from normativity to responsibility etc
Joseph Raz interviewed by Richard Marshall.
Joseph Raz is the giganotosaurus of legal philosophy, the biggest of the big beasts, who has spent a lifetime in the jurisprudential long grass engaging with issues of philosophy of law and wrestling with what it means to respect difference, the intelligibility of values and reasons and normativity generally, on their dependence on social practices, the connection between reasons and intentions, reasons and rationality, the nature of intentional actions, whether pragmatic factors can serve as reasons for belief, on law and morality, about legal institutions, about legal theory, about authority and interpretation, about the notion of ‘being in the world’ and about why the question as to whether he has changed his mind is not terribly interesting to him. In the words of Bob, listen to that Duquesne whistle blowing, blowing like its going to blow my world away…
3:AM: What made you become a philosopher?
Joseph Raz: I wish I knew, just as I wish I knew the answers to other questions about my childhood. For example, what made me at 14 enroll in and attend adult education courses in my hometown, lectures mostly populated by adults older than my parents, many of them retired, and why was I not intimidated by being the only child there? That may be even more puzzling than the fact that they were all philosophy courses. In other words I have been hooked for almost as long as I can remember. I think it was in my second year of this activity that I sought expert advice about what to read (I should mention that I was reading other adult books: history of economic ideas, military history, and more). Through various indirect connections I was invited to meet an elderly gentleman who asked me what I had read so far. Very proudly I told him that I was then reading Spinoza’s Ethics. He was surprised and assured me that I might be reading it, but I did not understand what I read. I was somewhat shaken but did not desist. He was of course right, but knowledge of that fact did not dispel the charm.
I have to confess that my juvenile philosophical pursuits, even though they probably did not greatly advance my understanding of philosophy, did some good. I became familiar with philosophical books, (Plato, Descartes, Spinoza, and others) and that eases one’s way to later more mature encounters with those same books and others. I did also benefit in a practical way. I probably was the only school child who subscribed to the Israeli philosophical quarterly, I doubt that I understood the articles I was so diligently reading. When in due course I applied to enroll as a law undergraduate at Hebrew University I approached the University’s Academic Secretary (the head of the academic administration), with some requests. To my surprise he invited me to meet him. It was during my compulsory military service and I could only get weekend leave, so he invited me to his home. It turned out that he was a philosopher, teaching part time in the department, and also the executive editor of that philosophical quarterly. You can imagine my surprise that Mr. Pozñansky (that was his name) knew that while still at school I had subscribed to his quarterly for several years. Even though I was enrolling to read law, he encouraged me to pursue my studies in philosophy, saying that they needed someone in legal philosophy (not a branch of philosophy I had ever heard of). Some years later, when I graduated, he arranged for me to continue my studies in Oxford under the supervision of H.L.A. Hart. It was all his idea, and he secured both admission to Oxford and a scholarship to finance my studies there. I owe him more than I can say.
3:AM: One of the ideas you have argued for(in your 2000 Seeley Lectures)is that we ought to accept the legitimacy of difference. So you think someone can reasonably approve of normative practices that are positively hostile to each other, but that only commits one to respecting both positions and not engaging with them. Is that right, and if it is, doesn’t non-engagement itself suggest a lack of respect?
JR: Accepting, or respecting difference is of course code. What we should respect are practices, styles of life, ideals and aspirations that are valuable, or that have some good, some value in them, and we should respect them for that reason (even when we have a very imperfect understanding of their value). I put it like that for pure gold is rarely found in human affairs. Our lives are wrought of alloys of mixed quality elements, some inferior or even seriously flawed. Human practices that have value often also enshrine prejudice or superstition, and perpetuate objectionable discriminations or exclusions. In saying, as it were, that that’s life, I do not mean that we should be complacent about the unworthy aspects of our practices, or those of others. On the contrary, I suggest that we should not be complacent and should try to identify the less wholesome aspects of our own practices, as well as in those of others, distance ourselves from them and strive to rectify them.
So one reason why it is important to know about and to have a balanced view of practices we have no intention of sharing is that understanding them is close to being a precondition for understanding ourselves and our engagements with various practices. The recognition of the value in what is strange or alien to our ways anchors our humanity, protects us from smugness and intolerance. Our knowledge of and respect for other people’s practices also creates for us the opportunity to change, to come to engage with people who might otherwise appear strange or worse, and possibly also to find that we can acquire a taste for the practices that initially were so alien to us – that is the second main reason for seeking to understand and for coming to respect the value of those practices. I am not suggesting that we should for ever be looking for new friends, or for a change in our activities and tastes, merely that it is good to have the option, and the option is made real in part through understanding what it is like to take it.
