Non-Individualism, Rights, and Practical Reason

Non-Individualism, Rights,and Practical Reason

GEORGE PAVLAKOS*

Abstract. The paper looks at an impasse with respect to the role of rights as reasonsfor action which afflicts contemporary legal and political debates. Adopting ameta-ethical approach, it moves on to argue that the impasse arises from aphilosophical confusion surrounding the role of rights as normative reasons. Indispelling the confusion, an account of reasons is put forward that attempts tocapture their normativity by relating them to a reflexive public practice. Two keyoutcomes are identified as a result of this explication: first, that normative practicesare instances of rule-following; and second, that agents partaking of normativepractices possess absolute value (i.e., acquire the status of persons). In light of thisexplication, rights acquire the status of the most general reasons that purport toguarantee the content of personhood by specifying and safeguarding conditionswhich enable agents to participate in public practices of universalisation.

1. Introduction

The account of rights put forward in this paper is meta-ethical in character.By this I mean that it aims to investigate the status of reasons we employwhen we subject human rights norms to prescriptive use. As such, it doesnot engage directly with the content of first-order substantive reasons fromrights, but instead focuses on second-order conditions of validity for thosereasons, in other words on what makes them appropriate as the kind ofreasons they are. I believe there are two benefits from this enterprise: On

* Funding for this paper was generously provided by the Alexander von Humboldt Stiftung.The paper has benefited from comments on a number of public occasions: the MultidisciplinaryConference on “Individuals vs Communities,” organised in July 2006 by the Utrecht NetworkSummer School in Human Rights in Ripatransone (Ascoli Piceno, Italy); and a three-dayseminar on Normativity organised in July 2006 by the Forum of Law and Philosophy at the chairof Legal Theory and Public Law, University of Kiel, Germany. Finally, a one-day conference onNormativity, hosted by the University of Birmingham on behalf of the Forum of Law andPhilosophy. The author is greatly indebted to the organisers and participants of the aboveevents. In addition, I would like to thank Sean Coyle, Carsten Heidemann, Stefano Bertea, ClaireGrant and Koen de Feyter for having read and commented on the paper.

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© 2008 The Author. Journal compilation © 2008 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and350 Main Street, Malden 02148, USA.

the one hand, it may function as a standard for scrutinising the substantiveunderstandings of rights that are dominant in contemporary debates. Themain focus, in this respect, will be placed on the communitarian critique ofliberal conceptions of rights. Despite the fresh impetus communitarianshave brought into debates on rights, their critique has left undecided anumber of important questions that bear on our understanding of rights.Such questions cover a wide range of topics, from the justification of rightsand their ranking relatively to other political values, to the issue of bearersand the scope of protection human rights afford. To the extent that suchquestions determine our practice of human rights, any conceptual tooladvancing answers in this domain would be of obvious value. The meta-ethical treatment of these questions has the advantage of revealing generalstructural characteristics that must be possessed by anything that purportsto be a normative reason for action, including rights-based reasons. As faras this goes, the meta-ethical analysis will be shown to cut across substan-tive disagreements on rights, thereby helping us to rule out substantiveunderstandings of rights that fail to advance reasons for action proper.

Secondly, on a note most doctrinal lawyers may find pedantic, the paperillustrates that, contrary to recent claims, it is possible to engage inmeta-ethical analysis without missing what is important about (practical)reasons. The opposite claim, advanced by among others Ronald Dworkin,involves the view that any meta-ethical analysis of law or any otherpractical domain robs reasons of their substantive character, by attemptingto explicate their normative force in a neutral or dispassionate language(Dworkin 1996). If my analysis is correct, it turns out that, contrary to thissimplistic view, normativity is a category which escapes the boundaries ofethical-political action and refers to a more fundamental level of activity,that of reflexive intentional activity (in short, judging). Judging is arule-governed practice which underpins our appreciation of any kind ofreason, including legal and moral ones. On the face of it, substantive moraland legal reasons can claim credence, just in case they can satisfy thepatterns of the fundamental practice of judging. Moreover, to the extentthat the practice of judging corresponds to a particular understanding ofdeliberators as persons, rights-based reasons must abide by the basicrequirement of personhood.

The order of the discussion unfolds as follows: After laying down somegeneral requirements for something to constitute a normative reason foraction, the paper proceeds to illustrate the weaknesses of an individualistconception of reasons akin to the one pertaining to liberalism. In a furtherstep an alternative non-individualist explanation is put forward, one thatborrows a number of insights from the debate on individualism in con-temporary philosophy of mind and language; non-individualism in thiscontext is the view that in order for rights to constitute normative reasonsthey must be conceived of as arising from a public practice which is

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responsive to reasons (i.e., reflexive). In conclusion it is argued that allthose who partake of such a practice acquire the status of persons.Personhood is a normative concept that cuts across the divide betweenindividuals and communities and, for that reason, can play the role ofalleviating the potential tension arising between those two concepts.

2. Conditions of Normativity

In a first instance it is of relevance to assess the conditions for somethingto be a normative reason. An exploration of such conditions aims atilluminating the circumstances under which rights may retain their char-acter as standards that may feature in justifications of action and delib-eration. The first condition is normative relevance, in other words, theaffinity reasons must bear to subjects of action and deliberation (agents).For the purposes of the present discussion this affinity can be simplified asthe capacity reasons must possess to motivate agents. A second conditionis to be found in the requirement of objectivity. Disregarding the plethoraof topics potentially falling under this subject, two shall be highlighted inthe present context: stability and externality. Reasons must be relativelystable and, at the same time, retain a relative distance with respect to thecontext of deliberation/action they are employed in. Let us ponder on eachof the two conditions in turn.

2.1 The Condition of Normative Relevance

First, a few words on normative relevance as a motivational force. For anynormative reason to develop a regulatory capacity over deliberation andaction, it is essential that it be connected to them. Such a connectionrequires an explanation of how reasons feature in the make-up of agentswho are the source of arguments and actions. In this context a theory iscalled for which would guarantee the proposed connection by constructingagents and reasons at the same level. There is a great temptation toconceive of such a connection at the psychophysical level: Along these linesagency is nothing but the collection of a certain type of mental states ofindividuals. In the history of ideas, such views have been associated withthe philosophy of utilitarianism. Utilitarian theory attempts to conceive ofreasons as psychological (mental) states expressing desires or other inter-ests, more or less well-defined (Laden 2005). Such individualistic concep-tions confine reasons to private entities. However, making out of reasonsa private vocabulary leads to an inability to communicate standards withincollective practices of deliberation/action. As a result, reasons are deprivedof their regulatory (or normative) force. A similar result obtains from anultra-rationalist conception of reasons: In this context reasons are con-structed as absolute mental formulas that possess an idealised, perpetual

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content which purports to regulate each and every situation.1 To thispicture is attached an idealised conception of individuals as absolutelyrational agents who partake of those formulas. Once again, the connectionbetween reasons and agents results from the privileged access they have totheir mental vocabularies.

