Leiter Reports: A Philosophy Blog

Handout for my APA Talk on Wednesday

For any readers who may be attending, here's a handout (Download FOUNDATIONS OF RELIGIOUS LIBERTY APA Handout) and here's the paper.  Because I'm travelling, I'm not sure whether I'll be able to print out copies of the handout.

Why Legal Positivism?

Scott Shapiro (Yale) has put together a splendid panel on the topic "Legal Positivism:  For and Against" for the AALS annual meeting in New Orleans.

A draft of my remarks are now available; here's the abstract:

This short paper will be presented at a panel on "Legal Positivism: For and Against?" at the annual meeting of the Association of American Law Schools in New Orleans, January 9, 2010. It attempts to identify the theoretical considerations that explain why legal positivism is the dominant view among legal philosophers. Three are identified: (1) positivism gives the best account of the ordinary understanding of law; (2) its account of law is the one deployed fruitfully in all empirical social science; and (3) it does not involve incredible or controversial metaphysical commitments. The paper concludes by noting that the competitors to legal positivism have narrowed considerably in recent years. American Legal Realism (as I have argued elsewhere) depends on a positivist theory of law, rather than being in competition with it. The most sophisticiated version of natural law theory, that of John Finnis, has conceded the main points in dispute to the legal positivists, and simply proposes changing the subject. And Dworkin's theory fails along the three dimensions of theoretical adequacy noted.

The paper concludes that the appeal of Dworkin's theory to constitutional lawyers in the Anglophone world and elsewhere is due entirely to the (correct) perception that his theory makes moral considerations relevant to the resolution of momentous constitutional questions. Unfortunately, so do the positivist theories of Hart and Raz. Only atrocious public relations for legal positivism--aided and abetted by decades of misrepresentations by Dworkin--has led so many casual consumers of the jurisprudential literature to think otherwise. Thinking morality relevant to constitutional adjudication is no reason not to be a legal positivist.

The point in the second paragraph bears emphasizing:  none of the leading positivist theories of law make morality irrelevant to the adjudication of difficult constitutional questions.  It is an interesting sociological, but not philosophical, question why so many believe otherwise.

"Explaining Theoretical Disagreement"

First the video, now the article.

For a JD/PhD, Does the Caliber of the Law School Matter?

A philosophy graduate student writes:

I was hoping you might be able to help me with a follow-up question I had regarding your blog-post on leiterreports regarding the merits of getting a J.D. and a Ph.D. in philosophy. I'm now in my second-to-last year of my Ph.D....working predominantly in political philosophy....My interests have been, over the last year or so, drawing me towards the philosophy of law and I have been considering pursuing my J.D. after I finish my degree, particularly if the academic job market in philosophy is not substantially improved by the time I finish.

 

My question is this: how much does it matter where I get my J.D. if my aim is to stay in academia and teach (whether predominantly in the law-program or the philosophy department)? I'm sure going to a more prestigious law school helps, but since the more prestigious the school (often) the more expensive it is, if the potential academic job-benefits are not significant it may not be worth the extra expense.

The answer is:  it matters a lot if your goal is to get into law teaching (otherwise it matters less).  Law school hiring is very pedigree-sensitive, much more so than philosophy hiring, and also without excellence in a specialization compensating for a program that is not overall highly regarded.   One need only look at data on where law professors earned their degrees (e.g., here or here) to see that the academic market in law is overwhelmingly dominated by a very small number of schools:  Yale, Harvard, Chicago, and Stanford at the very top; Columbia, Michigan, Berkeley, maybe NYU a notch below; Virginia and Penn a notch below those; and then some mix of Northwestern, Duke, Texas, Georgetown, maybe Cornell, maybe Minnesota, maybe UCLA, maybe one or two others.

 

It is true that scholarly writing is now much more important in law school hiring than it was even twenty years ago--hardly anyone gets hired anymore without having at least one publication post- law school graduation--but before hiring schools even start reading the scholarship, pedigree is used to narrow the pool dramatically.    That, I'm afraid, is the reality that anyone thinking about law teaching needs to be aware of.

