Last semester I took an independent study/readings course on formal ontology and phenomenology. I read some of the work of Edmund Husserl, Adolf Reinach, and Barry Smith. There is, I think, a lot to like about phenomenology, realist phenomenology at least.

In attempting to clarify my own objections to Husserl’s transcendental turn, the notorious transcendental reduction, I ran across this fantastic gem by Karl Schuhmann and Barry Smith entitled “Against Idealism: Johannes Daubert vs. Husserl’s Ideas I.” I had trouble understanding Husserl and, especially, formulating objections to him because of his penchant for using terms in ways completely different from how I and many others of his time were used to.

In reading Schuhmann and Smith’s paper on Daubert, I was struck by apparent parallels between his thought and that of Ayn Rand. Unfortunately, I don’t know how deep the parallel’s run because none of Daubert’s work is published in English, much less any language. The translated quotations, mainly on the subjects of metaphysics (ontology) and epistemology, cited in a few articles by Schuhmann and Smith are about all there is.

I did, however, attempt tentatively to trace some of the parallels between Rand and Daubert in these areas in my final paper for the course. Here is the result of my efforts: “Against Idealism: Rand and Daubert vs. Husserl’s Ideas I.” If Rand was familiar with Husserl or his Ideas, I am not aware of it. Daubert, however, was intimately familiar with Husserl’s work and had a chance to react to it in his own work. In my paper, I attempt to show how Ayn Rand might have objected to Husserl as well and how her work is similar to Daubert’s in this regard.

Well, I’ve been back from the IHS Social Change Workshop for a few days. I had a great time, talking to a lot of bright and friendly people interested in promoting liberty. That’s my favorite part of IHS seminars actually, talking informally to all of the other participants. The lectures and presentations by the faculty and participants are usually interesting and informative as well, but they just aren’t as interactive. I learn the most by interacting with my peers, not only from them but in having to clarify my own ideas. My paper seemmed to be well received by a number of my fellow participants, although my presentation did not go as well as I would have liked due to some disruptions. Live and learn. It was certainly a good learning experience. It was only my second presentation, so I think it was better to learn how to deal with audience members at an IHS seminar than at a professional conference or job talk.

On a different subject… My fiancee and I have finally set a wedding date. Not only have we finally set a date but we moved it up to just next week: Tuesday, July 5th. We were planning on having the civil ceremony in September when her parents were planning to visit from India but true to form the US government turned down their visa applications. Who would think my future in-laws might appear dangerous to INS!?! Since we’re just having a small civil ceremony and Saj is in the middle of studying for her general exams, we decided to quit postponing it and tie the knot. This way she can start applying for her green card long before her visa expires. Fortunately, her older rother is already in the US and will be able to attend. If the clothes he’s bringing me from his trip back to India fit well enough we might be wearing traditional Indian dress for the wedding.

Well, I’m off to Charlottesville, VA…the University of Virginia, to be exact. I’m attending the Institute for Humane Studies Social Change Workshop for Graduate Students. I’ll be presenting my paper entitled “Life, Death, and Harm: A Neo-Aristotelian Account,” which you can find online here. I’ll be back on Friday, the 24th.

Last semester I took a political science seminar on international conflict. I wanted to learn more about international conflict. I blogged about it here, here, and here. Unfortunately, the class was oriented primarily around mainstream (i.e., empirical and quantitative) political science, so I didn’t learn as much as I would have liked. Everything I learned must be qualified by the fact that questionable methods, epistemology, and datasets were used for all of the research we studied.

Another downside to the class was that I had to do an empirical, quantitative research paper. So I did the paper on the democratic peace thesis. I “tested” the thesis at the system level of analysis, meaning that I tested for the effects of the percentage of democracies in the international system on three types of war: inter-state war, intra-state war, and extra-state war. The idea was that if democracies are not supposed to go to war with each other, then a higher percentage of democracies in the international system should be correlated with a lower incidence of war.

I found virtually zero support for the democratic peace thesis and even found some support against it. In a number of the models, the percentage of democracy in the international system was positively and significantly correlated with the incidence of intra-state (i.e., civil and secessionist) wars.

Of course, war here is measured according to the coding rules established by the Correlates of War Project as conflict that results in at least 1,000 battle deaths. My dataset ranged from 1816-1997.

I’m not at all surprised by the results. Joanne Gowa, in Ballots and Bullets, argued that the democratic peace was an artifact of the Cold War; it appeared to be true only because Western, capitalist, democratic nations had a shared security interest against the Soviet Union. My professor, David Sobek, though he argues that Gowa’s book suffers from methodological deficiencies, improved on Gowa’s methods in an as yet unpublished paper and was surprised to find her results confirmed.

