On Lord Sankey’s (apparent) living tree originalism

This is a reply to an interesting post by Léonid Sirota, found here.

Figuring out the contours of living tree jurisprudence can be a little tricky, and Sirota’s “whole systems” conception of living tree jurisprudence is essentially correct. However, it would be strange if the living tree thesis did not have any effects on the norms of interpretation in judicial review. I think the consequences are roughly as follows. In deliberation over cases in constitutional law with entrenched and reasonably settled rules, the text itself only imposes soft constraints on interpretation, in the sense that it can be (and often is) counterweighted by context. Deliberation of this sort acknowledges that all legal interpretation involves paying heed to two masters, the requirement of flexibility and the need for protected expectations. Sometimes the text helps in negotiating that process, but sometimes it doesn’t. When it doesn’t, you have to appeal to context to establish legal meaning.

Whether or not you think the contextualist mode of interpretation is wrongheaded will depend on what you mean by “the text”. Some scholars think that textual meaning is an objective context-invariant method — a semantics. So, textual meaning is associated with the methodical application of deductive rules for the sake of following entailments. To appeal to contextual meaning (i.e., the living tree) would be to say that deduction plays only a partial and inchoate role in inference during judicial review, and that the text is one useful interpretive tool among others, that is rarely sufficient to decide any but the clearest of cases.

It is true that Lord Sankey’s counterfactual treatment of the question — where ‘person’ was explicitly encoded in statute to mean ‘men’ — would provide no support to a living tree concept. In that counterfactual world, the issue of the ‘living tree’ would not have arisen. But that is not to say that, in that world, the living tree conception would have been false. It just means that, in Sankey’s estimation, the case (in that world) would not have triggered a need to talk about it. But in our world, once it is talked about, the genie is out of the bottle, the principle can be applied in ways that were not anticipated by its creator. That’s just how it is with the common-law, and how it is especially with this particular precedent as a matter of its content.

Of course, it is true that other living tree theorists might disagree with Sankey in placing the emphasis he does on original meaning in the counterfactual case. For some would like to explicitly recognize the right of a judiciary to overturn explicit statute and precedent that has run its course. But that doesn’t mean they’re not both captured by the metaphor. Nor does recognition of these differences feed into the myth that there can be no overlap between living tree theorists and certain varieties of originalism, including Sirota’s favored public meaning variety. (I am not saying Sirota subscribes to that myth.)

In one of the passages in Sankey’s decision, quoted above, he showed that there is a distinction between presupposition and definition. He reasons that it was presupposed that women were not people, but not defined; hence, the Court was free to exercise its discretion. He is mostly interested in the contents of judicial and legislative decisions, where uptake is essentially constrained in ways that would make the distinction plausible. Meanwhile, a public originalist faces the question of whether they have the conceptual resources to make this distinction themselves in a way that would preserve expectations. However, both presuppositions and explicit definitions are public, with potentially equal normative force. A study of a corpus of testimonies regarding the uptake of law might in some sense recover a sense of at-issue content, but (absent further theory) it will be wider in its connotations than the sort of meaning that is processed by individual brains during the course of conversational exchange. This method does not sound like it will be much good at preserving stable expectations; indeed, it may be a source of considerable surprise.

A clearer example of judicial revision would be a case of overturning legislative intent: i.e., the American courts overturning centuries of intentionally legislated bigotry in Brown v Board. The living tree theorist has the power to say that these revisions were appropriate, given the purposes of Charters which guide interpretation — protection of minority rights in a democracy against the inauthentic wishes of the majority, to borrow a suggestion from Wil Waluchow. The arborist has that power because they think legal meaning is essentially connected to the context of use and utility, and especially in relation to historical conventions related to right and duty that bear on the operations of a representative democracy. Sadly, even on this basis, it is not entirely clear that even a legal arborist of this stripe is able to save the principles and priorities of the American system of law. But at least they have a shot. Meanwhile, a living tree originalist (Sankey, perhaps) is left out to dry.

In fairness, an anti-original textualist could come to the same conclusion in Brown, albeit on different grounds. The textualist can say of Brown that the framers did not understand the meaning of equality, that they had the wrong conception of that concept. And that now we know better, we can acknowledge the blunder, replacing the old conception with a new one. But the anti-original textualist lacks the sensitivity needed to articulate the features of our deliberative circumstances which would give rise to the problem in the first place. They can explain what the law says and can explain why the framers were confused in their thinking about it. But they cannot explain what makes the new understanding better than the old one, because they think that would involve changing the subject away from questions of meaning and into questions of design as if the two questions were unrelated. Many of us find that strict separation quite peculiar.