 

Law school is expensive, but even the top law schools give 'merit' aid, and those with PhDs or those with potential for academic careers are often viable candidates for that.  Should a JD/PhD hopeful pay full price at Harvard over a full ride at Penn?  Probably not, and especially given that Harvard Law School is a bit of a wasteland for someone with a serious interest in philosophy, while Penn has a serious commitment to law and philosophy.   But should one pay full price at Penn over a full ride at George Washington or Vanderbilt or Emory?  There, I think, the answer is probably yes.  The latter are all quite good law schools, but in terms of law teaching, the pedigree drop off is probably too great.

Law and Philosophy Fellowship at University of Chicago Law School for 2010-11

The ad has now appeared in JFP:

The University of Chicago Law School seeks to appoint a Law and Philosophy Fellow for the academic year 2010-11. A Ph.D. in philosophy by time of appointment is expected, though in unusual cases a Ph.D. in a related discipline, or a J.D. accompanied by strong training in philosophy, will be considered. Applications also welcome from post-2003 doctorates. Law degree (J.D. or foreign equivalent) is helpful, but not required. The Fellow’s research should intersect with issues of interest to legal scholars. Examples would include work on normative concepts such as equality and punishment; investigation of the philosophical dimensions of a substantive area of law, such as criminal law, constitutional law, sex equality, or property; research that bears on the legal dimensions of intention, proof, or agency; and work in jurisprudence. The Fellow will be expected to contribute to the intellectual life of the Law School, pursue his or her research, and participate in teaching the Law and Philosophy Workshop or a seminar. Teaching duties are modest and will contribute to the Fellow’s research. Salary $50K + benefits + superb research environment. To be considered a candidate for this position you must apply on-line through the University website by February 28, 2010, at . Resume, cover letter, writing sample, reference contact information and research statement should be submitted electronically on the web site at the time of application. Three confidential letters of recommendation should be mailed to Joe Pellettiere at The University of Chicago Law School, 1111 E. 60th St., Chicago IL 60637 by February 28, 2010. The University of Chicago is an Affirmative Action / Equal Opportunity Employer.

Our current Law and Philosophy Fellow is Adam Hosein, who is co-teaching the Law & Philosophy Workshop with Martha Nussbuam this year (the general topic is, "Utilitarianism and the Law").  The Fellow typically either co-teaches the Workshop with me or Martha, or offers a seminar on his or her research in one quarter.  (Next year, I am slated to run the Law & Philosophy Workshop; the 'theme' will likely be either 'current topics in legal philosophy' [with perhaps a slight tilt towards core general jurisprudence] or 'disagreement and skepticism' in legal philosophy [e.g., the problem of theoretical disagreements] and in ethics.  Again, applications are certainly very welcome from those not working on either of those topics, since the Fellow has the option of simply teaching a one-quarter seminar of his or her own.)  Please e-mail me if you have any questions.

Interested in Legal Philosophy: Just a PhD in Philosophy, or a JD as Well?

A student writes with a variation on a question I have gotten from others over the years:

I'm coming to the end of my undergraduate career and am, naturally, thinking about my next destination. Being a philosophy major, I've developed a strong interest in legal philosophy. I've also always had one eye set on law school. My question is simple: what special advantage does a legal education give to someone who is interested in a career in legal philosophy? If the options are graduate work in legal philosophy in a philosophy department or law school (with the intention of either doing a combined degree or a philosophy degree afterwards), other things being equal, is the latter more advisable? I ask this especially in light of the heavy debt that one must incur should she choose to attend law school.

 

I realize that most of the heavyweights in legal philosophy are law school-educated, so I don't doubt that there is significant merit in receiving a legal education. But I would nevertheless appreciate it if the (important?) role legal education plays (in terms of specific skills or knowledge) in being able to do legal philosophy is clearly spelled out.

