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Abstract:
This essay sets out the main elements of the revisionary and philosophical interpretation of the jurisprudence of American Legal Realism that I have developed in a series of articles over the last decade. This reading emphasizes the commitment of all the Realists to a core descriptive claim about adjudication (judges respond primarily to the underlying facts of the cases, rather than to legal rules and reasons); shows how the Realists divide in to two camps over the correct interpretation of this "core" claim (the Idiosncyrasy Wing of Frank, and the Sociological Wing of Llewellyn, Oliphant, Moore, Green, and the vast majority of Realists); demonstrates the connection of the Sociological Wing of Realism to the Realist project of law reform, including the work of the American Law Institute; examines and distinguishes the Realist arguments for the indeterminacy of law from Critical Legal Studies arguments; and shows how the Realists lay the foundation for the program of a "naturalized" jurisprudence, in opposition to the dominant "conceptual" jurisprudence of Anglophone legal philosophy. The revisionary reading also debunks certain popular myths about Legal Realism, like the following: the Realists believed "what the judge ate for breakfast determines the decision"; a critique of the public/private distinction was a central part of Realist jurisprudence; and the Realists were committed to an incoherent form of rule-skepticism.

Abstract:
Religious toleration has long been the paradigm of the liberal ideal of toleration of group differences, as reflected in both the constitutions of the major Western democracies and in the theoretical literature explaining and justifying these practices. While the historical reasons for the special pride of place accorded religious toleration are familiar, what is surprising is that no one has been able to articulate a credible principled argument for tolerating religion qua religion: that is, an argument that would explain why, as a matter of moral or other principle, we ought to accord special legal and moral treatment to religious practices. There are, to be sure, principled arguments for why the state ought to tolerate a plethora of private choices, commitments, and practices of its citizenry, but none of these single out religion for anything like the special treatment it is accorded in, for example, American and Canadian constitutional law. So why tolerate religion? Not because of anything that has to do with it being religion as such - or so this paper argues.

religion, toleration, jurisprudence

Abstract:
This essay (based on a keynote address to the inaugural conference of the new Rutgers Institute for Law and Philosophy) reviews five major developments in the field of law and philosophy over the past 30 years, examining, in particular, the place of the well-known work of Ronald Dworkin, work which has loomed larger outside the field than within. In particular, it argues that the seven most distinctive Dworkinian theses about the nature of law and adjudication have now been extensively and decisively criticized over the past three decades, so much so that Dworkin himself has abandoned several of them. While Dworkin's work was indisputably important for the development of legal positivism in the final quarter of the twentieth-century, the essay shows why it is unlikely to play much role in jurisprudence of the 21st century.

Jurisprudence, Philosophy, Dworkin

Abstract:
For three decades now, much of the Anglo-American legal philosophy curriculum has been organized around something called the Hart/Dworkin debate, a debate whose starting point is Ronald Dworkin's 1967 critique of the seminal work of Anglophone jurisprudence in the twentieth-century, H.L.A. Hart's 1961 book, The Concept of Law. This essay reviews the Hart/Dworkin debate and argues that it no longer deserves to play the same organizing role in the jurisprudential curriculum of the twenty-first century that it played at the close of the twentieth: on the particulars of the Hart/Dworkin debate, Hart has emerged the clear victor, so much so that even the heuristic value of the Dworkinian criticisms of Hart are now in doubt. (Dworkin's quite recent polemic against legal positivism in the 2002 Harvard Law Review is also addressed briefly.) The significant philosophical challenges that face legal positivists are now different, often in kind, from the ones Dworkin made famous. These, I shall argue, fall into two broad categories: first, the correct account of the content of the rule of recognition and its relationship to the possibility of law's authority (the Hart/Raz debate); and second, the proper methodology of jurisprudence, a debate which aligns defenders of descriptive conceptual jurisprudence (like Hart and Raz) against two sets of opponents: natural lawyers like Finnis, Perry and Stavropoulos who challenge whether jurisprudence can be descriptive; and philosophical naturalists, like the present author, who question whether conceptual analysis is a fruitful philosophical method in jurisprudence (or elsewhere).

