Brian Leiter's Legal Philosophy Blog

Green on Legal Realism and Naturalized Jurisprudence

Via Solum, I learn that my (part-time) colleague Les Green's (long-gestating) paper on "Law and the Causes of Judicial Decision" is finally on SSRN (it will appear in final form in Green's forthcoming collection of papers from OUP).  I have a number of quibbles about Leiter interpretation (the most important is that I've noted since at least my 1996 essay on Realism for The Blackwell Companion to the Philosophy of Law and Legal Theory that Felix Cohen was guilty of the kind of conceptual rule-skepticism Hart attacks--though oddly Hart never cites Cohen), but the core challenge is an interesting and novel one. 

On my account, most Realists are committed to the claim that the law (more precisely, legal reasoning) proves to be indeterminate in most of the cases that reach the stage of appellate review.   This indeterminacy arises, on the Realist argument, from the fact that there exist equally proper but conflicting ways of interpreting authoritative sources of law (like statutes and prior court decisions) such that the same source can yield conflicting rules (think of Llewellyn on the canons of statutory construction and the strict and loose view of precedent).  (Jerome Frank is an exception to this generalization, since he thought the crux of indeterminacy in legal reasoning resided in the latitude judges have in characterizing the facts of the case in terms of their legal significance, and so he thought intedeterminacy was pervasive.  I bracket his idioynscratic views here.)  In Green's terminology, the Realists deny that at the appellate level, cases are governed by "mandatory norms," i.e., rules that impose obligations on the judges to decide the case just one way and not any other. 

But Green's challenge is:   on what grounds can we cabin the argument for indeterminacy just noted to only those cases that reach the stage of appellate review?  In fact, their arguments for rule-skepticism (for indeterminacy) ought to entail that there are no mandatory norms anywhere in the legal system.  And any theorist who denies that there are any mandatory norms is denying something H.L.A. Hart (among many others!) affirms.   So, contra my presentation, there is a significant incompatibility between the positivist theory of law and Legal Realism.  Green's proposed solution to the dilemma is to suggest that we should understand the Realists to indeed recognize that there are legal norms, but to hold that they are all only "permissive" rather than mandatory:  they provide easily defeasible reasons for decision, reasons that are often defeated at the appellate level, less often in more humdrum cases. 

 

Now the notion of a "permissive" legal source is interesting in its own right, but the question I need to answer is why the Realist arguments for the indeterminacy of legal reasoning, which they deploy to good effect with respect to tons of examples drawn from appellate decisions, do not in fact entail denying the existence of any mandatory legal norms.  Here is one possibility (I am here truly "thinking out loud," though this thought has some resonance with issues raised in the context of explaining theoretical disagreements):  even if, in principle, the same conflicting methods of interpretatino could be applied in non-appellate cases, in fact, they are not, and officials (more or less) converge on the same results.  So, in principle, all norms are merely "permissive" (in something like Green's sense), but in fact lots of legal norms act as if they are mandatory because of this fact about the actual interpretive practice of officials.

Jurisprudence II: Objectivity

My tentative Spring Quarter Syllabus (Download Jurisprudence II Syllabus 2009), for those who might be interested.

Which journals publish the highest quality work in philosophy of law?

A new poll, which might provide some useful information for younger scholars figuring out where to submit their work.

UPDATE:  I should probably remind readers that I am no longer an editor of Legal Theory (I served in that capacity from 2000 through the middle of last year), though I remain on the editorial board.  (Les Green and I are editing the new Oxford Studies in the Philosophy of Law, which, for now, involves only comissioned pieces [the first volume will include new essays by Gardner, Perry, Greenberg, Laudan, Guastini, Baron, and Toh, among others].)   Legal Theory will soon have in place a great new lead editorial team, consisting of Matt Adler (Penn), David Brink (UC San Diego), Connie Rosati (Arizona), and Scott Shapiro (Yale).  Larry Alexander (San Diego) and Jule Coleman (Yale) are still editors during the transition.

