Revisiting Nagel on the Absurdity of Life (Part Two)

Tweet

(Part One)

As an undergraduate student (in law), many many years ago,* I read Albert Camus’s book The Myth of Sisyphus. The work introduced me to absurdism, which is a philosophical position holding that life is devoid of all meaning and significance. It was a seminal moment for me, and an important stepping stone in my intellectual life.

But Camus’s book wasn’t particularly persuasive or perspicuous, so when I expressed my interest in absurdism to one of my friends (who actually did study philosophy), he recommended that I read Thomas Nagel’s famous article “The Absurd”, which he said presented a more rigorous and satisfying defence of absurdism. Does it?

Well, that’s what I’m trying to find out, several years after originally reading it. In the previous post, I looked at Nagel’s critique of the commonplace arguments for absurdity. I think I made it reasonably clear that I don’t find Nagel’s criticisms entirely convincing, largely because of a lack of clarity, but I think I also made it clear that — to be fair to the guy — critiquing those arguments wasn’t his primary aim. His aim was to present a better argument for absurdism, and the analysis of that argument is the goal of this post.

For those of you who made it through part one, rest assured that I won’t be nearly as dry or painstaking in my discussion here. That’s because, unlike the critical part of the article which lasted a mere two pages, Nagel’s positive case for absurdism runs for nearly ten pages. Subjecting each and every paragraph from those ten pages to a careful analysis and formal reconstruction would really be pushing it.

So I’ll be brief. First, I’ll set out my reconstruction of Nagel’s argument. Then, I’ll consider how he defends the key premises of that argument.


1. Nagel’s Argument for Absurdity
Nagel starts with an observation about absurdity in everyday life. He says:

In ordinary life a situation is absurd when it includes a conspicuous discrepancy between pretension or aspiration and reality: someone gives a complicated speech in support of a motion that has already been passed; a notorious criminal is made president of a major philanthropic foundation; you declare your love over the telephone to a recorded announcement; as you are being knighted your pants fall down.  

(Nagel, 1971, p. 718)

I don’t know about you, but I find these examples a little odd. Some of them sound more like irony or misfortune than absurdity, but then again I’m not sure absurdity is a concept we are competent in using prior to any philosophical analysis. So I’m willing to go with the basic idea: that it is absurd when there is this mismatch between aspiration and reality.

But the paragraph quoted only talks about absurdity within someone’s life. It does not speak to the absurdity of life as a whole. What is needed for that? Nagel suggests, rather straightforwardly, that absurdity in life as whole simply requires the extension of his analysis to every event in life. In other words, life as a whole is absurd if there is a persistent and inescapable discrepancy between what we hope or desire for our lives and what reality grants us.

So what do we hope for our lives and what does reality grant us? The answer, according to Nagel, is that we treat our lives as matters of utmost seriousness (and hence seriousness is what we aspire to), but we are constantly thwarted by the fact that we can also view our life plans and goals as arbitrary and open to doubt. This gives us the basis for his argument, which runs as follows:

• (1) Our lives are absurd if there is a persistent and inescapable discrepancy between our aspirations and what we can actually achieve. 

• (2) If we treat our lives as matters of serious concern, but they are unavoidably open to doubt and questioning, then there is a discrepancy between what we can achieve and what we desire. 

• (3) We treat our lives as matters of serious concern. 

• (4) But our life plans are always open to doubt and questioning. 

• (5) Therefore, our lives are absurd.

In the remainder of the post, I’ll look at how Nagel defends premises (3) and (4). They form the real backbone to his argument. The other two premises require less comment but some few words are in order. As for the first premise, which supplies the motivating principle, I noted above how the examples Nagel uses to derive this principle are odd. Still, as I also noted, I’m willing to run with it, if only because I don’t know of any other good candidate analysis of absurdity. The second premise is sort of a stipulation made by Nagel in the article, but I think it becomes more plausible if we look at how Nagel cashes out the notion of “treating one’s life with seriousness” and the “unavoidability of doubt”. I will say though — and this becomes more significant toward the end — the premise leaves open the possibility that not treating one’s life as a matter of serious concern might make it less absurd (or, rather, more livable). Nagel ends his article by endorsing this shift in attitude.


2. Defending the Premises
Let’s start with the defence of premise (3). As I said already, this premise is a little puzzling since, at the end of the article, Nagel advocates treating one’s life with irony. This suggests that even he thinks it is possible to avoid treating one’s life seriously and so to avoid the pitfalls of absurdity. But then again he also says “we take our selves seriously whether we lead serious lives or not” (p. 719).

So what exactly is Nagel driving at when he says we always treat our lives as matters of serious concern? Charitably, I think he’s saying one of two things: (i) we all easily fall into the trap of treating our lives as matters of serious concern; and/or (ii) we explicitly or implicitly desire that our lives be matters of serious concern, i.e. that they are “worth it” in some way. Consider:

[People] spend enormous quantities of energy, risk and calculation on the details [of their lives]. Think of how an ordinary individual sweats over his appearance, his health, his sex life, his emotional honesty, his social utility, his self-knowledge, the quality of his ties with family, colleagues, and friends, how well he does his job, whether he understands the world and what is going on in it. Leading a human life is a full-time occupation, to which everyone devotes decades of intense concern. 

(Nagel, 1971, pp 719-720)

I think there’s a lot of truth in what Nagel says here, and I see a lot of myself in this description. Although I like to think of myself as a pretty ironical individual, with a healthy appreciation for the absurd, the reality is that I devote myself to my pursuits. I think it important to write blog posts, to read academic articles, to write research papers, to talk to my family, to cultivate my friendships, to develop and sustain a meaningful relationship with my partner, and so on. What’s more, I want my efforts in each of these domains to be taken seriously by others, to be appreciated for there successes and chastised for their failures. Heck, I even devote myself with utmost conviction to cultivating my ironical and absurdist attitudes.

So I can see what Nagel is getting at, and I can see the appeal of premise (3).

But on its own premise (3) is harmless. Devoting ourselves to our projects with utmost concern would be fine if those projects were proper objects of concern. It’s at this point that premise (4) arrives on the scene to spoil the party. Premise (4) claims that we can always view our life plans and goals as arbitrary and open to doubt. Thus, I can question whether I should be writing this blog post, whether I should be pursuing a career in academia, whether I should cultivate friendships and relationships and so on. There are many options out there, many other things I could have been doing, and there is no really reason to think my chosen path in life is better or more worthwhile than those.

There’s more to premise (4) than that though. Indeed, as I’ve just described it, it doesn’t seem all that different from the bad “Chain of Justification” argument that was discussed in part one. Nagel acknowledges this and tries to differentiate the argument he is making from that bad one. He is not simply saying that we have the power to question or challenge the reasons for our actions. No; he is saying we have the power to question the entire scheme of justification that sustains our lives in the first place. In other words, that we have the power to step back from the serious business of living, to view our lives sub specie aeternitatis (under the aspect of eternity):

We step back to find that the whole system of justification and criticism, which controls our choices and supports our claims to rationality, rests on responses and habits that we never question, that we should not know how to defend without circularity, and to which we shall continue to adhere even after they are called into question. 

(Nagel, 1971, p. 720)

A commonly proposed escape route from this sceptical and cynical view is the “higher scheme” escape route. According to proponents of this view, our lives can regain significance and meaning if they have some role or function to play in a higher scheme, something that is bigger than ourselves. Thus, rebels fighting a revolutionary war might see their individual lives as having a significance within the revolutionary cause, or a Christina might see their lives as having significance in God’s plan for salvation. But Nagel argues that even these higher schemes can be called into question by taking the view sub specie aeternitatis. We can always question the validity and worthwhileness of the revolutionary cause or the divine plan, and this leads to an infinite regress. The solid ground we are looking for will never be found. It’s turtles all the way down.

What’s more, and this crucial, even after we take the sceptical view, we get sucked back into the business of living, and continue to take our lives seriously. Thus, although I have found myself questioning what it is all for — what value is there to my life, to the lives of my friends and family, to the existence of the human race, to the universe as whole, to the divine plan for the universe (if there is one), and so on — I still get on with the business of living, and I still take it pretty seriously. It is this juxtaposition of attitudes that lends human life its absurd and tragic aspect.


3. Concluding Thoughts
Or so, at least, Nagel argues. For him the effect of this argumentation is much like the effect of the arguments for epistemological scepticism. Once you’ve spent the requisite amount of time arguing about Descartes’ demon and wondering whether you might be a brain-in-a-vat, you will know that it’s very difficult to justify, conclusively, one’s core beliefs, such as belief in an external world. You have to just accept an arbitrary grounding and get on with it. Embracing absurdism is a little bit like that. The only antidote, according to Nagel, is to approach life with a sense of irony. That way we at least acknowledge the absurdity and avoid being overly serious. For if it is true that nothing really matters, then it is also true that it doesn’t matter that nothing matters.

I think there is much to Nagel’s argument, and certain aspects of it speak to my own experiences with doubt and philosophical questioning. But I’m still not convinced that it is correct. Premise (4) looks questionable to me. Implicitly, it relies on the belief that no life plan or pursuit is free from doubt or questioning. But as many others have argued, there may be activities and states of affairs that are intrinsically and necessarily good. These kinds of activities and states of affairs would not be open to the kinds of doubts that Nagel’s argument requires. If so, the discrepancy between aspiration and reality may not arise.

