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Spring 2001
Volume 00, Number 2

Newsletter on Philosophy and Law

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The Naturalistic Turn in Legal Philosophy

Brian Leiter

What Richard Rorty dubbed in 1967 as "the linguistic turn" in philosophy was that distinctive feature of much twentieth-century Anglophone philosophy, namely that it recast traditional philosophical problems as problems about language: by analyzing ordinary language, or understanding how certain symbols and sounds could possess meaning and refer to worldly things, philosophers who took the linguistic turn hoped to find new ways of framing and resolving the fundamental questions of philosophy (or, in some cases, new ways of dissolving those questions, by revealing the linguistic confusions that animated them). In its contemporary form, linguistic-turn philosophers typically examine some concept ("justice" or "law" or "mind"), looking at how we use language to express the concept as a way of clarifying our intuitions about its content. How we talk and how we intuit dominate the methodological armory of the linguistic-turn philosophers.

Like the proverbial owl of minerva, however, Rorty's famous anthology on The Linguistic Turn1 appeared just as a second, and even more profound transformation was beginning to alter the practice and conception of linguistic philosophy. Quine's attack on the analytic-synthetic distinction was by the mid-60s becoming the new philosophical orthodoxy: without a domain of analytic truths-truths that were a priori and which held in virtue of meaning-it was unclear what special domain of expertise for philosophical reflection remained.2 If all claims were, in principle, revisable in light of empirical evidence, then would not all questions fall to empirical science? Philosophy would be out of business, except perhaps as the abstract, reflective branch of empirical science. A majority of contemporary philosophers-from Jerry Fodor in the philosophy of mind, to Peter Railton in ethics-have followed Quine's lead on this score.

A year after Rorty's anthology, Quine delivered his seminal lecture on "Epistemology Naturalized"3 which broached the idea that philosophical questions about the relationship between evidence and theory might be better replaced by purely empirical, scientific questions about the causal relations between the two relata. Might such a naturalization of philosophical questions be extended to other domains that had previously employed tools of conceptual analysis to answer justificatory questions?

Most philosophers did not, however, follow Quine's radical lead on the second score. In 1963, Edmund Gettier employed some intuition-pumping counter-examples to demolish the traditional analysis of the concept of knowledge as "justified true belief," but the moral that most epistemologists drew wasn't that they should give up on an account of justification á la Quine. Rather, philosophers like Alvin Goldman and Brian Skyrms concluded that what the Gettier counter-examples show is that "the epistemic status of a belief state depends on the etiology of the state and, consequently, on psychological facts about the subject."4 In other words, the actual causal trajectory leading from evidentiary input to belief was crucial for establishing whether the resultant belief would count as "knowledge." Thus, a priori claims to knowledge were out; the empirical facts about reliable belief-causation were central to identifying instances of knowledge. Post-Gettier, justification remained on the epistemologist's table, but justification was now contingent on a posteriori facts, not a priori intuitions. "Justification" itself was naturalized.

To be sure, it would be wrong to suggest that the naturalistic turn has carried the day in philosophy. Armchair metaphysics, of what used to be the most disreputable kind (i.e., the kind that stands in a competitor relationship with empirical science), is now flourishing again in places like South Bend, Indiana and Syracuse, New York, while, down under in Canberra, Frank Jackson has recently mounted a lively defense of the role of conceptual analysis.5 Still, the methodological Weltanschaung of philosophy in our time is broadly naturalistic, in the first Quinean sense: since all the claims of conceptual analysis are vulnerable to the demands of a posteriori (i.e., empirical) theory construction, philosophy must proceed in tandem with empirical science, not as the arbiter of its claims, but as a reflective attempt at synoptic clarity about the state of empirical knowledge. There is no distinctive body of knowledge to be delivered via philosophical "methods" (the analysis of talk, the pumping of intuitions), only greater clarity and understanding of the substantive knowledge delivered by empirical science.

