Brian Leiter's Legal Philosophy Blog

What are the best articles in General Jurisprudence in the Last Year and Why?

Please post only once and be patient, posts may take awhile to appear.

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

A draft of what was my Dunbar Lecture in Law and Philosophy at the University of Mississippi last week is here. 

Revisiting the Hart-Fuller Debate

Papers from the recent NYU conference are available on-line.  (I haven't had a chance to read any of them yet, so can't offer guidance.  Thoughts from readers who have read some of them are welcome.)

Department of Scholarly Howlers...or How Seriously Do Teachers of Philosophy of Law Take Realism?

Jeremy Telman (Valparaiso) writes:

[N]o course on jurisprudence at a U.S. law school--even if taught by a philosopher of law persuaded by Hart's critique [of legal realism]--would ignore Realism (p. 8).

The footnote accompanying this sentence reads:  "For example, despite his dismissal of Realism as having had no impact on Anglo-American jurisprudence in Rethinking Legal Realism, Brian Leiter's current syllabus [for jurisprudence] begins with three weeks on Legal Realism."  Of course, I never dismissed Realism for its having had no impact on Anglophone jurisprudence--my essay is devoted to showing how unfortunate that dismissal is--and I would have thought (vanity of vanities, I know, but I would think someone making claims about my views might have read my work) that I had a modest reputation as a major critic of Hart's misinterpretation of legal realism.  Indeed, someone who had read only Rethinking Legal Realism, and nothing else, would have learned as much about my views.

But putting the scholarly carelessness of Professor Telman's essay to one side, the interesting empirical question raised by his comments is this:  how many teachers of "jurisprudence," who actually know something about philosophy, include American Legal Realism in their course?  And how much do they include?  Signed comments only; post only once (as I'm travelling a bit the next week, so comments may take awhile to appear).

UPDATE: For those of you coming here via Frank Snyder, a law professor at Texas Wesleyan University:  I do not know why Mr. Snyder--who has sent me weirdly abusive e-mails in the past about other matters--has launched into an irrelevant ad hominem attack on me.  As I wrote to him (he does not quote this):

The 'truth' about this matter isn't subtle or complex.  Professor Telman, pretty obviously, didn't read my article.  His misrepresentation is in an article he posted on SSRN, which is how I found it....[I]f you say Professor X holds the opposite of the view he holds, that's a "howler."  Not a big deal, just what it is.  You really must be a very sensitive fellow. I'm sorry if this upset you.  In the future, though, please try to act like a professional.

Mr. Snyder, alas, is one of those delicate souls who has not spent much time around philosophers.  So it goes.

I would still welcome feedback from those philosophers who teach jurisprudence about their coverage of Realism.

Dickson on the Supposed "Conventionality" of the Rule of Recognition

I have just finished reading a characteristically careful and intelligent article by Julie Dickson (Oxford) on "Is the Rule of Recognition Really a Conventional Rule?" Oxford Journal of Legal Studies 27 (Autumn 2007):  373-402.  Together with Leslie Green's important piece on "Positivism and Conventionalism," Canadian Journal of Jurisprudence 12 (1999):  35-52, it should put to rest the idea that the rule of recognition is a conventional rule in the precise sense that "the reasons for accepting and following it must include the fact that others follow it too" (Dickson, p. 375) (I'll refer to this as the Conventionality Thesis).  The Rule of Recognition is most certainly a customary (or conventional) rule, in the sense of being constituted by a "shared common practice" of officials, but that is not enough for the Conventionality Thesis about which so much ink has been spilled.

Dickson shows, with a detailed textual analysis, that in the original edition of The Concept of Law, Hart plainly did not endorse the Conventionality Thesis, but that in the "Postscript" he seems to endorse the Conventionality Thesis (as a response to Dworkin's argument in "The Model of Rules II"), but, in fact, makes ambiguous remarks even in that context.  Her hypothesis (plausible, I think) is that Hart was misled by what he perceived to be the "lifeline" Dworkin had thrown him in criticizing the practice theory of rules, namely, that some rules can be Hartian social rules insofar as they satisfy the Conventionality Thesis.  But Hart, of course, did not need to go that route in order to response to Dworkin's false dilemma (the supposed choice between concurrent and conventional practices).

