Archive for the 'Constructivism' Category

Habermas, Wood: law as conversation

Published on January 19, 2007 in Constructivism, Law and Society and Philosophy. 10 Comments

Matt Wood argues:

After just reading two articles dealing with Jurgen Habermas’s theory of communicative action, I think I can take a tentative step towards fleshing out my arguments for the role of dialogue in the definition of law. According to this helpful paper, which summarizes Habermas’s theory of communicative action (and quotes from his book The Theory of Communicative Action):

“What Habermas attempts is to identify and reconstruct ‘the rational internal structure of processes of reaching understanding’ in terms of ‘the validity claims of propositional truth, normative rightness, and sincerity or authenticity’: ‘the concept of rationally motivated agreement, that is, one based on the intersubjective recognition of criticizable validity claims’; and ‘the concept of reaching understanding as the cooperative negotiation of common definitions of the situation.’”

As contrasted with instrumental rationality, Habermas proposes the ubiquity (and primacy) of “communicative rationality”, which in his own words “carries with it connotations based ultimately on the central experience of the unconstrained, unifying, consensus bringing force of argumentative speech, in which different participants overcome their merely subjective views and, owing to the mutuality of rationally motivated convictions, assure themselves of the unity of the objective world and the intersubjectivity of their lifeworld.” Rationality itself, according to this theory, turns on the ability of a speaker to justify with convincing grounds or reasons the validity of his communicative statements, dialogically – in the course of conversation – and hence intersubjectively . . . in other words, through persuasion. This conception of rationality looks to be grounded in a consensus theory of truth, and Habermas himself appears to concede as much: “The condition for the truth of statements is the potential agreement of everyone else.” (While I have doubts about how far this truth-criteria can be pushed in the context of scientific discourse, I believe it touches the core nature of “political truths”, such as questions about the distribution of “power”.)

Habermas links communicative rationality to a theory of argumentation, in which “[a]rgumentation refers to ‘the type of speech in which participants thematize the contested validity [claims of an expression] and attempt to vindicate or criticize them through argument,’ and an ‘argument contains reasons or grounds that are connected in a systematic way with the validity of a claim of a problematic expression.’ … [A]rgumentation aims to produce cogent arguments, which bring about intersubjective recognition of validity claims and transforms opinion into knowledge. … Each aspect [of argumentation] can be respectively said to aim at ‘the assent of a universal audience,’ ‘the attainment of a rationally motivated agreement,’ and ‘ the discursive redemption of a validity claim.’ … Thus, for Habermas, the rationality of social action is and should be assessed in relation to the validity claims [whose acceptance prompted such action] and the possibility of reaching agreement in critical discourse, and thus rationality is conceived as inherent in communicative practice which is intrinsically oriented towards consensus.”

Habermas identifies three types of validity claims that are at least implicit in every communicative expression: claims of propositional truth, claims of normative rightness, and claims to sincerity. Each of these types can be “thematized” by an expression (by which I understand Habermas to mean ‘made more cognitively salient’, or ‘emphasized’), even though all are actually present, giving rise to a set of more-or-less distinctive speech acts: constatives, regulatives, and expressives, respectively. (It should be noted that Habermas includes a larger number of speech acts in his own classificatory scheme.)

Lawrence Solum has written (Freedom of Communicative Action, 83 Nw.U.L.Rev. 54 (1989)) that “[u]nder ordinary circumstances, the participants will share a common set of norms or facts to which appeal may be made in the course of argumentative discourse. Where there is disagreement about specific facts or norms, the participants may still agree on the appropriate standards or criteria by which controversial norms or facts may be judged. … In some situations, however, even the standards or criteria of truth and rightness are the subject of controversy; in such cases the continuation of the attempt to reach agreement demands a move to theoretic discourse. Rational argumentation, thus, [as Habermas puts it] ‘can be conceived as a reflective continuation, with different means, of [communicative] action oriented to reaching understanding.’” Solum describes this overall process as “discursive will formation.”

