Plenary Presentations

TITLES AND ABSTRACTS

Brian Leiter

Some Realism about Legal and Political Philosophy

There have been two main traditions of theory about society, politics, and law in Western thought, but they do not divide up along familiar lines of modern or ancient, post-Enlightenment or pre-Enlightenment, analytic or Continental, historical or systematic. On one side, we find, for example, Thucydides, Machiavelli, Marx, Nietzsche, Freud and--to mention more recent thinkers who are partly on the realist side of the divide--H.L.A. Hart, Herbert Marcuse, and Michel Foucault. On the other side, we find Plato, Aquinas, Kant, and Hegel and—once again, to mention more recent theorists—John Rawls, Jurgen Habermas and Ronald Dworkin. I will treat the former as representing “realism” in political and legal thought, the latter “moralism,” terms whose meaning I explore. I am, needless to say, a defender of the realist tradition.
“Realists” are committed to theses like the following: (1) human beings, throughout history and across cultures, are motivated primarily by their passions and desires (not by “reason”), many of which exhibit strong anti-social or irrational tendencies (people are, for example, frequently cruel, self-aggrandizing, avaricious, self-deceived, envious, etc.); (2) given what human being are like, theories devoted to articulating and discursively justifying people’s (supposed rational) moral obligations and duties, are generally irrelevant to changing people’s behavior; (3) theories of society, politics, and law should try to help us understand what is really going on, and never presuppose that the best theoretical accounts of society or law show them to be morally appealing or justified.
Moralists, by contrast, concern themselves with discursive theories about how individuals and institutions ought to act in order be morally defensible. Often those in the moralist tradition scold people and institutions for their bad behavior, for their failure to honor their “real” obligations and duties, the “real” demands of justice and so on, even though such scolding is irrelevant to what happens.
Of course, moralists do not always sit in judgment, wagging their finger at the failure of leaders and citizens to live up to the moralist’s arguments for what is morally right and obligatory: sometimes, as with Hegel, they are engaged in elaborate rationalizations of the existing state of affairs (or, more precisely, of the interests of the dominant class in the existing state of affairs). Hegel’s observation that philosophy is the “owl of Minerva” which only flies at dusk when an era is ending is an appropriate metaphor not only for Hegel’s spectacular rationalizations of the Prussian state, but for much moralist philosophy since. Think, for example, of John Rawls’s theoretical edifice in defense of the welfare state in the capitalist democracies, or Ronald Dworkin’s jurisprudential defense of the idea that the progressive Warren Court in the U.S. in the 1960s was really just applying the law.
I explore and defend realism against moralism in this lecture.