Almost all of philosophy has succumbed-or at least felt the need to respond-to this naturalistic turn. One of the striking holdouts from the naturalistic turn, however, has been none other than legal philosophy, which proceeds via conceptual analysis and intuition-pumping as though nothing had transpired in philosophy in the last forty years. H.L.A. Hart famously endorsed J.L. Austin's view that in examining ordinary language we "are looking not merely at words...but also at the realities we use words to talk about. We are using a sharpened awareness of words to sharpen our perception of phenomena."6 But ordinary language philosophy is now defunct in large part because philosophers came to doubt the soundness of this rationale; certainly the actual practitioners of "descriptive sociology"-the discipline to which Hart claimed to be contributing-do not accept it. Despite this methodological infirmity at the core of the seminal work of twentieth-century jurisprudence, legal philosophers continue with a priori conceptual analysis and appeals to intuition as though the philosophical landscape of 2001 were that of 1961.

It is, in many ways, a strange state of affairs. Jaakko Hintikka, for example, has acidly observed that:

As far as empirical realities are concerned, the brute fact is that the intimations of intuition do not have any privileged epistemological status. They do not carry any automatic justification with them, no matter how convincing they may be subjectively. Epistemologically, they are on the level of clever guesses or perhaps Aristotle's endoxa [common opinions].7

And Gilbert Harman has recently delivered a stern reminder about the disastrouly bad record of pseudo-truths delivered by reliance on a priori intuitions and conceptual analysis:

When problems were raised about particular conceptual claims, they were problems about the examples that had been offered as seemingly clear cases of a priori truth-the principles of Euclidean geometry, the law of excluded middle, "cats are animals," "unmarried adult male humans are bachelors," "women are female," and "red is a color." Physics leads to the rejection of Euclidean geometry and at least considers rejecting the law of the excluded middle. We can imagine discovering that cats are not animals but are radio controlled robots from Mars. Speakers do not consider the Pope a bachelor. People will not apply the term "bachelor" to a man who lives with the same woman over a long enough period of time even if they are not married. Society pages in newspapers will identify as eligible "bachelors" men who are in the process of being divorced but are still married. The Olympic Committee may have rejected certain women as insufficiently female on the basis of their chromosomes. Just as a certain flavor is really detected by smell rather than taste, we can imagine that the color red might be detected aurally rather than by sight.8

But if these "classics" of conceptual analysis all failed-either for other conceptual reasons or for a posteriori reasons-why in the world think conceptual analysis in jurisprudence will fare any better? If there's a lesson taught by the history of philosophy, it is that the only sound reason to prefer a proposed conceptual analysis is not because it seems intuitively obvious (think of Kant and the Euclidean structure of space) but because it earns its place by facilitating successful a posteriori theories of the world. Kant's (and everyone else's) intuitions be damned, it just turned out that physics had a use for non-Euclidean accounts of the structure of space. It may seem analytic that "women are female," but genetics can force us to recut the gendered joints of nature in new, and perhaps, surprising ways.

It is common at this point for defenders of conceptual analysis to proclaim the modesty of their ambitions. "To be sure," the analyst might say, "no timeless truths will be delivered by my methods, but that does not preclude trying to achieve a certain conceptual clarity about our current ways of thinking and using language." This more modest form of conceptual analysis, though, may have a hard time explaining why anyone should care. Consider Frank Jackson's curious proposal that a conceptual analysis involves Ramseyfying over the community's "folk theory" of a concept, an account that would make conceptual analysis somewhat hard to distinguish from banal descriptive sociology of the Gallup-poll variety. Such a procedure might deliver some insight in to what some people, at some time, in some place, think about "mind" or "law" or "justice," but it understates the modesty of this project to confess that it doesn't issue in timeless truths: it just doesn't issue in substantial truths about anything of philosophical import, so that it gets hard to see why any discipline, let alone philosophy, would be concerned with such trivial data, radically bounded, as it is, by both time and place-and possibly, also, ignorance.

