THINGS FALL APART

The air conditioning in our apartment has stopped working, and since it is Sunday [isn't that always the case?], I am not sure when we can get someone to come and repair it. So my mind is on things other than the Transcendental Philosophy, and the next part of the Kant series may be delayed. Just as well. I am finding it harder and harder to boil this enormous subject down to 1200 word bites for daily consumption. So, patience, please.

READING THE CRITIQUE PART FOUR

And so we come to the Dissertation, whose full title is On the Form and Principles of the Sensible and Intelligible World. As the title suggests, Kant sets up his discourse as an Antinomy, a dispute between the Dogmatists and the Sceptics, the Rationalists and the Empiricists, the Leibnizeans and the Newtonians. He is going to try to show that this seemingly irresoluble dispute can be dissolved in such a way that the positive claims of each side are secured, and the attacks of each side on the other evaporate.

Just to anticipate where all this is going, so that you do not get lost in the details of the arguments, Kant is going to go through a four stage process in evolving from the Dissertation doctrine to the full-blown Critical position that emerges in the Critique. First, he presents in the Dissertation what he hopes is a balanced compromise between Leibniz and Newton. Then, almost immediately after delivering his inaugural lecture, he recognizes that his defense of the Leibnizean or Metaphysical side is deeply flawed, and he gives it up, embracing instead a radically new position very heavily weighted toward the Empiricism camp. Third, before he can even put this new position in writing, he re-encounters the deeply sceptical arguments of David Hume, arguments that cast doubt even on the Empiricist position to which he has retreated. This encounter, which as he says in a famous line "awakened me from my dogmatic slumbers," drives him to undertake almost a decade of profound, revolutionary philosophical reasoning that results, in 1781, in the formulation and presentation of the entirely new Critical doctrine of the Critique of Pure Reason. [I have to confess that even after sixty years, it gives me a quiet, private thrill to write these words. I have been away from Kant for too long. As Hannah Arendt said to me once, "It is always so much more pleasant to spend time with Kant."]

The problem, as Kant sees it, lies in forming an adequate representation of a world, which is to say a totality of interacting substances [at this point Kant has in mind Leibnizean monads -- he is still very much writing in the philosophical tradition in which he was educated.] The term "representation," or vorstellung, is Kant's most general term for a cognitively significant content of consciousness. It thus plays somewhat the same role in his writings that "idea" plays in Locke's Essay or that "perception" plays in Hume's Treatise. [Vorstellen in German means literally "to set something before [oneself]."] There is, he thinks [or so he says], no problem in forming an intellectual representation of a totality or world of substances, which is all that is needed to get Leibnizean metaphysics going. But it seems to be impossible to form an adequate sensible representation of such a world, of the sort required by Newtonian Physics. [I hope everyone understands that I am simplifying shamelessly in order not to get hopelessly bogged down.]

The source of this difficulty is that space [and time, but Kant is concerned here with space] is infinitely divisible into ever smaller regions, each containing some degree of force or substance. To form an adequate representation would require going through the process of division step by step, and as there would be an infinite number of such steps -- each one a further division of some region of space -- the process would take an infinitude of time and be impossible to complete. Thus, the Leibnizeans always have an unanswerable objection against the Newtonians, namely that the latter are unable to formulate a useable conception of their object of study. The Newtonians in their turn respond that the Leibnizeans cannot provide the content that their intellectual representations require if they are to yield genuine knowledge. [Anticipating a bit, we see here a very early form of the famous tagline from the Critique: "Thoughts without content are empty. Intuitions without concepts are blind." A51=B75]

To resolve this problem, Kant revives and deploys for his own purposes the ancient distinction between appearance and reality. Leibnizean metaphysics, he says, gives us an adequate intellectual representation of the world as it is in itself, of reality. Newtonian physics, in contrast, provides us with knowledge of that world of monads as they appear to us in sensibility [i.e., through sense perception], hence of appearances.. The spatio-temporal organization of material things is not a characteristic of them as they are, objectively and independently of us. Rather, the mind itself imposes on things a certain spatio-temporal form or organization when it is affected by them and forms sense perceptions of them. This spatio-temporal form of sensibility -- or form of sensible intuition -- lie ready in the mind, prior to all experience. It is not abstracted from experience, as Hume and others thought, but instead exists in the mind a priori.

It is time to pause again for some terminological clarifications. As surely all of you know, even those in the third group of -- dare I say it -- Kantian virgins -- the terms a priori and a posteriori appear again and again in Kant's mature writings, along with two other terms, analytic and synthetic. Indeed, the bastard phrase "synthetic a priori" might be considered his ham operator call sign. But as is so often the case, even those who should know better misuse these terms in confusing ways.

a priori and a posteriori are adverbs, and they modify verbs -- usually, the verb "to know," but also, as in the last sentence two paragraphs ago, the verb "to exist." As Kant uses them, they mean roughly "prior to, or independently of, experience" and "posterior to, or dependent on, experience." A proper Kantian use of the terms would be, for example, "We know the truth of the Causal Maxim a priori, but we only know the truth of particular judgments about the characteristics of the material world a posteriori."

analytic and synthetic are adjectives. They modify nouns, principally the nouns judgment and proposition. A proposition is said to be analytic if [to put it as simply as possible] the concept of the predicate does not add anything to the concept of the subject. It is said to be synthetic if it does add something not contained in the subject concept. Thus "Triangles have three angles" is analytic because "having three angles" is contained in the concept of "being a triangle." "Horses are used as beasts of burden" is synthetic. And so forth. Analytic propositions are also called tautologies, or sometimes miserable tautologies [logicians can be very judgmental.]