Five New JD/PhDs in Philosophy Accept Tenure-Track Jobs in U.S. Law Schools

I was pleased to see the strong representation for law-and-philosophy typesin Solum's initial listing of junior hiring by U.S. law schools; indeed, it looks like the PhD in philosophy dominates all other disciplines among the JD/PhDs in the pool so far!  The new hires are:

Brooklyn Law School:  Brian Lee (JD Yale 2008, PhD Princeton 1999).

Louisiana State University:  Ken Levy (JD Columbia 2002, PhD Rutgers 1999).

Saint Louis University:  Chad Flanders (JD Yale 2007, PhD Chicago 2004).

Southwestern University:  Caleb Mason (JD Georgetown 2005, PhD Columbia 2001).

Villanova University:  Michelle Madden Dempsey (JD Michigan 1996, DPhil [Jurisprudence] Oxford 2008).

It does not appear that any of the new hires are products of JD/PhD programs, and I don't know how central law-and-philosophy work is for all these newly appointed faculty (though I know it is important for several of them).

Congratulations to all!

Which U.S. law school is best for "law and philosophy"?

Alas, dear readers, someone sent me a link to a Condorcet polling site, which made cooking up a new poll irresistible.  It tracks IP addresses, so no strategic voting!  And remember that 19th is the default ranking--if you don't want to score a school, choose 'no opinion.'

ALERT:  "L. Green" should have an # for part-time, not an * for 'over 70 in 2009' next to his name!  Sorry about that.

ANOTHER:  Gary Watson was wrongly omitted from the Southern California list--he is now roughly one-third in law, two-thirds in philosophy at USC since this past fall.

Who was the most important legal philosopher of the 20th-Century

I've been having fun with (utterly unscientific and unreliable) polls on my other blogs, so here's one for this audience.   Maybe we'll have a run-off, depending on the results here.  Feel free to post omissions from the list below in the comments.

Who was the most important legal philospher of the 20th-Century?
	Ronald Dworkin
	Joel Feinberg
	John Finnis
	Lon Fuller
	H.L.A. Hart
	Hans Kelsen
	Karl Llewellyn
	Joseph Raz
	Alf Ross
	Someone not listed above
View Results

Free poll from Free Web Polls

UPDATE (MARCH 4, 7 PM CST):  Here are the results after 70 votes:

1.  H.L.A. Hart (59%)

2.  Joseph Raz (13%)

3.  Ronald Dworkin (9%)

4.  John Finnis (6%)

4.  Hans Kelsen (6%)

6.  None of the choices offered--someone else (4%)

7.  Lon Fuller (3%)

8.  Karl Llewellyn (1%)

By the way, I didn't vote for Llewellyn, I voted for Hart.  Much as I enjoy Llewellyn, he's not, needless to say, a good philosopher (though not obviously worse than Fuller!).  Obviously the Anglophone readership explains how Kelsen could come in behind Dworkin.   I'll do another tally in a few days.

UPDATE (MARCH 7 6 PM CST):  So with not quite 140 votes cast, here's my final tally:

1.  H.L.A. Hart (55%)

2.  Hans Kelsen (14%)

3.  Joseph Raz (11%)

4.  Ronald Dworkin (9%)

5.  John Finnis (5%)

6.  Someone not listed as a choice (3%)

7.  Lon Fuller (2%)

8.  Karl Llewellyn (1%)

8.  Alf Ross (1%)

Congratulations to the winners!  Your prize check is in the mail!

Jurisprudence at the January 2010 AALS Annual Meeting

Longtime readers of my blogs will know of my distaste (shared by all thinking people!) for the annual meeting of the Association of American Law Schools, but my friend Scott Shapiro (Yale) is organizing a panel on "Legal Positivism:  For and Against" for the January 2010 meeting in New Orleans, so I'm going to participate for the first time in a long time.  Scott has already lined up Mark Greenberg (UCLA) (on the "against" side!), and has some other good invites outstanding.   An opportunity to talk with Scott and Mark is always rewarding, so I'll be there, though I may finally force Scott to surrender his positivist union card if he doesn't recant on certain points!   In any case, I expect it to be a substantive panel and I thought jurisprudents in law schools might be interested.  Of course, leaving Chicago in January for New Orleans is also a non-trivial attraction.

