“Revolution!” found & re-posted

16735786_10154372043097358_972449225_o The text below has been found written on a toilet cabin door somewhere around the HLS campus. I was shown a photo of it, and sent a transcript. It’s a piece of fiction, and I don’t know what was the author’s intention. I don’t know who the author is either. I totally disagree with the ideas presented there. Read it critically, and try coming up with better and acceptable ways of dealing with the problems it identifies:

“In the end, it was quite simple. In the end, the history had the answers. And now everything is better.

There used to be two big internet companies, providing services to more than a billion people. These services became essential to the societies’ functioning. Yet, these companies were not really respecting the rights of the people. Privacy was inexistent, freedom of speech and assembly often violated, right to digital property not respected at all. Many wise women and men spent thousands of hours thinking about how to make these companies respect human rights of their users. Regulation? No one wanted to regulate. Competition? There was no competition. Petition? They didn’t listen.

Then, somebody remembered how the constitutionalism was born. When the states, not multibillion transnational firms, were major sources of human rights violation. Sure, there were philosophers, cool ideas, public discontent… But in the end, a lot of French people got mad, rallied together, demolished a few buildings, killed a few people, and said: look, here is a list of principles that one needs to follow while governing the state, otherwise we do it again.

And so, a few thousand people gathered in one valley, stormed the HQ of the two companies, demolished this and that, pondered beheading some people, handed over a list of principles to some of these people and placed some new people on some positions. And said: govern your platforms based in these principles, or else.

Revolution. It worked once, why wouldn’t it work again?

It’s much better now. Is it perfect? No. Was it ideal way to do it? No. Is it better than it was? Waay better.

The notions of public and private actors are contingent and fluid. The notion of the power public in nature is fixed. And the nature of the social universe is such that when such a power is not tamed, it gets tamed.

In the end, it was quite simple.”

As I wrote above, terrifying story. So I repost it here, for us to be able to think of better ways of dealing with the problem of uncontrolled power that might one day emerge with some internet companies.

We have an innovation problem…

…but as in ‘alcohol problem’. innovationx

The last time I checked, innovation was not a fundamental right protected by any constitution. And yet, for the reasons that are nor particularly clear to me, it so often seems to be an argument that trumps (..) strengthening legal protection of consumers or privacy. In a discussion, whether in the classroom or over a beer, whenever someone even mentions regulating the algorithms, or taking a stronger stance on the internet giants’ practices, there is always someone else to say: “No, this will slow down/impede the innovation!”. And then, you’re supposed to say “a, yeah, sorry”.

Really? We’ve had 20 years of that innovation now, should we not run a little assessment of what went fine and what went wrong and whether this really is the way to go? Three points.

Firstly, we have numerous laws that impede innovation, and everyone seems to acknowledge their importance. We have product safety laws and standards, we have rules on clinical trials of drugs on humans and animals, we have labour law – all of these clearly make innovation in many spheres more expensive, longer and difficult. But we have them, to protect human health, life and well being; even if the innovation in these spheres could also contribute to these values.

Secondly – what type of innovation are we talking about? Even more apps and platforms. Spotify and Netflix, and Uber, and Deliveroo. Even better targeted advertising. Even more stuff can be done on one’s smartphone. Cool, it’s convenient, it makes life easier for some of us, but is also has side effects – alienation, uberification of economy, new types of addictions, fake news, filter bubbles – I could go on, but you know all that.

And yet, even though it’s clear and obvious that Google, Facebook et al. are openly violating European personal data protection law, consumer law on unfair commercial practices and unfair terms, discrimination law; as well as all the values not yet explicitly protected by law (because “innovation”); so many people seem to be fine with that. We won’t regulate them, we won’t actually enforce the laws we have in place, because that could slow down the Progress.

Don’t get me wrong – I’m neither advocating a harsh regulation of new technologies, nor a large-scale enforcement of the laws we created before their emergence. On the contrary, I think we need a proper, informed, balanced and serious discussion on what to do with the law and regulation in the new reality. However, innovation should not be an argument against protection of privacy, increasing transparency or combating discrimination.

I get it: privacy is not as fundamental a value as life and health. But a new dating app, or the fact that your automatically generated playlist is now so perfect, or that you can order any pizza you want, are not as socially valuable as a new medications either.

Thirdly, and finally, I wonder where this comes from? Why are we so easily lured by this rhetoric? Who created it? These are the questions, and this is a post, in the research-I-would-do-if-only-I-had-time series. I don’t know, though I have a guess. It’s a mix of our modernist idolisation of progress, and really good PR of big business. And that we mistook our lives getting more convenient for our lives getting better.

All I wanted to say it that privacy is not absolute, but neither is innovation. And that we should start thinking about what type of it are we buying at what cost.

Facebook’s exercise of public power

In this post I want to argue that Facebook’s banning of pages, profiles and removing posts is an exercise of public power and as such should be subjected to material and procedural standards of public law and human rights.

Ok, I’m not gonna actually argue that much. But I want to defend a weaker claim: it is not obvious that Facebook’s discretion should not be limited by fundamental rights and freedoms, simply because it is a private company. Same applies to other platforms of equal social importance, like Google, YouTube and Twitter. And many other ‘private’ actors.