Certainly one can get a very good education in legal philosophy in a handful of PhD programs (or via the DPhil in Law at Oxford, for example), and without going to law school.  Many substantial contributors to legal philosophy in the past fifty years had only the PhD in philosophy (Joel Feinberg and Gerald Postema are obvious examples).  Some who work in legal philosophy earned the PhD and also spent a year studying in a law school for an M.S.L. degree (examples are Jules Coleman and Arthur Ripstein).  So given the time and the cost, why get a JD in addition to a PhD?

 

I can think of two main considerations that favor getting both degrees, one practical/professional, one intellectual.

 

First, with the JD, as well as the PhD, one is also eligible for teaching positions in law schools.  There are pure PhDs teaching in law schools, but in all cases (e.g., Nagel at NYU, Nussbaum at Chicago), they were appointed to the law faculties well into their careers and after having established substantial reputations.  While a small handful of law schools (e.g., Penn and Northwestern) have begun hiring junior faculty with only the PhD in certain social science fields, this seems to be driven mainly by the demand for scholars who do emipirical work on the legal system.  Given that law schools will hire legal philosophers, but only if they have the JD, someone who wants that option should also earn the law degree.

 

But why want that option?  (I wrote a bit about this a few years ago--see esp. the last couple of paragraphs here.)  There are the obvious practical/professional benefits:  higher salaries, more research support, better teaching loads, shorter tenure tracks.  There is also an intellectual benefit, or so it seems to me:  one can do more with the subject if one is teaching it to students who know the law (consider an analogous case:  how much philosophy of physics can one meaningful teach to students who don't know any physics?).  That was not a benefit I fully appreciated until I began teaching the subject to law students.  It is certainly true that the majority of JD/PhDs during the time I've been teaching have chosen to enter law teaching (with some notable exceptions, of course, like Stefan Sciaraffa at McMaster and Hanoch Sheinman at Rice).

 

Second, there is one important, but not overriding, intellectual reason to get the JD as well as the PhD:  namely, understanding how lawyers really think, and how the legal system really operates, is not something one can pick up from PhD study only.  (One really ought to practice law for the same reason, since there's a limit to how much of this one learns in law school.)  My own philosophical work on American Legal Realism would not have been possible without the background of a legal education and some law practice.  But anyone working on the philosophy of particular substantive areas of law--for example, criminal law or torts--will be greatly helped by formal legal education.   It is probably not an accident that most of the leading writers in philosophy of criminal law and torts (for example, Stephen Perry, Michael S. Moore, Mitchell Berman, George Fletcher, among others) are trained as lawyers.

 

On the subject of cost, it is worth noting that there are also JD/PhD programs that offer funding for both parts of the degree.  To be sure, admission tends to be highly competitive, and, unfortunately for aspiring philosophers, some of the schools that offer such funding (like Harvard and Stanford) are pretty thin on the philosophy of law.  But there are schools, like NYU and Penn and UCLA, which do provide funding for the joint degree that might be quite attractive for an aspiring legal philosopher.  Finally, of course, there is the option of doing the degrees at different institutions.  Law schools offer a lot of merit aid to highly qualified candidates, and someone with the PhD, or having done significant graduate work, may well be in a competitive position for such aid on the JD side.  Finally, since starting salaries in law schools range from 80-160K these days (depending on the caliber of the school and the region of the country--and with the bulk of the jobs in the 110-120K range), even someone in debt from the JD side of a JD/PhD should be in a position to service student loans.

 

UPDATE:  A reader points out, correctly, that most top law schools have "loan forgiveness" for those who go into less renumerative careers, which might well include a JD/PhD who went into philosophy teaching--but one would need to investigate the terms of the loan forgiveness program at a law school carefully.

"Foundations of Religious Liberty: Toleration or Respect?"