PAUL CARRESE

To be delivered

João Maurício Leitão Adeodato

Rhetoric as Philosophy

I shall deal with the three basic theses that define this way of thinking, which may be called descriptive, empirical or realistic rhetoric, applied to philosophy and philosophy of law. For philosophers whose confident anthropology is ontological, evident truths in knowledge and ethics are there to be literally “discovered,” “unveiled,” and this will depend merely on method, that is, on the competence of the approach, for which language is nothing but a means, because it carries an intrinsic, “true” meaning. For the rhetorical perspective there is no access to objects beyond language, which is the sole conventional environment, temporarily built by mutable, self-referent, and unstable agreements. While suggesting that Aristotle’s prestige changed the meaning of rhetoric in Western cultural tradition, reducing it to the art of persuasion, I will propose that a realistic rhetoric is closer to its original meaning in Ancient Greece and also more adequate to the understanding of contemporary law.
To name those theses, I was inspired by the Hellenistic philosopher Sextus Empiricus, whose writings always have the word “against” in their title.
First thesis: against ontological philosophers. When they respect rhetoric, they reduce it to a mere embellishment of the discourse; when they do not like it, they reduce it to anti-ethical strategies to fool the unwary. Those functions of seducing with words and of winning at all costs sure are important, but rhetoric goes far beyond them, and includes sincere persuasion, empirical demonstration, simulation, bluffing and all ways of human language to construct and impose the dominant narrative.
Second thesis: against Aristotelian rhetoricians. Rhetoric does not only consist of persuasion, of the study and the means of sincerely convincing through discourse, it reaches far beyond that. Not even the strategic rhetoric – that is only one of its species –, in which persuasion sure plays the most significant role, may be restricted to the persuasive methodologies. Among other means, which are strategic but not persuasive, rhetoric takes hold of authority, seduction, lies, enticement, threats of harm and all paths within the scope of eristics.
Third thesis: against ontological philosophers and Aristotelian rhetoricians. Rhetoric is a form of philosophy which is opposed to the dominant ontological trend but not to philosophy as a whole. Ontological philosophers took over philosophy, up to the point that even rhetoricians came to believe that philosophy consists in the search for truth and thus that rhetoric must be separated from it. Etymology shows that philosophy consists in the love of wisdom. If we abandon the concept of truth, rhetoric may well be seen as a form of philosophy.
To support these three theses, I will also suggest three meanings for the word “rhetoric”, that may contribute to diminish misunderstandings. The material rhetoric refers to that level which ontological philosophies call “reality”, the dominant narratives that people tell themselves and other people and in which they believe as “real” – the name from the Latin res, “thing”, shows the ontological objectification of language, just like “object” and “fact”. Describing this process, the realist rhetoric intends to be a kind of philosophy and to go beyond the idealistic Aristotelian understanding of rhetoric as the art of persuasion. The strategic rhetoric are the discourses that aim to become the material rhetoric, the versions about the environment that compete to be considered “real facts”. The analytic rhetoric is what our research group does: the study of the ways by which the dominant versions emerge out of those different strategies, shown through statutes, judicial decisions, mediation, contracts.

Anita L. Allen

Privacy, Race and Legal Governance

In the digital age, concerns about a “weaponization of technology” pervade in popular media. Warnings abound that “surveillance capitalism” diminishes freedom, perpetuates inequality and threatens democracy. Society has indeed come to take on features of a Benthamite panopticon and even worse, what has been called a “ban-opticon” in which the legitimate interests of marginalized groups are forced out of the sightlines of civil society. Privacy looms as a persistent concern raised by digital technology. Privacy can mean power, and the lack of privacy is a kind of powerlessness. To be sure, digital technology can benefit peoples of color seeking knowledge, and the ability to join together in solidarity, watching the watchers for deterrence and documenting atrocities. But technology can also be a conduit for race-based hate, violence and discrimination. Platform governance is an important part of the overall response to concerns about digital age privacy, racial justice and equity. Here I ask whether U.S. data privacy law can help meet the full array of contemporary demands for improved platform governance. When we speak of the governance of “platforms,” we are speaking about governing corporations with global reach who operate online services or whose products are gateways to the internet. They include companies based abroad like TikToK, as well as U.S.-headquartered firms such as Apple, Microsoft, Facebook, Twitter, Google, Airbnb, Uber, and Amazon. In the opening decades of the 21st century, these companies rapidly transformed communication, entertainment, medicine, research, travel and consumer shopping globally. Platforms create beneficial efficiencies and opportunities but, with a profit motive they also collect and use massive amounts of data with limited transparency or accountability, while enabling manipulation, deception, surveillance, racism and injustice. Commentators vigorously debate the relative merits of industry self-regulation, content moderation, social media councils, platform design, norms, and law. Regimes of data-privacy law, anti-trust law, intellectual-property law, constitutional law, and human rights law all bear on platform governance. Drawing on my expertise as a privacy lawyer and a philosopher of privacy, I focus in this talk on data privacy law as a partial response to the call for platform governance, and to normative and philosophical perspectives about privacy that I view as data privacy law’s ideal ethical foundation.