It is not necessary for the connection between reasons and agents to beexplained at the level of individuals’ mental inventory—in fact this is amisunderstanding which, unless dispelled, is bound to jeopardise therequirement of normativity. Instead, it is possible to advance a normativeunderstanding of reasons that escapes the impasse of individualist ex-planations. This line of reasoning borrows elements from the philosophiesof Kant and the later Wittgenstein who, notwithstanding differences indetail, may be interpreted as pursuing a common line of argument for theexistence of a more basic layer of normativity that underwrites reasons aswell as agents. This level of normativity cannot be reconstructed byreference to mental states of individuals, but needs to be located in publicpractices of action and deliberation. Public practices bring home theaspect of normativity by establishing a conceptual link between indi-viduals and reasons: Membership in practices of deliberation and actionsubjects individuals to public reasons for acting and judging. Subjectionof this type upgrades individuals to agents capable of responding toreasons.2 Thus, within the realm of public practice, individuals are con-stituted as persons by being linked to reasons. Failing to do so wouldresult in slipping into a sub-normative level where action and delibera-tion dissolve into either psychophysical characteristics of bodies or emptyformulas of the mind.

2.2 The Condition of Objectivity

The second condition of normativity is objectivity. Objectivity comprisesthe requirements of stability and externality, both being conducive to theidentification of reasons with a relative certainty.3 Reasons remain stablewhen they retain their content across a number of situations and contexts.On the other hand externality commands that reasons retain a relativedistance vis-à-vis the various contexts of action/deliberation. Such distanceis valuable in allowing agents to criticise, improve or even revise thosecontexts. Objectivity, in either of its aspects, need not be conceived of in

1 This is more or less the philosophy of Platonism. Here reasons resemble rigid tracks thatextend into the future in an a priori manner, allowing us to predict the right answer/actionfor any possible situation. The futility of this view, otherwise very important for the historyof ideas, should be obvious.2 In parts 4 and 5 the concept of the person is introduced to denote such reason-responsiveagents.3 I borrow the two conditions from Laden 2005.



rigid terms. It is not required, in other words, either that reasons remainunchangeable or that they be a priori, independent of any context ofapplication. Extreme rigidity is detrimental because it renders reasonsunworkable as normative guidelines. This is common to all rigid standardsfor such standards fail to live up to the dynamism of actual contexts ofaction and deliberation and, as a result, break down. Standards whichbreak down, however, are prone to invite indeterminacy and scepticism asregards the domain they are employed in.

Typically, rigid formulations of objectivity are the result of individualistconceptions of reasons. In conceiving of reasons as mental entities (be theypsychological states or a priori formulas) individualist conceptions give riseto a dualist ontology of reasons that is prone to lead to indeterminacy andscepticism. Dualism in this context signifies a division between, on the onehand, what is in minds and can be readily known by agents and, on theother, what is outside minds and may remain elusive forever (Brink 1989;Stavropoulos 1996; Shafer-Landau 2003). While individuals are relativelyconfident about what is in their heads, they might end up engaging inhopeless efforts to determine what can be shared with other minds in termsof reasons for deliberation and action. As a result, insistence on conceivingof reasons as all-too-certain mental constructs is bound to lead to extremeforms of scepticism, where it becomes impossible to determine what isnormatively required outside the mental realm of individuals.4 This inabil-ity causes loss of normativity and retreat to the sub-normative level thatwas warned against earlier on.

Notably, individualism and the attendant effect of dualism has in recentyears been criticised as giving rise to a dualism between conceptualscheme and content. This is the idea that there exists a stable parameter(conceptual scheme) available to minds that plays the role of an interpre-tive matrix by which individuals interpret their surroundings. This viewleads to the problematic conclusion that there are as many conceptualschemes as there are persons. Yet, no sooner has the plurality of conceptualschemes been granted, than the sceptic can argue that any reason putforward to support an interpretation is merely a subjective construct whichundermines the idea of objectivity. But if all we are left with are subjectiveinterpretations, how can we remain confident that our reasons are genuine,let alone shared by others?

Contrapositively, a more workable conception of objectivity requires thatreasons be more fluctuant, capable of adjusting to particular contexts ofapplication, albeit ones that are held together by reference to a sharedpractice. Here the two conditions of objectivity are sufficiently satisfied:On the one hand, stability, although somehow relativised, is still at hand,

4 Sean Coyle has pointed out to me the excellent discussion of solipsistic or individualistreasons in Simmonds 1993, 56–9.

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for it attaches to the continuity of a practice. On the other, externality is stillavailable, as even though it is no longer an option to occupy anArchimedean point of view, it is possible to assess reasons by comparingour beliefs about what constitutes a reason with the public space of reasonsmarked out by practices.5 This non-individualist strategy of casting reasonsis much more durable than the strong perception of objectivity thatindividualism solicits. Its strength lies in its ability to combine objectivitywith a certain amount of fallibilism6: As they are public, practices establisha connection between minds, thus preventing a mind-world gap. Anythingthat may potentially be cognised by minds as being a reason exists outside,in a public space of which all minds partake. To that extent the conditionof externality turns into the much more modest claim that reasons occupya public point of view over and above subjective states of individuals. Thatsaid, reasons can never become elusive or unknowable for, on the non-individualist model, minds are constitutively embedded in practices. Onthe other hand, reasons are not perfect but evolve along with the practicethat generates them: Sometimes agents may discover that what theythought all along to be a reason turns out not to be one, or that it is in needof modification in the light of some aspect of the practice they had so farfailed to consider (or, again, in the light of a set of competing reasonsbelonging to another practice). To that extent the stability of reasons is notabsolute but resembles more an inertia (Laden 2005, 102) associated witha smooth transition to new or even different formulations of reasons. In theend, sacrificing a portion of the objectivity of the individual point of viewmay disarm the devastating attack of scepticism.

In the following two sections, I set out to discuss the individualist andnon-individualist conception of rights with a view to demonstrating that itis only the latter that manages to live up to our reasonable intuitions aboutthe justificatory function of rights as normative reasons.

3. Individualism and the Private Conception of Rights

The individualist conception of rights arises from a number of powerfulinterpretations of the individual prompted by the anthropocentricism ofthe philosophy of the Enlightenment. In their effort to supersede theologi-cal and other metaphysical interpretations of human nature and societalformations, philosophers after Hobbes relocated the epicentre of philo-

5 In part 4 we shall see that there is a further meaning of externality made available bynon-individualists: One set of reasons may be assessed by reference to another set, byswitching between different practices.6 Most remarkably scepticism is most effective where there is no room for fallibilism, for thelatter is capable of explaining away the doubt that sceptics implant in strong conceptions ofobjectivity: Williamson 2000, chap. 8.



sophical enquiry from god and nature to human subjects.7 In moral andpolitical philosophy, this shift gave rise to an understanding of normativereasons that involved a strong reference to individual characteristics. Wemay distinguish between two large categories of individualist interpreta-tions of reasons, depending on the understanding of the individual each ofthem relies upon.

On the one hand, idealist interpretations rest on a representation ofindividuals as embodying a perpetual ideal: Far from being understood intheir societal and natural contexts, individuals are conceived of as embodi-ments of an abstract and perfectly rational subject who is disjoined fromany particular characteristics such as pertaining to a member of a group,community or political formation. In this context rights are understood asfixed universal standards that pertain to subjects so conceived, possessinguniform content irrespective of the particular situation in which they areevoked, or the social context that produced them. On the other hand, amore pragmatic interpretation builds on the psychophysical characteristicsof individuals, their mental states, inclinations and interests. What mattersmost in this interpretation are the particular characteristics of subjects thatare deemed to be determinant of the content of reasons, usually along thelines of a hedonistic calculus.8

Both versions of individualist interpretations of rights fail to representthem as normative reasons for action. First and foremost, they fail on thelevel of objectivity. It is rather difficult to see, on either the idealist andpragmatic interpretations, how any of the properties that are deemedrelevant may be communicated to agents in a manner that is normativelyefficacious, along the lines sketched earlier. In the case of idealism, theproblem arises with respect to the possibility of communicating an a prioriformula which lies over and above the cognitive capacities of any particu-lar individual or group of individuals (i.e., community). As remarkedearlier, such strong presuppositions are bound to undermine any prospectfor objectivity and, instead, invite indeterminacy and scepticism. At thesame time reference to the persons’ psychophysical states does not amountto much more either. Due to their subjective character, such states tend tobe too fluctuant to consolidate normative contents that could be commu-nicated to agents in a manner that would fulfil the conditions of stabilityand externality that objectivity requires.

