Tag Archives: Kant

Ananta Kumar Giri (ed.), Pragmatism, Spirituality and Society: Border Crossings, Transformations and Planetary Realizations (Singapore: Palgrave Macmillan, 2021)

In its ordinary use, “pragmatism” is almost a pejorative term, suggesting an efficiency-driven, no-prisoner-taken concentration on getting things done, without much or any room for deeper reflection or reconsideration. Philosophically, however, the same word recalls a US-born school of thought and, in particular, the work of “pioneering thinkers and savants such as Charles S. Peirce, William James, and John Dewey” (xi). These thinkers and savant, according to the book’s editor, aimed at rediscovering the ancient Aristotelian spirit of praxis-centred intellectual inquiry and the Hegelian one of purposeful social normativity, neither of which is inherently inimical to deep thinking and/or to openness to self-reassessment.

The book hereby reviewed is the third instalment in the editor’s series on “Practical Spirituality and Human Development” for the Asian branch of Palgrave Macmillan, but also the companion of a scholarly tome entitled Pragmatism, Spirituality and Society: Consciousness, Freedom and Solidarity. It is, in short, part of an original, multi- and interdisciplinary attempt at bringing together the much-neglected philosophical tradition of pragmatism and that streak of contemporary scholarship, in the humanities and the social sciences, offering erudite musings and insightful meditations on known forms of spirituality arising from Western, but above all Eastern, religious traditions. As such, it falls into the domain of religious studies that, in the history of Nordicum-Mediterraneum, have frequently found room in the published book reviews and in our readers’ cultural interests.

Moving between US pragmatism and relevant tokens of spiritual wisdom from the world’s religions, novel and somewhat unexpected intellectual bridges are built in this edited volume, linking together seemingly remote thinkers and conceptions of nature, the self, moral conduct, human knowledge, and/or the pursuit of a meaningful existence, at both the individual and collective levels. All these bridges, quite obviously, comprise building materials excavated clearly and conspicuously from the pragmatist tradition, but they do not limit themselves to this tradition.

Exemplarily, the second chapter of the book (the first chapter serving as an introduction to the book), i.e., Ananta Kumar Giri’s “Pragmatism and Spirituality: New Horizons of Theory and Practice and the Calling of Planetary Conversations”, establishes a possibly unprecedented theoretical conversation involving Sri Aurobindo, Martin Heidegger and Ludwig Wittgenstein. This is done, with great exegetical finesse and considerable creativity, so as to cast light on the fundamentally praxis-based institution of human language, the personal self, and the social context in which these two meet and interact magmatically.

A similar syncretism and a shared focus on (A) the composite nature of and, above all, (B) the many spiritual paths allowing for the construction of transient yet long-lived forms of consciousness by way of complex interplay between the actual individuals and their socio-cultural milieu, are to be retrieved in most chapters in Part II (of two) of the book. This is the case especially with regard to chapters nine (Alina Therese Lettner’s “Peirce’s Semiotic Pragmaticism and Buddhist Soteriology: Steps Towards Modelling ‘Thought Forms’ of Signlessness”), ten (Richard Hartz’s “Spiritual Pragmatism: William James, Sri Aurobindo and Global Philosophy”), twelve (Hans Bakker’s “Gandhi, Hegel and Freedom: Aufhebungen, Pragmatism and Ideal Type Models”) and fifteen (Kanchana Mahadevan’s “Pragmatism, Spirituality, and the Calling of a New Democracy: The Populist Challenge and Ambedkar’s Integration of Buddhism and Dewey”).

The book’s third chapter is entitled “Pragmatism, Geist and the Question of Form: From a Critical Theory Perspective”. Penned by Pietr Strydom, it explores the German roots of US pragmatism. Thanks to this line of study, Strydom shows how much of the German notion of “Spirit” was preserved in its Anglophone, pragmatist rendition, and which avenues this rendition still opens up before us in order to connect, in a constructive and authentically spiritual manner, with the world of nature surrounding us, which German philosophy had frequently highlighted and prioritised in many of its Romantic expressions as well as in some of its later ones.

The ecological focus anticipated in this chapter continues in the fourth chapter (“Naturalistic Spirituality, Religious Naturalism, and Community Spirituality: A Broader Pragmatic View” by Ann K. Kegley) the fifth (“Pragmatism and the ‘Changing of the Earth’: Unifying Moral Impulse, Creative Instinct and Democratic Culture” by Julie Mazzarella Geredien) and, to a lesser extent, the sixth (Marcus Bussey’s “Towards Spiritual Pragmatics: Reflections from the Graveyards of Culture”). Taken together, these chapters provide much food for thought with regard to our generation’s greatest challenge, i.e., the planet-wide collapse of all life-support systems, natural ones in primis (e.g., unpolluted water aquifers, self-sustaining oceanic ecosystems), but often human-made as well (e.g., well-funded democratically elected authorities monitoring and controlling both national and transnational corporate businesses). As we all know, the wellbeing and, eventually, the very fate of humanity’s future generations are currently at stake, probably like never before in history.

As to the remaining chapters, they address more strictly spiritual issues (e.g., Paul Hague’s seventh chapter, “Mystical Pragmatics”) or technical aspects of pragmatism and/or related disciplinary areas (e.g., Janusz Baranski’s eight chapter “Pragmatism and Spirituality in Anthropological Aesthetics”), while retaining at large the book’s overall syncretic character and multicultural body of expert references. As such, the book is bound to appeal to, and be approachable by, cultivated persons that are versant in both Western pragmatism and recent classics in Eastern spiritual traditions, notably Aurobindo, Tagore and Gandhi. Unsurprisingly, then, as far as the present reviewer is concerned, the eleventh chapter is the one that I was able to appreciate in greatest detail, for it chiefly addresses mainstream Western philosophical conceptions (i.e., Kant and US pragmatism) and the spiritual tradition that I am most familiar with (i.e., Roman Catholicism), showing how the neo-Thomist criticism of the modern metaphysical scepticism championed by Descartes, Hume and, above all, Kant, can be applied, plausibly if not successfully, to US pragmatism as well, given its anti-metaphysical stance, which has been purported most vocally, in recent decades, by the neo-pragmatist philosopher Richard Rorty.

The book’s essential wisdom is, however, as simple to grasp as it is deep and relevant. In short, if we wish to save ourselves from the errors and the horrors of modernity, as patently displayed by the ecological devastation of our planet, then the most practical, pragmatic thing to do may well be to pay some serious attention to the cultivation of the spirit, which has been neglected, if not ridiculed and abandoned, by far too many cultures and individuals that recognise only a very limited set of contingent, this-worldly, and largely sensuous values as worth pursuing and maximising. Sometimes, new, good ideas and praxes are old, forgotten ideas and praxes.

Criticism of language and analysis of law. A pragmatics of normativity and social (de)ontology

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)

 

 

PART A)

  1. 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[1]. 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.[2] 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.[3] 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.[4] 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.[5] 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[6] 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[7].

          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.[8] 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)[9] 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[10] statement by Merleau-Ponty about the “impossibility of a complete reduction” (Merleau-Ponty 2005, xv).[11] 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.[12] 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).[13] 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”[14] 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.

 

  1. 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.”[15] 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[16] aims at reformulating the notion of experience as pervaded by rationality, the more pragmatism – and Davidson – inspired Robert Brandom[17] denies experience (qua “causal impact”) any role in the normative practice of employing concepts by being committed to inferences.[18]

          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,[19] Heidegger,[20] and Scheler[21] 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[22] 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,[23] 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)[24] 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[25] 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)[26]. 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.[27] 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.[28] 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,”[29] 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.[30] 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.[31] 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.[32] 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,[33] 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.[34] The body plays a constitutive role here, as do the intersubjectively constituted forms of “normality” and normativity we grow into by sedimentation and habitualization.[35] Husserl’s statement “I am what I am as an heir”[36] 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.[37] 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.”[38] But also for Scheler[39] and Husserl,[40] a “call” is at the center of their ethics, namely in form of a “vocation” to which the person lovingly responds. Finally, Levinas[41] 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.[42] 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.”[43]

          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.[44] 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.[45] Crowell argues that already in Sartre’s analysis of shame, the normative significance of the other is discovered.[46] 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.[47] 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”[48] and which constitutes me normatively: “Thou shalt not commit murder.”[49] 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.[50]

          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.[51] 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.[52] 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,[53] 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”[54] 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:[55] 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”[56] in the late Husserl.[57] 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”[58] 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.[59] 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.”[60] 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’”.[61]

          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).”[62] 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.”[63] 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.[64]

          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[65]. 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.

 

  1. Selecting Feasibility Constraints: the Circularity of Normative Criteria

3.1. Introduction

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[66].

          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[67] 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.[68]

 

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[69] with all existing facts.[70]

          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)[71]. 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[72]. 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[73]. 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:

  1. The theory M has to conform with soft feasibility constraints;
  2. A fact is a soft feasibility constraint iff it is a constitutive feature of the moral model of agent;
  3. The theory M defines in its assumptions the moral model of agent (selecting its features);
  4. Therefore, the theory M indirectly defines soft feasibility constraints;
  5. Therefore, the theory M has to conform with facts that theory M defines in its assumptions.

          So:

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:

  1. The theory M has to conform with soft constraints;
  2. A fact is a soft constraint iff it implies moral costs;
  3. A fact implies a moral cost only iff it is morally valuable;
  4. The theory M defines moral values. So, the theory M indirectly defines morally valuable facts;
  5. Therefore, the normative theory M selects soft constraints;
  6. Therefore, the normative theory M has to conform with facts that the normative theory M selected.

          So:

  • 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.

 

  1. The Phenomenological Argument for Essential Normativity

4.1. Introduction

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,[74] 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.[75] 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).[76] 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.[77] 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’.[78] 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”.[79] 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)[80] 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.[81]

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,[82] 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.[83] 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.[84] 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.[85] 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.[86] 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.[87]

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.[88]

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.

  1. The lifeworld is an enabling condition for there to be science as an institution. [Phenomenological intuition]
  2. The lifeworld is normative. [phenomenological intuition]
  3. If x is normative and if x is the enabling condition for y, then y is normative.
  4. Therefore, science as an institution is normative.
  5. Science as an institution is the enabling condition for there to be scientific theories at all.
  6. Therefore, scientific theories are normative.
  7. Scientific theories are presupposed by naturalization projects.
  8. If scientific theories are presupposed by naturalization projects and if scientific theories are normative, then naturalization projects presuppose normativity.
  9. Therefore, naturalization projects presuppose normativity.
  10. Naturalization projects reduce normativity.
  11. If x presupposes y, then x cannot reduce y. [Controversial principle]
  12. Naturalization projects cannot reduce normativity.
  13. If naturalization projects cannot reduce normativity, then naturalization projects necessarily fail.
  14. Therefore, naturalization projects necessarily fail.
  15. If naturalization projects necessarily fail, then normativity is irreducible to non-normative properties.
  16. 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.[89] 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).[90] 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:

  1. If x presupposes y, then x cannot reduce y. [Controversial principle]

          This principle expresses the central point of contention between phenomenologists and reductive naturalists.[91] 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.[92] 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).[93] 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.[94]

          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.

 

  1. Scepticism About the Unity of Practical Normativity

5.1. Introduction

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.[95] 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.[96] 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?[97]

          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.[98]

          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?[99] 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.[100] 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.[101] 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’.[102]

          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)

(No rational argument has a rational effect on a man who does not want to adopt a rational attitude).

Karl Popper

 

 

References

Anscombe, Elizabeth (1957): Intention, Oxford: Blackwell.

Audi, Robert (2012): “Can Normativity be Naturalized?”, in Susana Nuccettelli & Gary Seay (eds.),  2021, forthcoming.

Baker, Lynne Rudder (2017): “Naturalism and the Idea of Nature”, Philosophy 92(2), 333-349.

Bardon, Adrian: “Transcendental Arguments”, The Internet Encyclopedia of Philosophy, https://www.iep.utm.edu/, 02.09.2020. [IEP does not feature publication dates].

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PART B)

«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)

 

 

 

  1. THE EPISTEMIC (AND ANALOGICAL) RELATIONSHIP BETWEEN POLITICS AND CRITICISM.
  1. Introduction

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[103], 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[104].

          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”[105], within the Introduction of the Critique of Pure Reason. As pointed out by Nancy[106] (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”[107]. 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.[108] 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”[109]. 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”[110]. It is precisely in this last field that the critical philosopher moves. In this sense, the philosopher himself remains a regulatory and ideal figure[111], 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[112], 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[113], 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)[114] 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”[115] or “islands”[116] 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.

 

  1. 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.[117] Such theories have often been charged with being unable to explain the pre-theoretical extension of our reason sets[118]. 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.[119]

          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.[120] 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.[121] 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.[122] 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.[123]

          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.[124] However, the rational self has many properties of its own, and these set limitations on how one may do so.[125] 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).[126] 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.[127]

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.[128] 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.[129] 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.[130]

          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.[131]

          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.[132] 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).[133]

(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).[134]

          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.[135]

          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.[136]

          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.[137] 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.[138]

          Just how we have that reason does, however, vary with different forms of Ideal desires internalism. There are two main versions (Smith, 1995).[139] 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.[140] 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.

 

  1. Dworkin’s Associative Political Obligations and the Anarchist Challenge

3.1. Introduction

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[141].

          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[142]. 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.

 

  1. Constructive Interpretation and the Status Quo: the Case Against Practice-Dependence

4.1. Introduction

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.[143] 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.[144] 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.[145]

            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.[146] 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.[147] 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.[148]

          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.[149] 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.[150] 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.[151] 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.[152] 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’.[153] According to this idea, ‘the first aim of any social or political institution is to secure conditions of order, trust, cooperation, and security’.[154] 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.[155] 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.[156]

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.[157] 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.[158] 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.[159]

          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.[160]

 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.[161]

          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.[162] 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.

 

  1. On the Logical Priority of Justice Over Legitimacy. The Case of Political Equality

5.1. Introduction

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[163]. 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.[164] 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.[165]

          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[166]. 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[167]. 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.[168]

 

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»[169]. (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.

 

  1. 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[170], 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[171]. The literature, at the moment, appears to have stabilised on a scheme made of five main definitions[172]. 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[173]. And this, as I assumed from the beginning, is an important criterium for a good piece of research in political theory[174].

 

APPENDIX

«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»

  1. 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.

 

  1. 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[175].

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»)[176] 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[177], 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[178] ones – have been provided, until now[179], by the very contributors to the studies on neo-constitutionalism: Riccardo Guastini (actually he is the Director of new «Tarello Institute for Legal Philosophy»)[180]; 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)[181]; Mauro Barberis[182]; 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[183]; 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)[184].

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[185].

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[186].

          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[187] 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[188]. Neo-constitutionalism is one among many concepts that has been used to designate and study this phenomenon[189]. The hypothesis we will address in this paper is that some of the central characters of our culture of rights[190], 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[191] which limit the powers of the State and/or protect fundamental rights[192].

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[193].

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[194].

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[195]. 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[196].

 

Concluding remarks

Part A):

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:

  1. The normative theory M should conform with feasibility constraints;
  2. Facts are feasibility constraints iff they have certain normative features that are assumed or defined by the normative theory M;
  3. So, soft constraints are selected through the moral assumptions or outcomes of the normative theory M;
  4. 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.

Part B):

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.

Appendix:

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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ZANINI, M. Per riqualificare la tecnica legislativa, in «Parlamenti regionali» 12 (2004), 85-88.

ZORZI, D., Atteggiamento verso la semplificazione: alcuni punti di vista, in «Iter Legis» 1.II (1998), 275-284.

ZUCCHELLI, C., Riflessioni sulla qualità del linguaggio normativo, in R. ZACCARIA (cur.), La buona scrittura delle leggi, Roma 2011, 79-86.

 

As to Non-sexist use of legal language

AMICONI, R., Forme linguistiche al femminile dei nomi di professioni in Italia, in D. VERONESI (ed.), Linguistica giuridica italiana e tedesca. Rechtslinguistik des Deutschen und Italienischen, Padova 2000, 169-176.

CAVAGNOLI, S., Linguaggio giuridico e lingua in genere. Una simbiosi possibile, Alessandria 2013.

DAUM, U., Die Gleichbehandlung von Männern und Frauen in der Rechtssprache, in D. VERONESI (cur.), Linguistica giuridica italiana e tedesca. Rechtslinguistik des Deutschen und Italienischen, Padova 2000, 161-168.

DELL’ANNA, M. V., Genere e generi. Donne e rappresentazione linguistica al femminile nei testi del diritto e dell’amministrazione in Italia, in Linguaggio giuridico e lingua di genere. Atti del Convegno organizzato dal Comitato Pari Opportunità dell’Ordine degli Avvocati di Milano, Milano, Aula Magna del Palazzo di Giustizia, 21 novembre 2014 (c.d.s.).

ROBUSTELLI, C., Pari trattamento linguistico di uomo e donna, coerenza terminologica e linguaggio giuridico, in R. ZACCARIA (ed.), La buona scrittura delle leggi, Roma 2011, 181-198.

 

As to Legal linguistics

BAZZANELLA, C. – MORRA, L., Metafora e linguaggio giuridico: alcune riflessioni, in AA.VV., Atti del 3° congresso di studi dell’Associazione Italiana di Linguistica Applicata, Perugia 2004, 191-212.

BECCARIA, G. L., Italiano antico e nuovo, Milano 1992, 172-234.

BERTI, A., L’àmbito giuridico della lingua, in «Studi linguistici italiani» 25 (1999), 64-97.

CAVAGNOLI, S., Il discorso giuridico: un approccio linguistico all’analisi, in E. IORIATTI FERRARI (ed.), La traduzione del diritto comunitario ed europeo: riflessioni metodologiche, Atti del convegno 10-11 marzo 2006, Facoltà di Giurisprudenza dell’università di Trento, Padova 2006, 61-86.

CAVAGNOLI, S., Linguaggio giuridico e linguistica applicata: perché interagire [abbreviated title: Il discorso giuridico: un approccio linguistico all’analisi, in E. IORIATTI FERRARI (ed.), La traduzione del diritto comunitario ed europeo: riflessioni metodologiche, Atti del convegno 10-11 marzo 2006, Facoltà di Giurisprudenza dell’università di Trento, Padova 2006, 61-86] in «Cultura e diritti, per una formazione giuridica», 1, 4 (2012), 15-24.

CORTELAZZO M. A., Lingua e Diritto in Italia. Il punto di vista dei Linguisti, in L. SCHENA (ed.), La lingua del diritto. Difficoltà traduttive. Applicazioni didattiche. Atti del primo Convegno Internazionale Milano 5-6 ottobre 1995, Centro Linguistico dell’Università Bocconi, Roma 1997, 35-49.

CORTELAZZO M. A., v. Giuridico-amministrativo, linguaggio, in Enciclopedia dell’italiano, I, diretta da R. SIMONE, Roma 2010, 588-590.

CORTELAZZO, M. A., Prefazione, in J.-L. EGGER – A. FERRARI – L. LALA (ed.), Le forme linguistiche dell’ufficialità. L’italiano giuridico e amministrativo della Confederazione Svizzera, Bellinzona 2013, 7-10.

CORTELAZZO, M. A., Fenomenologia dei tecnicismi collaterali. Il settore giuridico, in E. CRESTI (ed.), Prospettive nello studio del lessico italiano, Atti del IX Congresso della Società Internazionale di Linguistica e Filologia Italiana (Firenze, 14-17 giugno 2006), I, Firenze, 2008, 137-140.

DELL’ANNA, M. V., Il lessico giuridico italiano. Proposta di descrizione, in «Lingua Nostra» 69 (2008), 98-110.

DELL’ANNA, M. V., Aspetti della lingua giuridica. Forme e prassi della scrittura di testi non normativi, in «MediAzioni» 18 (online)

DELL’ANNA, M. V., Un processo di sintesi sintattica di una varietà dell’italiano: l’uso verbale degli aggettivi deverbali in -(t)ivo e in -(t)orio nei testi giuridici, in A. FERRARI (cur.) Sintassi storica e sincronica dell’italiano. Subordinazione, coordinazione, giustapposizione, Atti del X Congresso SILFI – Società Internazionale di Linguistica e Filologia Italiana, Universität Basel, 30 giugno – 3 luglio 2008, III, Firenze 2009, 1299-1313.

DELL’ANNA, M. V., Su alcune voci e locuzioni giuridiche di interesse lessicografico, in «Studi di lessicografia italiana» 27 (2010), 237-276.

DELL’ANNA, M. V., Variazione diafasica e lessicografia. Ricognizioni sul lessico giuridico nei dizionari dell’uso, in P. BIANCHI – N. DE BLASI – C. DE CAPRIO – F. MONTUORI (ed.), La variazione nell’italiano e nella sua storia. Varietà e varianti linguistiche e testuali, Atti dell’XI Congresso SILFI – Società Internazionale di Linguistica e Filologia Italiana, Napoli, 5-7 ottobre 2010, Firenze 2012, 557-574.

FIORELLI, P., Giuridico e non giuridico nelle frequenze lessicali, in P. MARIANI BIAGINI (ed.), Indice della Lingua Legislativa Italiana. Inventario lessicale dei cento maggiori testi di legge tra il 1723 e il 1973, III, Firenze 1997, 986-992 (now also in P. FIORELLI, Intorno alle parole del diritto, Milano, 2008, 379-422).

GALGANO, F., Le insidie del linguaggio giuridico: saggio sulle metafore nel diritto, Bologna 2010. GARZONE, G. –SANTULLI, F., Introduzione, in G. GARZONE – F. SANTULLI (ed.), Il linguaggio giuridico. Prospettive interdisciplinari, Milano 2008, 1-14.

GUALDO, R., Il linguaggio del diritto, in R. GUALDO – S. TELVE, Linguaggi specialistici dell’italiano, Roma 2011, 411-477.

MARIANI BIAGINI, P. – PARENTI, L., Gli archivi lessicali della lingua giuridica italiana: considerazioni e prospettive, in D. VERONESI (ed.), Linguistica giuridica italiana e tedesca. Rechtslinguistik des Deutschen und Italienischen, Padova 2000, 285-294.

MORTARA GARAVELLI, B., Le parole e la giustizia. Divagazioni grammaticali e retoriche su testi giuridici italiani, Torino 2001.

MORTARA GARAVELLI, B., Persistenza del latino nell’uso giuridico odierno, in L’Accademia della Crusca per Giovanni Nencioni, Firenze 2002, 423-431.

ONDELLI, S., – PONTRANDOLFO, G., La negazione multipla nei testi giuridici: veramente non si può negare che sia un tratto caratteristico?, in «Rivista internazionale di tecnica della traduzione» = «International Journal of Translation» 16 (2014), 153-176.

ONDELLI, S., La lingua del diritto: proposta di classificazione di una varietà dell’italiano, Roma 2007.

ROVERE, G., Aspetti grammaticali in testi giuridici, in D. VERONESI (ed.), Linguistica giuridica italiana e tedesca. Rechtslinguistik des Deutschen und Italienischen, Padova 2000, 261-271.

ROVERE, G., L’avverbiale strumentale nel linguaggio giuridico, in L. SCHENA – R. SNEL TRAMPUS (ed.), Traduttori e giuristi a confronto, Bologna 2000, 25-35.

ROVERE, G., Capitoli di linguistica giuridica. Ricerche sui corpora elettronici, Alessandria 2005.

ROVERE, G., Il principio dell’economia nella lingua giuridica. Gli avverbi in -mente, in J. Visconti (ed.), Lingua e diritto. Livelli di analisi, Milano 2010, 119-162.

SERIANNI, L., Italiani scritti, Bologna [2003] 20123.

 

As to The language of normative text

AINIS, M., La lingua del legislatore, in S. TRAVERSA (ed.), Scienza e tecnica della legislazione: lezioni, Napoli 2006, 1-17.

BHATIA, V. K. – ENGBERG, J. – GOTTI, M. – HELLER, D. (ed.), Vagueness in Normative Texts, Bern 2005.

BELVEDERE, A., Il problema delle definizioni nel codice civile, Milano 1977.

BELVEDERE, A., Aspetti ideologici delle definizioni nel linguaggio del legislatore e dei giuristi, in BELVEDERE, A., JORI M., LANTELLA, L., Definizioni giuridiche e ideologie, Milano 1979, 349-382.

BELVEDERE, A., Il linguaggio del Codice Civile: alcune osservazioni, in Trattato di diritto civile, diretto da P. Rescigno, 21, Torino 1987, 5-44 [ora anche in U. SCARPELLI, – P. DI LUCIA (ed.), Il linguaggio del diritto, Milano 1994, 403-452].

BELVEDERE, A., Testi e discorso nel diritto privato, in «Ars Interpretandi» 2 (1997), 137-156.

BELVEDERE, A., Nota in tema di definizioni legislative penalistiche, in A. CADOPPI (ed.), Il problema delle definizioni legali nel diritto penale, Padova 1996, 109-124.

CATERINA, R. – ROSSI, P., L’italiano giuridico, in B. POZZO – M. TIMOTEO, Europa e linguaggi giuridici, Milano 2008, 185-208.

CORTELAZZO, M. A., Indicazioni linguistiche e testuali nel codice di procedura penale, in L. SCHENA – R. D. SNEL TRAMPUS (ed.), Traduttori e giuristi a confronto: interpretazione traducente e comparazione nel discorso giuridico, Bologna 2000, 17-23.

FERRAJOLI, L., Modelli del linguaggio legislativo penale (1990), in U. SCARPELLI – P. DI LUCIA, Il linguaggio del diritto, Milano 1994, 453-465.

MANNOZZI, G., Riflessioni sulla lingua del diritto penale, in F. BAMBI – B. POZZO (ed.), L’italiano giuridico che cambia, Atti del convegno 1 Ottobre 2010, Accademia della Crusca, Firenze 2011, 97-139.

MARCHESIELLO, M., Il linguaggio della legge, in A. MARIANI MARINI – F. BAMBI (ed.), Lingua e diritto. Scritto e parlato nelle professioni legali, Pisa 2013, 133-148.

PARODI, G., Le fonti del diritto. Linee evolutive, Milano 2012.

PETTA, P., Il linguaggio del legislatore, in «Quaderni regionali: rivista trimestrale di studi e documentazione» 13 (1994), 1303-1316.

SABATINI, F., Analisi del linguaggio giuridico. Il testo normativo in una tipologia generale di testi, in M. D’IPPOLITO (ed.), Corso di studi superiori legislativi 1988-89, Padova 1990, 675-724 [ora in F. SABATINI, L’italiano nel mondo moderno. Saggi scelti dal 1968 al 2009, a cura di V. COLETTI – R. COLUCCIA – N. DE BLASI – D. PROIETTI, Napoli 2011, II, 273-320].

SABATINI, F., Funzioni del linguaggio e testo normativo giuridico, in I. DOMENIGHETTI (ed.), Con felice esattezza. Economia e diritto tra lingua e letteratura, Bellinzona 1998, 125-137 [now in F. SABATINI, L’italiano nel mondo moderno. Saggi scelti dal 1968 al 2009, a cura di V. COLETTI – R. COLUCCIA – N. DE BLASI – D. PROIETTI, Napoli 2011, II, 321-334].

SABATINI, F., I tipi di testo e la ‘rigidità’ del testo normativo giuridico, in S. COVINO (ed.), La scrittura professionale. Ricerca, prassi, insegnamento, Firenze 2001, 97-105 [ora in F. SABATINI, L’italiano nel mondo moderno. Saggi scelti dal 1968 al 2009, a cura di V. COLETTI – R. COLUCCIA – N. DE BLASI – D. PROIETTI, Napoli 2011, II, 335-345].

SABATINI, F., I testi normativi giuridici: un uso prototipico della lingua, in AA.VV., Lingua e diritto. La presenza della lingua italiana nel diritto svizzero, Lugano 2005, 17-25 [now in F. SABATINI, L’italiano nel mondo moderno. Saggi scelti dal 1968 al 2009, a cura di V. COLETTI – R. COLUCCIA – N. DE BLASI – D. PROIETTI, Napoli 2011, II, 356-356].

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 [1935], 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.

GEBHARDT, U. C.J., Sermo iuris. Rechtssprache und Recht in der augusteischen Dichtung, Leiden – Boston 2009.

GUALDO, R., «L’opera della nostra redenzione è compiuta». Dal marzo 1848 al luglio 1849: parole e ideologia nello Statuto di Pio IX e nella Costituzione della Repubblica Romana, 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, 85-108.

LACCHÈ, L., Il nome della «libertà». Tre dimensioni nel secolo della costituzione, 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, 29-50.

LEPORE, P., Note minime su alcuni caratteri della lingua del diritto romano, in POZZO, B. – TIMOTEO, M., Europa e linguaggi giuridici, Milano 2008, 3-29.

LESO, E., 27 dicembre 1947: lingua della Costituzione e lingua di tutti, 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, 277-290.

MANNORI, L., I nomi del ‘governo rappresentativo’ nella dottrina costituzionale italiana dal Settecento al Fascismo, 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, 139-188.

MARAZZINI, C., La lingua degli Stati italiani: l’uso pubblico e burocratico prima dell’Unità, 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, 1-27.

MARAZZINJ,C., Le parole della libertà. La lingua dello Statuto albertino, 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, 51-66.

MAROUZEAU, J., Sur deux aspects de la langue du droit, in Mélanges Henri LévyBruhl, Paris 1959, 435-444.

MIGLIORINI, B., Storia della lingua italiana, Firenze 19714.

MONTI, A., Tra latino e volgare. Il linguaggio giuridico in età medievale e moderna, in B. POZZO – M. TIMOTEO, Europa e linguaggi giuridici, Milano 2008, 31-81.

MORGANA, S., Letterati, burocrati e lingua della burocrazia nel primo Ottocento, in «Studi linguistici italiani» 10 (1984), 44-75.

ONDELLI, S., Evoluzione di un genere testuale: la sentenza penale nell’Italia postunitaria, in 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, 451-462.

PELLECCHI, L., La legge e il magistrato. Intorno a una tecnica normativa romana, in M. HUMBERT (ed.), Le Dodici Tavole. Dai Decemviri agli Umanisti, Pavia 2005, 51-115.

PETRUCCI, A., Il problema delle origini e i più antichi testi italiani, in L. SERIANNI – P. TRIFONE (ed.), Storia della lingua italiana, III, 5-73.

PRADA, M., Note sulla lingua di alcuni procedimenti giudiziari cinquecenteschi: i “Processi contro ebrei e giudaizzanti” del S. Uffizio di Venezia, in «Quaderni di Acme» 23 (1995), 159-226.

QUAGLIONI, D., Machiavelli e la lingua della Giurisprudenza. Una letteratura della crisi, Bologna 2011.

RUGGIERI, R. M., Tra storia della lingua e storia del diritto: elementi bizantini, longobardi e romanici nel placito capuano del 960, Presso la Sede del Centro di Studi, Spoleto, 1959, 534-550.

VINCENTI, U., Linguaggio normativo, in «Enciclopedia del diritto, Annali», VII, 2014, 669-685.

VITALE, M., La lingua volgare della Cancelleria visconteo-sforzesca nel Quattrocento, Varese-Milano 1953.

ZOLLI, P., Bibliografia dei dizionari specializzati italiani del XIX secolo, Firenze 1973.

ZOLLI, P., Il linguaggio giuridico e amministrativo nell’età rivoluzionaria e napoleonica, in P. FIORELLI et al. Lingua degli uffici e lingua del popolo nella Toscana napoleonica, Firenze 1985, 7-13.

 

As to Theory and philosophy of legal language

ANTELMI, D., Vaghezza, definizioni e ideologia nel linguaggio giuridico, in G. GARZONE – F. SANTULLI (cur.), Il linguaggio giuridico. Prospettive interdisciplinari, Milano 2008, 89-119.

AUSTIN, J., How to Do Things with Words, Oxford-London 1962 [trans. It. Come fare cose con le parole, Genova 1987.

BELVEDERE, A., Definizioni, in «Digesto delle discipline privatistiche», sez. Civile, V, Torino 1989, 149-154.

BELVEDERE, A., Pragmatica e semantica nell’art. 12 Preleggi, in D. VERONESI (ed.), Linguistica giuridica italiana e tedesca. Rechtslinguistik des Deutschen und Italienischen, Padova 2000, 49-58.

BOBBIO, N., Scienza del diritto e analisi del linguaggio, in «Rivista trimestrale di diritto e procedura civile» 4 (1950), 69-104.

CAVALLA, F. (ed.), Retorica processo verità. Princìpi di filosofia forense, Milano 2007.

CARCATERRA, A., Struttura del linguaggio giuridico-precettivo romano, Bari 1968.

CHIASSONI, P., Analisi linguistica e teoria dell’interpretazione giuridica. Ancora sulla sempiterna disputa tra scettici e misti(ci), in J. VISCONTI, Lingua e diritto. Livelli di analisi, Milano 2010, 75-96.

COLLOCA, S. – DI LUCIA, S. (ed.), L’impossibilità normativa. Atti del Seminario internazionale Nomologics 2 (Pavia, Collegio Golgi, 10-11 luglio 2013), Milano 2015.

COLORIO, A., Esplorazioni neurogiuridiche tra antichità e modernità, in «Atti della Accademia Roveretana degli Agiati», ser. VIII, vol. XI, B (2011), 43-93.

CONTE, A. G., Fenomenologia del linguaggio deontico (1985), in U. SCARPELLI – P. DI LUCIA, Il linguaggio del diritto, Milano 1994, 387-402

CONTE, A. G., Filosofia del linguaggio normativo. I. Studi 1965-1981, Torino 1989.

CONTE, A. G., Filosofia del linguaggio normativo. II. Studi 1982-1993, Torino 1994.

CONTE, A. G., Filosofia del linguaggio normativo. III. Studi 1995-2001, Torino 2001.

CONTE, A. G., Performativo vs. normativo (1994), in U. SCARPELLI – P. DI LUCIA, Il linguaggio del diritto, Milano 1994, 247-263.

DI LUCIA, P., Normatività, diritto, linguaggio, azione, Torino 2003.

FILIPPONIO, A., Enunciazioni performative e linguaggio giuridico (1983), in U. SCARPELLI – P. DI LUCIA, Il linguaggio del diritto, Milano 1994, 207-218.

FUSELLI S., Diritto, neuroscienze, filosofia. Un itinerario, Milano 2014.

GARZONE, G., Performatività e linguaggio giuridico. Una proposta di classificazione, Milano 1996.

GENTILI, A., Il diritto come discorso, Milano 2013.

GRICE, P., Logic and conversation [William James Lectures, Harvard 1967], in COLE, P. – MORGAN, J. L., Syntax and semantcs 3. Speech acts, 1975, 41-58.

GUASTINI, R., Lezioni sul linguaggio giuridico, Torino 1985.

GUASTINI, R., Il diritto come linguaggio. Lezioni, Torino, 2001.

GUASTINI, R., Conoscere il diritto. Un inventario di problemi, in «Diritto e questioni pubbliche» 13 (2013) 513-536.

