Brian Leiter

Marx did not have a normative theory, that is, a theory that purported to justify, discursively and systematically, his normative opinions, to show them to be rationally obligatory or objectively valid. In this regard, Marx was obviously not alone: almost everyone, including those who lead what are widely regarded as exemplary ‘moral’ lives, decide and act on the basis of normative intuitions and inclinations that fall far short of a theory. Yet self-proclaimed Marxists like G. A. Cohen and Jurgen Habermas have reintroduced a kind of normative theory into the Marxian tradition that Marx himself would have ridiculed. This essay defends Marx’s position and tries to explain the collapse of Western Marxism into bourgeois practical philosophy, i.e., philosophizing about what ought to be done that is unthreatening to capitalist relations of production.

The essay offers a philosophical reconstruction of Nietzsche’s theory of the will, focusing on (1) Nietzsche’s account of the phenomenology of “willing” an action, the experience we have which leads us (causally) to conceive of ourselves as exercising our will; (2) Nietzsche’s arguments that the experiences picked out by the phenomenology are not causally connected to the resulting action (at least not in a way sufficient to underwrite ascriptions of moral responsibility); and (3) Nietzsche’s account of the actual causal genesis of action. Particular attention is given to passages from Daybreak, Beyond Good and Evil and Twilight of the Idols and a revised version of my earlier account of Nietzsche’s epiphenomenalism is defended. Finally, recent work in empirical psychology (Libet, Wegner) is shown to support Nietzsche’s skepticism that our “feeling” of will is a reliable guide to the causation of action

Introduction: From legal realism to naturalized jurisprudence -- A note on legal indeterminacy -- Part I. American legal realism and its critics -- Rethinking legal realism: toward a naturalized jurisprudence (1997) -- Legal realism and legal positivism reconsidered (2001) -- Is there an "American" jurisprudence? (1997) -- Postscript to Part I: Interpreting legal realism -- Part II. Ways of naturalizing jurisprudence -- Legal realism, hard positivism, and the limits of conceptual analysis (1998, 2001) -- Why Quine is not a postmodernist (1997) -- Beyond the Hart/Dworkin debate: the methodology problem in jurisprudence (2003) -- Part III. Naturalism, morality, and objectivity -- Moral facts and best explanations (2001) -- Objectivity, morality, and adjudication (2001) -- Law and objectivity (2002).

This essay offers an interpretation and partial defense of Nietzsche's idea that moralities and moral judgments are “sign-languages” or “symptoms” of our affects, that is, of our emotions or feelings. According to Nietzsche, as I reconstruct his view, moral judgments result from the interaction of two kinds of affective responses: first, a “basic affect” of inclination toward or aversion from certain acts, and then a further affective response to that basic affect. I argue that Nietzsche views basic affects asnoncognitive, that is, as identifiable solely by how they feel to the subject who experiences the affect. By contrast, I suggest that meta-affects sometimes incorporate acognitivecomponent like belief. After showing how this account of moral judgment comports with a reading of Nietzsche's moral philosophy that I have offered in previous work, I conclude by adducing philosophical and empirical psychological reasons for thinking that Nietzsche's account of moral judgment is correct.

Shapiro has recently argued that Dworkin posed a new objection to legal positivism in Law's Empire, to which positivists, he says, have not adequately responded. Positivists, the objection goes, have no satisfactory account of what Dworkin calls “theoretical disagreement” about law, that is, disagreement about “the grounds of law” or what positivists would call the criteria of legal validity. I agree with Shapiro that the critique is new, and disagree that it has not been met. Positivism can not offer an explanation that preserves the “face value” of theoretical disagreements, because the only intelligible dispute about the criteria of legal validity is an empirical or “head count” dispute, i.e., a dispute about what judges are doing, and how many of them are doing it. Positivism, however, has two other explanations for theoretical disagreement, which “explain away” rather than preserve the “face value” disagreement. According to positivists, either theoretical disagreements are disingenuous, in the sense that the parties, consciously or unconsciously, are really trying to change the law, that is, they are trying to say, as Dworkin puts it, “what it should be” not “what the law is”; or they are simply in error, that is, they honestly think there is a fact of the matter about what the grounds of law are, and thus what the law is, in the context of their disagreement, but they are mistaken, because, in truth, there is no fact of the matter about the grounds of law in this instance precisely because there is no convergent practice of behavior among officials constituting a Rule of Recognition on this point. The “Disingenuity” and “Error Theory” accounts of theoretical disagreement are explored, with attention to the theoretical desiderata at stake in choosing between competing explanatory theories. Particular attention is given to the best explanation for Riggs v. Palmer in light of the actual historical context of the decision and other opinions by the Riggs judges in contemporaneous cases

