Sunday, July 27, 2014

Bostrom on Superintelligence (1): The Orthogonality Thesis

(Series Index)

This is the first post in my series on Nick Bostrom’s recent book, Superintelligence: Paths, Dangers, Strategies. In this entry, I take a look at Bostrom’s orthogonality thesis. As we shall see, this thesis is central to his claim that superintelligent AIs could pose profound existential risks to human beings. But what does the thesis mean and how plausible is it?

I actually looked at Bostrom’s defence of the orthogonality thesis before. I based that earlier discussion on an article he wrote a couple of years back. From what I can tell, there is little difference between the arguments presented in the book and the arguments presented in that article. Nevertheless, it will be useful for me to revisit those arguments at the outset of this series. This is, in part, to refresh my own memory and also, in part, to ease myself back into the intellectual debate about superintelligent AIs after having ignored it for some time. Who knows? I may even have something new to say.

I should add that, since the publication of Bostrom’s original defence of the orthogonality thesis, his colleague Stuart Armstrong has produced a longer and more technical defence of it in the journal Analysis and Metaphysics. Unfortunately, I have not read that defence. Thus, I am conscious of the fact that what I deal with below may be the “second-best” defence of the orthogonality thesis. This is something readers should keep in mind.

1. What is the orthogonality thesis and why does it matter?
One thing that proponents of AI risk often warn us against is our tendency to anthropomorphise intelligent machines. Just because we humans think in a particular way, and have certain beliefs and desires, does not mean that an intelligent machine, particularly a superintelligent machine, will do the same. (Except for the fact we will be the ones programming the decision-making routines and motivations of the machine…more on this, and whether it can help to address the problem of AI risk, in future entries). We need to realise that the space of possible minds is vast, and that the minds of every human being that ever lived only occupy a small portion of that space. Superintelligences could take up residence in far more alien, and far more disturbing, regions.

The orthogonality thesis is a stark reminder of this point. We like to think that “intelligent” agents will tend to share a certain set of beliefs and motivations, and that with that intelligence will come wisdom and benevolence. This, after all, is our view of “intelligent” humans. But if we understand intelligence as the ability to engage in sophisticated means-end reasoning, then really there is no guarantee of this. Almost any degree of intelligence, so understood, is compatible with almost any set of goals or motivations. This is the orthogonality thesis. As Bostrom puts it:

Orthogonality Thesis: Intelligence and final goals are orthogonal: more or less any level of intelligence could in principle be combined with more or less any final goal.

We need to unpack this definition in a little more detail.

We’ll start with the concept of “intelligence”. As noted, Bostrom does not mean to invoke any normatively thick or value-laden form of rationality; he simply means to invoke efficiency and skill at means-end reasoning. Philosophers and economists have long debated these definitional issues. Philosophers sometimes think that judgments of intelligence or rationality encompass the assessment of motivations. Thus, for a philosopher a person who greatly desires to count all the blades of grass in the world would be “irrational” or “mentally deficient” in some important respect. Economists generally have a thinner sense of what intelligence or rationality requires. They do not assess motivations. The blade-of-grass-counter is just as rational as anyone else. All that matters is whether they maintain logical hierarchies of motivations and act in accordance with those hierarchies. Bostrom’s view of intelligence is closer to the economists' sense of rationality, except that it also encompasses great skill in getting what you want. This skill must, one presumes, include an ability to acquire true (or reasonably true) beliefs about the structure of the world around you. This is so that you can manipulate that world to reliably get what you want.

The second concept we need to unpack is that of a “final goal”. As far as I can tell, Bostrom never defines this in his book, but the idea is relatively straightforward. It is that an agent can have certain goals which are their raison d’etre, that they fundamentally and necessarily aim at achieving, and others that are merely instrumental to the pursuit of those final goals. In other words, there are certain goals that are such that everything else the agent does is tailored toward the achievement of that goal. For Bostrom, the supposition seems to be that a superintelligent AI could be programmed so that it has a set of final goals are dynamically stable and overwhelming (note: the use of “could be” is significant). This is important because Bostrom appeals to the possibility of overwhelming and dynamically stable final goals when responding to possible criticisms of the orthogonality thesis.

The third thing we need to unpack is the “more or less” qualifier. Bostrom acknowledges that certain goals may not be consistent with certain levels of intelligence. For example, complex goals might require a reasonably complex cognitive architecture. Similarly, there may be dynamical constraints on the kinds of motivations that a highly intelligent system could have. Perhaps the system is programmed with the final goal of making itself stupider. In that case, its final goal is not consistent with a high level of intelligence. These qualifications should not, however, detract from the larger point: that pretty much any level of intelligence is consistent with pretty much any final goal.

