This chapter contains sections titled: References.

_From one of America’s most distinguished constitutional scholars, an intriguing exploration of America’s most famous political tract and its relevance to today’s politics_ In _An Argument Open to All,_ renowned legal scholar Sanford Levinson takes a novel approach to what is perhaps America’s most famous political tract. Rather than concern himself with the authors as historical figures, or how _The Federalist_ helps us understand the original intent of the framers of the Constitution, Levinson examines each essay for (...) the _political_ wisdom it can offer us today. In eighty-five short essays, each keyed to a different essay in _The Federalist,_ he considers such questions as whether present generations can rethink their constitutional arrangements; how much effort we should exert to preserve America’s traditional culture; and whether _The Federalist_’s arguments even suggest the desirability of world government. (shrink)

ABSTRACTAgainst critics of capacious notions of democratic rule by “the many,” Hélène Landemore vigorously defends what she calls “democratic reason” because of the epistemic value of active deliberation by diverse groups of people. Deliberation is necessary to overcome isolated reasoning, and diversity is necessary to overcome the potential echo chamber created by conversations in a group of “the best and the brightest.” The best way to create optimal democratic rule may involve greater reliance on random selection of decision-making bodies than (...) on standard-model elections. (shrink)

Part I. Naturalistic ethics -- Part II. Law and behavioral morality -- Part III. Biopolitical science.

Torture has become the subject of intense debate in recent years. One facet of that debate is whether there are any circumstances during which it might be an appropriate response by a respectable government. One might wonder precisely why torture receives so much more attention than, say, the "collateral damage" that is an inevitable aspect of contemporary warfare. But the debate also involves what counts as "torture," as distinguished from "cruel, inhuman, and degrading" methods of interrogation or even "coercive but (...) acceptable" methods. This article argues that we sometimes overemphasize the significance of particular acts — i.e., x either is or is not torture — as against the importance of the phenomenology of torture, which involves creating a structure of complete domination and, therefore, complete vulnerability. This is similar to the phoenomenology of slavery. Indeed, in this 150th year since the Supreme Court's decision in the Dred Scott case, it is important to contemplate the full meaning of Chief Justice Taney's declaration that blacks had "no rights" that whites were "bound to respect." Can a liberal political order ever carve out a set of persons — such as suspected terrorists — who indeed have "no rights" that the state is obligated to respect? If the answer is no, then what are the implications for the process by which the United States, presumably a liberal political order, conducts interrogations even of those suspected of being "the worst of the worst"? (shrink)

Constitutions serve (at least) two central functions. One is to settle certain controversies by offering a definitive solution, such as adoption of a presidential or parliamentary system, a one-house or two-house legislature, or guaranteeing a certain term of years to judicial appointees. Not surprisingly, there is rarely litigation about such solutions, even if one finds them troublesome; instead, one can suggest amending the constitution or even replacing it. A second function is precisely to engender litigation by addressing certain issues—very often (...) involving rights—that don't lend themselves to the kinds of definitive textual solutions similar to those involving structural features of a polity. If the first constitution can be described as a “constitution of settlement,” this second constitution is a “constitution of legal conversation” inasmuch as lawyers constantly dispute the meanings to be assigned such terms as “equal protection,” “human dignity,” and the like. But how does this apply to the preambles commonly, though not always, found in constitutions? Preambles often claim to evoke what binds together the society for whom the constitution is being drafted—religion, ethnicity, histories, languages, or commitments to norms, including universalistic ones. But to what extent are such claims of unity attempts by political elites to marginalize sectors of the society that do not in fact share the attributes in question? In any event, there is nothing “innocent” about constitutional preambles, and they are well worth taking seriously whether or not they are useful to lawyers engaged in litigation. (shrink)

Torture has become the subject of intense debate in recent years. One facet of that debate is whether there are any circumstances during which it might be an appropriate response by a respectable government. One might wonder precisely why torture receives so much more attention than, say, the "collateral damage" that is an inevitable aspect of contemporary warfare. But the debate also involves what counts as "torture," as distinguished from "cruel, inhuman, and degrading" methods of interrogation or even "coercive but (...) acceptable" methods. This article argues that we sometimes overemphasize the significance of particular acts — i.e., x either is or is not torture — as against the importance of the phenomenology of torture, which involves creating a structure of complete domination and, therefore, complete vulnerability. This is similar to the phoenomenology of slavery. Indeed, in this 150th year since the Supreme Court's decision in the Dred Scott case, it is important to contemplate the full meaning of Chief Justice Taney's declaration that blacks had "no rights" that whites were "bound to respect." Can a liberal political order ever carve out a set of persons — such as suspected terrorists — who indeed have "no rights" that the state is obligated to respect? If the answer is no, then what are the implications for the process by which the United States, presumably a liberal political order, conducts interrogations even of those suspected of being "the worst of the worst"? (shrink)

Carl Schmitt, whatever his clear deficiencies as a human being and excesses in his overall thought, is, by any objective measure, one of the leading jurisprudential figures of the 20th century. And...