Bayes and law

I have not been posting very much lately, since I’ve been mostly concentrating my energy on writing a manuscript on the philosophy of the social sciences and with training for a paralegal license. However, I recently had the opportunity to share a few thoughts on subjective probabilities that I had been working on during the course of writing the book. https://www.linkedin.com/posts/activity-6704104726893510656-Xzxq

I have never tried doing a green screen presentation before, so it is a bit awkward in the “Tim and Eric” style. But the surreal aesthetic is now a familiar experience to all of us who have been using Zoom for the past 10 months, so hopefully it won’t distract from the main points of the presentation.

Innate games and constitutive norms

It’s absurd to say that the game of soccer is innate. Why? Because it’s silly to think that the information encoded in our genes gives expression to phylogenetic traits on minimal triggering and which track the complex set of rules that make up ‘soccer’. Similarly, it is absurd to talk about most games as innate — chess, badminton, Uno, and so on.

Indeed, you’d expect this point to apply to all games. But maybe it doesn’t. For, here’s a proposal: a game isn’t much more than a set of playable tricks. And some tricks are, plausibly, innate under some general description. Example. When my dog plays catch, the ‘catch-and-return’ instinct seems like an innate trick, because it comes too quickly and too easily to too many dogs with a similar genetic makeup. Furthermore, the trick itself is pretty much all there is to say about the rules of game.

I’m cheating a little. Granted, the particular manifestation of the game that my dog (Sammy) plays cannot be reduced to its natural components. Typically, the game he plays is best done under a richer description — “Catch the Monkeyman”, owing to the fact that his chew toy was (in better days) vaguely monkey-man-shaped. And of course it would be weird to attribute to him a monkey-man-toy-responsive trait, given that I’ve seen other dogs play a similar game of catch without the need for monkeymen. Still, if you fudge the edges of the example, it looks like catch-and-return is a case of a game that is innate for the species.

That doesn’t mean that all games are innate. Presumably, few are. What is interesting to me is that there is a predictable structure to games, as many of our games correspond to assemblages of these favorite natural tricks. Moreover, the rich description of a game probably far exceeds what you would get if you cobbled together all the natural tricks it takes to play it, in the same way that the “Monkeyman” description exceeds the catch-and-return game.

That said, if you could describe the essential or enduring structure of a game in terms of its natural tricks, you might have a stronger basis for talking about which norms are truly constitutive of the game. So, e.g., despite its name, “Catch the Monkeyman” is not really about the Monkeyman. Similarly — shifting examples to one that is more philosophically interesting — if we want to talk about truth as the constitutive norm of the game of assertion, we should be ready to talk about a truth-directed representational trick in our minds, and which provides structure to the activity.

One summer day

This was the headline, one summer day last month. Do you remember? Where were you when you read it?

I was listening to some Canadians who came back from vacation in Dominican Republic talk about immigration and the need for countries to manage themselves appropriately. Factories used to store sugar cane, now they’re empty. Now it’s imported. Why’s that? Mystery.

Now also thinking about the last moments of life of a little Salvadoran girl clutching her father as they washed along a Texas riverbank and what that was like. Maybe she was crying? Did she die first, or was it her dad? How much of what they swallowed was dirt? She must have loved him judging by the way her arm is around his shirt.

Put that out of mind. Think of responses to debate team at the other table. Tell them about structural adjustment programs? Export economies? Neomercantilism? It’s not called “corruption” if we benefit, just progress. And so on.

No; not in the mood. Could, but not in the mood for it. Don’t want to talk reasons. No hot takes and no I-statements and no performative gestures and curated consciousness raising. No realistic assessments of plans and trade-offs and no ironic comparisons to historical facts and no optimism about human rights or grim hope for eking out a future free from calamity. No analogies or metaphors and no using a dead girl and her dad on a riverbank as a metonym for climate crisis and effect on diasporas. Not right now. Right now just want to interrupt and vomit blood over the table, or break open a black hole in the floor or turn the sky into razor blades. Anything to bring you back to the reality that this is a horror, and any attempt to make sense of it is an attempt to look away. Anything other than horror is a lie.

Don’t look away from it. Don’t feel better. Don’t act and justify and rationalize and debate and worry and resolve to do better or assign blame. Don’t think about the reputational effects of a maudlin blog post. Just think about trying to scream because your dad is dead in your arms and you can’t breathe because your lungs are full of dirt.

On public assertion

Since 2006 or so, I have thought that the idea of a knowledge as constitutive norm of assertion is a mistake, and have at various points offered various reasons for saying so. Some depend on my views about the nature of ‘truth’, on ‘belief’ and ‘intuition’, philosophical pedagogy, and other things. The upshot, I guess, is that Moore’s paradox — “P, but I don’t know that P” — is indeed permissible to assert when the contents of P are apt without being truth-apt (e.g., indefinite predicates and other forms of factually defective discourse). Since critiques of the knowledge norm have been explored capably by others, there is no point in my continuing to grind that axe here.