Context: one international, and one Polish. You probably all remember Facebook’s removal of the photo of the ‘napalm girl’ and the outcry that followed. Critics where accusing Facebook of the ‘abuse of power’ and ‘censorship’, leading the company to change its initial decision. Arguments of critics involved the fact that the photo is ‘iconic’, and that Facebook’s role in news dissemination is enormous (44% of adults in US get their news from there).

In Poland, the case is of a different political colour. In the last days, a group combating hate speech and xenophobia held a mass-scale action of reporting extreme-right wing Facebook pages, what led to the deletion of dozens of them, including pages of a member of parliament, several nation-wide organisations, some with hundreds of thousands of supporters and followers. This also caused an outcry and even made it to the national tv news in the station currently controlled by the government. Arguments invoked by the critics are essentially the same: freedom of speech, censorship, abuse of power etc. The difference is: this time Facebook’s decision got many supporters, who among other arguments claim that Facebook is a private company, acting for profit, and not only is but also should be allowed to do such things.

Now, there is a clear difference between the two cases. In the case of the ‘napalm girl’, Facebook did a ‘bad’ thing. In case of right-wing pages, it does a ‘good’ thing. There are two reasons for that classification to be widely-shared. Firstly, many of the right-wing pages contained content that might be against the law on hate speech and promoting violence. I will deal with this soon. Secondly, there is an emotional reason. Let me dwell on it first.

It just so happens that Facebook currently has a clear liberal and progressive agenda. And that this agenda suits so many commentators, probably including you and me. However, it is not clear that it will always be so. Today Facebook enjoys quite some freedom. Today liberal and progressive sells. But make two thought experiments. Imagine that Facebook would have a right wing agenda, and block extreme-left pages. Or even just liberal pages, or whatever pages that suit your worldview. Would you still be so sure that what they do is perfectly legit? Secondly, imagine that political winds change. Imagine that Trump wins elections. Imagine that suddenly there is a pressure on Facebook to change the course (‘or else we tax you high’, or ‘we grant people property rights in their personal data’, or anything else that would hurt Fb). And that society at large approves. Will we still defend Facebook’s freedom and full discretion? Or will we then say: hey, but common, everyone uses your services, you shape how people think, you have public responsibility and duty?

Emotions aside: In classical legal thinking, which still prevails in many continental legal traditions, including the Polish one, the world was neat and ordered. There were public bodies, allowed to do only what the law says they can do and holding the monopoly on the use of force; and private bodies, allowed to do everything that the law does not forbid them from doing and not allowed to use physical force against each other. 19th and 20th centuries witnessed a rise of constitutionalism, which led to the human-rights-limitation and control of the exercise of public power by public bodies.

Within that picture, Facebook is indeed a private company. It can do everything that the law does not forbid it from doing. It is not under direct obligation to facilitate freedom of speech, a right to associate, fair trial etc. However, notice three things:

Factually, Facebook’s power is enormous. With billions of people using it, billions of people trusting it with providing news, billions of people using it for organisation and communication, it can easily affect the abovementioned rights and freedoms. It might be a private company, but it holds a ‘public’ position in many senses. Why?
Even assuming that Facebook just deletes what it believes is against the law, it:
1. interpretes the law by itself, without relying on any court;
2. executes the law by itself, because it has the factual monopoly on the ‘digital force’. In the tangible world, an owner of a debate club might want to kick out a speaker from his property, but would need police to actually take him or her out. In the tangible world, one might find some banners outrageous, but destroying them would still infringe someone else’s property rights. In the digital world, where there are no ‘bodies’, and people do not hold any property in their digital content, this is legally fine, and factually easy, since Facebook unilaterally controls the platform.
However, Facebook does more than just deleting illegal content. It sets its own rules and standards, often stricter than the law. Moreover, it not only deletes stuff, but through the underlying algorithms it chooses what will be displayed to whom and how often. In this sense, if we look at it as a public space, which it in many senses is (remember social media’s role in the Arab Spring and the Ukrainian Majdan?), it is the sole legislator, the court, and the executor of the ‘law’. I does not hold a public power de lege, but it holds a de facto power perfectly imitating the one we have limited when the state is concerned.

Given all this, I think we need a debate on limiting the discretion of socially important internet platforms when it comes to policing the content displayed/allowed there. Obviously, dozens of questions arise: which ones, who would limit them, is market not enough, how would that impact innovation etc. etc? There are other private parties who exercise other ‘public’ powers elsewhere (think of FIFA, multinational corporations etc.). Should we regulate business at large, or sectors, or what? There is much to be thought through. There is already a lot written on this. Much less read on this. Questions are on the table, and I don’t have tweet-long answers.

But I simply cannot accept the claim that it is perfectly fine that Facebook interprets and executes the law, or actually does whatever it wants, because it is a private company. The power it holds is public in nature, just not yet labelled so by our analog laws. And if that does not convince you, remember: it might soon change that ‘our’ agenda sells. Just like with contracts, we need to make them when everything is fine, but will need them when something goes wrong.

Law & economics against property and for central planning

I just had a wonderful Italian-style lunch, which made me too sleepy to read, and so I wrote this post. The post itself is a joke. Or is it?

