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.

Thoughts of Venezuela from afar

On the question of what Canada ought to do about the constitutional crisis in Venezuela, I think it’s worth thinking about (a) what the constitution of Venezuela requires, and (b) how the right kind of stability can be produced (i.e., in such a way that democratic rule of law flourishes). I’d like to treat this as an opportunity to think about what constitutional law requires (a), as far as I understand it, and full well knowing that I have much to learn, and that facts may change daily.

The linked white paper from CSIS (a Washington think tank, not the Canadian version of the CIA) is instructive. In it, the author argues that Guaidó, head of the ousted legislature, is the current legitimate interim President and should be recognized as such. (More on that in a moment.) Moreover, he believes that, once Guaidó secures the office, he ought to delay election beyond the constitutionally mandated 30 days. Hence, he believes the shadow government ought to ignore the written Constitution of Venezuela. CSIS thinks a delay in elections would be justified because the country is experiencing extraordinary conditions, which the framers of the Constitution could not have reasonably foreseen. But this does not alter the fact that the recommendation is not consistent with the written constitution of the country.

So, either CSIS wants us to ignore the constitution of Venezuela, or it wants us to respect its unwritten constitution, and thinks the unwritten constitution permits a delay in elections. Since ignoring the constitution would amount to being an attack on the rule of law of that country, so I must assume that they are making an appeal to the unwritten constitution. e.g., by making reference to the political features of the system as such (even though the whole problem is that it is in tatters, with the neutering of the legislature), or by appealing to the conditions for identifying and preserving a system of law, or by telling a story about natural law, or some other thing.

I am personally convinced that there are ways to talk about the unwritten constitutions of civil law countries. But, to be sure, any claims we make about unwritten constitutions depend on substantive theories of law and considerations of public discernment of explicit meaning, which I am still actively wrestling with. Moreover, the standards for talking about unwritten constitutions are seriously constrained in civil law jurisdictions like Venezuela, since stereotypically, civil law fetishizes codes.

Here is the legal case for recognizing Guaidó as the President, as far as I understand it. The Venezuelan Constitution allows for the head of the legislature to take up the office in the “absolute absence” of a President, i.e., someone who is endowed with powers through ordinary processes of succession via election. But then the question is, “what does it mean for there to be an “absolute absence” of a President?”. Guaidó argues that the position is not occupied when the elections are fraudulent. This view is apparently shared by the international coalition. Though perhaps there is no objective third-party consensus that the elections were rigged, many seem to think it is plausible to say that they were fraudulent.

Yet, as a matter of fact, elections were held, and Maduro was sworn in — he is de facto ruler, whether or not he is de jure President. But can the Presidency be “absolutely absent” when there is a de facto ruler who fulfills many, but not all, of the conditions for orderly succession? What does the written law require, and who is in charge of figuring it out?

There’s a vast menu of options. Ordinarily, I’d have thought that this is the sort of constitutional question that needs to be resolved by jurists. But that is bad news for advocates of regime change, for a few reasons. First, there is a strong presumption that we ought to ask the Court what they think “absolute absence” means. Yet in cases of civil law jurisdictions, the rule of interpretation is supposed to be something like, obey the limits of the word. Moreover, since the ouster’s view is that the Court is “on the take”, that won’t be of much use in marshaling a legal case, since presumably, the Court will just vouch for Maduro.

What’s clear to me, though, is that if the election is demonstrably illegitimate — which it might be! — then, from a legal point of view, priority one should be to hold one that *is* constitutionally legitimate. With multilateral observers and all the bells and whistles of a democratic coalition operating in good faith. But that would seem to require holding an election within 30 days, as required by the Constitution. This, unless more is said about the processes for thinking about the supremacy of the unwritten constitutions, in a way that does not introduce uncomfortable questions about how we govern ourselves in our own backyards.


Those are the sorts of considerations that should be at issue when we think about whether Canada, or the West, ought to intervene. I think my suggestion is a substantive requirement that articulates a few of the conditions for just intervention without being paternalistic or imperial. Venezuela’s democratic sovereignty must be restored along the way to a just peace.

