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It seems fair to say that it encounters even more serious objections than interactionism. While a detailed survey of all varieties of dualism is beyond the scope of this entry, it is at least important to note here that the main and most popular form of dualism today is called property dualism. Substance dualism has largely fallen out of favor at least in most philosophical circles, though there are important exceptions e.
Property dualism, on the other hand, is a more modest version of dualism and it holds that there are mental properties that is, characteristics or aspects of things that are neither identical with nor reducible to physical properties. There are actually several different kinds of property dualism, but what they have in common is the idea that conscious properties, such as the color qualia involved in a conscious experience of a visual perception, cannot be explained in purely physical terms and, thus, are not themselves to be identified with any brain state or process.
Two other views worth mentioning are epiphenomenalism and panpsychism. The latter is the somewhat eccentric view that all things in physical reality, even down to micro-particles, have some mental properties. All substances have a mental aspect, though it is not always clear exactly how to characterize or test such a claim.
Finally, although not a form of dualism, idealism holds that there are only immaterial mental substances, a view more common in the Eastern tradition. The most prominent Western proponent of idealism was 18th century empiricist George Berkeley. The idealist agrees with the substance dualist, however, that minds are non-physical, but then denies the existence of mind-independent physical substances altogether.
Such a view faces a number of serious objections, and it also requires a belief in the existence of God. Some form of materialism is probably much more widely held today than in centuries past. No doubt part of the reason for this has to do with the explosion in scientific knowledge about the workings of the brain and its intimate connection with consciousness, including the close connection between brain damage and various states of consciousness.
Brain death is now the main criterion for when someone dies. Stimulation to specific areas of the brain results in modality specific conscious experiences. Indeed, materialism often seems to be a working assumption in neurophysiology. The idea is that science is showing us that conscious mental states, such as visual perceptions, are simply identical with certain neuro-chemical brain processes; much like the science of chemistry taught us that water just is H2O.
In this case, even if dualism could equally explain consciousness which would of course be disputed by materialists , materialism is clearly the simpler theory in so far as it does not posit any objects or processes over and above physical ones. Materialists will wonder why there is a need to believe in the existence of such mysterious non-physical entities. Moreover, in the aftermath of the Darwinian revolution, it would seem that materialism is on even stronger ground provided that one accepts basic evolutionary theory and the notion that most animals are conscious.
Given the similarities between the more primitive parts of the human brain and the brains of other animals, it seems most natural to conclude that, through evolution, increasing layers of brain areas correspond to increased mental abilities. For example, having a well developed prefrontal cortex allows humans to reason and plan in ways not available to dogs and cats.
It also seems fairly uncontroversial to hold that we should be materialists about the minds of animals. If so, then it would be odd indeed to hold that non-physical conscious states suddenly appear on the scene with humans.
There are still, however, a number of much discussed and important objections to materialism, most of which question the notion that materialism can adequately explain conscious experience. Although not concerned to reject the metaphysics of materialism, Levine gives eloquent expression to the idea that there is a key gap in our ability to explain the connection between phenomenal properties and brain properties see also Levine , The basic problem is that it is, at least at present, very difficult for us to understand the relationship between brain properties and phenomenal properties in any explanatory satisfying way, especially given the fact that it seems possible for one to be present without the other.
There is an odd kind of arbitrariness involved: Why or how does some particular brain process produce that particular taste or visual sensation? It is difficult to see any real explanatory connection between specific conscious states and brain states in a way that explains just how or why the former are identical with the latter. There is therefore an explanatory gap between the physical and mental.
Unlike Levine, however, Chalmers is much more inclined to draw anti-materialist metaphysical conclusions from these and other considerations. The easy problems generally have more to do with the functions of consciousness, but Chalmers urges that solving them does not touch the hard problem of phenomenal consciousness. Their theories ignore phenomenal consciousness.
There are many responses by materialists to the above charges, but it is worth emphasizing that Levine, at least, does not reject the metaphysics of materialism. That is, it is primarily a problem having to do with knowledge or understanding. This concession is still important at least to the extent that one is concerned with the larger related metaphysical issues discussed in section 3a, such as the possibility of immortality.
Perhaps most important for the materialist, however, is recognition of the fact that different concepts can pick out the same property or object in the world Loar , In contrast, we can also use various concepts couched in physical or neurophysiological terms to refer to that same mental state from the third-person point of view. There is thus but one conscious mental state which can be conceptualized in two different ways: either by employing first-person experiential phenomenal concepts or by employing third-person neurophysiological concepts. Qualia would then still be identical to physical properties.
Moreover, this response provides a diagnosis for why there even seems to be such a gap; namely, that we use very different concepts to pick out the same property. There is a pair of very widely discussed, and arguably related, objections to materialism which come from the seminal writings of Thomas Nagel and Frank Jackson , Like Levine, Nagel does not reject the metaphysics of materialism. Jackson had originally intended for his argument to yield a dualistic conclusion, but he no longer holds that view.
The general pattern of each argument is to assume that all the physical facts are known about some conscious mind or conscious experience. Yet, the argument goes, not all is known about the mind or experience. It is then inferred that the missing knowledge is non-physical in some sense, which is surely an anti-materialist conclusion in some sense.
The idea, then, is that if we accept the hypothesis that we know all of the physical facts about bat minds, and yet some knowledge about bat minds is left out, then materialism is inherently flawed when it comes to explaining consciousness. Even in an ideal future in which everything physical is known by us, something would still be left out. Mary never sees red for example, but she learns all of the physical facts and everything neurophysiologically about human color vision.
Eventually she is released from the room and sees red for the first time. This is a new piece of knowledge and hence she must have come to know some non-physical fact since, by hypothesis, she already knew all of the physical facts. Thus, not all knowledge about the conscious mind is physical knowledge.
The influence and the quantity of work that these ideas have generated cannot be exaggerated. Various suspicions about the nature and effectiveness of such thought experiments also usually accompany this response. More commonly, however, materialists reply by arguing that Mary does not learn a new fact when seeing red for the first time, but rather learns the same fact in a different way.
Recalling the distinction made in section 3b. We might say that Mary, upon leaving the black and white room, becomes acquainted with the same neural property as before, but only now from the first-person point of view. In short, coming to learn or know something new does not entail learning some new fact about the world. Analogies are again given in other less controversial areas, for example, one can come to know about some historical fact or event by reading a reliable third-person historical account or by having observed that event oneself.
But there is still only the one objective fact under two different descriptions. Finally, it is crucial to remember that, according to most, the metaphysics of materialism remains unaffected. Drawing a metaphysical conclusion from such purely epistemological premises is always a questionable practice. Indeed, a materialist might even expect the conclusion that Nagel draws; after all, given that our brains are so different from bat brains, it almost seems natural for there to be certain aspects of bat experience that we could never fully comprehend.
Only the bat actually undergoes the relevant brain processes. Despite the plethora of materialist responses, vigorous debate continues as there are those who still think that something profound must always be missing from any materialist attempt to explain consciousness; namely, that understanding subjective phenomenal consciousness is an inherently first-person activity which cannot be captured by any objective third-person scientific means, no matter how much scientific knowledge is accumulated.
