Freedom and Force by Sari Kisilevsky;Martin J Stone;

Author:Sari Kisilevsky;Martin J Stone;
Language: eng
Format: epub
ISBN: 9781782253075
Publisher: Bloomsbury UK
Published: 2019-11-24T00:00:00+00:00

II.RATIONAL DETERMINATION AND AN OPEN QUESTION

Let me begin with a puzzle: suppose the law states that I ought to do X. It seems to me a legitimate question—at least within Kant’s practical philosophy—to ask whether I am actually obligated to do X, and this for at least two interrelated reasons: first, because the addressees of all normative prescriptions are persons (there is, as it were, no simpler unit of agency in the Kantian universe); second, to the extent to which normative prescriptions are directed at persons, it seems natural to suppose that for anything to count as an obligation it has to be something that we can square with the story Kant tells us about how agents are obligated simpliciter. This is the story of the moral law: nothing (incentives, brute facts or social institutions) that purports to obligate can do so unless it figures as a normative reason before the deliberating agent.2 Moreover, to figure as such a reason, it will need to be reflectively endorsed as ‘a maxim through which the agent can at the same time will that it should become a universal law’.3 Assuming the correctness of this picture, we can state our initial puzzle as follows: it is conceivable that for any social fact4 that purports to obligate an agent A, it will remain an open question whether it also succeeds in grounding an obligation for A.5 In other words, each time the agent is addressed by normative utterance <NU>: ‘You ought to do X!’, there is nothing in that fact alone to rule out the question: ‘Am I obligated to do X?’ For, under the Kantian conception of agency, the question about the obligatory force of <NU> is antecedent to any facts of pedigree outside the reflective test of agency. Let us label this ‘the open question of obligation’.

As for open questions, the main problem is one of determination (or the lack of it). Until we can lock on to something that can generate a determinate answer, the question will hang over us and so will its troubling effects. The problem ramifies, for it presents itself not just in connection with the Kantian account but also with any other account that takes agency itself to be validating of whatever may count as a reason for action (obligations being the most central cases of that class of reasons).6 In contemporary legal theory, Mark Greenberg has proposed to tackle the indeterminacy implied by the open question through the rational determination condition (RDC).7

According to the RDC, in order for any social facts to determine the content of the relevant legal norms, more than a relation of supervenience is required—all that supervenience can deliver is metaphysical determination, or the condition that the facts of a particular legal practice (LP) determine factually a legal norm (LN) across possible worlds. More is required, however, in order to establish the normative relevance of social facts to the content of any legal norm. Rational determination captures this requirement in pointing to normative

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