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Normative Subjects
Normative Subjects
Self and Collectivity in Morality and Law
M E I R D A N -C O H E N
1
1
Oxford University Press is a department of the University of Oxford. It furthers
the University’s objective of excellence in research, scholarship, and education
by publishing worldwide. Oxford is a registered trade mark of Oxford University
Press in the UK and certain other countries.
9 8 7 6 5 4 3 2 1
Printed by Sheridan Books, Inc., United States of America
For Ishai and Talia
CONTENTS
Introduction 1
1. Constructing Subjects 11
2. Socializing Harry 46
3. Revising Our Pasts 55
4. Regret, Luck, and Identity 93
Notes 233
Index 251
ACKNOWLEDGMENTS AND PROVENANCE
This book consists of previously published essays, though the essays have
morphed a good deal in their transition to what now are the book’s ten
chapters. In revising the existing material, I have reduced redundancies
or at least indicated them by cross-references, have highlighted common
themes, and have added new material in the interest of increasing over-
all consistency and coherence. The resulting product is something of a
hybrid between a collection of essays and a “real” book. As a compromise,
the book does not fully realize the advantages of either of these formats,
but with luck it may offer some of the benefits of both. The book covers
a larger variety of subject matter and discusses a broader range of ideas
than a monograph would be able to accommodate, and it keeps the chap-
ters sufficiently freestanding so that they can be read selectively and out
of order. At the same time, there is, I hope, enough unity and continuity
to promise some added value to reading the entire book in sequence and
to make such an effort worthwhile.
The original essays have been written over a long period of time, and
during this time, the world, including its philosophical and legal aspects,
has not stood still. This creates some awkwardness in regard to the schol-
arship on which I draw, which especially in the older pieces is plainly not
up to date. I have tried to mitigate this deficiency by acknowledging some
salient recent developments and sources that bear directly on the argu-
ments. But since the revisions have taken anyway more time than I had
x Acknowledgments and Provenance
planned, I have not made a systematic effort in this regard, and so the
deficiency remains. I don’t believe that this is a very serious drawback,
though. Whatever this book is, it is most definitely not a reference book.
And if there is any merit in the essays now turned chapters included
herein, this is the kind of merit one hopes would be able, at least for a
while, to withstand the winds of change, scholarly or otherwise.
The sources for the book’s chapters are as follows:
Chapter 1, Constructing Subjects, is a substantially revised compos-
ite of “Constructing Selves,” in Morality, Ethics, and Gifted Minds, Don
Ambrose and Tracy Cross, eds. (New York: Springer, 2009), and “Between
Selves and Collectivities: Toward a Jurisprudence of Identity,” University
of Chicago Law Review 61 (1994): 1213.
Chapter 2, Socializing Harry, is a slightly revised version of a comment
on Harry Frankfurt’s Tanner Lectures, published under the same title in
Harry Frankfurt, Taking Ourselves Seriously & Getting It Right, Debra
Satz, ed. (Stanford, CA: Stanford University Press, 2006), 91.
Chapter 3, Revising Our Pasts, is a substantially revised composite of
“Revising the Past: On the Metaphysics of Repentance, Forgiveness, and
Pardon,” published in Forgiveness, Mercy, and Clemency, Austin Sarat
and Nasser Hussain, eds. (Stanford, CA: Stanford University Press, 2006),
117; and “Skirmishes on the Temporal Boundaries of States,” Law and
Contemporary Problems 72 (2009): 95.
Chapter 4, Regret, Luck, and Identity, is a slightly revised version of
“Luck and Identity,” Theoretical Inquiries in Law 9 (2008): 1.
Chapter 5, Individuals, Citizens, Persons, is a slightly revised version
of “Law, Loyalty and Citizenship,” Routledge Companion to Philosophy of
Law (New York: Routledge, 2012).
