Friday, July 21, 2017

Evening Note for Friday, July 21

Thought for the Evening: 'The Normative Jinx'

Christoph Kletzer has a very interesting, although ultimately baffling, paper on what he calls "the normative jinx." The argument in its barebones is that two positions, normative monism and legal/moral incompatibilism are inconsistent with each other, although there is good reason to think both true, and therefore, as he says in the abstract,

if we take law to be valid, then there is no moral point of view from which to assess the law; if we consider morality to be valid, there cannot possibly be valid law that could be the object of moral assessment.

Needless to say, this is a somewhat surprising claim, deserving a closer look. Without being too rigorous, here are some issues I have with the argument as Kletzer lays it out.

(1) Normative monism is the opposite of normative pluralism, and normative pluralism is the claim that one can have two or more normative systems that have their validity independent of each other. He then concludes that for a normative pluralist, it must be true that there could be independent normative systems with no normative relation to each other. I am not convinced that this a good inference. Whether normative systems can have no normative relation to each other is distinct from the question of whether the sources of their validity as normative systems are independent, and the two positions should not be conflated even if they tend to go together.

(2) Kletzer opens his argument that we have good reason to be normative monists by looking at legal monism -- a legal monist denies that you can have legal norms that do not stand in some kind of legal relation to each other. He recognizes that this at first seems to be an odd claim; Imperial Chinese law seems to be quite independent of Imperial Roman law, being separated geographically and having no overlapping jurisdiction or even jurisdictional claim, and one could posit that they operated in perfect ignorance of each other without any obvious contradiction. Kletzer seems to take this to mean that in Imperial Roman law, Imperial Chinese law is not law, and vice versa, but this is an odd interpretation. Ex hypothesi, the two simply have no judgment one way or another about the other; it's not that the Chinese legal system has a legal norm that what the Romans call law is not a law -- it has no legal norm with respect to it at all. This is not fatal to Kletzer's argument, since he actually is interested in the claim that they are simultaneously valid, but it is an odd move nonetheless.

Kletzer then goes on to claim that if we say that Roman law only applies in the geographical area of Rome, and Chinese law only applies in the geographical area of China, that this implies that "legally the applicability of certain norms is limited to certain regions" (my emphasis). This seems to assume that the only limitations for the applicability of the law are legal, but this is certainly false. American law doesn't apply to the interstellar dust of the Andromeda galaxy, but this has nothing to do with a legal limitation; it's just a combination of a spatial limitation (instruments of American law have no presence in Andromeda galaxy) and a technical limitation (no one has ever worked out a way to apply American law in Andromeda galaxy) and a psychological limitation (it doesn't occur to anyone to treat American law as applying in Andromeda galaxy, so that there are no American legal norms whatsoever about interstellar dust in the Andromeda galaxy). American law doesn't apply to thirteenth century Australia because Americans don't have a time machine; it doesn't apply past the extinction of the human race or the end of the world because there won't be any Americans then -- and, indeed, its temporal limitation is likely to be far closer to our time than to the extinction of the human race. In the Roman-Chinese case, the limitations of legal norms are spatial (far apart) and epistemic (ignorant of each other), not legal.

Kletzer doesn't consider temporal, epistemic, technical, or psychological limitations, but he does consider the spatial limitation, and argues that this cannot be a limitation of law unless it is given legal significance because different parts of the Roman empire are also far apart. Thus mere distance doesn't work to limit law. But this seems to me to miss the point (beside the fact that it doesn't address the other limitations that are operative in the separation); Germania Inferia and Arabia Petraea are separted by distance, but their legal systems aren't -- Roman law exists in both. The problem raised by spatial limitation is that legal systems do not appear to be the kind of thing that we could say is diffused over the entire universe. Roman law exists and is operative in Germania Inferia and Arabia Petraea; it is neither existent nor operative in the Qing province of Han China. American law doesn't just legally restrict itself from being in Andromeda; it doesn't exist or operate there at all. American legal norms are not present in Andromeda. If we held that American law were something like a Platonic Form, perhaps we could say that it doesn't itself have a spatial presence anywhere, but legal platonism is bound to be a somewhat controversial metaphysics.

One can, of course, have an overarching law that governs both the Roman and the Chinese whether they know about each other or not -- every natural law theorist holds that there is such a thing. But without some such position, I don't see that Kletzer has actually established what he set out to establish.

(3) Kletzer then moves to argue normative monism by dropping the 'legal' from his argument for legal monism. Ironically, I think this ends up being vastly more plausible simply because moral platonism is a more plausible position than platonism about positive law. However, I still don't see how the applicability argument is supposed to work here -- that is, the position itself has quite a bit of plausibility, but it doesn't seem to have it because of the applicability argument.

Kletzer considers moral norms and norms in the games of chess. Then, on analogy with what he said about laws, there has to be "some kind of allocation of applicability", and that this would have be a rule, and that this would then unite the two normative systems. But, again, not every limitation of the rules of chess is a rule of chess. (It's an interesting, and I think difficult, question, whether every limitation of the rules of morality is a rule of morality. 'Ought implies can' probably gives us the limitation of morality that is most plausibly not a rule of morality; but it is not actually clear that it is not a rule of morality. The reason is that, unlike the rules of chess or American law, we typically take moral law to be a pure, ideal, eternal thing.)

If we take a less fraught example, we might take the rules of chess and the rules of Tổ tôm, which is a Vietnamese card game, neither of which seems to have anything to do with each other. It is not a rule of chess that it is not Tổ tôm; it is not a rule of Tổ tôm that it is not chess; neither game has any rules that address either; the two are not typically played together, and at least at some point in their history the players of each could be said to be always wholly ignorant of the other. They are normatively related, since they are both governed by norms of practical reason -- this is essentially like being a legal monist because you are a natural law theorist. But this has nothing to do with their spheres of applicability.