And that position is worth contrasting with the outdated neoconservative approach, which is to back a foreign dissident regime and arm them to the teeth. For example, unconfirmed reports from Democracy Now! give us reason to suspect that the US is smuggling arms into Venezuela. If true, then it signals that the States is ramping-up for yet another proxy war. And it is worth saying this doesn’t work out well for anybody.

If the international community truly worries whether or not the most recent election in Venezuela was free and fair, then a multilateral intervention should investigate. Again, ideally, this should occur at the request of the contesting parties who are looking for legitimacy. What the international community should not do is provoke violent unrest in an already complicated region.

Incidentally, none of these remarks issue from an especially idealistic foreign policy perspective. Even from a cold, reptilian neoconservative point of view, the extensions of the Monroe Doctrine (i.e., policies which ostensibly justify US intervention in other sovereign nations for American interests) are essentially subverted by the potential for blowback by non-state actors. From that same reptilian point of view, “No commies in our backyard” makes some sense when we were protecting from a conventional invasion. But it makes absolutely no sense in the context of arming paramilitants. For confirmation, consider former beneficiaries like Hussein and Bin Laden, and consider how well that turned out. (Please note that I am not making a direct comparison between these guys and Guaidó, except from within the reptilian point of view.)

The upshot for neocons in this new century ought to be something like this. Violence thinks it is intrinsically justified, and if you provide it with unfettered means and it will make itself its own end. Or, to put the point in a more prosaic way, once someone gains power, the way that they maintain their power is by scapegoating outsiders. This has been very successfully done by pointing, ironically, at the guys who gave them the guns in the first place, and saying — “we have to protect you from the meddling of the international bogeymen”.

Dialectic and rational arguments in philosophy

Socratic dialogue is modeled on dialectic, and for that reason it is a central part of Western philosophy. In the previous post, I pointed out that, historically speaking, dialectic contrasts with three other argumentative styles — rhetoric, scholasticism, and mathematics. Unlike rhetoric, dialectic is not about persuasion for its own sake, but the pursuit of stable conclusions (as we saw in selections from both Gorgias and Phaedo). Unlike scholasticism, the dialectician attempts to resolve disputes through engagement (i.e., the method of disputation), not through deference to written authority in the form of scripture. And unlike mathematics, dialectic investigates the worthiness of its premises (i.e., what I called the ‘collapse-and-consequence’ model), instead of treating premises as axiomatic.

Last time, I suggested that these three historical contrasts help to hone in on a particular feature of concept of dialectic, which is that dialectic is a form of second-order rational persuasion. I suggested that the constitutive point of dialectic is to convince people that some passages of thought or speech are rational, and to resolve disputes in that minimal sense of creating directed change towards a state of intellectual common ground. I called this ‘persuasionism’. A vital part of the persuasionist thesis is the idea that dialectical arguments occur in the context where they are directed towards change in mental state (what Gilbert Harman calls a “change in view”), leading to resolution of dissonance. I argued that the persuasionist theory is superior to the purity thesis, i.e., someone who thinks the collapse-and-consequence model is sufficient to characterize dialectic, and that no reference to effective perspective change is strictly necessary.

The persuasionist thesis says that dialectic involves a directed change in view accomplished by means of demonstrating the rational defensibility of a passage of thoughts in light of potential challenges. One might wonder whether demonstrating defensibility of some train of thought actually counts as “persuasion”. But a moment’s reflection shows it clearly does. As a matter of definition, to persuade just is to cause someone to believe or act in some directed fashion that they did not before. When you subject a set of reasons to potential objections, you leave the set of reasons altered — stronger, if all goes well for the defender of those reasons. This means that in the process of demonstrating defensibility, you have produced a change in view about the status of the arguments as being more reasonable than they seemed at the outset, all other things equal. And my suggestion is that this sort of directed change is not an accident or an irrelevant side-effect, but rather is a part of the dialectician’s stance of attempting to direct a change in view during the course of presentation of argument. Notably, though, it is an attempt at mutual persuasion between defender and opponent; that is to say, it is as a joint enterprise with reciprocal expectations. Hence, when the dialectician fails to persuade their good-faith interlocutor of the rational qualities of their passage of thought, they thereby gain some reason to regard those passages of thought as irrational under some description.