Supposing jurisprudents finally owned up to the retrograde condition of their philosophical methods, they might then fairly ask what a "naturalistic" turn in legal philosophy would look like? I've sketched various possibilities elsewhere,9 but let me expand on just one here.

Joseph Raz has offered what has become the most influential argument against Soft or Inclusive Positivism, the version of legal positivism that maintains that there is no constraint on the content of a rule of recognition beyond the fact that it is a social rule: its existence-conditions are given by the actual practice of officials in deciding disputes, but what criteria of legality officials appeal to (i.e., the content of the rule of recognition) is dependent upon whatever the conventional practice of officials in that society happens to be. Raz has argued that there is, in fact, a constraint on the content of the rule of recognition; the rule of recognition is not only a social rule, but can also only employ source- or pedigree-based tests of legal validity. Raz's argument can be described schematically as having three stages: first, Raz maintains that it is part of the concept of law that law claims to be authoritative; second, Raz offers an analysis of the concept of authority; third, Raz shows that Soft Positivism is incompatible in principle with the authority of law so understood.10

More precisely, according to Raz, it is a non-normative prerequisite for a claim to authority that it be possible to identify the authority's directive without reference to the underlying "dependent" reasons for that directive. This is a prerequisite for authority because what distinguishes a (practical) authority, on Raz's "service" conception, is that its directives preempt consideration of the underlying reasons for what we ought to do, and in so doing actually makes it more likely that we will do what we really ought to do. Authoritative reasons are claimed to be exclusionary reasons, excluding from consideration dependent reasons (including, importantly, moral reasons). Soft Positivism, then, undermines the possibility of the rule of recognition claiming authority, since for Soft Positivism a rule of recognition can, in principle, employ dependent reasons as criteria of legal validity: to identify, then, the directives about legal validity of such a rule of recognition would be impossible without recourse to precisely the dependent reasons the rule was supposed to preempt.

Since Raz's argument against Soft Positivism is explicitly a conceptual argument, it is vulnerable to contrary intuitions about the relevant concepts. Is it, for example, really part of the concept of law that law claims authority? Most commentators are willing to concede this much. But is it really part of the concept of authority that authoritative reasons are exclusionary reasons? My conceptual intuitions line up with Raz's, but, as is well-known, the intuitions of other philosophers-I think of Stephen Perry and W.J. Waluchow-do not.11 So, too, one might wonder whether it is really part of the concept of authority that it perform a "service," i.e., mediating between agents and the dependent reasons that apply to them? Again, it is easy and familiar how to come up with cases that pump the right intuitions for Raz's purpose, but ultimately the service conception of authority seems to reflect commitments in political philosophy that may import in to the concept of authority excess, or at least, contestable baggage.12

Now given the general doubts about conceptual analysis and intuition-pumping canvassed earlier, we might ask whether there is not some alternative way to proceed in evaluating the merits of Soft and Hard Positivist accounts of the concept of law-a way of proceeding that would not simply mire us in pumping intuitions about other concepts, like authority. In a naturalistic spirit, we might consider the following.

The leading social scientific accounts of judicial decision-making have two striking features for our purposes: first, they all aim to account for the relative causal contribution of "law" and non-law factors (e.g., political ideologies) to judicial decisions; and second, they demarcate "law" from non-law factors in typical Hard Positivist terms, i.e., they generally treat as "law" only pedigreed norms, like legislative enactments and prior holdings of courts.13 Supposing that these models are ultimately vindicated-"support for [this] model is substantial, if not entirely conclusive" according to one informed observer14 -would that not give us reason to abandon any a priori, intuitive confidence we had about the concept of law that conflicted with Hard Positivism-just as the role of non-Euclidean geometry in parts of physics has led everyone to repudiate Kant's a priori intuitive confidence about the Euclidean structure of space? If social science cuts the causal joints of the legal world in Hard Positivist terms, is that not a far more compelling reason to work with that concept of law as against its competitors?

