William James (1842—1910)

William James is considered by many to be the most insightful and stimulating of American philosophers, as well as the second of the three great pragmatists (the middle link between Charles Sanders Peirce and John Dewey).  As a professor of psychology and of philosophy at Harvard University, he became the most famous living American psychologist and later the most famous living American philosopher of his time.  Avoiding the logically tight systems typical of European rationalists, such as the German idealists, he cobbled together a psychology rich in philosophical implications and a philosophy enriched by his psychological expertise.  More specifically, his theory of the self and his view of human belief as oriented towards conscious action raised issues that required him to turn to philosophy.  There he developed his pragmatic epistemology, which considers the meaning of ideas and the truth of beliefs not abstractly, but in terms of the practical difference they can make in people’s lives.  He explored the implications of this theory in areas of religious belief, metaphysics, human freedom and moral values, and social philosophy. His contributions in these areas included critiques of long-standing philosophical positions on such issues as freedom vs. determinism, correspondence vs. coherence, and dualism vs. materialism, as well as a thorough analysis of a phenomenological understanding of the self and consciousness, a “forward-looking” conception of truth (based on validation and revisable experience), a thorough-going metaphysical pluralism, and a commitment to a full view of agency in connection with communal and social concerns. Thus he created one of the last great philosophical systems in Western thought, even if he did not live quite long enough to complete every aspect of it. The combination of his provocative ideas and his engaging writing style has contributed to the enduring impact of his work.

Table of Contents

  1. Life and Works
  2. Philosophical Psychology
    1. The Stream of Consciousness and the Self
    2. Sensation, Perception, Imagination, and Belief
    3. Emotion and Will
  3. Epistemology
    1. The Pragmatic Method
    2. The Pragmatic Theory of Truth
    3. The Pragmatic Approach to Belief
  4. Philosophy of Religion
    1. The Will to Believe in God
    2. The Varieties of Religious Experience
    3. James’s Own Religious Views
  5. Metaphysics
    1. Realms of Reality
    2. The Philosophical Importance of Metaphysics
    3. Monism vs. Pluralism
  6. Freedom and Morality
    1. Human Freedom
    2. Moral Responsibility
    3. The Meaningfulness of Life
  7. Social Philosophy
    1. Individuals and Their Communities
    2. War and Peace
    3. Democratic Tolerance and Social Progress
  8. References and Further Readings
    1. Primary Sources
    2. Secondary Sources

1. Life and Works

Born in New York City on January 11, 1842, William James was the oldest of the five children of Henry James, Sr., and Mary Walsh James.  His oldest brother, Henry James, Jr., the renowned writer of fiction, was followed by two other brothers and a sister.  The family frequently moved between America and Europe, the father having inherited an amount of money sufficient to allow him to enjoy the life of an intellectual.  While growing up, William had a passion for drawing.  Since he wanted to become a painter, the family moved to Newport, Rhode Island in 1860, where William studied with the leading American portraitist, William Morris Hunt.  Although he had talent, he gave up this career goal in less than a year.  He had decided that it was insufficient for him to do first-rate work.  All this is indicative of three things:  the family’s remarkable support for his aspirations; his own quest to achieve excellence; and his restless, indecisive difficulty in remaining committed to a career path.

In 1861, the American Civil War erupted.  In response to President Lincoln’s call for volunteers, James committed himself to a short-term enlistment.  However, already in delicate health, he left when it expired after three months.  (His younger brothers Wilky and Bob served in the Union Army.)  He then enrolled in the Lawrence Scientific School at Harvard University, his family moving to Boston.  There he studied chemistry and then physiology, prior to his entering Harvard’s Medical School in 1863.  A couple of years later, he took a year off to join a scientific expedition to Brazil, led by Louis Agassiz.  But bad health eventually forced him to quit the expedition, and he returned to medical school (the James family moving from Boston to Cambridge, Massachusetts).   Again he left, this time to study physiology and medicine in Germany and to recover his health.  He failed to find a cure for his curious back pains, but returned to Harvard, passed his medical exams, and received his medical degree in 1869.  Nevertheless, he did not plan to practice medicine and seemed lost as to what to do with the rest of his life.

By the end of that same year, James’s neurological symptoms had become worse.  His training in hard science was making it impossible for him to believe in human freedom and, thus, in the value of struggling for moral ideals; the despair of materialism was leading him to the depression of determinism.  In a barely disguised case history in his Varieties of Religious Experience, he tells of visiting an asylum while he was a medical student, and seeing an epileptic patient whose condition had reduced him to an idiotic state.  James could not dispel the realization that if universal determinism prevails, he could likewise sink into such a state, utterly incapable of preventing it (Varieties, pp. 135-136).  His dread over the sense of life’s absolute insecurity pushed him to become a virtual invalid in his parents’ home.  He considered suicide.  By the spring of 1870, when James was twenty-eight years old, he experienced a critical moment while reading a treatment of human freedom by the French neo-Kantian Charles Renouvier.  He discovered the solution to his problem in the voluntaristic act of will whereby he could commit himself to believing in his own freedom despite any lack of objective evidence.  He started down the road to recovery, though the remainder of his life would be plagued by seemingly psychosomatic troubles (serious eye strain, mysterious back pains, digestive problems, and periods of exhaustion, as well as chronic mood swings, including times of brooding depression).  Unfortunately, he still lacked a constructive career goal.

In 1872, one of James’s former chemistry professors, now Harvard’s President, offered him a job teaching physiology.  He accepted and began his career of more than a third of a century as a faculty member there.  The next year, he became an instructor of anatomy and physiology.  By the mid-eighteen-seventies, he was teaching psychology there, using the physiological approach he had learned in Germany and establishing the first psychology laboratory in America.  He met a schoolteacher named Alice Howe Gibbens, whom he married in 1878.  Like his parents, they had five children, naming the first two Henry and William.  Alice was adept at handling his neurotic obsessions and emotional moodiness, and they seem to have had a good marriage, living comfortably in Cambridge.  The year they married, James agreed to write a psychology textbook; however, by then he was already drifting away from psychology into philosophy.  He was a member of a Metaphysical Club that included Oliver Wendell Holmes, who taught law at Harvard and would go on to serve on the U. S. Supreme Court, and Charles Sanders Peirce, a philosopher of science, who would become the founder of American pragmatism.  In 1879, James began teaching philosophy at Harvard, becoming an assistant professor of philosophy the next year.  He published “The Sentiment of Rationality,” his first important article in his new discipline.  As he got deeper into philosophy, he developed a negative attitude towards psychology.  After becoming a full professor of philosophy in 1885 and of psychology in 1889, he published his Principles of Psychology in 1890.  It had taken him close to twelve years to finish it, and, though it would be extremely successful, he was dissatisfied with it and disgusted with psychology (Letters, vol. 1, pp. 294, 296, & vol. 2, pp. 2-3).  Nevertheless, he agreed to prepare an abridged version, which was published two years later as Psychology:  Briefer Course; it too would be widely used and help to establish his reputation as the foremost living American psychologist.  He resigned his directorship of Harvard’s psychology lab and committed himself to teaching and writing philosophy.

In 1897, James’s first philosophical book, The Will to Believe and Other Essays in Popular Philosophy, was published, dedicated to Charles Sanders Peirce.  The following year, at the University of California at Berkeley, he delivered a lecture, “Philosophical Conceptions and Practical Results,” which helped to launch pragmatism as a nationwide philosophical movement.  In 1899, his Talks to Teachers on Psychology and to Students on Some of Life’s Ideals was published.  Overworked at Harvard and jeopardizing his fragile health, he suffered a physical breakdown that same year.  While recovering his health, he studied a wide range of accounts of religious experience and prepared his Gifford Lectures, which he delivered at the University of Edinburgh in 1901-02.  These were published as The Varieties of Religious Experience in 1902 and proved to be quite successful, although James himself was displeased, believing them to contain too much reporting on facts and too little philosophical analysis.

For the remainder of his life, James focused on the development of his own philosophy, writing essays and lectures that would later be collected and published in four books.  In the spring of 1906, he took a leave of absence from Harvard to take a visiting professorship at Stanford University, though his lecture series in California was interrupted by the great San Francisco earthquake.  In late 1906 and early 1907, he delivered his lectures on Pragmatism in Boston and at Columbia University, publishing them in the spring of 1907.  That was also the year he resigned from Harvard, worried that he might die before being able to complete his philosophical system, as he was suffering from angina and shortness of breath.  He delivered the Hibbert Lectures in England in 1908, published the next year as A Pluralistic Universe, aimed at combating the neo-Hegelian idealism that was then prevalent in Great Britain.  Meanwhile, he was under intellectual assault by mainstream philosophers for his pragmatic treatment of truth, which he defended in a collection of essays published in 1909 as The Meaning of Truth.

By the next year, James’s heart trouble left him so plagued by fatigue that normal activities became quite difficult.  He was attempting to complete his textbook on Some Problems of Philosophy, but died on August 26, 1910.  In 1911, his textbook, edited by his son Henry, and his Memories and Studies were posthumously published.  In 1912, his Essays in Radical Empiricism was published, followed, in 1920, by some of his Collected Essays and Reviews and The Letters of William James, edited in two volumes by his son Henry.  His writings have survived in part because of the provocative honesty of his ideas, but also because of the vibrant, sometimes racy, style in which he expressed them.  In A Pluralistic Universe, he castigates philosophers who use technical jargon instead of clear, straightforward language.  He practiced the spontaneous thinking and freshness of expression he advocates there (Universe, pp. 129-130).  It has been said (by the novelist Rebecca West) that, while Henry James wrote fiction as though it were philosophy, his older brother, William, wrote philosophy in a colorful style typical of fiction.

2. Philosophical Psychology

By the early 1890s, when James published his two books on psychology, the discipline was in the process of splitting off from philosophical speculation (“psychology” literally means  “the study of the soul”) to establish itself as an empirical social science.  Despite impatience with the process of that development, he contributed significantly to moving it along, regarding psychology as the science of our mental phenomena or states of consciousness, such as thoughts, feelings, desires, volitions, and so forth.

a. The Stream of Consciousness and the Self

In analyzing what can broadly be termed human thinking, James delineates five generic characteristics:  (1) all thought is owned by some personal self; (2) all thought, as experienced by human consciousness, is constantly in flux and never static; (3) nevertheless, there is an ongoing continuity of thought for every thinker, as it moves from one object to another (like the alternating times of flight and perching in a bird’s life), constantly comprising shifting foci and the contextual fringes within which they are given; (4) thought typically deals with objects different from and independent of consciousness itself, so that two minds can experience common objects; and (5) consciousness takes an interest in particular objects, choosing to focus on them rather than on others (Principles, vol. 1, pp. 224-226, 236-237, 239, 243, 258-259, 271-272, 284; Psychology, pp. 152-154, 157-160, 166-167, 170).  The self can be viewed as an object of thought or as the subject of thought.  The former is the empirical self or “me,” while the latter is the pure ego or “I.”  The dimensions of the empirical self (“me”) include the “material” self (comprised of one’s body and such extensions of it as one’s clothing, immediate family, and home), the “social” self (or significant interpersonal relations), and the “spiritual” self (one’s personality, character, and defining values).  The pure ego (“I”), identifiable with the soul of traditional metaphysics, cannot be an object of science and should not be assumed to be a substance (Principles, vol. 1, pp. 291-294, 296, 319, 343-344, 348, 350; Psychology, pp. 176-181, 194, 196, 198, 200, 202-203, 215-216).

b. Sensation, Perception, Imagination, and Belief

James states that if we track the dynamic of mental activity, we discern a standard pattern from sensation to perception to imagination to belief.  Through sensation, we become acquainted with some given fact.  This can, but need not, lead to knowledge about that fact, achieved by perceiving its relations to other given facts.  Both sensation and perception involve an immediate intuition of some given objects.  Imagination, less immediate, retrieves mental copies of past sensations and perceptions, even when their external stimuli are no longer present.  Belief is the sense or feeling that ideas or propositions formed in the imagination correspond to reality.  Every proposition can be analyzed in terms of its object and whether that object is believed.  The object of a proposition comprises a subject (such as my horse), a predicate (wings), and a relation between them (my horse has sprouted wings).  The belief is the psychic attitude a mind has towards that object (for example, I believe it or deny it or am in doubt about it) (Principles, vol. 2, pp. 1-3, 44, 76-77, 82-83, 283-284, 287-290; Psychology, pp. 12-14, 302, 312, 316-317).

c. Emotion and Will

Like other animals, we have primitive instincts, such as fear, some desires, and certain forms of sympathy, which do not require being taught them or consciously focusing on ends.  However, we also have emotions that are learned behavior and do involve such a focus—for example, a fear of failure and the desire for an academic degree.  Instincts and emotions thus overlap, the latter tending to cover a broader range of objects than the former.  We tend to assume that perceptions trigger emotional responses, eventuating in bodily expressions—that we suddenly see a bear, become frightened, and then tremble and run away.  But James thinks the actual sequence is perception, followed by bodily expressions, followed by emotional feeling—that we see the bear, tremble and run away, then feel those physical events as what we call fear.  The idea that emotions ultimately have physical causes emphasizes the intimate relationship between our bodies and our mental life (Principles, vol. 2, pp. 383, 410, 442, 449-453, 467; Psychology, pp. 391, 375-376, 378-381).

The human will is crucial for deliberately acting on our beliefs and emotions.  Sometimes we consider alternative courses of action and seem to select one among them, as if making a voluntary decision.  James maps out five sorts of decision-making:  (1) the reasonable sort, whereby we accede to rational arguments; (2) the sort that is triggered by external circumstances, such as overhearing a rumor; (3) the sort that is prompted by our submission to something within ourselves, such as a habit formed by past actions; (4) the sort that results from a sudden change of mood such as might be caused by a feeling of grief; and (5) the rare sort that is a consequence of our own voluntary choice, which will be identified as the “will to believe.”  Whether we have free will or not is a metaphysical issue that cannot be scientifically determined (Principles, vol. 2, pp. 486-488, 528, 531-534, 572-573; Psychology, pp. 415, 419-420, 428-434, 456-457).

3. Epistemology

Even if philosophically interesting matters such as freedom vs. determinism cannot be scientifically resolved, some sort of epistemological methodology is needed if we are to avoid arbitrary conclusions.  Whatever approach is chosen, it is clear that James repudiates rationalism, with its notions of a priori existential truths.  He is particularly hostile to German idealism, which he identifies especially with Hegel and which he attacks in many of his essays (this identification leads him to be remarkably unfair to Kant, an earlier German idealist).  As he makes clear in “The Sentiment of Rationality,” the personality of the would-be knower and various practical concerns are far too relevant to allow for such abstract intellectualism.  The tradition of modern empiricism is more promising, yet too atomistic to allow us to move much beyond the knowledge of acquaintance to genuine comprehension (Will, pp. 63-67, 70, 75-77, 82-86, 89, 92).  Fortunately, James had already learned about the pragmatic approach from Peirce.

a. The Pragmatic Method

James’s book of lectures on Pragmatism is arguably the most influential book of American philosophy.  The first of its eight lectures presents pragmatism as a more attractive middle ground between the two mainstream approaches of European philosophy.  The “tender-minded” approach tends to be rationalistic, intellectualistic, idealistic, optimistic, religious, committed to freedom, monistic, and dogmatic; by contrast, the “tough-minded” approach tends to be empirical, grounded in sensations, materialistic, pessimistic, irreligious, fatalistic, pluralistic, and skeptical.  It is difficult to identify many pure types of either of these in the history of philosophy, and some thinkers (such as Kant) are deliberately mixed, as is James himself.  He thinks that most of us want a philosophical method that is firmly anchored in empirical facts, while being open to, rather than dismissive of, moral and religious values.  He offers pragmatism as a philosophy that coherently meets both demands.  James’s second lecture is committed to showing how the pragmatic method helps us establish meaning by making it a function of practical consequences (the word “pragmatic” means having to do with action and is etymologically related to our English word “practical”).  Before we invest much time or effort in seeking the meaning of anything, we should consider what practical difference it would make if we could find out.  Providing an example to illustrate his point, James refers to the Hegelian notion of God as the all-encompassing Absolute Spirit.  How should we decide whether this is what we should mean by God?  Consider the practical consequences for a believer:  on the one hand, it would provide us with the optimistic, comforting assurance that everything will work out for the best; but, on the other, it also undermines the values of human individuality, freedom, and responsibility.  From that pragmatic perspective, James rejects the Hegelian notion.  Undoubtedly, philosophy provides us with only one legitimate approach to belief, as he observes in his fifth lecture, others being common sense (with its basic concepts derived from experience) and science.  However, these others are impotent in dealing with questions of freedom and value (Pragmatism, pp. 10-13, 18, 26-28, 30-38, 79-80, 83-85).