Recently, though, part of me has worried that our current epistemic crisis in politics is a real-world consequence of denying that knowledge is constitutive of assertion. It would be an awful shame if any of these points somehow blessed the hearts of populist liars and career-long bullshitters. A similar worry need not extend to the sphere of politics, though, as some have wondered whether published works in philosophy should obey something like a knowledge or sincere belief norm.

So, it might help to make a crucial distinction. Indeed, I do think knowledge constitutes something: namely, it constitutes the context of *public assertion* — i.e., following Arendt, the context where people are treated as provisional equals, where interlocutors have presumptive reasons to take each other seriously as givers and takers of reasons (e.g., during peer disagreement). That gives rise to our deep conviction that Moore’s paradox is intolerable in Orwellian spaces.

The diagnosis, then, isn’t that our epistemic crisis can’t be properly seen as coming out of a disagreement about a rarefied paradox. It comes out of the fact that public discourse has collapsed, and there are no institutions that incentivize us to look at each other as if we share a common cause. And that seems not only far more plausible than a worry about philosophy of language, it connects much directly and obviously with the facts about material class inequalities which are so obviously central to our current slide into fascism.

Potted summary: Hannah Arendt, The Human Condition

Now seems to be a good time to write about Hannah Arendt on the public-private distinction, as far as she puts it in ‘The Human Condition‘ (1958, 2e., University of Chicago Press). These are meant as reading notes, and meant to be faithful to the aims of the text. That said, I include a few comments in parentheses and italics where I think a little color commentary might help.

A note on blog scholarship

Sometimes on this blog I post reading notes, and other times I post original research that draws on existing scholarship.

When I first started this blog, I thought that the right way of proceeding would be to cite sources in an impeccable and academic way, to prove I’ve done the work, and to let interested readers know how to pursue the research on their own. It is always possible that some readers are in need of a study guide for existing texts, and for them I am very pleased to provide whatever reasonable support I can. Presumably, many other academic bloggers feel the same way.

But as an online tutor, I’ve become increasingly aware of the fact that there is a very real threat that students will plagiarize online materials without giving proper credit. This is a serious enough problem in academia itself, as even appropriately credentialed scholars will behave badly, but made all the worse in a neo-liberal context.

So, I am not in the habit of providing precise page citations in my original research. I will provide them only when I provide reading notes, just in case readers would benefit from a literary sherpa. But if you want precise citations for original research, you will have to ask, or offer a little push back in comments. That, anyway, is my policy going forward.

Legal arborism

One of the blawgers at Double Aspect, Leonid Sirota, asks if “living tree” constitutional theories can explain the grounds and consequences of their views in the context of jurisprudence in Canada. (Sirota and his co-bloggers seem to occupy an interesting intellectual space, being McGill educated, working abroad, but whose philosophical jurisprudence seems mainly influenced by the American tradition.) Laid against that background, he asks a bevy of questions, and invites some answers. I’ll give it a shot.

(Style note: because I’m tired of writing “living tree doctrine advocates” and its long-winded cognates, I’ll call this position legal arborism. And, full disclosure: my sense of the views of legal arborism in Canada are deeply influenced by a course I audited with Wil Waluchow at McMaster, and so are tilted in favor of his own living tree constitutionalism. His kindness, patience, and scholarly acumen have influenced me a great deal.)

To give you an idea of my own perspective, allow me to say a few words about my intellectual background. My research focus is on informal promulgation, or the publicity of law (understood as a phenomenon deserving of explanation by collective social epistemology). On the one hand, my views on the written/unwritten distinction, at least at the level of discernment or court interpretation, are something of a mixed bag; I don’t know if I would consider myself a legal arborist, if only because I am wary of having my intellectual life bewitched by the power of a metaphor. So, because I am a philosophical eccentric in this and other ways, I do not think I am a thoroughly disciplined advocate of the “living tree” doctrine, and my answers will likely be inadequate. That said, I see an awful lot of merit in the arborist’s point of view of common-law — so much so that I would be far more sympathetic to the legal arborist’s general conception of law than the depiction of law provided by originalists. So, I’m with the Ents.

“1) Do you think that the linguistic meaning of the constitutional text changes over time after its entrenchment?”

This is a complex question. The question presumes that there is a distinction between linguistic and application meaning, or sentence vs. use meaning — usually captured by the distinction between semantics and pragmatics. But, as a commenter on that thread notes, many of us would dispute the application/linguistic meaning distinction, insofar as it is supposed to help us sort between two piles of content ascriptions that lawyers and judges would care about (i.e., concerning different kinds of legal effects, the constructive and the merely interpretive). And by ‘us’, I do not just mean legal arborists. I mean, ‘us’, as in virtually everyone who works in philosophy of language who was educated in the last half-century. Indeed, in my view, the best originalists don’t even follow through with the pragmatics/semantics distinction in their considered accounts. So, e.g., I’ve noted before that — aspirations to the contrary — Lawrence Solum’s “semantic” originalism is nothing of the kind, since it asks us to enrich communicative content (meaning, strict entailments) with cooperative implicatures when such are required by the method of triangulation. Solum calls it a semantic theory, but he is mis-stating (indeed, understating!) the powers of the actual theory that he advocates.

