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.