7 This is true of Hobbes and other voluntarist philosophers only to the extent that volunta-rism, in shifting the source of authority from God to the Sovereign, was seeking ananthropocentric explanation of authority, albeit without decisively challenging the metaphy-sical groundwork of the command model of authority. Many thanks to Sean Coyle forhaving pointed out the crudeness of the original formulation.8 This version of individualism comprises most utilitarian projects in moral and politicalphilosophy; see Laden 2005.

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One possible strategy for retrieving objectivity in relation to individualistreasons is to recast them as mental states pertaining to collectives (Laden2005, 350). Disregarding any metaphysical and ontological complexitieswhich saddle such a project, there is a more straightforward source ofscepticism: If we make out of the collective a new type of subject, say asuper-subject, how would this connect with individuals? Once again, theproblem of indeterminacy arises, for the same problems pertaining to theeffort to communicate private mental states reappear when we try tocommunicate the states of a super-subject. Unless, of course, we assumethose states to be mere aggregates of individual mental states, in whichcase we are running round in circles, with no hope of escaping theconundrum in the first place. Far from suggesting that we should give uphope, those difficulties underline the urgency for addressing the public orcollective aspect of rights. Individualist explications are not only flawed,but also highly detrimental because of their tendency to obliterate an entireclass of public or social reasons which we usually associate with rightsdiscourse. Such reasons arise with respect to the various social roles weoccupy as a result of our membership in various collectives. These rangefrom roles in the family to roles agents acquire as a result of theirmembership of groups, associations, nations and states. In filtering suchroles through the viewpoint of individuals, individualism suspends thevalidity of social reasons over reasons individually conceived and, as aresult, deprives them of their normative authority. When, due to theshortcomings of individualism, individually conceived reasons fail to benormative, we also lose hold of the former. Were this irreversible, ournormative lives would be radically impoverished. Fortunately, as I shallargue in section 4, individualism is not the only option for understandingrights-based reasons.

Moving on from the failure of individualism to account for objectivity toits failure to account for the normative force of reasons, the followingremarks are due: Reasons individualistically conceived fall below thethreshold of normativity by virtue of their failure to motivate agents. Asremarked earlier, for anything to constitute a reason for action, it must becapable of standing in a motivational relation to agents by presenting themwith a reason to act. Conversely, individualist reasons, be they psycho-physical states or idealist abstractions, fall short of aligning themselveswith a normative self-understanding of agents, such that would requirethem to act on reasons. The reason is that the properties such reasons selectas being normatively relevant actually fail to rise above the sub-normativelevel of empty idealisations or contingent facts about individuals’ psycho-physical states. Most notably such properties, lacking normativity, requireto be combined with genuine normative reasons in order to develop anymotivational power. In fact, individualist theories themselves frequentlycommit the fallacy of evoking such genuine normative reasons over and



above individualist reasons with a view to redeeming normativity. In thisvein, hedonistic philosophies often distinguish between genuine and non-genuine desires. While the former constitute proper normative reasons, thelatter correspond to states that are not genuinely normative but at mostrelate to causal triggers for action (such as instincts or cravings; Laden2005, 350). However, no sooner has the distinction been introduced, thanone realises that what actually constitutes a motivational reason is not whatthe hedonist labels “genuine desire” but, instead, the criterion she uses forarriving at her distinction; in which case, of course, the hedonist explica-tion of reasons goes over board. Mutatis mutandis, similar conditions applyas regards abstract idealist constructions: These must remain empty ofmotivational capacity insofar as they embody a formula that is inaccessibleto agents and, hence, devoid of any substantive evaluations.

In view of the above, it should not come as a surprise that individualistexplications of rights have been attacked from many directions. Mostprominent among them have been communitarian attacks that emphasisethe need to conceive of rights as public standards arising from the mem-bership of a collective. Although not every communitarian view succeedsin accounting for the normativity of rights in the end, the idea of rights aspublic reasons turns out to be particularly fruitful for a normative accountof rights, as the next section argues.

4. Non-Individualism and the Public Conception of Rights

In this section I outline the basic tenets of a non-individualist conceptionof rights. Communitarian critiques of rights may serve as the starting pointfor the discussion. In the present context “communitarian” stands for anymovement in legal and political philosophy that questions individualistparadigms of rights by arguing that what determines the content of rightsis membership of a group, practice or community.9 Such communitariancritiques have frequently been cast in terms of ideological criticisms, notalways managing to rise above the level of a set of amorphous polemicalremarks. Most notably, their failure amounts to a lack of a normativeunderstanding of reasons and the agents who handle them. In whatfollows, I reserve the term “communitarianism” to characterise any suchtheory. Although communitarianism ultimately fails, it possesses a lot ofnegative value, for it can teach us a lot about what an adequate accountof rights should avoid. In contradistinction, I shall take up a second typeof non-individualism in respect of rights, which I shall call “the practice

9 For present purposes I take communitarian critiques to comprise feminist, Marxist and othercritical theories which argue that normative contents (reasons, rules, and principles) cannot beunderstood in isolation from agents’ membership of some social group (be it gender, class, orother). For a succinct introduction to such theories see Douzinas and Gearey 2005, chaps. 8–11;Mullally 2006; Tushnet 2005.

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theory of reasons” or simply “the practice theory.” The practice theory usesmost of the basic intuitions of the communitarian critique but movesbeyond it, in that it attempts to advance a non-individualist conception ofrights that is normative as opposed to slipping into a sub-normative level.Although this theory utilises many intuitions of the communitarian cri-tiques, its aim is to work out an understanding of non-individualism thatis normatively efficacious. The practice theory, as opposed to communi-tarianism, gives us reasons to hold on to the legitimating power of rightsas normative reasons.

4.1 Communitarianism

4.1.1 Mental Constructs and Indeterminacy

In spite of its valuable critical stance, communitarianism remains open tothe same criticisms it advances against an individualist model of rights.

First it may fail to provide an adequate ground for switching from theindividual to the collective point of view. In particular, it is not clearwhether communitarian reasons manage to add up to anything more thanmental constructs akin to individualist reasons. When we discussed objec-tivity as a condition of normativity earlier on, we pointed out that privatemental constructs are futile as reasons for action and deliberation, for theinability to share them with others effects indeterminacy and scepticism.Similarly, the communitarian critique of rights needs to explain how andwhether collective (or social) reasons can be shared amongst agents.Communitarianism has little to offer in this respect, for its propositionsusually remain at the level of rhetorical argument. To begin with, there islittle in communitarian ideas that guarantees that the collective is not itselfa mental construct (“community,” “woman,” “man,” “nation,” and so on),in fact one that is merely juxtaposed in a polemical way to liberalidealisations. Usually such constructs are supposed to explain what it“really means” to belong to a particular collective, as opposed to thesimplifying generalisations of liberal theory, and to lay down reliableguidelines for spelling out normative claims. However, there is nothing inthose accounts that rules out the possibility that such collectives are notthemselves another type of mental construct, merely purporting to replaceold ones. Such a possibility evokes anew the danger of dualism and theconcomitant loss of determinacy and objectivity.10

10 See section 2.2 above. This possibility remains open even if collectives are explicated asaggregates of their members. This strategy has been most commonly exploited by utilitarianphilosophers who argue that collective normative reasons must be validated from theindividual point of view (Laden 2005, 333–5). Clearly, here, the dualism that saddles theindividual viewpoint resurfaces at the level of collective reasons with all the familiar problemsarising.



