Kelsen’s Pure Theory of Law

A very quick post to make some notes on Hans Kelsen’s short but dense book ‘An Introduction to the Problems of Legal Theory’ (recommended to me by Phil Edwards in comments the other day!)  I want to highlight a few elements of the theory.

• Kelsen draws a sharp dividing line between the normative and the sociological – he will have no truck with accounts of law that confuse the ‘is / ought’ distinction.  As Kelsen sees it, the function of legal studies is to study legal norms – the sociological facts associated with the institution of those norms fall entirely outside Kelsen’s domain.  In this respect, Kelsen’s project is a purely normative one.
• However, Kelsen is also interested in the scientific study of legal norms, and he thinks that this study should be non-normative in a different sense.  That is to say, the pure theory of law should simply analyse what the norms of a given legal system are, without making judgements about their justice and so forth.  In this respect, Kelsen’s project is a purely ‘positivist’ one.
• For Kelsen, what characterises a legal norm is a relation of normative consequence between an unlawful act and the coercive sanction that the legal system associates with that act.  The system of such relations is the legal system.  For Kelsen, the idea of studying the substance of legal norms without including this sanctioning relation (as some natural law theorists advocate) is nonsense.
• Kelsen also has a hierarchical account of the structure of legal systems.  For Kelsen, legal norms can be understood as instituted by ‘higher level’ legal norms, from the legislative to the constitutional up to the international legal system.  Even as Kelsen acknowledges that the international legal system is extremely underdeveloped relative to national legal systems, he still sees it as the highest authority from which national legal systems derive their authority in turn.

I think those are some of the core elements of the book.  (I haven’t discussed the – to me somewhat muddy – sections on contradictions between and underdetermination of legal norms.  If I were trying to write properly on Kelsen I think I’d have to work through those sections of the book carefully again, but I think this will do for now.)  I don’t have a huge amount to say about it, at least as yet, but I guess I’ll make a few remarks about my own perspective on Kelsen’s positions.

• Obviously I reject Kelsen’s rejection of sociological analysis of the determination of legal norms.  From my metatheoretical perspective, Kelsen’s account is ‘one-sided’, studying pure law in abstraction from the concrete social practices that institute that law.  As I see it, a properly developed broadly Brandomian metatheoretical apparatus can allow us to have our cake and eat it, in terms of the sociological contribution to the study of the normative. This position obviously needs cashing out – but that’s a core element of the project I’m pursuing here.

• But I think Kelsen is right to say that you can study norms without taking a view on whether you endorse those norms.  It’s fine to engage in a ‘positivist’ study of normative content.  (Too many theorists, in my view, argue that if you’re committing yourself to the normativity of your analytic project in one sense, you’re committing yourself to the normativity of the project in all other senses – I’m with Kelsen in rejecting this stance.)

• I think Kelsen is wrong to make a hierarchy as central to his account as he does.  I think a more ‘bottom up’ account of the emergence of norms (including legal norms) is vastly analytically preferable.

Finally, I think Kelsen’s book is typical of its historical time and place – interwar central Europe – in the way it combines two distinction philosophical impulses: one the one hand, a very strong and passionately held rationalism; on the other hand, a conviction that this rationalism is itself grounded in a pre-cognitive decision or commitment that escapes rational warrant.  This latter category of position is articulated in Kelsen’s text in two ways.  First, he has a Kantian belief that real justice is beyond cognitive reach – noumenal rather than phenomenal.  Second, when it comes to real-world legal norms, he sees those norms as grounded in foundational basic acts of normative institution, which may be social-contractarian or revolutionary.  The idea that the fundamental ‘ground’ of our norms might itself emerge from a web of reasons that can be justified by other reasons in turn, within an ongoing unfolding web of normative social practice, does not mesh with Kelsen’s account of the nested hierarchy of norms grounding norms.  Kelsen’s account (at least as articulated at a number of moments in the text) requires some kind of ‘fundamental norm’ on which the system as a whole stands.

For my philosophical tastes, this category of position is too close to the forms of irrationalism that Kelsen wishes to rebut or reject.  I think this is a problem common to a lot of liberal interwar central European intellectuals – I see the same issue in at least some of the Vienna Circle figures, and in Max Weber.  I haven’t read Kelsen’s debates with Schmitt (and probably I should), but although it goes without saying that Kelsen is on the right side of those debates – Schmitt’s fascism is evil; Kelsen’s rejection and critique of it is good and right – I feel like a slightly different metatheoretical apparatus would give more robust resources for making the intellectual, rationalist case against fascist legal philosophy.  (Not, of course, that Austria’s fall to fascism was settled in these intellectual debates…)

Anyway, those are some preliminary thoughts about Kelsen’s book.  Enough for now.

The limits of liberalism

Yet another “organising some things in my own head” post. My goal is to do a bit of ‘political philosophy 101’ concerning the sources of the illiberal dimensions of liberalism.

What is liberalism?  Well, as I’ve argued before on the blog, there is no one liberalism – rather, there are many liberalisms, with some quite diverse attributes.  Still, at least for the purposes of this post, let’s specify that it’s a political philosophy and a set of political governance practices that have “individual liberty” as a central ideal.

But of course historically liberalism has done all kinds of things that massively suppress, rather than enhance, individual liberty.  What’s that about?  Here are some sources of ‘illiberal liberalism’.

First: a strong boundary around a narrow definition of the person.  I’ve been reading a lot of Charles W. Mills recently, and this is the leitmotif of his later work: actually-existing liberalism is structured by a social ontology that grants full personhood to only a small minority of the world’s population.  I’ve talked about this a lot on the blog before, so I don’t want to spend heaps of time on it here – but I’ll return to this point.  Obviously drawing this kind of boundary around a narrow definition of the person can legitimate all kinds of atrocities, including slavery and genocide, within a liberal framework.

Second (and this is closely connected to the first point): even those who are in principle capable of attaining personhood, may not have achieved full personhood yet, and therefore do not have access to the full rights and liberties of persons.  This is, I think, more or less inarguably the case for small children – babies have to be under somebody’s care, they cannot be reasonably treated as fully autonomous individuals.  Then the question becomes: at what point do children become adults, with full rights, and what more limited rights do they always have, or acquire along the way?  In this respect, childhood is a massive ‘constitutive exception’ to the liberal concept of the autonomous individual.  (This is one of the ways Bentham mocks the French revolutionary idea that humans are “born free” – no we’re not, Bentham says, because babies are very clearly not free.)  But the status that is more or less inarguably associated with childhood can then be more broadly extended by analogy.  This ‘constitutive exception’ is what allows John Stuart Mill to argue, in his treatise on liberty, that most of the planet’s population doesn’t merit liberty – still being uncivilised, unenlightened, inhabitants of a self-imposed nonage.  Indeed, the very idea of Enlightenment, in its classic Kantian formulation, implicitly attributes this unenlightened status to most of human history and most human civilisations.  This is one reason why it is not a paradox that Enlightenment liberalism went hand in hand with global despotism.  In Mill’s words: “Despotism is a legitimate mode of government in dealing with barbarians, provided the end be their improvement, and the means justified by actually effecting that end.”

I’m trying here to draw a distinction between two different ways in which people can be excluded from the charmed circle of liberal rights.  On the one hand, a strict and impassible ontological boundary can be drawn between persons and non-persons, or non-full-persons – this is what many forms of biological racism do, as well as many forms of patriarchy.  From an animal rights perspective, this is also what speciesism does.  On the other hand, a ‘culturalist’ argument can be made.  From this perspective, there is no impassible ontological obstacle to a given group enjoying full rights, but as it happens members of that group are still within their ‘nonage’, and despotic denial of liberal rights is therefore legitimate until full maturity is attained.  These two positions shade into each other in practice (which, by the by, makes sense from a pragmatist metatheoretical position which sees personhood as socially instituted anyway) – but I think they’re usefully distinguished.

Now, both of these two positions are about the drawing of the boundary between persons and non-persons.  And the question of where this boundary is appropriately drawn is a question that can be debated and contested largely independently of other issues within liberalism.  This is the force of Charles Mills’ simultaneous critique and endorsement of liberalism.  You can (Mills argues) keep most of the liberal apparatus, and simply change the boundary of who counts as a person.  This change will then, of course, ramify in countless ways throughout our philosophy and politics – this is not a small change!  But the denial of full personhood to the bulk of the world’s population, by actually existing historical liberalism, is not an intrinsic feature of liberalism as such.  The location where governance institutions draw the basic ontological boundary between human and non-human can be shifted by social practice, and the same applies to where our institutions draw the boundary between de facto child and adult.  These changes can be made while remaining within a liberal paradigm.

I agree with all this (as I’ve said on the blog many times before) – and I endorse Mills’ project.  But that’s not what I want to focus on in this post.  Here I want to focus on another set of limits to liberalism: the problem of intolerance within the liberal polity.  Here the classic statement, I think, is Popper’s remarks on “the paradox of tolerance”: “If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them.”

Here I think it is important to distinguish two different forms of this basic argument – one that operates at a ‘macro’ and one at a ‘micro’ level.