Some knowledge about consciousness is essentially limited to first-person knowledge. Such a sense, no doubt, continues to fuel the related anti-materialist intuitions raised in the previous section. Perhaps consciousness is simply a fundamental or irreducible part of nature in some sense Chalmers For more see Van Gulick Finally, some go so far as to argue that we are simply not capable of solving the problem of consciousness McGinn , , More specifically, McGinn claims that we are cognitively closed as to how the brain produces conscious awareness.
McGinn concedes that some brain property produces conscious experience, but we cannot understand how this is so or even know what that brain property is. Our concept forming mechanisms simply will not allow us to grasp the physical and causal basis of consciousness. We are not conceptually suited to be able to do so. McGinn does not entirely rest his argument on past failed attempts at explaining consciousness in materialist terms; instead, he presents another argument for his admittedly pessimistic conclusion.
McGinn observes that we do not have a mental faculty that can access both consciousness and the brain. We access consciousness through introspection or the first-person perspective, but our access to the brain is through the use of outer spatial senses e. Thus we have no way to access both the brain and consciousness together, and therefore any explanatory link between them is forever beyond our reach.
Materialist responses are numerous. Both first-person and third-person scientific data about the brain and consciousness can be acquired and used to solve the hard problem. Presumably, McGinn would say that we are not capable of putting such a theory together in any appropriate way. Third, it may be that McGinn expects too much; namely, grasping some causal link between the brain and consciousness. Indeed, this is sometimes also said in response to the explanatory gap and the hard problem, as we saw earlier. Rats, for example, have no concept whatsoever of calculus.
Rats are just completely oblivious to calculus problems. On the other hand, we humans obviously do have some grasp on consciousness and on the workings of the brain -- just see the references at the end of this entry! It is not clear, then, why we should accept the extremely pessimistic and universally negative conclusion that we can never discover the answer to the problem of consciousness, or, more specifically, why we could never understand the link between consciousness and the brain. Unlike many of the above objections to materialism, the appeal to the possibility of zombies is often taken as both a problem for materialism and as a more positive argument for some form of dualism, such as property dualism.
Thus, it is logically possible for me to jump fifty feet in the air, but not empirically possible. The objection, then, typically proceeds from such a possibility to the conclusion that materialism is false because materialism would seem to rule out that possibility. It has been fairly widely accepted since Kripke that all identity statements are necessarily true that is, true in all possible worlds , and the same should therefore go for mind-brain identity claims.
See Identity Theory. It is impossible to do justice to all of the subtleties here. A few lines of reply are as follows: First, it is sometimes objected that the conceivability of something does not really entail its possibility. Perhaps we can also conceive of water not being H2O, since there seems to be no logical contradiction in doing so, but, according to received wisdom from Kripke, that is really impossible.
Much of the debate centers on various alleged similarities or dissimilarities between the mind-brain and water-H2O cases or other such scientific identities. Second, even if zombies are conceivable in the sense of logically possible, how can we draw a substantial metaphysical conclusion about the actual world? It seems that one could take virtually any philosophical or scientific theory about almost anything, conceive that it is possibly false, and then conclude that it is actually false. Something, perhaps, is generally wrong with this way of reasoning. Third, as we saw earlier 3b. On the one side, we are dealing with scientific third-person concepts and, on the other, we are employing phenomenal concepts.
We are, perhaps, simply currently not in a position to understand completely such a necessary connection. Despite the apparent simplicity of materialism, say, in terms of the identity between mental states and neural states, the fact is that there are many different forms of materialism.
The idea is simply that it seems perfectly possible for there to be other conscious beings e. It seems that commitment to type-type identity theory led to the undesirable result that only organisms with brains like ours can have conscious states. But for more recent defenses of type-type identity theory see Hill and McLaughlin , Papineau , , , Polger This view simply holds that each particular conscious mental event in some organism is identical with some particular brain process or event in that organism. This seems to preserve much of what the materialist wants but yet allows for the multiple realizability of conscious states, because both the human and the alien can still have a conscious desire for something to drink while each mental event is identical with a different physical state in each organism.
Taking the notion of multiple realizability very seriously has also led many to embrace functionalism, which is the view that conscious mental states should really only be identified with the functional role they play within an organism. For example, conscious pains are defined more in terms of input and output, such as causing bodily damage and avoidance behavior, as well as in terms of their relationship to other mental states. It is normally viewed as a form of materialism since virtually all functionalists also believe, like the token-token theorist, that something physical ultimately realizes that functional state in the organism, but functionalism does not, by itself, entail that materialism is true.
Some materialists even deny the very existence of mind and mental states altogether, at least in the sense that the very concept of consciousness is muddled Wilkes , or that the mentalistic notions found in folk psychology, such as desires and beliefs, will eventually be eliminated and replaced by physicalistic terms as neurophysiology matures into the future Churchland Materialism is true as an ontological or metaphysical doctrine, but facts about the mind cannot be deduced from facts about the physical world Boyd , Van Gulick In some ways, this might be viewed as a relatively harmless variation on materialist themes, but others object to the very coherence of this form of materialism Kim , Most specific theories of consciousness tend to be reductionist in some sense.
Dewey, John | Internet Encyclopedia of Philosophy
The classic notion at work is that consciousness or individual conscious mental states can be explained in terms of something else or in some other terms. This section will focus on several prominent contemporary reductionist theories. We should, however, distinguish between those who attempt such a reduction directly in physicalistic, such as neurophysiological, terms and those who do so in mentalistic terms, such as by using unconscious mental states or other cognitive notions.
The more direct reductionist approach can be seen in various, more specific, neural theories of consciousness. The basic idea is that mental states become conscious when large numbers of neurons fire in synchrony and all have oscillations within the hertz range that is, cycles per second. However, many philosophers and scientists have put forth other candidates for what, specifically, to identify in the brain with consciousness. The overall idea is to show how one or more specific kinds of neuro-chemical activity can underlie and explain conscious mental activity Metzinger Even Crick and Koch have acknowledged that they, at best, provide a necessary condition for consciousness, and that such firing patters are not automatically sufficient for having conscious experience.
Many current theories attempt to reduce consciousness in mentalistic terms. Much of what goes on in the brain, however, might also be understood in a representational way; for example, as mental events representing outer objects partly because they are caused by such objects in, say, cases of veridical visual perception. Although intentional states are sometimes contrasted with phenomenal states, such as pains and color experiences, it is clear that many conscious states have both phenomenal and intentional properties, such as visual perceptions.
It should be noted that the relation between intentionalilty and consciousness is itself a major ongoing area of dispute with some arguing that genuine intentionality actually presupposes consciousness in some way Searle , Siewart , Horgan and Tienson while most representationalists insist that intentionality is prior to consciousness Gennaro , chapter two. The other related motivation for representational theories of consciousness is that many believe that an account of representation or intentionality can more easily be given in naturalistic terms, such as causal theories whereby mental states are understood as representing outer objects in virtue of some reliable causal connection.