Abstract:
Contemporary moral psychology has been dominated by two broad traditions, one usually associated with Aristotle, the other with Kant. The broadly Aristotelian approach emphasizes the role of childhood upbringing in the development of good moral character, and the role of such character in ethical behavior. The broadly Kantian approach emphasizes the role of freely chosen conscious moral principles in ethical behavior. We review a growing body of experimental evidence that suggests that both of these approaches are predicated on an implausible view of human psychology. This evidence suggests that both childhood upbringing and conscious moral principles have extraordinarily little impact on people's moral behavior.

This paper argues that moral psychology needs to take seriously a third approach, derived from Nietzsche. This approach emphasizes the role of heritable psychological and physiological traits in explaining behavior. In particular, it claims that differences in the degree to which different individuals behave morally can often be traced back to heritable differences between those individuals. We show that this third approach enjoys considerable empirical support - indeed that it is far better supported by the empirical data than are either the Aristotelian or Kantian traditions in moral psychology.

Abstract:
Paul Ricoeur famously dubbed that great triumvirate of late nineteenth - and early twentieth-century thought - Marx, Nietzsche, and Freud - "the school of suspicion," by which he meant those thinkers who taught us to regard with suspicion our conscious understandings and experience, whether the deliverances of ordinary psychological introspection about one's desires ("I really want to be rich!"), or the moral categories political leaders and ordinary citizens apply to themselves and the social world they inhabit ("an inheritance tax is an immoral death tax!"). "Beneath" or "behind" the surface lay causal forces that explained the conscious phenomena precisely because they laid bare the true meaning of those phenomena: I don't really want lots of money, I want the love I never got as a child; survivors have no moral claim on an inheritance, but it is in the interests of the ruling classes that we believe they do; and so on.

Recent years have been, in now familiar ways, unkind to Marx and Freud. Yet instead of a frontal assault on the critiques of the explanatory programs of Marx and Freud, the defense of their legacy in the English-speaking world has gradually fallen to those I will call moralizing interpreters of their thought. The moralizing readers de-emphasize (or simply reject) the explanatory and causal claims in the work of Marx and Freud, and try to marry more-or-less Marxian and Freudian ideas to various themes in normative ethics and political philosophy. Explanation of phenomena is abandoned in favor of the more traditional philosophical enterprise of justification, whether of the just distribution of resources or the possibility of morality's authority. So, for example, G.A. Cohen, the most influential of English-language Marx interpreters in recent decades, has declared that "Marxism has lost much or most of its [empirical] carapace, its hard shell of supposed fact" and that, as a result, "Marxists . . . are increasingly impelled into normative political philosophy." (Under the influence of Habermas, the Marxist tradition has taken a similar turn on the Continent.) Similarly, a leading moral philosopher notes that, "Just when philosophers of science thought they had buried Freud for the last time, he has quietly reappeared in the writings of moral philosophers" and goes on to claim that "Freud's theory of the superego provides a valuable psychological model for various aspects of (Kant's) Categorical Imperative." On these new renderings, Marx and Freud command our attention because they are really just complements (or correctives) to Rawls or Korsgaard, really just normative theorists who can be made to join in a contemporary dialogue about equality and the authority of morality.

Nietzsche, too, has been transformed by moralizing interpreters, though in a somewhat different way. The crucial development here has been the retreat from the natural reading of Nietzsche as a philosopher engaged in an attack on morality - a reading first articulated by the Danish scholar Georg Brandes more than a century ago - in favor of a reading which presents Nietzsche as fundamentally concerned with questions of truth and knowledge: the moralistic scruples of interpreters are satisfied by treating Nietzsche as concerned with something else, something less morally alarming than a "revaluation of values."

I shall argue that, in fact, all three of the great practitioners of the hermeneutics of suspicion have suffered at the hands of moralizing interpreters who have resisted the essentially naturalistic thrust of their conception of philosophical practice. As a matter of both textual exegesis and intellectual importance, Marx, Nietzsche, and Freud are best read as primarily naturalistic thinkers, that is thinkers who view philosophical inquiry as continuous with a sound empirical understanding of the natural world and the causal forces operative in it. When one understands conscious life naturalistically, in terms of its real causes, one contributes at the same time to a critique of the contents of consciousness: that, in short, is the essence of a hermeneutics of suspicion.

