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.

HENRY S. RICHARDSON

Some Lessons of Structural Racial Injustice for Rawlsian Ideal Theory

The late Charles W. Mills’s persistent criticisms of Rawls’s ideal theory castigated him for having failed to address the centuries-old structural racism spread by Western colonialism. For Mills, these criticisms motivated a turn to non-ideal theory. Although I support the pursuit of non-ideal theory in all of its forms (corrective, reparative, and reformative, as well as the ethics of responding to injustice), the main lessons of Mills’s critique also have deep implications for an ideal theory such as Rawls’s. Since ideal theory will remain useful as a supplement to non-ideal theory, it is worth pursuing these implications. I will first lay out the main negative ones. The criticisms put forward by Mills (in company with other Black Radicals) reveal two serious flaws in Rawls’s ideal theory: First, Rawls’s well-known focus on the “basic structure of society” as the primary subject of social justice puts way too much stock in the legal regulation of society, correspondingly ignoring other sorts of social norms. Second, and relatedly, Rawls’s conception of social power is too highly moralized (too Hohfeldian) to enable him to come to grips with oppressive social power. These flaws need to be corrected and the limitations they entail must be overcome for a Rawlsian ideal society to be sufficiently resistant to breeding new forms of bigoted oppression. After setting out this negative case, I will lay out a series of constructive suggestions about how Rawls’s ideal theory could be amended so as to overcome these serious defects.

PAUL CARRESE

A Civilized Right of Nations: Montesquieu on a Defensive Liberal International Order

In light of the extraordinary challenges to, but also achievements of, the philosophical and practical effort to build a liberal international order since 1800 that is defensible against illiberal and despotic powers; and especially given our convening in Central Europe, now embroiled in a barbarous war unleashed by an illiberal, neo-imperial power that the Transatlantic alliance and other liberal powers, alliances, and institutions failed to deter in the past decade; we should reconsider the true foundations of the defensible, effective liberal order that gradually has been built and extended to many parts of the globe in the past century and more. The jurist and philosopher Montesquieu is a neglected father of this civilized right of nations and defensible liberal order.
Our academic culture in the liberal constitutional democracies has grown too focused in the past century on extremes of modern thought in our discourse about international affairs of war and peace; with the dominant schools rooted in a neo-Machiavellian realism about power and calculations of interest, or a Kantian moral utopianism of law and morality governing a peaceful discourse of diplomacy and commercial interests, or the constructivist school drawing on post-modernism to see cultural contingencies and leaders shaping the contestation of ideas to guide international relations beyond power and material calculations but also beyond the universal rationalism of liberal institutionalism. This keynote address argues that it is unsurprising that in the post-Cold War era, with discourse about international relations dominated by these flawed modern schools – especially so in the United States – that America as the great liberal-constitutional power, and the liberal alliances and institutions it leads or underwrites, would descend into confusion and fail to understand, manage, and deter the illiberal powers of neo-imperial Russian, communist-authoritarian China, and illiberal-authoritarian Iran.
The liberal international order and the great powers which have built and sustained it since 1800 did so under the influence of a fourth philosophical approach, now largely forgotten; one more complex and balanced because attuned to the enduring realities of human nature and international politics, thus prescribing a more realistic balance between the necessities of deterrent defensive power and the ideals of peaceful, lawful, commercial order. Montesquieu is the neglected father of this complex liberal right of nations, and of the federative alliances – the United States and NATO most crucially, but not exclusively – that have successfully defended liberal constitutionalism against several authoritarian and imperial threats. We have an urgent practical and philosophical need today for this more prudent philosophy of a defensible liberal order, not least because its approach is closer to the realities of liberal statesmen and policy makers and thus provides a better foundation for the particular judgments such leaders must make in a dangerous world.
We should rediscover Montesquieu’s efforts in the Spirit of Laws (1748) to propound a philosophy of international right that declared principles of right to govern war, while promoting peace and commerce – a balanced philosophy supporting the conditions for a defensible international political order favoring individual and political liberty.