This draft paper may perhaps be of interest to some readers; the abstract:

Should we think of what I will refer to generically as “the law of religious liberty” as grounded in the moral attitude of respect for religion or in the moral attitude of tolerance of religion? I begin by explicating the relevant moral attitudes of “respect” and “toleration.” With regard to the former, I start with a well-known treatment of the idea of “respect” in the Anglophone literature by the moral philosopher Stephen Darwall. With respect to the latter concept, toleration, I shall draw on my own earlier discussion, though now emphasizing the features of toleration that set it apart from one kind of respect. In deciding whether “respect” or “toleration” can plausibly serve as the moral foundation for the law of religious liberty we will need to say something about the nature of religion. I shall propose a fairly precise analysis of what makes a belief and a concomitant set of practices “religious” (again drawing on earlier work). That will then bring us to the central question: should our laws reflect “respect” for religion” or only “toleration”? Martha Nussbaum has recently argued for “respect” as the moral foundation of religious liberty, though, as I will suggest, her account is ambiguous between the two senses of respect that emerge from Darwall’s work. In particular, I shall claim that in one “thin” sense of respect, it is compatible with nothing more than toleration of religion; and that in a “thicker” sense (which Nussbaum appears to want to invoke), it could not form the moral basis of a legal regime since religion is not the kind of belief system that could warrant that attitude. To make the latter case, I examine critically a recent attack on the idea of "respect" for religious belief by Simon Blackburn.

Comments are welcome.

"Naturalizing Jurisprudence"

Now everyone will surely want their own copy!

"Why Evolutionary Biology is (so far) Irrelevant to Legal Regulation"

For those who might be interested, this long-gestating paper with philosopher of biology Michael Weisberg (Penn) is now on-line at the Law & Philosophy site, and will appear in a print edition of that journal later this year.

Which philosophers have had the most impact on legal scholarship?

I asked readers of my law school blog, and here's their answer.

Dworkin, Posner, Legal Realism

A video of a lecture by yours truly, perhaps of interest to some readers.  Some more details here.

A Few Thoughts on Judge Sotomayor (Obama's Pick for the US Supreme Court)

Here, for those who might be interested.

Girona, May 2010

It's the place to be for legal philosophers.

My legal philosophy blog is slowly coming back to life...

...for those who might be interested.

"Naturalizing Jurisprudence: Three Approaches"

Here, for those who might be interested.

Law and Philosophy Fellowship at the University of Chicago Law School, 2009-2010

Once again, Chicago will be hosting a Law and Philosophy Fellow.  (You can read about this year's Fellow here.)  You can access the ad by searching under Law School positions on this site; here is the full text of the ad (which will appear in the November JFP):

The University of Chicago Law School seeks to appoint a Law and Philosophy Fellow for the academic year 2009-10. A Ph.D. in philosophy by time of appointment is expected, though in unusual cases a Ph.D. in a related discipline, or a J.D. accompanied by strong training in philosophy, will be considered. Applications also welcome from post-2003 doctorates. Law degree (J. D. or foreign equivalent), or some other record of academic training in law, is helpful, but not required.

The Fellow's research should intersect with issues of interest to legal scholars. Examples would include work on normative concepts such as equality or punishment; investigation of the philosophical dimensions of a substantive area of law, such as criminal law, constitutional law, sex equality, or property; research that bears on the legal dimensions of intention, proof, or agency; and work in jurisprudence. The Fellow will be expected to contribute to the intellectual life of the Law School, pursue his or her research, and participate in teaching either the Law and Philosophy Workshop or a seminar. Teaching duties are modest and will contribute to the Fellow's research. Salary 50K + benefits + superb research environment.

To be considered individuals must apply online at https://jobopportunities.uchicago.edu by January 15, 2009. Resume, cover letter, writing sample, reference contact information and research statement should be submitted electronically on the web site at the time of application. Three confidential letters of recommendation should be mailed to Kate Malinski, The University of Chicago Law School, 1111 E. 60th St., Chicago, IL 60637, by January 15, 2009. The University of Chicago is an Equal Opportunity/Affirmative Action Employer.   

Please e-mail me if you have any questions. 

A Puzzle About Heller (the US Supreme Court Case Invalidating the DC Gun Ordinance)

Here.

Waldron on the Prohibition of Hate Speech

Some comments on an interesting recent essay here.