Elisabeth Holzleithner

Gender, Law and Equal Freedom: Ambitious Theory, Ambivalent Practice

Abstract coming soon

George Letsas

In Praise of Human Rights Courts

Of all the myths that the enemies of liberal democracy seek to perpetuate, the idea that legal protection of human rights is not necessarily a good thing, is the most pernicious and devious one. The left routinely criticizes human rights law for not achieving some ideal state of social and economic equality. The right, on the other hand, criticizes human rights law for giving judges too much power over controversial ethical questions. What both left and right critiques have in common is the assumption that human rights law is an instrument for achieving some further state of affairs: a certain distribution of goods in one case, or a conception of individual flourishing in the other. This instrumentalization leads to the tired criticisms made against human rights law: it is politics by other means, it doesn’t work, it is undemocratic, it is not enough, or it ‘overreaches’.
Human rights law, however, is not an instrument for achieving some state of affairs. It is a set of moral principles that seek to legitimize the use of coercive force by states. The function of human rights as legal norms is not peripheral or optional, but a constitutive part of their moral character. This normative function of human rights forms a central part of the Rule of Law, rather than being a political programme, like socialism or free-market capitalism. It is no accident that the first target of any populist or authoritarian government is constitutional courts, which typically execute this function really well. Instrumental accounts, left and right of the political spectrum, seek to make institutional protection of human rights a contingent matter, whose justification depends on empirical outcomes. By doing so, they undermine the value of the Rule of Law and serve as a breeding ground for authoritarianism.

Hyekyong Kim

To be delivered

César Rodríguez-Garavito

Climatizing Rights: Human Rights Theory and Practice for the Anthropocene

The climate emergency poses an existential challenge to the human rights project. If human rights are to remain relevant in the Anthropocene, budding theoretical, doctrinal, and advocacy efforts from within the field to address the climate emergency need to be deepened and expanded. The task of urgently advancing climate action through rights-based concepts, frames and norms is what I have called ‘climatizing’ human rights. In this talk, I outline the challenges that the climate emergency raises for conventional concepts and tools in human rights scholarship and practice. I then lay out two complementary routes to the climatization of human rights. The first route involves applying the existing human rights conceptual and legal tools to the climate emergency. This route entails both addressing the impacts of global warming on the enjoyment of human rights and ensuring that climate policies follow human rights norms regarding substantive and procedural equity. The second route entails adapting and updating human rights to the Anthropocene’s realities and challenges. In addition to a concern with guaranteeing at least a minimum of individual freedoms, material welfare and equity compatible with human dignity, this goal requires protecting the planetary boundaries that make life on Earth possible. Drawing on developments in life sciences, ecology, regenerative economics, and moral philosophy, I argue that, in addition to protecting present-day humans’ rights, this approach requires advancing what I have called “more-than-human rights,” that is, the rights of future generations and non-humans.

Tetsu Sakurai

Can Reflective Inclusiveness Mitigate the Cultural Confrontation Caused by International Migration?

The idea of human rights and nationalism are both children of modernity, but today they are at odds with each other particularly over immigration issues. The number of people who have attempted (or succeeded in) crossing national boundaries to seek a better life in relatively developed societies has increased in recent decades. As a result, we have witnessed the emergence of two phenomena in the political and legal spheres. On the one hand, there are liberal globalists asking for respect and the protection of the basic human rights of the migrants and refugees and arguing for their civic and social integration into a host society. On the other hand, there are growing calls for a tougher stance on immigration, and powerful populist politicians and governments have emerged in many developed countries in the last decade. These opposing political stances reflect the two established and contradictory principles of post-war international (migration) regimes: national sovereignty and universal human rights. The residents of developed societies are confronted with “a clash of solidarities,” that is, a serious dilemma regarding national, ethnic and religious solidarities on the one hand, and the duties we universally owe to other individuals as fellow human beings on the other hand.
In this presentation, I explore the meaning of this serious dilemma and seek an appropriate way of dealing with the normative predicaments shared by these societies. More specifically, I would argue that it is critically important for both immigrants and host societies to share the ideals of reflective inclusiveness in order to reconcile the conflicting values of nationalistic attachment and human rights. In other words, it is essential for both sides of political and cultural boundaries to be reflectively inclusive of other cultures if we want to appease the cultural and moral confrontations we are facing, particularly in host societies.