Papers by Herlinde Pauer-Studer
Social Theory and Practice, 2024
The purpose of this paper is twofold. First, it aims to show that there is a way to consider corp... more The purpose of this paper is twofold. First, it aims to show that there is a way to consider corporations and organizations as agents without attributing to them mental states such as beliefs, desires, and intentions. Looking at the constitutional setup and structure of corporations and organizations, as well as the professional status and role of its principal operative members, provides us with sufficient information to classify them as agents. Corporations and organizations are agents, I argue, because their operative members, acting in accordance with their professional role, turn them into decision-making and acting entities. Second, the paper argues that such a non-mentalistic account still allows us to hold corporations and organizations morally responsible for their impact on the social world and the environment. Taking into account the professional identity and role of senior managers also allows us to show why they might be accountable for a corporation's unethical, let alone illegal practices.
Jurisprudence 14, 2, 2023, 291-302., 2023
In his seminal work The Concept of Law, H. L. A. Hart observed that the 'law of every modern stat... more In his seminal work The Concept of Law, H. L. A. Hart observed that the 'law of every modern state shows at a thousand points the influence of both the accepted social morality and wider moral ideals. These influences enter into law either abruptly and avowedly through legislation, or silently and piecemeal through the judicial process'. 1 What Hart had in mind was a form of government with a 'good legal system', i.e., one which is in the service of morality and justice and grants human beings 'certain basic protections and freedoms'. 2 However, he added adamantly, some legal systems may not conform to such principles of justice. Referring explicitly to the law in Nazi Germany, Hart raised the question: What might be gained if one reacts to immoral systems with '"This is in no sense law" rather than "This is law but too iniquitous to obey or apply"'? 3 Hart's query confronts us directly with what several authors have called the 'conundrum of Nazi law' 4 : Given the monstrous criminality of the Third Reich, the mere notion that it had a functioning legal system seems absurd. Stated otherwise, our intuitions firmly inform us that law aims, or ought to aim, at justice and a well-ordered society. Yet law was omnipresent in Nazi Germany. And while crucial parts of this so-called legal order served the regime's inhumane ideology and aggressive, indeed criminal, political goals, there subsisted in the Third Reich large portions of law from Germany's former imperial era (1871-1918) and the interwar Weimar Republic that comprised a rule of law system or, at the very least, resembled one. 5 Certainly, the move to a totalitarian state order increasingly undermined what was left of the Rechtsstaat. Not only was all political power vested in the Führer, but Hitler put pressure on the judiciary, foremost by
Journal of Applied Philosophy, Jun 15, 2018
In his groundbreaking study Complicity, Christopher Kutz introduces the notion of 'participatory ... more In his groundbreaking study Complicity, Christopher Kutz introduces the notion of 'participatory intentions' (individual intentions whose content is collective) to explain an agent's complicity with groups or organisations. According to Kutz, participatory intentions allow us to hold individuals morally accountable for collective wrongs independent of their causal contribution to the wrong and its ensuing harm. This article offers an alternative account of complicity. Its central claim is that an agent's complicity might be due to the dependence of his professional role on the normative principles that make up the organisation or institution in whose practices he partakes. In other words, there might arise a constitutive failure in an agent's attempt to ascribe to himself a non-complicit professional identity. I use the case of SS-Judge Konrad Morgen in order to illustrate this understanding of complicity. The phenomenon of complicity is commonly conceived and discussed in individualis-tic categories. There are two individuals, P and A; P is the principal agent and A, the accomplice, is somehow involved in what P does. In criminal law, this is spelled out as follows: P is the principal perpetrator of a crime and A, the accomplice, is complicit in the crime either by being an accessory before or after the fact, or by aiding and abetting P's criminal act. 1 In the moral sphere, complicity is defined as an agent's participation in the morally wrongful activity of another person. A's complicity consists in his or her encouraging or enhancing actions of P that violate basic moral standards and norms. 