GUASTINI, R., Filosofia del diritto positivo. Lezioni, Torino, 2017.

GUASTINI, R., Prima lezione sull’interpretazione, Modena, 2019.

JORI, M., Definizioni e livelli di discorso giuridico (1979), in U. SCARPELLI – P. DI LUCIA, Il linguaggio del diritto, Milano 1994, 367-386.

JORI, M. – PINTORE, A., Introduzione alla filosofia del diritto, Torino 2014, 163-202.

LANTELLA, L., Pratiche definitorie e proiezioni ideologiche nel discorso giuridico, in A. BELVEDERE – M. JORI  L. LANTELLA, Definizioni giuridiche e ideologie, Milano 1979, 100-105.

LORINI, G., Referenti in testi normativi, in J. VISCONTI, Lingua e diritto. Livelli di analisi, Milano 2010, 339-532.

LUZZATI, C., La vaghezza delle norme: un’analisi del linguaggio giuridico, Milano 1990.

LUZZATI, C., L’ interprete e il legislatore. Saggio sulla certezza del diritto, Milano 1999.

MAZZI, D., La sentenza come genere argomentativo: una riflessione linguistica, in G. GARZONE – F. SANTULLI (ed.), Il linguaggio giuridico. Prospettive interdisciplinari, Milano 2008, 239-262.

MAZZI, D., The Linguistic Study of Judicial Argumentation. Theoretical Perspectives, Analytical Insights Modena 2007.

OLIVECRONA, K., Legal language and reality, in R. A. NEWMAN (ed.), Essays in Jurisprudence in Honor of Roscoe Pound. Indianapolis, 1962, 151-191 [trad. it. Linguaggio giuridico e realtà (1974) now in SCARPELLI, U. – DE LUCIA, P., Il linguaggio del diritto, Milano 1994, 147-186.

PINTORE, A. – JORI, M. (ed.), Law and Language. The Italian Analytical School, Liverpool 1997.

RANGONE, N., Il contributo delle scienze cognitive alla qualità delle regole, in «Mercato concorrenza regole», 14 (2012) 151-166.

ROSS, A., Critica del diritto e analisi del linguaggio, a cura di A. FEBBRAJO – R. GUASTINI, Bologna 1982.

SACCO, R., Azione, pensiero, parola nella creazione del diritto, in J. VISCONTI, Lingua e diritto. Livelli di analisi, Milano 2010, 21-42

SCARPELLI, U., Contributo alla semantica del linguaggio normativo, Torino [1959] 19852.

SCARPELLI, U., Diritto e analisi del linguaggio, Milano 1976.

SEARLE, J., Speech acts: An Essay in the Philosophy of Language, Cambridge 1969 [trans. It. Atti linguistici. Saggio di filosofia del linguaggio, Torino 1976.

TARELLO, G., Linguaggio descrittivo e linguaggio precettivo nei discorsi dei giuristi (1974), in U. SCARPELLI – P. DI LUCIA, Il linguaggio del diritto, Milano 1994, 349-365.

VISCONTI, J., Speech Acts in Legal Language, in «Journal of Pragmatics» 41 (2009), 393-400.

WRIGHT, G. H. V., Norm and Action. A Logical Enquiry, London 1963 [trans. It. di A. Emiliani, Norma e azione. Un’analisi logica, Bologna 1989].

ZACCARIA, G., Testo, contesto e linguaggi settoriali nell’interpretazione giuridica, in A. MARIANI MARINI (ed.), La lingua, la legge, la professione forense, Milano 2003, 89-102.

ZUANELLI, E., La dimensione pragmatica nel testo normativo, in «Iter legis» 1998, 260-274.

ZUANELLI, E., Macro-struttura pragmatica e modelli di interazione nel testo normativo, in D. VERONESI (ed.), Linguistica giuridica italiana e tedesca. Rechtslinguistik des Deutschen und Italienischen, Padova 2000, 85-99.

 

As to The law in the plurality of languages: translation and legal comparison

ARNTZ, R., Confrontare, valutare, trasporre: metodi e problemi della traduzione giuridica, in R. ARNTZ (cur.), La traduzione. Nuovi approcci fra teoria e pratica, Napoli 1995, 137-162.

AUFSCHNAITER, W., Die Gesetzes- und Amtsprachein Südtirol: nicht nur ein Problem der Übersetzung, in D. VERONESI (cur.), Linguistica giuridica italiana e tedesca. Rechtslinguistik des Deutschen und Italienischen, Padova 2000, 223-225.

BHATIA, V. – CANDLIN, C. – GOTTI, M. (ed.), Legal discourse in Multilingual and Multicultural Contexts: Arbitration Texts in Europe, Bern 2003.

BURR, I., Auslegung mehrsprachiger juristischer Texte: die Rolle des Italienischen in Urteilen des Schweizerischen Bundesgerichts, in D. VERONESI (ed.), Linguistica giuridica italiana e tedesca. Rechtslinguistik des Deutschen und Italienischen, Padova 2000, 179-194.

CARPI, A., Il francese giuridico, in B. POZZO – M. TIMOTEO, Europa e linguaggi giuridici, Milano 2008, 83-121.

CASCIONE, C. – MASI DORIA, C., Modelli di un multiculturalismo giuridico: il bilinguismo nel mondo antico. Diritto, prassi, insegnamento, Napoli 2013.

CASERTANO, L., Il linguaggio giuridico russo, in B. POZZO ‒ M. TIMOTEO, Europa e linguaggi giuridici, Milano 2008, 209-258.

CAVAGNOLI, S., La comunicazione giuridica interculturale: il testo come realizzazione di lingua, cultura e disciplina, in D. POLI (ed.), Lessicologia e metalinguaggio, Atti del Convegno Macerata 17-19 dicembre 2005, Roma 2007, 453-472.

CAVAGNOLI, S., Tradurre le costituzioni: problematicità del linguaggio giuridico nel confronto interlinguistico italiano e tedesco, in G. DOTOLI – A. N. AUGENTI – M. SELVAGGIO (ed.), Lexiculture et lexicographie européenne bilingue, Atti delle quinte giornate dei dizionari, Roma, 2-3 ottobre 2009, Fasano 2010, 213-224.

CAVAGNOLI, S., Verfassungsrechtliche Texte im Vergleich lexikalisch-terminologische Aspekte, unter besonderer Berücksichtigung der Grundrechte in Deutschland, Österreich und der Europäischen Union, in M. BRAMBILLA – J. GERDES – C. MESSINA (ed.), Diatopische Variation in der deutschen Rechtssprache, Berlin 2013, 223-252.

CAVAGNOLI, S., Riflessioni sul contributo della comunicazione specialistica alla traduzione giuridica, in «MediAzioni» 16 (2014) online.

CAVAGNOLI, S. – BALLARDINI, E., Traduire le droit, in D. LONDEI – M. CALLARI GALLI (ed.), Traduire les savoirs, Frankfurt-New York 2010, 245-248.

CAVAGNOLI, S. – IORIATTI FERRARI, E. (ed.), Tradurre il diritto: nozioni di diritto e di linguistica giuridica, Padova, 2009.

CHROMÀ, M., Legal translation and the Dictionary, Tübingen 2004.

COLUCCIA, S., La traduzione e il linguaggio legislativo: alcune considerazioni, in D. VERONESI (ed.), Linguistica giuridica italiana e tedesca. Rechtslinguistik des Deutschen und Italienischen, Padova 2000, 469-476.

FERRERI, S., Il linguaggio giuridico inglese, in B. POZZO – M. TIMOTEO, Europa e linguaggi giuridici, Milano 2008, 259-302.

FRAENKEL, C., Problematiche della traduzione giuridica in funzione del suo destinatario, in D. VERONESI (ed.), Linguistica giuridica italiana e tedesca. Rechtslinguistik des Deutschen und Italienischen, Padova 2000, 489-494.

GARZONE, G., Espressione della performatività nel testo giuridico: italiano e inglese a confronto, in G. AZZARO – M. ULRYCH (ed.), Anglistica e…: metodi e percorsi comparatistici nelle lingue, culture e letterature di origine europea, II, Transiti linguistici e culturali, Trieste 1999, 127-144.

GIUGGIOLI, P. F., Lingua e diritto: problemi e prospettive della traduzione, in G. GARZONE – F. SANTULLI (ed.), Il linguaggio giuridico. Prospettive interdisciplinari, Milano 2008, 171-177.

GIULIANI, S., La traduzione giuridica tra difficoltà e strumenti di ausilio, in D. VERONESI (ed.), Linguistica giuridica italiana e tedesca. Rechtslinguistik des Deutschen und Italienischen, Padova 2000, 477-487.

GOTTI, M. – WILLIAMS, C. (ed.), Legal discourse across Languages and Cultures, Bern 2010.

GOTTI, M., Globalizzazione e localizzazione nel discorso giuridico: il caso dell’arbitrato commerciale internazionale, in G. GARZONE – F. SANTULLI (ed.), Il linguaggio giuridico. Prospettive interdisciplinari, Milano 2008, 179-203.

GUALDO, R., Le parole della legge in prospettiva italiana ed europea, in A. CERRI (ed.) La ragionevolezza nella ricerca scientifica ed il suo ruolo specifico nel sapere giuridico. Atti del Convegno di Studi, Roma, 2-4 ottobre 2006. Tomo I. Ragione, ragionevolezza, esperienza (esperimento), dimensione oggettiva e storica della ricerca scientifica e giuridica, in «Nova Juris Interpretatio» Quaderno monografico 2006 (ma 2007), 155-170.

GUALDO, R., Come cambia l’italiano giuridico nella tempesta delle lingue, in F. BAMBI – B. POZZO (ed.), L’italiano giuridico che cambia, Atti del convegno 1 Ottobre 2010, Accademia della Crusca, Firenze 2011, 195-205.

JACOMETTI, V., Il linguaggio giuridico tedesco, in B. POZZO – M. TIMOTEO, Europa e linguaggi giuridici, Milano 2008 123-184.

KORZEN, I., Lingua, cognizione e due Costituzioni, in J. VISCONTI, Lingua e diritto. Livelli di analisi, Milano 2010, 163-202.

LEPORE, P., Esperienze di traduzione e d’interpretazione della lingua giuridica romana. ‘Polliceri rei publicae’: problemi definitori e terminologici, in «Diritto pubblico comparato ed europeo», 3 (2011) 786-806.

MAGRIS, M., I nominali incapsulatori nel diritto. Contributo alla competenza testuale e lessicale del traduttore, in D. VERONESI (ed.), Linguistica giuridica italiana e tedesca. Rechtslinguistik des Deutschen und Italienischen, Padova 2000, 459-468.

MEGALE, F., Teorie della traduzione giuridica, Napoli 2008.

NUSSBAUMER, M., Textlinguistik für die Gesetzgebung, in D. VERONESI (ed.), Linguistica giuridica italiana e tedesca. Rechtslinguistik des Deutschen und Italienischen, Padova 2000,195-208.

POZZO, B., Comparative Law and the New Frontiers of Legal Translation, in S. ŠARČEVIĆ (ed.), Language and culture in UE Law. Multidisciplinary Perspectives, London-New York 2015, 73-90.

REGA, L., Aspetti e problemi della traduzione delle formule di rito nell’ambito giuridico italo-tedesco, in D. VERONESI (ed.), Linguistica giuridica italiana e tedesca. Rechtslinguistik des Deutschen und Italienischen, Padova 2000, 449-457.

RUSSO, M. C., La memoria, il tempo e le suggestioni, ovvero i faux amis giuridici in interpretazione simultanea, in L. SCHENA (ed.), La lingua del diritto, difficoltà traduttive- applicazioni didattiche, Roma 1997, 163-189.

SACCO, R. (ed.), L’interprétation de textes juridiques rédigés en plus d’une langue, Torino-Paris 2001. SACCO, R., La traduzione giuridica (19922), in U. SCARPELLI ‒ P. DI LUCIA, Il linguaggio del diritto, Milano 1994, 475-490.

SACCO, R., Traduzione giuridica, in Digesto delle discipline privatistiche, Sezione Civile (updating), Torino 2000, 722-735.

SCARPA, F. – RILEY, A., La traduzione della sentenza di common law in italiano, in «Traduzione, società e cultura» 9 (1999), 1-91.

SCHENA, L., La traduzione e i linguaggi giuridici: le ricerche degli studiosi italiani, in L. SCHENA (ed.), La lingua del diritto, Roma 1997.

SNEL TRAMPUS, R. D., La traduzione e i linguaggi giuridici olandese e italiano. Aspetti e problemi, Trieste 1989.

SOFFRITTI, M., Condizioni restrittive nei codici tedeschi e italiani, in J. VISCONTI, Lingua e diritto. Livelli di analisi, Milano 2010, 203-230.

VISCONTI, J., I connettivi condizionali complessi in italiano e in inglese. Uno studio contrastivo, Alessandria 2000.

VISCONTI, J., La traduzione del testo giuridico: problemi e prospettive di ricerca, in «Terminologie et traduction» 2 (2000), 38-66.

VISCONTI, J., Un corpus comparativo di testi legali. Considerazioni di “linguistica forense”, in G. L. BECCARIA – C. MARELLO (ed.), La parola al testo. Scritto per Bice Mortara Garavelli, Alessandria 2002, 482-497.

VISCONTI, J., A modular approach to legal translation, in G. GREWENDORF – M. RATHERT (ed.), Formal Linguistics and Law, Berlin 2009, 151-178.

WOELK, J., Von “Advokat” bis “Zentraldirektion der Autonomien”. Die Südtiroler Rechtssprache aus Sicht eines “bundesdeutschen” Juristen, in D. VERONESI (ed.), Linguistica giuridica italiana e tedesca. Rechtslinguistik des Deutschen und Italienischen, Padova 2000, 209-222.

 

As to “Constitutive rules”

BELVEDERE, A., – GUASTINI, R., – ZATTI, P., – ZENO ZENCOVICH, V.,  Norme costitutive, in “Glossario”, in Trattato di Diritto Privato diretto da Giovanni Iudica e Paolo Zatti, Giuffrè, Milano, 1994.

ROVERSI, C.,:

  1. Costituire. Uno studio di ontologia giuridica. Torino: Giappichelli.
  2. Pragmatica delle regole costitutive. Bologna: Gedit.
  3. (with L. Burazin e K. E. Himma) Curatela di Law as an Artefact. Oxford: Oxford UniversityPress.
  1. (with G. Bongiovanni and G. Pino) Curatela di Che cosa è il diritto: ontologie e concezioni del giuridico. Torino: Giappichelli.
  2. (with E. Pattaro). Curatela di Legal Philosophy in the Twentieth Century: The Civil Law World. Tome 2: Main Orientations and Topics. Vol. 12.2 di A Treatise of Legal Philosophy and General Jurisprudence. Berlin: Springer.
  1. (with E. Pattaro). Curatela di Legal Philosophy in the Twentieth Century: The Civil Law World.Tome 1: Language Areas. Vol. 12.1 di A Treatise of Legal Philosophy and General Jurisprudence. Berlin: Springer.
  1. (with C. Faralli and S. Zullo). Curatela di Diritto e Neuroscienze. Special issue 2014 of Rivista di Filosofia del diritto.
  2. Constitutive Rules and the Internal Point of View. Argumenta: Journal of Analytic Philosophy.
  3. (with A. Borghi and L. Pasqui) Institutional Mimesis: An Experimental Study on the Grounding of Legal Concepts. Revus: Journal for Constitutional Theory and Philosophy of Law 32: online at DOI: 10.4000/revus.3865. Pubblicato anche in The Province of Jurisprudence Naturalized. Ed. J. Stelmach, B. Brożek, and Ł. Kurek, 130–153. Warsaw: Wolters Kluwer, 2017.
  4. How Social Institutions Can Imitate Nature. Topoi: An International Review of Philosophy 35: 327–38.
  5. Internality of Actions and of Points of View: Reply to Buekens, Bauwens, and Cossaer. Methode 6: 222–31.
  6. Acting within and Outside an Institution. Methode 6: 191–212.
  7. Conceptualizing Institutions. Phenomenology and the Cognitive Sciences 13 (1): 201–15.
  8. (with A. Borghi and L. Tummolini). A Marriage is an Artefact and not a Walk that We Take Together: An Experimental Study on the Categorization of Artefacts. Review of Philosophy and Psychology 4 (3): 527–42.
  9. Acceptance Is Not Enough, but Texts Alone Achieve Nothing: A Critique of Two Conceptions on Institutional Ontology. Rechtstheorie 43: 177-206.
  1. Mimetic Constitutive Rules. Phenomenology and Mind 2: 144-51.
  2. Sul mimetismo istituzionale. Sociologia del diritto 2: 35-50.
  3. Regolare e costituire. Sul carattere tecnico delle regole costitutive. Analisi e diritto: 269–93.
  4. Constitutive Rules in Context. Archiv für Rechts- und Sozialphilosophie 96: 223-38.
  5. Costituzione dell’antinomia. Riflessioni a margine di “Autoriferimento e antinomia nell’ordinamento giuridico”, di Stefano Colloca. Rivista internazionale di filosofia del diritto 87: 123-36.
  6. (with A. Rotolo). Norm-enactment and Performative Contradictions. Ratio Juris 22: 455-82.
  7. (with G. Bongiovanni, A. Rotolo and C. Valentini) The Structure of Social Practices and the Connection between Law and Morality. Ratio Juris 22: 1-23.
  8. Constitutionalism and Transcendental Arguments. Northern Ireland Legal Quarterly 59: 109–24.
  1. Costituzionalismo e Fondazionalismo Morale. Ragion Pratica 26: 265-295.

 

Volume contributions:

Id., 2018. On the Artifactual – and Natural – Character of Legal Institutions. In Law as an Artefact. Ed. Burazin, C. Roversi, and K. E. Himma. Oxford: Oxford University Press.

2018 Entry “Ontology of Law” in Encyclopedia of the Philosophy of Law and Social Philosophy. Ed. M. Sellers and S. Kirste. Berlin: Springer.

2017 (with A. Borghi and L. Pasqui) Institutional Mimesis: An Experimental Study on the Grounding of Legal Concepts. In The Province of Jurisprudence Naturalized. Ed. J. Stelmach, B. Brożek, and Ł. Kurek, 130–153. Warsaw: Wolters Kluwer, 2017. Published also in Revus: Journal for Constitutional Theory and Philosophy of Law 32: online at DOI: 10.4000/revus.3865.

2016 Norme giuridiche. In Argomenti di teoria del diritto, 14–44. Ed. by C. Faralli. Torino: Giappichelli.

2016 Intenzionalità collettiva e realtà del diritto. In Che cosa è il diritto: ontologie e concezioni del giuridico, 255–94. Ed. by G. Bongiovanni, G. Pino e C. Roversi. Torino: Giappichelli.

  1. Legal Metaphoric Artefacts. In The Emergence of Normative Orders, 215–80. Ed. by J. Stelmach, B. Brozek, L. Kurek. Kraków: Copernicus Center Press.
  2. Mimesi istituzionale come integrazione concettuale: una interpretazione del prestito semantico nel contesto giuridico. In Diritto e linguaggio: il prestito semantico tra le lingue naturali e i diritti vigenti in una prospettiva filosofico e informatico-giuridica, 109–27. A cura di P. Perri e S. Zorzetto. Pisa: ETS.
  3. Institutional Mimesis and Mimetic Normative Impossibility. In L’impossibilità normativa. Atti del Seminario internazionale Nomologics 2. Pavia, Collegio Golgi, 10-11 luglio 2013, 105–24. Ed. by P. Di Lucia and S. Colloca. Milano: LED.
  4. Sulla duplicità del costitutivo. In Ontologia e analisi del diritto: Scritti per Gaetano Carcaterra, 1251-95. A cura di D. Cananzi e R. Righi. Milano: Giuffré.
  5. (with A. Rotolo). Constitutive Rules and Coherence in Legal Argumentation: The Case of Extensive and Restrictive Interpretation. In Legal Argumentation Theory: Cross-disciplinary Perspectives, 163- Eds. C. Dahlmann and E. Feteris. Berlin: Springer.
  6. On Constitutive Normativity. In New Essays on the Normativity of Law, 281–309. Ed. by G. Pavlakos e S. Bertea. Oxford: Hart Publishing.
  1. Sulla funzione fondazionale della contraddizione performativa. In La contradizion che nol consente. Forme del sapere e valore del principio di non contraddizione, 223-251. Ed. by F. Puppo. Milano: Franco Angeli.
  1. (with A. Rotolo and G. Bongiovanni) Inferentialism, Social Practices, and the Connection between Law and Morality. In The Rules of Inference. Inferentialism in Law and Philosophy, 45-72. Eds. D. Canale e G. Tuzet. Milano: EGEA.
  2. Regole e autonomia. Sulla proposta universalista di George Pavlakos. In Diritti umani: trasformazioni e reazioni, 109-127. A cura di S. Vida. Bologna: Bononia University Press.
  3. Etiche del discorso: oggettività e fondazione. In Oggettività e morale. La riflessione etica del Novecento, 237–256. A cura di G. Bongiovanni. Milano: Bruno Mondadori Editore.
  4. (with G. Bongiovanni and A. Rotolo) The Claim to Correctness and Inferentialism: Alexy’s Theory of Practical Reason Reconsidered. In Law, Rights and Discourse. The Legal Philosophy of Robert Alexy, 275–299. Ed. by G. Pavlakos. Oxford: Hart Publishing, 2007.
  5. Legal Philosophical Library: (A) Passato (Documentazione on line), (B) Presente (Panorama generale), (C) Futuro (Una rete mondiale per la filosofia del diritto). In Vecchie e nuove sfide per la filosofia del diritto. Volume III: Multiculturalismo e bioetica, 245-50. Ed. by A. Artosi and A. Verza. Bologna: Gedit.
  6. Bibliografia degli scritti di e su Leon Duguit. In Leon Duguit. Le trasformazioni dello Stato. Antologia di scritti. A cura di A. Barbera, C. Faralli, M. Panarari. Torino: Giappichelli.
  7. Bibliografia degli scritti di e su John Rawls. In E. Pattaro, A. Verza, La realistica utopia della giustizia. Addio a John Rawls. Rivista internazionale di filosofia del diritto 80: 137–8.

[1]          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.

[2]         Cf. Herrmann/Bedorf (2019), Fóti/Kontos (2017), Gurely/Pfeifer (2016), Jung/Embree (2016), also Loidolt (2017).

[3]          To name a few outstanding and influential books of this wave, cf. Steinbock (1995), Zahavi (1999), Crowell (2001), Heinämaa (2003).

[4]          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).

[5]          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.

[6]          For a most recent introduction that develops these core ideas of phenomenology in more detail cf. Zahavi 2018.

[7]          All of the following examples and theories are described in more detail in my introduction to the phenomenology of law (Loidolt 2010).

[8]          Again, this is not specific to phenomenology but legal theory in general, as the numerous debates on the concept of law demonstrate.

[9]         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.

[10]        For a recent and typical example cf. Ferrari et al. (2018, 4) who simply refer to it as a “given” insight.

[11]        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.

[12]        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.

[13]        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.

[14]        This expression derives from the work of Ari Hirvonen.

[15]        Cf. Wilfrid Sellars, Empiricism and the Philosophy of Mind (Cambridge, MA: Harvard University Press, 1997).

[16]        John McDowell, Mind and World (Cambridge, MA: Harvard University Press, 1994).

[17]        Robert Brandom, Making it Explicit (Cambridge, MA: Harvard University Press, 1994).

[18]        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.

[19]        Edmund Husserl, Vorlesungen über Ethik und Wertlehre (1908–1914), Husserliana, vol. 28 (Dordrecht: Kluwer, 1988), 402–17.

[20]        Martin Heidegger, History of the Concept of Time. Prolegomena, trans. Theodore Kisiel, (Bloomington, IN: Indiana University Press, 1985), 70.

[21]        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.

[22]        Hubert Dreyfus, “Overcoming the Myth of the Mental,” Proceedings and Addresses of the American Philosophical Association 79, no. 2 (2005): 47–65.

[23]        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.

[24]        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.

[25]        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.

[26]        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).

[27]        See Hubert Dreyfus, Being-in-the-World (Cambridge, MA: MIT Press, 1991).

[28]        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).

[29]        Steven G. Crowell, Husserl, Heidegger, and the Space of Meaning (Evanston, IL: Northwestern University Press, 2001).

[30]        Martin Heidegger, Being and Time, trans. J. Macquarrie and E. Robinson (Oxford: Basil Blackwell, 1962), § 32.

[31]       Maurice Merleau-Ponty, Phenomenology of Perception, trans. C. Smith (London/New York: Routledge 2005).

[32]        Edmund Husserl, Logische Untersuchungen. Zweiter Teil. Untersuchungen zur Phänomenologie und Theorie der Erkenntnis, Husserliana, vol. 19/2 (The Hague: Nijhoff, 1984).

[33]        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).

[34]        Husserl, Erfahrung und Urteil, §§ 15-46.

[35]        Husserl, Zur Phänomenologie der Intersubjektivität III.

[36]        Edmund Husserl, Zur Phänomenologie der Intersubjektivität II. 1921–1928, Husserliana, vol. 14 (The Hague: Nijhoff, 1973), 223.

[37]        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.

[38]        Heidegger, Being and Time, §§ 54–60.

[39]        Scheler, Formalism in Ethics, 490.

[40]        Edmund Husserl, Grenzprobleme der Phänomenologie: Texte aus dem Nachlass (1908–1937) Husserliana, vol. 42 (New York: Springer, 2014), 194, 200, 358, 378.

[41]        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).

[42]          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).

[43]        Levinas, Ethics and Infinity, 95.

[44]        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.

[45]        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.

[46]        Jean-Paul Sartre, Being and Nothingness: An Essay in Phenomenological Ontology, trans. Hazel E. Barnes (New York: Washington Square Press, 1992).

[47]        Crowell, “Why is Ethics First Philosophy?,” 578.

[48]        Levinas, Totality and Infinity, 35, 67.

[49]        Levinas, Totality and Infinity, 199.

[50]        Crowell, “Why is Ethics First Philosophy?,” 578.

[51]        Levinas, Ethics and Infinity, 95.

[52]        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.

[53]        See Loidolt, Anspruch und Rechtfertigung.

[54]        Edmund Husserl, Ideen zu einer reinen Phänomenologie und phänomenologischen Philosophie. Erstes Buch, Husserliana, vol. 3/1 (The Hague: Nijhoff, 1976), §§ 136–45.

[55]        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).

[56]        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.

[57]        Edmund Husserl, Formale und transzendentale Logik: Versuch einer Kritik der logischen Vernunft, Husserliana, vol. 17 (:Nijhoff, 1974), 284, 288.

[58]        Edmund Husserl, “Fünf Aufsätze über Erneuerung,” in Aufsätze und Vorträge (1922–1937), Husserliana, vol. 27 (Dordrecht: Kluwer, 1989), 3–124.

[59]        See Husserl, Grenzprobleme der Phänomenologie.

[60]        Husserl, Grenzprobleme der Phänomenologie, 358.

[61]        Husserl, Grenzprobleme der Phänomenologie, 358.

[62]        Levinas, Otherwise than Being, 158.

[63]        Levinas, Otherwise than Being, 157.

[64]        Levinas, Otherwise than Being, 159.

[65]        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.

[66]        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.

[67]        I will call this Griffin/Hahn criteria given that it is deduced from some Griffin’s ideas about “practicalities”.

[68]        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’.

[69]        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).

[70]        I ask to assume this idea.

[71]        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.

[72]        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.

[73]        A solidarity driven individual is every time motivated to act in accordance with solidarity.

[74]        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).

[75]        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.

[76]        Methodological naturalism, on the other hand, is usually traced back to Quine’s proclamation that philosophy is continuous with science (Quine 1960, 209).

[77]        Putnam (2004, 70) is even lead to state that ontological naturalism is motivated “by a horror of the normative”.

[78]        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.

[79]        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.

[80]             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.  

[81]             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.

[82]        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.

[83]        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.

[84]        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.

[85]             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).

[86]        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.

[87]        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.

[88]        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”.

[89]        “All transcendental arguments make some claim about necessary enabling conditions.” (Bardon, Transcendental Arguments).

[90]        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).

[91]        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).

[92]        […] 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).

[93]         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.

[94]        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.

[95]        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.

[96]        This actually differs to the real life events, in which Franz offered to serve as a medic. His offer was ignored.

[97]        I will ignore any complications relating to differences between ‘ought’ and ‘should’ and treat them as roughly synonymous.

[98]        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.

[99]        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.

[100]       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).

[101]       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.

[102]       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.

[103]       J.-F. Lyotard, L’enthousiasme. La critique kantienne de l’histoire, Editions Galilée, Paris, 1986.

[104]       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.

[105]       I. Kant, Kritik der reinen Vernunft, (1781), in KGS, Vol. IV, p. 9.

[106]       J.-L. Nancy, Lapsus judicii, «Communications», 27 (1977), pp. 82-97.

[107]       Ibid., p. 92.

[108]       I. Kant, (1790), Kritik der Urteilskraft, , in KGS, Vol. 5, p. 179.

[109]       Ibidem.

[110]       J.-L. Nancy, Lapsus judicii, p. 90.

[111]       I. Kant, Kritik der reinen Vernunft, (1781), in KGS, Vol. IV, p. 542.

[112]       Ibid., p. 131.

[113]       J.-F. Lyotard, L’enthousiasme.

[114]       I. Kant, Idee zur einer allgemeinen Geschichte in weltbürgerlicher Absicht, (1784).

[115]       J.-L. Nancy, Lapsus judicii.

[116]       J.-F. Lyotard, L’enthousiasme.

[117]       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).

[118]       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.

[119]       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).

[120]       Some defences: (Lindeman, 2019; Smith, 1994; 2011; 2012; forthcoming). Some critical discussions: (Bukoski, 2016; Joyce, 2001; Sobel, 1999).

[121]       Moreover, these are likely to interplay with the moral reasons in interesting ways.

[122]       For more development of the notion of constitutive aims, see Katsafanas (2013, ch. 2; 2018) and Velleman (2000, introduction).

[123]       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.

[124]       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.

[125]       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).

[126]      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).

[127]      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.

[128]      Most importantly, she adds that one may reformulate the premise in terms of ‘true beliefs’ rather than ‘knowledge’ (Kosch, 2018, p. 160).

[129]      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.

[130]      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.

[131]       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.

[132]      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.

[133]       Though note that Smith (1994, ch. 5) takes ‘internal coherence’ to mean ‘full reflective equilibrium’.

[134]       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.

[135]      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.

[136]      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.

[137]       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.

[138]       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.

[139]      The debate between them is vexed (cf. e.g. Johnson, 1997; 1999; 2003; Tubert, 2016; Wiland, 2000; 2003). I prefer the advisor view.

[140]       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.

[141]        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.

[142]       (Internet Encyclopedia of Philosophy, http://www.iep.utm.edu/poli-obl/).

[143]       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.

[144]       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.

[145]       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.

[146]       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.

[147]       Dworkin (1986): 66.

[148]       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.

[149]       Sangiovanni (2008): 147; James (2012): 28-29.

[150]       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.

[151]       Sangiovanni (2008): 158.

[152]       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).

[153]       Sangiovanni (2008): 156.

[154]       Sangiovanni (2008): 157.

[155]       Think, for example, of the establishment of the European Union or successful movements of peaceful territorial secession.

[156]       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.

[157]       See the materials provided during a session of the Political Philosophy Research Seminar at the London School of Economics on February 28, 2018.

[158]       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.

[159]       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).

[160]       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.

[161]       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.

[162]       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).

[163]       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.

[164]       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.

[165]       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.

[166]       Dworkin, Ronald. (2011). Justice for Hedgehogs. Cambridge, MA, London, UK: The Belknap Press of Harvard University Press.

[167]       See Christiano, Thomas. (2008). The Constitution of Equality. Democratic Authority and Its Limits. Oxford: Oxford University Press.

[168]       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.

[169]       Gaus, Gerald E. (1996). Justificatory Liberalism. Oxford: Oxford University Press, p. 256.

[170]       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.

[171]       H.F. Pitkin, The Concept of Representation cit., p. 100.

[172]       M. Rubel, Karl Marx devant le bonapartisme, Mouton, Paris-La Haye 1960, p. 477.

[173]       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.

[174]       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).

[175]       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.

[176]       «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.

[177]       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.

[178]     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).

[179]       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.

[180]         See below § 3.1. in the present essay.

[181]       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.

[182]       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.

[183]       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.

[184]       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).

[185]       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.

[186]       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».

[187]        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.

[188]       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.

[189]       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.

[190]       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.

[191]       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.

[192]          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.

[193]          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”.

[194]       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).

[195]       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).

[196]       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.

The Absolutes that Failed, Creativity and Human Procreation

This is a challenging book and well worth spending the time and energy required to read it. To fully grasp the arguments made here one needs at the very least to read at Kant’s first critique (1998) and Hegel’s first major book (2018). But it would also be helpful to see a lot of movies, especially those by Hitchcock! There is much to admire and this book will stimulate much discussion. Some of the ideas are commonplace notions expressed in somewhat veiled language, but some of the central arguments are newly formulated paradoxes that attempt to get at elusive aspects of human lived experience and the political economy of nation-states in the Late Capitalist era.

The central paradox (in common sense terms) is that it is only by striving to get what we do not necessarily hope to accomplish that we become aware of who we really are, and the true “nature” of a human being is not a static personality but a continually shifting confrontation with ontic realities and obdurate blockages, especially in creation and procreation.

Much important information is contained in this book, but at times it almost feels like a primer for obscure trivia that might emerge as questions on the tv program “Jeopardy”. But for many the penetrating comments on Kant and Hegel will be worth the price of the book for anyone who is not already either a Kant scholar or a Hegel scholar. It just came out in hardcover but no doubt a paperback version will appear and that will make it even more affordable and more widely read. It is not a textbook however. It would not be useful in a lecture course although it might provoke discussion in an advanced graduate seminar. Key terms are never fully defined. It is not poetry or even verse drama, since there are too many declarative sentences to compare any of this to a work by T. S. Eliot (Žižek 2020: 419).

In “Murder in the Cathedral” Eliot argues that the highest form of “treason” is to do the right thing for the wrong reason. He was writing about the assassination of Archbishop Thomas Becket in Canterbury Cathedral in the twelfth century (1170 CE), during the reign of Henry II. Perhaps Søren Kierkegaard was a bit wiser in his arguments with himself about marriage and being a householder versus intellectual productivity. Maybe the idea that doing the right thing for the right reason is a higher form of wisdom than doing the wrong thing for the wrong reason, or even doing the right thing for the wrong reason. The fourth possibility would be doing the wrong thing for the right reason and that often happens when one has to choose a path that is neither good nor bad but nevertheless perhaps better, like assassinating Adolph Hitler, as Dietrich Bonhoeffer was willing to be complicit with despite the Ten Commandments.

