Brian Leiter

Moral Facts and Best Explanations

Do moral properties figure in the best explanatory account of the world? According to a popular realist argument, if they do, then they earn their ontological rights, for only properties that figure in the best explanation of experience are real properties. Although this realist strategy has been widely influential—not just in metaethics, but also in philosophy of mind and philosophy of science—no one has actually made the case that moral realism requires: namely, that moral facts really will figure in the best explanatory picture of the world. This issue may have been neglected in part because the influential dialectic on moral explanations between philosophers Gilbert Harman and Nicholas Sturgeon has focused debate on whether moral facts figure in relevant explanations. Yet as others have noted, explanatory relevance is irrelevant when it comes to realism: after all, according to the popular realist argument, it is inference to the best explanation of experience that is supposed to confer ontological rights. I propose to ask, then, the relevant question about moral explanations: should we think that moral properties will figure in the best explanatory account of the world?

Legal Formalism and Legal Realism: What Is the Issue?

This is a review essay discussing Brian Tamanaha’s book BEYOND THE FORMALIST-REALIST DIVIDE (Princeton University Press, 2010). Regarding Tamanaha’s historical thesis that “formalism” was not widely accepted in the 19th-century and that realist themes long predate the American Legal Realists (hereafter “Realists”) of the 1920s, I argue that (1) Tamanaha adduces enough evidence to state at least a *prima facie* case against any historian who wants to claim that in the 19th-century jurists and scholars generally believed that common-law judges did not make law in new circumstances (“Natural Law Formalism”) and that judging was simply a mechanical exercise in deductive reasoning (“Vulgar Formalism”), although we still need to know how representative Tamanaha’s evidence is; (2) whether 19th-century jurists and scholars held or rejected more sophisticated (and philosophically interesting) forms of formalism is not addressed at all by Tamanaha’s evidence; (3) Tamanaha does not make even a *prima facie* case that the distinctive theses of the Realists had widespread traction in the 19th-century, partly because he emphasizes themes that were not, in fact, distinctive of Realism (e.g., the political influences on judicial decision), and partly because, when considering distinctive Realist themes, he adduces inapposite evidence or misrepresents the sources he quotes.Regarding Tamanaha’s jurisprudential thesis that we can now move beyond the formalist-realist divide, I argue that (1) what Tamanaha calls “balanced realism” is a somewhat less precise version of the account of Realism developed by Schauer and myself going back some twenty years; (2) Tamanaha is mistaken in arguing that everyone is now a “balanced realist” largely on the basis of remarks by post-Realist judges (some of whom, like Harry Edwards, recognize that it remains controversial) and without according adequate attention to countervailing evidence, such as the Vulgar Formalism characteristic of public political debate about adjudication in the U.S.; theoretical accounts of adjudication like Ronald Dworkin’s, which try to vindicate Natural Law Formalism without any hint of Vulgar Formalism; and the self-understanding of other common-law legal cultures, like England’s, which embody formalistic elements; and (3) Tamanaha’s attempt to show that “formalism” is “empty” actually demonstrates its substantive meaning for many contemporary theorists as a normative theory or ideal for adjudication, rule-application and/or legal reasoning. “Formalism” and “realism,” once precisely characterized, remain useful jurisprudential categories, whatever the historical verdict on whether 19th-century jurists held Vulgar or Natural Law versions of formalism.

Nietzsche's On the Genealogy of Morality : Who is the “sovereign individual”? Nietzsche on freedom

Who is the “sovereign individual” of GM II:2, and what does he have to do with Nietzsche’s conceptions of free will, freedom or the self? I shall argue for what would have been, at one time, a fairly unsurprising view, namely, that (1) Nietzsche denies that people ever act freely and that they are ever morally responsible for anything they do; (2) the figure of the “sovereign individual” in no way supports a denial of the first point; and (3) Nietzsche engages in what Charles Stevenson would have called a “persuasive definition” of the language of “freedom” and “free will,” radically revising the content of those concepts, but in a way that aims to capitalize on their positive emotive valence and authority for his readers. More precisely, I aim to show that the image of the “sovereign individual” is, in fact, consistent with the reading of Nietzsche as a kind of fatalist, which I have defended at length elsewhere. To show that the image of the “sovereign individual” squares with Nietzsche’s fatalism, I distinguish between two different “Deflationary Readings” of the passage. On one such reading, the figure of the “sovereign individual” is wholly ironic, a mocking of the petite bourgeois who thinks his petty commercial undertakings - his ability to make promises and remember his debts - are the highest fruit of creation. On another Deflationary Reading, the “sovereign individual” does indeed represent an ideal of the self, one marked by a kind of self-mastery foreign to less coherent selves (whose momentary impulses pull them this way and that), but such a self, and its self-mastery is, in Nietzschean terms, a fortuitous natural artifact (a bit of “fate”), not an autonomous achievement for which anyone could be responsible. To associate this ideal of the self with the language of “freedom” and “free will” is an exercise in “persuasive definition” by Nietzsche, a rhetorical skill of which he was often the master.

