possible desires that she may have. Knowledge about many possible outcomes is a necessary condition for acting on many potential desires that she might form. And hence (2*) stands, whatever one thinks of Kosch’s defence of it.
The knowledge that an ideal agent should have is could, however, be clarified some more in the light of this argument from variability. First, it is important to note that we are talking about real knowledge here, regardless of how we interpret knowledge. The argument from variability does not, therefore, indicate that ideal agents have a pragmatic reason to believe what would satisfy their or our desires. They may have such a pragmatic reason, but that is not what I am arguing here. Rather, they should desire to obtain or maintain knowledge.
What sort of learning should they engage in? Kosch actually claims that she can run her entire argument by appealing to true belief rather than knowledge (cf. fn. 11 above) – what matters is that agents have true beliefs rather than knowledge, for that may be enough for action. I agree that it seems possible to run (2*) by talking about true beliefs rather than knowledge simpliciter too, but formulating (2) or (2*) in terms of ‘true beliefs’ seems a bit too concessive to me.
This is because differentiating between, and asking about the relative values of, true belief and knowledge here is to raise the Meno problem in the context of true beliefs about means to take to satisfy one’s possibly varying desires: One is essentially asking ‘Why does knowledge matter more than true belief?’ That question is far too big to settle here. However, because knowledge typically is taken to be the paradigmatic mental state reflecting the world (rather than true belief), I shall, more boldly, just write as if what matters here is knowledge rather than mere true belief.
With premise (1*) and (2*) in place, (3*) follows by modus ponens:
(3*) An agent with a possibly varying set of desires ought to desire to obtain or maintain possession of knowledge concerning causal regularities and concerning the disposition of items in the environment.
A+ ought then to form the desire that she ought to have. (She would not be very ideal if she did not.) More specifically, she ought to form – and therefore has, in virtue of being ideal – a desire to obtain or maintain knowledge concerning causal regularities and concerning the disposition of items in the environment. In short, she desires to obtain or maintain knowledge about her surroundings.
And then the upshot here is massive. Using the basic conceptual move of Ideal desires internalism, with (3*), we can generate a reason for actual agents to attain knowledge about their surroundings. The point is that as A+’s desires ground our reasons, it follows that if A+ has a desire to obtain or maintain knowledge about her environment, we have a reason to obtain or maintain such knowledge. As Ideal desires internalism is a theory of reasons for action, this is a reason to learn relevant things and to make sure that one does not forget them, not a reason for belief or for having certain mental states.
Just how we have that reason does, however, vary with different forms of Ideal desires internalism. There are two main versions (Smith, 1995). Either one thinks of the ideal agent as an exemplar. Here, the idea is that one has reason to φ if the ideal agent desires to φ in any given case. If so, one has a reason to obtain or maintain the relevant pieces of knowledge to the extent that A+ desires to do so.
Alternatively, one may think of the ideal agent as an advisor, where the idea is that one’s reasons to φ depends on what the ideal agent would advise one, qua actual agent, to do. If so, roughly speaking, A has a reason to φ in C just in case A+ would advise them to φ. This reason will remain categorical in the sense that all A+’s will have the same desire and therefore advise A to obtain and maintain knowledge at some points. Just when A+ would advise A to attain such knowledge is however an interesting question, but fortunately not one that needs to be settled here. It is extremely likely that the A+ sometimes would advise A to learn more about the world in the light of A+’s desire to do so. How else would A be able to take means to her ends, not least given that A’s own desires could vary over time?
There is one key potential objection here, however. Given that the ideal agents are ideal, and that criterion (iii) of their idealizations indicates that they already may have the knowledge they need to get by, we may wonder why they would need desires to obtain or maintain that knowledge in the first place. Perhaps they already have the knowledge, and hence the desire is unnecessary – or there is something wrong with (1*) or (2*) given how the ideal agent ordinarily is characterized.
One aspect of this problem can be solved by appealing to the ‘to maintain’ disjunct in A+’s desire. Sometimes the ideal agents may just need to maintain the knowledge that they have. If that is right, the desire serves a purpose even if they already know everything that might matter. A+s may no doubt run into situations where they could lose their knowledge – an evil neurosurgeon may attempt to suck it out of them with their wicked machinery – but with a desire to maintain it, they may strike back against the neurosurgeon.
But even so, that does not seem to be enough. Why do they need a desire to obtain knowledge when we could just stipulate that they already have it? Well, the desire can plausibly explain why they would acquire such knowledge insofar as it can motivate them to take action – in fact, insofar as we non-ideal A’s approximate the A+s, we may plausibly do so just because we have the desire. But as it is possible for A+ to encounter situations where she might lose her knowledge, there are also situations where she loses it. But then the desire to obtain knowledge can take her back to being ideal. As such, the desire to obtain and maintain knowledge helps her ideality to persevere – though, insofar as A+ is ideal at any particular point in time, she must already be such that she satisfies the desire.
2.4. What kind of reason?
I have now defended the claim that ideal desires reasons internalists are committed to a reason to seek knowledge about the agents’ surroundings. What kind of reason is that? In this section, I shall argue that the reason is categorical, but that it still is not obviously a moral reason. This is because different accounts of what makes a reason a moral reason (as opposed to a non-moral one) can imply very different things here.
First off, why is the reason categorical? It is categorical in the sense that (i) qua reason, it has normative force (because if any practical reasons have, this one has too), and (ii) all agents have it (because all their idealized counterparts whose desires ground reasons have it). The kind of categoricity at work here is defended by Smith (1994, ch. 5), and Joyce (2001) also uses it in his reasons internalist attack on morality. As such, it is a perfectly standard reasons internalist way to think of categoricity, and one which this reason satisfies.
We have learnt, then, that the reason to know that reasons internalists are committed to is a categorical reason. Is it also a moral reason? This is not the place to adjudicate how we should think of what makes a reason a moral reason, but we can evaluate whether the reason to know counts as one according to the main accounts of what it is to be a moral reason in the literature. There are at least five different ways to explicate that distinction – or, alternatively, one may deny that there is a distinction. However, these accounts often give unclear or conflicting verdicts regarding the reason to obtain or maintain knowledge that I have suggested. The upshot is that we do not quite know whether the reason to obtain or maintain knowledge is a moral reason.
I follow Forcehimes & Semrau (2018) in distinguishing between different kind of theories about the relation between moral and non-moral reasons. The first view they consider is:
(Plural grounds) There are reasons of fundamentally different kinds, which differ with respect to their ultimate grounds. The ultimate grounds of moral reasons are distinguishable from the ultimate grounds of non-moral reasons. (Forcehimes & Semrau, 2018, p. 701)
There are two versions of this view. First, they consider one that is due to Southwood (2011), according to which reasons that are based on social grounds are non-moral, whereas those that are based on non-social grounds are not. Clearly, the reason to obtain or maintain knowledge is moral on that view – it has nothing to do with sociality.
Second, they consider a Kant-inspired view according to which categorical reasons are moral, and non-categorical ones are not (Kant, 1785). On the face of it, the reason to gain knowledge seems straightforwardly categorical – I just argued that it was – and hence moral, on this view. However, the reason to know one’s surroundings is not categorical on this view if categoricity is taken to mean something else than that the reason is applicable to all relevant agents, like reasons internalists might think, such as if it is based on a desire-independent value. As such, there is still some unclarity about what it should count as here, and a defender of it would have to say more about what categoricity means for us to be able to see whether the reason to obtain or maintain knowledge counts as categorical and therefore moral here.
Forcehimes and Semrau also consider content-based views of the distinction between moral and non-moral reasons. First, they discuss views about reasons according to which ‘moral reasons share, while non-moral reasons lack, an intimate connection to responsibility. This connection, in contemporary guise, links moral reasons to reactive attitudes such as praise, blame, and indignation.’ (Forcehimes & Semrau, 2018, p. 707). And finally, they discuss views according to which moral reasons are other-regarding whereas non-moral reasons are self-regarding (Forcehimes & Semrau, 2018, pp. 710-715).
It is hard to know what to make about the responsibility connection. Are we responsible for acquiring knowledge about our circumstances so that we can act? Maybe. Depending on one’s moral theory, innocence may or may not be criticizable. Someone who lacks knowledge of the evils of the world might seem to be outside the responsibility game altogether, but then again, naïve agents who do not know what they need to know often seem more than criticizable.
Unfortunately, this issue gets messier still, for it is not clear in what sense someone who lacks knowledge is criticizable. It seems eminently plausible to think that there can be distinctly epistemic senses of praise, blame, and indignation, and those need not be related to our moral evaluations. Even if it is epistemically blameworthy to fail to proportion one’s belief to the evidence, it could still be morally praiseworthy to do so if that would have prevented WWII. As such, the responsibility view requires significant additional clarification or explication to clearly indicate anything regarding whether the reason to obtain or maintain knowledge is moral or not.
The issue is not open when it comes to other-directedness, however. The reason to generate knowledge is not other-directed, so if that is how one thinks of thinks of moral reasons, it is not a moral reason. This criterion, therefore, stands in staunch conflict with (at least) the Plural grounds views I have considered, according to which the reason to obtain or maintain knowledge does seem moral (at least at first glance).
I have now considered Forcehimes & Semrau’s distinctions. According to the Plural grounds views, the reason to know indeed seems to be a moral reason. According to the responsibility view, it is unclear whether it is one. And according to the other-regardingness view, it does not seem to be one. As such, it is rather unclear whether we should think of the reason to know one’s surroundings as a moral reason – whether we should do so or not depends on where we go on the moral/non-moral distinction.
Departing from Forcehimes & Semrau’s possible distinctions, however, there are in fact even further views to consider here. The first is a mixed view, according to which both the grounds of a reason and its content matter – and they may do so in different ways, depending on how one spells out the ground-based and content-based features of the view. To count as moral, a reason might have to be both categorical and connected to responsibility, for example, or both categorical and other-regarding. This view generates significant problems here, however, given the issues with explicating the different possible views. This means that we are in even more dire straits than just Forcehimes & Semrau’s distinctions puts us in.
Finally, there is also the view there is no real distinction between moral and other (practical) reasons. Practical reasons are just practical reasons. Here, one might think the reason to acquire knowledge sometimes might feature in our take on morality. But if so, it is not a distinctively moral reason either – because there are no distinctively moral reasons on this view. Hence, we cannot be quite sure about whether it is a moral reason even on the view that there is no systematic difference between moral and other practical reasons.
- Dworkin’s Associative Political Obligations and the Anarchist Challenge
This chapter argues that Ronald Dworkin’s account of socio-political obligation as a form of associative obligation fails to ground a duty to obey the law. These pages will show how Dworkin does not succeed in establishing what A.J. Simmons calls the particularity condition. First, Dworkin’s 1986 account of associative obligations is contrasted to its anarchist criticism. Then, Dworkin’s 2011 clarifications made in Justice for Hedgehogs are analyzed. These lines show that Dworkin’s 2011 version of associative political obligations fails the same way as the 1986 version. Dworkin grounds the obligation to obey the law of the state in the claim that one has duties to some associations he participates in, even if he did not consent to this participation. Further, with special reference to political obligation, Dworkin claims that the state is a coercive association in which all participate and which undermines each participants’ dignity.
To argue for the claim, this chapter utilizes arguments about coercion employed in the global justice debate. It shows how Dworkin’s account of associative political obligations is based on a classical concept of coercion. This reading of coercion has been severely criticized by Laura Valentini and Arash Abizadeh. The present lines transfer some arguments from the discussion on coercion and global justice into the field of political obligation and legitimacy. Finally, Dworkin’s account of participation in coercion is challenged, showing how it is not possible to refuse this involvement.
The topic of political obligation is an important one in analytical normative philosophy. Authors in the field have attempted to offer justifications of a moral imperative to obey the laws of the state. Philosophical anarchists denied that such imperative can exist. They expressed even stronger doubts when it came to justifying an obligation owed to a particular state. In the history of political thought, voluntarist accounts predominated. These relied on the idea of an explicit or a tacit consent to be governed. When this was criticized, political theory moved towards grounding political obligation without reference to voluntary acts. Ronald Dworkin’s account of associative obligations and John Rawls’ theory of the natural duty of justice are the main representatives of this group.
This paper will address and criticize a particular form of non-voluntarist account: the theory of associative obligations as outlined by Ronald Dworkin. The paper will analyze Dworkin’s claim and the main criticism of the anarchist camp offered by A. J. Simmons. However, a stipulation has to be made: Ronald Dworkin presented initially presented his theory in his book Law’s Empire in 1986. A.J. Simmons reacted in 2001 and criticized Dworkin. However, in 2011, Dworkin improved his account in his last book Justice for Hedgehogs. The paper aims to discuss whether the revised account is robust enough to give an adequate reply to the anarchist challenge. It will argue that Dworkin’s account still fails to rebut the anarchist criticism because it cannot establish the particularity condition. Dworkin’s reliance on coercion and participation in coercion to ground particularity is open to two types of challenges. The first criticism argues that Dworkin relies on a very narrow understanding of coercion. The second states, that without a meaningful exit-option, participation in coercing others cannot be escaped. The paper aims to transplant the discussion on coercion and global justice into the field of political obligation and legitimacy. In the global justice literature, coercion was seen as an argument for statism over cosmopolitanism. However, in Dworkin’s work, the existence of coercion is employed to ground political obligation and to impose a requirement of legitimacy (not justice). The paper will employ some arguments from one normative debate to explore consequences for another.
The paper will proceed by first outlining the literature in the field and by presenting the arguments of the opposing camps. Then, it will move to an analysis of Dworkin’s concept of coercion. The paper will conclude by claiming that the particularity condition is not met in Dworkin’s theory.
3.2. Literature review
Ronald Dworkin presents his theory of associative obligations in his 1986 book, Law’s Empire. He initiates his explanation by an analogy with two instances of social interaction: friendship and the family. Dworkin shows that obligations such as those owed by children to their parents or those owed by friends to one another are not assumed by voluntary consent. A child does not choose who his parents are, nor is a friendship established through a mutually agreed contract. While the first is a random act of nature, the second case evolves through social practice. Two people do not explicitly agree to become friends, nor do they sign a contract to that respect, after mutual negotiations. Yet, this does not make the obligations of children towards parents or of friends towards one another less real and less strong (Dworkin 1986, 197).
Dworkin also asserts that associative moral obligations are genuine only if certain conditions are met. Among these conditions are that obligations are special, holding only within the group, that they are personal (owed to individual members not to the group as a whole), that they are based on concern for the other members and that this concern is offered equally (Dworkin 1986, 202).
Dworkin then moves to make his position more clear and to reject a moral relativist claim. This claim, dubbed by Simmons the normative independence case, would state that associative obligations are created merely by the fact of having a social role in any association, without reference to its overall goals (Simmons 2001, 84). Dworkin implicitly denies this thesis by claiming that associative duties and responsibilities are true moral obligations only if the association in which they are undertaken does not conflict with general justice. Dworkin describes groups which undertake to discriminate against non-members as an example of unjust associations. He also argues that interpretation is needed to see whether a certain practice supported by an association is truly in conflict with wider justice and if yes, if it is genuinely supported by the association’s founding principles (Dworkin 1986, 204).
Finally, Dworkin claims that states bear the hallmarks of genuine associations and that if their internal structure is just, then citizens have an associative prima faciae obligation to obey their laws. However, Dworkin does not offer a principled argument for this claim. Firstly, he appeals to the moral intuitions of people who feel that elected officials have a specific duty to them and that a country is “our country”. Even though borders are arbitrary, Dworkin claims that they are a matter of interpretation. Dworkin also describes three models of community, out of which only the third meets the criterion of genuinely being able to command political obligation. He denominates this model as the “model of principle” and presents it as:
“it insists that people are members of a genuine political community only when they accept that their fates are linked in the following strong way: they accept that they are governed by common principles, not just by rules hammered out in political compromise. Politics has a different character for such people. It is a theater of debate about which principles the community should adopt as a system, which view it should take of justice, fairness and due process, not the different story, appropriate to the other models, in which each person tries to plan the flag of his convictions over as large a domain of power or rules as possible. Nor does this suppose that these further rights and duties are conditional on his wholehearted approval of that scheme” (Dworkin 1986, 211).
A.J. Simmons criticizes Dworkin’s account of political obligation mainly because it fails to establish that political obligations are particular. Simmons requires any account of political obligation to show that a citizen owes political obligation to his particular state. Otherwise, Simmons claims, our political obligations are owed to just institutions in general. Simmons quotes Dworkin as admitting that obligations will not be sustained if the members of a certain group do not feel love or friendship for one another (Simmons 2001, 78).
Even if Dworkin does not directly compare the family and the state, he at least begins his description of associative political obligations by the example of the family. Simmons criticizes this association, by saying that the obligations of the family are based on mutual ties of love and friendship. However, such ties do not obtain in a modern state, which impersonally administers general laws. Moreover, citizens in a modern society are not neighbors, many times they live thousands of kilometers apart. Their subjective allegiance might even fall on other states or on their particular national, ethnic or local group (Simmons 2001, 50).
However, Dworkin does not directly associate the family and the state. He merely asserts that we have general political obligations to just institutions. The social rules of the institutions we are members of specify our duties but do not create them. Simmons also has a reply to this objection. He asserts that Dworkin relies too much on independent principles of justice to ground political obligations. In a footnote he argues that very little moral work is done in Dworkin’s work by particular associative obligations as opposed to universal principles of justice. This would lead Dworkin, according to Simmons, back to a failure to establish particular political obligations (Simmons 2001, 79 n35).
Thirdly, Simmons denies the empirical premise that “our own community” (Simmons’ and Dworkin’s), by which he means the United States of America, satisfies the “model of principle” account. Simmons believes that the contemporary US comes closer Dworkin’s second model, the rulebook model or the Rawlsian “modus vivendi”. This is, according to Simmons, a fatal flaw for Dworkin’s attempt to establish political obligation towards the contemporary US (Simmons 2001, 79 n35).
Dworkin returns to the same problem in his 2011 book, Justice for Hedgehogs. Firstly, he differentiates between two types of associative obligations: those that have as a background a universal moral principle and those who do not. Among the first, he quotes obligations to children. He asserts that a community which does not specify the universal moral duty to care for children by assigning social roles for discharging that duty is morally defective. The other type of associative obligation is that owed to lovers for example. A community which does not create special obligations for lovers might be impoverished but does not fail from a moral point of view (Dworkin 2011, 313).
Then, Dworkin analyzes the relationship between obligations and conventions. He asserts that “convention strengthens as well as shapes role obligations” (Dworkin 2011, 315). Thus, he explicitly claims that a universal moral duty is always in the background, but this is discharged through a specific association. Associative obligations are not triggered directly by being member of an association and unjust associations, like mafias, do not have a moral right to being obeyed. His arguments closely resemble those put forward in the earlier book, but the later text makes his view considerably more explicit.
Dworkin finally moves to establishing the reasons for which he believes political obligations are particular associative obligations towards the end of the chapter. He admits that there is something arbitrary in the borders we know today, but he maintains that this does not count towards the problem of political obligation. He justifies his claims by showing that political organizations which exist today undermine the dignity of their members through coercion. When one citizen supports a coercive political organization, he participates in undermining the dignity of others. On the other hand, he claims that a dignified life could not exist without an organization which coordinates social processes through coercion. This makes the state more closely resemble the first type of association. Like a community that does not attribute care for children, a community without a coercive state to coordinate social interaction would be morally defective, Dworkin could claim. Dworkin poses this as a paradox (Dworkin 2011, 320).
Dworkin believes that this paradox is solved by political obligation. By participating in coercion, one undermines others’ dignity but life with dignity is impossible without coercion. However, the only way to avoid undermining another’s dignity, Dworkin claims, is by subjecting oneself to the same laws one participates in subjecting others: “We find ourselves in associations we need and cannot avoid but whose vulnerabilities are consistent with our self-respect only if they are reciprocal-only if they include the responsibility of each, at least in principle, to accept collective decisions as obligations” (Dworkin 2011, 321). This, according to Dworkin, grounds political obligation towards fellow citizens and makes it a special type of associative obligation.
3.3. Coercion and participation in coercion
The first main criticism to be leveled against Dworkin is targeted at his understanding of coercion. The debate of what coercion is has been waged in the literature on global justice and some of the arguments will be brought from there. Dworkin does not particularly spell out what he means by coercion and coercive political organizations. The only reference he makes to what he understands by coercion is that political organizations apply threats of force and carry out those threats in case of disobedience (Dworkin 2011, 320). This offers support for claiming that Dworkin understands only direct application of physical force as coercion. Moreover, Dworkin implicitly assumes that governments coerce primarily their own citizens.
The first assumption can be shown false by offering a different version of what coercion is. Such an account is offered by Laura Valentini in her paper on coercion and global justice. According to Valentini, the classical account of coercion, the one which Dworkin seems to share can be read like this: “An agent A coerces another agent B if A intentionally forces B to do, or to refrain from doing, X through a command backed by the threat of sanctions” (Valentini 2011, 209). However, she avers that an understanding of coercion as “command backed by the threat of sanctions” does not capture the true nature of what coercion is and that a wider interpretation is necessary. Her account defines two types of coercion: interactional and systemic. Interactional coercion occurs when an agent (individual or collective) “foreseeably and avoidably places non-trivial constraints in the path of another agent’s freedom as opposed to a baseline without these constraints” (Valentini 2011, 210). Systemic coercion emerges when a system of rules, without the backing of an agent, but supported by many individual actions accomplishes the same result of frustrating an agents’ freedom. As an example, Valentini offers the international trade system especially before the emergence of the WTO, which represented a system of rules without any collective agent to interpret them or to enforce them (Valentini 2011, 210–212).
To defend his claims, Dworkin would have to affirm that coercion is only a command backed by the threat of physical sanctions or to accept some ambiguous results. On Valentini’s description of interactional coercion Dworkin would have to admit that one owes political obligations to all collective agents which he participates in and which coerce other members. At the international level, no organization has established the degree of interactional coercion (either as threat backed by sanctions or as non-trivial constraints) which states currently enjoy, but the European Union comes relatively close (at least when it comes to non-trivial constraints). On Dworkin’s view, one would have to admit that a European citizen (we can assume one who was born after her country joined the EU) owes political obligation to the institutions of Brussels. While this is not necessarily a strong argument against Dworkin, it does create a somewhat counterintuitive feeling for many.
If one was to accept the systemic view of coercion and Dworkin account, an apparent paradox ensues. In the case of systemic coercion one obeys a system of rules, not enforced by an agent, which coerce other individuals. Dworkin’s demand that we obey the same rules which we force others to seems moot because the very coercion is triggered by us following those rules. However, in this case, one could say that if a coercive system of rules is created by numerous decisions of individual agents, but no group agent exists to coordinate them, individuals might incur a duty to create such a collective agent. Coercive rules also need interpretation and adjudication, once they have been created. This could trigger the demand for creating a legitimate global state.
Dworkin also assumes that governments coerce primarily or exclusively their own citizens. However, even on the narrow understanding of coercion which Dworkin takes, this is not true. Firstly, states coerce others at the borders by not allowing them to enter their territory at will and threatening sanctions if they try (Abizadeh 2007). Secondly, states coerce others in wars, even if that coercion is justified by other moral imperatives. It would be hard to interpret wars, which are sometimes followed by occupation as anything else than coercion.
On this interpretation of coercion, a citizen would owe an obligation to not undermine the dignity of those coerced in wars and at the borders. Once again, one might find himself morally obliged to support the creation of some global organization which would regulate (or abolish) borders between states and would preempt wars. This organization would have to possess far greater powers than the United Nations does today.
The second line of attack against Dworkin’s conception is his understanding of participation in coercion. He places special emphasis on an individual’s participation in coercing others through the state. He takes it as an assumption that if an individual disobeys the laws, he has to grant the same moral freedom to others. This would lead to a tyrannical association, forcing individuals to do what they have no duty to do (Dworkin 2011, 320). Moreover, Dworkin asserts that even if we have not voluntarily accepted being in a state, we are still, by simply residing there, participating in coercing other people. This seems somewhat contradictory and circular. How can one be meaningfully said to participate in coercion, when that participation is something which he has no option to avoid? How can one’s disobedience to the law be said to constitute imposing duties, when one has no choice but to impose those duties? Of course, if one disobeys only some laws but not others, and receives the benefit of other people obeying all the laws, then one is indeed imposing duties one is not willing to take. But, Dworkin cannot give a meaningful reply to a person who genuinely wishes to avoid participating in coercion altogether. There is no place to go in which one does not participate in coercing at least some people.
Unlike other associative obligations, Dworkin’s political obligation is unlimited and inescapable. One can exit a friendship if one feels that his duties have become burdensome. The same person can forswear friendship forever. One might not have such leeway when it comes to a parent, but these duties are limited in time. At a certain point a child’s duty to help the parent lapses with the death of the parent. Normally, the death of the parent occurs earlier than that of the child, leaving the child enough time without an obligation. But, a political obligation lasts from and individuals’ birth to his death and there is no meaningful way of exiting it. Dworkin’s account would be considerably more satisfactory if it would create a duty incumbent on the community of states to create a space for the immigration of those who do not wish to participate in coercion or be coerced.
- Constructive Interpretation and the Status Quo: the Case Against Practice-Dependence
The notion of practice-dependent theorizing has played a central role in what may be described as the ‘methodological turn’ that the global justice debate has undergone in recent years. While there are some differences in the ways in which the concept of practice-dependence has come to be understood by different authors, one of the central defining characteristics of the position defended by the original proponents of practice-dependence is a methodological commitment to the Dworkinian model of constructive interpretation. The purpose of this paper is to provide a critique of this commitment. More specifically, my aim is to show that the systematic role that the model of constructive interpretation assigns to the features of existing practice has significant substantive implications that, upon reflection, turn out to lack the required justification. As a consequence, the methodological approach defended by the proponents of practice-dependence entails an undue bias in favor of the status quo.
The structure of the present section is as follows. First, I am going to provide a summary of the core features of the model of constructive interpretation. Second, I am going to show that the model of constructive interpretation entails what I will refer to as the presumption in favor of interpretation, in virtue of which the features of existing practice act as a systematic and strict constraint on our reasoning about moral principles. In light of the substantive implications of this constraint, the presumption in favor of interpretation is in need of justification, lest the model of constructive interpretation be vulnerable to the charge of being unduly biased in favor of the status quo. Third, I am going to consider two possible bases for a justification of the presumption in favor of interpretation, namely a concern for political stability and a concern for equal respect, and show that neither concern succeeds in providing the required justification.
Lastly, I am going to discuss two possible ways in which proponents of practice-dependence may react to the lack of an ultimate justification for the presumption in favor of interpretation. I conclude that a defense against the charge of being unduly biased in favor of the status quo comes at the expense of either depriving the approach of its methodological distinctiveness or restricting its normative aspiration to an exercise in non-ideal theory.
