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.

Publicity, associative reasons, and legal systems (I)

John Rawls was the best kind of programmatic philosopher. This was not a guy whose output could be reduced to a single thought-experiment or evocative illustration; you can’t appreciate him as a philosopher unless you can see his systematic design. But that’s got a downside. The thing is, when you’re a programmatic philosopher, a lot of your output can be difficult for others to follow. Everyone understands a view best when they can see contrasts, objections, and alternatives, yet the programmatic philosopher’s prose is often impassively self-referential. So, for instance, when Rawls talks about reason, then you’d better be alert to the special ways that he defines the terms elsewhere; and woe be to the reader who thinks they can deduce the meaning of any single one of these concepts {“reasonable”, “public reason”, “acceptable”} from the others. (Meaning: intellectually accountable, common reason for the commons, and accords with convictions under wide equilibrium, respectively.)

So, I think it’s easiest to appreciate the best parts of Rawls’ theory of justice once we accept his broader political vernacular, but also to extend his analytical tools in ways which let us articulate conceptions of political justice that he does not accept. I have an ulterior motive for wanting to contrast his approach to justice to others, since I am interested in how theory of justice relates to general jurisprudence and legal theory as such, which means I’m obliged to do a compare-and-contrast exercise between different incommensurate moral and legal theories.

So here’s the shtick. I assume you’ve basically got the idea of Rawls’s theory of justice under your belt. Now, in the next few posts I’m going to tell a dogmatic story about how legal systems are best understood in terms of non-public reasons. To do that, I’ll use Rawls’s seminal “The Idea of Public Reason” (in Political Liberalism) as reference point. The story unfolds in three chapters. First, in this post, I’m first going to offer a sympathetic rereading of Rawls’s idea of public reason in a way that makes the most sense of the idea of publicity. My aim is to do justice to the attenuated sense in which associative reasons are publicized. In the next post I’ll compare Rawls’s theory of justice to a charitable rereading of Thomism. Then I’ll conclude by offering a few idiosyncratic complaints about the Rawlsian outlook.

*

Public reason is the expression of a modern liberal political conception of justice, and since liberalism is a relatively new political phenomenon, public reason is a newcomer on the historical scene. In contrast, associative (“social”) reason is as old as rocks, and an enduring feature of societies, i.e., communities structured by status. Because associative reason is more common, it is easier to understand public reason in contrast to it, rather than vice-versa. Associative reason is the clearer concept of the two, easier to grasp as the historical rule than as the exception. (I will use the term ‘associative reason’ here, which is my own term, not his. Instead, Rawls prefers the term ‘social’ or ‘nonpublic’ reason. I do not join him in his usage because the very idea definition of the social is contestable, and his formulation of ‘nonpublic’ reason is something I will take issue with later.)

As I have argued elsewhere, the most plausible mainstream theories of law in the Western canon have all held that law is necessarily promulgated to be law. Publicity is a criterion for legal validity. Suppose that’s so. It follows that, if associative reason is a legal universal, then we should expect it to be public in some sense or other. And indeed it is universal, in the minimal sense that every reason to adopt a policy that is open to view in public discourse is at least an associative reason as opposed to a private reason. A potential for contradiction lurks here, since associative reason is not ‘public reason’ by definition, but is public. But the air of paradox is resolved by noticing the equivocation at work in the word ‘public’. Associative reasons are not public in Rawls’s sense of ‘public reason’, since Rawls’s use of the phrase concentrates only on reasons that are public qua public — i.e., those reasons for policy that are aimed at achieving a reasonable overlapping consensus among the free and equal citizenry. That is why Rawls thinks that associative reasons do not play a just role in legitimate democratic institutions — they are not public in the maximal sense of being common reason for the commons. In this, Rawls is articulating a model of legitimacy as consent of the governed analogous to other well-known social contract theorists — e.g., Rousseau’s sense that civic participation should be aimed at the general will.

I hope you’ll let me rehearse the idea of public reason one more time, because it’s especially important to a guy like me who cares about the importance of publicity to legal theory. Rawls tells us that the aim of public reason is to establish the constitutive features of a democratic system, especially those features related to political and legal standing of free and equal citizens. His way of speaking entails that public reason is public in the pure sense of being reasons directed at the commons, and not in the mere sense of just being public-facing, i.e., mere attempts to resolve collective action problems. In Rawls’s theory of justice, a public reason is an attempt to arrange our plans in a way that is conceived of through the original position — i.e., a device of representation where hypothetical future participants of a society establish the principles of the political order they would like to live in despite being ignorant of their own rank and status in the future order. It is not just reason open to view, but reason that happens in the commons for the commons.