What are our constitutional possibilities? The importance of this question is illustrated by the striking breadth of recent discussions, ranging from the interpretation of the United States Constitution as a guarantee of fundamental economic equality and proposals to restore the lost constitution to arguments for the virtual abandonment of structural provisions of the Constitution of 1789. Such proposals are conventionally understood as placing constitutional options on the table as real options for constitutional change. Normative constitutional theory asks the question whether (...) these options are desirable - whether political actors (citizens, legislators, executives, or judges) should take action to bring about their plans for constitutional reform or revolution. Frequently, normative constitutional theories are criticized on the ground that they are undesirable, unwise, on inconsistent with the best theories of political morality and legitimate legal authority, but sometimes one hears a very different form of criticism, expressed in locutions such as the following: That is unrealistic. That's not possible. That is pie in the sky. You are imagining castles in the air. Your suggestion is utopian. That isn't feasible. These objections invoke the idea of ephemeral constitutional possibility - constitutional options that are not real or actual possibilities. What are our constitutional possibilities? How should we think about the feasible choice set for constitutional change? What are the differences between ideal and nonideal theory? What role should the ideas of path dependency and second best play in constitutional theory? These inquiries cross the lines between normative, positive, and conceptual constitutional theory. At the conceptual level, we can ask what phrases like constitutional possibility, ideal theory, and the feasible choice set mean. At the level of positive constitutional theory, we can ask about the forces and institutions that condition constitutional possibility. At the level of normative constitutional theory, we can ask about the implications of constitutional possibility for political morality. Constitutional Possibilities proceeds as follows. Part I introduces the idea of ephemeral constitutional possibilities. Part II will cobble together a conceptual toolkit for thinking about possibility and necessity in constitutional theory: the tools include: (a) the distinction between ideal and nonideal theory, (b) the notion of a constitutional second best, and (c) an introduction to possible-worlds semantics. Part III will explore the implications of the resulting proto-theory of constitutional possibility in two stages: stage one will investigate the normative implications, whereas stage two will reconnoiter a set of standards for making modal claims in constitutional arguments. Part IV provides a case study in constitutional possibility by examining Sanford Levinson's proposal for a constitutional convention. Part V concludes with the problem of false constitutional necessity. (shrink)

School choice has lately risen to the top of the list of potential solutions to America's educational problems, particularly for the poor and the most disadvantaged members of society. Indeed, in the last few years several states have held referendums on the use of vouchers in private and parochial schools, and more recently, the Supreme Court reviewed the constitutionality of a scholarship program that uses vouchers issued to parents. While there has been much debate over the empirical and methodological aspects (...) of school choice policies, discussions related to the effects such policies may have on the nation's moral economy and civil society have been few and far between. School Choice, a collection of essays by leading philosophers, historians, legal scholars, and theologians, redresses this situation by addressing the moral and normative side of school choice.The twelve essays, commissioned for a conference on school choice that took place at Boston College in 2001, are organized into four sections that consider the relationship of school choice to equality, moral pluralism, institutional ecology, and constitutionality. Each section consists of three essays followed by a critical response. The contributors are Patrick McKinley Brennan, Charles L. Glenn, Amy Gutmann, David Hollenbach, S. J., Meira Levinson, Sanford Levinson, Stephen Macedo, John T. McGreevy, Martha Minow, Richard J. Mouw, Joseph O'Keefe, S. J., Michael J. Perry, Nancy L. Rosenblum, Rosemary C. Salomone, Joseph P. Viteritti, Paul J. Weithman, and Alan Wolfe. (shrink)

