1. Basics About Husserl’s Concept of the Noema

1Phenomenologically, a noema is the correlate of an intentional act. In so being, every noema points back to a corresponding noesis, or act, or to a multiplicity of noeses along with their internal constituents. However, it remains an open question whether every noetic element of consciousness necessarily has a correlative noematic unity. I think not. In fact, there are noetic elements that only when animated by a meaning-conferring act acquire a relation to an object, such as the esthesic data, or the thymic or orectic contents of consciousness. By themselves and in isolation, without being constituents of an encompassing intentional act, these latter noetic elements have no corresponding noematic correlate: they form the “hyletic” part of the contents of consciousness in opposition to the intentional morphé, as Husserl put it. This entails, firstly, that the noetic-noematic correlation is not of a one-to-one type but between a multiplicity of noetic elements, on the one hand, and the unity of the noema, on the other. By the same token, it also entails that a full noema is not, as said, a sheer and monolithic unity but has several constituents corresponding to the noetic multiple elements.

2The classical conceptual characterization of the noema, stemming from Husserl’s Ideas I, amounts to the following:

1. Regarding its transcendental place, the noema is immanent to consciousness, while its immanence is not real (reell), as the noetic components, but instead intentional. This means that there is no noema where there is no intentional act. In the Husserlian mereological jargon, the noema is a dependent part of a larger whole, a founded content.
2. Regarding its transcendental status, the noema is an intentionally immanent object. This characterization can be misleading, however. It does not mean that the noema is the object to which one is intentionally directed. It will be senseless to say that consciousness is directed to micro-objects that would be intentionally immanent to it. On the contrary, normally (i.e., not in second-order reflective acts), one is intentionally directed to the objects out there, which phenomenology names the transcendent objects. In so being, when affirming that a noema is an object, this means either that the noema is the object intended in its ways of givenness or that it is an abstract sense-content through which a transcendent object is intended. The former interpretation is generally attributed to Aron Gurwitsch, who took the perceptual noema as his model for analysis, soon generalizing the results for every kind of noema whatsoever.1 The latter stems from a seminal paper by Dagfinn Føllesdal, where the noema is equated with a Fregean Sinn, even though the sense is only a partial element of the full noema.2 This clash of interpretations gave rise to the famous East-West Coast debate about the status of the noema. My construal partially sides with the West-coast position by Dreyfus, D. W. Smith, and R. McIntyre, among others, which follows Føllesdal’s interpretation of the noema as a non-thematic mediator, which, I add, is only accessible through noematic reflection. Being the Sinn unthematic and only directly accessible by a higher order act of reflection, my construal, though, puts severe limits to an internalist account of intentional reference as solely determined via meaning-content, partially avoiding intensional contexts and reference opacity.
3. Regarding its phenomenological composition, the noema contains a meaning-core called Sinn or Bedeutung, depending on the level of expression (Ausdruck), that points to an objectual X, which contains both the mode in which the object is intended, the so-called Gegenstand im Wie seiner Bestimmtheiten, and the very object that is intended, which Husserl designates as the Gegenstand schlechthin, the object simpliciter, or the object about-which, the Gegenstand worüber. Additionally, besides the sense-core with its objectual X, the noema also covers both the manner of givenness (as directly present, remembered, given through an image, symbolically, and so on) and the characters of being (such as existent, probable, inexistent, fictional, and so on). In a nutshell, the noema is a composite of a sense-core with its objectual X, plus the manners of givenness and the characters of being, which are often but wrongly taken by each other (not rarely one sees, for instance, the thetic character of existence construed as perceptual presence, while, rigorously, the mode of “being bodily there” concerns the way of givenness and not the thetic character as such: a thing can be posited as existent while being only symbolically given, and so on).
4. Regarding its ontological characterization, according to my Fregean- or Føllesdalian-like interpretation (and according to Husserl himself, let me say), the noematic unity of meaning (Sinn) can be taken as an ideal entity that remains identical for an open multiplicity of different acts, which is denominated a proposition (Satz), in the case of polythetic noemata, or a name, which can be either simple (a “proper name”) or obtained by the nominalization of a previous proposition. The noematic sense, as a proposition, is what is meant or said as such, the judged-as-such, the intended as intended, briefly, the dictum of a sentence, or the sense of an intentional act considered per se.
5. Finally, the propositional meaning as such, or the ideal sense of the noematic core, receives a truth-value if and only if there is a (transcendent, in the normal case) state of affairs (Sachverhalt) that corresponds to it, and that correspondence is accounted for as a possible synthesis of fulfillment (Erfüllung) between the intending act and the corresponding intuitive act. If not, it is false in what it says. In so being, every noema which is well-formed, according to the morphological and syntactical laws of sense-formation and sense-derivation, says something about something and is not, in itself, either true or false. “The Fountain of Youth is in Florida” is an instance of such unity of well-formed propositional sense. It says, about the fountain of youth, that it is in Florida. Only when one intends to search for its supposed Gegenstand-worüber, and examine what is said about it, namely that it belongs to the set of things that are to be found in Florida, proves the noematic sense to be false because, definitively, there is neither a transcendent object nor a state-of-affairs whose givenness could enter with it in a synthesis of fulfillment. This situation of an impossibility for a synthesis of fulfillment becomes crystal clear in those cases where the object, in the way it is intended, contains an internal, self-destructive contradiction, like ironwood, round square, etc.