Everyone [in Kant's day -- never mind about now] thought it was obvious that the truth of an analytic proposition can be known a priori, since all one need do is unpack what is contained in the subject concept of the proposition, without reference to any experience. So one would say that analytic propositions are knowable a priori. Sometimes, for compactness, the "knowable" was elided, and one simply says that analytic propositions are a priori, but in that statement, a priori is NOT being used as an adjective. It is still an adverb, modifying the missing verb "to know." Until Kant came along, it was widely taken as obvious that synthetic propositions are only knowable a posteriori, that is by appeal to observation or experience. So one might say, compactly, that synthetic propositions are [knowable] a posteriori. But it is NEVER correct to say that there are synthetic a posteriori propositions, as though that were some classification of types of propositions. Kant himself never writes that way, although that fact is obscured by the translations. He always writes "synthetische urteile a priori," not "synthetische a prior urtiele."

Whew. is that all clear? I hope so. Now, back to our regular programming.

HEAVY LIFTING

It turns out that writing an introduction to Kant's First Critique is a good deal harder than talking about Game Theory or Marxian economics or Freudian theory, even if you have been thinking about Kant for the past sixty years. Who would have thought?

READING THE CRITIQUE PART THREE

The Inaugural Dissertation of 1770

Although a wide range of philosophical issues make an appearance in the Inaugural Dissertation, one principal focus of Kant's attention is a half century old controversy about the nature of space. Leibniz and Isaac Newton, both of whom could lay claim to having invented the Calculus [there were giants in the earth in those days, as the Good Book says], took opposed positions on the question whether space is independent of the objects in it. Leibniz maintained that the only real things are unitary, immaterial substances, which he called monads. Space, he argued, is simply the totality of the external relations among the infinity of monads [among which, by the way, are human minds.] Speaking mathematically, one can conceive of monads in Leibniz's metaphysical system as dimensionless points, having only location. Each monad was thought by Leibniz to embody a certain quantum of force ["living force," or, as Kant expressed it, "lebendige kraft."] Thus, the entire universe is a plenum of point sources of force or density or impenetrability. It follows from Leibniz's account that there cannot be empty space, space entirely devoid of substances. Descartes, you will recall, argued that the defining characteristic of material substance is extension, which also implies the impossibility of a void [which is to say, extension devoid of material substance. Descartes invented what we call Cartesian Geometry in support of his view. Those guys really were something.]

Newton took the opposed position, that space is prior to and independent of what fills it. He did not offer a philosophical account of the nature of space, as Leibniz had done, simply describing it somewhat obscurely as "God's sensorium." Newton's position was dictated by what he considered requisite for his physical theories, and in one passage in the Principia, he famously said that he "eschewed hypotheses," which is to say fruitless metaphysical speculations.

The debate between what came to be described as The Metaphysical Philosophy and the Physical Philosophy found public expression in a series of five brilliant epistolary exchanges in 1715 and 1716 between Leibniz himself and Samuel Clarke, a follower of Newton. The letters were published in both French and English and served as the best known contemporary statement of Leibniz's views. [The more important Monadology had not been published at the time.]

The dispute can fairly be described as a stand-off. Leibniz's elegant and carefully worked out metaphysics of monads was vastly superior to Newton's offhand description of space as God's sensorium [time, by the way, was pretty much of a poor relation in the debate, although both authors treated it as formulaically on a par with space]. But on one crucial point, Clarke clearly had the better of Leibniz. Leibniz had argued, against the Newtonian position of the absolute existence of space, that if God chose to create the universe three feet to the left of where it was currently positioned, or if He were to cause the entire universe of physical substances to accelerate, this fact would be totally unobservable by us, and hence be as nothing. But Clarke, relying on Newton's laws of motion and their mathematical implications, replied quite correctly that an acceleration or deceleration would in fact produce observable effects within our world, and thus be real.

One final, very small, but elegant point. Leibniz argued that if Newton were right, then God could have chosen to create a mirror image of the universe. But since properties like "to the left of" and "to the right of," or "above" and "below," are simply relations of pre-existing monads, there could not be, as he put it, a sufficient reason for God to create the universe in one way rather than another, for an image and its mirror are identical in all the relations of their parts. In a paper written shortly before the Inaugural Dissertation, Kant refuted Leibniz, arguing that there are in nature many pairs of objects which are incongruous [cannot be made to overlap], even though they are identical in all of the relations of their parts. His most famous example is a left hand and a completely similar right hand, which cannot be made congruent [at least not in three dimensional space -- in four dimensional space, one could flip a right hand glove through the fourth dimension and make it congruent with its left hand counterpart, just as in three dimensional space one can flip a triangle oriented one way to make it congruent with a mathematically similar triangle -- all the sides and angles equal -- oriented the other way.]

In the Dissertation, Kant puts forward an ingenious theory that not only resolves the dispute between the Leibnizeans and the Newtonians, but also, at the same time, splits the difference between the rationalist claim that reason is the sole source of reliable knowledge and the empiricist counterclaim that sense perception is the foundation of human knowledge. Viewed in retrospect from the perspective of Kant's fully developed epistemological theories in the First Critique, we can see the position of the Dissertation as a half-way house on Kant's epic journey from the Wolffian metaphysics of his youth to the revolutionary teaching of the Critical Philosophy. Not for nothing is the doctrine of the Dissertation referred to by Kant scholars as 'Semi-Critical." It is useful for us to approach the full-blown teaching of the Critique by way of the doctrines of the Dissertation because this will enable us to pinpoint just exactly what the problem was that forced Kant to move beyond the comfortable middle position achieved in the Dissertation. [Just to whet your appetite, the problem, in word, was Hume.]