Grant property rights on this! seems to be a remedy for all evil according to some Chicago style law&economics utilitarians. In consequence, law&economics pretending-to-be-analytic-while-actually-being-polital-activists scholars often go hand in hand with the prophets and proponents of neoliberalism. But this will soon end.

Property theories (like all normative theories) could be roughly divided into deontological and consequentialist. The previous say: there is a reason to grant property rights to people (flourishing, natural law etc.) and so they should be granted, regardless of whether this will lead to the most efficient outcome. The latter, on the other hand, claim that we should grant property rights (or not) to people, because in consequence they will be better off; or rather: the total utility will be the highest and division the fairest if we grant subjects property rights.

Proponents of l&e, often considering themselves intellectual heirs of Hume (reason! and there’s no God!), will however evenly often start with from-was-to-ought argument: radio spectrum has been distributed more efficiently since property rights were granted in place of administrative distribution; capitalist states where better off than communist, because they had clear and working property rights system; Moscow streets in 90s were ruled by gangs, because there was no such system; and so it means that property rights and market are better than their lack and/or central planing, so let’s grant them.

(This is pasta, sometimes formaggio of Hayek-and-local-knowldge and Akerlof-market-for-lemons gets added).

However, even if we derive ‘ought to’ from ‘to be’, the direction of time arrow makes a difference. Just because some social ordering was less efficient in the past, it does not mean that it will be less efficient in the future. The world is changing.

What is the problem of central planning?
1. There is super a lot of data;
2. This data in not agreeable because it’s spread everywhere, and people’s preferences happen to change;
3. Since there is so much data and we also don’t have it, we can’t really build a proper equation;
4. Even if we had such an equation, and managed to collect the data to insert, we wouldn’t have computing power to count it;
5. And even if we did, we wouldn’t be able to keep distributing the goods fast enough.

Oh, wait: that was the problem of central planning in 70s. Or maybe even late 90s. Or maybe it still is one, hard to tell, quite a while since some government really tried for the last time.

So let’s jump to the future: 2050, everyone has a Google (or whatever will replace it) account, info about all our preferences, purchases, searches and actions is collected, BigData and stuff; we also have some chips in our veins scanning our blood, DNA and sending the data to the super computer, which will be 262144 times faster than current one (Moore’s law; and even if not, way faster); and drones fly around bringing you stuff. So our problems are solved by:
1. Google&BigData
2. Google&BigData
3. Google people
4. Super-supercomputer (probably owned by Google)
5. Drones (Amazon, I guess)

Suddenly it will turn out that having all this property, contracts, bargaining, market and stuff leads to a less efficient outcome, both for you and society; and it will be Google algorithm, knowing your skills and talents, telling you what work to do and giving you the best possible stuff in exchange. (‘Wow, I didn’t even know that I really wanted to have salmon for dinner, thx Google and Amazon!’). Or taking it away, when someone will have more fun with it.
In short.
Public/private; government/corporations and other details are insignificant here.

What matters is: if you believe in freedom and you think it’s cool that you can buy sth and it’s yours, stop being a consequentialist-utilitarian neoliberal, or otherwise your grandchildren will live in a Google dystopia.
So what should you be?
Repent and believe in Gospel!
(joking)
(not really, but I sort have to pretend I am)
(so: joking! haha..)
So: read some Locke or Kant or this third guy, what’s his name…? The one who ruined all meaningful moral philosophy..? The one who invented veil of ignorance, google him.

Ah, digested. Now I feel much better, can get back to work. And you should do the same!

When the state of exception becomes the rule

Europe got to the point when the state of exception might become the rule. If this happens, a social/political/legal response will be necessary. In my opinion, we are not intellectually prepared to give such a response. And I believe it is high time we get started. In this brief post, I sketch my idea of how this could look like.

This is an atypical post here, I treat it as a suggestion-giver to a possible EUI-wide initiative, which would connect scholars with a diverse substantial and methodological expertise/interest. However, I would obviously welcome any external cooperation, should this thing take off.

In short: in the aftermath the horrible events in Paris, France has extended the state of emergency for 3 months (90 sec explanation of what this means). We don’t know how the situation in Brussels will develop. God forbid, but it might be that as a result of another attack, or as a means of preventing it, others will follow.

No one questions the fact that we need security, that the criminals must be caught and next attacks must be stopped. However, the process might be longer and more difficult than it seems now. Next measures, based on real or just-strategic secret service reports, might add-up over the course of next months or years. I do not mean militarisation of the streets or curfew, I mean more subtle and ‘less visible’ changes: mass surveillance, arrests without warrants; something that we already witnessed in US after the Patriot Act, to name just CIA secret prisons or the NSA scandal.

If this happens, our notions of Democracy, Freedom, Human Rights or the Rule of Law will be challenged by the new factual (social and political) situation.

I think we can all well argue why this is undesirable. There might little place for argument, though.
What I think we are unprepared for is to argue: how, in this new situation, to best preserve them.
The trade-off between liberty and security is not a simple one, it is not even the correct one. What matters is not only what is done, but how it is done.

My idea, for a possible response at the EUI, would stand on two pillars: theory and facts-collection.