The idea, then, is that if consciousness can be explained in representational terms and representation can be understood in purely physical terms, then there is the promise of a reductionist and naturalistic theory of consciousness. Alternatively, conscious mental states have no mental properties other than their representational properties. Two conscious states with all the same representational properties will not differ phenomenally.
A First-order representational FOR theory of consciousness is a theory that attempts to explain conscious experience primarily in terms of world-directed or first-order intentional states. Probably the two most cited FOR theories of consciousness are those of Fred Dretske and Michael Tye , , though there are many others as well e. Like other FOR theorists, Tye holds that the representational content of my conscious experience that is, what my experience is about or directed at is identical with the phenomenal properties of experience.
Whatever the merits and exact nature of the argument from transparency see Kind , it is clear, of course, that not all mental representations are conscious, so the key question eventually becomes: What exactly distinguishes conscious from unconscious mental states or representations? What makes a mental state a conscious mental state?
Without probing into every aspect of PANIC theory, Tye holds that at least some of the representational content in question is non-conceptual N , which is to say that the subject can lack the concept for the properties represented by the experience in question, such as an experience of a certain shade of red that one has never seen before. Actually, the exact nature or even existence of non-conceptual content of experience is itself a highly debated and difficult issue in philosophy of mind Gunther Gennaro , for example, defends conceptualism and connects it in various ways to the higher-order thought theory of consciousness see section 4b.
This condition is needed to handle cases of hallucinations, where there are no concrete objects at all or cases where different objects look phenomenally alike. For example…feeling hungry… has an immediate cognitive effect, namely, the desire to eat…. If so, then conscious experience cannot generally be explained in terms of representational properties Block Tye responds that pains, itches, and the like do represent, in the sense that they represent parts of the body. And after-images, hallucinations, and the like either misrepresent which is still a kind of representation or the conscious subject still takes them to have representational properties from the first-person point of view.
Indeed, Tye admirably goes to great lengths and argues convincingly in response to a whole host of alleged counter-examples to representationalism. Historically among them are various hypothetical cases of inverted qualia see Shoemaker , the mere possibility of which is sometimes taken as devastating to representationalism. These are cases where behaviorally indistinguishable individuals have inverted color perceptions of objects, such as person A visually experiences a lemon the way that person B experience a ripe tomato with respect to their color, and so on for all yellow and red objects.
For more on the importance of color in philosophy, see Hardin On Inverted Earth every object has the complementary color to the one it has here, but we are asked to imagine that a person is equipped with color-inverting lenses and then sent to Inverted Earth completely ignorant of those facts. Since the color inversions cancel out, the phenomenal experiences remain the same, yet there certainly seem to be different representational properties of objects involved. The strategy on the part of critics, in short, is to think of counter-examples either actual or hypothetical whereby there is a difference between the phenomenal properties in experience and the relevant representational properties in the world.
Such objections can, perhaps, be answered by Tye and others in various ways, but significant debate continues Macpherson Intuitions also dramatically differ as to the very plausibility and value of such thought experiments. For more, see Seager , chapters 6 and 7. See also Chalmers for an excellent discussion of the dizzying array of possible representationalist positions.
John Dewey (1859—1952)
As we have seen, one question that should be answered by any theory of consciousness is: What makes a mental state a conscious mental state? There is a long tradition that has attempted to understand consciousness in terms of some kind of higher-order awareness. In general, the idea is that what makes a mental state conscious is that it is the object of some kind of higher-order representation HOR.
This is sometimes referred to as the Transitivity Principle. Any theory which attempts to explain consciousness in terms of higher-order states is known as a higher-order HO theory of consciousness. HO theorists are united in the belief that their approach can better explain consciousness than any purely FOR theory, which has significant difficulty in explaining the difference between unconscious and conscious mental states. HOT theorists, such as David M. Rosenthal, think it is better to understand the HOR as a thought of some kind. HOTs are treated as cognitive states involving some kind of conceptual component.
HOP theorists urge that the HOR is a perceptual or experiential state of some kind Lycan which does not require the kind of conceptual content invoked by HOT theorists. A common initial objection to HOR theories is that they are circular and lead to an infinite regress. It also might seem that an infinite regress results because a conscious mental state must be accompanied by a HOT, which, in turn, must be accompanied by another HOT ad infinitum.
However, the standard reply is that when a conscious mental state is a first-order world-directed state the higher-order thought HOT is not itself conscious; otherwise, circularity and an infinite regress would follow. When the HOT is itself conscious, there is a yet higher-order or third-order thought directed at the second-order state. In this case, we have introspection which involves a conscious HOT directed at an inner mental state. When one introspects, one's attention is directed back into one's mind. For example, what makes my desire to write a good entry a conscious first-order desire is that there is a non-conscious HOT directed at the desire.
In this case, my conscious focus is directed at the entry and my computer screen, so I am not consciously aware of having the HOT from the first-person point of view. The basic idea is that the conscious status of an experience is due to its availability to higher-order thought. Thus, no actual HOT occurs. Daniel Dennett is sometimes credited with an earlier version of a dispositional account see Carruthers , chapter ten.
It is worth briefly noting a few typical objections to HO theories many of which can be found in Byrne : First, and perhaps most common, is that various animals and even infants are not likely to have to the conceptual sophistication required for HOTs, and so that would render animal and infant consciousness very unlikely Dretske , Seager Although most who bring forth this objection are not HO theorists, Peter Carruthers is one HO theorist who actually embraces the conclusion that most animals do not have phenomenal consciousness.
Gennaro , has replied to Carruthers on this point; for example, it is argued that the HOTs need not be as sophisticated as it might initially appear and there is ample comparative neurophysiological evidence supporting the conclusion that animals have conscious mental states. Most HO theorists do not wish to accept the absence of animal or infant consciousness as a consequence of holding the theory. The debate continues, however, in Carruthers , , and Gennaro , , , chapters seven and eight.
When I have a thought about a rock, it is certainly not true that the rock becomes conscious. So why should I suppose that a mental state becomes conscious when I think about it? This is puzzling to many and the objection forces HO theorists to explain just how adding the HO state changes an unconscious state into a conscious.
There have been, however, a number of responses to this kind of objection Rosenthal , Lycan, , Van Gulick , , Gennaro , , chapter four. A common theme is that there is a principled difference in the objects of the HO states in question. Rocks and the like are not mental states in the first place, and so HO theorists are first and foremost trying to explain how a mental state becomes conscious. It might be asked just how exactly any HO theory really explains the subjective or phenomenal aspect of conscious experience.
Some argue that this objection misconstrues the main and more modest purpose of at least, their HO theories. The claim is that HO theories are theories of consciousness only in the sense that they are attempting to explain what differentiates conscious from unconscious states, i. Thus, a full explanation of phenomenal consciousness does require more than a HO theory, but that is no objection to HO theories as such. Another response is that proponents of the hard problem unjustly raise the bar as to what would count as a viable explanation of consciousness so that any such reductivist attempt would inevitably fall short Carruthers , Gennaro Part of the problem, then, is a lack of clarity about what would even count as an explanation of consciousness Van Gulick ; see also section 3b.