4.2. The model of constructive interpretation as a methodological basis for practice-dependence
In elaborating on the methodological underpinnings of their respective positions, Andrea Sangiovanni and Aaron James – whom, for the purpose of this paper, I take to be the main proponents of practice-dependence – both rely on the model of constructive interpretation, originally proposed by Ronald Dworkin. According to Dworkin’s account, in order to identify the norms that ought to regulate a given practice, constructive interpretation proceeds in three ‘stages of interpretation’. These are characterized as follows. The first, ‘pre-interpretive’ stage serves to identify a practice as a distinct object of interpretation. Its purpose is to isolate the practice in question from other elements of our social world in as uncontroversial a way as possible. This is achieved through an account of the core features of the practice in primarily descriptive terms. The pre-interpretive stage is followed by the second, ‘interpretive’ stage the aim of which is to identify a general purpose for the practice in question that may serve as a justification for the main features identified at the pre-interpretive stage. In pursuit of this aim, reflection at the interpretive stage is guided by two desiderata. On the one hand, the purpose to be identified is supposed to show the practice in its morally ‘best light’. On the other hand, the identification of a purpose is constrained by the requirement that the purpose ‘fit’ with the main features of the practice as identified at the pre-interpretive stage. Satisfying this criterion of fit is a necessary condition for a purpose to qualify as an interpretation of the purpose of existing practice rather than as invention of a new purpose. Finally, the interpretive stage is followed by the third, ‘post-interpretive’ or ‘reforming’ stage which serves to determine which concrete moral principles ought to regulate the practice in question in order for it to best serve the purpose identified at the interpretive stage.
It is worth noting that, while Sangiovanni and James both explicitly refer to Dworkin’s account of the model of constructive interpretation in Law’s Empire, their characterization of the interpretive stage occasionally seems to deviate from Dworkin’s original account. This apparent deviation may reflect a genuine methodological difference, or it may be the inconsequential result of using a different terminology for spelling out the requirement of fit. For the purpose of the present paper, I am going to set this question aside. My argument is aimed at what I take to be at least a common denominator of the accounts offered by Dworkin, Sangiovanni, and James, namely the distinction between interpretation and invention in conjunction with a presumption that favors interpretation over invention.
4.3. The presumption in favor of interpretation and its need for justification
As just mentioned, in identifying a purpose that serves as a frame or basis for the justification of more specific moral principles at the post-interpretive stage, the interpretive stage is constrained by the requirement of fit. This requirement is not to be understood to mean that a suggested purpose must be able to account for every feature of a practice as it exists, nor does it require that the suggested purpose reflect the highest possible degree of fit. What matters is that the degree of fit be sufficient for the purpose to count as an interpretation of existing practice rather than the invention of a new practice. Any purpose that is not intelligible as the result of an act of interpretation will ipso facto be ruled out as a possible outcome of the interpretive stage. I am going to refer to this feature of the model of constructive interpretation as the presumption in favor of interpretation.
The presumption in favor of interpretation has the significant substantive implication that potential purposes are not solely assessed on the basis of their independent moral merit. Instead, even the most morally worthy purpose will be excluded from consideration at the interpretive stage as long as it does not meet the requirement of fit. In light of this potentially far-reaching implication, the presumption appears to be in need of justification. Why should the contingent features of existing practice impose a strict constraint on our reflection about the purposes that our moral principles serve to realize? Unless we have good reasons for making our moral reasoning dependent on existing practices in such a direct and systematic way, the presumption in favor of interpretation will be vulnerable to the charge of rendering the model of constructive interpretation unduly biased in favor of the status quo.
In order to avoid misunderstanding, it may be helpful to further clarify the exact point of the status quo bias charge that may be leveled against the presumption in favor of interpretation if its need of justification is unmet. It is worth noting that the practice-dependent approach, on Sangiovanni’s and James’ accounts, does offer some space for a critical assessment of the purposes that may be thought to provide a potential basis for the justification of a given practice. Both authors acknowledge that the ultimate justifiability of a given purpose is subject to certain constraints that take the form of a principle of equal moral concern and a requirement of mutual justifiability, respectively. In the case of some practices – such as the institution of slavery – it will be impossible to identify a purpose that satisfies these constraints, rendering the practice unjustifiable as a matter of principle. What matters, as far as the status quo bias charge is concerned, is that the mentioned constraints represent a minimum threshold for the justifiability of any given purpose, rather than a criterion for its overall comparative assessment in relation to potential alternative purposes. Most notably, they take effect only after potential purposes have been filtered according to their fit with the core features of existing practice. The upshot of this is that, while the ultimate justification of a practice depends on there being a purpose that passes the test posed by the mentioned threshold criteria, only purposes that qualify as the result of successful acts of interpretation will be considered as candidates for being put to this test to begin with.
To see the implications of this, consider the following example. Discussing the case of the WTO, Sangiovanni observes that the purpose of the World Trade Organization cannot be interpreted as aiming at the institutionalization of a conception of justice, given that its existing institutional features lack any reflection of this purpose. Instead, these features support an interpretation of its purpose as limited to the reduction of trade barriers in reciprocal and non-discriminatory ways – a purpose that presumably is consistent with the principle of equal moral concern. While this may be an adequate observation from an interpretive point of view, using it as a basis for a normative conclusion in the way Sangiovanni suggests precludes any theoretical space to reflect about whether there may be reasons to reform the WTO in a way that would incorporate considerations of justice into its fundamental purpose. The point of the status quo bias charge is not that there is necessarily a case for such fundamental reform – in many cases (including the WTO) there may not be. Rather, it is the idea that an appropriately neutral methodological framework should provide the theoretical space for assessing whether such a need for reform exists. In order to do so, it should include a comparative evaluation of any potential purposes the pursuit of which may appear morally worthy, irrespective of whether they satisfy the requirement of fit or not.
The most straightforward way of defending the practice-dependence approach against the charge of being unduly status quo biased on the grounds just mentioned would consist of providing a normative justification for the presumption in favor of interpretation. In the following section, I am going to consider two distinct normative considerations that may be thought to provide a basis for such a justification. Having shown that neither consideration is successful in delivering the required justification, I am subsequently going to discuss two possible alternative ways in which proponents of practice-dependence may defend their approach in the absence of an independent justification of the presumption in favor of interpretation.
As a final preliminary note, it is worth noting that, independent of its need of justification, the presumption in favor of interpretation may appear problematic for separate methodological reasons. For example, the presumption inevitably raises the question of how a sufficient degree of fit is defined, and it is not clear what a concrete answer to this question could look like. Lacking a clear methodological criterion for distinguishing between instances of successful interpretation and instances of invention, the application of the model of constructive interpretation to specific cases will inevitably lead to disagreements about which features of existing practice may properly constrain the identification of the purpose at the interpretive stage, creating a problem of methodological indeterminacy. (For the purpose of this paper, I am going to set aside methodological worries of this kind, concentrating instead on an assessment of the model of constructive interpretation on normative grounds).
4.4. Two responses to the need of justification
For the most part, expositions of the practice-dependence approach tend not to directly or explicitly address the need to justify the presumption in favor of interpretation. There are, however, at least two normative considerations that proponents of practice-dependence have appealed to that may appear to provide a basis for a response to the need of justification, namely a concern for political stability and a concern for equal respect. I am going to consider the justificatory potential of these two considerations in turn.
4.4.1. Political stability
In the context of the first statement of his approach, Sangiovanni suggests that practice-dependent theorizing derives plausibility from the fact that it accommodates ‘the idea that politics is prior to morality’. According to this idea, ‘the first aim of any social or political institution is to secure conditions of order, trust, cooperation, and security’. Political theory should reflect this fact by ensuring that the recommendations it makes guarantee that this aim is met. Another way to capture the idea of the priority of politics, I take it, is in terms of a primary concern for political stability that acts as a constraint on the realization of moral ideals: However worthy a moral ideal may be, it will only be justifiable provided that its realization is consistent with the maintenance of basic conditions of stability.
The justificatory potential of a primary concern for political stability of course fundamentally depends on whether this concern itself is justified. I am not going to address this question here. Let us assume, for the sake of argument, that there is a justified primary concern with political stability. Could this concern serve as a basis for a justification of the presumption in favor of interpretation?
It is not too difficult to see the way in which the presumption in favor of interpretation may be considered a response to a primary concern with political stability. As Sangiovanni suggests, actually existing practices and institutions can be seen as historical solutions to the problem of political stability. The fact that a given practice has existed over time may be a reason for thinking that it will be successful at securing conditions of order, trust, cooperation and security in the future. To the extent to which a theory is committed to the idea of the priority of politics to morality, then, the interpretation of existing practice, rather than the invention of new practices, may appear to be the place to start.
Nevertheless, a primary concern for political stability falls short of providing a ground of justification for the principled presumption in favor of interpretation. This is so for two reasons. First, while the continuation of existing practices may, in certain contexts, be a sufficient condition to ensure political stability, there is no reason to think that it will always be a necessary condition. In fact, historical examples of fundamental political reform or revolution show that the replacement of established practices through new practices is not necessarily accompanied by a loss in political stability. As a consequence, an appeal to the concern for political stability is insufficient for a principled presumption in favor of interpretation that systematically excludes new practices form the scope of theoretical consideration. Second, not only may the continuation of a given existing practice not be necessary to ensure political stability – it may, depending on the context, actually threaten political stability and thus not even constitute a sufficient condition for stability. To see this, think, for example, of the practice of slavery in the context of the American Civil War, or the practice of colonial government in the context of struggles for national independence. Given that the continuation of existing practices in such cases may actually pose a threat to political stability, the concern for political stability is not only insufficient to justify a principled presumption in favor of interpretation but turns out to be in theoretical contradiction to such a presumption. By limiting the scope of theoretical consideration to existing practices, the presumption in favor of interpretation may lead to conclusions the implementation of which may well promote instability.
4.4.2. Equal respect
More recent work on practice-dependence points to another normative consideration that may serve as a basis for the justification of the presumption in favor of interpretation. This consideration takes the form of a concern for equal respect as a constraint on the justification of moral ideals. According to the idea of equal respect, in the sense relevant to the present context, any ideal conception of politics is subject to the requirement of being justifiable to the persons to whom it is intended to apply. Given this requirement, it is faced with the fact that these persons are engaged in existing practices, practices that are the result of and are being maintained through the autonomous choice of their participants. Equal respect for the autonomy of the participants in existing practices, the line of thought continues, requires us to take their reasons for engaging in these practices seriously, thus imposing a constraint on the justifiability of proposals that would require a fundamental revision or discontinuation of these practices.
In a way similar to the concern for political stability, it is easy to see how the concern for equal respect may be thought to provide a rationale for the presumption in favor of interpretation. By excluding ideals the realization of which would require the discontinuation of existing practices, the presumption ensures that any reforms that a practice-dependent account may require will, at a fundamental level, be intelligible as a continuation of the practices that the persons concerned are already engaged in. On the assumption that persons are engaged in these practices as a result of autonomous choice, the presumption would in this way act as a safeguard for the due respect of these choices.
As attractive as this rationale may initially appear, an adequate understanding of the concern for equal respect ultimately fails to justify the presumption in favor of interpretation. This conclusion is supported by at least two types of considerations. On the one hand, there are reasons to doubt that existing practices and the exercise of autonomous agency are necessarily related in the way that the argument from equal respect assumes. On the other hand, even to the extent to which the assumed connection obtains, it is unclear why the concern for equal respect, adequately understood, should require, or even be consistent with the presumption in favor of interpretation. I am going to consider both types of considerations in turn.
The argument from equal respect, as we have seen, rests on the thesis that existing practices represent an expression of the autonomous agency of the persons participating in them. It is not obvious, however, that existing practices and the exercise of autonomous agency are necessarily related in the way that this thesis assumes.
First, there are reasons to doubt that existing practices necessarily need to be of any relevance at all to the autonomous agency of the persons participating in them. To begin with, existing practices may be conceptually prior, rather than posterior, to the exercise of autonomous agency. Instead of viewing a given practice she is engaged in as the result of her choice, a person may view this practice as a contingent backdrop against which she forms her choices in the first place. In this case, this practice would more appropriately be described as a background condition for autonomous agency, rather than an expression thereof. What is more, a practice in which a person is engaged may, from that person’s point of view, in fact be entirely unrelated to the meaningful exercise of her autonomous agency – not even performing the role of a background condition for her choices in any significant sense. For the purpose of illustration, consider the previous example of the World Trade Organization. The question of whether the WTO is to be guided solely by the purpose of cooperation to mutual advantage or whether it its mission should be understood as incorporating considerations of distributive justice may have such minor implications for the lives of individual citizens of economically advanced countries that they would consider possible answers to this question to not be in any way related to the autonomous pursuit of their goals.
Second, in addition to the mentioned doubts about the relevance of existing practices to the exercise of autonomous agency, the argument from equal respect seems to rely on the unwarranted generalization that to the extent to which existing practices are relevant to the exercise of autonomous agency, they necessarily are so in a positive way. It may well be the case that some persons view a given existing practice as an expression of their autonomous agency. Assuming a realistic degree of social pluralism, however, it is just as likely that other persons will regard the same practice as an obstacle to the exercise of their autonomous agency. In such cases, persons may participate in a practice based on the lack of a better alternative, or even – in the case of domestic basic structures for example – based on mere coercion, while having a clear preference for the replacement of the existing practice by a new alternative. In light of this consideration, it is not clear why a principled presumption in favor of the continuation of existing practices should be considered as reflecting a concern for equal respect, rather than the very lack of it.
Let us, for the sake of the argument, set aside doubts about the connection between the features of existing practices and the autonomous choices of the persons participating in them and assume that existing practices may plausibly be regarded as the expression of the autonomous agency of their participants. Would this fact provide a reason for restricting the scope of normative theorizing to the interpretation of these existing practices in a principled manner? It is not clear why this should be the case. Indeed, the idea that equal respect requires the principled exclusion of the establishment of new practices appears to rest on a truncated conception of autonomous agency.
One of the essential aspects of the concept of autonomous agency consists of a person’s ability to adopt a reflective attitude with regard to her practical commitments. This includes the ability to take an evaluative stance with regard to the reasons she has (or assumes to have) to engage in a certain practice and, where appropriate, to revise these reasons. Given the ability of participants in existing practices to autonomously revise their reasons for action, the assumption that the continuation of these practices is a necessary condition to ensure equal respect appears unnecessarily conservative. To be sure, respect for autonomy is incompatible with coercing persons to give up their existing autonomous commitments. This does not, however, imply a reason to systematically exclude the possibility of replacing existing practices through new ones from the scope of theoretical consideration. In fact, we may think that to assume otherwise amounts to a failure to respect autonomy, in particular in its reflective dimension. On the one hand, persons participating in an existing practice may give up their commitment to this practice for reasons of their own. On the other hand, the purpose of political theory itself may be considered to consist of offering the very reasons that the persons to whom it is intended to apply may autonomously endorse.
4.4.3. Constructive interpretation without ultimate justification
As the discussion in the previous section has shown, considerations of political stability and equal respect, however justified they may be in themselves, fall short of providing the required justificatory support for the presumption in favor of interpretation. Lacking any alternative basis, which would yet have to be presented, the presumption thus turns out to be unjustified. This, as we have seen above, appears to render the practice-dependence approach vulnerable to the charge of being unduly biased in favor of the status quo.
Short of providing an independent justification for the presumption in favor of interpretation, there are two ways in which proponents of practice-dependence may react to this preliminary result in order to defend their approach against the status quo bias charge. These reactions, however, come at the expense of either depriving the approach of its methodological distinctiveness (in the first case) or significantly limiting its normative aspiration (in the second case).
4.4.4. Relinquishing the presumption in favor of interpretation
The first strategy consists of denying that the desideratum of fit is of the categorical importance that our discussion of the model of constructive interpretation has assumed so far. While accepting that the presumption in favor of interpretation would indeed entail an undue bias in favor of the status quo, proponents of practice-dependence may deny that their approach in fact entails this presumption. Rather than providing fixed points that constrain the range of independent moral reasoning, it may be argued, the desideratum of fit merely has the function of identifying a purpose that serves as a starting point for our reasoning. By tracking the existing features of the practice in question, the thought may be, this initial purpose captures historical and sociological information that is potentially relevant to our reasoning about the justification of the practice. It thus plays a valid role in our model of reasoning. This does not mean, however, that this initial purpose and the considerations it captures enjoy a privileged status in comparison to other considerations that enter into our overall system of reasoning. Instead, guided by the goal of achieving a holistic reflective equilibrium, our reasoning treats any consideration as potentially subject to revision in the light of the balance of reasons.
While this strategy would be successful in halting the status quo bias objection, it comes at the expense of depriving the practice-dependence approach of its supposed methodological distinctiveness. If the interpretive stage merely provides a starting point that may be subject to revision, the model of constructive interpretation appears to collapse into a more traditional model of holistic reflective equilibrium.
4.4.5. Practice-dependence as non-ideal theory
A second conceivable strategy of defense would consist in maintaining that the presumption in favor interpretation forms an adequate basis for identifying the moral principles that should guide a given practice as it exists, without seeking to thereby vindicate or justify this practice as a whole. Instead of thinking of constructive interpretation as delivering an ultimate justification for the pursuit of the purpose reflected in a given existing practice in comparison to the possibility of replacing this practice through the pursuit of alternative purposes, we may think of it as providing a hypothetical or conditional justification of the following form: ‘If the pursuit of a given purpose is justified, then the practice in question should be regulated in the following way…’ Whether the antecedent of this kind of conditional justification is satisfied is a question that, on this reading, cannot be addressed within the frame of practice-dependent theorizing itself. Instead, in order to answer this question, the purpose of a practice as it is identified at the interpretive stage would have to be evaluated in comparison to any hypothetical alternative purposes that we may think of in relation to the practice in question, as well as any actual or hypothetical purposes of other practices that may conflict with the pursuit of this purpose. This evaluation, however, could not itself take place within an interpretivist framework but again would mostly plausibly take the shape of a general search for reflective equilibrium.
Following this strategy, the fact that the identification of the purpose that provides the basis for the regulation of a practice is constrained by its fit with the present features of this practice is rendered morally unproblematic, since the theory is open to the possibility that there are reasons for giving up the practice in question altogether, replacing it with an alternative practice that lacks the relevant features. In contrast to the first strategy, this does not mean that practice-dependent theorizing necessarily loses its distinctive methodological point. It may be considered a stable distinctive position in relation to the confined project of identifying moral principles for existing practices. As such, however, its normative force would be insufficient to justify the existence of the relevant practices itself. As a consequence, the practice-dependent approach may be considered to have a proper place in the context of non-ideal theory. To the extent to which we are interested in the ultimate justifiability of practices, however, the approach would fall short of being action-guiding. It would thus not appear to be a serious competitor to more traditional methodological approaches designed to address concerns of ultimate justification.
- On the Logical Priority of Justice Over Legitimacy. The Case of Political Equality
In this section I argue against a recent proceduralist approach to political theory which urges us to focus on questions of legitimacy – the moral rightness of political procedures – while bracketing questions of justice – the moral rightness of political outcomes. The major motivation behind this approach is to contain our reasonable disagreement on substantive issues of justice by focusing instead on legitimate ways of deciding between them (Valentini 2013, 2013; Waldron 1999, Rawls 1993). Yet my aim is to show that this approach is misguided, as it falsely assumes that we can specify requirements of legitimacy independently of requirements of justice. Specifically, I show that this assumption is mistaken because some aspects of political equality, a necessary condition of the legitimacy of political deliberation and decision-making procedures, cannot be specified without reliance on a particular theory of distributive justice.
First, I distinguish between the formal and the substantive aspects of political equality. Second, for illustrative purposes, I briefly elaborate on a roughly Dworkinian account of political equality to show that the content of the substantive aspect of political equality depends on the content of the theory of distributive justice you endorse. Third, I provide a formal argument concluding that requirements of legitimacy are logically dependent on requirements of justice. Finally, I address and rebut an objection from legitimacy minimalism or political libertarianism: namely, that we should decide what substantive political equality requires in majoritarian ways, and consider only formal political equality as a necessary condition of legitimacy.
I conclude that when we are looking for the right political procedures, we cannot bracket questions of substantive justice and our disagreements concerning what justice requires. My argument shows that disagreement over the right principles and requirements of justice escalates into a disagreement over what political equality, and a fortiori, over what legitimacy requires.
The project of proposing and defending theories of substantive justice is sometimes clouded by the recognition that we seem to hopelessly disagree about our reasoned convictions about justice – the moral evaluation of political outcomes. This recognition fuels a strategy common to many contemporary liberals: let’s take a step back and try to work out the morally satisfying ways of dissolving these moral disagreements in politics. In other words, let us concentrate on the legitimacy of the political decision-making procedures, rather than any particular result of these procedures, in liberal philosophical theory. In this paper, I present an argument against this approach. Against this proceduralist move, I argue that the inquiry into what justice requires is methodologically (specifically, logically) prior to the inquiry into what legitimacy requires.
The proceduralist argument presupposes what I will refer to as the Independence Assumption: the claim that requirements of legitimacy can be sufficiently spelled out without reference to requirements of justice. The argument must presuppose this assumption, since the inquiry into the requirements of political legitimacy instead of (or rather than) justice would not be an effective way to contain the disagreement surrounding requirements of justice if we could not specify the former requirements without referring to anyone’s views concerning the latter requirements.
The appeal of the Independence Assumption presumably derives from the intuition that legitimacy judgments ultimately target procedures, while evaluations by justice ultimately target outcomes of procedures. As it is possible to characterize procedures in part independently of their outcomes, it is logically possible to restrict evaluations by legitimacy to outcome-independently individuated properties of procedures. The proponent of the proceduralist argument wants exactly this. She may still believe that in an ideal or utopian world without reasonable moral disagreement, the legitimacy of political decision-making procedures would be at least dependent on, if not entirely determined by, the outcomes they deliver. But she also believes that this dependence relation does not hold in circumstances of reasonable disagreement.
My aim in this paper, however, is to show that the Independence Assumption is false. My argumentative strategy is, essentially, refutation by counterexample. I argue that at least one consensually necessary condition of political legitimacy, namely, the requirement of political equality, cannot be specified without reference to any substantive theory of justice. What we believe to be just outcomes — specifically, just distributions — crucially determines what we believe to be legitimate procedures. So, the normatively significant disagreement about matters of justice may not be contained by focusing on procedural legitimacy instead. On the contrary, my argument establishes that requirements of justice are logically prior to requirements of legitimacy: so, if we want to learn or agree about the latter, we must first learn or agree about the former.
My argument proceeds as follows. First, I elaborate on the relation between political equality and legitimacy, and distinguish between the formal and the substantive aspects of political equality. Second, for illustrative purposes, I briefly elaborate on a Dworkinian account of political equality to show that the content of the substantive aspect of political equality depends on the content of the theory of distributive justice you endorse. Third, I provide a formal argument concluding that requirements of legitimacy are logically dependent on requirements of justice, hence refuting the Independence Assumption. Finally, I address and rebut an objection from legitimacy minimalism or political libertarianism: namely, that we should decide what substantive political equality requires in majoritarian ways, and consider only formal political equality as a necessary condition of legitimacy.
5.2. Legitimacy and the ideal of political equality
It is one of the most consensual assumptions of liberal political philosophy that the procedural legitimacy of coercively enforced political decision-making entails some moral requirements concerning the distribution of political power, both in deliberation and decision-making. The ideal of political equality, very roughly, holds that this distribution should be egalitarian. Of course, specifying the ideal is itself a challenging task with many controversial answers available. My argument does not require a precise specification of the requirement, yet it is certainly useful to provide an all too brief overview of what kind of inequalities are typically judged permissible, on the one hand, and what kind of inequalities are objectionable, on the other hand, on grounds of political equality.
Let us then start with inequalities that are permissible. First, we do not normally object to office-holders having more political impact than ordinary citizens. Second, it seems perfectly acceptable that citizens better at rational argumentation may have a greater influence on political outcomes than their fellow-citizens who are less capable in that respect. (This is so even if we rarely testify to this greater influence, nor is it clear at all that an ideal democracy would empirically exhibit such an asymmetry of influence.)
Impermissible inequalities are familiar from political history. First, political equality forbids invidious formal exclusions from political participation: it rules out, for instance, the extension of the franchise to men but not to women, to Caucasians but not to other races and so on. Roughly, every citizen should have the vote. Second, it also rules out formally unequal opportunities to participate: for example, that university graduates should have two votes, while all other citizens should have only one. Third, political equality, crucially to my argument, is often thought to forbid the undue dependence of political power on economic power: for instance, by requiring the imposition of limits on campaign financing.
What these examples show is that political equality can be applauded and criticized along two dimensions. On the one hand, it involves what I will call formal political equality: the formally egalitarian aspects of an opportunity to exert political influence. This aspect includes the requirement of “one person-one vote”, the requirement that every individual within the relevant scope should be granted that one vote, the requirement that everyone should be allowed to freely express their political opinions etc. On the other hand, debates about political equality often focus on a second aspect that I will call substantive political equality: those aspects of the ideal which regulate or guarantee the exercise of the rights in which formal political equality consists. In the following section I briefly introduce a particular account of substantive political equality. This illustration will prepare my argument about the logical dependency of requirements of legitimacy on requirements of justice.
5.3. The Insulation Account: justice and political equality
In this section I sketch up what I will refer to as the “insulation account” of substantive political equality: a theory which offers an answer to the question as to what else we need in addition to properly inclusive and equally distributed political liberties to realize the value of political equality in political institutions. The account is strongly inspired by Ronald Dworkin’s theory of political equality (indeed uses mostly elements taken from his work), but I am not offering it as an interpretation of his theory, with the intention to preclude exegetical debates. The aim of my discussion of the insulation account is not to defend it — although I do believe it is the right theory of political equality — but to use it as a very clear illustration of the problematic relation between justice and legitimacy that is my primary focus.
The main thesis of the insulation account is that political equality requires the insulation of the opportunity to exert political influence from unjust inequalities in the distribution of resources. The clearest policy implication of this requirement concerns campaign finance regulations and consequent limitations of the right to free speech. On the insulation account, it violates political equality if there is no ceiling for campaign support, and thus individuals can exert disproportionate influence on fellow-citizens’ political opinion by using their unjust share of resources.
What is the justification for such a ceiling? The main reason has to do with the normative role of (equal) resource distribution. On the Dworkinian account, resource equality determines the means with which we can permissibly influence each other’s life within our liberties. Contributions to political campaigns that exceed one’s just share of resources consequently constitute an impermissible influence on others’ lives. An analogy with market behavior helps here: the resource egalitarian thinks that even heavily influencing each others’ lives by means of market behavior is permissible as long as we use our just share of resources to induce market effects. For instance, we may start a business in the same sector in which our neighbor started a business: if we are so successful that our neighbor goes bankrupt in the competition, she might suffer a considerable setback to her interests, but our behavior was permissible as long as we achieved this effect by the smart use of our fair share of resources. For the proponent of the insulation account, the same argument applies to the political market: there is nothing wrong with promoting one party or ideology as much as we wish by means of our fair share of resources – but we have no right to influence others’ lives through political means if we go beyond our permissible economic means in doing so.
The insulation account defends resource equality as an account of substantive political equality for its interest-promoting instrumental value. Interest-promoting instrumental theories think of political equality as a necessary instrument of the equal promotion of citizens’ interests, regardless of whether this results in a specific set of outcomes. Without resource equality or the insulation of its effects on political influence opportunities, we cannot plausibly say that citizens have an equal opportunity to promote their interests in general: some will be unable to promote their political interests on an equal footing since their message will not go through simply due to the fact that others can utilize unfairly owned resource to effectively neutralize the messages of the worse off. If citizens cannot produce or contribute to political speech only as far as their fair shares allow them, they are not equally situated to promote their interests.