"In Praise of Realism (and Against 'Nonsense' Jurisprudence)"

I've posted on SSRN a draft of my Dunbar Lecture in Law and Philosophy, titled as above, which I will deliver tomorrow at the University of Mississippi.  The Lecture is sponsored by the Law School and Department of Philosophy.  When they kindly invited me to deliver the lecture, I was told that past Dunbar Lecturers had included, as it happens, one of the subjects of my Lecture, Ronald Dworkin.  The abstract follows:

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.

JD/PhD Programs in the U.S.: A Comment

I've had some inquiries lately about the section on the study of philosophy in law schools in the PGR like this one:

I am considering enrolling in a joint JD/PhD in philosophy next year, and I was reading through your rankings in philosophy, law, and joint JD/PhD programs. First, let me say thank you so much for the time and energy you've put in to make this information and these rankings available; it has been very helpful for me. My question, however, is if there is any reason why Harvard and Stanford are virtually not mentioned on the "The Study of Philosophy in Law Schools" page on philosophicalgourmet.com. Do their programs for law and philosophy not match up with the other schools mentioned? I ask because they both have very strong respective law and philosophy programs. I know you're extremely busy, so if you don't have time to respond about this, I completely understand. However, if you do get a chance, any comments would be greatly appreciated. Again, thanks so much for the rankings and information you've compiled about law schools and philosophy programs.

Legal academia is more pedigree-sensitive than academic philosophy (and I'm sure many of you think academic philosophy is way too pedigree-sensitive!), so this student's question is quite understandable.  Four law schools dominate the market for new law teachers:  Yale, Harvard, Chicago, and Stanford.  On a per capita basis, Yale is way ahead of the other three, and these four are way ahead of everyone else.  Yet two of these three "feeder" schools for legal academia go unmentioned in the current PGR section.

Is the "Rule of Recognition" a Conventional Rule?

I know you folks have been wondering!

New: Oxford Studies in the Philosophy of Law

I am very pleased to announce that Leslie Green and I will be editing a new annual, the Oxford Studies in the Philosophy of Law, which will publish commissioned and solicited work by leading established and emerging scholars in the philosophy of law. The first volume will appear in 2009, and all volumes will appear in both cloth and paperback. OSPL will be part of the distinguished Oxford Studies series, including existing volumes in Ancient Philosophy, Early Modern Philosophy, Metaphysics, Epistemology, and Metaethics.

The OSPL will include a broad range of problems and approaches, such as work in general jurisprudence, in the philosophical foundations of areas of substantive law, and in cognate areas of philosophy.  Both systematic essays and historical studies will be welcome.

All papers, including commissioned works, will be subject to review by the editors and by external referees. Oxford Studies in the Philosophy of Law will showcase the best new work in this growing field.

(Given this new project, I should note that I will be stepping down after seven years as an editor of Legal Theory.)

Interviews with Legal Philosophers

I have been posting some excerpts from the new book Legal Philosophy:  5 Questions over at my Legal Philosophy Blog, most recently, from the interviews with Jules Coleman and John Gardner.  Some readers may find these of interest.

Justifying Originalism as a Theory of Constitutional Interpretation

Some readers might find this of interest. 

"Why Evolutionary Biology is (so far) Irrelevant to Law"

A revised, penultimate version of this paper I wrote with the philosopher of biology Michael Weisberg is now on-line for those who might be interested.  It will appear some time in 2008.

Deontic Logic and Jurisprudence

Who knew it was so controversial?

Kelsen and Anglophone Jurisprudence Redux

Here.

Kelsen's Relative Neglect in Anglophone Jurisprudence

Discussion here.

"Legal Philosophy: 5 Questions"

An update on the book.

"Objectivity in Law and Morals" in Paperback

Cambridge has, happily, released a paperback version of this collection of essays I edited back in 2001.  Since I periodically get inquiries about the book, I thought I'd post the information about the new paperback edition here.

Over in Legal Philosophy Land...

...an epistemological puzzle about legal positivism?

UPDATE:  For the benefit of new readers, I should note, again, the purpose of the new blog and its commenting policy.

"New" Legal Realism?

From another Brian Leiter.

