The Logical Foundation of Fundamental Rights and their Universality

This paper offers a critical analysis of two central issues in Luigi Ferrajoli’s Principia iuris, and more generally of his theory of rights. One is the way in which ‘expectations’ play a crucial role in his deontic theory by establishing the logical basis for his guarantee-based conception of law and rights. The axiomatic way in which Ferrajoli arrives at his conception of fundamental rights is questioned, for it fails to give a full account of the nature of subjective rights. The other issues discussed here is Ferrajoli’s own defence of the universality of fundamental rights, and how this is made to depend on a ‘normative technique’ that one can associate with legal discourse and modern law in Western societies. This, however, poses the problem of how this formal universalism can be reconciled with the intercultural dialogue that Ferrajoli also advocates.     

Ferrajoli’s Argument for Structural Entrenchment

This paper engages with Ferrajoli’s contribution to the philosophical debate on constitutional democracy and in particular his conception of ‘structural entrenchment’, or the basis upon which one can defend the normativity of the Constitution as ‘higher law’, which can trump or limit legislation, without infringing democratic principles. Ferrajoli’s own understanding of ‘structural entrenchment’ is compared to Rawls’s and Dworkin’s arguments in support of it. Ferrajoli’s position is neither grounded on a philosophy of history, as in Rawls, nor on a version of moral realism, as for Dworkin, but on a formal understanding of the nature of fundamental rights, and in a conception of democratic sovereignty as ‘joint ownership.’     

Introduction

This symposium presents the work of the Italian legal philosopher, Ferrajoli, to the English speaking public. Ferrajoli’s work offers a reflection on law and the constitutional democratic state from a post-positivist perspective, applying the axiomatic method to the theory of law and democracy. Besides his systematic approach, Ferrajoli’s theory is remarkable for a number of original and interesting reflections that he offers on the relationship between normativity and facticity, and on how to reconcile foundamental rights and democracy. In both respects, his work has similarities in scope, if not in approach and not always in substance, with that of Habermas.     

Habermas, Pupil Voice, Rationalism, and Their Meeting with Lacan’s Objet Petit A

‘Pupil voice’ is a movement within state education in England that is associated with democracy, change, participation and the raising of educational standards. While receiving much attention from educators and policy makers, less attention has been paid to the theory behind the concept of pupil voice. An obvious point of theoretical departure is the work of Jürgen Habermas, who over a number of decades has endeavoured to develop a theory of democracy that places strong significance on language, communication and discourse. This paper is an attempt to gauge the usefulness of Habermas’ approach to understanding the theory of pupil voice, in particular how his theory of universal pragmatics lends itself to a ‘philosophy of between’, a philosophy that finds echoes in the conflicted nature of schooling that ‘pupil voice’ is supposed to rectify to some extent. The paper also explores the drawbacks of a Habermasian approach, in particular his overreliance on rationality as a way of understanding communication. Lacan’s concept of the objet petit a is introduced as an alternative way of understanding pupil voice.     

What is Classical and Non-Classical Knowledge?

Mamardašvili’s ‘classical’ paradigm of knowledge is seen to be minimally based on extrapolations from Descartes’ classical philosophy to which Mamardašvili attributes features that rather anticipate his own post-classical ontology. The latter is oriented towards the primacy of perception as a subjective process, in which the self-conscious subject constructs the world, not as illusion, but as a ‘picture’ or ‘model’ (Wittgenstein’s Bild). By examining Mamardašvili’s definition of the ‘phenomenon’ against the␣background of Husserl’s ‘reduction’, Wittgenstein’s ‘object’ and the Freudian and post-structuralist psychoanalytic model of subjectivity, the paper arrives at the inference that Mamardašvili is essentially a post-Structuralist thinker who appropriates concepts from various critical and philosophical disciplines to construct his own multi-disciplinary theory of consciousness and perception.     