4.1.2 Loss of Normativity: The Sub-Normative Level

In spite of the inability of communitarian reasons qua mental constructs toescape indeterminacy, there is a deeper and more devastating threat forcommunitarian perceptions of rights. This relates to the way communitar-ian critiques conceive of the social group, membership of which is sup-posed to bring home the non-individualst interpretation of rights. Usuallysuch theories insist on constructing membership at the level of descriptivefacts, be they psychological or of some other sort, the result being that suchfacts fail to explain why this kind of membership might amount to anynormative or action-guiding force as regards deliberation and/or agency.Typical examples here are gender-based explications of rights buildingtheir interpretation on an exaggeration of the psychophysical componentsof gender (e.g., bodily characteristics or other “special” interests pertainingto each gender). The same holds for communitarian critiques that focus onparticular empirical characteristics of social groups (like religion, culture,or some other “collective” feature), and then attempt to draw normativeconclusions. A further example pertains to some positivist explanations ofrights in legal theory and philosophy.11 Here rights are defined with thehelp of a complex social rule which operates as a general formula inidentifying a series of facts that must obtain for a normative reason tocome in force. Such facts usually include acts of officials, procedures inParliament, and the case law of certain courts. The main flaw of all of theabove conceptions of rights is their failure to explain how reasons acquirenormative force. If membership of a community depends on when certainfacts obtain, then it is not possible for the category of membership to setnormative standards for deliberation and action. Let me demonstrate thispoint in more detail by taking issue with either of the two forms thecommunitarian argument most commonly takes.

The first results from saying that a reason is whatever we can predictpeople in the community will treat as a standard for deliberation andaction. The dimension of prediction is supposed to provide for a regularitywhich aims to redeem the normative content of reasons (Leiter 2005).Obviously such a contention is defective unless it is supplemented with asufficient criterion of prediction: If the criterion is the reason itself, then theargument is circular. If, on the other hand, the criterion of prediction canbe set apart from the reason predicted by virtue of its standing on adistinct, non-normative level, then it may stand, at most, in a causalrelation with the reason. But proclaiming a non-normative basis for anormative reason will lead to a slide into the sub-normative level and thedeterioration of the justificatory role of rights.

11 Although I have in mind Herbert Hart’s version of positivism, I believe that, mutatismutandis, his analysis is still representative of most contemporary forms of legal positivism.As regards his analysis the most pertinent parts are chaps. 5 and 6 of Hart 1994.

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The second is to say that something is a reason insofar as it has beenvalidated by the community. The idea of validity is more sophisticatedthan that of prediction. It rests on the concept that the fact of acceptanceby a community confers normativity on reasons.12 A typical concomitant ofthis idea is the existence of a non-normative test for identifying thecommunity whose acceptance confers normativity on reasons. Such a testis based on a series of factual criteria that purport to capture conditions ofmembership to the reason-giving community. Suppose, for instance, that Iam pondering on my duties as a parent. The first step is to consider the setof reasons families accept as valid standards of action and deliberation.The next step is to identify conditions for family membership (e.g., degreeof relationship; biological links, and so on) and decide whether I fall underthem. In this setting, the normative force of those reasons depends reallyon the facticity of their acceptance by the relevant collective (family) plusa series of criteria of “familyhood.” The principal problem of such aconception is that it purports to substitute a formal test of communitymembership for a more principled analysis of how and why reasons areaccepted by that community.13 This is how: The validity conceptionassumes reasons to be generated at a very basic level from the fact that acommunity endorses them. In being basic, this act of acceptance/endorsement is a non-analysable feature of normativity, or of what makesreasons standards for action and deliberation. However, such a view isproblematic insofar as it makes reasons dependent upon what the com-munity happens to think or do at a given time; which in a sense impliesthat the community can never be in error. But such a statement would mostdefinitely run against our intuition that normative reasons possess a degreeof stability and externality that raises them above the most particular ofcontexts. So where do we look for a firmer foundation for reasons? Unlessa retreat into private mental states or idealised stereotypes were to obtain,the next possible point of reference is the set of conditions that bring aboutmembership in a community. Such conditions have the obvious advantageof affording a high degree of determinability, owing to their descriptivecharacter. By confining ourselves to criteria of membership, the validityconception is able to identify with certainty the space of reasons, i.e., thepractice of the community those criteria circumscribe. Moreover, one neednot go into detail with an analysis of how and why communities validatereasons. It suffices that they do so. Another advantage of this view is thatit makes reasons extremely flexible, for it allows them to adjust to theways the community adapts to new situations. In a nutshell, the validity

12 This idea lies in the core of conventionalism: that normativity amounts from a conventionwhose core characteristics are non-normative (contingent or random).13 A principled analysis of acceptance would be required for a demonstration of the norma-tive relevance of reasons, as pointed out earlier in part 1.



conception explains away normativity by delegating it to a membershipformula that is descriptive in its essence.

The problem with any such formulas is that, inasmuch as they aredisjoined from the reasons the community accepts as valid standards foraction and deliberation, they are likely to be empty. Instead of beingcapable of offering a normative foundation suitable for motivating agents,they end up representing a random collection of facts that is unable tosupport the idea of normativity and justification required by thinking andacting for a reason. Notably, the most common symptom of this pathologyare so-called hard cases: These are cases where the community is at oddsabout the content of a reason, as a result of the unprincipled understandingof the process of validation. To take up again the example of parenthood,a hard case would arise if the membership formula excluded same-sexcouples while the issue at hand was about the right of parents to adoptchildren. As long as this right is considered on a validity basis, it would behard to arrive at a principled solution, other than quoting or repeating theelements of the membership formula. But would our doing so constitute agenuine instance of deliberation/action? In this and similar cases, thedifference between acting/thinking for a reason and acting/thinking for noreason (which amounts to no acting/thinking at all!) is not at all clear.Orienting oneself to validity might make one aware that there is nothingleft with which one can align one’s reasoning and action.

4.2 The Practice Theory

In contradistinction, the practice theory represents an understanding ofnon-individualism which aims to preserve the normativity of reasons:What is sought here is a conception of reasons which may conceive of theirnormativity in a principled manner. In steering this course, the practicetheory purports to escape the Scylla of individualism and the Charybdis ofcommunitarianism. While the menacing face of the Scylla consists in thefailure of individualism to communicate normative standards conceived ofas abstract constructs, the devastating Charybdis of communitarianismdisables normativity for, instead of conceiving of reasons as a matter ofreflexive knowledge, it makes them a matter of uncritical (random) accep-tance or convention on behalf of the community in question. An attemptto restore the lost normativity of reasons would probably call for a lengthyline of reasoning. For the purposes of this paper, I shall confine myself toa rough outline, albeit one that lays down all the steps of the argument,putting off an in-depth analysis of each one of them for a future occasion.