Now it is not only the case that justice on the resource egalitarian conception has the same aim as political equality-namely, the equal promotion of individuals’ interests. It is also true that merely formal political equality cannot serve this aim unless either the distribution of recourses is equal, or only the use of resources to which we are entitled according to resource egalitarianism is allowed for political purposes. Either solution requires the specification of the just distribution of resources. So, we can only specify the requirements of political equality by first specifying what justice requires.
To sum up: the most plausible justification of political equality on the insulation account requires substantial political equality in addition to formal political equality. And what substantial equality requires is, in turn, spelt out by a theory of substantive distributive justice: resource equality. But this entails that the asymmetry view is false: in order to find out what is required by a necessary condition of legitimacy, we cannot but first find out what justice requires.
5.4. The Logical Priority Argument
Let me formalize the argument I want to press against the proponent of the view that procedural legitimacy in politics can be characterized without reference to justice.
(P1) Distributive Requirement
Resource equality is a requirement of justice.
(P2) The Substantive Political Equality Requirement
Resource equality is necessary to fulfill a requirement of legitimacy.
(C1) [From P1&P2]
Not all requirements of legitimacy can be specified without specifying requirements of justice.
(P3) Reasonable Disagreement Assumption about Justice
We normatively significantly disagree about requirements of justice.
(C2) [from C1, P3]
Our normatively significant disagreement about requirements of justice also results in normatively significant disagreement about some requirements of legitimacy.
(C) [from C2]
The asymmetry view is false: normatively significant disagreement is not limited to requirements of justice, but it extends to requirements of legitimacy.
According to the proceduralist view I criticize here, we need to fall back on legitimacy requirements because we do not know what justice requires. Yet, we cannot tell what legitimacy requires without first knowing what justice requires: the former is conditional on the latter. Therefore, we have no motivation to fall back on inquiry into legitimacy as a second-best methodology where inquiry into justice is pointless or at least always more controversial than inquiry into legitimacy or abstract equality due to our epistemic deficiencies. The proceduralist argument puts the cart in front of the horse: in fact, we have reason to think that inquiry into justice has methodological priority, because at least some requirements of justice are logically prior to some requirements of legitimacy.
5.5. An objection to the logical priority argument: legitimacy minimalism (Political libertarianism)
Even if you accept that some requirements of legitimacy are conditional on some requirements of justice, you might object that I neglected the significance of the fact that not all requirements of legitimacy are conditioned that way. Because this is so, my objector would claim that C does not follow from C2: we need not give up on the asymmetry view, we just have to concentrate on a specific subset of legitimacy requirements. The methodologically prior task, she might insist, is to find the unconditional requirements of legitimacy. It is this minimal set that we should find out and try to enforce, as this specifies the right procedural conditions of deliberation and decision-making. Then, just as we can negotiate and decide in a procedurally legitimate way which views of justice we will enforce together, we can also extend our deliberations and decisions, regulated by a minimalistic conception of legitimacy, to justice-conditioned requirements of legitimacy, and only then enforce the latter too. Gerald Gaus (1996), for instance, seems to endorse such a view: «Because the justification of political inequality arising from diffuse background conditions invokes contentious claims about liberal principles, such justification involves political issues, and must be resolved by political institutions. Thus, for instance, regulation of media ownership, campaign financing, and controlling the behavior of interest-groups seem essentially political issues; the precise nature of the problems they present cannot be anticipated ahead of time, nor are conclusive justifications for particular policies forthcoming». (p. 256).
Yet the burden of proof now seems to be on the objector to show that whatever is left of legitimacy after purging it from requirements conditional on justice is still meaningful as a conception of legitimacy. For a judgment that a state is legitimate is synonymous with the judgment that the given state’s use of coercion is morally permissible. But, for instance, the minimalistic or political libertarian conception of legitimacy judges that a state uses coercion permissibly even if in the given polity, despite the equal distribution of political liberties, a majority have close to no means to contribute to political deliberation and agenda-setting while an oligarchic minority possesses and uses all such means due to its vast unjust economic advantages. This in itself seems to question why a conception of legitimacy that permits this is the right threshold of the moral permissibility of state coercion at all.
Note however, that my reply does not strictly depend on substantive intuitions about whether the above scenario is an instance of permissible coercion or not. Rather, it depends on the kind of argument the political libertarian can offer in favor of her account of legitimacy. Once asked why she finds the above example an instance of legitimate state coercion, the political libertarian faces a dilemma.
On the first horn, the political libertarian probably replies by providing a libertarian account of substantive political equality. The imagined scenario is not morally objectionable, on this reply, simply because everyone is using the resources they are entitled to on a libertarian conception of distributive justice. Yet as soon as the political libertarian provides that sort of reply, she can no longer endorse legitimacy minimalism – for she has appealed in justifying the institutional design to an element of legitimacy that is clearly dependent on a substantive theory of justice. In other words, on this horn of the dilemma, political liberalism collapses into substantive libertarianism, and hence it is incoherent with the very point of legitimacy minimalism, which is to decide in political (majoritarian) ways on the account of substantive political equality to be enforced rather than just assuming one to be right and enforcing it.
On the second horn of the dilemma, if the political libertarian thinks that she need not rely on a substantive theory of justice in justifying her account of substantive political equality, she must assume that her account is neutral between competing accounts of substantive political equality. The political libertarian’s point, then, is that state coercion is justified precisely because of its neutrality between different conceptions of justice. Yet this assumption of neutrality is false. The political libertarian falsely assumes that accepting the status quo concerning the effects of background distribution on individuals’ opportunities to exert political influence does not favor a particular conception of justice. When this watered-down conception of legitimacy advises us to leave for majoritarian political procedures to decide which effects of background distribution may impact individuals’ opportunities to exert political influence, then it advises that we should put matters concerning campaign financing, ownership and use of media and so on into the hands of the same oligarchic minority that dominates political deliberation and agenda-setting. In other words, the account in fact assumes that it is morally permissible to allow citizens’ vastly unequal opportunities to influence deliberation and decisions on matters of substantive political equality. This is exactly what substantive libertarianism concludes. Yet it is not only the case that we have reached the same conclusion by a different justificatory route. The legitimacy minimalist has to justify why we should accept the effects of the status quo in any political decision, but she has no justification to offer, independently from substantive libertarianism. So, on the second horn of the dilemma, legitimacy minimalism offers no argument for why we should consider our collective choice of a given account of substantive political equality legitimate, given the effects of the status quo on our relevant deliberation and policy choices.
To clarify, note that I am not saying that the minimalistic, unconditional conception of legitimacy is not an aim worth pursuing. But the question of legitimacy is not about which moral aims are worth pursuing. (The answer to this latter question is probably that all moral aims are worth pursing, ceteris paribus.) The question of legitimacy is the question as to what the threshold is for judging state coercion to be morally permissible. And any theory that sets that threshold too low immediately becomes highly counterintuitive as a theory of how to realize the value of equality; and any theory that is unwilling to provide a justification for why a given threshold is not too low thereby fails to discharge its normative role as a theory of legitimacy.
- Incorporating Ordinary Language in the Analysis of Political Concepts
6.1. Models of conceptual analysis
My paper addresses a minor issue in conceptual analysis. How should we consider non-technical definitions of political terms like the ones we find in every day political debate? To answer this question I will supplement the standard set-theoretical model of concepts used in social sciences (Goertz 2006) with elements taken by semantic and pragmatic old models (Pitkin 1972, Sartori 1984). In these old models, concepts are constructed in three steps: literature review, selection of the essential properties of a concept and construction of the minimal definition. I propose to run two parallel procedures of this kind: one for technical and one for ordinary uses of a concept. After that, we will put them together using reflective equilibrium. This procedure is of some interest for political theorists dealing with concepts going through periods of great interest in the public debate. In these cases, in fact, it may happen that the common usage of the term diverges widely from its technical definition. Scholars are then faced by a conundrum: if they want to have their say in the public arena they must come to terms with ordinary uses of a concept, if they prefer not to do that, because they want to preserve the accuracy of technical language, they will very hardly be heard by the big public. My proposal, then, is designed to avoid, as far as possible, this conundrum by providing a way to integrate common sense into technical jargon without losing accuracy and clarity. On the end of the paper I will show how this integration of the ordinary usage in the definition of a concept is done, in practice, using populism as a case study.
In this final part of paper, I want to look into the relation between technical and ordinary definitions for political concepts. Back in the days a complex debate on this issue raged between ordinary language and positivist political theorists. Ordinary language theorists like Hanna Pitkin and William Connolly believed that ordinary usages of a term could contain important elements to define the related concept. For, these scholars believed that concepts assume a particular meaning only when they are put in a specific context. Because of that, then, concepts might not present coherence and consistency if taken in isolation and out of context. In this view, then, conceptual analysis will be mainly a matter of collecting together documented usages of a concept, without any need to choose between them in order to foster coherence.
On the contrary, positivist scholars like Giovanni Sartori and Felix Oppheneim argued that the presence of too many meanings may lead to loosen the internal coherence that distinguish a concept from another, until the concept to collapse. For positivists, terms are labels of real objects. This means that they see concepts either as directly connected to these objects or as made of other concepts that, in turn, can be tracked down to objects. Any time, then, we find a situation in which it is not clear to which object the concept is referring we should establish if it can be unpacked and tracked down to objects or to other concepts. If neither of these two is the case, then, we should better drop it. Then, for positivists, to analyse a concept means to unpack all its internal ambiguities, either by tracking it down to objects or, if we can’t, to other concepts.
Today, language is no more an issue in conceptual construction. Concepts in social science are now constructed relying, mostly, on set theory and on statistical tools. For sake of simplicity I will settle, in the present paper, with a simplified version of the standard view of concepts as collections of necessary and sufficient conditions. A concept, for this view, is a collection of properties (intension) that a given state of affairs must possess to be included into the set of real objects (extension) that can be labelled with a specific term (or family of terms). This model of concept mirror the model adopted in natural science and is fundamentally aimed to obtain reliable measures. To do so, scholars usually divides properties a concept is made of in two parts: a more empirical part, indicators, and a more theoretical part, attributes. Attributes are highly idealised properties that figure in the definition of the concept. Indicators are real world’s objects pointing to the fact that a state of affairs can be included in the extension of a specific concept.
6.2. Peculiarity of political concepts
The standard model is tailored for the construction of technical concepts and this is why it works very well with natural sciences. We intuitively see a pattern, we demonstrate its connection to a concept through measurements and we arrange these measures together with some theoretical work. But, when it comes to political concepts, this model runs into trouble, as testified by the incredible number of unsolvable conceptual disagreements that we find in political theory. Why is that? Roughly, because it completely, or almost, ignores that the use and misuse of a concept, made by ordinary people, is of great important for politics. In fact, a variation in the usage of a concept by common speakers can completely change the political landscape. And such a landscape is the object of study for political science and political theory. To see the point, imagine that, for instance, ordi-nary people start to use the term “democracy” to describe some kind of authoritarian government. Well, then, political theorists could very hardly ignore it.
In fact, if the acceptance of authoritarian governments as democratic were to spread we might, eventually, assist to a gradual diffusion of authoritarian practices in western democracies. This cannot be said of natural science in which, trivially, phenomena are completely independent from the terms we label them with. If I have to write a paper on the effects of high concentrations of salt on vegetation in Jordan Rift Valley, I will speak of high percents of NaCl in the atmosphere whilst, if I want to describe my Holidays on the Dead Sea I will refer to the same phenomenon using terms like “thick” and “salty”. There is no way in which the ordinary description of the atmosphere as “salty” or “thick” could influence the percentage of NaCl in it. So the technical and the ordinary usage do not interfere in natural sciences, and scholars can perfectly ignore the latter. Furthermore, in politics, the relation works, also, the other way around: in fact a conceptual technical change in political theory may cause a change in political reality through the adoption of new concepts in the ordinary use. For instance, Karl Marx’s invention of class consciousness is undeniably a cause of, for instance, Paris Commune and Russian Revolution. Clearly, this is not always the case, since we may safely argue that the distinction between “polyarchy” and “democracy” had no appreciable effect on political reality.
This paper is aimed to provide a method for political theorists to integrate ordinary usages of a concept into their conceptual reconstructions. This can be of some help to solve conceptual puzzlements, particularly in cases in which a concept is enjoying a sudden success in the public debate as in the case of “populism” or “post-truth”. If we look into the standard model we usually, there is hardly anything that can help us to handle these situations. To be honest, some scholars like John Gerring argued that we should, as far as possible, consider the ordinary point of view by including familiarity in the criteria to distinguish a well made concept from a bad one (Gerring 1999, Gerring and Barresi 2003). Familiarity means that we should prefer ordinary terms towards neologisms and definitions that should not contrast with common sense. But this is a very vague indication that tell us that we should avoid neologisms and too fancy definitions, no more.
6.3. Conceptual analysis of political concepts
Now, I proceed to supplement the standard model as follows: we keep the indicator’s part as it is and we integrate the theoretical part with some elements from old school conceptual analysis. Following Sartori, conceptual analysis is aimed to establish a conceptual core that should be parsimonious and adequate: “adequate in that it contains enough characteristics to identify the referents and their boundaries; parsimonious in that no accompanying property is included among the necessary defining properties” (Sartori 1984 p. 56). This means that we collect together all the different definitions that we find in the literature and we look for common attributes between them. These common attributes are essential whilst other non-common attributes are called “accompanying properties”. After that, we combine these essential attributes together to create the minimal definition of the concept.
For Sartori and Oppheneim ordinary language usages of a term should be ignored or, at most, considered as a random definition between the many others we find in the literature review. But, in so doing, they risk to underestimate the importance of ordinary language for political theory. In fact, a definition that is supported by, let’s say, ten scholars all over the world will count the same as the definition of the same concept that is in use among billions of ordinary people. Clearly, this second definition will have a tremendously greater impact on political reality than the former. We definitely don’t want to overlook this impact. But, in the same time, we don’t want either to end up with an unorganised list of inconsistent definitions as it may, very likely, happen if we take the ordinary us-ages as it is, as suggested by ordinary language philosophers. My proposal is, then, that we split the procedure in two specular parts: one for the ordinary language and one for the technical language. In so doing we will hopefully give to the ordinary usage the right weight, without paying the price of ending up with a list of inconsistent definitions.
This means that we will make a review for the technical literature and another for the ordinary usage. Then, we will run two parallel conceptual analysis and we will end up with two different minimal definitions of the concept: one ordinary minimal definition and one technical minimal definition. For ordinary usage we have no academic literature but a lot of different sources available: dictionaries, newspapers, social media, tv shows, etc. From these sources we will extract essential attributes that we can organise together in the same way of technical attributes, until we reach a minimal definition of the concept derived from the ordinary usage. At this point we will need, somehow, to integrate the two definitions without giving to neither side predominance over the other.
We have to imagine that the two poles will never be perfectly balanced, because a concept can be, for instance, widely used in common language and scarcely studied in the academy or vice versa. Meanwhile it could happen that in one of the two analysis we are able to reach a minimal definition but not in the other one, because the concept under scrutiny is essentially contested. We need, then, to design a procedure that might be able to create balance between the two parts and, in the meantime, to preserve their differences and complexities. For this reason I propose we see the relation between technical and ordinary usage of a political concept as some kind of reflective equilibrium.
The standard definition of reflective equilibrium is that of “a method that attempts to produce coherence in ordered triple sets of beliefs held by a particular person, namely: (a) a set of considered moral judgments, (b) a set of moral principles, and (c) a set of relevant (scientific and philo-sophical) background theories” (Daniels 1979 p. 258). If we replace “considered moral judgement” with “ordinary language definitions of a concept” and “moral principles” with “technical definitions of a concept” we will have a method to connect together the two poles. The fundamental characteristic of the reflective equilibrium is that it is aimed to create coherence and coherence is a never ending process that must be maintained and continually renewed. As in the well-known metaphor of Neurath boat, “our ship of beliefs is at sea, requiring the ongoing replacement of whatever parts are defective to remain seaworthy” (Kvanvig, 2008).
The definition we reach with this method, then, is temporary, but, because of that, it is also sheltered from loosing touch with reality. This mean that if there are important changes in one of two spheres the impact over the conceptual structure will be proportional. For instance, after the Russian revolution, the equilibrium between common usage of communism and marxist orthodoxy suddenly changed in favour of the former to the point that a new theoretical definition was invented: “Leninism”. Now, obviously, we will need more conceptual work on the output of the reflexive equilibrium to refine it and obtain a minimal definition expendable in causal or normative arguments. To do so, we can proceed as we like: I am totally neutral about that. We could extract a minimal definition or we could construct an ideal type. As I said, my aim in this paper is limited to show how to deal with ordinary usages of concepts when we do conceptual analysis, not to tell how we should perform conceptual analysis in general.
6.4. The case of populism
In conclusion I want to show, briefly, my method at work. Let’s take populism as a case study. Famously there is no agreement over the technical definition of it and populism is labelled by all scholars as an essentially contested concept. The literature, at the moment, appears to have stabilised on a scheme made of five main definitions. Populism can be defined, then as:
1) A policy “receiving support from a significant fraction of the population, but ultimately hurting the economic interests of this majority” (Acemoglu, Egorov and Sonin 2013);
2) “A political strategy through which a personalistic leader seeks or exercises government power based on direct, unmediated, uninstitutionalized support from large numbers of mostly unorganised followers” (Weyland, 2001, p. 14);
3) “A political communication style of political actors that refers to the people” (Jagers & Walgrave, 2007, p. 322).
4) “A thin-centred ideology which advocates the sovereign rule of the common people as a homogeneous body” (Abts & Rummens, 2007, p. 409)
5) A political construction of a new political subject made of the various requests of the ruled that gone unheeded by the rulers and establishing a new cleavage between a people (the unheeded ruled) and an élite (the rulers) overriding traditional class divi-sions. (Laclau 2005)
The ordinary usage of populism is, on the contrary, surprisingly homogeneous. Dictionaries define populism as the representation of the common people. Between the many, Oxford dictionary define populism as “a type of politics that claims to represent the opinions and wishes of ordinary people”.
With this definition in hands we can run the reflexive equilibrium to obtain an integration between the two poles. The five definitions above, then, will be transformed as follows:
1) “Populism is the promotion of the interests of the common people (a significant fraction of the population) through specific policies”;
2) “Populism is the unmediated, uninstutionalized representation of the common people (large numbers of mostly unorganised followers)”;
3) “Is the (dramatic) representation of the people performed by political actors”;
4) “Populism is the representation of the people as a homogenous group in which resides sovereignty”.
5) Populism is the political representation of the common people (a new political subject) made of the various requests of the ruled that gone unheeded by the rulers; by that, a new cleavage between a common people (the unheeded ruled) and an élite (the rulers) is established overriding traditional class divisions.
We end up, then, with a homogenisation between the ordinary and the technical use of a concept. With this new material in hands we will be hopefully able to make progress in the otherwise unsolvable conceptual puzzle of populism. But, even if we weren’t, the important thing, here, is that we would have reached a set of definitions that is more at ease with the common use of the concept. And this, as I assumed from the beginning, is an important criterium for a good piece of research in political theory.
«Description maybe description,
even if it is an evaluation».
Herbert Hart (The Concept of Law)
«Death has dominion because it is not only the start of nothing
but the end of everything, and how we think and talk about dying
(the emphasis we put on dying with ‘dignity’) shows how important it is that
life ends appropriately, that death keeps faith with the way we have lived it».
Ronald Dworkin (1931 – 2013)
«If men were angels, no Government would be necessary».
James Madison (The Federalist); and then Jerome Frank (If men were angels)
«This is a Court of law; not a Court of justice.
The rule of joy and the law of duty seem to me all one».
Oliver Wendell Holmes (The Common Law)
THE RELATIONSHIPS BETWEEN LAW AND ANALYTICAL LEGAL PHILOSOPHY: «THE GENOA LEGAL REALISM»
- Introducing Analytical Legal Philosophy
Analytical legal philosophy, as I see it, rests on two main grounds: a meta-philosophical thesis and a juridical-ontological one.
1) The meta-philosophical thesis, generally shared within contemporary empiricist philosophy (as initiated by Gottlob Frege and Bertrand Russell), is that philosophy is not a peculiar form of knowledge of the world, equipped with its own special method and/or object, but rather nothing else but the logical analysis of language 1.
This view was expressed in the sharpest possible way by Ludwig Wittgenstein in his Tractatus Logico-Philosophicus (1922, 39, 44):
4.0031. «All philosophy is “Critique of language” […] 4.111. Philosophy is not one of the natural sciences. (The word “philosophy” must mean something which stands above or below, but not beside the natural sciences.) 4.112 The object of philosophy is the logical clarification of thoughts. Philosophy is not a theory but an activity. A philosophical work consists essentially of elucidations. The result of philosophy is not a number of “philosophical propositions”, but to make propositions clear. Philosophy should make clear and delimit sharply the thoughts which otherwise are, as it were, opaque and blurred».
The same view was expressly applied to legal philosophy by Alf Ross (1958, 25):
«Modern philosophy based on an empirical outlook […] takes the general view that philosophy has no specific subject range either co-ordinated with or distinct from that of the various sciences. Philosophy is not deduction from principles of reason by which another and a higher reality than that of the senses is revealed to us. Nor is philosophy an extension of the sciences designed to discover the uttermost components of reality. It is no theory at all, but a method. This method is logical analysis».
2) The juridical-ontological assumption, in turn, was clearly stated by Norberto Bobbio in a seminal essay, published in 1950, on legal science and linguistic analysis. According to Bobbio, law is (a particular) language, and nothing else, namely the discourse of – the set of normative sentences enacted by – the lawgiving authorities. From this point of view, legal rules are nothing else but linguistic entities (Bobbio 2011, 13, 15 ff.):
«The subject matter of jurisprudence is a set of rules of behaviour. […] Such rules are expressed by […] normative sentences. […] Jurists do not observe phenomena as empirical scientists. […] Jurisprudence is no empirical science […] Its subject […] is the specific content of a given language (the language of the lawgiver, the language of laws). […] The common critical and necessary part of any science is the so-called analysis of language. Well, now jurisprudence is essentially analysis of language, namely of that peculiar language which consists in the normative sentences fomulated by the lawgiver. […] Interpreting the law is but anlysing the lawgiver’s language, i.e., the language in which legal rules are expressed».
It is worth noting, however, that in legal practice the language of lawgivers stands in a continuous osmotic relationship with the language of jurists – mostly judges and legal scholars (Guastini 2013).
The combination of two such theses involves the idea that legal philosophy is nothing else but the analysis of “legal” language, understood as the language of both lawgivers and jurists.
1.2. The Tool Kit of Analytical Legal Philosophy
As far as legal language is concerned, the tool kit of analytical legal philosophy includes at least the following tools.
(i) Some elementary notions, distinctions, and rules of logic.
(ii) An elementary theory of definition, namely the distinction among informative definition, stipulation, and reconstruction.
(iii) The connected distinction between empirical and analytical sentences.
(iv) The connected notion of meta-language.
(v) The distinction between descriptive (true or false) and prescriptive (neither true nor false) sentences.
(vi) The distinction between discovery and justification, motives and reasons.
(vi) The notion of speech-acts and an elementary classification of such acts.
It is a limited tool kit, indeed. Such tools, however, are surely necessary, and perhaps sufficient too, in the analysis of legal language.
1.3. The Tool Kit of Analytical Legal Philosophy
In Guastini’s view, there are two basic ways of practicing analytical legal philosophy. A good and simple device for depicting them is pointing out the relations of analytical legal philosophy with:
(a) on the one hand, the law itself and its sources, that is, the discourse of lawmaking authorities (statutes, constitutions, by-laws, etc.);
(b) on the other hand, jurisprudence, understood in this context, according to the original meaning of the word, as “prudentia juris”, that is, the discourse of both legal scholars and judges (academic works, judicial decisions).
The question about the relations among law, jurisprudence, and analytical legal philosophy allows for two interesting answers which correspond to two different – complementary, not at all incompatible – ways of conceiving and pursuing analytical legal philosophy.
In the first place, analytical legal philosophy can be conceived as a conceptual workshop, that is, as concept construction.
In the second place, borrowing a term from Bobbio, it can be conceived as “meta-jurisprudence” (Bobbio 2012), that is, as the logical analysis of jurisprudential discourse.
- The Genoa Legal Realism
Neo-constitutionalism is a term recently suggested in legal and political philosophy to label what appears as a new perspective to look at and to discuss of law, of its ontological, phenomenological and epistemological dimension; i.e.: of its forms of identification, application and cognition.
Namely, the term neo-constitutionalism has been proposed and first used by some exponents of the Genoa School of Law («Tarello Institute for Legal Philosophy») to capture and to account for what, despite any difference in the arguments adopted and/or in the tenets maintained, emerges as a common assumption in the last two or three decades writings by legal and political philosophers as Ronald Dworkin, Robert Alexy, Carlos Nino, and, in Italy, Luigi Ferrajoli and Gustavo Zagrebelsky.
(Separately necessary, but jointly sufficient, conditions for the existence of a school of thought are: some headquarters; one or more founding fathers; a lot of disciples; a Word to be spread. In fact, Genoa Realism satisfies all these conditions. The headquarters are just in Genoa, Italy, in the old «Legal Culture Department». The founding father was Giovanni Tarello, Italy’s foremost philosopher and historian of law. Disciples are by now a legion, but the more distinctive theoretical contributions – seen as different from historical and sociological ones – have been provided, until now, by the very contributors to the studies on neo-constitutionalism: Riccardo Guastini (actually he is the Director of new «Tarello Institute for Legal Philosophy»); Paolo Comanducci (the representative of Genoa’s School who is better known in Latin America was elected Chancellor of the University of Genoa on July 11, 2014); Mauro Barberis; Pierluigi Chiassoni (the Director of the “Master in Global Rule of Law & Constitutional Democracy”, with Master courses can be attended, since 2011, in the Imperia Campus); Susanna Pozzolo; Giovanni Battista Ratti and Giovanni Damele. Finally, the Word-To-Be-Spread is an interpretation – centered, but realistically – minded, theory of law, and a corresponding analysis of jurisprudence – in fact, a form of legal realism).
That is to say, to put it roughly, the assumption along which the very notion of law together with its forms of identification, application and cognition (i.e., in its ontological, phenomenological, and epistemological dimension) requires to be radically revisited because of the prominent role and pervasive influence fundamental rights have been acquiring since the conclusion of the second world war both in the domestic law of an ever increasing number of (western) countries and in international law. In other words, the assumption is that fundamental rights have been so deeply affecting law in all its major aspects, to justify the need and to urge the claim for a new understanding of its notion.
The suggestion to name neo-constitutionalism the demand for such a new understanding of the notion of law is captivating. Simple and plain as it sounds, the term neo-constitutionalism in fact both recalls constitutionalism as the immediate antecedent of the demand dealt with and acknowledges what in such a demand can be taken to be distinguishing and innovative.
