The aim of this paper is to address a worry with Ronald Den Otter’s case for judicial review. Den Otter’s argument rests on the notion of “public reason.” The term is used here to mean a justification for principles and rules which cannot be rejected by reasonable people on reasonable grounds. Granting Den Otter’s argument up to the point that judges are indeed best suited to come up with a set of sufficiently public reasons, there is a worry with how judges must decide between multiple public reasons and end with the “best” public reason. Some principle is necessary to guide this decision-making process. I think this principle, as evident in public reasons, is the principle of impartiality (and neutrality). This essay begins with an explication of impartiality and finds a notion of neutrality at its core. With this in place, I explore impartiality and neutrality within Den Otter’s picture, eventually leading up to the worry about judicial review. I argue that judges cannot be sufficiently (and consistently) impartial in deciding the best public reason from a set of sufficiently public reasons; as such, if we want to move closer to impartiality, we must move the voting from the judges to the citizens.  

To set the stage for our discussion, let me begin by providing a sketch of what I mean by “neutrality” and “impartiality.” First, some caveats. It is crucial to distinguish these two terms; often, these terms are conflated and the distinction is blurred. For instance, judges are synonymously labelled as “impartial” and as “neutral.” This makes things unclear, especially when we want to understand how to conceptualize the function of these terms. In short, I think neutrality is a necessary condition of impartiality, meaning one of the features of impartiality is that it carries the notion of neutrality.

Let me start by first sketching a basic picture of the structure of impartiality. Impartiality is a concept typically found in discussions of morality, and these discussions help illuminate some of the dimensions of impartiality. One dimension of impartiality is impersonal, meaning dispassionate or indifferent. In this case, the good judge is impartial insofar as they are not swayed by emotions or weigh in personal considerations – for example, an angry judge should not deliver a harsher sentence to a defendant, nor should the judge deliver a more lenient sentence because the judge and defendant both enjoy jazz music. Another dimension of impartiality is equality, which suggests a level playing field for all. When I say “all,” I want to remain neutral to the fact that it can encompass an impartial assessment of moral rules, conceptions of good, and other abstract conception, and not just moral agents. Here is a moral example of impartial equality: William Godwin (Godwin, 1793) imagines a scenario where one must choose to either save a chambermaid or Fenelon (the archbishop of Cambrai) from a fire. If the rule was to promote the best consequence, the clear outcome would be saving Fenelon, since he benefits thousands with his works. Even if the chambermaid was one’s own wife or mother, they would still be on a level playing field insofar as the rule to promote the best consequence, and Fenelon would still choose the archbishop over one’s own wife or mother in promoting the best consequence. This is far from an exhaustive account of impartiality, but we have enough of a sketch to move on.

Let me end this discussion on impartiality with a more formal definition, provided by Bernard Gert, we can later make reference to: “A is impartial in respect R with regard to group G if and only if A’s actions in respect R are not influence at all by which member(s) of G are benefited or harmed by these actions.” (Gert, 1995) There a couple things to note here. This formulation is not strictly a moral formulation. This formulation makes reference to an agent’s point of view (the agent being “A”) and how this agent executes (or, the “actions”) impartial treatment. Furthermore, it is always with reference to another agent (or, “group G”) and how they are treated (or, “in respect R”). Neutrality seems to be thematic in this conception of impartiality.

Before exploring the relationship between neutrality and impartiality, let me briefly outline what is meant by “neutral.” The relevant type of neutrality for our discussion concerns actions; that is, similar to our formulation of impartiality, neutrality regulates how one acts. For instance, Joseph Raz (Raz, 1998) gives the example of being neutral between conceptions of good. He writes, “Such a principle [neutrality] will require the state to react in a way yet to be specified, i.e. neutrally, to disagreements about conceptions of the good […]” (p. 31) Here, the state’s actions are regulated by neutrality, and its correspondingly neutral actions are such that they are unspecific with respect to (in this case) conceptions of the good. Perhaps we can modify Gert’s impartiality formulation for neutrality: A is neutral in respect R with regard to view V if and only if A’s actions in respect R are yet to be specified to view V.

So how does neutrality map onto impartiality? Taking, for instance, the first dimension mentioned above, impartiality as being impersonal might incorporate neutrality in that we remain neutral to our views as subjective individuals. Thomas Nagel (with the help of Derek Parfit) can help us out here with the distinction between agent-relative and agent-neutral. (Nagel, 1986) The basic idea is that a reason for action is agent-relative if it makes some reference essential reference to a person, and it is agent-neutral if it does not. If I were a judge, I would act on agent-relative reasons if delivered a harsher sentence because the defendant made me angry (since my anger is a reason for me but nobody else). Similarly, moving to the second dimension mentioned above, my reasons to save my wife over Fenelon are reasons for me and nobody else (after all, my wife is not anybody else’s wife, hopefully). In effect, my acting agent-neutrally is to act in a way in which agent-relative reasons are yet to be specified. Now to address the question of the relation between neutrality and impartiality: neutrality is a necessary condition to impartiality, but neutrality on its own denotes a more narrow idea of non-specificity.