New URL for my Legal Philosophy Blog--Plus a New Paper on "Explaining Theoretical Disagreement"

My legal philosophy blog has moved to its new (and this time permanent) location, where I have also posted the abstract for a new paper on the problem Dworkin dubbed "theoretical disagreement" about law.

A Separate Blog on Issues in Legal Philosophy

I have not generally tried to "do philosophy" on the blog, though I have often linked to philosophical work by myself and others.  But, as an experiment, I've created a new blog in which I'm going to work through some issues in legal philosophy.  The posts will not be aimed at a generalist audience, but at specialists (students or scholars) in jurisprudence.  The first substantive post discusses Brian Simpson's well-known paper on "The Common Law and Legal Theory."  If writing up my thoughts or the comments on them proves instructive, I'll probably keep this up.

Interview about Legal Philosophy

I've posted at SSRN the text of an interview with me about legal philosophy, which will appear in the volume Legal Philosophy:  5 Questions, due out later this year.  The questions that all those interviewed address are the following:

1. Why were you initially drawn to the philosophy of law?

2. For which of your contribution(s) to legal philosophy so far would you most like to be remembered, and why?

3. What are the most important issues in legal philosophy, and why are they distinctively issues of legal philosophy rather than some other discipline?

4. What is the relationship between legal philosophy and legal practice? Should legal philosophers be more concerned about the effect of their scholarship on legal practice?

5. To which problem, issue or broad area of legal philosophy would you most like to see more attention paid in the future?

I hope some readers might find this interview, as well as the volume as a whole, of interest.

"Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy"...

...has now been published in the U.S.  It is available in paperback, so hopefully someone will read it!

For Legal Philosophers: Review of Two Books: One by, One on Dworkin (Leiter)

The penultimate draft of the review (which will appear in the TLS) is here.  The books discussed are Dworkin's recent collection Justice in Robes (Harvard University Press, 2006) and Scott Hershovitz (ed.), Exploring Law's Empire (Oxford University Press, 2006).  I was operating, needless to say, under a word limit!

"Naturalism in Legal Philosophy": Revised Version Now On-Line at SEP...

...here, for those who might be interested.

"Why Evolutionary Biology is (so far) Irrelevant to Law" (Leiter)

A revised version of this paper I wrote with the philosopher of biology Michael Weisberg at Penn is now on-line at SSRN.  This is pretty much the penultimate version, and comments would still be timely and welcome for a few more weeks.

Rorty's Pragmatism and Judge Posner's Moral Skepticism

I've posted a draft of a short paper (slated for the University of Chicago Law Review) on Richard Rorty's Dewey Lecture at the University of Chicago Law School last year, on the subject of Dewey, Posner, and moral skepticism.  There is more detail here.  Although this isn't a rigorous philosophical piece, it might interest some readers.

UT Law & Philosophy Program (Leiter)

For those who might be interested, we have finally updated the site for 2006-07.  Prospective students should feel free to contact me with any questions.

Posner on "Pragmatic Adjudication" (Leiter)

Last Thursday at the University of Chicago Law School, Judge Posner and I discussed this topic in a public forum.  More information, and a link to the podcast of the session, is available here.

Soames on "Analytic Philosophy," and the Special Case of Philosophy of Law (Leiter)

I am grateful to Jason for calling attention to the lovely, lucid, and synoptic essay by Scott Soames (USC) on "Analytic Philosophy in America," which I read with appreciation yesterday evening.   I concur with Jason's recommendation that this is an essay that educated non-philosophers ought to read if they want to have an idea what has been going on the last 40-50 years in English-speaking philosophy (as Soames notes at the end, much of what he is describing is philosophy in the English-speaking world, not just philosophy in America).  That being said, I want to note one reservation and then raise one question.

The reservation is this:  the two pages on philosophy of law contain errors.    Soames is not a philosopher of law, and he quite reasonably gives most of his attention to developments in philosophy of language--given his own expertise and the importance of that field to the story he is telling.  But the errors in the two pages (pp. 28-29) on philosophy of law range from the minor to the fundamental, and they deserve flagging (and perhaps they can still be corrected).

