"[O]ne of the most troubling and intellectually discreditable books by a serious American scholar in some time."--Family Research Council
"Students and scholars likely will be citing Leiter's clear and powerful arguments for many years."--Choice
(For non-US readers: Choice is widely used by libraries in deciding what to purchase; the Family Research Council is the main policy arm of the far right Christian movement in the U.S.)
UPDATE: My thanks to Brandon Conley for posting a sensible reply at the FRC blog. Still, I am trying to persuade PUP to use the FRB blurb, above, in promotional materials!
ANOTHER (May 5): There was a second comment pointing out the obvious, that the FRC author had not read the book, but that comment has disappeared. So just in case, here is Mr. Conley's comment from the FRC site, which, happily, is still there:
This review willfully misrepresents Leiter's aim as one of criticizing freedom of religious practice without persecution when Leiter's actual target is the idea that religious practices should receive preferential treatment by being exempted from laws designed for the common good. Here's a quote from an honest synopsis of the book displaying the kinds of questions it tackles:
" Why, for example, can a religious soup kitchen get an exemption from zoning laws in order to expand its facilities to better serve the needy, while a secular soup kitchen with the same goal cannot? Why is a Sikh boy permitted to wear his ceremonial dagger to school while any other boy could be expelled for packing a knife? Why are religious obligations that conflict with the law accorded special toleration while other obligations of conscience are not?"
In other words, Leiter is arguing for equal treatment of all claims of conscience, whether secular or religious. Since by far the most persecuted religious affiliation in the U.S. is atheism (in many states it is illegal for an atheist to hold public office), these questions are important to ask. The FCR is employing the all to common tactic of painting an argument against special treatment as an argument for persecution.
First Things is a conservative Catholic intellectual magazine. An unsigned editorial in the April 2013 issue opines that,
Without dwelling on some of the mischaracterizations of my argument (the general thrust of it they have right), it's striking to me that they believe this "may well become the theoretical consensus used to reinterpret the First Amendment." I would welcome that, but I don't expect it to happen in my lifetime. I do think there's more potential in Canada and the European countries, many of which already recognize "liberty of conscience," but have yet, in practice, to extend that much beyond religious claims of conscience. (Of course, I also think there should be no exemptions from laws respsecting the principle of toleration and that promote the general welfare, unless those exemptions do not shift burdens on to others.)
A recent book by...Brian Leiter outlines what may well become the theoretical consensus used to reinterpret the First Amendment. "There is no principled reason," he writes in Why Tolerate Religion?, "for legal or constitutional regimes to single out religion for protection." He buys the ideological [sic] attack on religion, describing religious belief as a uniquely bad combination of moral fervor and mental blindness. It serves no public good that justifies special protection. More significant--and this is his main thesis--it is patently unfair to provide it with such. Why should a Catholic or Jew have a special right while Peter Singer, a committed utilitarian, doesn't? Evoking the principle of fairness, Leiter argues that everybody's conscience should be accorded the same legal protections. Thus he proposes to replace religious liberty with a plenary "liberty of conscience."
So Princeton University Press tells me they have ordered a new printing of 1,000 more copies of Why Tolerate Religion?, in addition to the 2,000 initial run from October--so while I won't be retiring on the royalties, I must say it's quite a remarkable experience to be on the verge of selling 3,000 hardcover copies of an academic book! Thanks to those of you out there who have bought a copy!
In addition to the event in DC in April, I'll be doing something similar for the Center for Inquiry in Los Angeles in early October; more details on that to come.
The book sales have undoubtedly been helped by some favorable publicity in media with a broader reach, like The New Statesman in England and Stanley Fish's New York Times blog. There was even a surprisingly positive review in the right-wing Jerusalem Post of all places (by Cornell historian Glenn Altschuler) and also a favorable and fair-minded review from David Gordon at the Mises Institute (who raised the reasonable anarchist objection to my final position). But I have to admit this is the first time I've ever been mentioned in a review of a rock 'n' roll band! I have not yet signed on as the opening act, but we'll see.