2. On the Noematic Sense-Core of Norms and Their Complements

3It seems quite easy to apply to norms the structure of noemata I have just highlighted for thetic acts. Indeed, it would be enough to substitute, on the noetic side, doxic acts of belief with acts of the will and, on the noematic side, characters of being with modalities of volitional positings. The noetic-noematic correlation will follow identical lines for every element of the noema, so that, mutatis mutandis, nomothetic acts, and their correlated normative noemata, as well as the corresponding normative states of affairs, would display an isomorphic structure.

5One all-important condition for something to be a norm concerns its meaning content or noematic core, i.e., the Sinn of the noema expressing a supposed volitional act. As it is generally said, norms must have deontic content objectively traceable in their meaning. This feature essentially belongs to their nomothetic noema as a differentiating element regarding thetic noemata. Even though normative language is fully variegated and can be articulated in ways that omit deontic expressions, the essential point is that, in the propositional description of the content of norms, at least one deontic expression shall appear. In my view, a short list of such fundamental deontic expressions is the following:

1. The normative is and has (henceforward, “is_n”, “has_n”), as in the norms “The age of majority is 18 years”; “Citizens have political and social rights.”
2. At least, the threefold deontic expressions prohibition (“F”), obligation (“O”), and permission (“P”), which can be defined one by the other. For instance, taking permission as basic,6 one defines the prohibition of X as the non-permission of X, and the obligation of X as the non-permission of non-X. Further, regarding contraries, if X is permitted, then non-X is also permitted (unless the permission follows from an obligation of X; I will argue this point later); if X is obligatory, then non-X is prohibited; if X is prohibited, then non-X is obligatory.

6However, the sense-content of the noema is not enough to shape a norm. Obviously, being it a necessary condition, other elements must be added. A second crucial element regards the ductive force of the norm, i.e., the way it motivates or conditions behavior. In fact, norms have different qualities or forces. In the face of a norm that prescribes some behavior, one must always know whether it is something with a peremptory, binding force, or otherwise something that is no more than a recommendation, a guideline, or a piece of advice, by which one must not necessarily abide. Norms of etiquette, for instance, have the later ductive force, but also, in the juridical realm, customary law, when not recognized by state law and if not contrary to it, and recommendations issued by the competent authorities or the dispositions commonly referred to as “soft law.” Indeed, regarding its sense-core, a norm can express an obligation (for instance, “during a speech, people should listen in silence and abstain from heckling the speaker”). Still, it can be no more than a recommendation when its ductive force is considered (in the example, suppose it is a speech at a political rally). The variation of ductive force in the nomothetic noema mirrors the variations of the characters of being in the thetic noema. On the latter, they range over a series that has existence and non-existence in its extreme points, passing through possible, probable, assumed, and so on. On the former, they go from peremptory force to ineffectiveness, passing through recommendation, counsel, suggestion, and so on.

8Thus, a theory of nomothetic noemata should cover the entire palette of deontic meaning and forms of ductive force and modes of givenness. However, my main concern in what follows will be about the meaning-structure of deontic sentences, for briefly returning to the other characters only in the last section.

3. Deontic Sentences in Light of the De Re, De Dicto Distinction

9Now, the issue I shall deal with employing some phenomenological insights concerning the morpho-syntactical structure of norms concerns the place the deontic expressions shall have in the sense-content of the nomothetic noema.

11Notwithstanding Leibniz’s ingenious breakthrough of construing (and finding) the deontic operators as counterparts of the alethic modal expressions, there are dark areas in the analogy. Firstly, some basic theorems of alethic modal logic are not transferable to the logic of deontic expressions, as it is well known (I will stress it later). Secondly, looking at the simple linguistic surface of modal sentences, it is undecidable whether Aristotle treats modal expressions as operators on propositions (syntactically, a kind of unary predicates, like negation) or as complex predicates within propositions (composed copulas of the adverbial kind, such as is-necessarily, is-possibly, and so on). Indeed, his closer discussion of the difference appears in a passage of De Sophisticis Elenchis, where he considers not modality but the fallacies of composition and division (vide 166a 23-31). However, as I intend to point out, this is an important issue. In the medieval tradition, Abelard was the first to draw a distinction between two ways of analyzing a sentence containing modal expressions: de sensu and de re or rebus. While he maintains that every modal sentence is a statement about the dictum of another statement, he concludes that an authentic modal sentence must be formulated secundum expositionem de rebus (see Kneale, 1966, p. 624). Thought, the de dicto, de re distinction as it is used nowadays goes back to Aquinas. He rightfully stressed that there are two ways of inserting modal expressions in propositions. As he states, the two possible forms give rise to a de re, de dicto distinction in the syntactic and semantic content of modal sentences:

• 9 “Propositionum utem modalium quedam est de dicto, quaedam est de re. Modalis de dicto est, in qua (...)