At the macro level, the worry is that illiberal political elements will seize control of the levers of state, and transform a liberal state into an illiberal state – I think it’s clear that this is the kind of thing Popper has in mind.  The argument here is that it is better to illiberally suppress illiberal political movements, rather than let those movements seize control of the state apparatus and abolish liberalism altogether.  This ‘existential threat to liberalism’ argument can be applied to fascism – but also much more broadly.  Across much of the twentieth century, the most common target of this kind of argument was communism: the Cold War was understood by many on the ‘Western’ side as an existential conflict between liberalism and totalitarianism, and the existential nature of the conflict justified monstrously illiberal actions in the service of defending liberalism.  Thus many of the worst atrocities perpetrated or facilitated by the liberal powers within the Cold War – the wars in Korea and Vietnam; the mass killings in Indonesia; coups and massacres all around the world – were understood or presented as part of a principled defence of liberalism, in which the worst methods were justified by the existential communist threat to liberty.  In earlier centuries, of course, communism did not present this threat – but it’s striking, when reading 18th and 19th century British liberal theory, how often Catholicism plays a role that is in some ways (not to overstate the case here…) structurally similar.  For many early British liberal theorists, Catholicism represented at once a geopolitical threat from rival great powers, an internal threat from subversives within the state, and an ideological threat that had to be countered.  Thus liberty of religion, for many early Protestant liberals, clearly had a limit when it came to the rights of Catholics, whose fundamentally illiberal church (the argument went) had to be kept in check or the entire project of liberalism was threatened.  Even an invasion by a foreign power was to be welcomed as a glorious revolution, if it kept the Catholic menace out of power.

My point in all this is just that another dividing line can be drawn here – illiberal suppression of illiberalism may be justified to maintain liberal state structures.  This is the ‘macro’ level argument.

But there is also another, more ‘micro’ level, argument – about illiberalism within the liberal body politic.  And this is the issue I most want to thematise.  Here the argument is not that illiberal attitudes or practices within the liberal polity threaten the polity as a whole – rather, the argument is that illiberal attitudes and practices within the liberal polity threaten the liberty of individuals.

On this theme, I recently read Jacob T. Levy’s ‘Rationalism, Pluralism, and Freedom’.  For what it’s worth, I felt that Levy’s core typology in this book probably bundles together some things that could usefully be distinguished – and maybe I’ll come back to that point one day.  For now, though, I want to simply make use of Levy’s very illuminating categories.  Levy draws a distinction between two forms of liberalism.  One (“pluralism”) emphasises freedom of association, and values the many civil society ‘intermediate institutions’ that enable people to pursue diverse visions of the good within like-minded communities.  From this pluralist perspective, the state’s assault on intermediate institutions is one of the great threats to liberty.  The other form of liberalism (“rationalism”) is deeply suspicious of ‘intermediate institutions’, which frequently institute oppressive local norms, and seeks to use the levers of the state to liberate the individual from the oppressive forces of local civil society structures.

I take it that the basic question at play here is as follows.  We start from the premise that the liberal polity aspires to maximise individual freedom.  Freedom to do what?  Well, freedom to live one’s life as one sees fit – according to one’s own vision of the good.  But what if the life I want to live endorses and participates in illiberal norms, beliefs, and practices?  If those norms, beliefs and practices impinge only on myself, there’s no problem.  But most norms, beliefs, and practices impinge on others.  I may want to form or join a community of like-minded people who are also illiberal.  I may want to form or join associations that are organised according to illiberal norms.  Some of those associations may be large.  They may impinge significantly on others’ lives.  Moreover, how can the liberal polity be confident that members of an illiberal association are freely choosing their membership?  This becomes particularly problematic – again – when we are talking about children, who lack the ability to choose their social location of birth.  But it is a broader problem than that.

I take it that, at a high enough level of abstraction, there is a standard formal answer to this problem, among liberal political theorists.  This answer runs something like the following:

1. We need to draw a distinction between two different normative and governance levels.
2. The liberal state as a whole is committed to facilitating (some degree of) pluralism within its jurisdiction.
3. That pluralism needs to include (some degree of) freedom to form associations, the norms and governance of which may be very different from those of the state as a whole.  Thus illiberal associations and practices are permitted within a liberal state, as an expression of individual freedom.
4. However, there is a limit. Some forms of local self-governance may be sufficiently in contravention of overarching state norms that the state is willing to use its power to abolish or suppress those associations, liberating individuals from illiberal local groups.

The idea here, then (to repeat), is that as an individual one of the liberal freedoms I enjoy is freedom of association – I can participate in communities and organisations that make their own rules, in accordance with their members’ own vision of the good life.  This freedom includes the freedom to join and form illiberal associations.  However, if the practices of my associations are sufficiently illiberal, then the state reserves the right to step in and override my freedom of association, in the interest of preserving freedoms which my illiberal associations sought to suppress.

I think a formal story of this general kind is endorsed by most people who call themselves liberals and are thinking in this kind of space.  However, this story makes available an extremely wide spectrum of possible practical applications.  The question here becomes: how does one weight freedom to engage in illiberal practices, versus the freedoms those practices risk suppressing?  What practices are too illiberal to be tolerated by the tolerant liberal state?

I think a large number of debates that are currently playing out in our public sphere are playing out within this basic framework.  Liberals are committed to a two-level account of their own normative commitments.  There are first-order normative commitments (what norms does one endorse, what associations does one participate in?)  Then there are second-order normative commitments (what practices should be permitted within a liberal polity, whether one personally endorses them or not?)  The core commitments of liberal governance lie at this second-order level.  But if I object to somebody’s norms or practices, it is (‘formally’ speaking) an open question whether that objection is first- or second-order.

A huge amount of current political debate, then, in my view, can be understood as debate over whether normative disagreements should be understood as first- or second-order disagreements.  If somebody engages in practices that I regard as intolerant, is this a first-order problem (they have the right to be intolerant, I just don’t think they should be) or a second-order problem (this intolerance is sufficiently unacceptable that it should be prohibited by the apparatus of the overarching liberal state)?  To be blunt about it, a lot of contemporary political debate involves people opportunistically attempting to make first-order criticisms into second-order criticisms, and vice versa.

So that’s one issue: where does the line fall between first- and second-order normative disagreements?  But then there is another issue: does it even make sense to draw this distinction between first- and second-order normative commitments?

I think this question – the disagreement over whether this core liberal distinction, between first-order normative disagreement within the liberal polity and second-order normative disagreement about the liberal polity, even makes sense in the first place – is the core issue in a lot of contemporary debates between liberals and critics of liberalism.  Critics of liberalism, in my view, typically reject the sustainability of this distinction.  Critics of liberalism argue that this distinction is itself ideological – it is a mechanism via which some substantive first-order norms can be given undue weight, by cloaking them in the ‘formal’ dress of second-order norms.  From this perspective, the ‘formal’, ‘neutral’ liberal state isn’t really neutral or formal at all – it is simply one set of first-order norms being given special status.  We would be better off (so the argument goes) if we simply dropped this pretence altogether, and carried out all our political debates at a first-order level.

I think this anti-liberal argument is fundamentally misguided.  If we want any kind of pluralism within our society, then we need to be able to sustain something like the distinction between (what I’m calling) first- and second-order normative disagreement.  The implication of the effort to reject this element of liberalism, in my view, is the rejection of political pluralism altogether.

Now some critics of liberalism want to reject political pluralism – they understand that these are the stakes of the debate, and they are willing to roll the dice on their own values coming out on top within an illiberal governance system that imposes state norms in an authoritarian manner.  On the left, there is a long tradition of (what I persist in regarding as) totalitarian critiques of liberalism (I think the most significant figure here is probably Lukács), which are happy to endorse this push for relative normative homogeneity.  On the right, lots of ‘natural law’ figures (Adrian Vermeule’s integralism is a currently prominent example) are likewise happy to simply build their first-order normative preferences into the basic constitutional structure of the (formerly) liberal state.  So here we have the traditional communist and Catholic critiques of (and threats to?) liberalism! (To be completely clear, I’m not suggesting that McCarthyism or religious persecution are the appropriate responses to these theorists.)

But I think a lot of people who make this kind of anti-liberal argument probably don’t really want to abolish pluralism – they just haven’t sufficiently thought through the implications of their arguments.  And I think this non-thinking-through is aided by the phenomenon I remarked on above: the transparent opportunism on display in many contemporary debates around liberal pluralism, where so many people are ‘moving the goalposts’ of the first- versus second-order norms distinction, as suits them at any given moment.  Either people are attempting to install their own preferences as overarching second-order norms, and thereby suppress their critics in the name of liberal tolerance; or they are attempting to reject criticisms of their own first-order norms and actions, on the grounds that such criticisms are attacks on general liberal second-order rights.  These people (the opportunists) are a fourth kind of ‘illiberal liberals’.  And the danger of this kind of ‘illiberal liberalism’ is not just that it ‘wins’ in whatever specific debate we’re talking about, but that it discredits the entire laboriously-established liberal pluralist philosophical and practical governance apparatus – even with all its many flaws.  I think it’s important, in the present moment, to keep ahold of what is valuable and important in that liberal apparatus and tradition.

To sum up then: I’ve tried to identify four different mechanisms via which liberalism can be profoundly illiberal.

First: a narrowly drawn ontological distinction between persons and non-persons.

Second: a narrowly drawn cultural distinction between full adults and those who are yet to reach maturity.

Third: the use of violently illiberal methods to suppress allegedly existential threats to liberal governance structures.

Fourth: the movement of the line between first- and second-order liberal commitments, to either a) use the state apparatus to suppress the freedoms of those you dislike, or b) legitimate your own suppression of others’ freedoms, by insisting that a properly pluralist state would grant you the freedom to oppress.

The fourth of these points is, in my view, the most slippery – and also in some ways the one that is most relevant to current debates.  I’d like to think about it more, and better, in the future.

These four points together provide massive ideological resources for the justification of ‘illiberal liberalism’.  But, I’m claiming, we shouldn’t let this fact discredit liberalism as a whole.  There are worse things than liberalism.  Moreover, as I’ve argued before many times on the blog, there are many different liberalisms – and there are, in my view, vastly better possible liberalisms than any that have yet been instituted.