In the rest of this post, I provide reasons to think that persuasionism makes the most sense of dialectic in philosophy. First, I’ll make a brief remark on the consequences of persuasionism on meta-philosophy. I suggest, briefly, that is persuasionism is conducive to productive philosophy. (Indeed, I think it is even more conducive than the purist’s alternative, which I think is worse than sophistry; but I will not argue this point in this post.) Second, I will consider some attempted refutations, based on the idea that I am excluding some kinds of argument as examples of dialectic.

1. On meta-philosophy. When I say that dialectic is not just an autodidactic exercise of getting ideas clear in isolation — of studying logical implications and entailments, or (Harman again) “what follows from what” — my emphasis is on the word “just“. Dialectic involves the study of such entailments, but is not reducible to that study. I offer two reasons. First, as we have seen in the previous post, Socrates himself thought he was attempting rational persuasion. Indeed, one of the characteristic tropes of Socratic argument is his willingness to throw the whole game away, if only a good answer can be given to a master question (which he then shows cannot be done).

But second, even in a parallel world where our Hellenistic heroes thought they were just making ideas clear independently of their audience’s convictions, it is still a fact that people can do a lot of things with all sorts of side-effects, and some of those side-effects might actually be the thing that makes the activity essentially worth doing. Sometimes, a practice has a function, and that function occurs independently of the ways the practice is conceived; it, instead, has to be recovered by examination of intuitively valenced presuppositions. And that fact makes it possible to engage critically with the tropes in Socratic dialogues, to separate the stuff Socrates thought he was doing well from the stuff that he actually was doing well. Which is just to say that contemporary critical thinkers could probably do without Socrates’s leading questions, for example, or Plato’s noble lies, even if for whatever reason Plato and Socrates in our parallel world had decided these  ideas were essential parts of their whole philosophical package. Revisionism is the price we sometimes pay for rational reconstruction.

2. On excluded cases. Most of this post derives from a spat I had with the author over at Siris blog, who seems to be a purity theorist. In our exchange, he argued that the persuasionist view of dialectic excludes a few cases of rational argumentation. 1) It seems to exclude cases where we apply the collapse-and-consequence model through habit. 2) It seems to exclude practice arguments, e.g., as when the student makes use of natural deduction. 3) It seems to exclude cases involving a stimulating exchange of reasons for exploratory purposes. But these examples are not on equal footing. So, my view is that (1) is not an argument at all, (2) is rational argument but not dialectic, and (3) is an unobvious kind of dialectic.

Habitual processing. I reject the idea that arguments are, or can be, merely habitual passages of thought. For a person to suggest that habitual passages of thought are not directed at change in view, is for that person to fail to attend to the internal point of view, and in particular to neglect the intuitive force of argumentation. Intuitively, there seems to be a difference between mere regularities and rules, and rational arguments are about rules, so regular habits of thought are not themselves arguments.

The point can be made in part by appealing to the philosopher’s ego. If merely habitual orderings of thought counted as philosophical arguments — if it were even possible to follow the quick turnabouts in collapse-and-consequence model into habits — then it would turn philosophy into something even worse than sophistry. Indeed, it would collapse the study of rational argument into the study of the psychology of reliable heuristics, or the study of computational processing. It is a rare philosopher who is eager to make themselves Turing-incompatible in this way.