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, Critical Definition and Racial Justice

I want to point the way to a philosophical approach to conveying the meaning of privacy that I call “critical definitional facilitation.” This approach contrasts to another, “analytic definitional prescription,” which has been commonplace in the field of philosophy for decades and which critical definitional facilitation ought to supplement or supplant. The motivation for shifting emphasis from prescriptive analysis to critical facilitation—a shift from an emphasis on definitional meaning to definitional significance, a distinction first popularized by E.D. Hirsh (Hirsh 1984; see Carter and Marshall 1955)— is the political and urgent nature of privacy discourse in contemporary life. Privacy discourse is a way of thinking, speaking and acting with serious implications for moral, human, civil and legal rights (Zuboff 2019). Here I address the relationship between definitional facilitation, politics and justice for African-Americans. This talk is based on a paper with the same title that will appear in the Oxford Handbook of Applied Philosophy of Language (2022 forthcoming.)

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

Paradox of “Being-There”, or Unheard Songs: From the top of Trojan Wall to Gwanghwamun Square in Seoul

With some common sayings and related questions, I would like to start my talk. “The answer, or solutions are on the spot.”, “the scene itself tells us everything we need to know.” Do we really get the answer, when we are there? How about the virtue of distancing? Without keeping proper distance from the spot, we hardly get the synopsis of the whole scene. Whether we can acquire a synoptic view of certain matters or not, it may largely depend on the distance we take. There is another common saying. Everyone has her/his own stories to speak out and that everyone, every speaker naturally wants to be heard when she/he speaks out. If there is no expectation of being heard, one may rather keep silent. My main story begins with an analysis of a dialogue scene between Socrates and Cephalus in book 1 of Republic.
Cephalus, who mentioned the pleasures of conversation (logos) quite seriously, left the spot as soon as the conversation entered some challenging path with an excuse that he should return to the rite he was attending. Throughout Republic, he didn’t reappear, and his name was not mentioned again. If he bhad really enjoyed the encounter with Socrates, if he had known the pleasure of dialogue, Cephalus- scene would have directed to a different scenario. Therefore, we can conclude that he did not properly appreciate the function of dialogue, or on the contrary what he said, the conversation/argumentation was not his foremost concern. Cephalus himself left the dialogue somewhat abruptly. But he had an heir, Polemarchus. The succession of dialogue on justice took place, so to speak. Unlike Cephalus who set off to another scene, the elders in book 3 of Iliad didn’t. They remained there, to where they seemed to belong. The Trojan Elders who are no longer valiant warriors, sat aloft at the top of Trojan wall. The elders had a synoptic vision on the fate of Troy there, and they seemed to reflect on a way to avoid it. But the voices of the elders, the deliberation of eloquent rhetors had not been heard by anyone. They were there like cicadas attached to a lofty tree. Rather perhaps, their unheard song, their fine speech was a cicada hanging at those precarious bodies of Trojan elders.
Even though he did not take part in the following conversation, Cephalus happened to cast some clue of the whole dialogue and his words were inherited by his earnest heir. Even though those crouched elders never left the scene, they were laid outside with their unheard song. In this regard, we should say they were not there, even physically there. The Candlelight protest of 2016-2017 in Korea has been recognized as an exemplary civic movement. Not because it led to the impeachment of the president, but the citizens who gathered at city squares spoke out their thoughts and their stories with their own voices, and more importantly they themselves willingly became each other’s listeners. But it is also undeniable that at the same time at the same spot, there were other groups of citizens who kept singing the opposite songs. We should admit so-called candlelight citizens opened their ears only for their fellow-citizens, and vice versa. If we keep listening only to what we want to hear, if we acknowledge only those we want to acknowledge, how can the community be sustained as a community in this extremely polarized society? This should be our foremost concern to confront.

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.