And now, a word about terminology. [This one's for Chris.] There was in Kant's day a familiar and non-controversial pair of distinctions between the ways in which the mind can stand in relation to an object. These are distinctions with a long and distinguished pedigree, traceable back at least to the disputations of the scholastic philosophers of the twelfth and thirteenth centuries. The mind can stand in immediate relation to an object, or in a mediate or indirect relation to an object. And this relation can be passive or active.

When I perceive an object with my senses -- when I see it, hear it, smell it, taste it, or feel it -- my mind [these folks all agreed] is in direct or immediate relation to a single individual thing. I see this horse, I feel this tree with my hand, I hear that piano. Furthermore, the mind's relation to the object is passive, not active. It does not create the object. It waits upon the object to affect the senses, in whatever manner that occurs. When God brings an object into existence by creating it, His relation to it also is immediate and direct, but in His case the relation is active, not passive. The object does not affect Him. He creates it.

The immediate relation of the mind to an object was called intuition. In the case of human beings, this intuition is sensuous and passive. Thus, sense perception is passive or sensuous intuition. In the case of God [and no one else], His intuition is intellectual, or active, or creative. If one wishes, one can put this last point in the subjunctive without altering the meanings of the terms: If there were a god, his intuition would be intellectual.

When the mind apprehends an object by means of concepts, its relation to the object is indirect, mediate. It is mediated by a general or universal notion, under which it subsumes the individual that the mind is apprehending. So, I invoke the general concept "horse," which of course applies to many objects, and subsume my perception of an object before me under that general concept, as when I form the judgment, "This is a horse." Conception is always active, not passive, but it is not always creative. When I form a general concept of a house, and then act so as to build the house -- when, in short, I make my concept actual, or actualize it -- then my conception is both active and creative. But when I bring concepts to bear on my perceptions and form judgments of the type or kind or species of thing I am perceiving, my conception, while still active, is not creative.

[There is an old dispute about whether God's intellect is intuitive or conceptual. Aristotle, in one of my favorite passages from ancient philosophy, argues that the Prime Mover apprehends universals, not particulars, suggesting, by analogy with the lord of an estate, that there are certain things it is better for a gentleman not to know. Christianity, on the other hand, is quite clear that God numbers the hairs on my head and the sparrows in the air. "His eye is on the sparrow," in the words of the hymn.]

GUEST POST BY MY SON, PROFESSOR TOBIAS BARRINGTON WOLFF

http://www.huffingtonpost.com/tobias-barrington-wolff/doma-repeal-and-the-truth_b_905484.html

With the introduction of the Respect for Marriage Act and President Obama's strong endorsement of the legislation, we are closer than ever before to achieving the repeal of the so-called "Defense of Marriage" Act, the discriminatory 1996 statute that denies equal treatment across the board to committed same-sex couples. Predictably, opponents of equal treatment are making the same alarmist claims that succeeded for them so well when they got DOMA enacted fifteen years ago: that the Full Faith and Credit clause of the U.S. Constitution will require that a marriage performed in one state between a same-sex couple automatically be recognized everywhere in the country. According to this claim, states that deny the freedom to marry to same-sex couples will suddenly have their policies overridden by the decisions of Iowa, New York or Massachusetts.

These claims are false. They always have been. In fact, it has been well established for more than a century that Full Faith and Credit does not require mandatory recognition of marriages around the country in the same way that it requires mandatory recognition of judgments by courts (which is its core function). Insofar as DOMA was enacted to address a supposed full faith and credit problem, it was enacted on a falsehood. Now that repeal is on the horizon, it is time to put that falsehood to bed.

The key points that it is important to understand are the following:

• First, this is not the first time that states have had different policies on contentious questions about civil marriage and who can get married under state law. Far from it. States have figured out sensible ways to handle these policy differences in the past, and they can do so again.

• Second, while repealing the "full faith and credit" portions of the Defense of Marriage Act is very important for a number of reasons, it will not have the dramatic and far-reaching effect of "imposing" same-sex marriage upon other states, as many on both sides of the debate often assume.

THE FREEDOM TO MARRY IN THE UNITED STATES

Same-sex couples now enjoy the freedom to marry in six states -- Massachusetts, Iowa, New Hampshire, Vermont, Connecticut and New York -- and the District of Columbia, and there is significant movement toward equality through the legislatures, the initiative process and the courts in Maryland, New Jersey, California, and Maine. The powerful trend in America is toward full LGBT equality. But may be many years before same-sex couples enjoy equal treatment throughout the United States. Until that happens, there will be significant differences in state laws relating to civil marriage around the country. Some states will expressly permit same-sex couples to marry (like New York and Iowa), some states will expressly recognize the out-of-state marriages of same-sex couples even if the couples cannot marry locally (like Maryland), and many states will continue to have less sympathetic or even hostile policies toward married couples.

Courts in the United States have been dealing with this type of problem for close to two hundred years. Contrary to many public discussions and news reports, the current disagreements over civil marriage for same-sex couples do not represent the first time that significant differences have arisen between the marriage laws of the various states. Laws relating to interracial marriage (anti-miscegenation laws), marriages between people related by blood (particularly uncles and nieces or first cousins), certain marriages following divorce, and marriages involving teenagers have at times varied enormously in the United States and produced sharp differences of opinion among the states. The basic set of problems that can arise when different states have different policies on civil marriage is an old one, and courts have been working out sensible solutions to those problems for a long time.

THE "RECOGNITION" OF A CIVIL MARRIAGE

First off, it is important to say a few words about what it means for one state to "recognize" a marriage from another. There are a lot of different situations in which a couple might ask to have their civil marriage recognized under the law. These situations may have very different legal implications.