Again, while I am wary about making any definitive claims based on empirical, quantitative evidence regarding social phenomena, the evidence against the democratic peace thesis is continuing to grow. And, more importantly, this empirical evidence is supported by strong theoretical arguments.

My own paper can be found here.

I have great news! For me at least. I’ve been awarded a scholarship to attend Mises University 2005 this summer. I’ve been wanting to go to this annual seminar for a few years now and am very much looking forward to it. If anyone reads this who has been to a previous MU or will be going this summer, feel free to drop me a line.

In my previous post, I critiqued Reinach’s a priori theory of right for his attempt to ground it in extra-moral claims and obligations. I questioned the status of extra-moral claims and obligations. And I put forth an alternative phenomenological description of the act of promising that locates it within the domain of ethics. I argued that, rather than thinking of moral obligations as arising from the extra-moral obligation inherent in the act of promising, it is in the formal nature of the act of promising that it can only give rise to moral obligations if the content of the promise is moral (or at least not immoral). An immoral promise, or a promise with immoral content, can then be recognized as a kind of modified promise that, because of the formal nature of the act of promising which requires its content to not be immoral, does not give rise to an obligation to fulfill the content of the promise. It is a promise that one had no moral right to make in the first place, and one cannot have a moral obligation to do an immoral deed. From the act of promising, a species of social acts, Reinach moves on to discuss rights and property, and finally to the relation of his extra-moral a priori theory of right to positive and natural law. For the purpose of this post I will skip over the subject of rights and only briefly touch on the subject of property. Instead, I will focus on the implications of Reinach’s theory, and its errors, with regard to its relation to positive and natural law.

As with the act of promising, Reinach attempts to carve out a distinct extra-moral sphere for the phenomena of property. As with the act of promising, I contend that with respect to property Reinach fails to get at the thing itself, although he does seem to come close. He argues:

Now we touch upon the difficult question as to the origin of property itself. From the very outset we have to insist emphatically that this is not a question about historical development nor a psychological question nor an ethical question. We do not want to know how the institution of property gradually arose in the history of mankind; equally irrelevant for us are the psychological factors in human nature which in fact underlie the recognition and elaboration of the concept of property. We are above all not concerned with question whether property or some form of it can be morally justified and how it can be morally justified. We are interested in the conditions under which owning can arise in the apriori way in which for instance a claim arises from a promise. (72)

I quite agree that the empirical-contingent historical and psychological factors surrounding property are not of fundamental importance; they do not get at the essence of property. I will even agree to a point that the questions of what form of property is morally justified and how this can be justified are distinct, albeit related, questions. However, Reinach fails to see that property itself is a moral concept. As Reinach himself points out, property is not mere possession. The very essence of property is permeated with normativity. Property presupposes that a thing belongs to someone, that he has a right to it, that it is morally right and good that he make use of it as he sees fit, and morally wrong and bad for someone else to invade the owner’s right. It is surprising that Reinach could not see the inherently moral nature of property. To be sure, although property is an inherently moral concept, it is a separate but intimately related question as to what kind of property is morally justified; or, to be more precise, what counts as property. It is conceivable that an ethical theory could hold that no kind of property can be morally justified, although I think that any such theory would be absurd. A full-bodied a priori theory of right will, however, need to both recognize that property is a moral concept and answer the question what kind of property is morally justified, and it will need to explain why. These three issues are distinct but indispensable for a full a priori theory of right, because the a priori nature of property cannot be understood without them.

Reinach’s insistence that the a priori theory of right is extra-moral has strange consequences for its relationship to positive and natural law. Though the phenomena he describes are a priori and they form the foundation upon which the positive law can arise, the positive law can nevertheless deviate from these a priori structures. This in itself is not a problem, as it would indeed be strange if Reinach insisted that the positive law could not deviate from the a priori; plainly, it does. The strangeness of Reinach’s theory is that he argues that it is often good that the positive law do so. “Here too it is the case that that which exists according to essential laws and which prima facie ought to be, can turn out to be such that it ought not to be when considered in the whole context of its factual setting” (134, my emphasis). Why would it ever be the case that the a priori legal structures ought not to be followed? How could it be possible that the positive law ought to be followed even when in direct contradiction to its a priori foundations? One must wonder just what is the status of these a priori phenomena if they are right in some contexts and wrong in others. Judging from Reinach’s discussion here it would seem that he considers the a priori phenomena of right to be ideal types. Only if treated as ideal types could it be conceivable that a priori phenomena of right ought not to be followed in certain contexts. As ideal types it would make sense if they did not fit some cultural or historical contexts, and if they resulted regularly in bad consequences when followed in such contexts. But if this is true of Reinach’s theory, one must wonder what kind of a realist he is.