So that’s the orthogonality thesis in a nutshell. The thesis is important for the likes of Bostrom because, when understood properly, it heightens our appreciation of AI risk. If a superintelligent machine could have pretty much any final goal, then it could do things that are deeply antithetical to our own interests. That could lead to existential catastrophe. (We'll discuss the argument for this conclusion in a later entry)

2. Is the Orthogonality Thesis Plausible?
At first glance, the orthogonality thesis seems pretty plausible. For example, the idea of a superintelligent machine whose final goal is to maximise the number of paperclips in the world (the so-called paperclip maximiser) seems to be logically consistent. We can imagine — can’t we? — a machine with that goal and with an exceptional ability to utilise the world’s resources in pursuit of that goal. Nevertheless, there is at least one major philosophical objection to it.

We can call it the motivating belief objection. It works something like this:

Motivating Belief Objection: There are certain kinds of true belief about the world that are necessarily motivating, i.e. as soon as an agent believes a particular fact about the world they will be motivated to act in a certain way (and not motivated to act in other ways). If we assume that the number of true beliefs goes up with intelligence, it would then follow that there are certain goals that a superintelligent being must have and certain others that it cannot have.

A particularly powerful version of the motivating belief objection would combine it with a form of moral realism. Moral realism is the view that there are moral facts “out there” in the world waiting to be discovered. A sufficiently intelligent being would presumably acquire more true beliefs about those moral facts. If those facts are among the kind that are motivationally salient — as several moral theorists are inclined to believe — then it would follow that a sufficiently intelligent being would act in a moral way. This could, in turn, undercut claims about a superintelligence posing an existential threat to human beings (though that depends, of course, on what the moral truth really is).

The motivating belief objection is itself vulnerable to many objections. For one thing, it goes against a classic philosophical theory of human motivation: the Humean theory. This comes from the philosopher David Hume, who argued that beliefs are motivationally inert. If the Humean theory is true, the motivating belief objection fails. Of course, the Humean theory may be false and so Bostrom wisely avoids it in his defence of the orthogonality thesis. Instead, he makes three points. First, he claims that orthogonality would still hold if final goals are overwhelming, i.e. if they trump the motivational effect of motivating beliefs. Second, he argues that intelligence (as he defines it) may not entail the acquisition of such motivational beliefs. This is an interesting point. Earlier, I assumed that the better an agent is at means-end reasoning, the more likely it is that its beliefs are going to be true. But maybe this isn’t necessarily the case. After all, what matters for Bostrom’s definition of intelligence is whether the agent is getting what it wants, and it’s possible that an agent doesn’t need true beliefs about the world in order to get what it wants. A useful analogy here might be with Plantinga’s evolutionary argument against naturalism. Evolution by natural selection is a means-end process par excellence: the “end” is survival of the genes, anything that facilitates this is the “means”. Plantinga argues that there is nothing about this process that entails the evolution of cognitive mechanisms that track true beliefs about the world. It could be that certain false beliefs increase the probability of survival. Something similar could be true in the case of a superintelligent machine. The third point Bostrom makes is that a superintelligent machine could be created with no functional analogues of what we call “beliefs” and “desires”. This would also undercut the motivating belief objection.

What do we make of these three responses? They are certainly intriguing. My feeling is that the staunch moral realist will reject the first one. He or she will argue that moral beliefs are most likely to be motivationally overwhelming, so any agent that acquired true moral beliefs would be motivated to act in accordance with them (regardless of their alleged “final goals”). The second response is more interesting. Plantinga’s evolutionary objection to naturalism is, of course, hotly contested. Many argue that there are good reasons to think that evolution would create truth-tracking cognitive architectures. Could something similar be argued in the case of superintelligent AIs? Perhaps. The case seems particularly strong given that humans would be guiding the initial development of AIs and would, presumably, ensure that they were inclined to acquire true beliefs about the world. But remember Bostrom’s point isn’t that superintelligent AIs would never acquire true beliefs. His point is merely that high levels of intelligence may not entail the acquisition of true beliefs in the domains we might like. This is a harder claim to defeat. As for the third response, I have nothing to say. I have a hard time imagining an AI with no functional analogues of a belief or desire (especially since what counts as a functional analogue of those things is pretty fuzzy), but I guess it is possible.

One other point I would make is that — although I may be inclined to believe a certain version of the moral motivating belief objection — I am also perfectly willing to accept that the truth value of that objection is uncertain. There are many decent philosophical objections to motivational internalism and moral realism. Given this uncertainty, and given the potential risks involved with the creation of superintelligent AIs, we should probably proceed for the time being “as if” the orthogonality thesis is true.