The strongest claim that a married couple can make to have their marriage "recognized" is when they have a judgment, issued by a court, that entitles them to something -- money from an insurance company on a claim, for example, or a particular custodial arrangement with their kids. Under the principle of full faith and credit, states have always operated under a powerful obligation to give effect to court judgments from other states on almost every subject. This is true even when other states disagree strongly with the law that one court applies in deciding a lawsuit. Thus, if a court resolves a dispute involving a marriage between a particular set of parties in one state, and then another state is asked to give effect to the resulting judgment (for example, by ordering an unwilling party to pay up on a damages award), state number two is not allowed to disregard the judgment simply because it disagrees with the marriage laws from state number one. Where judgments issued by courts are concerned, the obligation for every state to respect the judgments of every other state is a mandatory one and applies almost without exception.

When there aren't any court judgments involved -- which is frequently the case -- the situation is very different. Often, a couple seeking to have their marriage "recognized" is merely interacting with the legal system in some way and wants to be treated as a married couple. If one spouse passes away, the surviving spouse may want to make claims on the estate based upon the fact that they were married, or he might want to have the marriage recognized for purposes of confirming custody over the children. If a state gives favored treatment to married spouses in its tax laws, or in its health, insurance and retirement benefits for public employees, a couple may want to have their marriage recognized for purposes of participating in those programs. Historically, couples sometimes even had to ask that their marriage be recognized as a defense to a criminal prosecution, where a state was going after one or both of them for illegal fornication. (Following the Supreme Court's decision in Lawrence v. Texas, such prosecutions are happily a thing of the past.)

When a couple asks a court to recognize their marriage in this type of situation, the analysis has always been very different. A marriage is not the same thing as a court judgment. The mere act by one state of marrying a couple has never been entitled to the kind of mandatory legal enforcement that judgments receive in our legal system. Rather, courts have always treated the recognition of out-of-state marriages as a matter of public policy, and various factors have influenced the decisions that states have made about recognizing an out-of-state marriage that could not have been entered into locally.

Some states have taken a very liberal view, deciding that, if a marriage was valid and legal in the place where it was celebrated, then it should always be treated as valid and legal. New York has embraced that policy since the nineteenth century, for example.

Other states have used a more case-by-case analysis. For example, suppose that a couple lives in a state where they cannot get married, but there are other states in the country where they could. Suppose that the couple travels to one of those other states, gets married, then returns to their home state to continue living, all with the express purpose of evading the restriction that prevents them from marrying in their home state. In states that use a case-by-case analysis, this kind of "evasive" marriage has been treated less sympathetically.

Finally, all of the various approaches to these marriage questions have generally been qualified by a "public policy" exception. Even if a state court might otherwise be inclined to recognize an out-of-state marriage under whatever rules it applies, most courts have still reserved the right to make an exception if the type of marriage in question would violate their state's strongly held public policies. This public policy exception does not apply to judgments issued by courts. In fact, the Supreme Court has made it clear that even sharp differences in public policy do not give one state the right to escape the obligation to enforce another state's judgments. But the public policy exception has long been invoked by courts in marriage disputes that where prior court judgments are not at stake, like the health insurance examples described above.

In the current discussions about marriage for same-sex couples, a few distinguished commentators have taken the position that the public policy exception should be rejected altogether. Larry Kramer at Stanford has argued that the public policy exception is inconsistent with the principles of full faith and credit. Joseph Singer at Harvard has gone further, arguing that states should always be required to recognize a marriage if that marriage was valid in the place where it was celebrated. Evan Wolfson, the influential lawyer and advocate, has taken a position similar to Joe Singer's. Whether these commentators are right or wrong, this is the minority position. Most scholars and commentators in the field of Conflict of Laws -- the area of law that deals with this kind of dispute across state lines -- agree that states should have the power to decline to give effect to an out-of-state marriage that is inconsistent with local laws, whether because that marriage violates public policy, because it was the result of a couple deliberately evading local marriage laws, or for some other reason.

My own work in this field has focused on the particular reasons that states have given in the past for declining to recognize an out-of-state marriage and the need to revisit some of those reasons in light of recent decisions by the U.S. Supreme Court that have held certain forms of discrimination, criminalization, or moral disapproval to be unconstitutional, particularly with respect to gay people and gay couples. Even if one starts from the assumption that a state can deny same-sex couples the right to marry -- and one has to start from that assumption for purposes of this kind of discussion; otherwise, the couples could get married in their home state and there would be nothing to discuss -- I have argued that, following these recent developments, many of the reasons that states have relied upon in the past for denying effect to a couple's marriage are no longer available, and that a proper analysis should lead many states to give effect to a same-sex couple's marriage as a matter of good public policy, even if they are not mandated to do so by full faith and credit. Those arguments are developed at length in a scholarly article that can be downloaded here.

In Summary:

• When a court in one state issues a judgment in a lawsuit, including a lawsuit that somehow involves a marriage -- an award on an insurance or wrongful death claim, or the resolution of a custody dispute -- full faith and credit has always required other states to give effect to that judgment, almost without exception.

• When there are no court judgments involved, and a couple has simply gotten married and wants another state to recognize that marriage for some reason -- the probate of an estate, or equal participation in a public employer's health, insurance and retirement benefits -- the situation is more complicated. These questions have always been treated as a matter of policy for the states to decide, rather than as a matter of mandatory obligation. Some states have taken a liberal attitude toward such recognition, while others have employed a more case-by-case analysis.

• Historically, states have reserved the right to apply an exception for reasons of public policy when they are asked to recognize an out-of-state marriage, even if their normal rules would otherwise indicate that the marriage should be given effect. But that public policy exception has never been available where judgments by courts are involved.