A modal proposition is either de dicto or de re. Modality is de dicto in which the whole dictum is made the subject and the mode is predicated, as in ‘that Socrates runs is possible’; modality is de re in which the mode is inserted into the dictum, as in ‘Socrates is possibly running.’9

13Certainly to contravene this essentialist trend, as Novaes suggested (Novaes, 2004), the nominalist William of Ockham proposed a new interpretation of the de re, de dicto distinction. In his account, modal propositions are cum dicto or sine dicto (the equivalent to the adverbial use of modal expressions, as in the Aquinas’ de re mode). Importantly, the former propositions are, for him, reducible to a pair formed by a simple proposition with a deictic, denoting some individual, and another with a de dicto modality. In his own words, for a proposition cum dicto,

• 11 “Primo igitur sciendum, sicut dictum est quod semper per talem propositionem denotatur quod talis (...)

It should first be noted, as was just said, that by means of such a proposition it is always asserted that such a mode is verified of what is said in the correspondent whole proposition.11

14While for a proposition sine dicto,

• 12 “[…] ita scilicet quod modus expressus in tali propositione vere praedicatur de propositione de in (...)

[It is required] that the mode expressed in such a proposition be truly predicated of an assertoric proposition [propositione de inesse] in which the very same predicate is predicated on a pronoun indicating that for which the subject stands [supponit].12

15In a nutshell, according to Ockham’s reductionist account, a sine dicto proposition like “A is necessarily B” should be disaggregated in the pair of propositions “X is B”, where X is a deictic that stands for an individual, and in the proposition “That X is B is necessary” (by force of logical implication, for instance), at once avoiding including modalities in the copula and putting them instead as qualifying the whole sense of a non-modal proposition. The modal predicates become, thus, always operators modifying the sense or dictum of a basic non-modal proposition, pace Thomas Aquinas’ former alternativist account.

1. V(Op, W^a) = 1, if and only if, for any W ∈ K such that WRW^a, V(p, W) = 1
2. V(Pp, W^a) = 1, if and only if, for some W ∈ K such that WRW^a, V(p, W) = 1

18As a result, the deontic operators are resolved into the satisfaction or not of the state of affairs p in the relevant possible worlds. An obligation, for example, is now tantamount to asserting that p is the case in all relevant possible worlds accessible from the actual one by R. Being R a relation of deontic alternativeness, it is understandable that W is a relevant possible world if p is the case there, i.e., if it is a world where O happens to exist and is fulfilled. Indeed, suppose the obligation exists but is not always or almost fulfilled. In that case, W is not a relevant possible world for deontic alternativeness because it is a world in which precisely the same situation occurs as in the actual world. As a result, one is filtering K for deontically perfect worlds, where what happens is just what shall be the case. We have, thus, moved from sense to extension, making the extensional facts of alternative deontic worlds and their truth or falsity stand for the sense of the deontic expressions.

19However, it is strange to say that an obligation, for instance, is true if what it commands is the case in all possible relevant worlds. Indeed, a deontic sentence is not a norm but a description of a norm. Regarding the latter, it is neither true nor false but either valid or invalid. If valid, it has some degree of ductive force, which does not enter the syntactical and semantical content of the norm itself. Deontic logical constraints do not apply to it as such. Regarding the former, a deontic sentence is true if it rightfully describes the meaning content of the norm. Typically, a norm does not state that some fact of the actual world is the case. It does not talk about facts at all. It only states that some agents (say, for returning to the example, some individuals in the capacity of citizens) are obliged to do this or that (say, to respect the duties of citizens) or are permitted, prohibited to do some other things. Thus, according to their proper sense, the truth conditions of deontic sentences do not go in the direction of facts. They go in the direction of the norms they express. And the norms do not talk about facts but instead about exigences about what the facts shall be. As a result, the deontic sentence “it is obligatory that p” is true not if p is the case in all relevant possible worlds. It is true if, in the actual world, there is a corresponding norm obligating that p in a given juridical, ethical, social code or other.

4. Two Recalcitrant Asymmetries in the Traditional Approach to Deontic Modalities

20What I shall say in what follows is not tantamount to belittling the magnificent and subtle work deontic logicians have done. Quite the contrary. It is merely the endeavor of discussing, in a neutral region and based on the sense content of norms as phenomenological analysis can reveal it, some major decisions that have led to the quasi-evidence that a de dicto formulation must be given to deontic sentences. The weird situation plaguing this approach from the very beginning is that there is no strict symmetry between modal alethic logic and deontic logic, i.e., between the de dicto interpretation of modal alethic logic and the de dicto interpretation of deontic sentences. Two well-known asymmetries are worth noting for my proposes.

21Firstly, the axiom that is included in the modal system called T or M, which expands the weaker system K, states that

 

1.    If it is necessary that p,
       then p is the case. (⊤)

 

22Clearly, this cannot be a theorem for deontic sentences in the de dicto interpretation, given that agency enters the situation and, thus, the power of choice for acting or not accordingly. In so being,

 

2.    If it is obligatory that p,
       then either p or not-p is the case. (⊤)

 

23In fact, the conclusion that p is the case is simply false by the internal logic of obligation as a command directed to someone with a power of choice and, thus, with a capacity to decide her behavior and be responsible for it. Indeed, if, for instance, a nomothetic sentence prescribes that citizens must abide by a certain law, it does not follow that it is a fact that every citizen abides by that law. In the maximal case, it could happen that nobody would abide by it. Thus, one cannot have a symmetry with 1. (Np → p), writing:

 

3.    Op → p (F)

 