Reinach also strongly distinguishes his theory of right from natural law. He is at pains to stress not only the extra-moral character of his theory of right, but also to distance himself from what he sees as the errors and vulnerabilities of natural law.

One has objected to natural law philosophers that they fill out the gaps in the positive law with the “ideal law” or “rational law” which beckons to them from a distance, and that they even want to replace explicit positive enactments by this “higher” law in the event of a contradiction between them. Such an objection would of course not even apply to us. We do not speak of a higher law, but of simple laws of being. (135)

It is certainly true and, I think a positive feature, that natural law makes positive law subordinate to it. However, it is not so much that natural law should replace explicit positive enactments when such enactments contradict it, but rather that such positive enactments are immoral and unjust and so lack obligatoriness. Such unjust positive laws should be replaced, not necessarily with natural law but with positive law that is in keeping with natural law. Moreover, not all natural law philosophers see natural law as filling in the gaps in positive law. Some see positive law as filling in the gaps of natural law! Reinach’s following criticism of natural law thus misses the mark, at least as far as some versions of natural law are concerned:

The frequently cited mistake which natural law theory made is that it believed in the possibility of setting up for all times an ideal law with immutable content and that it did not sufficiently take into account the variable conditions of life on which the validity of such principles depends. […] It is obvious that there are no general laws which can be proposed for the way in which say the sale of a house has to be conducted at all times and under all economic conditions, there remains
still the question whether there are not here laws of a very different, relatively formal kind which do not depend on changeable conditions and are therefore in their validity independent of all historical development. (136)

There are a host of confusions that need to be addressed here. Many natural law theories in the past have been guilty of attempting to specify ideal law with immutable content. Not all natural law theories are guilty of this, however.

There are natural law theories, though they are mostly relatively recent discoveries, that attempt to lay out precisely the kind of formal laws that Reinach is searching for. Indeed, my own conception of natural law is of a formal moral discipline that has its grounds in the logical structure of reality. Conceived in such a way, the principles of natural law are general or formal in nature but are sensitive to context when applied in practice. While it certainly would be absurd for a natural law theory to specify in detail the content of laws regulating the sale of houses, there are indeed some general moral laws governing such: laws of justice dealing with rights to life, liberty, and property that preclude the initiatory use of force. While it would be absurd for natural law to specify the precise amount of profit that can be had, how many witnesses are necessary, what kind of coinage must be used, etc., natural law can and does hold that a sale should be uncoerced and that for the sale to be just the seller and the purchaser must engage in voluntary and mutually agreed upon exchange; otherwise, it is not a genuine sale.

The natural law, as some have conceived it and as I conceive it, consists of general or formal universal principles that are grounded not in physical nature, or historical accident, or in human psychology, but in the logical structure of reality. Part of the reason for Reinach’s misguided rejection of natural law is that he conceives of it as only being grounded in either or both physical nature and human psychology (137-8). Once it is realized that this feature of natural law is a historical accident pertaining only to some invalid versions of it, much of the force of Reinach’s antipathy to natural law can be overcome. Indeed, it is this misconception of natural law, combined perhaps with his seeming conception of the a priori phenomena of right as ideal types, that seems to underlie Reinach’s insistence that the a priori phenomena of right are extra-moral. It rather seems more true to the things themselves to conceive of a single a priori discipline of natural law from the evaluative standpoint of which one can judge the justness of positive law which itself is necessary to “fill in the gaps” of the natural law, instead of positing a sphere of extra-moral phenomena that seems unnecessary and non-existent.

In the post below, and in the next post, are my tentative thoughts on Adolf Reinach’s Apriori Foundations of the Civil Law:

In The Apriori Foundations of the Civil Law (Aletheia: An International Journal of Philosophy, Vol. 3, 1983) Adolf Reinach develops an apriori theory of right in which features of the civil law such as contracts are grounded in claims and obligations which are themselves grounded in the act of promising. Reinach’s essay is of great importance for a number of reasons, not the least of which is the clarity that he brings to phenomena dealing with the civil law and the concept of right. In this essay Reinach discovers a whole class of phenomena called social acts, of which the act of promising is itself a species. My primary concern in this brief essay will not be with social acts as such, but rather with the specific act of promising and its role as the foundation of Reinach’s apriori theory of right. Though there is much of value in Reinach’s theory, I take issue with his contention that the phenomena of right are extra-moral. Reinach sees the phenomena of right as being distinct from specifically moral duties (or obligations) and entitlements. Since the extra-moral character of phenomena of right is, for Reinach, dependent upon his claim that the obligation created in the act of promising is extra-moral, I will focus my criticism on his account of the act of promising.

