March 23-24 | Moscow, Idaho
Inland Northwest Philosophy Conference
2012 Inland Northwest Philosophy Conference
The Inland Northwest Philosophy Conference (INPC) is a topic-focused conference that brings together those from the humanities and beyond who are interested in the philosophical investigation of key areas of thought. This conference will bring together philosophers and legal scholars interested in the pragmatist tradition, whether as critics or advocates, so that each might learn from the other.
(Univeristy of Pittsburgh)
David Boersema (Philosophy, Pacific)
Tom Burke (Philosophy, South Carolina)
Janice Dowell (Philosophy, Nebraska)
Karl Schaffer (Philosophy, Pittsburgh)
Robert Talisse (Philosophy, Vanderblit)
Benjamin Zipursky (Law, Fordham)
Brian Butler (Philosophy & Law, UNC Asheville)
Matthew Chrisman (Philosophy, Edinburgh)
Heidi Li Feldman (Law, Georgetown)
Martin J. Stone (Law, Cardozo)
Michael Sullivan (Philosophy & Law, Emory)
Lynne Tirrell (Philosophy, UMass Boston)
INPC Executive Director
Joseph Campbell, Professor of Philosophy at Washington State University
Graham Hubbs, Assistant Professor of Philosophy at the University of Idaho
Douglas Lind, Professor of Philosophy at the University of Idaho
These papers have been made available for pre-conference reading with the expressed permission of their authors. DO NOT CITE OR CIRCULATE ANY OF THESE WITHOUT THESE WITHOUT AUTHORIAL PERMISSION.
Conference attendees are invited and encouraged to read these papers in advance, especially Professor Brandom’s workshop paper.
Charles Barzun: The Quietist Turn and Twentieth-Century Legal Thought
ABSTRACT: Recently, the philosophers Richard Rorty, Huw Price, and David Macarthur have all embraced a "quietist" position that seeks to replace metaphysical debates about whether and how the terms of a given discourse "hook up" with the world with the ones that ask anthropological questions about the functions that particular terms or whole vocabularies serve in human social life. This meta-metaphysical stance may appeal to philosophical pragmatists for its capacity to combine a skepticism about the value of metaphysical debate with a confidence that talk of mental states and moral truths may be continue, only now in a spirit of philosophical naturalism. In this paper, I offer a critique of metaphysical quietism, though one made from a pragmatist perspective sympathetic to many of the quietist' philosophical aspirations. Its aim is to cast doubt on both the possibility and desirability of dissolving the traditional philosophical questions and replacing them with anthropological genealogies. Using an extended example from legal discourse, which has long been understood in functional terms, I show how the functional accounts envisioned by quietists generate the same kinds of metaphysical questions the quietists seek to avoid. I further argue that such questions are not only natural and perhaps inevitable but are also worth asking, and that the pragmatist should welcome the disputes they engender, not remain quiet about them.
David Boersema: Pragmatism v. Originalism: A Mistrial
ABSTRACT: Judicial interpretation is fundamental to the nature and working of law. The doctrine of originalism holds that judicial interpretation is best informed by adhering to the original intent or understanding of the framers of the law. In this paper, I will look at arguments both for and against originalism. I will then claim that, although there are very strong pragmatist arguments against originalism (in large part because of a faulty view of language), the two are not necessarily at odds. This will not be an endorsement of originalism, but, rather, a claim that, for all its flaws, originalism is not necessarily antithetical to pragmatism.
ABSTRACT: Throughout his many writings Peirce occasionally presented examples of how to use the pragmatist method of defining one's terms, having insisted that pragmatism is just that: a methodological stance concerning how best to clarify one's terminology. One of the more remarkable examples is his definition of the word 'reality' with the corollary definition of the word 'truth' (Peirce 1878). I argue below that this definition also supplies for free a corollary definition of the word 'knowledge'. Moreover, the same type of definition (involving a long-run perfectionist ideal of some sort) can be given for the words 'democracy' and 'justice'.