Links and more information here.
The latest installment in our series of scathing book reviews:
Needless to say, Judge Posner does not leave it at that, and the criticisms seem to me mostly quite sound.
THE CONSTITUTION of the United States has its passionate votaries—none more so than Akhil Reed Amar of Yale Law School—as does the Bible. But both sets of worshippers face the embarrassment of having to treat an old, and therefore dated, document as authoritative. Neither set’s members are willing to say that because it is old, and therefore dated, it is not authoritative. Some say it is old but not dated; they are the constitutional and Biblical literalists. But most of the worshippers admit, though not always out loud, that their holy book is dated and must therefore be updated (without altering the text) so as to preserve its authority. They use various techniques for updating....
Amar’s method of updating, which is also the one the Catholic Church applies to the Bible, is supplementation from equally authoritative sources. The Church believes that a Pope receives divine inspirations that enable him to proclaim dogmas that are infallible and thus have equal authority with the Bible. Jesus Christ’s mother does not play a prominent role in the New Testament, but she became a focus of Catholic veneration, and in 1854 the Pope proclaimed the dogma of Mary’s Immaculate Conception (that is, that she had been born without original sin). This and other extra-Biblical Catholic dogmas, such as the Nicene Creed, which proclaimed the consubstantiality of the Son and the Father, form a kind of parallel Bible, equal in authority to the written one, which reached its modern form in the third century C.E.
This is the line taken by Amar. Alongside the written Constitution is an unwritten constitution. They are consubstantial. The Constitution, like the teachings of the Catholic Church, is a composite of a founding document and a variety of supplementary practices and declarations (many of course in writing also). No matter how wild Amar’s constitutional views may seem, he claims that they are in this two-in-one constitution; that he did not put them there.
Actually, despite the book’s title, it is not two in one—it is twelve in one. There is not just one unwritten constitution, in Amar’s reckoning; there are eleven of them. There is an “implicit” constitution, a “lived” constitution, a “Warrented” constitution (the reference is to Earl Warren), a “doctrinal” constitution, a “symbolic” constitution, a “feminist” constitution, a “Georgian” constitution (the reference is to George Washington), an “institutional” constitution, a “partisan” constitution (the reference is to political parties, which are not mentioned in the written Constitution), a “conscientious” constitution (which, for example, permits judges and jurors to ignore valid law), and an “unfinished” constitution that Amar is busy finishing. All these unwritten constitutions, in Amar’s view, are authoritative. And miraculously, when correctly interpreted, they all cohere, both with each other and with the written Constitution. The sum of the twelve constitutions is the Constitution.
One is tempted to say that this is preposterous, and leave it at that.
At the Carnegie Council in New York City and in The New Statesman, where British political theorist John Gray says the book is, "A model of clarity and rigour and at points strikingly original, this is a book that anyone who thinks seriously about religion, ethics and politics will benefit from reading." The former event was an address to an educated audience in New York (lawyers, doctors, bankers, etc.), but not a group of academics. Gray's generous review does make one error worth noting towards the end, namely, that he treats the characteristics of religion I identify individually, whereas the account is conjunctive (I quite agree with the points he makes about some of the characteristics considered in isolation).