Utilitarianism and deontic norms

I just read Bentham’s ‘An Introduction to the Principles of Morals and Legislation’.  Not the world’s most engaging book, if I’m honest (not that it has any obligation to be, of course) – but it’s gotten me thinking about utilitarianism.  I’m sure I read some utilitarian philosophy as an undergraduate, so this isn’t based wholly off of Bentham – but of course, given utilitarianism’s massive influence on economics as a discipline, I ought to read more widely in the tradition.  Be that as it may.  In this note-taking type post, I want to comment on three different elements of the utilitarian story, which I think can be usefully unbundled.

First element: the idea that we are all motivated by pain and pleasure, at the end of the day.  When he makes this claim, Bentham isn’t committing himself to a crassly selfish model of the human animal.  Bentham is clear that we have sympathy for others – and, moreover, that we take pleasure in esteem, and this love of reputation may lead us to take actions that seem highly contrary to the actions that would be motivated by immediate physical pleasures and pains.  Nevertheless, Bentham claims: when you get right down to it, the twin motives of seeking pleasure and avoiding pain (really just the positive and negative elements of a single motive) explain all our actions.

To be blunt, this strikes me as basically correct.  You can argue that it’s tautologous – but I’m not sure it is, really.  You can also argue – perhaps with more justice – that it only becomes true if you’re willing to ‘retcon’ your assessment of what people regard as pleasurable, in conformity with actual behaviour.  But even here, I’m not persuaded that this is too serious a problem.  The influence of this dimension of Bentham’s work, I think, can be traced not just through the apparatus of utility-calculus economics, but also through the apparatus of Freudian psychoanalysis.  And – as I’ve said before on the blog – although these same kinds of accusations are directed (sometimes with real justice) at psychoanalysis (i.e. – it’s irrefutable because it can always reconstitute its categories to be consistent with any given behaviour, etc.) I still think that this kind of psychological analysis just does capture something.  In short, I’m happy to endorse this element of the Benthamite utilitarian apparatus, in some sense.

Second element: Bentham argues that the meaning of (what he regards as) ‘fictitious’ concepts such as rights and obligations can be ‘translated’ (by the process of ‘paraphrasis’) into the real substance of those concepts – pleasure and pain.  Here I disagree with Bentham, and (unsurprisingly) I agree with Brandom.  I think you can’t do this kind of reductionist ‘translation’ – the kind of ‘object naturalism’ I discussed in a previous post on Huw Price – to concepts like ‘obligation’.  Rather, we should endorse something closer to a ‘subject naturalism’ – in which the meaning of categories like ‘obligation’ can be explained (via the complex Brandomian apparatus) as instituted by naturalistically-analysable social practices.  (Here of course we need to be a little bit careful about what we mean by ‘naturalistically-analysable’ – but I’m fiating for now that these sorts of difficulties can be ironed out.) Those social practices – if we follow the Benthamite account in point one – can then in turn be explained as motivated by pleasure and pain.  But this is a different claim from the claim that the semantic content of obligation-talk can be translated into pleasure-and-pain talk.

Third and final element: Bentham argues that we have a substantive obligation to attempt to maximise pleasure and minimise pain across individuals.  This is the doctrine that one thinks of when one thinks of utilitarianism.  Obviously this doctrine has been subject to a large number of critiques.  One such critique is: you can’t quantitatively compare pleasure and pain across individuals.  This critique is what motivates economists’ preference to talk in terms of Pareto optimality rather than straight-up aggregate utility maximisation.  Another such critique is: even if you could quantitatively compare pleasure and pain across individuals, it’s easy to construct scenarios in which seemingly ethically monstrous actions are justified by a net utility gain – so something must be amiss here.  A third such critique is: actually our ethics should be based on obligations and rights, not on utility maximisation, so this whole approach can be rejected out the gates.  And of course there are other critiques too.

I don’t want to go into these first-order ethical trenches here now.  My main point here is just the following: this substantive ethical principle can be detached from the other two elements of Bentham’s philosophy.  One could, in principle, reject both of the first two principles (arguing that 1. we are motivated by things other than pleasure and pain, and 2. we cannot translate obligation-talk into pleasure-and-pain talk) and still claim that the obligations that fall out of our alternative, non-Benthamite meta-ethical apparatus are, in fact, utilitarian obligations.  Alternatively, you could accept point one (about motivations), reject point two (about paraphrasis), and then still leave open the question of whether you accept point three (utility-maximisation as a first-order ethical principle).

That last sentence is broadly where I am.  I don’t think I really want to be a first-order ethical utilitarian; but I definitely want to leave the option available, for now – if for no other reason than its great influence within economics.

What I’m most interested in, though, is the way in which the positions I’m recommending on points one and two can be used to reconcile two apparently incompatible approaches to thinking about human action and reason.

On this blog, as I’ve said before, I’m pursuing two parallel, related projects – one in neopragmatist philosophy, and the other in political economy.  One of the tensions between those two projects, is different concepts of reason and action in their metatheoretical frameworks.

A large amount of political economy – basically the great bulk of formal mathematised economics, or at least microeconomics – works within a theoretical framework in which preference functions (clearly and directly descended from utility functions) guide agents’ actions.  The kind of ‘rationality’ associated with ‘rational’ economic actors is an instrumental rationality – agents take the decisions that make most ‘rational’ sense, according to some specified decision function, given their preference function.  This element of utilitarianism can be endorsed even by an economics that fundamentally rejects the substantive third point itemised above – ethical utilitarianism.  So, for example, significant twentieth century social-contractarian thinkers – both Rawls and Buchanan, in their different ways – treat agents as instrumentally maximising their own welfare given plausible decision functions, and use this ‘behavioural utilitarian’ premise as a core element in the derivation of anti-utilitarian normative frameworks.

So you can use this element of utilitarianism as a behavioural model to understand agents’ actions even if you don’t endorse ethical utilitarianism.  Now.  What I want to argue is that this same basic move can be made with respect to the Brandomian apparatus.  Brandom, of course, has a fundamentally non-instrumental concept of rationality.  Brandom is interested in reason in the sense of the ‘space of reasons’, the game of giving and asking for reasons, and so on.  When Brandom talks about rational, sapient creatures, then, he is not in the first instance thinking of instrumental rationality, but of normative rationality – the kind of rationality that is associated with being bound by norms.

As part of that argument for normative rationality, Brandom is extremely keen to rebut the entire family of arguments represented by Bentham’s account of ‘paraphrasis’.  Brandom wants to argue that obligations are not ‘fictitious’ entities, which can be explained in terms of pleasure and pain, which are in turn best understood in terms of instrumental rationality.  Brandom wants to argue that norms are real, and obligations are real – albeit socially instituted – and that instrumental rationality, if anything, falls out of this account.

The move I want to make (in this post and more broadly) is to grant all of that – but then to bring in ‘behavioural utilitarianism’ (point one above) at the level of analysing the motives for the practices that institute these norms.  If we do this, I want to say, then we can potentially reconcile the instrumental and normative senses of rationality that are operative in the two different halves of the project I’m pursuing here.  We are sapient creatures bound by norms.  Those norms are instituted by our social practices.  Those social practices are driven by our own psychological motive structures – which can be usefully analysed (in Benthamite or psychoanalytic terms) as governed by pleasure and pain, in some sense.  This move (I want to claim) doesn’t reduce normative to instrumental reason, because we can take pleasure and pain in things that themselves carry semantic content – and semantic content is instituted by those normative practices.  So this is not a reductionist argument, it is an argument about the mutual co-constitution of instrumental and normative reason.  (And this makes sense, because one of the other big critiques of the formal apparatus of utilitarian behavioural modelling is that it always presupposed a semantic content it hadn’t entitled itself to.)  But it gives instrumental reason – and some version of the utilitarian calculus – a more central role in our story than is perhaps typical in Brandomian approaches.

Note, as well, that this is a more complex philosophical story than some of the prominent efforts within economics to explain the emergence of norms in terms of utilitarian instrumental reason.  In the approach I’m recommending, normativity is not simply understood as ‘cooperation’ – the question is not “how can we explain the emergence of cooperation from self-interested action?”  (Here I’m thinking about the vast and extremely sophisticated game-theoretic literature that develops out of Axelrod’s ‘The Evolution of Cooperation’.)  Rather, the question is “how can we explain the emergence of genuine normativity – the bindingness of norms in the sense of practice-transcending semantic content – out of practices that are themselves analysable in terms of the developed, formal, broadly utilitarian apparatus used within disciplines like economics for modelling instrumental rationality?”

I think this is a potentially fruitful line of thought, and I want to pursue it further on the blog, time and life permitting.

Recapitulation. Philosophy of law.

Let me recapitulate the project to date (yet again).

So far on the blog I’ve spent, well, the better part of fifteen years, on and off, working through the philosophy of Robert Brandom – first ‘Making It Explicit’, then (in the last year or so) ‘A Spirit of Trust’.  I’m now trying to, as it were, move beyond that philosophy, both by building on it and by departing from it in some important ways.

Here are the key points of departure from / possible extensions of Brandom.