b. The Pragmatic Theory of Truth

It seems that anything knowable must be true.  But what does it mean to call a proposition or belief “true” from the perspective of pragmatism?  This is the subject of James’s famous sixth lecture.  He begins with a standard dictionary analysis of truth as agreement with reality.  Accepting this, he warns that pragmatists and intellectualists will disagree over how to interpret the concepts of “agreement” and “reality,” the latter thinking that ideas copy what is fixed and independent of us.  By contrast, he advocates a more dynamic and practical interpretation, a true idea or belief being one we can incorporate into our ways of thinking in such a way that it can be experientially validated.  For James, the “reality” with which truths must agree has three dimensions:  (1) matters of fact, (2) relations of ideas (such as the eternal truths of mathematics), and (3) the entire set of other truths to which we are committed.  To say that our truths must “agree” with such realities pragmatically means that they must lead us to useful consequences.  He is a fallibilist, seeing all existential truths as, in theory, revisable given new experience.  They involve a relationship between facts and our ideas or beliefs.  Because the facts, and our experience of them, change we must beware of regarding such truths as absolute, as rationalists tend to do (Pragmatism, pp. 91-97, 100-101).  This relativistic theory generated a firestorm of criticism among mainstream philosophers to which he responded in The Meaning of Truth.

c. The Pragmatic Approach to Belief

Western philosophers have traditionally viewed knowledge as justified, true belief.  So long as the idea of truth is pragmatically analyzed and given a pragmatic interpretation of justification, James seems to accept that view.  His entire philosophy can be seen as fundamentally one of productive beliefs.  All inquiry must terminate in belief or disbelief or doubt; disbelief is merely a negative belief and doubt is the true opposite of both.  Believing in anything involves conceiving of it as somehow real; when we dismiss something as unreal (disbelief), it is typically because it somehow contradicts what we think of as real.  Some of our most fundamental and valuable beliefs do not seem sufficiently justified to be regarded as known.  These “postulates of rationality” include the convictions that every event is caused and that the world as a whole is rationally intelligible (Principles, vol. 2, pp. 283-284, 288-290, 670-672, 675, 677).  As he holds in “The Sentiment of Rationality,” to say that such beliefs, however crucial, are not known, is to admit that, though they involve a willingness to act on them, doubt as to their truth still seems theoretically possible.  He identifies four postulates of rationality as value-related, but unknowable, matters of belief; these are God, immortality, freedom, and moral duty (Will, pp. 90, 95).  He proceeds to deal with each of them individually.

4. Philosophy of Religion

James is arguably the most significant American philosopher of religion in intellectual history, and many of his writings, in addition to the obligatory “Will to Believe” essay and his book on The Varieties of Religious Experience, offer provocative insights into that area.

a. The Will to Believe in God

Because we do not naturally experience the supernatural, James, the radical empiricist, thinks of faith in God as falling short of knowledge.  Yet such faith is pragmatically meaningful to many people, and it is reasonable to wonder whether, how, and to what extent it can be justified.  For James, the logical philosopher trained in science, both logic and science have limits beyond which we can legitimately seek the sentiment of rationality.  His notorious “Will to Believe” essay is designed to be a defense of religious faith in the absence of conclusive logical argumentation or scientific evidence.  It focuses on what he calls a “genuine option,” which is a choice between two hypotheses, which the believer can regard as “living” (personally meaningful), “forced” (mutually exclusive), and “momentous” (involving potentially important consequences).  Whether an option is “genuine” is thus relative to the perspective of a particular believer.  James acknowledges that in our scientific age, there is something dubious about the voluntaristic view that, in some circumstances, we can legitimately choose to believe in the absence of any objective justification.  However, he claims we naturally do so all the time, our moral and political ideas being obvious examples.  When you believe that your mother loves you or in the sincerity of your best friend, you have no conclusively objective evidence.  In addition, you will never be able to secure such evidence.  Yet it often seems unreasonable to refuse to commit to believing such matters; if we did so, the pragmatic consequences would be a more impoverished social life.  Indeed, in some cases, believing and acting on that belief can help increase the chances of the belief being true.  Now let us apply this argument to religious belief.  What does religion in general propose for our belief?  The two-pronged answer is that ultimate reality is most valuable and that we are better off if we believe that.  Committing to that two-pronged belief is meaningful, as is the refusal to do so.  At any given moment, I must either make that two-pronged commitment or not; and how I experience this life, as well as prospects for a possible after-life, may be at stake.  Whether one makes that commitment or not, pragmatic consequences can be involved.  Nor should we imagine that we could avoid having to make a choice, as the commitment not to commit is itself a commitment (Will, pp. 1-4, 7-9, 11-14, 22-30; see also Problems, pp. 221-224).

b. The Varieties of Religious Experience

If religious faith is not to be reduced to arbitrary whimsy (the “will to make believe”), it must rest on some sort of personal experience.  As psychologist and philosopher, James deliberately defines “religion” broadly as the experiences of human individuals insofar as they see themselves related to whatever they regard as divine.  This definition indicates that religion does not require faith in a transcendent, monotheistic God, and that it does not mandate the social dimension of religious community.  James distinguishes between “healthy-mindedness” and the “sick soul” as two extreme types of religious consciousness, the former being characterized by optimistic joy and the latter by a morbid pessimism.  In between these extremes are “the divided self” and the stable, well-integrated believer.  James develops lengthy analyses of religious conversion, saintliness, and mysticism.  In going beyond these, he considers what philosophy might contribute to establishing “over-beliefs” regarding the existence and nature of the divine.  He critically considers traditional arguments for God—the cosmological argument, the argument from design, the moral argument, and the argument from popular consensus—finding none of them particularly cogent, but exhibiting the most respect for the argument from design.  He likewise weighs in the balance and finds wanting arguments for metaphysical and moral divine attributes, finding the latter of more pragmatic relevance to human values, choices, and behavior than the former.  In his final lecture, he draws conclusions regarding three beliefs that experience finds in religions in general:  (1) that our sensible world is part of and derives its significance from a greater spiritual order; (2) that our purpose is fulfilled by achieving harmonious union with it; and (3) that prayer and spiritual communion are efficacious.  Furthermore, religions typically involve two psychological qualities in their believers:  (1) an energetic zest for living; and (2) a sense of security, love, and peace.  Given that thought and feeling both determine conduct, James thinks that different religions are similar in feeling and conduct, their doctrines being more variable, but less essential.  Most generally, these doctrines attempt to diagnose a fundamental uneasiness about our natural state and to prescribe a solution whereby we might be saved (Varieties, pp. 42, 83, 121, 124, 137, 142, 145-147, 330, 334-341, 367, 380-383).

c. James’s Own Religious Views

Although James is somewhat vague regarding his own religious “over-beliefs,” they can be pieced together from various passages.  He believes there is more to reality than our natural world and that this unseen realm generates practical effects in this world.  If we call the supreme being “God,” then we have reason to think the interpersonal relationship between God and humans is dynamic and that God provides us with a guarantee that the moral values we strive to realize will somehow survive us.  James describes himself as a supernaturalist (rather than a materialist) of a sort less refined than idealists and as unable to subscribe to popular Christianity.  He is unwilling to assume that God is one or infinite, even contemplating the polytheistic notion that the divine is a collection of godlike selves (Varieties, pp. 384-386, 388-390, 392-393, 395-396).  In “The Dilemma of Determinism,” James depicts his image of God with a memorable analogy, comparing God to a master chess player engaged in a give-and-take with us novices.  We are free to make our own moves; yet the master knows all the moves we could possibly make, the odds of our choosing one over the others, and how best to respond to any move we choose to make.  This indicates two departures from the traditional Judeo-Christian concept of God, in that the master is interacting with us in time (rather than eternal) and does not know everything in the future, to the extent that it is freely chosen by us.  In “Reflex Action and Theism,” James subscribes to a theistic belief in a personal God with whom we can maintain interpersonal relations, who possesses the deepest power in reality (not necessarily omnipotent) and a mind (not omniscient).  We can love and respect God to the extent that we are committed to the pursuit of common values.  In “Is Life Worth Living?” James even suggests that God may derive strength and energy from our collaboration (Will, pp. 181-182, 116, 122, 141, 61).  Elsewhere, rejecting the Hegelian notion of God as an all-encompassing Absolute, he subscribes to a God that is finite in knowledge or in power or in both, one that acts in time and has a history and an environment, like us (Universe, pp. 269, 272; see Letters, vol. 2, pp. 213-215, for James’s responses to a 1904 questionnaire regarding his personal religious beliefs).

5. Metaphysics

a. Realms of Reality

In contrast to monists such as Hegel, James believes in multiple worlds, specifying seven realms of reality we can experience:  (1) the realm that serves as the touchstone of reality for most of us is the world of physical objects of sense experience; (2) the world of science, things understood in terms of physical forces and laws of nature, is available to the educated; (3) philosophy and mathematics expose us to a world of abstract truth and ideal relations; (4) as humans, we are all subject to the distortions of commonplace illusion and prejudices; (5) our cultures expose us to the realms of mythology and fiction; (6) each of us has his or her own subjective opinions, which may or may not be expressed to others; and (7) the world of madness can disconnect us from the reality in which others can readily believe.  Normally we can inhabit more than one of these and be able to discriminate among them.  What we take to be real must connect with us personally because we find it interesting and/or important, which emphasizes elements of both subjectivity and pragmatic relevance (Principles, vol. 2, pp. 292-299).

b. The Philosophical Importance of Metaphysics

Part of what makes James a great philosopher in the grand tradition is that, unlike so many post-Hegelian Western philosophers, he advocates the pivotal importance of metaphysics.  The theory of reality in general provides a crucial foundational context for philosophy of human nature, philosophy of religion, ethics, social philosophy, and so forth.  Philosophy essentially is an intellectual attempt to come to grips with reality, as he says on the first page of Pragmatism.  In its third lecture, James approaches four standard metaphysical issues using his pragmatic method, those of (1) physical and spiritual substance, (2) materialism vs. theism as explanations of our world, (3) whether the natural world indicates intelligent design, and (4) freedom vs. universal determinism.  For each of these, we cannot conclusively establish where we should stand based merely on what experience discloses about the past, but can take reasonable positions based on pragmatic anticipated future consequences.  As modern philosophy demonstrates, we can never directly and immediately experience any sort of substance; however, we do experience physical qualities and mental events and can best make sense of them by attributing them to bodies and minds.  The world is what it is, regardless of whether it is the result of divine activity or of the random interactions of atoms moving in space; whether or not it was intelligently designed in the distant past has no bearing on the fact that we experience it as we do.  But a world intelligently designed by a deity pragmatically involves the possibility of a promising future, whereas one resulting from unconscious physical forces promises nothing more than a collapse into meaningless obliteration.  On the one hand, if everything we may do or fail to do is determined, why bother doing anything?  On the other hand, if we are free to choose at least some of our actions, then effort can be meaningful.  In the fourth lecture, James states that our world can be viewed as one (monism) or as an irreducible many (pluralism).  There are certain ways in which we humans generate a unity of the objects of our experience, yet the absolute unity to which monism is committed remains a perpetually vanishing ideal.  In his seventh lecture, James identifies three dimensions of reality:  (1) the objects of factual experience; (2) relationships between our sensations and our ideas and among our ideas; and (3) the entire network of truths to which we are committed at any given time.  Again, we see here a combination of subjectivity and pragmatic relevance that views reality as a process of development, which he calls “humanism” (Pragmatism, pp. 7, 43-55, 62-69, 71, 73-74, 110-111, 115-116; see also Truth, pp. 100-101).

c. Monism vs. Pluralism

James intended Some Problems of Philosophy to be largely a textbook in metaphysics, which he defines in terms of the ultimate principles of reality, both within and beyond our human experience.  Much of it concerns the issue of the one and the many, which is arguably the oldest problem of Western philosophy and represents the split between collective monism (such as Hegel’s) and distributive pluralism (such as James himself advocates).  Monism, pursued to its logical extreme, is deterministic, setting up a sharp dichotomy between what is necessary and what is impossible, while pluralism allows for possibilities that may, but need not, be realized.  The former must be either optimistic or pessimistic in its outlook, depending on whether the future that is determined is seen as attractive or unattractive.  In contrast, pluralism’s possibilities allow for a “melioristic” view of the future as possibly better, depending on choices we freely make.  Pluralism need not specify how much unnecessary possibility there is in the world; by contrast, monism must say that everything about the future is locked in from all eternity—to which pluralism says, “Ever not quite.”  James is advocating what he calls the possibility of “novelty” in the world.  Pluralism, being melioristic, calls for our trusting in and cooperating with one another in order to realize desirable possibilities that are not assured (Problems, pp. 31, 114, 139-143, 205, 228-230).  In his Essays in Radical Empiricism, James attempts to distance himself from the philosophical dualism that sees physical reality (bodies) and spiritual reality (minds) as essentially distinct.  He claims that the “philosophy of pure experience” is more consonant with the theory of novelty, indeterminism, moralism, and humanism that he advocates, though it is less than clear why.  We never experience mind in separation from body, and he dismisses as an illusion the notion of consciousness as substantial; however, he does not want to reject the reality of mind as a materialist might do.  So after years of opposing monism, he adopts an admittedly vague sort of neutral (neither materialistic nor idealistic) monism that sees thoughts and things as fundamentally the same stuff, the further definition of which eludes us (Empiricism, pp. 48, 115-117, 120).

6. Freedom and Morality

In the eighth lecture of Pragmatism, James sees monism as tending to a passive sort of quietism rather than to a vital life of active effort.  By contrast, pluralistic pragmatism emphasizes the possibilities that may be if we work to realize them.  Monism determines the future optimistically as working out for the best, whatever we do, or pessimistically as working out for the worst, whatever we do.  By contrast, pluralistic meliorism holds that it can get better if we freely try to make it so.  Whether we embrace the option of freedom and moral responsibility or not is ultimately a matter of personal faith rather than one of objective logic or scientific evidence (Pragmatism, pp. 125, 127-128, 132).

a. Human Freedom

Like God and human immortality, the possibility of which James defends without firmly committing himself to believing in it (Immortality, pp. 3, 6-7, 10-18, 20, 23-24, 28-31, 35-37, 39-41, 43-45), freedom is a postulate of rationality, an unprovable article of faith.  James wrote an essay on the topic, called “The Dilemma of Determinism.”  After admitting that human freedom is an old and shopworn topic about which we may suspect that nothing new can be said, and that he will not pretend to be able to prove or disprove, he launches a pragmatic justification for believing in it.  Indeterminism, the belief in freedom, holds that there is some degree of possibility that is not necessitated by the rest of reality, while determinism must deny all such possibilities.  These beliefs constitute exhaustive and mutually exclusive alternatives, so that if we reject either, we logically should accept the other.  Let us consider a commonplace example such as walking home from campus.  Before the fact neither the determinist nor the indeterminist can infallibly predict which path will be taken, but after the fact the determinist can irrefutably claim that the path taken was necessary, while the indeterminist can irrefutably claim that it was freely chosen.  Thus far, there is no advantage on either side.  But now consider the example of a man gruesomely murdering his loving wife.  We hear the awful details recounted and naturally regret what the wicked man did to her.  Now, what are we to make of that regret from the perspective of determinism?  What sense can it make to regret what had to occur?  From that perspective, we logically must embrace pessimism (all of reality is determined to be bad) or optimism (everything is destined to work out for the best) or subjectivism (good and evil are merely subjective interpretations we artificially cast on things).  All of these can be logically coherent positions, but each of them minimizes the evil we experience in the world and trivializes our natural reaction of regret as pointless.  From a practical (as opposed to a logical) point of view, can we live with that?  James deliberately puts the point quite personally.  Though thoughtful and reflective pessimists, optimists, and subjectivists can live with it, he would not, because its pragmatic implications would render life not worth living.  In that sense, determinism, though logically tenable, is pragmatically unacceptable, and James commits to indeterminism (Will, pp. 145-146, 150-152, 155-156, 160-161, 175-176, 178-179).

b. Moral Responsibility

In addition to God, immortality, and freedom, moral duty is a fourth postulate of rationality.  James offers us one remarkable essay on the topic, entitled “The Moral Philosopher and the Moral Life.”  He addresses three questions:  (1) the psychological one, regarding the origins of our moral values and judgments, (2) the metaphysical one, regarding the grounds of meaning for our basic moral concepts, and (3) the casuistic one, regarding how we should order conflicting values.  First, our human nature comprises a capacity for an intuitive moral sense, but this must be developed in a context of values that socially evolve.  Second, our basic moral concepts of good and bad, right and wrong, and so forth, are all person-relative, grounded in the claims people make on their environment.  Third, when values conflict, those which would seem to satisfy as many personal demands as possible, while frustrating the fewest, should have priority regardless of the nature of those demands.  This represents a pragmatic form of moral relativism, in which no action can be absolutely good or evil in all conceivable circumstances.  Finally, James distinguishes between “the easy-going mood” that tries to avoid conflict, and “the strenuous mood” that strives to achieve ideals, apparently preferring the latter (Will, pp. 185-186, 190, 194-195, 197, 201, 205, 209, 211).

c. The Meaningfulness of Life

In answering the question of what is the primary objective of human life, James maintains that a natural answer is happiness.  It is this, which motivates us to act and endure.  Evolution is often seen as a progressive advance towards happiness (Varieties, pp. 76, 85).  The person who seems incapable of achieving it may well wonder whether life is worth living; suicide deciding that it is not.  For James there is no absolute answer, and it is relative to the life being lived.  A human life involves an ongoing series of possibilities.  Some of these “maybes” may be realized if we believe in our own capacity to realize them; others will not be, either because we do not try or because we try and fail.  Life can become worth living if we believe that it is and act on that belief, our commitment giving it meaning (Will, pp. 37, 59-62).  Our happiness seems to require that we have ideals, that we strive to achieve them, and that we think we are making some progress towards doing so (Talks, pp. 185-189).