MOVING TO FRONT FROM NOV. 7
If you've studied philosophy at the undergraduate or graduate level, and are thinking about law school, I would like to urge you to consider the University of Chicago Law School. The Law School trails only Yale in per capita placement in law teaching, and graduates are also hugely successful in the private firm market, and in clerkships. Although we have a relatively small faculty (35 full-time academic faculty), we have two philosophers full-time in the Law School (myself and Martha Nussbaum), and a large number of colleagues with philosophical interests. There is an annual Law & Philosophy Workshop (this year's theme is "Freedom and Responsibility," speakers include Derk Pereboom, Gary Watson, Pamela Hieryonmi, John Martin Fischer, and others; last year's was "Global Justice"), and regular offerings in the Law School in jurisprudence, feminist philosophy, political philosophy and other areas. Each year we have both a Law & Philosophy Fellow in residence, and a week-long Visiting Political Philosopher in residence (this year it is T.M. Scanlon). In addition, there are usually one or more conferences each year in the Law School related to philosophical topics, and there is now a large and lively group of philosophically-minded students here. Of all the law schools in the U.S., the Chicago experience is also probably most like that of a graduate program in a PhD field, in terms of the intellectual engagement of both faculty and students.
Chicago currently has substantial merit aid to offer to very strong students (the best-known are the Rubenstein Scholarships, but there are other sources of aid, including for students interested in a JD/PhD). Philosophy students, both those with undergraduate majors and those with advanced degrees, have been very successful in getting this aid, and have performed very well at the Law School; as a result philosophy students receive favorable consideration here. Excellent numerical credentials are very important, of course, but even within that pool, applicants with philosophy backgrounds stand out. Students with philosophy backgrounds have recently turned down Yale, Harvard, and other peer law schools to come to Chicago. If you have questions about law study at Chicago, feel free to e-mail me at bleiter-at-uchicago-dot-edu.
I posted some papers on-line during the summer, that might still interest some readers.
Two were related to Nietzsche/moral psychology: "Moralities are a Sign-Language of the Affects" and "The Truth is Terrible." And two were relatd to philosophy of law: "Legal Realisms, Old and New" and "Waldron on the Regulation of Hate Speech." Comments are welcome on all but the last, which has now been published at NDPR (though since I may continue working on that topic, comments would probably also be helpful on that one). Thanks.
...is now on-line at Notre Dame Philosophical Reviews.
This is the penultimate draft of what will be the lead paper in volume 2 of Oxford Studies in Philosophy of Law, due out later this year. (Volume 1 is here.) Perry's paper is a major contribution to the literature on authority, and so I hope it will whet the appetite of legal philosophers and those interested in the subject for Volume 2. Other contributors to volume 2 will include Bruno Celano, R.A. Duff, Matthew Kramer, Barbara Levenbook, and C.L. Ten, among others.
This review essay is now on SSRN; the abstract:
This essay reviews and evaluates the arguments in Jeremy Waldron's book "The Harm in Hate Speech" (Harvard University Press, 2012). We may summarize the argument for Waldron’s titular view as follows. First, the “harm in hate speech” results primarily from speech that is written rather than spoken. Second, the harm in question is damage to the “dignity” of vulnerable people based on defamation related to certain characteristics they share with a group, such that they are then deprived of the “assurance…that they can count on being treated justly” (85) in daily life because they are deemed to be “not worthy of equal citizenship” (39). Third, this harm to “the dignitary order of society” (92) is distinct from the individual offense hateful speech may cause, the latter not constituting a ground for regulation on Waldron’s view. Fourth, although regulating to prevent this harm may have some costs, the benefits justify the normal practice in democratic societies of regulating such speech (e.g., 151 ff.). I argue two main points: first, that Waldron's distinction between harm to dignity versus offense is neither stable nor clear; and second, that Waldron's failure to explain why harm to the dignitary order of society is the particular harm of speech that warrants legal redress raises a variety of questions about his view. If the moral urgency animating Waldron's case is the need to protect the vulnerable from harm, why limit that to the harm of losing assurance of "equal standing" or (as he sometimes says) the psychological harm of "distress"?