25More attentive to the mentioned break of symmetry between alethic and deontic logic than Mally ever was, von Wright’s strategy amounts to a circumvention maneuver. Given that to pass from Np → p to Op → p is a conceptual impossibility cum fundamento in re, so to speak, because it elides the agency factor, he proposes to substitute the former by the weaker axiom for tautologies (t), stating that Nt → t, so that a weaker deontic axiom follows, namely Ot → t. However, the assumption that tautologies are obligatory is hardly understandable. Really, it does not make sense. Accordingly, von Wright reaches a second formula, ~O~t, which, as he writes, “seems not only to make sense but also to be true” as it “says that a contradictory state of affairs is not a state which ought to be the case” (von Wright, 1981, p. 159). As a result, for the alethic pair formed by Np → p and its weaker counterpart ~N~t, he gets the deontic formula ~O~t, which he generalizes to ~O~p, but not the strongest formula Op → p (von Wright, 1981, p. 160). Now, in my opinion, it is also hard to understand why one must say that contradictory states of affairs (viz., the negation of tautologies) “ought not” to be the case. Passing from what cannot be the case (an ontic impossibility) to what ought not to be the case (a deontic prohibition) seems to mirror as if in negative the naturalistic fallacy of moving from “is” to “ought-to-be”. Deontic predicates, like prohibitions, neither follow from nor apply to ontic impossibilities like contradictions. Contradictory states of affairs are not prohibited; they simply are impossible. Of course, what I say does not preclude the obvious principle that no norm shall oblige what is contradictory and, thus, impossible to fulfill. But the reverse is here the point: to overdetermine the realm of the ontically impossible with a deontic predicate as if they could overlap. They do not overlap. The impossible is wider than the non-obligatory (for instance, that “2 + 2 = 5”), and the non-obligatory does not coincide with the impossible (for instance, that “citizens are not obliged to leave their country” disobliges because not leaving the country is a positive constitutional right, not a contradiction). As a matter of fact, deontic prescriptions, obligations, as well as prohibitions are not framed in terms of tautological sentences. In addition, there is no existential generalization either: from the ontic impossibility of ~t to be the case, one cannot get the deontic non-existence of ~p, by means of the transitional formula ~O~p. As neither obligations nor prohibitions parallel the ontic modal truths of the necessary and the impossible, both p and ~p cannot be derived in the deontic realm.

26Nonetheless, there is something subtle and worth noting in von Wright’s thesis. One could expect that if a modified existential generalization is not obtainable, at least Pp would be deducible from the weaker formula ~O~p. Von Wright thinks not. As he writes, “Accepting the modified definitions of the notions of necessary and of sufficient condition, it is easily shown that ‘Pp → ~O~p’ is a theorem. If something may be, then it is not the case that its contradictory ought to be. […] ‘Op → ~O~p’ is another theorem”, but “‘~O~p → Pp’ is not a theorem” (von Wright, 1981, p. 166). Though, letting aside strict logical derivability, this seems strange. Suppose I drive a car in a foreign country on what appears to be a highway, accompanied by a friend from that land. Suddenly I feel unwell and think about stopping. I elliptically ask my friend, ‘Is it obligatory not to stop?’ He replies, ‘No, it is not obligatory not to stop.’ What should I conclude? Von Wright would say that permission to stop does not follow. Strictly, it does not follow, indeed. However, according to the meaning of the answer, ‘it is not obligatory not to stop’, the natural conclusion would be that it is permitted to stop. Therefore, it would follow that, on the road, there is no prohibition to stop, but permission both to stop and not to stop. In fact, if it were prohibited to stop, it would be obligatory not to stop. Since it is not obligatory not to stop, the conclusion is that it is not prohibited to stop and is therefore permitted, on the road, either to stop or not to stop. Whatever is not prohibited is permitted; whatever is beyond the set of all obligations is also permitted. This insight puts permission as a wider basis on which the whole edifice of obligations and prohibitions is built. Though, no existential generalization seems to mirror here the strong modal alethic formula Np → p. One only has Op → Pp → ~O~p, as von Wright rightly stresses, or something like (~O~p & P~p) → (Pp & P~p) – when freeing ~O~p from Op and taking it by itself – because the formula ((Op → ~O~p) & (~O~p & P~p)) → (Pp & P~p) would contain a contradiction in the antecedent – as a wide, non-formalizable, basic sense of permission the natural meaning of the expression suggests (I will return to this in a moment).

28Moreover, the way out suggested by Cochiarella seems to me not to work either, when one remains faithful to the basic sense of permission. In fact, for Cocchiarella, the way-out proposed amounts to modifying the false assertion that, if it is obligatory that p, then p is the case, by the weaker thesis that, if it is obligatory that p, then it is permitted that p. However, as I mentioned earlier, the core sense of permission entails that, if something is permitted, the contrary is also permitted: If it is permitted to smoke, it is permitted not to smoke; if it is permitted to walk on the streets, it is also permitted to not walk on the streets, and so on, under the condition that there is no express prohibition of one of the pairs of the alternative (for instance, if it is permitted not to harm others, it is not permitted to harm others either, because this latter is expressly prohibited).