3. Conclusion
That brings us to the end of the discussion of the orthogonality thesis. To recap, the thesis holds that intelligence and final goals are orthogonal to one another: pretty much any level of intelligence is consistent with pretty much any final goal. This gives rise to the possibility of superintelligent machines with final goals that are deeply antithetical to our own. There are some philosophical objections to this thesis, but even if they are true, their truth values are sufficiently uncertain that we should not discount the orthogonality thesis completely. Indeed, given the potential risks at stake, we should probably proceed “as if” it is true.

In the next post, we will look at the instrumental convergence thesis. This follows on from the orthogonality thesis by arguing that even if a superintelligence could have pretty much any final goal, it is still likely to converge on certain instrumentally useful sub-goals. These sub-goals could, in turn, be particularly threatening to human beings.

Bostrom on Superintelligence (0): Series Index

Nick Bostrom’s magnum opus on the topic of AI risk — Superintelligence: Paths, Dangers and Strategies — was recently published by Oxford University Press. The book is a comprehensive overview and analysis of the risks arising from an intelligence explosion. As you may know, some people are concerned that the creation of superintelligent machines will precipitate an existential catastrophe for the human race. For better or worse, the debate about this issue has largely taken place online, via various internet fora. Now, while I’m certainly not one to disparage such fora — this blog, after all, would count as one — I have to admit that Bostrom’s book is something of a relief. At last, we have a detailed, reasonably sober, academic analysis of the issue, one that is clearly the product of many years of research, reflection and discussion.

Having now read through significant portions of the book (not all of it), I can certainly recommend it to those who are interested in the topic. It’s very readable. Anyone with a passing familiarity with artificial intelligence, probability theory and philosophical analysis will be able to get through it. And most of the more technical portions of the analysis are helpfully separated out from the main text in a series of “boxes”.

I'm finding the book sufficiently useful that I am going to try to blog my way through a portion of it. I won’t have the time or energy to do all of it, unfortunately. So instead I’m going to focus on the bits that I find most interesting. These are the bits dealing with the claim that the creation of a superintelligent AI could spell doom for human beings, and with some of the alleged strategies for containing that risk. In fact, I am not even going to be able to do all of those bits of the book, but I’ll do enough to give an overview of the kind thinking and argumentation Bostrom puts on display.

I don’t intend this series as a detailed critical analysis of Bostrom’s work. Instead, I’m using this series to get to grips with what Bostrom has to say. That doesn’t mean I’ll shy away from critical commentary — there will be plenty of that at times — but it does mean that criticising the arguments isn’t my primary focus; understanding them is.

Anyway, this post will serve as an index to future entries in the series. I'll add to it as I go along:

Friday, July 25, 2014

Does the Irish constitution imply the existence of unenumerated rights? (Part Three)

(Part One, Part Two)

This is the third and final part of my short series on unenumerated rights and the Irish Constitution. The series is examining a classic debate about the interpretation of Article 40.3 of the Irish Constitution in light of some important concepts from linguistic philosophy, specifically the concepts of implicature and enrichment. In part one, I explained what those concepts were. In part two, I looked at an argument from the philosopher Gerard Casey which claimed that Article 40.3 does not imply the existence of unenumerated rights.

In this part I’ll look at a response to Casey’s argument. This response builds upon the concepts and arguments discussed in the previous entries. Even though I do revisit some of those concepts and arguments below, I would still recommend reading the previous entries before reading this.

1. Casey’s Reading and the Substantive Response
To understand the response to Casey’s argument we need to briefly recap some of the key elements of his argument. As you recall, Article 40.3.1 of the Irish Constitution says that the state shall “defend and vindicate the personal rights of the citizen”. Article 40.3.2 then follows up by saying:

Article 40.3.2: The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.

The argument for the existence of unenumerated rights holds that because this section refers “in particular” to a group of rights (life, person, good name and property) not elsewhere discussed in Article 40, it must be a non-exhaustive list of personal rights and therefore citizens must have other personal rights that the state must vindicate and protect.

Casey argues that this is the wrong way to read Article 40.3.2. He maintains that the article does not refer to a bunch of personal rights; rather, it only refers to one set of rights: property rights (which are mentioned elsewhere in Article 40). This is because he views the following as the correct way in which to parse what is being said in Article 40.3.2:

Casey's Reading: The State shall, in particular…vindicate [the life, person, and good name of every citizen] and the [property rights] of every citizen.

We also saw the last day that Casey seems to have pretty good support for his reading from the Irish language version of the Irish Constitution.

Now, you might be inclined to view Casey’s argument as nothing more than a bit of linguistic trickery. His claim — that Article 40.3.2 only refers to property rights — might be correct as a matter of pure semantics, but when you think about in more detail, you might be persuaded that Article 40.3.2 must — as a matter of legal necessity — refer to other rights.