Once this is clarified, however, the hard problem can indeed be solved. Moreover, anyone familiar with the literature knows that there are significant terminological difficulties in the use of various crucial terms which sometimes inhibits genuine progress but see Byrne for some helpful clarification. A fourth important objection to HO approaches is the question of how such theories can explain cases where the HO state might misrepresent the lower-order LO mental state Byrne , Neander , Levine , Block After all, if we have a representational relation between two states, it seems possible for misrepresentation or malfunction to occur.
If it does, then what explanation can be offered by the HO theorist? If my LO state registers a red percept and my HO state registers a thought about something green due, say, to some neural misfiring, then what happens? For example, if the HO theorist takes the option that the resulting conscious experience is reddish, then it seems that the HO state plays no role in determining the qualitative character of the experience.
On the other hand, if the resulting experience is greenish, then the LO state seems irrelevant. Rosenthal and Weisberg hold that the HO state determines the qualitative properties even in cases when there is no LO state at all Rosenthal , , Weisberg , a, b. Gennaro argues that no conscious experience results in such cases and wonders, for example, how a sole unconscious HOT can result in a conscious state at all.
He argues that there must be a match, complete or partial, between the LO and HO state in order for a conscious state to exist in the first place. This important objection forces HO theorists to be clearer about just how to view the relationship between the LO and HO states. Debate is ongoing and significant both on varieties of HO theory and in terms of the above objections see Gennaro a. There is also interdisciplinary interest in how various HO theories might be realized in the brain Gennaro , chapter nine.
A related and increasingly popular version of representational theory holds that the meta-psychological state in question should be understood as intrinsic to or part of an overall complex conscious state. This stands in contrast to the standard view that the HO state is extrinsic to that is, entirely distinct from its target mental state. The assumption, made by Rosenthal for example, about the extrinsic nature of the meta-thought has increasingly come under attack, and thus various hybrid representational theories can be found in the literature.
To varying degrees, these views have in common the idea that conscious mental states, in some sense, represent themselves, which then still involves having a thought about a mental state, just not a distinct or separate state. Thus, when one has a conscious desire for a cold glass of water, one is also aware that one is in that very state.
The conscious desire both represents the glass of water and itself. These theories can go by various names, which sometimes seem in conflict, and have added significantly in recent years to the acronyms which abound in the literature. For example, Gennaro a, , , , has argued that, when one has a first-order conscious state, the HOT is better viewed as intrinsic to the target state, so that we have a complex conscious state with parts. Gennaro holds that conscious mental states should be understood as Kant might have today as global brain states which are combinations of passively received perceptual input and presupposed higher-order conceptual activity directed at that input.
Higher-order concepts in the meta-psychological thoughts are presupposed in having first-order conscious states. Robert Van Gulick , , has also explored the alternative that the HO state is part of an overall global conscious state. Both Gennaro and Van Gulick have suggested that conscious states can be understood materialistically as global states of the brain, and it would be better to treat the first-order state as part of the larger complex brain state.
Nonetheless, there is agreement among these authors that conscious mental states are, in some important sense, reflexive or self-directed. And, once again, there is keen interest in developing this model in a way that coheres with the latest neurophysiological research on consciousness.
A point of emphasis is on the concept of global meta-representation within a complex brain state, and attempts are underway to identify just how such an account can be realized in the brain. Thomas Natsoulas also has a series of papers defending a similar view, beginning with Natsoulas To some extent, this is a terminological dispute, but, despite important similarities, there are also key subtle differences between these hybrid alternatives.
Like HO theorists, however, those who advocate this general approach all take very seriously the notion that a conscious mental state M is a state that subject S is non-inferentially aware that S is in. See also Lurz and for yet another interesting hybrid account. Aside from the explicitly representational approaches discussed above, there are also related attempts to explain consciousness in other cognitive terms. The two most prominent such theories are worth describing here:.
Instead, the MDM holds that all kinds of mental activity occur in the brain by parallel processes of interpretation, all of which are under frequent revision. Consciousness consists in such global broadcasting and is therefore also, according to Baars, an important functional and biological adaptation. We might say that consciousness is thus created by a kind of global access to select bits of information in the brain and nervous system. It is, in any case, an empirical matter just how the brain performs the functions he describes, such as detecting mechanisms of attention.
Objections to these cognitive theories include the charge that they do not really address the hard problem of consciousness as described in section 3b. Dennett is also often accused of explaining away consciousness rather than really explaining it. Two other psychological cognitive theories worth noting are the ones proposed by George Mandler and Tim Shallice Finally, there are those who look deep beneath the neural level to the field of quantum mechanics, basically the study of sub-atomic particles, to find the key to unlocking the mysteries of consciousness.
The bizarre world of quantum physics is quite different from the deterministic world of classical physics, and a major area of research in its own right. Such authors place the locus of consciousness at a very fundamental physical level. This somewhat radical, though exciting, option is explored most notably by physicist Roger Penrose , and anesthesiologist Stuart Hameroff The basic idea is that consciousness arises through quantum effects which occur in subcellular neural structures known as microtubules, which are structural proteins in cell walls.
It is difficult to assess these somewhat exotic approaches at present. Given the puzzling and often very counterintuitive nature of quantum physics, it is unclear whether such approaches will prove genuinely scientifically valuable methods in explaining consciousness. One concern is simply that these authors are trying to explain one puzzling phenomenon consciousness in terms of another mysterious natural phenomenon quantum effects. Thus, the thinking seems to go, perhaps the two are essentially related somehow and other physicalistic accounts are looking in the wrong place, such as at the neuro-chemical level.
Although many attempts to explain consciousness often rely of conjecture or speculation, quantum approaches may indeed lead the field along these lines. One exciting aspect of this approach is the resulting interdisciplinary interest it has generated among physicists and other scientists in the problem of consciousness. Over the past two decades there has been an explosion of interdisciplinary work in the science of consciousness. Some of the credit must go to the ground breaking book by Patricia Churchland entitled Neurophilosophy.
In this section, three of the most important such areas are addressed. For an important anthology on the subject, see Cleeremans However, when one looks at how the brain processes information, one only sees discrete regions of the cortex processing separate aspects of perceptual objects. Even different aspects of the same object, such as its color and shape, are processed in different parts of the brain. What mechanisms allow us to experience the world in such a unified way?
What happens when this unity breaks down, as in various pathological cases?
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As was seen earlier with neural theories section 4a and as will be seen below on the neural correlates of consciousness 5b , some attempts to solve the binding problem have to do with trying to isolate the precise brain mechanisms responsible for consciousness. Perhaps the binding problem and the hard problem of consciousness section 3b. If the binding problem can be solved, then we arguably have identified the elusive neural correlate of consciousness and have, therefore, perhaps even solved the hard problem.
In addition, perhaps the explanatory gap between third-person scientific knowledge and first-person unified conscious experience can also be bridged. Thus, this exciting area of inquiry is central to some of the deepest questions in the philosophical and scientific exploration of consciousness. Narrowing down the precise brain property responsible for consciousness is a different and far more difficult enterprise than merely holding a generic belief in some form of materialism.