                  Before investigating in any depth the relevant uses of impartiality and neutrality in Den Otter’s picture, it is appropriate for clarity’s sake to merely identify them first. To do this, let me first give an overhead view of Den Otter’s enterprise, then magnify on the parts relevant to impartiality and neutrality. Den Otter’s uses the Rawlsian idea of public reason to justify judicial review. Den Otter’s view arises in the context of value pluralism within a liberal democracy. A plurality of values is problematic when the fundamental values of the citizens are in conflict with the values held by the state. The state, in accordance with its values, issues coercive authority, and this coercive authority must be justified to the citizens. This justification comes in the form of public justification; namely, a justification which cannot be reasonably rejected. Public justification must be grounded in public reasons, which are characteristically anti-perfectionist. Den Otter notes: “Rawlsian public reason is premised on the fundamental distinction between what is true and what is reasonable.” (p. 165) The aim here is not truth, rather it is finding a justification which would be acceptable to all reasonable dissenters. Much is devoted to the nature of public reasons and the appropriate steps to arriving at sufficiently public reasons.

Diving a little further in, Den Otter’s more controversial thesis is that judges are the best at coming up with public reasons. Working within a framework of constitutional liberalism, judges take from the abstract theory of public reasons and translate it into concrete notions of freedom and equality; with this, they may adjudicate controversial cases in a way which is publically justified. Den Otter’s premise in favouring judges over anybody else is a practical one. He writes that leaving it to citizens entails an “unrealistic assumptions about their civic capacities,” (p. 20) and also notes that “courts cannot save Americans from themselves, but they can help them to understand the importance of protecting the freedom and equality of everyone when certain constitutional questions arise.” (p. 19) It is difficult to see if there is a principled reason for judges being better at coming up with public reasons. Den Otter adds: “that judges are more likely to be able to identify sufficiently public reasons than citizens and their elected representatives are in the most important constitutional cases.” (p. 20) By and large, Den Otter seems to rest his argument on contingent claims.

With this general picture in place, let us return to our aim of identifying the relevance of neutrality and impartiality in Den Otter’s picture. To start, the Rawlsian liberal framework is supposedly neutral, and impartial in its genesis. This sets the stage for the crux of our discussion: how judges must be impartial. (Here, we must grant Den Otter’s claim that the judges are the best at identifying public reasons.) First, judges must be impartial when coming up with public reasons. Second, I think judges must also be impartial after coming up with multiple sufficiently public reasons and deciding which one public reason to commit to. I argue that judges fail in this second respect.

Let us begin by investigating the first claim to neutrality and impartiality which underlies the Rawlsian liberal framework. Starting again with a rough sketch, Raz (1990) identifies four themes in the view put forth by Rawls. First, “limited applicability” refers to the fact that the Rawlsian view is not a comprehensive theory of justice; rather, its application is limited to a modern constitutional democracy, where there is a pluralistic society with a generally shared common culture. (p. 7) Second, “shallow foundations,” what Raz has issues with, refers to the fact that justifications must be founded on the “common currency of our public culture.” (p. 8) Third, the “autonomous” feature adds the idea that Rawls does not start with general moral truths – in fact, it is indifferent to what is truth – rather, its starting point is within common culture. Fourth and finally, “epistemic abstinence” highlights the idea that the doctrine of justice does not claim to be true; that is, some truths are off limits (regardless of their truth value) because they are not sufficiently “public.” This, according to Raz (p. 10), is motivated in the name of stability and social unity; moreover, they are commitments tied to the Rawlsian liberal framework. These four themes are useful to keep in mind, and we will make reference to them in our discussions of impartiality.