ABSTRACT: In this paper I investigate law in relationship to Dewey's demand that within a truly democratic society the means, as well of the ends, of society need to be democratic as well. The standard conception of law is that of a system that gives final decision making and antimajoritarian authority to an unaccountable and oligarchic judiciary, a judiciary following rules set down by the "dead hand" of the past in order to rule democratic governance. This seems to reinforce the idea that democracy ultimately necessarily rests upon the use of undemocratic means. In this paper I will attempt to outline a conception of law that is democratic in both means and end, and that therefore is true to Dewey's demand. First, a conception of Deweyan democracy will be offered in combination with an ideal conception of "democratic law" found in Dewey's works. Then, an attempt to live up to the aims of a truly democratic legal procedure will be made by using Dorf and Sabel's article "A Constitution of Democratic Experimentalism." From this conception of law a decision making model for the Deweyan judge will be analyzed. Finally, the picture of jurisprudence constructed in the first part of the paper will be used to notice how much of legal philosophy is attached to a conception of law and legal reasoning that could be seen as an arbitrary product of historical contingencies and tools developed for specific times that have only limited relevance for the contemporary world. If successful, the construction of a conception of law as a democratic means will have both strong implications for the philosophy of law in general as well as for the possibility of actualizing a democratic form of governance as demanding as Dewey's.
Paul Davies: Our Evolving Concept of ‘Voluntariness’: A Test Case
ABSTRACT: According to the Model Penal Code, section 2.01, criminal liability accrues only for acts that are ‘voluntary’. ‘Voluntariness’ is characterized mostly negatively as physical movements caused not by hypnosis, sleepwalking, etc. but simply by “effort” or “determination”. This lack of specificity in the concept of voluntariness is unproblematic so long as citizens generally know and can identify acts due to an agent’s “determination”. If judges, jurors, etc. reliably succeed in distinguishing acts that belong to the agent from those that do not, then the lack of specificity may allows for flexibility of application. If, by contrast, citizens generally do not know or cannot reliably discern the difference between acts determined by the agent and acts determined by something else, then this section of the Code is defective - assuming that a law is efficacious only if we have reasonable evidence that it can be correctly applied. The main thesis of this paper is that recent findings in social psychology, cognitive neuroscience, and affective neuroscience converge upon a form of skepticism that undermines the above notion of voluntariness. The thesis is that we are faced with a skepticism concerning the role of “effort” or “determination” in one’s own actions and in the actions of others. The further aim of this paper is to consider the implications of the above thesis for one strand in the pragmatic view of the law. In particular, the above skepticism may serve as a test case for pragmatic versus classical views of the law, at least with respect to the claim that legal categories (such as criminal liability) evolve and should evolve to conform to what is known about relevant agential capacities.
Sari Kisilevsky: Against Legal Pragmatism: Greenberg and the Priority of the Moral
ABSTRACT: I argue against Pragmatists that, at the very least, there must be a distinction between law and nonlaw, and that legal considerations must have conceptual priority in legal reasoning. Legal Pragmatists are correct to insist on the open‐endedness and context‐sensitivity of law and legal reasoning. They are also right to emphasize the variable and often indeterminate nature of law. However, I argue, it is a mistake to conclude from this that there are no legal rules or concepts that are specified antecedently, and that these have no bearing on particular cases. To the contrary, I argue that there must, at the very least, be a distinction between those considerations that count as legal and those that do not, and the former must have conceptual priority in legal decision‐making. Holding otherwise collapses the conceptual distinction between law and non‐law, and does violence to our political practices. First, there must at least be some clear legal rules, and they must be capable of exerting some force in legal decision‐making. Otherwise, we could not identify the legislature, legislative acts, the judiciary, a judgment, etc. This is a serious problem. Not only does it raise conceptual issues of identifying those considerations that count as the legal ones to begin with, it also makes it difficult to analyze an act’s significance in the context, since the law of a community is a key aspect of moral context. Second, the state is empowered to enforce those rules that count as law under threat of sanction. All other acts count as the arbitrary exercise of force. Although this is not the only consideration that determines whether a state is justified in acting, it is an important one, making the distinction between law and non‐law fundamental to our understanding of state action. We thus have political reason to uphold this distinction as well.
Barbara Baum Levenbrook: Soames, Legislative Intent, and the Meaning of a Statute
ABSTRACT: A familiar jurisprudential view is that statutes apply the way the legislature intended. Scott Soames has challenged this view in its most familiar form, while giving a limited credence to some other forms of it. Although the burden of his most recently published paper is that legislative intention in the form of legislative purpose does not determine how statutes apply (antecedent to authoritative interpretation of them), he repeats his earlier claim that there are some legislative intentions that do. I focus on this latter claim. I maintain that Soames misses the role of what could be described as a legislative intention in determining what is asserted in a statute and, therefore, how a statute applies. Contra Soames, the basis for imputing that intention need not include any historical facts about what the legislators thought they were committing themselves to at the time of the adoption of the statute, or, indeed, whether they thought about it at all. It need include nothing of what is referred to as “the legislative history” of the statute. I draw on an account I developed elsewhere of the meaning of statutes. Complications aside, speakers of a common language are participants in social practices of salient array-identification. These practices assign arrays of act-tokens, both actual and hypothetical, to a statute that directs activity, and identify a part of an array as salient for that directive in that social context. It is to those act-tokens that the statute applies. We can derive an application intention, missing in Soames, as follows: necessarily, the legislature intends however it is that the statute applies. Among other advantages, my view explains how pragmatics contributes to the evolution of the meaning of a statute.