In terms of active disagreements: I reject the ‘conceptual realism’ that undergirds the account of objective reference in ‘A Spirit of Trust’.  My claim is that this account of reference makes an illegitimate transcendental argument, which attempts to derive metaphysical facts about the structure of mind-independent reality from philosophical semantics.  I don’t think such an argument could work in principle (you just can’t know things about the metaphysical deep structure of reality from knowing things about semantics).  I also, separately, think this argument is anti-fallibilist, and I endorse a fallibilist understanding of objectivity.  (That is to say, I take it to be part of the concept of genuine knowledge that we cannot know anything for certain.)  I still endorse what I take to be the much more ‘slimline’ and fallibilist concept of objectivity articulated in ‘Making It Explicit’.

Then there are a set of lines of thought that I don’t take to be so clearly disagreements with Brandom.

First, I want to endorse a strong normative pluralism.  I think this is broadly compatible with Brandom’s apparatus, but Brandom himself (at least as channelling Hegel) doesn’t seem to fully endorse this position, advocating rather a kind of ‘utopian Whiggism’, which at least appears to be oriented towards a higher degree of social-normative consensus than I think is either possible or desirable.

Second, I think Brandom-Hegel’s apparatus can be integrated with psychoanalytic resources in productive ways.

Third, I want to focus on the role that non-linguistic practice plays in the constitution of norms.  I am especially interested in coercive practice – both because it represents a ‘hard case’ for pragmatist accounts of normativity, and (more concretely) because coercive practice is central to my slightly less abstracted research programme in political economy.  That is to say, I am interested in institutional political economy – the way in which ‘the rules of the game’ shape our economic life.  I take it to be clear that many of the rules that structure our economic lives are constituted, in part, by coercion.  So I want to understand – and ultimately, ideally, be able to model – the way in which coercive and non-coercive practice interact in the production of institutional rules and norms.

Now, when I was circling round this latter point a few posts ago, Phil Edwards, in comments, remarked on the overlap of these concerns with the philosophy of law (specifically, Kelsen, and debates around legal positivism).  This is very clearly right – philosophy of law is one of the major relevant theoretical spaces for thinking through these kinds of issues.  And indeed, Brandom himself is interested in the philosophy of law – his paper ‘A Hegelian Model of Legal Concept Determination’ is an intervention into debates in the philosophy of law, around pragmatism, postmodernism, and objectivity.  More broadly, Brandom uses the model of common law presented in that paper as a paradigm for understanding the determination of normative content in general (and this has been the case, in a slightly less developed form, since ‘Making It Explicit’).  So I think Phil is exactly right that philosophy of law is the terrain (or at least one of the major terrains) on which I ought to be thinking about this cluster of issues.

For this reason, then, I intend to orient my reading and blogging, at least in the immediate future, towards the philosophy of law.  I expect the other lines of thought I’ve outlined (fallibilism; pluralism; psychoanalysis) to continue to be relevant to the project – but I want the centre of my blogging, at least for a little while, to be focused on the issue of the role of non-linguistic (especially coercive) practice in the constitution of rules, as discussed within the philosophy of law.

Now, that’s going to mean a lot of reading – I am (regrettably) extremely poorly read in the philosophy of law.  But, as is my (again, perhaps regrettable) custom, I want to use the blog to orient my thoughts as I go.  So in the rest of this post I want to quickly sketch out, in very crude terms, what I know of some of the debates in the philosophy of law that I take to be relevant to my use of the Brandom – acknowledging, as so often, that I am writing from a place of considerable ignorance.

Debate one: Natural law versus law as socially constituted – obviously I endorse the latter, pragmatist position.

Debate two: reductionism.  This seems to be a complex series of debates about the relation between ‘naturalistic’ categories (e.g.: pain, pleasure, behaviour) and ‘normative’ categories (the binding substance of the laws themselves).  This is an issue that Brandom’s system centrally aims to address – explaining how ‘normative statuses’ can be explained in terms of ‘normative attitudes’.  This all needs a lot more unpacking, though – which hopefully I’ll do in some future posts.

Debate three: ‘semantic nihilism’.  This debate is closely related to, but non-identical with, the reductionist debate above – and this is the debate that Brandom is explicitly intervening in with his work on Hegel’s model of legal concept determination.  The debate here is over the extent to which law can be understood as determining future application, given its social constitution.  From some postmodern or pragmatist positions, an implication of an adequate understanding of law’s social character is the idea that social actors are in practice unbound by precedent (or indeed legislation), because precedent (/legislation) radically underdetermines interpretation.  Critics of that pragmatist or postmodernist position argue that it amounts in practice to a ‘semantic nihilism’ – if rules can’t guide their own application, they can’t really be understood as rules at all.  This is one of the core issues that Brandom’s entire project is oriented to resolving, as I see it.  I think Brandom’s solution to this question is extremely subtle and impressive, and this is the greatest virtue of his whole system.  So this is, as I see it, the core reason to begin with Brandom’s apparatus as our starting point.

Debate four: domination.  Again, I’m being very loose here – but one of the key critiques directed by critical legal studies at mainstream legal theory, is that what mainstream legal theory presents as binding legal norms are really in some sense a mask for – or, at least, centrally constituted by – power relations.  This is the charge that Marxism levels at bourgeois legal structures and theories.  Variants of this charge are also made by (some) feminist theorists and critical race theorists, some Foucauldians, etc.  And this line of critique comes in more and less global forms.  The most global form – which Brandom is concerned to rebut in his discussion of the ‘hermeneutics of suspicion’ – appears to endorse the kind of ‘semantic nihilism’ discussed above; from this perspective, if normativity in general can be ‘reduced’ to power relations, what becomes of normativity?  But of course one does not have to argue that law (or normativity more broadly) is just power relations, in order to argue that power relations are central to the production of law – or indeed that law is non-binding.  That is to say: rebutting ‘semantic nihilism’ only rebuts some quite specific versions of this broader line of thought.

Now, as I’ve been saying for a little while now on the blog, Brandom’s apparatus basically doesn’t discuss power relations.  Brandom isn’t interested in the role of power relations in constituting norms – the discussion of “beating people with sticks” early in ‘Making It Explicit’ mainly serves to methodologically justify the omission of this kind of practice from the rest of the discussion.  And Brandom isn’t very interested in the role of norms in justifying power relations – the broadly social-contractarian discourse whereby a community’s freely chosen institution of agreed norms can justify the coercive enforcement of those norms on community members, is not a major issue in the political-theoretic sections of ‘A Spirit of Trust’.  In other words, Brandom basically ‘brackets’ coercion, as both an input and an output of his model of the complex social system of normative determination.

In this, of course, Brandom is departing from Hegel.  Hegel is (notoriously) happy to use his apparatus to justify highly coercive state actions – and those actions are, in turn, part of Hegel’s account of the constitution of community norms.  I take it that Brandom’s strong emphasis on forgiveness, rather than retribution, as the mechanism for the institution of a mutually responsible community, is one of the “strong read” elements of his interpretation of Hegel.  So one of the things I’m going to want to do in this new subproject is work through the Philosophy of Right.

But I also, more broadly (and as I keep saying), want to ‘bring coercion back in’ to Brandom’s pragmatist apparatus.  Philosophy of law (which can’t not think about coercion) seems like a good way to start to do that – so that’s what I want to focus on, for a little while at least.  We’ll see how this goes.

Recognitive and property rights

Ok – in this post I want to bring together four passages or ideas from four different social theorists – covering a lot of ground that I’ve already been over on the blog (for example, here), but maybe inching forward slightly too.

First up – Coase in ‘The Problem of Social Cost’, where he argues, towards the end of the article, that a factor of production should be understood as “a right to perform certain (physical) actions”.  This move shifts the focus of economic theory into the space of rights, entitlements, etc.  From this perspective, when one is studying transactions, one is really studying the shift in the broadly recognised entitlements or rights associated with each of the parties to the transactions.  In Brandomian terms, an exchange of property is really a shift in the broad normative attitudes associated with the recognitive community in which the property-holders are embedded.

Second – Buchanan in ‘The Limits of Liberty’, who argues that “[t]he delineation of property rights is, in effect, the instrument or means through which a ‘person’ is initially defined.”  Buchanan is here working within a right-liberal Lockean framework which tethers personhood extremely closely to ownership or property-rights.  This liberal tradition effectively ‘metaphysicalises’ private property relations by understanding private property as the paradigm of rights in general – the ur-right in terms of which all other rights can be analysed.  I think we should reject this private-property-centred framework.  But we should reject it by seeing that there are many forms of rights, entitlements, obligations, etc. that are not tethered to property.  (See, for example, Elinor Ostrom’s work on the rules – including rights – associated with community governance of common pool resources.)  Instead, I recommend (as usual) shifting to a more Brandomian framework, in which normative attitudes attribute rights and responsibilities, of which property rights are a special case.  But within this framework, we can see normative attitudes as defining personhood, because on the Brandomian-Hegelian account personhood is constituted by participation in an appropriately structured recognitive community (where recognitive relations are of course themselves normative attitudes).  Appropriately generalised, then, a version of Buchanan’s insight still holds.

Third – Charles W. Mills’ analysis of ‘subpersons’ as core to the white supremacist racial contract.  Here – for example, in his article ‘Non-Cartesian sums’, but also throughout much of his career – Mills is interested in analysing the way in which European political theory is constituted by the category of ‘subpersons’ – racial others who lack full personhood, and who therefore are not admitted to the schedule of liberal rights and entitlements associated with modernity.  This is a fundamentally recognitive argument. Therefore, although Mills is too ‘analytic’ to make heavy use of Hegel (who is of course one of many exemplars of the white supremacist discourse Mills is critiquing), I think this argument can nevertheless easily be made within a broadly Hegelian (and, therefore, Brandomian-Hegelian) framework.  In his later work, Mills is primarily interested in ‘recuperating’ liberal social contract theory for an emancipatory anti-racist politics, by reworking Rawls and Kant in a more liberatory direction.  But I think a similar argument can be made for (an analytic) Hegel – using the Hegelian-Brandomian recognitive apparatus to understand the white supremacist distinction between full persons and subpersons in terms of recognitive communities – i.e. normative attitudes.