7. Social Philosophy

a. Individuals and Their Communities

James’s philosophy is so individualistic that it does not allow for a robust theory of community.  Still, he offers us some interesting insights and one great paper.  “Great Men and Their Environment” views one’s society as not only a context in which great individuals emerge, but even as playing a selective role in allowing their greatness to develop. In turn, that social environment is affected by them.  Whether or not an individual will be able to have an impact is, to some extent, determined by society.  Thus socially significant individuals and their communities have a dynamic, correlative relationship.  In a follow-up article, “The Importance of Individuals,” he maintains that agents of social change, beyond being gifted in some way(s), tend to take greater advantage of given circumstances than more ordinary persons do (Will, pp. 225-226, 229-230, 232, 259).

b. War and Peace

In the last decade of his life, following the Spanish-American War, in which Theodore Roosevelt, his former student, was the hero, James gave a talk at the banquet of the Universal Peace Congress.  Regarding human nature as essentially antagonistic, he warns against our permanent tendencies to mass violence and the romantic idealization of war.  We have to forever be on our guard to resist those dangerous, destructive tendencies; however, he doubts that humanity will ever be able to achieve universal disarmament and peace.  What we can and should do is work to minimize conflicts and to resolve them non-violently.  The great paper James wrote in the area of social relations, written just a few years before the outbreak of World War I and first published the month he died, is “The Moral Equivalent of War.”  In it he warns of the extreme challenge of suppressing our martial tendencies.  Warfare has become so costly, in terms of treasure and carnage, thanks to modern technology, that we need to find some way of rechanneling the primitive tendencies inherited from our ancestors.  How can we create an atmosphere in which peace is the norm rather than that interim period between wars?  Identifying himself as a “pacifist,” he nevertheless admits that there are desirable human qualities—such as patriotism, loyalty, social solidarity, and national vigor—that have traditionally been nurtured by war and the preparation for conducting it.  The question at hand is whether a “moral equivalent” might be found that would generate such martial virtues without involving the horrible destructiveness of war. Since wars are the results of human choices rather than fatalistically determined, he anticipates a time when they will be formally outlawed among civilized societies.  But then how can these martial virtues still be nurtured?  His answer is that we should draft young adults into national service, as opposed to military service, fighting against adverse natural conditions rather than against fellow human beings, working for a time in coal mines, on constructing roads, and so forth.  Thus they could cultivate those desirable qualities by serving society in a way that would yield good consequences rather than more suffering (Studies, pp. 300-301, 303-306, 267, 269, 275-276, 280, 283, 286-292).

c. Democratic Tolerance and Social Progress

In “What Makes a Life Significant,” James advocates the move towards mutual non-interference with people who are not threatening us with violence.  Tolerance of others is an antidote to cruelty and injustice.  He maintains that the trend of social evolution is in the direction of democratic progress.  Yet this trend requires effort, and its continuation poses challenges for us, including that of striving for a more equitable distribution of wealth (Talks, pp. 170, 178, 189).  His commitments to individual freedom, mutual respect, peaceful interrelationships, and tolerance converge to point us in the direction of progressing towards what he calls “the intellectual republic” (Will, p. 30).  This is the pragmatically beneficial ideal towards which social progress can take us, if we have faith in it and commit ourselves to acting on that belief.

8. References and Further Readings

a. Primary Sources

  • William James, Essays in Radical Empiricism and A Pluralistic Universe (called “Empiricism” and “Universe,” respectively).  New York:  E. P. Dutton, 1971.
  • William James, The Letters of William James, Two Volumes in One, ed. Henry James (called “Letters”).  Boston:  Little, Brown, 1926.
  • William James, The Meaning of Truth (called “Truth”).  Ann Arbor:  University of Michigan Press, 1970.
  • William James, Memories and Studies (called “Studies”).  Westport:  Greenwood Press, 1968)
  • William James, Pragmatism (called “Pragmatism”), ed. Bruce Kuklick.  Indianapolis:  Hackett, 1981.
  • William James, The Principles of Psychology, Two Volumes (called “Principles”).  New York:  Dover, 1950.
  • William James, Psychology:  Briefer Course (called “Psychology”).  New York:  Henry Holt, 1910.
  • William James, Some Problems of Philosophy, ed. Henry James (called “Problems”).  New York:  Longmans, Green, 1931.
  • William James, Talks to Teachers on Psychology:  and to Students on some of Life’s Ideals (called “Talks”).  New York:  W. W. Norton, 1958.
  • William James, The Varieties of Religious Experience (called “Varieties”).  New York:  New American Library, 1958.
  • William James, The Will to Believe and Other Essays in Popular Philosophy and Human Immortality (called “Will” and ”Immortality,” respectively).  New York:  Dover, 1956.

b. Secondary Sources

  • Jacques Barzun, A Stroll with William James.  Chicago:  University of Chicago Press, 1984.
    • This is a non-technical discussion of James’s life and thought.
  • Patrick Kiaran Dooley, Pragmatism as Humanism:  The Philosophy of William James.  Totowa:  Littlefield, Adams, 1975.
    • This is a brief but good introduction to James’s philosophy of human nature.
  • Richard M. Gale, The Philosophy of William James:  An Introduction.  New York:  Cambridge University Press, 2005.
    • This is a monograph on the theory and vision of James.
  • R. W. B. Lewis, The Jameses:  A Family Narrative.  New York:  Farrar, Straus and Giroux, 1991.
    • This is a monumental collective biography of the James family.
  • Gerald E. Myers, William James:  His Life and Thought.  New Haven:  Yale University Press, 1986.
    • This is a long, comprehensive, in-depth analysis of James’s psychology and philosophy.
  • Ralph Barton Perry, The Thought and Character of William James:  Briefer Version.  Cambridge:  Harvard University Press, 1948.
    • This is a classic intellectual biography of James by one of his famous students.
  • Ruth Anna Putnam, The Cambridge Companion to William James.  New York:  Cambridge University Press, 1997.
    • This is a collection of critical analyses of important parts of James’s thought.
  • Robert D. Richardson, William James:  In the Maelstrom of American Modernism.  Boston:  Houghton Mifflin, 2006.
    • This intellectual biography of James studies the man through his work.
  • Robert J. Vanden Burgt, The Religious Philosophy of William James.  Chicago:  Nelson-Hall, 1981.
    • This is a short but illuminating treatment of James’s philosophy of religion.

Author Information

Wayne P. Pomerleau
Email: Pomerleau@calvin.gonzaga.edu
Gonzaga University
U. S. A.

Surrogate Parenting

Surrogate parenting is an arrangement in which one or more persons, typically a married infertile couple (the intended rearing parents), contract with a woman to gestate a child for them and then to relinquish it to them after birth. Surrogate parenting is also sometimes referred to as “contract pregnancy,” in part, so as not to beg the question about who is the child’s real mother, but also to refer to the non-nuclear-familial nature of the arrangement.  That is, this is a mode of parenting which allows a couple to have a child by involving a third party to their relationship who serves as birth mother, whether there is a contract or not. As will become apparent, surrogate parenting complicates the parenting terrain and, as such, raises significant philosophical and ethical issues. This article briefly examines some of the principal differences between commercial and non-commercial forms of surrogate/contract parenting arrangements, including the presentation of arguments against and for the moral appropriateness of this sort of parenting arrangement. After raising some of the principal challenges, four legal remedies for this complex mode of parenting are considered. This is followed by a brief summary of some healthcare organizations’ and professionals’ attitudes toward surrogacy/contract parenting arrangements. The article concludes with an assessment of the current availability and accessibility of surrogacy services and some observations about the future of surrogacy/contract parenting arrangements.

Table of Contents

  1. Introduction
  2. Traditional Surrogacy versus Gestational Surrogacy
  3. Commercial Surrogacy vs. Noncommercial Surrogacy
  4. Moral Arguments against Surrogacy vs. Moral Arguments for Surrogacy
  5. Legal Remedies for Surrogacy Arrangements
    1. Banning
    2. Endorsement
    3. Assimilation
    4. Hands-off
  6. Healthcare Organizations’ and Professionals’ Attitudes toward Surrogacy Arrangements
  7. Conclusion
  8. References and Further Reading
    1. Primary Sources
    2. Secondary Sources

1. Introduction

Based on available statistics, which are quite incomplete due to a lack of reporting regulations, about 1,500 to 2,000 surrogate/contracted babies are born per annum in the United States (Ali and Kelley 2008, 44). In addition, several thousands more are born each year as the result of a surrogate arrangement in a wide-variety of nations worldwide. Australia, Canada, and Brazil report numbers at least as large as those reported in the United States (Covington and Burns 2006, 371); and in India, where commercial surrogacy was legalized in 1992, poor women are recruited to gestate what may amount to hundreds (more likely thousands) of babies for couples throughout the world (Gentleman 2008, A9).

Although surrogate parenting arrangements are spreading across the globe, such arrangements apparently remain the exception rather than the rule. Most people prefer not to involve third parties in their attempts to procreate, and most people cannot afford to finance expensive third-party pregnancies. Still, the existence and use of surrogacy arrangements lead society to raise substantial questions about the nature of parenthood. What makes a parent the real parent of a child? The fact that she or he is genetically related to the child? The fact that she or he rears the child? Or the fact that she gestates the child (at present, gestation is an exclusively female task)? Is surrogate parenting just one of a series of steps towards what some term “collaborative reproduction”? In the future, will an increasing number of people form families that consist of an egg and/or sperm donor(s), a gestational mother, and one or more men and women who collaboratively produce and rear a child to adulthood? Or will most people continue to form the kind of nuclear, biologically-based families that exist today?

2. Traditional Surrogacy versus Gestational Surrogacy

There are two basic types of surrogate parenting: traditional surrogacy and gestational surrogacy. In traditional surrogacy, the surrogate is inseminated with the sperm of the man who intends to be the child’s rearing parent. Because the surrogate is both the genetic mother and the gestational mother of the child, she must legally terminate her parental rights to the child after its birth, at which point the intended female rearing parent may adopt the child as her stepchild. The intended male rearing parent does not need to adopt the child because he is the child’s genetic father.

The situation is quite different in a gestational surrogacy arrangement where both of the intended rearing parents may have a genetic connection to the child. The intended rearing mother’s eggs are fertilized with the intended rearing father’s sperm in vitro (outside the womb). The resulting embryo(s) are then implanted in the surrogate’s womb. The surrogate’s only connection to the child is gestational. In a variation on this arrangement, the intended rearing parents provide the surrogate with an embryo(s) to gestate for them. If the intended rearing parents are also the child’s genetic parents, they are not required to adopt the child. However, if one or both of the intended rearing parents do not have a genetic connection to the child, they may be required to adopt the child. For example, if a couple adopt surplus frozen embryos from an assisted reproduction clinic, they may be required to adopt any child(ren) that result from the embryo(s)’ gestation in a surrogate.

Infertile, heterosexual couples are the group most likely to contract a surrogate mother. However, single people, lesbian couples, gay couples, and even fertile people may also seek the services of a contracted mother. Collaborative reproductive and/or parenting arrangements have a long history throughout the world. For example, in the Judeo-Christian tradition, the Old Testament octogenarian couple, Abraham and Sarah, used a surrogate mother to carry a child to term for them. Much later, throughout the European continent and England, middle- and upper-class women used wet nurses to nurture their infant children. Moreover, in polygamous families, two or more wives of one husband collaboratively raise all of his children. Thus, it should not surprise us that people are increasingly entering into formal surrogacy/contract parenting arrangements.

3. Commercial Surrogacy vs. Noncommercial Surrogacy

Of particular significance in any discussion of surrogate parent arrangements is the fact that some of them are commercial while others are noncommercial. Commercial surrogate parenting arrangements involve monetary payments both to the surrogate and to other third parties. Depending on state laws regulating commercial surrogacy, the cost of such arrangements in the early 21st Century ranged anywhere from $20,000 to as high as $150,000 in the United States. Surrogates typically received about $20,000 with the rest of the costs being paid out to healthcare professionals, counselors, screeners, lawyers, and surrogate brokers. In an effort to hold their costs down, some intended parents have engaged in reproductive tourism, traveling to developing nations, where the total cost for a surrogate parenting arrangement ranges from $5,000 to $12,000 largely because women are willing to rent their wombs for a relatively low sum of money.

In contrast to commercial surrogacy, non-commercial surrogacy involves an arrangement where the intended rearing parents use the services of a family member or a friend. The surrogate’s compensation supposedly consists in the satisfaction she derives from giving the gift of a new human life to people for whom she personally cares. Typically, the surrogate does not expect or want monetary compensation for her gestational services. At the most, she will accept funds to cover costs such as physician’s bills.

4. Moral Arguments against Surrogacy vs. Moral Arguments for Surrogacy

As noted above, the number of surrogate babies born annually in the United States or elsewhere is relatively small. In large measure, it is probably failed, highly-publicized surrogate parenting arrangements such as the notorious Baby M case that continue to put a damper on intended rearing parents using surrogate parenting arrangements. In the 1980s New Jersey Baby M case, Mary Beth Whitehead contracted with William Stern to be artificially inseminated with his sperm, to get pregnant (if possible), to carry the child to term, and then to relinquish the child to Stern. Whitehead and Stern also agreed that Whitehead would receive $10,000 for a healthy child, but only $1,000 for a miscarried or still-born child. In addition, Whitehead agreed not to engage in sexual relations with her husband until she was pregnant; to abstain from harmful substances during the pregnancy; to undergo amniocentesis; and to submit to abortion if Stern so requested. Finally, Whitehead agreed that, upon the child’s birth, she would terminate her maternal rights so that Stern’s wife could adopt the baby.

Whitehead became pregnant and gave birth to a baby girl. But she did not relinquish the baby to Stern. Feeling very attached to the baby, Whitehead refused to abide by the terms of the contract. At first, lawyer Noel Keane, who had brokered the surrogacy arrangement, did not take Whitehead that seriously. He managed to persuade Whitehead to give the baby to the Sterns for an overnight stay. But when Whitehead became extremely upset the next day, the Sterns gave the baby back to her. They thought that within a short time, the $10,000 fee would start looking better to Whitehead than the responsibility of adding another child to her existing two-child family. The Sterns’ speculation turned out to be false. Whitehead soon told the Sterns she had reached a final decision and would never relinquish the child to them. Money was not nearly as important to her as love for the baby. At one point, the entire Whitehead family fled to Florida with the baby to escape the arm of the law, but the New Jersey police tracked the Whiteheads down and seized the baby. By then the Sterns had persuaded Judge Harvey Sorkow to grant them sole custody of the baby.

After a prolonged custody battle between Whitehead and Stern, presided over by none other than Judge Sorkow, the court determined it was in the best interests of “Baby M” to enforce the surrogacy contract. Judge Sorkow thought that Whitehead was unfit parent material because of her emotional instability and the fact that she had entered into the arrangement at all. Stern was given custody of the baby, Whitehead was stripped of her parental rights, and Stern’s wife was permitted to adopt the baby. Whitehead appealed the court’s decision and, after another protracted legal battle, the New Jersey Supreme Court overturned Sorkow’s decision, invalidating commercial surrogacy contracts as a disguised form of baby-selling. As the immediate consequence of its decision, the New Jersey Supreme Court voided the termination of Whitehead’s parental rights and invalidated Mrs. Stern’s adoption of the baby. However, the high court allowed the Sterns to keep the baby with the proviso that Whitehead be given visitation rights. The high court reasoned it was in the best interests of the two-year-old child to remain in the home of the only family she had ever known: the Sterns. Although many people thought this decision was fair, others complained it was an instance where privileged people, the Sterns, were presumed by virtue of their wealth and status to be better parents than poor, working-class people like the Whiteheads.