Now, I’m sure Nagel would object and tell me that even putative intrinsic goods are open to questioning, just as his argument is open to questioning, and just as everything in philosophy is open to questioning. Still, I think if we are to avoid absurdity — and I’m not saying this is something we should avoid — the “intrinsic good”-solution is likely to be the best available one. With any luck, I’ll get the chance to look at some defences of this solution in future posts.

Anyway, I’ll leave you with some Louis C.K. talking about all the benefits you get from a “basic life” (definitely NSFW!).



* 2006 to be precise. Not sure if that fits with your definition of “many many years ago”, but it seems like it from my perspective.

Revisiting Nagel on the Absurdity of Life (Part One)

Tweet

Is life absurd? Should we bother with it? Does it matter either way? Rightly or wrongly, Thomas Nagel’s 1971 article, “The Absurd”, is one of the most celebrated and widely-cited contributions to the literature on these questions. I certainly am struck by how frequently people refer to it in conversations I have with them about this topic. It seems like anyone with even a dim awareness of the literature will have heard of Nagel’s piece.

Even more striking is the fact that although people often aver to the opening passages, in which Nagel dismisses common arguments for the absurdity of life, they also tend to ignore or downplay the rest of the article, in which Nagel defends the absurdist view. This omission is sometimes found among non-believers, who like using the opening passages to critique theistic conceptions of meaning (e.g. William Lane Craig’s). Indeed, this is something I did in one of my old podcasts, though I believe I did discuss Nagel’s defence of absurdism in the end.

Anyway, I’m mentioning all of this because one of my current projects looks at the intersection between transhumanism and the philosophical debate over the meaning of life. As part of that project, I thought it would be worth revisiting Nagel’s famous article, and taking a closer look at its key arguments. So that’s what the next two blog posts will be about.

In this post, I’ll look at the critical phase of the article, in which Nagel dismisses commonplace arguments for absurdity. In the next post, I’ll look at his own argument for the absurdity of life.


1. A Comment on Methods and an Introduction to the Arguments
As is my wont on this blog, I want to carefully unpack and formally reconstruct Nagel’s critique of the commonplace arguments for absurdity. This turns out to be a difficult task. The oft-cited critical phase of Nagel’s article is exceptionally brief. By my estimate, it occupies slightly less than two pages of the text. What’s more, the argumentation in these pages is dense, with four separate arguments being introduced and dismissed in short order.* This means the logic is often compressed and epigrammatic; decompressing it requires a good deal of interpolation and patience.

It’s actually worth commenting on why this is since it allows me to make a meta-point, one that I think will be useful to anyone interested in analysing and evaluating arguments in a rigorous manner. The main problem is that Nagel’s presentation and critique of the four arguments is enthymematic in nature. An “enthymeme” is a compressed form of argument, common in everyday conversation and political rhetoric. As you probably know, a classical syllogism is a three-part argument consisting of a major premise (usually a statement of some abstract principle), a minor premise (some statement of fact), and a conclusion (which shows how the fact relates to the general principle). An enthymeme is a two-part argument, in which one of premises from the syllogism is left unstated. In my experience, it is the general principle that is most often left out. Thus, an enthymeme typically consists of a statement of fact and a conclusion. “It’s raining. Therefore, the traffic will be bad” is an enthymeme of this type.

You might think, given this characterisation, that enthymemes would be transparently bad arguments. After all, how can you reach a conclusion without one of the logically required elements of an argument? But in most aspects of our lives we share a good number of assumptions and principles. It’s what makes communication possible. Hence, when listening to people make enthymematic arguments, we often do them the courtesy of implying or filling in the assumptions needed to make their argument logically sound. In fact, this is such a natural courtesy, that we sometimes grant people the assumptions when we really shouldn’t — i.e. when they are actually making bad arguments.

I often tell my students that when they are assessing philosophical arguments, or when they are presenting their own, they should avoid the use of enthymemes. As much as possible, they should render every argument in its complete logical form. This way they’ll start spotting flawed principles in arguments made by others, and start defending the questionable principles in their own arguments. In many ways, cultivating this habit of mind is what philosophy is all about.

Now, in a sense, this is exactly what Nagel does in the opening passages of his article. Because he is dealing with commonplace arguments for the absurdity of life, and because these commonplace arguments tend to be enthymematic in form, one of his initial tasks is to expose the flawed principles and assumptions underlying those arguments. But what is so frustrating about these passages is how, in presenting his own criticisms, Nagel never bothers to render the commonplace arguments in their proper logical form, isolate the problematic premises, and subject them to a perspicuous evaluation. Instead, he states them in their enthymematic form, and responds in a circuitous and correspondingly enthymematic form himself.

I appreciate this might be because Nagel isn’t too concerned with the commonplace arguments in his article. His main goal is not to critique the absurdist position, but to offer a novel (in 1971!) and more persuasive defence of it. That’s perfectly legitimate. But I have more time and space to play around with, and I want to do a more thorough job on the commonplace arguments. So that’s what I’ll do in the remainder of the post. As I do so, I think you’ll begin share my view that Nagel’s objections to these arguments aren’t as good as they might first appear to be. Not that the arguments are all that great either.


2. The “Temporally Distant Mattering” Argument
The first argument Nagel deals with — for want of a better name — is the “Temporally Distant Mattering” Argument (TDMA for short). According to this argument, our lives are absurd because nothing we do now will matter at some temporally distant point, say one million years hence. Here’s what Nagel says about it:

It is often remarked that nothing we do now will matter in a million years. But if that is true, then by the same token, nothing that will be the case in a million years matters now. In particular, it does not matter now that in a million years nothing we do now will matter…Whether what we do now will matter in a million years could make the crucial difference only if its mattering in a million years depended on its mattering, period. 

(Nagel, 1971, p. 716)

Let’s try to unpack what Nagel is saying here by spelling out the logic of the TDMA:

• (1) In order for our lives to have meaning (i.e. to not be absurd), what we do now must matter at some temporally distant point, e.g. one million years hence.

• (2) Nothing we do now will matter one million years hence.

• (3) Therefore, our lives are absurd.

The first premise states a condition for a meaningful life. It may be a necessary or a sufficient condition, but that doesn’t “matter” too much “right now”. It will in a moment. The second premise makes a factual claim and is the basis of the original enthymeme. I think it is of dubious merit. The problem is that this notion of “mattering” is incredibly vague. If it just means “will have some effect” on the state of the universe one million years from now, then I suspect it is false. Everything we do now may well have some causal effect on the future, however minimal that may be. Maybe it won’t have a “large effect” or an “effect of the right type”, but if that’s the concern that needs to be made much clearer.

In any event, Nagel eschews this kind of factual criticism. Instead he points to a supposed implication of premise (2), which has a knock-on effect on the plausibility of the premise (1). If I could reconstruct the argument from the quoted passage, I would put it thusly:

• (4) If it is true than nothing we do now will matter one million years hence, then it is also true that nothing that happens one million years hence matters now.

• (5) But if (4) is true then (1) is false.

• (6) (4) is true (because (2) is true).

• (7) Therefore, (1) is false.

In other words, Nagel is saying that the fact that nothing that happens in a million years matters now gives us some reason to doubt the unstated principle guiding the original objection.

I have some worries about this. While I suspect the conclusion is true, I think the argument is questionable. For one thing, it all depends on the precise meaning we give to this concept of “mattering” in premise (4). If we interpret it to mean “has some causal effect”, then it’s probably true. But if it means “has some significance for how we live our lives now”, then it’s probably false. The possible future does have some significance for our behaviour. I make decisions all the time based on what I think my possible future might be like. Granting this, why couldn’t it be true that the possible state of the universe one million years from now has an effect on how I live my life now? The claim that (4) follows from (2) doesn’t seem right to me.

There is also the nagging suspicion that Nagel’s critique really just begs the question against the original objection. Surely one of the things that is at dispute here is whether what happens one million years hence matters for us now. To claim that nothing that happens one million years hence matters now is to assume the conclusion that needs to established. Nagel may say he has established this by derivation from premise (2) but I don't think that's correct for the reasons I have just stated: the future state of the universe could make a difference to how you live your life now.

More charitably, Nagel is simply making the point that the original premise doesn’t plausibly state a sufficient condition for meaning. This much is suggested by some of his other comments:

[E]ven if what we did now were going to matter in a million years, how could that keep our present concerns from being absurd? If their mattering now is not enough to accomplish that, how would it help if they mattered a million years from now? 

(Nagel, 1971, p. 716)

I am quite sympathetic to this line of reasoning. Although I suggested it was possible a moment ago, it does seem odd to say that what happens one million years hence could provide the “magic ingredient” needed to avoid absurdity. The only problem here is that while premise (1) may not state a sufficient condition for meaning — and hence it seems like an odd claim — it may state a necessary condition for meaning. In other words, it may be true that mattering one million years hence plus some other factor is sufficient for meaning, even if mattering one million years hence on its own is not. This problem crops up elsewhere in Nagel’s critique.

Finally, there is a sense in which Nagel’s argument gestures toward the following sentiment:

Nothing Matters Principle: If it is true that nothing matters, then it also true that it doesn’t matter that nothing matters.

This is right, and indeed it seems like Nagel ultimately endorses it through his defence of absurdism. But it is distinct from the concerns articulated by the TDMA and does not follow from Nagel’s critique of that argument.