But why is it a compelling reason, the natural lawyer (or Soft Positivist) might ask? Why should we let our understanding of the concept of law be decided by the explanatory premises of empirical social scientists? Notice, of course, that an analogous retort is available to the diehard Euclidean: after all, non-Euclidean geometries are famously non-intuitive and hard to grasp. But Kantians, I take it, recognize that such a response would be unmotivated: if non-Euclidean geometry does explanatory work within successful physical theory, then the right conclusion to draw is that our intuitions about the structure of space need tutoring to keep pace with empirical knowledge. So, too, the analogous question for the natural lawyer is: why think your intuitions are epistemically privileged as opposed to simply untutored by the best empirical science?

The natural lawyer, though, might refine the challenge as follows: "It's not," she might say, "that I insist on sticking to my intuitions, empirical science be damned. Rather, I do not see why the empirical science at issue needs to take sides on a dispute about the concept of law." Of course, it is clear that the empirical social science at issue does draw the line between legal and non-legal norms based on pedigree criteria, but the question is whether it needs to: the natural lawyer could agree with the social scientists that, e.g., moral and political considerations determine judicial decisions, but contest the assumption that these considerations are not themselves legally binding.

An adequate response to this reformulated challenge ultimately turns on the details of the social scientific explanations at issue, but a few brief observations will have to suffice for purposes here. First, many of the candidate non-law explanatory factors at issue (e.g., an ideological commitment to the platforms of the Republican Party) are not plausible candidates for being legal norms. Second, it is not like the characterization of these factors as non-legal by social scientists is arbitrary and unmotivated: the moral and political factors invoked to explain decisions do not, for example, appear in the decisions, or in the explicit rationales for the decisions; they are often hidden and hard to detect, which make them quite unlike any of the paradigm instances of legal norms, like statutory provisions or precedent. Third, and relatedly, the legal/non-legal demarcation in empirical social science usually reflects more general explanatory premises about the psycho-social factors that account for behavior, well beyond the realm of the legal. The motivation for demarcating the legal/non-legal in essentially Hard Positivist terms is, for most social scientists, to effect an explanatory unification of legal phenomena with other political and social behavior.

Yet the very talk of "legal phenomena" may invite a different kind of objection to the proposed naturalization of jurisprudential questions. "For how is it," the linguistic-turn philosopher might ask, "that your social scientist knows these are legal phenomena he is explaining, and not phenomena of some other kind? Does that not already presuppose an account of the concept of law, an account that the social scientist needs me to provide?" It is not obvious, though, why a shared language and dictionaries won't suffice to get empirical science off the ground; it is not that empirical science needs the philosopher to tell his explanatory story, it's rather that after the fact the philosopher may be able to offer some greater reflective clarity about the concepts invoked in the explanatory story. Linguistic-turn philosophers are keen to insist that they are not lexicographers; but the intelligibililty of empirical science can get a long way with lexicography alone. To the extent a conceptual analysis helps, it helps after we discover which way of cutting the causal joints of the social world works best. Without that empirical knowledge, philosophy has nothing more than intuitions and words, and post-Quine, we now recognize that intuitions and words can not carry the metaphysical or epistemological burdens we want philosophy to carry. Only empirical science can carry that burden, and so only naturalized philosophy, including naturalized jurisprudence, can advance knowledge of the way things really are.

Endnotes

* Charles I. Francis Professor in Law, Professor of Philosophy, and Director of the Law & Philosophy Program, The University of Texas at Austin. This paper was prepared for presentation at the session on "New Directions in Analytic Jurisprudence" sponsored by the Jurisprudence Section of the Association of American Law Schools at the annual meeting in San Francisco, on January 6, 2001. I am grateful to Stephen Perry for the invitation to participate in this session; to Richard Posner for comments on a draft; and to the questioners in the audience in San Francisco, especially Martin Golding.