Abstract:
This is the text of an interview with Brian Leiter that will appear in the book "Legal Philosophy: 5 Questions." The questions addressed are: 1. Why were you initially drawn to the philosophy of law? 2. For which of your contribution(s) to legal philosophy so far would you most like to be remembered, and why? 3. What are the most important issues in legal philosophy, and why are they distinctively issues of legal philosophy rather than some other discipline? 4. What is the relationship between legal philosophy and legal practice? Should legal philosophers be more concerned about the effect of their scholarship on legal practice? 5. To which problem, issue or broad area of legal philosophy would you most like to see more attention paid in the future?

Abstract:
Evolutionary biology - or, more precisely, two (purported) applications of Darwin's theory of evolution by natural selection, namely, evolutionary psychology and what has been called human behavioral biology - is on the cusp of becoming the new rage among legal scholars looking for interdisciplinary insights into the law. We argue that as the actual science stands today, evolutionary biology offers nothing to help with questions about legal regulation of behavior. Only systematic misrepresentations or lack of understanding of the relevant biology, together with far-reaching analytical and philosophical confusions, have led anyone to think otherwise.

Evolutionary accounts are etiological accounts of how a trait evolved. We argue that an account of causal etiology could be relevant to law if (1) the account of causal etiology is scientifically well-confirmed, and (2) there is an explanation of how the well-confirmed etiology bears on questions of development (what we call the Environmental Gap Objection). We then show that the accounts of causal etiology that might be relevant are not remotely well-confirmed by scientific standards. We argue, in particular, that (a) evolutionary psychology is not entitled to assume selectionist accounts of human behaviors, (b) the assumptions necessary for the selectionist accounts to be true are not warranted by standard criteria for theory choice, and (c) only confusions about levels of explanation of human behavior create the appearance that understanding the biology of behavior is important. We also note that no response to the Environmental Gap Objection has been proffered. In the concluding section of the article, we turn directly to the work of Professor Owen Jones, a leading proponent of the relevance of evolutionary biology to law, and show that he does not come to terms with any of the fundamental problems identified in this article.

evolution, natural selection, law, biology

Abstract:
What could be wrong with morality? Popular, including religious, thinking has long proceeded on the assumption that "morality" as a system of norms deserves our allegiance and that "moral conduct" should earn our praise and admiration. Modern philosophy has, on this (as other matters) not been far away from the popular consensus. Hume "discovered," happily, that "by nature" human beings were disposed to have the sentiments and dispositions constitutive of sound morality; Kant sought to vindicate the deontological moral intuitions of the ordinary German peasant; while Sidgwick found that the "unconscious" morality of the English "peasants" was utilitarian, not deontological (and locked in hopeless conflict, alas, with egoistic considerations). Most of moral philosophy of the past one hundred years - from Habermas and the adherents of "discourse ethics" (descendants of the Kantian project), to the proliferating Anglophone Kantians, to the earnest utilitarianisms of J.J.C. Smart, R.B. Brandt, Peter Singer, and others - has proceeded on the assumption that morality and a moral life are worth understanding because they are worth having and leading.

One striking feature of post-Kantian philosophy in Europe has been the emergence of morality critics, philosophers who, contra the popular consensus, dispute the value of morality and the moral life. Their views find a faint echo in the work of some Anglophone moral philosophers (Philippa Foot and Bernard Williams are the main exemplars), but, as we will see, the "Continental" criticisms of morality generally cut far deeper and more radically. Whereas the Anglophone skeptics take issue with, for example, the "demandingness" of utilitarian moral theory, or the purported "overridingness" of moral obligations as Kantians understand them, the Continental critics pitch their concerns less at the level of academic theory than at the level of social, political, and cultural life. These Continental morality critics object that morality in practice is an obstacle to human flourishing itself.