Cases like the Baby M case have prompted opponents of commercial surrogacy to emphasize that such parenting arrangements tend to exploit poor, young, single, or ethnic/minority women desperate for money, and that some surrogacy agencies instruct surrogates to view themselves as mere incubators for intended rearing parent(s)’ babies. In addition, some opponents of surrogacy object to non-commercial surrogacy for at least two reasons. First, a female family member may be pressured to demonstrate love for another female family member, for example, by serving as a surrogate mother for her. Second, a child may be deeply troubled upon discovering that not the mother who is raising her but actually her aunt is her gestational and perhaps also genetic mother. Finally, yet other opponents of surrogacy object that surrogacy arrangements risk the commoditization of babies as goods or products that can be contracted for as if they were mere things rather than human persons.

Advocates of surrogate parenting accuse its opponents of distorting empirical facts to rationalize their discomfort about breaking the formerly seamless web between genetic, gestational, and rearing forms of parentage. Although those who favor surrogacy concede that intended rearing parents are typically more affluent than most of the surrogates they hire, they deny that intended rearing parents routinely exploit surrogates. They note that, truth be told, most surrogates are white, between 20 and 30 years old, working class (not underclass), and married. Moreover, most surrogacy agencies prefer to use surrogates who have had at least one child and are altruistically as well as financially motivated to work as surrogates. Advocates of surrogate parenting also stress that when intended rearing parents and surrogates have and maintain good relationships with each other, no harm befalls the very-much wanted child. If anything, such a child generally finds him or herself in a particularly loving family. Finally, they claim that in a society that increasingly favors open adoptions and celebrates blended families, surrogate parenting is just another way for people to establish a family.

5. Legal Remedies for Surrogacy Arrangements

In the United Sates, four legal remedies (each with varying permutations) have been proposed at the state level to regulate surrogate parenting. They are: (1) banning commercial surrogate parenting arrangements; (2) legally enforcing most commercial and even non-commercial surrogate parenting arrangements; (3) assimilating most surrogate parenting arrangements into either traditional or modified adoption law; and (4) refusing to legally enforce any surrogate parenting arrangement whatsoever. Each of these remedies has its strengths and weaknesses, and none of them is the clear winner in attempts to properly regulate surrogate parenting arrangements.

a. Banning

A relatively small number of states ban commercial surrogacy, imposing civil and criminal penalties on surrogacy brokers in particular. Michigan is probably the most anti-surrogacy state in the Union. In 1993, Michigan legislators ruled it is a misdemeanor to be party to a surrogacy contract and a felony to serve as a “surrogate broker,” with a maximum penalty of a $50,000 fine and five years in prison (MICH. COMP. LAWS, 1993). Even though states like Michigan typically do not prohibit non-commercial surrogate parenting arrangements, they do refuse to enforce them as binding contracts. States that ban commercial surrogacy do so on the grounds that it is a disguised form of baby-selling that exploits women and commodifies children. They dismiss arguments that the intended rearing parents do not actually pay for the baby, but only for the surrogate’s gestational services. Such states also dismiss arguments that most women who serve as surrogates do so freely, and that the children to which they give birth are not viewed as merchandise but as very much wanted children. Whether outright bans of commercial surrogate parenting arrangements are constitutionally permissible remains an open question, however. Advocates of these arrangements argue that if the only way a married infertile couple, for example, can have child genetically-related to them is to use a surrogate mother service, then prohibiting them from doing so is probably a violation of their fundamental right to procreate.

b. Endorsement

An increasing number of states use codified law to recognize and enforce properly negotiated surrogate parenting contracts. One state, California, uses case law to enforce parenting contracts. Importantly, these states regulate the terms of the surrogacy contract. For example, in most states, intended rearing parents are not permitted to pay for more than the surrogate’s medical and ancillary expenses; and, in all states, intended rearing parents may not interfere with a surrogate’s abortion rights. Interestingly, most states that enforce surrogacy contracts are maximally supportive of intended rearing parents who are also the genetic parents of the child. These states reason that the intended rearing parents have two parental claims—one based on the intent to rear the child and the other based on genetics—which in combination trump any parental claim a surrogate might make solely on the basis of her gestational relationship to the child. In instances of gestational surrogacy where the intended rearing parents supply the surrogate with an embryo that is genetically unrelated to them, codified law and case law rely solely on the intended rearing parents’ intent to establish legal parenthood. Moreover, in some states where intent is recognized as the factor which establishes parenthood, the intended rearing parents may apply for an order, prior to the baby’s birth, directing that their names rather than the names of the surrogate and her husband (if she has one) be entered on the birth certificate.

c. Assimilation

Some states that recognize surrogate parenting arrangements maintain features of adoption law in their codified-law and case-law frameworks. Typically, these states provide the surrogate with a change-of-heart period, usually around 72 hours, during which she may decide not to revoke her parental rights to the child. In the estimation of some legal theorists, intent alone does not necessarily determine rightful parenthood. They believe that the “sweat equity” of gestation should count as establishing some sort of parental claim to a child.

d. Hands-off

Nearly half of the states do not view surrogate parenting arrangements as legally enforceable. Deeming a contract for a mother unenforceable means that, if either the surrogate mother or the intended rearing parents breach the contract, the state will not intervene. The parties to the contract will need to work out their differences in custody court. So, for example, if the intended rearing parents fail to pay the surrogate mother her fee, the state will not help her collect it. Or if the intended rearing parents refuse to take the child from the surrogate mother because they no longer want the child, the state will not force them to become rearing parents. Instead, the state will require the surrogate mother either to maintain her parental relationship with the child or to put the child up for adoption. In the former case, she may be entitled to child support from the genetic or intended rearing father.

As it so happens, a non-enforcement situation is just as risky for the intended rearing parents as it is for the surrogate. If the surrogate mother refuses to relinquish the child to the intended parents, they will not be able to secure custody of the child based solely on the contract they made with the surrogate mother. However, because of the state’s interest in the well-being of the child, a family-law court will rely on the traditional “best interests of the child” standard to resolve custody disputes between the surrogate and the intended rearing parents. In cases of traditional surrogacy, virtually all family law courts will view the custody dispute as one between two genetic parents: the surrogate mother and the intended father. In cases of gestational surrogacy, some family-law courts will view the custody dispute as a conflict between the gestational mother (the surrogate mother) and the genetic mother (most typically the intended mother but in some instances an egg donor) to be decided by appeal to the original intention of the involved parties.

6. Healthcare Organizations’ and Professionals’ Attitudes toward Surrogacy Arrangements

Largely because the legal remedies for surrogacy arrangements in many states are either non-existent or ambiguous, healthcare leaders have been cautious about either total bans of or wholesale endorsements of surrogate parenting. The two main medical societies that set the gold standards for assisted-reproduction accept with some reservations surrogate parenting arrangements. The American College of Obstetrics and Gynecology (ACOG) accepts surrogacy arrangements only when they are medically necessary, and the compensation to the surrogate or gestational mother is based on her services and not on her ability to produce a child for the intended rearing parents. Adopting the assimilationist view described above, ACOG also suggests that private nonprofit agencies, similar to adoption agencies, oversee surrogacy arrangements (ACOG 1990, 133), and that subsequent to the birth of the child, the surrogate or gestational mother be given a short period of time during which she can change her mind about giving up the child.

The other main assisted-reproduction medical society, the American Society for Reproductive Medicine (ASRM), recommends that intended rearing parents avoid a traditional surrogacy arrangement and instead use a gestational surrogacy arrangement. Although the ASRM is not enthusiastic about any widespread use of surrogate mothers, it recognizes surrogacy arrangements as a way for a limited number of people to exercise their procreative freedom. Like ACOG, the ASRM frowns on assisting surrogacy arrangements unless there is a medical reason to do so.

7. Conclusion

Because the assisted-reproduction industry is regulated primarily by non-enforceable practice guidelines, assisted reproduction centers and infertility clinics usually decide their own policies and procedures for surrogacy arrangements. Some centers and clinics limit their services to infertile married couples, whereas other centers and clinics welcome anyone who can pay for their services. Limiting one’s practice to certain groups of people is sometimes a covert form of discrimination against other groups of people, however. It may be morally and legally justifiable for a center or clinic to refuse to assist people who do not have a medical reason, specifically infertility, to contract a surrogate mother. After all, physicians and nurses have no clear obligation to use their skills and/or connections to serve people who do not suffer from a disease, disability, or medical abnormality. However, when physicians and nurses refuse to help gay or lesbian individuals or couples who need to enter into a surrogacy arrangement in order to have a child, their refusal to extend help to these individuals or couples may constitute an act of discrimination.

As surrogate/contract parenting arrangements are normalized and routinized, the U.S. public will probably press federal and state authorities to pass clear legislation governing surrogacy. People in the United States view their procreative rights as sacrosanct: too important to be left to the unpredictable rulings of courts and/or the sometimes arbitrary policies of infertility clinics and assisted reproduction centers. Developing ideal laws to govern surrogate parenting arrangements will be no easy matter, however, not when a gay man can use donor sperm and donor eggs to produce embryos that are then implanted in the womb of a gestational mother. Should the law, on the basis of this gay man’s intentions alone, deem him the legal father of the child? Perhaps so, despite the fact that it will be quite some time before the majority of the U.S. population and the feminist community is comfortable with such a novel surrogate parenting arrangement.

8. References and Further Reading

a. Primary Sources

  • Ali, Lorraine and Raina Kelley. “The Curious Lives of Surrogates.” Newsweek, April 7, 2008, vol. 151, Issue 14, pp. 44-51.
  • American College of Obstetricians and Gynecologists. “Ethical Issues in Surrogate Motherhood.” (ACOG Committee Opinion 88). Washington, DC: ACOG, 1990.
  • Andrews, Lori B. “The Aftermath of Baby M: Proposed Laws on Surrogate Motherhood.” In Richard T. Hull (ed.). Ethical Issues in the New Reproductive Technologies. Belmont: Wadsworth, 1990.
  • Andrews, Lori B. “Alternative Modes of Reproduction.” In Sherrill Cohen and Nadine Taub (eds.). Reproductive Laws for the 1990s. Clifton, NJ: Humana Press, 1988, pp. 361-403.
  • Andrews, Lori B. “Beyond Doctrinal Boundaries: A Legal Framework for Surrogate Motherhood.” Virginia Law Review, November 1995, 81, 2343.
  • Annas, George J. “Death without Dignity for Commercial Surrogacy: The Case of Baby M.” Hastings Center Report, 1988, vol. 18, no. 2, pp. 23-24.
  • ASRM. Third Party Reproduction (Sperm, Egg, and Embryo Donation and Surrogacy. American Society for Reproductive Medicine: Birmingham, Alabama, 2006.
  • Bayles, Michael D. “Genetic Choice.” In Richard T. Hull (ed.). Ethical Issues in the New Reproductive Technologies. Belmont: Wadsworth, 1990, pp. 241-253.
  • Binion, Gayle. “Baby M, Surrogate Parenting and Public Policy.” Policy Studies Review, Spring, 1992, vol. 11, Issue 1, pp. 126-140.
  • Capron, Alexander, and M.S. Radin. “Choosing Family Law over Contract Law as a Paradigm for Surrogate Motherhood.” Law, Medicine, and Health Care, 1988, vol. 16, no. 2, p. 3a.
  • Chesler, Phyllis. The Sacred Bond: The Legacy of Baby M. New York: Times Books, 1988.
  • Covington, Sharon N. and Linda Hammer Burns. Infertility Counseling: A Comprehensive Handbook for Clinicians. Cambridge University Press: Cambridge, 2006.
  • Daar, Judith F. “Assisted Reproductive Technologies and the Pregnancy Process: Developing and Equality Model to Protect Reproductive Liberties.” American Journal of Law and Medicine, vol. 25, no. 4, 1988, pp. 453-478.
  • Davis, Peggy C. “Alternative Modes of Reproduction: Determinants of Choice.” In Sherrill Cohen and Nadine Taub (eds.). Reproductive Laws for the 1990s. Clifton, NJ: Humana Press, 1988, pp. 421-431.
  • Ethics Committee of the American Fertility Society. “Ethical Considerations of Assisted Reproductive Technologies.” Fertility and Sterility, vol. 62, no. 5, Suppl.1, November 1994, pp. 15-125S.
  • Gentleman, Amelia. “India Nurtures Business of Surrogate Motherhood.” New York Times, March 10, 2008, A9.
  • Hull, Richard T. (ed.). Ethical Issues in the New Reproductive Technologies. Belmont, CA: Wadsworth, 1990.
  • In re Baby M (1988), 537 A.2d 1227, N.J.
  • Jaggar, Alison M. “Feminist Ethics.” In Lawrence Becker with Caroline Becker (eds.). Encyclopedia of Ethics. New York: Garland Press, 1993, pp. 361-370.
  • Johnson v. Calvert, 851 P. 2d., 776 (Cal. 1993), cert. denied, 1145. Ct. 206 (1993), and cert. dismissed, 114 S. Ct. 374 (1993).
  • Kass, Leon. “Making Babies Revisited.” In John Arras and Robert Hunt (eds.). Ethical Issues in Modern Medicine. Palo Alto, CA: Mayfield, 1983, pp. 407-413.
  • Ketchum, Sara Ann. “New Reproductive Technologies and the Definition of Parenthood: A Feminist Perspective.” Paper presented at Feminism and Legal Theory: Women and Intimacy, a conference sponsored by the Institute for Legal Studies at the University of Wisconsin-Madison.
  • Krimmel, Herbert T. “The Case against Surrogate Parenting.” The Hastings Center Report. October, 1983, vol. 13, no. 5, pp. 35-39.
  • Mich. Comp. Laws Ann. 722.855 (West 1993).
  • O’Brien, Mary. The Politics of Reproduction. Boston: Routledge and Kegan Paul, 1981.
  • Overall, Christine. Ethics and Human Reproduction: A Feminist Analysis. Boston: Allen and Unwin, 1987.
  • Rich, Adrienne. Of Woman Born. New York: Norton, 1979.
  • Robertson, John A. “Surrogate Mothers: Not So Novel after All.” The Hastings Center Report, vol. 13, no. 5, October 1983, pp. 28-34.
  • Robertson, John A. “Assisted Reproductive Technology and the Family.” Hastings Law Journal, vol. 47, no. 4, April 1996, pp. 911-933.
  • Rothman, Barbara Katz. Recreating Motherhood Ideology and Technology in a Patriarchal Society. New York: W. W. Norton and Co., 1989.
  • Schultz, Marjorie Maguire. “Reproductive Technology and Intention-based Parenthood: An Opportunity for Gender Neutrality.” Wisconsin Law Review, 1990, vol. 2, pp. 377-378.
  • Shannon, Thomas A. and Lisa S. Cahill. Religion and Artificial Reproduction: An Inquiry into the Vatican ‘Instruction on Respect for Human Life’. New York: Crossroad, 1988.
  • Singer, Peter and Deane Wells. Making Babies: The New Science and Ethics of Conception. New York: Charles Scribner’s Sons, 1984.
  • Spallone, Patricia and Deborah Lynn Steinberg. Made to Order: The Myth of Reproductive and Genetic Progee. Oxford: Pergamon Press, 1987.
  • Surrogacy Arrangements Act, 1985, United Kingdom, Chapter 49, p. 2. (1) (a) (b) (c).
  • United States Congress, Office of Technology Assessment. Infertility: Medical and Social Choices. Washington, DC: US Government Printing Office, 1988, OTA-BA-358.

b. Secondary Sources

  • Andrews, Lori B. Between Strangers: Surrogate Mothers, Expectant Fathers, & Brave New World Babies (New York: Harper & Row, 1989).
    • Andrews’ well-balanced and accessible examination of surrogate parenting arrangements provides many case studies, statistics, and detailed policies for readers to ponder.
  • Chesler, Phyllis. Sacred Bond: The Legacy of Baby M (New York Times Books, 1988).
    • Chesler analyzes every aspect of the Baby M case and provides a deep examination of the factors that truly make for good parents.
  • Corea, Gena. The Mother Machine: Reproductive Technologies from Artificial Insemination to Artificial Wombs (New York: Harper & Row, 1985).
    • Corea’s classic radical feminist case against all forms of assisted reproduction is accessible and spirited. Although her claims are sometimes exaggerated, she does prompt readers to consider some of the harmful consequences that might result from breaking the links between genetic, gestational, and rearing parentage.
  • Overall, Christine. Reproduction: Principles, Practices, Policies (Toronto: Oxford University Press, 1993).
    • Overall’s discussion of assisted reproduction and surrogate parenting is an excellent contribution to the literature. Its style is that of the probing philosopher with more questions than answers.
  • Robertson, John. Children of Choice: Freedom and the New Reproductive Technologies (Princeton, NJ: Princeton University Press, 1994).
    • Robertson provides the best case for a nearly absolute right to procreative liberty. Strong arguments for state enforcement of properly-framed surrogate parenting arrangements can be found in his very comprehensive survey of laws governing assisted reproduction in the United States.
  • Blythe, Eric and Ruth Landau. Third Party Assisted Conception across Cultures: Social, Legal, and Ethical Perspectives (London: Jessica Kingsley Publishers, 2004).
    • Blythe and Landau provide a survey of assisted reproductive technologies throughout the world. They help readers understand why some cultures accept and others reject surrogate parenting arrangements.
  • Markens, Susan. Surrogate Motherhood and the Politics of Reproduction (Berkeley: University of California Press, 2007). Markens compares and contrasts California’s and New York’s statutes involving surrogate contracts.
    • She explores how voices on all sides of reproductive technology at times converge with regards to creating surrogate policy.
  • Shevory, Thomas C. Body/Politics: Studies in Reproduction, Production, and (Re)Construction (Westport, CT: Praeger Publishers, 2000).
    • Shevory devotes a chapter of his book to a discussion of the complex nature of surrogacy contracts.

