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.

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.

A critique of public reason (II)

In the previous post I discussed the idea of public reason. In this one I offer a few modest rebukes. Though critical in aim, it is in the same political tradition, a sympathetic attempt to curate conditions for the flourishing of democracy. The post has three parts: first I say why public reason seems on the ropes to us today; and second, a reminder that since public reason was inclusive, not fanatical, it can help to meet the challenges of anomic life in our century. Third, I offer three notes on the relation between public reason and publicity. I suggest that, though Rawls can deal with these three complaints when taken as a corporate whole, the three points together leave a trail of breadcrumbs that point to a compelling objection to his conception of political justice.

Contemporary democratic debate is sharply polarized, and these divisions can be explained in a ‘whiz-bang’ vernacular. Mainstream political discourse is held in thrall by punchy defects — junk values, hot takes, echo chambers, alternative facts, fake news.

A diagnosis of our bimodal status is hard to avoid and easy to come by. People of conscience have both the means and motivation to revisit injustices previously hidden from public view. We now have the critical resources to think about the systematic effects of speech. They come in many flavors: individual bids to sneaky collective acts (e.g., dogwhistles), offenses with tacit collective force (e.g., micro-aggression), or plain old mindfucking (e.g., gaslighting). Social justice tempts us to take a stance of hypervigilance, where brinksmanship is the strategy most fit for political discourse. And with great vigilance comes great dissensus, as hard bargains delay the renegotiation of a social contract. Meanwhile, people without conscience have enormous power and wealth, having consolidated their holdings into the hands of the collective few. The enemies of freedom and equality have nowhere to hide, so operate in public and with impunity. And while they will eventually get their due, the lurking threat of global warming may undo us.

Which is all to say it is difficult for us to see the point of liberal justice. For much of the liberal imagination is directed to remedy injustices in a life of reasonable civic association. Some small bit of it — not much — is directed at the process of bargaining along the way. This is, I think, is not the fault of the liberal contractualist ideal. But it does feel that public reason is an adjunct to institutional justice, a peripheral platitude. At worst, a critic can say, political liberalism helped to distract us from public facts on common ground. It is worth asking whether the critic has got it right.

Public reasons are by and for the public good, and publicized. For Rawls, democratic institutions of governance are based on public reasons. As seen, Rawls argues that a reasonable person — that is, a responsible and responsive person — should participate in civic life by putting public reasons first. In contrast, non-public reasons characteristically belong to social associations of all sorts; they are by and for special interests or organizations, and/or done for the good of such interests (and/or offered behind closed doors). We said these reasons are public-facing, and potentially publicized, but are not public reasons.

It’s worth noting that Rawls is not a fanatic about public reason. That is, the mature Rawls thinks associative reasons are not excluded from conversation, regarding the constitutive requirements of a democratic form of government. For Rawls, following Solum, is aware that many advocates of public reason have associative — even religious — motives. He does not deny that comprehensive doctrines play a role in negotiating a social contract. Yet the important point is that associative reasons play second-fiddle to public ones. Comprehensive doctrines matter only if they provide motivation and support for public reason. So it trivially follows there are two kinds of associative reason: the public-facing and the private-facing. (He might not use those terms, but I think he would agree to the distinction.) In that idiom, we can say our political moment is explained in part by the rise of self-indulgent associative reason.

***

There are a bunch of places where you can take issue with the Rawlsian political programme. You can criticize the conception of justice on libertarian or communitarian grounds, or you can criticize the approach to political representation on republican ones, or you can criticize the ideal-theoretic aspects of the programme. Some socialists have impugned it for its lack of a class analysis, and some feminists have taken issue with the elimination of the family from the basic structure of society. All these points are cogent, and all of them have potential limitations. But, since I am grinding my own axes, I would like to highlight three complaints, as they are distinctively related to the ideal of publicity and associative reason.