One has to either believe in Tanakh (which is called the Old Testament or Hebrew Scriptures by the goyim who are not Jews) or believe in the so-called New Testament (which Ultra-Orthodox and Orthodox Jews definitely see as apocryphal) to believe in some kind of YHWH/Gott/God figure in order to follow a theological argument in the way that Eliot did.  (The notion of a “unified” Bible that can reconcile the Old and the New is something that Charles Sanders Peirce might deem a kind of “vague” popular belief that is not strictly logical but that helps people get through the day, more or less.)

Žižek, in his inimitable style, mixing close analytical arguments with popular culture examples, presents three Theorems, I, II, and III. He then recapitulates with a kind of overview of his central motif: negativity which is so “radical” that it cannot be “sublated”. His triad of argumentation attempts to persuade us that we can (I.) know the “fate of ontology in our era”, (II.) comprehend that it is “sexuality,” as a force of “negativity” disrupting every ontological “edifice”, that allows for our “contact with the Absolute”, and (III.) the convoluted “space” can be thought of in terms of three synecdoches: the Möbious strip, the cross-cap and the Klein bottle.

Like Durkheim’s argument about the need for prostitution to allow for bourgeois norms concerning monogamy, Žižek concludes with paradoxes: human reason requires madness as its ground; stable, committed monogamous relationships require notions of sexual passion that can also threaten the notion of bourgeois forms of romantic love between two individuals; and, the ethical aspects of “communal life” require military struggle. In other words, without madness, passion and war we cannot have liberal Enlightenment Reason, modern marriages or nation-states.

Much of the vocabulary is unnecessarily metaphorical and poetic. Part of his charm is his obfuscation of central points in numerous digressions. Sometimes the illustrations are as complex to decipher as the points they are supposed to illuminate. It all reminds me of the largest rough diamond discovered since 1905, the 1,758 carat basketball size Sowlo, discovered in April 2019 at the Karowe mine in Bostwana, and recently purchased by Louis Vuitton of the LVMH corporation in Paris.  Žižek’s rough diamond is not the biggest ever published. But Sewelo means “rare find” in the Setswana language and this most recent book by Žižek is indeed a rare find.

I found it at the Athenaeum book store in Amsterdam in November, 2019, when it had first come out. I was actually looking for a book by Spinoza in both 17th century and contemporary Dutch, but that book had been sold. Instead of a Dutch language version of Spinoza’s masterpiece I happened to find another deeply Metaphysical book. Žižek wants to “transpose” the “gap” between the “Absolute” and our phenomenal world. In a Kantian (or Neo-Kantian) vein, one could say he wants to focus on the distance between the phenomenal and the Ding-an-Sich. We can never fully know the Thing-in-itself, but we can know that we can never know.

Spinoza’s notion that we can somehow link up with the Absolute as that which is beyond the vicissitudes of everyday life and even politics in our comprehension of “Nature” is thus at odds with Žižek’s core Metaphysical assumption that we cannot coalesce the phenomenally ontic and the transcendentally ontological. For Žižek “man” is “united” with “Nature” precisely by an acceptance of the paradox that human beings cannot be entirely “natural’. One does not have to accept that axiom or many others, however, in order to enjoy this uncut diamond. Nor would a fully polished version of this gem necessarily be a lot better, except perhaps for classroom use with undergraduate students, graduate students, or those not philosophically inclined already.

Like a good novel of the sort written by Tolstoy or Somerset Maugham this book is a “good read”. It can also be compared to The Signature of All Things, a surprisingly good novel by Elizabeth Gilbert (2013) about Alfred Russell Wallace, the theory of natural selection, and related matters like the commercial production of quinine in the Indonesian archipelago. This Post-postmodernist “novel” has many plot twists and I kept being intrigued by all of the characters on the stage. Žižek has many of the characteristics of a good story teller. Many academic philosophers and social scientists have said they do not read any of Žižek’s books and find them a waste of time. I can see why. He is in no way a standard academic writer. He is often slightly obscure about centrally important points, but that is actually part of the overall argument. Some things are hard to pin down completely. There are “antinomies”.

Surprisingly, the antinomies in Kant’s Critique of Pure Reason can be compared to the antinomies of “pure sexuation”. Romantic love as a form of eros is also a form of epistemological truth and even Metaphysical Truth. There are major omissions in this book from the perspective of the social sciences. Although Žižek has profound things to say about Luther, he completely ignores Max Weber’s oeuvre and the notion that the Protestant rebellion against some Roman Catholic dogmas has an “association” (“elective affinity”) with the Geist of modern capitalism and the world capitalist system. It is as if Immanuel Wallerstein and other World Systems Theorists never existed.

He is keen on German-language philosophical work from Prussian and Weimar, etc., thinkers (that is often labeled “German Idealism” although much of it was composed before there was a Deutschland as a nation-state). But he does not elaborate on the Neo-Kantians or even the Neo-Hegelians very much (other than Marx and Lacan). The book looks at various ways of thinking about historical materialism and dialectical materialism. He interrogates many bits and pieces of Neo-Marxist thought. But some may have difficulty with the claim on the book jacket that this is an example of true rigor. In attempting to “re-invent” himself again, it is possible that Žižek may have gone a bit too far out in Left field to really catch all of the pop flies hit by a variety of Marxist batters. David Harvey does not enter the stage.

There is also not much attempt made by Žižek to discuss other views of Lacan’s central ideas. Felman (1987) provides a general view of aspects of Lacan’s notion that we human beings chase after “the truth” but nevertheless in running after it we are always bound to miss it and to some extent lie. Yet one could read Žižek as if he is saying he (and only he) has the correct interpretations of a number of different Metaphysical, ontological. Epistemological, axiological, teleological and Methodological problems. Yet anyone who has studied history, philosophy or the socio-cultural and political-economic Wissenschaften knows that there is almost always room for further dialogue.

If we focus on love of the mother and jealousy of the father in young boys, then we have one little bit of the big puzzle that psychoanalysis can sometimes get at in Freudian psychoanalysis, but then we have a host of other views, including those of the anthropologist Bronislaw Malinowski. A thorough-going comparative symbolic anthropology and comparative historical sociology is required to even begin to solve some of the societal questions that Žižek touches on. He does indicate an awareness of Levi-Strauss’ notion that one specific narrative of a  “myth” is not enough and that we have to look at the subtle nuances of the variations in which the story is told to even begin to capture some of the implicit “structures” in those ideas, but he nevertheless often treats a short summary of a movie (well known or not) as a kind of empirical “proof” or “smoking gun”. (The pattern is a bit like: “See: what I am saying is also depicted very well in movie Y, but not in movie X, which is flawed.”)

If we go from the very, very micro (nano seconds, DNA) to the very, very macro (a Universe with billions of galaxies) then human life on planet earth is perhaps about a kind of Neo-Darwinian belief in the centrality of procreation and the survival of the species. But at the level of social life for the last 50,000 years or so there is more to sexuality and having progeny and future generations. So perhaps “creativity” should be emphasized a bit more in the foreground. Newton famously did not have any children and yet his version of physical laws was a useful way of trying to understand certain aspects of life on planet earth and the movement of physical bodies in the then known solar system.

I cannot possibly cover all of the little puzzles in this book, nor fully present much less unravel the intriguing paradoxes. It would require a book of similar length to even begin to touch on all of the ideas found in 481 pages (i.e. 458 pages of text and end notes). But let me briefly discuss two aspects of this book that made me think very carefully about some of my fundamental assumptions.

One enlightening discussion is the notion that Kant’s antinomies and Lacan’s antinomies overlap. Whether or not Lacan’s explanation makes it clear that in essence Kant was dealing with “sexuation”, it is nevertheless provocative to think through the question. The second stimulating analysis, however, grabbed me even more. That is the comments on Luther and Christian theology. I found myself trying to explain the Roman Catholic dogmatic notion of “predestination” and Jean Calvin’s emphasis on the individual human being and “double predestination” to a group of male friends. They were not interested and it is highly likely they would not even consider picking up this book if it were available to them for free. (It will soon be in many libraries.) But Corollary 4 of Theorem IV blew me away.

It is I am sure coincidence and not Jungian synchronicity but 1517, 1857, 1917 and 1957 (Shanghai Commune) are all important dates and they are all interlinked. The Protestant Reformation sparked a break up of the Medieval Roman Catholic order in Western Europe and that then had an important impact on the quest to form a unified nation-state called Deutschland in the nineteenth century. If there had been a unified empire of all German-speaking people rather than a split between Deutschland and the Austro-Hungarian Empire then many things would have turned out differently, including a series of wars that eventually culminated in the long wars of 1914-1918 and 1932-1945. The Emperor Napoleon’s military leadership laid the groundwork for the events that inspired Hegel in 1807 to publish a very veiled revolutionary tract and that led to Lenin being allowed to return to the Finland Station. No one could have predicted that dialectic in 1517 when Luther made his 95 theses public.

Žižek immediately links Aristotle and Luther to today’s “consumer slavery” (without mentioning Weber’s oeuvre). True freedom (as opposed to nominal political freedom) and true slavery (as opposed to what we normally think of as slavery) may not be as straightforward as we usually assume. The master-slave dynamic is complex, as Hegel points out eloquently. It may be an illusion to think that God has chosen the elect and that those who are not among the elect cannot do anything about that, but it can be psychologically reassuring to the rich capitalist merchant in Amsterdam who owns stock in the first limited liability company in the world, the Vereenigde Oost-Indië Compagnie (VOC) and becomes so wealthy he can have a very big and wide house built on the Heerengracht. His good fortune is God’s will.

Human beings did not always sense a logical inconsistency between double predestination and free will because if an action succeeds (e.g. if the town of Leiden holds out against the enemy siege), then it seems as if that was predestined to happen. (It is partially a matter of type I and type II errors in our thinking; if we lose, we assume it was bad luck, but if we win, we assume we deserved it.) Free choice, Žižek (2020: 392) points out, is not a matter of choosing between strawberry cake or chocolate cake, but choosing to put all one’s chips on the table, to put “at stake one’s very existence”. There is no free choice in a death camp or maximum security prison other than the choice to die or to make the most of each day and still remain as honorable as is humanly possible. But in most of life’s circumstances (at least in societies where the average poor person can still obtain running water and sufficient food) there is some degree of freedom, however slight. (Solzhenitsyn wrote eloquently about that in One Day in the Life of Ivan Denosovitch.)

The biggest hole in this important book is lack of discussion of Charles Sanders Peirce’s Pragmaticism and triadic epistemology. If Peirce’s semiotic of Interpretant (i.e. Interpretive Networks) and Representant (i.e. Operationalized Representations) had been included, some of the less clear aspects of this rough diamond could have come to light. The Interpretant is never a solitary interpreter, but sometimes one feels that Žižek treats himself as the lone wolf who knows exactly how to travel the obscure trails and beat the pack. His use of “sign systems” is never quite clear since we do not know what his real intellectual allegiances come down to other than his somewhat idiosyncratic interpretations of Hegel and his allegiance to everything that Lacan wrote (or said).

I like this book, but precisely since I enjoy reading and even re-reading certain paragraphs. I sometimes wish I was reading Terry Pinkard’s biography of Hegel again (see Hegel 2018 for references), or Shoshana Felman’s (1987) take on Lacan again instead. I hope that Žižek will continue to go into the topics raised so well in this book and start to educate himself in the social sciences, especially the comparative historical sociology and political economy of Max Weber. His language skills will allow him to read Weber’s original German exposition of ideas and Weber’s letters in the MWGA volumes. The Gesamtausgabe is a valuable resource that Žižek has not tapped but that will deepen and broaden his intellectual quest. I myself have been struggling to work my way through the German edition and compare it to the English translation that has been in wide use since 1968. I look forward to reading more of Žižek’s stimulating work in the future and hope that this book will not only be widely read but also critiqued by scholars with far more knowledge of all the subjects that are touched on than any one person can muster. The Interpretive Network of Kant scholars will certainly want to comment on the way in which Žižek links Lacan to Kant and, perhaps, dialogue between psychoanalysts and Kant scholars will produce further refinement of the ideas concerning the noumenal and the phenomenal. Ditto for work on Hegel and for analysis of the impact of the Protestant Reformation.

References

Felman, Shoshana. 1987. Jacques Lacan and the Adventure of Insight: Psychoanalysis in Contemporary Culture. Cambridge, MA: Harvard University Press.

Hegel, Georg Wilhelm Friedrich. 2018. The Phenomenology of Spirit. Tr. and ed. Terry Pinkard. Cambridge, UK: Cambridge University Press. [First edition 1807.]

Israel, Jonathan I. 2019. The Enlightenment That Failed: Ideas, Revolution, and Democratic Defeat, 1748-1830. New York: Oxford University Press.

Kant, Immanuel. 1998. Critique of Pure Reason. Trs. and eds. Paul Guyer and Allen W. Wood. Cambridge, UK: Cambridge University Press. [First edition 1781, revised 1787.]

Solzhenitzyn, Alexandr. 1995. One Day in the Life of Ivan Denisovich. New York: Random House.

Weber, Max. 1968. Economy and Society. Trs. and Eds. Gunther Roth and Claus Wittich. Berkeley, CA: University of California Press.

Weber, Max. Max Weber-Gesamtausgabe. (MWGA). Band I/25: Wirtschaft und Gesellschat. Gesamtregister (Comprehensive Index) Bearbeiteit von (eds.) Edith Hanke und Christoph Morlok.  Tübingen: Mohr Siebeck. [This is the comprehensive index needed to read the six volumes written in drafts over ten years. It is regarded as a chronological improvement over Weber 1968, but only available in German.]

War through (International) Law? Some Neo-rhetoric of “Othering” in the European “De jure belli ac pacis” Context

To my grandparents and to my uncles, veterans;

to the victims of terrorism, in memoriam.

«Whoever rejects the theory of the bellum justum denies the legal nature of international law. War is permitted as a sanction only as a reaction against a wrong suffered, against a definite conduct of states, determined by international law, and permitted only when directed against the state responsible for this conduct. Any war that does not present this character is a violation of international law. This is the substance of the bellum iustum. War is a mass murder, the greatest misfortune of our culture. The elimination of war is a problem of international politics and the most important instrument of international politics is international law ».

(H. Kelsen, Peace through Law)

SECTION  I

The problem of peace and the roads to war: an historical investigation on the use of international force

 

«Si vis pacem, para bellum; si vis pacem, para iustitiam».

«There are several Ways of living, some better than others, and every one may chuse what he pleases of all those Sorts».

(H. Grotius, De jure belli ac pacis)

 

«The state of peace is not a state of nature, which is rather a state of war, so must the state of peace is established».

(I. Kant, Toward Perpetual Peace: A Philosophical Sketch)

 

«The war is nothing but the continuation of politics by other means».

(K. von Clausewitz, Vom Kriege)

 

«One should never tire of emphasizing that the logical unity of the system is the fundamental axiom of any normative knowledge. In the sphere of normative consideration, a real objective conflict of norms is unthinkable. The idea of law, in spite of everything, seems still to be stronger than an ideology of power».

(H. Kelsen, Das Problem der Souveränität)

 

«War is the only hygiene in the world».

(F.T. Marinetti, The Manifesto of Futurism)

 

«Hungry children, victims tortured by their oppressors, defenseless elders considered an odious burden by their children; and all the loneliness, poverty, and pain made mockery of what human life should have been. I strongly wish to alleviate the evils of the world, but I can not do it, and I suffer from it».

(B. Russell, Autobiography)

 

 

  1. The project of Max Weber’s nationalstaat

Nowdays Europe faces troubling times. Constructive suggestions – such as the federal finality that Joschka Fischer sought to promote in his legendary lecture at the Humboldt University in Berlin[1] more than ten years ago – no longer sound credible. They now stand in contrast with the endless and frenzied crisis management that has placed its stamp of rigid austerity policy on the “periphery” of what was to evolve into an “ever closer Union.” The rule of law and the project of “integration through law” are at stake, concepts which characterized and connected European law scholarship transnationally[2] in the formative phase of the integration project and for a good while thereafter. Europe is far from hosting «the most competitive, knowledge-based economy in the world» as the Lisbon Council proclaimed in the year 2000[3]; its economy stands at the core of the present crisis. European constitutionalism, which dominated academic discussions for a decade and thoroughly neglected the inherently political dimensions of the “Economic,” has been silenced[4].

            Paradoxically, the same holds true for Germany’s Ordo-liberalism and its project of an “economic constitution.” According to this school of thought, the legitimacy of the European project rested upon the legal ordering of the economy[5], the economic freedoms of the EEC Treaty — a system of undistorted competition — and an economic policy «complying with justiciable criteria.»[6] These stood as the potential cornerstones of this order, to orient the integration process in a way by which the European polity would be legitimized by — and reduced to — an economic ordo whose validity did not depend upon democratic credentials, let alone upon the transformation of Europe into a fully-fledged federal state[7].

            This idea guided and accompanied Ordo-liberalism’s path to Europe. Nobody championed or developed it more consistently than Ernst-Joachim Mestmäcker. One of his seminal essays explained that the pressure to harmonize, stemming from integration, would become stronger[8]. A Common Monetary Policy would mean “ultimately giving up” the opportunity to maintain far-reaching differences between the economic orders[9].

            The Community for which the original ordo-liberal concepts were conceived — and to which Mestmäcker referred — looks nothing less than idyllic from today’s perspective. It was both smaller and more homogeneous than the current Union. For this reason alone, the incorporation of the project of integration through law, particularly its commitments to a legal ordering of economic policy (Ordnungspolitik), no longer seem viable. By now, individuals see the symptoms of a deep crisis and the necessity for developing new perspectives for the European project appears irrefutable. One cannot reverse the course of history, but one can analyze and try to understand how and why the configuration of the relationship between law and politics in the integration project has contributed to the “integration failure” which we are now witnessing in the current crisis. This essay proceeds in five steps.

            The first step, taken somewhat in haste, concerns the Weberian notion of the nation-state and its pursuit of power through economic strength. The second involves the taming of the self-same nation-state by law and the de-coupling of the European economic constitution from the labor and social constitutions of the nation-states, which presents itself to the one — Ordo-liberal — side as nothing but a logical implication of the establishment of a European economic order, while other political quarters perceive this disconnection as a threat to the legacy of the welfare state. This is followed by an analysis of the various dimensions of the integration project’s problems, referring to Karl Polanyi’s economic sociology. The next section elaborates on these remarks, dealing with the establishment and the crisis of Europe’s EMU and including an overview of Europe’s new “crisis law” and its assessment by the German Constitutional Court (FCC) and the Court of Justice of the European Union (CJEU). The dramatic nature of our current situation will then be illustrated by means of a fictitious debate between Carl Schmitt and Jürgen Habermas. In the analysis of this debate, Carl Schmitt’s theorems will prove to be frighteningly realistic: “But where danger threatens, that which saves from it also grows.”[10]What kind of regime did Europe impose on itself, and what does this mean for European citizenship? These challenges will be addressed in the Epilogue, which will also tentatively consider an alternative vision to both the frightening as well as the possibly merely voluntarist scenarios on the future of the European integration project.

            The steps towards European integration after World War II document how we overcame our bellicose past. At the same time, the designers of the project wanted to rein in the economic militancy of the nation-state. Max Weber[11] formulated his perception of that nation-state in his 1895 inaugural Freiburg address as follows: “Our successors will not hold us responsible before history for the kind of economic organization we hand over to them, but rather for the amount of elbow-room we conquer for them in the world and leave behind us”. Processes of economic development are in the final analysis also power struggles, and the ultimate and decisive interests at whose service economic policy must place itself are the interests of national power, where these interests are in question. The science of political economy is a political science. It is a servant of politics, not the day-to-day politics of the individuals and classes who happen to be ruling at a particular time, but the lasting power-political interests of the nation. And for us the national state is not, as some people believe, an indeterminate entity raised higher and higher into the clouds in proportion as one clothes its nature in mystical darkness, but the temporal power-organization of the nation, and in this national state the ultimate standard of value for economic policy is “reason of state”. There is a strange misinterpretation of this view current to the effect that we advocate “state assistance” instead of “self-help”: state regulation of economic life instead of the free play of economic forces. We do not. Rather we wish under this slogan of “reason of state” to raise the demand that for questions of German economic policy – including the question of whether, and how far, the state should intervene in economic life, and when it should rather untie the economic forces of the nation and tear down the barriers in the way of their free development—the ultimate and decisive voice should be that of the economic and political interests of our nation’s power, and the vehicle of that power, the German national state[12].

            «It was not the agreement of many audience members with the following remarks, but their dissent that prompted me to publish them», Weber wrote in the preliminary notes to the publication of his lecture[13]. This text has weathered these concerns well. He developed a profoundly thought-through in terms of economic theory, sociology, and history, and – despite all its jingoistic pronouncements – also stands as a critique of the lack of political capacity of the German political class[14]. The martial tone of Weber’s lecture clearly spells out a target of the European project as people understood it later, particularly in Freiburg when that city had become the intellectual Heimat of the Ordo-liberal School.

 

  1. A European constellation: the Carl Schitt’s Großraum theory

Europe’s values crisis is not an expression of a faulty way of dealing with prevailing law, but an expression of the imperfection of Europe’s legal design – including its configuration of the law-politics relationship. A rare, albeit superficial, consensus has emerged regarding this critical evaluation. Beyond this consensus, the crisis has generated challenges for all disciplines engaged in European studies. This is why it would be presumptuous to venture legal and constitutional policy hypotheses here based upon some definite assessment as to the causes of the crisis, as well as forecasts regarding its further course, intending to provide a blueprint for Europe’s future constitutional architecture. The following deliberations will examine the peculiar position of Carl Schmitt[15].

            In view of the European dimension of the crisis of constitutional (and financial) values, it seems best to begin with the theory of the Großraum, a notion which was explicitly, albeit not exclusively designed to capture the European constellation, Carl Schmitt selected a memorable occasion to present it: From 29 March 1939 to 1 April 1939, still half a year before the war against Poland, but after the Anschluss of Austria and the invasion of Bohemia and Moravia (the Sudetenland) at the Reichsgruppe Hochschullehrer des Nationalsozialistischen Rechtswahrer-Bundes (Reich section of professors in the National Socialist Association of Lawyers) convened in Kiel. Also during this time period, the Institute for Politics und International Law was celebrating its 25th anniversary. Thus, Carl Schmitt gave his lecture entitled “Völkerrechtliche Großraumordnung mit Interventionsverbot für raumfremde Mächte. Ein Beitrag zum Reichsbegriff im Völkerrecht” (The Großraum Order of International Law with a Ban on Intervention for Spatially Foreign Powers: A Contribution to the Concept of Reich in International Law) amidst this momentous setting.[16]

            The core argument of Schmitt’s key note was that the jus publicum europaeum, which had made the sovereign state its central concept, was no longer in line with the de facto spatial order of Europe.[17] Following the model of the Monroe Doctrine, a specific “space” (the Raum) had to become the conceptual basis for international law, with the Reich constituting the order of that space. To quote directly: “The new ordering concept for a new international law is our concept of the Reich, with its Volk-based, völkisch Großraum order.” But what does this mean for the internal order of the Großraum? Schmitt refers to the elasticity of the concept of international law, which could also cover the inter-völkische relations within a Großraum as well. What the Großraum requires and constitutes is an “order that excludes the possibility of intervention on the part of spatially foreign powers and whose guarantor and guardian is a nation that shows itself to be up to this task.”[18]

            This claim to leadership was, in Schmitt’s words, “situational,”[19] and the overall notion of the Großraum, as he underlined in discussions with his Nazi contemporaries, rivals, and critics, was a “concrete, historical and politically contemporary concept” (konkreter geschichtlich-politischer Gegenwartsbegriff).[20] But in so doing, he emphasized elements which he claimed to be valid long-term. The obviousness of the Großraum concept, he argued, resulted from transformations dominated by technical, industrial, and economic developments. Thus, Schmitt outlined, albeit somewhat apocryphally, an erosion of the territorial state as the harbinger of the necessity to adapt international law to the factual re-structuring of international relations and the replacement of classical international law by norm systems which, today, would affirmatively be called “governance structures,” or, distanced and critically, “managerialism.”[21] He underlined two phenomena in particular, namely, the economic interdependencies beyond state frontiers (Großraumwirtschaft), and the specific dynamics of technology-driven developments (“technicity” [Technizität]).[22] Schmitt had already published on both topics prior to 1933.[23]

            Schmitt was silent on the internal “order” of the Großraum during the years of war. In the 1941 edition of the Großraum, he remained sibylline[24] and only published his famous “Nomos der Erde im Völkerrecht des Jus Publicum Europaeum” in 1950, which he had written prior to 1945.[25] But the topic continued to haunt him.[26] When considering Schmitt’s theories within the context of the financial crisis, not only must his diagnoses of the loss of nation states’ sovereignty and the de-legalization of their relationships be taken seriously. His observations on the increase of executive power – broadly supported by comparative legal research – must also be taken into account.[27] But here, above all, we are concerned with his theorems of the state of emergency[28] and the (commissarial) dictatorship.[29] Ernst-Wolfgang Böckenförde was the first to take up the term “state of emergency,”[30] and others followed. “The European Stability Mechanism,” writes Ulrich Hufeld, has “the format of a constitution-breaching measure along the lines of Carl Schmitt’s conceptualization of contrasts,”[31] and adds a quotation from Schmitt’s 1928 Constitutional Theory: Such breakout entities are, by nature, measures, not norms. Their necessity arises from the particular circumstances of an individual case, an unexpected abnormal situation. If, in the interest of the whole, such renegade entities are formed, the superiority of the existential over mere normativity is apparent. Whoever authorised such acts and is capable of acting, is sovereign.[32]

            In a tone of urgency, Frank Schorkopf calls the calamity that we are dealing with a “crisis without an alternative”;[33] a constellation in which the actors, including the governments and the executive branches, “merely have power within the existing conditions, but not over them.”[34] Anna-Bettina Kaiser arrives at her position following a precise reconstruction of the debates around Article 48(2) of the Weimar Constitution.[35] The handling of this provision and the extensive interpretation of Article 122(2) TFEU today are in her view equally dubious and can be placed at the same level.[36] Furthermore, the rules laid down in the Six-Pack, the Two-Pack, and the TSCG must not be sugar-coated.[37] Yet, is the academic community fulfilling its responsibility by merely accepting that the provisions of the EMU are dysfunctional, and abstracting from the dilemma of the political in the EU?

            We cannot escape from Carl Schmitt’s shadow that easily. The concept of “commissarial dictatorship” is most plausible to except to. After all, in the current management of the crisis, the actors are not alone. They must not only come to an arrangement at a supranational level, but also between the levels of the multilevel governance system, as well as internationally—the dictator has been replaced by technicity. But how comforting is this? The fact remains that the new form of European government collides with democratically-legitimized institutions and processes. Thus, it is anything but comforting that the new European practice coincides with ideas of prominent American constitutionalists who draw upon Carl Schmitt in order to turn away from James Madison and argue the case for a plebiscitary democracy in place of a representative one; theorists who advocate delegating political power to the executive in case of need.[38] And are we, perhaps, exchanging Scylla for Charybdis? Anyone who observes the busy activities of the Commission’s Services—their tireless production of additional lists of criteria for ever-more policy fields, in ever-more regions—will remember Carl Schmitt’s words about the “total,” but by no means “strong” state, which he linked with a polemic against all technocratic efforts that believe they can decide “all issues according to technical and economic expert knowledge following supposedly purely substantive, purely technical and purely economic considerations.”[39] Ironically, Schmitt’s late essay,[40] quoted above, provides a situational, theoretical interpretation of this. Reading Hans Peter Ipsen’s 1,000-page tome on European law, Schmitt confessed, he was “stricken with deep sorrow,” for the following reason: the approach of European law, which “legalizes” a technocratic-functional administration of European associations, has no concept of a “legitimate political” project.[41] Therefore, one cannot speak of the rule of law (Rechtsstaatlichkeit), much less of democracy. Now, one must take into account what Rechtsstaatlichkeit[42] and democracy meant to Schmitt. In Constitutional Theory, he writes that democracy “is a state form that is consistent with the principle of identity (e.g., of the concretely existing people identified with itself as a political unit)”—and consequently, it cannot apply to an ethnically diverse Europe.[43]  

 

  1. Neo-Kantian Epistemological Assumptions

In his essay Das Problem der Souveränität und die Theorie des Völkerrechts, written during the First World War and published in 1920, Kelsen tackled for the first time the theme of the nature and functions of the international legal system[44]. With undoubted originality and impressive theoretical development, he puts forward a `monist’ view in opposition to the theories of the primacy of state law and of the pluralism on a parity basis of sources of law. For Kelsen there exists only one legal system, which includes in its single normative hierarchy both domestic and international law.

            The starting point is radical, in that the premises Kelsen takes have their roots in general epistemology. Kelsen adopts the theory of knowledge and the philosophy of science developed by the Marburg school, deducing from them, following the teaching of Rudolf Stammler, the central assumptions of his theory of law. Hermann Cohen’s neo-Kantian Platonism instilled in him an almost obsessive methodological concern: to eliminate from the science of law all subjective elements and make it a unitary, objective and therefore `pure’ knowledge[45]. The pureness of knowledge – as Cohen had maintained and Kelsen repeated – is nothing other than its `unity’ according to the model of the deductive sciences. Logico-mathematical knowledge, by contrast with the empirical disciplines that study natural phenomena, is autonomous in object and method[46]. It is, moreover, transcendental knowledge in the Kantian sense[47], i.e., `original’ and valid in itself, independently of any reference whatever to content, reality or praxis[48].

            The unity and objectivity of the logico-mathematical method requires the internal unification of each cognitive sphere, including that of the `ought’. For Cohen and for Kelsen, the universe of the `ought’ – including the realms of law and the state – is inconceivable without reference to the logical idea of `unity’: here too `the unity of the viewpoint of knowledge imperatively requires a monist conception’[49]. In this case the unity is represented by mankind as a whole, and it is only here that, according to Kant’s teaching, the individual finds meaning and fulfilment.

            The unitary nature of the legal universe (and the primacy within it of the international law) is for Kelsen an `epistemological hypothesis’ which corresponds to a very general option supporting the objectivity of knowledge: it presupposes a `universal objective reason’ and an `objectivist world view’. In this epistemology of the unity and objectivity of the science of law, the dimension of state subjectivity, and even the individual and his or her fundamental rights – in a paradoxical equation of the individualism of states with the individualism of individuals – are subordinated to the objectivity of the universal legal system. For Kelsen “the subjects who know and will are really only ephemeral and temporary phenomenal forms, the spirits of which are co-ordinated and related only insofar as they are integral parts of the universal world spirit, the knowing reason of which is merely an emanation of the supreme universal reason. For objectivism the individual is a mere appearance. And the legal theory that takes the objectivity of law to its ultimate consequences and therefore affirms the primacy of international law, must not only remove the idea that individual state subjects are definitive and supreme entities, but ultimately must, to be consistent, reduce the `physical’ person too – the `natural’ legal subject – to its substrate, that is, to an element of the objective legal system”[50].

            On the contrary, maintains Kelsen, the subjectivism and cognitive relativism that inspire the thesis of the primacy of state sovereignty lead not only to a logic of `pure power’ in international relations, but, still more, to the denial of law and of the possibility of legal science[51].

            Kelsen admits that the acceptance or rejection of these epistemological hypotheses are, in principle, the object of an evaluative choice involving alternative world views[52]. Yet he nonetheless maintains that the primacy of international law is imposed by logical and conceptual (‘normological’) requirements internal to the scientific, that is unitary and objective, interpretation of law: it is a hypothesis that `must be accepted if one intends to interpret social relations as legal relations.’[53] Indeed, maintains Kelsen, ‘the binding nature of law and its entire existence lie in the objectivity of its validity.’[54]

            The `monist’ hypothesis of the unity of law and the primacy of the international legal system is inseparable from a series of collateral assumptions that Kelsen’s construction has recourse to. It is in any case typical of Kelsen’s style of thought to develop systematically all possible implications of the theory’s central hypotheses. In particular, it is clear that Kelsen cannot maintain the primacy of international law without committing himself to maintaining its juridical nature too. He must accordingly take a stance against the argument, going back to John Austin, which attributes to the international normative system the nature of a sort of `positive morality’, rather than that of a legal system in a strict sense. As we know, doubts as to the legal nature of the international normative[55] system have mostly been raised by pointing to the lack at the international level of sanctioning institutions or instruments, or to the decentralized, fragmentary and ineffectual nature of those which do exist[56].

 

  1. On “world citizenship” and the “League”: a Kelsen utopia?

In Peace through Law Kelsen, as is well known, sets forth a complete legal-institutional strategy to pursue a stable and universal peace among nations[57]. Kelsen borrows from Kant both the ideal of perpetual peace and the federalist model, as well as the idea of a Weltbürgerrecht, a `world citizenship’ which includes as its subjects all the members of the human species[58]. According to Kelsen, the royal road to achieving the aim of peace is the union of all states (or the greatest possible number of them) in a world federal state[59]. But to be a realist, this objective must be viewed as the outcome of a long historical process. It is only through numerous intermediate stages and on the basis of a conscious ideological, political and educational commitment that it is possible to achieve an attenuation of national feelings and a levelling out of cultural differences between the various countries[60]. Although it is Utopian to think of the goal of the world state as immediately possibleit is nonetheless plausible[61], Kelsen declares, to create, once the war is over, a ‘Permanent League for the Maintenance of Peace’ whose members will be, first and foremost, the victor powers, including the Soviet Union[62].

            Kelsen elaborates the project for the `League’ by incorporating some substantial innovations in the old League of Nations model. These give a central role to judicial functions by comparison with those of government or legislation. The failure of the League of Nations, Kelsen maintains, is due to the very fact that the centre of its operations was not the Court of Justice but the Council, that is, a sort of international government. This was a `fatal error of design’ since the most serious lacuna in international law is the very absence of a judicial authority. Failing this higher authority, every state has de facto competence to decide who is in breach of international law and to make recourse to war or reprisals against those presumed in breach of international law[63].

            According to Kelsen, there was no reason to fear that the Great Powers, once the Covenant was signed, would not respect the Court’s decisions or assist it in enforcing its sentences by means of military force. Nor did it make much sense to maintain that this would amount to ratifying at legal level their political and military hegemony. In fact, the Great Powers would make themselves the guarantors of international law: they would be ‘the power behind the law’[64]. By accepting the rules of the Covenant and ensuring their observation the Great Powers would commit themselves to exercising their inevitable superiority within the conventions of international law rather than in arbitrary fashion[65].