Fourth and finally – Brandom himself.  As is clear, I think that all three of the arguments or positions I’ve cited so far can be re-articulated within a broadly Brandomian idiom.  So at one level I’m simply recommending shifting all these arguments into this register.  (Or at least, that’s what I’m doing myself, whether or not other people find it useful…)  But here, again, the caveat is that Brandom’s apparatus – though incredibly strong on the way in which normative statuses are constituted by normative attitudes – is one-sided in its focus on a) linguistic, and b) ‘wholly’ normative attitudes.  So if we’re going to shift these political-economic and political claims into the register of a Brandomian analytic framework, we need to also extend the framework, so that, at a minimum, it can accommodate relationships of domination – normative attitudes that are straightforwardly repressive.  If we can’t extend Brandom’s apparatus in this way, then it’s not going to be able to articulate core insights within the political and political-economic discourses I’m citing.

Ok.  As I say, I’m circling round the same space again and again in these recent posts, for which I apologise.  But I guess that’s what the blog is – ringing slight changes on the same basic content, in the hope that slowly, over time, progress can be made.  I feel like some degree of greater clarity is slowly being accomplished, maybe.

Statement of the research problem

I’m afraid this is yet another programmatic post in which I try to organise my thoughts about the general project I’m pursuing here.  I’m aware that at some point I need to stop making programmatic remarks about the project and just get on with the actual project – but I find these kinds of posts clarifying, so here we are again.

What I want to say in this post, then, is that I feel like at this point I am approaching the same basic research space from two different directions.  In the philosophical line of thought I’m pursuing on the blog I am – as I’ve said in the last couple of posts – trying to extend Brandom’s apparatus in a more ‘sociologically’ ‘materialist’ direction.  That is to say, I’m interested in how non-discursive, non-wholly-normative practices – especially though not exclusively coercive practices – are involved in the constitution of our norms.  Then, in my political-economic research, I feel like I’m approaching the same basic question from another direction.

My political-economic research tends to happen more ‘off blog’.  To summarise that line of thought very briefly, then: in my political-economic research I am, I guess, interested in the theoretical foundations of institutional economics.  Broadly speaking, in the middle decades of the twentieth century the institutionalist orientation to economics went into abeyance, at least in English-language research.  Then in the later decades of the twentieth century, there was an increase in interest in how institutions shape the incentives and behaviour of economic actors.  The Nobel-winning figures in this ‘new institutional economics’ are Douglass North, Oliver Williamson, and Elinor Ostrom – though of course there are countless other figures within the tradition who didn’t receive the prize.  Anyway, there are a range of different approaches to the economic theorisation of institutions, which are too complex to usefully summarise here.  One major subtradition, though – given a big boost by the explosion in the analytic toolkit of game theory in the later decades of the twentieth century – understands institutions as “the rules of the game” that structure economic life.  From this perspective, to a reasonable first approximation, institutions are rules.

But if institutions are rules, where do the rules come from?  Well, at some abstract enough level (I claim) this is the same basic question that Brandom is asking.  The post-Wittgensteinian analytic philosophical effort to explain what rules are and where they come from seems to me to have major theoretical overlap with institutional economics’ effort to understand the production of the rules that structure economic life.  

Now, I am still working away in the background, reading in political economy, which is of course a vast field.  The probability therefore seems exceptionally high that I have simply not gotten round to reading famous and important work that is doing exactly the kind of thing I’m looking for.  Still, in my (limited but not overwhelmingly meagre) reading to date, it seems to me that the tradition of institutional economics is under-equipped for theorising coercion and domination in rule-formation.  And this claim is sort of at the core of the research I’m currently trying to do in political economy.  So the point I want to make in this post is just as follows: a ‘materialised’ Brandomian apparatus is, at some abstract enough level, addressing the same research problem as my political-economic research.  That research problem is something like: How can we best theorise the involvement of coercion and domination in the formation of rules that structure everyday practice?

Now, obviously this is an amazingly abstract and general research problem.  I’m not suggesting that I’m narrowing down the problem space I’m interested in very far by phrasing things in this way.  Still – internally it feels like progress, to me, to be able to capture these quite diverse elements of my intellectual project under a single research heading, however abstract and broad.  In particular, if you apply the criterion “does this theoretical apparatus have a developed account of the role of coercion in rule-formation?” it’s sort of incredible how many accounts of rule-formation simply fall by the wayside, by failing to meet this criterion.  And yet (I claim) this needs to be a basic criterion of adequacy for having any kind of creditable analytic framework that can be used to understand the world we actually live in.  Here, I guess, I want to appeal to Charles W. Mills’ distinction between “ideal” and “non-ideal” theory.  If we’re going to do “non-ideal theory” then our theory has to accommodate coercion and domination.  And that must apply to our account of the formation of rules in practice.

Ok.  There was more I was planning to say in this post, but I think that’ll probably do.  Let me leave things here – with a statement (however broad and abstract and vague) of this basic research problem.

‘Materialising’ Brandom

I don’t think this post will say much that I haven’t already said in earlier posts on the blog, but I want to try out a different framing for those points.  That framing is: ‘materialising’ Brandom – i.e. making Brandom’s work more ‘materialist’.  I’m going to include my usual caveat up top that there is so much I haven’t read, and my summary of the relevant intellectual traditions is therefore often just cribbing the usual narratives from secondary literature.  Please take this as read.  With that said, let me briefly try out this framing for what I’m doing here.

Analytic philosophy, famously, originates in part with the rejection of Hegelian philosophy as obscurantist rubbish.  Both early UK analytic philosophy (Russell, Moore, etc.), and continental positivism (Carnap, Neurath, etc.), have almost no patience for Hegelian ‘dialectical’ thinking, and are keen to throw it in the dustbin of history – revealed as something close to nonsense by the application of more rigorous analytic standards.  Then, much later, there has been an attempt to ‘reclaim’ Hegel within the analytic tradition, by re-interpreting Hegel’s apparatus using a more analytic toolkit, vocabulary, and sensibility.  I take it that Brandom’s ‘A Spirit of Trust’ is the most important recent work within that analytic Hegelian tradition.

Now – famously the post-Hegelian tradition has multiple schisms.  One such schism is between ‘right’ and ‘left’ Hegelians – those who saw Hegel’s philosophy as defending the political status quo, versus those who saw it as a source of critical resources.  And within left Hegelianism, Marx and Engels polemicise against their fellow/rival critical Hegelians by arguing for a more materialist interpretation or inversion of Hegel’s apparatus.  The starting point for Marxism as a philosophy, then, is the effort to more fully ‘materialise’ this strand of mid-19th-century critical or oppositional Hegelianism.

Flipping back to analytic philosophy – in the late 1970s you get the emergence of a subtradition of ‘analytical Marxism’, which tries to re-interpret Marx’s work using ‘analytically rigorous’ tools.  What tools we’re talking about depends a lot on the analytical Marxist in question – I guess the two main strands within analytical Marxism are those influenced by analytic philosophy and rational choice theory.  But one thing that I think essentially all the analytical Marxists agree on is that Hegel sucks.  (This is part of what marks them out as ‘analytic’ thinkers.)  Hegel isn’t the only target of the analytical Marxists’ “no bullshit” approach – they also have in mind Althusser and other ‘continental’ Marxist theorists – but clearly Hegel is one of the major targets.

In other words, we have two traditions within analytic philosophy – analytical Marxism, and analytic Hegelianism – which are (as of my writing this post, at least) largely non-overlapping.  And this is a bit strange and (to my mind) unfortunate!  Given that Marx is so heavily influenced by Hegel, wouldn’t it make sense to take our ‘analytic’ Hegelianism and see how it can inform our ‘analytical’ Marxism?  And wouldn’t a useful starting point for that project be to take analytic Hegelianism and see what it would mean to ‘materialise’ it – following, at least in a certain sense, Marx and Engels’ practice in their early work?

So that’s what this post – and, in a way, a large proportion of this entire blogging project – is about.  Taking Brandom’s ‘A Spirit of Trust’ as our starting point, what would it mean to ‘materialise’ Brandom?

At this point I want to draw on Charles W. Mills’ early (analytical Marxist) work to discuss two different senses of ‘idealism’ and ‘materialism’.  As Mills (and not only Mills! But he’s the person I’ve been reading recently) argues, there are two different broad senses of ‘idealism’ in Marxist debates about idealism.  On the one hand, there is idealism as a metaphysical or philosophical doctrine: a claim about the ontological status of entities in the world – the claim that these entities are ‘conceptual’ in some sense.  On the other hand, there is idealism as a sociological doctrine: the claim that ideas are the major causal driver of social change.  These categories of doctrine are largely orthogonal to each other.  One could oppose metaphysical idealism but endorse sociological idealism, and vice versa.  (Though these categories of doctrine aren’t necessarily kept as distinct as one might like, in critiques of ‘idealism’!)

There are, correspondingly, two broad senses in which one could aspire to ‘materialise’ Brandom.  First, a metaphysical sense: arguing that Brandom’s metaphysics is too idealist in that it gives too great an ontological standing to the ideal or conceptual.  Second, a sociological sense: arguing that Brandom’s account of social practice gives too great a causal efficacy to conceptual (or linguistic) practice as against other forms of social practice.  Again, these arguments are orthogonal to each other – one could endorse neither or either or both without incoherence.