Ultimately, as Dickson writes, "the question remains whether there are good reasons to adopt...a conventionalist explanation of the rule of recognition" (388).  She doesn't directly answer that question, instead examining Marmor's recent account of the rule of recognition as a "constitutive" conventional rule.  She argues, persuausively to my mind, that Marmor's account is not one that, in fact, vindicates the Conventionality Thesis.   Here is Dickson's useful summary of her core claims from pp. 398-399:

[T]he crucial question in all of this is whether the practice in common amongst judges of recognizing certain things as valud law is reason-giving.  In examining Hart's and Marmor's views, I have sought to make clear a distinction which, in my view, is sometimes under-attended to in discussions of the rule of recognition, namely the distinction between common judicial practice as an existence condition of that rule, and as playing an identifying role with regard to it on the one hand, and that practice playing a reason-giving role with regard to it on the other....In explaining the character of the rule of recongition, including the role of common judicial practice with regard to that rule, Hart was undertaking the explanatory task of giving an account of some of law's essential properties.  He was not attempting to justify or explain what is valuable about the social institution of law, and he was not attempting to give an account of the reasons why and the conditions under which the rules of a legal system including the rule of recognition ought to be accepted and adhered to.

This seems to me to be exactly right, and it supports the worry that Hart took a "wrong turn" in the "Postscript" in appearing (albeit not entirely clearly) to endorse the Conventionality Thesis.

So from Dickson and Green we have a challenge to all those (Coleman, Postema, Marmor, Shapiro, et al.) who either endorse the Conventionality Thesis or think that positivism needs to explain why the rule of recognition is reason-giving.  Why isn't it enough for positivism to simply note the social fact that, where there is law, the rule of recognition is in fact taken to be binding?  Does anyone know of a good response to this challenge?  I do not.

Best Articles in Legal Philosophy That Appeared in 2007?

So, as I noted on my philosophy blog, The Philosopher's Annual is coming back to life, and now I've been asked to serve as a Nominating Editor.  I would be curious to hear from readers whether there were any philosophy of law articles that appeared in 2007 that they thought were really first-rate?  I think there might be one or two in contention, but I may also have missed good pieces.  All comments on this thread must be signed.  Post only once; as usual, comments may take awhile to appear.  Thanks for your assistance.

My Spring "Jurisprudence" course syllabus

For those who might be interested, it's here:  Download jurisprudence_syllabus_2008.doc.  This is the 3-hour version, meant to introduce students to the main issues in general jurisprudence; it is aimed at law students (not undergraduates).  I've taught it, in more or less this form, for over a decade now, and it is well-received by the students here.

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.)

Schauer on Areas of Legal Philosophy That Deserve More Attention in the Future

From Legal Philosophy:  5 Questions, Fred Schauer (Harvard) on "which problem, issue or broad area of legal philosophy would you most like to see more attention paid in the future":

I wish there were more attention paid by legal philosophers to questions of legal procedure, in the largest sense of that idea.  This attention would include the kinds of issues of legal epistemology that have been the subject of recent work by philosophers such as Susan Haack, Alvin Goldman, and Larry Laudan, but would also include addressing questions about the idea of a burden of proof, about the nature of the adversarialy approach to legal decision-making, about the relationship between procedure and larger questions of fairness, and about much else....Law is, in part, characterized by the procedures it employs, and it is law's procedures that, in large part, distinguish it from other policy-making and decision-making domains.  Consequently, it would be a welcome development if the law's procedures, and indeed the idea of procedure itself, were subjected to the same kind of sustained philosophical attention that we have seen for various areas of substantive law.