THEORY 1
What needs to be theorised first is the state of exception, which remains in the dialectical relationship with the ‘standard/desirable/everyday state’.
On the previous, I would go for reading:

The State of Exception by Giorgio Agamben (2005), the classic, where he analyses the concept back from Rome, through the Modernity, through the scary-but-sharp work of Carl Schmitt (Die Diktatur (1921) and Politische Theologie (1922)), WWII, to the Patriot Act of 2001 (also lecture available here);
Normalising the State of Exception by Günter Frankenberg (2014), a longer, but really thorough monograph, connecting strong insight into philosophy, political theory and law with legal analysis of what has happened after the 9/11 in EU and US.

OBSERVATORY
Another task would be data collection on what is actually going on and what media report, both on the level of ‘announced threats’ and the responses including explicit or implicit announcement of the state of exception, limiting the liberties, counter-actions etc. That would obviously lead to the enrichment of the concept.

With these two in mind, THEORY 2
Knowing what exactly is being compromised, and how to theorise it, it would be possible to reconstruct which parts of our ‘traditional’ understanding of Democracy, Human Rights, Freedom and the Rule of Law are being challenged, and prepare the path for the creative work.

Obviously, this will be much more complicated, and the scheme above might be challenged in any way, but I just wanted to show what I have in mind. And ask if anyone would be interested in doing sth like this.

I know we are all super busy, and it’s not that I have that much spare time, but I somehow have the feeling that we owe people something like this. And the more people would join, the better (and faster) this could be done. I might be wrong,

but if you’re interested, drop me an email (Przemyslaw Palka).

Problems with normative/descriptive claims about law; vol. 1

A basic distinction in legal scholarship lies between descriptive claims (what is the law?) and normative claims (what should be the law?). In this post I argue that one can easily fall into the trap of making one instead of another, due to: 1) law’s normative character; 2) law’s hierarchical (or heterarchical) structure; and 3) often argumentative style of legal reasoning.

Initial claims:
1. Since law itself is normative, a descriptive claim about law will be a normative claim about sth else;
2. A descriptive claim about a higher order provision (in Kelsen’s sense or some heterarchical sense, e.g. about the EU law) will be a normative claim about a lower order provision;
3. When law is ambiguous, a seemingly descriptive, ‘interpretative’ claim might actually include extra-legal normative components.

Examples:
Assume a hypothetical state, the Republic of Silesia, where the Traffic Regulation Act sets the default speed limit at 60 km/h in the towns.

Descriptive question: what is the default speed limit in the towns in the Republic of Silesia? is pretty straightforward, and the answer: ‘the speed limit is 60 km/h’ is a correct, descriptive claim.
But this claim already includes a normative statement: ‘people should not drive faster than 60 km/h in Silesia’.

However, a normative question: what should be the default speed limit in towns in Silesia? invites different possible types of answers:
#1: The speed limit should be lower, because I’m afraid of cars driving so fast;
#2: The speed limit should be higher, so that people can be more efficient, move faster and so have more time to work, due to saving time on transportation;
#3: The speed limit should be higher, because the art. X of the Constitution of the Republic of Silesia states ‘The Republic ensures the citizens’ right to move around quickly’.

Higher/lower limit is insignificant here, what matters is the reasons behind the normative claims.
In #1, this is just an opinion;
in #2 a higher-level normative claim: ‘law should maximise the efficiency’ is assumed, though this claim is external to the legal system;
in #3 a descriptive claim about higher level law (constitution) is made, together with a normative claim: ‘lower level norms should comply with higher level norms’, which is internal to the legal system, and could be summarised as an internal normative claim: ‘law should make sure that citizens can move around quickly’.

Note that #2’s normativity comes from outside of the legal system, while #3’s from the inside.
Why does it matter?
Because one could claim that a statement: ‘The speed limit in towns in Silesia must be higher, because the current one is unconstitutional’ is actually a descriptive claim about the law.
In other words: seemingly normative statements about the law (due to the lingual side and usage of the modal verbs like ‘should’, ‘ought to’ or ‘must’) can be considered descriptive statements by some scholars.

One should bare in mind that when making any claim about the law, one sees at least 3 levels:
1. Reality;
2. Legal provisions in statutes;
3. Constitutional/human rights provisions.

When making a descriptive claim about a higher level, one makes a normative claim about the lower level; when saying what the law is, one says how the reality should be; when saying what the constitutional norms are, one says how the lower level law should be. All these normative statements are internal to legal system.

However, there is a space for ‘cheating’ here. For example, it is not obvious that the speeding limit must be higher, maybe it is sufficient. This is already an argumentative exercise.

Now, the picture gets more complicated when one makes a normative claim based on reasons external to the legal system. These claims, again, can be directed at different levels:
1. People should be moving around quickly to be efficient;
2. Law should protect safety of the citizens, because human life is the highest value.
3. The silly provision about the right to move around quickly should be taken out of the Constitution, because it only causes confusion.

The importance of the distinction is high, because one can argue that executing a normative proposition internal to the law is a legal action, while executing one external to the law is just political action.

Now, this gets even more complicated when legal provisions are not straightforward.
Assume the Constitution states: ‘The Parliament of Silesia elects the Justices of the Constitutional Court and President of the Republic accepts the vow from them’ and assume that the Parliament has elected 4 justices, but the President refused to accept the vow.
The question begging a descriptive answer: ‘Is the President allowed not to accept a vow from the justices?’ needs an argumentative argument actually; and the reasons invoked might be internal, but might just as well be external to the legal system.
One can imagine both an affirmative and a negative answer, about which it is hard to state whether they describe the law, or just state as it should be.

