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.

Spaak Reviews Me

Larry Solum (Illinois) kindly flagged for me that Torben Spaak, on the law faculty at Uppsala University in Sweden, has posted a review essay about my Naturalizing Jurisprudence collection.  I have just read through it quickly (as I'm heading out of town), but it seems a fair-minded engagement with my book (for which I thank Professor Spaak), and particularly interesting because of its contention that the Scandinavian Realists are the naturalists in jurisprudence to whom we should really pay heed.   (I've suggested previously that the Scandinavians demand more sympathetic attention, so I welcome his suggestion, though I'm not sure he is entirely sensitive, at least in this review essay, to the worries about the viability of their position.)  One small point:  Professor Spaak is mistaken in suggesting (at p. 3) that I think causal explanations rule out reason-based explanations.  I am, as I say at p. 4, a "relaxed" naturalist, meaning whatever works makes it into our ontology.  The Hempel/Dray debate Professor Spaak references is ancient history as far as genuinely methodological naturalism is concerned. 

Because I am on the road currently, comments (if there are any) may take longer than usual to appear.

Cardozo on the Tasks of Philosophy of Law

This is Benjamin Cardozo from The Growth of the Law (Yale University Press, 1924), p. 24-25:

A philosophy of law will tell us how law comes into being, how it grows, and whither it tends.  Genesis and development and end or function, these if things, if no others, will be dealt with in its pages.  To these it will probably add a description of the genesis and growth and function, not only of law itself, but also of some of those conceptions that are fundamental in the legal framework. 

Most of these tasks are not--at least not at all obviously--part of the philosophy of law today, in part because it is not obvious that philosophers have the requisite skills and knowledge to address these potentially vast socio-historical issues.  This is, no doubt, because the reference point for what counts as "philosophy" has changed from Cardozo's day to our own.   Cardozo's most frequent philosophical references are to James, Windelband, Bergson, and Dewey.  Has anyone even read Windelband?  (I have heard the name, but I have not read him.)  It is a foreign philosophical climate, now forgotten (or should we say vanquished?), perhaps rightly so, perhaps not.  To be sure, some still read and teach bits of James and Bergson and Dewey, but they do not define the "climate" of philosophical opinion or inspire the "tasks" of the discipline.

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.)

John Gardner's skepticism about "the distinctiveness of legal philosophy"

I have been reading around the interesting interview/essays in Legal Philosophy:  5 Questions, and thought I would post some interesting excerpts over the next few weeks.  Here is John Gardner (Oxford) answering the question about the "distinctive" issues of legal philosophy (pp. 50-51 of the book):

I should begin by expressing my doubts about the distinctiveness of legal philosophy.  It is best to think of legal philosophy as part of political philosophy, which in turn is part of moral philosophy, which in turn is part of the philosophy of practical rationality, which in turn is part of the philosophy of rationality in general (to which philosophical aesthetics and epistemology also belong).  The partitioning involved in this nested structure is, however, somewhat arbitrary.  Except for the purposes of designing, recruiting students, and hiring colleagues, it doesn't really matter which issues are classified as belonging to the philosophy of law or any other branch of philosophy.  What matters is that good philosophers do interesting work on deep puzzles in a way which shows sufficient sensitivty to ther interrelations with other deep puzzles.  One of the pitfalls of attemping to demarcate different areas of philosophy...is that it encourages a bureaucratic approach to academic life:  those who do primary work in moral philosophy, for example, may feel that it is legitimate to borrow ready-to-wear theories from the 'epistemology' rack, rather than tackling epistemic theories for themselves.  They may look comical dressed in these borrowed theories, since they lack an original creator's sense of how the theories are supposed to be used and developed.  The philosophy of law is not immune from this comedy.

When I suggested that the philosophy of law is part of political philosophy, you may have heard echoes of Ronald Dworkin.  Dworkin criticizes those (including me) who try to tackle conceptual problems about law in a way that leaves open what poliitcal actors, including judges, should do....Dworkin is right to insist the philosophy of law cannot be autonomous of political philosophy, for it is part of it.  His mistake lies in his view of political philosophy itself.  Political philosophy is not exhausted or even dominated by questions about what political actors should do.  Just as epistemology includes the conceptual question "what is belief?", the answer to which does not determinate or even suggest what beliefs anyone should hold, so political philosophy includes numerous conceptual questions (what is legislation?  what is a state?  what is an election?), the answers to which do not determine or even suggest what anyone should do.  We need to answer these questions if we are to make sense of the proposed political principles in which the concepts in question figure....By denying that there are any such prior conceptual questions, or at least that there are any such prior conceptual questions about law, Dworkin is not campaigning for a greater integration of legal philosophy into political philosophy.  He is campaigning for those of us who already regard legal philosophy as part of political philosophy to change our understanding of political philosophy, maybe indeed philosophy as a whole.