"MINI DEFENSE OF MARRIAGE ACT" IN THE STATES

Since the 1993 decision of the Hawai'i Supreme Court that placed these issues on the map, many states have enacted statutes or state constitutional amendments that prohibit same-sex couples from marrying. These provisions are often referred to as "mini-DOMAs." When discussing what validity a same-sex couple's marriage will have as they travel around the country, many commentators assume that these mini-DOMA provisions automatically indicate that a state will refuse to recognize an out-of-state marriage, for any purpose. That assumption is not always correct.

As noted above, state courts have long recognized that a state can refuse to recognize an out-of-state marriage when that marriage violates local public policy. But many states have been cautious in applying that exception. In particular, some courts have said that they will not deny effect to a marriage that was validly performed in another state unless their own legislature has made it unmistakably clear that it desires that result. Even where a legislature has spoken in very strong terms about its policy against allowing certain couples to marry inside the state -- for example, by saying that a marriage between first cousins is prohibited and would be considered "absolutely void" -- some courts have found that they should not apply that policy to out-of-state marriages unless the legislature has told them to do so explicitly.

Only about two thirds of the mini-DOMA provisions enacted by states in recent years expressly address the question of out-of-state marriages. In states where the legislature has not addressed out-of-state marriages in their mini-DOMA provisions -- and, of course, in states that have no such provisions at all -- courts retain the option to recognize the marriages of same-sex couples on a case-by-case basis, even if those couples could not marry within the state in the first place.

Still, it is important not to understate the impact of these mini-DOMA provisions. Even at the height of one of our most contentious disputes over marriage laws in the United States -- the fight over interracial marriage -- few states took the view that they would always refuse to recognize an interracial marriage. Even hostile states were open to the possibility, for example, that an interracial couple who legally married in another state where they once lived, and then relocated or travelled to a hostile state, might still be entitled to have their marriage recognized for at least some purposes (like the probate of an estate). In comparison, the level of legal hostility toward the marriages of same-sex couples -- with some states refusing even to recognize the marriage for purposes of allowing the couple to get a divorce when their relationship comes to an end -- has been remarkable. Some of these mini-DOMA provisions lock that legal hostility into the state constitution.

In Summary:

• The mini-DOMA provisions that about forty states have now enacted pose serious obstacles to the recognition of a same-sex couple's marriage, but only about two thirds of those provisions actually make it clear that the recognition of such a marriage from out of state would violate public policy. In the rest of the states (and in those with no mini-DOMA at all), courts have more leeway to make sensible and fair decisions.

THE FEDERAL "DEFENSE OF MARRIAGE" ACT

Onto this complex but fairly stable legal landscape, the federal statute known as the "Defense of Marriage" Act was imposed in 1996. At the time of its enactment, DOMA was sold to the Congress, the President, and the American people as a necessary move to "protect" objecting states from being forced to recognize the marriages of same-sex couples performed in other jurisdictions. This was not true, and never has been. Putting to one side for the moment questions of fairness, sensible policy, and principles of equal protection, it has long been clear that states have the authority to deny recognition to an out-of-state marriage based on a public policy objection. (Once again, although respected scholars like Kramer and Singer, and respected advocates like Evan Wolfson, have argued that the public policy exception should be categorically rejected, those views remain in the minority.) If states are concerned about the prospect that they will be compelled by New York, Massachusetts, or some other state to recognize the marriages of same-sex couples, those concerns have always been misplaced. States did not need the federal Defense of Marriage Act for that. If tomorrow, we were to enact the Respect for Marriage Act and repeal DOMA in its entirety, states would possess the same power that they have always had to refuse to recognize out-of-state marriages on public-policy grounds.

Some commentators, understanding this fact, have turned the argument around, suggesting that repealing the full faith and credit portion of DOMA would not accomplish anything and is unimportant. (DOMA also has a section that prohibits the federal government from extending equal federal benefits to same-sex couples who are married, civilly united or domestically partnered under state law. Everyone acknowledges the significance of repealing that portion of the law.) This view -- that repealing the full faith and credit portion of DOMA would do nothing and is unimportant -- is also wrong. Although the states do have the power to deny recognition to the out-of-state marriages of same-sex couples with or without DOMA, the full faith and credit portions of DOMA harm LGBT people in at least three important ways.

First. The language of DOMA purports to give states the ability to deny recognition not just to the marriages and civil unions of same-sex couples (which states could do anyway), but also to any court judgment "respecting" the marriage or union of a same-sex couple, or respecting a right or claim arising out of that relationship. Recall the important distinction discussed above between a court judgment and a marriage. Unlike the ordinary recognition question, states have a mandatory obligation, subject to very few exceptions, to give effect to judgments rendered by courts in other states around the country. For the first time in the history of the United States, the Defense of Marriage Act takes one class of people -- same-sex couples -- and says that courts may simply disregard judgments rendered by the courts of other states when those judgments are in some way based upon the couple's relationship. So, if an insurance company is ordered to pay a claim on a policy, or a reckless driver is ordered to pay a damages award, or a court issues a ruling on custody or support, DOMA now gives hostile states the unprecedented power to ignore those out-of-state judgments altogether. The potential for harm and disruption that this provision of DOMA inflicts upon the families, the finances, and the stability of same-sex couples is severe.

Most state legislatures have no idea that DOMA gives them this kind of power, and most people certainly did not have this important issue in mind when DOMA was enacted. For example, I testified before the Judiciary Committee of the Pennsylvania Senate several years ago about the possible effects of a mini-DOMA constitutional amendment that they were considering. In my testimony, one of the things I discussed was the impact of the federal DOMA on the enforceability of court judgments. The legislators were astonished. No one had ever explained to them that the federal DOMA gave them such a dangerous power.