1. (Chicago: University of Chicago Press, 1967).

2. It is important to notice that "every analysis of a concept is inextricably bound to a collection of purported analyticities," at least on one traditional way of understanding concepts, common to everyone from Plato to Locke to Carnap. Stephen Laurence and Eric Margolis, "Concepts and Cognitive Science," in Concepts: Core Readings, ed. E. Margolis & S. Laurence (Cambridge, Mass.: MIT Press, 1999), p. 18. Laurence and Margolis, however, maintain that Quine's critique of the analytic-synthetic distinction (which they only present in part) is still compatible with "analyticities...established on a posteriori grounds" which would be "open to the same possibilities of disconfirmation as claims in any other part of science." Id. at 20. The force of calling such claims "analytic," though, is no longer clear.

3. Reprinted in W.V.O. Quine, Ontological Relativity and Other Essays (New York: Columbia University Press, 1969).

4. Philip Kitcher, "The Naturalists Return," Philosophical Review 101 (1992), p. 60.

5. Frank Jackson, From Metaphysics to Ethics: A Defence of Conceptual Analysis (Oxford: Clarendon Press, 1998). For trenchant criticism of the effort, see Stephen Yablo, "Red, Bitter, Best," Philosophical Books 41 (2000): 13-23. As Yablo notes, "Quine's critique is simply shrugged off" by Jackson. Id. at 14.

6. H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), p. 14.

7. Jaakko Hintikka, "The Emperor's New Intuitions," Journal of Philosophy 96 (1999), p. 143.

8. Gilbert Harman, "Doubts About Conceptual Analysis," in Philosophy in Mind, ed. M. Michael & J. O'Leary-Hawthorne (Kluwer, 1994), p. 45. Harman's citations to supporting secondary literature are omitted. For related worries, see also Stephen Stich, "Moral Philosophy and Mental Representation," in The Origin of Values, ed. M. Hechter et al. (New York: Aldine de Gruyter, 1993).

9. Brian Leiter, "Rethinking Legal Realism: Toward a Naturalized Jurisprudence," Texas Law Review 76 (1997): 267-315; Brian Leiter, "Naturalism and Naturalized Jurisprudence," in Analyzing Law: New Essays in Legal Theory, ed. B. Bix (Oxford: Clarendon Press, 1998); Brian Leiter, "Legal Realism, Hard Positivism, and the Limits of Conceptual Analyis," in The Postscript: Essays on Hart's Postscript to The Concept of Law, ed. J.L. Coleman (Oxford: Oxford University Press, 2001); Ronald J. Allen & Brian Leiter, "Naturalized Epistemology and the Law of Evidence," Virginia Law Review (forthcoming 2001).

I should note that one sense of naturalizing jurisprudence-associated, e.g., with Scandanavian Realism-Involves looking for a naturalistic reduction of all normative concepts in law, a program that strikes me as unpromising. My naturalistic commitments are primarily methodological (see "Naturalism and Naturalized Jurisprudence," op cit.), so as long as normative concepts do explanatory work in empirical science (as they obviously do in many of the social sciences), I see no a posteriori reason for pursuing the reductive program.

10. The classic exposition is the 1985 paper "Authority, Law and Morality," which is reprinted in Joseph Raz, Ethics in the Public Domain (Oxford: Clarendon Press, 1994).

11. I canvass and reply to their arguments in "Legal Realism, Hard Positivism, and the Limits of Conceptual Analysis," op cit.

12. See, e.g., Thomas Christiano, "Waldron on Law and Disagreement," Law and Philosophy 19 (2000): 513-543, esp. 515.

13. A useful overview of much of the pertinent political science literature is given by my colleague Frank Cross in, "Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance," Northwestern University Law Review 92 (1997): 251-326.

14. Id. at 265.

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APA Newsletters

Spring 2001 Volume 00, Number 2

Spring 2001
Volume 00, Number 2