Legal Metanormativity

Metaethical constitutivists attempt to explain reasons or normativity in terms of what is constitutive of agency. This type of normative explanation is increasingly popular for explaining normative features in domains beyond the moral. Scott Shapiro has recently defended a novel form of constitutivist explanation in the philosophy of law, which he calls the Planning Theory. On Shapiro’s account, legal systems are social planning systems with a constitutive moral aim that they gain due to the avowals of high-ranking officials. Shapiro then argues that this constitutive moral aim can be used to explain the normativity governing both laws and legal officials. This chapter develops two objections to Shapiro’s theory. First, it argues that Shapiro is unsuccessful in his attempt to establish the moral aim of legal systems is unsuccessful. Second, it argues that, even if successful, Shapiro lacks the resources to establish that such a moral aim of a legal system could explain the normativity governing legal officials. The conclusion is that Shapiro’s Planning Theory is not a persuasive constitutive explanation of the normativity of law. Despite the shortcomings of the Planning Theory, the chapter argues that understanding its strengths and working to avoid its weaknesses can help us see the shape of a more promising constitutivist account in the legal domain and also help in developing a more general metanormative constitutivist account.

Extending the Argument

This chapter asks whether the argument for optimism presented in Chapters 3–4 may be extended from boundary problems to problems of other types, and argues that it can be—to a type of problem the author calls a constitutive problem. Roughly, a constitutive problem is an explanatory problem that presupposes that various items of philosophical interest are located at the apex of what is called a constitutive hierarchy, a vast and complicated explanatory structure among facts (i.e. true propositions). The argument is presented in the context of the theory of causal explanation defended by David Lewis, and explores how this can be extended to constitutive explanation.

Causal and constitutive explanation compared

This article compares causal and constitutive explanation. While scientific inquiry usually addresses both causal and constitutive questions, making the distinction is crucial for a detailed understanding of scientific questions and their interrelations. These explanations have different kinds of explananda and they track different sorts of dependencies. Constitutive explanations do not address events or behaviors, but causal capacities. While there are some interesting relations between building and causal manipulation, causation and constitution are not to be confused. Constitution is a synchronous and asymmetric relation between relata that cannot be conceived as independent existences. However, despite their metaphysical differences, the same key ideas about explanation largely apply to both. Causal and constitutive explanations face similar challenges (such as the problems of relevance and explanatory regress) and both are in the business of mapping networks of counterfactual dependence – i.e. mechanisms – although the relevant counterfactuals are of a different sort. In the final section the issue of developmental explanation is discussed. It is argued that developmental explanations deserve their own place in taxonomy of explanations, although ultimately developmental dependencies can be analyzed as combinations of causal and constitutive dependencies. Hence, causal and constitutive explanation are distinct, but not always completely separate forms of explanation.

Ideas and Explanation: Advancing the Theoretical Agenda

This article responds to key methodological and theoretical challenges posed by the literature on the role of ideas in international relations, especially the literature on ideas and the end of the Cold War. The article develops a theoretical framework that guides the analysis of the empirical articles that follow. It identifies explanatory strategies for the role of ideas and seeks to clarify key methodological issues in the study of ideas. The article defines terms, identifies several different relationships between ideational and material factors, and lays out a series of “tests” for evaluating the causal effect of various kinds of ideas and ideational mechanisms. It then seeks to clarify two primary issues: whether it is possible to draw a clearer line between the material and the ideational; and what is meant by “constitutive effects” and “constitutive explanation.” The article defends the notion of constitutive explanation and shows how both causal analysis and constitutive analysis are valid explanatory strategies for the role of ideas.