These excellent volumes show both the strengths and weaknesses of contemporary and serious Dworkin scholarship . Mostly the articles are new, although Susan Hurley's paper in the Hershowitz volume was first published in 1990. As to be expected with work on Dworkin, the division between political and legal theory is not distinct because – as is well-known – he integrates moral problems of politics both into the choice of legal theory and legal argument itself. But, some issues may be separated (...) and since there are excellent essays on both equality of resources and the relevance of ‘intrinsic’ values, I have separated my discussion into the two heads of ‘legal theory’ and ‘political theory’. Work on his political theory is not as advanced as it is on his legal theory and so I have largely directed my attention to the latter. I conclude that the most profitable work with Dworkin's legal theory lies in exploring the idea of the ‘interpretive concept’ and its connection with moral ideals, and in assessing the moral weight of integrity, particularly against the ideals of justice and fairness. Almost all the essays on legal theory show awareness of difficulties concerning these two issues although no one takes on interpretivism directly . However, Stephen Perry and Dale Smith in the Hershowitz volume and Sanford Levinson in the Ripstein volume push the boundaries some way with integrity. (shrink)

Review of Theodor W. Adorno, Else Frenkel-Brunswik, Daniel J. Levinson & R. Nevitt Sanford in collaboration with Betty Aron, Maria Hertz Levinson, and William Morrow The Authoritarian Personality. With an Introduction by Peter E. Gordon. London/New York: Verso.

Reflection on testimony provides novel arguments for anti-individualism. What is anti-individualism? Sanford Goldberg's book defends three main claims under this heading: first, facts about the contents of beliefs do not supervene on individualistic facts about the believers ; second, an individual's epistemic entitlement to accept a piece of testimony depends on facts about her peers ; third, processes by which some humans acquire knowledge from testimony includes activities performed for them by others. Each of these three claims is argued (...) for separately from premises about the ways in which humans, adult and child, succeed in gaining knowledge by testimony. The three arguments provide the structure for Anti-Individualism.Goldberg's argument for the first claim – that the contents of beliefs do not supervene on individualistic facts about the believers – begins from uncontroversial facts about testimony. Gaining knowledge by testimony depends on knowing the meanings of some utterances, and it is possible to know the meaning of a person's utterance while knowing little that would distinguish this person from anyone else. The best explanation of how this is possible involves postulating linguistic norms which entail facts about the linguistic meanings of utterances. Now in some cases of testimony, a hearer acquires a belief whose content is the linguistic meaning of a speaker's utterance, where the linguistic meaning of this utterance is determined by linguistic norms. But linguistic norms might have been different from what they are even while the person's and her audience's non-relational properties remained unaltered. And in such a case, the hearer would have acquired a belief with a different content. Therefore, ‘Psychological facts such as believing that p do not supervene on the individualistic facts regarding the subject’ …. (shrink)

Contemplating Art is a compendium of writings from the last ten years by one of the leading figures in aesthetics, Jerrold Levinson. The twenty-four essays range over issues in general aesthetics and those relating to specific arts--in particular music, film, and literature. It will appeal not only to philosophers but also to musicologists, literary theorists, art critics, and reflective lovers of the arts.

Marina Sbisà has long advocated that we think of the illocutionary force of a speech act in terms of the act’s (predictable) systematic effects on the normative relationship between a speaker and her audience. Building on this idea, I argue that the hypothesis of distinctive speech act norms can be used to explain how participants in a conversation coordinate the normative expectations they have of one another in conversation. Such an explanation earns its keep by explaining how speakers render themselves (...) illocutionarily intelligible to their audiences—thereby enabling us to articulate the sense of mutuality that characterizes speech exchanges. One important upshot of my reflections is that we should reject both Austin’s thesis that the successful performance of an illocutionary act depends on audience uptake and Sbisà’s claim that Austin’s thesis is required if we are to make sense of the illocutionary dimension of speech in terms of an act’s systematic effects on participants’ normative expectations of one another. (shrink)