The other way round, the quite dominant opinion on the way to perceive what can be referred to as an expression of neo-constitutionalism, far from being captivating, appears restrictive if not even misleading. Namely, what appears restrictive if not even misleading is the opinion according to which neo-constitutionalism, despite any difference in the way it may happen to be phrased and argued for, is mainly, if not exclusively, a form of natural law; i.e., one of the different forms natural law has been given as the time goes by.
Despite such a widespread dominant opinion, actually there is no reason why neo-constitutionalism shouldn’t be conceived of as a form of positive law rather than as a form of natural law. To the contrary, it seems sound to maintain that, both as a matter of fact and as a matter of law, neo-constitutionalism deserves and requires a legal positivist reading in order to account for its true distinguishing feature: the demand for a new definition of the notion of law because of the radical changes a great number of positive legal systems have been going through since the statement and the protection of fundamental rights have been taken to be their grounding constitutive components; i.e., since fundamental rights have been acquiring a prominent and pervasive influence in affecting them in all their major aspects.
The recognition of human rights is, without a doubt, the most outstanding feature of contemporary legal systems. It can be argued that since the middle of the past century we are immersed in a culture of rights. Neo-constitutionalism is one among many concepts that has been used to designate and study this phenomenon. The hypothesis we will address in this paper is that some of the central characters of our culture of rights, here referred to as “neo-constitutionalism”, cannot be explained consistently without a reference to natural law.
In order to avoid any confusion that may arise in this paper I would like to stress the dual meanings attached to the terms “constitutionalism” and “neo-constitutionalism”. A primary meaning of both lexemes is one of a theory and/or ideology and/or method of analysis applied to law. A secondary meaning of both terms indicates some structural elements of a legal and political system, which are described and explained by (neo) constitutionalism as theory or which satisfy the requirements of (neo) constitutionalism as ideology. It is in this second meaning that “constitutionalism” and “neo-constitutionalism” designate a constitutional model, namely that collection of normative and institutional mechanisms realised in an historically determined legal-political system which limit the powers of the State and/or protect fundamental rights.
The foregoing introductory remarks (meant to make clear the reason why of the claim for a new understanding of the notion of law) lead to a preliminary distinction about the term neo-constitutionalism and its possible uses. Namely, they lead to distinguish what might either be taken to amount to three different notions of neo-constitutionalism, or, perhaps even more convincingly, to what might rather be conceived of as a threefold significance (import) of one and the same notion.
Being more precise, the term neo-constitutionalism can be used, first, in the language of jurists to refer to legal systems where a catalogue of fundamental rights has been expressly laid down in the constitution and/or in constitutional amendments, and where such a catalogue has been supplemented with a variety of legal devices, different as the case may be, to further their implementation and/or to grant them legal protection. Such an use of the term simply refers to a distinguishing feature which some legal systems may happen to possess; that is to say, it simply refers to a (possible) component of positive law and/or to its corresponding notion in legal dogmatics.
Second, the term neo-constitutionalism can be used in the language of legal theorists and philosophers to refer to a new paradigm of law together with its modalities of (judicial) application and forms of cognition. Such an use of the term does not refer just to a (possible) component of positive law and/or to its corresponding notion in legal dogmatics. It rather refers to an explicative model which (positive) law can be given because of the way legal systems may happen to be figured out.
Third, the term neo-constitutionalism can be used in the language of legal and/or political and/or moral philosophers to refer to law as it should be because of the law as it is; that is to say because of the principles and the values which it explicitly states: the fundamental rights, the principles and values which are within, nor without it. Such an use of the term does not refer just to a (possible) component of positive law and/or to its corresponding notion in legal dogmatics. Nor it refers just to an explicative model of particular (positive) legal systems. Rather, such an use of the term refers to an axiological-normative model of law.
Three different notions, perhaps. Or, rather, perhaps a threefold significance and import of one and the same notion: empirical and descriptive in its significance and import, when the term is used in the language of jurists and/or legal dogmaticians; reconstructive and explicative in its significance and import, when the term is used in the language of legal philosophers and theorists; axiological and normative in its significance and import when the term is used in the language of legal, political or moral philosophers.
As stated in the beginning, there is not one way of doing phenomenology. What I have tried to do is to point out some corner stones, some tools and main guidelines, and finally, a flexible framework that phenomenologists can use and modify as they go along. The phenomenological method today has all the resources and best practice models it needs to inspire investigations connected to “order, experience, and critique” – most of all, the phenomena themselves, calling for a careful description and analysis. In the current debates on political and legal issues, I see the main task of phenomenology to reclaim experience as world-building and world-opening, also in a normative sense, and to demonstrate how structures and orders are lived while they condition and form spaces of meaning. If we want to understand, criticize, act, or change something, this subjective and intersubjective perspective will remain indispensable.
Then, I have argued that a phenomenological notion of experience allows us to understand normativity as being an intrinsic part of it, on a passive as well as on an active level. This is possible because experience is conceived through intentionality, that is, as givenness of something for someone in an act of experiencing. Normativity is hence rooted in the intentional relationship to the world. In the phenomenological tradition, intentionality has been spelled out differently with different emphases. In most cases, the reason for these reformulations was to do justice to different forms of experience and, respectively, to diverging structures of “givenness” as they occur, for example, in cognitive processes, in bodily immersedness, in the encounter with the other, etc. Since I have presented a pluralistic account here, I have abstained from arguing for the priority of one approach. Instead, I have tried to show how these different forms of experiences and experiential structures yield different forms of normativity, respectively. I have proposed that a key to understanding the difference in the respective intentional relation is to pay attention to the specific form of normativity it institutes. The three forms of operative, imperative, and critical normativity I have elaborated on are three basic features of our normatively loaded openness to the world. How they relate to one another, as well as how they interrelate in our practical engagement with the world and others has yet to be spelled out.
Furthermore, in the short overview about normative criteria for the selection of feasibility constraints, I showed why normative requirements of feasibility are inadequate.
So, the argument showing the circularity is this:
- The normative theory M should conform with feasibility constraints;
- Facts are feasibility constraints iff they have certain normative features that are assumed or defined by the normative theory M;
- So, soft constraints are selected through the moral assumptions or outcomes of the normative theory M;
- Therefore, normative theory M should conform with facts that normative theory M selected.
Of course, practical feasibility requirements avoid this circularity, because their criteria to select feasibility constraints are not grounded on some normative assessment. Practical criteria to select feasible constraints evaluate the relevance of facts considering features that facts have; independently by the normative theory we trust. In particular, these criteria suggest that facts are feasibility constraints only if they influence the probability of success of a certain prescription or if they make impossible to obtain a certain prescription in a certain context. By doing so, the prescription has a certain feasibility degree if it is capable of being successfully used for some degrees or if it is capable of being successfully used in a certain context. That is the common sense use of the term feasible.
In the end of Part A), this part of paper aimed at providing a systematic reconstruction of the phenomenological intuition that the lifeworld is in some sense more fundamental than scientific inquiry. This is ultimately an argument against the attempts of ontological naturalism to reduce normative properties. In reconstructing the argument, it turned out that the crucial point of contention is whether the fact that normative properties of the lifeworld enabling science implies that those normative properties cannot be shown to be nothing over-and-above physical stuff. Instead of providing an argument for either side to settle this question, I have suggested that pushing the dialectic here further is contingent upon what conception of science one endorses: a pragmatist conception or a perfectionist conception. The broadly pragmatist conception views science as a potentially never-ending democratic-like process which accompanies human practice as it goes forward. In contrast, the perfectionist conception views the project of science as engaged in a progress towards an ultimate set of theories upon which no further improvement can be made, essentially completing science. Out of those two, only the perfectionist view implies that the ontological naturalist can pull herself up by her hair out of the normative swamp of the lifeworld; for if we can hope for a future-ideal physics, then that set of theories will be able to demonstrate how a completely satisfactory reduction of normative properties to physical properties is possible. On the other hand, the pragmatist conception of science suggests that normative properties are always already operative and essential to the scientific process in a way that precludes them being reduced.
It would be presumptuous to have claimed that one of the most intractable difference between two major traditions of thought – naturalism and phenomenology – can this easily be settled. I have therefore not arrogated the right to provide a conclusive answer. What I hope to have demonstrated, however, is that one of the central discrepancies between these two competitors – whether normativity is reducible – turns on the question what conception of science is correct. It might therefore be preferable to inquire further into this direction rather than either look for more refined physicalist accounts on the one hand or to simply restate the priority of the lifeworld without further argument on the other hand. In any case, the optimistic hope is that shifting the question of the reducibility of normativity to the question of the right conception of science, we can contribute to a further dialogue between the vastly disjointed tradition of phenomenology and naturalism.
To sum up, if the foregoing arguments have been along the right lines, then the sceptical argument against the unity of practical normativity relies on a key assumption: that moral and prudential ‘ought’ judgments purport to settle what to do. However, the proponent of the unified view may very well reject this assumption. In its place, they will need to provide an account of different kinds of normative ‘ought’ judgments that explain why this assumption is false. Any such account will need to deal with the objections and problems particular to itself. But the differences in different kinds of normative ‘ought’ judgment is something that needs explaining anyway, by both the proponent and sceptic of the unity of practical normativity. So although any particular response to the sceptic that adopts this strategy will be controversial, one might think that any particular way of defending the assumption will also be controversial. But given the subject matter ¾ the correct general theory of normative concepts ¾ that is just what we should expect.
As the second part of the paper: firstly, the aim of my opening pages was to build a connection between the epistemic conception of criticism and the conception of politics within Kantian work. The focal point of my thesis was that even at the basis of the very possibility of criticism lies an “economic” structure of relationships between different epistemic discourses, which coexist in a non-independent and non-separate way. The concrete coexistence of the different families of sentences and their irreducibility to a homogeneous unity, is in this sense specular to the relationship between men and the relationship between peoples, which are not able, because of the sphericity of the Earth, to escape one another forever. In the same way, the different discursive, cognitive and practical sets find themselves living together, intertwining with one another. Precisely in this interweaving, in this exchanges and loans, mostly made up of formal analogies between different discourses, one can trace a subject, which does not precede such sets of discourses, but arises as a subject capable of criticism precisely from the “transactions” that are established between the different families of sentences. Only this interstitial character allows a critique of the theoretical presuppositions without placing oneself “outside” of what is criticized. In this sense, criticism is political; similarly, politics becomes criticism to the extent that it is able to orient its judgement in a not completely arbitrary way even when it is grappling with “exceptional” cases, so that it is not already given a rule to apply.
Secondly, I have argued that ideal desire internalists are committed to at least one categorical reason for action, namely, a reason to obtain or maintain knowledge of our surroundings. I first presented Michelle Kosch’s Fichte, but then criticized Fichte’s argument – it has awkward commitments about agency and makes implausible claims about how we can acquire knowledge. I have, instead, plugged in some of its insights into Ideal desires internalism as it is typically understood, and hence generated the categorical reason to acquire knowledge about one’s surroundings. I also argued, however, that is it highly unclear whether this reason should count as a moral reason.
The latter is not at all a problem for my purposes, however. My fundamental aim was to investigate whether desire-based reasons internalism is committed to categorical reasons that do not vary between agents, and I have been able to identify one reason which is like that – even though it may not count as moral. That means that desire-based reasons internalism ends up with less contingent results than many writers previously have thought.
Then, the paper has argued that Dworkin’s account of political obligation as a type of political associative obligation relies on two main weaknesses. In order to fill the requirement of particularity which Simmons requires, Dworkin relies on a narrow account of coercion. This account has been criticized in the literature. If Laura Valentini’s wider interpretation of coercion is taken into consideration then Dworkin’s provisos can lead to a duty to create a world state. Secondly, Dworkin views political obligation as a special type of non-voluntary associative obligation. However, unlike other associations, an individual cannot leave all states behind, as he can do with friendships. Nor does the political association have naturally fixed time limits. In the absence of any meaningful exit option, it is hard to claim that a person is morally bound to a particular country. Further research could attempt to investigate whether the two types of coercion which Valentini posits are somehow different from a moral point of view when it comes to political obligation. Secondly, an attempt to justify obligations without exit options could be attempted.
As to the role of interpretation: we started by identifying the presumption in favor of interpretation as a central defining feature of the model of constructive interpretation. The role that the presumption in favor of interpretation assigns to the features of existing practice has significant substantive implications and therefore requires justification. As the discussion has shown, considerations of political stability and of equal respect, whatever their moral merit may be, fail to provide the required principled support for the presumption in favor of interpretation. Lacking any alternative basis, the presumption thus appears to be unjustified, rendering the model of constructive interpretation vulnerable to the charge of being unduly status quo biased. This charge directly affects the practice-dependence approach as defined by Andrea Sangiovanni and Aaron James, which rests on a methodological commitment to the model of constructive interpretation.
The most straightforward way to defend the practice-dependence approach against the status quo bias charge would be to renounce the presumption in favor of interpretation. This, however, would appear to deprive the model of constructive interpretation of its distinctive methodological characteristic, rendering the practice-dependence approach indistinguishable from more prominent approaches that rely on a holistic reflective equilibrium model. Alternatively, proponents of practice-dependence may attempt to defend their approach while maintaining its methodological distinctiveness by limiting its normative aspiration to the justification of regulatory principles for existing practices, without justifying the existence of these practices itself. Doing so, in turn, would relegate the role of practice-dependent theorizing to purposes of non-ideal theory, removing it from competition with alternative methodological frameworks that are aimed at addressing concerns of ultimate justification.
Lastly, in this research I provided an argument against a recent proceduralist approach to political theory which urges us to focus on questions of legitimacy — the moral rightness of political procedures – while bracketing questions of justice – the moral rightness of political outcomes. I have argued that this approach is mistaken in assuming that we can specify requirements of legitimacy independently of requirements of justice. Political equality, a necessary condition of the legitimacy of political procedures, cannot be specified without reliance on a particular theory of distributive justice. Hence when we are looking for the right political procedures, we cannot bracket questions of substantive justice and our disagreements concerning what justice requires.
To sum up, in the last pages I sketched in this paper an algorithm to supplement the standard method of conceptual construction in social sciences with some elements to make it able to include common usage of political concepts. My assumption is that this common usage has been overlooked in recent political theory and should be reinstated as one of the main criterium to evaluate a piece of research in this discipline. This may be of some help, not only for descriptive theorists aiming to provide more up to date definitions of concepts, but also normative theorists. In fact, a definition of a concept that is more similar to the one in use among ordinary people could be used as a grounding terrain for the normative work. And this work would be, on the end, more easily put into practice. In fact, not only this will allow political theorists to be more in tune with their subject of study, but this will also make easier for them to take part in the public debate.
So, just in the end of the work, my paper addressed a minor issue in conceptual analysis. How should we consider non-technical definitions of political terms like the ones we find in every day political debate? To answer this question I supplemented the standard set-theoretical model of concepts used in social sciences (Goertz 2006) with elements taken by semantic and pragmatic old models (Pitkin 1972, Sartori 1984). In these old models, concepts are constructed in three steps: literature review, selection of the essential properties of a concept and construction of the minimal definition. I proposed to run two parallel procedures of this kind: one for technical and one for ordinary uses of a concept. After that, we put them together using reflective equilibrium. This procedure is of some interest for political theorists dealing with concepts going through periods of great interest in the public debate. In these cases, in fact, it may happen that the common usage of the term diverges widely from its technical definition. Scholars are then faced by a conundrum: if they want to have their say in the public arena they must come to terms with ordinary uses of a concept, if they prefer not to do that, because they want to preserve the accuracy of technical language, they will very hardly be heard by the big public. My proposal, then, is designed to avoid, as far as possible, this conundrum by providing a way to integrate common sense into technical jargon without losing accuracy and clarity. I showed how this integration of the ordinary usage in the definition of a concept is done, in practice, using populism as a case study.
Rights are, without a doubt, the most outstanding feature of contemporary legal systems. It can be argued that since the middle of the past century we are immersed in a culture of rights. “Neo-constitutionalism” is one among other such concepts that has been used to designate and study this phenomenon. The hypothesis I attempted to address just in the end of this paper, was that some of the central characters of our culture of rights, here termed as neo-constitutionalism, cannot be explained consistently without an explicit reference to natural law.
Is neo-constitutionalism a «third philosophy of law», beyond natural law and legal positivism? I specifically examined the connection between the assertion that there exist natural law principles of justice and the following characteristics of our culture of rights: the recognition of rights; the reference of state or national legal systems to supranational legal systems; constitutions as a result of a network of principles and rules; the principle of proportionality; and the principle of reasonableness. While the first three characteristics constitute the structure of any neo-constitutional practice, the two latter ones are features of the processes of legal reception and legal allocation of rights in such a legal practice.
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VIALE, M., Quale italiano per le leggi?, in «Lingua Italiana». Treccani.it (online).
As to The constitutional language
CIGNETTI, L., Sfondi e rilievi testuali nella Costituzione della Repubblica italiana, in A. FERRARI (ed.), Rilievi. Le gerarchie semantico-pragmatiche di alcuni tipi di testo, Firenze 2005, 85-134.
DE MAURO, T. Il linguaggio della costituzione, in S. RODOTÀ (ed.), Alle origini della costituzione, Bologna 1998, 25-42.
DEON, V., Una lingua democratica: la lingua della Costituzione, in G. ALFIERI – A. CASSOLA (ed.), La “Lingua d’Italia”. Usi pubblici e istituzionali, Atti del XXIX Congresso della Società di Linguistica Italiana (Malta 1995), Roma 1998, 195-212.
MERCATALI, P., Il computer può leggere la Costituzione? Analisi legimatica sullo stile, la struttura e il lessico della proposta di modifica della II Parte della Costituzione italiana, in «Rivista del Notariato» 53 (1999), 565-603.
MERCATALI, P., Chi può leggere la Costituzione? Analisi legimatica sullo stile, la struttura e il lessico della proposta di modifica della II Parte della Costituzione italiana, in D. VERONESI (ed.), Linguistica giuridica italiana e tedesca. Rechtslinguistik des Deutschen und Italienischen, Padova 2000, 119-133.
MORTARA GARAVELLI, B., L’italiano della Repubblica: caratteri linguistici della Costituzione, in V. COLETTI, – S. IANNIZZOTTO (ed.), L’italiano dalla nazione allo stato, Firenze 2011, 211-218.
SILVESTRI, G., Linguaggio della costituzione e linguaggio giuridico: un rapporto complesso, in «Quaderni costituzionali» 9.2 (1989), 229-255.
VISCONTI, J., Discursive Patterns in the Italian and Norwegian Constitutions, in K. GAMMELGAARD – E. HOLMOYVIK, Writing Democracy. The Norwegian Constitution 1814-2014, New York-Oxford 2015, 108-118.
As to The language of the courts: judges and lawyers
ALPA, G., Il linguaggio dell’avvocato nella evoluzione dei metodi interpretativi, delle prassi e della tecnologia, in A. MARIANI MARINI, La lingua, la legge, la professione forense, Milano 2003, 14-39.
BARBAGALLO, G. – MISSORI, M., Il linguaggio delle sentenze, in «La nuova giurisprudenza civile commentata» 2 (1999), 91-100.
CARBONE, E., Funzioni della massima giurisprudenziale e tecniche di massimazione, in «Politica del diritto» 36 (2005), 135-143.
CALAMANDREI, P., Della cosiddetta oratoria forense, in ID., Elogio dei giudici scritto da un avvocato, Milano 1989 , 69-104.
CAVALLONE, B., Un idioma coriaceo: l’italiano del processo civile, in F. BAMBI – B. POZZO (ed.), L’italiano giuridico che cambia, Atti del convegno 1 Ottobre 2010, Accademia della Crusca, Firenze 2011, 85-95.
CERRI, D., Efficienza e comprensibilità come obiettivi deontologici nel linguaggio del civilista, in A. MARIANI MARINI – F. BAMBI (ed.), Lingua e diritto. Scritto e parlato nelle professioni legali, Pisa 2013, 69-78.
CONTE, G., Il linguaggio della difesa civile, in A. MARIANI MARINI – F. BAMBI (ed.), Lingua e diritto. Scritto e parlato nelle professioni legali, Pisa 2013, 35-68.
COPPI, F., Il linguaggio della difesa penale, in A. MARIANI MARINI – F. BAMBI (ed.), Lingua e diritto. Scritto e parlato nelle professioni legali, Pisa 2013, 107-120
CORDERO, F., Stilus Curiae (analisi della sentenza penale), in «Rivista italiana di diritto e procedura penale» 29.1 (1986), 19-34.
CORTELAZZO, M. A., La tacita codificazione della testualità delle sentenze, in A. MARIANI MARINI (ed.), La lingua, la legge, la professione forense, Milano 2003, 79-88.
CORTESI, F. – MESCOLINI, M., Lo scritto giudiziario. Problema e metodo, Torino 2007.
DELL’ANNA, M. V., In nome del popolo italiano. Linguaggio giuridico e lingua della sentenza in Italia, Roma 2013.
DELL’ANNA, M. V., Profili discorsivi e argomentazione nel linguaggio del giudice, in A. MARIANI MARINI – F. BAMBI (ed.), Lingua e diritto. Scritto e parlato nelle professioni legali, Atti del convegno organizzato dall’Accademia della Crusca e dalla Scuola Superiore dell’Avvocatura, Firenze, 9 marzo 2012, Pisa 2013, 149-175.
DELL’ANNA, M. V. – GUALDO, R., Per prove e per indizi (testuali). La prosa forense dell’avvocato e il linguaggio giuridico, in G. RUFFINO – M. CASTIGLIONE, La lingua variabile nei testi letterari, artistici e funzionali contemporanei (1915-2014). Atti del XIII Congresso SILFI – Società Internazionale di Linguistica e Filologia Italiana, Palermo, 22-24 settembre 2014, Firenze 2016, 623-635.
DELL’ANNA, M. V., La massima giurisprudenziale: tratti di lingua e strategie di composizione di un genere giuridico tra sintesi e riscrittura testuale, in E. GARAVELLI – E. SUOMELA-HÄRMÄ (ed.), Dal manoscritto al web. Canali e modalità di trasmissione dell’italiano. Tecniche, materiali e usi nella storia della lingua, Atti del XII Congresso SILFI – Società Internazionale di Linguistica e Filologia Italiana, Helsinki, 18-21 giugno 2012, Firenze 2014, 739-746.
DELL’ANNA, M. V., Sui giudici scrittori. Convergenze tra discipline, letterature, lingue, in N. MARASCHIO – D. DE MARTINO – G. STANCHINA (ed.), Lingue e Diritti. Atti del Convegno La Piazza delle Lingue 2013 (Firenze – Accademia della Crusca, 14-16 novembre 2013), I, Firenze 2014, 151-159.
DELL’ANNA, M. V., La sentenza: lingua, chiarezza, democrazia, in «Lingua Italiana» Treccani.it (online).
DELL’ANNA, M. V., Tra attori e convenuti. La lingua dell’avvocato e la lingua del giudice nel processo civile, in Lingua e processo. Le parole del diritto di fronte al giudice, Atti del convegno organizzato dall’Accademia della Crusca con la collaborazione della Scuola Superiore della Magistratura e del Dipartimento di Scienze Giuridiche dell’Università di Firenze, Firenze – Accademia della Crusca, 4 aprile 2014 (c.d.s.)
DOMENIGHETTI, I., Note sul linguaggio giudiziario, in ID. (ed.), Con felice esattezza. Economia e diritto tra lingua e letteratura, Bellinzona 1998, 255-272.
GARAVELLI, M., I giudici e il linguaggio, in J. VISCONTI, Lingua e diritto. Livelli di analisi, Milano 2010, 97-102.
MORTARA GARAVELLI, B., Strutture testuali e stereotipi nel linguaggio forense, in A. MARIANI MARINI (ed.), La lingua, la legge, la professione forense, Atti del Convegno Accademia della Crusca – CNF – Formazione Avvocati (Firenze, 31 gen.-1 feb. 2002), Milano 2003, 3-19.
MORTARA GARAVELLI, B., Condizioni di eterogeneità discorsiva nel dialogato di procedimenti penali, in J. VISCONTI, Lingua e diritto. Livelli di analisi, Milano 2010, 103-118.
MORTARA GARAVELLI, B., L’italiano ufficiale: strutture sintattiche e retoriche in testi giudiziari, in Lingua e letteratura italiana: istituzioni e insegnamento, Atti dei convegni dei Lincei, 149, Accademia nazionale dei Lincei, Roma 1999, 155-168.
ONDELLI S. (2014). Drafting Court Judgments in Italy: History, Complexity and Simplification, in V. K. BHATIA – G. GARZONE – R. SALVI – G. TESSUTO – C. WILLIAMS (ed.), Language and Law in Professional Discourse Issues and Perspectives, Newcastle upon Tyne 2014, 29-45.
ONDELLI, S., Il genere testuale della sentenza penale in Italia, in G. BENELLI – G. TONINI (ed.) Studi in ricordo di Carmen Sanchez Montero, I, Trieste 2006, 295-309.
ONDELLI, S., La sentenza penale tra azione e narrazione, Padova 2012.
ONDELLI, S., Ordine delle parole nell’italiano delle sentenze: alcune misurazioni su corpora elettronici, in «Informatica e diritto» 23 (2014), 13-39.
RUGGIERI, F., Il caso della procedura penale, in F. BAMBI – B. POZZO (ed.), L’italiano giuridico che cambia, Atti del convegno 1 Ottobre 2010, Accademia dellla Crusca, Firenze 2011, 141-176.
SAMEK LUDOVICI, R., Linguaggio e interazione nel vecchio e nel nuovo processo penale, in A. QUADRIO – D. PAJARDI (ed.), Interazione e comunicazione nel lavoro giudiziario, Milano 1993, 145-154.
SANTULLI, F., La sentenza come genere testuale: narrazione, argomentazione, performatività, in G. GARZONE – F. SANTULLI (ed.), Il linguaggio giuridico. Prospettive interdisciplinari, Milano 2008, 207-238.
SANTULLI, F., Strutture argomentative e scelte lessicali nel linguaggio della giurisprudenza, in E. CRESTI (ed.) Prospettive nello studio del lessico italiano. Atti del IX Congresso SILFI – Società Internazionale di Linguistica e Filologia Italiana, Firenze, 14-17 giugno 2006, Firenze 2008, 461-469.
TRIA, L., Il linguaggio e lo stile delle Corti Supreme, in A. MARIANI MARINI – F. BAMBI (ed.), Lingua e diritto. Scritto e parlato nelle professioni legali, Pisa 2013, 177-195.
As to The language of (civil law) notary
FIORELLI, P., Notariato e lingua italiana, in Le scuole di specializzazione per le professioni legali: convegno di studi in onore del notaio Vincenzo Colapietro, Roma 2000, 55-68 (now also in P. FIORELLI, Intorno alle parole del diritto, Milano, 2008, 309-328).
LA PORTA, U., Il linguaggio nell’attività notarile, in E. MARMOCCHI, L’atto pubblico fra tecniche di redazione e forme di comunicazione, Milano 2006, 69-82.
MORTARA GARAVELLI, B., L’occhiale del linguista su testi notarili, in E. MARMOCCHI, L’atto pubblico fra tecniche di redazione e forme di comunicazione, Milano 2006, 83-98.