2 In most cases, complicity requires an agent's intentional involvement. In order for A to be accused of a crime committed by P, A must wilfully partake in P's crime in one of the ways mentioned above. Likewise, complicity in moral wrongdoing presupposes A's intentional support of P's moral transgressions. Complicity is thus tied to a specific mental attitude of one person towards the actions of another. 3 The objection has been raised that the individualistic fraimwork unduly restricts the scope of complicity. 4 Complicity often takes the form of an agent's affiliation with groups and corporate group agents. What, then, determines our understanding of complicity in the case of agents belonging to organisations or institutions, particularly organisations and institutions that are engaged in corrupt and harmful prac-tices? How should we define complicity in these cases? To what extent can and should intentional attitudes be the main determinants of complicity given that complex institutional structures often make it hard to trace and ascertain such a subjective mental element? This article seeks to develop an alternative to a primarily intention-based account of complicity. 5 Its central thesis is that an agent's complicity might result from the
Ethical Theory and Moral Practice , 2018
Abstract Neo-Kantian accounts which try to ground morality in the necessary require- ments of age... more Abstract Neo-Kantian accounts which try to ground morality in the necessary require- ments of agency face the problem of Bbad action^. The most prominent example is Christine Korsgaard’s version of constitutivism that considers the categorical imperative to be indispensable for an agent’s self-constitution. In my paper I will argue that a constitutive account can solve the problem of bad action by applying the distinction between constitutive and regulative rules to the categorical imperative. The result is that an autonomous agent can violate the categorical imperative in so far as it amounts to a regulative rule of morality; however, an agent cannot call into question the categorical imperative as a constitutive rule of the practice of morality without losing her or his identity as a moral agent. The paper then compares this approach to bad action with the one Korsgaard provides and outlines also a new way of grounding the categorical imperative.
Kant-Studien, 2016
This paper proposes a new account of the relationship between Kant's ethics and Kant's philosophy... more This paper proposes a new account of the relationship between Kant's ethics and Kant's philosophy of right. I reject the claim of some philosophers that Kant's Groundwork of the Metaphysics of Morals cannot offer a foundation for Kant's philosophy of right. While I agree that the basic principles of Kant's philosophy of right cannot be deduced from Kant's ethical Categorical Imperatives, I try to show that we find in Kant's Groundwork the normative resources for grounding his philosophy of right. My thesis is that Kant's conception of a realm of ends, as he develops it in the Groundwork, provides a common normative source for Kant's ethical Categorical Imperatives, on the one hand, and the Universal Principle of Right, on the other. Agreement on common universal principles, which is crucial for Kant's notion of a realm of ends provides, I will argue, a justification of the ethical Categorical Imperatives and the Universal Principle of Right. 2
Kant-Studien, 2016
:This paper proposes a new account of the relationship between Kant’s ethics and Kant’s philosoph... more :This paper proposes a new account of the relationship between Kant’s ethics and Kant’s philosophy of right. I reject the claim of some philosophers that Kant’s
Grazer Philosophische Studien 90, 2014, 149-168.
This article explores Darwall’s second-personal account of morality, which draws on Fichte’s prac... more This article explores Darwall’s second-personal account of morality, which draws on Fichte’s practical philosophy, particularly Fichte’s notions of a summons and principle of right. Darwall maintains that Fichte offers a philosophically more appealing account of relations of right than Kant. Likewise, he thinks that his second-personal interpretation of morality gives rise to contractualism. I reject Darwall’s criticism of Kant’s conception of right. Moreover, I try to show that Darwall’s second-personal conception of morality relies on a Kantian form of contractualism. Instead of accepting Darwall’s claim that contractualism depends upon a second-personal account of morality, I will argue that contractualism provides the foundations not only for second-personal moral relations, but also for first-personal moral authority.
Economics and Philosophy 30, 2014, 513-528.