How might you be persuaded of this? Well, take the first bracketed-phrase from Casey’s reading. Then ask yourself: how could the state vindicate and protect those things except by creating a set of legal rights? How could someone’s life, for instance, be protected by the state, through that state’s constitution, without there being some sort of legally recognised and enforceable right to life? How could someone’s person be protected without some sort of set of personal rights (including the right to bodily integrity, which featured in the case Ryan v. Attorney General) be recognised and enforceable? And so on.

This is the substantive response to Casey’s argument. It holds that even if Article 40.3.2 doesn’t literally and explicitly refer to anything other than property rights it does as a matter of legal substance. This response isn’t perfect. After all, it is technically possible for a state to protect someone’s life and good name without creating a legal right to those things. Nevertheless, within the world of constitutional law, there is a pretty tight connection between the protection of those things and the creation of a legal right. This, incidentally, means that if the substantive response is to succeed it will succeed as a matter of pragmatics, not semantics — see part one for the distinction. It is an argument about what makes sense in a particular pragmatic context; it is not an argument about what sort of meaning is semantically encoded into the text.

2. Casey’s Reply and Concluding Thoughts
Is the substantive response any good? Casey recognises and replies to it in his article. His reply is interesting, though I’m not sure what to make of it. First of all, Casey concedes the main thrust of the substantive argument. He doesn’t kick up a fuss about the conceptual connection between the existence of rights and the state’s proclaimed duty to protect and vindicate things like the life, person and good name of the citizen. The only thing he does say is that if we accept this we must accept the further linguistic quirk that article 40.3.1 and 40.3.2 both refer to “personal rights”. The repetition is not fatal to the case for unenumerated rights, but it is odd.

Casey’s main objection to the substantive response is that it proves too much. One of the keys to Kenny J’s original argument for unenumerated rights was the claim that the right to life and the right to a good name were not specified elsewhere in Article 40.3, but if the substantive response is correct they are specified in Article 40.3. They are specified in Article 40.3.2. It’s true that they are not specified anywhere else, but as Casey points out, what difference should that make?

There is still the problem that Article 40.3.2 uses the phrase “in particular”, which suggests (pragmatically if not semantically) that the list of rights in 40.3.2 is non-exhaustive. But Casey thinks you can deal with this by supposing that the phrase “in particular” attaches to the words “vindicate” and “protect” not to the list of rights. As he himself puts it:

…if the substantive response is correct, these rights are specified in Article 40; they are specified precisely, if implicitly, in 40.3.2. They may not be specified elsewhere in Article 40 but why should that be problematic, just as the mention of personal rights in both sub-s. 1 and sub-s. 2, on this reading, would have to be unproblematic. In this context the phrase ‘in particular’ could attach to the verbs ‘protect’ and ‘vindicate’ and would commit the State to protect the (implied) rights in sub-s. 2o from unjust attack and to vindicate them in the case of injustice done, as distinct, perhaps, from other rights in Article 40, such as those mentioned in 40.6.

I find this a little unsatisfactory. Casey seems to be tying himself into knots in order to get us to accept his preferred reading. If he’s right, then we’d have to accept two linguistic oddities: (i) the repetition of “personal rights” in 40.3.1 and 40.3.2; and (ii) the attachment of “in particular” to “vindicate” and “protect” rather to the list of rights (odd given that article 40.3.1 already refers to the state's duty to "defend" and "vindicate" personal rights). If we are going by which interpretation commits us to the fewest anomalies, I would suggest that the substantive response is more appealing in that it only commits us to the first.

I would also add, as a concluding thought, that the substantive response definitely seems more plausible when we think about the argument from a pragmatic rather than a semantic viewpoint. The problem with Casey’s arguments is that they tend to elide the distinction between the two, starting out by making purely semantic points and staying with those once the argument has drifted into pragmatic territory (which it has by the time we get to the substantive response). I am inclined to agree with him as a matter of semantics: the Irish constitution does not semantically imply the existence of unenumerated rights. Indeed, the cancellability argument that I outlined in part two would seem to be nearly decisive on that score. But the question is really whether the constitution implies their existence as a matter of pragmatics (i.e. as a function of the legal and historical nature of the relevant provisions). To be fair to him, Casey may acknowledge this point when, at the end of his article, he accepts that certain personal rights may require constitutional recognition as a result of the “Christian and democratic” nature of the constitution. To evaluate that argument, however — and the pragmatic argument for unenumerated rights more generally — would require a far longer series of posts. So I’ll have to leave it there for now.