MacCormick on Hart

An excerpt from the interview with Sir Neil MacCormick, the Regius Professor at the University of Edinburgh (who was, for a time, my part-time colleague at Texas in the 1990s, much to our good fortune), from Legal Philosophy:  5 Questions:

Hart's greatest and most enduring insight concerns the need to understand rule-governed conduct from the "internal point of view".  This is essential to developing a clear and convincing theory of norms--but rules are only one kind of norm.  The analysis of law as a union of primary and secondary rules, though full of valuable insight, is in the end incomplete and unsatisfactory.  A fresh start is needed.  A version of a "basic norm theory" is more satisfactory than a "rule of recognition" theory in explaining how a legal system comes together in the framework of a constitutionalist state.  Legal institutions interface with politics and economics and are foundational for the state and also for civil society.  Criminal iaw is one essential part of the foundations of social peace and thus of civil society.  All this takes one quite far from the Hartian conception of law, though the development out of a Hartian position is easily traced.  Law and morality are indeed conceptually distinct, but it remains also true that minimal elements of respect for justice are essential to the recognition of a normative order as "legal" in character.

I'd be curious to hear what readers make of this, especially those who have followed MacCormick's recent work more carefully than I have.

Authorities that Perform a "Partial Service": An Objection to Raz's Objection to Soft Positivism?

Here is a puzzle Mark Greenberg (UCLA) and I have been discussing, which we have shared with some legal philosophers on e-mail, and thought we would post here:

Raz argues that in order for law to have the capacity to be authoritative, its directives must satisfy the following condition: 

"it must be possible to identify the directive as being issued by the alleged authority without relying on reasons or considerations on which [the] directive purports to adjudicate.” Ethics in the Public Domain, p. 202. 

His argument for this condition is that, otherwise, the directive would be unhelpful to the subjects.  He gives the example of parties to a dispute who are told simply that the arbitrator made the only correct decision, and he points out that this would be entirely unhelpful.  He concludes: “A decision is serviceable only if it can be identified by means other than the considerations the weight and outcome of which it was meant to settle.”  EPD, p. 203

But this conclusion seems false. Suppose that there are ten dependent reasons (call them A, B, C….J) that might bear on practical reasoning about what ought to be done in some instance, and the directive in question (correctly) tells the subject, “You ought to act based on A and B only,” thus telling the subject to exclude considerations of types C through J.  Suppose that the authority is, in fact, correct that A and B are the dependent reasons that ought to be considered in this context, and that in the absence of the directive, the subjects would have considered some number of C through J and reached the wrong result, whereas with the directive, the subjects will focus only on A and B and thus will, in fact, be more likely to do what they really ought to do than otherwise.  It seems that this directive thus performs a “service” for its subjects. Unlike being told that the decision is correct, this directive is helpful, even though (1) to know what they ultimately ought to do the subjects must consider dependent reasons (reasons of the type that fall under A and B), and (2) what the directive tells them to do cannot be identified without recourse to dependent reasons (of the type that fall under A and B). An authority who issued such directives could satisfy the Normal Justification Thesis (since the subjects could be likely better to comply with reasons which apply to them if they accept the directives as authoritatively binding and try to follow them than if they try to follow the reasons which apply to them directly).

If this is right—if what we might call a “partial service” authority (an authority that performs the partial service of telling subjects which dependent reasons are most relevant) can satisfy the Normal Justification Thesis—then doesn’t Raz’s argument against Soft Positivism fail?  That is, couldn’t a Rule of Recognition, by incorporating just some content-based criteria of legal validity perform the partial service for officials of telling them which kinds of dependent reasons they really ought to consider in validating legal norms, and thus enable them to do what they really ought to do more successfully then they would without such guidance?

I should note that my original thought was that Raz could, indeed, allow for "partial service" authorities, but it was Mark who persuaded me that this created a problem for the argument against Soft Positivism.  We both drafted the version of the puzzle, above, as an outgrowth of our conversation.

Green v. Shapiro on the Relevance of Deontic Logic

Scott Shapiro (Michigan) has weighed in with some sharp questions (scroll down) in response to the claim by Michael Steven Green (William & Mary) that Anglophone philosophers of law are "peculiar" and "prejudiced" in failing to attend to deontic logic.