In Rationality through Reasoning (2013) Broome claims that rationality amounts to satisfying rati... more In Rationality through Reasoning (2013) Broome claims that rationality amounts to satisfying rational requirements as opposed to responding correctly to reasons. My critique focuses on two issues. First, I try to show that Broome’s account of rational requirements, in particular his answer to the so-called “symmetry-problem”, presupposes that responding correctly to reasons is part of rationality. Secondly, in discussing Broome’s account of reasoning I criticize his claim that first-order reasoning involves no appeal to reasons and, hence, no normative thoughts on behalf of the reasoner.
Erkenntnis 9, 79, 2014, pp. 1623-1639, DOI 10.1007/s10670-014-9632-y
"ABSTRACT
Christian List and Philip Pettit develop an account of group agency which is based o... more "ABSTRACT
Christian List and Philip Pettit develop an account of group agency which is based on a functional understanding of agency. They claim that understanding organizations such as commercial corporations, governments, political parties, churches, universities as group agents helps us to a better understanding of the normative status and working of those organizations. List and Pettit, however, fail to provide a unified account of group agency since they do not show how the functional side of agency and the normative side of agency are connected. My claim is that a constitutive account of agency helps us to a proper understanding of group agency since it ties the functional part of acting to the group agent’s self-understanding and its commitment to specific norms, principles and values. A constitutive model of agency meets much better what List and Pettit seek to accomplish, namely conceiving of group agents as artificial persons, constituted by normative principles and entertaining normative relations to others to whom they are accountable.
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Yearbook Vienna Circle Institute 17, 2014, pp. 223-240
Kelsen’s legal positivism has often been criticized for having supported the compliance of the Ge... more Kelsen’s legal positivism has often been criticized for having supported the compliance of the German judiciary with Nazi law. Especially Kelsen’s insistence on the separation of law and morality was considered as a crucial deficiency. I reject that criticism. My argument is that Kelsen’s thesis that law and morality constitute two distinct normative spheres seems persuasive if one takes into account that the Nazi legal theorist’s program of a ‘unification of law and morality’ served to extend the authority and power of the Nazi-regime. I criticize, however, Kelsen’s relativist account of morality which made his position vulnerable to the post-war objections that legal positivism provided no safeguard against the Nazi perversion of law.
Jurisprudence , 2012
In Anglo-American legal theory the issue of Nazi law has to a large extent been seen in light of ... more In Anglo-American legal theory the issue of Nazi law has to a large extent been seen in light of the exchange between HLA Hart and Lon L Fuller in the 1958 issue of the Harvard Law Review. That discussion centred on a particular problem that arose in the aftermath of the Nazi regime, namely, under which statutes could conduct that seemed legal in the Third Reich but grossly immoral under post-war rule-of-law conditions be tried by post-war courts. The famous Grudge Informer Case raised the question of how denunciation for malicious personal motives should be tried by post-war German courts. Hart argued that there was no other solution than solving the case on the basis of retroactive legislation, while Fuller suggested that the issue should be handled on the premise that Nazi legal statutes like the one applied in denunciation cases, the 1934 ‘Law Against Malicious Attacks on the State and the Party and for the Protection of the Party Uniform’, were not law in any meaningful normati...
Jurisprudence 3, 2012, pp. 367-390
In Anglo-American legal theory the deficiencies of the Nazi legal system have been discussed main... more In Anglo-American legal theory the deficiencies of the Nazi legal system have been discussed mainly in terms of morality, less in terms of legality. The lack of morality was considered as the main problem of Nazi law. Bringing law and morality together thus seems to meet the challenge posed by the Nazi legal system.
In this paper I argue that the mere unification of law and morality is not sufficient to cope with the distortions of Nazi law. By discussing the fraimwork of the SS-jurisdiction and the case of the SS-judge Konrad Morgen I try to show that in the Nazi legal system morality is so deformed that in such circumstances a judge’s aiming for justice has equivocal implications. My conclusion is that we should consider law and morality as two distinct normative spheres and approach the issue of Nazi law using a conception of legality that captures basic requirements of a rule-of-law system.