Tuesday, July 22, 2014

The Philosophy of Mind-Uploading (Series Index)

Looking back over my old posts, I suddenly realise that I've written quite on number on the philosophy of mind-uploading. Mind-uploading is a general term for the phenomenon whereby our minds are transferred out of our brains and into some other substrate. Some people claim that this may be possible. It is an intriguing claim and it raises a number of philosophical issues, particularly relating to the nature of personal identity.

Anyway, I thought it might be useful to provide a convenient index to everything I've written on the topic. I may add to this series in the future.

Does the Irish constitution imply the existence of unenumerated rights? (Part Two)

(Part One)

This the second part of my short series on unenumerated rights in the Irish constitution. The series is looking a classic debate about the interpretation of Article 40.3 of the Irish constitution. It does so in light of some important concepts from linguistic philosophy, particularly the concepts of implicature and enrichment. I gave an overview of those concepts in part one.

In this part, I look at Mr Justice Kenny’s argument in favour of the existence of unenumerated rights. I also look at the philosopher Gerard Casey’s reconstruction and rebuttal of that argument. In doing so, I will be working primarily off Casey’s article “The ‘Logically Faultless’ Argument for Unenumerated Rights in the Constitution”.

If you haven’t read part one, I would recommend doing so. In what follows, I will be relying on some of the concepts and tests that are explained in that post.

1. Mr Justice Kenny’s Argument from Ryan v. Attorney General
Ryan v. Attorney General is a famous Irish constitutional law case. It involved a woman objecting to the fluoridation of the public water supply on the grounds that it violated her right to bodily integrity. The problem was that no such right is mentioned in the Irish constitution. In his judgment, however, Mr Justice Kenny found that the constitution — specifically Articles 40.3.1 and 40.3.2 — implied the existence of unenumerated rights, and that among those unenumerated rights was the right to bodily integrity. He did not, however, find in favour of Ryan, holding instead that fluoridation did not violate that right.

The right to bodily integrity is not what interests me. What interests me is the argument Kenny J. made for the existence of unenumerated rights. To understand that argument, we first need to review the wording of the relevant articles:

Article 40.3.1: The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen
Article 40.3.2: The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.

I’ve emphasised some of the key phrases since they are crucial to Kenny J’s argument. That argument — such as it is — is contained in the following extract from his judgment:

The words ‘in particular’ show that sub-s. 2 is a detailed statement of something which is already contained in the general guarantee. But sub-s. 2 refers to rights in connection with life and good name and there are no rights in connection with these two matters specified in Article 40. It follows, I think, that the general guarantee in sub-s. 1 must extend to rights not specified in Article 40.3.

So Kenny J thinks that Article 40.3.1 contains a general guarantee that the state will defend and vindicate the personal rights of the citizen. He then thinks that Article 40.3.2 provides a non-exhaustive list of some of those personal rights, and since none of those rights appear elsewhere in Article 40 (you’ll just have to take my word for this - unless you want to read the full text for yourself), it follows that the general guarantee covers unenumerated rights too.

The argument is a little odd, but in his analysis, Casey offers the following semi-formal reconstruction:

  • (1) Article 40.3.1 provides a general guarantee of the personal rights of the citizen.
  • (2) Article 40.3.2 by virtue of the words “in particular” provides a detailed specification of that general guarantee.
  • (3) But Article 40.3.2 refers specifically to rights in connection with life and good name and there are no such rights specified in Article 40.
  • (4) Therefore, the general guarantee in 40.3.1 must extend to rights not specified elsewhere in Article 40. (i.e. there are unenumerated rights)

The logical validity of this argument is open to doubt, but let’s grant that it is valid. It’s important to realise how premises (2) and (3) are crucial to the argument Kenny J is making. Initially, I thought it would be possible to make a case for unenumerated rights based solely on the wording of Articles 40.3.1 and 40.3.2. The idea being that in using the phrase “in particular”, Article 40.3.2 implies that the list being given is non-exhaustive and therefore that there must be other rights not specified in the article. But this is flawed, as we shall see in a moment. For Kenny J, it was the fact that Article 40.3.2 gave a non-exhaustive list combined with the fact that the rights listed there are not covered elsewhere in Article 40 that made the case for the existence of unenumerated rights.

Anyway, how plausible is this argument? In the remainder of this post, I will look at Casey’s rebuttal of the main premises.

2. Casey’s Critique of Premises 1 and 2
Casey doesn’t have much to say about premise (1), except that referring to the guarantee in Article 40.3.1 as “general” may prejudge the issue. Instead, we should simply say that it acknowledges that the state shall vindicate and defend a class of personal rights.

Premise (2) is more problematic. The claim made by Kenny J and his defenders is that the use of the phrase “in particular” implies the existence of other personal rights, i.e. it implies that the list being given is non-exhaustive. But does it really do so? Casey argues that it doesn’t. He bases his argument on the idea of conversational implication, but I find that argument unhelpful because it elides the distinction between semantics and pragmatics. So I’m going to substitute my own argument. It agrees with Casey’s basic conclusion, but hopefully provides a more compelling reason for doing so.

