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.
I asked readers of my law school blog, and here's their answer.
A video of a lecture by yours truly, perhaps of interest to some readers. Some more details here.
Here, for those who might be interested.
It's the place to be for legal philosophers.
Here, for those who might be interested.
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.
Some comments on an interesting recent essay here.
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.
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.
I know you folks have been wondering!
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.)
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.
Some readers might find this of interest.
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.
An update on the book.
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.
...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.
From another Brian Leiter.
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.
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.
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.
...has now been published in the U.S. It is available in paperback, so hopefully someone will read it!
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!
...here, for those who might be interested.
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.
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.
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.
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.
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.
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.
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.
Those interested in legal philosophy may find this post of value.
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.
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.
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.
If you know something about legal philosophy--especially Oxford-centric legal philosophy--you will find this rather amusing. (Thanks to Les Green for the pointer.)
The web site has finally been updated, for those who might be interested.
A reader just pointed out that my paper on "American Legal Realism" is the most downloaded jurisprudence paper in the history of SSRN--and certainly the most downloaded one that is actually on a jurisprudential topic! (The SSRN categories are, shall we say, a bit loose.) That's one of the best things about blogs (one can get one's scholarly work into wider circulation)--and, of course, about SSRN.
I am wondering whether any readers know of literature making the case for toleration of religion qua religion. What has struck me in reading the literature is that while religious toleration is often a paradigm case for discussions of toleration, the arguments for it are not specific to religion: arguments from autonomy and well-being would equally well encompass toleration of many other kinds of belief that are not religious in character; the Lockean argument is not specific to religion, since state tools for coercion are ineffective in inculcating belief simpliciter, not simply religious belief; Millian arguments from versions of the Harm Principle cast the net much more widely than religion; and so on.
The only exception to this generalization I have found in the literature is an interesting paper by Timothy Macklem (Law, King's College, London) on "Faith as a Secular Value," which appeared in the McGill Law Journal in February 2000. Macklem argues that the distinctive religious state, faith, is one that has a special value that warrants its special treatment in liberal societies. I don't think the argument succeeds, but that's not what concerns me here. What I'm wondering is whether there are other articles that try to argue why religion in particular should be tolerated, arguments that make claims appealing to distinctive features of religious belief and practices. Or as Macklem frames the question: "What is it that distinguished religious beliefs from other beliefs, so as to make them worthy of distinctive, perhaps superior constitutional protection?" That, to my mind, would be an argument for religious toleration.
Comments are open. Because I have somewhat erratic computer access, it may take awhile for comments to appear, but please post your comment only once. Thanks, as always, learned readers for your assistance.
Given the extraordinary public ignorance about what it is judges really do, these points really can't be made often enough. A litigation partner with one of the nation's leading law firms writes:
I read your recent posts on the Alito nomination. For 30 years now I have litigated business cases. I also handle a significant number of appeals in both the federal and state systems. And, not unusually, I have acquaintances and friends who are state and federal trial and appellate judges. I mention that because I wonder at the sanity of those who think that it is realistically possible in close and controversial cases on issues of public import (and most Supreme Court cases are precisely that or they wouldn't have had cert granted) to ignore your own predilections and beliefs. In fact, it is just such cases that seem to call for a leap of faith or logic at some critical point; the means to accomplish that leap often stems from personal beliefs. It is so obvious to those of us who live in the courtroom that it is hardly worth discussion. No single fact or circumstance is more important than to know the judge who will decide the case. To take another example, every firm that I know of with a significant Supreme Court practice brings to bear on a Supreme Court brief and argument the views of former clerks to as many current Justices as possible. There is only one reason to do that, and it is not to consider the precedents or even "super precedents." (I apparently missed the law school course on those.) Roe sadly and inevitably gets all the attention in Supreme Court nominations. And it may well be that the unique pressure of the nomination process leads even a Justice Alito to be wary of reversing Roe outright and soon. But it will be for that reason that he does not do so, not because he really believes that a Justice has no ability to bring to bear his or her personal views. And even if they are disguised in the Roe context, his personal views will surely come out in many other contexts that escape close Senate scrutiny during the hearing process. (In that regard, the ability of a judge to decide cases without bringing his personal views to bear in the every day criminal or immigration or business case is almost entirely irrelevant to this issue; it is easy to keep a steady hand on the tiller when you don't much care about the destination).
We have touched on this topic before, but the case is especially well-put here by Geoffrey Stone (Law, Chicago).
What was said of the record of the new Chief Justice John Roberts applies equally, it appears, in the case of Judge Alito of the U.S. Court of Appeals for the Third Circuit:
The record...clearly documents his single-minded focus on limiting legal protections and opportunities for African-Americans, Latinos, alien children, people with disabilities, women, and others.
This describes the actual referent of the term "conservative" in U.S. political culture these days. The short overview of Judge Alito's record here and the longer overview here give some flavor of the man's moral and political commitments. Orin Kerr (Law, George Washington) suggests Judge Alito is more like the new Chief Justice, John Roberts, than like Antonin Scalia. (That assessment is confirmed by a former clerk at the end of this article--though bear in mind that Justice Scalia wrote a far better opinion on the most important issue before the Court in recent years than most of the liberals and moderates. Justice Scalia's commitment to "original meaning" (not original intent) is a double-edged sword.) Note that fifteen years of service on the Federal Bench has not seemed to temper his conservative activism in any measure.
Let us recall the words of Judge Posner, an honest man:
I don't object to the fact that Senators are concerned about the ideology of judicial candidates; the President is concerned, so why shouldn't the Senators be? Anyone who is realistic about the American judicial process knows that ideology affects decisions, especially the 'hot button' decisions that engage the attention of politicians; and Senators are politicians.
While some number of cases that reach the highest stages of appellate review--namely, the U.S. Supreme Court--will demand only technical legal skills for their resolution, a significant number will, as Judge Posner correctly notes, demand moral and political judgment, and thus will engage the "ideology" of the judge. Every grown-up knows this, of course, which is why there is such a fierce political battle over the appointment of someone who will, on a range of issues, act as a super-legislator. I assume no Democrat would vote for Bush or Alito for President; there is no reason, then, why they should vote for him as a super-legislator.
As usual, Pharyngula cuts to the chase:
Samuel Alito is a polyp sprouting from the diseased colon of the Republican party. I don't care if he's kind to his family, has a wonderful sense of humor, or refrains from branding women with an iron in the shape of an "A"—his political lineage is unambiguous, and that makes him a scabrous chancre not suitable for the office. He's a last-gasp representative of an absolute failure of an administration, the final ghastly moan of a set of bankrupt political policies that are utterly wrong for our country. He must be opposed. Sign on to MoveOn's petition.
On the other hand, there is the hopeful tale told by my colleague Scot Powe in The Warren Court and American Politics (Harvard University Press), and echoed in the work of other political scientists and students of the Supreme Court, according to which the Court is not an initiator of social and political changes, but simply the reflection of them in society at large. Perhaps this is right; if it is, there is less at stake than may appear in these confirmation battles, and the super-legislature may be closer to the mirror-legislature: if its decisions are cruel and reactionary it is because the society as a whole is cruel and reactionary. Time, as always, will tell.
UPDATE: Useful analysis by Jack Balkin (Law, Yale) of what the confirmation of Judge Alito to the Supreme Court is likely to mean in a number of contested areas.
from Allan Hutchinson, legal theorist and Fellow of the Royal Society of Canada, at Osgoode Hall Law School in Toronto.
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