Brian Leiter

From a Realist Point of View combines new essays with revised versions of the most important recent work of preeminent legal realist Brian Leiter. This collection offers a systematic and philosophically ambitious account of legal realism and links it, for the first time, to political realism. The new introductory essay offers a systematic reconstruction of legal and political realism, contrasting it with “moralist” approaches to law and politics. Part I, “Realism about Law and Legal Reasoning,” examines the problem of theoretical disagreement, the relation between legal positivism and realism, and the realist theory of precedent, concluding with a penetrating critique of the recent metaphysical inflation of general jurisprudence. Part II, “Realism about Courts, Politics, and Morality,” brings the realistic perspective to bear on courts and democracy, as well as on morality (understood as a culturally variably human artifact) and moral philosophy (treated as ethnographic data, irrelevant to political practice).

Nietzsche’s repudiation of free will and moral responsibility is documented throughout his corpus, and his arguments for this conclusion—arguments from his distinctive kind of fatalism, his skepticism about the causal efficacy of the will, and his particular brand of epiphenomenalism about the conscious mental states crucial to deliberation—are shown to undermine both compatibilist and incompatibilist views about free will and moral responsibility by engaging the views of many contemporary philosophers working on these topics, including Harry Frankfurt, Galen Strawson, Robert Kane, Derk Pereboom, Gary Watson, and others. In particular, the chapter argues that both “alternate possibilities” and “control” views of free will are vulnerable to Nietzsche’s critique. Some empirical evidence is adduced in support of Nietzsche’s view.

This chapter reviews the textual evidence that Nietzsche retains a positive conception of “freedom.” Interpretive proposals due to Gemes and Poellner are shown not to be borne out by the texts. The chapter concludes that Nietzsche offers a “persuasive definition” of freedom, attaching the term’s positive valence to a sense of freedom unfamiliar in the modern Humean or Kantian traditions, but having echoes in Spinoza: “freedom” as acting from one’s inner nature rather than from external influences, something one can only do if fated to do so. The Spinoza-type view is shown not to be a kind of Control view of free will, so not one that vindicates moral responsibility.

Nietzsche is a sentimentalist about moral judgment, in the manner of Hume and, in the German tradition, Herder: the best explanation of our moral judgments is in terms of our emotional or affective responses to states of affairs in the world, responses that are, themselves, explicable in terms of psychological facts about the judger. Nietzsche understands our _basic_ emotional or affective responses as brute artifacts of our psychological constitution, though there is nothing in Nietzsche’s view to rule out the possibility that more complicated feelings (e.g. “guilt”) might not involve a cognitive component added to the non-cognitive one, even if that is explanatorily otiose. The chapter concludes with a consideration of empirical evidence in support of sentimentalism.

This chapter argues against various attempts to portray Nietzsche as a value realist, someone who thinks either that there are objective facts about value, or that his own evaluative perspective enjoys some other kind of epistemic privilege over its targets. A particular focus is arguments appealing to the idea of will to power. These arguments are shown to fail, both philosophically and textually. An alternative, psychological interpretation of Nietzsche’s interest in will to power is argued to be more plausible.

Nietzsche defends the metaphysical thesis that there are no objective (i.e. mind-independent) facts about values, including moral values. His primary arguments for his moral anti-realism are “best explanation” arguments: the best explanation of our moral judgments, indeed of the two-millennium long disagreements among moral philosophers, make no reference to objective moral facts. The details of an “inference to the best explanation” are laid out, and illustrated with Nietzsche’s own texts. Contemporary attempts to defend the explanatory role of moral facts are critiqued, and the radical implications of the argument from disagreement among philosophers considered and defended.

Moral psychology, for purposes of this volume, encompasses issues in metaethics, philosophy of mind, and philosophy of action, including questions concerning the objectivity of morality, the relationship between moral judgment and emotion, the nature of the emotions, free will, and moral responsibility, and the structure of the mind as that is relevant to the possibility of moral action and judgment. Nietzsche’s “naturalism” is introduced and explained, and certain confusions about its meaning are addressed. An overview of the volume follows.

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 chapter offers a philosophical reconstruction of Nietzsche's theory of the will, focusing on: (i) 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; (ii) 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 (iii) 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 Leiter's 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.

ABSTRACT Foucault’s corpus is animated by an ethical or political impulse: to liberate individuals from a kind of oppression, one which does not involve the familiar tyranny of the totalitarian state but exploits instead values that the victim of oppression herself accepts, and which then leads the oppressed agent to be complicit in her own subjugation. Foucault’s critique also depends on a skeptical thesis about the epistemological authority of the social sciences that is supposed to be supported by his genealogies of those sciences. It is this conjunction of claims – that individuals oppress themselves in virtue of certain normative claims they accept because of their supposed epistemic merits – that marks Foucault’s uniquely disturbing contribution to the literature whose diagnostic aim is, with Weber, to understand the oppressive character of modernity, and whose moral aim is, with the Frankfurt School, human liberation. Foucault is also a kind of ‘realist’ in his approach: he does not offer moral arguments to persuade people that they ought to behave differently than they do, but instead shows people the actual history of the institutions and norms to which they subjugate themselves. This essay explains Foucault's critical and realist project, and concludes with critical reflections on its plausibility.

This chapter offers a philosophical reconstruction of Nietzsche's theory of the will, focusing on: (i) 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; (ii) 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 (iii) 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 Leiter's 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.