In the preceding comments I emphasized the barriers between people and the hostilities that sometimes accompany them that are bred by ignorance leading to narrow and misguided understanding of the range of activities and practices that can contribute to human fulfillment, to the quality of our lives. I also implied that being unaware of the shortcomings in our own practices may well contribute to such hostilities. Trivially, practices that are free from blemish will not be hostile to the good in other practices, even if they are incompatible, in the sense that one cannot fully participate in both. Such incompatibilities force choices on us, but these are no different from other choices forced on us by circumstances: my employer may require me to live within a certain distance from my place of work, and to refrain from working for competitors etc. When practices are literally hostile to other practices this is usually because they are committed (sharing them commits one) to inconsistent beliefs. Hence at least one of them is committed to false beliefs, which is one of its shortcomings.
A degree of hostility not literally between practices but between those who engage in them is common, and perhaps given our psychology inevitable, when the practices themselves prize highly qualities that may be detrimental to participation in the other practice. Some require quick decisive responses, others value measured slower responses, etc. It is ‘natural’ that people in whose life certain qualities of mind, body or temperament are highly prized will tend to look down on those who lack them, and on activities that devalue them. My previous observations were meant to offer a corrective, a way of understanding that those others have their own way to a rewarding life. That may not be enough to rid us of the hostile opinions and attitudes that are bred by these incompatibilities, but they should enable us to contain them, and prevent them from leading to unjustified actions.
So far I have ignored your suggestion that non-engagement may itself indicate lack of respect. I tried to ‘blame’ lack of respect (when respect is merited) on other factors. I do not see how lack of engagement can indicate or constitute lack of respect. Consider cases in which people make choices, of friends, occupations, pastimes, places of residence or whatever. It would be a mistake to think that in all such choices the rejected option is held to be impersonally inferior. Some of them may be. But others are no less worthwhile, but are not for me: I have stronger legs and weaker arms and that would make some sports more appealing to me than others. Must I think that the sports I do not respond to are inferior? Some occupations require one continually to make decisions, relatively important ones, on one’s own. Others rely more on teamwork and collective decisions. I get anxious when burdened with responsibility without the chance to consult etc. Must I think that the job that requires solo decision-making is inferior rather than merely not suitable for me? Or must I think that those for whom it is the better choice are inferior to me, and that’s why that job is best for them? Not all non- engagements are the same. But we are sufficiently aware of the difference between the value (impersonally speaking) of an option or a practice in which it is embodied, and our chances either of benefiting from engaging with it, or of responding to it emotionally, being drawn to it, or left cold by it in spite of its known virtues.
3:AM: Although you argue for the legitimacy of difference you argue that values are universal, and the notions of ‘partiality’ and the social dependency of some values are resources you use to establish this. You argue that to be universal a norm has to be intelligible in terms of properties that can be specified without singular references and that they can be instantiated in any place and time. Can you sketch out your reasons for your conclusion that values are intelligible and universal?
JR: It is best to start with the intelligibility of values and of reasons, and of the normative generally, for it drives much of the rest. What is intelligible can be understood, and if it is intelligible to you then you understand it. But it is a special kind of understanding. Understanding generally involves knowing why what is understood is as it is, and an ability to use that knowledge to infer more truths about it and its context. The Intelligibility of the normative involves that, and more. It is difficult, probably impossible, to state literally and explicitly what it is in a way that would make it plain to someone who did not have the experience of understanding why some particular value is a value or some particular reason is a reason. It is like explaining what it is to see something – ultimately you have to rely on the people to whom you offer the explanation having eyesight and you just point to it – saying it is this experience I am talking about.
Therefore, we explain one normative idea, the virtue of integrity or of generosity, the value of good art, or of friendships, or of well-being, partly by relating them to other values, virtues, etc. and partly by relying on people who understand some of those values, virtues etc. to see the meaning, the good of the values and virtues that they are yet to understand, through imaginative thinking that enables them to see analogies between what they understand and what they are yet to understand.
If you agree that something like that is the way we gain understanding you will agree that it is gained through the grasp of concepts that can in principle be applied to a variety of instances, and whose application points to similarities, apprehension of which enables us to improve our understanding. The application of the concepts can be circumscribed by singular restrictions: they may apply only to instances occurring today, or to me, etc. But the restriction will defy understanding, and is not intelligible, unless it is itself an instantiation of a more general concept that lacks that singular restriction. That is why intelligibility requires universality, at least at the limit.
