Last Monday and Tuesday (June 6 & 7), I attended what I thought was a really first-rate conference on "The Challenge of Philosophical Naturalism" organized by Dennis Patterson for his Rutgers Institute for Law and Philosophy. I certainly won't attempt to report in detail everyone's paper, but I thought it might be of interest to some readers (and useful for me) to review some of the highlights. Since some of the papers presented (or their recommended background readings) are on-line (at the same site linked above), interested readers can read more if they want.
We began late Monday afternoon with a spirited polemic against conceptual analysis by Jerry Fodor, who argued that concepts have no semantically relevant internal structure, and so there are no (non-stipulative) conceptual entailments. Concepts are like "Lucretian atoms": they can't be analyzed because they have no parts. We were also treated to a characteristically funny assault on conceptual pragmatism along the lines of the critique quoted here many months ago. There followed an intense, if unproductive, exchange between Fodor and Michael Smith, the latter defending "the Canberra Plan" (as Steve Stich called it) according to which a conceptual analysis articulates the maximally consistent set of platitudes in which the concept is invoked (the platitudes being the benchmark for mastery of the concept), and the former objecting that this was tantamount to analysis-by-stipulation.
The first session Tuesday morning was given over to ethics, with Stich articulating one kind of naturalistic program of research in ethical theory (developed with John Doris [Washington University, St. Louis] and Shaun Nichols [University of Utah]) and related to much of the fascinating work one finds on the valuable "Experimental Philosophy" blog. Philosophers have a bad habit of talking about the intuitions of "ordinary folk" (or "our intuitions") without averting to any evidence as to what people actually think about the questions at issue, and without attending to the possibility that the "intuitions" are affected by irrelevant factors (from framing effects to socio-economic status). So, for example, Stich called attention to empirical research suggesting that incompatibilist intuitions about free will and responsibility are not as common as some philosophers believe, and that "ordinary folk" do not accept motivational internalism about moral judgments (the view that anyone who judges X-ing to be morally wrong is necessarily motivated to refrain from X-ing). The experimental results are fascinating, even if their interpretation remains quite contestable (that is especially true, it struck me, with respect to the experiments testing incompatibilist intuitions--though for a different, recent example, see John Sabini and Maury Silver, "Lack of Character? Situationism Critiqued," Ethics 115 (2005): 535-562). Can there be any doubt, though, that if philosophy is to avoid self-congratulatory parochialism that this kind of work must define the future direction of philosophical research? (A sidenote: during subsequent discussion, Stich mentioned empirical findings--reported, I believe, in Shaun Nichols' new book--that Kantian intuitions track neurophysiological indicators of brain disease, a result congenial to we Nietzscheans...but that's a topic for another day!)
Michael Smith carried the flag for a kind of non-naturalistic approach to ethics. Naturalism, of course, means many different things--see, e.g., Chapter 1 of my Nietzsche on Morality [London: Routledge, 2002] on this--so the main point is that Smith defended an approach to ethics different from Stich's. In particular, Smith talked more systematically about "the Canberra Plan," allowing that it was an empirical question whether any people were using words to express the concepts that had been subjected to a priori analysis, but that didn't count against the necessity of such analyses (or their a prioricity).
The remainder of the morning session was given over to naturalism in epistemology. Alvin Goldman offered a characteristically lucid account of kinds of naturalism in epistemology, but his main goal was to get clear about the ways in which intuitions can be reliable forms of evidence in the analysis of concepts. What, Goldman asked, is the target of a conceptual analysis of, say, "knowledge"? Is the concept of "knowledge" a Platonic form? (Not very plausible these days.) Is it a natural kind? (Kornblith thinks that, but Goldman expressed doubts.) Is it a Fregean "sense"? (Goldman didn't say much about this.) Is it a psychological entity "in someone's head"? (If so, then that someone's intuitions are clearly probative, but not very interesting.) Is it simply the aggregation of the psychological entities in the prior sense? (Or maybe the aggregation of the entities in the heads of the "experts"?) This last seems to be what many philosophers have in mind (this is true, e.g., in philosophy of law). But that, of course, makes it imperative to follow Stich's lead, rather than speculating from the armchair about what it is "the folk" actually have in their heads. (Goldman didn't disagree when I asked a question along these lines.)