As it happens, I want to endorse both arguments.  I want to say that Brandom’s work is at once too metaphysically idealist and too sociologically idealist.  But both of these claims need to be quite heavily caveated.  As I discussed in the last post in this series, I think there are at least five different ways in which one could characterise Brandom’s work as ‘idealist’.  In at least one major way, this accusation is straightforwardly false – Brandom does not and has never argued that the existence of objects of perception or representation is dependent on their perception or representation.  That is to say: Brandom emphatically does not believe that the world is mind- and language-dependent.  But Brandom does endorse a ‘conceptual realism’ – claiming that the mind- and language-independent world is conceptually structured – and I’ve argued that we should also reject this claim.  I’m not going to recapitulate those arguments here again (as I say, this post is largely about ‘framing’) – but that’s the metaphysical side of things, in a nutshell, as I see it.

Where I want to spend most of my time on the blog going forward, however, is on the ‘sociological’ side of things.  That is to say: let’s assume we bracket completely the metaphysical question of the precise ontological status of the mind-independent objects of perception and reference.  (I have opinions on this question, as I’ve discussed at some reasonable length, but those opinions are largely irrelevant to this ‘sociological’ line of thought.)  And let’s say that we grant the core pragmatist argument that our philosophical categories can be explained as products of social practice.  In particular, let’s say that we grant the argument that norms are instituted by social practice.  Now the question becomes: what kinds of social practices?  And here, as I argued in the last post in this series, we can break with Brandom on the issue of ‘sociological’ idealism vs materialism.

As I’ve already said, Brandom’s own work is overwhelmingly focused on two specific categories of social practice.  First, Brandom is interested in linguistic practice.  Second, Brandom is interested in ‘wholly normative’ forms of sanction.  If we are going to ‘materialise’ Brandom, in sociological sense, we need to shift both of these emphases.  We need to look at the way in which a) non-linguistic practices, and b) sanctions that are not wholly normative, contribute to the institution of our norms.

I should probably note here that I think this shift is basically a shift of emphasis, or research focus.  My disagreements with Brandom about ‘metaphysical’ idealism are actual philosophical disagreements – my commitments in this space are incompatible with Brandom’s, in some (arguably relatively minor, but important) respects.  Either Brandom is right that we have good philosophical reason to commit ourselves to ‘conceptual realism’, or I am right that there is no such good philosophical reason – it’s hard to see how we could both be right.  I don’t think that’s the case along this ‘sociological’ dimension of argument.  Brandom is, first and foremost, a philosopher of language – he is interested primarily in linguistic practice.  This is (obviously) entirely legitimate and good!  There is no reason why Brandom should be obliged to interest himself in other forms of practice!  Different people simply have different research interests. Along this sociological dimension of argument, then, I take myself to be extending Brandom, by applying his metatheoretical toolkit to other research questions – I don’t take myself to be disagreeing with him.

Ok.  Now.  When Marx and Engels, in ‘The German Ideology’, began the Marxist project of ‘materialising’ mid 19th-century critical Hegelianism, they did so with an emphasis on economic practice.  It’s a long time since I read ‘The German Ideology’, and I want to register the risk that its actual arguments have now been jostled out of my mind by poor summaries of those arguments in the secondary literature.  Still, it seems fair to say that one of the key dimensions of Marx and Engels’ argument is something like the following.  Yes (the argument goes), critical Hegelians have understood, from Hegel, that all our categories and institutions are contingently socially constituted.  And yes, they have taken from this insight the idea that we can contest all our inherited ideas and institutions, remaking them in a more emancipatory direction.  But (the argument goes) the critical Hegelians have grievously misjudged which social practices are truly central in the formation of our categories and institutions.  It is not (in the sociological sense) ‘ideal’ practices that are most important (that is to say: cultural and intellectual practices).  Rather it is (in the sociological sense) ‘material’ practices (that is to say: the day-to-day practices of our economic lives).  

For Marx and Engels, then, the critical Hegelians believe that they are incisively challenging ideological structures by revealing those structures’ contingent formation by social practice.  In this sense, the critical Hegelians are already ‘materialist’ (in the sense that they are already practice theorists in some sense).  (Alternatively, in Brandom’s reworking of Hegel’s vocabulary, they are ‘conceptual idealists’, again basically meaning practice theorists – the terminological diversity here is very confusing, but ultimately not all that important, I think.)  From Marx and Engels’ perspective, however, the critical Hegelian project is incomplete, because the critical Hegelians have a hold of the wrong category of practice.  They are idealists in the sociological sense of over-emphasising ‘ideological’ (philosophical, linguistic, cultural) practice, and underestimating the extent to which their own thought is formed by categories of practice they have no interest in – especially, economic practice.

One key dimension of the Marxist project, then, is to show how banal, mundane, economic practices are extremely important in the formation of our ideas, institutions, and norms.  By failing to look at the role of these kinds of practices in norm-formation, philosophers are blinding themselves to key explanatory dimensions of an adequate post-Hegelian account of the emergence of normative or ideal content.

Here I want to pause to note that, although I’m pivoting off of Mills’ early work, all discussions of Marx on this blog are extremely heavily informed by N. Pepperell’s work – and this line of thought is no exception.  To a large extent, I take it that what I’m doing with this line of thought is articulating a vastly cruder version of arguments that N. has already made with much greater sophistication in ‘Disassembling Capital’, and elsewhere.  A PDF of ‘Disassembling Capital’ is here – I really can’t recommend it highly enough.

Now, with that very large influence made clear – one of the overarching claims I’m making here is that there are two steps to (this aspect of) the Marxist argument.  The first step is: practice theory.  That is to say: our ideals are made by social practice.  This argument can be straightforwardly read off of Hegel, assuming you have a broadly pragmatist reading of Hegel.  The second step is: sociologically materialist practice theory.  That is to say: economic practice plays a much more central role in the formation of those ideals than philosophers have acknowledged.  Philosophers are focusing on the wrong kinds of practice.

To repeat, and as Mills says, this second point is a sociological one about the causal influence of different kinds of social practice in the formation of norms and institutions.  And one of the huge problems with the Marxist tradition is that it has, notoriously, often gone massively overboard on the ‘economic reductionism’ side of things.  The claim that philosophers (and intellectuals more generally) have radically underestimated the importance of economic practice in the formation of normative structures (both ideological and institutional) has frequently been articulated as the much stronger claim that ‘economic forces’ are the sole – or overwhelmingly the most important – causal driver of all human history and ideology.  The notorious ‘base/superstructure’ distinction has often been articulated as a strong reductionism of almost all human activity to the economic dimension – a claim that everything is really about economic forces, and all other elements of human society are something like an illusory veil that can be pierced by the science of historical materialism.  Then there are reactions against this crude reductionism, within the Marxist tradition: arguments about the ‘relative autonomy’ of the superstructure, or the importance of cultural factors in the Gramscian ‘war of position’, and so on and so forth.

These debates are, in my view, often hugely unproductive.  Ironically, perhaps, Marxists or historical materialists who take this kind of economically reductionist line have often ended up as something like the mirror image of the ‘ideologists’ they are opposing.  By refusing to countenance a substantial role for non-economic factors in norm-formation, these Marxists are willfully blinding themselves to the central role that a very wide range of kinds of social practices play in the production of ideas and institutions.  Moreover – as has been witheringly articulated by feminist and critical race theorists – this kind of approach often isn’t even good for articulating an emancipatory politics.  By insisting that ‘economic’ factors are the core determinant of all other ‘superstructural’ elements of social life, Marxist economic reductionists are often, and again notoriously, dismissive of emancipatory struggles that do not centre class.  Thus movements focused on forms of feminism, anti-racism, sexual or gender identity politics, and other ‘non-economic’ forms of oppression can be dismissed as ‘superstructural’, epiphenomenal, derivative or secondary.  Obviously this kind of argument comes in more or less aggressive forms, but hopefully it won’t be controversial that this is at least a significant tendency within economically-focused Marxist theory. (Of course, it’s not the only tendency within the Marxist tradition – but I think it’s well worth highlighting this as a risk when we are talking about sociological ‘materialism’ with reference to Marxism.)

Ok – so we don’t want to be doing any of that.  When we talk about the sociological version of ‘materialising’ analytic Hegelianism, we need to be clear that there are a whole lot of different ways in which one can choose to emphasise non-linguistic practice.  I want to leave this extremely open, at the ‘metatheoretical’ level, at least for now.  The argument is not that by ‘materialising’ the practice-theoretic or sociological dimension of the analytic Hegelian position, we are committing ourselves to any specific form of sociological causal story.  The argument, rather, is that we want to open the Brandomian apparatus up to the whole range of sociological stories that are available in this kind of critical-theoretic space.  What those critical sociological stories have in common, as I see it, is that they make available relations of domination as central explanatory categories.  

And this, broadly speaking, is what I want to think about on the blog, going forward, in the Brandomian element of the project I’m pursuing here.  The Brandomian apparatus looks at normative attitudes that sanction practice by shifting the normative status of the object of the sanctions.  The ‘force’ that Brandomian social actors are primarily vulnerable to, in this model, is the ‘force of the better reason’.  What happens to the Brandomian apparatus when we introduce other forms of sanction – in particular, coercive sanction?  I think we need to have an answer to this question, if we are to develop any kind of serious Brandomian critical theory, of whatever kind.