I’d like to propose that “communicative action” – a process whereby validity claims are raised in speech, discursively defended in argument, and accepted or rejected as a basis for action – underlies the phenomenon of “law.” In fact, I believe “law” can be thought of as a special case of communicative action, wherein normative validity claims are justified by discursive reference to the actions (ultimately speech) of a norm-promulgating authority.

First, notice the extent to which speech underlies the effectuation of “law.” In the American system of government, a subset of the population known as Congress-people discuss amongst themselves a new norm-proposal. A formal vote is taken (itself a communicative act, rooted in assessments of the normative validity of the proposal on non-positivist grounds) and the approved norm is then written and conveyed to an authorized publisher, who records the norm in text. Copies are manufactured and distributed to judges, lawyers, and other interested parties, including the public. Each reading of the text completes an act of communication. When a violation of the norm is alleged, this text is invoked by one private party in a specialized discourse-forum known as a court. Arguments for action are conveyed to a judge by the laywers for each party (who have learned the facts of the case from their clients, and the law from published sources), and each lawyer invokes Congressional, judicial, or Constitutional speech (i.e., officially promulgated norms) as the grounds for or against the validity claims of “rightness” implicit in their requested rulings. The judge assesses the persuasiveness of the grounds for the competing validity claims and reaches a conclusion, which he communicates to the parties and larger community in the form of an “opinion”. Depending on the behavior of the losing party, this judicial speech can employed as the grounds for the validity claims implicit in requests, communicated to enforcement authorities, for the taking of enforcement action. The dialogic chain continues on, from chief of police to beat officer, from officer to officer, from officer to arrestee, from officer to jail guard, from officer to judge hearing habeus corpus petition, on and on… each link a case of conversation, of dialogue, in which repeated efforts to induce action by listeners is pursued by offering grounds to support the implicit (or explicit) normative validity of action, typically by reference to legal speech, itself typically in the form of texts.

To my mind, the importance of law as a socially ordering force lies in the ability of its *invocation in dialogue* to structure individual behavior (and I hope to have by now impressed on you the fundamental, utterly central role of speech in generating these effects). But I don’t think the truly remarkable feature of law lies in the propositional validity claims which are but one facet of the expressions that comprise links in the institutional ‘chain of dialogues’ that generate social order out of legal pronouncements (i.e., whether the statement “Congress passed a law saying X” is true) – although the validity of these propositions is surely a necessary condition for the success of “law.” Instead, it’s the implicit normative validity claims underwriting persuasion along this chain – the claims to a proposed action’s rightness – and their discursive justifications, that are most distinctive. In general, the mere fact that a governmental authority promulgated a norm is taken as *sufficient ground* for acceptance of a normative validity claim, and hence the promulgated norm, as a basis for action. Herein lies what I’ve been calling the ‘habit of legitimacy recognition.’ I think this simple dispositional response and its stimulation in the course of dialogue (through, for example, the invocation of positivist grounds to justify normative validity claims) is the tissue that holds the entire apparatus of state together. This is the “trust”, the voluntary acquiescence to state power, that works in place of the threat of violence as a means of organizing society and its many power-relationships. The unquestioned legitimacy of the state and its law is necessary for the efficient cooperation of so many actors; imagine the difficulty of governing if the legitimacy of the state had to be re-argued every time a demand was made in its name!