Perhaps the purity theorist would consider it a strength of their view that they think they can rationally argue as a function of personal habits. And, indeed, much of logic feels like habitual or schematic, once it is mastered. And if they could get away with that, then to be sure, “persuasion” would drop out of the analysis. But the only *rational* way you can get away with the habitualist’s conviction is by finding some independent means of calibrating your passages of thought by placing them into an orderly rule-like quasi-sentential (propositional or imperative) structure. And it is difficult to see how habits or mere regularities could have that rule-like character — a man who “argues” with himself habitually is not engaged in inference, hence not arguing rationally at all. In that sense, the approach from habits is going to founder on the question, “What makes this rational?”, and one does not even have to be a persuasionist to suspect that it is a mistake. But even if we come up with an adequate causal account of rules (as, indeed, we might), there is the remaining requirement of needing to account for the ‘following‘ part of ‘rule-following’, which is an intentional activity that seemingly requires both identification of rules and calibration of them.

Practice arguments. A different argument proceeds by observing that, when we are doing proofs in natural deduction, we aren’t trying to persuade anyone of anything. From premises, we are given the task of showing their consistency. Sure enough, this does not look like rational argument.

In this case, I think it would be useful to remember that philosophical argument is not all dialectic. The geometric or analytical method, of deriving consequences from axioms, is one method in philosophy, though it is not a Socratic method. So, one might insist (correctly) that the geometric method has got all the bells and whistles of a rational methodology, and that this is being ignored in a conversation about dialectic. And then one might notice that practice arguments have the form of analytical arguments.

This argument has my blessing, though it is not of first importance in a conversation which is meant to be about the merits of rational argument insofar as it has been conceived of through the Socratic approach. It also reminds us that we ought to notice that a presumptive dichotomy, between dialectic and rhetoric, is a false one. The mathematician is not just doing rhetoric.

Bullshit sessions. The author of Siris also asserts, plausibly, that the persuasionist view of argument seems to make no sense of ‘stimulating thought’ exchanges, where the aim is apparently to open oneself to exchange, not to create a directed change. I agree these contexts are not obvious attempts at rational persuasion; it is easier to say that they are attempts to explore the space of reasons. In bullshit sessions, for example, rational people can take on points of view “for the sake of argument”.

But appearances are deceiving, because the difference has got to do with whether or not the attempts at change are built to last. I submit that in these cases, participants are attempting to persuade others into the view that it is rational to regard some perspective as appropriate in a context, not to persuade people that it is rational to hold the positions are true. The attempt is still to show that, in a contest of reasons, one comes out stronger, even if the contest is local, and comes to an end when the sun goes down. So they still fit with the persuasionist model of dialectic.

Link roundup


I’m an alpha tester at, which is using market-based social epistemology to ferret out false news. I can’t say whether or not it works or not. The jury is still out as to whether the service is a success in helping correct the public record.

But what I find interesting and refreshing about the experience is that it has exposed me to the diverse lunacy of the human condition. So, e.g., a plausible post about Kanye having his Twitter account taken away from him turned out to be mere satire (contrary to my first-blush expectations). And a post that seemed implausible to me — of an overenthusiastic secularist Principal who mistakenly thought that schools were obliged to ban candy canes because their J-shape stands for Jesus — was verifiably true. (That is, it’s true that the Principal existed and banned candy canes because of an odd belief about their shape, and probably not true that candy canes really are shaped for that reason.)

Which is just to say that I’m skeptical of memes that tell me what to believe about what real people believe. Real token human beings believe all kinds of nonsense, and our meta-beliefs about what people believe turns out to be, sometimes, way off base.


The BBC reports here on research conducted on genocide. “Two research projects are attempting to predict the early rumblings of genocide and spread the information more widely so that world leaders and others might be able to stop it.” The contention is that there is a kind of etiology to genocide, a definite step-wise process, that can be monitored and noted. Especially interesting is that the precursors to genocide mostly involve the spread of information, leading to group polarization.


Considered as a method, philosophy involves the use of rational arguments in order to persuade people working in good faith of the reasonableness of certain passages of thought. Hence, medieval scholars used the term of ‘dialectics’ to refer to the art of logical disputation — contrasted with overly credulous appeals to textual sources (e.g., the scholasticism of the Church) or the use of rhetoric for the sake of persuasion without regard for its rational character (e.g., the sophistry of Gorgias). The medieval sense of dialectics makes pretty good sense of the argumentative practices of philosophy, be it Socratic dialogues and Aristotelian screeds, and is frequently articulated as the core deliverable in an education in critical thinking.

