Analyse & Kritik

Journal of Philosophy and Social Theory

Logic, Morals, Measurement - Origins and Justifications of Norms

2016 (38) Issue 2
Guest Editors: Susanne Hahn and Oliver Schlaudt


1. The Scope of Normativity“

“Do not use your mobile phone“, “unauthorized entrance prohibited“, “in order for your will to have legal force you must sign it in the presence of at least two witnesses“, “scientific experiments should be reproducible“, “water to cook pasta in should be as salty as the Mediterranean“, “the Federal Court is responsible for deciding civil matters assigned to it by statute“, “if you use a direct quotation from an author you should enclose this in quotation marks and indicate the source“, “do unto others as you would have them do unto you“, “where there is a conjunction in a proof you may enter any of its conjuncts on a new line“, “a rook moves any number of vacant squares in a horizontal or vertical direction“.

This list above illustrates the diversity of norms and their prevalence in all domains of life. They can be found everywhere where people act, where people or institutions are urged or empowered to act, or where certain actions are unwanted or prohibited. As norms are tied to all kinds of actions, they are not restricted to conventions and moral or legal norms. On the contrary, they are also an integral part of cognitive activities, especially in science. Scientific theories are the result of experiments and deliberation. Experimental work consists of rule-governed action. Deliberation, reasoning and argumentation are guided by epistemic and logical norms. This last aspect becomes much clearer when we remember that action also comprises speech acts. Drawing a conclusion, or inferring inductively and deductively, are also acts governed by norms. The role of actions and norms is arguably underestimated in common perspectives on science, perhaps because philosophy of science tends to focus on (possible or actual) results, i.e. scientific theories.

General norms - or, synonymously, rules - guide actions. They indicate which actions are forbidden, required or permitted, for which agents, and under which conditions. Rules can be formulated as universal conditionals. The if-part specifies the characteristics of the situation and the agents; the then-part indicates the action and the deontic modus. If x is a situation of such-and-such kind and y is an agent of such-and-such kind, then an action of such-and-such kind is forbidden, required or allowed for y. Many further distinctions are possible, e.g. with respect to the scope of agents and the deontic modus. There are rules that are not restricted to any proper subset of possible agents but hold for all persons; and there are rules that apply only to a small number of agents, e.g. to judges at the U.S. Supreme Court. Nevertheless, a rule for judges at the Supreme Court is a general norm too, as it applies to all agents who have the feature of being a Supreme Court judge. Further distinctions with respect to the deontic modus would include e.g. recommendations. Being a means to generate or inhibit certain behavior, the main function of general norms is the guidance of action. As they provide a measure for correctness, another function consists in the evaluation of actions. Mistakes in spelling, violations of road safety, faults in the design of an experiment, etc., are judged by quoting the respective rule. Requests to cease performing an incorrect action or to perform a correct action are raised and are accounted for by rules. This means that general norms are related to judgments and requests by means of argumentation.

Often, judgments or requests are accompanied by sanctions. Sanctions have to be understood in a wider sense, which includes various modes of disapproval. Because of the generality of rules, the sanctions also apply to all agents who break a rule. This applicability does not depend on the acceptance of the rule as right by the rule-breaker. These two circumstances, the argumentative role of rules on the one hand and the punitive use of rules on the other, make it plausible to require a justification of general norms.

2. The Justification of Norms

If a general norm is called into question, one can try finding a more general norm and providing it as a reason for the more specialized norm. If the norm “In everyday situations, for all agents, it is forbidden to eat meat“ is called into question, for example, one can provide as a reason the more general norm “In everyday situations, for all agents, it is forbidden to inflict pain on sentient beings“. For this
to be a full substantiation, additional descriptive premises are to be added. The important point is that a more general norm is cited as a reason. But this more general norm can be questioned, too. Even if it can be supported by a yet-more-general norm, this chain of giving reasons must come to an end. Finally, some general norms will have to be justified by other measures.

The problem of the justification of norms is a well-known issue in meta-ethics, and is also a subject in other sub-disciplines of philosophy, e.g. theories of rationality or epistemology.

One way of justifying general norms insists on a view of norms as non-empirical entities, existing ’out of time’ and possessed of ’eternal’ and unrestricted validity - whatever these expressions mean. One can think of ’natural law’ or the ’laws of classical logic’ as examples taken from different realms of philosophy. The problem imported by this position is how we have cognitive access to such norms. How are they given to us? Do they glow in the light of reason? No intersubjective way of knowing is specified, and in so far as the possibility of intersubjective insight is a condition of justification, these approaches fail.