The basic idea is that mental states become conscious when large numbers of neurons all fire in synchrony with one another oscillations within the hertz range or cycles per second. Currently, one method used is simply to study some aspect of neural functioning with sophisticated detecting equipments such as MRIs and PET scans and then correlate it with first-person reports of conscious experience. Another method is to study the difference in brain activity between those under anesthesia and those not under any such influence.
A detailed survey would be impossible to give here, but a number of other candidates for the NCC have emerged over the past two decades, including reentrant cortical feedback loops in the neural circuitry throughout the brain Edelman , Edelman and Tononi , NMDA-mediated transient neural assemblies Flohr , and emotive somatosensory haemostatic processes in the frontal lobe Damasio These and other NCCs are explored at length in Metzinger Ongoing scientific investigation is significant and an important aspect of current scientific research in the field.
One problem with some of the above candidates is determining exactly how they are related to consciousness. For example, although a case can be made that some of them are necessary for conscious mentality, it is unclear that they are sufficient. That is, some of the above seem to occur unconsciously as well. And pinning down a narrow enough necessary condition is not as easy as it might seem. Even if such a correlation can be established, we cannot automatically conclude that there is an identity relation. Even most dualists can accept such interpretations.
Maybe there is some other neural process C which causes both A and B. Philosophers have long been intrigued by disorders of the mind and consciousness. Part of the interest is presumably that if we can understand how consciousness goes wrong, then that can help us to theorize about the normal functioning mind. Questions abound: Could there be two centers of consciousness in one body? What makes a person the same person over time? What makes a person a person at any given time? These questions are closely linked to the traditional philosophical problem of personal identity, which is also importantly related to some aspects of consciousness research.
Much the same can be said for memory disorders, such as various forms of amnesia see Gennaro a, chapter 9. Does consciousness require some kind of autobiographical memory or psychological continuity? On a related front, there is significant interest in experimental results from patients who have undergone a commisurotomy, which is usually performed to relieve symptoms of severe epilepsy when all else fails. Philosophical interest is so high that there is now a book series called Philosophical Psychopathology published by MIT Press.
Another rich source of information comes from the provocative and accessible writings of neurologists on a whole host of psychopathologies, most notably Oliver Sacks starting with his book and, more recently, V. Ramachandran ; see also Ramachandran and Blakeslee Blindsight patients are blind in a well defined part of the visual field due to cortical damage , but yet, when forced, can guess, with a higher than expected degree of accuracy, the location or orientation of an object in the blind field. There is also philosophical interest in many other disorders, such as phantom limb pain where one feels pain in a missing or amputated limb , various agnosias such as visual agnosia where one is not capable of visually recognizing everyday objects , and anosognosia which is denial of illness, such as when one claims that a paralyzed limb is still functioning, or when one denies that one is blind.
These phenomena raise a number of important philosophical questions and have forced philosophers to rethink some very basic assumptions about the nature of mind and consciousness. Much has also recently been learned about autism and various forms of schizophrenia.
For a nice review article, see Graham Those with synesthesia literally have taste sensations when seeing certain shapes or have color sensations when hearing certain sounds. It is thus an often bizarre mixing of incoming sensory input via different modalities. One of the exciting results of this relatively new sub-field is the important interdisciplinary interest that it has generated among philosophers, psychologists, and scientists such as in Graham , Hirstein , and Radden Two final areas of interest involve animal and machine consciousness.
In addition to the obviously significant behavioral similarities between humans and many animals, much more is known today about other physiological similarities, such as brain and DNA structures. Nonetheless, it seems fair to say that most philosophers today readily accept the fact that a significant portion of the animal kingdom is capable of having conscious mental states, though there are still notable exceptions to that rule Carruthers , Of course, this is not to say that various animals can have all of the same kinds of sophisticated conscious states enjoyed by human beings, such as reflecting on philosophical and mathematical problems, enjoying artworks, thinking about the vast universe or the distant past, and so on.
However, it still seems reasonable to believe that animals can have at least some conscious states from rudimentary pains to various perceptual states and perhaps even to some level of self-consciousness. A number of key areas are under continuing investigation. For example, to what extent can animals recognize themselves, such as in a mirror, in order to demonstrate some level of self-awareness? To what extent can animals deceive or empathize with other animals, either of which would indicate awareness of the minds of others? These and other important questions are at the center of much current theorizing about animal cognition.
See Keenan et. What justifies such a belief? The possibility of machine or robot consciousness has intrigued philosophers and non-philosophers alike for decades. Could a machine really think or be conscious? Could a robot really subjectively experience the smelling of a rose or the feeling of pain? The basic idea is that if a machine could fool an interrogator who could not see the machine into thinking that it was human, then we should say it thinks or, at least, has intelligence.
However, Turing was probably overly optimistic about whether anything even today can pass the Turing Test, as most programs are specialized and have very narrow uses. One cannot ask the machine about virtually anything, as Turing had envisioned. Moreover, even if a machine or robot could pass the Turing Test, many remain very skeptical as to whether or not this demonstrates genuine machine thinking, let alone consciousness. For one thing, many philosophers would not take such purely behavioral e.
Searle supports his argument against strong AI by utilizing a thought experiment whereby he is in a room and follows English instructions for manipulating Chinese symbols in order to produce appropriate answers to questions in Chinese. Searle argues that, despite the appearance of understanding Chinese say, from outside the room , he does not understand Chinese at all. He does not thereby know Chinese, but is merely manipulating symbols on the basis of syntax alone. Since this is what computers do, no computer, merely by following a program, genuinely understands anything. Searle replies to numerous possible criticisms in his original paper which also comes with extensive peer commentary , but suffice it to say that not everyone is satisfied with his responses.
Despite heavy criticism of the argument, two central issues are raised by Searle which continue to be of deep interest. We do after all distinguish between real diamonds or leather and mere simulations which are just not the real thing. After all, even a materialist does not have to allow that any kind of physical stuff can produce consciousness any more than any type of physical substance can, say, conduct electricity. Of course, this raises a whole host of other questions which go to the heart of the metaphysics of consciousness.
To what extent must an organism or system be physiologically like us in order to be conscious? Why is having a certain biological or chemical make up necessary for consciousness? How could we even know either way? However one answers these questions, it seems that building a truly conscious Commander Data is, at best, still just science fiction. In any case, the growing areas of cognitive science and artificial intelligence are major fields within philosophy of mind and can importantly bear on philosophical questions of consciousness.
Rocco J. Gennaro Email: rjgennaro usi. Consciousness Explaining the nature of consciousness is one of the most important and perplexing areas of philosophy, but the concept is notoriously ambiguous. Terminological Matters: Various Concepts of Consciousness The concept of consciousness is notoriously ambiguous. Some History on the Topic Interest in the nature of conscious experience has no doubt been around for as long as there have been reflective humans. The Metaphysics of Consciousness: Materialism vs. Dualism Metaphysics is the branch of philosophy concerned with the ultimate nature of reality.