Now, what is the relationship between a liberal framework and impartiality? Nagel (1987) goes into the paradoxical nature of liberalism and its notion of impartiality. He notes that whatever our conception of politically endorsed morality is, it must be impartial; what people disagree on is what this impartial morality is supposed to be, and this calls for a “higher-order impartiality.” (p. 217) In Nagel’s words, higher-order impartiality is necessary for liberalism because, “in politics, where we are all competing to get the coercive power of state behind the institutions we favour – institutions under which all of us will have to live – it is not only our personal interests, attachments, and commitments that bring us into conflict, but out different moral conceptions.” (p. 215-216) The higher-order impartiality is important for questions of political legitimacy and justifying coercive force. Talk of this sort of “higher-order” impartiality has been very abstract thus far, so perhaps an illustration will help clarify what is being discussed. I think this sort of impartiality is apparent when applied to moral rules. Let us begin by distinguishing what would be “lower-order” impartiality. Take for instance the rule, “Do not break promises.” We can be impartial insofar as executing this rule by not making any exceptions to this rule; so, for instance, we would be equally diligent in keeping a promise to a stranger as we would our spouses. Now, “higher-order” impartiality would refer to us being impartial when we come up with moral rules. A moral rule like, “Christians may break promises,” would not be impartial because it shows favour to Christians. There is a difficulty, however, with this “higher-order” impartiality, and it relates to the grounds for one’s belief something is impartial.

There is a problem with competing conceptions of impartiality. For example, take again the rule, “Do not break promises.” This might seem sufficiently impartial, but somebody might retort, “There are clearly cases where breaking promises is permitted or even required morally.” These exceptions seem to violate impartiality. Even if you believe that the rule against breaking promises is sufficiently impartial, clearly the opponent is not unreasonable for rejecting it. What do you appeal to when facing this opponent? The answer to this question sheds light on how impartiality is tied into the conception of liberalism. Liberalism provides “a maximally impartial standard of right which has priority over more specialized conceptions in determining what may be imposed on us by our fellow humans, and vice versa.” (p. 239) In the end, the liberal framework is an impartial framework which trumps all other purported impartial frameworks.

Nagel warns that liberalism must not be conceived as committed to the moral ideals of autonomy and individuality, or else it would become “just another sectarian doctrine.” (p. 223) The aim is a framework from which we can assess all other doctrines. Thus, liberalism must be defended as a theory of impartiality, or a theory that is inextricable with an interpretation of impartiality. The conception of impartiality assesses not only benevolence and how coercion are to be exercised, but higher-order concerns of how we identify benefits or coercion. Liberal impartiality strays from Gert’s formulation of impartiality in that it is directed towards beliefs rather than actions. In Nagel’s words, liberal impartiality tries to make “the epistemological standpoint of morality impersonal as well.” (p. 230)

Let us now investigate how the judge must be impartial when coming up with public reasons. Returning to the more general, formal definition: “A is impartial in respect R with regard to group G if and only if A’s actions in respect R are not influence at all by which member(s) of G are benefited or harmed by these actions.” “Actions,” for the judge, would be coercive actions – the goal, then, is justified coercive actions vis-a-vis public reasons. Using the categories provided by Raz, judges must be impartial in accordance with two themes: “shallow foundations” and “epistemic abstinence.” Shallow foundations refer to the impartiality insofar as neutrality towards theories of good (anti-perfectionist).  To be neutral to theories of good means that any public reason must not favor a specific value system – for instance, a non-neutral theory of the good might be that God (and a life devote to God) is the best kind of life, or perhaps that a life devoted to pursuing the pleasures of chocolate is the best kind of life. This is problematic because any coercion based on some particular theory of the good unjustly violates the autonomy of those not committed to that particular theory of the good (e.g. perhaps the coercive theistic laws infringe on the chocolate-eaters’ way of life). Similarly, when we talk of judges showing “epistemic abstinence,” it means that that judges must put aside their own views on truth, particularly in regards to a doctrine of justice. Raz writes that “certain truths should not be taken into account because, though true, they are of an epistemic unsuited for public life.” (p. 4) Again, even if it were true beyond a doubt that worshipping God our ultimate purpose in life, judges would need to put these sorts of truths aside when coming up with public reasons. This second theme, “epistemic abstinence,” reflects liberal impartiality – that is, it demands that conceptions of truth need to be impartial. Judges must be impartial in this sense in coming up with sufficiently public reasons, but they must also be liberally impartial in the second step of weighing between different public reasons.

As we move to my main argument, let me first clarify the problem. Den Otter writes that a second challenge for the judges after coming up with sufficiently public reasons is weighing “the remaining public reasons appropriately in reaching the conclusion that is most publicly justified.” (p. 186) Den Otter seems to be more concerned with the method involved of coming up with sufficiently public reasons and arguing that judges are the best filters for ending up with a set of public reasons. But the further issue is that once we have public reasons, judges must decide which from the set is best; moreover, at this point, the sort of reasoning involved in coming up with public reasons runs out and the judges must use their own discretion. Sincere, good faith attempts by the judges still seem problematic. The judges have various biases, like political commitments, which seem to subtly distort their judgement so that the “best” public reason we end up with is skewed. For example, imagine there were sufficiently public reasons to support abortion on one side, and there were sufficiently public reasons against abortion on the other side. Public reason cannot help judges decide between the two. If we imagine further that the judges in charge of the decision were conservative, we may end up with a publically justified law against abortion every time. This seems unfair to someone who supports abortion. Nevertheless, I think there is a way of making this fairer.