This article reminds us of the role of such critical dialogue in resolving disputes peacefully. It takes a lot of patience and searching in order to work, along with many of the agonizing costs of disputation. But history tells us that, in the long-term, the agonies of polarization are worse.


I hesitate to write about the academic job market. At the moment, I am in an especially precarious position; and, perhaps worse, I would be very embarrassed to write something that I later find is doused in sour grapes. I will say that it is a topic that requires a lot of patience, careful thought, and consideration of the changing “neo-liberalized” economy. It is easy to get wrong. But I thought this piece struck the right balance.

A prime facie what?

On the heels of the previous post, I have been wondering about what it would really take to be a prime facie duty. Ideally, an account should make it clear whether or not Ross has correctly identified the nature and usefulness of the familiar Big Seven topics (beneficence, non-maleficence, fidelity, etc.) by choosing ‘prime facie‘ as a label. And it is not an embarrassing question, given that Ross’s original remarks from The Right and The Good are provisional and apology-laden, so surely invite friendly re-evaluation (even if it must be confessed that one is not breaking new ground in thinking through a text that is almost a century old).

In my previous post I alleged that there is such a thing as a prime facie reason that is not minimally good (pro tanto). Some reasons are not, as a matter of fact, good reasons — they only seem to be good under some description. This is a point I have explored in other blogging (here and here). Now the question is whether any of those prime facie reasons are helpful in expressing the grounds upon which one might make a claim of responsibility over actions and events (to take up Brandon’s suggestion), and in that sense be worthy of being called ‘prime facie duties’.

The first obstacle is that Ross himself did not believe that he was describing a set of duties at all. The product is not as advertised:

I suggest ‘prima facie duty’ or ‘conditional duty’ as a brief way of referring to the characteristic (quite distinct from that of being a duty proper) which an act has, in virtue of being of a certain kind (e.g. the keeping of a promise), of being an act which would be a duty proper if it were not at the same time of another kind which is morally significant. Whether an act is a duty proper or actual duty depends on all the morally significant kinds it is an instance of. The phrase ‘prima facie duty’ must be apologized for, since (1) it suggests that what we are speaking of is a certain kind of duty, whereas it is in fact not a duty, but something related in a special way to duty. Strictly speaking, we want not a phrase in which duty is qualified by an adjective, but a separate noun.

I think we are obliged to flagrantly ignore Ross’s secondary suggestion of ‘conditional duty’ as a synonym for ‘prime facie duty’. For, given that Ross is at great pains to walk around eggshells when it comes to description of the idea of a ‘duty’, the phrase sounds very much like it is describing the same thing as a hypothetical imperative. And the connotation has consequences. For if you (like Philippa Foot) think that all of morality is a system of hypothetical imperatives, then it’s going to be hard to distinguish between prime facie duties and minimally good (pro tanto) reasons for action. His intent, of course, was to say that these are duties in context, but not duties as such. That would make them hypothetical principles which fall short of being imperatives. But you can’t untie a knot by adding new ones, so let’s just put the matter aside.

For Ross, prime facie duties are not duties. This is, of course, a needlessly paradoxical way of speaking, but it has some traction in ordinary language. Consider, by analogy, the fact that we currently describe the solar system in terms of ‘dwarf planets’ (Pluto, Eres, The Goblin) and ‘planets’ (Earth, Mars, etc.), but our terminology is not very good, because strictly speaking a dwarf planet is not a species of planet, but rather is a near-miss case. If we kept our lexical house in order, we should be calling Pluto and friends something else entirely — a planetelle, planetilly, planetaine, or whatever. So long as a distinction is made between bodies which have ordinary and extraordinary orbits around the sun, the label is not important. Similarly, Ross is telling us that the “prime facie duties” are not really duties, but strictly speaking are near-miss cases of duties, and if we knew what was good for us we would call them something else — claims, topics, grounds, or whatever. So long as the idea of an ethically probative reason is retained, the label can be left to future lexical housekeeping.