Both an introduction to Nietzsche’s moral philosophy, and a sustained commentary on his most famous work, On the Genealogy of Morality, this book has become the most widely used and debated secondary source on these topics over the past dozen years. Many of Nietzsche’s most famous ideas - the "slave revolt" in morals, the attack on free will, perspectivism, "will to power" and the "ascetic ideal" - are clearly analyzed and explained. The first edition established the centrality of naturalism to Nietzsche’s philosophy, generating a substantial scholarly literature to which Leiter responds in an important new Postscript. In addition, Leiter has revised and refreshed the book throughout, taking into account new scholarly literature, and revising or clarifying his treatment of such topics as the objectivity of value, epiphenomenalism and consciousness, and the possibility of "autonomous" agency

The “naturalistic turn” that has swept so many areas of philosophy over the past three decades has also had an impact in the last decade in legal philosophy. Methodological naturalists (M-naturalists) view philosophy as continuous with empirical inquiry in the sciences. Some M-naturalists want to replace conceptual and justificatory theories with empirical and descriptive theories; they take their inspiration from more-or-less Quinean arguments against conceptual analysis and foundationalist programs. Other M-naturalists retain the normative and regulative ambitions of traditional philosophy, but emphasize that it is an empirical question what normative advice is actually useable and effective for creatures like us. Some M-naturalists are also..

This is my contribution to a symposium on my book Why Tolerate Religion?, in which I respond to essays by François Boucher and Cécile Laborde, Frederick Schauer, Corey Brettschneider, and Peter Jones. I clarify and revise my view of the sense in which some religious beliefs are “insulated from reasons and evidence” in response to the criticisms of Boucher and Laborde, but take issue with other aspects of their critique. I defend most of my original argument against utilitarian and egalitarian objections from, respectively, Schauer and Brettschneider. I also discuss and defend the “No Exemptions” approach to conscientious objection to neutral laws of general applicability against a variety of objections, arguing, in particular, that my view is probably not very different from that of Jones.

Do moral properties figure in the best explanatory account of the world? According to a popular realist argument, if they do, then they earn their ontological rights, for only properties that figure in the best explanation of experience are real properties. Although this realist strategy has been widely influential—not just in metaethics, but also in philosophy of mind and philosophy of science—no one has actually made the case that moral realism requires: namely, that moral facts really will figure in the best explanatory picture of the world. This issue may have been neglected in part because the influential dialectic on moral explanations between philosophers Gilbert Harman and Nicholas Sturgeon has focused debate on whether moral facts figure in relevant explanations. Yet as others have noted, explanatory relevance is irrelevant when it comes to realism: after all, according to the popular realist argument, it is inference to the best explanation of experience that is supposed to confer ontological rights. I propose to ask, then, the relevant question about moral explanations: should we think that moral properties will figure in the best explanatory account of the world?

The American Legal Realists, as I read them, are tacit legal positivists: they presuppose views about the criteria of legality that have affinities with positivist accounts of law in the sense that they employ primarily pedigree tests of legal validity. Ever since Ronald Dworkin's well-known critique of H.L.A. Hart's positivism a generation ago, however, it has been hotly contested whether there is anything about positivism as a legal theory that requires that tests of legal validity be pedigree tests. So-called Soft or Inclusive versions of positivism are willing to relax the restrictions on the content of a Rule of Recognition to admit non-pedigree criteria of legal validity; Hard or Exclusive versons of positivism deny that such a move is compatible with the central commitments of positivism. Hard Positivism, of which Joseph Raz has been the leading proponent, thus competes with various Soft Positivisms, defended by, among others, Coleman, Lyons, Soper, Waluchow, and now, explicitly, Hart himself in the “Postscript.” If the Realists are positivists, as I claim, then it cannot be the case that Soft Positivism is a genuinely positivistic doctrine. But there is more at stake here than just labels. Realist arguments for the indeterminacy of law—arguments central to the whole Realist enterprise—depend crucially on their tacit Hard Positivism. If, in fact, positivism has a more relaxed view of the criteria of legality than Hard Positivism supposes, then Realist arguments depend on unsound tacit premises about legal validity. What is at stake, then, is not whether Realists should be called “Positivists” or merely “Hard Positivists,” but whether their underlying view of the criteria of legality is sound. It can only be so if the best arguments favor Hard Positivism