The judges, when deciding between competing public reasons, must be pushed to liberal impartial. There is something that sounds initially circular about this proposal. Since judges must be impartial in coming up with public reasons, and the set of public reasons they end up with have some notion of neutrality embedded in them, it seems odd to expect that a further impartiality would give novel answers to the question of which public reason is best. But this misses the point: judges engage in a different kind of reasoning when weighing public reasons. Let us track the uses of impartiality in these modes of reasoning. In merely identifying public reasons, the judges use the sort of general, action-oriented impartiality formulated by Gert. In weighing multiple sufficiently public reasons, the judges engage in an epistemic, liberal impartiality. Since the public reasons are already impartial in the prior senses, we need a different sort of impartiality to adjudicate between public reasons.

Judges are not well-suited for satisfying the demands of liberal impartiality. When weighing public reasons, judges must resort to their comprehensive doctrines, in some sense, because their adjudication requires some commitment to the truth of certain claims. To illustrate, imagine there are sufficiently public reasons both pro-affirmative action and anti-affirmative action, and judges must adjudicate on which public reason is best. The judge might weigh the pro-affirmative action side more heavily because of his understanding of equality and equity. Another judge might give weight because of her understanding of sociological theories. The weight attributed to public reasons is going to reflect some conception of truth on the part of the judge. Any adjudication is going to be epistemically partial.

Perhaps this is the best we can do. This sort of partiality seems like a cognitive deficiency that nobody can get around. The solution might be to let the judges, with their good faith attempts at the truth, vote amongst themselves. But this does not lead to solution that is epistemically impartial. There may be some cognitive bias particular to judges, just as there are cognitive biases particular to scientists (for instance, a naturalistic or mechanistic view of the world).  If our aim is liberal impartiality, which entails epistemic impartiality, it seems the best solution is to let the people decide.

Letting the citizens vote is the closest to liberal impartiality because whatever partiality remains is not problematic. By having a mass vote, there are different attempts at the truth informed by different views of the world. Let us explore this some more with an illustration. Imagine we had a public vote for two opposing public reasons pertaining to abortion. People would vote based on their understanding of religious truths, their understanding of the nature of personhood, their understanding of murder, and so forth. This approach of turning it over to the people is epistemically more impartial because it includes a wider variety of attempts at truth and it does not favor just a select few (like the judges). On a smaller scale, it would be like adding a continental philosopher to a faculty of analytic philosophers – in this case, the faculty is less partial to analytic attempts at the truth. The underlying principle here is that more variety in attempts at truth makes the cumulative whole more epistemically impartial.

There may still be worries about impartiality with citizens voting. What if the population was saturated with, say, Christians? Do they not have unified approaches to truth? Is this the same epistemic partiality we had with the judges? I think this point overstates the homogeneity beliefs in sectarian groups. Christians have all sorts of different understandings of truths relevant to abortion; as evident in Christian populations, not every Christian is against abortion, and even all those against abortion are not against it for the same reason. By and large, the way people come to conclusions is a complex process of weighing various commitments to various beliefs they hold to be true. In any case, the only problematic kind of partiality which remains is on a national level. Another way of tracking epistemic impartiality is tracking the institution: for instance, judges are impartial qua judiciary and scientists are impartial qua academia, and we can make further fine-grained distinctions from there. But shifting the vote to the citizens guarantees that all institutions and attempts at the truth are represented. However, it seems there is a qualifying condition in all these cases; namely, they are all within a particular nation. There is a subtle partiality in favor of members of the nation. It is evident immediately that this sort of partiality is not dangerous or unjustified to the citizens. Showing partiality towards citizens when voting on coercive laws is unproblematic.

What is important for public justification is impartiality. There is an issue which remains unaddressed which may have implications on the central thesis of this essay. The issue is of a substantive principle which judges may draw upon in deciding among public reasons. I have merely provided a formal principle. I have shown that the structure of Den Otter’s argument rests on a fundamental notion of liberal impartiality. The same sort of impartiality must be applied when deliberating between a set of sufficiently public reasons. Judges cannot satisfy this criterion. The citizens, however, may move closer to this impartial ideal but still cannot achieve it; nevertheless, the partiality which remains is justified because it originates from the citizens themselves.

Sources

Den Otter, R. (2009). Judicial review in an age of moral pluralism. Cambridge: Cambridge University Press.

Gert, Bernard, 1995. “Moral Impartiality,” Midwest Studies in Philosophy, XX: 102–127.