Instead, it seems best to adopt the phrase ‘prime facie claim‘. This option is explicitly rejected by Ross because he thinks a “claim” strongly implies sociality, and hence fails to describe claims one might make upon oneself. To me, however, this seems like a bad lexical choice. It is better to prefer the artificial to the positively misleading. And anyway I find nothing at all unintuitive or odd about the idea that one may make claims of oneself. Perhaps conventions have changed; my sense is that many contemporary philosophers (e.g., Lon Fuller) are willing to say that there are self-directed or agentic duties. We proceed, however, on the assumption that nothing will be lost in the new usage except a little verbal confusion.

Topical duties and the force of reasons

Over at Siris (a great blog), Brandon has a nice post on Ross’s “prime facie” duties. I’ve been thinking about Rossian pluralism for the last little while, so it caught my attention. I agree with much of the post, but also think I have a minor philosophical (not scholarly) quarrel with it. I confess it is a little nitpicky — to the point where I would ordinarily have just posted it over there in the form of a question. However, I can’t comment over there without using Discus, and Discus is either incompatible with Firefox or is otherwise cranky, so I’ll have to post my thoughts here. I’m sorry / you’re welcome.

For the sake of context, here is a brief summary of the post. Broadly speaking, Brandon’s argument seems to have three aims. First, he offers a few observations about the inadequacies of the label of “prime facie” duty, suggesting that we are better-off calling these topical duties (deontic topoi). Second, he suggests that the character of the duties are best understood as the kinds of reasons that are relevant when we assume responsibility over actions and situations. And, third, he suggests that the nature of the inter-relations of the duties is best understood when viewed in the context of the humanitarian tradition, concerned with medicine, apparently as opposed to (e.g.) law.

I agree with his first point entirely, and I love the second point. I am inclined to disagree with the third point, because it seems to me that privileging one relevant responsibility-bearing context over another might lead us to miss out on the most promising features of Ross’s contextual pluralism. But I will the main issues aside. My concern for the moment is with a footnoted remark he makes related to the second thesis, where he explores the relationship between topical duties and reasons.

Before I make a deep dive into the discussion, I will interpret the Latin qualifiers in the following way. ‘Prime facie‘ (preferred spelling, sorry) means ‘on the face of it’, ‘pro tanto‘ means ‘minimally good’, and ‘prime ultima‘ means ‘peremptory’ or ‘decisive’.

Here is the footnote (reposted in its entirety to give you a sense of its context, bolding added):

People have argued that Ross should have used ‘pro tanto‘ rather than ‘prima facie‘, but I don’t think this is any sort of improvement. ‘Prima facie duties’ at least has the merit of suggesting that they are not necessarily duties, which thus far is at least not wrong; ‘pro tanto duties’ suggests that they are partial duties, which is certainly not right. Nor does it help to switch to ‘pro tanto reasons’, because (while they would certainly be more accurately called ‘reasons’ than ‘duties’), they are not ‘pro tanto‘ as reasons; they are just reasons. At least, if we call them ‘pro tanto‘ they aren’t so in any sense that they don’t share with most of the things we call ‘reasons’.

Here is how I understand what is happening in this paragraph. In the unbolded passage, Brandon considers the possibility that we should examine topical duties in terms of pro tanto duties, and then dismisses that possibility as untenable. Which is fair enough; after all, in some contexts, some topical duties (e.g., gratitude) are just not relevant to the moral features of the situation. Then, in the bolded passage, he considers the possibility that topical duties are pro tanto reasons, and dismisses that claim. Which is almost fine — since, like him, I doubt that topical duties are themselves minimally good (pro tanto) reasons for action. To be very clear, I essentially agree with both claims. Ross’s topical duties are not straightforwardly described as pro tanto reasons, nor can they be understood as pro tanto duties.