In moral philosophy, there are prominent approaches to the problem of justification that appear on the surface to be weaker with respect to epistemological burdens than the mentioned ones, because they do not bind the justification of general norms to natural law but to hypothetical consent. But these approaches make highly idealized assumptions in which de facto preferences and the goals of individuals do not matter. In this way they are able to reach unanimity: but this unanimity is hypothetical, and hypothetical unanimity cannot resolve cases of actual dissent with respect to different interests.

There is a completely different view on the justification of general norms, however, which remains in the range of verifiable states of affairs. Proponents of this approach (or class of approaches) refer to the fact that a general norm is in force in a collective, i.e. that the general norm is followed by most of the members of the collective without having been set formally. These norms come into force evolutionarily, they are instances of a ’spontaneous’ - i.e. not designed - order. A rule is in force in a collective if most of its agents follow the norm and there is a practice of commenting and sanctioning instances of rule-breaking. Rules with this informal origin have to be accepted by a sufficient number of agents, as the status of being in force has to be sustained by following the rules, by teaching the rules and by sanctioning rule-breakers. Examples of this view on justified general norms are Hume’s institutions of property, or the heuristic norms of ’bounded rationality’. This ’actualist’ approach identifies the justification of norms with their being in force. It provides an uncontroversial means of verification, since an empirical test of rule-following, rule-commenting and sanctioning would be sufficient for such verification. But why should the status of being a justified norm depend on its being in force? Are there not many examples of norms which are in force, but which we deem to be not justified? Don’t these approaches confuse explanation and justification? These views on the justification of norms fail, since they do not provide criteria for accepting the norms to those who - prima facie - do not accept them. The mere statement that these norms are in force and emerged informally does not fulfill this condition.

Both of these very roughly sketched approaches to justification of norms thus face severe criticism. The first one fails to assure intersubjective access to the alleged insights and the second one fails to provide a justification beyond referring to actual evolved norms. The ’disappointed connoisseur’ (see the contribution of Susanne Hahn, this volume) may thus look for a ’third way’ of justification, which tries to avoid these problems. The so-called method of reflective equilibrium is an idea that takes into account the origins of norms but does not take them as an endpoint. Instead, the worked-out practice is seen as the beginning of a process of justification. The basic intuition of reflective equilibrium is to produce a match between a worked-out, pre-systematic practice and systematic regulation. It can be found both in practical as well as theoretical philosophy. Nelson Goodman was perhaps the first to formulate this idea in a succinct form, although he did not use the expression “reflective equilibrium“. His aim was to justify rules of induction and deduction. In Fact, Fiction, and Forecast Goodman writes:

“How do we justify a deduction? Plainly by showing that it conforms to the general rules of deductive inference. [. . . ] Yet of course, the rules themselves must eventually be justified. But how is the validity of rules to be determined? Here again we encounter philosophers who insist that these rules follow from some self-evident axiom, and others who try to show that the rules are grounded in the very nature of the human mind. I think the answer lies much nearer the surface. Principles of deductive inference are justified by their conformity with accepted deductive practice. [. . . ] A rule is amended if it yields an inference we are unwilling to accept; an inference is rejected if it violates a rule we are unwilling to amend. The process of justification is the delicate one of making mutual adjustments between rules and accepted inferences; and in the agreement lies the only justification needed for either.“ (Goodman 1983, 63f.)

John Rawls has taken up this proposal and used it to justify his principles of justice.

“[. . . ] This state of affairs I refer to as reflective equilibrium. It is an equilibrium because at last our principles and judgements coincide; and it is reflective since we know to what principles our judgements conform and the premises of their derivation.“ (Rawls 1971, 20)

A closer look shows that the production of agreement between practice and rules cannot do without additional criteria. To be able to make adjustments, one has to take into account at least the criteria of consistency and usefulness. Systems of rules have to be consistent (or, weaker: they must not have been proved inconsistent) in order to provide guidance for action. Systems of rules are established in order to achieve certain conditions, so the second criterion for making adjustments is the usefulness of the normative system in relation to imputed goals. Further criteria that might enter the process of construction of a reflective equilibrium, especially if there are alternative systems of rules, are simplicity, enforceability, etc.

The approach to justifying general norms by means of the construction of a reflective equilibrium clearly differs from the approach that postulates general norms as belonging to a sphere that is independent from human interests and purposes. It differs also from the approach that presupposes hypothetical or idealized interests in order to justify rules. The idea of justification by reflective equilibrium has something in common with the approach of justifying rules by pointing to the informal coming-into-force of rules. This common ground consists in the consideration of practice, i.e. of informal rules that are in force in pre-systematic practice. The method of reflective equilibrium does not take these informal rules for granted, however, but rather makes them the subject of a process of consideration. This process involves the mentioned criteria and permits adjustments of all elements - pre-systematic practice, systematic rules, and goals.