As to The language of the contractors
ONORATO, M., L’ accordo d’interpretazione, Milano 2009.
VISCONTI, J., Il testo scritto: il contratto, in A. MARIANI MARINI – F. BAMBI (ed.), Lingua e diritto. Scritto e parlato nelle professioni legali, Pisa 2013, 121-134.
As to Academic legal language
CAVAGNOLI, S., La nota a sentenza come genere unificante di prassi e dottrina giuridica, in G. GARZONE – F. SANTULLI (ed.), Il linguaggio giuridico. Prospettive interdisciplinari, Milano 2008, 285-303.
CORTELAZZO, M., Preliminari per lo studio dei testi accademici italiani di scienze giuridiche, in D. VERONESI (ed.), Linguistica giuridica italiana e tedesca. Rechtslinguistik des Deutschen und Italienischen, Padova 2000, 337-344.
SCHMIDT, R., An der Grenzlinie zwischen juristischer Fachsprache und sozialwissenschaftlichem Diskurs: die Sprache der deutschen bzw. italienischen Rechtswissenschaft, in D. VERONESI (ed.), Linguistica giuridica italiana e tedesca. Rechtslinguistik des Deutschen und Italienischen, Padova 2000, 345-361.
VERONESI, D., La metafora negli articoli scientifici giuridici: linguaggio, testo, discorso, in EAD. (ed.), Linguistica giuridica italiana e tedesca. Rechtslinguistik des Deutschen und Italienischen, Padova 2000, 363-380.
As to The bureaucratic and public administration language
ALFIERI, G. – CASSOLA, A. (ed.), La “Lingua d’Italia”. Usi pubblici e istituzionali, Atti del XXIX Congresso della Società di Linguistica Italiana (Malta 1995), Roma 1998.
BASILE, G., Storia e caratteristiche dell’italiano burocratico, in «Novecento» 1 (1991), 23- 40.
BASILICA, F. – SEPE, S., Il linguaggio delle istituzioni pubbliche nei discorsi di insediamento presso l’Avvocatura dello Stato, il Consiglio di Stato e la Corte dei Conti, Roma 2004.
CILIBERTI, A., 1997, Changes in discursive practices in Italian public administration, in «Journal of Pragmatics» 27 (1997), 127-144.
CORTELAZZO, M. A., La scrittura amministrativa, in S. LUBELLO (ed.), Lezioni d’italiano. Riflessioni sulla lingua del nuovo millennio, Bologna 2014, 85-104.
DORETTO, B., URSINI, F., L’amministrazione pubblica in Rete, in P. D’ACHILLE (ed.), Generi, architetture e forme testuali, Atti del VII convegno della Società internazionale di Linguistica e Filologia Italiana, Roma 1-5 ottobre 2002, I, Roma 2004, 285-302.
ESCARPIT, R., Il linguaggio della pubblica amministrazione, in «Selezione dal Reader’s Digest» 1983, 89-108.
LUBELLO, S., Cancelleria e burocrazia, in G. ANTONELLI – M. MOTOLESE – L. TOMASIN (ed.), Storia dell’italiano scritto, III, Roma 2014, 225-259.
LUBELLO, S., Il linguaggio burocratico, Roma 2014
LUBELLO, S., La burocrazia in pubblico, dalla carta al web, in «Lingua Italiana» Treccani.it (online).
PALERMO, M., La lingua delle cancellerie, in Enciclopedia dell’italiano (2010-2011), I, 167-170.
PIEMONTESE, M. E., La comunicazione pubblica e istituzionale. Il punto di vista linguistico, in S. GENSINI (ed.), Manuale di comunicazione. Modelli semiotici, linguaggi, pratiche testuali, Roma 1999, 315-342.
PIEMONTESE, M. E., Il linguaggio della pubblica amministrazione nell’Italia d’oggi. Aspetti problematici della semplificazione linguistica, in G. ALFIERI – A. CASSOLA (ed.), La «Lingua d’Italia». Usi pubblici e istituzionali, Atti del XXlX Congresso Internazionale di Studi della SLI (Malta, 3-5 novembre 1998), Roma 1999, 269-292.
RASO, T., La scrittura burocratica. La lingua e l’organizzazione del testo, Roma 2005.
RASO, T., Origine e strategia dell’informazione in alcune testualità burocratiche, in «Studi linguistici italiani» 25 (1999), 234-266 e 26 (2000), 97-129.
RASO, T., Il linguaggio burocratico, in F. BRUNI – T. RASO (ed.), Manuale dell’italiano professionale. Teoria e didattica, Bologna 2002, 249-276.
RODOTÀ, S., Il linguaggio della Pubblica Amministrazione, in «Selezione dal Reader’s Digest» 1983, 53-57.
ROLANDO, S. (ed.), La comunicazione di pubblica utilità. I. Identità, politica, istituzioni, pubblica amministrazione, Milano 2005.
TRIFONE, M., Il linguaggio burocratico, in P. TRIFONE (ed.), Lingua e identità. Una storia sociale dell’italiano, Roma 20092, 263-291.
VAIANO, A., 2007, Le pubbliche amministrazioni e i cittadini: appunti di un’analisi linguistica, in «ACME» 60 (2007), 291-338.
VIALE, M., Studi e ricerche sul linguaggio amministrativo, Padova 2008.
ZORZI CALÒ, D., La lingua della burocrazia:il contributo dell’analisi linguistica alla definizione del rapporto fra amministrazione e cittadino, in G. ARENA (ed.), La comunicazione di interesse generale, Bologna 1995, 435-450.
As to History of legal language
ABATINO, B., Gallicismi e franco-latinismi nella traduzione di Francesco Foramiti, in D. MANTOVANI – A. PADOA SCHIOPPA (ed.), Interpretare il Digesto. Storia e metodi, Pavia 2014, 161-194.
ALLEGRETTI, U., Forme costituzionali della storia unitaria: Monarchia e Repubblica, in F. BAMBI (ed.), Un secolo per la costituzione (1848-1948). Concetti e parole nello svolgersi del lessico costituzionale italiano, Atti del convegno 11 novembre 2011, Firenze, Villa Medicea di Castello, Firenze 2012, 213-276.
BAMBI, F. Una nuova lingua per il diritto. Il lessico volgare di Andrea Lancia nelle provvisioni fiorentine del 1355-57, Milano 2009.
BAMBI, F., I nomi delle leggi fondamentali, in «Studi di lessicografia italiana» 11 (1991), 201-211.
BAMBI, F., Lo statuto del Podestà di Firenze del 1355: il testo volgarizzato da ser Andrea Lancia in confronto con l’originale latino, in D. VERONESI (ed.), Linguistica giuridica italiana e tedesca. Rechtslinguistik des Deutschen und Italienischen, Padova 2000, 243-258.
BAMBI, F., Parole e costituzioni, in F. BAMBI (ed.), Un secolo per la costituzione (1848-1948). Concetti e parole nello svolgersi del lessico costituzionale italiano, Atti del convegno 11 novembre 2011, Firenze, Villa Medicea di Castello, Firenze 2012, 11-28.
CORTELAZZO M. A., VIALE M., Storia del linguaggio politico, giuridico e amministrativo nella Romània: italiano/Geschichte der Sprache der Politik, des Rechts und der Verwaltung in der Romania: Italienisch, in G. ERNST M.- D. GLEßGEN – C. SCHMITT – W. SCHWEICKARD (ed.), Romanische Sprachgeschichte. Ein internationales Handbuch zur Geschichte der romanischen Sprachen/Histoire linguistique de la Romània. Manuel international d’histoire linguistique de la Romània, 2, Berlin – New York 2006, 2112-2123.
CORTELAZZO, M. A., La lingua dello Stato, in V. COLETTI, – S. IANNIZZOTTO (ed.), L’italiano dalla nazione allo stato, Firenze 2011, 155-160.
COSTA, P., Il problema del potere costituente in Italia fra Risorgimento e Repubblica, in F. BAMBI (ed.), Un secolo per la costituzione (1848-1948). Concetti e parole nello svolgersi del lessico costituzionale italiano, Atti del convegno 11 novembre 2011, Firenze, Villa Medicea di Castello, Firenze 2012, 109-138.
DE MAURO, T., Linguaggio giuridico: profili storici, sociologici e scientifici, in CEPIG (Centro Pontino di Iniziative Giuridico-sociali), Linguaggio e giustizia, Ancona 1986, 11-20.
DE MAURO, T., Storia linguistica dell’Italia repubblicana dal 1946 ai nostri giorni, Roma-Bari 2015 (here the chapters La costituzione, 201-212; I linguaggi specialistici, 227-250).
DE MAURO, T., Storia linguistica dell’Italia unita, Roma-Bari, 1963 (here the chpater La lingua della legislazione italiana, 424-435).
DELL’ANNA, M. V., Un dizionario specialistico postunitario: il Dizionario del linguaggio italiano storico ed amministrativo (1881) di Giulio Rezasco, in A. NESI – S. MORGANA – N. MARASCHIO (ed.), Storia della lingua italiana e storia dell’Italia unita. L’italiano e lo stato nazionale, Atti del IX Convegno ASLI – Associazione per la Storia della Lingua Italiana, Firenze, 2-4 dicembre 2010, Firenze 2011, 231-242.
DELL’ANNA, M. V., Diritto e istituzioni nel Vocabolario degli Accademici della Crusca, in L. TOMASIN (ed.), Il Vocabolario degli Accademici della Crusca (1612) e la storia della lessicografia italiana, Atti del X Convegno ASLI – Associazione per la Storia della Lingua Italiana, Padova-Venezia, 29-30 novembre-1 dicembre 2012, Firenze 2013, 369-378.
DELL’ANNA, M. V., Il contributo del TLIO alla conoscenza delle lingue speciali nell’italiano antico. Il caso del diritto, Atti XXVIIe Congrès international de linguistique et de philologie romanes, Nancy, 15-20 luglio 2013 (c.d.s.).
DELL’ANNA, M. V. – NEPORI, F., Il «Dizionario del linguaggio italiano storico ed amministrativo» di Giulio Rezasco, in «Nuova informazione bibliografica» 4 (2011), 855-860.
DE MEO, C., Lingue tecniche del latino, Bologna 20052.
FIORAVANTI, M., Principio di sovranità e rigidità della costituzione: dallo Statuto alla Costituzione repubblicana, in F. BAMBI (ed.), Un secolo per la costituzione (1848-1948). Concetti e parole nello svolgersi del lessico costituzionale italiano, Atti del convegno 11 novembre 2011, Firenze, Villa Medicea di Castello, Firenze 2012, 67-84.
FIORELLI, P., Per un vocabolario giuridico italiano, in «Lingua nostra» 8 (1947), 96-108.
FIORELLI, P., Storia giuridica e storia linguistica, in «Annali di Storia del diritto», I, 1957, 261-291.
FIORELLI, P., La lingua giuridica dal De Luca al Bonaparte, in L. FORMIGARI (ed.), Teorie e pratiche linguistiche dell’Italia del Settecento, Bologna 1984, 127-154 [now in P. FIORELLI, Intorno alle parole del diritto, Milano 2008, 329-360].
FIORELLI, P., Et seu, in «Studi linguistici italiani» 18 (1992), 119-128 [now in P. FIORELLI, Intorno alle parole del diritto, Milano, 2008, 297-308].
FIORELLI, P., La lingua del diritto e dell’amministrazione, in L. SERIANNI – P. TRIFONE (ed.), Storia della lingua italiana, II, 553-597 [now in P. FIORELLI, Intorno alle parole del diritto, Milano 2008, 1-70].
FIORELLI, P., Gli ‘Ordinamenti di giustizia’ di latino in volgare, in V. ARRIGHI (ed.), Ordinamenti di giustizia fiorentini. Studi in occasione del VII centenario, Firenze 1995, 65-103 [now in P. FIORELLI, Intorno alle parole del diritto, Milano, 2008, 229-280].
FIORELLI, P., ‘Ragione’ come ‘diritto’ tra latino e volgare, in Nozione, formazione e interpretazione del diritto dall’età romana alle esperienze moderne. Ricerche dedicate al Professor Filippo Gallo, Napoli 1997, III, 105-157 [ora in P. FIORELLI., Intorno alle parole del diritto, Milano, 2008, 129-184].
FIORELLI, P., L’italiano giuridico dal latinismo al tecnicismo, in I. DOMENIGHETTI (ed.), Con felice esattezza. Economia e diritto tra lingua e letteratura, Bellinzona 1998, 139-183 [now in P. FIORELLI, Intorno alle parole del diritto, Milano, Giuffrè, 2008, pp. 71-127].
FIORELLI, P., Leggi bilingui nella Toscana della Reggenza, in D. VERONESI (ed.), Linguistica giuridica italiana e tedesca. Rechtslinguistik des Deutschen und Italienischen, Padova 2000, 229-242 [now in P. FIORELLI, Intorno alle parole del diritto, Milano 2008, 361-378].
FIORELLI, P., Del marsupio elettorale e d’altro, in E. CAPUZZO – E. MASERATI (ed.), Per Carlo Ghisalberti. Miscellanea di studi, Napoli 2003, 7-18 [now in P. FIORELLI, Intorno alle parole del diritto, Milano, 2008, 281-297].
FIORELLI, P., Vocaboli nuovi dal Piacentino a noi, in O. CONDORELLI (ed.), Panta rei. Studi dedicati a Manlio Bellomo, Roma 2004, I, 319-352 (now also in P. FIORELLI, Intorno alle parole del diritto, Milano, 2008, 185-228).
FIORELLI, P., Leopoldina quinque linguarum, in Per saturam: studi per Saverio Caprioli, Spoleto 2008, I, 427-445 [now in P. FIORELLI, Intorno alle parole del diritto, Milano 2008, 449-472].
FIORELLI, P., L’eredità dell’Opera del “Vocabolario giuridico”, in N. MARASCHIO (ed.), Firenze e la lingua italiana tra nazione ed Europa. Atti del convegno di studi (Firenze, 27-28 maggio 2004), Firenze 2007, 191-198.
FIORELLI, P., Lingua e lingue d’atti ufficiali, , in V. COLETTI, – S. IANNIZZOTTO (ed.), L’italiano dalla nazione allo stato, Firenze 2011, 65-74.
FIORELLI, P., Un Rosmini costituzionalista e cruscante, in F. BAMBI (ed.), Un secolo per la costituzione (1848-1948). Concetti e parole nello svolgersi del lessico costituzionale italiano, Atti del convegno 11 novembre 2011, Firenze, Villa Medicea di Castello, Firenze 2012, 189-212.
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 As to general references, see (in alphabetical order): Agamben, Giorgio (1998). Sovereign Power and Bare Life. Stanford: Stanford UP; Ahmed, Sara (2006). Queer Phenomenology: Orientations, Objects, Others. Durham: Duke UP; Al-Saji, Alia (2014). “A Phenomenology of Hesitation: Interrupting racializing habits of seeing.”, in E. Lee (Ed.), Living Alterities: Phenomenology, Embodiment, and Race, Albany: State University of New York Press, 133-172; Arendt, Hannah (1973). Origins of Totalitarianism. New York: Harcourt Brace Jovanovich; Id., (1998). The Human Condition. Chicago: University of Chicago Press; Bedorf, Thomas (2010). Verkennende Anerkennung. Über Identität und Politik. Berlin: Suhrkamp; Borren, Marieke (2014). “The human condition of being undeportable and the abyss of the ‘right to have rights’.” Open. Cahier on Art and the Public Domain; Butler, Judith (1990). Gender Trouble: Feminism and the Subversion of Identity. London: Routledge; Id., (2004). Precarious Life: The Powers of Mourning and Violence. London: Verso; Couldry, N., Fotopoulou, A., & Dickens, L. (2016). “Real Social Analytics: A Contribution Towards a Phenomenology of a Digital World.” The British Journal of Sociology 67 (1), 118-137; Crowell, Steven G. (2001). Husserl, Heidegger, and the Space of Meaning. Evanston, IL: Northwestern UP; Ferrari, Martina, Fitzpatrick, Devin, McLay, Sarah, Hayes, Shannon, Rather Kaja Jenssen and Zimmer, Amie: “Editors’ Introduction. Reflections on the First Issue.” Puncta. Journal of Critical Phenomenology, 1-7; Fóti, Véronique M. and Kontos, Pavlos (Eds.) (2017). Phenomenology and the Primacy of the Political. Essays in Honor of Jacques Taminiaux. New York at al: Springer Foucault, Michel (1981). “The Order of Discourse.” In R. Young (Ed.), Untying the Text: A Post-structuralist Reade. London: Routledge, Kegan and Paul, 48-79; Gubser, Michael (2014). The Far Reaches. Phenomenology, Ethics, and Social Renewal in Central Europe. Stanford UP; Gündogdu, Ayten (2015). Rightlessness in an Age of Rights. New York: Oxford UP; Günther, Lisa (2013). Solitary Confinement. Social Death and Its Afterlives. Minneapolis: University of Minnesota Press; Gurley, S. West and Pfeifer, Geoff (Eds.) (2016). Phenomenology and the Political. Rowman and Littlefield; Habermas, Jürgen (1984). The Theory of Communicative Action. Boston: Beacon; Id., J. (1991). The Structural Transformation of the Public Sphere. Cambridge, MA: MIT Press; Heinämaa, Sara (2003). Toward a Phenomenology of Sexual Difference: Husserl, Merleau-Ponty, Beauvoir. Lanham et al.: Rowman & Littlefield; Hendricks, V. F., & Hansen, P. G. (2014). Infostorms: How to Take Information Punches and Save Democracy. Cham: Springer; Herrmann, Steffen and Bedorf, Thomas (Eds.) (2019). Political Phenomenology: Experience, Ontology, Episteme. London: Routledge (forthcoming); Husserl, Edmund (1970). The Crisis of European Sciences and Transcendental Phenomenology: An Introduction to Phenomenological Philosophy. Evanston, IL: Northwestern UP; Id., (1982). Ideas pertaining to a pure phenomenology and to a phenomenological philosophy. First Book. The Hague: Martinus Nijhoff; Jung, Hwa Yol and Embree, Lester (Eds.) (2016). Political Phenomenology. Essays in Memory of Petee Jung. Palgrave Macmillan/Springer; Levinas, Emmanuel (1969). Totality and Infinity. Pittsburgh: Duquesne UP; Levinas, Emmanuel (1991). Otherwise than Being or Beyond Essence. The Hague: Nijhoff; Loidolt, Sophie (2010). Einführung in die Rechtsphänomenologie: Eine historischsystematische Darstellung. Tübingen: Mohr Siebeck; Loidolt, Sophie (2017). Phenomenology of Plurality. Hannah Arendt on Political Intersubjectivity. London/New York: Routledge; Id., (2018a). “Experience and Normativity: The Phenomenological Approach.” In A. Cimino, C. Coenen, & C. Leijenhorst (Eds.), The Ideas of Experience. Phenomenological Explorations. Leiden: Brill, 150-165; Id., (2018b). “Value, Freedom, Responsibility: Central Themes in Phenomenological Ethics”. In D. Zahavi (Ed.), The Oxford Handbook for The History of Phenomenology. Oxford: Oxford UP, 696-716; Luhmann, N. (1995). Social Systems. Stanford, CA: Stanford UP; Menke, Christoph (2015). Kritik der Rechte. Berlin: Suhrkamp; Merleau-Ponty, Maurice 2005. Phenomenology of Perception. London/New York: Routledge; Oksala, Johanna (2016). Feminist Experiences. Foucauldian and Phenomenological Investigations. Evanston: Northwestern UP; Ortega, Mariana (2016). In-Between: Latina Feminist Phenomenology, Multiplicity, and the Self. Albany: State University of New York Press; Salamon, Gayle (2018). “What’s Critical about Critical Phenomenology?” Puncta. Journal of Critical Phenomenology, 8-17; Scarry, Elaine (1985). The Body in Pain: The Making and Unmaking of the World. Oxford: Oxford UP; Scott, Joan (1991). “The Evidence of Experience.” Critical Inquiry 17 (4), 773-797; Staudigl, Michael (2014). Phänomenologie der Gewalt. Dordrecht: Springer; Steinbock, Anthony (1995). Home and Beyond. Generative Phenomenology After Husserl. Evanston, IL: Northwestern UP; Waldenfels, Bernhard (1987). Ordnung im Zwielicht. Frankfurt a. M.: Suhrkamp; Waldenfels, Bernhard (1994). Antwortregister. Frankfurt a. M.: Suhrkamp; Waldenfels, Bernhard (1997). Topographie des Fremden. Frankfurt a. M.: Suhrkamp; Young, Iris Marion (1980). “Throwing Like a Girl: A Phenomenology of Feminine Body Comportment. Motility and Spatiality.” Human Studies 3, 137-156; Zahavi, Dan (1996). Husserl und die transzendentale Intersubjektivität. Dordrecht: Kluwer; Zahavi, Dan (1999). Self-Awareness and Alterity. A Phenomenological Investigation. Evanston, IL: Northwestern UP; Zahavi, Dan (2001). “Beyond empathy. Phenomenological approaches to intersubjectivity.” Journal of Consciousness Studies 8(5–7), 151-167; Zahavi, Dan (2018). Phenomenology. The Basics. London/New York: Routledge; Zahavi, Dan (2019). “Applied phenomenology: Why it is safe to ignore the epoché”. Forthcoming in Continental Philosophy Review, ed. by Steven Galt Crowell and Anthony Fernandez, 2020.
 Cf. Herrmann/Bedorf (2019), Fóti/Kontos (2017), Gurely/Pfeifer (2016), Jung/Embree (2016), also Loidolt (2017).
 To name a few outstanding and influential books of this wave, cf. Steinbock (1995), Zahavi (1999), Crowell (2001), Heinämaa (2003).
 The book is announced to appear with Northwestern UP in 2019, the journal is called Puncta. Journal of Critical Phenomenology. For some examples for critical phenomenological works cf. Ahmed (2006), Günther (2013), Al-Saji (2014), Gündogdu (2015), Ortega (2016).
 Two exemplary works are Bedorf (2010) and Staudigl (2014), but let me also mention the names Burkhard Liebsch, Pascal Delhomme, Petra Gehring and Gerhard Unterthurner for further research.
 For a most recent introduction that develops these core ideas of phenomenology in more detail cf. Zahavi 2018.
 All of the following examples and theories are described in more detail in my introduction to the phenomenology of law (Loidolt 2010).
 Again, this is not specific to phenomenology but legal theory in general, as the numerous debates on the concept of law demonstrate.
 This applies to authors and projects as different as Jacques Derrida’s deconstruction and Don Ihde’s technophenomenology, and is also continued in critical phenomenology.
 For a recent and typical example cf. Ferrari et al. (2018, 4) who simply refer to it as a “given” insight.
 This would certainly need more detailed argumentation leading directly into quite theoretical Husserl-disputes (which I want to avoid here). But my view is that Husserl insists on the relatedness of subjectivity to world while strictly maintaining its ontological difference – which Merleau-Ponty blurs. His rejection of the “complete reduction,” in my reading, rests on a certain misunderstanding of transcendental subjectivity, as if it would then “incorporate” the whole world or be able to distance itself from it in an intellectualist way and stay somehow detached and clean. However, for Husserl the point is not intellectualist distance but ontological difference.
 As to Husserl’s approach to phenomenology of law: see Loidolt 2010, 53-75. Saying that the personalistic attitude belongs to the natural attitude of course puts it in sharp contrast to the naturalistic attitude.
As to the eidetic and norms in the law language, see e.g. the works by Amedeo Giovanni Conte, listed in the general bibliography. As Maria-Elisabeth Conte (his wife) would have put it, a church bishop is an obiectum affectum, whereas the chess bishop is an obiectum effectum. The difference is like that between pressing somebody’s hand and clenching one’s fist. There is a wider and a more narrow understanding of what it is (for a rule) to prescribe. On a wider reading, all so-called practical (i.e. action-directing) propositions prescribe, including imperatives and propositions like «it’s drafty in here» if taken as a request to shut a window or a door. On a narrower reading, prescriptive are just those rules whose linguistic formulation contains a so-called deontic operator, such as «must (not)», «may (not)», «need not» or «ought to»/«should». Guastini thinks that prescriptive rules are typically formulated in the imperative mood but this is a gross simplification at best; permissive rules, for instance, can scarcely be pressed into the imperative mood and there are other difficulties, too. Searle, in pretending that all prescriptive («regulative» in his parlance) rules either have already been, or can «comfortably» be, paraphrased in the imperative-mood form, is being nonchalant. See the final appendix for further details or bibliography.
 In her article, Salamon (2018, 11) seems to go exactly in the other direction. While she rather discards the notion of the transcendental by relating to the critiques of Butler and Foucault, she defends a notion of “the reduction” (in one instance also called “the phenomenological reduction”) by invoking Merleau-Ponty, as an operation that allows to see the world “springing forth” in meaning constitution. I would, however, insist, that this precisely is a step into the phenomenological-transcendental dimension. The phenomenological reduction is always a transcendental reduction. But “the reduction” is the much more specific term (which much more burden on its completeness or incompleteness etc. and with much more obligation to really engage with Husserl’s project) than “transcendental reflection” which is why I see more openness in the latter.
 This expression derives from the work of Ari Hirvonen.
 Cf. Wilfrid Sellars, Empiricism and the Philosophy of Mind (Cambridge, MA: Harvard University Press, 1997).
 John McDowell, Mind and World (Cambridge, MA: Harvard University Press, 1994).
 Robert Brandom, Making it Explicit (Cambridge, MA: Harvard University Press, 1994).
 Brandom is indeed quite explicit about his stance: “‘Experience’ is not one of my words. I do not see that we need to appeal to any intermediaries between perceptible facts and reports of them that are non-inferentially elicited by the exercise of reliable differential responsive dispositions. There are, of course, many causal intermediaries. But I do not see that any of these has any particular conceptual or (therefore) cognitive or semantic significance.“ Robert Brandom, Articulating Reasons (Cambridge, MA: Harvard University Press, 2000), 205–6. From this, it is quite clear that “experience” for Brandom means extra-conceptual causal impact outside of the space of reasons that can be “cancelled out” for the game of giving reasons.
 Edmund Husserl, Vorlesungen über Ethik und Wertlehre (1908–1914), Husserliana, vol. 28 (Dordrecht: Kluwer, 1988), 402–17.
 Martin Heidegger, History of the Concept of Time. Prolegomena, trans. Theodore Kisiel, (Bloomington, IN: Indiana University Press, 1985), 70.
 Max Scheler, Formalism in Ethics and Non-formal Ethics of Values, trans. Manfred S. Frings and Roger L. Funk (Evanston, IL: Northwestern University Press, 1973), 6-8.
 Hubert Dreyfus, “Overcoming the Myth of the Mental,” Proceedings and Addresses of the American Philosophical Association 79, no. 2 (2005): 47–65.
