The domain of phenomenological investigation delineated by the Husserlian term authentic empathy presents us with an immediate tension. On the one hand, authentic empathy is supposed to grant the subject access (in some sense that remains to be fully specified) to the Other’s experience. On the other hand, foundational phenomenological considerations pertaining to the apprehension of a foreign subjectivity determine that it is precisely a disjunction in subjective processes that is constitutive of the Other being other. In my approach to (...) this problem, I seek, within the context of a reading of Edith Stein’s work On the Problem of Empathy, to clarify the place of ascription in authentic empathy, and to render more explicit a certain notion of “contiguity” that I take to be informing Stein’s understanding of the co-givenness of the Other’s mental life. I go on to argue that a resolution to the problem of empathy lies in the idea that the respective lived experiences of self and Other are, as a matter of descriptive fact, phenomenally connected by a relation of resemblance, and that, consonantly, the essential structure of authentic empathy is characterised in its mature phases by an homological relation to picture consciousness. (shrink)

This paper begins by affirming the view that if there is a debate to be had over whether literature can convey moral knowledge, then efforts by proponents to substantiate this claim will already be necessarily conditioned by an understanding of what morality consists in, independently of literature. This observation brings to light a certain danger for the debate, namely that if participants fail to explicitly specify the ethical theory that they rely on, then the debate can seem nebulous. This raises (...) a new question: is there an account of morality, independent of literature, which is most conducive to literary moral cognitivism, that is, which optimises literary moral cognitivism's chances of succeeding philosophically? This paper both formulates and investigates this hypothesis with reference to moral pluralism, the view that there is an irreducible plurality of foundational moral principles. It concludes that such an affinity exists, but with an important caveat: the affinity is stronger at the level of moral suggestion than the level of moral justification. This has implications for the strength of the version of literary moral cognitivism that it is ultimately plausible to endorse from a moral pluralist point of view. (shrink)

The domain of phenomenological investigation delineated by the Husserlian term authentic empathy presents us with an immediate tension. On the one hand, authentic empathy is supposed to grant the subject access (in some sense that remains to be fully specified) to the Other’s experience. On the other hand, foundational phenomenological considerations pertaining to the apprehension of a foreign subjectivity determine that it is precisely a disjunction in subjective processes that is constitutive of the Other being other. In my approach to (...) this problem, I seek, within the context of a reading of Edith Stein’s work 'On the Problem of Empathy', to clarify the place of ascription in authentic empathy, and to render more explicit a certain notion of “contiguity” that I take to be informing Stein’s understanding of the co-givenness of the Other’s mental life. I go on to argue that a resolution to the problem of empathy lies in the idea that the respective lived experiences of self and Other are, as a matter of descriptive fact, phenomenally connected by a relation of resemblance, and that, consonantly, the essential structure of authentic empathy is characterised in its mature phases by an homological relation to picture consciousness. (shrink)

Dietrich von Hildebrand seeks to pursue the idea that the discipline of phenomenology can offer a way of surmounting what Kant saw as the intrinsic limitations of human metaphysical enquiry. In this book review of the 2021 edition of Hildebrand’s What is Philosophy?, Hildebrand’s train of thought is reconstructed in some detail, from his opening remarks about knowing in general through to his account of the intuition of essences, the question of objectivity, and the overarching purpose of philosophy. Hildebrand’s argument (...) culminates in the claim that philosophy is not only the fundamental activity of a mind turned toward God, but is properly a preamble to religious faith. The review concludes by raising a number of objections to Hildebrand’s version of phenomenological realism. (shrink)

This paper explores Jean Starobinski's often tacit conception of the implied author, with a view to clarifying his intellectual legacy for literary criticism. It argues that it is plausible to trace a certain strand in the intellectual genealogy of Starobinski's literary theory from the descriptive psychology of Wilhelm Dilthey to twentieth-century psychoanalysis and phenomenology. Accordingly, the question "Who is Jean Starobinski?" is formulated in a sense which seeks to move beyond the bare facticity of biographical detail, a sense that can (...) be expected to differentiate between scholarly and purely journalistic enquiry to ask: who, exactly, is the Jean Starobinski that we encounter in his major works - works like "The Living Eye" and "Transparency and Obstruction"? It is from this vantage point that the discussion proceeds to clarify Starobinski's ambivalent relations to both Rousseau and Freud, and thereby to illuminate some of the tensions and nuances inherent in his notion of the implied author. (shrink)