The argument draws on Marmor’s cancellability and negation tests, both of which were discussed in part one. The tests help us to determine whether an implication arises as a matter of semantics or as a matter of pragmatics. The idea is that if it is not possible to cancel an implication, then the implication is semantically-encoded into the text. If, on the other hand, it is possible to cancel an implication, then it arises as a matter of pragmatics (i.e. as a function of the specific context in which the text was produced).

We need to apply these tests to the text of article 40.3.2. To do this, we must first identify the relevant portion of 40.3.2 and specify the alleged implication. As follows:

“The State shall in particular… vindicate the life, person, good name and property rights of every citizen” → there are other unenumerated personal rights that the state must vindicate.

Now we must apply the negation test. Take the negation of the alleged implication:

There are no other personal rights that the state must vindicate.

And then pair that negation with the original wording. What do we then have? Well, we have the statement that the state will, in particular, vindicate a certain set of rights, and the claim that there are no other rights beyond that set. The question is whether this pair of statements involves a contradiction. The answer is that it doesn’t. It just involves an awkward turn of phrase. This means the alleged implication is cancellable in this instance, which in turn suggests that if Article 40.3.2 implies that the list of rights there specified is non-exhaustive, it does so pragmatically, not semantically. In other words, the existence of unenumerated rights is rendered possible but not necessary by the use of “in particular”.

An analogy will probably be helpful, and Casey supplies a good one. Consider the statement:

"John is an attractive fellow. He has, in particular, a friendly disposition and a generous spirit."

We might suppose that this form of words implies that John has other attractive qualities. But that implication would not pass the negation test. It is logically consistent to state that he has those qualities in particular, and that he has no other attractive qualities. It’s an awkward way of putting it, to be sure, but it’s not inconsistent. The same could be true in the case of Article 40.3.2.

3. Casey’s Critique of Premise (3)
The rebuttal of premise (2) makes a neat linguistic point, but it is hardly fatal. There could be other linguistic factors which decisively make the case for the existence of unenumerated rights. That’s exactly what premise (3) tries to do. By highlighting the discrepancy between the rights listed in 40.3.2 and those mentioned elsewhere, it tries to add further linguistic reasons for thinking that the list provided in 40.3.2 is non-exhaustive.

The problem, as Casey points out, is that premise (3) is false. Kenny J is convinced that 40.3.2 specifically mentions the right to life and good name, but it actually doesn’t. It only mentions property rights. To see the problem go back to the wording of 40.3.2:

Article 40.3.2: The State shall in particular… vindicate the life, person, good name and property rights of every citizen.

Kenny J seems to parse that in the following manner:

Kenny J's Reading: The State shall, in particular…vindicate the [right to life], [right to person], [right to a good name], and [property rights] of every citizen.

But that’s a very odd way of reading it, particularly since it seems to force us to accept the notion of a “right to person” (though maybe this could be read as simply repeating the general guarantee to respect the “personal” rights of the citizen). The correct reading, according to Casey, is as follows:

Casey's Reading: The State shall, in particular…vindicate [the life, person, and good name of every citizen] and the [property rights] of every citizen.

This reading makes clear that only property rights are referenced in Article 40.3.2. What’s more, property rights, unlike the right to life and good name, are explicitly covered by another subsection of Article 40 (and again later in Article 44). This defeats premise (3) of Kenny J’s argument.

Actually, there is an even more decisive reason for endorsing Casey’s reading. The Irish constitution is written in two languages: Irish and English. Whenever there is an inconsistency between the two, the Irish language version prevails. The Irish language version of 40.3.2 reads like this:

Article 40.3.2: Déanfaidh an Stát, go sonrach, lena dhlíthe, beatha agus pearsa agus dea-chlú agus maoinchearta an uile shaoránaigh a chosaint ar ionsaí éagórach chomh fada lena chumas, agus iad a shuíomh i gcás éagóra.

This does translate as being roughly equivalent to the English language version, but the way in which the bit after “in particular” is drafted in the Irish version is slightly clearer. I have highlighted the relevant portion of text. It reads literally as “life (beatha) and person (pearsa) and good name (dea-chlu) and property rights (maoinchearta)”. The use of “and” suggests that these are all distinct things, and the use of the composite “maoinchearta” for property rights is important. “Cearta” is the Irish for “right”. If it occurred at the end of the phrase as a separate word, we might have reason to prefer Kenny J’s reading. The fact that it is explicitly conjoined to the word for property, suggests that Casey’s is the correct reading.