Why assume that values and normative reasons are intelligible? Perhaps it helps to put it slightly differently: why assume that only what is intelligible can be of value? Because, the brief version of the answer is, values are used, are invoked and referred to, to explain – to explain goals and aspirations, actions and intentions, and through them much more. Moreover the explanations we have in mind here are of a special kind. People’s actions and aspirations etc. are motivated in many ways, often by factors of which the people concerned have little if any idea or understanding. Needless to say, their actions and aspirations can be explained by reference to such motives. But the explanations we have in mind are different. They explain actions or aspirations, by tracing the perspective of the agents who have them. How they saw matters in ways that made sense and, as they saw it, made the action worthwhile, or the pursuit of that aspiration worthwhile. They explain by factors that the people concerned regarded as intelligible, and which therefore enabled them to conclude that the action or aspiration is worthwhile. The claim is, and I am merely outlining a line of thought here – much more is needed to establish it -, the claim is that all values can feature in such explanations, and therefore they are intelligible. Whatever you think of the claim, the argument about it should not turn into a verbal dispute. It matters not whether the expressions ‘of value’ or ‘has value’ invariably refer to what can feature in explanations of that kind. What matters is that an important aspect of our life, the active aspect of our life, in which we have aspirations, pursue goals, form intentions and act to realize them, is governed by searching for and responding to factors that will make our involvement in the world, and our life, worthwhile. I, along with many others, use the terms ‘value’ and ‘normative reason’ to articulate the nature of that aspect of our life and the aspects of the world that enable us to have such life.
One familiar objection to claims about the universality of value is that it makes special attachments, to people, groups, institutions, objects, etc. unjustifiable, and indeed irrational. As you mention in your question I point to the ways in which the instantiation of value is, trivially, historical, thus acquiring features that, in the life of a group, an institution, or an individual, are unique even while they are an instantiation of a universal value, to explain why the universality of value is consistent with special relationships and attachments.
3:AM: Why do you think we can speak of evaluative knowledge? We can’t speak of knowledge in a domain if we can’t speak of error. Values are a problem for knowledge if belief in values depends on social practice and not the values themselves. So how do you answer this challenge, and is it a skeptical or irrealist one?
JR: I do not think that there is serious doubt that at least some values depend on social practices. The hard questions are whether there are any that do not depend on them. And what sort of dependences there are. Why does this dependence exist? And what does it tell us about the nature of value? I have tried to deal with these questions; here let me briefly and informally indicate some of the underlying ideas, and how they relate to the possibility of knowledge.
At the very least it seems that all cultural goods are socially dependent. I mean all valuable relationships, associations, attachments and forms of activities that are constituted by standards that can be sustained over time only by social practices. Commonly these are not stand-alone, single standards, or forms of activity, but whole webs of interconnected ones, as for example, all family relations and interactions, with their ceremonies, complex patterns of mutual expectations, normatively sanctioned demands, and duties, such as standards of privacy within families that allow greater interference with each other’s affairs in some contexts, and a greater degree of distance in others, when compared to the norms and expectations governing such conduct among strangers.
Social goods, in other words, comprise much of what we and other humans care about. They include all artistic activities and products, all the activities, relationships and opportunities that are constituted in part by social, sometimes institutional, standards, such as dances, sporting activities, public organizations and involvement in them, including political structures of governance and participation in them, and much more besides. It is significant, but not relevant in replying to your question, that many if not all of those socially-dependent valuable forms of activity, of association, engagement, identification and more, come with their own distinctive forms of excellence. Nor is it relevant to your question whether these goods are created by social practices or merely made accessible to people through being sustained by social practices. What does matter is that the social dependence I am discussing is one of accessibility: That is because the ability to be in a relationship, any kind of relationship, or to participate, even if only as a spectator, in any sport, or to appreciate any work of art or artistic performance and so on, depends on understanding, broadly, their constitution, understanding what they are, an understanding that is required for engaging, and of course for enjoying or benefiting by one’s engagement. And that understanding is inevitably acquired through familiarity with the practices that sustain the relevant cultural goods. Explicit explanation can help, but it cannot replace familiarity with the practices, since the cultural goods are too rich and complex to be learnt through explicit explanation only.
So the social dependence has nothing to do with what makes a relationship, pursuit or activity good or bad (for bad relationships etc. are also socially constituted). The dependence is of the ability to access those goods. It explains why different goods furnish the stuff of life in different societies, and in different eras. It explains, again, how misunderstanding and hostility can be bred through ignorance of the conditions of the availability of the good, and through ignorance of the possible diversity of forms of good. Understanding the social dependence of the availability of goods helps towards understanding the nature of value. But it does not determine it. This leaves of course the question of our ability to know about values untouched. But it means that there is no threat to the possibility of knowledge due to the social dependence of value.
3:AM: Throughout your work you’ve elaborated the importance of role of these normative reasons in our psychology – they are the kind of thing that can be explained by their subject’s apprehension of something she thinks of as a reason for them. And when they are so explained, one has them for this reason. And actions, beliefs and intentions are then explained by these normative reasons. Have I got that right? Do you think that by starting with actions and beliefs and intentions your conclusions about normative reasons are different from what they would have been had you started elsewhere, such as with the role of emotions?