Author Information

Rosemarie Tong
Email: rotong@uncc.edu
University of North Carolina, Charlotte
U. S. A.

William Mitchell (1861—1962)

MitchellSir William Mitchell was the first major philosopher to live in South Australia. He worked at Adelaide University from 1895 to 1940 primarily in the area of what is now known as cognitive science. His major work: Structure and Growth of the Mind is a treatise on philosophical psychology.

Mitchell anticipated the claims of Nagel, McGinn, and Chalmers and their emphasis on the nonreductive character of subjective experience. He also anticipated the themes associated with perceptual plasticity, developmental accounts of modularity, and connectionism.

Mitchell’s non-reductive view of experience is historically awkward to place between Australia’s 19th century idealism and 20th century radical materialism. Mitchell thought the mind was a structure reacting to the environment. These reactions constitute experiences, through which objects can be known, similar to idealism. Studying these experiences provide “direct” evidence (or data) of the mind. Mitchell also recommended the study of the brain, which provides “indirect” evidence of the mind. The (then) emerging sciences, such as neuroscience, provide an important but limited explanation of the mind. This distinguishes Mitchell from most present contemporaries.

Mitchell explains the growth of the mind through three kinds of content found in experience: feelings, interests, and actions. Experience begins by sensations or by what we feel, which develop into interests of various levels of perception, which in turn may result in action. Although some psychologists and philosophers, like Piaget and Nagel, later present accounts similar to the idea of mental growth, most contemporary accounts of mind focus on the indirect methods or on representational and computational functions of the brain. Contemporary accounts sympathetic to non-symbolic modal information processing may find interest in Mitchell’s work.

Table of Contents

  1. Biographical Sketch
  2. Scottish and Australian Philosophy, The Background
    1. Idealism
    2. Realism and Materialism
    3. Psychology
    4. Neuroscience
  3. Contemporary Philosophy of Mind
  4. Mitchell’s Philosophy of Mind
  5. Contemporary Cognitive Science
  6. Why Mitchell has been Forgotten
  7. References and Further Reading

1. Biographical Sketch

William Mitchell was born in Inveravon in north Scotland in 1861, the son of a hill farmer. He was one of six children. Before he died in 1962 at the age of 101, he had distinguished himself both as Vice Chancellor (1916-1942) and later Chancellor (1942-48) at the University of Adelaide in South Australia. He held the Hughes Chair in English Language and Literature and Mental and Moral Philosophy, and was the first (and to date only) philosopher working within Australia to give the Gifford Lectures at the University of Aberdeen. This he did in 1924 and 1926. In 1927 he was knighted for his services to South Australia (Miller, 1929, p. 248).

In South Australia, Mitchell is remembered as an important figure at Adelaide University. He is certainly well-known for his contributions to scholarly life: this included obtaining grants for the University; founding the chair of biochemistry; spending large sums on library acquisitions; making many administrative contributions (the neo-Gothic Mitchell Building on North Terrace in Adelaide is named in his honour). However, he was also a first-rate philosopher. He published his first paper in Mind while still an undergraduate, and later, two discursive and wide-ranging books with MacMillan; the first entitled: Structure and Growth of the Mind (1907) ranged over issues in mind and content, philosophical psychology and neuroscience; the second The Place of Minds (1933) covered issues overlapping mind and the philosophy of physics, including the then relatively new area of quantum mechanics. The only copy of the third manuscript The Power of Mind—part of the trilogy—is said to have been lost during the London bombing raids. There are surviving manuscripts of this last book and proceedings of it as the last in the series of Gifford lectures—none of which, however, have ever reached print. There are also a number of shorter papers including: “Nature and Feeling”, “Universities and Life”, “Reform in Education”, “Christianity and the Industrial System”, “The Quality of Life”, and others, which were published as monographs by the Hassell printing company in Adelaide. Mitchell was also a regular contributor to the early editions of the Mind journal and regularly wrote shorter topical pieces for the Murdoch paper, The Advertiser, when it was a newspaper of some repute.

As a teacher and academic, Mitchell was highly regarded and something of a polymath, being engaged to teach economics and education as well as philosophy, psychology and literature. It might be disputed how much teaching he actually did in economics and literature—though a recent publication claims that he taught economics four evenings a week in addition to his other duties as professor of philosophy and a Vice Chancellor (“Economics at Adelaide”, 2003, p. 15). There is no doubt that he was a man of considerable energy. For this reason perhaps he described his chair, not as a chair but a sofa. He was also an unpretentious character. It is said, for example, that he didn’t have need for a room in his capacity of Vice Chancellor. If he wanted to see someone on an administrative matter, Mitchell would see them in his room. (Smart, 1962). Because of his considerable abilities as an academic, administrator, and intellectual/social commentator, Duncan and Leonard describe Mitchell as “the nearest approach to a philosopher-king the academic world has ever seen” (Duncan and Leonard, 1973, p. 78; Trahair, 1984, p. 52).

Mitchell always considered himself to be, first and foremost, a philosopher (Smart, 1962). He was, arguably, Australia’s first significant philosopher. Yet, curiously, he is not remembered at all as such. In academic terms, he is today a largely forgotten figure. The last serious discussion known to appear in print on Mitchell’s work was probably in Blanshard’s Nature of Thought in 1939; the last review of his books appeared in 1934 (Harvey and Acton wrote reviews in the same year; an earlier review by Hoernlé appeared in 1909); the last postgraduate dissertation in 1984 (Allen, 1984, see also Allen, 1995). No mention is made of Mitchell in contemporary philosophical writing (although see Boucher, in press). In Honderich’s Dictionary of Philosophy, Mitchell’s main work, Structure and Growth of the Mind, is described as the last remaining example of Australian idealism which “still survives” (Honderich, 1995, p. 67). If it survives at all, it certainly doesn’t survive by very much.

2. Scottish and Australian Philosophy, The Background

Although much had been written on early Scottish philosophical influences on the development of Australian philosophy, the focus of this work has centred mainly on the Sydney connection—particularly, the writing and influence of John Anderson, Challis Professor of Philosophy at the University of Sydney (1927-58). (See Anderson, et al., 1962; Anderson, 1980, 1982; Kennedy, 1995; Coombs, 1996; Baker, 1979, 1986; Mackie, 1962, 1977). In contrast to the Andersonian influence, little scholarly work had been undertaken on what impact, if any, Scottish traditions had on philosophical writing elsewhere in Australia.

Western philosophical thought made an appearance in Australia long before Anderson arrived in New South Wales, yet it may be forever overshadowed by Anderson’s legacy. From approximately 1850 a small community of scholars—mostly of Scots origin—working against the considerable difficulties of time and distance (both among themselves and also between them and their colleagues in the northern hemisphere) managed to bring together a philosophical community in Australia, add to the then dominant idealist and quasi-religious debates which occupied the intellectual scene in America and Europe, and leave behind a number of manuscripts and assorted papers which provided the basis for the metaphysical and epistemological work of those that followed. These scholars included Barzillai Quaife, John Woolley, Charles Badham and Francis Anderson in Sydney; M. H. Irving, H. A. Strong, W. E. Hearn, Richard Hodgson, Alexander Sutherland and Henry Laurie in Melbourne; William Mitchell and John McKellar-Stewart in Adelaide; Elton Mayo and Scott Fletcher in Queensland; R. L. Dunbabin in Tasmania; and P. R. Le Couteur and A. C. Fox in Western Australia.

Any systematic survey of the earliest Australian philosophers and their ideas is beyond the scope of this article. For a comprehensive review, see, Grave, 1984. However, it is necessary to mention the background of those philosophers in broad terms before turning to the subject of this article—William Mitchell. Mitchell spanned two groups of philosophers having very different concerns: the idealist and “common-sense” philosophers who worked from the mid to late 1850s until the late nineteenth century; and, what might be called the realist and materialist revolutionaries beginning in Australia in the early twentieth century with fellow-Scot John Anderson, and later dominated by the work of J. J. C. Smart, U. T. Place, D. M. Armstrong, C. B. Martin, and others—a “school” now known internationally as “Australian Materialism” (all except Armstrong were based in Adelaide). Any understanding and appreciation of Mitchell’s work, must be understood in the context of these two very different traditions.

Mitchell was the product of an old and vibrant school of philosophy which had its roots in the Scottish traditions of idealism and “common-sense” philosophy. The dead hand of idealism and the consequences it had for philosophical realism was one of the influences which gave rise to Mitchell’s work. Other early Australian philosophers before, during and after Mitchell’s time also owe their foundations to these traditions. In brief, these influences can be summarised as follows: from the common-sense philosophers such as Thomas Reid (1710-1796), Mitchell accepts the arguments advanced against solipsism and anti-realism, and the idea that the mind may exhibit different information-processing hierarchies. From T. H. Green (1836-1882), Mitchell derived the idea that an uninterpreted sense datum was simply folly. From F. H. Bradley (1846-1924), Mitchell takes the idea that experience—at least initially—is a seamless unity of knower and known. From James Ward (1843-1925), Mitchell takes the important idea that organisms grow, and that an adequate explanation of mental activity must capture this. From William James (1842-1910), Mitchell adopts a version of realism. Each of these ideas are represented in one way or another in Mitchell’s thought.

However, there was another influence on Mitchell’s philosophical development: the challenges forced by the growing relevance of the physical sciences to philosophical speculation about mind. Developments in physics, psychology and neuroscience, for example, were considerable influences at the time Mitchell was working. Both these influences conspired, not intentionally but effectively, to bring about a materialist reaction to idealism that, for better or worse, shared more of its idealist ancestry than the materialism we know today. Consequently, this flavored Mitchell’s work in Australia during the same period. The implications of them for Mitchell’s thought are mentioned below.

a. Idealism

Mitchell is not an idealist in the strict sense, though he certainly came from the idealist tradition. Some of his more shaky arguments even turn on idealist assumptions. This should not be surprising. Mitchell’s views, after all, descend from the influence of the British idealists, T. H. Green and F. H. Bradley, among others, who endeavored to push the empiricist views of Locke and Hume closer to the views of the German idealists. On the other hand, Mitchell was also impressed by the arguments of his compatriots T. Reid, D. Stewart, J. Beattie, W. Hamilton—the Scottish “common sense” theorists, who attacked idealism and tried to outline a doctrine closer to what we would now call “realism”. While it should be acknowledged that idealism is a broad church, and can encompass a wide variety of positions, on balance, Mitchell’s views are best placed at the beginning of another tradition entirely.

Mitchell’s views demonstrate cautious materialist and non-doctrinaire realist themes—themes which have more in common with contemporary philosophical work (for example, current work in cognitive science) than with the idealist tradition; views which are also indicative of the region of the world in which he worked. His writing is best described as marking a transition between the idealist tradition which arrived on Australian soil in the early part of the nineteenth century, and the more radical materialist views which followed (especially in Adelaide)—but, strictly speaking, he belonged properly to neither tradition. There is no doubt that Mitchell wrote like an idealist—sometimes argued like one—but there is an ambiguity in his work which seems to indicate that he was attempting to stake out a position that, for the time, was genuinely original. If he was an idealist, he was only a methodological idealist.

b. Realism and Materialism

There is a light-hearted reason why Mitchell should not be seen as an idealist: for were it so, it would stand as an anomalous case to the oft-quoted remark of Armstrong (and quoted by Devitt, 1984, p. vii) that realism is born only of dry countries with harsh landscapes and strong sunlight, whereas anti-realisms are born of moist countries with misty air and green landscapes where the mind is allowed to wander. (Devitt even claims that a bastion of idealism still survives in Victoria where the sun doesn’t shine quite as much.) Since Mitchell spent most of his philosophical life in Australia—and in the very harsh climate of South Australia—it would be unfitting that, if he was an idealist, he would remain one for long. J. J. C. Smart remembers Mitchell regarding himself as a staunch realist. One recollection recalls Mitchell in conversation with a solipsist: “You know, the trouble with you, is that you think only minds exist”, and adding (under his breath) “and your mind at that.” (Edgeloe, 1993). Not the kind of remark an idealist would make. And, it is certainly not like an anti-realist to make claims such as the following: “No object is made mental, nor altered, by being felt, imagined, or known in any way” (PMW, p. 33) and: “When your ideas quarrel with mine, and when they agree, it is because they….grasp the same object as mine, and to find it independent of our grasp” (PMW, p. 45). Or, finally, his claim: “The room is….not affected by my perceiving it” (SGM, p. 60). If Mitchell is an idealist, he is an unusual one indeed. However, if he is a realist, as Mitchell himself claimed, we may see his pronouncements to the contrary as mere epistemological lapses—perhaps even forgivable ones given the preoccupation of early Australian philosophers with the idealist curse.

Just as Mitchell was no idealist or antirealist, it is also clear that he was no anti-materialist. There are a number of passages which indicate this. Here’s one example (recall that is was written before 1907):

When you try to picture the structure and the action of the mind, remember you are trying to picture the structure and action of the nervous system. In this way you will avoid the usual confusion of trying to picture a hybrid process consisting partly of visible movements and partly of invisible feelings (SGM, p. 7).

It is not unreasonable, therefore, to look for evidence of realist and materialist themes in Mitchell, given that he worked here and not in the misty green landscape of Scotland, and given such pronouncements as those above. It should certainly not be automatically assumed that his views are similar to the tradition from which he descended. I shall submit that Mitchell’s work should be reconsidered in the light of contemporary philosophical debates. Perhaps J. A. Passmore was only partly right when he described Mitchell’s work as articulating “an introduction to an Idealist philosophy for which the mind is the central ontological conception” (Passmore in McLeod, 1963, p. 146). While it is certainly true that, for Mitchell, the role of the mind is a pre-eminent consideration, this doesn’t by itself make him an idealist. The common qualification for being an idealist is that what is real is in some way confined or at least related to the contents of our minds (Honderich, 1995, p. 386). And the evidence for this in Mitchell’s writing is somewhat less clear.

c. Psychology

Aside from the Scottish idealist and common sense traditions, there were other influences which complicate the picture further. These influences indicate that Mitchell was a more sophisticated philosopher than previously thought. These influences came from the discipline of psychology. Mitchell was a near contemporary of the Swiss psychologist Piaget, who argued for an epistemology which was both dynamic and materialist—setting the stage for a later cybernetic approach to epistemology. (Piaget published his first substantial works in 1923, some 16 years after Mitchell’s SGM). Mitchell articulated a kind of early dynamic process philosophy of the structure and growth of the mind which anticipated some of Piaget’s account later to receive wide acclaim in the philosophy of psychology. There are considerable differences here, of course. Whereas Piaget aimed at a strictly empirical developmental psychology underpinned by the influence of some Aristotelian, Kantian and Hegelian philosophical conceptions (with empirical work predominating), Mitchell aimed at—in Passmore’s words—”a psychology which is in turn an introduction to philosophy” (Passmore, 1963, p. 145). That is, a psychology which leads to a new way of thinking philosophically about the mind. Indeed, for Mitchell, philosophy was a kind of psychology.