But this sedimented, automatic habit of legitimacy-recognition can be destabilized. Consistent with the habit’s important role in gilding grounds for the justification of normative validity claims, individual speakers may contemplate such claims with the help of their *entire* array of tools of normative evaluation, including moral principles. (Hence my use of the term “coherence theory of law” above.) As the moral propriety of a legal norm decreases, we might expect moral grounds for rejection of the normative validity of the legal norm (defined as a speech act to which the propositional validity claim of promulgation by a legal authority can be justified discursively) to overwhelm the sufficiency of “positivist grounds” for the acceptance of its normative validity. At this point, the links in the dialogue-chain that I’ve described as the very essence of the state may begin to snap, as communicative action between dialogue participants results in either consensus away from action justified on positivist grounds (and towards action whose claim to normative validity is justified on alternative, perhaps moral grounds), or intractable disagreement (perhaps rooted in the varying intensity with which the persuasiveness of moral and positivist grounds are felt). And we can expect the apparatus of the state (through the individuated yet communicatively coordinated actions of its remaining constituent actors – i.e., those still persuaded to cooperate on positivist grounds) to resort to violence as an alternative to rational persuasion through communicative action as a means of enforcing obedience and thereby preserving the state. If a critical mass of individuals begins to reject the normative validity of positivist grounds as a basis for the acceptance of proposed action, we might expect the general imperative of coordinated action that underlies all human societies to result in the formation of replacement authorities (again, dialogically), whose acts of norm-promulgation are more acceptable as a ground for the acceptance of the normative validity claims underwriting voluntary obedience to the promulgated norms themselves. Herein lies the texture and mechanism of secession, civil war, and a host of other social phenomenon that signal the breakdown of a formerly unitary political society. The terms of political dialogue change – via the changed justifications, or grounds, offered to defend validity claims – and collective action re-orients, one conversation at a time.

There is a teleological sort of thing going on with the Habermassian argument. We’re in a territory where it is our goal to reach mutual understanding, and this goal acts as the foundation (er, ceiling?) of communicative rationality.

But it could be observed (in the fretful-philosopher tone) that this is epistemically even more fantastic than the problem of establishing that there is an external world. In the latter, we’re trying to justify to ourselves that the phenomena that we are inundated with are caused by something “real”. But in the former, we’re setting up a standard whose ultimate validity is based upon something so nebulous and auto-eroding as “mutual understanding”. At least with the external world, vulgar appearances don’t shut themselves off according to either my whims or to the world’s fancies. But people shut up all the time, leaving me in the dark about the state of their understandings — these “appearances” are spotty and intermittant. Also, we have some sort of idea about what the world “is”, since we have all kinds of physics at our disposal. The cues associated with mutual understanding are not quite so clear, and our understanding of understanding is spotty. This is manifest in the fact that people misunderstand while thinking they understand, and understand when they think they don’t. Both of these aporias suppose that there is mutual good will in a conversation (a bare minimum to postulate if we want to even be talking about the same thing Habermas presumably is). But good will alone is nevertheless insufficient for mutual understanding.

This is not to say that we have good reason to believe that there is never any mutual understanding. It is just to say that one doesn’t have to be a cynic to concede that mutual understanding is difficult to achieve, and so, we should be doubtful as to whether it is the dominant force which props up the law. It certainly doesn’t appear to be the way that courtrooms operate. Quite the opposite. When trying to justify to myself the “mutual understanding” doctrine of rationality, while still admitting that the stereotypical courtroom is “rational” without being in the same timezone as a pursuit of ‘mutual understanding’, I could only suppose that what we see in vulgar debate and informal logic is more properly called “the ghost of departed reason”. I can accept that, but I wonder if anyone else would. (Though admittedly my experience of the courtroom is limited to episodes of Matlock. Perhaps that is telling.)

That being said, I really *want* to believe in a Habermas-style argument. He has broken ground in places where Grice feared to tread. But experience suggests to me that a) communicative rationality must be based upon strategic or instrumental action in most cases, because the desirability of reaching “mutual understanding” has to be cultivated (and constantly renewed); and b) communicative action is, in principle, a kind of strategic action, since strategic action is mere goal-directed behavior, and the reaching of “mutual understanding” is a goal.

Moving on to Matt’s contribution: for him, law is a kind of communicative action “wherein normative validity claims are justified by discursive reference to the actions (ultimately speech) of a norm-promulgating authority.” The first thing I noticed is that this is a positivist’s account, so long as we construe “authority” in a strict sense of social authority. If we admit that things like “conscience” are sorts of “authorities”, then I suppose it wouldn’t be positivistic; but I’m not sure entirely what Matt’s intent was there, or how far he was willing to extend the scope of the claim. As he goes on to describe the “coherance theory of law”, we get less of a positivistic vibe, and more of an eclectic one; and this emphasis upon the social embeddedness of law is to the good, following the lead of Russell, (possibly) Dworkin, and modern blawgers like Jurisdynamics. But whatever moves are being made, they are surely not compatible with the Weberian formulation of law as what is justified by the authority. The ‘coherance’ story of how civil strife emerges is likely correct, but it is not clear how we have gotten from point A to point B, or whether the tools that have been laid out (namely the definition of law as given) are able to take us there.