 Most of the debate on the “Myth of the Mental” between McDowell and Dreyfus can be found in the journal Inquiry 50, no. 4 (2007). For further reading, including papers by other scholars, consult Joseph K. Schear, ed., Mind, Reason, and Being-In-The-World (New York: Routledge, 2013). With respect to Dreyfus’s contributions, I have my reservations that his rather bluntly drawn distinction between “phenomenologists” and “conceptualists” helps to avoid the old dichotomies between an unconscious body (providing non-conceptual content) and a conceptualizing mind (providing conceptual content), which, especially in Dreyfus’s account, is reduced to “self-monitoring.” For a more elaborate account of these reservations, see a paper in a volume on phenomenology and pragmatism: Sophie Loidolt, “On Dreyfus’s Naturalization of Phenomenological Pragmatism: Misleading Dichotomies and the Counter-Concept of Intentionality,” in Pragmatic Perspectives in Phenomenology, ed. Ondrej Švec and Jakub Čapek (London: Routledge, 2017), 122–40.
 I have argued elsewhere that Kant’s analysis of the “fact of practical reason” is indeed such an analysis (of experiencing an ought), since Kant conceives of it as the “consciousness of the moral law.” Cf. Sophie Loidolt, “Husserl und das Faktum der praktischen Vernunft: Phänomenologische Ansprüche an eine philosophische Ethik,” in Philosophy – Phenomenology – Sciences: Essays in Commemoration of Edmund Husserl, ed. Carlo Ierna, Hanne Jacobs, and Filip Mattens (Dordrecht: Springer, 2010) 483–503.
 This engagement can be called “practical,” since it is always guided by practices, e.g. the habitualized praxis of perception (cf. 2.1). If I use the term “practical“ in this context, I do not mean to limit the scope to “practical philosophy.“ Instead, I intend to indicate a “pragmatist“ or practice-orientated approach.
 To be sure, Husserl argues for the theoretical nature of logic against psychologist accounts. The theoretical insight into the laws of logic, however, does have normative consequences. Cf. Edmund Husserl, Logische Untersuchungen. Erster Teil. Prolegomena zur reinen Logik, Husserliana, vol. 19/1 (The Hague: Nijhoff, 1975).
 See Hubert Dreyfus, Being-in-the-World (Cambridge, MA: MIT Press, 1991).
 See Edmund Husserl, Analysen zur passiven Synthesis, Husserliana, vol. 11 (The Hague: Nijhoff, 1966); Edmund Husserl, Zur Phänomenologie der Intersubjektivität III. 1929–1935, Husserliana, vol. 15 (The Hague: Nijhoff, 1973); Edmund Husserl, Erfahrung und Urteil (Hamburg: Meiner, 1985).
 Steven G. Crowell, Husserl, Heidegger, and the Space of Meaning (Evanston, IL: Northwestern University Press, 2001).
 Martin Heidegger, Being and Time, trans. J. Macquarrie and E. Robinson (Oxford: Basil Blackwell, 1962), § 32.
 Maurice Merleau-Ponty, Phenomenology of Perception, trans. C. Smith (London/New York: Routledge 2005).
 Edmund Husserl, Logische Untersuchungen. Zweiter Teil. Untersuchungen zur Phänomenologie und Theorie der Erkenntnis, Husserliana, vol. 19/2 (The Hague: Nijhoff, 1984).
 In her dissertation Recht und Anspruch, Sophie Loidolt tried to spell out how this “normative intentionality” – which I called “rechtliche Intentionalität” – genetically emerges. My thesis is that legitimizing structures that pervade our life-world can be traced back to an originary appeal that consciousness is exposed to by experience. Legitimizing structures are thus to be understood as a predicative answer to this prepredicative appeal. See Sophie Loidolt, Anspruch und Rechtfertigung: Eine Theorie des rechtlichen Denkens im Anschluss an die Phänomenologie Edmund Husserls (Dordrecht: Springer, 2009).
 Husserl, Erfahrung und Urteil, §§ 15-46.
 Husserl, Zur Phänomenologie der Intersubjektivität III.
 Edmund Husserl, Zur Phänomenologie der Intersubjektivität II. 1921–1928, Husserliana, vol. 14 (The Hague: Nijhoff, 1973), 223.
 Dan Zahavi, “Mindedness, mindlessness and first-person authority,” in Mind, Reason and Being-in-the-World, ed. Joseph K. Schear (London: Routledge, 2013), 320–43.
 Heidegger, Being and Time, §§ 54–60.
 Scheler, Formalism in Ethics, 490.
 Edmund Husserl, Grenzprobleme der Phänomenologie: Texte aus dem Nachlass (1908–1937) Husserliana, vol. 42 (New York: Springer, 2014), 194, 200, 358, 378.
 Emmanuel Levinas, Totality and Infinity, trans. Alphonso Lingis (Pittsburgh: Duquesne University Press, 1969); Emmanuel Levinas, Ethics and Infinity: Conversations with Philippe Nemo, trans. Richard A. Cohen (Pittsburgh: Duquesne University Press, 1985); Emmanuel Levinas, Otherwise than Being or Beyond Essence, trans. Alphonso Lingis (Dordrecht: Nijhoff, 1991).
 Later on, I argue in detail how phenomenological approaches to ethics are shaped respectively by their different notions of intentionality, subjectivity, and, consequently, ethical experience. What still unifies them is that these notions allow them to explain how ethical issues can gain relevance for us in the first place. Phenomenologists analyze the structure of those experiences that essentially constitute us as ethical beings and claim that normative questions can only arise in this venue. Cf. Sophie Loidolt, “Value, Freedom, Responsibility: Central Themes in Phenomenological Ethics,” in The Oxford Handbook for the History of Phenomenology, ed. Dan Zahavi (Oxford: Oxford University Press, 2018).
 Levinas, Ethics and Infinity, 95.
 It should be mentioned that Levinas still conceives of the relation to the other in terms of a phenomenological concept of “intentionality” – calling it “a ‘wholly other’ intentionality” (Levinas, Totality and Infinity, 126) even if he criticizes Husserl’s classic notion.
 Steven G. Crowell, “Why is Ethics First Philosophy? Levinas in Phenomenological Context,” European Journal of Philosophy 23, no. 3 (2015): 564–88; Steven G. Crowell, “Second-Person Phenomenology,” in The Phenomenology of Sociality: Discovering the “We,” ed. Thomas Szanto and Dermot Moran (New York: Routledge 2016), 70–89.
 Jean-Paul Sartre, Being and Nothingness: An Essay in Phenomenological Ontology, trans. Hazel E. Barnes (New York: Washington Square Press, 1992).
 Crowell, “Why is Ethics First Philosophy?,” 578.
 Levinas, Totality and Infinity, 35, 67.
 Levinas, Totality and Infinity, 199.
 Crowell, “Why is Ethics First Philosophy?,” 578.
 Levinas, Ethics and Infinity, 95.
 To examine deeply and more explicitly what kinds of experiences this involves in the cases of Arendt and Levinas in this paper, see Sophie Loidolt, “Alterity and/or Plurality? Two Pre-normative Paradigms for Ethics and Politics in Levinas and Arendt,” in Ethics, Society, Politics: Proceedings of the 35th International Wittgenstein Symposium 2012, ed. Hajo Greif and Martin G. Weiss (Berlin: De Gruyter 2013), 241–59.
 See Loidolt, Anspruch und Rechtfertigung.
 Edmund Husserl, Ideen zu einer reinen Phänomenologie und phänomenologischen Philosophie. Erstes Buch, Husserliana, vol. 3/1 (The Hague: Nijhoff, 1976), §§ 136–45.
 Again, I allow myself to refer to my dissertation here, where I have elaborated on these issues in more detail (see Loidolt, Anspruch und Rechtfertigung, 264–84).
 George Heffernan. “On Husserl’s Remark that ‘[s]elbst eine sich als apodiktisch ausgebende Evidenz kann sich als Täuschung enthüllen …’ (XVII 164: 32–33): Does the Phenomenological Method Yield Any Epistemic Infallibility?” Husserl Studies 25 (2009): 15–43, here 27.
 Edmund Husserl, Formale und transzendentale Logik: Versuch einer Kritik der logischen Vernunft, Husserliana, vol. 17 (:Nijhoff, 1974), 284, 288.
 Edmund Husserl, “Fünf Aufsätze über Erneuerung,” in Aufsätze und Vorträge (1922–1937), Husserliana, vol. 27 (Dordrecht: Kluwer, 1989), 3–124.
 See Husserl, Grenzprobleme der Phänomenologie.
 Husserl, Grenzprobleme der Phänomenologie, 358.
 Husserl, Grenzprobleme der Phänomenologie, 358.
 Levinas, Otherwise than Being, 158.
 Levinas, Otherwise than Being, 157.
 Levinas, Otherwise than Being, 159.
 As to general references, see (in alphabetical order): Baker, D. 2015. Deliberators Must Be Imperfect. Philosophy and Phenomenological Research. 90(3), pp. 321-347.; Bukoski, M. 2016. A Critique of Smith’s Constitutivism. Ethics. 127(1), pp. 116-146; Chang, R. 2009. Voluntarist Reasons and the Sources of Normativity. In: Sobel, D. and Wall, S. eds. Reasons for Action, New York, NY: Cambridge University Press, pp. 243-271; Id., 2013. Grounding Practical Normativity: Going Hybrid. Philosophical Studies. 164(1), pp. 163-187; Cowie, C. 2014. In Defence of Instrumentalism about Epistemic Normativity. Synthese. 191(6), pp. 4003-4017; Fichte, J.G. 1798. The System of Ethics. [any edition]; Forcehimes, A. and Semrau, L. 2018. Are There Distinctively Moral Reasons? Ethical Theory and Moral Practice. 21(3), pp. 699-717; Jian, J. forthcoming. Misinformation, Subjectivism, and the Rational Criticizability of Desire. Philosophical Studies. [further details not yet available]; Joyce, R. 2001. The Myth of Morality. Oxford, UK: Oxford University Press; Johnson, R. N. 1997. Reasons and Advice for the Practically Rational. Philosophy and Phenomenological Research. 57(3), pp. 619-625; Id., 1999. Internal Reasons and the Conditional Fallacy. Philosophical Quarterly. 49(194), pp. 53-72; Id., 2003. Internal Reasons: Reply to Brady, van Roojen and Gert. Philosophical Quarterly. 53(213), pp. 573-580; Kant, I. 1785. Groundwork for the Metaphysics of Morals. [any edition]; Katsafanas, P. 2013. Agency and the Foundations of Ethics: Nietzschean Constitutivism. Oxford, UK: Oxford University Press; Id., 2018. Constitutivism about Practical Reasons. In: Star, D. ed. Oxford Handbook of Reasons and Normativity. Oxford, UK: Oxford University Press, pp. 367-391; Kornblith, H. 2002. Knowledge and Its Place in Nature. Oxford, UK: Oxford University Press; Korsgaard, C.M. 1996. The Sources of Normativity. Cambridge, UK: Cambridge University Press; Korsgaard, C.M and Pauer-Studer, H. 2002. Internalism and the Sources of Normativity. [Online.] [Accessed 16 June 2019.] Available from: https://www.people.fas.harvard.edu/korsgaar/CPR.CMK.Interview.pdf. Kosch, M. 2015. Agency and Self-Sufficiency in Fichte’s Ethics. Philosophy and Phenomenological Research. 91(2), pp. 348-380; Id., 2018. Fichte’s Ethics. Oxford, UK: Oxford University Press; Lindeman, K. 2019. Functional Constitutivism’s Misunderstood Resources: A Limited Defense of Smith’s Constitutivism. Ethics. 130(1), pp. 79-91; Markovits, J. 2014. Moral Reason. Oxford, UK: Oxford University Press; Nagel, T. 1970. The Possibility of Altruism. Princeton, NJ: Princeton University Press; Parfit, D. 1984. Reasons and Persons. Oxford, UK: Oxford University Press; Schroeder, M. 2007. Slaves of the Passions. Oxford, UK: Oxford University Press; Sobel, D. 1999. Do the Desires of Rational Agents Converge? Analysis. 59(3), pp. 137-147; Smith, M. 1994. The Moral Problem, Oxford, UK: Blackwell Publishing; Smith, M. 1995. Internal Reasons. Philosophy and Phenomenological Research. 55(1), pp. 109-131; Id., 2011. Deontological Moral Obligations and Non-Welfarist Agent-Relative Values. Ratio. 24(4), pp. 351-363; Id., 2012. Agents and Patients: Or, What We Learn about Reasons for Action by Reflecting on Our Choices in Process-of-Thought Cases. Proceedings of the Aristotelian Society. 112(3), pp. 309-331; Id., Forthcoming. The Modal Conception of Ideal Rational Agents: Objectively Ideal Not Merely Subjectively Ideal, Advisors not Exemplars, Agentially Concerned Not Agentially Indifferent, Social Not Solitary, Self-and-Other Regarding Not Wholly Self-Regarding. In: Kaspar, D. ed. Explorations in Ethics, New York, NY: Palgrave Macmillan. [Further details not yet available.]; Southwood, N. 2011. The Moral/Conventional Distinction. Mind. 120(479), pp. 761–802; Strandberg, C.S. 2018. Towards an Ecumenical Theory of Normative Reasons. Dialectica. 72(1), pp. 69-100; Id., 2019. An Ecumenical Account of Categorical Moral Reasons. Journal of Moral Philosophy. 16(2), pp. 160-188; Street, S. 2008. Constructivism about Reasons. In: Shafer-Landau, R. ed. Oxford Studies in Metaethics. 3, pp. 207-245; Id., 2009. In Defense of Future Tuesday Indifference: Ideally Coherent Eccentrics and the Contingency of What Matters. Philosophical Issues. 19(1), pp. 273-298; Tubert, A. 2016. Sound Advice and Internal Reasons. Pacific Philosophical Quarterly. 97(2), pp. 181-199; Velleman, J.D. 2000. The Possibility of Practical Reason. Oxford, UK: Oxford University Press; Wiland, E. 2000. Good Advice and Rational Action. Philosophy and Phenomenological Research. 60(3), pp. 561-569; Id., 2003. Some Advice for Moral Psychologists. Pacific Philosophical Quarterly. 84(3), pp. 299-310; Williams, B.A.O. 1981. Internal and External Reasons. In: Williams, B.A.O. Moral Luck: Philosophical Papers 1973-1980. Cambridge, UK: Cambridge University Press, pp. 101-13.
 As to general references, see (in alphabetical order): Cowen, T. (2007), “The Importance of Defining the Feasible Set”, Economics and Philosophy, 23(01): 1–14; Gilabert, P. (2009), “The Feasibility of Basic Socioeconomic Human Rights: A conceptual Exploration”, The Philosophical Quarterly, 59(237): 659-681; Gilabert, P. (2011), “Debate: Feasibility and Socialism”, The Journal of Political Philosophy, Vol.19, n.1; Id., (2012), “Comparative Assessments of Justice, Political Feasibility, and Ideal Theory”, Ethic Theory Moral Prac, Vol. 15; Gilabert, P. and Lawford-Smith H, (2012), “Political Feasibility: A conceptual Explanation”, Political Studies vol. 60; Griffin, J. (2008), “On Human Rights”, Oxford University Press Lawford-Smith H (2012). “Understanding Political Feasibility”, The Journal of Political Philosophy Hahn, H. (2011), “Justifying Fesibility Constraints on Human Rights”, Ethic Theory and Moral Prac, Vol.15; Hamlin, A, “Feasibility Four Ways”, Academia.edu; Jensen, M. (2009), “The Limits of Practical Possibility”, Journal of Political Philosophy, 17(2); Lægaard, S. (2006), “Feasibility and stability in normative political philosophy: the case of liberal nationalism”, Ethical theory and moral practice, 9(4): 399-416; Mason, A. (2004), “Just Constraints”, British Journal of Political Science, 34(2): 251-268; Räikkä, J. (1998), “The Feasibility Condition in Political Theory”, Journal of Political Philosophy, 6(1): 27-40; Sen. A, “Elements of a Theory of Human Rights”, Philosophy and public affairs, 32(4) 2004.
 I will call this Griffin/Hahn criteria given that it is deduced from some Griffin’s ideas about “practicalities”.
 In this part of paper I will not provide a precise definition of feasibility, because by doing so I would exclude by definition some criteria for the selection of feasibility constraints. My aim is not to reject the normative criteria for the selection of feasibility constraints because they are not fitting with my definition of feasibility. My aim is to reject normative criteria for the selection feasibility constraints because they are methodologically circular, even if they were coherent with certain definitions of feasibility. Anyway, I think that no author would reject a common sense definition of feasibility. I suggest that feasible is something ‘capable of being successfully used’.
 A prescription or a set of prescriptions conforms with a certain fact a iff the actions demanded by such a prescription or set of prescriptions do not clash with the fact a. For instance, let us suppose that the fact a is the gravitational force, the prescription or the set of prescriptions conforms with the fact a iff it do not demand actions that clash with gravitational force (actions that cannot be performed if there is gravitational force).
 I ask to assume this idea.
 Of course, Gilabert is not the only author who lists feasibility constraints. For example, other feasibility constraints accounts are Jensen 2009, Gilabert-Lawford-Smith 2014. Any author has an own account of feasibility constraints that differs for some regards from other accounts. For instance Jensen includes history in his accounts of hard feasibility constraints. These differences would need an accurate dissertation, but I have no space to do it here. So, I decided to list just those constraints that are more often included into accounts of feasibility constraints.
 Given this negative definition, any fact that is not hard constraints could be a soft constraints. Facts that are not considered to be hard constraints are not soft constraints, but they could be. There is not a unique positive definition of soft constraints.
 A solidarity driven individual is every time motivated to act in accordance with solidarity.
 Bergson succinctly stated already in 1898 in that naturalism is merely “unaware metaphysics, which is presented to the ignorant under the mask of science” (Bergson 2006, 83).
 Some proponents in ethics and metaethics tend to construe “naturalism” overly weak. For example, Ridge (2012) implies that asserting that normative properties supervene on physical properties is an adequate construal of naturalism about normativity. However, most non-naturalists would not have any qualms about this by itself – a non-naturalist about normativity would rather deny that ipso facto normative properties are reducible to non-normative properties.
 Methodological naturalism, on the other hand, is usually traced back to Quine’s proclamation that philosophy is continuous with science (Quine 1960, 209).
 Putnam (2004, 70) is even lead to state that ontological naturalism is motivated “by a horror of the normative”.
 For example, in an otherwise excellent treatment of Dilthey’s philosophy of science, Robert Scharff simply asserts the picture is to be rejected that “natural scientists (and the traditional epistemologists who speak for them) conduct their affairs as explanation-seeking, disembodied minds that have been resolutely stripped of their real vitality and reduced to ahistorical subject-knowers” (Scharff 2019, 129). While this presents a succinct expression of the main idea of the phenomenological argument, it is likely that just an assertion of this idea will not convince any doubters.
 There are at least two reasons for this. First, the term “normativity” does not originate in the phenomenological tradition, but has rather been a staple of the analytic tradition. The second reason is that the way in which the term “normativity” is used suggests some form of objectifying sideways-on view onto normative phenomena, i.e. a methodological approach onto such phenomena that suggests that they can be viewed from the “outside”.
There is another further issue regarding phenomenology’s relationship to normativity. Insofar as phenomenology is traditionally construed as a descriptive endeavour, it may be viewed to have difficulties accounting for normativity at all. However, this is luckily not the kind of relationship between phenomenology and normativity at stake here. This paper is concerned with the way in which the normativity relevant to interpersonal relationships relates to phenomenological approaches.
 Brandom stresses that he does not mean his account to be reductive, but rather expressivist. This would still in some sense count as a form of naturalization as normativity, even on an expressivist reading, would turn out not to be sui generis.
 The Churchland-style eliminative materialism is mainly directed against a number of different kinds of mental states, but would also leave no room for genuine normativity at all.
 This, of course, brings us into the territory of Hempel’s dilemma (1969) which states that ontological naturalism is either obviously false or trivial. Ontological naturalism is false if current physics is taken as a standard for a naturalistic ontology. This is because current physical science does not include and would be unable to account for non-physical properties including the mind and normativity. On the other hand, ontological naturalism is trivially true (and hence uninteresting) if the ontological naturalist merely promises that a future-ideal physics will account for everything, including normativity and the mind. It is trivial because physicals would obviously have to expand its domain in order to account for all phenome even if it means including mental or normative phenomena. Obviously, neither horn of the dilemma is something an ontological naturalist could be content with.
 Arguably, the story for Husserl himself is somewhat different as he seems to derive a critical stance towards naturalism from his critique of psychologism in the Logical Investigations.
 This idea is not exclusive to the phenomenological tradition, however. Thinkers like Anscombe (1957) and Perry (1979) have argued in different ways that the first-person perspective is irreducible, albeit for different reasons and with different motivations.
 Variations of this idea have also been proposed by some who are not card-carrying phenomenologists. For example, Peels (2017, 7) asserts that science as a practice and process required common sense beliefs, otherwise it “would have to be abandoned”. Jürgen Habermas (2004, 879) famously asserts that normative properties (like reasons and justifications) have to be wholly “real” (i.e. not “illusory”, as he ascribes to the naturalist) because the members of the system of science (Wissenschaftssystem) are trained specifically for cooperative search for truth and the appreciation of reasons. Lynne Rudder Baker criticizes Dennett’s (1991) notion of heterophenomenology (the rephrasing of a subject’s first-personal account of consciousness in the third person) by arguing that there is an irreducible first-personal aspect to the world which belong in ontology (Baker 2017). While her philosophical aims are largely different, Iris Murdoch also utters remarks that may be read in support of the phenomenological argument: “There is only one culture, of which science is now an important part. We are men and we are moral agents before we are scientists, and the place of science in human life must be discussed in words” (Murdoch 2001, 33). Holm Tetens asserts that empirical research itself is essentially dependent on an intersubjective approach and has itself – “hardly surprising” – not delivered any evidence to the contrary (Tetens 2015, 32f.). Lastly, Jürgen Mittelstraß (a thinker in the tradition of Erlangen Constructivism) bemoans the notion of „science without scientists” (Wissenschaft ohne Wissenschaftler) according to which science is depicted devoid of actual people doing the science, with science as a kind of autonomous entity driving process (Mittelstraß 1989, 253).
 To name just one example, the high-calibre volume of Hyder & Rheinberger (2010) alone features more material on the relation between the life-world and science alone than could be debated here.
 Schmitz (2004) also gives us one specific example of how the lifeworld is more fundamental than the results of science, namely a putative solution for the time-arrow problem. In the briefest of terms, the time-arrow problem states that the known laws of physics underexplain the fact why time always goes into the same ‘direction’. For example, we only ever experience a cup shattering into its pieces (i.e. entropy increasing), but never clay pieces assembling into a cup. Schmitz’s preferred solution to this problem is to state that the underdetermination of entropy through the laws of physics demonstrates that physical science always already presupposes the ordinary experience of time as it is found in the lifeworld. This argument is very debatable, of course, but aptly demonstrates in what sense the lifeworld might be viewed to be privileged over the scientific domain.
 Against this, Daniel Dennett (1991) coined the term “heterophenomenology” as the attempt to understand consciousness entirely from a third-person perspective. Gallagher & Zahavi (2008, 20), however, characterize heterophenomenology as a “fantasy” that “science can leave the first-person perspective behind, or neutralize it without remainder”.
 “All transcendental arguments make some claim about necessary enabling conditions.” (Bardon, Transcendental Arguments).
 Some may also want to include feminist critiques of the philosophy of science. It seems to me, however, that the way in which “normative” is used in these critical accusations is often not congenial to the topic of this paper, cf. Okruhlik (2000).
 Transposing the current issue into a different context, the principle 11. would be akin to what Barry Stroud has called “metaphysical invulnerability”: “Ways of thinking that are irreducible and indispensable for thinking of any world at all would be shown in this way to enjoy a certain kind of invulnerability against metaphysical exposure.” (Stroud 2011, 19, cf. also page 146).
 […] all this means nothing less than being that very causa sui and, with a courage greater than Münchhausen’s, pulling yourself by the hair from the swamp of nothingness up into existence” (Nietzsche 2001, 21).
 While it would require its own paper for a satisfactory demonstration, it is not unreasonable to ascribe to the later Husserl himself a conception of science along the lines of the pragmatist conception, or something near enough. This is suggested by his sometimes difficult remarks on the origins of geometry, of which a succinct collection of quotes reads as follows:
“Also, every science is related to an open chain of the generations of those who work for and with one another, researchers either known or unknown to one another who axe the accomplishing subjectivity of the whole living scence. Science, and in particular geometry, with this ontic meaning, must have had a historical beginning; this meaning itself must have an origin in an accomplishment: first as a project and then in successful execution.” (Husserl 1970, 355f.)
“These sciences are not handed down ready-made in the form of documented sentences; they involve a lively, productively advancing formation of meaning, which always has the documented, as a sediment of earlier production, at its disposal in that it deals with it logically.” (Husserl 1970, 365)
Given our current context, one relevant take-away from these remarks is that Husserl stresses the practical origins of geometry as the beginning of a “chain” of scientific practice reaching all the way into our present in a way that is not congenial to the perfectionist model.
 Proponents of the pragmatist model will criticize the perfectionist model as overly optimistic and idealistic. Furthermore, they might even view it as quasi-religious. This is because the promise of a future-ideal state of scientific theory which is able to provide to answer to virtually all important metaphysical questions is akin to a promise of salvation in the next world. The idea of science as a perfected state is akin to the idea of God himself because only God is a perfected being. Thus, a perfected state of science would ultimately mean the end of history as such.
 As to general references, see (in alphabetical order): Baker, Derek (2018). Skepticism about Ought Simpliciter. Oxford Studies in Metaethics 13; Copp, David (2007). ‘The Ring of Gyges: Overridingness and the Unity of Reason’ in Morality in a Natural World: Selected Essays in Metaethics. Cambridge University Press; Darwall, Stephen (2002). Welfare and Rational Care. Princeton University Press; Id., (2006). The Second Person Standpoint: Morality, Respect, and Accountability. Harvard University Press; Id., (2010). “But it would be wrong”. Social Philosophy and Policy 27 (2):135-157; Dorsey, Dale (2016a). The Limits of Moral Authority. Oxford University Press UK; Id., (2016b). Moral Distinctiveness and Moral Inquiry. Ethics 126 (3):747-773; Foot, Philippa (1972). Morality as a system of hypothetical imperatives. Philosophical Review 81 (3):305-316; Gibbard, Allan (1990). Wise Choices, Apt Feelings: A Theory of Normative Judgment. Harvard University Press; Howard, Christopher (2018). Fittingness. Philosophy Compass 13 (11); Hubin, Donald C. (2001). The groundless normativity of instrumental rationality. Journal of Philosophy 98 (9):445-468; McLeod, Owen (2001). Just plain “ought”. The Journal of Ethics 5 (4):269-291; McPherson, Tristram (2018). Authoritatively Normative Concepts. Oxford Studies in Metaethics 13; Maguire, Barry & Woods, Jack (2020). The Game of Belief. Philosophical Review 129 (2):211-249; Rabinowicz, Wlodek (2013). Value, Fitting-Attitude Account of. In Hugh LaFollette (ed.), The International Encyclopedia of Ethics. Wiley-Blackwell; Ridge, Michael (2014). Impassioned Belief. Oxford University Press; Schroeder, Mark (2010). Value and the right kind of reason. Oxford Studies in Metaethics 5:25-55; Strawson, Peter (1962). Freedom and Resentment. In Proceedings of the British Academy, Volume 48: 1962. pp. 1-25; Tiffany, Evan (2007). Deflationary normative pluralism. Canadian Journal of Philosophy 37 (5): pp. 231-262; Wedgwood, Ralph (2007). The Nature of Normativity. Oxford University Press; Wodak, Daniel (2019). Mere formalities: fictional normativity and normative authority. Canadian Journal of Philosophy 49 (6): 828-850.