JR: I have already confessed, in some earlier replies, to pursuing some such approach. But obviously the direct answer to your question is that this approach should make no difference to the conclusions. The accounts I advanced apply to a number of issues: the explanation of value, the nature of normative reasons, the connection between reasons and intentions, and between reasons and rationality, and the nature of intentional actions. Each account is independently supported, though they are mutually reinforcing. These accounts should be improved, and the explanation of other issues should turn out to be consonant with those offered, before the latter can be deemed to be secure. Yet in principle, it does not matter where you start or the order in which you proceed. The conclusions should be the same.
However, there is, I hope, something suggestive in the approach that I have pursued. I hope that I have successfully pointed out that the central cases of intentional actions are actions undertaken for (what the agents believe are) normative reasons. If the value of those actions is the direct reason for them, and the value of other things bears on reasons to the extent that it affects the value of the actions, and if all this is in the very nature of value, then two broad conclusions become plausible: One is that some actions have value and others do not, and that some have more value than some others, for if none has value then all intentional actions and all plans to undertake them are based on a kind of error that it is really impossible to make. Second, that the explanation of normative reasons and of values does not seek for some mysterious existences. It is merely part of the explanation of intentional actions, though it is not only that. And we all believe that it is possible to explain intentional actions. These thoughts help, I think, calibrate our inquiries, deflating some aspirations, but also some alleged obstacles to their progress.
3:AM: Why don’t you think pragmatic factors can serve as reasons for belief? Is it linked to your ‘no gap’ thesis?
JR: This seems to me to be a confusing issue. On the one hand to believe that something is the case is to take the world to be so, and facts that point to it being so are reasons for that belief, they vindicate it. On the other hand, that believing something will assuage one’s anxieties, while it does nothing to show that the belief is true, is a good thing. Other things being equal it is better to be free of anxieties. One may argue that it is good to be free of anxieties only if they are provoked by false beliefs, or at any rate by unwarranted beliefs. There will be cases regarding which such arguments are sound. But they will leave many cases in which it is genuinely good for a person to have a belief independently of whether it is true or not. Does that not mean that there are non-truth related reasons for belief? It does. The problem is that we cannot form a belief for such reasons. People who have beliefs have some, however incomplete and inarticulate, understanding of what beliefs are. They know that beliefs differ from fantasies, daydreams, suppositions, etc. and the difference is that beliefs, unlike other thoughts, are accountable to the standard of truth. That is, while there is nothing amiss in imagining oneself flying across the skies, and there is no reason to abandon the thought when confronted with evidence that one is not flying, one cannot believe that one flies given that one has evidence that that is not the case. One can daydream, fantasize etc. but not believe. So, that it would be, in some circumstances, good to believe that one is flying is a reason for having that belief, but it is a reason that cannot rationally sustain having the belief.
What to do when faced with this confusion? To start with we can try to distinguish two kinds of reasons. Practical reasons that show that it is good to have the belief, and epistemic reasons that support the truth of the belief. Given that distinction and the nature of belief we can observe that practical reasons cannot lead us to have the belief (though they can make us try to affect our circumstances so that we will come to have it), in the sense that we cannot reason from them to the belief (I’ll be happy if I believe that I am clever therefore I am clever). Epistemic reasons (assuming that they are strong and adequate in the circumstances) once recognized do lead us to have the beliefs for which they are reasons (that is the no gap thesis that you refer to).
But didn’t I admit that practical reasons can lead one to have a belief, however irrationally? If they are good practical reasons, why care whether one has the belief rationally or irrationally? True enough, practical reasons can cause one to have a belief, and that may be, if they are sound and adequate reasons, a good thing, even if one’s believing or the process of acquiring the belief were irrational (which they will be sometimes, though not always). The difference is in the way the reason leads one to acquire or to have the belief. All reasons can figure in explanations of what they are reasons for. Epistemic reasons can figure in normative explanations of having the beliefs that they are reasons for, meaning that we can reason our way to a belief from premises that these reasons constitute. In a similar way practical reasons for having a belief can figure as normative reasons for action towards producing circumstances in which one would come to have or to maintain the belief. They may also, depending on the factual situation, figure in an explanation of why one has the belief, an explanation that is not normative, but an ordinary causal explanation. One may come to have a belief because the practical reason can induce self-deception, leading one into thinking that there are epistemic reasons for the belief, thus leading one to have it. In cases like that while the facts that explain the belief are practical reasons, the explanation is causal and not normative. There are more complications on the way to completing the account. But its nature is, I hope, clear.