Dualism: General Support and Related Issues There are a number of reasons why some version of dualism has been held throughout the centuries. Other Forms of Dualism While a detailed survey of all varieties of dualism is beyond the scope of this entry, it is at least important to note here that the main and most popular form of dualism today is called property dualism. Materialism: General Support Some form of materialism is probably much more widely held today than in centuries past.
Objection 2: The Knowledge Argument There is a pair of very widely discussed, and arguably related, objections to materialism which come from the seminal writings of Thomas Nagel and Frank Jackson , Objection 3: Mysterianism Finally, some go so far as to argue that we are simply not capable of solving the problem of consciousness McGinn , , Objection 4: Zombies Unlike many of the above objections to materialism, the appeal to the possibility of zombies is often taken as both a problem for materialism and as a more positive argument for some form of dualism, such as property dualism.
Debate and discussion on all four objections remains very active. Varieties of Materialism Despite the apparent simplicity of materialism, say, in terms of the identity between mental states and neural states, the fact is that there are many different forms of materialism. Specific Theories of Consciousness Most specific theories of consciousness tend to be reductionist in some sense. Neural Theories The more direct reductionist approach can be seen in various, more specific, neural theories of consciousness. Representational Theories of Consciousness Many current theories attempt to reduce consciousness in mentalistic terms.
First-Order Representationalism A First-order representational FOR theory of consciousness is a theory that attempts to explain conscious experience primarily in terms of world-directed or first-order intentional states. Higher-Order Representationalism As we have seen, one question that should be answered by any theory of consciousness is: What makes a mental state a conscious mental state?
Hybrid Representational Accounts A related and increasingly popular version of representational theory holds that the meta-psychological state in question should be understood as intrinsic to or part of an overall complex conscious state. Other Cognitive Theories Aside from the explicitly representational approaches discussed above, there are also related attempts to explain consciousness in other cognitive terms.
The two most prominent such theories are worth describing here: Daniel Dennett , has put forth what he calls the Multiple Drafts Model MDM of consciousness. Quantum Approaches Finally, there are those who look deep beneath the neural level to the field of quantum mechanics, basically the study of sub-atomic particles, to find the key to unlocking the mysteries of consciousness.
Consciousness and Science: Key Issues Over the past two decades there has been an explosion of interdisciplinary work in the science of consciousness. Philosophical Psychopathology Philosophers have long been intrigued by disorders of the mind and consciousness. Animal and Machine Consciousness Two final areas of interest involve animal and machine consciousness. Walter, eds. New York: Oxford University Press, Armstrong, D. A Materialist Theory of Mind. London: Routledge and Kegan Paul, Baars, B.
A Cognitive Theory of Consciousness. Cambridge: Cambridge University Press, Cases where courts did give direct effect to a rule of international law are often challenged or contested by the political branches. Faced with this reality, domestic courts may sometimes develop a practice of self-censorship and refuse to give direct effect to a rule of international law if that would lead to a conflict with domestic law or practices.
In this article I argue that the heterogeneous practice of direct effect outside the EU 28 can be understood in terms of the fundamental functional duality of the concept of direct effect of international law. Where direct effect has been recognized and applied, it can function as a powerful sword that can pierce the boundary of the national legal order and protect individual rights where national law falls short. But, more often than not, it legitimizes the non-application of international law and shields the national legal order from the effects of international law.
This functional duality is fuelled by a normative duality. International law provides some support for both functions. But, above all, international law defers the choice between these functions to the national level. This leads to two critical consequences. First, the political decisions to moderate the influence of international law in national legal orders are not confined to those cases where direct effect does not apply.
Rather, they are based on and employ the concept of direct effect, which thereby acquires an intrinsically political character. Secondly, the concept of direct effect shifts such decisions from the political branches to the courts. Thereby, the practice of direct effect of international law exposes the political function of domestic courts at the intersection of legal orders. I will first identify the concept of direct effect, which will enable us to distinguish cases that involve direct effect from those that do not section 2.
Finally, I will argue that as international law defers questions of direct effect to the national level, the practice of direct effect exposes the fundamentally political nature of the judicial decisions of whether or not to apply international law, and thereby moderates the relationship between legal orders. To assess how VGL has been used outside the EU, and to understand the phenomenon of direct effect of international law as it has been applied in many states throughout the world, our inquiry should be directed at situations that are characterized by three features.
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First, we can speak of direct effect where courts have applied international law to protect individual rights against the forum state. This is the setting in which national courts typically consider questions of direct effect. We can exclude cases that essentially involve inter-state matters, such as jurisdiction or immunities. Although such cases may be brought by individuals and moreover may also raise the question of whether a court can apply a rule of international law that has not been made part of national law, national courts that decide such cases typically do not resort to the concept of direct effect.
Although, conceptually, these may be treated as cases involving direct effect here, also, the question is whether a court can apply a rule of international law that has not been transposed into national law to protect private rights , the fact that the interests of the state are not as immediately involved as they are in public law cases that challenge governmental power alters the stakes dramatically.
An example is the application of the Warsaw Convention in China. Secondly, the concept of direct effect comprises situations where the question arises whether international law can be applied without being translated into domestic law. To say that a court gives direct effect to an international right is to say that a court enforces that right as such , not in a domesticated form. This obviously does not mean that we can only speak of direct effect of international law if such effect is independ ent from national law.
In the final analysis, the application of all rules of international law is contingent on domestic law, just as the application of domestic law by international courts is contingent on a rule of international law. But one cannot disassociate the rule as proclaimed from the rule as received. When we consider the reception of VGL , it is clear that even in EU law, full independence from national law cannot be seen as a defining feature of the VGL doctrine. This is a fortiori true in international law. Direct effect necessarily presumes a general or specific rule of reference. Thus, direct effect has a function comparable to VGL if a court is allowed to protect an international right without being dependent on prior or subsequent legislation pertaining to that particular right.
Thirdly, a decision can qualify as an instance of direct effect when a court acknowledges a rule of international law to be a decisive influence on the actual protection of the right involved. This will be the case when a court relies on international law as an exclusive basis for its decision, as was the case in VGL. But it is unnecessarily restrictive to limit ourselves to such situations. It is also true that often the application of a rule of construction is not quite the same thing as the application of a rule that itself is a source of a right or an obligation.
A case like Teoh in the Australian High Court makes clear that whereas that Court could give a certain procedural effect to the UN Convention on the Rights of the Child, even though that had not been made part of the law of Australia, the plaintiffs could not derive any substantive rights from the Convention in the absence of domestic status. The common ground between cases where a court decisively relies on an international right in the construction of national law, and thereby protects that right, on the one hand, and cases where courts rely on such rights directly without resorting to interpretation , on the other, may be more important than the distinctions.
It would be too limiting to exclude cases involving consistent interpretation prima facie from the category of cases in which national courts successfully mediate a conflict between a state and individuals by relying on international law — a category to which VGL also belongs. This significantly expands the number of cases worldwide that fall into the VGL category.