What I am concerned with is the reason he uses to dismiss the ‘pro tanto reasons’ reading — he claims that topical duties “are not ‘pro tanto’ as reasons; they are just reasons“. I am not sure what this amounts to. In particular, I am concerned with the contrast between minimally good (pro tanto) reasons and reasons as such. It is natural, as either a reading or a misreading, to think that this passage is telling us that there is no reason to believe that topical duties provide minimally good reasons for action, in any sense that does not apply to all talk to reasons. That is to say, all reasons are minimally good reasons, in some sense, so adding ‘pro tanto’ in front of the name is not any help. Hopefully that is an accurate characterization of what Brandon had in mind, here. Anyway, let’s assume it is. Is it true?

I think not. While it is true that all reasons are presented under the guise of being good reasons, that does not imply that all reasons are in fact minimally good, in any sense that is usually at issue in reasons-talk in ethical contexts. For some reasons only seem to be good, but dissolve under scrutiny, as the weight against them overwhelms (or subverts!) their initial, first-blush appeal. Those, and only those, are worth being called prime facie reasons or duties.

So, for an example of a prime facie reason, take Hume’s obtuse rational man, who says “Let the whole world burn, for the sake of a scratch of my finger”. The reason to avoid a finger-prick is presented as good, and intelligible enough to understand Hume’s point, but it is not minimally good. For, as I see it, when presented out of context, “scratching my finger” is bad, and so avoiding that is a minimally good reason for me to act in a certain way. But when that same event is presented in the context of saving the world, it is not a minimally good reason. For persons of conscience, there is no rational contest, no agonizing over the relative weight of mid-level principles, where ‘avoid pricking your finger’ plays the role of a defeated contestant. In that context, it is mere ephemera. We call it a reason for action only because we want to understand the obtuse rational man’s claim, which includes understanding what is wrong with it.

I suggest that this Humean example is only a prime facie reason; I do not suggest it is a prime facie duty. My aim here has only been to offer reason to doubt that most of our talk about reasons are also about pro tanto reasons.

Identity politics and representation

In this article, Appiah suggests that the claims of representation that underlie identity politics (“I as a so-and-so say that…”) imply something like “as an (x) am in a position to speak for random person (a), who is also an (x)”. In other words, political representation means ‘speaking for’. On this view, e.g., if I claim to speak as a heterosexual man when I offer some witticism or piece of prosaic advice (“As a man, I don’t care about gender-labeling washrooms”), then I am speaking for men. Meaning, I guess, that I’m saying the sort of thing that other men would also say.

I’m sure some people do talk and reason in that way, but I also think it’s just one way of speaking among others. So, e.g., I think of these claims as usually about how I and (a) both have equal though partial authorship rights over the experiential meaning of (x), as opposed to person (b) who is not an (x). It involves speaking for your role, not necessarily speaking for others who also have that role. So, to use the same example as above: sometimes, if I say, “As a man, I don’t care about gender-labeling washrooms”, I am not speaking for men, but speaking in my role as a man, which may or may not generalize.

Elijah Millgram at Daily Nous

Elijah Millgram is one of my favorite philosophers working today, so I was pleased to see him write a series of blog posts over at Daily Nous. I took the opportunity to comment excessively, and enjoyed the ensuing dialogue.

In “Doing it All By Yourself“, Millgram takes a shot at the illusion of the lone wolf philosopher, the philosopher who claims authority over the general topics of philosophical concern. I think Millgram’s points are well-taken, and generally approve of attempts to temper the arrogance of certain kinds of philosopher who assume that the disciplinary boundaries of philosophy are non-porous.

All the same, in my comments I worry that Millgram’s comments make no room for philosophy as a branch of authentic inquiry into the ways things work. For example: me. I do philosophy because it makes things make sense by my own lights; I do not do it because I am the self-conceived titan of rationality, fit to serve as umpire of critical thought. Maybe I can’t “do it all by myself”, but my own voice has got to be in there somewhere.

In “Metaphysics by Forgetting“, Millgram argues that the apriori is a kind of cognitive blind spot — we take our givens as givens because we’ve forgotten that they came from more humble aposteriori beginnings. I agree with him, more or less, though only when it comes to the matter of intuitions and other states which (I think) have the feature of ontological neutrality.

