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.

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.

Perry on Raz, Authority, and Anarchism

I am grateful to those who turned out at 9 am on a Sunday morning (!!!) to an "Author Meets Critics" session at the Eastern APA on my book Naturalizing Jurisprudence (OUP, 2007) and especially to Thom Brooks (Newcastle), the organizer, and Stephen Perry (Penn), the commentator.  (Sadly, the other commentator, Ken Himma [Seattle Pacific] was taken ill, but you can get a sense of some of his objections to my work from the papers he has posted on SSRN, especially #4 and #13, which overlap in some measure.  Professor Himma is organizing a symposium issue of Law and Philosophy on my book, and I hope he will develop some of his critiques there.)

Stephen Perry's commentary raised a number of quite interesting issues about the right way to understand Raz's account of the authority of law and its compatibility with the kind of "descriptive" jurisprudence to which Raz and Hart (and me, in a different way) are committed.  When Professor Perry's paper is publicly available, I will try to address some of those issues, but for now I wanted to at least record one point on which I clearly misconstrued Perry in Chapter 6 of my book ("Beyond the Hart/Dworkin Debate:  The Methodology Problem in Jurisprudence").   In an earlier paper, Perry had written:  "If [the service conception of authority] is right, then the anarchist thesis that the state could never have the moral authority it claims is wrong."  I critiqued this as follows (p. 172 of my book):

Raz's account of authority is perfectly compatible with 'the anarchist thesis that the state [more precisely, the laws of the state] could never have the moral authority it claims,' because Raz's thesis is only that all laws (sincerely) claim moral authority, not that they actually have it.  The anarchist thesis, in Razian terms, is simply the claim that law always fails to satisfy the Normal Justification Thesis.  Nothing in Raz's theory of authority or of law precludes it.

What Perry meant, however, is that the anarchist thesis that authority is impossible is wrong if Raz's service conception of authority is plausible, and that's right:  the service conception of authority explains how someone can have a justified claim of authority over another (rational, autonomous etc.) person, which the (Wolffian) anarchist denies is possible.  It is true that the service conception of authority is compatible with the anarchist claim that no state ever has authority, but that was not, in fact, the anarchist thesis at issue for Perry.

Leiter v. Shapiro on Theoretical Disagreement and Whether It is a Problem for Legal Positivism

My old friend Scott Shapiro (Yale) and I discuss this issue on "bloggingheads TV" here.  David Killoren (to whom our thanks for putting this together!) also provides links to the various papers that we reference during our discussion.  I learned a couple of interesting things about Scott's view that I had not appreciated previously, most notably that:  (1) he thinks that while some of the criteria of legal validity may, indeed, be fixed by a practice of convergent behavior (constituting a social rule etc.), he thinks the correct positivist respond to the problem of theoretical disagreement is to identify other social facts (unrelated to convergent behavior) that fix the criteria of legal validity in cases where what officials disagree about are those criteria; and (2) he thinks law does, indeed, have an "essential" function, namely, to try to make concrete what we, morally, ought to do (this comes up at the very end of the discussion). 

Brand-Ballard on Waluchow

Here's an illuminating review by Jeffrey Brand-Ballard (George Washington) of the most recent book by the Canadian legal philosopher W.J. Waluchow (McMaster), A Common Law Theory of Judicial Review.

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.