4.1. Judicial Cosmopolitanism?

One might even surmise that Kelsen’s cosmopolitanism[66], taken together with the proposal of the medieval doctrine of the iustum bellum and the idea of a court of justice with the power to resolve military disputes between states, evokes the image of the respublica christiana, with at its centre the undisputed spiritual and legal auctoritas of the Roman Papacy. But apart from this anachronistic aspect, Kelsen’s judicial pacifism seems to date to have been challenged in its very aspiration to present itself as an innovative and at the same time realist proposal. The bitterness with which Kelsen first denounced the partiality of the Nuremberg Tribunal[67] and then criticized the excessive political and military power granted by the United Nations Charter to the Security Council[68] is a pointer to the impracticability of Kelsen’s judicial pacifism, to its illusory nature. Kelsen’s disappointment is the proof that his distinction between `judicial’ pacifism and `governmental’ pacifism is of little significance.

            On the other hand, it is clear that an international court, in order to secure enforcement of its own verdicts without recourse to the military force of the Great Powers (or even against them), would have to have extremely great power at hand: it would itself have to be a (nuclear) superpower or the judicial organ of a (nuclear) superpower, endowed with overwhelming force by comparison with the other Great Powers. The consequences this would have in terms of impartiality of its verdicts are easy to conjecture. It need scarcely be added that the concentration of political and military power in the hands of an international institution – whether governmental or judicial – amounts to concentration in it of the ius ad bellum that has been taken away from nation-states. Any sort of `police action’ carried out by a supranational authority holding the world monopoly of force is inevitably destined to take on the more classic outlines of war, as since proved by the 1991 Gulf War[69].

 

  1. Hart and his concept of international law: «Is international law really law?»

The question «Is international law really law?» has not proved troublesome, according to H. L. A. Hart, simply because «a trivial question about the meaning of words has been mistaken for a serious question about the nature of things.»[70] His examination of this problem in The Concept of Law deserves a greater measure of critical scrutiny than it has received, partly because of the increasing recognition that his book is destined to become a milestone in jurisprudence and partly because of the way in which he reaches a generally acceptable conclusion. Unlike his predecessor Austin’s claim that international law was merely positive morality, Hart defends international law in Bentham’s terms as “sufficiently analogous” to municipal law.[71] It is important to see in what way this analogy is viewed by Professor Hart in order to determine whether the reasoning he offers is too high a price to pay for accepting a neo-positivist into the circle of those who hold that international law is really law.

            Hart’s argument deals with two principal sources of doubt arising from the claim that international law is somehow less real than municipal law. The first is easily dealt with: how international law can be binding upon sovereign states. At an early stage in his book Hart disclaims the usefulness of “sovereignty” in describing any legal system. When he turns to international law, he adds the further argument that “sovereign” means no more than “independent.” Thus we must look to the rules of international law to see just how far this independence extends. The second doubt is how international law can, in the absence of organized international sanctions, be binding in the same sense as ordinary municipal law. Hart argues that, although in any legal system obligation is generally congruent with a likelihood of sanctions for disobedience, there is no necessary relation between the two. Nor are sanctions “necessary” to a legal system, for while they may be used in municipal law against an expected minority of malefactors without too much risk, in international law sanctions may lead to widespread and self-defeating international strife.

Whatever differences exist do not overcome the fact that international law is thought and spoken of as obligatory, that it gives rise to claims and admissions couched in legal terms, and that when rules of international law are disregarded, states attempt to show that the facts are not as claimed (or, it may be added, that the rules do not apply to the alleged facts), rather than that the rules are not binding. Thus, summarized, Hart’s position appears to be one with which few would substantially disagree. Nevertheless each of his arguments entails a line of reasoning which may lead to undesirable implications for international law. In his first line of argument, Hart finds “sovereignty” unnecessary to neo-positivism because there is a more illuminating tool of analysis which he labels the “rule of recognition.” By this he means the rule or rules in a society which confer power upon lawmakers. This rule makes it possible to identify sources of law. The rule of recognition is more fundamental than the notion of sovereignty since it tells who the sovereign is and how his power can be transferred. Yet in his consideration of international law, Professor Hart argues that there is no unifying rule of recognition specifying “sources” of law and providing general criteria for the identification of its rules. This argument runs parallel to his view that there is no proper sense of “sovereignty” in international law other than “independence.”[72] But if international law lacks a rule of recognition, how can it still be termed ” law”? Hart’s answer appears to be that international law is still primitive: it is a set of rules, not a system. Yet it is no less “law” since there is a great range of principles, concepts and methods which are common to both municipal and international law and which make a lawyer’s technique freely transferable from one to the other. Perhaps, Hart adds, if multilateral treaties were to be generally recognized as binding upon states that are not parties to them, such treaties would become legislative enactments and thus international law would be provided with a distinctive criterion of validity for its rules.

            The advent of such a rule of recognition would lay to rest the skeptic’s last doubts that international law is really law. This Hart’s argument is disturbing in that international law becomes law at the price of conceding that it is a primitive kind of law lacking in “rules of recognition.” His conclusion will certainly be challenged by those who agree with his analysis of rules of recognition but consider that they are more fundamental than he does. More significantly, Hart’s argument may suggest that international law is basically incomplete and thus deserving of less respect on the part of states than ordinary municipal law. A closer look at the idea of rules of recognition is therefore in order. When does the rule of recognition arise which transforms a primitive society into a modern legal system? How does it arise? Once it has arisen, can it be revoked? Hart does not appear to give a satisfactory answer to these questions, which are analogous to questions one might ask about a theory of sovereignty. Further, how does the rule of recognition cope with the possibility of an abuse of authority on the part of the lawmakers? Hart’s answer to this appears to be that the authority conferred by the rule cannot be withdrawn even if the rule is abused. But if this is true, it would not take long for a legislator to change or manipulate the rules of recognition at whim.

            Additionally, as Fuller points out, Hart seems saddled with the necessity of excluding from a rule of recognition any express or tacit provision to the effect that the authority it confers can be withdrawn for abuses of it, such a provision might seem to impose a duty upon the legislator—an idea contrary to Hart’s definition of the rule of recognition as solely a power-conferring rule which cannot give rise to duties.[73] The difficulty with the idea of a rule of recognition is that it mistakenly tries to account for sociological fact (how and why people obey laws) by the use of legal concepts which necessarily arise after such fact. This point is easily seen in international law. The practice of states which gives rise to rules of international law often reflects shared attitudes about what international law ought to be. States are aware that their actions have legal consequences – that their conduct is the raw material of custom and precedent – within a system in which it is generally accepted that their actions ought to have legal consequences. Thus there is an interrelation between law-formation and law-interpretation; the “rules of recognition” of international law, as it were, are a product of the practice of states. Why this has come about is a matter of sociology, but there is no doubt that it does occur. Hart’s own example of multilateral treaties provides a good illustration. His argument is that when multilateral treaties become generally accepted as binding upon nonparties, they will become legislative enactments and thus international law will finally have a rule of recognition. But this argument betrays a longing for a legislative system similar to that in municipal law despite Hart’s insistence that international law is “law.”

            How can it be assumed that the extension of rules contained in multilateral conventions to non-parties will necessarily become a sort of “legislation?” These treaties might, on the contrary, be viewed as evidence of custom to be weighed in the balance with other evidence of usage becoming customary obligation. The treaties might be given weight according to the number of states which have ratified each convention, an idea wholly at variance with municipal legislation. But quite apart from these objections, it is apparent that if treaties become a form of international legislation, they will have done so by the operation of the practice of states hardening into law. State practice may accept a form of international legislation or it may not, but the entire legal system is not fundamentally altered thereby. Assigning international legislative consequences to multilateral conventions may be a step in the direction of simplicity, but surely cannot be held to be the  revolution which transforms primitive international law into a complex system of modern law. In his second argument that international law is “binding” without organized sanctions, Hart uses the same reasoning to read out of international law any necessary connection with morality per se or with morality induced by sanctions. In addition he uses the conclusion that international law is really law to exclude the classification of international law as “morality” in any normal sense of that word.

            Although neither of these arguments separating law and morality appears logically compelled by his main arguments on international law, it is nevertheless significant that Hart has made them. They tie in with his general thesis that rules of law are often morally indifferent but are no less rules of law. While it is true that at least some rules of law in most legal systems may be morally indifferent, to emphasize this too much is to underestimate the contribution of natural law to international law or to misinterpret some of the rules deriving from natural law. Thus  Hart rejects the views of Brierly and Lauterpacht that moral obligation is a foundation of international law. Yet to reject this learning may be to discard much of the structure that is common to international law and to classic theories of natural law. Two brief examples may be cited: first, it is possible to argue that the prohibition against unjust wars found in Grotius and many of his contemporaries has persisted as a rule which requires by its own terms a moral or natural-law interpretation. Even in the era of the United Nations there may still be a just war fought solely for self-defense against an armed attack or fought by the international community acting through appropriate United Nations organs against a state which has caused a threat to the peace. If in years to come the idea of threat to the peace is enlarged to include such actions as violation of an arms control treaty or even severe violations of human rights law, natural law and morality will have to be taken into account in determining whether the international community is authorized to take action. Second, the rule of pacta sunt servanda cannot always be satisfactorily applied without reference to its moral purpose.  Hart suggests that a state may adhere to an onerous treaty because of a long-term interest in preserving confidence in treaties or because it considers that, having received the benefits of a treaty, it is likewise obliged to accept its present burdens. Yet such motivation – which may indeed explain the not quite analogous municipal law contract – is no help in assessing a claim of clausula rebus sic stantibus.

            But attention to the substance of morality inherent in a prior promise may, in some cases where the circumstances have radically changed, indicate that the prior promise is no longer substantively applicable and that it would be unjust to insist upon strict compliance[74]. One might tentatively conclude that the attempt to apply a positivist Occam’s razor to morality or natural law in international law may lead to considerable distortion in its interpretation.

 

  1. How war has changed nowadays: the human factor

The just war tradition is comprised of jus ad bellum, which governs the decision to go to war, and jus in bello, which regulates the conduct of war. This has been the standard used by moral philosophers to examine the use of force in an international context[75]. There exist significant disagreements within the just war tradition regarding the correct interpretations of just war theory, for example, revisionist/traditionalist debate and so on. To avoid unnecessary confusion, my paper assumes a defence of the collective approach in war has already been given, i.e. the traditionalist reading of the tradition.

            This allows me to make two claims which are relevant to this structure. First, the ethics of war is, indeed, sui generis and, contra revisionists, cannot be governed by any accounts of individual defensive ethics. Second, if war and personal self-defence are governed by different set of rules then it’s possible, and I shall argue necessary, that we further elaborate on the ethics of war. To this end, I explore a conceptually different form of force, or more specifically the way in which military force is used, in modern warfare and assess whether this has any implications for the Just War paradigm[76]. I want to talk about ‘force short of war’/vis in this paper; what it is and whether, and how, it should be considered a distinct category from acts of war.

            Wars are fought by people so it’s only logical that our discussion begins with the agents of war. There are various ways in which this issue can be unpackedbut I will limit the scope of this exchange to combatants and non-combatants only.

            The risk to civilians in modern warfare is heightened by the rise of non-state actors in that non-state actors make it harder to distinguish legitimate targets from illegitimate ones. To be clear, the law of armed conflict requires combatants to wear proper uniform and insignia to separate them from civilians[77]. Non-state actors, however, do not respect this. They even ignore it and use it to their own advantage. They mix in with the civilian population, dress as civilians, make no effort to distinguish themselves from others. This creates confusion for the warring parties to separate legitimate targets from civilians[78]. In response to this, the U.S. has defined combatant s as ‘all military-age males in the strike zone, unless there is explicit intelligence posthumously proving them innocent ‘[79].

            This definition of combatant is clearly troubling for several reasons. First, this presumes any targets who fit the profile are legitimate targets. But any males over the age of 16 in Yemen cannot be automatically assumed to be combatants, any more than any males over 16 year-old in Detroit are in the U.S. military. Second, this undermines the principle of discrimination. The job of soldiers on the field is to carefully distinguish combatants from non-combatants before they engage and only combatants can then be targeted. This definition of combatant runs the danger of turningthe discrimination assessment from one of ex ante to one of ex post.

            Furthermore, there is the question of how to classify these non-state actors. In other words, are non-state actors merely criminals, albeit their crimes are much worse than robbing a bank or even homicide? Or are they (illegal) combatants? If they are criminals, they should be treated accordingly. They should be arrested, given a fair trial and, if guilty, given an appropriate punishment. This is how criminals ought to be treated in a just society. This view is referred to as the ‘policing paradigm’. Kenneth Roth, a U.S. attorney and executive director of “Human Rights Watch”, is a supporter of this view. He argues that the so-called War on Terror is not a real war and, accordingly, the U.S. criminal law should be sufficient for dealing with terrorists (Roth, quoted in Wedgwood 2004)[80]. On the contrary, others such as Ruth Wedgwood (2004) oppose this view[81]. The main argument is that the policing paradigm cannot be applied to most, if not all, terrorists since these individuals operate in areas where the rule of law is often non-existent because the hosting states are either unable or unwilling to apply it. If this is the case, non-state actors should be regarded as combatants and, therefore, subject to the in bello rules[82].

            Thus, the reality of modern conflict is such that on both an epistemic and conceptual levels it is becoming increasingly difficult to identify legitimate targets. It is epistemic because non-state actors readily eschew the legal norms[83] that would help distinguishing combatants from non-combatants. It is conceptual because the majority of non-state actors fall in the moral grey zone between criminality and warring belligerent. As the human element of war changes, the weapons used to fight also undergoes some transformations. This will be the focus just of the next lines.

 

  1. The weapons

Drones[84] proliferated under President Obama. The “Bureau of Investigative Journalism” reports that only 11 drone strikes in Pakistan were authorised under President Bush (2014). This rose to 413 drone strikes under President Obama[85]. The appeal of drones can, in part, be explained by their ability to be deployed for highly targeted and localised missions. This was a point raised by the ex-CIA chief John Brennan when he stated that drones can better adhere to the principles of discrimination and proportionality[86]. Brennan’s point is drones can be used in ways that minimise the risks to non-combatants due to their use of guided ordnance and ability to loiter over the intended targets for a long time before striking.

            This notion, however, is disputable. Brunstetter and Braun, recently[87], contend that while it may be true a turn to drones has reduced the number of civilian casualties, new weapons also make the use of force easier for states with the technology to deploy such weapons. The reason for this is there is virtually no risk to the drone operators. As such, dronesenable governments to decrease the risk to their own soldiers. So, although each individual drone strike poses less damage to civilians than conventional weapons[88], states, overall, are tempted to enact more drone strikes, meaning the overall risk posed to civilians may be higher in the long run. In addition, the simplicity with which drones can be deployed runs the danger of political leaders foregoing other non-violent measures to adopt a policy of preventive strike. This results in the blurring roles of the principles of just cause and last resort.

            To quickly summarise, the implications for warfare with the changes in the belligerents and the weapons of war are crucial in the sense that they have transformed modern warfare. The battlefield is undefined with no clearly designated zones where combat takes place and ones where civilians can find refuge. New weapons also make the use of force more accessible, particularly to strong states. This invites questions regarding the applicability of jus ad bellum and jus in bello vis-à-vis modern warfare.

            Michael Walzer believes that the reality of modern warfare warrants a change in the way in which we morally think about war[89]. He proposes we should think of vis actions as very different from actual warfare, even though they both involve the use of force. Walzer derived this by looking at the containment regime in Iraq from 1991 to the Second Gulf War[90]. The containment had three elements: 1) the first was an embargo intended to prevent the importation of arms; 2) the second was an inspection system organised by the U.N. to block the domestic development of weapons of mass destruction; 3) the third was the establishment of no-fly zones in the northern and southern parts of the country[91]. I give a definition of vis actions in the next lines and then proceed to separate vis from bellum.

 

  1. Definition and Vis/Bellum distinction

“Vis actions” can be defined as: the use of kinetic military force to achieve a clearly defined objective. Vis actions are often targeted and localised in nature. Both states and/or non-state actors can deploy forces that can be considered as vis.

            The use of military force can be precise partly because the overall aim of the operation is clearly defined at the outset[92]. For example, Operation Neptune Spear  to kill Osama bin Laden was executed with a team of 23 U.S. Navy SEALs[93] was over in just under forty minutes. Operation Deliberate Force– NATO first air campaign conducted over Bosnia in 1995 lasted two weeks and achieved its goal of protecting U.N. – designated safe zones for refugees in Bosnia. In practice, this means that vis can avoid the danger of mission creep – when initial military successes pave the way for more ambitious goals to be achieved.

            I think this is an advantage of vis, namely it is, in theory at least, easy to contain and, with due cautions, have a low probability of escalation. Vis, Walzer argues, lack the unpredictability and often catastrophic consequences of war. They are, therefore, easier to justify than,  say,  a full scale attack (2006).

            I acknowledge here that the definition of vis that I just provided is quite vague. The reason is that vis, it seems to me, is comprised of a range of different scenarios from quick hostage rescue to lengthier humanitarian intervention. As such, a more concrete and rigid definition of vim is difficult to formulate.

            So how do vis actions differ to bellum actions? I propose three criteria: 1) degree of force; 2) time of operation and 3) space.

            A feature in the limited literature on vis is that vis is defined negatively, that is in the absence of war. Vis actions are discerned from bellum by categorising the latter as ‘full scale’, ‘full blown’, ‘large scale’. These qualifiers seem to suggest that the distinction between the two is really ‘large scale conflicts’ – wars – and ‘not-so-large-scale conflicts’ – vis. I certainly think that the quantum of force plays a role in the vis/bellum distinction. It is intuitively implausible to think that Operation Neptune Spears is of the same spectrum as the Korean War. This is, as Walzer argues, a logical deduction which one arrives at by comparing the two cases. But, as Enemark[94] convincingly puts, ‘for vis to be meaningfully distinct from bellum, such that jus ad vim can have practical purchase as a moral framework when jus ad bellum cannot, there has to be more to the story than quantum of force alone’. To bolster the distinction, I propose two other criteria: 1) time of operation and 2) space.

            The Clausewitzian conception of war[95] as not an end in itself but a means to a political end explicitly implies that war is fought to bring about an end. This idea is also implicated in the just war tradition in the doctrine of jus post bellum which deals with the just termination of war and facilitates the transition of society back to a peaceful order. In short, war ends when one side achieves victory over the other or, in some instances, stalemate on the battlefield leads to the termination of hostile activities on all sides, for example, the Korean War. War is, as Coady observes, political violence[96]. Fighting is never for fighting sake but, as instead, a resort to violence by one side to continue the pursuit of a political objective that cannot be, or wouldn’t be, settled through other peaceful means. It is then possible to contemplate of war in a temporal sense. Of course, war is not always fought continuously. There are moments during the course of fighting when hostilities would cease, either through a mutual agreement (e.g. ceasefire) or for some other tactical reasons. The point remains, however, that war has a beginning phase and an ending phase. The use of force is contained within this timeframe.

            When vis is assessed temporally, it appears that similar temporal component is difficult to locate. In fact, the ending phase of certain vis actions cannot be pinpointed. Take, for example, the U.S. drone programme. The programme is nearing its 15th year in running with no end date in sight. The programme seems to have been broadened, as is evident by the increase of drone strikes year-on-year. A possible practical explanation for this is the concept of winning has changed. Here, the changing nature of threat, non-state actors in this case, means that the struggle is now perpetual. The drone programme is part of the ongoing War on Terror waged by the U.S. and allies after the 9/11 attack[97]. However, a question which is asked as often as it is being avoided is: what does a victory in this War on Terror look like[98]? Indeed, when al-Qaeda and Taliban were showing signs of retreat around the year 2010, ISIL cropped up and controlled vast territory in both Iraq and Syria. Now that ISIL is losing the vast majority of its strongholds like Mosul and Raqqa, the Taliban is resurging in Afghanistan (some estimate they control or contest as much as 45% of Afghanistan), al-Qaeda is gaining ground in Yemen, Libya and pockets inside Syria and Iraq. Not to mention smaller, less well-known but equally effective and dangerous groups such as al-Nusra Front. Consequently, viscan commit the users to an open-ended timeline which force is used.

            I will now turn to discuss the space in which vis takes place, or the theatre of vis and how it differs from war. The Meriam-Webster dictionary defines battlefield as ‘a place where a battle is fought or an area of conflict’. This separates areas where active conflict takes place from where it does not. This was true for the Second World War with Europe, the Pacific islands, Northern China as the battlefields. This was also true for the Vietnam War with actions took place mainly in South Vietnam. Traditional wars are confined within a fixed physical space, usually within the borders of the country where the fighting takes place. By contrast, vis actions are not bound by the physical constraint of border. Vis is used in countries which are not in direct conflict with the user. The reason for this is that more often than not, those at the receiving end, namely non-state actors, are not bound by any specific geographical constraints. They move freely between countries, which is in part due to the lack of the rule of law in areas where they operate.

            We can see the unrestricted battlefield of force short of war in Operation Neptune Spear. In legal terms, the U.S. is not at war with Pakistan. That is to say that the U.S. has no legal basis upon which it can justify using force within Pakistani sovereignty. In reality, however, there have been numerous occasions in which the U.S. appears to use deadly force to pursue individuals or group of individuals within the border of Pakistan. These attacks are often tacitly approved by the Pakistani government. Operation Neptune Spear, however, was not one such occasion. The Pakistani government was kept in the dark throughout the entire time which the operation happened and was only informed of it ex post facto.

            Operation Neptune Spear is not the only case in which the battlefield of vis is difficult to pinpoint. It exemplifies the operational logic behind vis, namely that its battle space is rather seamless. This resembles what Noam Lubell[99] refers to as ‘the global battlefield whereby the entire planet is subject to the application of the laws of armed conflict and the consequences that flow from it’. The point here is that recent inventions of weapons such as drones and cruise missles etc. and the increased role of non-state actors in modern day conflicts have essentially made it a reality that force can be used anywhere at any time.

 

  1. Terrorism: supreme emergency or distributive justice?

Terrorism may be the scourge of the modern age[100], but for those who commit such acts of violence, terrorism is justified. This essay will examine the two best known arguments that attempt to provide a moral justification for terrorism, that of the supreme emergency (SE) case of Michael Walzer, and the distributive justice (DJ) case of Virginia Held. After examining and ultimately rejecting both arguments, I will propose a third case, original and ancient, that both theoretically and historically provides an argument that terrorism can be morally justifiable under specific and narrow conditions.

            As such, I will analyze the following assumptions and positions:

  1. Terrorism is almost always, though as shall be argued not absolutely always, immoral and wrong.
  2. There exists an objective right-wrong morality. The moral position I write from is that of natural law and human rights and the tradition that such innate natural morality is universal.
  3. Violence is not always immoral and can be of what I below call “moral necessity”, as in cases of self-defense and just war.

Between political and legal usage, and other linguistic and cultural framing issues, I agree that, “The struggle to define terrorism is…as hard as the struggle against terrorism itself”[101]. The aforementioned positions collectively oppose the claim that one man’s terrorist is another’s freedom fighter, as this ventures into moral relativism[102]. This essay agrees with Held[103] that, “terrorism is political violence that usually involves sudden attacks to spread fear to a wider group than those attacked, often by targeting civilians,” and that some attacks against military personnel, such as the 9/11 attack on the Pentagon, qualifies as terrorism. Furthermore, I follow international law that “state qua state” violence is not terrorism, as this would constitute an act of war ad bellum or a war crime in bellum, but that there can be state-sponsored terrorism[104]. Similarly, state violence against its own citizens is a violation of human rights, murder, and genocide, but also is not terrorism.

I will not engage with the consequentialist argument beyond its relevance to the SE and DJ cases, as the rationale for rejecting consequentialism specific to those cases can be applied to the consequentialist argument more generally. The only addition I will make is that the argument that terrorism can be morally justified requires a definite understanding of morality, and like many I find little basis for morality only using mathematical ratios. However, consequentialism is a relevant and important factor for decisions, especially in matters of killing. Proportionality and reasonable chance of success are necessary criteria. Therefore, the final assumed position of the argument is a reserved belief in the Doctrine of Double Effect (DDE).

As these positions are popularly known and well argued for elsewhere, I will not spend further time in their defense. Perhaps the best known argument that terrorism can be morally justified, and certainly the most intuitive, is the SE case. That the killing of innocents is still immoral is not denied, but the severe necessity of the act justifies this immorality. A common term for those attracted to this line of thinking is “threshold deontologists”[105]. Walzer[106] presents the SE argument, though not in the context of terrorism, in Just and Unjust Wars under the recurring subtitle, “The Nature of Necessity”, which encapsulates the essence of the argument and its criteria, that of imminence of danger and the danger’s supreme nature. Walzer makes it clear that both must apply, and throughout his discussion he readily acknowledges the argument’s risks and his own hesitations in presenting what could easily become a slippery slope. Walzer’s discussion limits the subject of the danger to a political entity, as his examples are about past interstate wars. John Rawls’[107] argument in favor of the SE justification for terror bombing has the same limitations. Nevertheless, it seems no stretch of the SE logic to expand the possible subjects to include “situations where there is a clear danger to a group’s very existence or the mass extermination of noncombatants”[108]. This expanded definition describes genocide, the imminent threat of which Walzer says would justify humanitarian intervention and the supersession of the principle of sovereignty. If “acts that shock the moral conscience of mankind”[109] are enough to break the ultimate political principle of the current world order, are such acts or the imminent threat of such acts enough to justify terrorist activity?

There are several problems with this line of thought beyond the slippery slope risk. First, for the historical genocides that the SE argument may have applied to, it is unlikely that terrorism would have altered the result, except to further provoke the killers[110]. Second, the argument’s reliance on consequentialist reasoning weakens it, for the SE case seems to be justified only if the terrorism successfully turns back the danger, which is unknowable in advance. Another issue is the problem of last resort and legitimate authority that expose the argument to exploitation: for substate groups, who has the power to make such a decision, and which groups qualify? Also, nothing in the SE argument limits its application to moral actors. If Hitler had possessed the atomic bomb in 1945, Walzer’s argument seems to allow its usage to prevent the imminent destruction of the Nazi Regime. Finally, the SE argument goes against the just war tradition, directly contravening both the secular rights tradition and the Christian moral tradition’s prohibition against the intentional shedding of innocent blood[111]. Yet to deny the SE argument would seem to force an endangered group to accept extermination, and therein lies the rub. To break moral principles to survive in order to later institute a government upon those same principles is hypocritical, but, to be intentionally crass, upheld moral principles aren’t worth a damn if everyone is dead.

This paradox is the essence of Walzer’s[112] argument, that, “communities in emergencies have different and larger prerogatives”, and is what Nagel has called a moral blind alley, where both actions are immoral. Coady correctly points out that the SE case exhibits a pro-state bias, specifically concerning legitimate authority. As my definition of terrorism excludes states, this would eliminate the possibility of the SE argument being used to morally justify terrorism. However, this overly complicates the question, which Walzer and other proponents of the SE justification have already implicitly answered. The SE justification is one of necessity trumping morality, not necessity as a form of morality. It does not deny the immorality of intentionally killing innocents. Therefore, an immoral rationale cannot logically be used to turn an immoral act of terrorism into a moral one.

The other attempt to morally justify terrorism is Held’s deontological argument for distributive justice (DJ), which is fundamentally different from the SE case because for Held the killing of innocents is justified[113]. This justification rests on the fairness principle for victims of oppressed groups that are denied rights, where although using terrorism would violate the rights of even more victims, over time the oppressed group will experience a reduction in the violation of their own rights. Rekha Nath[114] describes the DJ reasoning in her rebuttal of Held’s argument as “a choice between two morally bad outcomes”, and that Held “finds it better to equalize rights violations” than to allow the status quo to persist. This idea of equalizing violations strikes me as a bit childish, like the kid who breaks his sister’s toy because if he can’t have one then neither should she. It may be cliche, but life is not fair and attempts to make it fair, especially through indiscriminate killing, sounds outrageously unrealistic, even if it is theoretically intriguing. Admittedly, Held offers three criteria for DJ terrorism: “it aims for a fairer distribution of rights violations is a last-resort measure, and is likely to bring about greater rights enjoyment for all”[115], but these criteria share many problems with the SE argument. By removing the legitimate authority requirement, Held discards a key just war tenet, heightens the difficulty of deciding what constitutes a last-resort, and, as even Miller[116], a supporter, acknowledges, seriously limits the ability of governments to condemn any terrorist attack. Her inclusion of a probable success standard fails to avoid the consequentialist pitfall of not fully knowing what will happen and is severely undermined by her vagueness on how long DJ terrorism can be perpetrated to achieve the desired rights equality. There is no break point beyond which terrorism should stop because it does not produce the desired results, opening the door for a cascade of escalating violence between the oppressors and victims. Another issue is her expanding the list of violated rights that justify terrorism from human or natural rights to legal rights. This implies that if a group is legally barred from the cinema, bombing the cinema might be a justified response. Finally, her focus on fairness ignores other principles of deontology such as desert and responsibility, thereby creating issues of guilt by association. As Coady[117] points out, babies of the oppressors are viable targets under Held’s argument. Even without the other serious issues, this intentional escalation of violence to include the most innocent is a bridge too far. Held’s argument removes too many discriminatory norms for her brand of terrorism to ever be deemed moral.

One possibility for morally justified terrorism has been overlooked, and is summed up by the immortal words of Brutus, Sic semper tyrannis. Tyrannicide, unlike the reactive and responsive SE and DJ cases, is often proactive and preventive, and has long been considered a moral necessity. Tyrannicide alone is assassination, but a conceivable variant of Caesar’s assassination offers a narrow possibility for moral terrorism. Despite the surprising failure of its ultimate goal, the murder of Caesar to save the Roman Republic has long stood as a rallying cry of democracy and freedom, as tyranny has been understood as a violation of divine or natural law since ancient times around the world, from Confucius to Cicero[118] to Grotius[119]. The strict criteria in Aquinas’s defense of tyrannicide mirror his criteria for just war and the DDE[120].

The scenario I imagine is identical to the historical case except in one respect: Caesar has a large family of powerful civilians that has enabled his rise. In this scenario, which could exist both to prevent or stop tyranny, Caesar is physically unreachable. However, his family and political sycophants are not. So, the Senators kill a family member or a military or political sycophant who has enabled Caesar’s tyranny, and threaten to kill daily until Caesar submits to exile or trial. This is undoubtedly terrorism, albeit a highly focused version. If possible, innocent family members would be spared, but in some circumstances under the DDE innocent life may be taken as collateral. For example and to mirror the classic bombing raid DDE scenario, if during a meeting of guilty collaborators Brutus burns the house and the hostess dies too, this is acceptable. It is terrorism as spiritual sacrifice and violence as moral necessity, with the onus on the good citizen to act.

The question of determining true tyranny plus the problems of legitimate authority and last-resort from the former arguments all apply, but Caesar’s death shows that they are surmountable. The Senate constituted legitimate authority, lacked better options, and had a reasonable chance of success, a just cause, noble intent, and used proportional violence. So long as the terrorism was sufficiently focused, for tyrannicide, terrorism can be morally justified. Realistically, modern terrorism is clearly immoral. Terrorism may almost never be morally justifiable, however, history does prove that moral terrorism is technically possible.

 

 

SECTION II

From conflict to democratic difference in post-conflict societies: strangers at your door!

«I didn’t kill a man, I killed the King, I killed a principle».

(G. Bresci)

 

«An individual has not started living until he can rise above the narrow confines of his individualistic concerns to the broader concerns of all humanity».

(M. L. King)

 

«Abandon all hope of totality, future as a past, you who enter the world of liquid modernity».

(Z. Bauman,  Liquid modernity)

 

«Imagine there’s no countries. It isn’t hard to do. Nothing to kill or die for, and no religion too. Imagine all the people living life in peace».

(J. Lennon, Imagine)

 

«All we are saying is give peace a chance».

(J. Lennon, Give peace a chance)

 

«Give me love, give me love. Give me peace on earth».

(G. Harrison, Give me love)

 

 

  1. Introduction

In post-conflict societies, consociational democracy is often implemented under the auspices of liberal peacebuilding. It is from this perspective that the academic debate[121] between consociationalism and liberalism also gains practical importance, especially because neither liberal peacebuilding nor consociational democracy has remained uncontested[122]. Indeed, as the current research aims to show, on the one hand, in post-conflict societies approaches to peacebuilding want to avoid translating wartime narratives on collective identities into long-lasting political structures. As top-down approaches, both consociationalism and liberalism as approaches in peacebuilding commonly accept the narratives on identities that are pre-determined by the previous (or even ongoing) conflict. On the other hand, to achieve the ending of violent conflict, it is often necessary to somehow accommodate the claims of the warring parties. Secular assumptions on the public and the private that influence the conceptualisation of comprehensive worldviews, however, prevent the political process from becoming inclusive towards all the outlooks that may matter to the citizens of a given society.

            The final aim is not to offer a new theoretical alternative, but rather to point to ways in which the current impasse in the theoretical debate between consociationalism and liberalism might be overcome. These two terms, in fact, can be considered opposite types of approaches: while consociationalists claim to be realistic, liberal theory is often ideal theory.

            Although various forms of both integration and accommodation can be distinguished, in this section, I will abstract from the differences within both approaches in presenting the debate between them and treat liberalism and consociationalism as ideal types of integration and accommodation. In the second part of this section, I will introduce the debate on the public/private divide and show how it can be employed to understand the differences and similarities between consociationalism and liberalism, before; then I discuss some critiques to the public/private divide that pertain particularly to liberal secularism, showing how the implications of these critiques are also apparent in consociational theory and practice. In the final section the implications of the altered understanding of the relationship between liberalism and consociationalism will be discussed.

            On influential liberal views the freedom of religion is thought to be sufficiently warranted through a focus on the rights and freedoms of the individual. Other theories, as well as democratic practice in various societies severely divided along religious lines, have emphasized the necessity of special attention for the rights of religious groups or minorities in addition to the rights and freedoms of the individual[123].

            Two main approaches towards democracy in severely segmented societies can be discerned: accommodation and integration. While consociationalism is a prominent example of accommodation, liberalism is often associated with integration. According to both liberalism and consociationalism, (religious) pluralism poses a danger to the democratic state, because continuing disagreement leads to instable government. Both integration and accommodation are strategies to reach agreement; the one, accommodation, through explicitly finding a modus vivendi that serves all groups, the other, liberalism, through finding the common ground or consensus between groups and basing cooperation on this overlapping consensus.

            Especially in post-conflict societies dealing with difference democratically is crucial. Within the peacebuilding discourse, both consociationalism and liberalism are important and influential views[124]. Yet neither remains uncontested. Accommodation is often associated with essentialist or even primordial conceptions of group identities, whereas integrationists want to emphasize their fluid and malleable character[125]. Liberal democratic approaches of integration are often argued to be unable to deal with the grave oppositions in segmented societies, while various forms of accommodation are thought to entrench collective religious identities in illiberal ways[126].

   As liberals assert that consociational democracy is illiberal, and consociationalists argue that liberal strategies are unrealistic, the debate between liberals and consociationalists, seems to have reached a stalemate[127]. In this section, I aim to shed a new light on the debate between consociationalism and liberalism by examining the way in which both employ the public/private divide. I will argue that both consociationalists and liberals assume the public/private divide in their approaches to pluralism. This not only causes a bias in both theories towards certain types of difference, say national or ethno-national difference, but also prevents the emergence of truly inclusive approaches towards difference from this debate. Consociationalism and liberalism differ in the way they deal with difference and concerning the types of difference they with, religious difference or difference otherwise centered around certain ‘conceptions of the good life’ and national or ethno-national difference[128].