UPDATE:  More on deontic logic--this time, in relation to ethics--here, with Ralph Wedgwood (Oxford), Mark Kalderon (UCL), Simon May (Virginia Tech), and Nick Zangwill (Durham), among others, weighing in.

Michael Green and Hans Kelsen Redux

Happily, Michael Green made some revisions to the original version of his putative response to my post answering his question why Kelsen is relatively neglected by Anglophone philosophers of law (Green thinks he is particularly neglected by "American" philosophers of law).  Green has also now put up a separate, and quite interesting, description of topics on which he believes Kelsen has interesting things to say (in response to questions posed by Larry Solum); I commend that to interested readers.  I am going to focus here, instead, on his "reply," which even in its revised form is rather peculiar.

Green posed, originally, the question why Kelsen is relatively neglected by "American philosophers of law" (since that's not a meaningful category, I'm going to focus on Anglophone philosophers of law).  I agree that he is relatively neglected.  One obvious answer for why--nowhere noted in Green's original post--is that he has become a figure of merely "historical" interest given the compelling criticisms (primarily by Hart) of the two distinguishing features of Kelsen's "pure theory" of law.  Like many figures with failed or historically dated jurisprudential views--other examples would be Austin or Radbruch--he attracts less attention than those figures whose views still seem to have philosophical merit.  Thanks in large part to Hart, general jurisprudence has moved away from the  "here's what  the great men of the past thought" approach to "here are the best arguments for answers to the fundamental questions about the nature of law."  (This is true in philosophy generally, of course.  Why aren't Neo-Kantians studied and taught extensively?  Because theirs was a failed philosophical program, of historical interest, to be sure, but not obviously of philosophical interest.  There are no Logical Positivists any longer, nor are there any Absolute Idealists, and so on.  Philosophy may not solve many or any problems, but, at least when done seriously, it is pretty good at figuring out which sytematic answers to philosophical problems are fatally flawed.) 

Green suggests he is only interested in the "sociological" question of why Anglophone philosophers of law neglect Kelsen, not the merits.  Thus, he writes in response to my diagnosis:

I suggested one reason [that Kelsen is neglected] was that "Americans look at law and legal systems empirically - as fundamentally involving questions of social facts," whereas for Kelsen the law was fundamentally non-empirical. Brian Leiter has responded to my post over at his Legal Philosophy Blog. What he says seems to confirm my diagnosis.

Leiter is surprised that I didn't mention "what is surely the main reason for lack of attention to Kelsen, namely, that it is pretty widely thought that Hart persuasively undermined the two most distinctive features of Kelsen's jurisprudence." But one of these two distinctive features turns out to be, as Leiter puts it, Kelsen's view "that the normative force of law was only explicable by reference to a non-natural transcendent fact, what Kelsen called the Grundnorm."

Americans side with Hart, Leiter argues, because he offered "an account of law and its apparent normativity in terms that were exclusively psychological and sociological - in terms of what legal officials do and their attitudes towards what they do - that render otiose the need to posit transcendent norms." Americans don't like Kelsen, in short, because he took a non-empirical approach to the law.

Leiter might be correct that Kelsen's resistance to empiricism is fatal. (My goal was describing why Americans don't talk about Kelsen, not whether they are right not to do so.) But his motivations appear to be just what I described in my earlier post.