For that reason, Casey holds that Kenny J’s argument for the existence of unenumerated rights is flawed. There are, however, some possible responses to Casey’s rebuttal. I’ll discuss those in part three.

Monday, July 21, 2014

Does the Irish constitution imply the existence of unenumerated rights? (Part One)

I haven’t done a post on legal theory in a while. This post is an attempt to rectify that. It’s going to look at the philosophy of legal interpretation. It does so by honing in on a very specific issue: the implied existence (or non-existence, as the case may be) of unenumerated rights in the Irish constitutional text. The issue arises because of the wording of Article 40.3 of the Irish constitution. The offending provisions are (in their English language versions, and with emphasis added):

Article 40.3.1: The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
Article 40.3.2: The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.

In an influential decision back in the 1960s, an Irish High Court judge (Kenny J) held that these two provisions, when read together, implied that the Irish constitution recognised and protected a class of unenumerated personal rights. His argument for this conclusion was described by John Kelly — a famous Irish constitutional scholar — as “logically faultless”. The courts then took the idea and ran with it, identifying a whole of raft of unenumerated rights in subsequent case law.

But was the argument really logically faultless? In a short piece, the philosopher Gerard Casey claimed that it was not. Far from it, in fact. He argued that if you read the two provisions correctly, Kenny J’s case for the existence of unenumerated rights is borderline absurd.

Over the next two posts, I want to take a look at this debate, focusing specifically on Kenny J’s original argument and Casey’s rebuttal. Along the way, I want to highlight some important concepts from linguistic philosophy and show how these concepts can help us to understand the arguments on display. I’ll start, today, with a basic primer on the concepts of implicature and enrichment. I’ll look at the actual arguments about the interpretation of Article 40.3 in subsequent posts.

1. Implicature and the Cancellability Test
To start, we must have some general sense of the distinction between semantics and pragmatics. This is a standard distinction in linguistic theory, but it is not widely-known. Semantics refers to the meaning of the words used in a particular utterance. That is to say: the meaning that is encoded into the linguistic signs and symbols used by the speaker. The semantic meaning of an utterance is general and not context dependent. Pragmatics, on the other hand, refers to the token-specific meaning of an utterance. That is to say: the meaning that is communicated by a given speaker, in a particular time and place. It is specific and highly context-dependent.

It is important to be aware of these distinctions because the debate about the interpretation of Article 40.3 sometimes slides back and forth between both domains.

Anyway, with that general distinction in mind, we can turn to the distinction between implicature and enrichment. Both concepts cover the ways in which the communicated meaning of an utterance can extend beyond the words used in the utterance, but they do so in different ways. We’ll start by looking at implicature.

Implicature covers the phenomenon whereby the words used in an utterance can imply something beyond what is said. For example, if I say “I am going to wash my car”, I imply that I own or have use of a car. Or, if I am a member of a criminal gang, and I say to a local business owner “It’s a nice place you got here, it would be a shame if something happened to it”, I imply that if the owner doesn’t pay us some protection money, we will destroy his place of business. Both cases involve implicature, but they are rather different in nature. In the first case, the implied ownership or use of the car is semantic (i.e. it is implied by the actual words used). In the second case, the implied threat is pragmatic (i.e. it is a feature of the particular context in which the words are used).

The legal philosopher Andrei Marmor has helpfully identified three classes of implicature, each of which can feature in different legal contexts

Conversational Implicature: This is probably the most widely discussed form of implicature. It was first identified by the linguistic philosopher Grice. It arises frequently in everyday conversations and its occurrence is linked to certain norms of everyday conversation. This kind of implicature is highly context-sensitive and is firmly within the pragmatic branch of analysis. If you’re interested, I wrote about the legal implications of this before.
Semantically-encoded implicature: This is a distinct form of implicature, one which should not to be confused with the conversational form. As Marmor puts it, it arises when “the speaker is committed to a certain content simply by virtue of the words she has uttered…regardless of the specific context of conversation”. This is not context-sensitive and belongs more properly within the semantic branch of analysis.
Utterance Presupposition: This is where an utterance presupposes something not explicitly mentioned or stated in the utterance itself. In other words, it arises when an utterance would not make sense without us presupposing some unmentioned entity, activity or state of affairs. Utterance presuppositions occupy a somewhat uncertain territory.

The reason for the uncertain position of utterance presuppositions has to do with the test that is used to determine whether implicature is semantically-encoded into the words of an utterance. This is the cancellability test. According to this test, an implicature is semantically-encoded if it is not possible for the speaker, using those words, to cancel the implied meaning. Conversely, if it is possible to cancel the meaning, then the implicature is conversational and contextual in nature. The problem with utterance presuppositions is that they are sometimes uncancellable, sometimes cancellable. Thus, depending on the form of words used, they can be either context-dependent or non-context dependent.