In consequence, a rigid scholar should be always be explicit about the internality or externality of the source of normative claims he or she is making; and about the level about which a claim is made. Otherwise, falsity of the theories might hide to deep in the argument to be detected.

The trouble with ‘What is X?’ questions

I’ve just solved a problem which has bothered me for two years, and in my excitement want to share the solution with the world.

The problem, in short, is: ‘What is X?’ questions (‘What is law?’, ‘What is religion?’, ‘What is mind?) are in English necessarily ambiguous in at least one sense. They can be questions about both:
1) the delineation of the scope of the inquiry (out of all the phenomena in the universe {x1, x2, x3, …, xn}, which phenomena are to be denoted by the term ‘X’ in a particular inquiry); and
2) the insight into the object of inquiry (having agreed that ‘X’ means {x3, x17, x56 and x875}, how is one to understand that phenomenon).
This seems obvious, but scholars surprisingly often get that mixed, and in consequence talk past each other (details below).
Why? Because English language does not differentiate between cases.

Now, my problem was the inability to communicate that, in other words, if you have not understood what I’ve just written, don’t worry, it’s my fault.

Further, this problem would not have occurred in any language with a robust system of noun declination, and by robust I mean one that uses the instrumental case, like Czech, Russian or Polish. In the last one, ‘what is law?’ question would be translated as ‘Co jest prawem?’ in the first meaning (delineation) and ‘Czym jest prawo?’ in the second (insight). Giving an answer to one while asking another would just feel obviously illogical due to the grammatical structure of the sentence. Hence, whenever talking about the problem above to someone speaking a slavic language, I got this ‘aaaaaaaaaahhhhh!’ when just translating the sentence.

Unfortunately, none of the Western languages that even use cases (German or Latin), so none of the languages that I could have expected majority of my interlocutors to understand, use the instrumental case. So I couldn’t express what I mean.

And now I got it. Two different meanings of ‘what is X?’ question can be exposed in English via the sentence structure of a negation of the question, as in:

what is not law? (negative delineation) – Co nie jest prawem?
what is law not? (negative insight) Czym nie jest prawo?

So, if you agree that these questions are not the same, you can see how a non-negated question ‘What is X?’ can always mean at least two different things.

I am super excited, I don’t now how about you.

Why would that matter? Take the 25-centuries-old, unsolved question: what is law?

I would claim that the trouble with this question lies not only with the object (‘law’), but also with the method(s) and with the question itself; one of the problems with the question being the one explained above.

Take H.L.A. Hart, who in the most overrated law book of the 20th century, The Concept of Law, starts by identifying the diversity of answers:
1) What officials do about disputes is … the law itself (Llewellyn)
2) The prophecies of what the courts will do . . . are what I mean by the law (Holmes)
3) Law is the primary norm which stipulates the sanction (Kelsen)
Clearly, ‘officials’ actions’ are not ‘prophecies’ and are not ‘norms’. The three answers above are answers to the first meaning of the question, just delineations of scope, different ones.

Hart however, to a great surprise of a reader, just skips this problem and implicitly answers the first question by limiting ‘law’ to norms, and then proceeds to the second one, to which he gives the famous answer about the union of the primary and secondary rules.
How come?! I seriously think he just didn’t notice, because he was writing in English.

So, to finish, let us negate a few more questions, just to get the feeling:

What is religion?
1. what is not religion?
2. what is religion not?
What is mind?
1. what is not mind?
2. what is mind not?
What is love?
1. what is not love?
2. what is love not?

CREDITS: Great thanks go to Józef Życiński, over whose book Elementy filozofii nauki I got the idea. The book is in Polish, I was taking notes in English, and the hesitation over the sentence structure of ‘What is not a scientific theory?’ was the eureka moment for me.
Special thanks go to Bartosz Marciniak, who spend a significant amount of time and characters to show me how to translate the two into Latin, finally explaining to me why this could not be expressed in Latin the way I wanted to do it.
Additionally, huge thanks go to Liam McHugh-Russell, who quickly spotted a problem that could have ruined the whole post, now fixed already.

Anthropology before philosophy (?)

The question I want to consider today is: Must one do anthropology before one does philosophy?

One of the fields of legal scholarship that would benefit from an answer is the now-hip field of the Transnational Legal Theory. The question could be specified as: If one wants to propose a theory explaining the phenomenon of the transnational law, must one first empirically examine the phenomenon in question?

And a tempting answer is: (hopefully) not. Hopefully, for philosophers don’t like to get their hands dirty with empirical research. And a compelling argument could be offered in defence of that answer: none of Kelsen, Hart, Dworkin, or Raz ever did any anthropology, and that their theories seem to do just fine without it. And even if the theories themselves aren’t fine, the objection is not “it seems like you guys didn’t do enough anthropology.”

Let me moot two claims.

