Brian Leiter

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..

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?

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.

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

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

Serious doubts about nonreductive materialism — the orthodoxy of the past two decades in philosophy of mind — have been long overdue. Jaegwon Kim has done perhaps the most to articulate the metaphysical problems that the new breed of materialists must confront in reconciling their physicalism with their commitment to the autonomy of the mental. Although the difficulties confronting supervenience, multiple-realizability, and mental causation have been recurring themes in his work, only mental causation — in particular, the specter of epiphenomenalism — has really captured the interest of philosophers in general in recent years.This growing attention has spawned a large body of literature, which it is not our aim here to explore or assess. Rather, we want to call attention to what we believe is a new and quite different argumentative strategy against epiphenomenalism voiced in some recent articles by Tyler Burge and Stephen Yablo. Each has challenged two central assumptions of the existing mental causation debate.

Legal philosophers have been preoccupied with specifying the differences between two systems of normative guidance that are omnipresent in all modern human societies: law and morality. Positivists propose a solution to this ‘Demarcation Problem’ according to which the legal validity of a norm cannot depend on its being morally valid, either in all or at least some possible legal systems. The proposed analysis purports to specify the essential and necessary features of law in virtue of which this is true. Yet, the concept of law is an ‘artefact concept’, that is, a concept that picks out a phenomenon that necessarily owes its existence to human activities intended to create it. Artefact concepts, even simple ones like ‘chair’, are notoriously resistant to analyses in terms of their essential attributes, precisely because they are hostages to human ends and purposes, and also cannot be individuated by their natural properties. Twentieth-century philosophy of science dealt with a kindred Demarcation Problem: how to demarcate epistemically reliable forms of inquiry from epistemically unreliable ones, that is, how to demarcate science from pseudo-science or nonsense. Like the legal philosophers, they sought to identify the essential properties of a human artefact (namely, science). They failed, and spectacularly so, which led some philosophers to wonder, ‘Why does solving the Demarcation Problem matter?’ This essay develops the lessons for legal philosophy from this episode and its philosophical aftermath, and concludes that, in order not to become embroiled in pointless Fullerian speculations about the effects of jurisprudential doctrines on behaviour, we should abandon the Demarcation Problem in jurisprudence

Contemporary moral psychology has been dominated by two broad traditions, one usually associated with Aristotle, the other with Kant. The broadly Aristotelian approach emphasizes the role of childhood upbringing in the development of good moral character, and the role of such character in ethical behavior. The broadly Kantian approach emphasizes the role of freely chosen conscious moral principles in ethical behavior. We review a growing body of experimental evidence that suggests that both of these approaches are predicated on an implausible view of human psychology. This evidence suggests that both childhood upbringing and conscious moral principles have extraordinarily little impact on people's moral behavior. This paper argues that moral psychology needs to take seriously a third approach, derived from Nietzsche. This approach emphasizes the role of heritable psychological and physiological traits in explaining behavior. In particular, it claims that differences in the degree to which different individuals behave morally can often be traced back to heritable differences between those individuals. We show that this third approach enjoys considerable empirical support - indeed that it is far better supported by the empirical data than are either the Aristotelian or Kantian traditions in moral psychology.

In teaching jurisprudence, I typically distinguish between two different families of theories of adjudication—theories of how judges do or should decide cases. “Formalist” theories claim that the law is “rationally” determinate, that is, the class of legitimate legal reasons available for a judge to offer in support of his or her decision justifies one and only one outcome either in all cases or in some significant and contested range of cases ; and adjudication is thus “autonomous” from other kinds of reasoning, that is, the judge can reach the required decision without recourse to nonlegal normative considerations of morality or political philosophy. I also note that “formalism” is sometimes associated with the idea that judicial decision-making involves nothing more than mechanical deduction on the model of the syllogism—Beccaria, for example, expresses such a view. I call the latter “Vulgar Formalism” to emphasize that it is not a view to which anyone today cares to subscribe.

The seven original essays included in this volume from 2000, written by some of the world's most distinguished moral and legal philosophers, offer a sophisticated perspective on issues about the objectivity of legal interpretation and judicial decision-making. They examine objectivity from both metaphysical and epistemological perspectives and develop a variety of approaches, constructive and critical, to the fundamental problems of objectivity in morality. One of the key issues explored is that of the alleged 'domain-specificity' of conceptions of objectivity, i.e. whether there is a conception of objectivity appropriate for ethics that is different in kind from the conception of objectivity appropriate for other areas of study. This volume considers the intersection between objectivity in ethics and objectivity in law. It presents a survey of live issues in metaethics, and examines their relevance to theorizing about law and adjudication.

Evolutionary biology – or, more precisely, two (purported) applications of Darwin's theory of evolution by natural selection, namely, evolutionary psychology and what has been called human behavioral biology – is on the cusp of becoming the new rage among legal scholars looking for interdisciplinary insights into the law. We argue that as the actual science stands today, evolutionary biology offers nothing to help with questions about legal regulation of behavior. Only systematic misrepresentations or lack of understanding of the relevant biology, together with far-reaching analytical and philosophical confusions, have led anyone to think otherwise. Evolutionary accounts are etiological accounts of how a trait evolved. We argue that an account of causal etiology could be relevant to law if (1) the account of causal etiology is scientifically well-confirmed, and (2) there is an explanation of how the well-confirmed etiology bears on questions of development (what we call the Environmental Gap Objection). We then show that the accounts of causal etiology that might be relevant are not remotely well-confirmed by scientific standards. We argue, in particular, that (a) evolutionary psychology is not entitled to assume selectionist accounts of human behaviors, (b) the assumptions necessary for the selectionist accounts to be true are not warranted by standard criteria for theory choice, and (c) only confusions about levels of explanation of human behavior create the appearance that understanding the biology of behavior is important. We also note that no response to the Environmental Gap Objection has been proffered. In the concluding section of the article, we turn directly to the work of Owen Jones, a leading proponent of the relevance of evolutionary biology to law, and show that he does not come to terms with any of the fundamental problems identified in this article

Nietzsche holds that people lack freedom of the will in any sense that would be sufficient for ascriptions of moral responsibility; that the conscious experience we have of willing is actually epiphenomenal with respect to the actions that follow that experience; and that our actions largely arise through non-conscious processes (psychological and physiological) of which we are only dimly aware, and over which we exercise little or no conscious control. At the same time, Nietzsche, always a master of rhetoric, engages in a “persuasive definition” (Stevenson 1938) of the language of “freedom” and “free will,” to associate the positive valence of these terms with a certain Nietzschean ideal of the person unrelated to traditional notions of free will.

General jurisprudence-that branch of legal philosophy concerned with the nature of law and adjudication-has been relatively unaffected by the "naturalistic" strains so evident, for example, in the epistemology, philosophy of mind and moral philosophy of the past forty years. This paper sketches three ways in which naturalism might affect jurisprudential inquiry. The paper serves as a kind of precis of the main themes in my book NATURALIZING JURISPRUDENCE: ESSAYS ON AMERICAN LEGAL REALISM AND NATURALISM IN LEGAL PHILOSOPHY (Oxford University Press, 2007).