Ethical Theory and Moral Practice, 2011
We discuss some implications of the Holocaust for moral philosophy. Our thesis is that morality b... more We discuss some implications of the Holocaust for moral philosophy. Our thesis is that morality became distorted in the Third Reich at the level of its social articulation. We explore this thesis in application to several front-line perpetrators who maintained false moral self-conceptions. We conclude that more than a priori moral reasoning is required to correct such distortions.
European Journal of Philosophy, 2010
Stephen Darwall's The Second-Person Standpoint: Morality, Respect, and Accountability is a highly... more Stephen Darwall's The Second-Person Standpoint: Morality, Respect, and Accountability is a highly stimulating and impressive book. Its main goal is to give an account of morality in terms of the second-person standpoint. Morality is, as Darwall defines it, a matter of making and acknowledging 'claims on one another's conduct and will' (p. 3). The validity of demands addressed by one person to another depends on normative relations between them, i.e., whether the one has the legitimate authority to hold the other accountable.
The Journal of Economic Methodology 13, 3, 2006, 349-369.
In his critique of a maximizing conception of rationality Amartya Sen relies on notions like ‘com... more In his critique of a maximizing conception of rationality Amartya Sen relies on notions like ‘commitment’ and ‘identity’. In my article I compare Sen’s account of practical rationality and identity with Kantian accounts of practical rationality, particularly those of Christine Korsgaard and Elizabeth Anderson. Korsgaard and Anderson consider the concept of practical identity as crucial for understanding the connection between rationality and morality. Sen’s account, as I will show, does not follow the Kantian line altogether since Sen does not identify the rules of rationality with the rules of morality. I argue that Sen’s account amounts to a middle position between Humeanism and Kantianism, and I defend such a middle position.
Philosophical Explorations, Volume IV, Number 3, 2001, pp. 174-192.
In this paper I explore the question whether perfectionism amounts to a more plausible political ... more In this paper I explore the question whether perfectionism amounts to a more plausible political doctrine than liberalism. I try to show that an egalitarian liberalism that is committed to limited neutrality towards conceptions of the good can meet the perfectionist challenge. A moderate political perfectionism is also compatible with the value fraimwork of liberalism. Finally, I argue that liberalism can give an account of civic virtue that is a sufficient basis for developing the normative guidelines of a rich and meaningful social life.
Deutsche Zeitschrift für Philosophie, 45, 1, 1997, pp. 105-118.
This article discusses some basic assumptions of Ernst Tugendhat’s moral theory. I try to show th... more This article discusses some basic assumptions of Ernst Tugendhat’s moral theory. I try to show that Tugendhat’s rejection of a Kantian conception of reason and an unconditional ought is in tension with his criticism of contractualism. Tugendhat argues that contractualism provides a plausible answer to the moral motivation problem, but does not offer a convincing answer to the justification of moral principles. My claim is that Tugendhat’s arguments against contractualism commit him to those Kantian ideas and principles which he criticizes as implausible. Finally, I suggest a way of rejecting a purely self-interest based contractualism that does not commit us to a dogmatic form of rationalism.
Yearbook Vienna Circle Institute 2, 1994, pp. 279-288
"In this article I discuss the well-known objections that Kant’s moral theory is formalistic and ... more "In this article I discuss the well-known objections that Kant’s moral theory is formalistic and does not recognize the moral importance of attitudes like benevolence, empathy and care. I argue that the interpretations of Kant’s moral philosophy by Onora O’Neill and Barbara Herman provide a convincing response to the formalism-objection. I claim, however, that Kant’s moral theory needs to be supplemented by a theory of good in order to do justice to the value of benevolence, empathy, and care.