Litowitz Reviews "Derrida and Legal Philosophy"

Douglas Litowitz, who has a far higher opinion of Derrida than I do, makes some nice points in this review of a recent collection.  From his concluding paragraph:

As the editors correctly point out, Derrida is routinely denounced by scholars unfamiliar with his work. This means that certain people will reject this book simply because it is associated with Derrida. Conversely, certain people embrace everything that Derrida writes, and they will have the opposite, equally uncritical, reaction to this book. In between these extremes is a group of scholars, like myself, who are moderately sympathetic to Derrida. Most of us are generally willing to endure Derrida's lack of argumentative rigor, his endless word games and pretentious deferrals, in exchange for those few shining moments when he offers a truly unique reading of a key text, or when he draws attention to a person or a concept that has been wrongfully excluded or marginalized. Such readers would probably be receptive to a book about Derrida and legal philosophy if it clearly set forth Derrida's notion of justice and demonstrated how it complements, challenges, or improves upon the positions staked out by other legal philosophers. It is curious that instead of reaching out in this way, the contributors to this book seem content to decry Derrida's marginalized status as a legal philosopher without demonstrating why it is so undeserved.

Of course, his marginal status as a legal philosopher (and, I would add, as a philosopher) is deserved, and a book of essays by folks who largely know nothing about legal philosophy is, of course, not in a good position to demonstrate otherwise.

It is true that fans of Derrida routinely assert that "Derrida is routinely denounced by scholars unfamiliar with his work," but what exactly is the evidence that the scholars with a low opinion of Derrida have not read him?  As with Simon Critchley, whom we discussed once before, I think more often than not the assertion is not based on any actual evidence but rather on the question-begging assumption that if someone had read Derrida, of course they would appreciate him! 

A Generous Review of "Naturalizing Jurisprudence" in Mind by...

...Veronica Rodriguez-Blanco, a legal philosopher at the University of Birmingham.  The review is here (I think this should be accessible even if you are not viewing it from a computer at a university that does not subscribe).  Here is the first paragraph of the review:

More than ten years ago, Leiter advanced the idea that Quinean naturalism could shed light on important and pressing issues in jurisprudence. Leiter’s research aims to answer three core questions within the framework of naturalism:  what the American Legal Realists were trying to convey, what is the most appropriate methodology to apply to future inquiries in legal philosophy, and whether legal and moral facts should have a place in our best explanatory account of law. Naturalised jurisprudence brought fresh, fruitful, and powerful ways of thinking in legal philosophy. It obliged us to rethink the self-image of legal philosophy and its location in the wider spectrum of epistemology, philosophy of language and mind, metaethics, and morality. The collection of essays is, then, the reflection of a thoughtful, insightful, and influential body of work. It comprises nine previously published essays and two unpublished postscripts to the essays. It is a superb contribution because of its rigorous scholarship and honest analysis.

And the last:"Leiter’s collection is a sophisticated and creative view on naturalism in legal philosophy marking a tour de force in jurisprudential thinking. It raises fundamental challenges to non-naturalist jurisprudence that, in my view, cannot be ignored if legal philosophers are to ensure disciplinary progress."

And now you can rush out and buy a copy (in paperback I should add) here!

New Issue of "Episteme" Devoted to Philosophical Issues in Evidence Law

Here.  I haven't seen a hard copy yet, but it's a distinguished group of contributors, including many of the major figures working at the intersection of evidence law and philosophy, such as Ronald J. Allen, Larry Laudan, Dale Nance, and Alex Stein, as well as promising younger scholars like Amalia Amaya, one of Laudan's colleagues at UNAM.  Certianly "must reading" for those interested in the area.  And the articles are avialable for free on-line currenlty!