While there are differences between the two thinkers, there are also similarities: unlike the focus of contemporary philosophy of mind (which deals centrally with ontological questions such as what the mind is—how a neural state can be a representational state, for instance), both Mitchell and Piaget seemed more interested in how the mind grows (how the mind of an infant is different from the mind of an adult; a learned mind differs from one which exhibits “invincible stupidity”; how the minds of lower animals differ from those of primates; and so on.) It was, in other words, an entirely different philosophical agenda. The issue of what minds are was, for Mitchell and his contemporaries, subordinate to the issue of what minds do. Structure and Growth of the Mind is, broadly speaking, an attempt to outline the precise processes undergone by minds during different stages of their growth, and under different conditions. It might be considered a conceptual psychology—or an analytic phenomenology—of the stages of mental growth. And, the central category of this “psychology” was the category of experience. This way of looking at things is currently out of favor among philosophers of mind, though it does seem to be making a come-back (see for example, Karmiloff-Smith’s amalgamation of Fodorian modularity theory and Piagetian themes) (Karmiloff-Smith, 1992).

Other psychologists to influence Mitchell were Wundt, Helmholtz and Stumpf. Additional strong influences on his work come from ethology and related disciplines. For example, Mitchell approvingly cites Lubbock’s work on the senses of insects (Lubbock, 1888, cited in Mitchell, 1907, p. 39 passim) and Preyer’s and Münsterberg’s views about the behavior of lower animals. These influences seem to discredit the claim that Mitchell was an ontological idealist. He was more interested in a naturalist account of mind and content. And he was certainly more interested in evidence from emerging sciences than the inchoate ramblings of British and German idealists (there are no references to either in his books).

d. Neuroscience

Were Mitchell an antimaterialist of some conviction, we might expect rather less of this material to feature in his writings. Yet Mitchell devotes an entire chapter reviewing the then current work in neuroscience, and much of the rest of his work is sprinkled liberally with evidence from such sources. He looks at experiments involving prosthesis and brain bisection, conjectures about differently weighted neuronal paths in animals, and so on. He called this evidence the “indirect” method of understanding mind—indirect because it relied on evidence from the brain, not “direct” evidence from experience as it seems to us, that is, not phenomenological content. Moreover, Mitchell seemed to believe that any proper understanding of mind required an analysis in which evidence from both sources was required. He didn’t think that one needed to be subordinated to the other. Mitchell “saw in psychological and neurological inquiry alternative means of explanation—the philosophical being the more “direct”—rather than attempts to describe entities of a different ontological order” (Passmore, 1963, 147).

3. Contemporary Philosophy of Mind

In contemporary cognitive science, philosophers refer to the “easy” and the “hard” problem of consciousness. The “easy” problem consists in how brains might do things such as represent perceptions in thought in a neural or computational form. The “hard” problem consists in explaining how things seem to us in experience (the “what it is like” of consciousness) (Chalmers, 1996). Many contemporary cognitive scientists believe one can’t understand mind without an understanding of the “hard” problem, as this requires an understanding of “subjectivity”, or experience “from the inside.”

This distinction approximates Mitchell’s “indirect” and “direct” distinction to this extent: While the “indirect” method offers a potentially complete understanding of “the immediate physical correlates” (SGM, p. 450) of experience, only the direct method offers an understanding of what experience is like “from the inside”. Both approaches, according to Mitchell, are essential. While Mitchell did not have the conceptual resources to understand features of mind that we have today (courtesy of the modern computer and its binary method of information storage), he did have enormous faith that the indirect method would yield considerable insights; hence his emphasis on neuroscience. In the final chapter of SGM, Mitchell even sketches what an indirect account might look like—an account which has a startling resemblance to recent “connectionist” models (McClelland, 1999; McClelland and Rumelhart, 1986).

However, while he thought this important, he also thought that this could only ever be a “correlate” of mind as it is experienced by us. Thus, he argued for a cautious, non-reductive physicalism and rejected materialist accounts which promised more. One certainly can’t understand mind without both the “direct” and “indirect” methods according to him. Mitchell’s account of mind, to the extent that it makes a contribution to such views, is thus historically relevant to the debates in present day philosophy of mind.

It could even be argued, that Mitchell anticipated the views of contemporary theorists such as Thomas Nagel, Colin McGinn and David Chalmers—the “new mysterians”, as they are sometimes disparagingly called. These theorists argue, in very different ways, for the claims that: 1. the subjective quality of experience is essentially dissimilar from objective descriptions of brain states; and 2. the current brain sciences are limited in their application. They are united in their view that, while the evidence from the neurosciences is impressive, these results don’t tell us anything about consciousness properly so-called, even though they might tell us a good deal about associated problems to do with mentality (how a propositional attitude can be a representational state, and so on). They are also united in their regard for the importance, and non-reducibility of subjective experience.

None of the “new mysterians” are dualists by fiat (although many of them openly espouse dualism); they are, rather, unconvinced that a materialist theory of mind in its present form will do the job. Materialism can’t be said to be false—indeed, Nagel states this much explicitly (Nagel, 1979, pp. 175-6). Chalmers, likewise, exhibits a reluctance to say that materialism can’t at present do the job required, and advocates a monism which is “broader”. So it seems that the new mysterians are not hostile to materialism—only unwilling to take it seriously as a complete theory of mind (this point is not often stressed in the literature). The theory of mind they argue for would have to offer an account of the subjective character of experience without attempting to eliminate, reduce or otherwise distort the “what it is like” of phenomenal experience. To paraphrase Chalmers, the right theory of consciousness will have to “feel the problem [of subjective experience] in its bones”. One can, perhaps, describe the new mysterians, in a very liberal mood, as very cautious materialists (so cautious as to support dualism or panpsychism). And, in this sense, Mitchell was one too—though he doesn’t reach such radical conclusions.

The other point worth noting is that Mitchell also anticipated the views of some contemporary cognitive scientists, especially those theorists who are somewhat sympathetic to the claims of the new mysterians but who don’t wish to be tarred with the same “new mysterian” brush.

Where is the evidence that Mitchell anticipated such views? Briefly, though not conclusive evidence on its own, some of his remarks about mind do see him articulating a position which has similarities with some of these more recent theorists:

A mind and its experience are realities that are presentable to sense as the brain and its actions. In that respect the mind and experience are not parallel with nature, but part of it. And, on the other hand, the facts of nature, including the brain, whenever they are phenomena, are not parallel with mental phenomena, but part of them (SGM, p. 23).

In one sense, it is easy to see why the American idealists in the 1930s embraced such comments (see Blanshard, 1939, for extensive reference to Mitchell’s writing). On one reading they seem to suggest that Mitchell thought the brain might be a product of minds: whenever brain states are “phenomenal” states, they are mental phenomena, he seems to say. Given his outright rejection of idealism, and his own insistence that he was a realist, other interpretations of his remarks seem called for. Another, more benign reading is that Mitchell was arguing a similar line to that of Thomas Nagel’s “Dual Aspect” theory: According to Nagel’s account, “both the mental and the physical properties of a mental event are essential properties of it—properties which it could not lack” (Nagel, 1986, p. 48). This too can be a way of interpreting Mitchell’s assertion above. This reading makes no such commitment to idealist doctrines and seems to suggest that Mitchell was trying to outline a kind of non-reductive account in which mental and physical states both feature in a more inclusive account of mind—a “fundamental” theory incorporating both. This too is the emphasis in the theories of Chalmers and McGinn (Chalmers, 1996; McGinn, 1983). Mitchell’s account also bears close similarities to Sellars’ articulation of the “manifest” and the “scientific” images (Sellars, 1963).

Gone are the days, it seems, of either being a realist and materialist, or an idealist and/or dualist, and shunning the possibility of intermediate positions. Now, it seems, empirically-minded philosophers seriously entertain alternative accounts; theories of which Anderson, no doubt, would have disapproved (Cantwell-Smith, 1996; Marshall, 2001). Chalmers is an example of an Australian who has attempted to stake out such an account, though there are others: Keith Campbell and Frank Jackson are examples of contemporary Australian dualists or qualiaphiles, as they are called; though Jackson has recently undergone a change of heart. In any case, a kinder face of Australian materialism can be seen emerging in the late twentieth century, and this probably began with Mitchell. What seems clear from Mitchell’s work is that this trend began long before Anderson’s arrival in Australia, but was overlooked. It is certainly true that Mitchell, unlike Anderson and those materialists that followed him, took consciousness as a phenomenon to be explained in its own terms, not reduced, eliminated or ignored.

I previously outlined the Scottish traditions and Australian traditions which helped to shaped Mitchell’s work. In a later section, I shall suggest that Mitchell’s work has surprising application to current trends in cognitive science. His work thus deserves serious study by contemporary philosophers of mind. I shall briefly outline the central elements of Mitchell’s ideas here before continuing.

4. Mitchell’s Philosophy of Mind

Mitchell’s philosophical contributions have, as their focus, the nature of mind and experience. Particularly, he is interested in the growth of the mind; and, to a lesser extent, its ontology. He does make contributions to the philosophy of science and education; but these fall naturally out of his philosophy of mind. It remains to introduce in general outline what these contributions are and how they differ from present-day theories.

The key elements of Mitchell’s thought are easy enough to state in general terms: experience is the crucial element of our mental lives; or, to put it another way: “mental activity is central in experience” (Miller, 1929, p. 249). As I have suggested, Mitchell is a forerunner of what we now call the “New Mysterians”, who regard conscious subjective experience as a crucial, ineliminable feature of our lives. For Mitchell, it was no different. We are happy or depressed; we worry and at other times we are elated; we feel pains and pleasures. This kind of experience is fundamental to our mental and physical lives, and cannot to be reduced or eliminated.

However Mitchell is not merely interested in such conscious experiences. He recognizes that not all experience is conscious, but is nonetheless important to the growth of the mind. Experience, for Mitchell, covers everything from qualia to high-level intentional content at various levels. There is no principled epistemic divide to be drawn between these levels on Mitchell’s account. One learns about the mind primarily by studying experience directly as we live it (the “direct” approach); and secondarily, by studying the mind indirectly by means of the emerging sciences of the mind, for example, neuroscience (the “indirect” approach). Knowledge acquired by means of the direct approach aids in directing attention to relevant features of the indirect approach (thus, an adequate neuroscience might be directed to features of interest by means of contentful phenomenal experience).

The action of mind is always action on an occasion. The occasion is the moment and conditions under which an experience happens and the content that such conditions bring about. The occasion is a stimulus property (either mental, physical or environmental). Experience is what the mind, the “reacting structure”, does in reaction to its environment (a definition which is sufficiently vague to cover all aspects of content). Not everything about the mind is always involved on an occasion, only the activity which the occasion calls forth (so, for example, low-level modular-type processing, which do not seem to involve higher level concepts, is consistent with the concept of an occasion).

The organism aims to resolve occasions in order to achieve pragmatic and experiential ends. Thus, we focus our eyes to achieve a better view, etc. However this also occurs at higher levels. So, for example, our concepts are deployed in making sense of more complex experiences. Organisms start off by resolving low-level instinctual experiences, and then move to higher, more satisfactory levels of experience, though this is not so for all creatures on which there might be evolutionary and experiential constraints. As the idea of resolving experiences is a key to Mitchell’s account, this leads to an account which demands levels of experiential content.

There are three main levels of content according to Mitchell: sensory, perceptual and cognitive intelligence. These levels are represented in the following diagram.

The sensory level is roughly equivalent to instinct. Some organisms remain at this level and advance no higher. As Mitchell defines it, the course of instinctive action is: “the power of pursuing an infinite variety of courses, directed throughout by present sensation” (SGM, p. 194). Thus, we resolve our eyes to focus; cup or fix our ears; sniff with our noses. The next level is perceptual intelligence or “interest” which is equivalent to content which already comes with the power to anticipate further experiences (for example, we simply “see” a display of objects and know how to react; we don’t have to infer our course of action). This has a number of levels (feeling, practical and cognitive interests). Some organisms—some humans—even remain at these levels. The last level is cognitive intelligence which is influenced by rules, language and principles, and it helps differentiate the expert from the non-expert. Thus, in Hanson’s sense:

There is a ‘linguistic’ factor in seeing….Unless there were this linguistic element, nothing we ever observed could have relevance for our knowledge. We could not speak of significant observations: nothing seen would make sense, and microscopy would only be a kind of kaleidoscopy. For what is it for things to make sense other than for descriptions of them to be composed of meaningful sentences? (Hanson, 1975, p. 25).

Mitchell differs from Hanson in regarding the higher level conceptual intelligence as containing features of the lower levels as well. Thus, while at higher levels there is a “linguistic factor in seeing”, this is not all there is. Cutting across this tripartite division of forms of intelligence, which constitute broad bands or levels of content, is a distinction between the functions and forms of experience: feeling, interest and action. Each of these typify the kinds of content that organisms are interested in at particular moments.

On the metaphysics of mind, Mitchell has an interesting case to put. He believes the capacity to experience allows an inference to the notion of mind (Allen, 1984, p. 7). This is rather different from some current approaches which regard to the capacity to experience as a reason to deny the existence of mind (for, example, Dennett’s 1988, 1991, and Churchland’s views, 1979, 1984, 1986). By complete contrast, Mitchell thinks that the very structure of experience is evidence that mind exists (otherwise there would be no evident structure).

However, he does not argue for a faculty-based account of mind, nor the notion of “self” as an ontologically legitimate entity. This, to Mitchell, is an invalid inference. Rather, the working of the mind is a process due to various faculties, but they themselves are not processes and not an experience; rather, the relationship defines nominal entities which stand for what experiences are produced on an occasion. A faculty means, for Mitchell, merely the capacity to produce or the capacity to have, an experience of a certain kind (Miller, 1929, p. 249). Thus, Mitchell is no defender of a literal faculty-based psychology—unlike Fodor, who has recently tried to resuscitate the idea (Fodor, 1983). Rather, his account more closely resembles a defense of some kind of early dynamic process account, recently featured in the literature as “interactivist-constructionist” models (Christensen and Hooker, 1999; van Gelder, 1998, 1999; Port and van Gelder, 1995).

What of Mitchell’s position regarding the metaphysical relation of subject and object? Mitchell claims that in every experience there is differentiation of subject and object. But it does not follow that there is always an experience of difference between two subjects of experience (for example, we can be so absorbed in an experience we can forget the object) (Jackson, 1977). Rather, this differentiation is a product of the mind’s growth. Nor can we infer from one entity to the other qua self-subsistent entities (Miller, 1929, p. 249). For Mitchell, experience involves an implicit two-factor relation: experience helps in the analysis of the two factors in relation, and experience would be impossible without these factors. But, at the same time, experience begins as mere feeling or sensation without the division into subject and object; i.e., as an undifferentiated whole. In this sense, and only this sense, Mitchell follows Bradley. Experience does not, at least initially, consist of ourselves feeling something (for this involves higher-level thought—thought which is part of the later growth of the mind); rather, it is feeling as such, or—as Mitchell calls it—mere sensation; not somebody’s feeling or a feeling of something. Experience contains diversity, but a diversity which is prior to relations (Passmore, 1984, p. 62-3).

Why develop this apparently bizarre idea of mere experience as a non-relational whole? The answer to this is possibly the same as why others, such as Bradley, developed it. Mitchell was writing at a time of considerable Humean influence. Hume, of course, took the opposite assumption to that of Bradley and Mitchell. Instead of regarding experience as an undifferentiated whole, from which distinctions between subject and object arise, Hume took the opposite assumption, a skeptical attitude. He thought of experience as comprising a disconnected “bundle” of sensations on which we impose conventions of regularity and association. On Hume’s account, the “self,” and the subject of experience and action, disappears.

Mitchell, like his Scottish forebears, rejected this assumption as irrational and counterintuitive. Like Bradley, he attempted to ground an account of experience which more closely mirrored the unity, coherence and completeness which we really do find in our conscious lives. Unlike Bradley’s Hegelian musings about the Absolute, however, Mitchell was more interested in an account of the growth of the mind from its undifferentiated feeling to the stock of mental constructions and concepts which we know in experience. In other words, he aimed to construct “a psychology which is in turn an introduction to philosophy” (Passmore, 1984, p. 145).

Thus, Mitchell’s metaphysics is complex, descended from the Scottish common-sense views, British empiricism, and idealist metaphysics. He has idealist sympathies in so far as objects can only be understood or known as the subject of experiences. However, he does not confine objects as mental products in our heads, and he sees objects qua objects as part of a dynamical exchange between organisms and the world which makes experience possible (for a recent account that is similar, see Cantwell-Smith, 1996). In this latter sense, Mitchell can be understood as a die-hard realist. Though if “idealism” is interpreted generously enough to allow for the existence of independent external material objects—as perhaps it should be—he could also be considered an idealist of some conviction.