The answer to the first question is it depends: sometimes one needs to do anthropology before one does philosophy, sometimes not. In particular, it depends on a) existence of ‘folk’ intuitions about the phenomenon to be theorized; b) these intuitions actually being true (corresponding to facts).
The answer to the second question is yes: to provide a theory of transnational law, one first needs to engage in some anthropology (or at least base the theory on the work of others who have). That is because theoreticians and/or their audience still lack sufficiently developed intuitions about the phenomenon of transnational law. Worse, the intuitions they do have often happen not to be true. The context therefore departs significantly from the intellectual milieu in which Kelsen and Hart did their theorizing about ‘traditional’ national and international law.

Let me take a moment to clear up some terminology. ‘Anthropology’ here means, very roughly, empirical research on reality (talking to people, observing phenomena, reading texts) i.e. the any collection of the data that can’t be generated just by sitting in armchair and thinking. ‘Transnational law’ means norms generated and executed by entities that are neither national nor international, ranging from the EU and the WTO, to FIFA and UEFA.

Example 1: Information vs. BitCoin
Start by considering an example of two research questions, with superficially similar structures: what is information? And: what is a cryptocurrency, like BitCoin?

One can easily imagine providing an answer to the first question via armchair philosophy. A researcher would sketch some working ontology, differentiating a piece of information as either: 1) a feature of an object (e.g. a fact of me being a Polish citizen); or 2) an expression of that fact (Filipe saying: ‘Przemek is a Polish citizen’); 3) a fixation of that expression in some context (EUI officer writing in the database ‘Przemek is a Polish citizen’) etc. He or she might then theorize the differences between these types, suggest an ontological explanation, and potentially arrive at some definitions. All this is possible because the researcher ‘knows enough facts.’

What is BitCoin, however, will be harder. For before one can offer a philosophical explanation of its existence and functioning, one needs to know what BitCoin actually is. One needs to obtain the facts. If, for example, one starts by assuming that BitCoin is a private currency, ‘an alternative mode of payment provided by a private company’, and theorizes that, one is simply wrong. For there is no company, and one would completely miss the ‘decentralized’ structure of a crypto-currency. Researcher needs the facts first.

Example two: Philosophy of the Mind
Take another question: what is the relation between a brain (body) and a mind? One could attempt to answer this controversial question solely through ‘armchair philosophy’; in the end, we have quite good intuitions about what brain and mind are. But in doing so, one could simply be wrong about the facts. The booming career of neuroscience shows that our intuitions about how brain functions had often been mistaken. Now, to be clear, I am not saying that neuroscience will ever replace philosophy of mind. I am saying that neuroscience informs it. It provides facts about which we can theorize. It’s the anthropology necessary before philosophy.

Legal theory vs. Theory of transnational law

Now let us apply these findings to legal theory and theory of transnational law.

‘Hart and Dworkin never did any anthropology’. Well, didn’t they? They both studied law and worked as lawyers before they undertook their philosophical projects. They were intimately familiar with phenomenon of ‘law’ that they were addressing, from both a theoretical and a practical perspective. And their audience was people who shared that intimate knowledge as well. They had the facts right.

Imagine someone who had never studied law trying to provide a new, descriptive theory explaining how law functions. There is a chance it would be brilliant and original, granted. But there is a much higher chance that would be wrong, because ‘that is not what actually’s going on here, pal’.

With transnational law, most scholars are in just such a position. We hardly study the phenomena at school. Many of those engaged in legal practices never deal with transnational law directly. We know about some of the relevant institutions, like UE or FIFA, but there are many others we may have never heard about. And we might be just mistaken in our intuitions about them.

A successful theory of transnational law needs to be based on observed facts. Otherwise, theorization will provide an insight not into its desired object, but into the mistaken idea that the researchers have of that object. And so the anthropology needs to come first.

A few words on the refugee crisis from my Polish, catholic perspective

This is not what I ever intended to write about on this blog, but I just cannot help myself, seeing what is going on, but most of all seeing the types of comments that some people make on the net.

I dedicate this post to all my fellow Poles, to all my fellow Eastern Europeans, to all my fellow christians, and to people who, like me, according to European standards, would generally be placed under the label of ‘conservative’ or ‘right wing’.

Would anyone like to make a claim against accepting the refugees in the current situation, or a claim supporting the politics of Orban, “because those people are muslim” or “because we cannot afford it”, and try to justify this claim with christian or traditional values, I have one response: You gotta be fucking kiddin’ me.

Let me start by reminding when, in Polish public discourse, we usually use the expression ‘not to help’.

A month ago we commemorated 71st anniversary of the Warsaw Uprising. Lyrics of the Uprising by Sabaton: “1939 and the allies turned away // 1944 help that never came” well summarise the feelings most of the Poles have about the France’s and Britain’s attitude towards us during the 2nd World War. “We had a mutual help agreement, we would have helped them, while they ignored us during 1939 Nazi invasion and refused the help the City in the 1944 Uprising“. 3 millions of people died, including all the intelligentsia (what we can ‘feel’ until nowadays), Warsaw was completely destroyed. We are upset with French and British not helping us. And rightly so.

Not only demons of the past, however, fill Polish minds with skeptical feelings in these days. Russia’s activities in Georgia and Ukraine make the prospect of Putin invading Eastern flanks of EU and NATO much more probable than we thought not that long ago. The closer you are to Ukraine, the feeling is stronger, believe me. However absurd it might feel when you’re sitting in France or Italy. Our new President, Andrzej Duda, vocally makes a claim for installing of American and NATO bases in Poland. To my mind, again, rightly so. Whether you agree or no is of lesser importance here. The point I’m making is: we are afraid that, despite international agreements, they will not help us when we need that help.