Godwin, William, 1793. Enquiry Concerning Political Justice and its Influence on General Virtue and Happiness, ed. Raymond Preston. New York: Alfred A Knopf.

Keller, Simon. Partiality. Princeton, NJ: Princeton University Press, 2013.

Nagel, Thomas. Moral conflict and political legitimacy. Philosophy and Public Affairs (16). 1987.

Nagel, T., 1986, The View From Nowhere, New York, NY: Oxford University Press.

Rawls, John (1996). Political Liberalism, New York: Columbia University Press.

Raz, J. (1998) “Disagreement in Politics,” American Journal of Jurisprudence: Vol. 43: Iss. 1, Article 2.

Raz, J. (1990). ‘Facing Diversity: The Case of Epistemic Abstinence,’ Philosophy & Public Affairs, 19: 3-46.

Franz Brentano has unique answers to questions posed in moral philosophy. T. M. Scanlon has revived Brentano’s particular approach within the context of contemporary metaethics. This essay will compare Brentano’s account with Scanlon’s “buck-passing” account, and note the advantages of Brentano’s view. The buck-passing account seems to stumble when faced with the “wrong kinds of reason” problem; however, Brentano overcomes this hurdle with his notion of “correctness.” This notion must be explored further, especially with some of the tools provided by contemporary moral philosophy. I suggest that Brentano’s notion of correctness raises questions which cannot be adequately dealt with by a discrete look into Brentano’s philosophy; rather, contemporary solutions – mostly from the philosophy of emotion and moral psychology – can supplement Brentano’s picture.

To paint the background Scanlon’s view, we can make an initial distinction in the normative sphere between evaluative concepts and deontic concepts. Deontic concepts include things like reason, right, wrong, duty, obligation, and so forth. Evaluative concepts include things like value, good, bad, better, worse, and the like. Metaethics, and Scanlon’s enterprise, comments on the nature of these concepts and how we are to understand their relation. For instance, we might say that “good” (or “value”)[1] is a simple, basic (unanalyzable) property; as such, one might use “good” to define all the other concepts – say, actions are “better” if they have more good, or we have a “reason” to act if it gets us closer to good.

Scanlon’s buck-passing account takes a particular stance on the relation between these categories (viz. deontic and evaluative) of normative concepts. Buck-passing is committed to the idea that evaluative concepts can be analyzed using deontic concepts; more specifically, “good” is to have other properties which provide “reasons” (to respond). (p. 97) On this view, when we say something is “intrinsically good,” we are not saying that there is some concept “good” which makes the thing intrinsically good. Rather, when we say something is “intrinsically good,” we look at the reasons to respond: namely, natural properties, like attractiveness or happiness. Let me clarify, a response, here, does not have to mean action; it can also mean to take up an attitude to favor something (a “pro-attitude”), or even to take an attitude against it. Hedonism is a type of buck-passing; that is, good things have the natural property of pleasure which ground all practical reasons. Again, “good” does not add a further reason to favor something; rather, it merely tracks reasons to respond and collect things that are valuable on other grounds. (Scanlon, 1998)

A question arises: on this account, what exactly is meant by “good?” In short, it is a higher-order property which is determined by the lower-order natural properties. For instance, when we say the chocolate bar is “good,” we do not mean that our liking the chocolate bar is because there is some property of “goodness” within in the chocolate bar. When we say that the chocolate bar is “good,” we mean that it has a natural property of pleasurableness (begotten from the sweetness, richness, or creaminess of the chocolate bar). What makes us like (or take up a pro-attitude towards) the chocolate bar is its pleasurableness. “Good,” then, means having a reason to take up a pro-attitude – in the chocolate bar example, the “goodness” is the pleasurableness. In other words, the reasons are generated from the good-making property, not “good” per se. In effect, the normative “buck” is passed from the “good” to the natural, good-making properties.

Moving on, we must sketch Brentano’s position. We must first situate his moral psychology in his general theory of mind, and then discern his specific metaethical views from his moral psychology. His general theory of mind focuses on objects of inner perception – that is, a sort of first-person phenomenological point of view. Brentano identifies three kinds of mental phenomena: presentations, judgments, and love/hate. The last category, the phenomena of love and hate, is what is relevant for our purpose, but love/hate is somewhat dependent on the other categories. Presentation is the act of being directed towards an object – for instance, seeing, remembering, imagining. A judgment is based on the presentation: we can accept or deny it. So, once an object is presented to us, and we accept it, we have some feelings towards it, which end up being positive (“love”) or negative (“hate”). This final category of love/hate is where we can find his metaethical views.