3. Content of the Special Issue

The present volume is guided by two main concerns: Firstly, we want to illustrate the scope of normativity, ranging from the usual suspects - e.g. legal norms - to inferential rules that guide inferential acts in logic or the rules of experimental research. Secondly, we want to take into account the origin of norms and the possible consequences of this for their justification.

The essays in the first section provide conceptual foundations and the theoretical background. If one wants to investigate the relation between the origins and the justification of norms, one needs to be able to distinguish between descriptive and normative discourses. Edgar Morscher addresses the problem of the descriptive-normative dichotomy. Susanne Hahn attempts to spell out the idea of reflective equilibrium and shows in which sense it can be understood as a pragmatic means of justifying norms.

The three essays of the second section illustrate normativity in special fields. Lothar Kuhlen explains the complex processes through which criminal rules evolve in contemporary German law. He describes the mutual adjustment between judicial practice and legislation that stands in the background of the incremental changes in criminal law. Lara Huber addresses laboratory science as practice and provides an oversight of the various levels and sorts of norms involved in experimental research. Friedrich Reinmuth and Geo Siegwart develop a pragmatic understanding of logic, thereby emphasizing a vision of logic as concerned with the rules for inferential speech acts.

The three essays of the final section tackle the explanation and justification of norms (in general or in special fields). Bernd Lahno deals with the question whether the theory of rational choice can account for general norms. He denies that it can, and shows that in order to make statements on the motivational power of norms, on the mechanisms of norm activation, and especially on the content of norms, the theory needs theoretical and empirical input from the behavioral sciences and psychology. Peter Hucklenbroich analyses the concept of disease in medicine. Rejecting the thesis that the concept of disease has a normative content in itself (i.e. that medicine regards diseases as undesirable), he turns to the normative rules of how to apply this concept and relates them back to the development of medical experience and knowledge. In the final contribution to this special issue, Oliver Schlaudt applies the concept of reflective equilibria to current metrology, arguing that shifts in measurement technology account for shifts in the definition of measurement units and thus of the measurement rules that rely on them.

This special issue emerged from the workshop Norms - Origins and Justification, organized by Susanne Hahn, Hartmut Kliemt and Oliver Schlaudt. It took place in the Frankfurt School of Finance and Management and was sponsored by the chair of Hartmut Kliemt. The contributors to this special issue participated in the workshop, and the editors are also grateful to Peter Hucklenbroich, who did not attend the workshop, for supplementing the volume. The authors are practical and theoretical philosophers, philosophers of science, philosophers working in close relation to other sciences as medicine and social science, and a legal scholar.

Susanne Hahn and Oliver Schlaudt

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Table of Contents

Title: The Descriptive-Normative Dichotomy and the So Called Naturalistic Fallacy
Author: Egdar Morscher
Page: 317-337

Investigating the genesis and justification of norms in a theoretical way requires a clear-cut distinction between normative and descriptive discourse. From a philosophical perspective, the descriptive-normative dichotomy can itself be understood either in a descriptive (or ’reportive’) or in an normative (or ’stipulative’) way. In the first case such a dichotomy is understood as the factual border between descriptive and normative discourse in a given language; exploring this border is a hermeneutic enterprise. In the other case it is understood as a boundary between descriptive and normative discourse to be implanted in a language which is developed in order to fit certain purposes, in particular theoretical purposes; this implanting procedure is a matter of regimentation. In this paper I will deal shortly with the first question of hermeneutics and then in more detail with the second question of regimentation. In the final part of the paper I will distinguish different types of naturalistic fallacies resulting from disregarding descriptive-normative dichotomies.

Title: From Worked-out Practice to Justified Norms by Producing a Reflective Equilibrium
Author: Susanne Hahn
Page: 339-369

Reflective equilibrium is a proposal to justify general norms (not only moral norms) by adjusting them to a pre-systematic practice. The paper investigates the method of constructing a reflective equilibrium as a method for ’disappointed connoisseurs’ with regard to alternative ways of justification. The example of no-smoking norms that have emerged within the last twenty years serves several purposes: It is used to illustrate under which conditions requests for justification arise and to investigate which role a worked-out practice can play in the justification of general norms. Additionally, the construction of a reflective equilibrium with respect to a no-smoking norm shows the necessity of implementing systematic considerations in the process of justification. The paper closes with some remarks concerning the characteristic quality of justification one can achieve by the method of reflective equilibrium.