How to Define Extrinsic Properties

There are, broadly, three sorts of account of intrinsicality: ‘self-sufficiency’, ‘essentiality’ and ‘pure qualitativeness’. I argue for the last of these, and urge that we take intrinsic properties of concrete objects to be all and only those shared by actual or possible duplicates, which only differ extrinsically. This approach gains support from Francescotti’s approach: defining ‘intrinsic’ in contradistinction to extrinsic properties which ‘consist in’ relations which rule out intrinsicality. I answer Weatherson’s criticisms of Francescotti, but, to answer criticisms of my own, I amend his account, proposing that possession of an extrinsic property consists in a relation to one or more actual or possible distinct concrete objects. Finally I indicate ways to avoid some apparent objections to this account.     

An Axiomatic Theory of Law

This paper presents in outline Luigi Ferrajoli’s axiomatic and general theory of law, as developed in his lifelong work Principia Iuris. The first section focuses on the three main aspects of the theory: the methodological, the theoretical and the pragmatic, which respectively represent the theory’s syntax, semantics and its pragmatics. Ferrajoli identifies three deontic gaps of norms: firstly, the one between their validity and efficacy; secondly, the one between their justice and validity; and finally, and most importantly, the one between validity and existence (i.e. normative force). The presence of such gaps is, according to Ferrajoli, the extraordinary innovation that entrenched constitutions have brought into modern legal systems, by establishing norms that are superior to statutes and case law. In this sense, all normative phenomena (except for the constitution itself) can be conceived both as norms and as facts. In the second section the role of juridical science is briefly discussed.     

The Universal Right to Education: Freedom,Equality and <Emphasis Type="Italic">Fraternity</Emphasis>

The overall aim of the article is to analyse how the universal right to education have been built, legitimized and used. And more specifically ask who is addressed by the universal right to education, and who is given access to rights and to education. The first part of the article focus on the history of declarations, the notion of the universal right to education, emphasizing differences in matters of detail—for example, the meaning of ‘compulsory’, ‘children’s rights’ or ‘parents’ rights’—and critically examining the right of the child and the right of the parent in terms of tensions between ‘social rights’ and ‘private autonomy rights’. Despite differences in detail, the iterations of the universal right to education do share to the full in the idea of education as such. In the second part the attempt to scrutinize the underlying assumptions legitimizing the consensus on education, focusing again on the notion of the child. In conclusion I argue that a certain notion of what it is to be a human being is inscribed within the circle of access to rights and education. These notions of what it means to be a child, a parent, a citizen or a member of the ‘human family’ are notions of enlightenment and humanity and, to my understanding, aspects of how democracy is configured around freedom, equality and fraternity.     

Problems for Moral Twin Earth Arguments*

Terry Horgan and Mark Timmons have recently presented a series of papers in which they argue against what has come to be called the ‘new wave’ moral realism and moral semantics of David Brink, Richard Boyd, Peter Railton, and a number of other philosophers. The central idea behind Horgan and Timmons’s criticism of these ‘new wave’ theories has been extended by Sean Holland to include the sort of realism that drops out of response-dependent accounts that make use of an analogy between moral properties and secondary qualities. This paper argues that Holland’s extension depends crucially on the fact that his target is a direct response-dependent account of moral value. His argument does not work against such accounts of more basic normative notions such as ‘harm’ or ‘benefit’. And these more basic notions may then serve as the basic normative building blocks for an indirectly response-dependent moral theory. * Thanks to Mark Timmons for helpful and friendly comments on an earlier version of this paper, and also to an audience at the 2003 Pacific APA, and to the reviewers for this journal.     

Environmental Refugees: What Rights? Which Duties?