This point is often confused in the literature. E. M. Miller points out the confusion, and Mitchell’s attitude to it, very clearly indeed:

An idealism that denies external reality is no true idealism. The experience of the real is admitted. What the idealist wants to know is the nature and meaning of reality; and as to its nature and meaning there may be and is a great variety of opinions. No one in his senses doubts the existence of material objects. What brings about endless trouble is the confusion of material existence with the assertion of the existence of a material reality independent of mind. We cannot be conscious of something which is out of consciousness, and if we are conscious of anything, we know somewhat of it. This fact is a necessity of knowledge, and to assert its independence of the relations under which it is experienced as an object of consciousness is to assert nothing. We are not aware of anything to which consciousness does not testify. In a like manner we know mental facts as distinct from physical facts or processes. We may speak of mental processes as internal and of physical processes as external; but neither internality nor externality is applicable to mental processes as such. They are entirely different from the physical. They are not coordinate, to use Mitchell’s words….and “their correlation does not mean identity of nature” (Miller, 1930, p. 10).

The latter remark, that the mental is defined in terms that are neither internal nor external, captures the point that, for Mitchell, the exchange between subject and object is crucial to the nature of mind. For convenience, we refer to the “internal” and “external” (or subject and object), but the mental is not coordinate with either; and though they are often correlated, this does not amount to a relationship of identity. (Compare, the onset of spring and bees: they are coordinate facts, and there is a high correlation between them, but they are certainly not identical.)

5. Contemporary Cognitive Science

Now let us look briefly at the kind of environment current in contemporary philosophy of mind. I shall make a few points about how Mitchell differs from the contemporary discussions, and where he has sympathies. Obviously in an article of this length I can only gesture in the direction of Mitchell’s position on the issues.

1. Contemporary accounts of mind have no account of how and why minds grow. With few notable exceptions (Karmiloff-Smith, Piaget, Vygotsky) this is true. Most philosophers are more interested in ontological questions: What is consciousness?; What is a representational state?; What is a pain?, Are representations computational states?; and so on. They are less interested in the developmental question. Mitchell, by contrast, is concerned with the growth of the mind as the primary metaphysical issue.

2. Contemporary accounts assume that the computational processes of mind are central. The computational account, or—as it is known—the representational theory of mind (RTM) is dominant in the current literature. Computations performed over amodal, structured symbolic expressions tokened in a neural form is considered to be the main processing mechanism for cognitive states. There are a number of variations on how this is supposed to be achieved, but the metaphor of the mind as a computational system is widespread. Contemporary accounts which stress the processing of non-symbolic, modal, perceptual information is now making an appearance in the cognitive science literature, but this is a minority view (Barsalou, 1999). Mitchell is sympathetic with the modal-format account, which makes him rather contemporary.

3. Contemporary accounts subordinate the phenomenal features of mind to their representational/computational features. Many cognitive scientists are principally interested in how brains represent the world in thought. Phenomenological features of experience are an infuriating problem for computational accounts because they seem to resist explanation in the terms of the RTM. If qualia occur at all—and there is much dissension on the question—they are considered to be another form of representational capacity. Thus, the RTM allows for a variety of representational formats. However, it is not clear how neurally encoding—regardless of format—can capture the “what it is like” of phenomenal experience. Mitchell’s account attempts to outline a variety of representational formats employed by the organism at various stages of its cognitive growth.

4. Contemporary accounts assume the “indirect” (neurophysiological) approach to be the best, or only, approach. Contemporary accounts generally assume that the advancing neurosciences will eventually shed insight on questions of consciousness, representation and cognition. There are some who claim that there is an “explanatory gap” and that we are cognitively prevented from crossing it (McGinn, 1991; Levine, 1983). Mitchell agrees that the indirect approach is essential but only in conjunction with the direct approach. This is in line with others who, while they regard the direct approach as valuable, claim that it plays a subordinate role to first person experiential perspectives (Nagel, 1974; Jackson, 1990; Chalmers, 1996). This kind of position is now gaining currency again, long after Mitchell originally proposed it (Edelman, 1992; Flanagan, 1992, 1995; Overgaard, 2001; van Gulick, 1993; see Davies, 2003).

5. Contemporary accounts assume that an epistemology of content is subordinate to an ontology of mind. Contemporary accounts are less interested in epistemological concerns; when they are, it is usually expressed in terms of how minds represent the world in thought in computational terms. However, this already assumes an ontology of mind. Mitchell’s approach is to construct an epistemological account from which an ontology of mind is derived as an inference. The central issue is not what minds are—the key question is how we have the experiences we do. Since experience has structure there must be minds. From the epistemological agenda an “indirect” account of the nature of mind follows.

6. Why Mitchell has been Forgotten

The reasons for the lack of interest in Mitchell’s philosophical work are fourfold: first, Mitchell’s work is historically badly poised. As I have already mentioned, he dealt with themes and ideas at the cross-over point between the death of idealism and “common-sense” philosophy, and the rise of Australian materialism and realism. This virtually ensured that his work sat uncomfortably between scholarly periods, but belonged properly to neither.

Second, his style of writing was poor. Even taking into account the stylistic conventions of the time—and allowing for the difficulty of the philosophical concepts he was engaged with—his work is badly written, often divorced of clear central themes, lacking in detailed exegesis and often ponderous in delivery. (A professor of classics at Adelaide at the time “used to say that he could never understand Mitchell’s books until he had translated them into Latin”.) (Duncan and Leonard, 1973, p. 19; Grave, 1984, p. 22). True enough, obscurity of style is no barrier to greatness (e.g., Wittgenstein). But in Mitchell’s case there were other factors in addition to stylistic obscurity that conspired to defeat him. Moreover, this estimation of Mitchell’s writing was not an individual complaint, but, by and large, consensual: reviewers of Mitchell’s first book complained about the difficulty “in focussing to a definite view the central conceptions upon which the work as a whole rests” (Kemp-Smith, 1908, p. 333). It was also criticized for its “obscurity”, its “somewhat oracular style” (Acton, 1934, p. 245) and even its “undeniable dreariness”. One reviewer pointed out that, while reading it, one always has to “retrace one’s steps and grope for the context”. The same complained that, because of “no contour or difference in emphasis”, reading the book was like “swimming under water with never a chance to come up and look about” (Perry, 1908, p. 45). Norman Kemp-Smith, a philosopher later famous for his extremely clear exposition of Kant’s Critique of Pure Reason, even had the audacity to suggest that Mitchell’s work could have been “condensed to half its present size” without loss, and complained about his “obscurity” and “constant digression into….side issues” (Kemp-Smith, 1908, p. 332). Everybody, except Mitchell himself, found his work virtually impenetrable.

Third, Mitchell’s perspective on the issues of the day was unconventional and is hard to understand even with the hindsight of trends and developments in the late twentieth century. A number of his views are simply unfashionable: for instance, the emphasis taken in both his writing and his classes was that psychology “is the proper introduction to philosophy”; a view certainly not popular today notwithstanding recent interest in a return to “philosophical psychology” (see Gold and Stoljar, 1999).

Fourth, Mitchell made no allowances for the reader: his second book was premised on the reader having read and digested the first; however the first book assumes an acquaintance with the themes and concerns of nineteenth century thought not merely in philosophy, but also in developmental psychology, neuroscience, physics and biology. Thus, for the contemporary reader Mitchell’s writing is now almost beyond reach. His second book, universally regarded as harder to read than the first, presupposes a detailed knowledge of quantum mechanics and other areas of physics very fresh for the time. Not only this, but Mitchell makes no attempt to connect his ideas with the debates which were current at the time in the literature and “never ties his reflections to a specific philosophical controversy” (Passmore, 1962; 1963, p. 145). To make matters worse, Mitchell never provided indexes to his books, and gives no summaries, recapitulations of points, nor linguistic “signposts” to aid the unwitting reader. It is this kind of inconsiderate authorship which helps explain V. A. Edgeloe’s cryptic remark that Structure and Growth of the Mind was, “for more than a quarter of a century….a textbook over which university students, in Adelaide at least, sweated” (Edgeloe, 1966, p. 536).

There is no excuse for such obscurity these days, but in the colonies during the late nineteenth century, things were different. Another reason for Mitchell’s obscurity is the factor of academic isolation to which I have already alluded. J. A Passmore has highlighted this point in relation to his two works Structure and Growth of the Mind and The Place of Minds:

Both books are, very obviously, the products of a solitary thinker. When Mitchell went to South Australia, contacts between Adelaide and the eastern states were rare, voyages to Europe or America even rarer. Few Australian philosophers as much as met Mitchell, and his influence in Australia has not been extensive (Passmore, 1963, p. 145).

There were yet further reasons for the neglect of Mitchell’s work. At around the time Mitchell’s work was beginning to be discussed, a new philosophical star was on the rise. Wittgenstein had emerged on the scene and, along with the influence of Rylean behaviorism, this presented a potent philosophical cocktail. Subjective states and discussions about sui generis conscious states fell into philosophical abeyance. Under the influence of Wittgenstein and behaviorism, issues concerning mind and consciousness began to be seen as no longer topics for fruitful philosophical discussion, but rather avoided or smothered under linguistic analysis. This remained the case well into the latter half of the twentieth century.

7. References and Further Reading

  • Acton, H. B., (1934), “The Place of Minds in the World. Gifford Lectures at the University of Aberdeen 1924-26,” (Review), Mind, Vol. 43, No. 170, pp. 243-245.
  • Allen, H. J., (1984), Mitchell’s Concept of Human Freedom. Masters Dissertation: University of Adelaide.
  • Allen, H. J. (1995), An Exposition of Selected Aspects of the Philosophy of the Late Sir William Mitchell. Unpublished manuscript: University of Adelaide.
  • Anderson, J., Cullum, G., Lycos, K., (eds.) (1962), Studies in Empirical Philosophy. Sydney: Angus and Robertson.
  • Anderson, J., (1980), Education and Inquiry. (ed.) D. Z. Phillips. Oxford: Blackwell.
  • Anderson, J. (1982), Art and Reality: John Anderson on Literature and Aesthetics. Marrickville, NSW: Hale and Iremonger.
  • Baker, A.J., (1979), Anderson’s Social Philosophy. Hong Kong: Angus and Robertson Publishers.
  • Baker, A.J., (1986), Australian Realism: The Systematic Philosophy of John Anderson. U.K.: C.U.P.
  • Barsalou, L. W., (1999), “Perceptual Symbol Systems”, Behavioral and Brain Sciences, 22, pp. 577-660.
  • Blanshard, B., (1939), The Nature of Thought. London: George Allen and Unwin Ltd. (Two Volumes).
  • Boucher, D. (in press) “Sir William Mitchell” in Dictionary of Twentieth Century British Philosophers. Bristol, UK.: Thoemmes Press. http://www.thoemmes.com/dictionaries/20entries.htm
  • Cantwell-Smith, B., (1996), On the Origin of Objects. A Bradford Book. Cambridge, Mass.: M.I.T. Press.
  • Chalmers, D., (1996), The Conscious Mind. Cambridge: Cambridge University Press.
  • Christensen, W. D. and Hooker, C.A., (2000), “An Interactivist-Constructivist Approach to Intelligence: Self Directed Anticipative Learning”, Philosophical Psychology, 13, pp. 5-45.
  • Churchland, P. M., (1979), Scientific Realism and the Plasticity of Mind. New York: Cambridge University Press.
  • Churchland, P. M., (1984), Matter and Consciousness. Cambridge, Mass: MIT Press
  • Churchland, P. M., (1986), “Some Reductive Strategies in Cognitive Neurobiology”, Mind, 95, no. 379, pp. 279-309.
  • Coombs, A., (1996), Sex and Anarchy: The Life and Death of the Sydney Push. Ringwood, Victoria: Viking.
  • Cussins, A., (1992), “Content, Embodiment and Objectivity: The Theory of Cognitive Trails”, Mind 101: pp. 651-688.
  • Davies, W. M., (1996), Experience and Content: Consequences of a Continuum Theory. Aldershot, UK: Avebury.
  • Davies, W. M. (1999) “Sir William Mitchell and the New Mysterianism“, Australasian Journal of Philosophy, Volume 77, No. 3, September 1999: pp. 253-257.
  • Davies, W. M. (2001) “Sir William Mitchell”, SA’s Greats: The Men and Women of the North Terrace Plaques. J. Healey (ed), Historical Society of South Australia Publication.
  • Davies, W. M. (2003) The Thought of Sir William Mitchell 1861-1962: A Mind’s Own Place.  Studies in the History of Philosophy, Volume 73. Edwin Mellen Press: Lewiston, USA.
  • Dennett, D. C. (1988), “Quining Qualia”, Consciousness in Contemporary Science. A. Marcel and E. Bisiach, Oxford, New York: Oxford University Press.
  • Dennett, D. C. (1991), Consciousness Explained. Boston: Little, Brown and Co.
  • Devitt, M., (1984), Realism and Truth, UK: Basil Blackwell.
  • Duncan, W. G. K., and Leonard, R. A., (1973), The University of Adelaide, 1874-1974. Rigby, The Griffin Press, Adelaide. See especially Chapter 7, “The Mitchell Era”.
  • “Economics at Adelaide” (2003), Lumen magazine, University of Adelaide: Adelaide. (URL: http://www.lumen.adelaide.edu.au/2003winter/page15/ [accessed 10/2/04]
  • Edelman, G., (1992), Bright Air, Brilliant Fire, NY: Basic Books.
  • Edgeloe, V. A., (1966), Australian Dictionary of Biography. Volume 10, 1891-1939, “Sir William Mitchell”, Melbourne University Press: Melbourne, pp. 535-537.
  • Edgeloe, V. A., (1993), Servants of Distinction: Leadership in a Young University 1874-1925. University of Adelaide Foundation: Educational Technology Unit.
  • Flanagan, O., (1992), Consciousness Reconsidered. Cambridge, Mass: MIT/Bradford.
  • Flanagan, O., (1995), The Science of the Mind. 2nd Ed., Cambridge, Mass: MIT/Bradford.
  • Fodor, J. A., (1983), Modularity of Mind: An Essay in Faculty Psychology. Cambridge, Mass: MIT/Bradford.
  • Franklin, J., (2000), Corrupting the Youth: A History of Philosophy in Australia. Paddington, Macleay Press.
  • Gold, I. and Stoljar, D., (1999), “A Neuron Doctrine in the Philosophy of Neuroscience”, Behavioral and Brain Sciences, 22, pp. 809-869.
  • Grave, S., (1984), A History of Philosophy in Australia. Hong Kong: University of Queensland Press.
  • Hanson, N. R., (1975), Patterns of Discovery: An Enquiry into the Conceptual Foundations of Science. Cambridge: Cambridge University Press.
  • Harvey, J. W., (1934), “The Place of Minds in the World: Gifford Lectures at the University of Aberdeen 1924-26,” (Review), Journal of the British Institute of Philosophical Studies, Vol. 8, No. 33, pp. 103-106.
  • Hoernlé, R. F. A., (1909), “Structure and Growth of the Mind” (Critical Notice) Mind, New Series, XVIII, pp. 255-264.
  • Honderich, T., (ed.) (1995), The Oxford Companion to Philosophy, Oxford: Oxford University Press.
  • Jackson, F., (1977), Perception: A Representative Theory. Cambridge, New York: Cambridge University Press.
  • Jackson, F., (1990), “Epiphenomenal Qualia”, Mind and Cognition: A Reader. William Lycan (ed) UK: Basil Blackwell.
  • Karmiloff-Smith, A., (1992), Beyond Modularity: A Developmental Perspective on Cognitive Science. Cambridge, Mass: MIT/Bradford.
  • Kemp-Smith, N., (1908), “Review of Structure and Growth of the Mind”, The Philosophical Review, Vol. XVII, No. 3, pp. 332-339.
  • Kennedy, B., (1995), A Passion to Oppose: John Anderson, Philosopher. Melbourne: Melbourne University Press.
  • Levine, J., (1983), “Materialism and Qualia: the Explanatory Gap”, Pacific Philosophical Quarterly, 64: pp. 354-361.
  • Lubbock, J., Sir (1888), On the Senses, Instincts and Intelligence of Animals. London: Kegan Paul.
  • Mackie, J. L., (1962), “The Philosophy of John Anderson“, Australasian Journal of Philosophy, Volume, 40, No. 3, December, pp. 265-282.
  • Mackie, J. L., (1977), “Fifty Years of John Anderson“, Quadrant .77, July.
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Author Information

W. Martin Davies
Email: wmdavies@unimelb.edu.au
The University of Melbourne
Australia

Law and Economics

The law and economics movement applies economic theory and method to the practice of law. It asserts that the tools of economic reasoning offer the best possibility for justified and consistent legal practice. It is arguably one of the dominant theories of jurisprudence. The law and economics movement offers a general theory of law as well as conceptual tools for the clarification and improvement of its practices. The general theory is that law is best viewed as a social tool that promotes economic efficiency, that economic  analysis and efficiency as an ideal can guide legal practice.  It also considers how legislation should be used to improve market conditions  in return. Law and economics offers a framework with which to model legal outcomes, and common objectives with which to unify disparate areas of legal activity. The bringing together of legal theory and economic reasoning has also created new research agendas in the fields of behavioral economics: how rationality affects people’s behavior within legal scenarios; public choice theory and how collective behavior should have an effect on legislation; and game theory: understanding strategic action in a legal context.