So understood, this attack on morality raises two immediate questions. First, the Continental morality critics are plainly not without ethical views of their own - namely, views, broadly, about the good life for (some or all) human beings - since it is on the basis of these views that they criticize "morality." Therefore, we need to understand the contours of the "morality" to which these critics object - for ease of reference, we will call it "morality in the pejorative sense" (MPS) - since it must be distinguished from the normative considerations that inform their critiques. We will refer to this as the "Scope Problem" about morality criticism. Second, we can usefully divide Continental critics of morality into two camps: those who see morality as a direct threat to human flourishing; and those who see morality as an indirect threat. In the first camp are those thinkers who see the individual's acceptance of morality as such as an obstacle to the individual's flourishing; in different ways, Nietzsche and Freud are these kinds of morality critics. In the second camp are those philosophers who see morality as among the "ideological" instruments that sustain socio-economic relations that are obstacles to individual flourishing. On this second account - most obviously represented by Marx and perhaps some of his descendants associated with the Frankfurt School - it is not allegiance to morality per se that thwarts individual flourishing, but rather the role such allegiance plays in sustaining certain socio-economic relations, the latter of which constitute the immediate obstacle to flourishing. We will call the former "Direct Morality Critics" and the latter "Indirect Morality Critics." (Foucault straddles both approaches, and so we will discuss him in a transitional section.)

ethics, Nietzsche, Freud, Marx, Foucault

Abstract:
This is the penultimate draft of a review (to appear in the JOURNAL OF LEGAL EDUCATION) of Ronald Dworkin's latest collection of essays, JUSTICE IN ROBES (Harvard University Press, 2006), and Scott Hershovitz (ed.), EXPLORING LAW'S EMPIRE (Oxford University Press, 2006).

Jurisprudence, Dworkin, Posner, Sunstein

Abstract:
This is a review essay discussing Neil Duxbury's book PATTERNS OF AMERICAN JURISPRUDENCE (Oxford University Press, 1995), taking issue, in particular, with Professor Duxbury's misunderstandings of (1) American Legal Realism, (2) Critical Legal Studies, and (3) the relationship between economic analysis of law and Legal Realism. The essay also addresses the question whether it is fruitful to think of jurisprudential movements in terms of their geographic boundaries.

Abstract:
This is a draft of the introductory essay to my forthcoming collection of papers Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy (Oxford University Press, 2007). It gives an overview of my work on these topics over the last dozen years.

Abstract:
Ronald Dworkin describes an approach to how courts should decide cases that he associates with Judge Richard Posner as a Chicago School of anti-theoretical, no-nonsense jurisprudence. Since Professor Dworkin takes his own view of adjudication to be diametrically opposed to that of the Chicago School, it might seem fair, then, to describe Dworkin's own theory as an instance of pro-theoretical, nonsense jurisprudence. That characterization is not one, needless to say, that Professor Dworkin welcomes. Dworkin describes his preferred approach to jurisprudential questions, to be sure, as theoretical, in opposition to what he calls the practical orientation of the Chicago School. But while there is a real dispute between Dworkin and Posner, it is not one illuminated by the contrast between theory and practice. It is, rather a dispute about the kind of theory that is relevant and illuminating when it comes to law and adjudication. And the fault line marked by this dispute is profound indeed, one that extends far beyond Dworkin and Posner and has a venerable and ancient history. I shall describe it, instead, as a dispute between Moralists and Realists, between those whose starting point is a theory of how things (morally) ought to be versus those who begin with a theory of how things really are. The Lecture endeavors to show that our contemporaries, Ronald Dworkin and Richard Posner, are reenacting a version of the dispute between the paradigmatic philosophical moralist Plato and the paradigmatic historical realist Thucydides.

jurisprudence, Thucydides, Plato, Dworkin, Posner, Realism, Llewellyn

Abstract:
Two familiar features of Ronald Dworkin's theory of adjudication generate a strange predicament. On the one hand, Dworkin maintains that most cases, including most "hard" cases, have "right answers." On the other hand, Dworkin argues that to discover that right answer, judges must avail themselves of moral considerations and moral argument: a party's rights follow from the principle which explains some significant portion of the prior institutional history and provides the best justification for that institutional history as a matter of political morality. But if moral considerations figure decisively in determining the answer to a legal dispute, then there can only be a single right answer as a matter of law if there is a single right answer to the question of political morality. Yet if morality is, as many seem to think, "subjective" in some sense, then there may be as many right answers as a matter of morality as there are judges and thus, consequently, no single right answer as a matter of law.