Yet, although we can distinguish between publicity and public reason, we should not ignore the relationship between the two concepts. For Rawls — and for many of us — strong, justifiable rationales are a part of public reason. This is a point that Rawls makes explicitly in his astute formulation of the publicity condition elsewhere in Political Liberalism (Ch.2, s.4). (If we are feeling especially Whiggish, we might even go so far as to say that the teleological point of publicity is to, eventually, recommend that we adopt public reason as a model of legitimacy, and hence that honoring the ideal of publicity in tyrannies shall eventually bend politics towards the cause of democracy, though these speculations are not ones that I am eager to endorse.)

A final word, ending the setup of the discussion of public and associative reason. When we are thinking about political affairs, we are generally interested in two major topics, which are the requirements of practical justice and epistemic justice. Practical justice is made up of a statement of (a) basic rights in principle (i.e., an articulation of the sense in which citizens are free and equal), and (b) the assurance of means to use those rights in practice (i.e., equity and matters of distributive justice). Public reason is political in the sense that it is directed at the basic structure of society, i.e., the society’s main social, political, and economic institutions, conceived of as a single system of cooperation. Epistemic justice sets guidelines for inquiry, e.g., rules of evidence and process at trial and by police. Because these considerations mark off constitutional essentials, they must be justifiable to all citizens with different ideas about how to live the good life.

Well, suppose that’s all good. It certainly seems like an intuitive characterization of justice, as it correctly characterizes the operations of legal systems as we know them as creatures directed to the cause of justice.

It follows that, if the question of what public reason requires of us is pursued sincerely — i.e., by checking off hypothetical opinions of real people in hypothetical situations — then the sense that the basic constitution of the regime is justified will depend on facts we can refer to about how people think about the implicit contract that binds them. Since those facts are known or intuitively knowable, they are accessible; and since they are accessible, they are publicized. In which case, public reason will get away with satisfying the publicity condition “on the cheap”. In contrast, if a legal regime goes about publicity through associative reason, then it will require an activist spirit, swimming upstream against the currents of a community’s considered sense of fair play.

 

Potted summary: “Reasoning About Categories in Conceptual Spaces”

What follows is a short summary of the main elements of a paper written by Peter Gardenfors (Lund) & Mary-Anne Williams (Newcastle) in their paper from 2001, “Reasoning About Categories in Conceptual Spaces”. It contains a way of thinking about concepts and categorization that seems quite lovely to me, as it captures something about the meat and heft of discussions of cognition, ontology, and lexical semantics by deploying a stock of spatial metaphors that is accessible to most of us. I confess that I cannot be sure I have understood the paper in its entirety (and if I have not, feel free to comment below). But I do think the strategy proposed in their paper deserves wider consideration in philosophy. So what follows is my attempt to capture the essential first four sections of the paper in Tractarian form.

1. An object is a function of the set of all its qualities. (For example, a song is composed of a set of notes.)
   1. Every quality occurs in some domain(s) of evaluation. (e.g., each tone has a pitch, frequency, etc.)
   2. A conceptual space is a set of evaluative domains or metrics. (So, the conceptual space around a particular song is the set of metrics used to gauge its qualities: pitch, frequency, etc.)
   3. Just like ordinary space, a conceptual space contains points and regions. Hence, an object is a point in conceptual space.
   4. We treat some objects as prototypes with respect to the part of conceptual space they are in (e.g., the prototype of a bird is a robin.)
      1. Those objects which have been previously encountered (e.g., in inductive fashion), and their location registered, are exemplars.
         