The second thing — the centrality of meaning and communication to law — is surely preaching to the choir! I’m quite impressed by the symbolic interactionists, and they motivated my interest in philosophy of language. I think that’s likely true for the whole roster of L&S writers.

Cultural Cognition v. Bounded Rationality

Published on December 21, 2006 in Constructivism and Philosophy. 1 Comment

We have discussed the theory of cultural cognition extensively on this blog in the past (for example here, here, and here). One particularly interesting problem is the relationship between cultural cognition and bounded rationality.

  • Cultural cognition, in essence, posits a causal relationship between values and factual beliefs. Values are prior to beliefs. For example, people who judge drug use to be morally bad (value) are highly likely to believe that drug use is also dangerous (fact).
  • Bounded rationality makes somewhat similar claims and aims to correct some of the assumptions of rational-agent models. For example, the fact that we place greater value on something that we have just because we have it (”endowment effect”) is plainly irrational but not random. The non-randomness of certain errors in rational judgment is a significant problem for rational choice models, because the key reason for assuming rationality is not that everyone is, in fact, rational (clearly that’s not the case), but rather that rationality predicts behavior better than any alternative assumption. If there is one rational way to act and many irrational ones, and if irrational behavior is random, then rationality is the best predictor of behavior even if only a minority of people act rationally. However, if irrational behavior is not random, then the rationality assumption may be misplaced.

Cass Sunstein has argued that cultural cognition can be explained in terms of bounded rationality. Dan Kahan and Paul Slovic, in a recent paper, disagree:

In our view, Sunstein’s assertion that “bounded rationality lie[s] behind cultural cognition” merges two claims, one of which is clearly wrong … The clearly wrong claim is that one would expect persons who are boundedly rational to behave like cultural evaluators just because they are boundedly rational. It is indeed well established that people conform their factual beliefs both to the apparent view of others (through mechanisms such as “group polarization,” “reactive devaluation,” and “naïve realism”) and to their own values (through mechanisms such as “biased assimilation” and “defensive motivation”). But these dynamics don’t tell us which group commitments (professional or geographic, political or socio- economic) or which values (ideological, religious, aesthetic, etc.) will exert this impact on belief formation. They thus furnish no explanation for any particular distribution of beliefs across persons or issues, and no explanation, in particular, for why beliefs are in fact distributed in ways that express persons’ commitments to hierarchic and egalitarian, individualistic and communitarian worldviews. The most plausible way to make sense of these patterns of belief is to view culture as prior to the cognitive processes through which people perceive facts. … Bounded rationality, then, does not explain why people behave like cultural evaluators; on the contrary, the disposition of people to behave like cultural evaluators explains why established mechanisms of belief formation – social influences, biased assimilation, the availability heuristic, probability neglect, affect, etc. – generate the distinctive array of beliefs that boundedly rational people actually hold.

I find that explanation persuasive. My concern with cultural cognition theory is not with its explanatory model but with its normative implications, at least as implied by Kahan and Slovic, who claim that in a democracy people are entitled to their values and that certain factual beliefs are in a very direct sense expressions of such values. As such, both the values and the factual beliefs are entitled to some normative weight. Nonsense, says Sunstein. Incorrect factual beliefs have no “normative weight,” even where they are expressions of values. That, in my view, is obviously correct. Truth is not about counting votes or respecting people’s values and prejudices. Truth is about underwriting factual claims with the prevailing opinions of a specialized scientific community that follows certain public procedures. I am thrilled to see that Kahan and Sovic acknowledge Sunstein’s point in that regard:

[I]f we came off sounding as if we think democracy entails respecting all culturally grounded risk perceptions, no matter how empirically misguided they might be, we overstated our position. We admit to a fair measure of ambivalence about when beliefs formed as a result of cultural cognition merit normative respect within a democratic society.