Consider, for example, what I call "the Ryan case: a powerful congressman, Paul Ryan, proposes to eviscerate and eventually eliminate Medicare, thus threatening to deprive millions of vulnerable, elderly people of essential healthcare. Surely assurance of access to healthcare when in need is at least as important as assurance of dignity in public. Why is this harm, then, not also a candidate for legal redress? I argue that Waldron's view does not have the resources to distinguish the Ryan case, but I do not offer that as a reductio of his position. To the contrary, it seems to me a virtue of Waldron's book is that by making an often vivid case for the harm that the content of speech can inflict on the vulnerable, Waldron forces us to take seriously Herbert Marcuse's old worry: namely, that while the toleration of harmful speech "in conversation, in academic discussion...in the scientific enterprise, in private religion" is justified, perhaps "society cannot be indiscriminate where the pacification of existence, where freedom and happiness themselves are at stake." Waldron does not explore that implication of his argument, but it is one that warrants renewed consideration if one shares Waldron's core intuition that harm to the vulnerable, even harm inflicted by speech, deserves legal notice.
...in Spanish. I was fortunate that the translator, Giovanni Ratti, is also a leading young legal philosopher in Europe.
I've posted a new draft paper on-line. The abstract:
“Legal Realism” now has sufficient cachet that scholars from many different fields and countries compete to claim the mantle of the "Realist program": from political scientists who study judicial behavior, to the "law and society" scholars associated with the Wisconsin New Legal Realism project, to philosophers interested in a naturalized jurisprudence. But what does it mean to be a “legal realist”? What unites the two most famous “old” Legal Realisms—the American and the Scandinavian—with the “new legal realism” invoked, variously, by sociologists, anthropologists, and political scientists, among others? There are, of course, other “legal realisms,” old and new, from the “free law” movement in Germany more than a century ago, to the Italian realism of the Genoa School today. My focus, however, shall be on the old and new Realisms that are probably most familiar. Is there anything they all share?
I argue that (1) American and Scandinavian Realism have almost nothing in common--indeed, that H.L.A. Hart misunderstood the latter as he did the former, and that the Scandinavians are closer to Hart and even Kelsen than they are to the Americans; (2) all Realists share skepticism about the causal efficacy of legal doctrine in explaining judicial decisions ("the Skeptical Doctrine") (though the Scandinavian skepticism on this score is not at all specific to the legal domain, encompassing all explanation in terms of norms); (3) American Realism almost entirely eschewed social-scientific methods in its defense of the Skeptical Doctrine, contrary to the impression given by much recent work by "new" legal realists; (4) the myth that the American Realists were seriously interested in social science derives mainly from two unrepresentative examples, Underhill Moore's behaviorism and Llewellyn's work with the Cheyenne Indians. Moore's case is a cautionary note in taking au courant social science too seriously; and Llewellyn's work was necessitated by the fact that the "primitive" peoples he wanted to study did not write their judicial opinions down. For any modern legal culture, such "field work" would be unnecessary on Llewellyn's view.
It's now on-line, mostly in Chinese, partly in English.
[MOVING TO FRONT FROM OCT. 26 2011: TWO MORE WEEKS TO APPLY]
This ad will run in the next JFP:
THE UNIVERSITY OF CHICAGO LAW SCHOOL. The University of Chicago Law School seeks to appoint a Law and Philosophy Fellow for the academic year 2012-13. 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 welcome from PhDs awarded in 2005 or later. Law degree (J.D. or foreign equivalent) is helpful, but not required. AOS: Any area of philosophy that intersects with issues of interest to legal scholars. AOC: Any area of philosophy that will enable the Fellow to co-teach the Law and Philosophy Workshop for 2012-13 on the broad theme of "Freedom and Responsibility." (If the AOS is in the area of the Workshop theme, then the AOC is open.) The Workshop will meet about a dozen times over the course of the academic year to discuss work by invited speakers. The Fellow will also be expected to contribute to the intellectual life of the Law School, as well as pursue his or her 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 January 20, 2012. 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 January 20, 2012. The University of Chicago is an Affirmative Action/Equal Opportunity Employer.
Please e-mail me if you have any questions about the position.
