In an undergrad philosophy class on problems in ethical theory, taught by libertarian James Stacey Taylor (who introduced me to the IHS), we were required to write 300-words-or-less summaries of each chapter of the philosophy books we were reading. It’s not easy summarizing 10-30 pages of academic philosophy into 300 words or less, and such summaries are not good vehicles for debates, but it was good exercise in learning how to identify what’s essential and what’s not as well as how to write concisely. Anyway, here is my summary from that class of Christine Korsgaard‘s entire book, The Sources of Normativity. I can’t remember what the word-count limit was for this, but the summary is only 661 words. Korsgaard is a very prominent modern Kantian. Needless to say, I don’t buy into the Kantian paradigm; but my disagreements are not on display in this summary.

Korsgaard’s Sources of Normativity
PDF Version

In laying out her theory for the source of normativity, Christine Korsgaard attempts to be inclusive by integrating her own variations on voluntarism, realism, reflective endorsement, and appeal to autonomy. Korsgaard’s theory culminates in her account of practical identity and the value of one’s humanity. The result purports to be an objective and universal theory of meta-ethics.

Korsgaard’s goal is to show that we do have moral obligations irrespective of our individual desires. As reflective beings, we must reflexively endorse a desire if it is to be considered a reason to act. Korsgaard turns inward the voluntarist formulation of legislator and citizen, positing the thinking self and acting self as our double nature. The thinking self has the power to command the acting self.

Human beings must act under the idea of free will. To be autonomous, however, one cannot merely follow one’s desires; one must have a goal and one must have a reason to reach that goal. The reason cannot be imposed by an external source. Autonomy requires self-imposed laws, which cannot be picked arbitrarily.

The Categorical Imperative tells us to act only on a maxim that can be consistently willed into a universal law. A good maxim is an intrinsically normative entity. Korsgaard avoids the trap of substantive moral realism by arguing that we have no need for recourse to intuition if we can show something’s intrinsic properties make it a final good. We can do this with a maxim, for it has the form of a law by virtue of its intrinsic properties, and it is this that makes it a final reason for action. This is still procedural realism. Values are created through our legislative wills by the procedure of making laws for ourselves.

Korsgaard distinguishes the categorial imperative from the moral law, which “tells us to act only on maxims that all rational beings could agree to act on together in a workable cooperative system.” The former is the law of a free will, but the traditional Kantian argument does not establish the moral law as the law of a free will. Only a law that ranges over every rational being will be a moral law. It is our practical identities that guide us in our acquisition of moral law and the actions we take based on them. These laws are constrained by the Categorical Imperative.

Our practical identities give us reasons to act in one way rather than another. It is unthinkable to act contrary to our identity. When we are acting under volitional necessity, that is, when all actions but one are unthinkable then we are most autonomous. As autonomous reflective beings that act for reasons, we must value our practical identities. “It is the conceptions of ourselves that are most important to us that give rise to unconditional obligations. For to violate them is to lose your integrity and so your identity, and to no longer be who you are.” If we value our practical identities then we must also value our humanity, for it is our humanity that makes our practical identities possible. It is here, in the Self, that Korsgaard locates the source of normativity.

Like some realists, Korsgaard holds that reasons are intrinsically normative entities. However, she rejects the commonly held belief that reasons are private, and that one can derive public reasons from private reasons. Taking a cue from Wittgenstein’s public language argument, she argues that if private reasons existed then they would be incommunicable to others. A private reason would be a reason only for X, whereas public reasons are reasons for all agents relatively similar to X. Reasons are inherently public. Since human beings have only reasons that can be shared, if we value our own humanity we must recognize that we share that humanity with others and so must value the humanity of others as well. To do otherwise would constitute a failure to be consistent. Herein lies our moral obligations to others.

During December 27-30, 2007 I attended the annual eastern division meeting of the American Philosophical Society. There I offered comments on Roderick’s paper, “Inside and Outside Spooner’s Natural Law Jurisprudence,” presented as part of the Molinari Society Symposium. I have been remiss in procrastinating on typing up and posting my comments. So now, fully a month later, here they are.

I understand the purpose of Roderick’s paper to be to reconcile two seemingly contradictory positions or theories on the relation between liberal legal norms and positive/customary law apparently held by Lysander Spooner before and after the Civil War, respectively.

For those who have themselves been remiss in reading Spooner – shame on you! ;o) – Spooner’s arguments against slavery, militarism, gender inequality, plutocratic privilege and the monopoly state, and his defense of free markets as against the corporate-capitalist wage system, are primarily based on legal reasoning.