Jerrold Levinson’s Contemplating Art provides the readers with a variety of heterogeneous topics and issues. The discussants who took part in the Forum about Levinson’s book chose four different “tracks” dealt with, offering four different reflections. The main topics of the debate are: music, historicity, aesthetic properties and aesthetic contextualism. Starting on the fact that music is one of the main fields of Contamplating Art Alessandro Bertinetto focus his paper on the ‘musical’ chapters of the book that 1) (...) defend the theory of musical expressivity presented by Levinson in his previous books ; 2. articulate it in reference to particular aspects of musical experience, and 3. examine its contribution for the understanding of the narrative and dramatic dimension of music as well as 4., in general, for its artistic value. Michele Di Monte’s aim is to focus on the questions raised by the alleged essential historicality of the concept of art and the formal definition of the concept itself. He discusses, in particular, the epistemic basis and status of what Levinson calls ‘our present concept of art’, the logical outcomes of its role in defining and identifying the art of the past and the problematic relationship between a universality requirement and the theory’s pretension to historicality. Filippo Focosi discusses in the first place the passages of Levinson’s book where his paradigmatic aesthetic principle explicitly occurs; secondly, he shows how such a principle, as is there articulated, can disclose interest perspectives on other aspects of Levinson’s theories about art and aesthetic properties. The paper by Lisa Giombini focuses on on the role of context in Levinson’s definition of art.Afterdefining Levinson’s version of aesthetic contextualism, Giombiniunderlines how Levinson’s intentional-historical definition may provide fertile ground for a peculiar form of contextualism where the relevant context is constituted by the history of art and the practice of art alone. Finally she inquires whether Levinson’s identifying works of art with wholly relational intentionally-historically defined concepts may interfere with his adhesion to aesthetic realism. (shrink)

Miranda Fricker's Epistemic Injustice is a wide-ranging and important book on a much-neglected topic: the injustice involved in cases in which distrust arises out of prejudice. Fricker has some important things to say about this sort of injustice: its nature, how it arises, what sustains it, and the unhappy outcomes associated with it for the victim and the society in which it takes place. In the course of developing this account, Fricker also develops an account of the epistemology of testimony. (...) Focusing my attention on that account, my central claims are two. First, at least some of Fricker's arguments against existing (inferentialist and non-inferentialist) views in the epistemology of testimony are less than fully persuasive, and the (non-inferentialist) view she ends up endorsing is not all that different from the views she criticizes. Second, her reasons for harboring doubts regarding the role of a principle of default entitlement within a non-inferentialist account are not persuasive. Neither of these claims affects the overall argument Fricker is trying to run. Rather, they suggest that Fricker may have picked more fights than she needed to in the epistemology of testimony. If so, we have reason to detach Fricker's important work on epistemic injustice from some of the details of the story she tells regarding the epistemology of testimony. (shrink)

It has been alleged that the demands of friendship conflict with the norms of epistemology—in particular, that there are cases in which the moral demands of friendship would require one to give a friend the benefit of the doubt, and thereby come to believe something in violation of ordinary epistemic standards on justified or responsible belief :329–351, 2004; Stroud in Ethics 116:498–524, 2006; Hazlett in A luxury of the understanding: on the value of true belief, Oxford University Press, Oxford, 2013). (...) The burden of this paper is to explain these appearances away. I contend that the impression of epistemic partiality in friendship dissipates once we acknowledge the sorts of practical and epistemic reasons that are generated by our values: value-reflecting reasons. The present proposal has several virtues: it requires fewer substantial commitments than other proposals seeking to resist the case for epistemic partiality ; it is independently motivated, as it cites a phenomenon—value-reflecting reasons—we have independent reasons to accept; it provides a single, unified account of how various features of friendship bear on belief-formation; and makes clear how it is the very value we place on friendship itself that ensures against epistemic partiality. (shrink)

[Derek Matravers] Jerrold Levinson maintains that he is a realist about aesthetic properties. This paper considers his positive arguments for such a view. An argument from Roger Scruton, that aesthetic realism would entail the absurd claim that many aesthetic predicates were ambiguous, is also considered and it is argued that Levinson is in no worse position with respect to this argument than anyone else. However, Levinson cannot account for the phenomenon of aesthetic autonomy: namely, that we cannot (...) be put in a position to make an aesthetic judgement by testimony alone. Finally, Levinson's views on the ontology of aesthetic properties are considered and found wanting. /// [Jerrold Levinson] Being an aesthetic realist is hard work. Derek Matravers has raised a number of concerns for the brand of aesthetic realism that I have defended in the past, and that I continue to defend, albeit with modification. Much turns on the nature of aesthetic properties, and on the reasons for acknowledging their existence. I here try to provide further illumination on both scores, suggesting in particular that many aesthetic properties can be viewed as manifest higher-order ways of appearing. Toward the end of my discussion the question of whether or not aesthetic properties are response-dependent is addressed, and I offer the tentative conclusion that some are, and some are not. (shrink)

Sanford C. Goldberg presents a novel account of the speech act of assertion. He argues that this type of speech act is answerable to an epistemic, context-sensitive norm. On this basis he shows the philosophical importance of assertion for key debates in philosophy of language and mind, epistemology, and ethics.