Before delving into my criticism it will be necessary to briefly describe Reinach’s conception of social acts and, in particular, the act of promising. Like other kinds of acts, social acts are intentional, but they bear a number of other characteristics that make them stand out from other kinds of acts. They are also spontaneous in the sense that they possess spontaneity: in them “the self shows itself to be the phenomenal originator of the act”: a social act is a “doing (Tun) of the self and thereby a spontaneous act” (18). Social acts also often are, but are not necessarily, other-directed. It may seem odd that not all social acts are other-directed, but it becomes clear why this is the case when one understands that some social acts are rather directed at other social acts, such as the case of the waiving of a promise. One might say, though Reinach does not, that all social acts are either directly or indirectly other-directed, for the waiving of a promise is the waiving of a particular moral agent’s promise. What is really distinctive about social acts is that, at least for beings without direct mental communication like Man, social acts must be heard.1

A social act, like promising or commanding or requesting or questioning, must be heard and understood as such by the person it is directed toward in order for it to count as a social act. The mere intention to promise to do something, for instance, does not a promise make if the moral agent does not physically perform the act of promising. Thus does Reinach distinguish his account of promising from psychological and consequentialist theories. The act of promising includes both the inner intentional act and the outer performance as a unitary act, for “the inner experience here is not possible without the utterance” (20). It is in the essence of the act of promising that it addresses the other.

Like other social acts, the act of promising inaugurates a train of events and aims at an action, but in the case of promising it is aimed at a future act by the promisor himself. “Like all social acts, promising presupposes an inner experience which has the content of the promise as its intentional object” (27).

Promising is neither intending nor the expression of intending; it is rather an independent spontaneous act which in turning without, expresses itself. The making audible of the promise could be called a declaration of the promise. It is only indirectly a declaration of intention, in that an act of intending necessarily underlies the spontaneous act of promising. (28)

A genuine promise can be expressed by the promisor, but unless it is understood as such by the promisee no claims or obligations can arise out of the act. A genuine promise that is taken in by the promisee creates an obligation to perform the content of the promise and a claim in the promisee to the fulfillment of the promise.

There are, of course, complexities to the act of promising that Reinach delves into which I will not address here. At least for the time being I only wish to critique one aspect of Reinach’s account: his contention that the obligation that arises from the act of promising is an extra-moral obligation. It will be useful here to quote at length from Reinach’s essay:

We find something similar in the case of moral duties. They too can never spring directly from acts as such. Every moral obligation has as its necessary, even if not sufficient, condition, the moral rightness (Rechtheit) of states of affairs; in particular it presupposes that the existence of a person’s action, which forms the content of his duty, is either in itself morally right or right in virtue of the rightness of other related states of affairs. This holds both for the absolute moral obligations, which one usually simply calls duties, as well as for the relative moral duties, which correspond to the relative moral entitlements (these latter duties seem to have hitherto gone unnoticed in ethics). The obligations of right, by contrast, spring from free acts of the person and without any respect to their content, for instance from acts of assuming or of promising. Just as moral entitlements cannot be transferred, so moral duties cannot be assumed by other persons. This is only possible with the extra-moral obligations discussed above. And finally, whereas every relative obligation can dissolve through the waiving of the partner, the partner of a moral duty, though he may decline to insist on his moral right, could never annul a moral duty by a free act. He could possibly perform an action which would make an action which was once binding, no longer binding, so that no moral duty remains. But one always has to test the whole state of affairs (Tatbestand) with respect to moral significance. Just as free acts as such cannot generate moral duties, so they can also not abolish them. One will object that in the case of a promise or the assuming of an obligation there is a moral duty to realize the given content. That is surely correct and at the same time especially well suited to bring to light the difference which we are here stressing. Because obligations spring from those acts, there is a moral duty to carry out their content. It is an apriori law that the fulfillment of absolute and relative obligations is a moral duty. One sees how obligation and moral duty stand next to each other, with the former making the latter possible. In other cases the moral duty is independent of every act and of every obligation grounded in it. But the two things should never be confused with each other. (14)