And hey, guess what: right now Poland, and Hungary, and many other Eastern countries are not helping people that desperately need help. We are no better than 1939 France. We have to help them, and yet we don’t even try to do half of what we could.

“Aha!” – a 2nd year right-wing-law-student will shout – “Got you here! Because we don’t have to help them! France and UK had an international agreement with us, but we have no agreement with Syrian people!“. Bravo. Beautiful, positivistic, materialistic, relativist claim you’re making. You have a right to it, just that usually you seem to attack these positions.

Have you ever heard of God’s Law? Have you ever heard of natural law? Have you ever heard about Jesus saying LOVE THY NEIGHBOUR? Do you remember the last time mentioned that God’s Law is above any positive man-made law? When was it, ah, yesterday?

Every Christian has got an obligation to love others, to give food to the hungry, to give drink to the thirsty, to welcome the stranger, to clothe the naked, to take care of the sick and to visit those in jail. Well, now we have an opportunity. Do you remember how the Judgement will look like? Jesus will separate those who did all these to Him from those who didn’t. Whenever you did it for any of my people, no matter how unimportant they seemed, you did it for me. Read Mt 25:31-46.

And every human being has a right to live. Which we have an obligation to defend. We must protect human life! Remember the last time you said that?

By not doing whatever we can to help the refugees, we are not only being selfish, greedy, comfort-loving bastards. We are breaking the law. God’s law. The one so often used to justify political claims, btw. Now we’re braking it. We should fear hell.

“But those people are not Christian! They might be terrorists, and they will not fit into our society, they will cause social conflicts, because their culture is not based on Christian values, while that is the fundament the Europe is built on! When we let this values die, Europe will die“.

By not helping the refugees, by letting them die in Syria or tracks on our roads or drown in the Mediterranean, by bitting them up on boarders, we, the Europeans, are compromising Christian values right now. We are destroying the very foundation on which European culture was built. We. Now. Not them, one day.

And to say ‘let us accept only the Christians, keep the Muslims out’ might be the most unchristian thing I have ever heard.

“But there is data! Look at France, at Netherlands, the problems they have! Plus: I’m sure there are ISIS agents among those people. And we cannot afford it, we are poor ourselves“. You know what? You’re right! That’s true! And it does not matter at all, it changes nothing about our obligation to help them.

Sure, in 99% white, homogenous, (post)catholic Poland, there might be social clashes when people from different cultures arrive. They will need to learn and we will need to learn. And it will cost the taxpayers’ money. And yeah, maybe there are even some ISIS agents hidden among the thousands that come. Maybe there will be an attack by one of the thousands we now help. We need to admit such a possibility and be prepared. There is definitely a cost to pay, financial, social, and in security. And we MUST pay it.

Jesus never said ‘Feed, clothe, welcome UNLESS your standard of living will decline, unless your personal security might be endangered’. He said: LOVE! And He gave us the ultimate expression of His perfect love, remember how? By dying. And we use the potential prospect of maybe dying in a maybe-one-day-to-occur-attack as an argument against saving people’s lives right now?!

‘But we are not Jesuses!’. Well, before He died, he said: The greatest way to show love for friends is to die for them (J15:13). (I can really keep going with the citations, you know that, and so can you, btw). You wear a symbol of Him dying on your neck. And you fight for your right to put this symbol on your school’s wall. Rightly so, I believe. Now let us try live up to it.

And one more thing: remember the last time we talked about human rights being just secularised christian ethics and the danger that once we ‘cut the root off’, when Europe become completely secular, the whole project will stay for a few generations, but then might collapse, since if no one believes in natural law, and human rights are just a positive law that might be changed, future generations will choose to change it? Well, guess what.

I started with not helping, let me finish with helping. For dates of 1939, 1944, 1945, 1946, 1949, 1956, 1968, 1981, apart from tragic events, are also the years when we did receive enormous help. When thousands of people, who were at that time refugees, found shelter. Now it’s our turn.

People of Europe have a moral obligation to accept the refugees and to do whatever they can to help them. Sure, there will be a cost of that. This cost might be high. And we just have to pay it. There is the important reason, and that, apart from just being a decent human being that can look oneself in the eyes without dying of shame, is the the God’s Law. If one feels Christian, there’s no other option. Or even if one does not, but wants to ‘defend the European values’, there is no other way. History will judge us justly, maybe. But God will for sure.

Ontological vs. methodological assumptions

It will take you 6 minutes to read this post

There is a significant difference between methodological and ontological assumptions.

One of the prerequisites of a good scholarship is ability to draw distinctions. To see critical differences between one thing, subject, method, process (…) and another. Especially if the two seem very similar or even the same. What has started with Plato’s critique of Parmenides’s confusion over the meaning of a verb ‘to be’, continues till now as a feature of what Westerners label philosophy, or to be more humble, scholarship. The aim of this post is to draw attention to the one signalled in the lead – between assumptions about ontology of the object of inquiry and assumptions internal to the method of inquiry.