 This actually differs to the real life events, in which Franz offered to serve as a medic. His offer was ignored.
 I will ignore any complications relating to differences between ‘ought’ and ‘should’ and treat them as roughly synonymous.
 The sense of ‘authority’ here is specifically in relation to determining what to do in conflict cases. I am not denying that morality and prudence are authoritative in the sense of being not merely generically or formally normative.
 Just to be clear, a unified view of practical reason need not deny that in all situations there is a determinate answer about what one overall ought to do. In the same way some think that there are moral dilemmas, it also seems plausible enough that sometimes (perhaps even often) there are genuine practical dilemmas. All the view is committed to is that there are some situations in which practical reason as such provides a determinate answer about what one overall ought to do.
 Compare McPherson: “arguably, our only way of understanding the idea that this bit of reality is distinctively normative is that we talk about it using these concepts.” (2018: 259).
 I won’t here take a stand on whether fittingness is fundamental or can be explained in terms of reasons, though I’ll sometimes talk of reasons for ease of discussion ¾ see Howard (2018). If the latter, then ‘reason’ will need to be interpreted as ‘overall reason’. In this case, however, my characterisation of the overall ‘ought’ as being constitutively connected to intention, choice, or action will be overly narrow, and the arguments of this paper might need to be adjusted accordingly.
 To be sure, this isn’t the only way to develop a fitting attitudes view. The view here is simply offered as an illustrative example of how one might go about challenging the sceptic’s key assumption. See Rabinowicz (2013) for a more general overview.
 J.-F. Lyotard, L’enthousiasme. La critique kantienne de l’histoire, Editions Galilée, Paris, 1986.
 For every Kantian text, I cited the page from: Kant’s Gesammelte Schriften “Akademieausgabe” (KGS), Königlich Preußische Akademie der Wissenschaften, Berlin 1900 (bisher 29 Bände), Reimer, after 1922 de Gruyter. Texts quoted: I. Kant, Kritik der reinen Vernunft, (1781); Id., Idee zur einer allgemeinen Geschichte in weltbürgerlicher Absicht, (1784); Id., Kritik der Urteilskraft, (1790).
Texts from other authors: J.-F. Lyotard, L’enthousiasme. La critique kantienne de l’histoire, Editions Galilée, Paris, 1986; J.-L. Nancy, Lapsus judicii, «Communications», 27 (1977), pp. 82-97.
 I. Kant, Kritik der reinen Vernunft, (1781), in KGS, Vol. IV, p. 9.
 J.-L. Nancy, Lapsus judicii, «Communications», 27 (1977), pp. 82-97.
 Ibid., p. 92.
 I. Kant, (1790), Kritik der Urteilskraft, , in KGS, Vol. 5, p. 179.
 J.-L. Nancy, Lapsus judicii, p. 90.
 I. Kant, Kritik der reinen Vernunft, (1781), in KGS, Vol. IV, p. 542.
 Ibid., p. 131.
 J.-F. Lyotard, L’enthousiasme.
 I. Kant, Idee zur einer allgemeinen Geschichte in weltbürgerlicher Absicht, (1784).
 J.-L. Nancy, Lapsus judicii.
 J.-F. Lyotard, L’enthousiasme.
 There are too many defenders and defences of this view to mention them all, but some are: Joyce (2001), Lindeman (2019), Markovits (2014), Schroeder (2007), Smith (1994; 1995; 2011; 2020; forthcoming), Strandberg (2018; 2019), Street (2008; 2009), Williams (1981).
 As to general references, see (in alphabetical order): Baker, D. 2015. Deliberators Must Be Imperfect. Philosophy and Phenomenological Research. 90(3), pp. 321-347.; Bukoski, M. 2016. A Critique of Smith’s Constitutivism. Ethics. 127(1), pp. 116-146; Chang, R. 2009. Voluntarist Reasons and the Sources of Normativity. In: Sobel, D. and Wall, S. eds. Reasons for Action, New York, NY: Cambridge University Press, pp. 243-271; Id., 2013. Grounding Practical Normativity: Going Hybrid. Philosophical Studies. 164(1), pp. 163-187; Cowie, C. 2014. In Defence of Instrumentalism about Epistemic Normativity. Synthese. 191(6), pp. 4003-4017; Fichte, J.G. 1798. The System of Ethics. [any edition]; Forcehimes, A. and Semrau, L. 2018. Are There Distinctively Moral Reasons? Ethical Theory and Moral Practice. 21(3), pp. 699-717; Jian, J. forthcoming. Misinformation, Subjectivism, and the Rational Criticizability of Desire. Philosophical Studies. [further details not yet available]; Joyce, R. 2001. The Myth of Morality. Oxford, UK: Oxford University Press; Johnson, R. N. 1997. Reasons and Advice for the Practically Rational. Philosophy and Phenomenological Research. 57(3), pp. 619-625; Id., 1999. Internal Reasons and the Conditional Fallacy. Philosophical Quarterly. 49(194), pp. 53-72; Id., 2003. Internal Reasons: Reply to Brady, van Roojen and Gert. Philosophical Quarterly. 53(213), pp. 573-580; Kant, I. 1785. Groundwork for the Metaphysics of Morals. [any edition]; Katsafanas, P. 2013. Agency and the Foundations of Ethics: Nietzschean Constitutivism. Oxford, UK: Oxford University Press; Id., 2018. Constitutivism about Practical Reasons. In: Star, D. ed. Oxford Handbook of Reasons and Normativity. Oxford, UK: Oxford University Press, pp. 367-391; Kornblith, H. 2002. Knowledge and Its Place in Nature. Oxford, UK: Oxford University Press; Korsgaard, C.M. 1996. The Sources of Normativity. Cambridge, UK: Cambridge University Press; Korsgaard, C.M and Pauer-Studer, H. 2002. Internalism and the Sources of Normativity. [Online.] [Accessed 16 June 2019.] Available from: https://www.people.fas.harvard.edu/korsgaar/CPR.CMK.Interview.pdf. Kosch, M. 2015. Agency and Self-Sufficiency in Fichte’s Ethics. Philosophy and Phenomenological Research. 91(2), pp. 348-380; Id., 2018. Fichte’s Ethics. Oxford, UK: Oxford University Press; Lindeman, K. 2019. Functional Constitutivism’s Misunderstood Resources: A Limited Defense of Smith’s Constitutivism. Ethics. 130(1), pp. 79-91; Markovits, J. 2014. Moral Reason. Oxford, UK: Oxford University Press; Nagel, T. 1970. The Possibility of Altruism. Princeton, NJ: Princeton University Press; Parfit, D. 1984. Reasons and Persons. Oxford, UK: Oxford University Press; Schroeder, M. 2007. Slaves of the Passions. Oxford, UK: Oxford University Press; Sobel, D. 1999. Do the Desires of Rational Agents Converge? Analysis. 59(3), pp. 137-147; Smith, M. 1994. The Moral Problem, Oxford, UK: Blackwell Publishing; Smith, M. 1995. Internal Reasons. Philosophy and Phenomenological Research. 55(1), pp. 109-131; Id., 2011. Deontological Moral Obligations and Non-Welfarist Agent-Relative Values. Ratio. 24(4), pp. 351-363; Id., 2012. Agents and Patients: Or, What We Learn about Reasons for Action by Reflecting on Our Choices in Process-of-Thought Cases. Proceedings of the Aristotelian Society. 112(3), pp. 309-331; Id., Forthcoming. The Modal Conception of Ideal Rational Agents: Objectively Ideal Not Merely Subjectively Ideal, Advisors not Exemplars, Agentially Concerned Not Agentially Indifferent, Social Not Solitary, Self-and-Other Regarding Not Wholly Self-Regarding. In: Kaspar, D. ed. Explorations in Ethics, New York, NY: Palgrave Macmillan. [Further details not yet available.]; Southwood, N. 2011. The Moral/Conventional Distinction. Mind. 120(479), pp. 761–802; Strandberg, C.S. 2018. Towards an Ecumenical Theory of Normative Reasons. Dialectica. 72(1), pp. 69-100; Id., 2019. An Ecumenical Account of Categorical Moral Reasons. Journal of Moral Philosophy. 16(2), pp. 160-188; Street, S. 2008. Constructivism about Reasons. In: Shafer-Landau, R. ed. Oxford Studies in Metaethics. 3, pp. 207-245; Id., 2009. In Defense of Future Tuesday Indifference: Ideally Coherent Eccentrics and the Contingency of What Matters. Philosophical Issues. 19(1), pp. 273-298; Tubert, A. 2016. Sound Advice and Internal Reasons. Pacific Philosophical Quarterly. 97(2), pp. 181-199; Velleman, J.D. 2000. The Possibility of Practical Reason. Oxford, UK: Oxford University Press; Wiland, E. 2000. Good Advice and Rational Action. Philosophy and Phenomenological Research. 60(3), pp. 561-569; Id., 2003. Some Advice for Moral Psychologists. Pacific Philosophical Quarterly. 84(3), pp. 299-310; Williams, B.A.O. 1981. Internal and External Reasons. In: Williams, B.A.O. Moral Luck: Philosophical Papers 1973-1980. Cambridge, UK: Cambridge University Press, pp. 101-13.
 Sometimes this worry is formulated in terms of saying that reasons internalists are committed to thinking that agents have too many reasons (if they have desires that generate the pre-theoretically wrong reasons) or too few reasons (if they lack desires they need to generate the pre-theoretically right reasons). For discussion, see Schroeder (2007).
 Some defences: (Lindeman, 2019; Smith, 1994; 2011; 2012; forthcoming). Some critical discussions: (Bukoski, 2016; Joyce, 2001; Sobel, 1999).
 Moreover, these are likely to interplay with the moral reasons in interesting ways.
 For more development of the notion of constitutive aims, see Katsafanas (2013, ch. 2; 2018) and Velleman (2000, introduction).
 One may be inclined to ask a more general question here, namely: What does ‘formal’ and ‘material’ mean? The distinction is rather obscure. Fortunately, however, we can gloss it over for present purposes. Nothing in my argument turns on it.
 This line of argument echoes both the way in which some Kantians have wanted to use the Formula of Humanity interpretation of the categorical imperative to fill in the Formula of Universal Law (cf. Korsgaard, 1996; Korsgaard & Pauer-Studer, 2002), as well as the classic Hegelian critique of Kant’s ethics as too formalist.
 More specifically, these are: (i) the rational agent must be conscious of itself, (ii) it must have a nature, which is a system of drives, (iii) it must see itself as efficacious as a natural cause, which means that it must have a body which can be set in motion by its will, (iv) it has a drive towards independence, which only can be set in motion through the body, and as such the sustenance and perfection of the body are moral aims, (v) the reflecting ‘I’ must be an intellect, and hence the sustenance and perfection of it qua intellect is a similar aim, (vi) it is of limited external freedom due to its interaction with others, and others are also driven to independence, and hence its own drive towards it limited by others’ similar aim (Kosch, 2018, ch. 2; p. 53).
 With two exceptions: For coherence, I have claimed that premise (3) comes from ‘(1, 2)’, not ‘(1 and 2)’, and for stylistic reasons, her (9) is my (C).
 At least, this is the case on a narrow-scope interpretation of instrumental rationality, but the agent seems committed to that even if instrumental rationality should be understood in a wide-scoping manner. Giving up the capacities which are constitutive of her agency rather than aiming to obtaining to maintain the conditions which are necessary for its exercise is hardly an option for the agent.
 Most importantly, she adds that one may reformulate the premise in terms of ‘true beliefs’ rather than ‘knowledge’ (Kosch, 2018, p. 160).
 And even if they do not do so for us, there are certainly possible agents for whom that can be the case. The reader should easily be able to think of examples.
 Why could that intention not be formed because of some non-occurent or backgrounded intention to avoid venomous snakes that I already have, which I in turn have formed due to an action? There can be such cases – if I have travelled to an environment where I risk encountering venomous snakes, I may well have considered my conditional intentions about what to do if I were to encounter one prior to walking down the street. But then again, cases where I have not considered that option are possible too. Perhaps I am walking down the street in an area where no venomous snakes ordinarily live, but the one I encounter has just been dropped from a helicopter passing by. It would be unreasonable to expect people to have deliberated about what to do on such occasions.
 One might think of them as elaborations of Kosch’s anti-Fichtean point, discussed above, that it is not necessary that one is in a secure environment to be able to gain knowledge of it, as one may observe things even in less secure environments. She still claims, however, that secure environments uniquely facilitate generating relevant knowledge, but points similar to hers generate massive problems for her own unique facilitation claim.
 For references, cf. fn. 1 above. It is also probably not very hard for Schroeder to generate reasons to obtain or maintain knowledge about one’s surroundings. For Schroeder, roughly speaking, any fact which is conducive to the satisfaction of an agent’s desires is a reason. Being such that one has a lot of knowledge is presumably conducive to that.
 Though note that Smith (1994, ch. 5) takes ‘internal coherence’ to mean ‘full reflective equilibrium’.
 The former has sometimes been called an assumption of rationality (e.g. by Smith, 1994, ch. 5), and, interestingly, Kosch buys into that (2018, p. 24). But I think it is too strong to call an assumption of rationality.
 A curious implication – though one that lacks theoretical importance – is that ideal agents may not coherently be able to have desires that contradict their ability to be ideal or ability to satisfy other possible desires.
 There is a complication here. Baker (2015) argues that it is impossible to deliberate if one already is predicting one’s future actions, and ideal agents presumably do that. Would an ideal agent lose the ability to deliberate? I doubt so. First, I am not convinced of the claim that successful prediction crowds out deliberation. There are intuitions going in both directions about the case. Second, arguably, predictions need not be held with absolute certainty, either for ordinary or ideal agents. They are, arguably, too revisable to be that – perhaps they are, to some extent, more like entertaining a proposition than believing it. Then one should still be able to deliberate. Third, it seems extremely plausible that one does not lose one’s ability to deliberate just because one knows what will happen. It is rather the case that its exercise may somehow be blocked by one’s prediction. Hence, ideal agents still seem able to deliberate, even if they cannot exercise their ability for practical purposes.
 I think so on largely Humean grounds. I am inclined to think that, whether or not the Humean theory of motivation (HTM), which says that actions are actions in virtue of being caused by belief/desire-pairs, is true for all actions, something like such a pattern seems true for many actions. With that in mind, one way to defend (2*) is by appealing to HTM. Put simply, the point here is that many actions seem impossible to perform without relevant means-beliefs, and that is because there are no belief/desire-pairs behind actions if one does not have the right beliefs. However, HTM is very controversial, so I shall not assume it in my main line of argument.
 The perceptive reader may however have noticed that this reason is similar to reasons for belief according to so-called instrumentalists about epistemic reasons (e.g. Cowie, 2014; Kornblith, 2002). Their idea is that R is a reason to believe that p because R improves the satisfiability of our desires. Kornblith’s version of this view even explicitly appeals to our being able to satisfy whatever we desire, which takes us into similar territory as the argument from variability in defence of (2*). However, the reason to know I have presented is not that assuming. It is a practical reason to learn or remember important things – it is not intended to generate a take on epistemic reasons.
 The debate between them is vexed (cf. e.g. Johnson, 1997; 1999; 2003; Tubert, 2016; Wiland, 2000; 2003). I prefer the advisor view.
 More specifically, he claims that there are no reasons that are categorical like this, but morality is committed to it, so morality is systematically flawed.
 Abizadeh, Arash. 2007. “Cooperation, Pervasive Impact, and Coercion: On the Scope (Not Site) of Distributive Justice.” Philosophy and Public Affairs 35 (4): 318–358; Dworkin, Ronald. 1986. Law’s Empire. Cambridge, Mass: Belknap Press of Harvard University Press; Id., 2011. Justice for Hedgehogs. Cambridge, Mass: Belknap Press of Harvard University Press; Simmons, A. John. 2001. Justification and Legitimacy: Essays on Rights and Obligations. Cambridge: Cambridge University Press; Valentini, Laura. 2011. “Coercion and (Global) Justice.” American Political Science Review 105 (01): 205–220.
 (Internet Encyclopedia of Philosophy, http://www.iep.utm.edu/poli-obl/).
 See, for example, Andrea Sangiovanni (2008). ‘Justice and the Priority of Politics to Morality‘, Journal of Political Philosophy 16 (2): 137-164; Aaron James (2005). ‘Constructing Justice for Existing Practice: Rawls and the Status Quo’. Philosophy and Public Affairs 33 (3): 281-316; Aaron James (forthcoming). ‘Global Economic Fairness: Internal Principles’, in: Global Justice and International Economic Law: Opportunities and Challenges. Cambridge: Cambridge University Press; Aaron James (2012). Fairness in Practice: A Social Contract for a Global Economy. Oxford: Oxford University Press; Miriam Ronzoni (2009). ‘The Global Order: A Case of Background Injustice? A Practice-Dependent Account’, Philosophy and Public Affairs 37 (3): 229-256; Laura Valentini (2011). ‘Global Justice and Practice-Dependence: Conventionalism, Institutionalism, Functionalism’, Journal of Political Philosophy 19 (4): 399-418. 2.
 Sangiovanni (2008): 148-150; James (2005): 301; James (2012): 27-28. Following the publication of the quoted contributions, the term ‘practice-dependence’ has come to be used by some authors in ways that do not necessarily reflect this relatively narrow methodological commitment to constructive interpretation (see, for example, Ronzoni 2009 and Valentini 2011). A discussion of these alternative versions of practice-dependent methodology is beyond the scope of this paper.
 This summary of the model of constructive interpretation is based the account offered in Ronald Dworkin (1986). Law’s Empire. Cambridge, MA: Harvard University Press. This is the account that Sangiovanni and James rely on. As far as Dworkin’s own work is concerned, there is an exegetical question as to whether the methodological framework developed for the purpose of legal interpretation is intended to apply in the same way to contexts of moral reasoning. Some of Dworkin’s later work appears to suggest that in contexts of moral reasoning, the criterion of ‘fit’ is supposed to play a more subordinate role, if any at all. This would blur the distinction between interpretation and invention, or render it entirely irrelevant. As a consequence, the points of critique advanced in this paper, based on the presumption in favor of interpretation over invention, would no longer apply. I am going remain agnostic as to whether the critique offered in this paper actually applies to Dworkin’s own position. Instead, my argument is aimed at the position defended by the proponents of practice-dependence who unambiguously rely on Dworkin’s account of legal interpretation and the associated presumption in favor of interpretation.
 On Dworkin’s account, features of existing practice enter the interpretive stage in a rather indirect way, in the form of the core features identified at the pre-interpretive stage acting as a constraint on the purposes that may plausibly count as interpretation of existing practice rather than as invention. As far as the reflection about possible purposes itself is concerned, Dworkin appears to allow for a certain degree of independent moral reasoning. (At least, Dworkin grants that the interpretive stage requires a lesser degree of consensus within the interpretive community than the pre-interpretive stage. (1986: 68)). Sangiovanni and James, in contrast, seem to suggest that the identification of the purpose of a practice should itself be directly informed by an interpretation of the norms and values reflected in the form of the practice as it exists. This is reflected in the references made by both authors to Rawls’ later work as an illustration of constructive interpretation (Sangiovanni 2008: 150-152; James 2005: 298-308). On Rawls’ account, the point and purpose of domestic society (social cooperation for mutual advantage) or the international system (sovereign rule within the constraints of basic norms of legitimacy) are arrived at through interpretation of the norms and values embedded in Western liberal democracies and international law, respectively.
 Dworkin (1986): 66.
 It may be objected at this point that it is beside the point to ask for a justification for the presumption in favor of interpretation since any defensible methodological approach to moral theorizing will at some level rely on interpretive elements. Surely, the line of objection goes, it is prima facie plausible that a theory about what practices and institutions we should have should start from an interpretation of the practices and institutions that already exist; rather than with the proponents of practice-dependence, the burden of justification should therefore lie with proponents of approaches that deny the presumption in favor of interpretation. Irrespective of the merits of its initial premise, however, this objection does not succeed. The reason for this is that while there may indeed be a sense in which any plausible approach will include a commitment to interpretation of some form or another, this cannot be the sense that captures the methodological point of the practice-dependence approach. First, if the point of practice-dependence was a commitment to interpretation of a form that trivially applied to any remotely plausible approach, contrasting practice-dependent and practice-independent approaches would no longer provide a way to motivate the former. Second, it is easy to imagine ways in which alternative approaches may include elements of interpretation without relying on a strict requirement of fit, the method of reflective equilibrium being the most prominent example for such an approach. This shows that the interpretive commitment behind the practice-dependent approach is of a non-trivial kind.
 Sangiovanni (2008): 147; James (2012): 28-29.
 The commitment to these general constraints may be considered a deviation from Dworkin’s original account of the method of constructive interpretation. Sangiovanni (2007): 163; James (2012): 29.
 Sangiovanni (2008): 158.
 I take it that the question of whether a practice is ultimately justifiable is independent of whether its general purpose consists of the promotion of a conception of justice or not. The following explanation for the rejection of slavery may appear to suggest the opposite. In this case, however, it would be unclear why the incompatibility of a practice with a conception of justice should count as a reason for rejecting the practice in the case of slavery without equally doing so in the case of the WTO. «Does this mean that there is no way for the institutionalist to advocate the abolition of an entire set of institutions? No. For a conception of justice to get off the ground, there must be some sense in which the terms of the institution are at least capable of being justified to all participants; if the institution must depend on systematic and unmediated coercion to reproduce and sustain itself, then the institution is incapable of such a justification and must therefore be rejected» (Sangiovanni 2008: 163).
 Sangiovanni (2008): 156.
 Sangiovanni (2008): 157.
 Think, for example, of the establishment of the European Union or successful movements of peaceful territorial secession.
 Proponents of practice-dependence may react to the latter type of examples by pointing out that they represent practices that are unjust (in the sense of violating the relevant general constraining principle – of equal moral concern or mutual justifiability – mentioned above) and that this provides an independent reason against their continuation. I am not sure whether this applies to all cases in which the continuation of a practice is at odds with concerns for political stability. In any case, given that this would appear to be an empirical question, the conceptual possibility of just practices that may pose a threat to political stability would still provide a reason against a principled presumption in favor of interpretation. In addition, however one may try to reconcile the presumption in favor of interpretation with the possibility of stability-undermining practices, the fact that the prior existence of a practice is not a necessary condition to ensure political stability remains.
 See the materials provided during a session of the Political Philosophy Research Seminar at the London School of Economics on February 28, 2018.
 What is more, persons may in this case show a much lower degree of conscious reflection about the form of the practices they are engaged in than the argument assumes. Indeed, a reflective stance may be entirely lacking.
 While I do not think that this is actually Sangiovanni’s position, the following quote is ambiguous in this respect: «The aim of the interpretive stage is to establish the parameters and fixed points which a full-blown conception of justice must take into account. But it is not yet meant to connect or explain their place in a systematic theory. It only begins, we might say, the search for reflective equilibrium” (2008: 149, italics added). A similar ambiguity may be seen in James assertion that the order of the three stages of interpretation is “irrelevant within a holistic ‘reflective equilibrium’ methodology» (2012: 28).
 It may be objected that a traditional reflective equilibrium framework represents an instance of practice-dependent theorizing. In the present context, however, this can be regarded as a secondary question, since Sangiovanni and James appear to present their positions as alternatives to a traditional reflective equilibrium approach. If a traditional reflective equilibrium approach is to count as a type of practice-dependent theorizing, it would be distinct of the type of practice-dependence, defined by the presumption in favour of interpretation, proposed by Sangiovanni and James.
 This view may be taken to be suggested by Dworkin himself in the following characterization of the interpretive stage: “This will consist of an argument why a practice of that general shape is worth pursuing, if it is” (1986: 66, italics added). Similarly, James, in presenting his theory of fairness in the global economy as an “internal” account, notes: «None of this is to reject cosmopolitan views per se. Indeed, cosmopolitans can welcome an account of economic fairness in international political morality as part of the ‘morality of transition’ to something better, as part of ‘non-ideal’ rather than ‘ideal’ theory» (2012: 13). This may be interpreted as suggesting that the ultimate justifiability of a practice as a whole (in this case the ‘global economy as we know it’) cannot be established by internal argument.
 This reading appears to be reflected in Aaron James’ reconstruction of Rawls’ work as relying on the model of constructive interpretation. According to James, the justification of the existence of a practice is a question that Rawls’ approach is not intended to address. James also acknowledges the possibility of this being a reason to consider Rawls’ approach as an instance of non-ideal theorizing, albeit not according to the way in which Rawls himself conceives of the distinction between ideal and non-ideal theory (James 2005).
 Waldron, Jeremy. (1999). Law and Disagreement. Oxford: Clarendon Press; Valentini, Laura. (2012). Assessing justice, legitimacy or political justice? Critical Review of International Social and Political Philosophy 15(5): 593–612; Id., Justice, Disagreement and Democracy. British Journal of Political Science 43(1): 1–23; and even Rawls, John. (1993). Political Liberalism. New York: Columbia University Press.
 This might not be true, though, on a very stringent requirement of majoritarian representation: if politicians do nothing but statistically precisely reflect the views and preferences of their voters, then their influence is exactly as great as that of their voters’ (see Dworkin, Ronald. (2000). Sovereign Virtue: The Theory and Practice of Equality. Cambridge, MA, London, UK: The Belknap Press of Harvard University Press).
I do not think most people accept such a stringent requirement upon reflection: it ignores that politicians may need to enter compromises to serve the interests of their voters at all, and thereby somewhat deflect from the preferences of their voters; or that (in better cases) they have access to expert input or are in a position of higher quality deliberation than their voters, and so might develop views about how to satisfy voters’ intrinsic preferences that go against their voters’ own expressed instrumental preferences. These considerations strongly suggest that even a committed majoritarian, preference-satisfaction-based conception of political representation need not endorse a requirement of equal impact as between politicians and their voters.
 I ignore here the issue of corporate financial support (cf. e.g. Citizens United v. Federal Election Commission, 558 U.S. 310 (2010)), which is highly problematic, but raises entirely different concerns.
 Dworkin, Ronald. (2011). Justice for Hedgehogs. Cambridge, MA, London, UK: The Belknap Press of Harvard University Press.
 See Christiano, Thomas. (2008). The Constitution of Equality. Democratic Authority and Its Limits. Oxford: Oxford University Press.
 To clarify, this is true even if you have a different theory of what the just distribution of resources is – libertarians, for instance, may be against campaign finance limits not because they have no account of substantive political equality, but because their account of substantive political equality is a libertarian theory of distributive justice. That is, it supposes that political equality requires that we use only those resources to promote our interests in politics that we acquired in adequate transactions or adequate procedures of original property acquisition.