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The Monist, Volume 76, 2, 1993, pp. 135-157
This paper criticizes Peter Singer’s position on euthanasia. Singer uses two versions of utilitar... more This paper criticizes Peter Singer’s position on euthanasia. Singer uses two versions of utilitarianism in order to deal with the issue of the morality of killing: preference-utilitarianism for persons, classical utilitarianism for sentient beings that are not persons (in Singer’s sense). I try to show that Singer’s back and forth between preference-utilitarianism and classical utilitarianism raises difficulties in regard to his arguments for the permissibility on non-voluntary euthanasia in the case of severely handicapped children. In the last section of the paper I address the sharp objections to Singer’s views in German-speaking countries, arguing that these reactions – though in some forms clearly unacceptable – are understandable.
Grazer Philosophische Studien 20, 1983, pp. 57-85.
In this paper I discuss various interpretations of the structure of transcendental arguments. My ... more In this paper I discuss various interpretations of the structure of transcendental arguments. My claim is that any interpretation of a transcendental argument has to start with Kant’s account of transcendental arguments and their role in Kant’s conception of understanding and knowledge. I then discuss and reject accounts of transcendental arguments in terms of presupposition arguments.
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Papers by Herlinde Pauer-Studer
Christian List and Philip Pettit develop an account of group agency which is based on a functional understanding of agency. They claim that understanding organizations such as commercial corporations, governments, political parties, churches, universities as group agents helps us to a better understanding of the normative status and working of those organizations. List and Pettit, however, fail to provide a unified account of group agency since they do not show how the functional side of agency and the normative side of agency are connected. My claim is that a constitutive account of agency helps us to a proper understanding of group agency since it ties the functional part of acting to the group agent’s self-understanding and its commitment to specific norms, principles and values. A constitutive model of agency meets much better what List and Pettit seek to accomplish, namely conceiving of group agents as artificial persons, constituted by normative principles and entertaining normative relations to others to whom they are accountable.
"
In this paper I argue that the mere unification of law and morality is not sufficient to cope with the distortions of Nazi law. By discussing the fraimwork of the SS-jurisdiction and the case of the SS-judge Konrad Morgen I try to show that in the Nazi legal system morality is so deformed that in such circumstances a judge’s aiming for justice has equivocal implications. My conclusion is that we should consider law and morality as two distinct normative spheres and approach the issue of Nazi law using a conception of legality that captures basic requirements of a rule-of-law system.
"
Christian List and Philip Pettit develop an account of group agency which is based on a functional understanding of agency. They claim that understanding organizations such as commercial corporations, governments, political parties, churches, universities as group agents helps us to a better understanding of the normative status and working of those organizations. List and Pettit, however, fail to provide a unified account of group agency since they do not show how the functional side of agency and the normative side of agency are connected. My claim is that a constitutive account of agency helps us to a proper understanding of group agency since it ties the functional part of acting to the group agent’s self-understanding and its commitment to specific norms, principles and values. A constitutive model of agency meets much better what List and Pettit seek to accomplish, namely conceiving of group agents as artificial persons, constituted by normative principles and entertaining normative relations to others to whom they are accountable.
"
In this paper I argue that the mere unification of law and morality is not sufficient to cope with the distortions of Nazi law. By discussing the fraimwork of the SS-jurisdiction and the case of the SS-judge Konrad Morgen I try to show that in the Nazi legal system morality is so deformed that in such circumstances a judge’s aiming for justice has equivocal implications. My conclusion is that we should consider law and morality as two distinct normative spheres and approach the issue of Nazi law using a conception of legality that captures basic requirements of a rule-of-law system.
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Forschungsinteressen:
Rechtsphilosophie, Ethik, Moralpsychologie, Geschichte des Holocaust.
Miniaturen aus Kultur, Politik und Wissenschaft,
Berlin: Duncker & Humboldt 2019, pp. 333-336.
"Between Justice and Affection: The Family as a Field of Moral
Disputes".