But this is easily fixed; a better presentation of the originalist argument is possible. Such an argument would either have to admit the pointlessness of appeals to textual purity, and confess that it invites relatively obvious widenings of the scope of the “semantic” theory (to include near-side pragmatics); or, it would have to advocate a Copernican revolution in semantic theory, forcing it to include extra-semantic elements; or, it would have to articulate the aims and motives behind the triangulationist method in extra-semantic terms, e.g., in terms of the political value of publicity. (FWIW, I think that in the long run the third option is the smarter move, though it would take an essay to state why.)

“2) Do you think that governing bodies should have a power to modify or override the communicative content of the constitutional text in response to changing circumstances and values?”

I think, to this question, the answer is an incorrigible ‘yes’, provided that we identify the right linguistic context that is responsible for the change in content. So, notice that there’s a difference between communicative content that changes because of a corresponding change in background conditions which affect the interpretation of statute or caselaw (i.e., related to global changes in perspective and fact), and a change in content that is merely determined by the intentions of the Court with respect to the proper aims of statute or caselaw.

Suppose, for the sake of argument, that the latter is faulty on broadly conservative grounds — because “activist judges”, etc, etc. Fine. It is nevertheless true to say that in the former context, an apparent change in linguistic meaning is both legitimate and hard to deny, even when we go about mere interpretation of what is said in the text. So, e.g., to take Waluchow’s example — in the infamous Persons case, the meaning of “person” is radically different in 1945 as opposed to 1845 because many substantial background assumptions have changed (e.g., about property ownership, theories of sexual psychology, etc.). Our global background conditions make it absurd to read “persons” as meaning “men” alone and pretend to be doing it in good faith. So, it is not just that the Privy Council found the caselaw disagreeable or unjust according to their personal moral convictions. It is that there has been a change in stable meaning, owing a change in the background of interpretation.

The best version of the originalist intuition rests on the idea that true expressions are stable, or built to last. So, there is at least one important difference between “2+2=4” and “The duck-rabbit illusion depicts a rabbit”: you can count on being able to get away with asserting (and assenting to) ‘two and two make four’ tomorrow, but you can’t count on being able to even assert or assent to “The duck-rabbit illusion depicts a rabbit” in the next breath, since a Gestalt shift can take it all away. The presumption of future ‘stickiness’, the idea that legal rules are going to be a going concern, is a truth-maker in law. Which is to say that legal truth implies stability, at both the level of meaning and the level of politics, and this stability across contexts helps to satisfy the need for presumptive guidance to private actors.

There are two kinds of things you have to say about the originalist’s attempt at assuring stability in this way. First, it must be noted, and emphasized, that cross-contextual meaning is itself deeply and richly dependent upon an array of assumptions or givens which give it content. This is true for both partial expressions and sentences. The very idea of a “quark” is unintelligible in the context of an epistemic community that lacks a rich set of judgments about the behavior of particle physics. The sentence, “I want to cut the sun” (John Searle’s example) is sufficiently strange as to be almost unintelligible, given that there are no feasible means (open to our current imagination) that would make that sentence true. Cross-contextual content depends on a network of beliefs, judgments, and capabilities, and any change in these implicit background conditions can lead to explicit changes in meaning. That just seems to be a fact about how meaning works. Significance wanders.

Second, where they get off track, at the level of politics, is the sense that the only factor which provides that stability is strict fidelity to fixed intentions of original speakers. But what they are actually seeking is equilibrium, and a sufficiently large change in context very well might demand a new equilibrium.

To see why the originalist approach to stability is misguided, let’s consider a parable. Suppose someone were to say: “I must build my home on solid ground.” That seems like a reasonable thing to say. Now suppose they encounter a man who has built a boat, and lives their life at sea. “That’s silly, you get knocked around a lot,” says the man who built their home on solid ground. Then a hurricane comes and washes the house away, while the boat (though battered) survives. Question: whose home was more stable? Answer: it depends on your context and background assumptions. The house on land was stable in one context, but the house on the sea was stable in another. With the predicted rise of the sea, the rule, ‘build your home on solid ground’, is not going to provide anything like the need for presumptive guidance to private actors.