 Gaus, Gerald E. (1996). Justificatory Liberalism. Oxford: Oxford University Press, p. 256.
 As to general references, see (in alphabetical order): Acemoglu, D., Egorov G., and Sonin K. (2013). ‘A Political Theory of Populism’ Quarterly Journal of Economics 128 (2): 771–805; Abts, K., Rummens, S., (2007). ‘Populism versus democracy’. Political Studies 55 (6), 405–424; Collier, D. and Mahon J.E., Jr. (1993). ‘Conceptual Stretching Revisited: Adapting Categories in Comparative Analysis’, American Political Science Review 87: 845-855; Connolly, William E. (1993). The Terms of Political Discourse, third edition (Oxford: Blackwell); Daniels, N., (1979). ‘Wide Reflective Equilibrium and Theory Acceptance in Ethics’, Journal of Philosophy, 76(5): 256–82; Gerring, J. (1999). ‘What Makes a Concept Good?’ Polity, Vol. 31, N. 3: 357-393; Gerring, J. and Barresi, P.A. (2003). ‘Putting ordinary language at work’, Journal of Theoretical Politics 15(2): 201-232; Goertz, G. (2006). Social Science Concepts: A User’s Guide. Princeton University Press; Jagers, J., & Walgrave, S. (2007). ‘Populism as political communication style: An empirical study of political parties’ discourse in Belgium’, European Journal of Political Research, 46(3), 319–345; Kaltvasser C., Taggart P., Ochoa Espeio P. and Ostiguy Pierre (Eds.) (2017). The Oxford Handbook of Populism. Oxford: Oxford University Press; Kvanvig, J. “Coherentist Theories of Epistemic Justification”, The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/fall2008/entries/justep-coherence/>. Laclau, E. (2005) On Populist Reason. London: Verso; Oppenheim, Felix E. (1981). Political Concepts. A Reconstruction. Chicago: Chicago University Press; Pitkin, H. F. (1972). Wittgenstein and Justice: On the Significance of Ludwig Wittgenstein for Social and Political Thought. Berkeley, CA: University of California Press; Sartori, G. (1970) ‘Concept Misformation in Comparative Politics,’ American Political Science Review 64(4): 1033–53; Id., (1984) “Guidelines for Concept Analysis,” in Social Science Concepts: A Systematic Analysis. Beverly Hills, CA: Sage, pp. 15–48; Schaffer, Frederic C. (1998b) ‘Why Don’t Political Scientists Coin More New Terms?’, Paper delivered at the Annual Meetings of the American Political Science Association in Boston, MA; Weyland, K. (2001). ‘Clarifying a Contested Concept: Populism in the Study of Latin American Politics’. Comparative Politics, Vol. 34, No. 1 (Oct., 2001), pp. 1-22.
 H.F. Pitkin, The Concept of Representation cit., p. 100.
 M. Rubel, Karl Marx devant le bonapartisme, Mouton, Paris-La Haye 1960, p. 477.
 As to the Italian legal debate, see: M. Barberis, Come Internet sta uccidendo la democrazia. Populismo digitale, Chiarelettere, Milan, 2020. The populist virus and the remedies to survive politics via smartphone. “Once, to seize power, the hotheads resorted to bloody coups. Now there is no need anymore: there is Facebook. “
“Intolerance, fanaticism, servility,
processions to take a selfie with the powerful on duty.
All this is not good for democracy.
In fact, I would say that it kills her.”
Transient anomaly or irremediable genetic mutation? With the passion of those who care about public affairs, and the skills of the jurist, Mauro Barberis shows the populist short circuit that subverts the minimum rules of democracy.
Populism has always been the black sheep of the democratic flock. This time, however, we are not facing the usual political or economic crisis. Democracy seems to have changed its DNA, and the source of this mutation is the digital revolution. Politics is now done on smartphones, with alarmist posts, morning tweets and selfies with voters. The people thus have the illusion of being able to directly influence public affairs. But this alleged disintermediation is only a new mediation, even less transparent than the previous one. Locked up in their respective media bubbles, populist governments and their followers devote themselves full time to entertainment. Governments churn out manifesto laws to win elections. Followers are biting more and more casually to news feeds selected by custom algorithms.
This book advances a diagnosis of populism, but above all it indicates specific, constitutional, political and media remedies. Instead of disconnecting from the network, as many are now tempted to do, we must act like Ulysses with the sirens: remain closely linked to the tree of rationality.
 Furthermore, see e.g.: V. Pazè, Il concetto di comunità nella filosofia politica contemporanea (Laterza, 2002); Comunitarismo (Laterza, 2004); In nome del popolo. Il problema democratico (Laterza, 2011); and Cittadini senza politica. Politica senza cittadini (Edizioni Gruppo Abele, 2016).
 An earlier version of this appendix appeared in: ARONA, ENRICO: Beyond the concept of law. “Neo-constitutionalism”: an innovating theory of legal reasoning, crossing constitutional interpretation and analytical jurisprudence», in Gömbös, Csilla – Kálmán, János – Keserű, Barna Arnold (ed.): Global and Local Issues from the Aspects of Law, Economy and other Social Sciences, Universitas-Győr Ltd., Deák Ferenc Faculty of Law and Political Sciences, Győr (Hungary), 2014; pagg. 2-77.
 «Tarello Institute for Legal Philosophy» is one of the world’s leading centres for legal research and education. The works are focused on topics in analytical legal theory and philosophy of positive law, constitutional democracy, human rights, bioethics, sociology of law and history of european legal culture. The library in Balbi Street has an outstanding collection of works in legal philosophy. Most of it is in English, Spanish and Italian, though we also have numerous publications in French and German.
As for the present theme cf. BARBERIS, MAURO: (2011). Metaetica del costituzionalismo. In Diritto e questioni pubbliche, 11, 135-156; ID.: (2000 a). Filosofia del diritto. Un’introduzione storica. Bologna, il Mulino; ID.: (2000 b). Neocostituzionalismo, democrazia e imperialismo della morale. In Ragion Pratica 7 (14), 147-162; COMANDUCCI, PAOLO: (1999). Il positivismo giuridico: un tentativo di bilancio, 125-134. In Sudi in onore di Franca De Marini, Milano, Giuffrè; ID.: Neo-constitutionalism: an attempt at classification. In Associations (in print). See also POZZOLO, SUSANNA: (1998). Neoconstitucionalismo y especificidad de la interpretación constitucional. In Doxa 21, 355-370; ID.: (2001). Neocostituzionalismo e positivismo giuridico. Torino, Giappichelli.
 The founder of the School was unquestionably Giovanni Tarello (Genoa, October 4, 1934 – April 20, 1987). He would regularly strike people since the start as a born story-teller, with a very personal sense of humour. Here we cannot analyse, even less interpret, his large and multi-faceted body of work. In it, with remarkable versatility, he managed to combine legal theory with history of institutions, sociology of law, and legal dogmatics, too.
He was largely a man from a time in which specialization was not yet an inescapable destiny for a philosopher of law: he was, at the same time, jurist, historian, sociologist, and legal theorist as well. The results of these many research interests are documented, above all, by the many papers he published in the very first years of the Materiali per una storia della cultura giuridica – originally a scholarly yearbook, soon to become a journal with the Publishing House “Il Mulino” (Bologna), Tarello’s lifelong editorial partner. But also his posthumous essays (1988) are a telling testimony. Indeed, his work constantly succeeded in reaching a unitary character – a remarkable feat, given these variety of themes and modes of analysis.
The paramount problem is maybe that «Genoa Realism» originated from Tarello pioneering inquiries, and methods on many specific themes: the history of the codification of law, the theory of the normative language and of its interpretation , the sociology of law and its methods, and so forth.
If we really want to be able to identify one essential strand, in this body of work, we must think of the central role of interpretation (ID.: (1980). L’interpretazione della legge, Milano, Giuffrè). Such a central role was foreshadowed in 1972, but is explicitly stated in 1974. This is the very first formulation of what came to be known as the sceptical standpoint of the Genoa School: norms are but dependent variables of the interpretation of legal texts. This approach was further substantiated in 1976 – a large book project that did not go beyond the first volume – by showing how jurists and legal experts in general have traditionally taken part in the production of law. Before the codification of law in the 18th and 19th century (see ID.: (1976). Storia della cultura giuridica moderna. Assolutismo e codificazione del diritto, Bologna, Il Mulino), interpretation was achieved through interpretatio (an activity comprehensive of gap’s integration and of legal construction generally), in later times, through the activity of interpretation in the strict sense. The thesis found its conclusive articulation in 1980 (ID.: op. cit.), where interpretation is integrated in a theory of legal reasoning at large. It is at this juncture that the disciples set in.
 Among sociologists and social philosophers, Giorgio Rebuffa, Franco Lombardi, Riccardo Motta, Realino Marra, Mariangela Ripoli, Paolo Becchi, Monica Raiteri, Isabel Fanlo y Cortés can not be forgotten, as well as a Tarello’s colleague: Silvana Castignone (Novara, August 14, 1931).
 Among younger legal theorist, we must remember Giulio Itzcovich, Nicola Muffato and Francesca Poggi can not be forgotten. Among the scholars who are or was nearer to the School, Michel Troper, Flavio Baroncelli, Letizia Gianformaggio, Tecla Mazzarese, Gianpaolo Parodi, Cristina Redondo, Bruno Celano, Enrico Diciotti, Giorgio Pino, Jordi Ferrer, Rafael Escudero can not be forgotten.
 See below § 3.1. in the present essay.
 As for the neo-constitutionalism debate, Comanducci contributed, along with Pozzolo and Mauro Barberis to the proposal of the very label “neo-constitutionalism” – a label, and no more than this, to be applied to many and different authors (Dworkin, Alexy, maybe Carlos Nino, Atienza and Ruiz Manero) representing a «third theory of law» beyond natural law and legal positivism. Comanducci, who is an updated methodological legal positivist, does not share the opinion of many who, also within the school, would rather see neo-constitutionalism as a mere «constitutionalistic» variant of the millenary natural law tradition – on the contrary, it sees it as an evolution of positivist tradition too (COMANDUCCI, op. cit., 2001). As a third example of Comanducci’s moderate stance, I cite his role in the debate (both inside and outside the School) on Genoa-style interpretive scepticism. He sometimes embraced a by now widespread tendency to read, on a metatheoretic level, the School’s legal realism as a more complex theory, progressively distancing itself from Tarello’s hard scepticism and thus approaching the Hartian mixed or eclectic theory.
 Cf. BARBERIS, MAURO: (2013). Genoa’s Realism: a Guide for Perplexed. In Revista Brasileira de Filosofia, RBF, 240-252. In ID.: op. cit., (2011), today’s metaethics faces more specific questions than moral objectivity debated in XX Century: e. g., the problem of constitutional interpretation discussed in this work. First section, on the tracks of David Hume, Friedrich Nietzsche and Michel Foucault, tries to imagine an other metaethics: an evolutionary, genealogic, and legally oriented one. Second section criticizes the idea, often shared by moral philosophers and legal theorists, that the role of law and constitution in division of ethical work must be only application of morals. Third section, finally, sketches a constitutional metaethics: an objectivist, pluralistic and relativistic answer to methodological questions on constitutional interpretation.
See also ID.: Law and Morality Today, in Revus 16 , 2012, 55-93. Four philosophies of law are compared and discussed in this paper: natural law, legal positivism, legal realism, and neo-constitutionalism. Each of them is defined upon its answers to three questions: one regards objectivity or subjectivity of ethical (i.e. moral, political, legal) value judgements, another one refers to legal interpretation, and the main one to the relationships between law and morality. Natural Law is thus characterised by a) ethical objectivism, b) interpretive formalism, and c) the idea that law and morality are necessarily connected. Positivism stands for 1) ethical subjectivism, 2) mixed theory of legal interpretation, and c) the separability thesis. Legal realism – which is, to some extent, a mere radicalisation of positivistic views – is chacterised by a) ethical subjectivism, b) interpretive scepticism, and c) the separation thesis.
Neo-constitutionalism holds: 1) ethical objectivism, 2) interpretive formalism, and 3) the view that law and morality are anyhow connected in a constitutional state (thus making the debate between natural law and positivism outdated). Each of the four philosophies of law is then articulated into its respective theoretical, methodological and ideological aspects. This is how the author points to certain similarities between the opposite standpoints, and to some plurality of views inside of every one of them. He stresses furthermore the challenges for particular views on law and morality with the final analysis of three interpretations of the separability thesis – given by inclusive, exclusive and normative positivists.
In ID.: Neo-constitutionalsm: Third Philosophy of Law. In Rivista di Filosofia del Diritto – Journal of Legal Philosophy, 1/2014, 153-164, there is the meaning of a «third philosophy of law», other than natural law and legal positivism, which Barberis labels neo-constitutionalism, and others describe as constitutionalism, nonpositivism, theory of law as integrity or as interpretation, inclusive positivism, postpositivism, and so on. This paper distinguishes neo-constitutionalism from constitutionalism, old and new; in the following three sections it reconstructs neo-constitutionalist stances on law-moral problem, theory of norms, and legal reasoning analysis.
 Susanna Pozzolo (born 1967) is now working also on political philosophy, but she is, since 1999, well-known for coining the label «neo-constitutionalism», now widely employed by almost the whole «Latin» scholarship in order to characterize what can be seen as the «mainstream» trend in contemporary legal philosophy. Pozzolo introduced this label in her contribution to an international conference in Argentina (POZZOLO, op. cit., 1998, 2004). Interestingly enough, however, we can by now apply the label also to authors (such as inclusive or critical positivists or postpositivists as well), who, in particular in English-speaking world, would rather ignore or reject it – the names of Neil MacCormick, Gustavo Zagrebelsky and Luigi Ferrajoli are the first which come to mind. But one has to insist that the label cannot absolutely apply to its own originators (Pozzolo, Comanducci and Barberis), who always used it in order to criticize a variety of positions, which of course they took seriously, but could not in any way endorse.
 As to BARBERIS, MAURO: Benjamin Constant. Rivoluzione, costituzione, progresso (Bologna 1988), Il Diritto come discorso e come comportamento (Torino 1990), L’evoluzione del Diritto (1998), Libertá (Bologna 1999), Filosofia del Diritto. Un’introduzione teorica (Torino 2003), La heterogeneidad del bien. Tres ensayos sobre el pluralismo ético (México 2006), Etica para jurístas (Madrid 2008), Europa del Diritto (Bologna 2008), Giuristi e filosofi (Bologna 2011), Manuale di filosofia del diritto (Torino 2011), Stato costituzionale (Modena 2012); Una filosofia del diritto per lo Stato costituzionale (Torino 2017).
As to PIERLUIGI, CHIASSONI: Law and Economics. L’analisi economica del diritto negli Stati Uniti (Giappichelli, 1992); La giurisprudenza civile. Metodi d’interpretazione e tecniche argomentative (Giuffrè, 1999); L’utopia della ragione analitica. Origini, oggetti e metodi della filosofia del diritto positivo (Giappichelli, 2005); L’indirizzo analitico nella filosofia del diritto. I. Da Bentham a Kelsen (Giappichelli, 2009); Diritti umani, sentenze elusive, clausole ineffabili. Scritti di realismo militante (Aracne, 2011); Técnicas de interpretación juridica (Marcial Pons, 2011); and Desencantos para abogados realistas (Externado de Colombia, 2012).
As to GUASTINI, RICCARDO: L’interpretazione dei documenti normativi (Milano 2004), Distinguendo. Studi di teoria e metateoria del diritto (Torino 1996, Barcelona 1999), Dalle fonti alle norme (Torino 1990, Sao Paolo 2005), Lezione di teoria del diritto e dello stato (Torino 2006), Teoría e ideología de la interpretación constitucional (Mardid 2008), Nuovi studi sull’interpretazione (Rome 2009), Interpretación, Estado y constitución (Lima 2010), Le fonti del diritto. Fondamenti teorici (Milano 2010), Leçons de théorie constitutionnelle (Paris 2010), La sintassi del diritto (Torino 2011), Interpretare e argomentare (Milano 2011), Distinguendo ancora (Madrid 2013).
As to POGGI, FRANCESCA: Norme Permissive (Torino 2004), and a collection of lectures on general legal concepts Concetti teorici fondamentali (Pisa: ETS, 2013).
As to RATTI, GIOVANNI BATTISTA: El gobierno de las normas (Madrid, Marcial Pons 2013); Diritto, indeterminatezza, indecidibilità (Madrid, Marcial Pons 2012); The Logic of Legal Requirements (Oxford, OUP 2012, w/ Jordi Ferrer Beltrán); El realismo jurídico genovés (Madrid, Marcial Pons 2011, w/ Jordi Ferrer Beltrán); Norme, principi e logica (Rome, Aracne 2009); Sistema giuridico e sistemazione del diritto (Turin, Giappichelli 2008).
 Though on the base of not always coincident arguments, a worried warning on the most recent apparent crisis of the protection of fundamental rights as a leading principle of domestic and international law has been raised, e.g., by ALLEGRETTI, UMBERTO: (2002). Diritti e stato nella mondializzazione. Troina (En), Città aperta, 127-197; BONANATE, LUIGI: (2001). La politica interna del mondo. In Teoria politica 17 (1), 3-25; FERRAJOLI, LUIGI: (2000). I fondamenti dei diritti fondamentali. In Teoria Politica 16 (3), 41-113; MAZZARESE, TECLA: Is the age of rights to a turn? Paper presented at “Fundamental Aspects of Human Rights. A Symposium“, Helsinki, 22-23 February 2002.
 The standpoint by BARBERIS: op. cit., (2000 b) 147-162, can be taken to be paradigmatic of such a view, namely: «neo-constitutionalism differs from inclusive legal positivism just because it maintains the natural law thesis of the (identificative) necessary connection between law and morals; it differs from the traditional natural law, getting closer to inclusive legal positivism, insofar as it places such a connection at the level of fundamental or constitutional principles».
 MAZZARESE, TECLA: (2008). Towards a Positivist reading of Neo-constitutionalism, In Jura Gentium-Rivista di Filosofia del diritto internazionale e della politica globale, 18, 345-364.
 Though not always explicitly stated nor similarly defended, the need to think and define from anew the forms of identification, application and cognition of law because of the role fundamental rights have been acquiring in many contemporary positive legal systems is recurrent in the literature on neo-constitutionalism. In particular, one of its explicit and most determined formulation is spelt out by Ferrajoli who writes of constitutionalism (Ferrajoli himself does not use the term neo-constitutionalism) as a new paradigm of law as contrasted both with what he terms the pre-modern paradigm of law (judicial and doctrinal in character) and the modern paradigm of positive law (legislative in character). Cf., e.g., FERRAJOLI, LUIGI: (2001). Per una sfera pubblica del mondo. In Teoria politica 17 (3), 3-21.
 Material criteria of identification are not ignored by legal positivists. To the contrary, since the 1934 edition of his Reine Rechtslehre, Kelsen writes: «the essential function of the constitution consists in governing the organs and process of general law creation, that is, of legislation. In addition, the constitution may determine the content of future statutes, a task not infrequently undertaken by positive-law constitutions, in that they prescribe or preclude certain content. The catalogue of civil rights and liberties, a typical component of modern constitutions, is essentially a negative determination of this kind. Constitutional guarantees of equality before the law, of individual liberty, of freedom of conscience, and so on are nothing but proscriptions of statutes that treat citizens unequally in certain respects or that interfere with certain liberties». The quotation is from the English translation, 64-65. KELSEN, HANS: (1934). Reine Rechtslehre. Einleitung in die rechtswissenschaftliche Problematik. Wien, Deuticke. [English translation by B. Litschewski Paulson and S.L. Paulsn (1992), Introduction to the Problems of Legal Theory], Oxford, Clarendon Press.
Nor material criteria of identification are disregarded by ROSS, ALF: (1958). On Law and Justice. London, Stevens, 78-81, and ID.: Directives and Norms. London, Routledge and Kegan Paul 1968, 96, when taking into account material rules of competence as well as personal and procedural ones. Nevertheless, though far from being ignored, material criteria of identification have not been paid any special attention, nor acknowledged any peculiar import in affecting and conditioning legal systems way of functioning.
 Great emphasis on constitutional fundamental rights as material criteria of identification is devoted, e.g., by FERRAJOLI, LUIGI: (2002 a). Lo stato di diritto fra passato e futuro, 349-386 in P. COSTA – D. ZOLO (eds.): Lo stato di diritto. Storia, teoria, critica. Milano, Feltrinelli. See also PALOMBELLA, GIANLUIGI: (2002). L’autorità dei diritti. Roma-Bari, Laterza, 7 and 23-29. Focusing more on the problem of the identification (and interpretation) of the constitutional rules than on the problem of the identification (and interpretation) of the statutory rules coping with the material criteria of validity, the topic is dealt with at length by the contributions to ALEXANDER, LARRY: (ed.; 1998). Constitutionalism. Philosophical Foundations. Cambridge, Cambridge University Press.
 With regard to domestic law, insofar as the Italian legal system is concerned, a critical overview of shortcomings and deficiencies concerning the judicial protection of fundamental rights is provided by TARUFFO, MICHELE: Diritti fondamentali, tutela giurisdizionale e alternative, in T. MAZZARESE (ed.): Neocostituzionalismo e tutela (sovra)nazione dei diritti fondamentali. Torino, Giappichelli (in print). With regard to international law, a rich exemplification of the limits met in securing legal implementation and judicial protection of fundamental rights is offered by CASSESE, ANTONIO: (1994). I diritti umani nel mondo contemporaneo. Roma-Bari, Laterza.
 That is to say that the validity of a domestic provision might be challenged and/or its interpretation affected by making reference to fundamental rights listed in regional and/or international declarations, charters and covenants, though not included in domestic law. Further, a query not coincident with such an eventual practice is the problem as to whether to conceive of any catalogue might happen to be written down in a legal system, be it domestic, regional or international, as open or closed; that is to say, the problem as to whether to understand it as a mere exemplification rather than a sort of utterly definitive list of what rights are to be legally and judicially protected.
Arguments in favour of the open character of any such a catalogue can be found, beside any natural law attitude, in positive constitutional provisions. That is so, e.g., with the IX amendment of the United States Constitution: «The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people», or else with art. 2 of the Italian Constitution: «The Republic recognizes and protects the inviolable human rights…». Insofar as the Italian Constitution and its art. 2 are concerned, the query is dealt with, e.g., by PACE, ALESSANDRO: (2001). Metodi interpretativi e costituzionalismo. In Quaderni costituzionali 21 (1), 35-61. Further, cf., GUASTINI, RICCARDO: (1998 b). Teoria e dogmatica delle fonti. Milano, Giuffrè, 343-344.
 This can be taken to be the case, though his main concern is not the definition of the notion of constitutionalism, with GUASTINI, RICCARDO: (1998 a). La “costituzionalizzazione” dell’ordinamento italiano. In Ragion Pratica 6 (11), 185-206, when providing a list of what he terms “conditions of constitutionalization”.
 That is the way it is, with FERRAJOLI, LUIGI: (2012 b). La pragmatica della teoria del diritto in P. COMANDUCCI, – R. GUASTINI (eds.): in Analisi e diritto 2014. Torino, Giappichelli (in print). Further, though not always as manifestly vindicated and purported as in Ferrajoli’s works, that is also the case, e.g., with ZAGREBELSKY, GUSTAVO: (1992). Il diritto mite. Legge diritti giustizia. Torino, Einaudi; PALOMBELLA: op. cit., 136; ATIENZA, MANUEL: (2001). El sentido del Derecho. Barcelona, Ariel, 309-310; ID.: Legal Reasoning and Constitutional State. In Associations (in print).
 A similar understanding of the notion occurs in FERRAJOLI, LUIGI: (2000). I fondamenti dei diritti fondamentali. In Teoria Politica 16 (3), 41-113, when maintaining that the new paradigm of constitutionalism «represents a completion not only of the rule of law but also of the very legal positivism […] since the change it has led to, has provided legitimacy with a twofold artificial and positive character: not only of the law as it is, i.e. of its conditions of existence, but also of the law as it ought to be, i.e. of its conditions of validity made constitutionally positive them too, as law on the law, in the forms of legal limits and constraints on its production» (author’s italics, the English translation is mine).
Further, cf. also RAZ, JOSEPH: (1984). Legal Rights. Oxford Journal of Legal Studies, 4 (4), 1-21, when stating: «Legal rights can be legal reasons for legal change. They are grounds for developing the law in certain directions. Because of their dynamic aspect legal rights cannot be reduced, as has often been suggested, to the legal duties which they justify. To do so is to overlook their role as reasons for changing and developing the law» (p. 15), and «Legal rights […] are legal reasons for developing the law by creating further rights and duties where doing so is desirable in order to protect the interests on which the justifying rights are based» (p. 18).
 Such a deficiency has been denounced from a variety of perspectives. From a theoretical perspective, it constitutes the main concern of those who concentrate on the difficulties of the identification and/or judicial implementation of fundamental rights because of the interpretative difficulties their formulations can give rise to: that is the case, e.g., with BOBBIO, NORBERTO: (1968). Presente e avvenire dei diritti dell’uomo. In La comunità internazionale 23, 3-18. [English translation by A. Cameron (1996), Human Rights Now and in the Future, pp. 12-31] in N. BOBBIO, The Age of Rights. Cambridge, Polity Press; MAZZARESE, TECLA: (1993). Judicial Implementation of Fundamental Rights: Three Sorts of Problem, 203-214 in M.M. KARLSSON – O.P. JÓNSSON, – E.M. BRYNJARSDÓTTIR (eds.): Recht, Gerechtigkeit und der Staat. Berlin, Duncker und Humblot; KOSKENNIEMI, MARTTI: (1999). The Effect of Rights on Political Culture, 99-116 in Ph. ALSTON (ed.): The EU and Human Rights. Oxford, Oxford University Press.
From a (meta)ethical perspective, it constitutes the main concern of those who doubt any alleged universality of fundamental rights because of the differing values of different cultures and/or ideologies and/or religions: that is the case, despite any distinguishing feature of different trends, with the advocates of multiculturalism and/or of (political) realism and/or of the gender theory. From a political perspective, it constitutes the main concern of those who maintain that their legal positivization deprives fundamental rights of their political innovative potentiality: that is mainly the case, e.g., with the adherents of the so called critical legal studies movement. Cf., e.g., McILWAIN, CHARLES HOWARD: (1947). Constitutionalism: Ancient and Modern. New York, Cornell University Press; SARTORI, GIOVANNI: (1962). Constitutionalism: a Preliminary Discussion. In American Political Science Review 61, 853-864; TROPER, MICHEL: (1988). Il concetto di costituzionalismo e la moderna teoria del diritto. In Materiali per una storia della cultura giuridica 18, 61-81; FLORIDIA, GIUSEPPE G.: (1991). La costituzione dei moderni. Profili tecnici di storia costituzionale. I Dal Medioevo inglese al 1791. Torino, Giappichelli; DOGLIANI, MARIO: (1994). Introduzione al diritto costituzionale. Bologna, il Mulino; and MORESO, JOSÉ JUAN: (2001). In Defense of Inclusive Legal Positivism, 37-63 in P. CHIASSONI (ed., 2001): The Legal Ought. Torino, Giappichelli.