Brentano makes a distinction between “what we value” and “what is objectively valuable” through the notion of “correctness,” or having the right kinds of feelings. This is to say that emotions can be correct or incorrect. For instance, saying pleasurableness is “good” means that it is correct to value it positively, or love pleasurableness and pursue it as an end. Now, let me be careful here to distinguish the separate roles of judgement and love/hate. We can value a thing, assign love/hate, without judging that the thing valuable; note, this is discrete to love/hate. Indeed, it is necessary to have an initial merely emotional (love/hate) attitude to engage in evaluative judgement – without this initial emotional attitude, there would be nothing to evaluate. It seems confusing to think that emotions can provide us with moral truths, but much rests on the notion of correction.

To clarify, “correctness” in emotion must not be confused with “correctness” in judgment. Note early that both forms of correctness have a distinctive phenomenology – we know when we are experiencing “correctness.” Let us briefly revisit judgment to understand correctness in this context. Judgments are correct when they are made from self-evidence, which is derived through inner perception. Since judgments assess presentations, self-evidence judgments – and consequently, the experience of correctness – manifests when comparing self-evident judgments with the contrary. We can derive the notion of impossibility by reflecting on judgments made when we are presented with things like round squares or married bachelors. We can similarly derive notions of correctness by universalizing self-evident judgments. For example, when presented with a chocolate bar, this presentation can be affirmed or rejected; since we already have some notion of self-evident judgments, we can then compare this particular judgment with our notion of self-evident judgments. Correct judgements are ones that match up with self-evident judgments.[2]

The “correctness” in emotions is different from the “correctness” in judgement, but they are analogous features in their structure. In the way judgments can be self-evident to be correct, emotions can derive correctness in a similar way. For instance, we may love the pleasurableness from chocolate and compare to the contrary – mainly, hating the pleasurableness of chocolate. Loving something can be universalized much the same way self-evident judgments are (i.e. through inner perception), so we can correctly love the pleasurableness from the chocolate (and incorrectly hate it). This is a rough picture of Brentano’s metaethics.

Let us now make the connections between Scanlon and Brentano more explicit. They are motivated by the same questions: What are moral truths? How do we know them? How do they affect us? They have a similar starting point in that they merely want to show that “we have good grounds for taking certain conclusions that actions are right or are wrong to be correct […]” (Scanlon, 1998, p. 2) They also have an aim of clarifying what is intrinsically good or valuable; indeed, they take ethics to deal with “those ends which are worthy of being pursued for their own sake.” (Brentano, 1952, p. 7) The main point of similarity between Scanlon and Brentano is the “good” – or, for Brentano, “love” – is conceptually subsequent. “Reasons” or “correctness” always come first, and then good is fixed to these terms.

A difference is what they see as the preconditions for moral knowledge. For Scanlon, there are reasons, for Brentano, there are emotions. For Brentano, moral judgements are judgements about the correctness of emotions. For Scanlon, moral judgements are the natural properties which give us reasons to act. For Brentano, to favor something is just to have the phenomenological experience of “preferring.” (Brentano, 1889, p. 26) The normative is explained in terms of this preference, or “better than.” To compare Brentano and Scanlon, we would need to see how comprehensive their views are, and this is done by assessing how well their accounts deal with problem cases.

One sort of problem for these types of accounts is the “wrong kinds of reason” (WKR) problem. The WKR problem is that there seem to be cases where we have reasons to favor an attitude which seems intuitively not good (or not valuable). The usual example is Roger Crisp’s (2005)[3] demon example: imagine an evil demon threatens to punish you unless you desire a cup of mud. Here, we have a reason to desire the cup of mud, but we are hesitant to say that there is anything good (or valuable) about the cup of mud; however, if we are committed to buck-passing accounts, we may be committed to saying that the cup of mud is good. In other words, the issue is that we have reasons to favor an object that has nothing to do with the object itself; rather, it has to do with reasons for favoring the favoring attitude.

Even if it were not an evil demon, but your caring wife who wants you to love a vase she bought. The reason to love the vase is make your wife feel good about her purchase, and we have reasons to love the vase even if it is aesthetically very ugly. G. E. Moore has a similar concern. (Moore, 1902) Moore has trouble saying that “inanimate beautiful objects” are intrinsically good; rather, our appreciation of them makes them good. To use a modern economic analogy, it is like a Veblen good. Veblen goods are things which have a demand strictly because of its high price and not because of the value of the thing itself (e.g. luxury cars, designer handbags, expensive wines). We seem to want Veblen goods for the wrong kinds of reasons.  Attempts have been made to address the WKR problem, but subsequent counterexamples and modifications to the WKR scenarios have also been put forth.