Dworkin's response to this attack on the "objectivity" of morality asks us to distinguish between sensible, but defeasible, "internal" attacks on the objectivity of morality, from unintelligible, and irrelevant, "external" attacks on the objectivity of morality. The attacks, Dworkin argues, depend on the latter "external" perspective and, thus, reflect a misunderstanding about what is at stake in worrying about the objectivity of morality and, thus, in worrying about the objectivity of law. For the only type of objectivity that matters--namely, an "internal" objectivity--Dworkin's theory faces no predicament.

Many have found Dworkin's internal/external distinction implausible or unclear. It may be usefully recast, I argue, as involving two competing paradigms of objectivity. On what I will call the "Naturalistic Conception," objectivity in any domain must be understood on the model of the natural sciences, whose objects of study are objective in the sense of being "mind-independent" and causally efficacious (i.e., in making a causal difference to the course of experience). The "Non-Naturalistic Conception," by contrast, denies that the type of objectivity found in the natural sciences is the relevant type of objectivity to aspire to in all domains. We shall see, I think, that the grain of truth in what Dworkin is getting at in his external/internal distinction is really best understood as the difference between a Naturalistic versus a Non-Naturalistic Conception of Objectivity. Dworkin would have us, then, embrace the latter as the only type of objectivity at stake in assessing his theory of adjudication.

Dworkin's version of Non-Naturalism bears a striking similarity to John McDowell's. I conclude by arguing, however, that neither version provides an adequate account of objectivity: they fail to explain basic intuitions about objectivity (even in ethics), as well as leaving us with a picture of the "objectivity" of ethics that would, in fact, be quite congenial to the non-cognitivism that both McDowell and Dworkin purport to have left behind. If that is right, then the original predicament remains a live one for Dworkin's theory.

Abstract:
This is an invited commentary on Richard Rorty's Dewey Lecture, given last year at the University of Chicago Law School. "Pragmatism," says Rorty, "puts natural science on all fours with politics and art. It is one more source of suggestions about what to do with our lives." I argue that the truth in pragmatism - that the epistemic norms that help us cope are the ones on which we rely - is obscured by Rorty's promiscuous version of the doctrine, which confuses the criteria for relying on particular epistemic norms (namely, that they work for human purposes) with the content of the norms themselves (most of which make no reference to human purposes, but rather criteria like causal or explanatory power). We need presuppose no Archmiedean standpoint to conclude, as Richard Posner does, that moral inquiry is feeble in a way physics is not; we need only take seriously our best current understanding of the world, how it works, and the epistemic norms that have proven most effective in making sense of it.

Abstract:
Any reader of Foucault's corpus recognizes fairly quickly that it is animated by an ethical impulse, namely, to liberate individuals from a kind of oppression from which they suffer. This oppression, however, does not involve the familiar tyranny of the Leviathan or the totalitarian state; it exploits instead values that the victim of oppression herself accepts, and which then leads the oppressed agent to be complicit in her subjugation. It also depends, crucially, on a skeptical thesis about the epistemology of the social sciences. It is this conjunction of claims - that individuals oppress themselves in virtue of certain moral and epistemic norms they accept - that marks Foucault's uniquely disturbing contribution to the literature whose diagnostic aim is, with Max Weber, to understand the oppressive character of modernity, and whose moral aim is, with the Frankfurt School, human liberation and human flourishing. I offer here both a reconstruction of Foucault's project - focusing on the role that ethical and epistemic norms play in how agents subjugate themselves - and some modestly critical reflections on his project, especially the weaknesses in his critique of the epistemic standing of the human sciences.