This post is inspired by one sentence uttered by prof. Bratosz Brożek about a year ago, over coffee and a cookie, during Law & Logic summer school. We discussed law & neuroscience, a hip subject nowadays. When I mentioned a problem that I’ve considered an important one in philosophy – the problem of reductionism (assumption that mind can be reduced to physical, chemical and biological processes occurring in a brain), prof. Brożek just looked at me, quite annoyed, and said:

‘Those people (reductionists) confuse methodological assumptions with ontological ones‘

That was quite illuminating. So I’ve been thinking about it for a year now. I wanted to write an article about it, but of course found no time, and so hope that a blogpost will suffice for the time being. To be clear – I am not referring Brożek’s position here – I actually don’t know what he really meant. I just had to share my state of thought on the statement, which I personally consider extremely important.

I proceed in three parts. Firstly, I try to generalise, to explain what is the difference between ontological and methodological assumption in general. Secondly, I apply it the the field of neuroscience & law/philosophy/(…) and the brain/mind problem. Thirdly, I apply the distinction to ‘what is law?’ debate, especially to the natural law vs. positivism sub-debate.

What should go without saying, but let me say it just in case – there is probably tons of literature on these subjects, which I do not refer to, because I have not read it. That is why this a brief(ish) blogpost. Not a scholarly article.

I. In general

Every scholarly inquiry assumes a particular reality. It delineates its fragment, a fragment that it wishes to describe, explain and (possibly) criticise. It asks a question and sets up a method of answering it. Here the source of the distinction lies. For a method is a function of a question, and so the assumptions internal to the method will be a function of the question, not a function of the reality itself.

Take the example of the evolutionary theory of the origins of species and the problem of God’s role in the creation. In order to explain evolution, within the positivist paradigm (what we nowadays limit ‘science’ to), one does not need to assume existence of God. Probably, it’s even better not to do so. Each good scientist shaves with the Ockham’s razor, and so an evolutionist should be able to explain the origin of species relying just on the phenomena ‘matter-up’. Explanation not involving God will be a better one. This, however, does not yet mean that there is no God. This just means that assuming God is not necessary in order to answer the question. But God might be out there, creating the World through evolution. And He might be not. This does not matter. And the other way round – If the question would be ‘can the story of Genesis be reconciled with the theory of evolution?’, then existence of God would be a possible methodological assumption, even if the scholar would personally believe that He does not exist.

II. Neuroscience and X

The problem I signalled above – the problem of reductionism – could be summarised in having to accept or reject the claim: ‘The Mind, meaning the sum of intentional, intellectual, emotive etc. mental states can be reduced, and so described and explained, by solely ‘natural’ phenomena of physics, biology and chemistry’. Philosophically it is hard to defend, and yet many neuroscientists, often seeming as smart people otherwise, defend it vigorously. I claim, after Brożek, that this perplexing state of academic affairs can be blamed on the confusion of methodological assumptions with ontological ones.

For, in a sense, neuroscience needs to be reductionist in its method. Unless the assumption is there, the results would need to be always preceded by a word ‘probably’. Unless the mental states can be explained by the analysis of the brain, the analysis of the brain in order to explain the mental states would be silly. So we assume it is.

This, however, does not mean that ontologically speaking, mind is brain. There are many philosophical arguments against this claim. But as in the example of evolution, one does not really matter for another. The problem appears when a neuroscientist makes a claim that his or her methodological assumption is an ontological assumption. The argument: ‘Since I need to assume X for my method to make sense, and it seems that sometimes my method leads to true conclusions, then X is necessarily the case as a feature of the reality’ is logically invalid.

III. Natural law vs. positivism

‘What is law?’ question should trouble any lower with at least vague interest in philosophy and theory. I do not aim at answering it here, of course. But I am in the middle of a project of explain why it remains so hard to answer. In this post I just point to one of the reasons, being exactly the confusion of a method with ontology.

For the purpose of this post, take ‘legal positivism’ to mean ‘an approach according to which all the law is man-made, and if something is law, its pedigree can be traced down to sources acceptable in a given society’ and ‘natural law’ mean ‘an approach according to which, apart from man-made law, there is some sort of higher law, given by God or discoverable in nature, unchangeable by men’.

One can easily imagine a descriptive research question concerned just with human practices, e.g. ‘what is the law concerning drinking alcohol in public in Poland, and what is the official practice of its enforcement?’. In order to answer it, one would hold first doctrinal and then empirical legal research, taking social practices as sources and disregarding any assumptions about higher law. This, however, does not in itself mean that there is no natural law. On the other hand, one could imagine a question ‘what are the possible ways of regulating in-vitro fertilisation, such that they would not be contrary to the teaching of Catholic Church?’. If the question is so, since CC assumes the existence of natural law (in ontological sense), the researcher would need to methodologically assume it as well (in order to reconstruct it). But this does not mean that any natural law is out there.

Ontologically speaking, natural law exists or it does not, though it’s probably hard to find out whether it does. But this has no significance for legal method. For the method, and its assumptions, will depend on the question asked.

Scholarship is aimed at a truth, and this truth (to follow Kuhn), will always be relative to the method. It has little to do with the Truth, unless it claims to do. But this claim, one way or another, need to be explicit.

Otherwise, people will just talk past each other.