I confess I really do not understand what Green means by "empiricism" here.  Is the method of "ordinary language philosophy" an empiricist method?  In what sense is Hart an empiricist?  The Scandinavian Realists are, in a very precise sense, empiricists, but their semantic and epistemological views are not shared in toto by Hart, let alone Raz.  Green surely knows that those skeptical about the "pure theory of law" are motivated not by philosophical doctrines (e.g., empiricism), but by trying to understand certain phenomena--law and legal systems, the normative claims the law makes, the differences between law and other social norms.  They think that Hart's account fares better than Kelsen's on this score--for example, because it does not involve gratuitous ontological posits (transcendent norms), and it gives a better account of the normative pretensions of law (e.g., to impose obligations).  Perhaps what Green wants to say is that, on the Kelsenian view, the Grundnorm is not a gratuitous ontological posit, because it does a kind of explanatory work (regarding the relations between abstract objects) that Hart's theory does not.  That's an intelligible argument, but it has nothing to do with empiricism (unless one thought that Hart's "empiricism" [whatever that is] commits him to denying the existence of abstract objects--but there is no reason at all to saddle him with that kind of view, is there?). 

Green also complains that in the U.S., "little is written [about Kelsen] and it usually gets Kelsen wrong."  He continues:

Leiter's post is an example. His description of the basic norm as a "transcendent norm" is one Kelsen explicitly rejected (e.g. Introduction to the Problems of Legal Theory p. 25). Kelsen is a Neo-Kantian and the distinction between the transcendent and the transcendental is basic Kant.

Kelsen can believe what he wants about the status of the Grundnorm, but that is neither here nor there (in philosophy, authors do not get to settle questions about the coherence or nature of their claims!).  Of course, the transcendent and the transcendental are different, but that, rather obviously, doesn't preclude them from coinciding in many instances.  Not every specification of the possibility conditions for some phenomenon or capacity will involve positing a transcendent (e.g., a non-empirical) entity, faculty or property, but even on Green's (non-standard but intriguing) account of the Grundnorm, it figures in explaining the possibility of our knowledge of the necessary normative relations that hold between "legal meanings" which are "abstract objects."  Since this account is, again on Green's (plausible) rendering, offered in opposition to naturalistic and psychologizing accounts, it is quite clear that the description of the Grundnorm as "transcendent" is wholly apt:  surely it is not anything empirical or natural that explains the necessary relations holding between abstract objects? 

So Green's comments about the difference between the transcendental and the transcendent are, in this context, just obfuscatory pedantry, that have nothing to do with any substantive issue.

For reasons I don't follow, Green seems keen to insist that Kelsen's and Austin's view of the role of sanctions in law are different.  They are, indeed, different in the ways Green note (I did not intend to claim otherwise).  But they are not different vis-a-vis what worried Hart, namely, that a conceptual link between law and sanctions (either actual or permissible) mischaracterizes the law's claim to impose obligations on its subjects. 

Green also adduces some anecdotal evidence about Kelsen's philosophical importance in the non-Anglophone world, as distinct from his influence in constitutional and international law.  I have nothing to add to what I said in the comments to the previous post about this issue.

Regarding the original question--why Kelsen looms larger outside than inside the Anglophone world--I would particularly call the attention of readers to the long comment (scroll down) by Giovanni Ratti (Girona) regarding the appeal of Kelsen's jurisprudential theory for civil law countries.

ADDENDUM:  I spoke of Green's account of the Grundnorm as a non-standard one; a more conventional account can be found in Andrei Marmor's essay here.

Why don't American philosophers of law talk about Kelsen?

So asks Michael Steven Green (William & Mary).  Somewhat to my surprise, he does not note what is surely the main reason for lack of attention to Kelsen, namely, that it is pretty widely thought that Hart persuasively undermined the two most distinctive features of Kelsen's jurisprudence, namely:  (1) that the nature of law is essentially tied to its use of sanctions, and (2) that the normative force of law was only explicable by reference to a non-natural transcendent fact, what Kelsen called the Grundnorm.  Contra Kelsen (and Austin), Hart argued that linking law's nature to the use of sanctions misrepresents law's normativity; and on the second point, Hart offered an account of law and its apparent normativity in terms that were exclusively psychological and sociological--in terms of what legal officials do and their attitudes towards what they do--that render otiose the need to posit transcendent norms.  There are no doubt other reasons that Kelsen is relatively neglected--his unlovely writing style is surely one; the pernicious influence on his jurisprudence of tendencies in NeoKantian German philosophy at the time another--but surely an important reason is that two central features of his jurisprudential view seem to be mistaken.