J.S. Mill and the torch of the eternal garbage fire

Free speech has many false friends and straw-enemies. Some of those misapprehensions come from the land of freedom and milk and honey and stars and stripes and things. Some come from inside of the Canadian academy. Some call themselves leftist, some right-wing. The conversation, at present, is all a bit warped. But if you wanted to get things straight, you could also consult the classics if you wanted, right from the horses’s mouth — Mill’s On Liberty.

On Liberty is sometimes mischaracterized as a kind of free speech absolutism, i.e., for whom one cannot limit speech on the basis of content, and/or which is directed only at the proprieties of government intervention and not social justice among individuals. If it were those things, it would be boring and wrong. In fact, though, Mill’s argument has all sorts of nuances and compelling features that, at the very least, make it worthy of continued attention. His endorsement of freedom of speech is not absolutist, since the principle of liberty is a function of his harm principle. Hence, he does endorse limitations to speech, and does believe it is sometimes justifiable to sanction the speech of others. You just have to be sensitive to the qualifications.

The first two limitations on speech worth mentioning right off the bat, and which many people reading this already know:

a) Only applies in modern contexts and between adults. Mill’s defense of free speech is a point about how we ought to design modern political institutions and culture which are responsive to reason. For roughly the same reason, a parent can limit the speech of a child, since children are ostensibly not capable of rational conversation. Or so says the parenting manuals in Victorian era England, presumably.

b) Contextual limits. The defense of freedom of speech does not prevent us from limiting the speech of someone who is inciting of mob violence (e.g., the corn-seller’s case). Plausibly enough, the American Court offered the example of yelling fire in a crowded theater as speech that can be sanctioned. (Implausibly, this was done to justify government sanctions on wartime dissidents.)

So, with those caveats out of the way, the question is: “Can we, people living in relatively evolved political societies, and speaking in non-incitement contexts, ever sanction someone for the contents of their speech?”

The answer depends on who you are — a government or a private citizen. For governments, the answer is pretty much a flat ‘no’. A government needs to lay off imposing sanctions on individuals for the things that individuals say. Hence, Mill thinks that blasphemy laws, and even libel laws, are legislatively wrong. An interesting additional question is whether or not legal restrictions on hate speech — e.g., Canadian restrictions on hate propaganda — are directed at harms based on content or context. (FWIW, my inclination is to regard propaganda as essentially contextual in nature, and expressed hatred as intending incitement, and therefore to see it as analogous to the corn-seller’s case. But this seems to be a matter of interpretation, and reasonable people may interpret it differently.)

Some of the people who call themselves libertarians seem to think that freedom of speech only concerns governmental regulations, not interactions between private citizens. But this is not so; private citizens are obliged to respect freedom of speech as well. It is just that their internal calculations have to be a bit more nuanced.

Consider the fact that there are many kinds and qualities of bad effects that we can visit on others when we target them with speech:

Hurt vs. harm. Suppose there’s a difference between subjective hurt and objective harm. We can distinguish them as follows: an action produces subjective hurt when the act produces a negative effect on the patient, but only on the condition that the patient permits themselves to be hurt; while an action is an objective harm if the negative effect is visited on the patient irrespective of whether or not they recognize it. So, you can’t necessarily be held to account just because a person chooses to interpret a turn of phrase in a way that makes it appropriate to feel slighted. The idea is that you are not necessarily blameworthy if you happen to hurt someone’s feelings, so long as they are not otherwise worse for the wear. In contrast, there is a prohibition on intending to cause objective harm to others. So, e.g., even if libel laws make for bad governmental policy (according to Mill), private citizens are doing wrong if they lie about others and cause reputational damage.

Acts vs. facts. Mill notices that there’s a difference between objective harms related to (a) the statement of facts about the target, and (b) objective harms delivered through the act of speech. For an example of the first kind of harm: by calling a thief “thief”, you might end up causing the thief harm, in a sense; but the harm issues from the facts, not from the act of talking about it. And it is fine to do someone objective harm just by reporting accurately on the vile things they’ve said or done. If a pizza guru says, “I hate gay people”, then I can tell ordinary decent folks what the pizza guru said, and they can boycott him. And if a whistleblower says, “My organization is killing people with drones”, and they can prove it, then that speech is permissible, too, and so they ought not be sanctioned by the government.

On the other hand, you cannot just go around sanctioning people for saying things you don’t like, causing them objective harm through the creative powers of speech. That is, you shouldn’t engage in “vituperative” speech: by which he seems to mean gratuitous vilification, heckling and shaming, character assassination, and so on. He argues that the mischief that arises from these sorts of conversational bludgeons “is greatest when they are employed against the comparatively defenceless; and whatever unfair advantage can be derived by any opinion from this mode of asserting it, accrues almost exclusively to received opinions. The worst offence of this kind which can be committed by a polemic is to stigmatise those who hold the contrary opinion as bad and immoral men.” Instead, you should engage in the “real morality of public discussion“, which is to say, you should engage in good faith: “giving merited honour to every one, whatever opinion he may hold, who has calmness to see and honesty to state what his opponents and their opinions really are, exaggerating nothing to their discredit, keeping nothing back which tells, or can be supposed to tell, in their favour.” In other words, you should not contribute to the ongoing eternal garbage-fire of life on Twitter.