Derek Parfit (2001) provides a useful distinction that may relieve the tension: objective-give considerations and state-given considerations. If we map these distinctions onto the example of the demon threatening us to desire a cup of mud, we might say that the state-given consideration is the incentive to avoid punishment whereas the object-given consideration is attached to the mud itself. We might further say that we have “reason to favor” the state-given consideration of avoiding punishment (thereby saying it is valuable or good); conversely, we say that the object-given consideration of the mud itself is not a “reason to favor.”

But there are problem cases which are immune to Parfit’s attempt at a resolution. Berys Gaut (2007) thinks of the hilarious joke that is also cruel. Here, we might think we have state-given considerations to not laugh at the joke, and thereby no reasons to favor this state-given consideration. However, the object-given consideration is stipulated as hilarious, and we might have reasons to favor the joke itself. This is problematic on the buck-passing account because we seem to have a reason to favor the joke, since it is hilarious, but we have some Frankfurt-like second order desire not to desire to favor it (since it is a cruel joke, and we do not want to be cruel by laughing at the joke). It is unclear whether the joke is valuable or good. In the end, it seems the “wrong kinds of reasons” problem still stands for buck-passing accounts.

On Brentano’s picture, the “wrong kinds of reasons” problem does not appear to be explicitly problematic. Brentano gives an explicitly criteria of demarcating the right kinds of reasons from the wrong kinds of reasons through the notion of “correctness.” In effect, the right kinds of reasons are self-evident because we can experience the “correctness” of emotions. In the cruel joke example, we can affirm the correct love of the “hilariousness” and reject the correct love of “cruelness.” Sven Danielsson (2007) notes a “Brentano-style approach” to addressing the classic demon example. He notes a distinction between holding-reasons (reasons for having an attitude) and content-reasons (reasons for the correctness of the attitude. He further makes a distinction between beliefs and conative attitudes. We can cite holding-reasons for a belief (we ought to have the belief) and we can holding-reasons for a conative attitude (we ought to have the attitude); similarly, we can cite content-reasons for a belief (we ought to believe that it is true) and content-reasons for a conative attitude (we ought to have the attitude that it is true). In the demon example, we can identify the mud as a holding-reason to have the conative attitude to favor the mud, but not the parallel content-reason. Here, the content-reasons for a conative attitude are what correctness is supposed to be.

But this raises further worries. Despite doing better against the WKR problem than buck-passing accounts, the reason for Brentano’s account doing better against the WKR problem (viz. correctness) raises further questions. What does it mean for an emotion to be correct? What is the nature of the phenomenology of correctness? How does emotion and correctness relate to the object? Perhaps these are reasons to think Brentano’s views are suspect. I think, however, the many questions raised by Brentano’s notion of correctness are being tackled by contemporary moral psychologists and philosophers of emotion. The rest of this paper will elucidate on some avenues of research and connect them to Brentano’s enterprise.

Christine Tappolet (2016) gives one account of what we might want to mean when we say emotions are “correct.” In sketching her view, she gives a helpful survey of competing views of emotion: namely, conative theories, cognitive theories, and perceptual theories. Conative theories have the advantage of propositional content in desire, but they lack “correctness conditions.” (p. 10) Cognitive theories say emotions are cognitive states, but this seems counterintuitive. Perceptual theories say that emotions are “perceptual experiences of evaluative properties” (p. 10), and she finds this most convincing. She adds that perceptual theories have analogues in perceptual experience: the experience (say) of blue has the same phenomenal analogue in experiences (say) of fear. (p. 19) To add, perceptual theories have an explanation of the casual link between events in the world and emotion; moreover, they have correctness conditions and seem to capture some intuitions about emotions. More specifically, she calls her view, “sentimental realism,” and argues that “evaluative concepts have to be explained in terms of fitting or appropriate emotions, and are thus response-dependent. But the properties they pick out are fully objective as well….” (p. 79) Here we see a sort of hybrid view of buck-passing and Brentano. Like the buck-passing account, evaluative concepts are collapsed into deontic ones, but, like Brentano, the deontic concepts are “correct”[4] emotions; moreover, like buck-passing, the basic properties are natural (or “objective) properties. It must be noted that Tappolet’s views do not map perfectly, but we can see strands of similarities with buck-passing and Brentano.

Others in the philosophy of emotion aim to answer questions of how emotions may be evaluative in the right sense. This can inform our discussion of Brentano’s notion of “correctness.” Justin D’Arm and Daniel Jacobson (2000) investigate the relation between emotions and judgments (qua beliefs of evaluation). They find emotions are inextricably linked to judgments; even when we resist emotions, thereby resisting the evaluative presentation, they still have an affective presence on us. Resisting disgust, for example, is like “being aware of perceiving an optical illusion” (p. 67) – that is, even if we are aware that we are feeling disgust, we cannot mitigate its effect on our judgment (just as we cannot mitigate the effect of optical illusions). Furthermore, they note that emotions can be criticized the way judgments can. Idioms like, “don’t cry over spilt milk” and “the grass is always greener on the other side,” point at the size or degree of certain emotions; in other words, some emotions like sadness or envy can be inappropriate or unfitting if they are overblown (or they are “overreactions”). This picture gives support to Brentano’s general psychology in that emotions and judgments are closely linked, and that emotions have an innately evaluative quality.