We find examples of consistent interpretation in states we do not commonly associate with direct effect, such as Ghana, 34 Israel, 35 Lesotho, 36 and South Africa, 37 and even China. When we apply the thus-defined concept to the reported cases, it is quite clear that the practice across the world is vastly heterogeneous, not only between states where direct effect is known and those where it is unknown, but also within the category of states where the concept has been used.
It is that diversity that calls for an inquiry into the functions and normative dimensions of direct effect. The reported cases suggest that the concept of direct effect can fulfil two opposing agendas or functions. They allow us to construe direct effect as a sword, piercing the boundary of the national legal order section A , or as a shield, protecting the national legal order from international law section B. Both functions co-exist in a somewhat uneasy relationship, but also complement each other and in a way that depends on each other.
Direct effect as a sword, without concern for national law and context, is on empirical and normative grounds a poor measure for describing or evaluating the application of international law at the national level. The European model of VGL may lessen complexity, but it does not provide a basis for explaining and judging countervailing practices. It cannot capture the normative complexity and the loss of legal stability and legitimacy that are strengthened by new concerns over the legitimacy of international law.
Conversely, the normative ambition of direct effect as a shield, while protective of national context and diversity and locality, falls short on descriptive and normative grounds. The traditional understanding of direct effect, at least as it functions in EU law, is that it can function as a sword. The term refers to a process whereby international rights or obligations pierce the shield of the national legal order. It allows for the exercise of judicial power to apply international law in the national legal order, where this, without direct effect, would not be possible. An obligation that has direct effect under, say, the Inter-American Convention on Human Rights IACHR , can be used by and supports the powers of domestic courts to protect that right where national law fails.
In contrast, courts generally lack the power to grant such direct effect to obligations under international environmental law or international humanitarian law. The sword function is particularly strong in those cases where courts can combine direct effect with the principle of supremacy of international law. When an international right collides with national law, and that collision cannot be removed by interpretation, an international right can only have actual effect if it has supremacy over national law: that is, if it hierarchically ranks higher and trumps domestic law.
Where a court can rely on a principle of supremacy, it can add significant power to the principle of direct effect. Conversely, a lack of supremacy under national law will then preclude the possibility of direct effect. More particularly, direct effect as a sword serves two significant functions.
First, direct effect locks in particular rights in the domestic sphere. It can entrench domestic policies and ensure that they will survive changes of power by locking them in with international commitments. Though conceptually direct effect may well apply in other fields it certainly does in the EU , over 60 per cent of the reported cases involved human rights. This sustains the idea that there is a close relationship between the protection of individual rights, on the one hand, and the piercing of the shield between the international and the national legal orders, on the other.
Locking in international rights, and enabling courts to protect them, has been particularly relevant in the transition from an authoritarian towards a democratic rule of law-based legal system. In such situations a choice for direct effect has commonly been made to lock in particular rights and to safeguard against a return to authoritarian rule. The second, and to some extent derivative, function of direct effect is that it may strengthen the power of courts.
Direct effect allows courts to draw power from rights and obligations that are not immediately controlled by the political branches. If we employ a broad definition of direct effect, this is also true for states outside that category. It is true that the courts of these states have commonly declined to enforce a treaty on the grounds that the legislature had not yet acted — without any scenario of direct effect arising.
The Icelandic Supreme Court relied on the UN Convention on the Law of the Sea UNCLOS , particularly with regard to the need for the protection and reasonable utilization of fish stocks, to determine the legality of the Icelandic fisheries management system, even though it was not incorporated into national law. Nurul Islam v.
Government of Bangladesh , 66 that in view of the resolution of the World Health Organization, the government should have taken appropriate steps to restrict the promotion of cigarette-related products. India had ratified ILO Convention but had not transposed it into law. These functions of direct effect serve aims that are both domestic and internationalist as they can secure performance of international obligations.
A single decision that grants direct effect to an international obligation serves both agendas at the same time. Indeed, it may be said that the practice of direct effect erodes the separation between the international and the domestic spheres — not unlike the effect of VGL in the EU. Although the concept of direct effect primarily has the connotation of a sword, the principle of direct effect more often than not functions as a shield. It can justify the non-application of international law by the courts, and thereby protect domestic political organs and, more generally, domestic values, from review based on international law.
The key to understanding this function as a shield is that direct effect is not only a term that describes a process leading to actual effect , but is also a concept with its own normative content, which contains a threshold requirement before international law can be applied. The concept of direct effect comprises criteria that have to be fulfilled before a court can give effect to international law. Generally, what counts are, first, the question of whether a provision is clear enough and, secondly, whether or not it grants a right to private parties. If a court finds that they are not fulfilled, international law remains unenforceable by the courts.
Surely, direct effect is not the only shield that can be set up between national and international legal orders. It is part of a wider set of doctrines and prin ciples, including the requirement in dualist states that international law should be implemented through legislation before it can have effect, the principle that accords supremacy to parts of national law, and principles that defer decisions on international law to the political branches, like the principle of non-justiciability.
Within this wider set, the concept of direct effect fulfils a distinct role in shielding national legal orders. This function of direct effect to provide a shield is not unique for international law. In regard to direct effect in EU law, it has been said that the restrictions set by direct effect would be and perhaps should be only temporary.
Pescatore noted that once the democratic ideal of Europe had taken root, reference to direct effect would become redundant — the effective application of EC law would be a matter of the ordinary state of the law. While this shield function may have been pushed to the background by the pervasive and largely non-controversial uses of direct effect in EU law, it remains dominant in international law. Like the use of direct effect as a shield, the construction and use of the conditions of direct effect as a high threshold for the application of international law can serve critical domestic agendas.
For instance, although Article VI of the US Constitution says that treaties are the supreme law of the land, the self-executing treaties doctrine imposes restrictions on judicial enforcement and protects the powers of political branches. In combination with the principle of supremacy of national constitutional law, a demanding construction of the conditions of direct effect also preserves the ultimate priority of national constitutional law, so as to allow for domestically induced contestation and change, even when that would override international law that does not conform to domestic policy preferences.
Domestic courts are the controlling agents, and the concept of direct effect is one of their tools. The functions of direct effect as a shield are fuelled by the well-documented shortcomings of international law-making. Even where consent may formally be available as a legitimizing force, its role is reduced by the fact that it appears late in the process, and for many states, non-participation in international regimes is not an option. In conjunction with other shielding principles, the direct effect doctrine can then mediate the effects of international obligations that are wanting in terms of democracy and rule of law quality, and that may upset these values domestically.
While direct effect is embedded in domestic law that serves domestic purposes, international law to some extent explains and justifies both the sword and the shield functions of direct effect. In this respect, international law is itself characterized by a normative duality that sustains and justifies the functional duality of direct effect. International law pulls in different directions, which in a paradoxical way sustain each other.
International law may colour and influence direct effect A , but at the same time fuel its opposition B. The normative foundations discussed here are limited to what can be derived from international law; obviously they supplant the normative grounds for the sword and shield functions that may be derived from domestic law, briefly identified above. Combined, the competing ambitions and claims of direct effect seem largely irreconcilable, and reflect the pluralistic relationship between international and national law.