What marks the practice theory a “healthy” version of non-individualism is its ability to conceive of reasons in a normative manner.As pointed out earlier, normativity poses two requirements: motivationalrelevance and objectivity. The practice theory aims to live up to the

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challenge of both these conditions by connecting reasons to public practicesof deliberation and action. Such practices preserve objectivity because theydo away with the scheme-content dualism that pertains to communitarianconstructions of subjects of rights; on the other hand practices preservenormative relevance for, in contrast to prediction- or validity-based under-standings of community, they remain responsive to reasons in a mannerthat is irreducible to any other type of descriptive, non-normative facts (bethey conventions, predictive data or other). To that extent, it would not bean exaggeration to argue that normativity is gained through publicity.Finally, in conceiving reasons and agents at the same level, practices forgea normative understanding of agents as persons (next part).

4.2.1 Objectivity

First some remarks on the ability of public practices to guarantee objec-tivity. This ability springs from a decisive rejection of dualism in the formof the scheme-content dichotomy touched upon earlier. One way to con-ceive of the dichotomy is in terms of the distance between two domains:The domain where reasons are cognised and the domain in which reasonsare applied. On this reading, while reasons (be they mental constructs,rational formulas or interest related justifications) can be cognised withreference to a distinct realm, their application requires a separate intellec-tual process, consisting of the matching of cognised reasons with actualsituations that stand in need of regulation. Such a picture is doomed tofailure, for any criteria conceived outside the domain they purport toregulate are bound to lead to radical indeterminacy and eventual break-down of the purported regulation. This is the result of almost any effort torestore a link between criteria/standards conceived of independently of adomain and that domain.14 Wittgenstein famously located this difficulty inthe effort to generate additional criteria or standards which are themselvesnot open to ambiguity and, as a result, capable of pulling off the trick ofconnecting the original criteria with the domain they purport to regulate.He argued that any such effort is bound to lead to a regress of interpre-tations, for there are no self-interpreting standards, hence each time therewill be a need for new criteria which represent an external ground formaking the required connection.15 This impasse pertains to individualist asmuch as communitarian reasons, for in both cases reasons are incapable of

14 One can imagine various degrees of complexity depending on the ontology of thestipulated criteria. If, for instance, those are mental states, such as individual or collectiveinterests, then two conditions must obtain: first it must be possible to communicate them toother agents and, second, there must be a link between the criteria and the case at hand.15 The same problem has arisen at the most abstract level of the problem of connectinguniversals and particulars: This is what is usually identified as the problem of the “third man”in the Platonic dialogues: This relates to the question “in virtue of what do properties(universals) connect with the particular objects that possess them?” For a superb analysis and



interpreting themselves, therefore they stand in need of connections withfurther criteria of determination.

Contrapositively, practice is in a position to dispose of a dualist under-standing of criteria, albeit without discarding the notion of criteria asnormative standards capable of generating objective (or interpersonal)judgements. This is rendered possible by the fact that the space of criteriaand, hence, reasons becomes public in a constitutive manner. What ismeant by this is that nothing individuals perceive as a reason can be soperceived independently of public practice. An alternative way to make thesame point is to say that reasons no longer require a matching of someinternal mental component with the public space of communication andaction, for their appreciation implies participation in a public space sharedbetween the members of a collective.16

Two consequences are worth mentioning in this context: First that thecontent of our reason-relating mental states (beliefs, memories, desires, etc.)cannot be conceived of independently of practices. My belief in reason R,far from arising from the matching of a mental component with the world,is shaped as a result of my partaking of a public practice of depictingreasons of the relevant kind. Linked to it is the further consequence thatthere is no Archimedean or final point of view (be it internal or external tominds) for validating reasons outside the practice that depicts them. Farfrom leading to circularity, this point brings home a new kind of objec-tivity: As the locus of the authority of reasons shifts from minds to thepublic space of practices, the possibility of error, criticism, improvementand correction is preserved in the space that separates less good frombetter understandings of the practice. This space can be representedthrough the dimension of “depth” as one that pertains to practices: Sincethey are deep, practices are not readily fathomable by the subjects whopartake of them17; in other words it will always be possible upon carefulreflection to “discover” that what someone (or even the community as awhole) perceived all along as a valid reason for action/deliberation mightturn out not to be one, or to be one in need of revision or improvement.18

Two reasons contribute to the dimension of depth: first the fact thatpractices add up to more than the mere aggregate of individual

a most illuminating survey of the problem in the history of ideas, see Davidson 2005,chap. 4.16 This rests on the philosophical view that mental states (beliefs, etc.) acquire their contentsas a result of a practice of rule-following: Wittgenstein 2001; Kripke 1980; McDowell 2002.17 This does not yet mean that the full depth of a practice is beyond the capacity of knowledgeof the agents that partake of the practice—such a view would imply that practices are (atsome level at least) hopelessly elusive, a claim that leads head on to radical indeterminacyand scepticism: Pavlakos 2007, chap. 1.18 The “rationalist” view of objectivity is the one that defends the possibility to reconstructcriteria of correctness without leaving the particular context of their application: Dworkin1977, 159–68; Burge 2006.

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viewpoints (had the opposite been true, then it would have been possibleto represent the point of the practice just by adding up individual view-points in a linear manner). Second, what makes practices deep is a factorof complexity: Practices are complex to the extent that they do not come ontheir own, but are linked together with a multitude of other practices (oftenpurporting to regulate the same subject-matter from a different point ofview) forming an extensive network of action and deliberation.19 It followsthat, although there is no external point of view for the evaluation ofreasons, the point of view of practice still allows for a degree of objectivity(externality and stability). In fact this type of objectivity, call it internalobjectivity, might be more effective than the more robust, albeit highlyfragile, objectivity relating to the individual point of view: There themeasure of correctness for reasons was confined to an idealised viewpointwhose access remained a privilege of individuals; here no one (not even anentire community) can claim access to the “whole truth”: In demarcatinga normative (public) space, practices rise above particular individuals oraggregates thereof, the result being that there remains a lot of room fordiscovery and improvement as regards rights-based reasons for action anddeliberation.

4.2.2 Normative Relevance

Most importantly, the rejection of dualism and the attendant avoidance ofindeterminacy lead to a fresh understanding of practice and community,such as avoiding interpretations that fall below the threshold of norma-tivity into the sub-normative level of description and prediction. No soonerare reasons plugged into the public space of practices than it transpiresthat what is basic, hence, unanalysable in respect of practices, are notfacts of validation or other prediction-generating data—along the linesof communitarianism—but, more interestingly, the ability of agents torespond to reasons. On this understanding, practice gives rise to a reflexiveactivity requiring agents to adduce reasons for the justification of theirthoughts and actions. Any other analysis of practice (such as recognition,convention, etc.) fails to preserve reflexivity as a result of its need to appealto bridging criteria that purport to connect agents with practice. However,such criteria are doomed to lead to a regress of interpretations that wouldundermine the reflexive (or normative) character of practice. Furthermore,holding on to sub-normative criteria is bound to undermine, alongsidereflexivity, any normative conception of community. For such a conceptionrequires that community generate a practice whose participants are

19 Most notably, all such practices are circumscribed by the most general practice of language.This allows for communication between the different types and levels of practice inside alinguistic community but also for the translation of practices across communities: Davidson1984; Pavlakos 2007, chaps. 2–4.



engaged in reflexive reason-giving. Take away the reflexive dimension, andcommunity becomes devoid of any normative meaning, such that couldgenerate a conception of rights capable of delivering legitimacy andjustification in legal and political discourse.

