The adversarial legal system is traditionally praised for its normative appeal: it protects individual rights; ensures an equal, impartial, and consistent application of the law; and, most importantly, its competitive structure facilitates the discovery of truth – both in terms of the facts, and in terms of the correct interpretation of the law. At the same time, legal representation is allocated as a commodity, bought and sold in the market: the more one pays, the better legal representation one gets. In (...) this article, I argue that the integration of a market in legal representation with the adversarial system undercuts the very normative justifications on which the system is based. Furthermore, I argue that there are two implicit conditions, which are currently unmet, but are required for the standard justifications to hold: that there is (equal opportunity for) equality of legal representation between parties, and that each party has (equal opportunity for) a sufficient level of legal representation. I, therefore, outline an ideal proposal for reform that would satisfy these conditions. (shrink)

There is an under-appreciated tradition of genealogical explanation that is centrally concerned with social functions. I shall refer to it as the tradition of pragmatic genealogy. It runs from David Hume (T, 3.2.2) and the early Friedrich Nietzsche (TL) through E. J. Craig (1990, 1993) to Bernard Williams (2002) and Miranda Fricker (2007). These pragmatic genealogists start out with a description of an avowedly fictional “state of nature” and end up ascribing social functions to particular building blocks of our practices (...) – such as the fact that we use a certain concept, or live by a certain virtue – which we did not necessarily expect to have such a function at all. That the seemingly archaic device of a fictional state-of-nature story should be a helpful way to get at the functions of our actual practices must seem a mystifying proposal, however; I shall therefore endeavor to demystify it in what follows. My aim in this chapter is twofold. First, by delineating the framework of pragmatic genealogy and contrasting it with superficially similar methods, I argue that pragmatic genealogies are best interpreted as dynamic models whose point is to reveal the function – and non-coincidentally often the social function – of certain practices. Second, by buttressing this framework with something it notably lacks, namely an account of the type of functionality it operates with, I argue that both the type of functional commitment and the depth of factual obligation incurred by a pragmatic genealogy depend on what we use the method for: the dynamic models of pragmatic genealogy can be used merely as heuristic devices helping us spot functional patterns, or more ambitiously as arguments grounding our ascriptions of functionality to actual practices, or even more ambitiously as bases for functional explanations of the resilience or the persistence of practices. By bringing these distinctions into view, we gain the ability to distinguish strengths and weaknesses of the method’s application from strengths and weaknesses of the method itself. (shrink)

Discoverers of “market failures” as well as advocates of the general efficiency of a “true, unhampered market” sometimes seem to disregard the fundamental fact that there is no such thing as a “market as such.” What we call a market is always a system of social interaction characterized by a specific institutional framework, that is, by a set of rules defining certain restrictions on the behavior of the market participants, whether these rules are informal, enforced by private sanctions, or formal, (...) enforced by a particular agency, the “protective state,” in J. M. Buchanan's terminology. (shrink)

How does so much gender inequality endure in an era when many laws and policies endorse principles of gender equality? This essay examines this dilemma by considering Susan Moller Okin's criticism of “false gender neutrality,” research on implicit bias, and the shifting relation of gender bias to American law. I argue that these are crucial elements of the modern cycle of gender inequality, enabling it to operate through a perverse “invisible-hand” mechanism. This framework helps convey how underlying gender bias influences (...) individual behaviors that generate, legitimate, and mask broad patterns of inequality. Contemporary legal conflicts reflect many of these dynamics, which appear in controversies over gender-based violence, gender discrimination in pay and promotion, and women's reproductive health care benefits. This analysis advances our understanding of how the contemporary cycle of gender inequality operates, the complex links between individual behavior and structural bias, and the difficulty of pursuing gender justice through prevailing frameworks of law and liberalism. It also underscores the continued importance of feminists' collective work to address “invisible” as well as visible biases. (shrink)

The article provides an overview of the basic concepts and principles of the theory of institutions as well as of the mechanisms of emergence and evolution of social institutions. It introduces a distinction between formal and informal institutions based on the the criterion of the enforcement agency of institutions. Finally it discusses the problem of path dependence.