What is common to all normative reasons is that they are facts recognition of which can lead people to respond in a certain way (form or sustain beliefs, act, or have emotions, etc.) because they (using their rational powers) recognize that the response is appropriate to the situation because those reasons are part of it. I illustrated this by referring to realizing through deliberation and reasoning that the response is appropriate. But sometimes no reasoning is involved when one grasps what response would be appropriate. Reasons being facts that make the response appropriate, practical reasons are facts that show the good that actions are likely to secure or protect, and epistemic reasons are facts that show that the belief is likely to be true. Note that epistemic reasons do not show that it is good to have that belief. That would require a practical reason. Hence, there may be nothing wrong in someone not bothering to form beliefs on certain issues even if epistemic reasons for the belief are readily available to him. There may be no practical reasons bearing on whether or not he should have a belief on the matter, or what it should be. However if one is aware of the facts that are epistemic reasons and aware that they are strong reasons, so long as one’s rational capacities are not defective, one will form that belief. That is the no gap thesis.
What is common to all normative reasons is that they can figure in normative explanations of one’s reactions (beliefs, actions, intentions, emotions) to one’s situation. But they can fail to figure in normative explanations, and they can also figure in non- normative explanations, namely act as causal factors in the process that led one to react one way or another: a causal factor that does not influence one normatively, namely not through realizing, through the use of one’s rational powers, that the reaction is appropriate, but through some other causal route.
3:AM: You have a distinct view of law: you say that it is essential that the law recognizes that its use of power is answerable to moral standards and claims to have reconciled power and morality, even if it may not live up to its aspirations. But you don’t think that by its nature law reconciles the duality of morality and power: you think that its doing so is a contingent matter depending on the actual political reality of the society whose law is in question. Can you say something about this and why it’s an important distinction?
JR: There is, of course, nothing special about the view that the law is answerable to morality. We, and our practices and institutions, all are. This is more an expression of what morality is, or of the meaning of ‘morality’ that I use in my writings, than of what the law is (though – and I will return to the point – it is that too). Unlike some people who think of morality as a unified system of principles, I am with those who deny that there is a moral system, but believe that there are considerations that apply to us, and those of them that are basic, underived, cannot be further assessed (as good/bad, desirable/undesirable). Against that background I find little of theoretical interest in subdividing considerations of that kind into moral v. some other kinds. When writing about normativity, as you saw above, I do not mention morality, and write generally about values and normative reasons. When writing about the law I usually accede to the practice of discussing law and morality (using this term), but really having in mind the fact that the law, like all people, practices, institutions and more, can be normatively assessed. Needless to say, the hard questions are to determine which normative considerations are relevant to their assessment and which are not.
The thesis that you ask about is that the law, personalizing the institution here, recognizes that it is subject to moral standards and almost universally claims that it met them at least in one way. I make the claim on the basis of the language, normative, often moral, language legal institutions invariably use. This claim is not the minimal one implied when we act with an intention, namely that there is some good reason for the action (even when we act akratically we imply that, though we do not then believe that the reason for which we act is undefeated). Even gangsters who occupy and rule, let us say, a village by force and intimidation imply that they have good reasons for their actions. But they may well not think that those reasons have anything to do with the interests of the villagers, nor that they are reasons for the villagers to obey them. Legal institutions, and through them the law, act for reasons that they take to be good reasons for their subjects, and think that as a result their subjects should obey their laws and decisions. Institutions that do not make such claims are not legal institutions.
This is not primarily an observation about the meaning of the terms ‘legal institutions’, ‘legal system’ etc. It is about a type of social institutions of which law is one. It reflects the view that there is something important about institutions that make such claims (and there are of course many others that do make the claim). They can become a framework for co-operation, a focus of solidarity and an element in what constitutes a society or an organization to which its subjects feel allegiance, feel that they are members rather than mere subjects.
Two points to note here: First, the claim of legal institutions is not that their actions are based on the interests of the governed. It is that they are based on reasons that apply to their subjects. So, for example, governmental foreign aid need not be based on the claim that it serves the interests of the governed. It can be based on the moral duty of the governed to aid others. And of course it also means that the law can take account of the interests of all the governed, because each of them is subject to a moral reason to act in the interests of all. Second, the claim made by the law is not that it is perfect and cannot be improved. Rather, it is that everyone has reason to comply with the law because in doing so one would be complying with reasons that apply to one better than if one did not comply. My account of legitimate authority over people takes this to be the mark of authority. So it is my way of saying that the law claims to have moral authority over its subjects, so that they ought to comply with it even when it is imperfect.
But the law can fail to meet this standard, and thus it can fail to have legitimate authority. I take such failure to be a matter of degree. One can have a greater or a more limited authority, and when the law does not have the authority it claims it does not follow that it has none. Just that it has less than it claims. Some people think that a system that meets all the conditions that I have described, here and elsewhere, for qualifying as a legal system cannot fail to have legitimate authority over its subjects. I believe this to be a mistake about morality, and one that it is interesting to explore. What is not philosophically interesting is whether the word ‘law’ or ‘legal system’ is commonly used in a meaning that entails that there is an obligation to obey the law, whatever its content, or that there is a pro tanto obligation to obey, whatever its content. I think that we use ‘law’ in legal contexts sometimes to imply such an obligation, and sometimes not. But this could become an uninteresting verbal dispute. What is important is that there are systems that are like legal systems that have legitimate authority but that do not have legitimate authority. This distinction is important because it helps us in forming moral attitudes towards political institutions, whether ours or not.