A most apposite concept for capturing the normativity (qua reflexivity) ofpractice is that of the rule. For in order to make sense of the fact that ourconcepts are not formed randomly as a result of a mechanic activity but,instead, in a principled manner, as part of a process of responding toreasons, it comes as an immense help to conceive of the practice(s) thatshape those concepts as embodying a normative pattern, a rule. Againstthe background of such normative patterns, agents appear to be acting fora reason as a result of their following the rule of the relevant practice.20

Thus, partaking of a practice means that one makes the rule of the practicea standard for one’s own agency. The rule indicates when one has a reasonfor doing something or for refraining from it. In this manner a connectionbetween reasons and action is established: When a reason obtains, one iscompelled to act in a certain way. Absent the reason, some other actionmight be pertinent. Along these lines rule-following becomes most appo-site for illustrating the normative character of practices, for it best capturesthe fundamental character of doing something for a reason (i.e., funda-mental in that it is not possible to go below that level of analysis). It wouldseem that at long last we have gained a better means for formulating whatdistinguishes normative from non-normative, as in predictive or validity-based, conceptions of practice: A conception of practice is normative if andonly if it exemplifies the idea of rule-following.

Thus, the preservation of a normative conception of practice and thekind of reasons it generates requires that rule-following be placed at themost fundamental level of practice. Any departure from it (towards criteriathat purport to regulate practice from outside, such as individualist,predictive or validity-based) amounts to a breakdown of normativity.

Adjacent to this reconstruction of communal practice is a normativeexplication of agency as personhood: Agents are here upgraded to persons,as a result of partaking of a rule-governed practice of action and delib-eration. In this context, personhood is a property that derives from theability to contemplate reasons and act/think upon them, rather than thecollection of a number of psychophysical features of individuals. In thisregard, there is room for further elaboration of the conception of theperson: Absent an ultimate, external point of view capable of representing

20 “Rule” here refers to the fundamental pattern that guides our judgements within anypractice capable of producing knowledge. In that respect, the idea of practice is consideredto underpin all forms of intentional activity (not just those linked to practical contexts). As aresult practice is the only means for delivering solid grounds for knowledge, by blockingsceptical, relativistic and reductionist accounts of intentional content: Pavlakos 2007, chaps. 4and 7.

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the ideal person, the features of personhood have to be located withinpractice, in the special interaction between reasons and agents.

In the part that follows I shall focus on two pivotal aspects of person-hood: On the one hand, the capacity to partake of reflexive rule-followingshall be demonstrated to bestow on agents a thin layer of autonomy. Onthe other, the idea that agents capable of rule-following possess absolutevalue, or are valuable-in-themselves. In this latter aspect, agents becomeautonomous in a robust manner. Notably, the robust notion of autonomydoes not arise until agents capable of rule-following engage in moral, legalor other evaluative practices. Be that as it may, evaluative practices areresponsible only for the full-fledged content of autonomy, not its coremeaning. The latter, as recorded, is already available in the most generalformulation of the idea of rule-following, irrespective of any practiceundertaking concrete evaluations.

As we shall see, a most interesting feature of personhood lies in itscapacity to mitigate the tension between communities and individuals.Persons, as opposed to individuals, do not stand antagonistically tocommunities, for they are already “inscribed” within a normative explica-tion of rights. By this I mean that, in order to conceive rights as normativepropositions, we have to point at a public practice whose participants areequipped with autonomy, in virtue of their capacity to make normativesense of that practice. It follows that, by the time one comes to “see” or“perceive” anything as a right, one has already internalised any normativeconstraints personhood might entail. In the end, there is really no tensionbetween individuals and communities, given that a normative understand-ing of rights requires that the two have been reconciled with one another.

5. Reasons, Persons, and Communities

The shift from understanding rights as private reasons to conceiving ofthem as public reasons effects a much deeper transformation of ourunderstanding of agents and their status, one that goes beyond theindividual-community divide. This transformation is brought home via theconcept of the person. Despite being a feature of individuals, personhoodis a normative concept which is linked with a non-individualist conceptionof reasons. As such it bridges the gap between individuals and commu-nities21 and reaffirms the pivotal justificatory role of rights in contemporarynormative discourses.

Roughly put, agents acquire the status of persons by virtue of theircapacity to handle reasons. This capacity renders them bearers of norma-tive value for, in handling reasons, they become absolutely valuable or

21 Albeit with communities understood as partaking of public normative practices as opposedto those envisaged by communitarianism.



valuable in themselves. Agents who engage in reflexive rule-following, Ishall argue, become autonomous in a minimalist sense, one that is linkedwith the very nature of rule-following. Moreover, by expanding on thisminimalist idea of autonomy, one can argue that the idea of rule-followingeffects a full-fledged notion of autonomy, which is capable of underpinninga more robust conception of the person. Notably, the latter possibilitybecomes available only with respect to evaluative or prescriptive dis-courses, where the activity of rule-following points at a principle ofuniversalisation as a requirement of normative validity, one that upgradesagents to persons by bestowing inherent value on them (persons asends-in-themselves).

The argument will be constructed in three steps. First, it will be shownthat reflexive rule-following constitutes a source of autonomy in a minimalsense. This will be demonstrated against a link between the concept of therule and such concepts as freedom and responsibility. The second steppurports to connect the idea of reflexive rule-following with what Kanttakes to be the supreme principle of morality. This move sets the back-ground for linking the idea of rule-following with a substantive notion ofautonomy. The connection is demonstrated against the idea of universali-sation. Although the latter is adduced by Kant to demonstrate validity-conditions for moral reasons, universalisation seems to perform a morefundamental function, consisting in its ability to capture what is specifi-cally normative about reasons in general. Drawing on a recent demonstra-tion of the ability of universalisation to ground the obligating force ofmoral reasons, I argue that universalisation pertains to reasons in generalas much as it does to moral ones. Consequently, insofar as we wish tocapture practices as instances of reflexive activity, it is necessary that weconceive rule-following as involving universalisation.

It is only through the third step of the argument that one arrives at a moresubstantive notion of autonomy and personhood. This step is the leastsatisfactory of the three, although it relies on an idea that seems to bewell-established in contemporary Kantian scholarship: This is the idea thatagents capable of universalising reasons are to be valued intrinsically. Kantargued for this idea by suggesting that the supreme formula of morality(the rule of universalisation) admits of an alternative, albeit synonymous,formulation, that it has become common to refer to as the formula ofhumanity as end-in-itself (Wood 2006, 342–80). Although the logical stepsthat lead to the alternative formulation wait yet for a full demonstration,I adduce a popular argument attributed to Christine Korsgaard whichroughly does the job. What is far more important in this context is theexistence of a widespread consensus amongst scholars that the capacity ofuniversalising judgements bestows on those who can exercise it moralvalue. Let this be considered to suffice for present purposes. If this isaccepted, then the practice of reflexive rule-following leads to a conception

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of agents as persons. Although personhood develops its full potential withrespect to practical reasons only, its roots lie already in the notion ofrule-following as an activity constrained by reasons, for only the latter cansupport the idea of a morality that is responsive to reasons, along the linesKant has argued.