Foucault, Nietzsche, human sciences, epistemology

Abstract:
Shapiro (2007) has recently argued that Dworkin posed a new objection to legal positivism in Law's Empire, to which positivists, he says, have not adequately responded. Positivists, the objection goes, have no satisfactory account of what Dworkin calls "theoretical disagreement" about law, that is, disagreement about "the grounds of law" or what positivists would call the criteria of legal validity. I agree with Shapiro that the critique is new, and disagree that it has not been met. Positivism can not offer an explanation that preserves the "face value" of theoretical disagreements, because the only intelligible dispute about the criteria of legal validity is an empirical or "head count" dispute, i.e., a dispute about what judges are doing, and how many of them are doing it (since it is the actual practice of officials and their attitudes towards that practice that fixes the criteria of legal validity according to the positivist).

Positivism, however, has two other explanations for theoretical disagreement, which "explain away" rather than preserve the "face value" disagreement. According to positivists, either theoretical disagreements are disingenuous, in the sense that the parties, consciously or unconsciously, are really trying to change the law, that is, they are trying to say, as Dworkin puts it, "what it should be" not "what the law is"; or they are simply in error, that is, they honestly think there is a fact of the matter about what the grounds of law are, and thus what the law is, in the context of their disagreement, but they are mistaken, because, in truth, there is no fact of the matter about the grounds of law in this instance precisely because there is no convergent practice of behavior among officials constituting a Rule of Recognition on this point. The "Disingenuity" and "Error Theory" accounts of theoretical disagreement are explored, with attention to the theoretical desiderata (e.g., simplicity, consilience, methodological conservativism) at stake in choosing between competing explanatory theories. Particular attention is given to the best explanation for Riggs v. Palmer in light of the actual historical context of the decision and other opinions by the Riggs judges in contemporaneous cases.

Abstract:
The point of departure is Richard Posner's striking suggestion that Holmes is "the American Nietzsche." What is it that the great American judge and the great German philosopher have in common? The Essay argues that the real thematic (and tempermental) affinity between Holmes and Nietzsche lies in the fact that both are proponents of a general, but neglected, perspective on questions of moral, political, and legal theory that I will call "Classical Realism." Importantly, the Classical Realism of Holmes and Nietzsche places them in a long tradition of theories of morals, politics, and society that we find in writers like Thucydides, Machiavelli, Freud and (to some extent) Marx, among others. This tradition, however, has almost vanished from the modern academy. It is the most general aim of this paper to revive the doctrine of Classical Realism as a serious--albeit debunking--position in normative theory.

By using the label "Classical Realism" I wish to reclaim for the term "realism" a meaning both older than and different from that current in academic debates, especially in philosophy, where it names certain doctrines in semantics and metaphysics. Classical Realism, by contrast, is a very different kind of view; indeed, it entails no particular semantic and metaphysical doctrines at all. Classical Realism denotes a certain hard-headed, unromantic, uncompromising attitude towards the world, which manifests itself in a brutal honesty and candor in the assessment of human motives and the portrayal of human affairs. The Essay explores this doctrine in some detail in a variety of thinkers, including Holmes, Posner, Nietzsche, Marx, and the American Legal Realists. The Appendix to the Essay offers a critical discussion of Posner's and David Luban's treatment of the Holmes-Nietzsche relation.

Abstract:
This essay offers a new interpretation of Nietzsche's argument for moral skepticism (i.e., the metaphysical thesis that there do not exist any objective moral properties or facts), an argument that should be of independent philosophical interest as well. On this account, Nietzsche offers a version of the argument from moral disagreement, but, unlike familiar varieties, it does not purport to exploit anthropological reports about the moral views of exotic cultures, or even garden-variety conflicting moral intuitions about concrete cases. Nietzsche, instead, calls attention to the single most important and embarrassing fact about the history of moral theorizing by philosophers over two millennia: namely, that no rational consensus has been secured on any substantive, foundational proposition about morality. Persistent and apparently intractable disagreement on foundational questions, of course, distinguishes moral theory from inquiry in the sciences and mathematics (perhaps in kind, certainly in degree). According to Nietzsche, the best explanation for this disagreement is that, even though moral skepticism is true, philosophers can still construct valid dialectical justifications for moral propositions because the premises of different justifications will answer to the psychological needs of at least some philosophers and thus be deemed true by some of them. The essay concludes by considering various attempts to defuse this abductive argument for skepticism based on moral disagreement and by addressing the question whether the argument "proves too much," that is, whether it might entail an implausible skepticism about a wide range of topics about which there is philosophical disagreement.