Cet article est la traduction française de l’introduction du livre d’Ayelet Shachar, «The Puzzle of Birthright Citizenship», avec la permission de l’éditeur, tirée de The Birthright Lottery : Citizenship and Global Inequality, Cambridge, Mass.: Harvard University Press, pp.1-18. © 2009 President and Fellows of Harvard College. Traduction de Martin Provencher.This paper is the French translation of Ayelet Shachar’s introduction, «The Puzzle of Birthright Citizenship», digitally reproduced by permission of the publisher from The Birthright Lottery : Citizenship and Global Inequality, Cambridge, (...) Mass.: Harvard University Press, pp.1-18. © 2009 by the President and Fellows of Harvard College. Translation by Martin Provencher. (shrink)

Cass Sunstein and Richard Thaler's proposal that social and legal institutions should steer individuals toward some options and away from others-a stance they dub "libertarian paternalism"-has provoked much high-level discussion in both academic and policy settings. Sunstein and Thaler believe that steering, or "nudging," individuals is easier to justify than the bans or mandates that traditional paternalism involves. -/- This Article considers the connection between libertarian paternalism and the regulation of reproductive choice. I first discuss the use of nudges (...) to discourage women from exercising their right to choose an abortion, or from becoming or remaining pregnant. I then argue that reproductive choice cases illustrate the limitations of libertarian paternalism. Where choices are politicized or intimate, as reproductive choices often are, nudges become not much easier to justify than traditional mandates or prohibitions. Even beyond the context of reproductive choice, it is not obvious how much easier nudges are to justify than bans or mandates. -/- Part I of this Article briefly introduces Sunstein and Thaler's libertarian paternalism. Part II then turns to the context of reproductive choice. Part II.A reviews restrictions on the right to choose an abortion-particularly post-Casey regulations such as waiting periods, requirements that women receive certain types of information, and requirements that women undergo ultrasound-that pitch themselves as steering choice without entirely closing off the right to choose an abortion. This distinction between nudges and prohibitions echoes Sunstein and Thaler's proposals, but works to subordinate women's choices to the judgment of (often male) experts and administrators-hence my term "libertarian patriarchalism." Part II.B reviews efforts to nudge women-particularly teenagers, HIV-positive women, and others thought to be unsuitable mothers-to avoid pregnancy. -/- Part III considers the normative implications of nudging reproductive decisions. In Part III.A, I argue that the political nature of reproductive choices presents a problem for nudges. I do so by considering a parallel with voting rights. Empirical research shows that voters are more likely to choose the candidate listed first on the ballot. Yet we do not empower the administrator in charge of ballot design to choose a default rule that nudges individuals toward the candidate he sincerely believes would promote choosers' welfare. Given the political nature of reproductive choices, a policymaker's attempting to nudge reproductive decisionmaking in the direction he prefers-or indeed in any direction-fails to show adequate respect for the chooser's agency. In Part III.B, I offer an argument that targets the use of nudges in the context of pregnancy. Finally, in Part III.C, I argue that nudges do not merely add choices to an existing menu, but change the substantive choices available to individuals and thereby impose more-than-trivial costs on them. I conclude by exploring the implications of my arguments for nudges more generally. (shrink)

In their recently published book Nudge (2008) Richard H. Thaler and Cass R. Sunstein (T&S) defend a position labelled as ‘libertarian paternalism’. Their thinking appeals to both the right and the left of the political spectrum, as evidenced by the bedfellows they keep on either side of the Atlantic. In the US, they have advised Barack Obama, while, in the UK, they were welcomed with open arms by the David Cameron's camp (Chakrabortty 2008). I will consider the following questions. (...) What is Nudge? How is it different from social advertisement? Does Nudge induce genuine preference change? Does Nudge build moral character? Is there a moral difference between the use of Nudge as opposed to subliminal images to reach policy objectives? And what are the moral constraints on Nudge? (shrink)

