Brian Leiter

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.

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 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

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

Against the two dominant strands in the secondary literature on Nietzsche's political philosophy - one attributing to Nietzsche a kind of flat-footed commitment to aristocratic forms of social ordering, the other denying that Nietzsche has any political philosophy at all-Tamsin Shaw stakes out a new and surprising position: namely, that Nietzsche was very much concerned with the familiar question of the moral or normative legitimacy of state power, but was skeptical that with the demise of religion, it would be possible to achieve a practically effective normative consensus about such legitimacy that was untainted by the exercise of state power itself. Although, as I will argue, there are reasons to be quite skeptical that Nietzsche was interested in anything like these questions, Shaw has laid down a clear and invigorating challenge to existing scholarship on Nietzsche's politics, and it is one worth meeting.

This chapter offers a new interpretation of Nietzsche’s argument for moral skepticism, an argument that should be of independent philosophical interest as well. On this account, Nietzsche offers a version of the argument from moral disagreement, but, unlike familiar varieties, it does not purport to exploit anthropological reports about the moral views of exotic cultures, or even garden-variety conflicting moral intuitions about concrete cases. Nietzsche, instead, calls attention to the single most important and embarrassing fact about the history of moral theorizing by philosophers over two millennia: namely, that no rational consensus has been secured on any substantive, foundational proposition about morality. Persistent and apparently intractable disagreement on foundational questions, of course, distinguishes moral theory from inquiry in the sciences and mathematics. According to Nietzsche, the best explanation for this disagreement is that, even though moral skepticism is true, philosophers can still construct valid dialectical justifications for moral claims because the premises of different justifications will answer to the psychological needs of at least some philosophers and thus be deemed true by some of them. The chapter concludes by considering various attempts to defuse this abductive argument for scepticism.

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

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.

This article revisits the author’s influential account of Nietzche as a philosophical naturalist. It identifies the sources of Nietzsche’s position in the German naturalism of the mid-nineteenth century, in particular the work of Friedrich Lange. His naturalism is, however, “speculative” in that he postulates causal mechanisms not confirmed by science. Nietzsche’s ambition to explain morality naturalistically coexists with a “therapeutic” ambition to induce some readers to escape from morality. The article also addresses doubts that might arise against reading Nietzsche as a naturalist.

Daybreak marks the arrival of Nietzsche's 'mature' philosophy and is indispensable for an understanding of his critique of morality and 'revaluation of all values'. This volume presents the distinguished translation by R. J. Hollingdale, with a new introduction that argues for a dramatic change in Nietzsche's views from Human, All Too Human to Daybreak, and shows how this change, in turn, presages the main themes of Nietzsche's later and better-known works such as On the Genealogy of Morality. The main themes of Daybreak are located in their intellectual and philosophical contexts: in Nietzsche's training as a classical philologist and his fascination with the Sophists and Thucydides; in the moral philosophies of Kant and Schopenhauer, which are the central foci of Nietzsche's critique of morality; and in the German Materialist movement of the 1850s and after, which shaped Nietzsche's conception of persons. The edition is completed by a chronology, notes and a guide to further reading.

To say that the law is indeterminate is to say that the class of legal reasons is indeterminate. The Class, in turn, consists of four components: 1. Legitimate sources of law ; 2. Legitimate interpretive operations that can be performed on the sources in order to generate rules of law ; 3. Legitimate interpretive operations that can be performed on the facts of record in order to generate facts of legal significance ; and 4. Legitimate rational operations that can be performed on facts and rules of law to finally yield particular decisions

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

The latest volume in the Oxford Readings in Philosophy series, this work brings together some of the best and most influential recent philosophical scholarship on Nietzsche. Opening with a substantial introduction by John Richardson, it covers: Nietzsche's views on truth and knowledge, his 'doctrines' of the eternal recurrence and will to power, his distinction between Apollinian and Dionysian art, his critique of morality, his conceptions of agency and self-creation, and his genealogical method. For each of these issues, the papers show Nietzsche's continuing philosophical importance. Giving a clear and accessible overview, while retaining an analytical philosophical approach throughout, this volume is essential reading for all students of Nietzsche.