In my view, Kahan’s and Slovic’s paper puts much of the cultural cognition v. bounded rationality debate to rest. Cultural cognition, properly stripped of certain overreaching normative implications, provides a useful explanatory backdrop to bounded rationality.
[tags]cultural cognition, bounded rationality, economics[/tags]

Epistemological Implications of Radical Constructivism. A Response to Critics.

Published on October 8, 2005 in Constructivism, Kant and Philosophy. 4 Comments

A number of readers criticized my argument in Claims of Truth and Webs of Belief as overly pessimistic. One reader wrote that there is no reason to deny the existence of an external, mind-independent reality and that the progress of science would be a miracle if things didn’t exist ontologically. Underlying this and other reactions is a visceral unease with my claim that truth, in practice, is largely replaced by interpersonal trust. Another reader criticized my argument from a practical point of view: Isn’t saying that truth claims, no matter how well founded or absurd, ultimately rest on nothing but various measures of coherence, lending support to the creationism crowd and other enemies of reason? I am not dismissing any of these criticisms, and I specifically share the latter concern, but I would like to explain the philosophical backdrop of my argument a bit more in detail.

My starting point is the constructivist position that we actively construct our world rather than its being determined by a mind-independent reality. Cognition is instrumental. It serves the organization of the experiential world, not the discovery of an ontological reality. Truth is what works, not what is. That position is not based on a transcendental armchair argument, even though the modern constructivist project owes a huge debt of gratitude to Kant. Rather, it is based on the neurobiology of cognition and is naturalistic. The fundamental postulate of constructivism is that the mind is operationally closed. Only a change in the state of one neuron leads to a change in another. Unless a neuron changes its state, there can be no change in the cognitive system. Moreover, “the response of a nerve cell does not encode the physical nature of the agents that caused its response. Encoded is only ‘how much’ at this point on my body, but not ‘what.’” (H. v. Foerster) As a result of that principle of undifferentiated encoding, any perception of and any information about the world must be a product of the mind. If that statement is true (which I think it is), then any correspondence theory of reality must be false. It follows that we can neither deny nor confirm the existence of a mind-independent reality. Note that I am not denying the existence of an outside world; it would be shocking if it didn’t exist in some way, shape, or form. My claim is simply that cognition is not a process of mapping ontological entities onto cognitive structures, but rather a process of responding to, organizing, and finally making conscious sense of changes that are internal to the cognitive system. (One could say that the nervous system observes the body by connecting one electric charge to another, and that the mind observes the nervous system by connecting one thought to another. Both systems are structurally coupled – no thought without neural activity – but remain operationally closed.)

Thus I disagree with Popper’s critical rationalism and its corollary that our internal models will over time ever more accurately represent the properties of “the real world.” Rather, knowledge lives in the cavities of a real world that will forever remain beyond the horizon of possible experience. Our position can be compared to that of a crew born into a windowless WW II submarine (with a secret, limitless power supply) that pilots the boat solely by reading the dials, gauges, and instruments. Of course, the crew will, over time, come up with a model of the world “out there,” a model that allows the captain to pilot the boat without crashing into reefs or exposing it to unsustainable pressure. But would that model resemble the way that we see the sea and the boat from the outside? I don’t think so!

Accepting the postulate of the mind as a closed system has a number of important implications.

  • First, we can no longer appeal to a mind-independent reality as a truth criterion. What we perceive as a mind-independent reality is a construct of the mind. That doesn’t mean that the construct is arbitrary, it most certainly isn’t. But no one can claim that his or her position is true because it corresponds to an ontological reality. We can claim, however, that one position is better – truer ǃ – than another if it produces more favorable results. Bottom line is that since we can’t leave our own minds, the only criteria for truth are viability, coherence, and consistency.
  • Second, speech does not transmit meaning. Language is an activity, it is a highly sophisticated recursive coordination of behavior that triggers cognitive responses within the participating entities. (H. Maturana calls it “languaging”). Language doesn’t change the fact that our minds are semantically closed. Since you can’t (yet!) hook up your neurons to mine, I can only connect to my own thoughts, not to yours.
  • Third, the goal of science is not to explain but to make predictions, to bring order to our perceptions, and to enable us to act successfully in ever more creative ways.
  • Fourth, for most everyday actions, the delusion of ontological objectivity is a useful shorthand. But once the presence of the observer cannot be ignored, for example, in quantum physics but also in questions of ethics, we need to abandon our simplifying assumptions and take the limitations of our cognitive apparatus into account.