            This section offers also an analysis of the issue of religious identities in democratic societies through a discussion of the debate between two strands of theory associated with respectively integration and accomodation: liberalism and consociationalism. Firstly, I will focus on the understanding of religious identity underpinning liberalism and consociationalism. From this perspective it will become clear that instead of being strictly antagonistic positions, liberalism and consociationalism share an understanding of the nature of religious identities, albeit disagreeing on their role in political processes. This understanding of religious identities is premised upon secular assumptions concerning the nature of religion an religious identity. On this view, religious identity is mostly considered to be individual, private and irrational.

            Secondly, this section will draw on contributions in religious and secular studies as well as recent debates about intersectionality to emphasize the complexity of relationships between individuals and collective identities. Presenting religious identities as individual, private and irrational is a stern oversimplification. Moreover, it unfairly places religion in contrast with other collective identities that are considered public and rational, while in reality various interrelations connect individuals and groups across the public and the private. This complexity, I argue, sholud be reflected in a theory on the role of religious identity in democratic society. Neither banning religious identity from politics, nor accomodating certain predetermined religious identities does this. Drawing on debates about secularism and intersectionality, I will point out some of the problems that arise from both integrationist and accomodationist approaches to religious identities. Finally, I will explore what alternative approaches towards the role of religious identities in severely diveded democratic societies can emerge from this different understanding of the nature of religious identity.

            Most critiques to the public/private divide center around the role of religion in (international) politics as well as International Relations Theory. In this sectionthe scope will be slightly widened by considering the critiques to apply to groups formed around a ‘conception of the good life’ or a ‘comprehensive worldview’ following Rawls (1993) in his highly influential liberal approach to ‘the fact of pluralism’[129]. These identities, from the perspective of the public/private divide, will be contrasted with another type of collective identities, namely national or ethno-national identities, that do not seem to correspond with a Rawlsian understanding of the fact of pluralism.

            In post-conflict societies, consociational democracy is often implemented under the auspices of liberal peacebuilding[130]. It is from this perspective that the academic debate between consociationalism and liberalism also gains practical importance. Especially because neither liberal peacebuilding nor consociational democracy has remained uncontested[131].

 

  1. Consociationalism and liberalism

When a state is severely plural consociationalists assert that classical liberal democratic theory, maintaining that a difference can be relegated to the public sphere and a common political discourse can be formulated, gives little hope for a stable democracy[132]. In his seminal work on the stable democratic system of the Netherlands, Arend Lijphart displays the observation that elite cooperation fosters democratic stability in spite of severe societal segmentation[133]. In the following decades, based on numerous theoretical and empirical contributions, consociationalism has become a normative theory, prescribing particular power-sharing devices to deeply divided societies to develop a stable democratic system[134]. The implementation of certain institutional structures is expected to encourage elite cooperation, which will in turn result in a stable democracy[135]. Consociationalism has since become an important strategy in democratization efforts in plural societies, particularly in the context of peace operations[136].

            The terms consociationalism and power-sharing have often been used interchangeably[137]. But, as consociationalism presents just one way in which power can be shared[138], it seems more accurate to distinguish between consociationalism as a specific ‘system of institutions and systemic incentive structure’ of power-sharing[139] and power-sharing as ‘any set of arrangements that prevent one agent, or organized collective agency, from being the “winner who holds all political power,” whether temporarily or permanently’[140]. The core idea, divided into four key characteristics, of consociational democracy is summarized by Bogaards as follows:

            ‘In a consociational democracy, elite cooperation takes the form of executive coalitions in which the leaders of all main social groups are represented; proportional representation in assemblies as well as a proportional allocation of offices and resources; autonomy for social groups in the spheres important to them, such as education; and a mutual veto for groups that see their vital interests at stake’[141].

            These four key characteristics must be seen as indicating an ideal type of which cases can be found in varying degrees[142]. Although the success of consociationalism is highly dependent upon the context in which it is implemented, it is thought to be the most viable solution to internal conflict in divided societies[143]. In these societies ‘consociationalism is expected to depoliticize ethnicity and allow development of a common national identity’[144]. Research on consociationalism in peacebuilding has often focused on consociational provision in peace agreements[145].

            On basis of the level of inclusion of the relevant social groups in a grand coalition, a differentiation has been made between complete, concurrent and weak consociations[146]. The exact institutional shape given to the four aspects of consociational democracy determines whether consociationalism is ‘undemocratic or democratic, formal or informal, liberal or corporate’[147]. Furthermore, a distinction must be made between consociational institutions, and the ‘spirit of accommodation’ or the willingness to cooperate of the political elites. As Lehmburch[148] already notices, consociational institutions do not necessarily have the envisioned result of democratic stability, but can when they advance the internalization of ‘consociational norms and behaviour’. Lastly, contemporary cases of consociationalism can be distinguished from classical cases like the Netherlands, Belgium, and Switzerland. Although the latter played a vital role in the development of consociational theory, they differ from contemporary cases in one fundamental as consociationalism was not introduced as a normative model to manage difference in these classical cases, but rather conceived of as the system that more or less spontaneously emerged when difference threatened democracy.

2.1 The liberal critique

Consociationalism has attracted numerous critiques, among which liberal critiques. This strand of critique includes the charges

  • that it does not uphold basic liberal values,
  • that it entrenches social segmentation, and
  • that consociationalism provides insufficiently democratic governance. Although others (e.g. Nagle and Clancy, 2010)[149] have discussed these three critiques separately and not as different forms of liberal critique, I will discuss them as different varieties of a liberal critique to consociational democracy.

Here I will concentrate on (1) and (2), as these two critiques target the group-focus of consociationalism, while critique (3) is directed at its elite focus. The problem of consociationalism’s elite-focus will not be addressed at length in this paper, but will be touched forward.

            Whereas the elite-focus of consociational democracy is thought to render it undemocratic, as it significantly limits popular participation, the group-focus of consociational democracy is argued to runs counter to liberal values, particularly the freedom and equality of individuals. Focusing on the Good Friday Agreement in Northern Ireland, Rupert Taylor has argued that consociational democracy ‘rests on and promotes and ethno-national group-based understanding of politics that is inherently illiberal’[150]. Basing political representation on group identities, often meaning ethno-national identities, is to ‘encourage and reward those who pursue strategic ethno-national group calculations and interests in ways that run counter to liberal politics’[151]. What characterizes liberal politics, according to Taylor, is that is places the ‘freedom of political choice’ over the social categories that characterize a society[152]. In other words, by privileging the representation of group interests and group rights – through a system that is designed to accommodate and defend group interests – over the representation of the interests and rights of the individual, consociational democracy is indeed illiberal. Consociational democracy relies on processes ‘that are inimical to liberal democracy’[153].

            By making the rights and representation of groups central to the political process instead of the rights and representation of the individual, consociational democracy ‘curtails the freedom’ of individuals, both between and within communities[154]. The Good Friday Agreement, for example, ‘placed traditions and group equality before the higher and more dignified principle of individual rights’[155]. Consociationalists hold that the focus on groups is necessary to achieve an equal democratic appreciation of the rights and interests of members of all groups, and not only for members of a dominant majority[156]. Being premised upon the principle that individuals are fundamentally free and equal, any liberal political system should thus be based on the equality of individuals. O’Flynn argues that ‘it is difficult to see how the thought that intrinsic equality can be ascribed to groups can be rendered compatible with ascribing intrinsic equality to their individual members’[157].

            When an individual is first and foremost treated as a member of a certain group, the individual is not primarily conceived of as free and equal to all other individual in a society. The groups are given equal standing, but individuals are perceived through their membership of a certain group, even when this group membership does not necessarily mean the same to each individual.

            ‘By prioritizing one interpretation of a group’s identity over others, we may well end up failing to treat some of its individual members as valuable of themselves’[158].

            As we cannot assume that the interest of each group member aligns perfectly with the interest of the group as a whole, or that the identity of a group means the same to every group member, the rights and interests of each individual are not represented equally through the representation of groups[159].

            The second liberal critique to consociational democracy also pertains to its group focus: consociational democracy only further strengthens fragmentation instead of helping overcome it[160]. This is problematic especially with peace agreements, such as the Dayton Accords or the Good Friday Agreement, because these ‘entrench or institutionalise ethnic divisions and thereby sustain antagonism or at least inhibit reconciliation’[161]. Nagle and Clancy[162] summarise this critique as a critique that ‘is espoused by critics who argue that consociationalism has entrenched and exacerbated sectarian division across all domains of public and even private life, thereby ensuring that group based hostilities remain at the expense of any chance of a shared and reconciled society. It reifies and freezes groups when all encouragement should be given to individuals to emancipate themselves from antagonistic ethno-national communal identities by forging multiple, hybrid and fluid social encapsulations within the framework of a common civic identity’[163].

            Poignant arguments are made stating that consociationalism ‘endorses social segregation’[164] or even that it is a form of ‘benign apartheid’[165]. Although consociational democracy is based upon the idea of cooperation at the elite level, it offers little incentive for cooperation at the mass-level. Intra-group competition for leadership positions may even exacerbate group identity at the mass-level[166].

2.2 Liberal consociation

In response to the alleged incompatibility with liberal values, consociationalists have introduced the idea of liberal consociation. Lijphart[167] first articulated a liberal version of consociationalism by arguing for the self-determination of social groups within a consociational democratic system that has been developed further by contemporary consociationalists such as McGarry and O’Leary[168]. Instead of pre-determining what the relevant social groups are, segments should be permitted ‘to define themselves’[169]. This does not only apply to proportional representation in the executive government, but can also concern the segmental autonomy granted to specific groups[170]. McGarry and O’Leary further draw on the distinction between pre-determination and self-determination when differentiating between ‘corporate’ and ‘liberal’ consociation[171].

            ‘A corporate or predetermined consociation accommodates groups according to ascriptive criteria, such as ethnicity or religion, on the assumption that group identities are fixed and that groups are both internally homogeneous and externally bounded. This thinking indeed privileges such identities at the expense of those group identities that are not accommodated, and/or at the expense of intragroup or transgroup identities. Politicians associated with these unprivileged categories find it more difficult to thrive. A liberal or self-determined consociation, by contrast, rewards whatever salient political identities emerge in democratic elections, whether these are based on ethnic or religious groups, or on subgroup or transgroup identities’[172].

            The institutional lay-out, and especially the electoral system, of liberal and corporate consociation differ accordingly:

            Where a political system deliberately obliges voter to vote only within their own segment for their own ethnic parties, then the system should be called corporately consociational. By contrast, in a liberal consociation, all voters are on a common electoral register, and, though they may vote for their own ethnic parties, they are not required to do so’[173].

            Especially Lijphart’s early consociationalism is associated with corporate consociational institutions, while McGarry and O’Leary assert that ‘most modern consociationalists, in fact, would eschew these (corporate consociational) devices and prefer liberal rules that protect equally whatever groups emerge in free elections’[174].

            Consociationalists may claim that individuals are free to choose their alliance with and support for one group or another, but this argument calls into question whether through any group the rights and interests of all its members can ever be represented equally. On the one hand because a group may mean different things to different people, and on the other hand, because group membership of the groups consociationalism deals with – namely groups based on ethnicity or nationalism – are often not open to all members of a society equally.

            Although consociationalists have put a great deal of emphasis on the distinction between corporate and liberal consociations, in the light of the theoretical analysis presented in the current article, the distinction does not seem to carry much weight in response to the formulated critiques.

Firstly, as McCulloch argues, because liberal consociational devices are rarely successfully used in peacebuilding:

            ‘Consociational settlements are negotiated at the very point at which group identities are the most politically salient and polarized. Under conditions of insecurity, groups and their representatives are unlikely to settle for anything other than a strong guarantee of their share in power, regardless of electoral prospects’[175].

       Some seminal examples of consociationalism in peacebuilding support this contention, as for example Bosnia and Herzegovina is a clear example of a corporate consociational system[176] and it has been pointed out that also Northern Ireland exhibits problems associated with corporate consociational practices[177].

Secondly, consociationalism, both in its liberal and in its corporate form, conceives of identities as durable and resilient because to serve as a point of reference in political representation they need to have a stable essence. It suggests that there is something particular about, for example, ‘Christianity’ that requires its negotiation in the political arena, or that there are certain interests that ‘Serbs’ have and that need to be voiced in the public sphere. Thirdly, as the next pages will go on to show, there are certain similarities in the assumptions underpinning both consociationalism and liberalism that go beyond the supposed distinction between corporate and liberal consociations. For the purposes of the subsequent analysis, it is hence not important to emphasize this distinction.

 

  1. The public and the private

The debate between consociationalism and liberalism can be reconstructed and understood through the way in which they navigate and employ the public/private divide. The dichotomy between the public and the private is widely represented in liberal theory, as it is closely connected with the idea of liberal pluralism and, concurrently, secularism[178]. The distinction between the public and the private sphere is an important feature of liberal ideas concerning the integration of pluralism in democracies. The idea that ‘religious and cultural pluralism cannot be accommodated in international society, but must be privatized, marginalized, or even overcome’ has played an important role in international as well as domestic politics since the Peace of Westphalia[179]. Liberal authors view the exclusion of religion from the public realm as a necessity for the realization of individual freedoms[180].

            The notion of the public realm or the public sphere, however, is ambivalent, as its wide use has been accompanied by a wide range of meanings. The pubic is often understood in contrast with the private. The contrast between both concepts can be understood in two main ways:

  1. What is hidden or withdrawn versus what is open, revealed or accessible’;
  2. and what is individual, or pertains only to the individual, versus what is collective, or affect the interests of a collectivity of individuals’[181]. In practice, the boundaries between both concepts are less clear-cut than suggested, but the general idea of the distinction between a particular or individual interest and a collective or public interest is clear enough[182]. The distinction, however, can pertain to various facets of life, for example the market versus the state, the family versus the society, or religion versus the state.

      As we are currently concerned with models for democracy, the notion of the public that I will appeal to is one concerned with the political community. In this sense,

            The notion of a public realm is accordingly almost always ambivalent, referring to the collective concerns of the political community and the activities of the state that is central to defining that political community. The private is simultaneously that which is not subject to the purview of the state and that which concerns personal ends distinct from the public good, the res publica or matters of legitimate public concern’[183].

            The ‘public’, as it will be used here, is considered to be separate from the state as a power-exercising apparatus, yet closely related to it through its close connection to the political community as a ‘state-oriented discourse’. The public sphere is, much in the way that both Rawls[184] and Habermas[185] suggest, the realm where citizens communicate about collective interest without bringing into play the differences that characterizes them in the realm of the private. Instead of appealing to private difference, the political community is bound through argumentation based on a rational-critical assessment of arguments based on their merits (Habermas) or through an appeal to public reason (Rawls) accessible to all citizens.

            Functioning so prominently within liberal theorizing, the public/private dichotomy plays an important role in contemporary liberalism as a tool in dealing with what John Rawls (1993) has termed ‘the fact of pluralism’. Crudely put, the crux of just social cooperation in a plural societies lies in the freedom of the individual to pursue their own conception of the good (according with their comprehensive worldview) in the private sphere, while social cooperation in the public sphere[186] is guided by a consensus on the basic ideas of justice. What is guiding conduct in the public sphere, according to Rawls, is a non-substantive conception of justice that every individual can agree to regardless of the conception of the good she endorses. His theory of political liberalism is also referred to as non-comprehensive liberalism and can be distinguished from comprehensive liberalism[187]. Whereas Rawlsian non-comprehensive liberalism aims a conception of justice on basis of what can be agreed on, comprehensive liberalism additionally aims to provide a substantive secular, liberal value system upon which liberal democratic cooperation is premised[188]. In either form, the separation between the public and the private sphere is thought to enforce a certain neutrality onto the public sphere that endows equal rights upon all citizens, regardless of their worldviews.

3.1 Consociationalism and public/private divide

Liberalism relies on the assumption that the public sphere can, to a certain extent, be neutral towards the different comprehensive worldviews represented in a society and that individuals are capable of seeing the fairness of this neutrality. Consociationalists assert, however, that the picture of pluralism put forth by liberalism is based upon an understanding of collective identities and the capacities of liberal regimes to ‘dissolve, transform or transcend’ these collective identities that is ‘too facile and too optimistic’[189]. In severely divided societies ethnic, religious, cultural or linguistic divisions are mirrored in organizational divisions[190]. This means, for instance, that for each social group different political parties, news media, and education institutions exist[191]. Under these circumstances, consociationalists assert, assuming or demanding the privatization of comprehensive doctrines is futile. Hence, in divided societies accommodating comprehensive doctrines[192] in politics is a more realistic option than requiring their privatization and the neutrality of the public sphere.

            It seems to be exactly at this point that consociational theory deviates from liberalism. But, in justifying consociational democracy its advocates actually appeal to the public/private divide in a way closely resembling the way in which the public/private divide functions in liberal theory, both in the diagnosis of the problem and in the proposed solution.

            Firstly, the liberal distinction between the public and the private sphere is already manifested in the basic assumption of consociationalism: difference, when brought into the public sphere by citizens, forms a problem for a democracy. The primary assumption of consociationalism is that that when citizens affirming diverging comprehensive doctrines interact in the public sphere, this will necessary lead to conflict[193]. In the absence of contact between groups, there is thought to be no moderation in the conduct of citizens in the public sphere[194]. Put in a more Rawlsian vocabulary, democracy is thought to be under threat when citizens do not accept the fact of pluralism and acknowledge the need to find a consensus on basic principles of justice.

            Secondly, the idea that elite cooperation is a solution to severe societal pluralism also draws on the idea that comprehensive doctrines of citizens can remain private affairs, when only at an elite level these doctrines can be publically accommodated. Political elites, as opposed to other citizens, are thought to be able to recognize the threat and the severity of a collapse of the system[195]. The only way to handle the accommodation of comprehensive worldviews in the public sphere is by assigning power only to those that, like liberal, view the presence of comprehensive in doctrines in the public sphere as a threat to democratic stability and support the idea that there can and should be a separation of the public and the private sphere. The boundaries of the private sphere are negotiated in consociational politics and often broadened. For example, education may be a matter transferred to the private sphere in order to enable citizens to raise their children in accordance with their worldview. Consociationalism is on the one hand more inclusive towards comprehensive doctrines, yet at the same time affirms the idea that comprehensive doctrines should not play a role in the public sphere.

            We can interpret this in two ways. One the one hand this could prompt us to call the consociational public sphere more inclusive. On the other hand, we can interpret it as an expansion of the private sphere, as these matters that are often considered to be part of the public sphere are, under consociational system, not controlled by the state or shared through a common notion of citizenship, but managed, controlled and enjoyed only by the relevant communities themselves which have been given a large extend of autonomy. The elite-focus of consociationalism, from this perspective, limits the influence of comprehensive doctrines in the public sphere through a rather exclusive approach to political participation[196].

            Furthermore it could be objected that political elites represent the relevant social groups and that hence consociationalism is inclusive towards these groups as a whole and not only towards political elites, and argument resembling recommendations of liberal consociationalism. This argument, however, seem to run counter to the point of consociationalism’s focus on elite politics. As Rupert Taylor explains in relation to the case of Northern Ireland: ‘the point here is that the Good Friday Agreement was bargained at elite level, “tête-à-tête”, not defended in wide-ranging deliberation in the civic public sphere – people were not motivate to think through the issues or discuss them with others’[197].

            Rather than an exception, this situation should be considered the rule in consociational politics as, in severely divided societies ‘the political elites have to be able to make concessions and to arrive at pragmatic compromises even when religious or ideological values are at stake’[198].

            Thirdly, like liberalism, consociationalism views the state and its institutions to be neutral entities themselves in which comprehensive worldviews can be accommodated fairly. Even when comprehensive doctrines are included in the public sphere through elite representation, this inclusion is based on the idea that the state can neutrally guard the accommodation of these doctrines in the public sphere. Although consociationalism challenges liberal assumptions on the role that comprehensive doctrines are allowed to play in politics, it does not question the nature of the state itself or its ability to accommodate these doctrines equally and fairly. Furthermore, the doctrines may be accommodated by the state, but no matter what their content is, they cannot play a role in the formation of the state. This is exemplified by contemporary examples of consociational democracy like Bosnia and Herzegovina or Northern Ireland, where the interests of (ethno) nationalist group are accommodated in politics, but yet are not allowed to alter the basic structure of the state.

 

  1. Contesting the public/private divide

Various contributions in (post-)secular studies have convincingly argued that the private/public divide is not a neutral vehicle for the liberal plural state, but has a content of its own, making it more appropriate to consider it, like religion, a comprehensive world view, or even an ideology[199]. As a part of secular ideology, or as a strategy in politics, the public/private divide carries with it certain normative assumptions concerning the question which comprehensive doctrines or identities[200] get to play a role in the public sphere[201]. The public/private divide in this way this resonates with a central liberal critique to consociational theory, namely that it cements or entrenches collective identities, because certain identities or doctrines are given more space and are allowed to gain in importance, while other remain marginalized and unaddressed in the public sphere.

            In this section I will briefly discuss two aspects of critiques directed at the exclusiveness of the public private divide: firstly the way in which the public/private divide privileges certain identities or doctrines over others, and secondly how it does so through the posing of dichotomies that do not correspond to the ways in which individuals act in and experience the world. The former pertains mostly (though not exclusively) to the inclusion and exclusion of groups, while the latter focuses more on the individual level. In section 5 these critiques will be connected to consociationalism and their implications for the understanding of the debate between consociationalism and liberalism will be examined.

4.1 A secularist bias

Critical examinations of the public/private divide have mainly focused on how the divide has influenced the perception and role of religion in political theory and practice. In political practice, the public/private divide can be considered an important vehicle in establishing this secularist bias. As a result of the secularist bias that works through the public/private divide the understanding of religion offered based on the assumption of the public/private divide is too narrow and gives ‘an incomplete picture of the different ways in which religion can and does influence politics and public life’[202].

            The question of the role of religion in politics underlays the public/private divide[203]. However, and at least partly due to the prevalence of the public/private divide in political theory, the influence of religion is often overlooked in political theory and policy[204]. Since the early 2000s, however, it has become more apparent that religion is not a factor to be ignored in international politics nor in International Relations theory. Critically examining the previous shortcomings of International Relations scholars in their approach to religion and politics, recognition has since then grown ‘of the existence of a ‘secularist bias’ within the field (and, arguable, in public and political discourses within the West more generally)’[205].

            The secularist bias, represented in both political theory and practice, consist of ‘the unquestioned acceptance of the secularist division between religion and politics’[206]. Although often assumed in liberal theorizing and of vital importance to many understandings of the possibility of democratic pluralism, the dichotomy between the public and the private is not uncontested, not in the least because of the historical development of the distinction and its close connection to the role of religion in the modern state: ‘Of all dichotomous pairs of relational terms few are as ambiguous, multivocal, and open to discursive interpretation as the private/public distinction. Yet the private/public distinction is crucial to all conceptions of the modern social order and religion itself is intrinsically connected with the modern historical differentiation of private and public spheres’[207].

            The historical process preceding the current usage of the public/private divide is described by Charles Taylor[208] as a historical, three-step process comprising the ‘distinction of church/state, then separation of church/state, then sidelining of religion from state and public life ‘. The public private/divide is closely related to secularism and is itself a way of both understanding and categorizing the world that is not neutral, but rather a more substantive view that is historically constructed, instead of a neutral vehicle or objective observation[209].

            Although there are different ways in which the separation of church and state is justified[210], religious belief and religious arguments are generally considered to be inconsistent with the ‘principles that liberals maintain should govern public political decision-making’[211]. What has resulted from this historical process it the idea that religion not only can be, but also should be a private matter that does not play a role in the neutral public sphere. The assumption that the public and the private sphere can and should be separated is essentially a normative assumption[212]. As the public/private divide is not neutral but clearly biased against particular worldviews depending on their concurrence with the idea of the public/private divide as ‘a form of political authority in its own right’[213].

4.2 Dichotomous relationships

Pertaining more to the individual level, the public/private distinction also carries with it certain assumptions concerning the relationship between the individual and the group identity or comprehensive doctrine the individuals want to base her conduct in the public sphere on. The idea that religion can be privatized rests upon a particular understanding of religion that does not necessarily correspond with the ways in which religion is manifested in the world or with the way in which it is experienced by religious individuals or communities. For many people ‘their religion is not, for them, about something other than their social and political existence; it is also about their social and political existence’[214]. Requiring citizens to privatize religion places un unfair burden upon those who are religion and consider religion to inform, at least to an important extent, their conduct in the public sphere[215]. Not because they are unwilling to compromise with other not affirming their beliefs, but because the very nature of their religious belief requires them to do so. Religion may be irrational and private from a secular perspective, but when we realize that this secular perspective is itself a worldview, we can see that this bias is implicit in the normative assumption of the public/private divide[216].

            From the perspective of the public/private divide, religion is understood as being ‘essentially nonrational, particularistic, and intolerant (or illiberal) and as such dangerous and a threat to democratic politics once it enters the public sphere’[217]. This is what necessitates and justifies the idea that religion can and should privatized. For individuals, however, the dichotomous pairs that are assumed in the enforcement of the public/private divide do not correspond to the way in which individuals relate to collective identities or comprehensive doctrines. They do not experience them as either public or private, either rational or irrational. The dichotomies underpin secularism, but thereby categorize the world in a particular way. The idea that religion is irrational, for example, rests upon a particular notion of rationality that is intimately intertwined with a secular worldview[218]. The dichotomies between rationality and irrationality as well as between the public and the private are less stark than suggested by liberal approached to pluralism.

 

  1. Contesting the consociational public/private divide

So far I have argued two concepts. Firstly, that consociationalism and liberalism both rely on the assumption of the public/private divide in their approach to pluralism or segmentation. Secondly, that the public/private divide carries with it certain exclusionary implication for certain identities and individuals. This critique to the secular public/private divide has been directed at liberal secularism and has focused on the role of religion within liberal secularism.

            The idea that the public sphere is a place for rational, universal, and tolerant reasoning, combined with the idea that religion is nonrational, particularistic, and intolerant, gives rise to the idea that also in liberal and consociational theory a bias exists in the analysis of different forms of pluralism and in assessing the problematic nature of these forms of pluralism. Consociationalists argue that the group identities accommodated in consociational democracies are more pervasive than the group identities formed around Rawlsian comprehensive doctrines that are implied in the liberal approach to pluralism. The assumption is that these more pervasive collective identities, often based on nationalism or ethnicity, cannot be privatized like the ‘liberal’ collective identities based on religious or other worldviews[219].

            Looking at the different identities targeted by respectively consociationalism and liberalism, the identities that are accommodated in the public sphere through consociational practices are national or ethnic identities rather than ‘merely’ religious identities. These identities, I suggest, are more compatible with the secular idea of what can be represented in the public sphere and are mostly national or ethno-national identities. The fact that the nation state is the usual unit of analysis, both consociationalism and liberalism are concerned with the question how in plural nation states democracy can work, exhibit a bias in favor of nationalism vis-à-vis religion. The assumption of nationalism and the exclusion of religion from the public sphere is implicated in the public/private divide. This may partly explain why liberals seem to have much more difficulty dealing with national pluralism within states than they have with dealing with religious pluralism and why consociationalists often focus on the different peoples that make up a state and not the different religions (as religion alone would be an insufficient basis for representation).

5.1 Religious versus nationalist difference

Examining the interrelatedness of the public sphere and nationalism, Calhoun[220] states that ‘it reflects a nationalist presumption that membership in a common society is prior to democratic deliberations as well as an implicit belief that politics revolves around a single and unitary state’. Historically, the notion of nation, people, and public have become intertwined as they served as demarcation of ‘potentially sovereign political communities’[221]. Shared communication or conduct in the public sphere is viewed as an integral part of democracy. Shared communication as well as the demarcation of the relevant community, is dependent upon some form of shared discourse. When looking at the formation of nation states after the fall of empires, for example Turkey after the fall of the Ottoman Empire or the Balkan states after the disintegration of Yugoslavia ‘nationalism and the creation of cultural publics and political public spheres went hand in hand’[222]. Whether they were formed around the idea of democratic pluralism (as in Bosnia-Herzegovina) or ethnic unity (as in Serbia) ‘in either case the institutionalization of a public sphere was at the heart of the project defining the nation’[223].

            Although consociationalism is aimed less at the creation of political unity than liberal theories of integration, a bias can be detected in both liberalism and consociationalism that fosters the accommodation of national identities and doctrines over the accommodation of religious doctrines. Religious identities, becaiuse they can and should be privatized, pose less of a problem to democratic stability than national identities, which are legitimately present in the public sphere. McCrudden and O’Leary quote John Stuart Mill in arguing that ‘free institutions are next to impossible in a country made up of different nationalities’[224]. As McGarry and O’Leary[225], state: ‘accommodation is the second option democracies with multiple peoples’. Consociationalism is about accommodating groups ‘that cannot easily win their own sovereign states’[226], implying that these groups do strive for their own state. Consociationalists do not argue that accommodation is necessary in every society characterized by pluralism, but rather only on those where the nature of pluralism consists of ‘dual or multiple public identities’[227]. The intertwinement of people, nation and public is this not only present in liberal integrationist discourse, but, through the public/private divide, also works through consociational theory.

            The institutionalization of consociational democracy corroborates the picture painted of the secular bias. Although religion is, for example, considered to be an important marker of ethnic or national identity of the three major groups in Bosnia and Herzegovina, the consociational Bosnian constitution speaks of ‘Bosniacs, Croats, and Serbs, as constituent peoples’, emphasizing the fact that they should be considered different peoples and not one people divided by different religions (Constitution of Bosnia and Herzegovina, preamble). And although the Lebanese constitution requires ‘proportional representation among confessional groups’ in the Chamber of Deputies as well as ‘equal representation between Christians and Muslims’ (The Lebanese Constitution, art. 24), the same constitution declares one national public identity, “Arab”, and pronounces ‘the abolition of political confessionalism a basic national goal’ (The Lebanese Constitution, preamble).

            Furthermore, at the level of the individual, the elite focus of consociational democracy is an example of exclusive politics fostered by the assumption of the public/private divide: as citizens are unable to withhold arguments based on their collective identities in the public sphere (due to the lack of overlapping membership they do not have access to ‘public reason’ or generally accepted arguments) they are left out of debate in the public sphere. Debates in the public sphere are conducted by political elites who, apart from representing the interests of their social group, also have the capacity to transcend these differences when they see the need for cooperation. The consociational move towards elite politics and away from popular participation can thus be justified through the assumption that debate in the public sphere should be based on a set of commonly excepted arguments and not on doctrines that are considered to be private.

            By introducing elite politics as a solution to severe segmentation, consociationalism introduces another dichotomous relationship into its approach towards democratic difference: political elites versus ‘the masses’. This dichotomy was already introduced as an explanatory variable by Lijphart[228], but subsequently has become an exclusionary device in the turn from consociationalism as an explanatory to a normative model.

 

  1. Overcoming the liberal/consociational stalemate

Both consociationalism and liberalism rely on the assumption of the public/private divide: pluralism is thought to challenge democratic stability and the public sphere should be a neutral space for democratic debate, separate from variety in comprehensive doctrines or collective identities that characterize a plural society. In this sense, consociationalism and liberalism are not antagonistic positions, as they sometimes seem to be portrayed in the academic debate. Rather, they are complementary positions. Both assume that comprehensive doctrines or collective identities can best be privatized. Liberalism offers a model for integration in for an ideal situation in which comprehensive doctrines or collective identities indeed can be privatized. Consociationalism offers a realistic solution when, as often seems the case in practice, these doctrines cannot easily be relegated to the private realm. Neither case, however, takes into account the fluid relationships between the individual, group membership, and citizenship.

            What does this mean for the debate between consociationalism and liberalism? It seems that both consociational critiques to liberalism and liberal critiques to consociationalism, albeit slightly differently interpreted, are right. This concluding section will first re-examine critiques consociationalists and liberals have directed at each other, and then briefly point to a possible way out of the current impasse.

6.1 Reinterpreting the debate

Consociationalists assert that the liberal integrationist approach supposes a too optimistic view of the severity of pluralism in certain (especially post-conflict) societies. Examining the types of identities or doctrines targeted by consociationalism and liberalism, we have seen that this charge could be reformulated: liberalism only targets certain differences, that is religious differences or differences otherwise associated with comprehensive doctrines or conceptions of the good life, whole consociationalism targets identities that are also in liberalism often associated with statehood (of the liberal secular nation state), namely national or ethno-national identities.

            But, the distinction between these two types of identities rests upon the normative assumption of the public/private divide. Taking into consideration the critiques directed at the pubic/private divide it seems that liberalism indeed does not take the importance of comprehensive doctrines or collective identities for conduct in the public sphere seriously enough and that it overestimates the possibility of the creation of a shared identity or consensus. This does not, however, only apply to national or ethno-national identities, but also to other identities formed around conceptions of the good life. Requiring the privatization of these views leads to a bias against certain doctrines and imposing an unfair burden of justification on certain individuals. Liberal strategies for integration do not take the importance of all collective identities for the individual seriously enough.

            Liberals assert that consociationalism entrenched collective identities. As the fourth section has argued, this can indeed be the case: by allowing political elites to argue in the public sphere on basis of certain collective identities, these identities gain prominence vis-à-vis others and may indeed be strengthened and entrenched. Other, mainly religious, identities, may equally be strengthened, as fruitful debate between different identities is unlikely when some are deemed suitable for reasoning in the public sphere while other should be privatized. reason that consociationalism may entrench collective identities is thus not the fact that it allows for the accommodation of these identities in the public sphere as liberal assume, but rather that it only allows for the accommodation of some identities in the public sphere.

            Lastly, consociationalism has been argued to be incompatible with basic liberal values, namely the freedom and equality of the individual. In line with the reinterpretation of the previous liberal critique to consociationalism, this critique seems to apply not to accommodation per se, but rather to accommodation reliant on the public/private divide. The rights and freedoms of individuals may be impeded by a combination of accommodation and the public/private divide in two ways. Firstly, citizens cannot equally participate in democratic debate, as this privilege is reserved for political elites. Secondly, as Wolterstorff[229] argues, the public/private divide places an unfairly heavy burden on citizens confirming doctrines that are incompatible with secular rationality. The latter argument does not only pertain to consociationalism, but also to liberalism.