I was fortunate many years ago to get a Newcombe Fellowship from the Woodrow Wilson National Foundation, but the real interest of this profile courtesy of the Foundation is what it quotes me saying about philosophy and law school. I hope some folks at schools with pre-law majors for their philosophy students find it useful!
ORIGINAL POSTED MARCH 2008; REPOSTED WITH SUBSTANTIAL REVISIONS IN LIGHT OF CHANGES IN THE INTERIM (AND SOME EXPANDED COVERAGE BEYOND THE US).
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. (For the 2009 PGR section, see here.)
MOVING TO FRONT FROM NOV. 18 2009, SINCE THE QUESTION IS ARISING AGAIN
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.
ADDENDUM: A more recent study on placement in law teaching, though no significant differences from the earlier ones.
Now published on-line from the Oxford Journal of Legal Studies for those interested; print copy to follow.
...is now out, clocking in at 298 pages. (UK Amazon lists it as 'in stock,' and presumably the US will shortly.) OUP has done a very nice production job, and Les Green and I were extremely pleased with the contributions for the first volume. There are four papers on issues in general jurisprudence (by David Enoch of the Hebrew University, Mark Greenberg of UCLA, Kevin Toh of San Francisco State, and Riccardo Guastini of the University of Genoa); an essay on constitutional theory by John Gardner at Oxford; and three papers on various philosophical (and sometimes empirical issues) surrounding criminal law and procedure, by Larry Laudan from UNAM, Marcia Baron of Indiana, and Thomas Nadelhoffer of Dickinson.
The full contents of volume 1:
1. Reason-Giving and the Law , David Enoch
2. The Standard Picture and Its Discontents , Mark Greenberg
3. Legal Judgments as Plural Acceptance of Norms , Kevin Toh
4. Rule-Scepticism Restated , Riccardo Guastini
5. Can There be a Written Constitution? , John Gardner
6. The Rules of Trial, Political Morality and the Costs of Error: Or, Is Proof Beyond a Reasonable Doubt Doing More Harm than Good? , Larry Laudan
7. Self-Defense: The Imminence Requirement , Marcia Baron
8. Criminal Law, Philosophy, and Psychology: Working At the Cross-roads , Thomas Nadelhoffer
There may be some mostly cosmetic changes before publication, but otherwise this is the essentially final version, which will appear in Oxford Journal of Legal Studies next year. The core argument remains the same as in the earlier version from last year, though there have been some significant revisions to portions of the paper in light of useful comments from an OJLS referee and from participants in the McMaster "Nature of Law" conference. This version can be quoted and cited.
MOVING TO FRONT FROM MAY 23--SEE UPDATE
This is my reply to critics for a forthcoming symposium issue of Law & Philosophy on my 2007 book Naturalizing Jurisprudence. The critics are: Julie Dickson (Oxford), Michael Steven Green (William & Mary), and Mark Greenberg (UCLA).
...via a new on-line journal, that is partly in English, partly in Chinese. We wish our jurisprudential colleagues in China much success with this new endeavor!
(Thanks to Scott Shapiro for the pointer.)
This will be of interest to students of legal philosophy, involving York Universtiy (and its Law School, Osgoode) and McMaster University, which, together, comprise probably the strongest legal philosophy cohort in Canada and one of the best ones in North America.
Quite possibly, at least hosted by a single institution. Should be a very good opportunity for students interested in legal philosophy.
This is a slightly revised version of the short paper I gave as part of the "philosophy panel" at the NEH conference on "Civility and American Democracy" at Washington State University last week. (Joe Campbell [Washington State] organized the panel, and the other philosophy speakers were Tom Christiano [Arizona] and Josh Cohen [Stanford].) The history panel was particularly useful, I thought, in underlining the important role of uncivil speech throughout the history of American politics. Professor McGirr from Harvard raised the especially important question why "civility" should have come to the fore as a topic of discussion now. I am inclined to agree, since it does seem to me mostly a distraction issue, meant to silence vigorous challenges to the status quo and preempt discussion of substance. (After all, the real problem with Rush Limbaugh and Glenn Beck is not that they aren't civil, it's that they're ignorant fools and serial dissemblers.)