Michael Williams took up the naturalism question from a different angle, revisiting Sellars's classic discussion in "Philosophy and the Scientific Image of Man" of how we can (if we can!) reconcile the "scientific" and "manifest" images of human beings. (It was really nice to have occasion to re-read that essay after many years!) Among other interesting points, Williams argued, plausibly I thought, that Sellarsian enthusiasts like McDowell, Brandom, and Rorty were really just partisans of the manifest image, and that they failed to come to terms with the Sellarsian challenge of how the two are to fit together in a coherent picture of the world.
At lunchtime, we were treated to a lively, and sometimes plausible, polemic against Quine by Peter Hacker--who is best-known, of course, as the High Priest of orthodox Wittgensteiniasm (the latter being a literalist reading of the holy texts often unrecognizable, needless to say, to those "reform" readers, like me, who got their Wittgenstein from Wright, Boghossian, McDowell, McGinn, Kripke et al.). Hacker's talk combined familiar, and often compelling, criticisms of naturalized epistemology with what one might (charitably) call preposterously uncharitable readings of Quine. (Did you know that Quine failed to realize that evidence, insofar as it figures in justification, is "propositional" in form?) Arguments from authority of the form "As Ryle pointed out..." and "As Austin pointed out..." also made surprising appearances, giving one a sense, perhaps, of what some Oxford philosophy might have been like in the early 1960s.
As I have the misfortune of being the most extreme naturalist working in legal philosophy, Dennis was kind enough to schedule me and three commentators (Geert Keil, Ben Zipursky, and Alvin Goldman) for a three-hour afternoon session on issues of naturalism in jurisprudence.
Readers of my Nietzsche work know that I read Nietzsche as a kind of naturalistic philosopher (a "speculative naturalist," as I call him, somewhat like Hume). Almost all my jurisprudential work has been driven by a similar interest in the prospects for philosophical naturalism. I first became interested in the idea of a naturalized jurisprudence more than a decade ago when I was trying to make sense of why the American Legal Realists--the most important indigenous jurisprudential movement in the U.S. in the last hundred years--thought jurisprudence should be primarily concerned with the empirical question of how judges actually decide cases and what causes them so to decide. I tried to show that the Realists weren't bad philosophers, as H.L.A. Hart thought, but prescient philosophical naturalists, and that one could reconstruct the Realist arguments for a "naturalized" theory of adjudication by analogy to the kinds of arguments Quine gave for naturalizing epistemology. To be sure, so construed, the Realist arguments inherited some of the same problems as Quine's, but at least there was now a recognizable philosophical rationale for approaching theoretical questions about adjudication as they did. (The crux of this aspect of my investigations in naturalized jurisprudence can be found primarily in three papers: "Rethinking Legal Realism: Toward a Naturalized Jurisprudence," Texas Law Review 76 (1997): 267-315, which is also reprinted (in relevant part) in Jurisprudence: Classical and Contemporary, ed. R. Hayman et al. (Minneapolis: West Group, 2002); "Naturalism and Naturalized Jurisprudence," in Analyzing Law: New Essays in Legal Theory, ed. B. Bix (Oxford: Oxford University Press, 1998); and "Legal Realism and Legal Positivism Reconsidered," Ethics 111 (2001): 278-301, which can also be found in The Philosophers' Annual Volume XXIV, ed. P. Grim et al. [Stanford: CSLI Publications, 2002].)
Of course, within naturalized epistemology, there is a less radical, and more influential, research program best exemplified by Alvin Goldman's work: here conceptual analysis (for example, an analysis of the concept of justification) still plays a role, but the proferred analyses make it an empirical question which true beliefs are actually cases of knowledge. For naturalists like Goldman, and also my some-of-the-time colleague Larry Laudan, applied epistemic questions become instrumental questions that demand empirical answers: which methods of forming beliefs are most reliable for creatures like us? Since my main substantive law area has been, for more than a decade now, the law of evidence, a field which is largely (not entirely) an exercise in applied epistemology in the Goldman-Laudan sense, another aspect of my naturalistcally-minded work has involved exploring the ways in which this naturalistic program in epistemology bears on scholarly questions in evidence law. (That aspect of my work in naturalized jurisprudence can be found in "The Epistemology of Admissibility: Why Even Good Philosophy of Science Would Not Make for Good Philosophy of Evidence," Brigham Young University Law Review 1997: 803-819; "Naturalized Epistemology and the Law of Evidence," Virginia Law Review 86 (2001): 1491-1550 (with Ronald J. Allen) (and see also our reply to the critique by Mike Redmayne [LSE] in the symposium on "Visions of Rationality in Evidence Law" in Michigan State University Law Review 2003: 885-892); and "Prospects and Problems for the Social Epistemology of Evidence Law," Philosophical Topics 29 (Spring 2001): 319-332.)