Ronald de Sousa (2016) picks up on this point, and expands on the epistemic role of emotions. For Brentano, this is precisely the phenomenon of “correctness.” He notes some intrinsically epistemic feelings, like knowing, doubting, certainty, and familiarity, but he also notes some other feelings which act like epistemic feelings, like fear, greed, trust, and doubt. (p. 3) The later feelings which act like epistemic feelings affect things like convictions or inferences – for instance, fear diverts attention and motivates self-deception, but it is also an “instinctive measure of risk.” (p. 4) This all goes to suggest that perhaps Brentano’s “correctness” may be expanded to include emotions, or, at the very least, it is not the exclusive standard for assessing emotions. Still, Brentano’s “correctness” may yet be the best standard. The phenomenology of this “correctness” might be compared to the certainty mentioned by Descartes’ “cogito ergo sum,” (p. 9) or the feeling of rightness experienced by religious experiences.  

Moral psychologists have also contributed to the questions raised by Brentano’s notion of “correctness.” Jesse Prinz (2006) suggests a “methodological promiscuity” to “intermingle empirical and philosophical results.” (p. 30) There are many empirical studies to suggest the fact that emotions influence moral judgment. The emotion of disgust was examined when subjects were given a series of vignettes[5] and asked to rate the wrongness. One set of subjects read the vignettes at a clean desk and the other set of subjects read the vignettes at a dirty desk, as to elicit the emotional response of disgust. The studies found that the subjects at the dirty desk rated the vignettes as more wrong than the subjects at the clean desk. The takeaway here is that emotions go hand-in-hand with moral judgments. Many other experiments come to similar conclusions which inform our philosophy (or psychology).

Some moral psychologists start with the psychology and use that as the starting point for philosophy. Let us explore how some using this approach have come up with philosophical conclusions useful for expanding Brentano’s picture. Victor Kumar and Richmond Campbell (2012) have rested their moral psychology on the “dual process” (p. 319) model. Here, two systems work at the aim of moral evaluative: first, “system 1” is a quick, automatic, emotion-driven system; second, “system 2” is a slow, controlled, reason-driven system. These authors resist the claim that the emotionally based system 1 is unreliable, and they show this through a cumulative case of empirical studies, especially studies measuring responses of subjects exposed to moral dilemmas. Their aim is to find an empirically based model of the moral mind, and subsequently answer philosophical questions from there.

If empirical research can indeed inform our general metaethics or moral philosophy, it will have implications on how we answer the questions from Brentano. The field of experimental philosophy aims at using empirical data to inform philosophical questions, and this is particularly useful for Brentano. Those working in this field have an approach similar to Brentano, except they have varied methodologies for studying (phenomenal) conscious states. The dual process model, for instance, corroborates Brentano’s account of phenomenological psychology. We can map on the initial love/hate to system 1, and find the “correctness” within system 2. Perhaps there can be some amalgamation of the inner, phenomenal philosophy of Brentano, and the outer, objective science.

Philosophy of emotion provides some useful conceptual tools to tackle some of the questions raised by Brentano’s notion of correctness, and experimental philosophy’s development in methodology may provide further support to buttress Brentano’s picture. Competing theories, like Scanlon’s buck-passing account, seems to require major patchwork to overcome issues like the “wrong kinds of reason” problem. Brentano was hauntingly ahead of his time: he had a more comprehensive account and pointed to questions which are hot topics for moral philosophers now.

[1] I use them interchangeably; similarly, “goodness” and “valuableness.” I will sometimes add one or the other to clarify or channel the right intuitions.

[2] Although all self-evident judgements are correct, not all correct judgements are evident.

[3] Crisp (2005) notes some other issues with buck-passing. He notes an issue with treating lower-order as natural properties misrepresenting the phenomenology of evaluative experience. He also notes that this may lead to troubles with discriminating between different kinds of values (e.g. grace and sublimity cannot be capture in terms of a set of natural properties).

[4] It is unclear if “correct” is used by Tappolet the same sense as Brentano. I think it is, as she quotes Chisholm (p. 87) and states that “appropriate” emotion might understood as one that ought to be felt in the normative sense.

[5] For example: cooking and eating the family dog, flushing the country’s flag down the toilet, having sex with a chicken, having sex with one’s siblings, and so forth.