 

  1. A strategy of liberal peacebuilding: how to accommodate the claims of the warring parties?

The main problem, in my opinion, lies at the intersection of liberal and consociational approaches to pluralism, the intersection of integration and accommodation. Indeed, as the current paper aimed to show, on the one hand, in post-conflict societies approaches to peacebuilding want to avoid translating wartime narratives on collective identities into long-lasting political structures. As top-down approaches, both consociationalism and liberalism as approaches in peacebuilding commonly accept the narratives on identities that are pre-determined by the previous (or even ongoing) conflict. On the other hand, to achieve the ending of violent conflict, it is often necessary to somehow accommodate the claims of the warring parties. Secular assumptions on the public and the private that influence the conceptualisation of comprehensive worldviews, however, prevent the political process from becoming inclusive towards all the outlooks that may matter to the citizens of a given society.

            The latter point, I believe, is also visible in the literature on, for example, Bosnia Herzegovina. Even though there are excellent and highly nuanced contributions on the conflict and the subsequent process of peacebuilding and democratisation, and even though these studies often emphasize the constructed character of the collective identities in the conflict, these studies do not escape from accepting these (violent) narratives on collective identities as the basis of the conflict and of the current political system. This may be a result of the political choices made by peacebuilder or it may be the result of the wartime narratives (like the political structures are). Either way, even though some commentators seem more aware of the problematic nature of these narratives and the repetition of these narratives than others, the literature seems to mirror the problems of the political choices of peacebuilders.

            The present paper examines consociationalism as a strategy of liberal peacebuilding in order to see whether more inclusive approaches can be derived from it. I want to develop an approach to democratisation in peacebuilding that may allow for the accommodation of difference in more inclusive ways. Can there be a way of speaking about pluralism in post-conflict societies that does not presuppose the existence of particular social groups? On basis of the current part of the paper, I suggest two direction in which this research might unfold further.

            Firstly, on a conceptual level, we should explore ways of theorizing the relationship between groups (affirming a particular comprehensive doctrine) and the state, between the individual and the group, and between the individual and the state. Theories of citizenship as well as theories of group membership should reflect the complex interrelations between group identities and the individual’s political conduct. Ongoing debates about the public sphere and the secular have already discussed these relationship to some extent. Wilson[230], for example, suggests that relational dialogism may provide a way out of the dualism that characterizes the current debate, combining the insights of Kristeva’s[231] interpretation and Prokohvnik’s[232] relational thought. Additionally, contributions by Wolterstorf[233] and Eberle[234] have also focused on breaking the boundary between what is considered private religious reasoning and public justification. These are all examples of efforts to break the liberal secular distinction between the public and the private in order to make for a more inclusive form of politics or democratic debate.

            The scope of these studies, however, is mostly limited to the role of religion in (international) politics. The current project, as well as the current papers, seeks to show that these approaches can and need to be expanded to include a wider range of forms of pluralism. As the current paper has shown, for example, the secular bias does not only affect the way in which religion and religious identities are conceived, but allows for contrast with other identities, influencing also conceptions of the role of nationalism. The interrelations need to be more carefully examined in the development of a more inclusive model for democracy.

            Secondly, following the local turn in peacebuilding studies, the issue of locality should be explored further. The problem of contemporary approaches to democratic pluralism lies in the posing of dichotomies, either/or propositions, between integration and accommodation, the public and the private, rational and irrational, that do not correspond to the more complex ways in which group identities are constituted and the way sin which individual relate to group identities. The local turn in peacebuilding advocated the replacement of top-down policies with bottom-up approaches relying on citizen’s initiatives[235]. Given the top-down nature of the examined dichotomies, examining ways of understanding local dynamics and incorporating these into approaches for democratic difference may thus also provide a fruitful direction for further challenges and changes that will be felt by our society, starting from the coming years.

 

  1. Does liberalism demand strict separation between state and religion?

Until now, there has been no direct and extensive engagement with the category of religion from liberal political philosophy. Over the last thirty years or so, liberals have tended to analyze religion under proximate categories such as ‘conceptions of the good’ (in debates about neutrality) or ‘culture’ (in debates about multiculturalism)[236]. US constitutional lawyers and French political theorists both tackled the category of religion head-on (under First Amendment jurisprudence and the political tradition of laïcité, respectively) but neither of these specialized national discourses found their way into mainstream liberal political philosophy.

This is somewhat paradoxical because key liberal notions (state sovereignty, toleration, individual freedom, the rights of conscience, public reason) were elaborated as a response to 17thCentury European Wars of Religion, and the fundamental structure of liberalism is rooted in the western experience of politico-religious conflict. So a reappraisal of this tradition – and of its validity in the light of contemporary challenges – is well overdue[237].

Should the liberal state be secular? The issue is not merely a theoretical one. Most western states are secular states, even as they accommodate various forms of religious establishment and accommodation. Yet the great majority of people in the world live under regimes that are either constitutional theocracies – where religion is formally enshrined in the state – or where religious affiliation is a pillar of collective political identity. In countries otherwise as different as Egypt, Israel, Turkey, India, Indonesia, Poland, and many others, politics and religion are interconnected in ways that belie any simplified model of secular separation. Many such states, for example, appeal to religious tradition in making the law, provide material and symbolic advantages to members of the majority religion, and enforce conservative laws in matters of sexuality and the family. Are they ipso facto in breach of liberal legitimacy? Is there a minimal secularism – or separation between state and religion – that is required by liberal legitimacy?

            In her book Liberalism’s religion, the author argues that there is. Secularism, however, is a more complex political ideal than is commonly realised. I disaggregate the different strands of secularism, and I show how they relate to different dimensions of what we (in the West) have come to call religion. Instead of asking the question, can secularism travel? – which invites answers measuring how well non-western countries fare in relation to a presumed model of western secularism – I start from liberal democratic ideals and assume that they are not ethnocentric: human rights, freedom, equality and democracy are universal aspirations. I then ask how much, and what kind of, state separation from religion is required to secure these ideals. In brief, I extract the minimal secular core of liberal democracy[238].

            This allows us to see that it is a mistake to assume that liberal democracy requires a strict separation of state and religion on the French[239] or US model. There is a broader range of permissible secularisms. There are the four liberal-democratic ideals that underpin and justify minimal secularism: the justifiable state, theinclusive state, the limited state and the democratic state. Each picks out a different feature of religion: religion as non-cessible; religion as vulnerable; religion as comprehensive; and religion as theocratic. Let me analyse these in turn.

            The justifiable state draws on the idea that state officials should only justify their actions by appeal to public, accessible reasons. In the theory of minimal secularism, only officials are under an obligation to provide public reasons: secularism is a constraint on state action and justification, not a duty on the part of citizens. State officials should not appeal to the authority of sacred doctrines or to personal revelation to justify the legal coercion of all citizens. Accessibility articulates what citizens need to share, in particular societies, in order for public deliberation about the reasons for laws to be possible at all. Importantly, it is not the case that only religious ideas are inaccessible, nor is it the case that all religious ideas are inaccessible. The accessibility condition, then, does not rule out the public presence of religion.

            The inclusive state draws on the idea that the state should not associate itself with one religious identity, lest it deny equal civic status to dissenters and non-members. Merely symbolic establishment is wrong if – but only if – it infringes on equal citizenship. The dimension of religion that this picks out is different from the previous one: here religion has nothing to do with personal revelation or inaccessible belief or doctrines. It is, rather, structurally similar to other politically divisive or vulnerable identities, such as race, and sometimes culture or ethnic identity. A liberal state must not be a Christian state or a Muslim state when such identities are – as they are in many states today – factors of political salience and vulnerability. But in societies where religion is not a socially divisive, vulnerable identity, there is less ground for secular separation.

            The limited state draws on the idea that a liberal state should not enforce a comprehensive ethics of life on its citizens. The dimension of religion that this liberal value picks out is that of religion as comprehensive personal ethics that covers education, sexuality, eating codes, work, dress, and so forth. Many liberal rights were products of hard-won struggles, against the authority of traditional religious authorities, to construct and preserve a sphere of individual liberty. Consider the range of liberal laws in the 19thand 20thcenturies such as laws about marriage and divorce, women’s rights, and sexuality, and contemporary conflicts about abortion and gay rights in Africa and South and North America. Yet not all religion is about comprehensive personal ethics. Religious traditions also provide collective norms of coordination and cooperation (eg. holidays) which raise less acute threats to individual liberty[240].

            Finally, a democratic state is necessary because citizens profoundly disagree about the boundary between personal and collective ethics, the public and the private, the right and the good. John Locke[241] argued that the state should deal with ‘civil’ interests, and leave ‘spiritual’ matters of the salvation of the soul to individuals in their private lives. But who is to decide what pertains to the civil, and what pertains to the spiritual? In the areas of church autonomy and anti-discrimination laws, the nature of personhood, the family, marriage, bio-ethics and education, general liberal principles do not generate uniquely determinate and conclusive solutions. In such conflicts, the democratic state – not competing authorities such as churches – has final sovereign authority. It decides where the boundary between the this-worldly and the other-worldly, the religious and the secular, lies. This, I argue, is what is radical about liberalism’s secularism: that it is democratic – that it locates its legitimacy in the will of the people, not in extra-political, divinely ordained or philosophically grounded authority.

            The most radical challenge to religion posed by liberalism is not, therefore, that liberalism maintains a wall of separation between state and religion. It is, rather, that it assumes democratic sovereignty. Within the bounds of basic liberal legitimacy and human rights, deep reasonable disagreements are to be solved democratically (democracy is, of course, not to be equated with majoritarian tyranny, and must provide for minority representation, separation of powers, and judicial review). This democratic conception of liberal legitimacy allows for more variation in permissible state-religion arrangements than both secular liberals and religiously minded liberals have assumed. Just as secularized majorities can impose their own conception of the boundary between state and religion, so can religious majorities, provided they honour the other three liberal principles of accessible justification, civic inclusiveness and individual liberty. In secularized societies, state law will naturally reflect and promote the non-religious ethics of the majority, for example via the dismantling of structures of traditional family and marriage and the expanding reach of norms of human rights and non-discrimination. Likewise, in societies where religious citizens are a majority, they can shape the public sphere of their societies to some extent. But only to some extent: religious majorities can shape the state within the constraints of what Laborde, in particular, has called minimal liberal secularism[242]. Beyond that, minimal secularism has no ambition of providing final substantive answers to key questions of political, public, private and sexual morality.

 

9.  Epilogue:  from «one size  fits  all» to «unity  in diversity!»

            The debate on the transformation of Europe’s constitutional constellation, its new Verfassungswirklichkeit,[243] has only just begun and is bound to continue. Pertinent characterizations oscillate between Executive Federalism (Jürgen Habermas),[244] a Distributive Regulatory State or New Sovereignty with Largely Unfettered Power of Rule (Damian Chalmers),[245] a Konsolidierungsstaat (Consolidating State, Wolfgang Streeck),[246] Authoritarian Managerialism (Christian Joerges and Maria Weimer),[247] an Unconstrained Expertocracy (Fritz W. Scharpf),[248] an Unbound Executive (Deirdre Curtin),[249] and Krisenkapitalismus (Crisis Constitutionalism, Hans-Jürgen Bieling).[250] None of these characterizations are in line with the ever-so positive and optimistic presentation of the integration project which we have been reading for decades.[251] Among the features underlined include the lack of a theoretical/conceptual paradigm; a radical disregard of Friedrich A. von Hayek’s warnings against the “pretence of knowledge,”[252] a disregard of the rule of law, and a thorough de-legalization of governance.[253]

            What does all this mean for European citizenship? What was once a cherished accomplishment is now characterized by inequalities between the North and the South, the social exclusions of a large part of the European population, and political disempowerment. The present calamities are not without precursors,[254] but the ambivalences of the vision of transnational, albeit nationally dis-embedded, citizenship have, by now, become increasingly apparent and disquieting. I am not trying to go, in this already overly lengthy paper, into any detailed analysis and refer instead to the contributions by Giubboni.[255] Just as it is misconceived to subject a socio-economically and politically diverse Union to the discipline of one currency, the construction of a uniform “European social model” is a similarly misconceived project.[256]

            All foregoing, disheartening diagnoses notwithstanding, this epilogue should not conclude without an outline of what has been announced in the introductory remark: “But where danger threatens, that which saves from it also grows.”[257] The present state of the Union is unsustainable. The efforts to force Member States and their citizens into the straitjacket of new economic governance are bound to fail. The Euro-crisis, somewhat paradoxically and inadvertently, underlines the urgent need for pluralistic variety – the toleration of disagreement and contestation – rather than an ever-more centralized executive Europe. The failures of Europe generate growing unrest and protest among dis-empowered citizens who are exposed to austerity measures, experienced as hopeless, and, to a considerable degree, useless suffering. They increasingly provoke the political public, national parliaments, and even the EP. It will become progressively more apparent that it is impossible for the great majority of signatories of the Fiscal Compact to comply with the requirements imposed upon them. It will also become ever more apparent that it is simply impracticable for the great majority of signatories to comply with the requirements imposed upon them, and the “die neue Umständlichkeit” (cumbersomeness) of all these procedures will affect their impact.[258]

            Hence, there is room for maneuver. And yet, to date, any substantial transformation of the established regime remains out of sight. Is it nevertheless conceivable that, in the not-too-distant future, the new policy coordination within the annually repeating European Semester, the reporting and multilateral surveillance obligations, the macro-economic imbalance procedures, and the responses to country – specific recommendations will lead to new assessments of the weight of socio-economic diversity. Growing awareness of the social embeddedness of markets, acknowledgement of the different regulatory, social, and economic cultures in the Member States, may well generate a search for innovative responses to Europe’s complex conflict constellations – and sooner or later, even to the developments of standards and criteria which discipline authoritarian managerialism.

            It would be absurdly pretentious to promise a “solution” to these difficulties. But we must not shy away from the construction of projects which seek to respond to the problems which we have identified. The project which I have pursued for more than a decade is “conflicts-law constitutionalism.”[259] Its analytical and normative core can be briefly summarized as follows: As long as the shape of a pan-European democracy lacks contours, and the conditions for its realization remain entirely unclear, we must explore alternatives which take the difficulties the European project must not, and cannot, avoid into account.

            How should we respond to the reality that the socio-economic disparities in the expanded Union are not melting away? Which conclusions should be drawn from the insight that the neo-liberal interventions to which the “varieties of capitalism” in the Union have been exposed have repeatedly disintegrative effects? If it is impossible to construct a uniform welfare-state model, is it then advisable to dismantle Europe’s welfare-state traditions altogether? If it is not our goal to suppress the painful memories of Europeans, to not iron out the differences between their bitter historical experiences, to not waste the wealth of their cultures, must not tolerance therefore determine the status of European citizens, tolerance which is established in law and based upon the principle of mutual acceptance? These questions are not merely rhetorical. They have a normative point of reference in the optimistic “motto” of the ill-fated Treaty establishing a Constitution for Europe as «United in Diversity,»[260]which need not remain an empty phrase. My proposal for putting this motto into practice is as follows: Europe must find its constitutional form in a new type of “conflicts law,” which is characterized by two guiding principles. Firstly, the supranational European conflict of laws is to require Member States of the Union to take their neighbors’ concerns seriously – in this respect, it aims at compensating the structural democratic deficits of nation-statehood. Secondly, this European conflicts law should structure cooperative solutions to problems in specific areas – thereby reacting to the inter-dependencies of modern societies. Suffice it here to underline three points.

            We should shift our attention from the democratic deficit of the EU to the structural democracy deficit of its Member States. Nation states continuously, and unavoidably, violate the principle that those affected by their laws can “in the last instance” understand themselves as their authors. The Member States of the Union can be requested to take the impact of their own policies on other jurisdictions into account and vice versa – they can expect that their concerns be included in the decision-making processes of the others. In the Union, these commandments correspond to the common commitments to democracy which European law is legitimated to implement. European law has the vocation, and some potential, to compensate these deficits. It can derive its legitimacy from its capacity to correct the democracy deficits of Member States.[261]

            The second vocation and task stems from the erosion of the potential of the nation state to resolve problems autonomously. In the Union, this dependence upon the other transforms itself into duties of cooperation which European law is legitimated to organize. The “constitutionalization of co-operation”[262] must then seek to derive its validity from the normative credentials of the very interactions that it organizes.

            Conflicts-law constitutionalism was meant to be elaborated further and to proceed as a “re-constructive project.” For example, a re-conceptualization of European law which would, to a considerable degree, be compatible with European law as it stood, and be able to orient its further development. The re-constructive status was based upon its sociological premises which reflect the European constellation more adequately than the orthodoxy of European law. It seems, indeed, overdue to reconsider the integration project in the light of Europe’s ever-growing diversity, to take the conflicts which this diversity generates into account, and to re-orient Europe’s agenda from harmonization and unity to the management of complex conflict constellations.

            The last point is the most difficult to defend. The reconstructive status of the conflicts-law approach was based on its sociological premises which reflect the conflict-laden European constellation more adequately than the orthodoxy of European law. All that seemed needed, and indeed overdue, was to reconsider the integration project in the light of Europe’s ever growing diversity, to take the conflicts which this diversity generated into account, and to re-orient Europe’s agenda from harmonization and unity to the management of complex conflict constellations. Following the financial crisis, such hopes and ambitions are obviously unrealistic, with substantial backing in already existing European law. This bold assertion has suffered numerous setbacks. For example, through the de-legalization and de-formalization of European governance.[263] At present, under the pressures of European crisis management, it continues to dwindle, and conflicts-laws constitutionalism is, for the time being, a merely critical project.[264] What can nevertheless be explored are the conflict constellations which the new modes of economic governance and the imposition of austerity politics on a large part of the Union generate – together with the space for counter-movements which the unfortunate state of the Union may generate. That, although, requires another project.

 

 

SECTION  III

Spheres of injustice: are refugees escaping from poverty of rights?

«Indifference is not a beginning, it is an end. And, therefore, indifference is always a friend to the enemy, for it benefits the aggressor, but never his victim».

(Elie Wiesel)

 

«Many, individuals or peoples, may  believe, more or less consciously, that every foreigner is an enemy».

(P. Levi, Se questo è un uomo)

 

«I call upon us to reject what seemed to be positive social identities. We should refuse to be gendered man or woman, refuse to be raced. This goes beyond denying essentialist claims about one‘s embodiment and involves an active political commitment to live one‘s life differently».

(S. Haslanger, Gender and Race)

 

«For one’s ideals, a man should only sacrifice himself, but never others».

(K. Popper)

 

 «Strangers in the night, two lonely people. We were strangers in the night».

(F. Sinatra, Strangers in the night)

 

«Back then long time ago when grass was green. Arrived like strangers in the night. Fab! Long time ago when we was fab».

(G. Harrison, When we was fab)

 

 

  1. Introduction

The aim of this section is to argue that the poverty migrant should be entitled to stay in a liberal democratic state after her Asylum application has been denied. I will defend this view against one main objection. For this purpose I will, first, introduce an ameliorative account of the poverty migrant. Second, I will defend this view against surrogate membership objection that disputes the similarity between refugees and poverty migrants.

            I will argue that the underlyng rationale of refugee protection as an instance of human rights protection does not single out a morally significant criterion that justifies affording the goods that come with refugee status only to those holding it in accordance with the Refugee Convention. Consequently, we have to broaden the scope of refugee protection; but with a broadened scope of refugee protection, we amplify the problem that is hard to single who should be awarded refugee status.

            But how should we categorize different threats so it is justified to afford refugee protection only to some people in need? I will discuss the view that a morally significant line falls between those people that can receive protection only by migrating to another country and those who can receive protection in another way, i.e. by exporting resources or carryng out diplomatic pressure, as a solution to this problem.

            Finally, I will describe the importance of a current political theory: that is to say the particular Sally Haslanger’s conception of race: she believes that all racial classifications ascribed to groups of people depend on social, geographical and historical contexts.

            I would begin with discussing and dismissing the surrogate membership objection and concluding that poverty migrant should be entitled to Asylum, as amoral philosopher might say that a ‘refugee’ is someone “whose situation generates a strong moral claim to admission to a state in which she is not a citizen”[265]. In the use of the ordinary language of politics, legal philosophers[266] needs an account of who qualifies as a refugee: the term ‘refugee’ signifies someone on the flight to freedom or protection, escaping circumstances like deprivation, poverty[267], civil war, drought, or natural disaster. A refugee is someone who “is worthy of being, and ought to be, assisted, and, if necessary, protected from the causes and consequences of flight”[268].

            These different understandings of who a refugee is should puzzle us as philosophers. Indeed, most accounts in political philosophy that defend that states are justified in limited immigration make an exception for refugees. This means that although they believe that states are generally justified in limiting immigration, they also acknowledge a special responsibility to offer refugee protection.  Accordingly refugees do not have to complete with other immigrants for entry, but have to show that their case is somehow special. The fact that there are these different understandings shows that the concept of ‘refugee’ in the Refugee Convention and our ordinary understanding vary significantly. Hence, depending on who we ask, the group that is entitled to special treatment changes. Here the question arises: out of the flows of people in need that cross borders, who is deserving of the goods that come with refugee protection?

 

  1. The poverty migrant: what is amelioration?

The first step of my inquiry is the introduction of an ameliorative account of the poverty migrant. For this aim I will briefly explain what an ameliorative approach is and then introduce the concept of the poverty migrant.

            The ameliorative approach is discussed by Sally Haslanger in her article Gender and Race, in which she defends a view that conceptualizes women and persons of color in respect to their subordinated position in a given society. In contrast to descriptive or analytic approaches that ask (in different ways) how we understand a concept already, the ameliorative approach begins with the question what our concept should accomplish[269].

            The concept is embedded in the larger project of a critical inquiry[270], that is why the content of the concept is determined by its role in the theory. This is the reason it comes with normative input[271]. Hence, the ameliorative approach is not bound by a given understanding of a concept, instead it offers a new way to think about it[272]. Katharine Jenkins summarizes Haslanger’s view as: “An ameliorative inquiry into a concept F is the project of arriving at the concept of F-ness that a particular group should aim to get people to use, given a particular set of goals that the group holds”[273].

            So, in contrast to descriptive or analytic approaches[274], the ameliorative approach does not ask who a poverty migrant is, but who we want her to be. By employing the ameliorative concept, we aim to point to a problem and ultimately to bringe about change.

            I think that the ameliorative approach is especially promising for our talk about immigration, because we have less salient and intransigent intuitions abut this concept. In contrast to a concept like ’woman’ that is loaded by biological assumptions, it is always up to us who a refugee, an economic migrant or a poverty migrant is. By providing a concept of the poverty migrant I aim to make the poverty migrant, her plight and her legitimate claim for entry visible in the debate about immigration. I aim to show that the poverty migrant is unjustified excluded from Asylum on the policy as well as on the principle level.

2.1 Who should be a poverty migrant?

In this section I present poverty migrants as a group of immigrants sui generis. I will argue for the following ameliorative account of the poverty migrant. A person P is a poverty migrant if,

  1. she is not able to migrate through general immigration policies;
  2. seeks special entry by applying for Asylum;
  3. and is not eligible to Asylum;
  4. but is deprived of her basic needs.

(C) That is why she should be entitled to stay.

            (1)-(3) constitute empirical conditions on the policy level, whereas (4) has a double function as an empirical as well as a normative condition on the principle level. (C) is the conclusion that liberal democracies should draw from (1)-(4). I will briefly say a bit about each condition in the following.

            (1) This condition draws on the practice of border crossing. Entering a state as a noncitizen requires one to have an entry permission like a visa. Depending on which visa one holds, rights and duties vary. Whenever a person wants to enter another country she has to fulfill certain conditions. Depending on different features and characteristics, the person who wishes to enter holds, it can be harder or easier to enter the state[275]. Entry requirements depend on the role in which a person wishes to enter and reside, the duration of the stay, qualifying characteristics for that role, the rights and duties the person enjoys during her stay and admission quotas[276].

            An economic migrant needs a work visa to enter a state, only such a visa will allow her to take up employment or to open a business. Often economic migrants are required to show certain skills to receive such a visa. They need the relevant education and work experience, they have to show language proficiency, an employment contract or someone who vouches for them. Hence, one’s ability to cross borders legally depends on her status in her home country as well as on the status of her home country in the world community[277].

            The economic migrant is able to cross a border to seek employment elsewhere legally. I submit that there is a qualitative difference between the French entrepreneur who aims to work in the Silicon Valley and the Albanian mother who goes to Germany and wishes to feed her family.

            The poverty migrant is in contrast to the economic migrant unable to seek employment in a different state legally, because she is in an unprivileged position. She lacks the features desired by the host state to be eligible for a work visa like education, employment contract or language proficiency. On my account the poverty migrant is distinct from the economic migrant, because she lacks the substantive opportunities the economic migrant enjoys.

            (2) Why only Asylum seekers? I would like to think more about illegal immigrants and people deprived of their basic needs outside of the territory of liberal democracies in the future. But for now they fall out of the scope of this paper. One reason why Asylum seekers are especially interesting is, that by applying for Asylum the poverty migrant exposes herself to the liberal democratic state. This establishes a link between the applicant and the liberal democratic state. That is why the liberal democratic state has to take her request seriously.

            (3) This condition draws on refugee protection. In contrast to other immigrants most refugees cross borders illegally[278]. Poverty migrants fall neither under refugee protection afforded by the Refugee Convention nor under the humanitarian protection based on the non-refoulement principle. The Refugee Convention offers protection for people who are outside of their home state and have well-founded fear of persecution for a limited range of reasons. Humanitarian protection is mostly based on the principle of non-refoulement. The principle of non-refoulement provides that no state shall return a person to a territory where she fears threats to life or freedom. Hence, the poverty migrant is excluded from the protection mechanisms offered by international law.

            (1) and (3) are empirical conditions, in case the policies in (1) and (3) change the poverty migrant will not exist anymore, because she will either gain entrance through general immigration policies or will be entitled to Asylum. This is not a bug of my theory, but a feature, because in both cases the poverty migrant would be able to leave her desperate position. Hence, if (1) or (3) are not given, this concept would be obsolete[279].

            (4) Is the core normative premise of this argument. It presses on the values and commitments of liberal democratic states. That is why one could assume that cosmopolitan views and particularist views – the two competing views in the immigration debate – differ in respect to it. But even particularist views – these are the views that defend that states are justified in limiting immigration – admit that there is a duty to help people in need. In most accounts this duty stems from the mutual aid principle or some other humanitarian principle. So on the level of principle the competing views agree: there is a duty to help persons in need. They also agree that the focus of refugee protection as explained in (3) is misplaced[280]. What we should focus on instead, is the protection of human rights or (less loaded through terminology) basic needs. It is only through further assumptions that these views draw a line between Convention refugees and other persons in need like poverty migrants. I will discuss these assumptions in the following section as an objection to my view. I submit that just as the refugee, the poverty migrant is deprived of her basic needs. The same values and principles that justify why the refugee is entitled to stay, hold for the poverty migrant. Liberal democracies are committed to the idea and protection of basic needs. This constitutes the normative condition the poverty migrant has to meet. It marks the unprivileged position of the poverty migrant as unjust.

            In sum, I argue that the poverty migrant is trapped through (1) and (3) in an unprivileged position (4) from which she (2) tries to escape. That is why (C), the poverty migrant should be entitled to stay. Following, I will discuss one main objection to the similarity between refugees and poverty migrants postulated in (4).

 

  1. Surrogate membership

This objections holds that poverty migrants and refugees are not similar in the relevant sense, because Convention refugees are special. Convention refugees are special, because they their basic needs are violated in a special way – they are persecuted. That is why, they need the special protection offered by Asylum. This objection is structured as follows:

  1. Liberal democratic states have a duty to help people in need.
  2. The means to help have to be used effectively. Group A can receive help only through action x, but group B can receive help through action x and y. If x is scarce, it should go to A instead of B.
  3. Persecuted persons can receive help only through Asylum, persons deprived of their basic needs can receive help through Asylum and other means. That is why Asylum should be reserved for persecuted persons.

            So, according to this objection refugees and poverty migrants are not similar in the relevant way, because poverty migrants can receive help through other actions.

            What motivates this objection? In Spheres of Justice Michael Walzer defines refugees as those people in need who lack membership in the political community, which is a nonexportable good[281]. Matthew Price takes up this idea, he calls his account the political view of Asylum. He argues that persecuted persons face a distinctive kind of harm that is to lack political membership. This point is rooted in the historical function of Asylum, as it was supposed to protect political offenders[282]. It is persecution that marks the loss of political membership. The practice of granting Asylum is a communicative act of condemnation between states. Granting Asylum is, as Price argues, a judgement on the legitimate exercise of authority of a state over its citizen. The idea is the following, by granting Asylum the host state sends a message to the home state, that is: there is something wrong in your home state, so your citizen has to seek protection with us. Hence, granting Asylum only to persecuted persons is deeply connected with its expressive character. Taken together these two points constitute the distinctive face of Asylum. What makes Asylum special, according to Price, is that it is the remedy to a particular kind of harm – persecution. According to Price persecution captures the particular kind of harm that is maliciously and unjustifiably inflicted on the refugee that seeks Asylum[283]. Asylum offers surrogate membership to those who are denied political membership in their home states. Asylum is the appropriate remedy for people who lack membership. Asylum is a scarce good. Thus, only those who lack membership should be entitled to Asylum.

            Hence, Price offers a view that justifies the limitation in the Refugee Convention to those who suffer from persecution. Price points out that Asylum is only one way to help, there are other measures like relief aid, development assistance, and humanitarian protection abroad[284]. These tools can be used to address the needs of those people who are excluded by Asylum, but Asylum is exclusively for those who suffer from persecution.

            In the following pages I will present three answers to this objection that each hold independently and complement each other:

            First, Asylum is not a scarce good. The argument offered by Price only works if we assume that Asylum is a scarce good in liberal democracies. This is particularly easy for particularist views on immigration. In these views the states decide for themselves when Asylum is scarce[285]. The assumption that Asylum is in fact scarce, sounds compelling as we remind ourselves of the 2015 migration crisis and the overload bureaucracies of European states experienced reviewing Asylum applications. But Asylum is only scarce, because these views and our practice make it scarce. In the case of poverty migrants their basic needs are at stake. They do not merely wish to immigrate, they are forced to migrate by the circumstances in their home states. That is why the burden of proof here should lie with the host state. To make this objection work liberal democracies need to show that they cannot take more people in.

            Second, the remedy that is needed by persecuted persons and poverty migrants are not different. Sarah Song argues that for his argument to hold, Price has to show that the needs of persecuted persons are significantly different from others who seek refuge. She states that we should not overemphasize the difference between Convention Refugees[286] and other people in need. Generalized violence or poverty can just like persecution stem from poor governance[287]. The state has failed to protect its citizens’ basic needs, when subsistence is threatened because of inadequacies in technology, infrastructure or distribution[288]. In such circumstances the receiving state is also justified in sending a message of condemnation, because the threat to basic needs stems from bad governance. Hence, this answer holds that the expressive character that constitutes the distinctive face of Asylum is also given in the case of generalized violence or poverty. By receiving Asylum the poverty migrant gets an appropriate remedy that – in addition – communicates condemnation of poor governance to the home state.

            Third, Asylum is not the kind of remedy Price takes it to be. Asylum, as Price takes it, offers surrogate membership in the host community. Asylum, as it is supposed to be, entails the rights codified in the art. 3-34 Refugee Convention. Such rights include the most favorable treatment for aliens – which means they enjoy the same rights as the best treated non-citizens – concerning the labor or housing market and access to education as well as social security that is available to citizens[289]. This broad set of rights meant to integrate refugees economically into host states. By exercising these rights refugees were supposed to provide for their own needs. If Asylum were like this, it would in fact only offer something similiar to surrogate membership. Many states do not naturalize refugees after time, so they are trapped in a limbus that requires them to renew their refugee status every couple of years[290]. Only through naturalization refugees can enjoy membership rights like to right to vote or to take public offices. This means, that the Refugee Convention offers at its best participation rights, but not membership rights.

            Unfortunately many states do not provide these participation rights either, so they rely on the host states[291]. Asylum as it was intended, should grant a broad array of rights, but today Asylum is rather assistance. Hence, Asylum as we practice it today does not offer surrogate membership. That is why it is not only an appropriate remedy for persecuted persons, but also to those who lack basic needs. Hence, we cannot restrict Asylum reasonably to those who lack membership.

 

  1. On Sally Haslanger’s conception of race

Sally Haslanger believes that races are hierarchical social classifications that must be eliminated in a just world: “Justice will never be achieved by just working to change beliefs, for the habits of the body, mind and heart are usually more powerful than argument. As a result it must be a non-trivial part of feminist and antiracist efforts, not just to change minds, but also to retrain bodies, and not just to retrain bodies, but to change the material conditions that our bodies encounter on a daily basis.”[292]

            Although races are real as social categories[293], their reality is the product of unjust social structures and hence should be resisted[294]. So one can ask:

  1. Why can‘t we conceive of races as non-hierarchical social classifications and look forward to racial equality?
  2. Doesn‘t she unwittingly invite assimilating policies that reject certain “races or ethnicities” by arguing for elimination of races?

            These questions about her depiction of race will be the points of departure of the subject matter of this paper. I will name the first  “the conceivability” and the second “the assimilation” question for brevity. My underlying assertion will be that as Haslanger argues, eliminating hierarchical races and organizing ourselves around cultural features or practices seems as an idea worth to dwell on.

 

  1. Race: natural or constructed?

Haslanger discusses race and gender together as she thinks there are certain similarities between them as social categories[295]. She takes sides with the social constructionist camp in regard to the question of race and gender. Because she thinks both are real as social classifications, and thus are social kinds, she identifies her account as realist[296]. Haslanger believes that all racial classifications ascribed to groups of people depend on social, geographical and historical contexts. There are not racial essences of any sort and consequently “people can travel from the United States to Brasil and function socially as a member of a different race”.[297] Also, in different contexts racial differences are drawn according to different features, e.g., the Brazilian and U.S. categorizations for who count as Black[298] differs tremendously[299]. That implies that none of the physical/anatomical features such as color, hair texture, eye shape and so on are essential to race. That is also approved by scientific findings, too. Recent research in race genetics and biology has not given us enough evidence to believe that there are certain natural properties that refer to racial classifications[300]. Hence, she claims that race is a biological fiction[301].

            Just as materialist feminists think gender is social meaning of sex, Haslanger thinks race is the social meaning of “color”, that is, the social meaning of the geographically marked, “colored” body[302]. By color she doesn‘t solely point to the skin color of groups of people such as Whites, Blacks, Browns, etc., but also to their eye and lip shapes, hair texture and so on[303]. Here is the definition: “A group is racialized if its members are socially positioned as subordinate or privileged along some dimension (economic, political, legal, social, etc.), and the group is “marked” as target for this treatment by observed or imagined bodily features presumed to be evidence of ancestral links to a certain geographical region”[304].

            Whether or how a group or individual is racialized is not an absolute fact but varies according to context. Shen otes that Blacks, Native Americans, etc. are currently racialized in the U.S., whereas the Italians, the Germans and the Irish used to be racialized in the past. Nonetheless, it doesn‘t mean that they won‘t be racialized again when the context changes[305]. Haslanger‘s account of race bears a difference at this point from her account of gender. Her definition of gender allows for both hierarchical and non-hierarchical or non-oppressive classifications. She provisionally offers such alternative classifications as lactating persons, pregnant persons and so on because she thinks some females bear the burden of maintaining the species of human and a just society must address to those differences[306]. However, when race is the case, she thinks no anatomical or biological differences of different groups provide a ground for such distinctions in any context or world.