5.1 Rule-Following and Autonomy

In what ways does the capacity of agents to handle reasons affect theirstatus? In previous pages the individualist and communitarian explicationsof rights were rendered incapable of capturing the idea of a normativitythat is bound by reasons. In rejecting such interpretations, a key role isplayed by the understanding that those conceptions, by eschewing anormative explication of reasons, run the danger of falling below thethreshold of a normative explication of practice. By contrast, the non-individualist reading that was advanced in their place made prominent therole of practice as a rule-governed activity that is constrained by reasons.22

The connection between the idea of rule-following and autonomy maybe best demonstrated through the kinship rules of freedom and responsi-bility. Succinctly put, rules imply that agents are left with a range of choicesas regards their application. Choice entails freedom to the extent thatagents can exercise their discretion with regard to the various possibleapplications of the rule. Theirs, however, is a bounded freedom, for agents,in exercising their discretion, remain answerable vis-à-vis the rule. In otherwords agents assume responsibility for their choice and, to that extent, areprepared to accept criticism or, at least, they think it appropriate that theyare under an obligation to offer reasons for their choice. It is in this specialinterplay of freedom and responsibility that autonomy substantiates.Notably this minimal notion of autonomy, or something close to it, washighlighted by Kant in his Groundwork for the Metaphysics of Morals whenhe discusses the capacity of thinkers to judge (Kant 1996, 391, 447, 453–4).23

In spite of its thin status, the wider implications of a minimal notion ofautonomy should not be underestimated: It may show that there is aminimum capacity of agents which, even if it falls short of making themfully autonomous, is nevertheless able to impose certain constraints onwhat can constitute a normative constraint within any practice. Theconstraints imposed on reasons by this minimal idea of autonomy may be

22 It is precisely because agents are involved in this activity that they end up partaking ofreasons.23 Onora O’Neill has convincingly suggested that Kant, in this and other works, advances apowerful argument for the unity of theoretical and practical rationality. On this interpretation,reasoning is deemed a practical activity, guided by the categorical imperative, which assumesthe role of a unifying principle of reason: O’Neill 1989, chap. 1.



explained in terms of a quality or property of reasonableness that agentsacquire through the capacity to judge. An argument demonstrating thisthesis may take the following form:

(a) To the extent that judging is a reflexive activity, it is about adducingreasons.

(b) It follows that those who engage in judgement confer meaning toportions of the environment.

(c) To that extent, anyone who engages in judging has the capacity toconfer meaning upon the environment—call this the property ofreasonableness.

(d) It follows that anyone who engages in judging is a bearer ofreasonableness.

(e) This implies that anything which purports to be a substantive reasonin the context of a concrete cognitive practice must preserve thereasonableness of judging subjects.

Conversely, a putative substantive reason which would lead to violationsof rationality would infringe on reasonableness and, therefore, would needto be disqualified from counting as one. Such violations usually occur asinstances of syntactic, semantic or pragmatic errors and can be illustratedthrough the form of an argumentum ad absurdum which spots an inconsis-tency (or contradiction) in the use of language (be it at the level of syntax,semantics or pragmatics: Apel 1980, 225ff.; Habermas 1992).

5.2 Rule-Following and Universalisation

Is it possible to press the meaning of autonomy further? This possibilitybecomes available when it becomes clear that the features associated withthe thin notion of autonomy (i.e., choice, freedom, responsibility) aremerely partial expressions of a more central phenomenon, namely thereflexive character of rule-following, which, in turn, stands for the norma-tivity of practice. So if one wished to specify further the notion ofautonomy, a good move would be to focus more closely on normativity. Isthere any way of explicating normativity in such a manner as to drawfurther insights with respect to the autonomy of rule-followers? A mostapposite idea for capturing the meaning of normativity, indeed one thathas a well-established meaning in the philosophical debate, is that ofuniversalisation. Although Kant originally employed universalisation inthe context of ethics and morality with an eye to stating an intrinsiccharacteristic of moral judgements, it is possible to work our way towardsa thinner conception of it, one that captures what is specifically normativeabout rules in general.

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Such a thin notion of universalisation pertains to a recent proposal inKantian scholarship which uses the idea of universalisation to capture theabsolute normative character of practical reasons. On this view (Kerstein2002, chap. 4), Kant chooses the principle of universalisation as thesupreme principle of morality because it is particularly apt in accountingfor the absolute normative character of practical reason. This is the require-ment that an act be correct only if backed by reasons that are inherentlynormative, i.e., that are not reducible to any other non-normative criteria.24

Most notably, Kant attempts to capture normativity through the idea ofduty. Along these lines he argues that, unless our acts are performed outof duty, they cannot be bestowed with moral worth (i.e., they are notcorrect). The idea of duty is further explicated through the law-likestructure of principles. It is the law-like form that may give rise to duties,for it is this form that captures the essence of normativity. Thus acting fromduty means acting from a law-like principle because the principle socommands. A further consequence of this requirement is that an act derivesits value not from its consequences but from the motive enshrined in theprinciple. Conversely, if the value of an act depended on its effects, thenthe act would not conform to the principle but to whatever randomoutcomes follow from it. But then, it would fail to have been performed outof duty. The gist of this argument is that in order to understand agency innormative terms, we need to relate its motives to a principle that isintrinsically normative. Famously Kant goes to great lengths to demon-strate that there exists only one principle that can live up to the require-ments of normativity. In his Groundwork of the Metaphysics of Morals heformulates this principle as a formal rule of universalisation (Kant 1996,421): “Act only in accordance with that maxim through which you at thesame time can will that it become a universal law.”

Leaving aside the specific reference to practical reasons, this way ofexplicating universalisation may turn out to be useful in demonstrating inthe most radical manner the reflexive (or normative) character of thepractice of judging. This demonstration will be crucial in attaching to thepractice of judging a full-fledged notion of autonomy, one that bestowsinherent value on all agents capable of reflexive rule-following.

In postulating that only maxims that can become universal laws mayunderpin action, universalisation expresses in the most succinct way anintuition that has been of great importance for the non-individualistconception of practice: that, namely, no reasons or criteria should guideconceptual activity (judging), other than those that may be shared within

24 Failure to specify non-reducible normative reasons would set off something like Moore’sopen-question argument which threatens normative standards with indeterminacy: Moore1968. Either this, or we would need to refer to a further reason or meta-reason in the light ofwhich the original reasons would regain normative significance.



the space of a public practice. This idea led me to reject private constructs,rationalist constructs and conventionalist descriptions as falling below thethreshold of rule-governed conduct. Thus it is possible to transcribe Kant’smoral principle in a manner that is in line with the intuition about thenormativity of intentional content: “Judge only in accordance to reasonsthat at the same time you can will that they be depicted as objectivegrounds for your judgement.”

Superficial objections aside, this reformulation of universalisation maybe utilised in order to pinpoint what is most fundamental about norma-tivity, namely the reflexive capacity to consider reasons for following (orabstaining from) a rule. This capacity is so central to rule-governed activitythat it permeates standards of any level or kind, be they reasons forjudging or reasons that lay down duties and obligations. At the same time,reflexivity is introduced at the most basic level through the practice ofjudging, and it is there that the idea of universalisation comes first intoexistence, even though in a minimalist manner.

5.3 The Formula of Humanity as an End-in-Itself

Universalisation shows that the reasons that constrain our judgments mustlive up to a certain standard: They cannot be conceived of as privatestandards or criteria, but instead as criteria that can be shared by everyparticipant in a practice. Now this type of constrained normative activityis bound to generate special standards with respect to normative questions.When I ask “what ought I to do?” my answer, in order to be in line witha normative activity, must denounce “private maxims” and abide by apublic rule. Along these lines, this first meaning of universalisation, the onepertaining to normativity in the most general sense entails a second, moresubstantive, meaning of universalisation, one that pertains especially tojudgements answering the question “what ought I to do?” In this contextnormativity generates duty/obligation by sanctioning only those moralrules that every agent would wish to become universal laws. This aspectof universalisation, Kant tells us, is capable of generating a more robustnotion of personhood in that it bestows inherent value on agents capableof answering the practical question.