The concept of social capital helps to explain relations within and between companies but has not crystallized yet. As such, the nature, development, and effects of such relations remain elusive. How is social capital created, how is it put to use, and how is it maintained? Can it decline, and if so, how? We argue that the concept of social capital remains a black box as the mechanisms that constitute it remain underdeveloped and that it is a black hole as (...) many empirical phenomena are attributed to its presence. We use and develop the literature on gift exchange to provide a firmer theoretical basis for the concept of social capital. (shrink)

In Searle’s social ontology, collective intentionality is an essential component of all institutional facts. This is because the latter involve the assignment of functions, namely "status functions," on entities whose physical features do not guarantee their performance, therefore requiring our acceptance that it be performed. One counter-example to that claim can be found in Carl Menger’s individualistic account of the money system. Menger’s commitment to the self-interest assumption, however, prevents him from accounting for the deontic dimensions of institutional facts.

This paper argues that both technological determinism (the development of technology is uniquely determined by internal laws) and technological voluntarism (technological change can be externally directed and regulated by the wants and free choice of human beings) are one‐sided and partly mistaken. The determinists are right in the sense that technology has a power to influence our values and behaviour, and thereby appear to direct ‘technological imperatives’ to us. However, such commands are always conditional on some value premises; the voluntarists (...) are thus right in pointing out that we need not obey such imperatives. The principle ‘Can implies Ought’ (all technological possibilities should be realized) is therefore invalid. (shrink)

The notion of a spontaneous social order, an order in human affairs which operates without the intervention of any directly ordering mind, has a natural fascination for social and political theorists. This paper provides a taxonomy under which there are two broadly contrasting sorts of spontaneous social order. One is the familiar invisible hand; the other is an arrangement that we describe as the intangible hand. The paper is designed to serve two main purposes. First, to provide a pure account (...) of the invisible hand, with some indication of the varieties of invisible hand (and, indeed, backhand) available. Second, to develop and motivate the unfamiliar conception of the intangible backhand. We believe that a recognition of the availability of this latter sort of spontaneous organising mechanism — and the mechanism is implicitly recognised in many traditions — is of great importance in political theory; it is of particular importance nowadays when the usual focus is entirely on the invisible hand. (shrink)

David Hull accounts for the success of science in terms of an invisible hand mechanism, arguing that it is difficult to reconcile scientists' self-interestedness or their desire for recognition with traditional philosophical explanations for the success of science. I argue that we have less reason to invoke an invisible hand mechanism to explain the success of science than Hull implies, and that many of the practices and institutions constitutive of science are intentionally designed by scientists with an eye to realizing (...) the very goals that Hull believes need to be explained by reference to an invisible hand mechanism. Thus, I reduce the scope of Hull's invisible hand explanation and supplement it by appealing to a hidden hand explanation. (shrink)

An invisible hand seems to play an important role in science. In this paper I set out the general structure of invisible-hand explanations, counter some objections that have been raised to them, and detail the role that they play in science. The most important issue is the character of the mechanisms that are supposed to bring about invisible-hand effects.

Scientific progress has many facets and can be conceptualized in different ways, for example in terms of problem-solving, of truthlikeness or of growth of knowledge. The main claim of the paper is that the most important prerequisite of scientific progress is the institutionalization of competition and criticism. An institutional framework appropriately channeling competition and criticism is the crucial factor determining the direction and rate of scientific progress, independently on how one might wish to conceptualize scientific progress itself. The main intention (...) is to narrow the divide between traditional philosophy of science and the sociological, economic and political outlook at science that emphasizes the private interests motivating scientists and the subsequent contingent nature of the enterprise. The aim is to show that although science is a social enterprise taking place in historical time and thus is of a contingent nature, it can and in fact does lead to genuine scientific progress - contrary to the claims of certain sociologists of science and other relativists who standardly stress its social nature, but deny its progressive character. I will first deal with the factual issue by way of introducing the main concepts and mechanisms of modern institutional theory and by applying them to the analysis of the cultural phenomenon that we call modern science. I will then turn to the normative issue: what is the appropriate content of the institutional framework, for scientific progress to emerge and be sustained at which level should it be set and by whom? Addressing this problematic is equivalent to conducting a constitutional debate leading to a Constitution of Science. (shrink)

How can we use models to understand real phenomena if models misrepresent the very phenomena we seek to understand? Some accounts suggest that models may afford understanding by providing causal knowledge about phenomena via how-possibly explanations. However, general equilibrium models, for example, pose a challenge to this solution since their contribution appears to be purely mathematical results. Despite this, practitioners widely acknowledge that it improves our understanding of the world. I argue that the Arrow–Debreu model provides a mathematical how-possibly explanation (...) which establishes claims of mathematical dependence. The account developed reveals how mathematical knowledge can inform claims about the world, allow ‘what-if-things-had-been-different’ inferences, and thus improve our understanding. (shrink)