Second. DOMA encourages states to avoid any kind of serious analysis when they are presented with a recognition question. While the states have never had a mandatory obligation to recognize the relationship of an out-of-state couple who could not marry locally, some states have nonetheless chosen to extend such recognition as a matter of sensible policy. As the discussion above explains, these are complicated issues. Recognition questions arise in all kinds of different situations. There are many circumstances in which a state might decide that it is good public policy to recognize a couple's marriage, even if the couple would not have been allowed to marry under local state laws. State courts have been using careful analysis to work out sensible answers to these questions for a long time. In enacting DOMA, however, Congress sent a signal to the states that they should not ask questions about what constitutes good and sensible policy when it comes to same-sex couples. Rather, Congress invited the states to give over-simplified answers, exercising a blanket prerogative to reject same-sex relationships for all purposes. DOMA, in other words, validates and encourages the states to treat same-sex couples with legal hostility.

Third. The full faith and credit provisions of DOMA are a gratuitous affront to the dignity of 10,000,000+ LGBT Americans. Never before in the history of the Republic has Congress singled out one class of citizens and proclaimed that their relationships would be treated with hostility in interstate relations. The historical antecedent of interracial marriage is instructive. For the first eighty years of the Republic, people of African descent were enslaved, and they were denied the rights of citizenship under the Dred Scott decision even when they were free. No other group of people in the United States has suffered a similar harm. But once African-Americans were recognized as citizens under the Thirteenth and Fourteenth Amendments, and the issue of interracial marriage arose and became sharply contested, even the long American history of racial animus did not lead Congress to single out interracial relationships for the kind of discriminatory treatment in interstate relations that DOMA affords to same-sex couples. In this important respect, DOMA represents an unprecedented affront.

In Summary:

• The states never needed DOMA in order to refuse recognition to out-of-state marriages between same-sex couples. If they are bound and determined to refuse to give any recognition to those relationships, they already have the power to do that, and repealing DOMA in its entirety will not change that fact.

• Repealing DOMA remains vitally important, however, because the statute places in jeopardy all court judgments that are based upon the existence of a same-sex relationship. Authorizing states to refuse to enforce this one class of out-of-state judgments -- something that has never been done in the history of the United States -- disrupts family and financial relationships and encourages irresponsible behavior.

• DOMA also has the effect of encouraging states to avoid the kind of serious analysis that marriage recognition disputes require. There are many situations in which it makes sense for a state to recognize the relationship of a same-sex couple, even if the state would not allow the couple to marry in the first place. States have an obligation to analyze those situations carefully. DOMA encourages states to treat these couples with hostility, and it represents a particular type of affront to one class of citizens that is unprecedented in federal law.

***

Tobias Barrington Wolff
Professor of Law
University of Pennsylvania Law School
http://www.law.upenn.edu/cf/faculty/twolff/

READING THE CRITIQUE PART TWO

The Philosophical Situation as Kant Saw It

It is essential, in approaching any great philosophical work, to begin with a reasonably clear picture of the philosophical state of play as it was understood by the author at the time he or she was writing. All philosophy is written in a context of argument and debate into which the author seeks to insert himself or herself. Questions may appear urgent or unavoidable to the author that strike us, many centuries later, as marginal or even incomprehensible. What makes a work of philosophy great is that it seizes on this debate and wrests from it an entirely new and revolutionary insight.

I begin with this banal observation because Kant's conception of what was happening in late eighteenth century European philosophy is now widely thought to have been, in a number of respects, inaccurate or just wrong. But it was Kant's understanding of the theoretical situation, and his grand plan for a Critical Philosophy, at least initially, was entirely informed and guided by that understanding.

Briefly, the story is that for almost two centuries, a great debate had been taking place between Rationalists and Empiricists about a wide range of great questions, including the existence of God, the nature of space, time, and causation, whether reason or sensibility is the source of human knowledge, and the scope, limits, even the very possibility of such knowledge. The debate was launched by Descartes' Meditations on First Philosophy. The principal voices on the rationalist side of the debate were those of Descartes himself and Leibniz, together with such lesser figures as Christian Wolff, whose version of the rationalist position had a very great influence on Kant during his formative years. On the empiricist side the major figures were the great trio of British philosophers, Locke, Berkeley, and Hume [or as my old professor Henry Aiken used to like to refer to them, Locke, Stock, and Barrel.] The rationalists claimed that the distinguishing mark of genuine knowledge is certainty, that the faculty of reason is the source of knowledge, that sense perception is a faulty source of knowledge, yielding inadequate or even contradictory beliefs, and that by the proper use of reason we can in fact know the existence and nature of God and the fundamental laws of the physical universe, as well as the truths of mathematics. The empiricists claimed that all knowledge derives from sense perception, reason merely being a tool for comparing and rearranging the ideas we derive from the senses, that sense perception cannot give us knowledge of God, indeed, that it may even be unable to give us certain and indubitable knowledge of the causal relations of objects in space and time. Because of the accident of their nationalities, the debate was thought of as taking place between Continental Rationalists and British Empiricists. When I was a lad, Philosophy Departments in the United States routinely offered courses on Continental Rationalism and British Empiricism, as though the disputes between the two groups of thinkers were political and territorial rather than philosophical.

A great deal of fine scholarly work in the past half century has called this picture thoroughly into question [including my own work on Hume -- see my early paper, "Hume's Theory of Mental Activity," derived from my doctoral dissertation] , but Kant accepted it pretty much lock, stock, and barrel [I could not resist]. He referred to it as a contest between Dogmatism and Scepticism. As have said, his philosophical education at the provincial University of Konigsberg was grounded in Leibnizean rationalism, in the version advanced by Christian Wolff and taught to Kant by a Wolffian disciple, Martin Knutzen. Kant's earliest published writings are forays into the debate very much from a Leibnizean point of view.