It is probably worth noting that within Anglophone "analytic" jurisprudence (a more pertinent category, it seems to me, than "American philosophy of law," which doesn't really exist), there is actually a lot more work on Kelsen than Green allows (though Stanley Paulson is quite plainly the leading English-language Kelsen scholar, but many others have written on Kelsen, perhaps most notably Joseph Raz).  And even if sanction-based theoreis of law and the "purity" of the "pure theory of law" have few adherents, there still remain a lot of interesting aspects of Kelsen's jurisprudential work that deserve attention.  (Some day my colleague Les Green will publish his provocative views on the rather striking similarities between Dworkin and Kelsen, though Dworkin may not welcome this exposition.)

(As a side note, Kelsen's huge influence in the non-Anglophone world, noted by Green, has much more to do with his contributions to constitutional and international law, than to legal philosophy.)

An Epistemological Puzzle about Legal Positivism?

MOVING TO FRONT FROM AUGUST 26, as I have finally got around to replying to the excellent comments.

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The puzzle is due to Mark Greenberg (UCLA), who suggested it in conversation the other day (when we were discussing this paper of mine).  (Greenberg is spending the calendar year 2007 at UT Austin.)  I'll give my rendition of it, and then sketch what I take to be some possible answers.

According to the positivist, if a judge says, "I have a legal obligation to X," that statement is true if there is a convergent practice of behavior by officials to X, and officials accept the rule describing that practice from an internal point of view.  But--contra Dworkin in "The Model of Rules II"--the fact of convergent behavior is not the justification for taking oneself to have the legal obligation (the judge will not appeal to the convergent behavior in explaining the obligation).  Since the truth-conditions of the statement are not the justification for the statement, how can a judge know that he has a legal obligation?  That's the puzzle.

Two possible answers, in my view.  First:  for an externalist reliabilist, one can know one has an obligation if there is some reliable process causally connecting the truth-conditions for the judgment with the making of the judgment, even if the maker of the judgment knows nothing about those truth-conditions.  I don't think this is the route Hart would go, but externalist reliabilism about justification would be one way of solving the puzzle.

The other route is truer to Hart, I think:  namely, to deny that the judgment, "I have a legal obligation to X" is in fact a cognitive judgment, i.e., that it is knowledge at all.  We have known for a long time that Hart took for granted the then-prevalent non-cognitivism about ethics, and in a quite important recent paper on"Hart's Expressivism and his Benthamite Progress" which appeared in Legal Theory in 2005, Kevin Toh gave the first really systematic account of how the non-cognitivism figures in his theory of law.   If judgments about legal obligations are really non-cognitive--really expressions of acceptance of a norm which licenses the claim about legal obligation--then there is no question about how a judge "knows" that he has a legal obligation. 

But, of course, that also means that it can't be true that he has a legal obligation to X, doesn't it?  Or perhaps it is just "minimally" true (vide Wright, Truth and Objectivity)? 

Thoughts?

Is It a "Theoretical" or "Empirical" Disagreement?

As some readers may know, I was working this summer on how one explains what Dworkin calls "theoretical disagreement", prompted by my friend Scott Shapiro's striking claim that positivists had failed to respond adequately to the the problem posed by Dworkin in Law's Empire. 

Now here's an interesting case, suggested to me by Peter Cane (ANU), on which I'd be curious to hear reader reactions.   Peter describes the following kind of disagreement regarding statutory interpretation as extremely common:  officials agree that the plain meaning of the statutory text should control interpretation, but if the terms are ambiguous, then officials should consult purposive considerations.  But often officials disagree about whether terms are ambiguous and thus whether the move to purpose is necessary.  Is this a "theoretical" or "empirical" disagreement in Dworkin's sense?  Bear in mind, of course, that these are terms of art for Dworkin, and so answers should make reference to the technical sense Dworkin employs.  I have a view about the answer, but I am curious what others make of this case.  Thanks.