To illustrate the inherent value of persons we need to relate the idea ofuniversalisation as normativity with that of universalisation as a validitycondition for practical reasons.25 As we know from Kant, agents capableof universalisation in the second sense possess value by virtue of that

25 Thus, the argument as regards the absolute value of persons is confined to practicalreasons. It may be possible, nevertheless, to argue that all types of reasons are practical byvirtue of their link with public practices. Even though such an argument might be possible,it will not be followed up in the present context.

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capacity. Roughly speaking, Kant takes the principle of universalisation todemonstrate the rational character of practical reason, and from this itfollows that anyone capable of rational thinking is also capable of practicalreasoning. By virtue of this capacity it is suggested that rational thinkersare valuable in themselves. Kant himself does not offer a more detailedargument for this conclusion. Instead what we find is the bold claim thatthe universal moral law, which stands for the idea that morality isrational, implies the proposition that agents possess inherent value to theextent that they should not be utilised as means to the pursuance ofends that have been specified in their absence (Kant 1996, 429): “So actthat you use humanity, as much in your own person as in the person ofevery other, always at the same time as end and never merely as ameans.”

The missing link from Kant’s argument can be reconstructed if we takeon board the thought that, in order to attach value to states of affairs, wemust engage in acts of evaluation, or value judgements, that are no lessthan instances of practical reasoning. It follows that, given that practicalreasoning is the means for predicating value of states of affairs, there isno other source of value external to rational thinkers. Hence, by virtue oftheir being the only and last instance of practical reasoning, rational delib-erators are rendered the source of all value, which is to say, they areabsolutely valuable (Korsgaard 1996, chaps. 3 and 4). Adopting the argu-ment to the vocabulary of the present discussion, we may give it thefollowing form26:

(a) To the extent that judging is a reflexive activity, it is about adducingreasons.

(b) In practical contexts such reasons are moral reasons.(c) Moral reasons are instances of evaluation with respect to certain

aspects of an otherwise value-free environment.(d) Therefore, anyone who engages in moral judgement is capable of

conferring value upon certain aspects of the environment.(e) But if judging subjects can confer evaluative meaning upon objects

or facts of their choice, then they must regard themselves (and otherswho partake of the same activity) as autonomous (which is to say asbearers of value).

(f) To that extent, anyone who engages reflexively in practical reasoningis a bearer of moral value qua reason-giver.

While the Kantian law of universalisation may conceal a normative testthat is hopelessly private as it is hidden in the heads of individuals,

26 In developing the following argument I relied on a reconstruction of Korsgaard’s reasoningtendered by FitzPatrick 2005, 662–3.



integrating universalisation into a public practice renders it a powerful ideawhich can account for the normativity of reasons.27 Moreover, the conceptionof persons that springs from a public interpretation of universalisation cango a long way towards bridging the gap between individuals and commu-nities, a gap that is often assumed by communitarians to lead any possibleaccount of persons to idle individualism. Given that rule-following is apublic practice, persons are not hopelessly individualist, as what makesthem persons (i.e., the reflexive activity of rule-following) is fundamentallypublic. On the other hand, communities cease to be mere aggregates ofindividuals that need to be reconciled with one another; conversely, theybecome synergies of persons who possess a normative self-understanding invirtue of their capacity to handle reasons. Moreover, such reasons may, fromtime to time, command that the boundaries of the “community” be shiftedor that the subjects of rights and duties be redefined.

Finally, the explication of normative reasons, as resting on public prac-tices of universalisation, guarantees the continuity of practical reason.Although practical reasons are generated in different contexts by distinctpractices (law, morality, ethics, etc.) the idea of universalisation helps tobring out the rationale which is common to all of them. Thus, despitedifferences between various types of reasons (be they legal, moral orotherwise practical) it is possible to relate them to one another as a resultof their being instances or outcomes of a practice of universalisation.28 Insubstantive terms, this results in a claim that all such reasons must respectthe idea of personhood which attaches to any practice of universalisation.To that extent, the idea that agents who partake of a public practice ofuniversalisation are absolutely valuable constitutes a material constraintvis-à-vis the content of practical reasons: No reason may be permitted suchthat infringes upon the absolute value of persons. Such infringementwould be assumed anytime persons were prevented from partaking of thepractice of universalisation or, even, when reasons for action wouldconsistently fail to satisfy a public test of universalisation. In that respectthe concept of personhood, as one that is intertwined with the idea of

27 For an account of the requirements of normativity, see part 1 above. An explication ofnormativity such as being based on a public practice of universalisation that is essentiallydeliberative has been developed by discourse-ethics within moral philosophy and thediscourse theory of law with respect to legal theory: Alexy 1989; Habermas 1992 and 1996.Those theories accept that correct is an action which can be justified through a valid reason.Reasons are deemed valid when they can be accepted on the basis of a general discursive testof universalisation. In contrast to the model developed in this paper, discourse theory doesnot spell out the connections between rule-following and practice, thereby failing to steer clearof the Scylla of Individualism and the Charybdis of Communitarianism. It is my view that thisshortcoming can easily be rectified along the lines suggested here. For more on this claim, cf.Pavlakos 2007, chap. 7.28 This seems to be in tune with the idea that law is a special case of practical reasoning,which increasingly becomes a common thesis amongst non-positivist legal theories. Instead ofothers, see Stavropoulos 1996; Alexy 2002; Dworkin 2006.

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universalisation, cements practical reason, by grouping together thevarious types of practical reasons.

6. Conclusion

The paper began by diagnosing an aporia with respect to the nature, thebearers and the function of reasons from rights in contemporary legal andpolitical debates. Adopting a meta-ethical approach, it turned subsequentlyto argue that the aporia arises from a philosophical confusion surroundingthe role of rights as normative reasons. In dispelling the confusion anaccount of reasons was put forward that attempted to capture their norma-tivity by relating rights to a reflexive public practice. Two key outcomes wereidentified as a result of this explication: That, first, normative practices areinstances of rule-following; and that, second, agents partaking of normativepractices possess absolute value (i.e., acquire the status of persons).

In light of this explication, rights acquire the status of the most generalreasons that purport to guarantee the content of personhood by specifyingand safeguarding conditions which enable agents to participate in publicpractices of universalisation. Truth be told, rights are far from well-definedformulas, as they are themselves subjected to a practice of universalisationwhose outcomes are not given a priori. However, the content of rights cannotremain random but must conform to the minimum requirement that thosewho partake of public practices possess absolute value (i.e., enjoy the statusof persons). It follows that rights must be capable of guaranteeing the statusof persons so conceived, which is to say, they must be able to guarantee thatagents may continue to be free and equal participants in a public practice ofgenerating normative reasons. In undertaking this task, rights may continueto occupy their central legitimating role in contemporary normative debateson justice and good government.

University of AntwerpFaculty of LawVenusstraat 23

B-2000 AntwerpenBelgium

E-mail: [email protected]

University of GlasgowThe School of Law5–9 Stair Building

The SquareGlasgow, G12 8QQ

Scotland, United KingdomE-mail: [email protected]



mailto:[email protected]

mailto:[email protected]

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Non-Individualism, Rights, and Practical Reason