On a more speculative note, the persistence of the “subject perceives object” approach to cognition may well be explained by the fact that both subject and object are creations of our mind. At that basic level, they are thus commensurable. The correspondence theory of truth is therefore, in a sense, an adequate description of what’s going on in our minds. We, as “subject-subjects” perceive that the “object-subject” (i.e., what we think of as I) perceives an “object,” either correctly or incorrectly. Of course, both the object-subject and the object are constructs of our mind. If they weren’t we would have no way of knowing whether the subject-object’s claims about the object are true or false.

Cultural Cognition

Published on August 10, 2005 in Constructivism, Jurisprudence and Philosophy. 1 Comment

In Cultural Cognition and Public Policy, Dan Kahan and Donald Braman outline their theory of what explains persistent public disagreement over the effects of public policies and certain controversial legal issues, such as gun control, abortion, and the death penalty. (Terrorism should be added to that list.) While there are several influential theories of social constructivism (Kant, Hegel, von Glasersfeld, von Foerster, Berger/Luckman, Luhmann, Willke), few have been tested empirically. Kahan and Braman (in the context of the Cultural Cognition Project) have undertaken that task. Their central claim is that values determine not only our normative attitudes but also the factual universe that is available to us. In other words, as facts are dependent on value orientations, culture is cognitively prior to facts. (That should not come as a surprise to anyone who had been following the last presidential election, where suddenly there were not only red and blue states in terms of social values but also, and as a consequence, red and blue facts.) Kahan and Braman locate cultural world-views within a two-dimensional grid.




On the x-axis are group values, ranging from individualism to collectivism, and on the y-axis are attitudes toward criteria for distribution. Hierarchical societies rely on conspicuous and socially fixed criteria (race, gender, heritage, etc.), whereas egalitarian societies deny that such criteria should be employed. For ease of reference, I assigned four political archetypes to the grid: conservative, libertarian, liberal (= social-democrat, for our non-U.S. readers), and fascist. Kahan and Braman found that

cultural worldviews more powerfully predicted individual beliefs about the seriousness of [global warming, nuclear power, and pollution generally] than any other factor, including gender, race, income, education, and political ideology. (Id., at 13).

It would indeed be a spectacular confirmation of social constructivism if that claim could be verified across a broad range of topics. As indicated in the chart above, beliefs about many contentious policy issues come in familiar clusters. On that basis, Kahan and Braman conclude that the “end of ideology thesis” (that is, most people are rather moderate in their views, as the pragmatic struggle to improve one’s lot trumps principled political affiliations) is wrong. But the “culture war” thesis, while certainly somewhat closer to the mark, is also inadequate because it misunderstands the manner in which culture affects our attitudes toward questions of public policy. Cultural world-views don’t motivate by themselves as most of us are not cultural internalists, rather, they orient (or bias) our process of selecting those who we accept as authorities for the truth of factual propositions. This is because ordinary citizens

lack the capacity to decide for themselves whose [scientific study] has merit. They have no choice but to defer to those whom they trust to tell them which scientists to believe. And the people they trust are inevitably the ones whose cultural values they share, and who are inclined to credit or dismiss scientific evidence based on its conformity to their cultural priors. (Id., at 24).

In other words, because of the cultural biases woven into our engines of perception and world-construction, conclusively establishing the truth of a proposition within the scientific system does not necessarily end policy debates, as demonstrated by the continuing debate (in the U.S.) over one of the most secure elements in all of human knowledge, the theory of evolution. It would be fascinating to see how Kahan’s and Braman’s data relate to the work of the world values survey that maps cultural world-views on a much broader scale within a framework of survival- and self-expression values.