But, once those speech acts are taken off the table, is there any kind of speech left? Is all of our discourse turned into anodyne or inert? No — you are only barred from intending objective harm on the basis of the speech acts independently of the facts, i.e., through vituperative speech. Everything apart from that is fair game. You can speak falsely, and can hurt feelings. What you can’t do is engage in bad faith.

At any rate, this was my reading of Mill. Maybe you have your own interpretation. Either way, I think it is well worth revisiting his essays every so often, because it rewards close reading.

Aquinas and the limelight (III)

This post is about Thomas Aquinas’s comprehensive legal and juridical theory, as it relates to constitutive charters and public reason. It is part of a series loosely based on my reading of Rawls’s The Idea of Public Reason [discussed here and here]. Aquinas’s legal theory is based on public-facing associative reasons, and ultimately I would like to explore the possibility that any account of legal publicity must be at least public-facing. But even if you don’t care about that stuff, the exercise in comparing and contrasting Aquinas and Rawls is worth doing for its own sake. So let’s get on with it.

For exegetical convenience, it would be instructive to talk about non-Rawlsian accounts of justice in terms that are broadly commensurate with the Rawlsian point of view, since Rawls is both more familiar and more perspicuous, and therefore easier to defend in good faith. So, for the sake of argument, I would like to imagine how a modern-day Thomist might think about justice if they set themselves to imitate Rawlsian ways of speaking, which means bringing his theological convictions to heel. I articulate a conception of Thomism that is based on notes from my reading of the first two volumes of the Summa Theologicae. Yet this conception only inspired by Aquinas, since his theological convictions are indefensible from a scientifically literate point of view, and therefore uninteresting. So, because my reading willfully departs from Aquinas’s own views, I will self-consciously invent an object of comparative analysis that is inspired by Aquinas, but which jettisons his metaphysical views. I refer to it this composite view as Nomism, advocated by the imaginary Nomas Baquinas, a bizarro fusion of myself and Thomas Aquinas. That does not make the exegesis immune to criticism, since if our man Baquinas strays too far from the real Aquinas, then the exercise will have been a waste of time. But I hope you’ll permit the indulgence.

Oh, and to be clear — not only I am not a Thomist, I am not even a Nomist. I, personally, am only trying to see how well that one instance of a comprehensive theories of justice, and public-facing associative reasons, might fare in accounting for legal publicity in appropriate contexts. That’s the (relatively nerdy) axe I have to grind. It is not, however, meant to be a strawperson. The Nomistic view has a set of disadvantages and advantages that distinguish it from the Rawlsian one. The point of contrasting them is to enlarge our cultural imagination, at a time when inter-civilizational justice is in high demand and mature justicial intellectual programmes are in short supply.

*

Everyone agrees that the idea of ‘justice as fairness’ does not capture the full scope of a theory of justice. And by ‘everyone’, I mean, everyone including Rawls, who stressed the point very early on in his Theory of Justice. But suppose we take insufficiency of scope as an essential defect in the idea of justice as fairness. Why might we prefer a theory that covers a wider range of issues?

Like all issues in conceptual analysis, our convictions about the acceptability of a characterization of a concept has got to do with the inferences worth caring about, as far as they bear on the usage of a term (embedded in sentences). One thing worth worrying about is that Rawls has gotten the wrong unit of analysis. Perhaps the proper unit of analysis for a theory of institutional justice — the ‘basic structure of society’ — is a civilization, considered as best advice for sovereign rule, and not merely the social, economic, and political apparatus of a Westphalian nation-state, as Rawls takes it in his Theory of Justice. In that case, a theory of justice should be compared to Rawls’s Law of Peoples. Call that the macroscopic objection. But we might also think that the development of moral agency is one of the basic institutions that we need to account for in a theory of justice, just in case we think that the self is at least partly a social construction. In that case, the constituency of a civilization is not found in citizens, but in the reasons and intentions that compel them to act in social contexts. In which case, the scope of analysis would be much larger than either the Law of Peoples or the Theory of Justice, extending to a theory of law, morality, and meta-ethics. That is the microscopic objection.

Why would anyone adopt a view of such a wide scope? What’s the point of being a hedgehog on steroids? Doesn’t a comprehensive account of this kind detract from the narrow focus of a theory of justice? (The reason ‘why not’ is, I suppose, obvious. I can’t help but comment that one might need to look no further for a reason to look for alternatives to comprehensive doctrines than by observing the prohibitive length of the Summa.)