UPDATE: Reader Jason Walta may have solved the mystery: "I think the only discernible guiding principle for inclusion on the list was 'Here Is A Person You'll Recognize From the Internet!'" Alas...
I'll be on The Docket, a law-related program on public radio in Orange County, California (broadcast out of UC Irvine), discussing the criminal libel suit against Professor Weiler and the Westboro Baptist case from the U.S. Supreme Court. I'm not sure whether one can listen on-line, but those local can tune in if the subject interests them.
This (relatively early) draft essay is available on SSRN for readers who might be interested; the abstract:
This is a draft of the final chapter of my forthcoming book WHY TOLERATE RELIGION? Earlier versions of material in the first part of the book appear on SSRN as "Why Tolerate Religion?" (Constitutional Commentary, 2008) and "Foundations of Religious Liberty: Toleration or Respect?" (San Diego Law Review, 2010) (the account of religion has changed somewhat since these two papers). The two main conclusions from earlier in the book that are presupposed in this draft chapter are that: (1) the moral value of liberty of conscience is not specific to claims of "religious" conscience; and (2) there are claims of conscience that are not "religious" in character (however precisely religion is understood). "Principled toleration" requires that a dominant group, with the means to stamp out or repress disfavored beliefs of others, nonetheless recognize that there are good moral reasons to permit such beliefs to be held and expressed (subject to the limits imposed by the Harm Principle). The draft chapter explores the question: what should become of the law of religious liberty in light of these conclusions? Should we opt for a scheme of universal exemptions for claims of conscience, or are there reasons to think that no exemptions for claims of conscience, religious or otherwise, are justified? The relation between toleration and religious establishment is also discussed.
This version benefitted from extremely helpful feedback from colleagues at a Work-in-Progress workshop here last week, as well as from written comments by our Law & Philosophy Fellow Ben Laurence. Additional feedback would be welcome. Thanks.
An anonymous student posted a link to this remarkable display on the earlier thread concerning the "Other"; the author of this new piece, Michael Marder, is the reviewer lambasted in the earlier thread. His latest bit of sophomoric obscurity is, alas, naturally read as a "reply" to the beating he took. According to Marder, naturalists (which he doesn't seem to realize includes "critical thinking" folks like Marx, Nietzsche, and Freud [the latter of whom Marder even invokes!]) are opposed to "critical thinking" and committed to the "status quo." (This will also come as news to Carnap and the other logical positivists who were actually opponents of both Nazism and capitalism.) It helps, to be sure, that Marder appears to have no notion of what naturalism is, as when he writes:
Under the title of naturalization, which remains suspiciously vague in a discourse ostensibly committed to the rigors of argumentation and clarity of expression, we encounter nothing more than a reductivist comprehension of nature as a set of empirically verifiable causal relations and quantities of force.
Actually, it is usually quite clear what is meant, as even a quick consultation of relevant articles in SEP would reveal--but, of course, Marder isn't doing scholarship or philosophy, he's just bluffing and licking his wounds. And one thing one might learn if one actually read some philosophy is that lots of naturalists aren't committed to "a reductivist [sic] comprehension of nature as a set of empirically verifiable causal relations and quantities of force."
I have, as I'm sure Marder knows, some views on "naturalizing jurisprudence," so I was especially amused by this paragraph, which would get a student expelled from even a mediocre PhD program, but apparently passes as "thinking" in some circles:
In the legal domain, "natural law" presupposes the pre-modern, teleologically inflected ontology of nature; this kind of law works when an entity fulfills its telos or function well. The universal principles inherent in this image of the law are metaphysically determined in keeping with the objectively fixed hierarchy of ends and, later on, the standard of truth emanating from the word of God.