Starting in the late 1990s, I moved away from the reconstruction of the Realist arguments, and became interested in the question why the Quinean naturalistic revolution in philosophy of the 1960s and 1970s, and its aftermath, has had so little impact in legal philosophy. Doubts about the method of conceptual analysis and the reliability of intuitions are familiar in epistemology, in philosophy of mind, even now in ethics. But legal philosophy has been untouched, even though intuitions here, as elsewhere, are hostage to empirical ignorance, parochial bias, and selection effects. (The smallness, and Oxford-centric nature, of the Anglo-American jurisprudential community makes the latter perhaps particularly worrisome.) This aspect of my work on naturalism in jurisprudence became the central focus in "Realism, Hard Positivism, and Conceptual Analysis," Legal Theory 4 (1998: 533-527), which, in slightly revised form, appears as "Legal Realism, Hard Positivism, and the Limits of Conceptual Analysis," in Hart's Postscript, ed. J.L. Coleman [Oxford: Oxford University Press, 2001]; and "Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence," American Journal of Jurisprudence 48 (2003): 17-51, which will also appear in Law and Morality, ed. B. Bix & K. Himma in The International Library of Essays in Law and Legal Theory, 2nd series, from Ashgate in 2006.
For the Rutgers conference, I explored a new line of argument related to the doubts about the method of conceptual analysis via intuition-pumping: what if we were to treat the concept of law as a kind-concept, and apply to jurisprudence the Quinean dictum that "it is within science itself, and not in some prior philosophy, that reality is to be identified and described"? That would require us to take seriously, in a way legal philosophers do not, actual empirical results as they pertain to legal phenomena. I spent a good deal of time on the Attitudinal Model of judicial decision from the political science literature, asking the question whether the normativity of law, so central on Hart's account, drops out entirely from the concept of law that figures in an explanatory-predictive theory like the Attitudinal Model (hence the title of my talk: "Does Naturalized Jurisprudence 'Change the Subject'?").
Prior to the conference, I got valuable feedback from Larry Laudan on the paper, and, together with the excellent commentary at the conference by Goldman, Zipursky and especially Keil--as well as helpful questions from the audience (and not to mention long-standing prodding from my colleague Les Green!)--I'm now persuaded that it is a mistake to treat the concept of law as picking out a "kind" (as Laudan aptly remarked to me, far more extended efforts by philosophers of science failed to yield the essence of science--"Science, like most human artifacts, turns out not to be a natural kind"). The poor quality of the existing empirical science seems an especially intractable problem. (Predictive success with regard to judicial outcomes on the order of 75%--which is the best the Attitudinal Model does [and it's at the high end!]--isn't very impressive when guessing would yield 50% accuracy!) But giving up the idea that the concept of law picks out a "kind" doesn't mean there isn't still important work for naturalists in jurisprudence--for example, Stich-style work on the concept of law understood as the aggregate "meanings in the head" of the "folk" (or even the expert, lawyerly "folk"). The central role of intuitions about "authority," "normativity," and "legality" in jurisprudence calls out for some systematic, non-armchair assessment of the claims of the legal philosophers. Ian Farrell has begun work on that task, and he and I are continuing research on that score. As to my paper from the conference, I expect to turn it into a piece on why one way of naturalizing jurisprudence isn't fruitful.
All in all, "The Challenge of Philosophical Naturalism" was one of the most rewarding conferences I've attended. Kudos to Professor Patterson and the Rutgers Institute for hosting such a fine event!
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