In a number of recent publications, Cass Sunstein and Richard Thaler have argued for a novel approach to the design of public policy. Their proposal has received a great deal of attention, both within academic circles and the public at large. Drawing upon evidence from behavioral economics and empirical psychology, the authors attempt to demonstrate that the conventional antagonism between libertarians and paternalists within political theory dissolves in conditions that obtain widely in public decision-making. Where free choice and the (...) promotion of individual welfare can coexist, the authors believe that designers of public policy ought to be libertarian paternalists. In this paper I criticize their proposal on grounds that the authors are unable to sufficiently motivate the paternalistic element of their approach. I argue that the empirical evidence cited by the authors is capable of supporting a number of competing approaches, including what I call libertarian utilitarianism and libertarian justice. Since the evidence that the authors draw upon does not provide us any grounds for selecting between these rival approaches, I conclude that Sunstein and Thaler are unable to provide us with a convincing guide for the design of public policy. In order to show that this is the case, I consider three arguments in favor of libertarian paternalism, and find each lacking. I end with some comments about what we can properly conclude on the basis of Sunstein and Thaler’s arguments. (shrink)

To nudge is to design choice contexts in order to improve choice outcomes. Richard Thaler and Cass Sunstein emphatically endorse nudging but reject more restrictive means. In contrast, I argue that the behavioral psychology that motivates nudging also motivates what may be called jolting — i.e. the design of choice content. I defend nudging and jolting by distinguishing them from the sometimes oppressive means with which they can be implemented, by responding to some common arguments against nudging, and by (...) showing how respect for preferences over option sets and their aggregate properties may require the trimming of option sets, as well as helpful choice contexts. (shrink)

A central question that arises when interpreting the U.S. Constitution is which theory of interpretation is the best? In his recent book, “How to Interpret the Constitution,” Cass Sunstein reviews various theories of constitutional interpretation currently in vogue and then offers what he believes would be the best approach going forward. In this Article, I want to take up a more basic question presupposed by the very idea of a theory of interpretation. That is, whether it is even possible (...) to arrive at more than a provisional understanding of what would be the best interpretation in any given area of study, including constitutional law. That said, I do believe some of the interpretations suggested by Cass Sunstein and elsewhere by myself and others to be more persuasive than most others, even if only partially so. For, as Sunstein himself points out, no theory seems perfect to figure out the Constitution’s meaning in every possible world in which we could imagine it to exist. So, we best just focus on our own world or what we take to matter in our world. In keeping with this idea, I plan to begin by looking first at how we might interpret the world around us based on our past experiences by considering a somewhat imaginative recent experience of my own. Next, I consider some recent studies in the neurosciences and a previous but highly influential article by the philosopher Donald Davidson concerning conceptual schemes and whether we could ever hope to make any sense of a scheme radically different from our own. Here it should be pointed out that I will use the word “scheme” when referring to a very broad system of thought for which there may not be much outside, versus when I use the word “framework,” as referencing something far narrower than a whole system of thought, even if what is referenced might purport to be a significant part of a still larger system. My goal is to eventually adopt John Rawls’ public reason method to separate out non-workable systems of thought as might be part of a particular religious or philosophical tradition that cannot be easily tied to any other system of thought easily imagined within a pluralistic society. I plan to do this by relating how Rawls’ public reason might allow for the creation of a moral interpretation of the Constitution adopting the moral theory of Alan Gewirth. The latter I adopt because its grounding does not presuppose any prior moral or religious framework. I then apply that interpretative method to five cases Sunstein believes are fixed points in our current constitutional understanding. In short, I plan to isolate out an area of human rights where even very different understandings of the world might be able to meet, while acknowledging that there will still be other areas that simply evade any common connection. I hope what I offer here to be of help for a theory of constitutional interpretation that focuses on morality, without having to compete with various religious frameworks going forward. (shrink)