On the rather minor end of the spectrum:  he compares the "revival" in political philosophy effectuated by Rawls and Nozick to the "revival" in philosophy of law effectuated by Dworkin.  But surely it was Hart who brought about the integration of jurisprudence into English-speaking philosophy generally, and rejuvenated philosophical interest in law; Dworkin, Feinberg, Raz, Finnis and others simply continued that development.  (One can acknowledge this point without agreeing with my stronger claim that the Dworkinian program is now discredited and defunct.)  Indeed, among philosophers who think about law, Raz's influence is far greater than Dworkin's.  Also, and even more minor, Soames describes Dworkin as "at New York University since 1994," when he joined the NYU faculty in the late 1970s (1977, according to the Directory of American Law Teachers).  (Perhaps 1994 is meant to be a reference to the date of his cross-appointment to the philosophy department.)

On the more important, substantive end of the spectrum:  Soames describes Hart's positivism as "a view according to which legal validity is, in the main, a matter of fidelity to the institutional sources of positive law, and, except at the margins, independent of substantive moral considerations."  Soames's gloss on Hart is a Razian one (no quarrel there, this is a survey piece, after all), but even on that gloss, it is no part of the positivist view that legal validity is ever a matter of "substantive moral considerations":  such considerations may influence how a judge decides cases, but they are not themselves criteria of legal validity.  This conflation (between criteria of legal validity and how judges ought to decide particular cases) suggests that Soames has simply adopted wholesale the confusion for which Dworkin is most famous (or infamous, as it were) among legal philosophers, namely, between the questions "what is law?" and "how ought a judge decide the case before him?"  This comes out even more clearly when Soames writes:

As opposed to this [the positivist view of legal validity], Dworkin argues for a theory of "constructive interpretation" in which there are no cases in which the contents of laws, and their applications to particular cases, are, in principle, entirely determined by the routine application of conventional, legal rules--independent of any moral assessment of the consequences of particular applications, and any judgment about how those consequences bear on the social purpose of the laws, and the intentions of those who enacted them. 

The bolded portion conflates the distinction, emphasized by Raz, between "pure" and "applied" legal statements:  that is, the distinction between "pure" statements like "character evidence is inadmissible in a civil trial to prove action in conformity therewith on a particular occasion" (which is a legally valid rule of evidence in the U.S.) and "applied" statements like "defendant's prior conduct reveals his habitual behavior, and so may be admitted into evidence."  Positivists are not committed to the view that applied legal statements are always "entirely determined by the routine application of conventional, legal rules," and Hart, of course, is explicit that there will be a range of cases where judges will have to exercise discretion. No positivist believes, either, that valid "pure" legal statements should be applied in particular cases without regard to "the consequences of particular applications."  To the extent that a judge has a duty to decide according to law, then the judge must apply the valid legal norms (those with the requisite institutional sources); but it is no part of the positivist thesis about legal validity to deny that in some cases, the duty to apply legally valid norms is, and ought to be, overriden by other equitable and moral considerations.

Soames then characterizes Dworkin's view of adjudication as follows:

Instead, all adjudication is seen as requiring the judge to weigh substantive moral concerns with existing legal history, so as to arrive at the most just and morally desirable principles for achieving the legitimate ends of law, while accomodating, so far is reasonably possible, the results of past decisions and existing legal practices.

The "instead" is misplaced, of course, since the positivist view of validity is not a theory of adjudication.

Now to the question.  As longtime readers know, I don't think "analytic philosophy" exists except as a kind of sociological artifact, and I don't think anyone can give a satisfactory account of it that isn't wildly over- or under-inclusive.  (See here for one of many discussions of this topic.)  In this regard, I was struck by Soames's gloss on page 6:

[I]t is important to remember that analytic philosophy is neither a fixed body of substantive doctrine, a precise methodology, nor a radical break with most traditional philosophy of the past--save for varieties of romanticism, theism, and absolute idealism.  Instead, it is a discrete historical tradition stemming from Frege, Moore, Russell, Wittgenstein, and the logical positivists, characterized by respect for science and common sense, belief in the relevance of logic and language for philosophy, emphasis on precision and clarity of argumentation, suspicion of a priori metaphysics, and elevation of the goals of truth and knowledge over inspiration, moral uplift, and spiritual comfort--plus a dose of professional specialization.