Five kinds of idealism in Brandom

I’m worried I won’t get this down if I spend too long on it, so I’m going to be amazingly quick and schematic.  I want to sketch five different forms of idealism that people could object to in Brandom’s work.  Then by specifying which of these critiques I do and don’t agree with, I think I may be able to articulate more clearly where I’m building on and where I’m breaking with Brandom in the lines of thought I’m pursuing here.  From the top:

1. Naive idealism

This is the idea that the world is in some sense (as Brandom would say it) reference-dependent on its representation.  This could be a Berkleyean idealism, or it could be some kind of linguistic idealism.  The core point is reference-dependence of the ‘noumenal’ on the ‘phenomenal’.

I feel like this charge was levelled at Brandom a fair bit after ‘Making It Explicit’ was first published, and that it’s largely gone away now, as Brandom has clarified his position in ‘A Spirit of Trust’.  Brandom is clearly not an idealist in this sense – he couldn’t be clearer that he takes it for granted that the world is not reference-dependent on our representations of the world.  Most of the universe could have existed even if sapient creatures never perceived it, etc. etc.  This critique can just be dismissed.

Now come the three ‘stages of idealism’ that Brandom articulates in ‘A Spirit of Trust’, in his reconstruction of Hegel.  These are:

2. Conceptual realism
3. Objective idealism
4. Conceptual idealism

I want to summarise these as a bundle, and then discuss them separately.  Conceptual realism is the position that the world is conceptually structured.  In Brandom’s account, this takes the form of a ‘bimodal hylomorphic conceptual realism’, in which deontic normative relations (among thoughts) can in principle map perfectly onto alethic modal relations (between objects).  This is a ‘non-psychological conception of the conceptual’ – broadly analogous to Aristotle’s account of how form is shared by thought and matter, or the early Wittgenstein’s ‘picture theory’ of meaning.  Brandom thinks he can make the case that an account of this kind is a precondition of a non-dualistic semantics: a semantics that makes intelligible the possibility of knowledge.

Then the next claim is ‘objective idealism’ – this is the claim that the two sides of this bimodal hylomorphic account are reciprocally sense-dependent.  That is to say: we cannot make sense of the objective structure of the world without adequately understanding the structure of our thought, and vice versa.

Then the final claim is ‘conceptual idealism’ – this is the claim that our explanatory apparatus for analysing the structure of our thought must, at base, be pragmatist.  Our semantics is explanatorily downstream from our pragmatics, and thus pragmatism grounds our ability to make sense of all the preceding categories.

Now – I want to reject the first of these positions, ‘conceptual realism’.  I’ve already written about this in my post on fallibilism – and then again in my post on the metaphysics of presence in A Spirit of Trust.  So I don’t want to recapitulate those arguments here – I’m trying to be super brief in this post.  But I think conceptual realism is a complete non-starter from a metaphysical point of view – from my perspective this is the most disappointing element of ‘A Spirit of Trust’, and represents a dramatic regression from the account of objective reference Brandom developed in ‘Making It Explicit’.  I think conceptual realism represents a form of idealism, in the sense that it just fiats that there is nothing in the world that cannot in principle be conceptually grasped, and I don’t see any reason to believe that this is the case.  Ok.

Then ‘objective idealism’ is sort of dependent on conceptual realism – if we reject conceptual realism then objective idealism is kind of moot, because it is an account of the sense-dependence relationship between the two halves of the ‘picture theory of meaning’ articulated in conceptual realism, and we’ve just rejected that picture theory.  So objective idealism kind of falls by the wayside as irrelevant if, as I’m recommending, we reject conceptual realism.

Then conceptual idealism.  Conceptual idealism, as I understand it, basically amounts to the argument that semantics is explanatorily downstream of pragmatics.  I think this is good and correct.  We can therefore, perhaps ironically, retain ‘conceptual idealism’ (though I would prefer just to call it “grounding semantics in pragmatics”) while rejecting conceptual realism and objective idealism.

Then the question becomes “what is our pragmatics?”  Here we come to the fifth sense of idealism I want to talk about.

5. ‘Sociological’ idealism.

I was just reading an early essay by Charles W. Mills on historical materialism, in which he contrasts “ontological” and “sociological” materialism (and idealism).  For Mills, ontological idealism and materialism are metaphysical claims about the kinds of entities that exist in the world; sociological materialism is a claim about what kind of social practices are most causally efficacious in history.  Now, Mills’ schema is a bit crude, and he (at this point in his career) in my view has too-simplistic accounts of both sides of this schema.  But that’s not really the point.  The point is that if we grant the explanatory primacy of social practice (pragmatics), then the question becomes: what social practices are the most important ones in determining our norms?  Brandom’s work is overwhelmingly focused on a) linguistic practice; and b) wholly normative sanctions.  But what about non-linguistic practice and non-normative (or non-wholly-normative) sanctions?  If we start foregrounding those kinds of practices, then our “conceptual idealism” (i.e. pragmatism) becomes less idealist in the sociological sense.  And I also recommend this shift of emphasis.

So, to sum up, I’m claiming there are five different kinds of ‘idealism’ that could be seen as operative in Brandom’s work.  By my lights: Brandom rightly rejects ‘naive’ idealism; he wrongly embraces conceptual realism; objective idealism is sort of moot, if we break with Brandom on conceptual realism; Brandom is right to endorse conceptual idealism (though I don’t really see the virtue in calling it that); and his account of social practice is ‘sociologically’ idealist in the sense that it is uninterested in non-linguistic practice.

So I am recommending (or at any rate engaged in) two distinct breaks with Brandom’s apparatus.  The first is the rejection of conceptual idealism in favour of (what I see as) a more thorough-going fallibilism.  This is a sort of metaphysical and epistemological disagreement (or, from my perspective, a rejection of metaphysics).  The second is more ‘sociological’ – it is a matter of what social practices we choose to emphasise or analyse, in our pragmatist account of the institution of norms.  And it’s this second project that I’m now pursuing, in thematising the role of coercion in norm-formation.

A caveat on the institution of normativity

Ok – in the last post I summarised what I see as the core argument of the first chapter of ‘Making It Explicit’.  I argued that this argument has two elements.  First, Brandom makes the case for a thoroughly pragmatist understanding of normativity, in which norms are instituted by social practices via sanctions.  That is to say: for Brandom, sanctions are the core of his explanatory approach.  Second, Brandom argues that we should not understand those sanctions in ‘reductive’, ‘naturalistic’ terms – rather, the kind of sanctions Brandom is interested in are normative sanctions.  Normative sanctions operate by shifting social actors’ entitlements, not by imposing a ‘material’ penalty that enters into some pleasure-and-pain instrumental cost calculus.  On the one hand, then, Brandom is advocating a pragmatist reduction of norms to practices; on the other hand, Brandom is arguing that this reduction cannot reductively naturalise norms, because the sanctions that form the explanatory bedrock of his account are themselves already normative.

Now, the last time I covered this material thoroughly on the blog – more than a decade ago now – I was trying to push back against what I saw (and still see!) as a common misreading of this second step of Brandom’s argument.  I was trying to argue then that, although, yes, it’s true, Brandom is ‘anti-naturalist’ in this specific sense, he is not in fact anti-naturalist in the way that most people would, I think, understand that term.  The normativity that Brandom sees as ineradicable is not itself exactly explanatorily fundamental.  Rather, Brandom sees normativity as an emergent property of our system of social practices as a whole.  We cannot (as participants in this system) treat any specific moment of that system as the non-normative ground from which normativity derives – but that’s because it’s the system as a whole that is instituting normativity.  We shouldn’t be misled, then, (I argued – and argue!) by Brandom’s critique of reductive naturalism into thinking that his is a fundamentally anti-naturalist account.  Rather, Brandom is criticising a specific form of reductive naturalism, which thinks that the chain of institution of normativity can ever end at a non-normative foundational point.  When we follow any given chain of sanctions, we cannot assume that we will find a non-normative sanction at its origin.  But that doesn’t mean that normativity in general is magical somehow – it just means that it is an emergent phenomenon instituted in the first instance at a systemic level, rather than a phenomenon instituted by any specific non-normative act.

Ok – so this is an important caveat that I think needs to be highlighted when we talk about Brandom’s discussions of naturalism and non-naturalism.  I feel like ‘A Spirit of Trust’ is a bit clearer on this score than ‘Making It Explicit’, and one sees less of this misunderstanding recently than one did before ASOT was published.  But maybe I’m imagining that – it’s not like I’m on top of the secondary literature on Brandom.  (One day! One day!)  In any case, I just wanted to insert (or reiterate) this caveat before moving on to a broader discussion of normative versus non-normative sanctions in Brandom’s work.

Normative and non-normative sanctions

Ok – my goal here, as I said in the last post, is to start thinking more seriously about coercion within a Brandomian apparatus – and I am ‘giving myself permission’ to flail around pretty wildly in doing so.  In this post I want to start “going back to the beginning” – the first chapter of ‘Making It Explicit’, in which Brandom outlines some of the basics of his normative pragmatics.  I ought to do a truly careful close re-read of this chapter, but I’m just going with a straightforward re-read for now.

Brandom cites a Haugeland paper on Heidegger as a representative of the broad analytical approach he is critically endorsing and extending.  I finally got around to reading that paper today, but Haugeland’s remarks are, to be honest, so underdeveloped relative to Brandom’s own account that I think it’s best to just stick with Brandom’s account, treating it as its own thing.  I feel like I discussed Brandom’s discussions of regulism and regularism ad nauseum on the blog a decade or so ago, so I’m going to skip over those now.  Once we get past that framing of the problem space, then, I want to break Brandom’s argument down into two very broad stages (each with many subcomponents).