From the outset, critical social theory has sought to diagnose people’s participation in their own oppression, by revealing the roots of irrational and self-undermining choices in the complex interplay between human nature, social structures, and cultural beliefs. As part of this project, Ideologiekritik has aimed to expose faulty conceptions of this interplay, so that the objectively pathological character of what people are “freely” choosing could come more clearly into view. The challenge, however, has always been to find a way of (...) doing this without arrogantly assuming special access to what is good for people. And this danger of paternalism is one to which social theorists have all too often fallen prey. In this brief essay, I focus on contemporary instances of clearly self-defeating behavior in contexts of complex choices. I begin by discussing a recent attempt to diagnose and solve these failures of choices, namely the public policy recommendations of behavioral economist Richard Thaler and reform-minded legal theorist Cass Sunstein. Their influential “libertarian paternalist” approach is particularly interesting, both in what it includes (attention to the socially constructed nature of choice situations and the roots of the problems in human nature) and in what it leaves out (an understanding of the social construction of human nature and an adequate appreciation of the value of autonomy). After discussing it, I consider a broadly perfectionist alternative, to the effect that the problem lies in a failure to adequately appreciate the importance of developing autonomy. I then turn to sketching the outlines of a new approach, based on the concept of “autonomy gaps,” which approaches overly demanding policies in relational and action-theoretical terms. In the final section, I show how this provides the basis for an analysis both in terms of a critique of ideology and of social pathology. (shrink)

The urgent importance of dealing with the climate crisis has led some influential theorists to argue that at least some demands for justice must give way to pragmatic and strategic considerations. These theorists (Cass Sunstein, Eric Posner, and David Weisbach, all academic lawyers, and John Broome, an academic philosopher) contend that the failures of international negotiations and other efforts to change economic policies and practices have shown that moral exhortations are worse than ineffective. Although Broome's position is similar in (...) these respects to that of Sunstein, Posner and Weisbach, it differs in other important respects, including his understanding of the idea of justice, his disagreement with the policy approach (which he calls "efficiency with sacrifice") favored by the economists Nicholas Stern and William Nordhaus, and his proposal for establishing a new international financial institution, a World Climate Bank, in addition to putting a price on carbon. Elsewhere I offer a critical analysis of the position taken by Posner and Weisbach in their book, Climate Change Justice. Their arguments against allowing principles of distributive justice (narrowly understood) to constrain treaty negotiations fail to rule out the principles of John Rawls' Law of Peoples (which is a conception of the moral basis of a just international order, including states' obligations to secure basic human rights for all). Therefore their arguments against shaping climate treaties to reflect any principles of justice do not succeed in supporting their position. Here I offer a critical analysis of Broome's position. I raise and discuss objections to Broome's proposal for a WCB, and I argue that the continued relevance of these objections is contingent on how the proposal for a WCB may get developed. (shrink)

Advances in cognitive and behavioral science show that the way options are presented—commonly referred to as “choice architecture”—strongly influences our decisions: we tend to react to a particular option differently depending on how it is presented. Studies suggest that we often make irrational choices due to the interplay between choice architecture and systematic errors in our reasoning—cognitive biases. Based on this data, Richard Thaler and Cass Sunstein came up with the idea of a "nudge," which they define as a (...) small change in the choice architecture that steers people towards certain choices without limiting their options. Central to the debate on nudging is the question of when, or under what circumstances, it is ethical to nudge someone. Proponents of nudging argue that for ethical nudging, the nudge must be (1) easy to resist and (2) aimed towards the welfare of those nudged (nudgees). In this paper, I argue that this criterion excludes nudges that are both intuitively permissible and broadly accepted. I propose an alternative set of sufficient conditions for ethical nudging that expands the domain for the ethical application of nudges. My “no harm” criterion states that for a nudge to be ethical, the nudge must (1) be easy to resist, and (2) produce no significant harm for the nudgee. I identify three types of such nudges: Choice Architect nudges, Third Party nudges, and “Meh” nudges, and offer examples for each. (shrink)