2. A concept is a region in conceptual space.
   1. Some of those regions are relatively amorphous, reflecting the fact that some concepts are not reliable and relevant in the judgments we make. (e.g., a Borgesian concept.)
   2. Categorization identifies regions of conceptual space with a structure. e.g., in our folk taxonomy, we have super-ordinate, basic, and sub-ordinate categories.
      • Super-ordinate categories are abstract (fewer immediate subcategories, high generality, e.g., ‘furniture’); basic categories are common-sense categories (lots of immediate subcategories, medium generality; e.g., ‘chairs’); and sub-ordinate categories are detail-oriented (few immediate subcategories, low generality; e.g., ‘Ikea-bought chaise-longue’).
   3. The boundaries of a category are chosen or “built”, depending on the structure that is identified with the concept in the context of the task. They can be classical (“discrete”) boundaries, or graded, or otherwise, depending on the demands of content, context, and choice.
   4. The structure of a conceptual space is determined by the similarity relations (“distances“) between points (or regions) in that space.
   5. One (but only one) useful way of measuring distance in a conceptual space is figuring out the distance between cases and prototypes, which are especially salient points in conceptual space.
      • Every prototype has a zone of influence. The size of that zone is determined by any number of different kinds of considerations.
3. There are at least three kinds of structure: connectedness, projectability (“star-shapedness”), and perspicuity (“convexity”).
   1. A conceptual region is connected so long as it is not the disjoint union of two non-empty closed sets. By inference, then, a conceptual region is disconnected so long as its constituents each contain a single cluster, the sets intersect, but the intersection is empty. For example, the conceptual region that covers “the considered opinions of Margaret Wente” is disconnected, since the intersection of those sets is empty.
   2. Projectability (they call it ‘star-shapedness’) means that, for a particular given case, and all points in a conceptual space, the distance between all points and the case do not exit the space.
      1. For example, consider the concept of “classic works of literature”, and let “For Whom the Bell Tolls” be a prototype; and reflect on the aesthetic qualities and metrics that would make it so. Now compare that concept and case to “Naked Lunch”, which is a classic work of literature which asks to be read in terms of exogenous criteria that have little bearing on what counts as a classic work of literature. There is no straight line you can draw in conceptual space between “For Whom the Bell Tolls” and “Naked Lunch” without wandering into alien, interzone territory. For the purposes of this illustration, “For Whom…” is not projectable.
   3. Perspicuity (or contiguity; they call it ‘convexity’) means all points of a conceptual space are projectable with each other.
      • By analogy, the geography of the United States is not perspicuous, because there is no location in the continental United States that is projectable (given that Puerto Rico, Hawaii, and Alaska all cross spaces that are not America).
      • According to the authors, the so-called “natural kinds” of the philosopher seem to correspond to perspicuous categories. Presumably, sub-ordinate folk categories are more likely to count as perspicuous than basic or super-ordinate ones.
4. One mechanism for categorization is tessellation.
   1. Tessellation occurs according to the following rule: every point in the conceptual space is associated with its nearest prototype.
   2. Abstract categorizations tessellate over whole regions, not just points in a region. (Presumably, this accounts for the structure of super-ordinate categorizations.)
      1. There are at least two different ways of measuring distances between whole regions: additively weighted distance and power distance. Consider, for example, the question: “What is the distance between Buffalo and Toronto?”, and consider, “What counts as ‘Toronto’?”
         1. For non-Ontarian readers: the city of Toronto is also considered a “megacity”, which contains a number of outlying cities. Downtown Toronto, or Old Toronto, is the prototype of what counts as ‘Toronto’.
         2. Roughly speaking, an additively weighted distance is the distance between a case and the outer bounds of the prototype’s zone of influence.
            • So, the additively weighted distance between Buffalo and Toronto is calculated between Buffalo and the furthest outer limit of the megacity of Toronto, e.g., Mississauga, Burlington, etc.
            • The authors hold that additively weighted distances are useful in modeling the growth of concepts, given an analogy to the ways that these calculations are made in biology with respect to the growth of cells.
            • In a manner of speaking, you might think of this as the “technically correct” (albeit, expansive) distance to Toronto.
         3. Power distance measures the distance between a case and the nearest prototype, weighted by the prototype’s relative zone of influence.
            • So, the power distance between Buffalo and Toronto is a function of the distance between between Buffalo, the old city of Toronto, and the outermost limit of the megacity of Toronto. Presumably, in this context, it would mean that one could not say they are ‘in Toronto’ until they reached somewhere around Oakville.
            • This is especially useful when the very idea of what counts as ‘Toronto’ is indeterminate, since it involves weighting multiple factors and points and triangulating the differences between them. Presumably, the power distance is especially useful in constructing basic level categories in our folk taxonomy.
            • In a manner of speaking, you might think of this as the “substantially correct” distance to Toronto.
         4. So, to return to our example: the additively weighted distance from Buffalo to Toronto is relatively shorter than when we look at the power distance, depending on our categorization of the concept of ‘Toronto’.
   3. For those of you who don’t want to go to Toronto, similar reasoning applies when dealing with concepts and categorization.

Notes on J.J. Thomson’s “Normativity”

Reading Thomson’s ‘Normativity’. I have questions.