Title: Setzung von Rechtsnormen unter Berücksichtigung der Praxis: Das Beispiel des Strafrechts
Author: Lothar Kuhlen
Page: 371-390

The article examines - with a multitude of examples - the complex method, in which criminal rules evolve in contemporary law. This happens in a continuing process, to which - in addition to the citizens - the legislator, criminal courts and the Federal Constitution Court contribute. The courts are not confined to applying the laws enacted by the legislator, which would be in accordance to a simple model of the separation of powers. The laws rather have to undergo an on-road test by the courts, during which they can prove to be practicable, difficult to handle or not practicable at all and therefore void. The legislator for his part takes note of the judicature and that often brings him to make further decisions. These include the abstaining from establishing new laws, the (plain or modifying) reception of some jurisdictional opinions, the changing of laws against their jurisdictional interpretation and the transformation of other than the jurisdictionally interpreted laws. All in all the criminal law proves to be a good example for the incremental evolution of norms, which occurs in a specific division of labour between the legislator, the criminal courts and the Federal Constitution Court.

Title: „Gentlemen in, Genuine Knowledge out’? Zum Status wissenschaftlicher Normen für die Erkenntnissicherung
Author: Lara Huber
Page: 391-415

Case studies in the history of science and technology have shown that scientific norms, so called standards, contribute significantly to the evolution of scientific practices. They arise predominantly, but not exclusively, on the basis of interactions with instruments of measurement and other technical devices. As regards experimental practices standards are mandatory preparatory procedures in a variety of designs, including the inbreeding and genetic engineering of experimental organisms (e.g. transgenic mice). I claim that scientific norms not only regulate mere technical preconditions of research but also guide experimental practices, for example with regard to the stabilisation and validation of phenomena. Against this background, the paper introduces different kinds of scientific norms and elaborates on the question if they are means to epistemic ends (e.g. stability).

Title: Inferential Acts and Inferential Rules. The Intrinsic Normativity of Logic
Author: Friedrich Reinmuth and Geo Siegwart
Page: 417-431

We outline a pragmatic-normative understanding of logic as a discipline that is completely anchored in the sphere of action, rules, means and ends: We characterize inferring as a speech act which is in need of regulation and we connect inferential rules with consequence relations. Furthermore, we present a scenario which illustrates how one actually assesses or can in principle assess the quality of logical rules with respect to justificatory questions. Finally, we speculate on the origin of logical rules as a means of supporting our practice of inferring.

Title: Norms as Equilibria
Author: Bernd Lahno
Page: 433-458

This paper presents a survey on contemporary RC accounts of norms. The characteristic common feature of these accounts is that norms are understood as equilibrium selection devices. The most sophisticated positions driven by this idea are Herbert Gintis' theory of norms as choreographers and Cristina Bicchieri's theory of norms as solutions to mixed motive games. In order to give a comprehensive account of social norms, though, RC theory needs to be substantially extended. In particular, it seems to be impossible in principle to fully understand the concept of normativity and the motivating power of norms within a traditional, pure RC framework.

Title: Die Normativität des Krankheitsbegriffs: Zur Genese und Geltung von Kriterien der Krankhaftigkeit
Author: Peter Hucklenbroich
Page: 459-496

The question whether the concept of disease is descriptive or normative, is controversial in philosophical debates. A philosophical investigation of medical pathology concerning this question has hitherto been lacking. This paper is based on the reconstruction of general medical pathology as outlined in earlier work of this author. Key concepts of medical pathology are: disease entity, pathologicity, disease criterion, disease value, medical indication. The criteria of pathologicity and the general pathology are briefly sketched. It is shown that these conceptions constitute a dimension of objective value that is rooted in the psychosomatic human nature but is compatible with additional, superposed subjective or sociocultural values concerning disease. The concept and procedure of medical indication constitute the bridge between objective disease values and subjective values or norms. In deciding whether treatment is needed and demanded, the values of the ill subject are decisive. Thus, the controversy between naturalists and normativist may be transformed into a coalition.

Title: Reflective Equilibria in Metrology?
Author: Oliver Schlaudt
Page: 497-521

In this paper I propose to read the history of systems of units, and in particular the current reform of the International System of Units (SI), understood as a set of measuring norms, in the light of reflective equilibria. The idea is that the model of reflective equilibria actually applies to processes which can be empirically observed or studied. This can help us to understand the nature of normativity and to shed light on its relativity to, and dependence on, practice.

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Universität Düsseldorf
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