Mark Greenberg

In this paper, I argue that there is a picture of how law works that most legal theorists are implicitly committed to and take to be common ground. This Standard Picture (SP, for short) is generally unacknowledged and unargued for. SP leads to a characteristic set of concerns and problems and yields a distinctive way of thinking about how law is supposed to operate. I suggest that the issue of whether SP is correct is a fundamental one for the philosophy of law, more basic, for example, than the issue that divides legal positivists and anti-positivists, at least as the latter issue is ordinarily understood. The goals of the paper are fourfold: 1) to identify and articulate in some detail the Standard Picture; 2) to show that SP is widely held and has important consequences for other debates in the philosophy of law; 3) to show that SP leads to a serious theoretical problem; 4) to sketch an alternative picture that promises to avoid this problem. I emphasize the modesty of these goals in one respect. I make no claim to refute SP or to fully develop and defend an alternative picture.

In this paper, I criticize an influential understanding of naturalization according to which work on traditional problems in the philosophy of law should be replaced with sociological or psychological explanations of how judges decide cases. W.V. Quine famously proposed the “naturalization of epistemology.” Quine argued that we should replace certain traditional philosophical inquiries into the justification of our beliefs with empirical psychological inquiry into how we actually form beliefs. In a prominent series of papers and a forthcoming book, Brian Leiter has raised the intriguing idea that Quine’s naturalization of epistemology is a useful model for philosophy of law. I examine Quine’s naturalization of epistemology and Leiter’s suggested parallel. I argue that the parallel does not hold up. I show that, granting Leiter’s substantive assumption that the law is indeterminate, there is no philosophical confusion or overreaching in the legal case that is parallel to the philosophical overreaching of foundationalism in epistemology. Moreover, if we take seriously Leiter’s analogy between, on the one hand, the justification of belief in scientific theories and, on the other, the justification of decisions in legal cases, the result is almost the opposite of what Leiter suggests. The closest parallel in the legal case to Quine’s position would be the rejection of the philosophical positions that lead to the indeterminacy thesis. Finally, the conclusion that law is indeterminate could not establish the bankruptcy of philosophical investigation into the relation between the grounds of law and the content of the law. After all, the argument for that conclusion depends on a philosophical account of the relation between the grounds of law and the content of law. The argument therefore presupposes that that relation is an appropriate subject for philosophical inquiry.