Well, there are programmatic reasons to think that perhaps the wider view is best. For one thing, it looks as though comprehensive theories are more directly capable of handling wide reflective equilibrium as a means of justification. (Granted, this is a cheap shot — ‘direct’ does not necessarily mean ‘better’.) But for another thing, we might be convinced that justice is a living thing, like a seed, which is planted in one’s own convictions and capable of growing and flourishing to the point where it becomes a model of civil life. One does not understand the form of the nature of the tree without being able to understand where it came from, and how it can and must be nurtured to survive. On this view, the constitution of a thing can be found in its genealogical facts. To provide a political theory of justice that is structured around public reason, we would need to treat those diachronic questions as being of secondary concern. But if we think that the very idea of justice is inextricable from the flow of history, then the Rawlsian synchronic approach might strike us as wrongheaded.

Anyway, if we think these requirements of scope are well-motivated, then we could say that we are seeking a theory of justice based, not just on the ideal of justice as fairness, but on a broader ideal fit for larger social circumstances — that is, on justice as goodness, i.e., where goodness is rationally beneficial, useful, and pleasant. That is the Nomistic view, for whom the idea that justice is a disposition to do right by all. Considered in the context of contemporary theories of justice, this conviction is both unexpected and unexpectedly rewarding in its consequences. But considered as a restriction of law, it is potentially disquieting, if not totalitarian, constraint on personal conduct.

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On my retelling, Rawls’s political theory has five notable features. (1) It uses a device of representation, the original position, which functions as a procedural effectuation of the values of freedom and equality among citizens. (2) Original citizens are presumed to be sincerely interested in securing a reasonable state of cooperation — that is their strategic orientation. The output of the original position is a hypothetical contract with certain rules: (3) concerning the ideal structure of government, and (4) the demands of institutional justice. (5) The demands of institutional justice will relate both to conceptions of both the rule of law and legal validity.

1. Device of representation. I would like to say that Baquinas’s device of representation is not the original position, but something more like the position from eternity. The thought-experiment looks like this. Suppose that you were the ultimate sovereign over a whole universe, and you wished to generate the greatest potential goodness for the people who will come to populate it. Suppose, though, that the life-situation that the citizens in your universe come to experience will be fully determined by your understanding of yourself. Imagine, in other words, that you are in the narcissistic position that Kant asks us to be in with his first formulation of the categorical imperative — that you ask whether the maxims of your intentions, when generalized, could become laws of nature. How should you think about yourself, if you were placed in the position of ultimate benefactor or master role model? Aquinas suggests that you should be rather nice to yourself — that is, you ought to have an absolutely loving intent, a love for your powers of creativity, and a love for constant activity and motion. If you, a perfect being, held yourself in any lower esteem than as a perfect being, then your universe would not be conducive of the good — the people within it would have no sense of reason, or would not appreciate what is useful, or would be in an unrelenting state of misery, without that Northern Star to aspire towards. In our terms, Baquinas argues that we should adopt an optimistic political attitude.
   
2. Strategic orientation to action. Since we are assuming that goodness is necessarily rational, we should want our citizens to exercise their agency through reason, and hence to govern themselves rationally as best they can. What counts as ‘best’, though, is already conditioned by the setup. First and foremost, Baquinas suggests that the most rational option is the one that encourages generally good consequences, and seeks to minimize bad consequences. And, second, direction towards the good demands the preservation of life, and the need to seek good according to reason. The upshot, throughout, is to act charitably. These are the ways that agents behaving in an optimistic mood will behave, and expect others to behave, insofar as they participate in the position from eternity through the possession of reason. However, we should also encourage a degree of stoicism, since excessive solicitude creates misery through hypervigilance.
3. Ideal government. Baquinas thinks ideal governments should be ordered as a patriarchy. The sovereign should do their best to prize the flourishing of the sublime arts, the sciences, and the trades — essentially, the apex vocations which make a life worth living, and which make the day-to-day survival of a community possible. In this sense, political economy and distributive justice are of first concern to an ideal government. The task of the upper classes is to come to a consensus on — and then to publicize — a plan for collective action that maintains and enforces service to the community and also the requirements of charity. The second tier of government involves the means of maintaining life and order — judicial and legislative systems, health care systems, and police and military. These offices should exist and function only to the extent that they produce a society where all people are free to pursue and attain excellence. And, in the third tier, the government should take care of enriching its citizens — it should be ordered in terms of municipal associations, a scholarly community, and a system of education, all geared towards making more virtuous people. These lower tiers of government should be directed towards the preservation of a just system of rule. Because the proprieties of government are patriarchical, the system is one of associative reason.
4. Institutional justice. There are two kinds of justice — distributive and commutative. In this scheme, distributive justice demands respect for dignity, i.e., the relative contribution of a person to the community. This is broken into two kinds — duties to the sovereign, and duties to the community as a whole. By ‘dignity’, Baquinas means deference to the apex vocations, and especially, the masters of the sublime arts. Respect for dignity is given expression in a criminal code with a handful of seven basic imperatives: respect and obey the sovereign, pay your taxes, don’t harm people, don’t steal and destroy the property of others, don’t break trust, take care of your own thoughts, and pay your debts. Meanwhile, commutative justice is directed towards a principle of reciprocity, which requires, e.g., a duty of reparations and the golden rule. In all of these contexts, private reason does not have much of a place.
   