These matters are not more complex than those you touched on in your earlier questions. But I have spent more years thinking about them. Perhaps because of that I am more acutely aware of how crude and incomplete my answer here is. But it, like all the others, may serve as an introduction.
3:AM: What do you mean when you say that a theory of law is (in part) about the way legal actors understand themselves and their actions? What alternative approaches does your approach rule out?
JR: The point is important given that many people take the theories and explanations offered by the physical and the biological sciences as the paradigms of good explanations. The phenomena studied in those sciences, say fundamental particles, have no knowledge or understanding of the theories about and explanations of their conduct. Not so when you study human beings, or rather when we study the ways humans are and conduct themselves when they use capacities whose deployment involves people’s rational powers. Needless to say, people can come to know and understand those explanations and theories, and adjust their behavior in reaction to the explanations. They can, for example, make false explanations true, by adjusting their conduct to make them true, as can happen under the influence of psychological suggestion, which as is well known can produce strong placebo effects. Economists tend not to notice that the fact that businesses in countries like the U.S. behave in the ways economic theories predict, whereas many businesses in developing countries do not, is due not to the rationality of the first and the imperfect rationality of the latter, but to the fact that many more business managers in the U.S. have been to business schools and follow the theories they were taught there, thus tending to verify them.
Taking a broader view: The task of explanation can be thought to be to account for what there is without changing it. When dealing with human conduct, aspirations, emotions and the like, the explanation involves getting the reader to understand how matters appear to the people whose conduct is explained. But these people are us, all of us. So the explanation, if successful, will improve our self-understanding. That in itself is a change with consequential changes in our hopes, aspirations, feelings and conduct. In fact, such changes are liable to be brought about by learning, perfectly or imperfectly, i.e. with mistakes and misunderstandings, explanations of the theorized-upon aspects of our life, whether these explanations are successful or not. For example, learning of the theories may make mistaken theories turn true by changing the explained reality to conform to them.
In sum the explanatory inquiry into aspects of human beings and their life is both a process of self understanding, and inevitably (and often unconsciously) a process of bringing about change, hopefully justified by the thought that at least up to a point the examined life is better than the unexamined one.
3:AM: You think that the content of the law can be devoid of moral considerations and so can be evil but that given that it imposes and enforces duties on people legal discourse is moral discourse. Why isn’t this a problem?
JR: I am not sure that it is a problem. Though it seems to have encouraged some false views. It encouraged the view that there are different kinds of unrelated and non- comparable duties, rights etc.: legal rights are rights in a different sense of ‘rights’ from moral rights, and so on. I tend to think that normative terminology is univocal in most of its uses, and that requires an explanation of why it can appear not to be. For example, how can one say correctly that one has a legal right even though one does not have a moral right, and even though it is immoral to have that legal right? If normative terms are used in the same way across the various normative domains then their use, and therefore the domains characterized by their use, must be inter-related. And they are inter-related even when they conflict. Much of what I wrote in reply to your earlier questions is meant, among other things, to contribute to such explanations.
3:AM: How do you explain the bootstrapping problem – how can duties and rights spring into existence on the say so of a person or an institution?
JR: If you mean ‘how can duties and rights spring into existence on the mere say so of a person’? The answer is that they cannot. When people or institutions can by their say so impose duties or confer rights on people that is because they are empowered to do so by normative considerations that exist independently of these actions. Most commonly that is because it is good for people if they or others can impose duties and confer rights. Earlier I alluded to an instance of such reasoning: when the conditions of legitimacy are met, legal institutions, which paradigmatically impose duties and confer rights, are part of the framework for the existence of politically organized societies that can foster solidarity and mutual respect and support. The existence of such societies is of great benefit to people, most directly to members of these societies, and therefore everyone has reason to support the generation and continued existence of these institutions. That is why they have the normative power to impose duties and confer rights by their say so. The accounts of the power to make promises, to enter into relationships such as marriage, and so on, would differ, but they are all unified by pointing to independently existing normative considerations that vindicate the power of people to change the normative situation by actions intended to do so.
3:AM: Some argue that in interpretive reasoning the distinction between law application and law creation is obscured and that this issue of interpretation is a pivotal issue dividing many philosophers of law. So the argument between Dworkin and Hart is about this isn’t it? How do you respond to this debate?
JR: Let me say first that there are issues raised by Dworkin, and used by him in criticizing Hart’s theory, that, as they are rather complex, I have avoided raising in my previous answers, and will not discuss here either. It is true that Dworkin associates them with his account of interpretation, but I think that they are best investigated independently of it. In other words I think that a proper inquiry into the nature of interpretation does not necessitate examining these views of Dworkin. I agree, however, that legal interpretation can obscure the distinction between law-application and law-creation.
However, to see that there is a problem with applying the distinction one need not think of interpretation. Anyone who has the slightest familiarity with the English Common Law, or with any of the common law legal systems or indeed with any legal system where some courts’ decisions set precedents, is familiar with the fact that courts with the power to set precedents both apply and create law. To have the power to set precedents means (a) that one’s decisions bind not only the litigants before the court, but also at least some future courts, and those who are subject to the laws that they adjudicate; and (b) that the decisions are so binding, at least in some cases, even if mistaken. So a court whose decision is a binding precedent may be creating a new legal rule even if it is duty bound, and even if it tries its hardest, not to do so. Because even if it is trying merely to apply the law as it is, should it make a mistake about that law, its decision will be binding even though the rule it enunciates was not binding until it was enunciated.
So, to determine whether a precedent-setting court’s decision did or did not make new law one has to determine whether its statement of existing law is correct or not. That may not be an easy task. Moreover, the statement that was meant to be a mere restatement of existing law may be partly right and partly wrong, so that the precedent is partly reiterating and reinforcing existing law and partly creating new law – making the task of distinguishing what in the decision is application and what creation even more complex.
In actual legal practice the task is made complex by many additional factors, and we cannot discuss them here. I am focusing on the very elementary case of new law made, through the doctrine of precedent, when trying not to make new law, and when having a duty not to make new law, because it bears an important theoretical lesson: while sometimes even in this simple type of case disentangling what in the court’s ruling is new and what a restatement can be fiendishly difficult, and perhaps even not a task that one can completely succeed in (i.e. it may be theoretically impossible to divide all strands in the ruling into application or creation), the difficulty casts no doubt about the very distinction between law creation and law application, and its inevitable application (in the case we consider) to the judicial process. It casts no doubt either on the distinction itself, nor on its applicability, for it is only with the use of the distinction that we can say (a) that the court has a duty merely to apply the law, (b) that the court has tried merely to apply the law, (c) that the doctrine of precedent means that its decision is binding even if it misapplied the law. And this last statement entails that since the decision is binding even though it does not apply the law, new law was made by it. That some material is made of two alloys woven together in an irreversible process, so that in the result one cannot say what is made of the one and what of the other, does not cast doubt on the fact that two distinct alloys are in the mix. Something similar is true of the law.
I offered this argument without referring once to the notion of interpretation in order to illustrate how the matter you raised does not depend on any deep, mysterious or controversial aspects of interpretation or of legal interpretation. But I do not wish to deny that the courts’ reasoning about the law and about which legal conclusions to endorse, which ruling to make (as well as some other aspects of their reasoning) is interpretive. Why is it and what do we mean by saying that it is?
Interpretations are, generally speaking, explanations. At a stretch even interpretations offered by professional interpreters, i.e. live translation of speeches etc., can be said to explain what is translated in the minimal sense of explanation, namely by displaying or stating its meaning. In the same way interpretation through performance (of plays or music) contains an explanation in that it displays the meaning of what is interpreted. As you gather from this I take interpretation to be an explanation of the meaning of something: a text, an act, an intention, etc. ‘Meaning’ is used here in its broad ordinary sense, not being confined to semantic meaning. We will not pursue the meaning of ‘meaning’ here. It does not offer an easy clue to the nature of interpretation, as directly or indirectly we will need to refer to interpretation in explaining what has meaning and what that meaning is (whatever is explained in interpretations of it). For our purposes it is sufficient that the association of interpretation with the explanation of meaning locates interpretations primarily within the interpretations of human intentions, aspirations, emotions and action, and the products of human activities and practices. What makes interpretation a special kind of explanation is its connection to what people experience and do – and the problematic features of explanations of this kind that were discussed in my response to question 8 above – and the fact that many of the objects of interpretation are cultural goods, with their special features, some of which were discussed in my answer to question 4. Now, it is the mark of cultural goods that their meaning is detached from the intentions of their creators, even when they were deliberately created by someone, and this enables us to give Marxist explanations to works produced by authors who had no inkling of such explanations, and so on. It also explains why meanings change with history. It is not so much that meanings are lost (though they are often forgotten) as that new meanings are added since the work comes to mean new and different things to different people, often through familiarity with past interpretations of it. It is, as you can gather from these remarks, the existence of a plurality of acceptable, good, though incompatible interpretations that is one of the central, and essential, features of interpretative explanations. A common mistake is to think that the phenomena that establish interpretive pluralism show that there is no objective standard for correctness or acceptability of interpretations. They do not. They merely show that there is diversity as well as historical development not only in good interpretations but also in the standard for what makes interpretations good or acceptable. The standards may be historically, socially, dependent, but they are objective, independent of the interpreter’s desires, and they guide both interpretations and their reception.
Needless to say, interpretive pluralism entails that preserving and reasserting known meanings of the interpreted objects is only one of the standards for correctness of interpretations. So we are back with the combination of applying, restating, reinforcing existing meaning and moving on towards new meaning. Interpretations can be conserving or creative and they are almost always a combination of the two, with all the impossibility, often the pointlessness of disentangling what is creative and what conserving in any given interpretation.
This combination of elements: continuity and change, plurality through reference to a common object of interest, sometimes of loyalty, points to the way interpretations function in our lives. They are crucial to the cementing elements of culture, of institutions and standards, as well as to the potential for creativity, development and improvement. We are united by our relations to a common history, a common heritage of cuisines, architecture, crafts, professional and leisure activities, arts and literature, and more which shape our imagination, providing us with the memory of smells and colours and patterns of response, and mutual expectations, which enable us to understand each
other, and open avenues for individual development and creativity within the common bonds, individuality which makes itself understood to others, because its roots are in the common culture, and which can be freer and richer because of the richness from which it derives. Interpretations of cultural goods, of history and psychology, are crucial to these processes precisely because they combine preservation with change, plurality with relating to a common core, the common object of interpretation.
3:AM: Can you say something about how ‘Being in the World’ is important to considerations of normativity and responsibility, and in using the term are you deliberately wanting us to connect your thoughts to other philosophers?
JR: It means more than I know, at least so far, how to say. I use the expression to indicate that what we, who we, are, and what life we have, depend on how we inhabit the world, and that that is not merely, not primarily, a matter of our internal or mental life, or attitudes. It goes further, it goes to the conditions that shape our mental life and attitudes. Perhaps some of what I have dimly in mind I can start to articulate (without I am afraid making things much clearer) in the following way. Many of the questions that occupied me over the years can be seen as various aspects of the explanation of normativity. I take its explanation to consist in explaining three aspects of reality and their interaction: How it is that we can pursue in our conduct a variety of ends (simple, like drinking water from the glass in front of me, or complex, like giving parties, or practising law, ends that are often nested in other ends, of our own or those we share with others). And how it is that in adopting ends we are guided by our own sense that those are ends to adopt, that their endorsement is not a whim or a product of some causal process that is opaque to us, but rather their adoption is intelligible to us as a reaction to how, as we see things, matters stand in the world in such a way that their adoption and pursuit is sensible, or even necessary, required. And of course the question of what it is about the world that can give point to or make necessary the adoption and pursuit of certain ends.
All these are ancient questions. But much discussion of normativity concerns the content of the normative phenomena: what should we pursue, and how powerful is the call on us to pursue ends of this kind or that, and what constitutes shared ends, and how are they related to individual psychology, and much much more besides. All these are important questions, but ultimately they can only be understood if we understand the way we inhabit the world, the relations between understanding how things are and the motivation to leave them alone, or even to preserve them or to change them etc. These more fundamental questions are also keenly debated. One of the more influential arenas for their debate concerns the truth and travails of expressivism. The very term intimates some of the limitations of that approach – it tells us that there is no special problem in knowing how things are in the world. What we need is an understanding of our attitudes that enable us to react to it as if it had features that it does not in fact have. This is obviously a tendentious characterization of the expressivist approach. But then there are no neutral ways of presenting the problems we deal with. My description of the approach here is not to be taken as more than an indication that mine is an alternative approach with a different focus, a difference that will disqualify it from belonging with the expressivist family. My approach suspects that the explanation of normativity, which is nothing less than the explanation of the possibility of normative action, must involve bringing into focus ways in which we inhabit the world and that they, in explaining our relations to the world, shed light both on it and on us.
3:AM: Have you changed your mind about anything fundamental to your philosophical position during your time as a philosopher or has it been more a process of deepening and further discovery within a rather settled framework of thought?
JR: For various reasons this is for me a difficult question. One is that I am not terribly interested in the question, and perhaps partly as a result, am often surprised when people point out, with actual quotations, what I wrote on some points in years past. One way in which I am sometimes surprised when confronted with previous writings is that I clearly remember that I felt tentative about this issue or that, and meant to express a partial or a tentative view only, and lo and behold: that is not how I wrote. I sound very definite. Have I changed my mind, or am I one of those people who tend to sound confident when they are not? But there are other difficulties with the question.
Sometimes a deepening of a view may go so deep as to change its character without actually changing its letter. Ever since my student days I was interested in the social character of the law. More recently I have written on the social character of value in general, and on the ways in which the characterization of these two forms of social dependence differ, and the ways in which they are nevertheless interdependent. The result is that once embedded in the wider context my old views on the social character of the law while unchanged may have acquired, in my mind, a different meaning. There is more to say, but it is probably of no interest to anyone but myself. Similar changes probably affected other of my views.
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First published in 3:AM Magazine: Monday, September 1st, 2014.