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.)

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.

Against warranted deference [tpm]

[Originally posted at Talking Philosophy Magazine blog]

There are two popular ways of responding to criticism you dislike. One is to smile serenely and say, “You’re entitled to your opinion.” This utterance often produces the sense that all parties are faultless in their disagreement, and that no-one is rationally obligated to defer to anyone else. Another is deny that your critic is has any entitlement to their opinion since they are in the wrong social position to make a justifiable assertion about some matters of fact (either because they occupy a position of relative privilege or a position of relative deprivation). Strong versions of this approach teach us that it is rational to defer to people just by looking at their social position.

A third, more plausible view is that if we want to make for productive debate, then we should talk about what it generally takes to get along. e.g., perhaps we should obey norms of respect and kindness towards each other, even when we disagree (else run the risk of descending into babel). But even this can’t be right, since mere disagreement with someone when it comes to their vital projects (that is, the things they identify with) shall always count as disrespect. If someone has adopted a belief in young earth creationism as a vital life project, and I offer a decisive challenge to that view, and they do not regard this as disrespectful, then they have not understood what has been said. (I cannot say “I disrespect your belief, but respect you,” when I full well understand that the belief is something that the person has adopted as a volitional necessity.) Hence, while it is good to be kind and respectful, and I may even have a peculiar kind of duty to be kind and respectful to the extent that it is within my powers and purposes. But people who have adopted vital life projects of that kind have no right to demand respect from me insofar as I offer a challenge to their beliefs, and hence to them as practical agents. Hence the norm of respectfulness can’t guide us, since it is unreasonable to defer in such cases. At least on a surface level, it looks like we have to have a theory of warranted deference in order to explain how that is.

For what it’s worth, I have experience with combative politics, both in the form of the politics of a radically democratic academic union and as a participant/observer of the online skeptic community. These experiences have given me ample — and sometimes, intimate — reasons to believe that these norms have the effect of trivializing debate. I think that productive debate on serious issues is an important thing, and when done right it is both the friend and ally of morality and equity (albeit almost always the enemy of expedient decision making, as reflected amusingly in the title of Francesca Polletta’s linked monograph).

***

A few months ago, one of TPM’s bloggers developed a theory which he referred to as a theory of warranted deference. The aim of the theory was to state the general conditions when we are justified in believing that we are rationally obligated to defer to others. The central point of the original article was to argue that our rational norms ought to be governed by the principle of dignity. By the principle of dignity, the author meant the following Kant-inspired maxim: “Always treat your interlocutor as being worthy of consideration, and expect to be treated in the same way.” One might add that treating someone as worthy of consideration also entails treating them as worthy of compassion.

Without belaboring the details, the upshot of the theory is that you are rational in believing that you have a [general] obligation to defer to the opinions of a group as a whole only when you’re trying to understand the terms of their vocabulary. And one important term that the group gets to define for themselves is the membership of the group itself. According to the theory, you have to defer to the group as a whole when you’re trying to figure out who counts as an insider.

Here’s an example. Suppose Bob is a non-physicist. Bob understands the word ‘physicist’ to mean someone who has a positive relationship to the study of physics. Now Bob is introduced to Joe, who is a brilliant amateur who does physics, and who self-identifies as a physicist. The question is: what is Joe, and how can Bob tell? Well, the approach from dignity tells us that Bob is not well-placed to say that Joe is a physicist. Instead, the theory tells us that Bob should defer to the community of physicists to decide what Joe is and what to call him.

***

I wrote that essay. In subsequent months, a colleague suggested to me that the theory is subject to a mature and crippling challenge. It now seems to me that the reach of the theory has exceeded its grasp.

If you assume, as I did, that any theory of warranted deference must also provide guidance on when you ought to defer on moral grounds, then the theory forces you to consider the dignity of immoral persons. e.g., if a restaurant refuses to serve potential customers who are of a certain ethnicity, then the theory says that the potential customer is rationally obligated to defer to the will of the restaurant.

But actually, it seems more plausible to say that nobody is rationally obligated to defer to the restaurant, for the following reason. If there is some sense in which you are compelled to defer in that situation, it is only because you’re compelled to do so on non-moral grounds. In that situation, it is obvious that there are no moral obligations to defer to the restaurant owners on the relevant issue; if anything, there are moral obligations to defy them on that issue, and one cannot defer to someone on something when they are in a state of defiance on that issue. Finally, if you think that moral duties provide overriding reasons for action in this case, then any deference to the restaurant is unwarranted.

Unfortunately, the principle of dignity tells you the opposite. Hence, the principle of dignity can be irrational. And hence, it is not a good candidate as a general theory of rational deference.

So perhaps, as some commenters (e.g., Ron Murphy) have suggested, the whole project is misguided.

It now occurs to me that instead of trying to lay out the conditions where people are warranted to defer, I ought to have been thinking about the conditions under which it is unwarranted to do so. It seems that the cases I find most interesting all deal with unwarranted deference: we are not warranted in deferring to Joe about who counts as a physicist, and the Young Earth Creationist is not warranted in demanding that I defer to them about Creationism.