It is estimated that there could be 200 million‘environmental refugees’ by the middle of this century. One major environmental cause of population displacement is likely to be global climate change. As the situation is likely to become more pressing, it is vital to consider now the rights of environmental refugees and the duties of the rest of the world. However, this is not an issue that has been addressed in mainstream theories of global justice. This paper considers the potential of two leading liberal theories of international justice to address the particular issues raised by the plight of potential and actual environmental refugees. I argue that neither John Rawls’s ‘Law of Peoples’ approach nor Charles Beitz’s `cosmopolitanism' is capable of providing an adequate account of justice in this context. Beitz’s theory does have some advantages over Rawls’s approach but it fails to take proper account of the attachment that some people have to their own ‘home’. This revised version was published online in July 2006 with corrections to the Cover Date.     

Hermann Cohen and Bakhtin’s early aesthetics

In this article, Bakhtin’s early aesthetics is reread in the context of Hermann Cohen’s system of philosophy, especially his aesthetics. Bakhtin’s thinking from the early ethical writing Toward a Philosophy of Act to Author and Hero in Artistic Activity and Problems of Dostoevsky’s Poetics is followed. In Author and Hero, an individual is in his life conceived as involved in cognitive and ethical action but as remaining without a consummative form; the form, or the ‘soul’, is bestowed upon a person by the creative activity of the artist alone. In his understanding of artistic creativity and the relationship between the ‘hero’ and the author, Bakhtin closely follows Cohen, with the exception that for Cohen the object of artistic form-giving is the universal, idealized man, whereas for Bakhtin it is an individual. In the concept of a ‘polyphonic novel’ as developed in Problems of Dostoevsky’s Poetics, Bakhtin, however, considers this view of the activity of the artist (or the novelist) to apply to the “traditional” novel only, while in a Dostoevskyean novel the characters are not subordinated to any defining power of the author. Bakhtin’s theory of the Dostoevskyean novel is thus a return to the emphasis of the cognitive and ethical autonomy of the individual. His understanding of the encounter between persons as a ‘subject’—‘subject’ or an ‘I’—‘thou’ relation has a predecessor, among others, in Cohen.     

How is God-talk logically possible? A sketch for an argument on the logic of ‘God’

In this paper I want to argue for the optimal way to characterise the logical and semantical behaviour of the singular term ‘God’ used in religious language. The relevance of this enterprise to logical theory is the main focus as well. Doing this presupposes to outline the two rivaling approaches of well-definition of singular terms: Kripke’s (“rigid designators”) and Hintikka’s (“world-lines”). ‘God’ as a “rigid designator” is purified from all real-life-language-games of identification and only spells out a metaphysical tag, which favours the view of “anything goes”. Instead, ‘God’ as a “world-line,” plus two ways of quantification, is much more flexible to theological traditions, teachings of the church, religious practices and personal feelings. Thus, it provides a sufficiently well-defined singular term for the purposes of logical theory. The whole sketch is based on Jaakko Hintikka’s logical ideas, mainly on his responses to different authors in PJH. I have systematically omitted direct references to his texts because I have modified considerably his ideas for my own purposes.     

GAKhN: an aesthetics of ruins,or Aleksej Losev’s failed project

In the course of his collaboration with GAKhN, whose task was to create a systemic ‘scientific’ theory of art, Losev undertook a systematic interpretation of German classical aesthetics as the historical presupposition for his own Christian, Platonist doctrine of art conceived as a dialectical universe comprising totalizing connections at all levels. This interpretation was concealed in a masterful way within the ‘Commentaries’ to Dialektika khudožestvennoj formy. Independently of the significant results achieved by this revival of the classical tradition, Losev’s mythologized theory of art called forth a critical reaction on the part of his GAKhN colleagues and brought to light some of the broader theoretical attitudes present among GAKhN’s collaborators.     