 

  1. A racialization case: the Kurds

Kurdish people have faced discrimination and suffered various sorts of oppression in Turkey for the last half century. Although they have been one of the archaic peoples that have existed in eastern Anatolia for hundreds of years, life started to change for them and for some other indigenous peoples such as Armenians and Assyrians in their region after the foundation of “Turkish Nation State” following World War I.

            In fact the discrimination and oppression they have faced has been in a variety of ways. Yet, the denial of their ethnical and cultural identity and the indoctrination of Turkish identity have been the most damaging. The people who have resisted assimilation have been punished in varying degrees, e.g., with social oppression, imprisonment, torture, death sentences and so on.

6.1 Resisting racism by recognition and compensation of the racialized groups

Haslanger thinks that in the short term the urgent thing to do is to resist and combat racism which first of all requires recognizing racialized groups or ethnicities[307]. Remember that her definition of races involved hierarchies which subordinated some and privileged the others. Because an ideal and just world requires elimination of hierarchies, races must be eliminated. On the other hand, in the case of Kurdish people, one attempt of oppressing the Kurds has been to claim that Kurdish race is actually fictitious. According to a theory defended by Turkish State in the 1980s, Kurds have been claimed to be actually mountain Turks whose wandering on mountain snow has produced “kart-kurt” sounds and which, thus, has inspired people to name them “Kurd”[308]. According to “The Sun Language Theory”, another hypothesis which was developed and supported by Ataturk, the leading figure in the foundation of Turkish Republic, in 1930s, all languages are descendants of one proto-Turkish primal language, and so is Kurdish[309]. These two theories which have been developed and supported by Turkish state ideology have for very long years denied Kurdish race or ethnicity[310]. Even today there are some people who hold thissort of beliefs[311]. This instance apparently shows the cunningness denying the existence of a racial/ethnic group and by this means ignore the social, political, economic responsibilities of a state to the assimilated and oppressed group.

            Although some may believe that Haslanger‘s idea of elimination of races in a just world seems to invite and support such means of oppression or assimilation to some subordinated racial or ethnical groups, in my opinion this is not the case. She would reject the idea of overlooking and undermining the Kurdish race, its culture or identity[312]. She endorses and allows embracing one‘s ethnic culture or identity as a tool and resource to resist against racial injustice. She thinks, “for members of subordinated races, their racial affiliation… is often not only a source of pride and value in their lives, but has provided resources to combat racial oppression”[313].

            Another significant remark that shows that Haslanger‘s account doesn‘t invite such kind of assimilations concerns her view about the social, political and economic structures or institutions of a state. She thinks that in order for a system or structure to be just and non racist it must not be “neutral”, “color blind” (or gender blind) against the racialized groups that have faced racial harms. So-called “neutral” institutions contribute to and sustain injustice rather than preclude it. Nonetheless justice requires the recognition of the racialized groups and past harms be compensated[314]. The individual efforts of well-meaning people would not suffice to recognize and compensate the past harms done to racialized groups, either, but rather, structural adjustments are required to resist racism and finish social injustice[315].

 

  1. Future prospect: the elimination of races based on “color”

Our conceivability question inquires why she suggests the elimination of hierarchical races rather than suggesting preservation of race and work towards racial equality. She responds to three alternative arguments for non-hierarchical races. According to those three arguments, races can be interpreted as meaningful social classifications that need to be preserved.

  1. The first argument points out the ‘medical necessity of “color” coding‘[316]. According to the proponents of this argument for race, they think that some races may have genetic patterns that are susceptible to diseases and therefore societies must be prepared as a matter of justice to address those races that have risk factors. However, Haslanger claims that the basis of the links made between races and diseases is social rather than biological, particularly in the United States. Although the diseases Black people suffer are biological, the racial differences are not.Blacks are more susceptible to such diseases as H.I.V.-A.I.D.S. or diabetes not because they have as a race susceptibility to those diseases but because “race” affects their income, healthcare, housing and so on and that they have effects on health. We could group an individual born in or with ancestors from a distinct area with the same genetic defect with those Black people when the issue is medical.
  2. Lucius Outlaw argues that different “colored” racial groups may be “the result of bio-cultural group attachments and practices that are conducive to human survival and well-being”.[317] He argues that races are socially meaningful and inevitable. He thinks people desire to achieve relative immortality by choosing mates from their inner communities and thus have offspring that “look and carry on somewhat like” themselves[318]. He consequently argues that this natural way of reproduction renders their races fit for survival. Haslanger finds this argument quite weak. She gives many empirical examples from history in which different races or ethnicities or tribe sex change their woman to increase their chance of friendship or for some other purposes. She also criticizes “the valorization of descentwhich is seen by Outlaw as a factor that contributes to the uniformity of ‘color’ in population”. Yet, Haslanger thinks valorization of descent may contribute to hierarchical family forms in even “liberal democratic societies”. Parentless or adopted children and women who give birth to “illegitimate” children may be mistreated in a society where the descent is valorized[319].
  3. Linda Alcoff introduces the notion of “ethnorace” which she thinks is more useful for understanding the complex character of social divisions[320]. She thinks neither mere “color” nor “ethnicity” is sufficient to understand the diversity of ways in which people are racialized. Many social groups such as Latina/os and Asians do not fit many assumptions typically made about races since they are diverse in “color”, which is why ordinary Black and White binary remains insufficient to define those racialized groups who have shared experiences and a common history. She opts for the idea of reconstructing positive racial identities, i.e, ethnoraces, such as Pan-Latina/os, Pan-Asian which will have two crucial dimensions. First, ethnorace is group of people who have been marked bodily as of the same race, and second, active agency and subjectivity become a feature of those people in order to constitute their shared identity as they share common cultural elements. Although Haslanger believes that such conceptions of ethnicity, ethnorace, culture, pan ethnicity and so on are to be employed for understanding the more constructive efforts to form new identities that do justice to our histories and experiences[321], she avoids taking a normative stand on the issue of opting for positive reconstruction of races or ethnoraces or pan-ethnicities. She thinks that an account of race that is centered on shared history or common culture and a corresponding strategy to fight against racial injustice by reconstruction of races in terms of those commonalities produces the problem of normativity. She argues that in gender studies, the problem of commonality questions whether there is anything social that females have in common that could count as their gender. Accordingly, normativity problem raises the concern that any definition of “what woman is” is value-laden, and will marginalize certain females, privelege others and reinforce current gender norms[322]. Even though she thinks there migh be nuances, the problem of commonality and normativity can be extended to racialized groups, too. “Insofar as a reconstruction of race in terms of history and experience will have to provide an interpretation of that history and experience, and so select what aspects to highlight, we re-encounter the problem of normativity”.[323] As opposed to Alcoff, Haslanger thinks that races do not require any common culture, identity and so on. Races are more ascribed to people rather than embraced by them, that is, whether they want it or not people are socially positioned as subordinated or privileged structurally. For instance, the internationally and interracially adopted children in the States are still racialized because of their “color” even when they are brought up in an identity and culture that is unrelated to their birth country or a pan-ethnic identity. So, she concludes, although the concept of ethnorace seems to be an interim category to understand the future evolution of today‘s raced societies, she finds it controversial whether it is valuable and is skeptical about encouraging social investment in positive racial identities. She believes encouraging ongoing social investment in “color” is “harmful”.[324] 

 

 

  1. The effects of institutional denial of recognition: sociology of the injustice of type Racial Profiling

The types of effects o frecognition provide an analytical framework that will give an account of the diversity of claims for recognition. Inparticular, the denial of recognition can take, sometimes, the shape of the “invisibility” of type, “colour-blindness” invisibility for those that do not correspond to a socially enhanced presentation of self (this is the case in the type of racism in Ralph Ellison’s novel  Invisible Man)[325].

But invisibility can also be a consequence of a “stigmatizing contempt” (stigmatisation[326]): it is the case that corresponds to the type of racism described by Fanon in the chapter of Pelle nera, maschere bianche entitled  “The  experience lived by the blacks.”

Furthermore, another goal of my research is an analysis of the change that in the last few years has invested both the sociological and constitutional dimension, since the introduction of the so-called Critical Race Theory and its emblematic building process of the breed defined as “racialization” within the discriminatory processes of the type “Racial Profiling”, which started in the American context, and are emerging and developing in Europe, following the advent of multiculturalism in contemporary liberal democracies.

The presence of the breed is the main data that informs different policies, based, originally, on belonging to ethnic African-American and later extended to all non-white minorities. In this context, there are those who have  made reference to a double track along which runs the American penal system, incardinated in the matrix of the racial “whiteness vs. Colour[327].

            One of the most problematic institutions, is certainly that of racial profiling, “an ultra-modern investigative technique based on ethnic or racial profiling that leads to different treatment  and applied, generally, only to minorities of colour”; however, the white majority,  is usually excluded.

Not many previous research efforts have been directed towards an investigation that focuses only on the use of racial profiling  techniques, excluding outright all the important contributions madeby the School of Critical Race Theory (CRT) and the  “constructive” role of the law in the formation of the races. There does not, in fact, exist  to date, a real study that has a higher flow rate, a search that embraces the interactions between different constitutional systems among them, such as the American system and that tied to the typical patterns of continental Europe. In addition to the conceptual framework proposed in the research of Gotanda, of particular significance as a reference model is the work done by Schauer (2003)[328], as it is an investigation on solid profiling in general[329], conducted with great sociological sensitivity.

            With the intention to adopt a perspective closer to that of the Critical Race Theory[330], my research aims, in the light of the ineffectiveness of the social costs and injustices that this practice involves, to analyzethis technique, highlighting the limits on the theoretical and application levels, also with the intention of making a contribution to the debate and those positions that are intended to reduce or eliminate the legal systems and security policies.

The study of Zanetti, is to be used as the basis for a theoretical framework of normative arguments on racial profiling, along with, of course, the anthology edited by the same Zanetti and Thomas, which is, according to the definition of Casalini (2006)[331], “a useful tool to get closer to a theory deeply connected to the multiracial reality of the United States of America, but whose interest may well go beyond the specific legal tradition”.

            Thus, from the contributions of Groppi (2006), through the methodological approach of lexical survey conducted by Balbo (2006), drawing from research conducted by Bonetti (2006) and without underestimating the importance of the socio-comparative studies of Goldoni (2007)[332], my proposal for discussion around the racial profiling on the one hand, and the racialization on the other, can only be preliminary to a more delicate original rethinking of the relationship between law, minorities and “the rhetoric of race“. Despite having been the subject of grea tinterest from the American Academy, in the Italian debatethe institution of racial profiling has not occupied a prominent place. The absence of the theme does not correspond with that of practice: the European Commission Against Racism and Intolerance (ECRI), in fact, has advised Italyof a series of important concerns about discrimination by the authorities in respect of the foreign minorities (especially the Roma).

The effects of the measures taken after the attacks in Madrid and London are not yet measurable, but portend developments on which a scientific debate would beat least desirable, provided that this is done taking into account the wider reality of racism in Europe. Indeed, it would be a grave mistake to assume that the genesis of the American theme exempts Europeans from dealing with an institution that seems to have several applications in the space of Community law.

 

SECTION  IV

Liberal ethics of migration or populist anti-immigrant rhetoric?  

«Let us show them how to play the pipes of peace. Will the human race be run in a day?
Or will someone save this planet we’re playing on».

(P. Mc Cartney,  Pipes of peace)

 

«The eastern world, it is exploding. Violence flaring, bullets loading. You’re old enough to kill but not for voting. You don’t believe in war, but what’s that gun you’re toting? Ah, you don’t believe we’re on the eve of destruction».

(B. Mc Guire,  Eve of destruction)

 

«We shall overcome, some day; we shall live in peace, some day».

(J. Baez,  We shall overcome)

 

«In a universe subtly stripped of illusions and lights, man feels like a stranger. There is no defense against contempt. Every man is a criminal without knowing it».

(A. Camus, The Stranger)

 

«As fast as the wind, as slow as a forest, assaults and devastates like fire, be as motionless as a mountain, as mysterious as yin, as fast as thunder. With order, tackle the disorder; calmly, impetuousness. This means having control of the heart».

(Sun Tzu, The Art of War)

 

«In life the most important thing is to live the present moment with the utmost attention. All existence is nothing but a succession of moments after another».

(From Hagakure: The secret book of the Samurai)

 

 

  1.    Right-wing populist movements and the anti-immigrant rhetoric

Over the last three decades, right-wing populist movements have been gaining increasing consensus in liberal democracies[333], and have become real competitors to mainstream political parties, as the results of the most recent political elections in Western Europe confirm[334]. Right-wing populism is even stronger in Eastern Europe’s younger democracies[335]. While in the U.S. Trump’s election in 2016 was seen as an unprecedented phenomenon, right-wing populist parties had already obtained remarkable results all over Europe in earlier elections and their appeal does not seem to be substantially undermined when they cease to be outsiders and participate to government. Thus, their success is neither episodic nor a mere expression of protest votes[336].

            Despite the differences among them, these parties share a populist and nativist ideology[337]. Their anti-elitist claims aim at replacing the values of the dominant establishment with the common sense of the people[338], as explicitly stated in Italian Northern League slogan for 2018 elections, “The revolution of common sense”. Therefore, a first antagonism emerges, opposing the virtuous people and the corrupt elite. However, another core trait qualifies these movements as “right-wing”: namely, the antagonism between the homogeneous native people and the aliens. These two antagonisms often overlap: the cosmopolitan establishment is believed to plot against the people, protecting immigrants more than their own citizens[339]. Authoritarian tones are also utilized to stress a firm rejection of the establishment tolerant and multicultural policies and to call for the restoration of law and order.

            Right-wing populism is thus marked by a strong anti-immigrant rhetoric, which is emerging as its most noticeable feature[340]. It promises to prioritize nationals in the access to welfare state and employment, as well as to protect their distinctive culture, endangered by the newcomers with the complicity of the corrupt elite[341]. Ironically, such a nationalist and exclusionary ideology has a transnational character[342], being declined in a similar vein in several countries[343].

            It is certainly true that a reasonable disagreement can also be traced in the academic debate among political theorists on the ethics of migration. Even leaving communitarian critiques aside to focus on liberal political theory only, it is clear that authors disagree on what justice in migration requires in principle, as well as on how states should act under current non ideal conditions. Since the ethics of migration is mainly concerned with immigration in Western countries, the key issue has long been how inclusive admission policies should be. On the one side, liberal egalitarian thinkers, such as Joseph Carens, argue that, at least in principle, justice in migration requires open borders[344]. On the other side, liberal nationalists such as David Miller defend the right of the receiving state to exclude immigrants in order to protect citizens’ national identity and interests[345]. Moreover, not only admission policies but also integration and citizenship policies are disputed: theorist are far from unanimous when it comes to what is due to immigrants who already settled.

Briefly, liberal theorists disagree on how to balance cosmopolitan impartialist moral claims, consistent with the principle of individuals’ equal moral worth, with the partialist moral claims of the citizens, grounded on the State’s special responsibility towards them[346].

            It may be suggested that what right-wing populism is seeking to convey is ultimately a legitimate claim for partiality. However, despite a reasonable partiality towards compatriots may be compatible with liberal principles, as Miller contends, right-wing populist propaganda often radically exceeds the limits of what is admissible in a liberal perspective. Not only the contents but also the language chosen to express them are aimed at challenging basic liberal principles, embedded in the alleged “dictatorship of the political correctness”. Right-wing populist movements go as far as denying any obligation whatsoever towards non citizens. They may justify mass refoulement of undocumented migrants before they reach national borders, irrespective of migrants’ personal conditions or potential refugee status, and the deportation of those who managed to cross the borders. They may even deny fundamental rights to national or non-national residents who are not recognized to be part of the nation. In fact, members of groups perceived as “others” (e.g. Roma and Sinti minorities, immigrants, and persons of immigrant descent, especially Muslims) are “depicted as unable to be and even become fully functioning members of society”[347]. Since they are not recognized as equals, they cannot be trusted as fellow citizens.

            It is worth noting that some supporters of right-wing populist movements may not be aware of holding unreasonable beliefs, and may even think to be the actual guardians of the liberal Western heritage which is threatened by the barbarous invaders[348]. Anti-elitist sentiments, moreover, make them suspicious towards the moderate tones of academics, and even mistrust mainstream press, which is thought to be as corrupt as the political elite and to hide or minimize the dangers that immigrants presence entail[349]. Therefore, they may rely on the most sensationalistic tabloids or on partisan niche media, which in turn reinforce stereotypes and foster readers’ hostile attitudes.

 

2.    Anti-immigrant sentiments in the ethics of migration

            Despite posing a serious challenge for liberal political theory, the diffusion of populist anti-immigrant sentiments have not gained much attention in the ethics of migration[350]. For instance, the issue is not included by Carens in The Ethics of Immigration, while in Strangers in Our Midst, David Miller only mentions the existence of “resentful working-class whites, susceptible to incitement by far-right parties”[351].

            A reason why the diffusion of anti-immigrant sentiments and the rise of right-wing populist parties have not been addressed may lie in the idea that normative political theory is primarily concerned with what is morally ideal. Therefore, as Matthew Gibney noted, normative theorists are inclined to abstract from practical constraints, including political ones[352].

            A further reason to exclude the claims of the populist right-wing movements from the scope of an ethics of migration may depend on their being dismissed as embarrassing, unreasonable and not worth philosophical concern. Such claims can be overtly racist and hardly defensible on the grounds of liberal principles. A liberal nationalist thinker, like Miller, can contend that “the general justification for immigration restrictions involves an appeal to national self-determination and in particular a people’s right to shape its own cultural development”[353], but he would nonetheless deny that such a principle can legitimize the rejection of a migrant’s claim to entry on the basis of their nationality, ethnicity or religion. In a liberal view, the principle of non-discrimination constrains the principle of self-determination[354]. When it comes to integration policies, despite arguing that the human right to religious freedom does not go as far as requiring unessential features like minarets, Miller maintains that Muslims cannot be refused a mosque to pray in[355]. As in the case of the Swiss referendum on minarets, it seems that right-wing populist claims can at best offer a point of departure for some sensible general reflection, once deprived of their “lurid language”[356], but that they do not deserve to be taken into account as such[357].

            By contrast, I argue that populist anti-immigrant sentiments should be taken seriously. This is not to say that they should be granted the same epistemic status as reasonable arguments. However, besides posing a risk for the stability of liberal institutions[358], the diffusion of populist anti-immigrant sentiments in particular entails at least two additional relevant implications for liberal political theorists interested in the ethics of migration.

            Firstly, the rise of populist anti-immigrant parties results in strong feasibility constraints for a liberal ethics of migration. As I will discuss in more detail in the following section, normative theorizing may include different degrees of idealization, depending on the goal of the inquiry. When it is meant to address current immigration policies, an ethics of migration is supposed to include at least some real world features which policy makers cannot ignore. Public opinion’s hostile attitude should be counted among these features, since forcibly imposed policies can provoke backlash reactions. Of course, admitting the existence of feasibility constraints does not mean to passively accept them. Some existing constraints can and ought to be loosened, but they must be recognized first.

            Secondly, anti-immigrant sentiments in Western liberal democracies are politically relevant from the legitimacy point of view, as expression of citizens’ opinion and electoral choices. Anti-immigrant sentiments emerge as precise political claims defended by populist right-wing parties which take part in representative legislative organs, including local administrations, national parliaments and the European parliament, and have already been part of government coalitions, too[359]. Moreover, the official line of populist right-wing parties does not exactly mirror the stances of their supporters: the electorate is not uniform and some of them may hold even more radical views than their elected representatives. Therefore, the principles of democratic legitimacy impose to take seriously the claims of both populist right-wing parties’ representatives and electors.

            It might be argued that, in a representative democracy, citizens express their preferences while voting, so taking into account such preferences through the electoral system is sufficient for democratic legitimacy. However, as Nadia Urbinati pointed out, representative democracy is better understood as a diarchy of will and opinion, where “the sovereign is not simply the authorized will contained in the civil law and implemented by states’ magistrates and institutions” but also “the opinion of those who obey and participate only indirectly in ruling”[360]. Thus, election day is not the only moment when the citizens’ opinion matter: what citizens think and say outside the polling place cannot be ignored.

            In sum, populist anti-immigrant sentiments should be taken seriously by political theorists, instead of being blamed, demonized, or simply dismissed as untenable. If theorists aim to offer practical guidance to policymakers, they need to recognize that such sentiments ought to be addressed and examined: liberal politicians should listen to the claims of right-wing populism supporters. They should admit the existence of serious underlying issues, such as unemployment or housing scarcity, and separate those real problems from inconsistent, simplistic, or unreasonable conclusions, which should be contested on both principle and factual levels. Taking anti-immigrant sentiments seriously implies a commitment to keep a continuous dialogue with those citizens who hold such views, recognizing them as interlocutors, and offering them reasons to reject populist right-wing rhetoric.

 

3.    A realistic approach

In order to include the issue of populist anti-immigrant sentiments, a realistic approach to the ethics of migration is needed. According to Joseph Carens, normative theorists can situate their work along a continuum, from (extremely) realistic to (extremely) idealistic[361]. An idealistic approach is particularly useful to focus on what justice requires in principle, under the best circumstances, because it allows to transcend most practical constraints and to radically criticize the status quo. An idealistic approach permits to see that the best realistic option may not correspond to what justice ultimately requires[362]. However, as Carens himself recognizes, the more idealistic the approach, the more current issues would disappear from the view[363]. An idealistic approach is thus unhelpful if we are interested in what to do here and now to address urgent problems, such as the diffusion of anti-immigrant sentiments.

            A realistic approach, by contrast, takes institutional, political and social reality into account. It tries to identify the agents responsible of bringing about a change and to offer feasible proposals having plausible chances to be implemented under current conditions. Gibney’s method aimed to “combine empirical and theoretical elements in an attempt to bring considerations of values and agency together”[364] can be considered an example of a realistic approach to the ethics of asylum. The first ten chapters of Carens’ last book on the ethics of migration also adopt a realistic approach[365]. As the image of a continuum suggest, there is no such thing as a single realistic approach to the ethics of migration, but several approaches can be more or less realistic and include different factual conditions, according to the scope of the inquiry.

            It is worth reminding that a realistic approach to normative political theory must not be conflated with realist political theory. Realism is not merely an approach but an alternative tradition having a distinct conception of politics and political theory[366]. Despite the degree of idealization can vary, liberal normative political theory belonging to the Rawlsian tradition cannot be realist[367]. Analogously, I am arguing here that liberal ethics of migration cannot be realist[368], but still it can be realistic.

            To sum up, even though the ethics of migration cannot be realist, it still can be realistic: assuming a realistic approach allows political theorists to see the issue of anti-immigrant sentiments and to see that it results in feasibility and legitimacy constraints to liberal inclusive policies. Only one these constraints become visible, theorists can start wondering how to loosen them.

            Taking anti-immigrant sentiments seriously implies a commitment to engage in a dialogue with those citizens who hold such views, recognizing them as interlocutors, and offering them reasons to reject populist right-wing rhetoric. Theorists adopting a realistic approach to the ethics of migration can stress the importance of this goal and offer some lines for political action.

 

  1. Two lines of action

            It can be argued that the diffusion of anti-immigrant sentiments is first and foremost a product of structural causes, such as the current global economic regime, the subsequent erosion of citizens control over the policies of their own government and the demand of protectionism. This is a wide issue for political philosophy, but it is best understood in the frame of a broader global ethics. Despite the scope a realistic approach ethics of migration is much reduced, some normative conclusions can be drawn even in a scenario where the constraints imposed by current structural, macroeconomic arrangements still hold.

            I will not attempt to provide precise policy prescriptions, nor to suggest a comprehensive strategy. However, my aim is to propose some possible directions that may be developed to offer liberal democracies practical guidance in discouraging opinion’s hostile sentiments towards immigrants. I suggest two lines of action: promoting interaction at the local level and providing information on immigration-related issues.

            Promoting interaction is a way to reduce mutual prejudice and foster social inclusion. Political theorists rely on the wide literature on immigrants’ integration, which is mainly understood as a matter of national policy, as if it could be designed and applied uniformly to the whole territory of a State. Nevertheless, scholars and policy makers are becoming increasingly aware of the fact that migrants’ social inclusion is primarily at stake at the local level[369]. Normative theorists too should devote more attention to the local character of social inclusion. In fact, local administrations already have some autonomy in shaping their own inclusion policies. Most importantly, cities and villages are the phisical spaces where citizens and immigrants live. It is at the local level that citizens directly experience a growing diversity in their neighborhoods during their everyday activities[370]. Anti-immigrant sentiments, then, can derive from a feeling of displacement due to “multicultural place-sharing”[371]: as the town landscape and population become increasingly unfamiliar, citizens may feel insecure. It has been suggested, then, that not only migrants’ but also citizens’ experience of uprooting ought to be taken into account[372].

Briefly, inclusion policies are best understood at the local level not only because they are already locally elaborated or carried out, but also because they ought to be context sensitive and to address the specific needs of a given local community. Despite interaction per se may not be sufficient to discredit mutual prejudices and may also reinforce them, positive interpersonal relations is likely to reduce hostile sentiments[373]. Local governments possess better knowledge than national or supranational ones on their territory and population, so they can focus on single neighborhoods and villages to listen to residents claims, to detect and prevent conflict and to foster positive interaction among citizens and immigrants. Local governments are also placed in a favorable position to carry out a bidirectional dialogue with residents and avoid paternalism: if interaction policies are perceived by citizens as an imposition by a distant, central government ignoring their everyday problems, such policies may strengthen anti-elitist sentiments along with anti-immigrant ones.

            Populist right-wing elected representatives in local governments may oppose interaction policies, claiming that immigrants should be refouled or expelled, rather than admitted and included. However, since they value law and order, they may agree that achieving peaceful coexistence between native and (legal) immigrant residents is a somehow desirable goal. Some of their supporters may still resist the opportunities to interact with immigrants, but positive interaction, at least, is expected to increase interpersonal trust and reduce the appeal of anti-immigrant rhetoric on those citizens who have not yet assumed excessively radical positions.

            It might be argued, though, that interaction policies cannot be effective in the case of populist right-wing electors living in areas where immigrants’ presence is scarce, since they seem to base their hostility more on press sensationalist news or hearsay evidence than on personal experience.

            This objection strengthens the importance of information: since not only direct contact but also exposure to media representation of immigrants can influence citizens’ attitudes[374], information, as a form of distant interaction, can be considered as crucial as personal interaction.

            Empirical research shows that citizens overestimate the incidence of immigrants presence in their country[375]. Some studies even suggest that the actual number of immigrants living in an area is unrelated to increasing or decreasing anti-immigrant attitudes[376]: it seems that the perception of the immigrants’ presence a matters more than the presence itself[377]. This is why it is necessary to provide detailed and reliable information on sensible topics, such as the actual immigrants’ presence rate, who those migrants are, or which contexts they come from.

            Stereotypes on immigrants and scapegoats change from a country to another, but overall the suspicion about asylum seekers has increased because of the recent so-called “refugee crisis”. Since migration has jumped on the top of political agendas, as well as on the front page of newspapers, citizens should be offered sufficient knowledge of immigration and asylum law and policies. Populist right-wing parties rhetoric conflates migrants and asylum seekers, equating all categories to illegal migrants and claiming that they represent a threat for public order and pose a financial burden for the state, receiving undeserved benefits at the expenses of citizens. Therefore, citizens should be able to have a clearer idea of how many refugees and asylum seekers live in their country, comparing the rate to the overall immigrants’ rate, whether or not they are authorized to work, or how heavy actually is the financial burden they pose. Moreover, citizens should be better informed about the countries migrants and asylum seekers come from as well as about the reasons why they can be granted asylum. For instance, citizens may ignore the existence of some armed conflicts or the fact that persecution on a personal bases can make a country unsafe for a particular person even though that country is not at war.

            In the case of information, the risk of paternalism is even higher than in the case of interaction policies. Again, local administrations can be the key actors in providing open forums where citizens can express their views, have them taken seriously and be offered alternative ones, instead of being considered as passive recipients of information or, worse, as plebs who solely deserve to be reeducated. Along with local administrations, NGOs and private companies can also engage in information strategies or organize meetings, addressing a general public or particular groups such as populist right-wing supporters. Such non-state actors too should avoid paternalistic approaches.

            Last but not least, information needs not only to be made available but also to be efficaciously communicated. Right-wing populism provides citizens with oversimplified yet convincing pictures. Therefore, they are unlikely to look for alternative accounts and may be skeptical towards excessively vague, nuanced and complex ones. Solid counterarguments should be specifically formulated to oppose right-wing populists’ flawed rhetoric and addressed to the very same people target. Such counterarguments should highlight why populist rhetoric is fallacious or misleading and offer a credible alternative account. Finally, since populist right-wing message is particularly effective in appealing to emotions and values, not only rational but also emotive roots of anti-immigrant sentiments are to be taken into account while developing an information strategy.

 

  1. Personal conclusions

1) Even the harshest critics have acknowledged Kelsen’s great historical merit: to have brought about a decisive change in direction in the study of international law, moving away from the narrow perspective of statist legal positivism towards a presentation of the problem of the world order in radically new terms. There is no doubt that Kelsen, fifty years ago, anticipated many of the legal and institutional problems that have emerged at the international level in the second half of our century. Consider the processes of globalization that have dramatically raised the issue of the crisis of nation-states and of the Westphalian system founded on their sovereignty. Consider the growing assertion of the doctrine of human rights and the new practice of `humanitarian intervention’ to protect them, phenomena that have both contributed de facto to extending the subjectivity of international law to individuals[378]. Consider, over and above all, the recent creation of the International Criminal Tribunals for the former Yugoslavia and for Rwanda – mandated to judge war crimes and crimes against humanity committed by individuals – which are very likely preludes to the creation before too long of a permanent international criminal court.

            Moreover, one cannot fail to recognize the profound originality and theoretical greatness of Kelsen’s internationalist constructions, supported by many, among whom Norberto Bobbio[379], Richard Falk and Antonio Cassese[380]. Finally, one cannot but recognize that, despite the proclaimed purity of his theory – indeed, incorporating in it, with systematic inconsistency, a quantity of value assumptions and historical and empirical references – Kelsen has proved himself a jurist attentive like few others to the international events of his time: from the `nationalist madness’ that invaded European culture with the failure of the League of Nations, to the primary imperative of the construction of a more ordered, peaceful pattern for the world after the scourge of the two world wars[381].

            To conclude, the first section argues that visactions should be considered a distinct form of force from acts of war. The vis/bellum distinction can be maintained by the difference in the degree of force used, the timeline of the operation and the theatre of operation. I think that even though changes in modern warfare, namely the introduction of new weapons such as drones or the evolving nature of threat are crucial to bring visactions to the forefront of academic attention, vis actions are not particularly a new feature of modern war. This is why it’s even more urgent to recognise vim force as morally distinctive from bellum. Only when this is applicated can we move on to the legal and moral implications of such a separation.

            2) The debate between consociationalists and liberals seems to have a reached a stalemate. While consociationalists claim that the institutional devices they propose for achieving a more inclusive approach towards comprehensive worldviews do not conflict with liberal values concerning the liberty and equality of the individual, while liberals fear that any focus on groups as the unit of political representation and debate may impede the individual’s freedom[382]. The second section has provided a new perspective on this debate between consociationalism and liberalism. I have shown that it is not only the institutional arrangements that determine the inclusiveness of a democratic system, but also (or perhaps even more so) the understanding of comprehensive outlooks or group identities underpinning these institutional arrangements[383]. The liberal secular contention that the public and the private sphere can and ought to be separated forms a normative, comprehensive, worldviews in itself. Theories taking this as their point of departure are thus not neutral towards comprehensive worldviews, but instead risk subordinating certain worldviews to others on basis of this distinction.

            A reinterpretation of the public/private divide has not resolved the current impasse in the consociationalism/liberalism debate. What has been argued is the two positions should not be conceived of as opposites, but rather as similar understandings of and solutions to different problems[384]. While the object of both theories is different, religious difference versus (ethno-) national difference, both see this problem through the lens of the supposed neutrality of the public sphere, and offer a solution based on the assumption of the desirability of the neutrality of the public sphere. When we look at the debate in this way, it becomes clear that we do not have to be either consociationalists or liberals, but that the two perspectives are compatible to the extent that they have different subject matters.

   To move beyond the dichotomies implied by public/private, accommodation/integration, and rational/irrational dichotomies, two different angles for further research have been suggested. Critical contributions to secular studies have aimed to break down the public/private divide and offer more a more nuanced understanding of religion. This approached could be extended to cover not only religious, but also other forms of pluralism. Furthermore, starting from a rethinking of the connections between group membership and citizenship, may also provide a new impulse to thinking about democracy and (severe) pluralism.

            Liberal societies conventionally treat religion as unique under the law, requiring both special protection (as in guarantees of free worship) and special containment (to keep religion and the state separate). But recently this idea that religion requires a legal  exception has come under fire from those who argue that religion is no different from any other conception of the good, and the state should treat all such conceptions according to principles of neutrality and equal liberty. In particular, I have highlighted that Cécile Laborde agrees with much of this liberal egalitarian critique, but she argues that a simple analogy between the good and religion misrepresents the complex relationships among religion, law and the state. Religion serves as more than a statement of belief about what is true, or a code of moral and ethical conduct. It also refers to comprehensive ways of life, political theories of justice, models of voluntary association, and vulnerable collective identities[385].

            3) In the third section I put forward an ameliorative account of the poverty migrant. I argued that the poverty migrant is excluded from the tools of regular economic migration and not entitled to refugee protection. The poverty migrant is – similar to the refugee – trapped in an unprivileged position that is marked by her basic needs deprivation. She tries to escape from this unprivileged position by applying for Asylum. In my point of view the poverty migrant should be entitled to stay in a liberal democratic state, because she is deprived of her basic needs. I defended this view against one main objections that targets the similarity between refugees and poverty migrants: surrogate membership.

            As to the ‘Gender & Race’ problem, Haslanger believes that identities may not be all-or-nothing, i.e., racial identities may come in degrees and have different formations[386]. So racial, gender or ethnic identities may be formed in a developmental process. Her idea that we can organize around values, cultures or practices rather than races makes quite sense.

            When we think of “Zaza” people of Turkey, some of which count themselves as Turkish, some other as “Kurdish” and some other as just “Zaza”, Haslanger‘s account seems as a remedy to such complexities and controversies. So Haslanger‘s solution of a “raceless” world in which people organize around cultures may provide tools and basis for resolution of such controversies, too.

            Therefore, let me quote Haslanger herself: “I call upon us to reject what seemed to be positive social identitites. I‘m suggesting that we should work to undermine those forces that make being a man, a woman, or a member of a racialized group possible; we should refuse to be gendered man or woman, refuse to be raced. This goes beyond denying essentialist claims about one‘s embodiment and involves an active political commitment to live one‘s life differently”[387].