29To see this clearly, suppose a world free from obligations and prohibitions. Now, insert in this world some positive permission to do p. From this newly inserted permission, it does not follow that all or some agents will do p. The only conclusion is that p, being now permitted, can be done or not done. One could retort that one permission without a background of prohibitions and obligations is redundant because what is neither prohibited nor obligatory is a matter of indifference and, thus, always optionally practicable. However, suppose that, in this world, a new institution is created, for instance, a state power. When the constitution establishes that citizens have permission to vote, this is a positive authorization to vote or not to vote, that is, to do or not do some action A to which there was no former background of obligations or prohibitions because there were no political institutions in which A could exist. With this permission to vote, something new enters the world that did not exist earlier. So, the permission is not redundant. By the same token, even when some permission is established against the backdrop of a general prohibition, this sense of optionality of positive permission comes to light. Modifying an example given by Brown, suppose that a mother prohibits her children from eating cookies and now voices one special permission to eat a cookie, that is, an exception that does not withdraw the previous prohibition. This new permission is neither an obligation to eat a cookie nor the nonexistence of an obligation not to eat cookies or the nonexistence of a prohibition to eat cookies. On the contrary, it is permission given to the children to choose between eating or not eating a cookie now. In so being, once more comes to light the sense of positive permission, which Brown names “explicit permission” and that, as he stresses, “has been difficult for simple formal treatments of deontic logic to make room, [and remains, thus,] a traditionally difficult notion to incorporate into deontic logic” (Brown, 2000, p. 95).

30Von Wright has long ago highlighted this sense of “strong” permission. It is worth quoting one of his accounts:

The dual of the formula ‘O(p & q) <–> Op & Oq,’ i.e., the distribution principle ‘P(p v q) <–> Pp v Pq,’ holds good of this notion of [weak] permittedness. This, however, does not correspond to the way in which permission is normally thought to be distributive over alternatives. If we are told that we may do this or that thing, we normally understand this to mean that we may do the one thing but also the other thing. The distribution principle, in other words, would seem to be ‘P(p v q) <–> Pp & Pq.’ But this principle goes with a different idea of permittedness from the one which obeys the interdefinition schema ‘P’ =_def ‘~O ~.’ We can call it a notion of strong permission. It is related to possibility (freedom) of choice between alternatives. (von Wright, 1981, p. 160)

31This sense of permission amounts, thus, to optionality, which would have to do not with the alethic modal operator of the possible but rather with the contingent. In fact, when permission is asserted in a free manner, neither governed by the operator of obligation nor limited by the operator of prohibition, it is trivial that,

 

4.    If it is permitted that p, then it is also permitted that not-p. (T)

 

32However, this is false in alethic modal logic because of the contradiction one gets when permission is substituted by possibility. In fact, it gives rise to a blatant contradiction and is always false. Indeed, while one can state, assuming von Wright’s “contingency principle” (i.e., the exclusion of ~P(A & ~A) as theorem), that

 

5.    Pp & P~p → P(p & ~p) (T)

 

the correspondent assertion for the possible in alethic modal logic is contradictory and thus false, namely that

 

6.    Mp & M~p → M(p & ~p) (F)

 

33The second problem to which the treatment of deontic expressions as modal operators is exposed comes from another long-known lack of symmetry with alethic modal logic. As I will stress very rapidly, the way it is usually countered also reveals a loss of sight for the strong sense of positive permission I just mentioned. In fact, while it is a theorem of alethic modal logic that

 

7.    If p is the case,
       then p is possible, (T)

 

the correspondent sentence in deontic logic is simply untrue. Suppose that p describes a horrendous murder. One cannot simply state that,

 

8.    If p is the case,
       then pis permitted. (F)

 

34Once more, the usual move, as Cocchiarella puts it, consists in “a revised counterpart” of 8., in which it is assumed that “in an ideal world it ought to be that what is the case ought to be permitted; […] in other words [the relevant alternative to 8.] is O(φ → OPφ)” (Cocchiarella, 1969, p. 9). This revision mirrors Brower’s axiom for alethic modal logic according to which, if p is the case, then it is necessary that it is possible that p (the system B, precisely after him). It is a perfectly understandable axiom: If something is the case, then necessarily, it must also be possible. However, its counterpart in deontic logic (obligatorily, if something is the case, then it is obligatory that it is permitted) is only valid in the asylum of the “ethically ideal world.” In a nutshell, one is moving again to an “ideal world” without agency, where only what is obligatorily permitted is actually the case, where permission is governed by obligation, and where there is no place for the sense of positive permission, which is more than the nonexistence of a prohibition or an obligation to the contrary: it is the very phenomenon of agency caught in its most original form.

5. The Structure of the Nomothetic Noema and De Re Modalities

35There is something intuitively strange, almost artificial, in the de dicto formulation of normative sentences. I contend that a phenomenological analysis of the sense-structure of the nomothetic noema will bring light to what sounds strange in the de dicto rendering. I also contend that it will provide an alternative and hopefully sounder formulation of the internal sense of norms.

36To begin with, there is a whole set of normative sentences that are hardly expressible by deontic operators. I am referring to norms that use the is_n and the has_n or are reducible to them. Consider, for instance, the example given by Reinach: “The legal capacity of a human being begins with the completion of birth,” which was the first article of the German Civil Code. This can be reformulated with an is_n: “The completion of birth is the beginning of the legal capacity of a human being.” Consider, again, the so many direct cases of is_n, such as when the French Constitution stipulates that “The President of the Republic is elected for five years […]” (Article 6). As it seems clear, one cannot put in it the deontic operators because the norm is neither an obligation nor a prohibition or permission. It rather imposes a status: President of the Republic, as well as other norms define what a citizen is, an ambassador, a husband, a person with legal capacity, and so on. It is in relation to these status-imposing norms, creating social personae, that deontic features are subsequently defined. Indeed, the subjects of deontic discourse are never plain individuals but social entities defined through these more basic imposition-status norms.