As a young philosopher, Kant conceived a rather neat and facile way of representing the state of the debate between the Dogmatists and the Sceptics. [I apologize for going on at this length before even approaching the Critique -- I realize now that this purely introductory series of posts is going to run on a good deal longer than I had originally thought. Oh well, you are warned.] He conceived the dispute as having settled by the middle of the eighteenth century into what he called an Antinomy -- that is to say, a debate in which each side is adept at refuting the claims of its opponents, but unable to defend itself against its opponents' refutations. The customary way to analyze an antinomy of this sort is to identify some unacknowledged premise on which both sides are basing their arguments, and, after bringing it to light, showing it to be false, thus undermining the positions of both camps. Although by the time he published the Critique Kant had moved far beyond the terms of this debate, he never gave up his neat formulaic way of understanding the positions of his predecessors, and as readers already familiar with the text of the Critique are aware, there is a rich, complex one hundred page section of the work entitled "The Antinomy of Pure Reason," in the course of which he puts to rest many of the old disputes.

[A brief aside: There is a long tradition in philosophy of great thinkers misrepresenting the views of their predecessors for their own purposes. One need only look at the opening sections of Aristotle's Physics.]

Kant's entire life was spent in the port city of Konigsberg [now Kaliningrad], on the shores of the Baltic Sea, in what was then Prussia. After an early stint as a tutor to the sons of a Prussian Junker [one would like to have been a fly on that wall!], he secured a position as a privatdozent, or authorized lecturer, at the University of Konigsberg. His early writings gained him sufficient recognition to lead to at least one offer of a Professorship [of poetry!!] at another university, but Kant chose to remain in his home town, and in 1770, he was appointed Professor of Logic and Metaphysics. The formal ceremonies of installation called for the candidate to present a public lecture in Latin, an "Inaugural Dissertation," and Kant used the opportunity to lay before his audience a quite new doctrine designed to resolve the dispute between Rationalism and Empiricism. The Inaugural Dissertation of 1770, as it is always referred to, was the very first version of what would become, in the Critique, The Critical Philosophy.

Tomorrow: Kant's first bite at the apple.

READING THE CRITIQUE PART ONE

A Preface to My Readers

With this initial post, I begin what I conceive as a series of introductory suggestions for the study of Immanuel Kant's great work, the Critique of Pure Reason. These suggestions are in no way a substitute for the serious study of what is arguably the greatest work of philosophy ever written, but they may be of interest, or even of use, to readers of this blog, and it is with that hope that I offer them.

I imagine myself to be addressing three audiences. The first audience, undoubtedly small, if not the null set, consists of serious scholars and students of the philosophy of Kant who have long since engaged deeply with the text, but may find it enjoyable to hear the old songs sung once again -- scholars for whom the reading of these suggestions will be, in Kant's words from the end of the Preface of the First Edition, "a task which is rather an amusement than a labour." [A xxi. A word about citations. Kant published the Critique in 1781, and brought out a second edition very much revised in certain respects in 1787. Since the texts of both editions are essential to understanding his meaning, scholars have adopted the practice of referring to the first edition as the A edition and the second edition as the B edition. Many modern editions and translations, including the translation by Norman Kemp Smith to which I shall be referring, put the A and B pagination from the original editions in the margins so that one can immediately identify the page in the original first or second edition being translated. Thus, to choose one example at random, the Second Antinomy in the Transcendental Dialectic starts at A434=B462, which is to say page 434 in the First Edition and page 462 in the Second Edition.]

The second audience to whom I address these remarks is composed of those who have had some engagement with the philosophy of Kant but have, perhaps, read no more than selections from the Critique, if even that. They may have been intimidated by the famous difficulty of the text, but would like a gently paced introduction to its mysteries, perhaps in the hopes of some day tackling it. Judging from the comments to previous blog posts, I imagine there may be a number of readers who fall into this category.

Finally, I should like to think that these remarks will attract a number of readers who are completely innocent of any knowledge of Kant's thought but have heard him praised and would very much like to have some idea what all the fuss is about. My fondest wish is that there might be some of you who start in this third group and are encouraged, dare I say inspired, to advance to the second or even the first group.

Some reading suggestions: First, of course, if you have the time and the stomach for it, haul out your dog-eared copy of the Critique, or buy a new one in paper from Amazon.com. The German is preferable, but I shall at all times be referring to the Kemp-Smith translation. [Do not waste time with the old Max Muller translation.] These "suggestions" will not in any way be a commentary on the text, nor will I assume that you have so much as looked at the book, but if you want a close commentary on, and explication of, the central portion of the Critique, I would of course recommend that you obtain a copy of my 1963 book, Kant's Theory of Mental Activity. There is a vast library of commentaries on Kant's philosophy, and I certainly do not intend to spend time guiding you to my competitors, but if you are interested, you might look at Peter Strawson's The Bounds of Sense, which is by a philosopher who was important in his own right, and whose book offers a view of Kant's central arguments that is in certain ways the polar opposite of my own.

Four Sources of the Difficulty of the Critique

Contrary to popular opinion, the Critique is actually written in a clear and accessible style, unlike some works written by Germans considered his philosophical heirs [hem, hem.] But for four reasons, it is a very difficult book to master, and it might be useful for me to identify those reasons and say a few words about them.

First of all, the Critique is very much a work of professional philosophy, addressed to the relatively small world of serious students of the subject, and Kant uses the specialist vocabulary that was current in his day. In this respect, his work differs from that of Plato or Rousseau or even Hume, but is like that of Aristotle or Aquinas or Descartes. Contemporary readers would have found much of what Kant says familiar and comprehensible, but two hundred thirty years have passed since the First Edition burst upon the scene, and fashions change. So if we wish to engage with Kant's thought, we must, in the immortal words of W. S. Gilbert, "learn up all the germs of the transcendental terms."