3. The “Smallness and Shortness” Arguments
The second and third commonplace arguments claim that the shortness and smallness of our lives render them absurd. Nagel describes them like this:

What we say to convey the absurdity of our lives often has to do with space or time: we are tiny specks in the infinite vastness of the universe; our lives are mere instants on a geological time scale, let alone a cosmic one; we will all be dead any minute. But of course none of these evident facts can be what makes life absurd, if it is absurd. For suppose we lived forever; would not a life that is absurd if it lasts seventy years be infinitely absurd if it lasted through eternity? And if our lives are absurd given our present size, why would they be any less absurd if we filled the universe (either because we were larger or because the universe was smaller)? 

(Nagel, 1971, p. 717)

I think Nagel is right to condemn both arguments, and I think his reasoning here is slightly stronger than it was in the first case, but we still need to be careful. Let’s unpack the logic behind both objections and clarify Nagel’s responses.

The size objection will be dealt with first. Nagel seems to interpret it thusly:

• (8) In order for our lives to have meaning (i.e. not be absurd), we must not occupy too small a physical space within the universe. (Corollary: to avoid absurdity we must occupy a sufficiently large space within the universe).

• (9) We occupy too small a physical space within the universe (we are mere tiny specks in the infinite vastness).

• (10) Therefore, our lives are absurd.

Nagel rejects this argument on the grounds that premise (8) states neither a necessary nor a sufficient condition for meaning. And I think he’s right to do so. There is no reason to think that increased physical size would make our lives less absurd. Indeed, it might make it even more absurd. Imagine a simple box universe in which your body takes up almost the entire physical space within the box. With nothing else in the box, all you can do is sit around all day until (hopefully) the box collapses back in on itself. Surely that would be an absurd existence?

Still, I wonder whether this is an incredibly uncharitable interpretation of the commonplace argument. It could be that the premise underlying the “we are mere specks of dust”-claim is not about physical size per se, but rather about the size, extent and duration of one’s causal influence on the universe. That sounds more plausible to me since it maps onto to concerns many people have about their lives on earth, e.g. how can one person make a difference give the causal and social complexity of modern life?. This argument would raise concerns similar to those raised by the TDMA, albeit in a more precise manner.

That brings us to the shortness argument, which Nagel seems to interpret as a kind of immortality argument:

• (11) In order for our lives to have meaning (i.e. not be absurd), they must go on forever.

• (12) Our lives do not go on forever; they are quite short.

• (13) Therefore, our lives are absurd.

This, of course, is a very common line of argument, one that features heavily in religious accounts of the meaning of life. Nagel refutes it with an equally common line of argument, which I state as follows:

• (14) If a current human life with a duration of approximately 70 years (L₇₀) is absurd, then the same kind of life with an infinite duration (L_∞) will also be absurd.

In other words, to reiterate something I said previously, indefinitely extending a lifespan does not add the magic ingredients needed for a meaningful life.

There are a couple of problems here. First, the crucial assumption of Nagel’s critique is that L_∞ will be qualitatively similar to our absurd lives. But this might be wrong. Knowing that one will live forever might have significant qualitative changes on one’s life. This links to the second problem, which is that although immortality may not be sufficient for meaning, it might be necessary.


4. The “Chain of Justification” Argument
The fourth and final commonplace argument is concerned with the effect of death on the chains of justification in our lives. Nagel puts it like this:

Another inadequate argument is that because we are going to die, all chains of justification must leave off in mid-air; one studies and works to earn money to pay for clothing, housing, entertainment, food, to sustain oneself from year to year, perhaps to support a family and pursue a career — but to what final end? All of it is an elaborate journey leading nowhere. 

(Nagel, 1971, p. 717)

This is actually quite a complex argument, partly due to its opacity. It raises issues analogous to those raised in debates over the cosmological argument in the philosophy of religion. Specifically, issues relating to the principle of sufficient reason and the explanation of causal chains. I’m going to blur some of that complexity in my formal restatement, which is:

• (14) A life consists in a finite chain of events, from E_birth…E_death.

• (15) In order for our lives to have meaning (i.e. to not be absurd), every event that takes place within them (E_n) must be justified in terms of one or more proceeding events (E_n+1).

• (16) Because life consists in a finite chain of events, at least one event within life cannot be justified in terms of some subsequent event.

• (17) Therefore our lives are absurd.

Nagel rejects premise (15), which is the unstated principle guiding the original objection. There are two problems with it. First, it ignores the possibility that events within life could have intrinsic justification or meaning. In other words, their meaning or significance may not depend on any subsequent events. Thus, think of any activity or project that you pursue for its own sake, not for its subsequent benefits. For example, I play my guitar for the sake of that activity alone, not because it makes me a better person or because I want to be a successful musician. Second, the argument makes an unreasonable demand by suggesting that justifications are needed for everything in terms of something else. But this leads to an infinite regress of justification that could never be satisfied:

Since justifications must come to an end somewhere, nothing is gained by denying that they end where they appear to, within life — or by trying to subsume the multiple, often trivial ordinary justifications of action under a single controlling life scheme. We can be satisfied more easily than that. In fact, through its misrepresentation of the process of justification, the argument makes a vacuous demand. It insists that the reasons available within life are incomplete, but suggests thereby that all reasons that come to an end are incomplete. This makes it impossible to supply any reasons at all. 

(Nagel, 1971, p. 718)

I have little enough to say about this, except that I think it is right. I think chains of justification do have stopping points and that this could impact upon arguments for the meaning of life. Still, I find it somewhat odd that Nagel thinks this a devastating objection to the commonplace argument. Why? Well, because when he gets around to making his own argument in favour of absurdity he relies on a very similar, infinite regress-style, principle. I’ll take this up in part two.


* There is possibly a fifth argument, depending on whether you think Nagel’s remark about the fact that ‘we will all be dead any minute’ picks out an argument that is distinct from the argument about the length our lives. It is possible a point is being made here about the fragility of our lives, not their temporal duration. However, Nagel doesn’t make much of this remark subsequently so I’ve ignored that possibility. Fortunately, I wrote about this objection once before in my series on Di Muzio’s article “Theism and the Meaning of Life”.

Book Recommendations ♯9: The Problem of Political Authority

Tweet

(Series Index)

I’ve been meaning to recommend Michael Huemer’s latest book — The Problem of Political Authority — for some time. I don't have much to say about it, except that it is the most comprehensive and tightly-argued defence of political anarchism that I’ve ever come across.

It is a book of two halves. In the first half, Huemer looks at the problem of political authority, which he says consists in two sub-problems. The first being the problem of political legitimacy, i.e. does the state have to make certain laws and enforce them by coercion? The second being the problem of political obligation, i.e. do people have an obligation to follow the laws made by the state? Huemer uses an arresting thought experiment to start his investigation of both questions. He asks us to imagine a village with a vandalism problem (and no state to police it). You and your family decide to put a stop to the problem by patrolling the neighbourhood with your guns, catching vandals, and locking them in your basement. You keep them locked in your basement for a few years to teach them a lesson. You then go around to all your neighbours and ask them for money to fund your patrol. If they don’t pay, you drag them back to your house and lock them in the basement as well. The question is: are your actions here reasonable? Do you have the authority to do this? And do your neighbours have an obligation to obey your rule?

Huemer presumes that most people would find your actions morally outrageous. But this brings the problem of political authority into sharp relief. If your actions are not morally justified, and if no one has an obligation to obey you, then what exactly is it that gives the state the authority to do the same things? Huemer proceeds through the leading answers to that question in the first part of the book, finding serious shortcomings in all of them. What I like about this part of the book — and about the book as whole — is the simple, matter-of-fact way in which Huemer presents his arguments. Take, for example, his discussion of social contract theories of political authority. Now, I’m broadly sympathetic to these theories, and I think they offer the best route to a plausible metaethics, but I’m impressed at how efficiently Huemer exposes their deficiencies. He relentlessly points out the ahistorical, anti-empirical, impractical and idealising assumptions at the heart of the these theories. There’s nothing new in this (I’ve heard these criticisms before) but something about Huemer’s prose style makes it less easy to ignore them then it had been in the past.

The second half of the book argues for a form “anarcho-capitalism”. This part is more constructive and, perhaps unsurprisingly, less persuasive (to me, at any rate). The problem is that Huemer argues for a pretty radical set of views, calling for the privatisation of social security (and the “protection” industries as a whole), the law, and the military. I have a good deal of resistance, both intellectual and intuitive, to these views and I have a hard time overcoming that resistance. To be fair, Huemer seems perfectly aware that his views are radical; he simply asks the reader not to dismiss them for that reason alone. He has his arguments, and if one is going to reject his views, the premises of those arguments will need careful scrutiny. This short review, however, is not the place for that.

In sum, an impressive, easy to read, and efficient critique of political authority, coupled with a provocative defence of anarcho-capitalism. Worth a read.

Is there a Case for Robot Slaves?

Tweet

Right now it’s Sunday afternoon. There is large pile of washed, but as yet un-ironed clothes on a seat in my living room. I know the ironing needs to be done, and I’ve tried to motivate myself to do it. Honestly. The ironing board is out, as is the iron, I have lots of interesting things I could watch or listen to while I do the ironing, and I have plenty of free time in which to do it. But instead I’m in my office writing this blog post. Why?

The answer is that I simply don’t like doing it. I find it to be the most unpleasant, unrewarding, and ultimately frustrating of all household chores. Cooking I enjoy, and cleaning I can handle, but the pleasures of ironing (if there be any) continue to elude me. If only there was some kind of robot that could do the ironing for me? I would buy one in a heartbeat (money-permitting). But then this raises an interesting question: would it be right to get a robot to do this for me? If I find the task so unpleasant, could I justifiably “enslave” a robot to do it on my behalf?

I guess it all depends on what we mean by the word “robot”. If we simply mean a machine that is designed to perform this particular function, but with no sophisticated human-like capacities, then who cares. After all, I don’t get plagued by ethical doubts every time I switch on my washing machine. But if we mean by “robot” a sophisticated artificial intelligence which, to all outward appearances, seems to have the mental capacity equivalent to or greater than that of an ordinary human being, things might be very different. Unsurprisingly, it is this latter case that I want to consider.

In exploring this issue, I want to consider an argument put forward by Steve Petersen. In his paper, “Designing People to Serve” (which appears in the collection Robot Ethics: The Ethical and Social Implications of Robots), Petersen puts forward a rather provocative thesis. In contradistinction to an intuitively appealing view against robot servitude, Petersen defends the following view:

Petersen’s Thesis: It is possible that: (i) robots (artificial intelligences) could be persons in the morally thick sense of that word; (ii) that as persons they could be designed to be our dedicated servants (i.e. to do the things we want them to do like ironing); and (iii) that they are not wronged by being designed to serve us in this manner.

As I say, this is a provocative thesis, particularly in its third component. To claim that there could be persons who are nonetheless permissibly enslaved looks to be obviously false. If nothing else has been learned from the history of human slavery, surely it is that this kind of enslavement is wrong. This is a judgment that science fictional representations of robots seem to accept. For example, Asimov’s story “The Bicentennial Man” plays upon this theme by depicting the rather tragic life of a robot who must ultimately obey human commands (there is a particularly evocative passage in the story that makes this point).

So what kind of argument can Petersen proffer in defence of his thesis? I map it out below, starting a thought experiment, then looking at the specific argument he makes in favour of robot servitude, and finally considering his responses to some objections. Just to be clear from the outset, the focus here is only on the third prong of Petersen’s thesis. In other words, I’m assuming arguendo that artificial persons are a real possibility and that they could be designed to serve human goals. As it happens, I am inclined to agree with both of these claims, but there are others who do not, and they have arguments that would need to be considered separately.


1. The Person-o-Matic Thought Experiment
One of Petersen’s key points is that the defence of his thesis requires us to overcome some powerful moral intuitions. I can certainly see his point. Designing persons to serve our interests seems to clash with deeply held beliefs about autonomy, flourishing and the well-lived life. To overcome these intuitions, Petersen uses a thought experiment involving a machine, something he calls the “Person-o-matic”. This is a machine that, with the pressing of a few buttons and the twiddling of a few knobs, can create any possible person (organic or artificial). The question is: which buttons can we press and which knobs can we twiddle?

Start with the simplest case. Could we press buttons creating an organic person with unknown/uncertain desires and dispositions? The answer would seem to be “yes, of course”. If it’s permissible to create organic persons through the more traditional means of sexual reproduction, then surely it’s permissible to create an organic person using the machine. The means of production shouldn’t alter the permissibility of the act (certainly not when the machine has no known side effects). But if that’s right, then why couldn’t we create an artificial person with the same characteristics? Surely, the mere fact that the persons are made of different substances doesn’t alter the permissibility conditions for their creation.

To clarify, it may well be that it is impermissible to create persons in certain circumstances. For instance, if there are insufficient resources for them to survive, or if no one will look after them in their early development (this may not apply to artificial persons of course). But this context-specific impermissibility does not undermine the general conclusion that it is (oftentimes) permissible to create persons, organic or artificial.

Having established moral parity between organic and artificial persons, we move on to consider the different innate dispositions and desires we might give these people. First up, let’s ask ourselves: would it be permissible to create an “enhanced” person? Specifically, a person with enhanced desires, for example, the desire to do good in the world, to avoid cigarettes, to enjoy healthy food more than the average human being, and so on. We might feel a bit iffier about this one. The main reason for this is probably that the manipulation of desires in this manner seems to undermine autonomy. Since the person is hardwired to be strongly predisposed to avoid vice and pursue virtue, we might be inclined to say that they aren’t doing these things of their own volition, that they aren’t truly responsible for their actions.

This gets us into stormy philosophical waters. It might be the case that hard determinism is true and that all our intuitions about autonomy and responsibility are metaphysical nonsense anyway. In that event, there would almost certainly be nothing wrong with creating such people. Indeed, there might be great deal to be said in its favour. But even if hard determinism is not true, and autonomy and responsibility are meaningfully applied to the human condition, there is a problem. People are already created with innate sets of dispositions and desires, some stronger than others. Do they thereby have their autonomy undermined? If not, then there’s no reason to think that creating people with enhanced dispositions undermines autonomy. Indeed, if there’s no perfectly neutral starting point, why not bias people toward the good?

We arrive then at the last step in the thought experiment. Would it be permissible to fiddle with the dials on the Person-o-Matic so as to create an artificial person that served our needs? Petersen argues that it would be. In doing so, he appeals to one very simple idea: the contingency of our desires. Desire-fulfillment is a relative property, it arises when there a person’s desires align with the state of their world. Thus, if I desire ice-cream, my desire is fulfilled whenever the world is such that I am given an ice-cream. Furthermore, desire-fulfillment is good, perhaps intrinsically so, according to many axiological theories. Thus, being in a state of desire-fulfillment is (ceteris paribus) a net positive. But the content of my desires is a contingent fact about me. In other words, I could desire pretty much anything, and still be fulfilled whenever my desires, whatever they happen to be, are satisfied. I could desire tea, or a bicycle ride, or a trip to the Moon. To be sure, our evolutionary history has probably predisposed us towards certain types of desire (food, sex, shelter, power etc.), but that doesn’t defeat the point: it is possible for us to desire anything and for us to be benefitted by having our desires fulfilled.

Here’s the key move: when it comes to designing artificial persons, we are not constrained by our evolutionary history in the creation of desires. We could endow an artificial person with any set of desires that it is technically possible to endow such a person with. So why not endow a robot with an overwhelming, deep, second-order desire to do the ironing? Why not make it so that they are in the deepest state of satisfaction whenever they are in the midst of folding my clothes?

The argument, such as it is, boils down to this:

• (1) It is not wrong (ceteris paribus) for a person to have their deepest desires satisfied. 

• (2) An artificial person could be created whose deepest desire would be to serve our interests and needs. 

• (3) We could make it so that the artificial person had the opportunity to serve our interests and needs. 

• (4) Therefore, it is not wrong (ceteris paribus) to create an artificial person with the deepest desire to serve our interests and needs.

The ceteris paribus clause in the first premise is designed to avoid objections like: “Well, what if they were created with the desire to kill other people?” This would obviously be wrong, but that is because some outcomes are objectively wrong and hence it is wrong to bring them about, even if it does satisfy your desires. That kind of objection is a red herring. There are, however, three more serious objections, each of which is considered by Peterson in his article.


2. Three Objections and Replies
The three main objections to the argument are as follows:

(5) Autonomy Objection: It is wrong to dictate a person’s life plan to them. In creating an artificial person to serve our interests and needs, we would be instrumentalising them, treating them as a means to our own ends, not as a true autonomous agent.

(6)Higher Goods Objection: There is a distinction between higher goods and lower goods such that a minimal quantity of the former is better than a high quantity of the latter (better to be Socrates unhappy than a pig happy). In creating robot slaves we would be creating people who are doomed to a life filled with lower goods.

(7)Slippery-Slope Objection: Even if it is not intrinsically wrong to create robot slaves, it does give rise to a morally worrying slippery slope. Specifically, it seems like it will desensitise us to the needs and interests of human persons, and will thus condition us to act callously toward them when they do not wish to do our dirty work.

Let’s deal with each of these objections now.

The autonomy objection directly targets premise one. It holds that getting a person to satisfy their desires is only good if their desires are truly their own, not if they are means to serving our interests and needs. To some extent, this simply replicates the autonomy-based concerns highlighted above and so a similar set of replies would work once again. In addition to this, however, the objection also raises Kantian concerns about the treatment of artificial agents. It argues, a la Kant, that instrumentalising an agent in this manner is to treat them as a mere means to our ends, not as an end in themselves. This breaches Kantian requirements for the ethical treatment of autonomous agents.

Petersen’s response is to argue that Kant’s objection works only if the agent is being treated as a “mere” means, and not just because they are being treated as a means to an end. The distinction is subtle but crucial. To be treated as a mere means is to be forced to do someone else’s bidding without, at the same time, being given the opportunity to pursue your own ends. This is morally problematic. But to simply be treated as a means to an end is okay, if you are, at the same time, being allowed to pursue your own ends. Thus, to use the classic example: two friends meet weekly to play a game of squash. Both desire the exercise and excitement of the game, both use the other as a means to this end. But both get to pursue their own ends in the process, so where’s the problem? Peterson argues that the same is true for the robot slave. They pursue their own deepest desires in the process of serving our ends.

• (8) There is nothing wrong with treating a person as means to an end, provided they are not prevented from pursuing their own ends in the process. A robot slave would be pursuing its own ends by serving our interests. Thus, it would not be instrumentalised in a morally objectionable manner.

The Higher Goods objection is slightly more interesting, and also targets premise one. It adopts Mill’s famous dictum about higher and lower goods, holding that the kinds of desires robot slaves would be programmed have — desires to do our laundry, cook our food, clean out our trash and so forth — only allow for lower hedonic forms of pleasure. They do not allow for the higher intellectual and aesthetic goods beloved by Mill (among others). Thus, robot slaves live an impoverished form of life, one that is excluded from the higher goods.

A number of responses suggest themselves here. The first is simply to deny Mill’s dichotomy and argue that pursuing one’s deepest desires (provided those desires are not immoral) constitutes the highest good for that person. But that might index well-being to individual perceptions to an undesirable degree. A second response would be to adopt a simple “less good, but not bad” line of attack. In other words, to argue that although a life filled with higher goods would be better, it does not follow that it is bad, or indeed impermissible, to bring into existence a being that experiences nothing but lower goods. This is especially so if we bear in mind that the robot slave is not wronged by being created with desires for lower goods. After all, they do not exist prior to being brought into this state of affairs. Hence, there is no subject that can be wronged by the act of creation (this is the non-identity problem).

• (9) Creating a life filled with lower goods is not wrong. This because, although it is less good than an alternative life filled with higher goods, it is not therefore a bad life.

Finally, we have the slippery slope objection, which is not targetted at the premises of the original argument; rather, it is targetted at the conclusion. It holds that there is a causal chain from the acceptance and creation of robot slaves to the desensitisation and callous disregard for our fellow human beings. An analogy might illustrate this point. One objection to the torture and maiming of animals is that even if the animals are not themselves harmed in the process, the mindset that such acts encourage tends to be psychopathic in nature, and the psychopathic mind is more likely to do harm to humans. Thus, we should prevent the former in order to prevent the latter. This logic, it could be said, applies equally well to robot slaves and the enslavement of humans.

I like Petersen’s response to this. He says that it relies on the dubious assumption that the “general population is unable to make coarse-grained distinctions in what different people value”. This is dubious because, in our everyday lives, we don’t make the mistake in thinking that because one of our friends likes haggis, all of our friends must like haggis. We are able to distinguish between the desires of different people. Why couldn’t we do the same when comparing robot slaves with ordinary human beings? As Mill once said, any ethical standard “work[s] ill, if we suppose universal idiocy to be conjoined with it”.

• (10) The slippery slope objection presumes people will not be able to make coarse-grained distinctions between what different people value. There is no reason to think this will happen since we make such distinctions all the time.

3. Conclusion
In summary, Petersen’s article makes the case for robot slaves. I have tried to lay out his argument in as succinct and straightforward a manner as possible. This means that some interesting digressions and sub-arguments have been neglected. Still, I hope I have made his central claim pretty clear. It is that if we could program a robot to deeply desire to serve our needs and interests, we would not do wrong by bringing such a robot into existence. Thus, if we do not do any wrong, it would follow that the creation of a robot slave is permissible (it might also be desirable, though additional argumentation would be needed for that).

I find Petersen’s argument to be provocative, iconoclastic, and somewhat appealing. He himself admits to being conflicted by it, noting that his intuitions still seem to rebel against the conclusion. He’s just not convinced that he should trust his intuitions in this instance. I feel somewhat similar, but I’m not ready to make the case for robot slaves just yet. At least, not if we assume such agents to be “persons” in the morally thick sense of that term. Still, I like the debate because it raises important issues about the nature of well-being and its connection to rights and wrongs. I think the idea that well-being is ultimately determined by the relationship between desires and the state of the world is a powerful one, and I think the case for robot slaves brings this idea to the fore in an interesting and practically important way. If AI technology continues to advance apace, the day is fast approaching when we will have make our gamble about the propriety of this view.


Anyway, back to the ironing.

Barnett on Originalism and Pragmatic Enrichment

Tweet

(Don't worry this will be the last post about legal interpretation for a while...)

Over the course of the previous two posts I looked at the phenomenon of pragmatic enrichment and the role it might play in legal interpretation. To quickly recap, pragmatic enrichment arises when the meaning of an utterance is enriched by the context in which the utterance was made. In other words, when the meaning of the utterance is different from, or extends beyond, the semantic content of the words and sentences that make up the utterance.

For the most part, pragmatic enrichment is an uncontroversial aspect of everyday conversation. But it is much more controversial in the legal context. One of the reasons for this is that legal “conversations” (i.e. communications between legal drafters, ratifiers and applicators) are governed by different norms and expectations.

This feeds directly into the debate over constitutional originalism because originalism is, if nothing else, a theory about how the legal content of the constitution is pragmatically enriched by the context in which it is drafted and ratified. This seems like an obvious claim, but, perhaps surprisingly, originalists disagree considerably about the degree to which pragmatic enrichment plays a role in their theories.

One originalist who has paid particularly close attention to this issue is Randy Barnett. In his article, “The Misconceived Assumption about Constitutional Assumptions” he tries to walk a very fine line, distinguishing between the appropriate and inappropriate degree of pragmatic enrichment (although, as per usual in the literature, he doesn’t employ this terminology). Specifically, he holds that pragmatic enrichment plays an important role in determining the meaning of ambiguous constitutional language, but a far less important and more controversial role in determining the meaning of vague constitutional language. Indeed, Barnett holds that the interpretation of the latter is determined more by reference to moral and political concerns.

In this post, I want to look briefly at the main argument Barnett offers in support of this view — something I call the “Failure is not an option”-argument. Although this argument gives us some reason for thinking that pragmatic enrichment is ineliminably moral/political in the constitutional context, it is also difficult to reconcile with other aspects of Barnett’s constitutional philosophy. I want to draw attention to these inconsistencies.

The remainder of the post is divided into three sections. The first gives an overview of some of the key concepts employed by Barnett. The second outlines the “Failure is not an option”-argument. And the third highlights the inconsistencies alluded to above. The post is intended to raise issues that might be worth pursuing, not to definitively argue for a particular view on this matter.


1. Key Concepts and Terms
The following are definitions of four key concepts employed by Barnett in his analysis and defence of originalism. The first two concern different judicial tasks associated with written legal texts. The last two concern different linguistic problems that arise with written texts.

Interpretation: This is the activity of discovering the semantic meaning of language in a given context. According to Barnett, this is an empirical not a normative task. This is because “words have an objective social meaning at any given time that is independent of our opinions of that meaning”.

Construction: This is the activity of applying the semantic meaning to a particular factual circumstance. This can often involve going beyond the semantic content of the text, and into the construction of novel legal tests for ensuring that the semantic content is adhered to in a particular set of cases. According to Barnett, this is largely a moral-political task, not an empirical one.

Ambiguity: This arises whenever a word or phrase has two or more generally accepted meanings. For instance, in the request “Could you give me a ring?” the word “ring” is ambiguous. It could refer to a telephone call or a piece of jewelry. According to Barnett, ambiguity is often (though not always) resolved by examining the context in which the ambiguous phrase was used, e.g. the right to “bear arms” under the 2nd Amendment.

Vagueness: This arises whenever a word or phrase has fuzzy or imprecise boundaries of application. For instance, the phrase “reasonable conduct” is vague because, although there are undeniably clearcut cases, the border between reasonable and unreasonable conduct is very fuzzy. Indeed, it is the subject of much reasonable disagreement.

These four concepts are the backbone of Barnett’s version of originalism, which may be summed up in a simple slogan: “Originalism is (primarily) a theory of constitutional interpretation, not a theory of construction”. In other words, what originalism gives us is a theory for the discovery of meaning, not a theory for the just and proper application of the law. That’s not to say that originalism cannot be defended on moral-political grounds (I considered arguments about this before), but it is to say that that’s not what it is primarily about.

Ambiguity and vagueness feed into this picture in the following manner. Because Barnett thinks that interpretation is about figuring out the meaning of a text in a particular context, and because he thinks ambiguity is usually created by a lack of knowledge about the contextual background to an utterance, he thinks that originalism has a role to play in resolving issues of ambiguity (though note: he thinks there can be cases of “irreducible ambiguity”). Vagueness is quite a different matter. The uncertain boundaries of application are typically inherent to the words in question, not matters that can be cleared-up by reference to contextual factors. Thus, originalism has much less to say about the resolution of vagueness.

As is clear from this description, Barnett thinks that there is some role for pragmatic enrichment in legal interpretation. Indeed, he embeds this into his very definition of the interpretive task, holding that it involves ascertaining meaning in context. But he doesn’t seem to think it has a greater role to play. This puts some distance between him and other originalists (for instance McGinnis and Rapoport) who think that the original context enriches meaning to a much greater extent. Indeed, they argue that all manner of background assumptions, active at the time the constitution was ratified, must be factored-in when determining its meaning.

Barnett thinks that expansive claims of this sort are flawed. But why? We are about to see.


2. Constitutions and Failure is Not an Option
One of Barnett’s central contentions is that confusion over the proper scope of pragmatic enrichment is caused by an improper analogy between constitutions and contracts. On the face of it, the analogy is not too surprising. As many will be aware, the social contract tradition in political morality often draws explicit parallels between ordinary contracts and constitutional texts. The argument being that coercive governmental actions are legitimate only if they are (or hypothetically can be) consented to by the people. And since ordinary contracts create obligations through consent, it is often felt that constitutional texts can only legitimately do the same if they are consented to as well.

While this might be a useful heuristic device for thinking about political morality, and while it might — in the hands of the right theorist — provide a credible basis for political morality, the analogy between constitutions and contracts often breaks down. For one thing, it is extremely rare — indeed, I’m not aware of it ever having been the case — that a constitutional text is consented to by everyone in society. At best they might be consented to by a majority, and even then the majority might be a historical reality, not a contemporary one. This undermines the claim that constitutional legitimacy is or can be based on consent.

But what does this have to do with originalism and interpretation? The answer actually brings us back to Marmor’s argument from my earlier posts on pragmatic enrichment. Marmor’s argument was that pragmatic enrichment is relatively uncontroversial in ordinary conversations because they are governed by a discernible and generally agreed-upon set of norms (Grice’s cooperative norms), but that the situation is very different for legal “conversations”. Barnett essentially makes the same point but uses ordinary contracts as a stand-in for ordinary conversations, and then draws attention to an important point about contracts, namely: failure is an option when it comes to contracts.

Barnett’s point is that contracts are negotiated between parties in the rough equivalents of ordinary conversations, and that contractual obligations are conditional on consent. There are usually relatively few parties, they share many background assumptions, and these assumptions rightly feed into the interpretation of contractual terms. Hence, pragmatic enrichment can play a significant role in determining the meaning of contractual terms, even vague ones. But even if all the features that typically allow for pragmatic enrichment to take place break down in ordinary contracts (as they sometimes do) it’s not a major problem. We can simply say consent is lacking, and so courts can unwind contracts and disengage parties from their mutual obligations. In other words, if it turns out that parties did not share the same assumptions about their contract, it’s not the end of the world. The contract does not have to succeed.

A constitution is a different beast. It cannot really derive its legitimacy from the consent of the citizenry because, as outlined above, this is almost always lacking. Furthermore, when it comes to the constitution, failure is not really an option. The constitution has to create the conditions necessary for the citizenry to live together. It has to keep the polis in one piece. This means that non-consent based moral-political criteria should really take precedence when it comes to the application of vague terms. This is the “failure is not an option” argument.


3. Some Tensions in this View
I think there are some admirable features to Barnett’s analysis. For one thing, it is commendable for the fact that it is one of the few pieces of originalist scholarship that really tries to get to grips with some of the underlying philosophical problems with pragmatic enrichment. All too often, originalists assume that background assumptions can uncontroversially enrich the meaning of the constitutional text. Barnett is at least aware of the difficulties that arise.

Still, there are some tensions within his view. As noted above, despite the “failure is not an option” argument, Barnett still thinks that pragmatic enrichment plays some role in the semantic content of the constitutional text, and he still thinks that this semantic content sets the constraints within which moral-political construction can take place. This in itself creates a tension between his moral-political views about constitutional legitimacy and his semantic views about constitutional interpretation.

Perhaps as a direct result of this, he seems inconsistent in his approach to vagueness. An obvious example of this is his approach to the Ninth Amendment of the US Constitution. I have quoted this amendment several times before, but once more won’t hurt:

Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Clearly, this implies or presupposes the existence of some rights that are “retained by the people”. That much seems fair. But, prima facie, the phrase “rights retained by the people” seems vague. The set of rights people hold is in flux, particularly if we adopt an interest-based account of rights (i.e. if you have an interest in X it is possible to have a right to X). Given this prima facie vagueness, one might suppose that this an area of constitutional debate that is ripe for moral-political construction, not empirico-historical interpretation.

That’s not how Barnett sees it. He thinks the phrase “rights retained by the people” has a reasonably precise historical meaning, and he tries to reconcile this with his stance on vagueness. He says:

”On the other hand, the original meaning of some allegedly vague terms may convey considerably more information than is commonly thought. For example, textual and historical context shows that the original meaning of “rights…retained by the people” referred to natural rights, which were liberty rights.” 

(“The Misconceived Assumption about Constitutional Assumptions”, p. 635)

In other words, in at least some cases, historical semantic desiderata can constrain the boundaries of application for seemingly vague terms.

The difficulty I have with this is that it although it makes a certain amount of sense, and although Barnett has a considerable degree of historical evidence to back up his claim, it seems inconsistent with his claims about constitutional legitimacy and consent. He seems to abandon his critique of excessive pragmatic enrichment when he thinks the historical evidence is sufficiently widely-agreed upon, or sufficiently overwhelming, to favour a particular, enriched reading of a vague provision.

I’m sure what’s going on here is a kind of reductio-esque rejection of an alternative, moral-political construction of that provision. In other words, Barnett is saying something like “Since everyone agreed that the rights in question referred to liberty rights it would be absurd or bizarre to deny that that is what the particular textual provision means”. This is a very tempting way to approach constitutional meaning. But I’m inclined to question it. Marmor suggests in his work, that the reason reductios of this sort are appealing is that we readily cling to a normative view of the constitutional conversation, one that necessarily commits us to historical rules and principles. However, this commitment must still be recognised as a normative view about how the constitutional conversation ought to work. It can be challenged on normative grounds, particularly if you think ongoing renewal or faith in the constitution is needed to sustain its legitimacy.

To put it another way, the divide between interpretation and construction in Barnett’s theory may not be sustainable. It may be that interpretation is ineliminably bound-up with a particular moral-political view about the purpose of a constitution. A view that can be challenged.

Pragmatic Enrichment and Legal Interpretation (Part Two)

Tweet

(Part One)

Pragmatic enrichment is the phenomenon whereby the meaning of a particular speech act is “enriched” by the context in which it is uttered. This happens all the time in everyday conversation. The question being considered in this series of posts is whether it can, and should, happen in the interpretation of legal texts.

One group of interpretive theories — originalist theories — seem to be particularly torn on this issue. Originalists think that the meaning of legal text is frozen at the time of its ratification. As such, it seems like they have to believe that pragmatic enrichment plays some sort of role in the meaning of the text. They are, after all, claiming that we must pay some attention to the historical context in which the text was created. But there is considerable disagreement as to how expansive a role this context plays in “enriching” the meaning of the text.

Andrei Marmor’s paper “The Pragmatics of Legal Language” helps to explain why. As detailed in part one, Marmor argues that pragmatic enrichment typically requires three conditions to be met: (i) there must a speaker with a communicative intention; (ii) there must be a conversational context that is, to some extent, common knowledge between speaker and hearer; and (iii) there should some shared maxims or norms that apply to the speech situation. While all three of these conditions are difficult to satisfy when it comes to the production of legal texts, the third is particularly problematic. Ordinary conversation is typically governed by Grice’s cooperative maxims; legal “conversation” is not. Indeed, legal conversation is highly strategic.

In this post, I want to burrow deeper into Marmor’s reasons for thinking that legal conversation is strategic, not cooperative. Furthermore, I want to consider why this is a problem and whether there is way to reconcile the strategic basis of legal conversations with some degree of pragmatic enrichment. To this end, the remainder of this post has three parts. First, it looks at Marmor’s “Two Conversations” argument in favour of strategic-ness. Second, it looks at his “Multiple Communicative Purposes” argument. And third, it looks at his attempt to come up with “strategic norms” that might govern the legal speech situation. I offer some comments and critical reflections at each stage in the discussion, drawing particular connections between what Marmor is saying that debate over constitutional originalism.


1. The Two Conversations Argument
In part one we discussed the problem of determining exactly what the conversational context is in the case of legal texts. If we take something like a piece of legislation or a constitution, and consider the conditions in which it is drafted and interpreted, we can see the problem quite clearly. Such texts seem to be involved in (at least) two separate conversations:

The Intra-Legislature Conversation: This is the conversation taking place between the drafters of the legal text. They typically number in the tens or hundreds, and they vote and approve a version of the text.

The Legislature-Applicator Conversation: This is the conversation taking place between the drafters and the people who ultimately interpret and apply the text (obviously the courts, but also legal officials, agencies and the general public who must decide what it means for their lives). These conversational partners can be separated from the drafters by vast temporal distances.

There may be other conversations too. For example, some texts — particularly constitutional texts — are first approved by a group of drafters, and then by the public through a referendum or plebiscite. Thus there is an additional legislature-public conversation that takes place. Nevertheless, the two mentioned above are the most common ones, and they suffice to illustrate Marmor’s point.

What is that point? Well, if I’m interpreting him correctly (hah!), I think it is this: It may be plausible to say that Legislature-Applicator conversation is governed by the ordinary cooperative rules of conversation. After all, it does seem like the legislature wants the applicators to understand what they are saying, and that the applicators want to understand what the legislature are saying. True, there are all sorts of problems for the applicators in figuring out the background assumptions they share with the legislature, but nevertheless it still seems like the conversation between the two would be governed by cooperative maxims. The intra-legislature is quite a different beast. It is often highly strategic, and this has a knock on effect on pragmatic enrichment of the text.

To see this, we need to nail down the concept of strategy that is at play here. “Strategy”, ironically, can mean many things to many people. But here it means, roughly, the tendency for partners to have conflicting or competing conversational goals. In other words, it covers the possibility that conversational partners do not necessarily want to be perfectly understood by one another. I considered why people might do this recently when looking at Pinker’s theory of indirect speech, and I’ll say some more about it below, for now it’s just this notion of different conversational goals that we need to keep in mind.

It is this possibility that contaminates the legal text, and undermines pragmatic enrichment. The mechanism of contamination is all important. It starts with the idea that legal texts can be the product of compromise, or what Marmor calls “tacitly acknowledged incomplete decisions”. Assume that X and Y are two legislators, and before them is a particular piece of text P, which may implicate Q. The text might be approved under one of these four conditions:

A) X and Y both agree that P implies Q. 

B) X says P intending for it to imply Q, but Y does not. 

C) Y says P intending for it to imply Q, but X does not. 

D) X and Y say P intending to remain undecided about the implication of Q.

Take the text of the Ninth Amendment to the US constitution which refers to certain rights, not mentioned in the constitution, that are “retained by the people”. Ignoring the actual historical evidence, it’s possible that this was intended, by all drafters, to implicate a certain well-defined class of liberty rights. It’s also possible that it was not, that drafters disagreed about the nature of the rights, or that the drafters remained undecided about the nature of the rights.

These possibilities obviously have an effect on the legislator-applicator conversation. In interpreting the legal text, the applicators will want to work out its meaning. In doing so, they need to decide whether that meaning includes pragmatically enriched content. But because the text might be the product of known or unknown compromises, it’s very difficult to say when pragmatic enrichment arises. Indeed, any decision to include pragmatically enriched content looks like it would be a moral-political one, not a purely semantic one. You might be favouring one group of legislatures preferred implication over another, or ignoring the tacit compromise.

Maybe the solution here is to say that whenever there seems to universal agreement about the possible implications of the text, it can be said to be pragmatically enriched. Certainly, this is an argument that originalists like Randy Barnett make and the suggestion seems to be that they are making a semantic claim not a moral one. But I wonder whether it’s as straightforward as all that.


2. The Multiple Communications Argument
So much for the problems posed by the intra-legislature conversation. There are also problems posed by the fact that the legislature might be engaging with multiple conversational partners. As I defined it above, the class of “applicators” is diverse. It includes, courts, regulatory agencies, legal officials and the general public. It is possible that the legislature, assuming they agree among themselves, have different conversational goals they wish to accomplish with each of these conversational partners.

I’ll explain by means of an analogy, one that will be familiar to those who read my earlier series on “The Logic of Indirect Speech”. Suppose you are pulled over for speeding and a police officer is going to give you a ticket. You contemplate offering him a bribe but realise there are risks inherent in this. If the police officer is honest, you should definitely not give him a bribe as this will lead to your arrest. On the other hand, if the officer is dishonest, you should give him a bribe as this will reduce the fine you have to pay. What should you do? One solution is to use opaque or ambiguous language, i.e. to make an implicit or veiled bribe. This way you allow the dishonest cop to take you up on your offer, while at the same time using the ambiguity of your language to prevent the honest cop from arresting you for bribery. In this scenario, you have different conversational goals, depending on who you audience really is. The language you use allows you to hedge your bets between the two possible audiences.

Could something similar be true in the legal context? Marmor says yes. Here’s an example. There’s a long-standing debate in legal and ethical circles about the propriety of interrogational torture. While most people think it is wrong in virtually every instance, many are willing to tolerate its use in certain extreme situations. Suppose this is the view of most law-makers and they are debating a proposed change in the law on torture. Should they make an explicit law that allows for torture in a certain range of circumstances, or should they stick with an absolute ban on the use of torture? The two possible wordings are below:

Torture Law A: The use of torture is outlawed.

Torture Law B: The use of torture is outlawed, except in certain extreme cases C₁…C_n

You might think, given that they all believe there should be some exceptions to the absolute ban, that the second wording is better, but this might not be the case. Perhaps the legislators have been presented with conclusive evidence showing that if they adopt B, torture will start to be used in non-extreme cases because people perceive the law to be more forgiving than it is intended to be. Thus, they feel that adopting law A is the better bet, reasoning that most people will believe it is an absolute ban, but might still use it in extreme cases accepting the possibility of punishment, and that the courts will allow anyone prosecuted under the law to avail of the defence of necessity.

In this scenario, the legislature would have different conversational goals they wish to achieve with their different audiences. They would like the public (or perhaps the military/police) to believe that there really is an absolute ban so that they don’t start using torture too often; but they would like the courts to take a slightly more flexible approach to the law, allowing some leeway to those trapped in truly extreme cases.

Now, this is just an example, and it may be slightly contrived, but it still illustrates the thrust of Marmor’s argument. What he is saying is that the legislature, even if they agree among themselves, might want different audiences to take up different implied meanings of what they say. They would like the general public to think that Law A means what it says, but they would like the courts to think that it doesn’t quite mean what it says. This is another way in which legal conversations are strategic, and another way in which Grice’s cooperative maxims are thwarted in the legal context.


3. Might other norms apply to the legal conversation?
If we accept Marmor’s arguments, where does that leave us? Since our concern is with the degree of pragmatic enrichment that takes place in the legal context, it leaves us in a bit of a bind. Pragmatic enrichment is a common and uncontroversial aspect of everyday conversations because we all tend to agree on the norms that govern those situations. If Marmor’s right, then those norms do not apply to the legal context, thus making pragmatic enrichment a good deal more controversial.

This creates problems for originalists. As I said in part one, originalism demands that there be at least some role for pragmatic enrichment in legal interpretation. Indeed, the theory doesn’t make much sense without it, since it calls attention to the original speech situation in which the constitutional text was drafted and ratified and says our interpretation is constrained by that original speech situation. That looks like an appeal to pragmatics to me.

But perhaps things aren’t all that bad. Perhaps the legislative or constitutional context is governed by a discrete set of widely-agreed upon norms — distinct from Grice’s norms — that will nevertheless allow for pragmatic enrichment? This is, in fact, a view that is put forward by some originalists, albeit not in these terms. For instance, McGinnis and Rapoport, who advocate for something they call “Original Methods Originalism”, think that the original speech situation in which the US Constitution was produce was governed by a knowable set of norms. In this instance, the norms of legal interpretation that were in operation at the time the constitutional text was ratified. In other words, they argue that drafters and ratifiers were aware, at the time, that the text they prepared would be interpreted by the courts in accordance with then extant rules of interpretation. Those rules of interpretation would thus have affected how they prepared the constitutional text and so would have provided a normative background sufficient for pragmatic enrichment.

It’s a more complicated argument than that, but that’s the gist of it. Marmor, for what it’s worth, is sceptical about this kind of attempt to identify norms for legislative conversations. It’s not that the historical evidence adduced by originalists is unpersuasive (though it may be) it’s just that any particular concept of the legislative or constitutional conversation that is “thick” enough to generate a great deal of pragmatic enrichment, is also likely to be deeply controversial. Thus, there will always tend to be an ineliminable level of moral-political argument when it comes to determining the correct theory of interpretation. Most originalists accept the need to make moral-political arguments for their view, but Marmor’s point explains why they have to do this.


4. Conclusion
To sum up, pragmatic enrichment is the phenomenon whereby the semantic content of an utterance is enriched by the pragmatic context in which the utterance is made. In this series, I’ve been considering how great a role pragmatic enrichment might play in the interpretation of legal texts, in particular in the interpretation of a written constitution.

Following the arguments set down in Marmor’s article “The Pragmatics of Legal Speech”, it has been suggested that pragmatic enrichment is particularly problematic in the legal context. Enrichment is relatively uncontroversial in everyday speech because there is a widely-agreed upon set of norms governing those conversations. But there is no such set of norms governing legal conversations. On the contrary, there seems to be an ineliminable moral-political conflict at play when it comes to determining the norms that govern legal conversations.

Pragmatic Enrichment and Legal Interpretation (Part One)

Tweet

I’ve written a few posts about the philosophy of legal interpretation before and this is another one. This is because I’ve been reading a lot about the phenomenon of pragmatic enrichment and the role it can and should play in legal interpretation. Pragmatics and semantics are two areas of modern philosophy that used to bored me to tears, but having now re-engaged with them via my interest in legal philosophy I’m beginning to see some of the attraction but also some of the frustration. This series of posts tries to convey some element of both. I’ll need to start by looking at some basic definitions of the key terms.

”Pragmatics” is, in essence, the study of language and meaning in context. Traditionally, semantics looked at how words and utterances had a conventional meaning coded within them. Take a phrase like “What is the stars?” (from Juno and the Paycock). From a traditional semantic point of view, in addition to being grammatically ill-formed, it looks like a simple question with a clear meaning. But in a certain context the phrase might have a very different meaning. Indeed, among friends of mine at university, the phrase was a coded way of highlighting whenever a pretentious intellectual reference had been made in a conversation. Since we all knew the phrase to be a slightly obscure literary reference, whenever someone outside the group would make an obscure reference, someone within the group would say “ah, what is the stars?”. In this way, the phrase took on a meaning independent from its literal semantic content.

Pragamtic enrichment is the phenomenon whereby utterances take on meaning that is independent from or additional to its literal semantic content. We say that the utterance is “enriched” by the contextual features of the conversation in which the utterance is made, as in the example just given. Pragmatic enrichment of this sort is very common in everyday conversation. When we talk to one another we typically share a rich body of assumptions that feed into and shape the meaning of what we say. Consequently, it becomes natural to interpret conversational language in a way that includes pragmatically enriched content. Thus, the boundary between pragmatics and semantics, at least in ordinary conversation, is a fuzzy one.

This raises some interesting questions about legal interpretation, specifically: What role is there for pragmatic enrichment in legal interpretation? Is it natural and proper for judges and other legal officials to interpret legal texts (statutes and constitutions) in such a way that contextual factors and background assumptions play an important part in determining the “meaning” of the text? Or is there some reason to think pragmatic enrichment should play a more limited role in the law?

I’ve actually considered answers to these questions before when looking at Francesca Poggi’s work on implicature and legal interpretation, but I want to do so again here by looking at some of the arguments presented in Andrei Marmor’s article “The Pragmatics of Legal Language”. Marmor makes similar arguments to Poggi (though his article pre-dates hers) but expands on them in more detailed ways. My main interest is in those expansions, but to get to them I need to take a few steps back and consider the importance of this debate in legal interpretation, as well as the main argument.

The remainder of this post is dedicated to those tasks. It first looks at the debate over constitutional originalism and the role that pragmatic enrichment might play in that debate. It then presents Marmor’s basic argument, which is that pragmatic enrichment plays a very problematic role in legal interpretation. This is because the conditions that make pragmatic enrichment such an innocuous feature of everyday language are not present in the legal setting. In a subsequent post, I look in more detail at Marmor’s reasons for thinking those features are not present.


1. Pragmatic Enrichment and Constitutional Originalism
“Originalism” is general descriptor for a range of specific theories about the nature and purpose of constitutional interpretation. Though the different forms of originalism are numerous, and the subtle distinctions between them often baffling, they nevertheless share a central commitment to what Solum calls the fixity and fidelity theses. Roughly defined as follows:

Fixity Thesis: The meaning of the constitution was fixed at the time of ratification.

Fidelity Thesis: We ought to follow the original fixed meaning of the constitution.

The fixity thesis is a semantic claim; the fidelity thesis is a normative one. The question we must consider here is whether the meaning that is fixed at the time of the constitutional ratification includes pragmatically enriched content? To understand the significance of the question, it might be useful to consider an example or two. Take the Ninth Amendment to the U.S. constitution (though as you do bear in mind that the philosophical points being raised here have significance outside of the U.S. context):

Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

This text here seems to imply or, rather, presuppose that the people have rights that are not enumerated in the constitution. What could those rights be? This is where pragmatic enrichment could play a role. It might be argued — and indeed it has been argued — that the rights presupposed by the Ninth Amendment are of a very specific sort. This is because, at the time of drafting and ratification, many states protected a set of liberty-based rights like the right to property, freedom of contract and so forth. Thus, in the pragmatic context in which the constitution was created, the phrase “rights…retained by the people” had a reasonably well-defined meaning and this meaning forms part of the meaning of the constitutional text. This is an argument that has been made by Randy Barnett and is an example of pragmatic enrichment.

But, perhaps surprisingly, Barnett is a little cagey about how much more extensive a role should be played by pragmatic enrichment. In an article titled “The Misconceived Assumption about Constitutional Assumptions”, Barnett defends the notion that pragmatic enrichment plays a role in the meaning of the Ninth Amendment, but then takes other originalists to task for going too far in arguing that pragmatic enrichment plays a role in the meaning of nearly all other constitutional provisions. For example, the vague phrases like “cruel and unusual punishment” do not, contrary to what Scalia and some other originalists argue, only include “punishments that were deemed cruel and unusual at the end of the 18th Century”. Nor, contrary to McGinnis and Rapoport is it true to say that meaning is constrained by the interpretive theories operational at the time of ratification. These are cases of pragmatic enrichment gone too far.

Barnett’s reasons for thinking so are interesting, and may well form the basis of a later series of posts, but I won’t get into them here. Instead, I offer his thoughts merely to highlight the tension and diversity of opinions present in the originalist movement about the role of pragmatic enrichment. The suggestion seems to be that some degree of pragmatic enrichment is acceptable, but it’s not clear how much.

Marmor’s paper takes an extremely abstract perspective on this debate. Indeed, in the paper under consideration, he doesn’t engage with originalism at all (he does elsewhere). But in taking that abstract perspective he helps us to see the wood for the trees, and partly explains why the debate over the proper role of pragmatic enrichment in originalist interpretation is the way it is.


2. Marmor on Pragmatic Enrichment in the Law
Marmor’s argument is a straightforward one. It starts from the premise that there are certain conditions that typically need to be satisfied in order for conversational pragmatic enrichment to take place. It then follows this up with the argument that those conditions are not met in the case of most legal “conversations”, such as those between the legislature, the courts, and the citizenry or the constitutional drafters, the courts and the citizenry. It is the fact that these conditions are not met in most legal cases that explains the contentious and problematic nature of the debate over pragmatic enrichment within originalism. I’ll work through each step in Marmor’s argument here, starting with the conditions he thinks are needed in order for pragmatic enrichment to take place.


Marmor identifies three conditions for pragmatic enrichment. According to him, there must be:

(a) A speaker who has certain communicative intentions. 

(b) A conversational context that, at least to some extent, is common knowledge between speaker and hearer. 

(c) Some conversational maxims that apply to the relevant speech situation.

Before we consider these in the context of legal speech acts, it’s worth considering them in the ordinary conversational context. Imagine you are at the doctor, trying to figure out what’s wrong with you. He has run several tests, and the results have just come in. He says to you “Well, you’re not going to die”. At the level of literal semantic content, this is a puzzling statement. After all, you are going to die someday. So the doctor couldn’t have literally meant what he said. What he really meant was something like: “whatever it is that is wrong with you is not sufficient to kill you anytime soon”. But, of course, you knew that’s what he meant. His utterance was naturally enriched by the pragmatic context.

What Marmor is saying is that this enrichment is natural in that context because the three conditions listed above are satisfied. The doctor has certain communicative intentions: he wants you to understand that there’s nothing seriously wrong with you. There is common knowledge of the conversational context: you know that he just ran some tests to figure out what was wrong with you, and he knows that you know this. Finally, there are cooperative maxims that apply to this situation (Grice’s maxims): the doctor wants you to understand what he is saying; and you want to understand what he is saying. Consequently, you share a common normative framework for the conversation.

The claim is that these three conditions are, if not completely absent in the legal context, at least problematic in the legal context. Let’s spell out the argument formally before considering the defence of this key claim:

• (1) In order for an utterance to be pragmatically enriched, three conditions should be met: (i) there should be a speaker with certain communicative intentions; (ii) there should be a conversational context that is, to at least some extent, common knowledge between speaker and hearer; and (iii) there should be some conversational maxims that apply (and are known to apply) to the relevant speech situation.

• (2) These three conditions are problematic in the legal context, and hence rarely met.

• (3) Therefore, pragmatic enrichment in the law is problematic and rare.

The second premise is the one we need to investigate. Since there are three separate conditions at issue, it’s no surprise to see that at least three separate arguments must be made. Marmor duly obliges.
Turning to the first condition — the need for a speaker with a communicative intention — Marmor simply notes that this is rare in the legal context. Constitutions and statutes are usually the product of a collective body of agents. Many legislators or many drafters working together produce the legal text. While it’s not impossible for the collective body to have a discrete and identifiable set of communicative intentions, it is, at the very least, difficult for this to be the case. Indeed, this is one reason why many modern-day originalists eschew an intentionalist basis for their theory, preferring to adopt a conventional “public meaning”-based approach.

• (2.1) There is typically no single speaker of legal texts, this makes it more difficult to identify a discrete set of communicative intentions.

As for the second condition — the need for a shared context — there are a variety of problems. Take once more the hypothetical conversation between yourself and your doctor. In that case, the conversational context is simple and well-defined. It consists of two parties, it takes place within known spatial and temporal boundaries, and the range of background assumptions the parties must share is fairly limited. This isn’t true in the case of a legal conversation. The parties are many (legislators, judges, citizens and other legal officials), they speak to one another across vast and sometimes expanding spatial and temporal boundaries, and many of the parties (judges) have to rely on secondary sources (history books, archival documents) to figure out what the conversational context really was. Again, this is something that some originalists recognise though they all think some epistemic access to the conversational context is possible and must affect how we interpret the legal text (see my post on Solum’s semantic originalism for an example of this).

• (2.2) The conversational context of legal speech is complex and ill-defined. It consists of many speakers, talking with one another across vast and ever-expanding spatial and temporal distances. This makes it difficult for the context to be common knowledge.

Finally, and perhaps most importantly, there is the third condition: the need for some set of conversational maxims that govern the speech situation. Marmor argues that this is where the problems really kick-in for pragmatic enrichment in law. Ordinary conversation is governed by Grice’s cooperative maxims; legal conversations are not. Au contraire. Legal conversations are far more strategic than ordinary conversations. Conversational partners in law do not necessarily want to be understood, perfectly, by one another. They might use plausibly deniably implicatures (which I covered recently) to reach a compromise.

• (2.3) The legal conversation is not governed by Grice’s cooperative maxims because the legal conversation is far more strategic in nature.

Marmor offers a range of additional arguments in support of this premise (2.3). Since I think there is much of interest in those arguments, I’m going to dedicate the next post to their elaboration.

So, to sum up, pragmatic enrichment is a common aspect of everyday conversations. The meaning of a particular speech fragment is frequently enriched by various features of the context in which it is uttered. To the extent that legal texts are speech fragments, one might think that they too can be pragmatically enriched. This is something that many originalists seem to agree with, indeed one could argue that this is the essence of their distinctive contribution to interpretive legal theory. But there is some disagreement as to how great a role pragmatic enrichment can and should play in interpretive theory. Marmor’s argument shows why this is the case. Pragmatic enrichment is common in everyday conversation because those conversations satisfy three important conditions. Those conditions are problematic and rare in the legal context. In particular, it is problematic that legal conversations are not governed by Grice’s cooperative maxims.