Historical forms of natural law depended on a teleology of nature; contemporary forms do not.
Legal positivism is usually taken to be the exact opposite of natural law, though, in fact, it is nothing but the end result of the global translation of the old notion of "nature" into the categories of modern science.
Legal positivism does deny what at least some natural law theorists assert, namely, that there is a necessary conceptual connection between legal validity and moral justifiability. Some versions of natural law theory do not, however, claim such a connection, raising the question whether there is any dispute left (vide Mark Murphy's essay on natural law theory in The Blackwell Guide to Philosophy of Law and Legal Theory  for a good overview). Positivist theories typically hold that law is, in Hart's formulation, the union of primary and secondary rules, and that among the latter, is a "rule of recognition," which is just a complex social fact about the actual practice of officials in deciding questions of legal validity and their attitude towards that practice (their acceptance of it from an 'internal point of view' as Hart says). I'm sure that's what Marder had in mind by saying positivism is "the global translation of the old notion of 'nature' into the categories of modern science."
The naturalization of jurisprudence, with the attendant conceptualization of legality on the basis of cause-effect relations, enables the same legal oppression as the one that marked the pre-modern notion of the law.
Even God probably does not know what the last half of the sentence means ("enables...pre-modern notion of the law"), but the first half is another citation-free bit of free association. The naturalization project of the American Legal Realists did not involve a "conceptualization of legality on the basis of cause-effect relations," since it didn't involve a conceptualization of legality at all; the naturalization project of the Scandinavian Legal Realists [like Alf Ross] involved a translation of the normative concepts in law into predictions about behavior. So what does the author mean? Who knows?
What both approaches have in common, then, is their insistence on the objectively fixed meaning of the law, whether it is defined by the teleology of nature, by the word of God, or by the impoverished ontology of effective causality.
Neither Ross nor I, nor any legal positivist believes that there is an "objectively fixed meaning of the law." But it's another trademark of "Jewish poker" philosophy to lump together competing positions on the basis of total misunderstandings of those positions.
I do agree with Marder that "the response has to be both harsh and rigorous" to those who are "the enemies of thinking;" we differ, apparently, as to who the real enemy of thinking and serious critical thought is, though I can't imagine it's too mysterious to any literate person.
ADDENDUM: Michael Rosen suggests an apt bit of music for this occasion, from 1938: "Hes' dead--but he won't lie down."
Our ad is in the November JFP, and you can apply on-line here. Our current Fellow is Ben Laurence, a political philosopher who did his PhD at Pittsburgh, and last year's Fellow was Adam Hosein, a moral and political philosopher who trained at MIT. Here's the description of the post:
THE UNIVERSITY OF CHICAGO LAW SCHOOL. The University of Chicago Law School seeks to appoint a Law and Philosophy Fellow for the academic year 2011-12. 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 welcome from post-2004 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 justice; 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 general 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 January 21, 2011 at http://tinyurl.com/22lc7kp. 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 January 21, 2011. The University of Chicago is an Equal Opportunity/Affirmative Action Employer.
Please e-mail me if you have any questions.
The final (quotable and citable) version is here, for those who might be interested. It reflects the useful feedback and discussion at the international conference in Girona last May.
UPDATE: Let me respond to some questions that have already been e-mailed me, answers to which might be of general interest. First, these new full tuition scholarships are available to anyone, regardless of nationality. So foreign students can be awarded these lucrative fellowships. Second, there is only one criterion: academic excellence. Numbers are going to be a big part of that, i.e., LSATs in the 98th percentile and higher and GPAs in the 3.9 range and higher. Let me be clear: that's a rough numerical benchmark, not an official cut-off. Having a PhD in philosophy is also obviously going to be a big plus, and certainly the Law School will be looking for candidates with potential to be distinguished academics. (Per capita, Chicago lags only Yale in the number of graduates who go into law teaching.) Third, I do not generally recommend a JD for someone with a PhD (or concurrently pursuing a PhD) unless they are interested in teaching in law schools. While a JD will certainly add some intellectual value and skill sets that can be deployed to good effect in a philosophy career, it does not significantly enhance your competitive position on the philosophy market, and it's not obvious that the costs of the three-year course of study will be worth the intellectual benefits. But for those interested in a law teaching career, a JD/PhD is pretty much de riguer now for anyone who wants to do work at the intersection of law and philosophy and get a job in a law school. I talk a bit in the last paragraph of this old post about some of the difference between teaching philosophy in a law school versus a philosophy department, but I think I'll write something more about this soon.