We present a model of the distribution of labour in science. Such models tend to rely on the mechanism of the invisible hand . Our analysis starts from the necessity of standards in distributed processes and the possibility of multiple standards in science. Invisible hand models turn out to have only limited scope because they are restricted to describing the atypical single-standard case. Our model is a generalisation of these models to J standards; single-standard models such as Kitcher are a (...) limiting case. We introduce and formalise this model, demonstrate its dynamics and conclude that the conclusions commonly derived from invisible hand models about the distribution of labour in science are not robust against changes in the number of standards. (shrink)

ABSTRACTWhile conspiracies have always been with us, conspiracy theories are more recent arrivals. The framing of conspiracy theories as rooted in erroneous or delusional belief in conspiracies is characteristic of “positive” approaches to the topic, which focus on identifying the causes and cures of conspiracy theories. “Critical” approaches, by contrast, focus on the historical and cultural construction of the concept of conspiracy theory itself. This issue presents a range of essays that cut across these two broad approaches, and reflect on (...) the problematic relationship between conspiracy theory and democratic politics. (shrink)

ABSTRACTHayek’s social theory is resolutely anti-conspiratorial: He consistently rejects conceiving complex orders as though they were designed or planned. His account of democratic politics, by contrast, treats it as conducive to conspiracy, organized deception, and ultimately totalitarianism. His epistemology of spontaneous order and his radical suspicion of democratic politics are connected: The decay of democracy is itself a complex consequence of popular misunderstandings of social order. However, since Hayek is unable to account for self-correction within democratic structures, his argument has (...) the unanticipated consequence of leading him to an implicitly authoritarian position. (shrink)

Institutions are often regarded either as rules or as equilibria sustained by self-interested agents. I ask how these two theories can be combined. According to Philip Pettit’s _Virtual Control Theory_, they explain different things: rules explain why regularities persist; self-interest why they are resilient. Thus, his theory reconciles the two theories by adjusting their domains of application. However, the available evidence suggests that rules and self-interest often combine as sources of motivation. Because of this, it is better to integrate the (...) theories rather than to reconcile them. Inspired by Cristina Bicchieri’s theory of social norms, I incorporate the notion of rule-following into a game-theoretic account of institutions. According to the resulting _Rules-and-Equilibrium Theory_, institutions are rule- or norm-governed social practices. The theory does not only explain their persistence and resilience, but also their fragility, which provides another reason for preferring the proposed integration to Pettit’s reconciliation. (shrink)

Memes have been proposed to explain wide swathes of human culture and language use. I argue that what is really doing the explanatory work in many of these cases is a basic mechanism of information...

Our economic system, the market economy, is a part of a broader system or “society.” We frequently study the operation of the market economy as if it were autonomous, even though there are many complex and mutual relationships between society, the economic system and the other systems – political, cultural, religious, legal, etc. – that form part of society. In a market economy we may identify several components: a frame or background in which the economic activity takes place, a set (...) of ideas and theories, the values shared by this society, the set of institutions, norms and rules that control the economic behavior of people, and the incentives or motivations of the economic agents. The play of these elements defines the operation of a market economy. Is ethics an institution, or does it belong to the set of values and ideas? In this paper I will discuss the role of institutions, norms and rules in society, with special reference to the economic system, in order to gain insight into the relationship between institutions and ethics. I study first the concept and features of social institutions and norms; second, institutional change, and third, the relationship between ethics and institutions. (shrink)

Hayek's social theory presupposes that rules are unintended consequences of individual actions. This essay explicates one kind of Hayekian explanation of that claim. After noting the kinds of rules that Hayek believes are subject to such a theory, the essay distinguishes three functional explanations advocated by Hayek. He combines one of these functional explanations with an invisible hand explanation. A schema suitable for constructing invisible hand-functional evolutionary theories is employed to outline this combination.

The article presents a survey of what is meant in the social sciences by an "invisible hand explanation", dealing in special with the ideas of Bernard Mandeville, Adam Smith, Carl Menger, Friedrich August von Hayek, Robert Nozick and Edna Ullmann-Margalit, and evaluates whether these explanations meet the standards of sound scientific arguments. The answer is affirmative with two different kinds of invisible hand explanations (IHE), the "causal-mechanical"-IHE and the "functional-evolutionary"-IHE.