For Reinach, then, although the obligation arising from the act of promising is extra-moral, this extra-moral obligation provides the foundation for and generally necessitates a moral obligation (or duty) to fulfill the extra-moral obligation to fulfill the promise. But is this not strange? Reinach describes a moral obligation to fulfill an extra-moral obligation to fulfill the content of the promise. It seems far from self-evident that this extra step of the extra-moral obligation is either necessary or even part of the act of promising. I must confess that I fail to understand the concept of obligation outsi
de of the context of morality. Is not an obligation an ‘ought’? It seems rather more natural to describe the act of promising, contra Reinach, as creating a moral obligation to fulfill the promise.

The strangeness of Reinach’s account really comes out when we consider the event of a person making an immoral promise, by which I mean a promise to do an immoral deed. According to Reinach’s account, the promisor nevertheless has an obligation to fulfill the promise, despite its immoral content. Although the promisor has an obligation to fulfill the immoral promise, Reinach contends that this is not a significant problem because the promisor has a higher moral duty, which trumps the moral obligation to fulfill the extra-moral obligation to fulfill the promise, not to commit an immoral act. (45-46) Here again we have what seems to me to be an unnecessary extra step, or even two.

For Reinach, the act of promising is extra-moral, although it makes possible certain moral obligations and rights. I think that the act of promising cannot be understood fully except within the context of ethics. Promising is not just a social act but also a moral act. We have a moral obligation to make responsible and moral promises. To promise to perform an immoral deed is irresponsible and, to that extent, at least to some degree immoral in and of itself. On this view, an authentic promise is one in which the content of the promise is not immoral. One cannot have an obligation to commit an immoral deed. A promise to commit an immoral deed cannot, therefore, create an obligation to commit that immoral deed. A promise to commit a deed that is not immoral does generate a moral obligation to fulfill its content.

I analogize this account of promising to St. Augustine’s famous statement that an unjust law is no law at all. What Augustine meant by this is not, I think, that an unjust law is actually not a law but rather that while an unjust law has the formal characteristics of a law it lacks the moral obligatoriness of an authentic law due to its immoral content. In the same way, I think an immoral promise has the formal characteristics of an authentic promise but is modified in such a way that it does not generate a moral obligation due to its immoral content. In Reinach’s terminology, it is morally right to fulfill an authentic promise, and it is morally wrong not only to make an immoral promise but even more so to fulfill it. In the former case, it is right that I keep my word and, in the latter case, it is wrong for me to keep my word because I had no business giving it in the first place. Reinach might object that on my view of promising claim and obligation are not grounded with essential necessity in the act of promising, but I think he would be incorrect to do so. On my view, claim and obligation naturally and necessarily arise from an authentic act of promising. If I am correct, then we can add immoral promises to the list of modified promises already identified by Reinach. Specifically, my modified act of promising, the immoral promise, would join Reinach’s pseudo-promise (28) as one of the modified acts of promising in which an obligation does not necessarily arise.2

Why did Reinach find it necessary to include in the essence of the act of promising the extra step of an extra-moral obligation? It might be that the act of promising, on my view, seems to disrupt the unity of the act. Reinach claims that the “obligation is grounded in the nature of promising as an act and not in its content; the immorality of the content can, therefore, in no way touch this essential law” (45). But why is this an essential law? It seems to me that rather than merely providing the ground for moral obligations and acts that the act of promising is itself very much a moral act. Reinach fails to ask why the fulfillment of a promise is obligatory in the first place. It is in the nature of the promise as an act, yes, but why is the content of the promise necessarily irrelevant? On my view, the nature of the authentic act includes the requirement that the content be moral. My view certainly requires more justification than I have given or can give here, but I contend that Reinach’s account suffers from the same deficiency in this regard. If I am correct, however, Reinach’s apriori theory of right will require some reconstruction, particularly in its relation to positive law and natural law. This will be the subject of my next post.

1 ‘Heard’ here is meant in a broad sense that encompasses written promises and the like and should not be taken to imply that an act of promising only counts as a social act if it is actually spoken and heard by the recipient’s ears. The word ‘heard’ is often used broadly in this manner.
2 I would argue, however, that a pseudo-promise — the pretending to be promising authentically — can generate an obligation or not depending on the context, whereas an immoral promise never generates an obligation. For example, in the case of fraud, a pseudo-promise can generate an obligation, but in the case of pseudo-promising in self-defense — say, to protect your life, loved ones, or property from aggression — would not generate an obligation.