Table of Contents

  1. Law as an Autonomous Practice
  2. Law as a Tool to Encourage Economic Efficiency
    1. Basic Concepts in Economic Reasoning
    2. How Law Can Encourage Economic Efficiency
    3. Can All Law be Explained as Economic in Nature?
  3. Economics and Normative Jurisprudence
  4. Later Developments
    1. Behavioral Economics and Law
    2. Game Theory
    3. Public Choice Theory
  5. References and Further Reading

1. Law as an Autonomous Practice

Most traditional theories of jurisprudence look to uncover the essential or definitive aspects of the institution of law. Two of the most influential are Legal Positivism and Dworkin’s Law as Integrity. While these two differ as to their definition of law and legal reasoning, they agree upon some basic central assumptions, determining the conclusions that two philosophical investigations with largely the same aims, can reach. Because of this it is important to acknowledge some of the assumptions that are held in common by these jurisprudential stances.

First, both theories agree upon the conceptual nature of jurisprudence. Both agree that it is important for a philosophical theory of law to define the core aspects of proper legal practice in order to fulfill the function of philosophical jurisprudence. In fact, much philosophical discussion of law assumes that such a characterization is the essential aim of jurisprudence. Second in order to arrive at a properly analyzed concept of law, both legal positivism and law as integrity are best constructed from specific techniques of analytic and linguistic philosophy. These techniques include the investigation and clarification of the way people commonly speak about law and careful parsing of social practice that separate the legal from the non-legal. The third common assumption is that the best way to understand legal practice is to understand the necessary and sufficient qualities that make some rule or statement into a law. Once such a set of necessary and sufficient conditions is identified (or approximated) it is thought that the essential aspects of particularly legal practices have been understood.

Instead of following this path, theorists within the law and economics movement have attacked the study of law from another angle. Rather than trying to identify unique conceptual aspects of law, what is advocated is an investigation of legal practices through the means of economic analysis. The conclusion offered is that legal practice is best understood through its function as a social tool promoting economic efficiency, in common with other social practices.

2. Law as a Tool to Encourage Economic Efficiency

So, instead of looking for the unique and defining features of law, the practitioner of law and economics looks at law as a social tool and tries to evaluate it functionally. What is emphasized is not its uniqueness as an institution, but its place within the general and common economic structure of society. The descriptive claim most often associated with law and economics is that legal practices are best characterized as tools for encouraging economically efficient social relations. To understand this claim it is important to examine some of the basic concepts used in models of economic reasoning.

a. Basic Concepts in Economic Reasoning

Essential to an understanding of the law and economics movement is a set of fundamental concepts. The most central assumption in economics is that human beings are rational maximizers of their individual satisfactions, and, in turn, respond to incentives. A rational maximizer of personal satisfaction adjusts means to ends in the most efficient way possible. It is important to realize that economics, as understood here, is not restricted to analysis of monetary issues; there are nonmonetary as well as monetary satisfactions. Every potential satisfaction is implicated in the calculus of economic satisfactions and therefore can be investigated according to economic or means-end rationality and the trade-off of costs and benefits. Normally what is aimed at through economic reasoning is the improvement of efficiency.

A more efficient allocation is one that increases the net value of resources. Efficiency in the allocation of resources is distinguished from equity, which is concerned with justice in the distribution of wealth. Because some people value specific goods higher or lower than others, economic efficiency can often be raised through voluntary transfers of goods. The most common example of a transfer promoting efficiency is that of a freely entered into contractual relationship. Because one party to the transaction values money more than the item owned, and the other values the item owned more than the asking price, the exchange produces a net gain in economic goods. Each person ends up better off than before. Some economists have gone so far as to argue that such a contractual exchange is morally optimal because it works within both Kantian and utilitarian theories of morality. They argue that it works with Kantian theories because a contract is thought to represent a good example of interaction between free and rational agents. It works with utilitarianism because the idea of wealth maximization intuitively translates into more utility.

Economists have a variety of terms to describe possible outcomes of economic exchanges. For instance Pareto optimality is defined as a point where resources are allocated such that no one is willing to trade further. Pareto optimality is the eventual endpoint of a series of Pareto superior moves. A Pareto superior change makes at least one person better of without making anyone worse off. Because no one is worse off after the trade there are no losers in Pareto improvements, although there may be many different Pareto optimal endpoints. Furthermore, economists have developed the concept of Kaldor-Hicks efficiency to compensate for obstacles to freely contracted exchanges. Kaldor-Hicks efficiency, or potential Pareto superiority, results when the overall economic gains outweigh the losses. In other words, the gains in economic efficiency are large enough that the winners could, if they had to, compensate the losers in the new allocation of goods and still remain better off.

b. How Law Can Encourage Economic Efficiency

The law and economics movement claims that law is best understood as a tool to promote economic efficiency. But how can the institution of law help encourage efficient transactions? One way is to help avoid situations that lead to market failure. One example of market failure is the existence of monopolies: a situation where one party is able to extract more profit from a good than a healthy market would allow. Law can be used as a tool to ensure that monopoly situations are hard to bring about and maintain. Another way legal systems can be used to ensure economically efficient transactions is through the enforcement of valid contracts. By ensuring compliance with contractual terms courts can give parties to a contract confidence that the other party will fulfill the agreed-to obligations. This becomes especially important in situations where the parties must complete their obligations at different times.

But some types of market failure are less obvious, and the legal means toward remedying them subtler. One problem in market transactions is that of externalities. An externality is a cost not reflected in the market price of a good. For instance, a factory may not have to internalize the costs it imposes upon the environment into the selling price of its goods. In this case the market price of the good will not reflect its real cost – and therefore some of the costs are imposed upon parties in an involuntary manner. Pigou argues in regard to this that legal means should be used to impose a marginal tax upon the offending party, to internalize any externalities. The economist Coase argued that this conclusion, while warranted in specific cases, was too global. Coase argued that in a market where transactions are costless and people do not act strategically, rights assignments are irrelevant because from any starting point the results will be economically efficient. In other words, the Coase Theorem states that if there are no transaction costs the assignment of entitlements will be irrelevant to the goal of allocative efficiency. In such a situation there will be no need for law to internalize costs because people will bargain to the most efficient possible allocation of goods. But outside of conceptually ideal markets there are always transaction costs such as information costs, opportunity costs and administrative costs. If transaction costs are somewhat high, then it does matter how property rights are assigned. Therefore the enforcement and allocation of legal entitlements will be an important factor in ensuring economically efficient exchanges. So law can be used to encourage economic efficiency. But is all law best described in economic terms?

c. Can All Law be Explained as Economic in Nature?

It may be no real surprise that law often is used to encourage efficient exchanges. But it seems a stretch to claim that law as an institution is best completely described in economic terms. It seems counterintuitive to view all law as based upon market principles. What the economic analysis of law manages, though , is to see such disparate areas as contract, tort and criminal law as all based upon economic aims, therefore giving law a more coherent basis than other theories can offer. Richard Posner argues that tort cases – those involving private harm – can be seen as contractual by looking for the hypothetical terms that the parties to an accident would have agreed to in advance in order to bring about the accident voluntarily. Also that criminals are deterred by the threat of punishment only if the likelihood of punishment multiplied by the quantity of punishment exceeds the gain offered by the  criminal act. Scholars have been quite effective in extending the tools of economic analysis into areas that seem to be anything but economic in nature. Even rules of evidence and legal ethics have proved amenable to economic analysis. However, it may be argued that an economic explanation of law fails on two counts. Firstly as a descriptive analysis it doesn’t do justice to everyday legal conceptions. Secondly  as an analytical analysis of the necessary conditions for the practice of law  it may not be able to account for the internal point of view which Hart thought so central to a proper understanding of law. More analytical approaches to economic explanation of law have considered this a fatal flaw in the project (see Coleman 2001). This may be mistakenly importing traditional philosophical aims into a drastically different project, but the truth is that it is often hard to tell what types of theoretical claims are being made within law and economics. If the claims are of exhaustive descriptive accuracy or of the necessary and sufficient conceptual foundations of law then it is more than likely a failure. But whether or not law and economics is an accurate or even conceptually necessary description of law as a social institution, and whether or not it suffices as a complete analysis of law, it could be argued that law should in any case adopt economic efficiency as the central aim guiding judicial decision-making.

3. Economics and Normative Jurisprudence

Though analytically incomplete, economic analysis models the actual results of legal institutions better than any other theory. This does not entail, however, that law ought to be consciously used for such an aim. Might not law be better used to consider issues related to  justice, duty and the like? Advocates of law and economics have argued against such a conclusion. The arguments usually are of two types. First, it is claimed that meanings of words such as justice or duty are so vague and in dispute that the use of such concepts for a basis of judicial decisions offers no guidance whatsoever. It is argued that while such concepts are unhelpfully complex, the tools of economic analysis and the concept of economic efficiency are sufficiently clear to provide the judge a solid and predictable basis of decision. Law is better able to decide according to efficiency rather than justice or duty due to limitations of institutional competence. This might be so if issues of justice are so complex as to involve information that courts are structurally unable to process. Second, it has been argued that because the paradigm case of justice is the freely entered in to contract, law is best seen as a tool to optimize contractual arrangements. If this is so, then where law can help is in situations where transaction costs are so high as to prohibit efficient contractual relationships. Here Posner argues that law can encourage economic efficiency by assigning property rights to those parties who would have secured them through market exchange if transaction costs were lower. In other words law should bring about allocations that mimic the results of a properly functioning market. In addition, advocates of economic analysis of law make a claim that other jurisprudential traditions seem to be unable to: that the analytic tools offered by law and economics has encouraged the further creation of other productive areas for analyzing law (see Posner 1998).

4. Later Developments

Another argument for the fertility of the economic analysis of law is that it has spawned a number of further tools that seem helpful in understanding legal institutions. Three of the most important of these are the results of behavioral economics, game theory and public choice theory.

a. Behavioral Economics and Law

Practitioners of behavioral law and economics examine human limits to means-end rationality. One of the outcomes of behavioral economics is the concept of bounded rationality. Bounded rationality means that information is not processed according to a model of perfect means-end rationality but, to the contrary, is distorted due to limits of our cognitive abilities. For instance the endowment effect is thought to be a behavioral limit that distorts the proper valuation of property, an important aspect of bargaining to efficient outcomes. According to the effect, the ownership of objects creates an irrational cognitive overvaluation of them. Another claim is that our cognitive abilities are distorted by the availability heuristic. According to this the availability of strong imagery may induce us to over or underestimate the actual probability of events associated with the image. For instance, graphic representations of highly improbable harms might be more influential on behavior and demand unjustified use of resources than statistical analysis showing another equally undesirable harm to be more common and easier to avoid. Jurisprudential practices could be significantly influenced by such results. For instance, judges might be as irrationally influenced by the availability heuristic as other human beings. Therefore victim impact statements might be important correctives to proceedings if a well-presented defendant’s presence in the court skews judge or jury’s decisions. An awareness of such a cognitive failure could help adjust legal reasoning and its conclusions accordingly. Finally, an awareness and exploitation of universal cognitive limits might help legislators to design more effective laws (see Sunstein 2000).

b. Game Theory

Game theory adds to economic modeling the phenomenon of strategic action. Strategic actions are those adopted because of the competitive nature of many social transactions. They are adopted due to how one individual expects another to act in response. For example, a person who wishes to buy an item cheap would act disinterested so as not to signal his or her actual desires to the seller. Addition of analytic tools dealing with strategic action greatly strengthens the economic analysis of law. For instance, the Coase theorem, to function properly, necessarily excludes strategic action; cooperation is just assumed. But it seems apparent that legal actions often are deeply implicated in and animated by strategic motives. Common sense tells us that full open cooperation is not always the best path to bringing about one’s desired results. In fact much of the bargaining invested in designing an effective contract seems to be done in the shadow of potential strategic action on the part of the contracting parties. Designing legal rules with an eye to the possibility of strategic action helps ensure that the rules will not create perverse outcomes. For instance, if a defendant’s privilege against self-incrimination could also encourage an inference of guilt from the silence the privilege would be all but useless. Therefore, courts have not only barred comment on the refusal to testify but also have required that juries, on defendant’s request, make no inference from such a choice (see Baird et al 1994). Further, the understanding that legislators might have adopted specific wording for a law based upon strategic motives may help direct the proper aims of judicial interpretation. This type of claim, though, is often better analyzed by the tools offered in public choice theory.

c. Public Choice Theory

Public choice theory is centered upon how the nature of the legislative process and collective decision making influence the nature of law. It is the application of economic models of decision-making and their results to the issues that traditionally occupy political science, for example Arrow’s Theorem. One claim made within public choice theory is that a proper understanding of collective decision processes will help judges understand their position within the system. If all collective decisions are unavoidably influenced by those who get to frame the questions debated and the order of voting – the agenda-setters – public legislation will need to be interpreted differently than if it were a more neutral recording of collective wishes. Such a theoretical result makes problematic a court’s reference to the intent of the legislature.

5. References and Further Readings

  • Ackerman, Bruce, The Economic Foundations of Property Law (Boston: Little, Brown & Co., 1975)
  • Baird, Douglas, Robert Gertner and Randal Picker, Game Theory and the Law (Cambridge: Harvard University Press, 1994)
  • Becker, Gary S., “Nobel Lecture: The Economic Way of Looking at Behavior,” 101 Journal of Political Economy 385 (1993)
  • Calabresi, Guido, The Costs of Accidents (1970)
  • Calabresi, Guido, and Douglas Melamed, “Property Rules, Liability Rules and Inalienability: One View of the Cathedral,” 85 Harvard Law Review 1089 (1972)
  • Calabresi, Guido, “Some Thoughts on Risk Distribution and the Law of Torts,” 70 Yale Law Journal 499 (1961)
  • Coase, Ronald, “The Problem of Social Cost,” 3 Journal of Law and Economics 1 (1960)
  • Coleman, Jules, “Efficiency, Auction and Exchange: Philosophic Aspects of the Economic Approach to Law,” 68 California Law Review 221 (1980)
  • Coleman, Jules, Market, Morals and the Law (Cambridge: Cambridge University Press, 1988)
  • Coleman, Jules, The Practice of Principle: In Defense of a Pragmatist Approach to Legal Theory (Oxford: Oxford University Press, 2001)
  • Cotter, Thomas F., “Legal Pragmatism and the Law and Economics Movement,” 84 Georgetown Law Journal 2071 (1996)
  • Farber, Daniel, and Philip Frickey, Law and Public Choice (Chicago: University of Chicago Press, 1991)
  • Harrison, Jeffrey L., Law and Economics (St. Paul: West Group, 1995)
  • Horwitz, Morton, “Law and Economics: Science or Politics?,” 8 Hofstra Law Review 905 (1981)
  • Katz, Avery Weiner, Foundations of the Economic Approach to Law (Oxford: Oxford University Press, 1998)
  • Landes, William and Richard Posner, The Economic Structure of Tort Law (Cambridge: Harvard University Press, 1987)
  • Leff, Arthur, “Economic Analysis of Law: Some Realism About Nominalism,” 60 Virginia Law Review 451 (1974)
  • Miceli, Thomas J., Economics of the Law: Torts, Contracts, Property, Litigation (1997)
  • Murphy, Jeffrie G. and Jules L. Coleman, Philosophy of Law (Boulder: Westview Press, 1990)
  • Polinsky, A. Mitchell, An Introduction to Law and Economics (Boston: Little, Brown & Company, 1989)
  • Posner, Richard A., Economic Analysis of Law (New York: Aspen, 5th ed., 1998)
  • Posner, Richard A., The Economics of Justice (Cambridge: Harvard University Press, 1983)
  • Posner, Richard A., Frontiers of Legal Theory (Cambridge: Harvard University Press, 2001)
  • Posner, Richard A., “Gary Becker’s Contributions to Law and Economics,” 22 Journal of Legal Studies 211 (1993)
  • “Symposium on Post-Chicago Law and Economics,” 65 Chicago-Kent Law Review 1 (1989)
  • Sunstein, Cass R., Behavioral Law and Economics (Cambridge: Cambridge University Press, 2000)

Author Information

Brian Edgar Butler
University of North Carolina at Asheville
U. S. A.