Stage one: Brandom endorses a sanctions-based account of the institution of normativity by social practice.  Here I’m going to quote Brandom at some reasonable length.  Here is Brandom summing up after his discussion of Haugeland:

The approach being considered distinguishes us as norm-governed creatures from merely regular natural creatures by the normative attitudes we evince – attitudes that express our grasp or practical conception of our behaviour as governed by norms.  These normative attitudes are understood in turn as assessments, assignments to performances of normative significance or status as correct or incorrect according to some norm.  The assessing attitudes are then understood as dispositions to sanction, positively or negatively.  Finally, sanctioning is understood in terms of reinforcement, which is a matter of the actual effect of the sanctioning or reinforcing responses on the responsive dispositions of the one whose performances are being reinforced, that is sanctioned, that is assessed. (35)

Now here is Brandom summing up his summary:

The fundamental strategy pursued by such a theory is a promising one.  As here elaborated, it involves three distinguishable commitments.  First, Kant’s distinction between acting according to a rule and acting according to a conception of a rule is taken to express an important insight about the special way in which we are normative creatures.  Second, the pragmatist regress-of-rules argument is taken to show that in order to make use of this insight, it is necessary that the sort of normative attitude that Kant takes to play an essential mediating role in our government by norms be understood as involving implicit acknowledgement of norms in practice.  Specifically, it is necessary to make sense of the idea of practically taking or treating performances as correct or incorrect.  Third, taking or treating performances as correct or incorrect, approving or disapproving of them in practice, is explained in terms of positive and negative sanctions, rewards and punishments.  This tripartite strategy is endorsed and pursued in the rest of this work.  There are reasons not to be happy with the regularist way of working it out [i.e. Haugeland’s] that has just been sketched, however. (35-6)

Ok.  I feel like I’ve spent countless hours of my life unpacking this kind of stuff on the blog already, so I’m not going to do so again at length here.  Brandom is saying, basically 1) what picks out sapient creatures is that we are bound by rules-as-norms, not just rules-as-laws-of-nature; 2) those rules are instituted in social practice – specifically, by normative attitudes which treat actions as correct or incorrect (as following or not following a rule) in practice; 3) the way in which normative attitudes treat actions as correct or incorrect is by sanctions.  In other words, Brandom is building in sanctions at the very foundation of his entire explanatory apparatus.  This is, fundamentally, a sanctions-based account of normativity.

That’s part one of Brandom’s argument in this chapter.  We can see this first part of the argument as radically ‘deflationist’ or strongly pragmatist.  The argument thus far is explaining apparently mysterious or metaphysical entities (norms) entirely in terms of social practice.  Thus far, then, we might take Brandom to be engaged in a form of ‘naturalised epistemology’, in which normativity is explained in wholly naturalistic terms – and indeed, in a certain sense, Brandom is indeed doing this.  But now comes part two of the argument.

In part two of the argument Brandom (so to speak) changes tack, and starts ‘rowing away’ from what one might take to be the strongest available form of deflationary naturalism.  Here again I’m going to quote from Brandom at reasonable length.  Now we’re on pages 42-43.

In this connection it is important to realize that it is one thing to understand practical assessment as sanctioning, and quite another to understand sanctioning in nonnormative terms such as reinforcement.  A retributive approach to the normative need not be given a naturalistic turn at all.  Defining normative attitudes in terms of dispositions to impose sanctions does not by itself reduce the normative to the nonnormative – it just trades off one sort of norm for another.  At the most basic level, to reward someone is to offer some good (either objectively or subjectively), and to punish them is conversely to inflict something bad.  Benefit and harm, desirable and undesirable, are concepts that also have normative senses.  Indeed, these senses would seem to be primary, so that some sort of reductive hypothesis would be needed to naturalize them.  To turn the retributive story about normative attitudes into a naturalistic one, an account might for instance understand what is good (and so rewarding) in terms of what is desirable, what is desirable in terms of what is desired, and what is desired ultimately in terms of what is pursued.

Commitment to such a reduction is optional.  Positive and negative sanctions may consist in acclaim and censure that itself has only a normative significance.  A correct action might be rewarded by the grant of some extraordinary privilege or by the release from some onerous obligation – and the status of such a response as reward need not depend on whether the one rewarded would in fact have been disposed to act so as to fulfill the obligation had it not been lifted.  An incorrect action might be punished by withholding a license to act in certain other ways or by imposing an extraordinary obligation – and the status of such a response as punishment need not depend on whether the one punished is in fact disposed to refrain from acting even without the boon of entitlement, or is in fact disposed to act so as to fulfill the obligation imposed.  In such cases one is rewarded or punished for what one does “in another world” – by a change in normative status rather than natural state. (42-3)

Ok.  I think it’s worth elaborating in slightly more detail the theoretical move that Brandom is making here.  To do this, it’s worth being clear about the kind of position that Brandom is here differentiating himself from.

Let’s say we grant the position that Brandom endorses in part one of his argument in this chapter. (And I do in fact endorse that position!)  That is to say: an account of normativity that is, fundamentally, grounded in sanctions.  It would seem the most natural thing in the world to move from this position to a non-normative understanding of sanctions.  For example (as Brandom says) we might choose to understand the efficacy of sanctions in terms of the pleasure or pain they induce.  Then (the reasoning would go) we can reconstruct the entire apparatus of instituted normativity on the basis of a utilitarian calculus of pleasure and pain that can (we might argue) be understood in wholly naturalistic terms.  We could even go a step further, and build our entire apparatus on the basis of empirically-describable behavioural dispositions, without even the utilitarian subjectivism needing to get involved.  In this way we have given a full account of the institution of normativity in terms of wholly non-normative categories.

Now – this is interesting in part because the utilitarian version of this approach is basically what modern economics does.  That is to say, the entire marginalist and game-theoretic formal apparatus of modern economics is grounded in the idea that we can analyse human behaviour in terms of instrumental rationality oriented towards some kind of specifiable individual-level preference function.  From a Brandomian perspective, this is a reductionist naturalistic account.  (And this is the case even if we might have doubts about the empirical adequacy of this approach – and even if we regard this approach as ‘idealist’ in something like the Marxist sense.  These are all orthogonal issues.)  We can, in other words, draw a sharp distinction between a social-theoretic approach grounded in a pleasure-and-pain calculus and instrumental reason, and a Brandomian normative pragmatics, which has a non-instrumental understanding of reason at its core.

So if we were to adopt this (naturalistic, reductionist, non-Brandomian) approach, we might for example see the sanction associated with transgressing a norm as grounded in “beating people with sticks” – i.e. inflicting some sort of pain-based punishment.  Then the norm is ultimately explicable in those ‘naturalistic’ terms – because the sanction in question can be explained naturalistically.  Brandom is drawing a distinction between this kind of (pain-and-pleasure-based) sanction, and a sanction the substance of which is itself normative.  In the case of a sanction that is itself normative, the ‘punishment’ involves simply a shift in the set of rights and obligations that the social actor in question is taken to enjoy.  For example (as Brandom says), an additional set of obligations might be imposed on the social actor in question.

Now, what if the social actor transgresses those norms (those obligations) in turn?  Here, again, there are (Brandom argues) two available forms of sanction: normative and non-normative.  In the case of a normative sanction, the sanction in question is again just a shift in the social actor’s normative statuses, without necessarily any accompanying pleasure-and-pain-based sanction.  In the case of a non-normative sanction, it’s the pleasure and pain that are doing the work.

Assume then that once again we impose a normative (rather than a non-normative) sanction.  What if the social actor transgresses these newly-instituted (now third-order) obligations?  Here again other social actors can decide whether to impose a normative or a non-normative sanction.  And so on and so on.

The picture Brandom is painting then goes as follows: when we impose normative sanctions, we can create a chain of normative sanctions that in principle continues indefinitely.  Or, at any given point in that chain, we can choose to impose a non-normative sanction instead.

And this analysis makes available two different kinds of explanatory account.  On the one hand, we can argue that chains of normative sanctions must ultimately be ‘grounded’ in a non-normative sanction.  In this scenario, we could argue, the non-normative sanction expresses the final ‘true’ sanction, the reality of which then retroactively flows ‘back up’ the chain, explaining all preceding normative sanctions in non-normative terms.  Alternatively, we could propose an account in which chains of normative sanctions need never terminate in a non-normative ‘ground’.  These two kinds of account, therefore, replicate the fundamental distinction between ‘reductionist’/naturalistic/pleasure-and-pain-based accounts of normativity, and accounts of normativity that – while pragmatist – are not reductionist in this sense.  This latter kind of account can never be reduced to (for example) a utilitarianism-plus-instrumental-reason account of normativity.

Brandom, of course, endorses the non-reductionist (in this specific sense) approach.  Brandom is interested in a theoretical approach in which normative sanctions can never be reduced to non-normative sanctions – in which the normativity never ‘goes away’.  Brandom’s is, fundamentally, a normative pragmatics – he thinks that you can’t get rid of the normativity, and replace it with a fully naturalistic pragmatics, without losing something critical.

Now – this position itself needs to be qualified in important ways.  (Among other things, this argument has confused a lot of people about the sense in which Brandom’s account is non-naturalistic.  Brandom is emphatically not – repeat not – suggesting that there is anything magical going on here; rather, he is, I believe, arguing the much more technical point that our normative categories cannot be translated into non-normative vocabulary without a loss of sense.  But this isn’t really relevant to the line of argument I’m trying to pursue here.)  Nevertheless, I think this sketches the basic opposition that Brandom is drawing in these passages.

In the next post in this series, I want to start picking away at this opposition, and this set of arguments, informed by the perspective of Charles W. Mills-style “non-ideal theory”.