Nietzsche, morality, skepticism, metaethics, anti-realism

Abstract:
This paper, submitted to the Indiana University School of Law-Bloomington's Symposium on The Next Generation of Law School Rankings, responds to pieces by Richard Posner, Cass Sunstein, and Russell Korobkin, also submitted to the symposium.

From Professor Leiter's comments:

"Although many of the scholarly critiques of U.S. News in this symposium are devastating, only alternative ranking schemes, that embody academic values we share, will counteract the pernicious impact of U.S. News on legal education."

Law School, Rankings, Legal Education, U.S. News

Abstract:
According to one recent scholar, "Most commentators on Nietzsche would agree that he is in a broad sense a naturalist in his mature philosophy" (Janaway 2007: 34). This may come as a surprise to those who think of Heidegger, Kaufmann, DeMan, Kofman, Deleuze, and Nehamas, among others, as "commentators" on Nietzsche. And yet there are, indeed, clear signs that in the last twenty years, as Nietzsche studies has become more philosophically sophisticated, the naturalist reading of Nietzsche has come to the fore, certainly in Anglophone scholarship. In Nietzsche on Morality (2002), I set out a systematic reading of Nietzsche as a philosophical naturalist, one which has attracted considerable critical comment, including from some generally sympathetic to reading Nietzsche as a philosophical naturalist. In this paper, I revisit that reading and respond to various objections. Topics covered include the role of "speculation" in Nietzsche's naturalism; the difference between the Humean and Therapeutic Nietzsches; the role of culture in naturalistic explanations; the status of claims about causation in Nietzsche's naturalism; whether the apparent metaphysics of the will to power is compatible with naturalism; and how Nietzsche's speculative naturalism fares in light of subsequent work in empirical psychology.

Nietzsche, naturalism, moral philosophy, moral psychology

Abstract:
General jurisprudence - that branch of legal philosophy concerned with the nature of law and adjudication - has been relatively unaffected by the "naturalistic" strains so evident, for example, in the epistemology, philosophy of mind and moral philosophy of the past forty years. This paper sketches three ways in which naturalism might affect jurisprudential inquiry. The paper serves as a kind of precis of the main themes in my book NATURALIZING JURISPRUDENCE: ESSAYS ON AMERICAN LEGAL REALISM AND NATURALISM IN LEGAL PHILOSOPHY (Oxford University Press, 2007).

jurisprudence, naturalism, legal realism, quine, epistemology

Abstract:
This paper important developments in epistemology, and defends a theoretical framework for evidence scholarship from the perspective of naturalized epistemology. It demonstrates that naturalized epistemology provides a firm conceptual foundation for much research into law of evidence. These developments in epistemology have not been much noted in legal scholarship, despite their importance in philosophy and their coincidence with some widely shared approaches to evidence scholarship. This article is a partial antidote for the unproductive fascination in some quarters of the legal academy with "postmodern" conceptions of knowledge and truth and to the even more common search by the legal professoriat for algorithms that provide answers to important legal questions. In the field of evidence, there is some interest in post-modern epistemology, and much searching for the appropriate algorithm, such as Bayesian decision theory or micro-economics, or simply the complete neglect of epistemological matters. The article argues that the naturalistic turn in epistemology of the past thirty years (especially that branch of naturalized epistemology known as social epistemology) provides the appropriate theoretical framework for the study of evidence, as it does for virtually any enterprise concerned with the empirical adequacy of its theories and the truth-generating capacity of its methodologies. Evidence scholarship and law are concerned with both, and thus naturalized epistemology provides a fruitful way of understanding the limitations of some of the existing efforts to provide theoretical and philosophical foundations to evidence law. It also provides a way to conceptualize and evaluate specific rules of evidence, and concomitantly explains what most evidence scholars do, regardless of their explicit philosophical commitments. For the great bulk of evidentiary scholars, this article should solidify the ground beneath their feet.

