I. MORALITY OR CONVENTION?

American lawyers are audacious by nature and have been known, on more than one occasion, to make outrageous arguments on behalf of their clients. Yet there is one claim that even the most shameless of lawyers would not put forward in an American court: No one would ever challenge the idea that the United States Constitution is law in the United States.1. Imagine a lawyer saying to a judge: “Yes, your honor, I concede that my client purposefully engaged in multiple acts of counterfeiting. But, unfortunately for the prosecution, Article I of the Constitution is not good law, and hence Congress lacks the authority to criminalize counterfeiting. The court has no choice but to set my client free.” For if there is one proposition of law that enjoys universal acceptance by the bench and is held with unshakable conviction, it is that the United States Constitution determines the authority structure of the federal government and is legally binding on all officials.

INTRODUCTION

There is a type of organization found in certain collectivities that makes them into subjects in their own right, giving them a way of being minded that is starkly discontinuous with the mentality of their members. This claim in social ontology is strong enough to ground talk of such collectivities as entities that are psychologically autonomous and that constitute institutional persons. Yet, unlike some traditional doctrines (Runciman 1997), it does not spring from a rejection of common sense. I try to argue here that the claim is supported by the implications of a distinctive social paradox—the discursive dilemma—and is consistent with a denial that our minds are subsumed in a higher form of Geist or in any variety of collective consciousness. And having done that, I draw attention to one way in which the claim may prove to have policy-making implications.

I. INTRODUCTION

Ian McEwan’s Enduring Love opens with a scene as powerful as any novel has given us in recent years: The pilot of a hot-air balloon, down in a field, is struggling against a sudden gust to get control; the balloon’s basket contains a child, perhaps the pilot’s son. The novel’s narrator, lunching in the countryside, realizes with horror that the pilot cannot gain control, that the balloon will be lifted up by the wind and almost certainly blown into high-tension lines nearby. Fortunately there are some others who have also spotted the problem, and the narrator and they converge on the balloon to help the pilot secure it. They are eager but uncoordinated; as McEwan says: “There may have been a communality of purpose, but we were never a team.”

I.

Often, I have a reason to φ and derived from it I have a reason to try to φ. But not always. A reason for me to try to φ derives from a reason for me to φ only if my trying to φ will contribute to my φing. In cases of two distinct types my trying to φ does not pass this test. In cases of the first type, I lack the ability to φ at all, so nothing that I do (including but not limited to my trying to φ) will contribute to my φing. I will never sing like Ella Fitzgerald whatever I do, so there’s nothing to be gained by trying. In cases of the second type, I have the ability to φ but lack the ability to φ-by-trying-to: trying to φ is counterproductive; it would be better, from the point of view of my φing, if I aimed at something else instead, possibly even at −φing. Trying to impress people, or trying to be funny, or trying to make oneself popular may all have the opposite effect. The funniest thing, indeed, is sometimes trying to be serious in the face of absurdity. On such an occasion a reason to be funny yields no reason to try to be funny, but it does yield a reason to try not to be funny.

I. LEGAL POSITIVISM AND JOINTLY INTENTIONAL ACTION

Shapiro asks: “[W]hat ultimately makes it the case that a particular legal system has a particular authority structure?” (p. 388).1. This is a revised version of my response to Scott Shapiro’s Law, Plans, and Practical Reason address at the Yale Workshop on Participation and Commitment in Law, Politics, and Morality (October, 2001). Parenthetical page references are to Shapiro’s paper on p. 387 in this issue. “The legal positivist answer,” Shapiro notes, “would not point to a moral fact but rather to a social fact.” In the case Shapiro highlights, for example, the legal “positivist would argue that it is simply true by legal convention that the United States Constitution is the law of the United States” (p. 388). Shapiro aims at developing a novel version of this answer. On his view, the determinants of legal authority are certain structures of intentions and plans embedded in jointly intentional activities in which relevant legal officials are engaged. The problem of legal authority is in part a problem in the philosophy of social action.2. Shapiro is not alone in taking some such tack. Both Jules Coleman and Christopher Kutz, in part under Shapiro’s influence, have also pursued related ideas. Coleman, THE PRACTICE OF PRINCIPLE (Oxford, 2001), see lecture 7; Kutz, The Judicial Community, 11 PHILOSOPHICAL ISSUES 442-469 (2001). Coleman appeals to a strong form of shared activity, namely shared cooperative activity; Kutz appeals to a rather weak form of collective activity. The jointly intentional activity to which Shapiro appeals is in a middle ground here.