MOVING TO FRONT FROM JULY 20, IN CASE ANYONE WHO (SENSIBLY!) DOESN'T READ BLOGS IN THE SUMMER MIGHT BE INTERESTED
I have posted on SSRN a review essay of Brian Tamanaha's interesting recent book Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press, 2010). This paper is not likely to be of general philosophical interest, but students or teachers of legal philosophy, or those with a side interest in law and legal theory, may find it of some value. Anyone who has read Tamanaha's book might also want to take a look at my analysis of the arguments and the evidence. Here is the abstract:
This is a review essay discussing Brian Tamanaha’s book BEYOND THE FORMALIST-REALIST DIVIDE (Princeton University Press, 2010).
Regarding Tamanaha’s historical thesis that “formalism” was not widely accepted in the 19th-century and that realist themes long predate the American Legal Realists (hereafter “Realists”) of the 1920s, I argue that (1) Tamanaha adduces enough evidence to state at least a *prima facie* case against any historian who wants to claim that in the 19th-century jurists and scholars generally believed that common-law judges did not make law in new circumstances ("Natural Law Formalism") and that judging was simply a mechanical exercise in deductive reasoning ("Vulgar Formalism"), although we still need to know how representative Tamanaha’s evidence is; (2) whether 19th-century jurists and scholars held or rejected more sophisticated (and philosophically interesting) forms of formalism is not addressed at all by Tamanaha’s evidence; (3) Tamanaha does not make even a *prima facie* case that the distinctive theses of the Realists had widespread traction in the 19th-century, partly because he emphasizes themes that were not, in fact, distinctive of Realism (e.g., the political influences on judicial decision), and partly because, when considering distinctive Realist themes, he adduces inapposite evidence or misrepresents the sources he quotes.
Regarding Tamanaha’s jurisprudential thesis that we can now move beyond the formalist-realist divide, I argue that (1) what Tamanaha calls “balanced realism” is a somewhat less precise version of the account of Realism developed by Schauer and myself going back some twenty years; (2) Tamanaha is mistaken in arguing that everyone is now a “balanced realist” largely on the basis of remarks by post-Realist judges (some of whom, like Harry Edwards, recognize that it remains controversial) and without according adequate attention to countervailing evidence, such as the Vulgar Formalism characteristic of public political debate about adjudication in the U.S.; theoretical accounts of adjudication like Ronald Dworkin’s, which try to vindicate Natural Law Formalism without any hint of Vulgar Formalism; and the self-understanding of other common-law legal cultures, like England’s, which embody formalistic elements; and (3) Tamanaha’s attempt to show that “formalism” is “empty” actually demonstrates its substantive meaning for many contemporary theorists as a normative theory or ideal for adjudication, rule-application and/or legal reasoning. “Formalism” and “realism,” once precisely characterized, remain useful jurisprudential categories, whatever the historical verdict on whether 19th-century jurists held Vulgar or Natural Law versions of formalism.
And here is the conclusion of the essay:
MOVING TO FRONT FROM MAY 26: THE DEADLINE IS APPROACHING!
At McMaster University in Hamilton (about an hour from Toronto) next May. I don't usually do these kinds of announcements, but opportunities like this for students in philosophy of law are few and far between, and McMaster has an unusually strong group of students and faculty working in the area.