Abstract:
Nietzsche holds that people lack freedom of the will in any sense that would be sufficient for ascriptions of moral responsibility; that the conscious experience we have of willing is actually epiphenomenal with respect to the actions that follow that experience; and that our actions largely arise through non-conscious processes (psychological and physiological) of which we are only dimly aware, and over which we exercise little or no conscious control. At the same time, Nietzsche, always a master of rhetoric, engages in a “persuasive definition” (Stevenson 1938) of the language of “freedom” and “free will,” to associate the positive valence of these terms with a certain Nietzschean ideal of the person unrelated to traditional notions of free will.

Nietzsche, free will, moral responsibility, freedom, philosophy of action, epiphenomenalism

Abstract:
Should we think of what I will refer to generically as “the law of religious liberty” as grounded in the moral attitude of respect for religion or in the moral attitude of tolerance of religion? I begin by explicating the relevant moral attitudes of “respect” and “toleration.” With regard to the former, I start with a well-known treatment of the idea of “respect” in the Anglophone literature by the moral philosopher Stephen Darwall. With respect to the latter concept, toleration, I shall draw on my own earlier discussion, though now emphasizing the features of toleration that set it apart from one kind of respect. In deciding whether “respect” or “toleration” can plausibly serve as the moral foundation for the law of religious liberty we will need to say something about the nature of religion. I shall propose a fairly precise analysis of what makes a belief and a concomitant set of practices “religious” (again drawing on earlier work). That will then bring us to the central question: should our laws reflect “respect” for religion” or only “toleration”? Martha Nussbaum has recently argued for “respect” as the moral foundation of religious liberty, though, as I will suggest, her account is ambiguous between the two senses of respect that emerge from Darwall’s work. In particular, I shall claim that in one “thin” sense of respect, it is compatible with nothing more than toleration of religion; and that in a “thicker” sense (which Nussbaum appears to want to invoke), it could not form the moral basis of a legal regime since religion is not the kind of belief system that could warrant that attitude. To make the latter case, I examine critically a recent attack on the idea of "respect" for religious belief by Simon Blackburn.

religion, toleration, respect, Nusbaum, Darwall, Blackburn

Abstract:
This is a review essay (forthcoming in Notre Dame Philosophical Reviews) discussing Christopher Janaway's book "Beyond Selfessness: Reading Nietzsche's 'Genealogy'" (OUP, 2007). Particular attention is given to the question of Nietzsche's style, and the relationship between his philosophical positions and his therapeutic objectives; to Janaway's critique of my account of Nietzsche's naturalism; and to Nietzsche's conception of agency and the meaning of the image (from GM II:2) of "the sovereign individual."

Nietzsche, naturalism, genealogy, free will

Abstract:
Against the two dominant strands in the secondary literature on Nietzsche's political philosophy - one attributing to Nietzsche a kind of flat-footed commitment to aristocratic forms of social ordering, the other denying that Nietzsche has any political philosophy at all-Tamsin Shaw stakes out a new and surprising position: namely, that Nietzsche was very much concerned with the familiar question of the moral or normative legitimacy of state power, but was skeptical that with the demise of religion, it would be possible to achieve a practically effective normative consensus about such legitimacy that was untainted by the exercise of state power itself. Although, as I will argue, there are reasons to be quite skeptical that Nietzsche was interested in anything like these questions, Shaw has laid down a clear and invigorating challenge to existing scholarship on Nietzsche's politics, and it is one worth meeting.

Nietzsche, political philosophy

Abstract:
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.

Nietzsche, free will, freedom

Abstract:
This is a new preface written for the Greek translation of my NIETZSCHE ON MORALITY (Routledge, 2002), which will be published by Okto Publishing (Athens) in 2009. The publisher asked that I discuss how I became interested in Nietzsche, how my views about him evolved, and also how I would respond to the still-common perception (esp. in Europe) of Nietzsche as a thinker of "the right."

Nietzsche, morality, naturalism