Book Review: Brian Leiter, Naturalizing Jurisprudence

Abstract

Ever since W. V. Quine published an essay entitled "Epistemology Naturalized," naturalism has been an important topic in core areas of philosophy, such as epistemology, the philosophy of language, and the philosophy of mind; and it has now, much thanks to the writings of Brian Leiter, reached jurisprudence (or legal philosophy). Accordingly, the task of gaining an understanding of the implications of a naturalist approach to the problems of jurisprudence, such as the place (in the jurisprudential landscape) and shape of empirical theories of legal reasoning, the nature of law's normativity, and the nature and viability of conceptual analysis as a central philosophical tool, is on the agenda of contemporary jurisprudence.

Leiter's new book Naturalizing Jurisprudence, a collection of essays published over the past ten years, deals with these and related issues, except the problem about the normativity of law. The first part of the book concerns the question whether the American Legal Realists ("the Realists," for short) are best understood as jurisprudential naturalists. The second part is concerned with the more general question of whether, and if so, how, jurisprudence should be naturalized. And the third part treats questions concerning naturalism, morality, and objectivity. Leiter's central aims, in keeping with this tripartite division of the book, are (i) to offer a reconstructive interpretation of the Realists as prescient naturalists; (ii) to make the case for a naturalized jurisprudence more generally; and (iii) to locate legal and moral norms in a world understood naturalistically.

Leiter's book is a well-written and substantial contribution to the field of jurisprudence, and I warmly recommend it to anyone with an interest in contemporary jurisprudence, or in the implications of a naturalist approach to philosophy. Leiter's ability to chart the implications of a naturalist research program in jurisprudence, and to pinpoint the weak spots in the writings of other philosophers in the process, together with the clarity of his reasoning, is impressive. But in spite of my appreciation of Leiter's book, I argue in this review (i) that Leiter is too generous in his reconstructive interpretation of the Realists, and point out that, from the standpoint of a naturalized jurisprudence, Scandinavian Legal Realists such as Alf Ross, and Karl Olivecrona are actually more interesting than the (American) Realists. In doing that, I focus on Leiter's account of different types of naturalism and their relation to one another, and the precise sense in which the Realists are said by Leiter to have naturalized jurisprudence. I also argue (ii) that Leiter's case for a naturalized jurisprudence cannot be accepted as it stands, because it includes exaggerated and quite implausible claims about conceptual analysis, viz. that it is a doomed enterprise because it is always vulnerable to the demands of empirical theories, and that instead of analyzing legal concepts jurisprudents should adopt the legal concepts that figure in successful empirical theories of law and legal institutions in (roughly) the shape they have there. I have very few objections to Leiter's analysis in the third part of the book, which I find interesting, illuminating, and quite persuasive.

Keywords: Naturalism, Conceptual Analysis, American Realism, Scandinavian Realism