(4) As I am both a legal monist and a normative monist in Kletzer's sense(s), the more interesting question for me is the supposed legal/moral incompatibility. The crux is here:

What distinguishes law from chess is that whilst chess, just as morality, is a static normative system, the law is a dynamic normative system. This means that the law has a different mode of individuating or applying its content: whilst the content of rules of morality and chess are individuated or applied by way of thought or reflection, the law’s content is individuated and applied by way of decisions, or acts of will.

I don't like this terminology, but let's keep it. The normative system of chess is 'static' not in the sense that it doesn't change but that there are no rules for changing the rules of chess; but 'law' is 'dynamic' because it involves legal norms about changing legal norms. And morality, Kletzer argues, is static.

Let us assume that law is dynamic. There is good reason to argue that neither chess nor morality are static in Kletzer's sense. If we're talking about standard tournament chess, the rules are determined by the FIDE Rules Commission, and the normativity of FIDE decisions about the rules is just part of tournament play. The rules of tournament chess are highly stable, but the regular norms involved include norms governing rule changes. And there are at least two cases of normative systems that are treated in some moral theories as moral norms but which are known to undergo change, and appear to do so due to pressure from higher moral norms -- etiquette ("lesser morality", as Hume calls it) and law itself.

Etiquette is an interesting case here, because the norms of etiquette seem to get their validity from moral norms, but it is typically part of the norms of etiquette to adapt etiquette to the situation, and therefore its norms are dynamic in Kletzer's sense. Emily Post tells us, for instance, that "a first rule for behavior in company is 'Try to do and say only that which will be agreeable to others' (Emily Post, Etiquette, Funk & Wagnalls, [New York: 1945] p. 41). Given how it is interpreted, this is quite clearly a rule for modifying, making, and discarding etiquette norms according to the company in which one finds oneself. Likewise, she says, "Not to attract attention to oneself in public is one of the fundamental rules of good-breeding" (p. 49), but this also functions as a rule for shifting norms of etiquette when one counts as being conspicuous changes. Similarly, Post notes that the head of the table is always the hostess; thus all norms governing seating are relative to where the hostess chooses to seat, and are modified according to this choice, and likewise, the direction of service is determined by the hostess in accordance with what is practical given the layout of the room and the nature of the table -- and her choice becomes a norm for that dinner party. But Post also takes etiquette to be an ethical system, containing social ethics (the moral code of gentlemen and ladies) as an immutable governing part. Thus if Post is right about etiquette, it is a dynamic system involving moral norms, and it does not seem far-fetched to call it a dynamic system of moral norms. Kletzer's argument, if sound, would make this impossible.

(5) I don't really follow Kletzer's attempt to neutralize the natural law objection to his claim that law and morality are incompatible normative systems; the argument seems to require a legal positivist account of law, which is precisely one of the things a natural law theorist would deny. He holds that the doctrine of legal force implies that as soon as morality allows law, it allows the violation of morality. But I don't see why this is so, and nothing that he says clarifies how this is supposed to work. It's true that in law faulty and erroneous laws can be laws; these are handled in natural law theory, for instance, by the doctrines of tolerance and of scandal. What natural law theory denies is that positive law can both be law and directly require (not just allow) that moral law be violated, no matter how much we call it law. But (1) at least as it is laid out, Kletzer's argument seems to involve the assumption that any kind of wrongness of law would be enough to generate a violation of morality, which is false on any view; and (2) Kletzer's argument seems to take only legal appearances into account -- i.e., that we still call these things laws and that people sometimes try to treat them as such.

(6) Kletzer doesn't consider any cases, as far as I can see, where there are plausible overlaps. It's a plausible moral norm that we ought to obey laws when we can do so without deliberately violating moral norms; some legal norms seem to make direct appeal to moral norms (norms about moral turpitude, for instance, or about the need for good moral character to become a U.S. citizen, or in the conflict of interest law governing the U.S. civil service, or in the constitutional norm that the President should execute the laws 'faithfully' -- which certainly sounds like a moral term). This is surely relevant to the claim that the two are incompatible.

(7) And perhaps worst of all, Kletzer makes the mistake so many philosophers of law make: he does not consider how legislative deliberation works. This is a very serious flaw that seems to run throughout most of philosophy of law, which tends to take the law as just given rather than something deliberated over and then deliberately constructed for political and moral ends.

Various Links of Interest

* A lost version of the Analects of Confucius has been discovered in a Chinese tomb. The standard version of the Lun yu was made during the Han dynasty by Zhang Yu, who is known to have had at least two distinct versions before him -- that of Qi and that of Lu. He used Lu as a template and then added Qi material to it, and this is the version that was preserved. What they've discovered appears to be the original Qi text, although perhaps it is a variation of it. It was actually unearthed a while ago, but it was reported then as a 'possible' Qi manuscript, and seems to have come into the news again due to confirmation.

* Michael Gavin has a fascinating discussion of the problem of language diversification. Why do the tropics regularly have massively more languages than other areas? Why are Australian aboriginal languages much more diverse near the coast than they are in the interior?

* Ann-Sophie Barwich, Is Smell an Aesthetic Sense?

* Erik Hinton discusses Gershom Scholem.

Currently Reading

J. R. R. Tolkien, The Hobbit
Mary Astell, The Christian Religion, as Professed by a Daughter of the Church of England
John of St. Thomas, Outline of Formal Logic
Giambattista Vico, The New Science
Gregory Bassham and Eric Bronson, eds., The Hobbit and Philosophy

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