I assume most informed folks think Paul Churchland, John McDowell, Bernard Williams, Alvin Plantinga, Laurence BonJour, Hilary Putnam, George Bealer, and Christopher Peacocke are "analytic" philosophers, but doesn't each of them fail to fit one or more of the characteristics noted by Soames?  What do readers think?  Non-anonymous postings will, as usual, be strongly preferred.

"From Legal Realism to Naturalized Jurisprudence" (Leiter)

I've posted the penultimate draft of the introduction to my collection of papers on Naturalizing Jurisprudence:  Essays on American Legal Realism and Naturalism in Legal Philosophy, which Oxford University Press will publish (simultaneously in both cloth and paper, happily) in 2007 (during the Spring, I hope).  The introduction, "From Legal Realism to Naturalized Jurisprudence," gives a general overview of the papers in the volume and the set of problems they address, and how they all hang together, more or less.  I've posted a short excerpt here.  The book will also include two new Postscripts responding to a variety of critics.

Some Realism about the U.S. Supreme Court (Leiter)

Courtesy of Judge Posner.  It would be salutary, indeed, if Judge Posner's observations were read aloud at the start of every confirmation hearing for a Supreme Court Justice; perhaps, then, we might have a grown-up discussion of the relevant merits and demerits of the nominees.

"New Legal Realism" (Leiter)

Those interested in legal philosophy may find this post of value.

Tamanaha Awarded Mahoney Prize in Legal Theory by Sydney

Details here.

New Paper: "Why Tolerate Religion?" (Leiter)

MOVING TO THE FRONT FROM FRIDAY, MAY 26, since that was the start of a holiday weekend in the US (I appreciate the strong interest and comments already received).

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A working draft of this essay of mine--reworked a fair bit from the version I gave as the 'Or 'Emet Lecture at York University in Toronto back in March--is now on-line.  Links and abstract here.  Comments welcome.  Thanks.

New Paper: "Why Evolutionary Biology is (so far) Irrelevant to Law" (Leiter)

Michael Weisberg (Philosophy, Penn) and I have made available on SSRN here what we hope is the penultimate draft of this paper, which is being submitted currently to the law reviews.  Here is the abstract:

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 proferred. In the concluding section of the article, we turn directly to the work of Professor 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

Comments would be welcome.

Ronald Dworkin, Again (Leiter)

Readers familiar with my views on Dworkin's jurisprudence will not be surprised that I find myself in agreement with the interesting (and also amusing) recent review by Thom Brooks (Politics, Newcastle) of Justin Burley's collection Dworkin and His Critics with Replies by Dworkin (Blackwell, 2004) in the January 2006 Modern Law Review (access may depend on whether your institution has a subscription, but the whole review is worth reading):

Ronald Dworkin's influence on legal philosophy is in some ways puzzling.  No series of lectures in jurisprudence can ignore his tremendous presence and he is one of the most cited and read legal philosophers alive.  Yet this wide readership has not translated into more than a small number of disciples.  It is quite rare to find anyone in the field identifying herself as a "Dworkinian."  Indeed, Andrea Dworkin may well have the larger following....

What will historians of legal philosophy make of Ronald Dworkin's work?  They will surely note his being a major figure, but perhaps best known as a foil to advance competing views of both natural law and legal positivism rather than as someone who began a school of legal thinking.  No one disputes the importance of Dworkin for legal philosophy.  However, his importance for the field is well on the wane now as this collection seems to make clear.  Not only is relatively little (or new) attention given to his third theory of law, but he seems more concerned with advancing his more successful views on egalitarianism among political and moral philosophers....[T]he question for legal philosophers today is how much longer Dworkin will command lectures on his views.  I believe these days are drawing swiftly to a close.