5. Legal validity and rule of law. Bad rulers can exist under the following conditions: if they fail to act charitably, order themselves in a strict class system, do it prudentially, and with a system of laws based on dignity and reciprocity. Disobeying the orders issued by tyrants is not strictly speaking breaking the law, since human law is an expression of the right, and an attempt to do well by justice, and only legitimate to the extent that it protects us against imprudence and injustice. So, ultimate legal validity of law is found in the higher law. To be sure, in normal contexts, insurrection against the rulers is illegitimate, since all authorities are at least a little bit good. Still, citizens can determine for themselves if emergencies exist requiring lawful insurrection, since is law mainly about rules that fit normal conditions.

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On the first point, we can notice that neither Rawls or Baquinas are foundationally liberal, since neither of them permit free choice in political mood or attitude. There is nothing in their respective devices of representation that encodes the ability for original participants to choose their attitude. That said, Rawls permits relatively wider latitude: for him, the only requirement is that we not be in what in the last post I called the ‘pessimistic’ political attitude, i.e., for whom it is presumed that we have neither collective solutions nor any means of knowing them. Meanwhile, Baquinas is decidedly less liberal, as he makes optimism mandatory.

Second, Baquinas endorses a teleological theory of the right. It is similar in some respects to consequentialism, since all just actions is to increase the stock of good and reduce the bad. It is not quite act-consequentialism, though, for two reasons — first, because at some points he suggests that the right and the good are intertwined, or mutually adjusting, in the sense that sometimes the right is derived from the good, and sometimes the good from the right. Second, because virtuous practical action is stoic, and so directed towards satisficing, not optimizing, reasoning. In contrast, Rawls’s theory of justice is based around contractualist ideals, not consequences. Hence, his device of representation is directed towards the formulation of policies adopted by original citizens, and is concocted for the sake of securing a society based on freedom and equality that they can own, and results in scheme of justice where the demand for the right of equal liberty is lexically ordered above consequentialist considerations related to distributive justice.

The strongest points of difference concern their approaches to ideal government and institutional justice, as far as these relate to public and private reason. For Rawls, all offices are potentially open to any member of the public. The open status of governmental offices issues more or less directly from Rawls’s commitment to public reason, or common reason for the commons, where all have free and equal opportunity to participate. For Baquinas, the point of government is paternalistic, with stations at the top devoted to the masters of right and good. Their form of reasoning is public-facing, since their reasons are meant to bring order our public institutions, and expressly need to be promuglated. But this view of reason is nevertheless a form of associative reason, since it is not conducted by the commons or in common view. The sciences, trades, and sublime arts are not offices open to all.

What are their attitudes towards private reason? In the previous post, I noted that Rawls asserts there is no such thing. But he was mistaken. So, a stronger version of Rawlsian politics would argue that private reason has no justificatory role in developing a democratic constitution, even though it is vital to our understanding of liberty. Meanwhile, though Baquinas believes that both free choice and liberty of conscience are necessary presuppositions in moral inquiry, this freedom does not have a central place in his political theory, since the liberty that is implied is not reflected in either natural right or in ideal government. Further, Baquinas suggests that private reason ought to be tolerated, but only as a matter of prudence, since a government that pokes too much into the free conscience is one that is doing work inefficiently.

Legal validity and rule of law. Also for Rawls, while there is a wide range of reasonable disagreement among subjects, some overlapping consensus can still be found over the right and the good, and which will direct government action at any particular moment. Citizens have a duty to civil obedience that fits broadly into this conception. Rawls referred to his position as ‘dualism’, which is a fascinatingly opaque descriptor. I am not sure a normative ‘dualism’ is fully consistent with his considered opinions, however, since the ordinary law is subordinate to the higher law. In contrast, for Baquinas, the only overlapping consensus we need should be found in the upper classes — the technocrats who are looking out for the public good. The job of subjects is to obey for the right reasons. If, however, subjects found themselves in agreement that the vanguard is a form of tyranny, then the right to rule would shift accordingly. That reflects the Nomistic natural law, where definite moral duties conclusively override the dictates of the rulers, and the dictates of the rulers derive their authority from the moral law. Which is all just to say that, on this point, there is may not be a lot of blue sky between Rawls and Baquinas.