Brian Leiter

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

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).

Ronald Dworkin describes an approach to how courts should decide cases that he associates with Judge Richard Posner as a Chicago School of anti-theoretical, no-nonsense jurisprudence. Since Professor Dworkin takes his own view of adjudication to be diametrically opposed to that of the Chicago School, it might seem fair, then, to describe Dworkin's own theory as an instance of pro-theoretical, nonsense jurisprudence. That characterization is not one, needless to say, that Professor Dworkin welcomes. Dworkin describes his preferred approach to jurisprudential questions, to be sure, as theoretical, in opposition to what he calls the practical orientation of the Chicago School. But while there is a real dispute between Dworkin and Posner, it is not one illuminated by the contrast between theory and practice. It is, rather a dispute about the kind of theory that is relevant and illuminating when it comes to law and adjudication. And the fault line marked by this dispute is profound indeed, one that extends far beyond Dworkin and Posner and has a venerable and ancient history. I shall describe it, instead, as a dispute between Moralists and Realists, between those whose starting point is a theory of how things (morally) ought to be versus those who begin with a theory of how things really are. The Lecture endeavors to show that our contemporaries, Ronald Dworkin and Richard Posner, are reenacting a version of the dispute between the paradigmatic philosophical moralist Plato and the paradigmatic historical realist Thucydides.

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.

Any reader of Foucault's corpus recognizes fairly quickly that it is animated by an ethical impulse, namely, to liberate individuals from a kind of oppression from which they suffer. This oppression, however, does not involve the familiar tyranny of the Leviathan or the totalitarian state; it exploits instead values that the victim of oppression herself accepts, and which then leads the oppressed agent to be complicit in her subjugation. It also depends, crucially, on a skeptical thesis about the epistemology of the social sciences. It is this conjunction of claims-that individuals oppress themselves in virtue of certain moral and epistemic norms they accept-that marks Foucault's uniquely disturbing contribution to the literature whose diagnostic aim is, with Max Weber, to understand the oppressive character of modernity, and whose moral aim is, with the Frankfurt School, human liberation and human flourishing. I offer here both a reconstruction of Foucault's project - focusing on the role that ethical and epistemic norms play in how agents subjugate themselves - and some modestly critical reflections on his project, especially the weaknesses in his critique of the epistemic standing of the human sciences.

“The Routledge [series] is designed to introduce students to classic works of philosophy. Brian Leiter’s Nietzsche on Morality does that, and much more. The book offers a complete commentary of On the Genealogy of Morality, but it also articulates a comprehensive and original interpretation of Nietzsche’s critique of morality. The product is an exceptionally clear and cohesive account of philosophical views known neither for their clarity nor their cohesiveness…. “The distinction, and the chief merit, of Leiter’s account is its emphasis on the naturalism of Nietzsche’s approach to morality. Leiter may not quite be the first to portray Nietzsche as a naturalist, but his characterization of Nietzschean naturalism in connection with morality is the most systematic and compelling to date…. “In general, the book offers one of the most comprehensive and compelling interpretations of Nietzsche’s critique of morality…. With its distinctive emphasis on naturalistic themes, it forms a very significant contribution to the study of Nietzsche and is poised to become a work of reference in the field. Indeed, even the criticisms I have raised about this interpretation owe much to the exceptional clarity and cogency with which it is articulated.” --Bernard Reginster (Brown University), writing in Notre Dame Philosophical Review, January 2, 2003 (http://ndpr.icaap.org/content/archives/2003/1/reginster-leiter.html).

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

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.

This is an invited commentary on Richard Rorty's Dewey Lecture, given last year at the University of Chicago Law School. “Pragmatism,” says Rorty, “puts natural science on all fours with politics and art. It is one more source of suggestions about what to do with our lives.” I argue that the truth in pragmatism - that the epistemic norms that help us cope are the ones on which we rely - is obscured by Rorty's promiscuous version of the doctrine, which confuses the criteria for relying on particular epistemic norms (namely, that they work for human purposes) with the content of the norms themselves (most of which make no reference to human purposes, but rather criteria like causal or explanatory power). We need presuppose no Archmiedean standpoint to conclude, as Richard Posner does, that moral inquiry is feeble in a way physics is not; we need only take seriously our best current understanding of the world, how it works, and the epistemic norms that have proven most effective in making sense of it.