RESUMEN: El presente trabajo examina Anarquía, Estado y utopía de Robert Nozick a la luz de los mitos y ficciones sobre los cuales se construye. En este sentido, se sostendrá que es posible identificar dos mitos principales: el estado de naturaleza lockeano, cuyo principio se deja resumir en la máxima volenti non fit iniuria; y la meta-utopía libertaria, que se deja explicar como una aplicación de la teoría evolutiva de Hayek y de la epistemología de Popper a la construcción de (...) una utopía. Se sostendrá además que existe una continuidad entre ambos mitos y que dicha continuidad viene dada por una intuición moral que Nozick formula al principio de la obra y que sirve también de inspiración al mito libertario: que la vida solo puede tener sentido cuando se deja a cada persona vivir la suya del modo en que estime conveniente. Dicha intuición, se concluirá, se traduce en el campo de la política y del derecho en el principio de que cada persona es dueña de sí misma y que, por consiguiente, esta forma particular de propiedad constituye el secreto hilo conductor de toda la obra. ABSTRACT: This paper examines Robert Nozick's Anarchy, State, and Utopia in the light of the myths and fictions upon which it is built. I hold that it is possible to identify two main myths: the Lockean state of nature, whose principle can be summarized by the maxim volenti non fit injuria, and the libertarian meta-utopia, that can be explained as an application of Hayek evolutive theory and of Popper's epistemology in order to construct an utopia. I also claim that there is a continuity between both myths, and that this continuity is granted by a moral intuition that Nozick presents at the beginning of this work, and that also inspires the libertarian myth: that life can only have sense when each person is allowed to live her own in the way she deems convenient. I will conclude that this intuition finds an expression, in the field of politics and law, in the principle that each person owns herself and, hence, that this peculiar form of ownership is the secret thread of the whole book. (shrink)

This book consists of a dialogue between two interlocutors, Pablo and a student, who discuss a great range of issues in social philosophy and political theory, and in particular, the emergence, working properties and economic effects of institutions. It uses the dialogical form to make philosophy more accessible, but also to show how ideas develop through intellectual interaction. The fact that one of the interlocutors is the "student" in a place in the real world makes the dialogue quasi-fictive in character (...) and enables the active engagement of the reader. After all, we are all philosophers and we develop our own philosophy by exchanging views and arguments. The dialogue form is and should remain the principal form of philosophizing, since ideas, like butterflies, do not merely exist – they develop. This is certainly the case in actual philosophical interaction, and it can be the case in written philosophical exposition. Although the dialogue does not presuppose prior acquaintance with the respective philosophical and social scientific literature under discussion in this book, it makes arguments more accessible, and conveys the feeling that there are no definite solutions to philosophical problems. (shrink)

In The Scientific Image B. C. van Fraassen argues that a theory of explanation ought to take the form of a theory of why-questions, and a theory of this form is what he provides. Van Fraassen's account of explanation is good, as far as it goes. In particular, van Fraassen's theory of why-questions adds considerable illumination to the problem of alternative explanations in psychodynamics. But van Fraassen's theory is incomplete because it ignores those classes of explanations that are answers not (...) to why-questions but to how-questions. In this article I provide a unified theory of explanatory questions that comprehends both how-questions and why-questions, and I show that a question-theoretic approach to explanation can be defended independently of van Fraassen's programme of Constructive Empiricism. (shrink)

Building on work by Popper, Schweber, Nozick, Sober, and others in a still-growing literature, I explore here the conceptual kinship between Adam Smith''s ''invisible hand'' and Darwinian natural selection. I review the historical ties, and examine Ullman -Margalit''s ''constraints'' on invisible-hand accounts, which I later re-apply to natural selection, bringing home the close relationship. These theories share a ''parent'' principle, itself neither biological no politico-economic, that collective order and well-being can emerge parsimoniously from the dispersed action of individuals. The invisible (...) hand operates on ''memes'' the way natural selection operates on genes. Like Darwin''s concept, it brings together traditional opposites, ''nature'' and ''selection,'' forming a saltation-mitigating transition between biological instinct and full-blown conscious design. Herschel''s criterion of confirmation, which Darwin long strove to satisfy, is itself an invisible hand-like meme – a ''Midas effect'' revealing and rewarding the fittest theories, Darwin''s and Smith''s emphatically among them. (shrink)