Rawls says that political societies are communities ordered by reason in order to secure terms of cooperation. Ostensibly, those terms of cooperation are ones called ‘fair’. But you have to be an an agreeable political mood to agree with his formulation. That is, you’ve got to say there are good answers to collective problems, and/or that we are in a position to act on those good answers. So, for instance, someone in the pessimistic mood might think of political societies as the rule of alpha predators, whose rule is unrelated to reasoned claims of fair cooperation. Since those assumptions are needed to sustain a collective political will, it is always pertinent in politics to invite pessimists to be more reasonable. But anyway, this objection is not fatal, as there is no reason to think that Rawls’s liberalism is any worse off than anyone else in the face of pessimism. Even survivalists assume they can survive somehow; even libertarians need to trust the sanctity of voluntary contracts. Pessimism is political nihilism, and it does not discriminate between liberals anyone else.
Rawls assumes that all nonpublic reasons are associative. But there is a third category — the category of private reasons. Rawls says “there is no such thing as private reason” (220 fn.7). If we put aside Wittgenstein’s nostrums about private rules. I do not know what he must mean, as he does not motivate that denunciation. Here is why. Suppose we were to follow Sissela Bok, in saying privacy is a personal claim of protected access to information. If so, then it sure looks to me like you can claim that you have special access to proprietary information, while potentially leaving your reasons unarticulated in public. The demand for candor is never ever comprehensive. e.g., when asked by government, “Are you gay?”, you can decline to answer the question, and also legitimately denounce it having been asked — and, most importantly for present purposes, you can legitimately leave your further reasons for exercising that discretion unarticulated if you so choose. That does not mean that no public reasons could be articulated, i.e., as it is unfair and inappropriate to force someone to out themselves. Nor does it mean that a political society can survive on the basis of private reasons alone. It is only to say that, yes indeed, there are such things as private reasons, just in case some of my reasons ever conceivably belong only to me. That being obvious, it is likely Rawls meant something else by private reason, but I do not know what it is, so leave the complaint at that.
Rawls believes that the modern constitutional Court is exemplar of an institution of public reason. The Court is obliged to fit its rulings into the “higher law” of the political system — that is, to fair terms of cooperation — and in that sense the Court is more democratic than executive and legislature. But does it on peculiar legal grounds. So, Rawls’s expression, ‘higher law’, is a Thomistic turn of phrase, and it makes Rawls (himself raised Catholic) seem like he is a natural lawyer. Were that true, it would be disquieting for us with positivist sympathies. Luckily, though, this is not necessitated by the text, since Rawls could equally well be saying that there is an unwritten constitution (perhaps secondary rules of recognition), and this is not the same thing as natural law. Moreover, he explicitly calls himself a ‘dualist‘ about judicial review, which I read to mean, he straddles the line between unwritten and written law. The difference, it seems, is that the written constitution is expressed as a system of public reason interpreted through ordinary court procedures and interpreted as conventional expressions of the constitutional enactment as amended, while unwritten laws are interpretations done in due course that are at the very least public-facing associative reasons, if not fully public ones.

Taken in isolation, these criticisms only limit and constrain, if not augment, his overall view. (1) Yes, political liberalism cannot be defended to the pessimist, because the embers of conscience and solidarity cannot blaze in such sodden wood. But that is a persisting problem in politics from every angle and ideology. (2) Private reasons are vitally important in many contexts, and in public they are indistinguishable from fiat. Yet we can explicitly state in public reason there is a right to self-govern. So, we can accommodate and honor private reason from a public point of view. (3) The idea of legal dualism in judicial review is interesting, and plausible, and shared by others — but it looks to be a detail worth clarifying for legal philosophers, not itself an irremediable defect.

It is only when the critiques are considered as a set, that we get a potentially cogent objection to Rawlsian justice. Suppose (as one might say) private reason is constitutive of political liberty. If so, then our device of representation — the original position, for Rawls — should properly encode that ideal in its procedure. But perhaps political liberty does not have a place in the original position — at least, not in the way that equality is encoded in it, as a set of rules that are endorsed equally under equal ignorance. At present, the only sense that original citizens are free is they make a choice without coercion. But suppose, to truly honor the ideal of freedom, original citizens be given a choice in mood. It follows that we would need to consider whether reasonable people can decide to be pessimists — and then we should demonstrate that even originally positioned pessimists will follow A Theory of Justice. If one could make that argument, then that is all well and good; but if not, Rawlsian theory would need to consider how seriously it thinks of liberty as an ideal.

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.

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.
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.
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.
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.

Divergent borderline cases

I’ve been thinking about a previous post, on borderline law, and thought maybe it would be worth elaborating a little on the remarks there, just in case they were too perfunctory.