37One could perhaps argue that such imposition norms are reducible to a set of deontic predicates, namely a set of permissions, obligations, and prohibitions, Δ. Therefore, the term “President”, for instance, would be an abbreviation for the whole list of its deontic characteristics. In so being, “President” would be an umbrella name for a given set Δ^P of deontic predicates, which a complex formula could expressly and exhaustively refer to by Δ^P = (δp₁ & δp₂ & δp₃ & … & … δp_n), where δ stands for the several deontic modalities. Accordingly, is_n has_n norms would be reducible to δ norms. To talk about “The President of the Republic” would be, thus, a simple form of referring to the whole set of privileges, claim rights, powers, and immunities, to use here Hohfeld’s taxonomy, that defines what to be a president is. However, this seems hard to defend. Firstly, because for questions like “What is a President?” or “What is a husband?” one expects normative definitions such as “Is the supreme magistrate of the state” or “It is someone who got married” and not a list of δ-predicates. Secondly, because the introduction of new δ-predicates can alter the former conjunction of predicates in Δ, the suppression of revision of some of them, and nobody would say that the normative status-imposing concept of being a president or a husband had changed because of that.

38Though, there is a deeper problem with the de dicto formulation of deontic sentences. In the de dicto rendering, one finds not the norm itself but instead a nominalization of the norm. This is a second object, which is phenomenologically accounted for as something constituted by an intentional loop that goes from the objects directly intended through a norm to the norm itself as a new object of noematic reflection. With his usual sagacity, Thomas Aquinas had already pointed out that de dicto sentences are nominalizations, or singular propositions, as he calls them, contrary to the de re counterparts, which are either universal or particular, and so on, i.e., which are sentences that affirm or deny something about something as their transcendent object. He writes:

• 18 “Sciendum est autem quod omnes modales de dicto sunt singulares, eo quod modus praedicatur de hoc (...)

Now it must be known that all modalities de dicto are singular, by the fact that the mode is predicated on this or on that as of some singular. Now the modality de re is to be judged as universal, particular, indefinite, or singular, according to the subject of what it is said, as in non-modal propositions [de inesse]; whence “for every man, it is possible to run” is universal, and so of the others.18

39Returning now to what I said in the beginning about the status of the noema (see section 1, no. 2), it must be kept in mind that it is not the object itself to which one is intentionally turned but instead the sense or meaning through which some transcendent object is intended. In the intentional relationship, the sense remains unthematic in favor of the very object which is intended through it. In light of this intentional-transcendent feature of the noema, it is easy to see what an accurate description of the intentional structure of the nomothetic noemata would be: Some object is intended as having this or that status (citizen, husband, ambassador, etc.) and/or as bounded by this or that deontic modality so that the normative constraint is contained in the very propositional content of the noema instead of being a second-order predicate of it, which is only possible when the meaning is nominalized and taken as a new object of reflection. In so being, the formulae that respect this intentional directness to objects are, obviously, those that are articulated under the de re form. Further, the right move will consist in having in addition normative copulas incorporating in themselves the is_n or the has_n, as well as the deontic modalities is-prohibited, is-obligatory, is-permitted, etc. These latter operators can be altogether referred to by the general symbol isδ (where δ stands for a deontic copula).

40This move not only respects the intentional structure of normative intentionality but also opens the space of a first-order deontic logic incorporating quantifiers, a clear syntactical distinction between de dicto and de re formulations, things that have already been done, and the side-by-side use of is-δ and is_n or has_n copulas. Indeed, the intentional directness of norms to individuals or groups under this or that deontic status is easily accounted for by the construction “For all citizens…,” the deontic expression appearing now not as a modal operator but instead as a deontic normative copula: “For all citizens, it is obligatory to abide by the state’s laws.” Formalizing it, one gets not “O(∀_x) (Fx ⊃ Gx),” which is a de dicto formulation, but instead “(∀_x) (F_x ⊃ OG_x).” The quantifier determines the domain of the norm independently of the deontic predicate. This corresponds to an essential feature of normative intentionality, namely, the fact of being almost always definitely person-directed, to all or to some within a definite group, or even to a single person (in the latter case, one would have (∃_x) (OP_x & (x = a): There is someone that shall serve a 6-year prison sentence and that someone is “a,” say, John). On the contrary, the de dicto formulation is not rigidly person-directed. Stating, for keeping the same example, that it is obligatory that if x is a citizen, then x must abide by the state’s laws, O(∀_x) (F_x ⊃ G_x), gives the flank to naïve but still natural reasoning that, if x does not abide by the laws, then x is not a citizen, and is, therefore, beyond the reach of the normative obligation of abiding by the laws. None of this happens with the de re and normative copulas formulation because the application domain is fixed independently of the deontic operator. De dicto normative sentences are suited to abstract, universal principles, such as neminem laedere or suum cuique tribuere, which, as principles, are not person-directed. In fact, the good deontic formulation would be something like “It is obligatory that everyone gives to each one his due.” However, to transform that universal principle into an obligatory norm for every single person, the transition must be made to a formulation de re: “For me, it is obligatory to give each one what is due to him.” The same passage is required in the cases Hilpinen and MacNamara consider when discussing the deontic counterpart of the Barcan formula (Hilpinen & MacNamara, 2013, p. 53). Taking one of their examples, in a lifeboat overload with too many survivors, it is known that it is obligatory that someone leaves the boat (O(∃_x) (Px)). However, this formulation does not work because it does not generate a specific obligation for anyone on the boat. It will only work when, let me suppose, the survivors find a selection criterion (say, those severely injured and with no hope of survival must leave the boat) so that the former de dicto sentence is transformed into a de re sentence: “Smith shall leave the boat” ((∃_x) (OP_x & x = a)).