            4) The last section of my paper argued that normative political theory should take seriously the rise of populist right-wing movements and the spreading of anti-immigrant sentiments in Western liberal democracies. The aim was to show that this issue is particularly relevant for theorists working on the ethics of migration. First of all, public opinion’s hostile attitude towards immigrants poses serious feasibility constraints on the implementation of migration and integration policies. What is more, citizens are also electors and the democratic principles impose to take the opinion of right-wing populist parties’ electorate into account.

            It has been argued that anti-immigrant sentiments emerge as a relevant topic when adopting a realistic approach to the ethics of migration, dealing with how liberal democracies should manage immigration here and now, under current conditions. I contended that a realistic ethics of migration should not only recognize the phenomenon, without demonizing or simply dismissing it, but also offer strategies to reduce the appeal of anti-immigrant rhetoric. Finally, I proposed two lines of action: firstly, focusing on local-level policies to increase positive interaction between native citizens and immigrants; secondly, providing information on immigration related issues, using specifically tailored counterarguments to object to populist right-wing narrative. In both cases, I suggested that local administrations can be the most relevant actors in engaging in a bidirectional dialogue with people having anti-immigrant sentiments, in order to take them seriously and avoid paternalistic approaches which can fuel anti-elitism and provoke backlash reactions.

 

Endnotes

[1]     Joschka Fischer, Vom Staatenverbund zur Föderation—Gedanken über die Finalität der europäischen Integration [From Confederacy to Federation: Thoughts on the Finality of European Integration] (May 12, 2000), http://whi-berlin.de/documents/fischer.pdf. See also WHAT KIND OF CONSTITUTION FOR WHAT KIND OF POLITY? RESPONSES TO JOSCHKA FISCHER (Christian Joerges et al. eds., 2000) (illustrating how widely the lecture was noted).

[2]     A chapter from Joseph H.H. Weiler’s Ph.D. thesis was ground-breaking, see Joseph H.H. Weiler, The Community System: The Dual Character of Suprenationalism, 1 Y.B. EUR. L. 257–306 (1981), and then the seminal work he orchestrated, INTEGRATION THROUGH LAW: EUROPE AND THE AMERICAN FEDERAL EXPERIENCE (Mauro Cappelletti et al. eds., 1985).

[3]     See Presidency Conclusions of the Lisbon Council of Mar. 23–24 2000, EUR. PARL. DOC., http://www.europarl.europa.eu/summits/lis1_en.htm.

[4]     As to two Italian books: Mauro Barberis, Europa del diritto, il Mulino, Bologna, 2008; Id.,  Stato costituzionale. Sul nuovo costituzionalismo, Mucchi, Milano, 2013.

[5]     See Christian Joerges, What is left of the European Economic Constitution? A Melancholic Eulogy, 30 EUR. L. REV. 461, 465 (2005); Christian Joerges, Europa nach dem Ordoliberalismus: Eine Philippika, 43 KRITISCHE JUSTIZ 394 (2010).

[6]     Ernst-Joachim Mestmäcker, Macht-Recht-Wirtschaftsverfassun, 137 ZEITSCHRIFT FÜR DAS GESAMTE HANDELSRECHT UND WIRTSCHAFTSRECHT 97, 106 (1973). See also the lecture at the Verein für Socialpolitik conference in Bonn in 1972: Ernst-Joachim Mestmäcker, Power, Law and Economic Constitution, 11 GERMAN ECON. REV. 177–192 (1973).

[7]     See MILÈNE WEGMANN, FRÜHER NEOLIBERALISMUS UND EUROPÄISCHE INTEGRATION (2002) (re-constructing this scenario thoroughly). Her work corresponds instructively to Wolfgang Fikentscher’s earlier magnum opus on Wirtschaftsrecht (economic law). Id. Decades before the studies on global governance, European governance, the relation between the levels and the impact of transnational governance on national statehood became en voguein political science, and “constitutionalism beyond the state” became everybody’s concern in legal scholarship, Fikentscher had conceptualized WIRTSCHAFTSRECHT (1983) in truly transnational and constitutional perspectives, and composed the two monumental volumes accordingly: the first volume is dedicated to Weltwirtschaftsrecht (world economic law) and Europäisches Wirtschaftsrecht (European economic law); national economic law (Deutsches Wirtschaftsrecht) is presented upon this basis. This conceptualization documents the truly universalist commitments of the ordo-liberal tradition which Wegmann emphasises in her reconstruction of the ordo-liberal tradition.

[8]     Ernst-Joachim Mestmäcker, Address at the Verein für Socialpolitik Conference: Macht-Recht-Wirtschaftsverfassung [Power-Law-Economic Constitution] (1972); Mestmäcker, supra note 5.

[9]     Ernst-Joachim Mestmäcker, supra note 5.

[10]   FRIEDRICH HÖLDERLIN, PATMOS DEM LANDGRAFEN VON HOMBURG ÜBERREICHTE HANDSCHRIFT (1802), quoted in FRIEDRICH HÖDERLIN WERKE 379 (1954), translated in MICHAEL HAMBURGER, FRIEDRICH HÖLDERLIN, SELECTED POEMS AND FRAGMENTS 243 (1994).

[11]   Max Weber (born April 21, 1864, Erfurt, Prussia, [now Germany]—died June 14, 1920, Munich, Germany), was a 19th-century German sociologist and one of the founders of modern sociology. He wrote The Protestant Ethic and the Spirit of Capitalism in 1905.

       He was a precocious child; he went to university and became a professor, but suffered a mental breakdown in 1897 that left him unable to work for five years. In 1905 he published his most famous work, The Protestant Ethic and the Spirit of Capitalism. He returned to teaching in 1918 and died in 1920. He is considered the father of modern sociology.

       His father, Max Weber Sr., was a politically active lawyer with a penchant for “earthly pleasures,” while his mother, Helene Fallenstein Weber, preferred a more ascetic lifestyle. The conflicts this created in their marriage acutely influenced Max. Still, their house was full of prominent intellectuals and lively discourse, an environment in which Weber thrived. Growing up, he was bored with school and disdained his teachers, but devoured classic literature on his own.

       After graduating from high school, Weber studied law, history, philosophy and economics for three semesters at Heidelberg University before spending a year in the military. When he resumed his studies in 1884, he went to the University of Berlin and spent one semester at Göttingen. He passed the bar exam in 1886 and earned his Ph.D. in 1889, ultimately completing his habitation thesis, which allowed him to obtain a position in academia.

       Weber married a distant cousin, Marianne Schnitger, in 1893. He got a job teaching economics at Freiburg University the following year, before returning to Heidelberg in 1896 as a professor. In 1897, Max had a falling out with his father, which went unresolved. After his father died in 1897, Weber suffered a mental breakdown. He was plagued by depression, anxiety and insomnia, which made it impossible for him to teach. He spent the next five years in and out of sanatoriums.

       When Weber was finally able to resume working in 1903, he became an editor at a prominent social science journal. In 1904, he was invited to deliver a lecture at the Congress of Arts and Sciences in St. Louis, Missouri and later became widely known for his famed essays, The Protestant Ethic and the Spirit of Capitalism. These essays, published in 1904 and 1905, discussed his idea that the rise of modern capitalism was attributable to Protestantism, particularly Calvinism.

       After a stint volunteering in the medical service during World War I, Weber published three more books on religion in a sociological context. These works, The Religion of China (1916), The Religion of India (1916) and Ancient Judaism (1917-1918), contrasted their respective religions and cultures with that of the Western world by weighing the importance of economic and religious factors, among others, on historical outcomes. Weber resumed teaching in 1918. He intended to publish additional volumes on Christianity and Islam, but he contracted the Spanish flu and died in Munich on June 14, 1920. His manuscript of Economy and Society was left unfinished; it was edited by his wife and published in 1922.

       1) In general, see: A. Korotayev, A. Malkov, D. Khaltourina D. Introduction to Social Macrodynamics. Moscow: URSS, 2006; Bernhard K. Quensel (2007), Max Webers Konstruktionslogik. Sozialökonomik zwischen Geschichte und Theorie. Baden-Baden: Nomos. [Revisiting MW’s concept of sociology against the background of his juristic and economic provenance within the framework of “social economics”]; Guenther Roth (2001). Max Webers deutsch-englische Familiengeschichte. J.C.B. Mohr (Paul Siebeck); Joachim Radkau (2005). Max Weber The most important Weber-biography on Max Weber’s life and torments since Marianne Weber; Richard Swedberg, “Max Weber as an Economist and as a Sociologist”, in American Journal of Economics and Sociology; William H. Swatos, ed. (1990), Time, Place, and Circumstance: Neo-Weberian Studies in Comparative Religious History. New York: Greenwood Press; Richard Swedberg, Max Weber and the Idea of Economic Sociology. Princeton: Princeton University Press; Marianne Weber (1926/1988). Max Weber: A Biography. New Brunswick: Transaction Books.

       2) As for the Italian legal debate, see: Franco Ferrarotti, Max Weber e il destino della ragione, Bari-Roma, Laterza, 1985; Massimo Fotino e Marta Losito, La ricezione di Max Weber in Italia: ricerca bibliografica, in “Annali dell’Istituto storico italo-germanico in Trento”, IX/1983, Il Mulino, Bologna; David Beetham, La teoria politica di Max Weber, Bologna, Il Mulino, 1989; Francesco Tuccari, Carisma e leadership nel pensiero di Max Weber, Milano, Franco Angeli, 1991; Francesco Tuccari, I dilemmi della democrazia moderna. Max Weber e Robert Michels, Roma-Bari, Laterza, 1993; Furio Ferraresi, Il fantasma della comunità. Concetti politici e scienza sociale in Max Weber, Milano, Franco Angeli, 2003; Realino Marra, Capitalismo e anticapitalismo in Max Weber, Bologna, Il Mulino, 2002; Id., La religione dei diritti. Durkheim – Jellinek – Weber, Torino, Giappichelli, 2006; Id., Dalla comunità al diritto moderno. La formazione giuridica di Max Weber, 1882-1889, Giappichelli, Torino, 1992; Edoardo Massimilla, Intorno a Weber. Scienza, vita e valori nella polemica su Wissenschaft als Beruf, Napoli, Liguori, 2000; Id., Scienza, professione, gioventù: rifrazione weberiane, Soveria Mannelli, Rubbettino, 2008; Id., Tre studi su Weber tra Rickert e von Kries, Napoli, Liguori, 2010.

       Now I would like to examine a Weber’s book: Politics as a Vocation (Politik als Beruf), originated in the second lecture of a series (the first was Science as a Vocation) Weber gave in Munichto the “Free (i.e. Non-incorporated) Students Union” of Bavariaon 28 January 1919, during the German Revolution. Published in an extended version in July 1919, it is today regarded as a classic work of political science.

       In his essay Weber states that politics is the art of compromise and decision making based on social benefits weighed against costs; in this respect, political action cannot be rooted only in conviction, since one’s conviction can be another’s social anathema. Using as an example Christianity, seen as a core conviction, Weber affirms that a politician cannot only be a man of “true Chrisitan ethic” (understood in terms “turning the other cheek”). The political realm is no realm for saints. A politician should marry the ethic of ultimate ends with an ethic of responsibility. The latter, which is the ultimate criterion for judging politicians, should take into account all that is at stake in making a political decision, namely all the convictions and the relative weight and moral importance. A politician must possess both passion for his vocation and the capacity to distance himself from the subject of his exertions (the governed).

       The lecture introduces a definition of the state that has become pivotal to Western social thought: that the state is that entity which claims the monopoly of the legitimate use of force, which it may therefore elect to delegate as it sees fit. Politics is to be understood as any activity in which the state might engage in order to influence the relative distribution of force. Politics thus comes to obtain two power-based concepts, to be understood as deriving of power.

       Weber defines politics as a form of “independent leadership activity”. In this essay, the “state” serves as the placeholder for the analysis of political organizations. The grounds for the legitimate rule of these political organizations, according to Weber, fall into three major categories, or types:

  1. a) Traditional: the authority of “eternal past,” based on habit. Weber defines custom as largely patriarchal, patrimonial, and traditional in scope.
  2. b) Gift of grace/charisma: The authority of the “revelations, heroism, or other leadership qualities of an individual”. Associated with “charisma” of prophets, demagogues, and popular vote.
  3. c) Statutes: Legal rational authority, legality based on valid statutes. Based on rational competence and obedience of the “servant of the state”.

       Weber focuses his analysis on “political organizations”, i.e. “states”, and identifies two general forms of the state, supposedly encompassing all state forms at the most general.

  1. The administrative staff beneath the ruler in status and power has its own means of administration separate from those of the ruler. This can include various forms of wealth and possessions, as well as means of production and control over labor. This administrative staff is essentially aristocratic, subdivided into distinct estates.
  2. The administrative staff is completely or partially separated from the actual tools of administration, i.e., how the proletariat is separated from the means of production. This staff become confidants without means in a patriarchal organization of deference and delegation.

       Weber delineates two different ideas of the “state” based on the relationship between the administrators and their access to the actual means of administration. The second form of the state is considered to be modern; the administrators do not own the money, buildings, and organizations they direct but are in the process of becoming expropriated expropriators by the actions of the monarch or the higher ruling class. With this expropriation completed, the leaders are then free to invest all resources in what way they choose, executive decisions often remaining with the discretion of the highest representatives.

[12]   Max Weber, The National State and Economic Policy (Freiburg Address), 9 ECON. & SOC’Y 428, 438 (Ben Fowkes trans., 1980) (1895).

[13]   Max Weber, Inaugural Lecture at Freiburg: Der Nationalstaat und die Volkswirtschaftspolitik (May 1895), at 1–2.

[14]   See Rita Aldenhoff, Nationalökonomie, Nationalstaat und Werturteile. Wissenschaftskritik in Max Webers Freiburger Antrittsrede im Kontext der Wissenschaftsdebatten in den 1890er Jahren, in DEUTSCHE RECHTS –  UND SOZIALPHILOSOPHIE UM 1900 79–90 (Gerhard Sprenger ed., 1991).

[15]   Carl Schmitt (11 July 1888, Plettenberg, Wesphalia, Prussia, – 7 April 1985, Plettemberg, North Rhine-Westphalia, West Germany) was a German philosopher, jurist and political theorist. Schmitt is a major figure in 20th century legal and political theory, writing extensively on the effective wielding of political power. His work has been a major influence on subsequent political theory, legal theory, continental philosophy and political theology in the 20th century and beyond.

       Schmitt’s work has attracted the attention of numerous philosophers and political theorists, including Walter Benjamin, Leo Strauss, Jürgen Habermas, Friedrich Hayek, Jacques Derrida, Hannah Arendt, Susan Buck-Morss, Giorgio Agamben, Jaime Guznam, Antonio Negri and Slavoj Žižek among many others. Much of his work remains both influential and controversial today in light of his association with Nazism, for which he is known as the “crown jurist of the Third Reich”.

       Schmitt, whose father was a minor businessman, was the son of Roman Catholic parents from the German Eifel region who settled in Plettenberg, Westphalia. He studied law in Berlin, Munich and Strasbourg and took his graduation and state exams in the then-German Strasbourg in 1915. He volunteered for the army in 1916. The same year, he earned his habilitation in Strasbourg. He taught at various business schools and universities in Munich, Greifswald, Bonn, Berlin and Cologne.

       In 1916, Schmitt married his first wife, Pavla (in Germany usually rendered as “Pawla” even though the letter “w” is used in the Serbian auxiliary Latin alphabet only for foreign words) Dorotić, a Serbian woman who pretended to be a countess. They were divorced although an appeal to the Church for an annulation was rejected. In 1926 he married his second wife, Duška Todorović (1903–1950), also Serbian; they had one daughter, called Anima. Subsequently Schmitt was excommmunicated because his first marriage had not been annulled by the Church. His daughter Anima Schmitt de Otero (1931–1983) was married, from 1957, to Alfonso Otero Valera (1925–2001), a Spanish law professor at the University of Santiago de Compostela and a member of the ruling Spanish Falange party under the Franco régime. She translated several works by her father into Spanish. Letters from Carl Schmitt to his son-in-law have also been published.

       As a young man, Schmitt was “a devoted Catholic until his break with the church in the mid twenties.” From around the end of the First World War he began to describe his Catholicism as “displaced” and “de-totalised”. Consequently, Gross argues that his work “cannot be reduced to Roman Catholic theology given a political turn. Rather, Schmitt should be understood as carrying an atheistic political-theological tradition to an extreme.”

       Apart from his academic functions, in 1932 Schmitt was counsel for the Reich government in the case “Preussen contra Reich” wherein the SPD-led government of the state of Prussia disputed its dismissal by the right-wing von Papen government. Papen was motivated to make this move because Prussia, by far the largest state in Germany, served as a powerful base upon which the political left could draw, and also provided them with institutional power, particularly in the form of the Prussian Police. Schmitt, Carl Bilfinger and Erwin Jacobi represented the Reich and one of the counsel for the Prussian government was Hermannn Heller. The court ruling on October 1932 was that the Prussian government had been unlawfully suspended but the Reich had the right to install a commissar. In German history, this struggle leading to the de facto destruction of federalism in the Weimar republic is known as the “Preuβenschlag.”

       Schmitt remarked on 31 January 1933 that with Hitler’s appointment “one can say that ‘Hegel died.'”Richard Wolin observes: «it is Hegel qua philosopher of the “bureaucratic class” or Beamtenstaat that has been definitely surpassed with Hitler’s triumph.  This class of civil servants—which Hegel in the Rechtsphilosophie deems the “universal class” – represents an impermissible drag on the sovereignty of executive authority. For Schmitt the very essence of the bureaucratic conduct of business is reverence for the norm, a standpoint that could not but exist in great tension with the doctrines of Carl Schmitt. Hegel had set an ignominious precedent by according this putative universal class a position of preeminence in his political thought, insofar as the primacy of the bureaucracy tends to diminish or supplant the prerogative of sovereign authority».

       Schmitt joined the Nazi Party on 1 May 1933. Within days of joining the party, Schmitt was party to the burning of books by Jewish authors, rejoicing in the burning of “un-German” and “anti-German” material, and calling for a much more extensive purge, to include works by authors influenced by Jewish ideas. In July, he was appointed State Councillor for Prussia (Preußischer Staatsrat) by Hermann Göring and became the president of the Vereinigung nationalsozialistischer Juristen (“Union of National-Socialist Jurists”) in November. He also replaced Hermann Heller as professor at the University of Berlin (a position he held until the end of World War II). He presented his theories as an ideological foundation of the Nazi dictatorship, and a justification of the Führer state with regard to legal philosophy, in particular through the concept of auctoritas.

       Six months later, in June 1934, Schmitt was appointed editor-in-chief of the Nazi news organ for lawyers, the Deutsche Juristen-Zeitung (“German Jurists’ Journal”). In July 1934, he published in it “The Leader Protects the Law (Der Führer schützt das Recht)”, a justification of the political murders of the Night of the Long Knives with the authority of Hitler as the “highest form of administrative justice (höchste Form administrativer Justiz)”. Schmitt presented himself as a radical anti-semite and also was the chairman of a law teachers’convention in Berlin in October 1936, where he demanded that German law be cleansed of the “Jewish spirit (jüdischem Geist)”, going so far as to demand that all publications by Jewish scientists should henceforth be marked with a small symbol.

       Nevertheless, in December 1936, the SS publication Das schwarze Korps accused Schmitt of being an opportunist, a Hegelian state thinker, and basically a Catholic, and called his anti-semitism a mere pretense, citing earlier statements in which he criticized the Nazis’ racial theories. After this, Schmitt resigned from his position as “Reichsfachgruppenleiter” (Reich Professional Group Leader), although he retained his post as a professor in Berlin, and his post as “Preußischer Staatsrat“. Although Schmitt continued to be investigated into 1937, further reprisals were stopped by Göring.

       In 1945, Schmitt was captured by American forces and, after spending more than a year in an internment camp, he returned to his home town of Plettenberg following his release in 1946, and later to the house of his housekeeper Anni Stand in Plettenberg-Pasel. Schmitt refused every attempt at de-nazification, which effectively barred him from positions in academia. Despite being isolated from the mainstream of the scholarly and political community, he continued his studies especially of international law from the 1950s on, and he received a never-ending stream of visitors, both colleagues and younger intellectuals, until well into his old age. Important among these visitors were Ernst Jünger, Jacob Taubes and Alexandre Kojève.

       In 1962, Schmitt gave lectures in Francoist Spain, two of them giving rise to the publication, the following year, of Theory of the Partisan (Telos Press, 2007), in which he qualified the Spanish Civil War as a “war of national liberation” against “international Communism.” Schmitt regarded the partisan as a specific and significant phenomenon that, in the latter half of the 20th century, indicated the emergence of a new theory of warfare.

       Schmitt died on 7 April 1985 and is buried in Plettenberg.

       In 1921, Schmitt became a professor at the University of Greifswald, where he published his essay Die Diktatur (on dictatorship), in which he discussed the foundations of the newly established Weimar Republic, emphasising the office of the Reichpräsident. In this essay, Schmitt compared and contrasted what he saw as the effective and ineffective elements of the new constitution of his country. To him, the office of the president could be characterized as a comparatively effective element within the new constitution, because of the power granted to the president to declare a state of emergency. This power, which Schmitt discussed and implicitly praised as dictatorial, was seen as more in line with the underlying mentality of political power than the comparatively slow and ineffective processes of legislative political power reached through parliamentary discussion and compromise.

       Schmitt was at pains to remove what he saw as a taboo surrounding the concept of “dictatorship” and to show that, in his eyes, the concept is implicit whenever power is wielded through pathways outside the slow processes of parliamentary politics and the bureaucracy:

       “If the constitution of a state is democratic, then every exceptional negation of democratic principles, every exercise of state power independent of the approval of the majority, can be called dictatorship.”

       For Schmitt, every government capable of decisive action must include a dictatorial element within its constitution. Although the German concept of Ausnahmezustand is best translated as “state of emergency”, it literally means state of exception which, according to Schmitt, frees the executive from any legal restraints to its power that would normally apply. The use of the term “exceptional” has to be underlined here: Schmitt defines sovereignty as the power to decide the instauration of state of exception, as Giorgio Agamben has noted. According to Agamben,Schmitt’s conceptualization of the “state of exception” as belonging to the core-concept of sovereignty was a response to Walter Benjamin’s concept of a “pure” or “revolutionary” violence, which did not enter into any relationship whatsoever with right. Through the state of exception, Schmitt included all types of violence under right, in the case of the authority of Hitler leading to the formulation “The leader defends the law” (“Der Führer schützt das Recht“).

       Schmitt opposed what he called “commissarial dictatorship”, or the declaration of a state of emergency in order to save the legal order (a temporary suspension of law, defined itself by moral or legal right): the state of emergency is limited (even if a posteriori, by law) to “sovereign dictatorship”, in which law was suspended, as in the classical state of exception, not to “save the Constitution”, but rather to create another Constitution. This is how he theorized Hitler’s continual suspension of the legal constitutional order during the Third Reich (the Weimar Republic’s Constitution was never abrogated, underlined Giorgio Agamben; rather, it was “suspended” for four years, first with the 28 February 1933 Reichstag Fire Decree, with the suspension renewed every four years, implying a continual state of emergency).

       The direction all this leads, and the reason why Schmitt has been taken so seriously by political theory, is to the theorisation of the crisis and state of emergency not as exceptional moments in political life, opposed to some stable normality, but as themselves the predominant form of the life of modern nations.

       On Dictatorship was followed by another essay in 1922, titled “Politische Theologie” (political theology); in it, Schmitt, who at the time was working as a professor at the University of Bonn, gave further substance to his authoritarian theories, analysing the concept of “free will” influenced by Christian-Catholic thinkers. The book begins with Schmitt’s famous, or notorious, definition: “Sovereign is he who decides on the exception.” By “exception,” Schmitt means the appropriate moment for stepping outside the rule of law in the public interest. Schmitt proposes this definition to those offered by contemporary theorists of sovereignty, particularly Hans Kelsen, whose work is criticized at several points in the essay.

       The book’s title derives from Schmitt’s assertion (in chapter 3) that “all significant concepts of the modern theory of the state are secularized theological concepts” – in other words, that political theory addresses the state (and sovereignty) in much the same manner as theology does God.

       A year later, Schmitt supported the emergence of totalitarian power structures in his paper “Die geistesgeschichtliche Lage des heutigen Parlamentarismus” (roughly: “The Intellectual-Historical Situation of Today’s Parliamentarism”, translated as The Crisis of Parliamentary Democracy by Ellen Kennedy). Schmitt criticized the institutional practices of liberal politics, arguing that they are justified by a faith in rational discussion and openness that is at odds with actual parliamentary party politics, in which outcomes are hammered out in smoke-filled rooms by party leaders. Schmitt also posits an essential division between the liberal doctrine of separation of powers and what he holds to be the nature of democracy itself, the identity of the rulers and the ruled. Although many critics of Schmitt today, such as Stephen Holmes in his The Anatomy of Anti-Liberalism, take exception to his fundamentally authoritarian outlook, the idea of incompatibility between liberalism and democracy is one reason for the continued interest in his political philosophy.

       Schmitt changed universities in 1926, when he became professor of law at the Handelshochschule in Berlin, and again in 1932, when he accepted a position in Cologne. It was from lectures at the Deutsche Hochschule für Politik in Berlin that he wrote his most famous paper, “Der Begriff des Politischen” (“The Concept of the Political”), in which he developed his theory of “the political”. Distinct from party politics, “the political” is the essence of politics. While churches are predominant in religion or society is predominant in economics, the state is predominant in politics. Yet for Schmitt the political was not an autonomous domain equivalent to the other domains, but rather the existential basis that would determine any other domain should it reach the point of politics (e.g. religion ceases to be merely theological when it makes a clear distinction between the “friend” and the “enemy”). The political is not equal to any other domain, such as the economic, but instead is the most essential to identity.

       Schmitt, in perhaps his best-known formulation, bases his conceptual realm of state sovereignty and autonomy upon the distinction between friend and enemy. This distinction is to be determined “existentially,” which is to say that the enemy is whoever is “in a specially intense way, existentially something different and alien, so that in the extreme case conflicts with him are possible.” (Schmitt, 1996, p. 27) Such an enemy need not even be based on nationality: so long as the conflict is potentially intense enough to become a violent one between political entities, the actual substance of enmity may be anything.

       Although there have been divergent interpretations concerning this work, there is broad agreement that “The Concept of the Political” is an attempt to achieve state unity by defining the content of politics as opposition to the “other” (that is to say, an enemy, a stranger. This applies to any person or entity that represents a serious threat or conflict to one’s own interests.) In addition, the prominence of the state stands as a neutral force over potentially fractious civil society, whose various antagonisms must not be allowed to reach the level of the political, lest civil war result.

       Some of the letters between Schmitt and Strauss have been published. Schmitt’s highly positive reference for Leo Strauss, and Schmitt’s approval of his work, had been instrumental in winning Strauss the scholarship funding that allowed him to leave Germany. In turn, Strauss’s critique and clarifications of The Concept of the Political led Schmitt to make significant emendations in its second edition. Writing to Schmitt in 1932, Strauss summarised Schmitt’s political theology thus: “Because man is by nature evil, he therefore needs dominion. But dominion can be established, that is, men can be unified only in a unity against – against other men. Every association of men is necessarily a separation from other men… the political thus understood is not the constitutive principle of the state, of order, but a condition of the state.”

       The Nomos of the Earth is Schmitt’s most historical and geopolitical work. Published in 1950, it was also one of his final texts. It describes the origin of the Eurocentric global order, which Schmitt dates from the discovery of the New World, discusses its specific character and its contribution to civilisation, analyses the reasons for its decline at the end of the 19th century, and concludes with prospects for a new world order. It defends European achievements, not only in creating the first truly global order of international law, but also in limiting war to conflicts among sovereign states, which, in effect, civilised war. In Schmitt’s view, the European sovereign state was the greatest achievement of Occidental rationalism; in becoming the principal agency of secularisation, the European state created the modern age.

       Notable in Schmitt’s discussion of the European epoch of world history is the role played by the New World, which ultimately replaced the old world as the centre of the Earth and became the arbiter in European and world politics. According to Schmitt, the United States’ internal conflicts between economic presence and political absence, between isolationism and interventionism, are global problems, which today continue to hamper the creation of a new world order. But however critical Schmitt is of American actions at the turn of the 20th century and after World War I, he considered the United States to be the only political entity capable of resolving the crisis of global order.

       Schmitt’s Theory of the Partisan originated in two lectures delivered in 1962, and has been seen as a rethinking of The Concept of the Political. It addressed the transformation of war in the post-European age, analysing a specific and significant phenomenon that ushered in a new theory of war and enmity. It contains an implicit theory of the terrorist, which in the 21st century has ushered in yet another new theory of war and enmity. In the lectures, Schmitt directly tackles the issues surrounding “the problem of the Partisan” figure: the guerrilla or revolutionary who “fights irregularly” (p. 3). Both because of its scope, with extended discussions on historical figures like Napoleon Bonaparte, Vladimir Lenin and Mao Zedong, as well as the events marking the beginning of the 21st century, Schmitt’s text has had a resurgence of popularity. Jacques Derrida, in his Politics of Friendship remarked: «Despite certain signs of ironic distrust in the areas of metaphysics and ontology, The Concept of the Political was, as we have seen, a philosophical type of essay to ‘frame’ the topic of a concept unable to constitute itself on philosophical ground. But in Theory of the Partisan, it is in the same areas that the topic of this concept is both radicalised and properly uprooted, where Schmitt wished to regrasp in history the event or node of events that engaged this uprooting radicalisation, and it is precisely there that the philosophical as such intervenes again.»

       Schmitt concludes Theory of the Partisan with the statement: “The theory of the partisan flows into the question of the concept of the political, into the question of the real enemy and of a new nomos of the earth.”

       – English translations of Carl Schmitt:

The Concept of the Political. George D. Schwab, trans. (University of Chicago Press, 1996; Expanded edition 2006, with an Introduction by Tracy B. Strong). Original publication: 1927, 2nd edn. 1932; Constitutional Theory. Jeffrey Seitzer, trans. (Duke University Press, 2007). Original publication: 1928; The Crisis of Parliamentary Democracy. Ellen Kennedy, trans. (MIT Press, 1988). Original publication: 1923, 2nd edn. 1926; Four Articles, 1931–1938. Simona Draghici, trans. (Plutarch Press, 1999). Originally published as part of Positionen und Begriffe im Kampf mit Weimar – Genf – Versailles, 1923–1939 (1940); The Idea of Representation: A Discussion. E. M. Codd, trans. (Plutarch Press, 1988), reprint of The Necessity of Politics (1931). Original publication: 1923; Land and Sea. Simona Draghici, trans. (Plutarch Press, 1997). Original publication: 1954; Legality and Legitimacy. Jeffrey Seitzer, trans. (Duke University Press, 2004). Original publication: 1932; The Leviathan in the State Theory of Thomas Hobbes: Meaning and Failure of a Political Symbol. George D. Schwab & Erna Hilfstein, trans. (Greenwood Press, 1996). Original publication: 1938; The Nomos of the Earth in the International Law of the Jus Publicum Europaeum. G.L. Ulmen, trans. (Telos Press, 2003). Original publication: 1950; On the Three Types of Juristic Thought. Joseph Bendersky, trans. (Praegar, 2004). Original publication: 1934; Political Romanticism. Guy Oakes, trans. (MIT Press, 1986). Original publication: 1919, 2nd edn. 1925; Political Theology: Four Chapters on the Concept of Sovereignty. George D. Schwab, trans. (MIT Press, 1985 / University of Chicago Press; University of Chicago edition, 2004 with an Introduction by Tracy B. Strong. Original publication: 1922, 2nd edn. 1934; Roman Catholicism and Political Form. G. L. Ulmen, trans. (Greenwood Press, 1996). Original publication: 1923; State, Movement, People (includes The Question of Legality). Simona Draghici, trans. (Plutarch Press, 2001). Original publication: Staat, Bewegung, Volk (1933); Das Problem der Legalität (1950); Theory of the Partisan. G. L. Ulmen, trans. (Telos Press, 2007). Original publication: 1963; 2nd ed. 1975; The Tyranny of Values. Simona Draghici, trans. (Plutarch Press, 1996). Original publication: 1979; War/Non-War: A Dilemma. Simona Draghici, trans. (Plutarch Press, 2004). Original publication: 1937.

       – Secondary literature:

Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (1998); Id., State of Exception (2005); Jeffrey Andrew Barash, Politiques de l’histoire. L’historicisme comme promesse et comme mythe (2004); Gopal Balakrishnan, The Enemy: An Intellectual Portrait of Carl Schmitt (2000); Amine Benabdallah, Une réception de Carl Schmitt dans l’extrême-gauche: La théologie politique de Giorgio Agamben (2007); Eckard Bolsinger, The Autonomy of the Political: Carl Schmitt’s and Lenin’s Political Realism (2001); Renato Cristi, Carl Schmitt and Authoritarian Liberalism (1998); Mariano Croce, Andrea Salvatore, The Legal Theory of Carl Schmitt (Abingdon: Routledge, 2012); Jacques Derrida, “Force of Law: The ‘Mystical Foundation of Authority’,” in Acts of Religion (2002); Id., Politics of Friendship (1997); Carlo Galli, “Hamlet: Representation and the Concrete” (translated from Italian by Adam Sitze and Amanda Minervini) in Points of Departure: Political Theology on the Scenes of Early Modernity, Ed. Julia Reinhard Lupton And Graham Hammill, University of Chicago Press, 2011; Paul Gottfried, Carl Schmitt: Politics and Theory (New York: Greenwood Press, 1990); Michael Hardt & Antonio Negri, Empire (2000); Julia Hell, “Katechon: Carl Schmitt’s Imperial Theology and the Ruins of the Future,” The Germanic Review 84:4 (2009): 283 – 326; William Hooker, Carl Schmitt’s International Thought: Order and Orientation (Cambridge: Cambridge University Press, 2009); Michael Marder, Groundless Existence: The Political Ontology of Carl Schmitt, (London & New York: Continuum, 2010); Reinhard Mehring, Carl Schmitt – Aufstieg und Fall. Eine Biographie, München: Verlag C.H. Beck, 2009; Heinrich Meier, The Lesson of Carl Schmitt: Four Chapters on the Distinction between Political Theology and Political Philosophy, University of Chicago Press, 2011; Chantal Mouffe (ed.), The Challenge of Carl Schmitt (1999); Ingo Müller (Deborah Lucas Schneider trans.) (1991). Hitler’s Justice: The Courts of the Third Reich (Cambridge, Mass.: Harvard University Press); Ojakangas Mika, A Philosophy of Concrete Life: Carl Schmitt and the political thought of late modernity (2nd ed Peter Lang