Internalism and Hyperexternalism About Reasons

Alan Goldman’s Reasons from Within is one of the most thorough recent defenses of what might be called ‘orthodox internalism’ about practical reasons. Goldman’s main target is an opposing view that includes a commitment to the following two theses: (O) that there are such things as objective values, and (E) that these values give rise to external reasons. One version of this view, which we can call ‘orthodox externalism’, also includes a commitment to the thesis (I) that rational people will be motivated by any reason they have of which they are aware. Goldman himself embraces (I), and deploys it frequently in his criticisms of orthodox externalism. But there is logical space for an externalist view that includes a commitment to (O) and (E), but that denies (I). The resulting “hyperexternalist” view holds that some reasons need not motivate us, even if we are rational. In this paper I argue that Goldman’s criticisms of orthodox externalism leave hyperexternalism untouched, and that his specific criticisms of my own version of hyperexternalism do not work. In light of Goldman’s criticisms of orthodox externalism and my own criticisms of Goldman’s view, hyperexternalism emerges as the favored option.     

Monads and Mathematics: G?del and Husserl

In 1928 Edmund Husserl wrote that “The ideal of the future is essentially that of phenomenologically based (“philosophical”) sciences, in unitary relation to an absolute theory of monads” (“Phenomenology”, Encyclopedia Britannica draft) There are references to phenomenological monadology in various writings of Husserl. Kurt G?del began to study Husserl’s work in 1959. On the basis of his later discussions with G?del, Hao Wang tells us that “G?del’s own main aim in philosophy was to develop metaphysics—specifically, something like the monadology of Leibniz transformed into exact theory—with the help of phenomenology.” (A Logical Journey: From G?del to Philosophy, p. 166) In the Cartesian Meditations and other works Husserl identifies ‘monads’ (in his sense) with ‘transcendental egos in their full concreteness’. In this paper I explore some prospects for a G?delian monadology that result from this identification, with reference to texts of G?del and to aspects of Leibniz’s original monadology.     

Psychoanalyzing Historicists?: The Enigmatic Popper

The paper shows how Karl Popper’s critique of ‘historicism’ is permeated by psychoanalytic discourse regardless of his critique that psychoanalysis is one of the exemplars of pseudoscience. Early on, when he was formulating his philosophy of science, Popper had an apparently stringent criterion, viz. falsifiablity, and painstaking analysis. The central argument of this paper is that despite his representation of psychoanalysis as the principal illustration of the category he dubs as ‘pseudoscience’, Popper’s analysis has been infused with psychoanalysis when it comes to his social and political philosophy. Besides, not only was his interpretation of the proponents of ‘historicism’ and the ‘closed’ society mediated by the very concepts of a field which he indicted as pseudoscientific but also he frequently slipped into vacuous and unverifiable accusations forgetting the jurisdiction he formerly accorded to empirical adequacy and logical consistency when examining and assessing theories.     

Husserl’s transcendental philosophy and the critique of naturalism

Throughout his career, Husserl identifies naturalism as the greatest threat to both the sciences and philosophy. In this paper, I explicate Husserl’s overall diagnosis and critique of naturalism and then examine the specific transcendental aspect of his critique. Husserl agreed with the Neo-Kantians in rejecting naturalism. He has three major critiques of naturalism: First, it (like psychologism and for the same reasons) is ‘countersensical’ in that it denies the very ideal laws that it needs for its own justification. Second, naturalism essentially misconstrues consciousness by treating it as a part of the world. Third, naturalism is the inevitable consequence of a certain rigidification of the ‘natural attitude’ into what Husserl calls the ‘naturalistic attitude’. This naturalistic attitude ‘reifies’ and it ‘absolutizes’ the world such that it is treated as taken-for-granted and ‘obvious’. Husserl’s transcendental phenomenological analysis, however, discloses that the natural attitude is, despite its omnipresence in everyday life, not primary, but in fact is relative to the ‘absolute’ transcendental attitude. The mature Husserl’s critique of naturalism is therefore based on his acceptance of the absolute priority of the transcendental attitude. The paradox remains that we must start from and, in a sense, return to the natural attitude, while, at the same time, restricting this attitude through the on-going transcendental vigilance of the universal epoché.