Roderick points out that in Spooner’s prewar writings he appears to critique and interpret positive laws from norms arising within it. In contrast, in his postwar writings, he seems to reject positive law entirely from an external critique grounded in natural law. Roderick points out that both positions considered separately, and on their face, might seem absurd. Roderick argues persuasively instead that both approaches are actually manifestations of a single and attractive natural law theory. The differences between them arise merely from a shift in emphasis.

The cause of the shift is unknown, and there may be more than one, but one can speculate that disgust with both sides over the war was a major contributing factor. Positive law, as embodied by the Constitution, had either failed to prevent the grave abuses of the past seventy years, including the war, or it had in fact authorized them. Either way, these facts were a clear indictment.

Roderick further points out that even in his prewar writings Spooner held natural law to be an external constraint on positive law, but he often preferred to interpret positive law documents on their own merits. Moreover, Spooner could invoke natural law on positive law grounds in the form of libertarian legal norms applied more consistently than is usually the case.

Roderick argues intriguingly that the foundation of Spooner’s natural law theory seems to be that some degree of reliance on libertarian principles is necessary in order to have a workable social order. So the greater the reliance the better the social order functions, and the less the worse. The distinction between Spooner’s “immanent” and “external” approach blurs with the understanding that the nature and content of natural law emerges from the requirements of law as such. In other words, as Roderick formulates the argument: “legal institutions cannot function without these natural law principles, so these natural law principles are to be regarded as part of law as such” (p. 31).

There is an issue on which I do not think Roderick is entirely successful, however, and that is in reconciling Spooner’s pre- and post-war positions on the status of positive law. Roderick says that the difference is not so great as it might appear; however, the difference being not so great does not eliminate the difference entirely. Prewar Spooner accepted some role for adding specificity to natural law and thereby creating additional obligations. Postwar Spooner held that positive law adds nothing to natural law. Long explains that the new positive law obligations can just be seen as applications of prior natural law obligations, and this is true as a matter of reducibility to the ultimate source of obligation. However, this is no justification for doing away with positive law entirely. Positive law does add specificity to, and other obligations not present in, natural law alone, even though we are only obligated to obey the positive law because of a more fundamental natural law obligation.

A case in point being our customary moral and legal obligation in America to drive on the right side of the road. Natural law does not specify which side of the road we ought to drive on. It does specify that we ought not to recklessly endanger the lives of others. Given that driving on just any part of a road we like will endanger our own lives and the lives of others, it makes sense that sticking to one side or the other will serve to minimize this risk. Which side we drive on is morally arbitrary before it is picked, but once a particular side becomes customary then we have a moral and legal obligation to drive on that side. So we have here two obligations, the one not to recklessly endanger the lives of others and the other to drive on the right side of the road, the one general and the other specific, with the latter being dependent upon the former for its moral and legal force; but the latter was not present in the natural law from the beginning and only arose as a matter of custom to fulfill a particular need. One might further distinguish between these two obligations as the former being a general principle while the latter is a particular or specific rule.

I have a few other minor quibbles with Roderick’s otherwise excellent paper. Regarding the first, a reader not familiar with Spooner may read the first few sections of Roderick’s paper and assume there is something of a controversy over how to interpret Spooner on these two seemingly incompatible approaches. However, Roderick cites no examples of such misinterpretations of Spooner. Then, when such a reader gets farther into the paper he might wonder what all the hubbub from the first few sections was about, i.e., why or even whether there is even any controversy at all, so easily and elegantly does Roderick resolve the apparent quandary. Indeed, the careful reader familiar with a number of Spooner’s major pre- and post-war writings, but not having a comprehensive knowledge of Spooner’s writings and of writings on Spooner, might well wonder the same thing. I myself am one of these carefully reading Spooner-philes not familiar with all of Spooner’s writings or all writings on Spooner. I wonder if there are any published examples of misinterpretations of Spooner related to the subject of this paper. If there are, I think some of them should be mentioned. If there are not, well, the paper still performs a valuable service in clearly, concisely and elegantly explicating the theory of natural law underlying Spooner’s two approaches. I have no disagreements with Roderick’s presentation and interpretation of Spooner, the sole exception being that which I discussed in the two previous paragraphs.

The second minor quibble pertains to something I would have liked to see in the paper, and that is perhaps a brief sketch of how Spooner’s theory of natural law could be grounded in a eudaimonist virtue ethics, in human nature. This would be useful, in particular, for those not familiar with how it might be done. I’m not sure if this would make the paper too long, or take it too far afield from its primary purpose, but I offer it as a suggestion nevertheless.

~*~

For a direct link to Roderick’s paper, click here. Charles Johnson’s paper “A Place for Positive Law: A Contribution to Anarchist Legal Theory,” presented on the same panel, is also a recommended read and a nice complement to Roderick’s paper.