Chapter 6, Dignity and Self-Creation, is a revised version of “A Concept
of Dignity,” a talk given at the Human Dignity and Criminal Law
Symposium held at the Hebrew University in Jerusalem on January 5–6,
2009, and published in Israel Law Review 44 (2011): 1; it also contains
material from “Dignity and Its (Dis)content,” Introduction to Dignity,
Rank, and Rights, the Tanner Lectures by Jeremy Waldron, Meir Dan-
Cohen, ed. (Oxford: Oxford University Press, 2012); and from “The
Acknowledgments and Provenance xi
array of views that differ from each other along the normative dimension
as well as in the conception of self they espouse. Though this variability
defies easy summary, we can get an overview of the range most relevant to
the present book by limiting our attention to the liberal tradition. Here the
schematic picture that emerged over time and came into focus in recent
years consists in a juxtaposition between a consequentialist, mostly utili-
tarian school of thought, and a deontological, mostly Kantian one. Their
points of departure, respectively in Bentham and Kant, can be contrasted
both along the normative dimension and in terms of their conceptions
of self. On the normative side we find a primary concern for aggregate
welfare in the one case and for individual autonomy and dignity in the
other. As to conceptions of self, the contrast is between a naturalistically
conceived organism driven by the twin motives of pleasure and pain, as
against an abstract noumenal self that resides in a metaphysical nether-
land of things-in-themselves.
As this snapshot of the liberal landscape reveals, liberalism contains
its own critique: its normative program is split between two conflicting
normative visions, grounded in opposing conceptions of self. Moreover,
though Kant’s noumenal self can be seen as a radical response to the utili-
tarians’ naturalized vision of humanity, Kant’s alternative, with its eso-
teric metaphysics, is not satisfactory either, and at any rate has not been
widely accepted even by followers. How do we proceed? One option is to
continue the intramural strife, supposedly until one of the parties prevails
or some mutually satisfactory accommodation is worked out. But pend-
ing such resolution or as an alternative to it, we can change the terms of
the discussion by fixing on a conception of self that for the most part lies
outside of this discussion and at any rate has not been integral to it. The
conception of self that informs this book, call it the meaning-conception,
is the joint product of two longstanding and multifaceted philosophical
strands, the constructivist and the hermeneutical. The view that “man
has no essence” and must create his own, though originating at least as far
back as the fifteenth century,1 was given new impetus and significance in
the twentieth in such influential and otherwise diverse schools of thought
as existentialism, postmodernism, and communitarianism. They all
Introduction 3
The notion of role also serves as a bridge to the book’s second cen-
tral theme. Individual human beings are not the only subjects on the
normative scene. There is also an array of collective entities—such as
organizations, corporations, communities, and states—t hat form a sig-
nificant category of subjects of morality and law. How do these collec-
tivities relate to the individual actors? The notion of role offers a simple
answer. Roles are not just the constituents of individual identities but
are also the building blocks of these collective formations. Thus, roles
also serve as theoretically handy templates for depicting the internal re-
lation between the subjective and the intersubjective, or the individual
and the collective facets of human life. However, a conception of role
equal to this dual theoretical task requires that we draw a distinction
between two types of roles regarding the way roles participate in the
construction of self. The distinction is between proximate roles, with
which their bearers identify so as to make them constituents of their
identity, and distant roles, performed without such identification and
so lacking the same significance for identity and self. Recognizing this
variability helps articulate contrasting modalities in terms of which
individuals and collectivities interrelate, as well as to distinguish types
of collectivities within which such proximity or distance in occupying
a role is enacted.
A second heuristic I find helpful in guiding reflection about the self
involves an analogy between people and states. Talk of people as exercis-
ing autonomy, bearing responsibility, and enjoying inviolability within
the prescribed boundaries of the self conjures up a political imagery and
brings to mind such notions as self-government, sovereignty, and juris-
diction, in terms of which the existence of states and the significance of
their territorial borders are commonly understood. Applied to the self,
such political imagery provides an antidote to a dominant conception
of human beings as physical objects and natural kinds. Though we are
prone to objectifying (in the sense of treating as objects) both states and
individuals, the objectification in the case of states is more visible, and
once observed, easier to undo, thus paving the way to a corresponding
modification of our conception of people and the role that the analogous
Introduction 5
* Not the least of John Rawls’s contributions is the indefinite article that opens the title of his
seminal book.
8introduction
by contrast, are only expected to inform judgment, not replace it.* The
other negative outcome of an excessively ambitious and exclusive con-
ception of theory is its stifling effect on the project of theorizing itself.