Compared to EU law, the support that international law provides for direct effect is exceedingly weak. There is no authoritative judgment of an international court that direct effect is required, and also no grounds can be found otherwise for arguing that courts should give effect to an international right where that right has not been made effective in national law. Yet courts in principle are competent to give direct effect to particular international rights or obligations, and can find in international law some support for doing so.
We can distinguish between a general normative basis for direct effect and specific grounds that can be used to support a finding of direct effect,. The general ground is that direct effect furthers the effective application of international obligations. Even when direct effect is not obligatory as a matter of international law, it supports an internationalist ambition to render international law effective at the national level.
The more specific ground is that international law can support and influence the interpretation and application of the criteria of direct effect. While state practice is too diverse, and also too limited, to identify a single authoritative concept of direct effect as it exists in EU law, there is a remarkable convergence in the conditions and criteria that are applied in those states where direct effect is known.
Generally, what count are, first, the question of whether a provision is clear enough and, secondly, whether or not it grants a right to private parties.
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Answering both questions cannot neglect international law. In those cases where international courts and other international institutions are empowered to interpret international obligations, such institutions may further exert the influence of international law on direct effect. One reason is that where direct effect depends on the interpretation of an international norm notably in relation to its specificity and its addressees , a prior decision by an international court may be influential.
Another is that international courts may expressly direct themselves to national courts and charge them with the task of giving effect to international rights where national law falls short. Sofovich that Article 14 1 of the IACHR provides a directly enforceable right of reply to an individual who was injured by inaccurate or offensive statements disseminated to the public, and that the courts had the power to give direct effect to that right.
While it may seem counter-intuitive to argue that international law itself provides grounds for resisting the direct effect of international law, we can derive from the system of international law two sets of reasons to be reluctant to engage in broad practices of direct effect. In this respect, a construction of the conditions of direct effect that impede the domestic judicial application of international law need not be regarded as nationalistic reflexes that seek to undermine the performance of international obligations.
Rather, it may be seen as a legitimate response to the shortcomings of international law, which fulfils a critical role in maintaining international law as a system that allows states to coordinate their policies and secure common objectives. Also, here we can distinguish between a narrow and a broader ground. The narrow ground is that international law fuels the resistance by protecting values that it itself may undermine.
International law and international institutions protect in a variety of ways fundamental rights, democracy, and the rule of law at the national level. In admittedly rare cases, courts can justify the non-application of particular international rights or obligations on the basis of international law itself. This will hold mainly for human rights law.
The broader ground is that, in light of the noted deficiencies of international law, a wide application of direct effect of international law at the national level that would allow courts to set aside conflicting national policies, or even laws, would attribute to the international legal system more than what it can bear in terms of its substantive and procedural qualities and in terms of its overall legitimacy. It is one thing to say that international law, with all its deficiencies, coordinates relations between states.
It is quite something else to say that it dictates the law applying in a particular state. National practices that limit the direct effect of international law then should not necessarily be seen as a threat to the effectiveness of international law and the stability of treaty performance, but as a strategy that provides checks and balances that are lacking at the international level, and which supports the system of international law and its overall legitimacy.
This is particularly so when the grounds for rejection of direct effect rise beyond the particular national context and are framed in terms to which other states and, indeed, the international system, can be receptive. Construing direct effect in a demanding way, which allows the concept to function as a shield rather than as a sword, should not only then be seen as fuelling conflicts between competing claims, but also in terms of accommodation and adjustment between legal orders that depend on each other.
Even though international law may thus be relevant for decisions on direct effect, either in construing direct effect as a sword or direct effect as a shield, its actual impact on shaping the practice of direct effect is quite marginal. In part this results from the fact that these considerations that support, respectively, international law as a sword or as a shield neutralize each other. But above all, international law plays a marginal role because it has to defer to and is contingent upon national law.
That, surely, would be too simplistic a construction. Instead it is international law itself that sustains and fuels this contingency. International law sustains the contingency by respecting and protecting the autonomy of national legal orders, and the freedom of each state to determine how it arranges its relationship with international law. While an internationalist agenda may foster the argument that the traditional freedom of states may no longer be appropriate, seen from a global perspective the diversity and resistance are too significant to support any change in this freedom.
If the International Court of Justice ICJ were to have stated in Avena what the ECJ said in VGL that is, if it had said that a particular group of states, which differ in the degree to which international law has been made part of national law, had as a matter of international law to give effect to rights that were not part of national law , that statement would have been without basis in international law, and would have lacked any chance of being accepted by states.
The Avena Judgment nowhere lays down or implies that the courts in the United States are required to give direct effect to paragraph 9. The obligation laid down in that paragraph is indeed an obligation of result which clearly must be performed unconditionally; non-performance of it constitutes internationally wrongful conduct. However, the Judgment leaves it to the United States to choose the means of implementation, not excluding the introduction within a reasonable time of appropriate legislation, if deemed necessary under domestic constitutional law.
The neutrality of customary international law on this point is simply a reflection of the continuing significant differences in the practice of states as regards the way in which they give effect to their international obligations. Although in theory, states could conclude a treaty that requires the contracting parties to ensure that all or some of its provisions have the status of directly applicable law and be enforced by their domestic courts, the point is that states have preferred not to do so, and have not set up international courts that have articulated that requirement in the absence of an expression of will of states.
This is true even for regional integration organizations outside Europe. The closest resemblance can be found in the Andean Community of States. In its first preliminary ruling, the Andean Tribunal declared Andean law to have supremacy over national law, assuming that it had direct effect. It is difficult to identify traces of a direct effect doctrine that looks like the international variant of VGL. The deference to national law explains and, at least from an international law perspective, justifies the wide diversity in the practice of direct effect.
The heterogeneity of constructions and applications of direct effect demonstrates that the doctrine of direct effect fulfils multiple functions that are marginally influenced by international law. Otherwise, it is a concept that reflects a particular unique national legal and political context. This also means that direct effect is not a politics-free zone where the normal political contestation between legal orders is neutralized and put in the hands of courts.
Direct effect instead embodies competing political ideals and becomes an instrument whereby choices are made and legitimized. The interplay between the role of direct effect as a sword or as a shield and the deference to national law for resolving the apparently competing pulls provide the political context for the international legal order and its application in the national legal order.
It is a trite observation that the development, interpretation, application, and change of international law depend on politics. That, surely, also affects the application of international law at the domestic level. Political processes are not limited to negotiations of treaties or the framework of international institutions. The practices of direct effect of international obligations at the national level provide a necessary political context for the international legal order that otherwise lacks organized political structures — they provide for checks and balances, and change.
From the perspective of direct effect, two critical features of this political process should be highlighted.
First, the political process does not, as is commonly assumed, play a role in those cases where direct effect cannot be given; it instead plays out in the construction and application of the doctrine of direct effect. Secondly, the entry of direct effect in any particular legal order shifts this political role from the political branches in particular, the constitutional legislature to the courts.