Almost every core theoretical disagreement in philosophy of law (and, probably, philosophy) comes down to arguments over something kind of like focal meaning. (“A Gettier case either is, or is not, a case of knowledge qua knowledge; let’s fight about it”, etc.) Or, if the idea of focal meaning is too metaphysics-y — because, Aristotle thought they had to do with natural kinds, and, (mumble mumble, digression digression) — we can instead say that theoretical disagreements about major philosophical concepts are about graded categories and exemplars.

Graded conceptual analysis has at least two benefits. First, it captures the sense in which it is possible for two people to actually disagree about the same concept without radically misunderstanding each other. That is, it disarms Dworkin’s semantic sting. Second, relatedly, it encourages a kind of modesty in one’s critical ambitions, as borderline cases are permitted in discourse but regarded as especially vulnerable to subjective interpretation.

But there are some downsides to doing graded conceptual analysis. For one thing, a lot of the evaluative-critical import gets lost. So, e.g., when you say, “Kafkan law is a borderline case of law”, the implied criticism pales in comparison to a claim like “Kafkan law is not actually law”. Disputes over the former claim, pro vs. con, look to be trivial. Moreover, we cannot rescue that critical import by definitely asserting that some token case is definitely a near-miss, or a pseudo-legal system. For a borderline case is one that is, by its nature, either a near-miss or a peripheral case, and we can’t tell which. If we say, “Kafkan law is a near-miss case of law”, we abandon graded categorization, along with all the salutary features of that sort of conceptual analysis.

The way of bringing the critical sting back into talk about graded concepts requires us to talk about their directionality. Kafkan law is not just a borderline case — it is a borderline case that is (in some suitable sense) drifting away from the central cases of law considered as tacit or explicit verdicts of institutional sources. Put in this way, we remain neutral on the question of whether or not para-legal systems, considered as a class, actually have (or can be forseen to continue to have) the status of being actually legal systems. The worry is localized on the token cases that are at risk of drifting beyond para-legality into pseudo-legality — they may or may not actually be legal systems now, but they are destined to lose that status of law soon enough.

And a reasonable person might worry that many contemporary political-legal systems are headed in that direction, into the twilight of law (to borrow John Gardner’s evocative phrase). But if the argument aims to tell us what law actually is, then the weight of that argument has (apparently) got to go beyond talking about either the endurance or subversion of secondary rules of the legal system. Or, at any rate, it has got to go farther than to say that any social system which has defective rules of recognition encoded in the practices of the core of the judiciary.

(So, e.g., a disquieting feature of America’s drift from the central cases of legality, it seems to me, is the loss of a sense of what Jules Coleman called identification rules: it seems to me that the loss of both identification rules and secondary rules would be sufficient to make a legal system a divergent case. Though I shall have to leave an argument for that for another post.)

Les Green on borderline law

Here’s Les Green on the importance of unwritten constitutions.

The main difficulty I have with his commentary is this. I can imagine a critic — Green’s dialectical opposite, Maur Red — saying, “Look, okay, so the US is a borderline case of law. Who cares? It’s still law.” If asked to clarify, Red could say: “What’s at stake here is not whether US law is a form of law, but whether or not it is an exemplar, an instance of the focal meaning of law. These are different issues.“

As I imagine the conversation going, I think Red could then chastize Green for overspeaking when he claims that this entails that US law is not “actually” law, because nothing at all follows from concluding that US law is a borderline case of law. For that is apparently no more defensible than saying, e.g., that penguins are not really birds, given that penguins are a borderline case of birds, or that the half-competent doctor is not really a doctor, given that the doctor qua doctor makes no errors.

What Green should say, instead, is that US law is on the verge of being a near-miss case of law, which is a special kind of borderline case. And Red might concede that that would be worrisome. But then, he might conclude, you cannot infer that something is a near-miss case of law just because you deny that it has the qualities of an exemplar case, any more than you can infer “penguins are not birds” from “penguins are not robins or bluejays (etc.)” Only some borderline cases are near-misses. Others are just odd, ironic, or unexpected.

Premier Ford and the rule of law

Recently, a constitutional challenge arose in the province of Ontario, as the newly elected Conservative Premier sought to pass a Bill to interfere with Toronto municipal elections mid-cycle to settle a few scores in his old stomping grounds. Problems arose when the judiciary told him he was violating the Charter. Tensions ratcheted up when he invoked the little-used notwithstanding clause — section 33 — in order to overcome the decision of the Court, resulting in widespread dissent from legal professionals and from the official opposition. Just recently, Ford’s party won an appeal, as a stay was placed on the Court verdict that blocked the Bill.

For now, let’s put aside the merits of the stay or the claimed violation of the Charter. Instead, zoom in on Ford’s reason for opting out of the Canadian constitution. Focus on the rationale: “unelected judges”, filed under apparent threats to democracy. Pin this little offering to a corkboard. Put a light on it. Study under glass.

The invocation of section 33 was argued on ostensibly democratic grounds. Compare specimen to encyclopedia of modern conservative thought. The pattern of argumentation that could have been reminiscent of Jeremy Waldron’s majoritarianism, if done thoughtfully. Admittedly, it’s a weird species of argument to us, we the complacent and diffident Canadians. But the world is weird. That’s why we keep reference manuals. Gotta keep an index of all the weirds.

Now turn back to the corkboard. The actual arguments presented were a mixture of Pravda and Powerpoint. Mutant variation. Pull out the red pen.

At bottom, a nation of laws is a nation that makes sense, whose stability can be taken for granted. We can only get the first glimmer of a sense of obligation to such institutions when we see their rules as a going concern. The stability of law is primarily achieved through judicial review, an institution where governmental rules are deliberately and carefully interpreted and maintained. The judges are curators and stewards.
When we talk about our favorite form of government— democratic, monarchical, or whatever— we are tacitly making an assumption that the rulers are not being systematically misled. The sovereign’s affirmation of counsel implies they have *informed consent*. So, if a monarch is constantly fooled by a Rasputin, then it is not strictly speaking a monarchy. Similarly, if a population is fed on a diet of lies, then strictly speaking we cannot say there is a democracy. Every form of government depends on faithful expertise.

So, a democratic nation of laws presupposes judicial review in two ways. First, because judicial review produces stability that makes it possible to talk about true and false claims of legality. Second, because it provides people with informed consent to past and future rules. You can criticize or condemn the operations of the courts for all sorts of reasons. But complaining they are not elected, is not a good reason. Quite the opposite: by challenging them, you undermine democracy.

Solum’s mixed originalism

Since earlier this year Lawrence Solum testified before the Senate, now is a good time to read up on his work on constitutional originalism.

Solum (2008, “Semantic Originalism”, SSRN) argues that semantic originalism depends on the ‘clause meaning thesis’. This view states that the semantic content of the constitution is given by its conventional semantics and its pragmatics (context, division of linguistic labor, implication, and stipulations). The conventional semantics is established by its original public meaning (what he calls the ‘fixation thesis’).

The puzzle, for me, is in justifying the label of “semantic originalism”. Why semantic?

Solum makes it clear at the outset that he distinguishes between the semantic, applicative, and teleological senses of meaning, and stipulates that he’s only doing the semantic thing. (p.2-3) And that is fine and well. But then he cashes out the ostensibly semantic project partly in terms of applicative content: e.g., implicatures and stipulations. (p. 5; 54-58) And then he rejects competitor views (like Ronald Dworkin’s interpretivism) for smuggling teleology, consequences, and applications into an ostensibly semantic theory. (p.83)

Obviously this cannot work. Instead, if Solum were articulating a coherent view, he should not be calling his own originalist view a ‘semantic theory’. Perhaps he should be calling it a mixed theory of literal meaning, perhaps of an austere kind. After all, the semantics/pragmatics boundary is only of significance to a particular kind of analytic philosopher who is more obsessed with compositionality. It isn’t interesting to everyone for all purposes, and maybe isn’t even useful to everyone who cares about literal meaning. But then that would require confronting a central dogma in the philosophy of language.

Probably, the apparent incoherence of the paper is mitigated by the fact that Solum’s “Semantic Originalism” is a draft on SSRN. It’s just a draft, and goodness knows I’ve had my share of bad drafts. But it’s still a shame. I prefer long-form articles, where theorists can spell out the authoritative vision in detail, and that breadth of vision is often sacrificed in published works owing to editorial considerations. And the paper appears to be otherwise considerate, nicely written, and well-informed. It is just hard for me to reserve my disappointment in finding out that the entire programme is a house built on sand.