We can be more experimental, tentative, even playful in our theoretical
reflection when we bear in mind that theories are designed to impact the
world, if at all, only cumulatively, filtered through a thick layer of practi-
cal judgments exercised by individuals in their own lives and by practi-
tioners in various offices, and tempered by these actors’ implicit canons of
reasonableness and common sense.†
* Given the predominantly Kantian orientation of the studies that follow, the repercussions
of this metatheoretical attitude with regard to Kant’s moral theory are particularly pertinent
here. Some criticize Kant for excessive rigorism that yields unappealingly extreme positions,
while others feel compelled by his arguments or his authority to swallow the toads. Both are
mistaken. Here, too, laudable theoretical rigor may turn into fanaticism when adopted as
an extratheoretical, all-things-considered practical view. (Kant himself would most likely
disagree—but, then, he was not a graduate of the twentieth century.) It should be noted,
though, that the larger the toads, the louder their croaking in opposition to the theory that
breeds them. But a theory’s congruence or conflict with our convictions and intuitions is not
decisive. In particular, even in the game of reflective equilibrium (another or Rawls’s impor-
tant ideas), a counterexample does not refute a theory, but only motivates further refinement
of the theory or the exploration of other ones.
†
These canons are likely to be in part the product of theory, making the availability of and
exposure to multiple and incommensurate theoretical points of view all the more important.
PART I
Constructing Subjects
This chapter is part summary, part elaboration of some themes I’ve pur-
sued in the past, and so may feel redundant to old readers and cryptic
to new. Even so, it should be useful to both groups in providing a com-
prehensive if sketchily drawn picture of some foundational matters that
bear in more or less direct ways on other parts of the book. The title of
this chapter alludes to the book’s title, and so to the subjects of morality
and law. But subject is ambiguous. It designates not only these two fields
but also the entities addressed by their norms. Who are the subjects of
morality and law in this second sense? A straightforward answer points
to human beings: we, and we alone, are norm-bound and norm-following
beings; we are, in short, normative subjects. Constructing is also ambigu-
ous: it depicts the normative subjects under consideration both as doing
the constructing and as the products, as what is under construction. To
think about human beings in constructive terms is to apply to them, to us,
a variant of an approach that ranges over many other putative constructs
as well. One can be, and one or another philosopher quite likely has been,
a constructivist about anything, including, at the limit, about everything.
Constructivism with respect to humanity is, however, distinguished by
the reflexivity involved when we create ourselves.
What is the connection between the view of human beings as norma-
tive subjects and as self-creating? On the version of the constructive view
12construction and revision
I favor, the connection is quite tight. By pursuing our goals and promot-
ing our projects, and so while abiding by the various norms that guide us
in these endeavors, we do another thing as well: we determine the com-
position of the self and draw its boundaries. The constructive view thus
complicates and expands our normative agenda. Absent a stable, ante-
cedently given human subject, subject and norms engage in a dynamic
reciprocal relationship in which neither side provides a starting point or
a resting place relative to the other. The recognition that we are the prod-
ucts as well as the authors of our practices and norms confronts us with a
double challenge: not just what to do, but also what to be. And so in devis-
ing our behavior-guiding norms we must glimpse their effects on who we
are as well: what subjects will emerge from a system of activity generated
by a particular set of norms?
In confronting the constructive enterprise head on, it is natural to
resort to the same norms that guide us in regard to the more familiar
questions concerning how to act. Just as we choose what to do in light of
what best suits our values and serves our interests, so supposedly we can
also choose what to be in those terms. But a moment’s reflection reveals
the difficulty. It is best seen by considering a cluster of norms (by which
I mean values, evaluative attitudes, practices, and the like) that are per-
sonal, in the sense that they take human beings as their objects, and so
depend for their content and application on the composition and bound-
aries of the self. Responsibility, autonomy, and dignity are prominent
examples. What precisely we’re responsible for, how far our autonomy
extends, and what merits respect, all crucially depend on what we take
the self to be. Now since personal norms track the boundaries of the self,
on the traditional view their scope can be determined by studying those
boundaries. The constructive view denies this option: personal norms
participate in constituting the self, and thus the boundary they track is in
part their own creation. To be sure, specific ascriptions of responsibility
or affirmations of autonomy or expressions of respect are supported by a
preexisting vision of the subject: she did it, we say, or it’s her own life, or
her body. But when we probe such statements, philosophically or in cases
in which they prove particularly contentious, it turns out that they rest on
Constructing Subjects 13
* For some this by itself may of course be a reason to reject the constructivist approach.
Constructing Subjects 15
* This formulation elides the all-important questions concerning the relationship between
morality and law in regard to their respective subjects. I say something about these issues in
Chapters 5 and 8.
16construction and revision