Marmor gives us some examples of this. Consider the following two utterances and their presuppositions:

  • (A) “It was Jane who broke the vase” → presupposes that someone broke the vase 

  • (B) “The Republicans and Senator Joe voted for the bill” → presupposes Joe is not a Republican

Marmor’s argument is that the presupposition in A is not cancellable, whereas the presupposition in B is. This argument is supported by a new test, the negation test. This is an add-on to the cancellability test. It works like this: if we add propositions A and B together with the negation of their presuppositions, do we get an outright contradiction, or do we just get an awkward but not inconsistent turn of phrase?

If we take “Jane broke the vase” and add it to “no one broke the vase”, we get a contradiction. This suggests that the presupposition in this instance is not cancellable and is hence semantically-encoded into the utterance. Contrast that with proposition B. If we add that together with “Joe is a Republican”, we don’t quite get a contradiction. We just get an awkward form of expression. This suggests that the presupposition is cancellable in this instance, though the context may dictate otherwise. So an utterance presupposition could be highly context-specific, but might also not be.

This is all pretty technical stuff, but if you can wrap your head around it, it really does help to make sense of some of the arguments about the meaning of Article 40.3. As we shall see, one of the crucial issues there is whether Article 40.3 implies the existence of unenumerated rights in a semantic or pragmatic way. And one way in which to test for this is to apply the cancellability test to the wording of the article.

2. Enrichment and the class of rights
Okay, so that’s everything we need to know about implicature. What about enrichment? This is less important for present purposes, so we can go over it in less detail. Enrichment is the phenomenon whereby the meaning of particular phrases is enriched by the pragmatic context in which they are uttered. It arises because in most everyday speech contexts we compress what we want to say into fewer words than are strictly needed. Most commonly, enrichment serves to restrict the class of objects or actions to which a given utterance is intended to refer.

Here’s an example. Suppose you and I are roommates moving into a new apartment together. We are busy installing our furniture and putting up pictures and ornaments. At one point, clutching a painting beneath my arm and eyeing an appropriate spot on the wall, I tell you: “I am going to use the hammer”. Presumably, what I mean in this context is that “I am going to use the hammer, to put a nail in the wall upon which I can hang this picture”. Note, however, that the original wording was, strictly speaking, vague as to the precise way in which the hammer was going to be used. A hammer could, in fact, be used in many ways (e.g. as a paper weight or as a weapon). But the restrictive meaning of “to use” was implied by the context in which the utterance was made and is part of the enriched meaning of what was said. The same enriched restriction of meaning frequently arises with noun classes.

Enrichment can have an important role to play in debates about the meaning of a legal text. Indeed, the vagueness of the verb “to use” has occasionally caused headaches for courts. Suppose there is a statute saying that if you “use” a firearm during the commission of a drugs offence, you add five years to the jail sentence. Now, imagine that you and I are involved in a drug deal. I am selling you cocaine. I do so in my office, where there is a firearm resting on a stack of papers on my desk throughout the sale. Have I used the firearm during the drugs offence? That depends on whether the verb “to use” has a restricted enriched meaning or not. (This is based on a real case, but I can’t remember the name or the outcome right now).

Enrichment also has a role to play in the interpretation of unenumerated rights provisions. Assume, for sake of argument, that the Irish constitution does imply the recognition and protection of a class of unenumerated personal rights. Is that an unrestricted or restricted class of rights? Some irish judges have suggested that the class is restricted by the “Christian and democratic” nature of the Irish state, suggesting a degree of enriched meaning. This may nor may not be plausible. Similar arguments have been made about the class of unenumerated rights recognised by the US constitution. Randy Barnett — a prominent libertarian legal scholar — has argued that the unenumerated rights clause in the 9th Amendment is restricted to “liberty rights”. He does on the grounds that, in the pragmatic context in which the US constitution was drafted and ratified, that restricted meaning would have understood. It would be interesting to see whether analogous arguments could be made in the Irish context about the "Christian and democratic" nature of the rights. I won’t, however, pursue the matter any further in this series of posts.

So that’s it for part one. Hopefully this conceptual overview has been somewhat illuminating. We’ll look at the actual arguments about Article 40.3 in part two.

Friday, July 18, 2014

Philosophy and the Basic Income (Series Index)

I've written a number of posts about the ethics and justice of the basic income grant. I thought it might be useful to provide an index to all of them in this post. Most of these posts look at whether an unconditional basic income grant can be justified from a particular theoretical perspective, e.g. feminism, libertarianism, liberal egalitarianism, and republicanism. One of them asks whether there should be a right not to work. Enjoy: