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Home arrow Law arrow Normative subjects : self and collectivity in morality and law
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Introduction

Legal philosophy and its neighboring fields—moral and political philosophy—are mostly occupied, naturally enough, with normative issues and the terms that frame them. These fields address questions regarding what to do, rather than the other fundamental philosophical concern, with what there is. But the separation between these two kinds of issues is only partial. What to do depends in many ways on what there is; for example, it is sensible to open an umbrella when it rains. As this example also illustrates, the presence of certain factors, such as rain, is highly relevant to some normative matters, but not at all to many others. One factor, though, is pertinent to all: the subject with regard to whom these matters arise. Rain or shine, the subject is always there. What we do depends on what we are. Consider, for example, such key normative terms as responsibility, autonomy, and dignity. To be responsible is to be answerable for oneself; to be autonomous is to govern oneself; to have dignity is to be the locus of moral value and so to demand and attract respect toward oneself. So what precisely we are responsible for, how far our autonomy extends, and what merits respect, all crucially depend on what the human subject, or in what has become the common nomenclature the self, is, and where its boundaries lie.

This ubiquitous connection between is and ought has of course not gone unnoticed. Many have tied their reflection on practical matters to one or another conception of self. Consequently, the intersection between practical philosophy and the study of self is populated by a heterogeneous array of views that differ from each other along the normative dimension as well as in the conception of self they espouse. Though this variability defies easy summary, we can get an overview of the range most relevant to the present book by limiting our attention to the liberal tradition. Here the schematic picture that emerged over time and came into focus in recent years consists in a juxtaposition between a consequentialist, mostly utilitarian school of thought, and a deontological, mostly Kantian one. Their points of departure, respectively in Bentham and Kant, can be contrasted both along the normative dimension and in terms of their conceptions of self. On the normative side we find a primary concern for aggregate welfare in the one case and for individual autonomy and dignity in the other. As to conceptions of self, the contrast is between a naturalistically conceived organism driven by the twin motives of pleasure and pain, as against an abstract noumenal self that resides in a metaphysical nether- land of things-in-themselves.

As this snapshot of the liberal landscape reveals, liberalism contains its own critique: its normative program is split between two conflicting normative visions, grounded in opposing conceptions of self. Moreover, though Kant’s noumenal self can be seen as a radical response to the utilitarians’ naturalized vision of humanity, Kant’s alternative, with its esoteric metaphysics, is not satisfactory either, and at any rate has not been widely accepted even by followers. How do we proceed? One option is to continue the intramural strife, supposedly until one of the parties prevails or some mutually satisfactory accommodation is worked out. But pending such resolution or as an alternative to it, we can change the terms of the discussion by fixing on a conception of self that for the most part lies outside of this discussion and at any rate has not been integral to it. The conception of self that informs this book, call it the meaning-conception, is the joint product of two longstanding and multifaceted philosophical strands, the constructivist and the hermeneutical. The view that “man has no essence” and must create his own, though originating at least as far back as the fifteenth century,1 was given new impetus and significance in the twentieth in such influential and otherwise diverse schools of thought as existentialism, postmodernism, and communitarianism. They all converge on a conception of human beings as self-creating: through our actions and practices, individual and collective, we define our identities and draw our boundaries. Such constructivism with respect to human beings poses an ontological challenge: what must people be like for selfcreation to be a viable option? The other strand on which I draw, the hermeneutical viewpoint regarding human beings, implies an answer. Many thinkers have alternately spoken of the self in dramaturgical, literary, or more broadly semiotic terms. We can recognize in these metaphors and imageries a common thread: like plays and novels, human beings are constituted by meaning and are amenable to interpretation. In conjunction, these two strands convey an important insight that provides this book with a central theme: that the meanings we create, create us. In what follows I explore this theme in different ways and different contexts. Let me briefly highlight some of the main points.

According to a dominant picture, studying our normative engagements requires an antecedent understanding of their human subjects. Subjects come first; the norms that guide or bind them come second. The conception of self I explore suggests a shift or an addition of focus. It draws attention to the role of our various normative engagements not just in responding to a preexisting self but also in shaping it. The result is an emphasis on a reciprocal relationship between law and morality on the one side and the composition and boundaries of the self on the other. Viewing a conception of self as a point of origin of normative investigations is relatively familiar. But how are we to reverse this procedure? This is less familiar territory, and so we need some cognitive aids. One such device, which I’ve discussed on other occasions, and to which I return in Chapter 1, is provided by the dramaturgical version of the meaning- conception of self, especially its central notion of role. Role theory has of course had a long and somewhat turbulent career in sociology; even so, it has not been exhaustively mined for its philosophical significance. Roles consist in structured clusters of norms that serve as constituents of human identity and in light of which human conduct becomes intelligible. The notion of a role thus provides a metaphor that combines the constructivist and the hermeneutic themes just mentioned.

The notion of role also serves as a bridge to the book’s second central theme. Individual human beings are not the only subjects on the normative scene. There is also an array of collective entities—such as organizations, corporations, communities, and states—that form a significant category of subjects of morality and law. How do these collectivities relate to the individual actors? The notion of role offers a simple answer. Roles are not just the constituents of individual identities but are also the building blocks of these collective formations. Thus, roles also serve as theoretically handy templates for depicting the internal relation between the subjective and the intersubjective, or the individual and the collective facets of human life. However, a conception of role equal to this dual theoretical task requires that we draw a distinction between two types of roles regarding the way roles participate in the construction of self. The distinction is between proximate roles, with which their bearers identify so as to make them constituents of their identity, and distant roles, performed without such identification and so lacking the same significance for identity and self. Recognizing this variability helps articulate contrasting modalities in terms of which individuals and collectivities interrelate, as well as to distinguish types of collectivities within which such proximity or distance in occupying a role is enacted.

A second heuristic I find helpful in guiding reflection about the self involves an analogy between people and states. Talk of people as exercising autonomy, bearing responsibility, and enjoying inviolability within the prescribed boundaries of the self conjures up a political imagery and brings to mind such notions as self-government, sovereignty, and jurisdiction, in terms of which the existence of states and the significance of their territorial borders are commonly understood. Applied to the self, such political imagery provides an antidote to a dominant conception of human beings as physical objects and natural kinds. Though we are prone to objectifying (in the sense of treating as objects) both states and individuals, the objectification in the case of states is more visible, and once observed, easier to undo, thus paving the way to a corresponding modification of our conception of people and the role that the analogous normative terms play in their lives. I introduce the analogy in Chapter 2 as a further elaboration of the constructivist theme.

But where there is construction, there is also room for revision, and here too, analogizing the boundaries of the self to those of the state is revealing. Chapter 3 discusses several practices—such as apology, forgiveness, and pardon—that are designed to help us escape the shadow of a grim past. I argue that these revisionary practices serve this end by redrawing the temporal boundaries of a subject, individual or collective, in a way that resembles the redrawing of a state’s territorial border. The notion of revisionary practices is directly tied to the thought that who we are is a matter of the norms and the meanings that link us to certain objects and events. These norms and meanings can change, and with them our boundaries change too. In this sense, our past is not fixed, or what amounts to the same thing, we are not fixed relative to the past. This gives us some leeway with regard to the effects that past events have on our lives.

But, I argue, that leeway is limited. If who we are is the cumulative product of the meanings we have embraced or enacted over time, there must be a limit to what we can revise through revisionary practices while retaining our identities. This last consideration assumes center stage in Chapter 4, which deals with the perennial problem of moral luck, and the related issue of regret. I argue that the notion of luck applies only to relatively peripheral aspects of our lives. Contrary to what some writers maintain, there is no such thing as constitutive luck—that is, luck in the constituents of one’s identity—since this kind of luck would have no bearer: there would be no one whose luck, good or bad, this would be. And this suggests a corresponding limitation on what one can coherently regret: beyond a certain point, wishing that defining aspects of one’s life were different is to entertain the vacuous wish that someone else existed rather than oneself.

Whereas Part I of the book focuses primarily on the subjects of morality and law, both individual and collective, Part II pays greater attention to substantive normative matters with which these subjects engage. Chapter 5 provides a transition between these two focal points by tying the meaning-conception of self to a broad map of the practical domain as a whole. The argument proceeds from the observation that the clusters of meanings and norms constitutive of human identity form nested structures consisting of variable levels of abstraction or resolution. Consequently, meanings and norms that diverge at a high level of resolution can converge to form unities at higher levels of abstraction. This helps distinguish, and relate, different phases of human identity. More specifically, to be an individual, a citizen, and a person, is for one and the same human being to occupy different rungs on the ladder of abstraction. The same hierarchy of abstraction also provides a key to how the main subdivisions of ethics—prudence, law, and morality—relate to each other and to us. In Chapter 6 I take up one segment of this map, by considering some moral implications of the two earlier themes: human self-creation and the meaning-conception of self. The result is a pitch for a revised conception of Kantian dignity as the master value in a universal morality to which other normative systems, specifically law, are answerable as well. The most significant legal field that is answerable in this way to a morality of dignity is criminal law. In Chapter 7 I argue for a “moralized,” dignity-based conception of criminal offenses, and correspondingly of punishment.

This view of dignity as the keystone to morality and to law raises the question of how dignity extends to our collective life, which I take up in Part III. In Chapter 8 I argue that the different modalities, discussed in Chapter 1, in terms of which individuals and collectivities interrelate, suggest a split answer. Some collectivities participate in defining their members’ identity, and so partake of their dignity, whereas other collectivities are impersonal, instrumental formations that ought to be treated as such. In this vein, I argue in Chapter 9 that the dignity-based constraints that are central to the treatment of individual offenders by criminal law do not apply when imposing criminal sanctions on corporations. Chapter 10 makes a similar point with respect to freedom of speech. Here too I caution against a persisting failure to recognize the variability among the subjects of law and morality, and the tendency to proceed, explicitly or tacitly, as though all collective entities could be reduced to individual actors or be assimilated to them. We must recognize instead that collectivities engage in communications that are irreducible to those of any particular individuals, and that the protections due to these communications vary with the type of collectivity and its relationship to its individual members. These last two chapters are case studies of a larger point, regarding the need to adjust our normative stance to the multiplicity of types of subjects. In particular, due attention to impersonal social formations, of which business corporations are a prime example, reveals a large area in which maximizing aggregate social welfare is not hampered by deontological constraints designed to protect individuals’ autonomy- or dignity-based rights.

As I said at the outset, this book belongs to a broad area that is variously referred to as practical philosophy, as normative theory, or by kindred other labels, and is at any rate concerned in one way or another with issues of value and policy. This calls for a caveat I have sounded on other occasions as well. As I see it, theories in this broadly defined area can only attain a certain degree of rigor and clarity for which they strive by offering a partial and selective vision, and are subject to an emphatic and all-important ceteris paribus clause. They must be promulgated accordingly in a spirit of theoretical pluralism, acknowledging from the start the potential value of other theories even as one tries to display the merits of one’s own.[1] Flagging this attitude should help mitigate two adverse consequences of a more ambitious and exclusive conception of theory in these areas. One adverse consequence concerns the impact theory has on the world. When it comes to such fraught fields as morality, politics, and law, there is a danger of turning theory into ideology. The two are close kin. The difference these terms mark is mainly a matter of our attitude to the clusters of ideas that compose them, rather than a matter of the ideas themselves. When we grant a system of ideas exclusivity and regard it as calling for implementation, we treat that system as an ideology. Theories, by contrast, are only expected to inform judgment, not replace it.[2] The other negative outcome of an excessively ambitious and exclusive conception of theory is its stifling effect on the project of theorizing itself. We can be more experimental, tentative, even playful in our theoretical reflection when we bear in mind that theories are designed to impact the world, if at all, only cumulatively, filtered through a thick layer of practical judgments exercised by individuals in their own lives and by practitioners in various offices, and tempered by these actors’ implicit canons of reasonableness and common sensed

  • [1] Not the least of John Rawls’s contributions is the indefinite article that opens the title of hisseminal book.
  • [2] Given the predominantly Kantian orientation of the studies that follow, the repercussionsof this metatheoretical attitude with regard to Kant’s moral theory are particularly pertinenthere. Some criticize Kant for excessive rigorism that yields unappealingly extreme positions,while others feel compelled by his arguments or his authority to swallow the toads. Both aremistaken. Here, too, laudable theoretical rigor may turn into fanaticism when adopted asan extratheoretical, all-things-considered practical view. (Kant himself would most likelydisagree—but, then, he was not a graduate of the twentieth century.) It should be noted,though, that the larger the toads, the louder their croaking in opposition to the theory thatbreeds them. But a theory’s congruence or conflict with our convictions and intuitions is notdecisive. In particular, even in the game of reflective equilibrium (another or Rawls’s important ideas), a counterexample does not refute a theory, but only motivates further refinementof the theory or the exploration of other ones. f These canons are likely to be in part the product of theory, making the availability of andexposure to multiple and incommensurate theoretical points of view all the more important.
 
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