Measuring the Academic Distinction of Law Faculties

This study measures the academic distinction of 66 law faculties by combining three measures: per capita rates of citation, per capita productivity of books and articles, and subjective reputation among academics. The advantages and disadvantages of these different measures of academic distinction are explored, and the case is made for how these different measures complement each other to produce the most current and reliable ranking of the nations top law faculties.

Realism, Hard Positivism, and Conceptual Analysis

The American Legal Realists, as I read them, are tacit legal positivists: they presuppose views about the criteria of legality that have affinities with positivist accounts of law in the sense that they employ primarily pedigree tests of legal validity. Ever since Ronald Dworkins well-known critique of H.L.A. Harts positivism a generation ago, however, it has been hotly contested whether there is anything about positivism as a legal theory that requires that tests of legal validity be pedigree tests. So-called Soft or Inclusive versions of positivism are willing to relax the restrictions on the content of a Rule of Recognition to admit non-pedigree criteria of legal validity; Hard or Exclusive versons of positivism deny that such a move is compatible with the central commitments of positivism. Hard Positivism, of which Joseph Raz has been the leading proponent, thus competes with various Soft Positivisms, defended by, among others, Coleman, Lyons, Soper, Waluchow, and now, explicitly, Hart himself in the “Postscript.” If the Realists are positivists, as I claim, then it cannot be the case that Soft Positivism is a genuinely positivistic doctrine. But there is more at stake here than just labels. Realist arguments for the indeterminacy of law—arguments central to the whole Realist enterprise—depend crucially on their tacit Hard Positivism. If, in fact, positivism has a more relaxed view of the criteria of legality than Hard Positivism supposes, then Realist arguments depend on unsound tacit premises about legal validity. What is at stake, then, is not whether Realists should be called (tacit) “Positivists” or merely (tacit) “Hard Positivists,” but whether their underlying view of the criteria of legality is sound. It can only be so if the best arguments favor Hard Positivism.

Why Marxism Still Does Not Need Normative Theory

Abstract Marx did not have a normative theory, that is, a theory that purported to justify, discursively and systematically, his normative opinions, to show them to be rationally obligatory or objectively valid. In this regard, Marx was obviously not alone: almost everyone, including those who lead what are widely regarded as exemplary ‘moral’ lives, decide and act on the basis of normative intuitions and inclinations that fall far short of a theory. Yet self-proclaimed Marxists like G. A. Cohen and Jurgen Habermas have reintroduced a kind of normative theory into the Marxian tradition that Marx himself would have ridiculed. This essay defends Marx’s position and tries to explain the collapse of Western Marxism into bourgeois practical philosophy, i.e., philosophizing about what ought to be done that is unthreatening to capitalist relations of production.

Llewellyn, Karl Nickerson (1893–1962)

This article is reproduced from the previous edition, volume 13, pp. 8999–9001,

Nietzsche’s Theory of the Will

©  Brian Leiter I     that Nietzsche has provocative views about the nature of the will and free will. It is less often appreciated that his views on these topics have considerable merit. Nietzsche not only anticipates and lends argumentative support to the new wave of non-libertarian incompatibilism defended by philosophers like Derk Pereboom () and Galen Strawson () — the view that free will is incompatible with “determinism” and that there is no credible account of free will as outside the causal order in the ong — but his theory of the will also wins some support from recent work on the will in empirical psychology (see Wegner ). As a philosophical naturalist, Nietzsche thought of his theoretical endeavors as proceeding in tandem with empirical inquiry (Leiter : –). As befits his self-designation as “the first psychologist”, it turns out that Nietzsche anticipated results that psychologists only arrived at a century later. In section  of Daybreak, Nietzsche sets out the primary issues that shall occupy us here in trying to understand his theory of the will. Nietzsche writes:

On the Value of Normative Theory: A Reply to Madry and Richeimer

I am grateful to Alan Madry and Joel Richeimer for their intelligent and stimulating critique of my article “Heidegger and the Theory of Adjudication.” It is the most interesting commentary I have seen on the paper, and I have learned much from it. It may facilitate discussion, and advance debate, to state with some clarity where exactly we agree and disagree. I leave to the footnotes discussion of certain minor points where Madry and Richeimer (hereafter “M&R”) are guilty of some critical overreaching.