The second problem is that Kant was a hypochondriac. Although he lived to be eighty [his dates are 1724-1804], Kant was beset by fears about his health. In the late 1770's, when he was in his fifties and hard at work simultaneously on an extraordinary array of fundamental philosophical problems, he grew fearful that he would not live long enough to get it all in paper. So in 1780-81, he rushed to "bring the Critique to completion," using lengthy chapters and passages that he had in some cases written a decade earlier. The first part of the Critique, for example, usually referred to as "The Aesthetic," contains entire segments taken word for word from the Inaugural Dissertation written in 1770 [more of that later], despite the fact that in the intervening time Kant had completely changed his position on almost all of the most basic questions of epistemology and metaphysics. The result is that the text of the First Edition [and also of the Second Edition] is replete with internal contradictions and incompatibilities. One must simply be aware of this fact in reading the text and make allowances for it.

[Brief digression: When I was a graduate student, we used to play a game that consisted in filling in the blanks in the following matrix: "I am now older than ___ was when he wrote ___." Bishop Berkeley was a real downer, having written the Principles at age twenty-one! Hume was not much better, inasmuch as he published the three volumes of the Treatise, arguably the greatest work of philosophy in the English language, when he was twenty-eight and twenty-nine. But we all held out hopes for Kant, who was fifty-seven when the Critique appeared, and good old Locke, who did not bring out the Essay until he was fifty-eight.]

The third problem in reading the Critique is The Architectonic. Kant was a compulsive, enormously imaginative systematizer, constantly thinking up elaborate schemata into which to fit the myriad of philosophical doctrines that he was unfolding. One can understand his need for these pigeonholes and hat racks, because he was attempting, simultaneously, to set out an integrated theory of just about everything: Epistemology, Metaphysics, Rational Theology, Logic, Mathematics, Ethics, Politics, Law, Art. The problem is that he was never satisfied with just one way of organizing things -- he had four or five, each of which he asserted with absolute confidence was the objective, necessary, indubitable, and only way of arranging his teachings. The Critique itself exhibits at least three different and incompatible principles of organization. What is more, Kant was so pleased with his Architectonic that he trumpeted its supposed completeness as a proof of its correctness. Here he is again in the Preface in A [Axiii]:

"In this enquiry I have made completeness my chief aim, and I venture to assert that there is not a single metaphysical problem which has not been solved, or for the solution of which the key has not been supplied. Pure reason is, indeed, so perfect a unity that if its principle were insufficient for the solution of even a single one of all the questions to which it itself gives birth we should have no alternative but to reject the principle, since we should then no longer be able to place implicit reliance upon it in dealing with any one of the other questions."

Now, "a place for everything and everything in its place" is not much of an argument for the fundamental principles of all knowledge, but Kant really seems to have placed great store by this claim, and so we must note it, and then just move on.

Finally, we come to the fourth and most difficult problem in reading the Critique: the sheer depth and difficulty of his most important philosophical arguments, and their incompatibility with the more superficial premises of the Architectonic. Early in his development of what eventually came to be called The Critical Philosophy, Kant worked out in his mind a grand bargain between Science and Ethics that allowed a place for both Newtonian Physics and the absolutely universal, objective, necessary First Principle of Morality, the Categorical Imperative. This bargain [if I may continue to speak in this manner] rested on certain theses about the nature of concepts and the limits of human knowledge, and also on a distinction, taken over from the ancient Greeks, between Appearance and Reality. Kant needed this bargain to demonstrate in the First Critique the cognitive validity of Euclidean Geometry [which was mathematics, to Kant] and Newtonian physics [which was science to just about everybody in those days], while also leaving room in the Groundwork of the Metaphysics of Morals and the Critique of Practical Reason for the demonstration of the validity of the principles of morality.

Had Kant simply stuck to his original plan, and laid things out in accordance with this grand bargain, he would be remembered as one of the greatest philosophers ever to live. But in the course of writing the central portion of the First Critique, Kant saw and struggled with certain very deep problems with the central theses and concepts of his grand bargain. Like Jacob, who wrestled all night with the Angel of the Lord and would not let him go until he blessed him, Kant wrestled with these problems, and emerged with a new understanding of the nature of consciousness, reason, and knowledge that for all time totally transformed all of Western philosophy.

But Kant was not a young man, he was frantic to get his entire magnificent vision on paper, and it was too late for him to throw out the entire grand bargain and reconsider it from the ground up. So once he resurfaced after his plunge into the depths of the problems [one thinks of Gandalf the Grey emerging from his battle with the Borlag and transformed into Gandalf the White], Kant reverted to the comforting neatness of The Architectonic and went on writing as though the old premises and understandings were still in place, unquestioned.

This fact poses a fundamental problem for the interpreter of The Critical Philosophy. One can simply take Kant at his word, and trot along beside him, repeating contradictory things as though they were compatible. Or, one can confront the profound reality of what is going on in the Critique and make a series of decisions about which parts of Kant's philosophy to embrace and which to scuttle. No matter what choices one makes, one will be untrue to Kant in some way or other, and critics will have no trouble quoting chapter and verse to demonstrate that one has misread Kant. This is the problem I confronted fifty years ago when, as a young man, I strove to wrestle with the Critique and make it yield up its secrets to me. Other commentators have made different choices, driven by their different philosophical concerns and convictions. It is a testament to the greatness of Kant's great work that it can sustain a number of incompatible strong readings, as the literary critics would put it.

So much for a clearing of the throat. Now let us begin.