41In accordance, one should write, for instance,

9.    All citizens have_n political rights and duties,

10.  For every X, X isδ to do Y.

42Noematically seen, some transcendent object-about-which (Gegenstand worüber) is intended in some normative manner (im Wie), as obliged, prohibited, and so on, so that the propositional meaning (Satz) contains in itself the reference to some determined object and the way it is normatively intended. The bottom of the Sinn or noematic sense is not, thus, a non-modal proposition asserting some state of affairs, to which is applied a nominalizing transformation, and then some deontic predicate to the dictum as such, as Ockham put it. There is not an is-copula at the bottom of the normative Sinn. Therefore, one cannot construe the situation as if there were some state of affairs referred to by a proposition that, when nominalized, will receive a deontic predicate: For instance, that driving on the left side of the road is prohibited (in Italy) or obligatory (in England). On the contrary, at the very bottom of the core sense of a nomothetic noema, there is always a normative sense and not a supposedly more basic descriptive sense. This latter situation is certainly true for the relationship between non-modal and modal alethic logics, both in the de dicto and de re formulations of modalities. In fact, one can always suppress the modal predicate and obtain an assertoric sentence. I contend that, from the standpoint of phenomenological analysis, this does not hold for the intentionality proper to normative sentences, which have instead irreducible normative copulas (both is_n-has_n and is_δ) belonging to their basic sense.

43If I am right, the two paradoxes plaguing deontic logic from the very beginning disappear. Indeed, existential generalization is no longer possible. Instead, one must simply state:

 

11.    If all citizens are obliged to abide by the laws of the state,
         Then, some citizens are obliged to abide by the laws of the state.

 

44The same is the case with the passage from fact to permission because the normative copula does not derive from a more basic is-copula. In fact, from

 

12.    A kills his fellowman B,

 

one gets absolutely nothing as a conclusion regarding the basic normative copulas is-has_n or isδ.

45Now, if one asks what is intended by means of the nomothetic noema, the answer that comes to mind will be that what is meant is a normative state of affairs. The answer mirrors the case of thetic noemata, where some ontic state of affairs is intended and possibly given. However, this obvious answer needs qualification. The “objects” of a nomothetic noema are not facts. For example, saying that it is a normative state of affairs that smoking in this room is prohibited is an elusive assertion. The authentic sentence would be that people are prohibited from smoking while they stay in this room. In short, the nomothetic noema does not have some fact as its “object,” qualifying it as obligatory, prohibited, and the like. Rather, it is a device for conditioning the actual behavior of agents endowed with a power of choice. Thus, instead of intending a Sachverhalt, a state of affairs, it is directed to a Verhaltensentscheidung or a Verhaltensverlauf, to a decision or course of behavior, if I am allowed to put it this way. Returning to our old Latin expressions, we should say that it is not a factum, but rather a facturus what the nomothetic noema intends, that is, not something that is already done, acted upon, but the being about to do, the agency itself in the very process of its accomplishment. Von Wright’s way of prefixing deontic operators to act-predicates and not propositional expressions is very near to this understanding.

46At the bottom of the whole issue and from a phenomenological point of view, one would have to say that the basic phenomenon of free agency supports the normative domain. Deontic logic does not have to worry about this. However, the question is pressing and has to do with understanding the normative domain by means of a clarification of its original form. This is a phenomenological and genetic question. In my view, the normative phenomenon begins with the imposition of obligations and prohibitions, i.e., with something like an original act of institution imposing the fact that there are obligations, !O, and there are prohibitions, !F. However, obligations and prohibitions are only understandable if at their basis lies a freedom that is describable by the strong sense of permission: !P. Indeed, imposing obligations or prohibitions is only comprehensible under this background, and they are thus limitations on that basic freedom of choice. This is the reason why norms are directed to actual behavior and not to states of affairs. How do !O and !F, which open the normative domain, begin? The usual answer is that they come from some “normative authority.” This answer is short, however. The question returns: where does this authority come from, to impose directions for the basic freedom of agency, expressed in permission to do and not to do (optionality)? One would have to trace its institution back to several different processes genetically. Obligations and prohibitions, as well as rights and duties, can arise from mutual agreements (promises, contracts, etc.) or the consent given to some kind of authority (particularly political). However, they can also come from a “mute” internalization of a customary code that builds the cultural identity of individuals. There are multiple ways in which normative authority can be established. However, a normative authority of any kind would not exist if, at its base, did not lie the phenomenon of agency.