In “Metaphysics as Intellectual Ergonomics“, Millgram advances a wide-ranging intellectual programme, which he refers to as ‘intellectual ergonomics’. His programme is probably best seen as a form of analytical neo-pragmatism, but if so, it starts it all afresh and unfettered. His comment here is too brief to evaluate very well, but it relies heavily on the notion of repurposing of conceptual schemes. In this, it stands in stark contrast to the neo-pragmatism of Rorty and Davidson.

In the ensuing comments, Izzy Black and I have a good conversation about the prospects of metaphysics, which I found enormously helpful. The disagreement, as it emerged in the course of the exchange, seemed to come down to an argument over whether or not the intelligibility of the world demanded conceptual schemes. I argued that this could not be the case, given that the transition between schemes may involve the theoretical imagination, which does not rely upon the prior authority of any conceptual schemes in order to operate fully.

In “Keeping it Real in Philosophy“, Millgram argues that the discipline is at risk of becoming corrupt and unproductive, and argues that we should be thinking seriously about how to develop procedures to mitigate disaster. To help the cause, he enlists the aid of Jerome Ravetz, author of parallel works in the sociology of science.

I offer my own spin on some of the problems of the profession, expressing worries about overly strident condemnations of the quality of work. Here, I’m afraid that I self-consciously run the risk of coming across as something of a middling apologist-reformer.


On the connection between natural science & philosophy

On Tyson’s recent comments on philosophy (taken from the Nerdist podcast around 20 minutes in).

Pigliucci’s rebuttals are okay, but it’s pretty much a cop-out to say “Philosophers contribute to science” without actually citing the relevant research. The whole point is that guys like Tyson don’t believe that post-1920’s philosophers make any contributions to the natural sciences, so telling them to Google it is not by itself going to help very much. They want specifics. Since for my part, I know for a fact that plenty of 20th/21st century philosophers contribute actively towards the clarification of methodological and epistemological disputes in the natural sciences, it is all the more frustrating that names go unnamed.

(That said, I also think that most philosophers in the profession do not celebrate philosophical colleagues that are actually doing work at the frontiers of science. If that is the case, then it would be both understandable and a strong indictment of the profession. But I also think it’s a different kind of criticism.)

So I thought I would cobble together a collection of works in philosophy that do the opposite of what Tyson thinks is going on. What follows is a highly conservative bibliography which obeys the following criteria:

– Professional philosophers: it is co-authored by one or more faculty members who are either members of a department of Philosophy (or faculty members in cognate departments that teach some courses in philosophy), so long as they possess a doctorate in philosophy;
– Influential: it is a noted work, which I stipulate to mean 50+ citations according to Google Scholar;
– Discipline-specific: at least on the face of it, the work concerns itself with the theories and methods of a particular scientific discipline (i.e., not “philosophy of science” in general);
– Natural science: it concerns the natural sciences (e.g., physics, biology, or chemistry);
– Unique: individuals are only listed once so that one or two names do not hog the list with their CV. (That said, if you want to look at more of their work, click on their name and you will be directed to their home page);
– Theoretical philosophy: the works are in a theoretical and not an ethical, historical, or meta-philosophical vein;
– Non-bullshit: the works are not radically out of step with, or patently uninformed by, the relevant established science (e.g., Fodor/Piattelli-Palmarini on natural selection, McGinn on physics).

(There are regrettable gaps in the list if we follow these criteria. e.g., I don’t get to mention David Bohm since he wasn’t a professional philosopher, even though his mid-century work was rooted in metaphysics. Oh well.)

Feel free to offer corrections or suggestions in the comments area. This is not intended to be a comprehensive list. But it might serve as a launching off point for anyone who would like to offer a more serious critique of the connection between philosophy and natural science in our time.


Biology and neuroscience

Evolutionary biology


* — indicates I was unable to find the name of the program.

(I reserve the right to update this post shamelessly and without notice.)

With thanks to the various posters at New Apps for their contributions, comments, and criticisms. [1, 2]