Consider the following statement:

[1.] I prefer watching ‘Game of Thrones’ over watching ‘Penny Dreadful’.

Many preferences originate in intuitions, and in that sense, begin their life as [1] or something like it. That’s fine, sort of, but there are better ways of talking about my preference. e.g.:

[2.] I prefer watching ‘Game of Thrones’ over watching ‘Penny Dreadful’, insofar as these are both good dark fantasy shows.

[3.] I prefer… insofar as these are the only good things on television right now.

[4.] I prefer… insofar as they are good dark fantasy shows considering what is on right now.

[5.] I prefer… insofar as their opening themes are good to dance to.

(Each of these involves a different kind of standard for evaluation, ranked roughly from least surprising to most surprising.) [2-5] are reflective preferences, not just intuited ones. Reflective preferences are different from intuited preferences because they are tagged with some evaluative standard by which one thing is to be ranked in relation to another. That standard is laid out after the phrase, ‘insofar as’. Which is more useful for a practical theory of decision-making, intuitive or reflective preferences? Well, taken on face value, the reflective references are more informative and in a sense more rational than [1].

But — not so fast: [2-5] are also potentially inconsistent with each other. So, e.g., maybe I dislike dark fantasy shows, but hate everything else on TV: in that case, [3] would be a false statement, but [2] and [4] would be true ones. And even if [2-4] were true, [5] could be false, just in case Penny Dreadful’s opening theme is actually better to dance to than Game of Thrones’s.

One way to resolve the question in favor of the reflective mode of articulating preferences is to say that each time you introduce a new standard of evaluation (i.e., whatever follows the “…insofar as…”), you’re actually making a brand new list, that is itself eventually broken down into intuited preferences. e.g.:

GOOD TO DANCE TO LIST

1. Penny Dreadful

2. Game of Thrones

3. Shakira

GOOD DARK FANTASY SHOWS

1. Game of Thrones

2. Penny Dreadful

3. True Blood

And then you can put these very lists on a global list of preferences that looks like this:

META-LIST

1. LIST OF GOOD DARK FANTASY SHOWS

2. LIST OF GOOD TO DANCE TO SHOWS

3. LIST OF USEFUL LIFE SKILLS

At that point, you will seemingly have given up on the intuited sense of [1], since Game of Thrones doesn’t just exist in some amorphous BETTER THAN relation to Penny Dreadful. Instead you’ll have replaced the intuited preference with something more rational and informative. Indeed, at this point, once we have all these standards of evaluation under our belt, it is tempting to say that [1] is not a rational claim about the state of my preferences at all. But that’s too quick, because [1] could just be an elliptical version of one of [2-5]. And so, one might say, it is only correct to say that [1] is not a rational claim about the state of my preferences at this point so long as there is there is no rational formula for picking out a more precise context of evaluation.

So, one might say that there is always a strict default context, in which we have to interpret sentences like [1] into their least surprising form, e.g., [2]. Will this work? I have my doubts. That is, intuitively, I doubt that charity alone will help us to identify some context-invariant mechanical *formula* that tells us what the most rational default interpretation should look like. I suspect that, at best, when confronted with intuitive preference-statements like [1], we only have *defeasible strategies for interpreting* it in terms of one or more of [2-5].

Moving on to (Chapter IV): “Suppose a person asks us, “Was St. Francis better than chocolate?” What can he mean? In what respect ‘better than’ does he mean to be asking whether St. Francis was better in that respect than chocolate? If he says, “No, no, what I am asking is not for a certain respect R whether St. Frances was better in respect R than chocolate. What I am asking is just whether St. Francis was (simply) better than chocolate,” then he hasn’t asked us any question, so it is no wonder we can’t answer it.” She suggests that there is a bifurcation between attributing simple superiority to something and attributing superiority in some respect.

I do not know why these are incompatible modes of evaluation. Saying that something is simply better than another thing does not seem to imply that there is no respect R in which an evaluation can be made. There are obviously salient respects in which one might compare the value of chocolate and St. Francis (say, when comparing the value of vulgar hedonism vs. asceticism). But when one says one is simply better than the other, they aren’t wiping these respects off the map, denying them up and down and sideways. Instead, it seems to imply that it is not rationally necessary to specify the respect R in the course of answering the question — that the respects are being left implicit and uncommitted. I think what she means to say is that it is meaningless to ask, “Is chocolate worse than St. Francis, given that there is no respect in which they might be compared?” But that’s kind of obvious.