47The validity of norms endures over time. But their effectiveness, what makes them effective norms in each case, is their capacity to be, as long as they are valid, conditioners of each particular agent’s actual behavior. Thus, by means of norms, one knows behaviors and knows them as right or wrong according to some particular normative code. Unlike the thetic noema, whose Satz proves wrong in case a transcendent state of affairs does not verify it, the validity of a norm is not affected by a divergent course of behavior. Rather, it is that behavior itself that is known as wrongdoing or transgression in light of the relevant norm so that the valid norm remains effective in a strong sense, as it continues to be the standard from which behavior is known and judged as regular or irregular, even for the one who does it. The efficacy of a norm is not only the fact that it generates a decision to behave in accordance, which may not happen. Above all, its efficacy lies in the circumstance that is a standard for judging behavior as conforming or deviant. The other way around, when a norm loses its effectiveness for knowing and deciding a course of behavior while staying formally valid (for instance, some positive state law that was not repealed), it is no longer a true norm to the extent that it has fallen into desuetude, as it is usually said. It no longer motivates or functions as a standard for knowing behavior. This happens very often with customary law, where validity and efficacy are joined together. In such a case, one could say that the norm has no longer veritas de re, as Amedeo Conte puts it when he remarks that there is a “[…] true ‘de re’ to be predictable of norms of anapophantic semiotic entities, that is, of semiotic entities of which true de dicto is not predictable” (Conte, 2016, p. 26).

48Let me briefly finish with the other elements of the noema that go beyond the sense core and its intentional X. I am referring to the nomothetic characters and modes of givenness.

49Regarding the noematic characters, while in their propositional content, nomothetic noemata use deontic language and express obligations, prohibitions, and so on, their deontic force, or ductive force, as I call it, can be quite variegated. I am referring to how they impact the agent’s freedom of choice. The important feature is that nomothetic noemata are delimiters of different spaces of freedom as they diminish or increase the scope of choice. Indeed, in a strong sense, nomothetic noemata are configurative of a realm of free agency, which they positively determine in various manners. A state law, which is enacted with a mandatory or peremptory force, is an extreme case. However, there are behavior injunctions, i.e., norms, that impact the agent’s choice with a lesser ductive force, such as the cases of recommendations, warnings, conseils, or pieces of advice. They can be, and are very often, formulated with deontic strong language in their propositional content. Nevertheless, there is a huge difference between, for example, hard state law and the recommendations of the rules of etiquette, or between a recommendation passed by an authority, which must be considered and responded to, and a simple piece of advice given by a fellow man. One must not meld these two aspects. Regarding their propositional content, nomothetic noemata express obligations, permissions, and so on. However, regarding the constitution of a space of choice, the way they impact decision-making is quite differentiated and constitutive of diverse grades of freedom. This is an important point that is blurred in the de dicto formulation of deontic language because the position of the modal operator as a predicate of the dictum conveys the illusion that it is also expressing ductive force. However, the ductive force (as well as the objectifying quality of thetic acts) is normally not expressed in the sense content, except for circumlocutory constructions such as “It is my advice to you that…,” “I strongly recommend that you…,” “I order you to…” and so on. Normally, this is not the case, though, since the addressee knows what kind of ductive force the normative content implies. Consider a Turkish precept of etiquette: For a guest, it is mandatory to say “health to your hand” (elinize sağlik) to the person who prepared the meal. However, this propositional obligation is no more than a strong recommendation when ductive force is considered.

50This last point brings me to the final issue I will refer to, namely, the manners of givenness. Of course, I am not referring to the differences, for a given object, among bodily presence, Leibhaftigkeit, the several varieties of indirect givenness, and deception, Täuschung, on the other extreme, i.e., the non-coincidence between what is intended and what is intuitively given. These are manners of givenness that belong to the thetic noemata, where a transcendent thing or a state of affairs is intentionally meant. On the contrary, I am referring to the manner norms are recognized as genuinely binding, or not, for the subject who must act in accordance with them. In short, I am referring to the difference between authenticity and unauthenticity in the way norms are given to the subject to which they appear. Indeed, like Kelsen’s Grundnorm, the normativity of norms must be presupposed, i.e., the commitment to abide by them as positive norms. Individuals recognize plenty of normative codes as internally binding: moral and religious codes, rules of social behavior, state laws, and so on. As Kelsen put it, and as I stressed before, this internal commitment to a set of diverse normative codes counts as the “moral ideology” of an individual. The other way around, when a given normative code appears as unauthentic, it is viewed as a device of coercive power that is perhaps still respected because of the fear of sanctions but not as a genuine, authentic set of normative rules to which one is committed to. They are true norms because they have validity and efficacy. However, despite their veracitas in re, they do not appear as authentic or genuine normative codes. Recalling Hart’s famous account, it is the difference between being obliged to (by external power) and feeling obliged to do something (internal obligation), even when one does not. This is the basic difference in the mode of the givenness of norms. Some of them are accepted by an express commitment to abide by them; others, even in the cases where an individual must comply, appear to him as unauthentic, i.e., without the power of triggering an internal adherence. They are, on the contrary, felt as alien and strange. Once more, on the path opened by Conte, one could say that such norms appear as having no authenticitas in re.

51Are there meta-normative and absolute standards for determining the authenticity and non-authenticity of positive norms, as if there was a true normativity (in Conte’s sense of de re) as the correlate of authentic humanity? Or should we surrender instead to moral relativism and subjectivism?

52This is a huge question to which I will answer with… silence.