David Plunkett and Timothy Sundell: The Pragmatics of Legal Disagreements
ABSTRACT: In Law’s Empire, Ronald Dworkin famously criticizes the thesis that the meaning of the term “law” consists in a fixed set of extension-determining criteria. Dworkin argues that such a view is unable to explain a specific type of seemingly prevalent disagreement within legal practice, namely disagreements where the fundamental criteria for something’s being a law are themselves in dispute. In order to explain such disagreements, Dworkin argues that the term “law” should be understood to express what he calls an “interpretative concept” – which, roughly, he understands as a concept whose correct application depends not on any fixed criteria, but rather on the normative facts justifying the set of practices in which that concept is used. We argue that Dworkin’s argument rests on a misunderstanding about the nature of disagreement. Disagreement is not, we argue, a unified phenomenon. Varieties of disagreement occur along a range of communicative dimensions, both semantic and pragmatic. We focus especially on what we call "metalinguistic disagreement" or disagreements over the usage of individual linguistic items. Metalinguistic disagreements occur precisely when speakers do not agree on shared criteria for the words in question. Rather than arguing for the truth or falsity of a literally expressed proposition, speakers advocate for their preferred concept in a largely tacit negotiation over the most appropriate usage of the term, given the circumstances. Metalinguistic disagreements are, we argue, common; they license ordinary linguistic denial; they "feel substantive"; and indeed they can carry great practical significance. We agree with Dworkin that some disagreements within legal practice are best analyzed, in part, as disputes about the fundamental criteria for what counts as law. However, against Dworkin, we submit that the best explanation of these disagreements does not require the introduction of a novel (and controversial) kind of concept. A more nuanced analysis of the relevant linguistic facts makes room for a better alternative, one that more adequately captures the pragmatic features of the relevant discourse, is equally sensitive to the relationship between legal practices and legal language, draws only on existing theories of concepts, and works entirely within a mainstream descriptivist framework for linguistic semantics.
Albert Spencer and Tyler Olson: Occupy Pragmatism: A Reconstruction of America’s Political Economy
ABSTRACT: In "Looking Backwards from the Year 2096" Richard Rorty prophesied that if the income inequality of the late 20th Century continued into the 21st Century, then Americans would inevitably take to the streets. Since the fall of 2011, thousands have begun demonstrating as part of the growing Occupy movements. While several goals motivate the Occupy movement, this paper will focus on the issue of increasing income inequality within the US’s political economy as explained by economist Nathan J. Kelly. It will claim that the Occupy movement is a legitimate response to the failure of the US political economy to honor John Rawls' difference principle. It will then relate the Occupy movement to American Pragmatism by comparing the origin of the movement to Robert Westbrook’s account of the emergence of American pragmatism in response to the economic inequality of the Gilded Age and suggest an alliance with Judith Green’s radical pragmatism which provides alternative indicators of human welfare based on “cross culturally shared human needs” as opposed to “economistic aggregate indicators,” like GDP. In conclusion, the Occupy movement could initiate a profound shift from representational democracy to participatory democracy within the 21st Century US political economy, but only if it shifts from the anarchist political philosophy of David Graeber to an endorsement of pragmatist deliberative democracy and transitions from strategic nonviolence to principled nonviolence through the use of more inclusive language, explicit goals, and identifiable leadership. Ultimately, the difference principle reminds us that democracies regularly experience crises of political and economic inequality. Therefore, the social power of the Occupy movement can only be strengthened by claiming continuity with the efforts of past generations and learning from their struggles. Pragmatism should be occupied.
Robert Talisse: Pragmatism, Democracy, and Justice
ABSTRACT: This paper was stimulated by a few surprising facts about John Dewey's political writings. Although there is ample discussion of freedom, community, individualism, liberalism, and democracy in the corpus, there is almost no mention of justice. Moreover, what Dewey does say about justice tends to be platitudinous and vague. Indeed, the concepts and concerns which drive familiar disputes about justice seem invisible to Dewey. My aim in the paper is to make some progress in thinking through the question of what pragmatists-- particularly those who incline towards Deweyan pragmatism-- should think about justice. My conclusion is that pragmatists should embrace John Rawls's two principles of justice, as well as the kind of justificatory device he employs in defending them.