On Brian Leiter's Law School Reports, Leiter notes that, according to a recent study, "law students are not unhappier now than they were before the recession," and in fact "a solid majority report themselves 'satisfied' with their law school experience."
Over at On the Human, a project sponsored by the National Humanities Center, Brian Leiter has been invited to post on the subject of "Moral Skepticism and Moral Disagreement: Developing an Argument from Nietzsche." The first few paragraphs are reproduced here, but we encourage to head over and read the entire article.
By “moral skepticism,” I shall mean the view that there are no
objective moral ‘facts’ or ‘truths.’ Moral skeptics from Friedrich
Nietzsche to Charles Stevenson to John Mackie have appealed to the
purported fact of widespread and intractable moral disagreement to
support the skeptical conclusion. Typically, such arguments invoke
anthropological reports about the moral views of exotic cultures, or
even garden-variety conflicting moral intuitions about concrete cases
(such as abortion or the death penalty). How, it is claimed, could such
disagreements persist if there were really objective moral facts?
Nietzsche, I will argue, suggests a different kind of argument from
moral disagreement that deserves more attention than it has received to
Nietzsche calls attention not to “ordinary” or “folk” moral
disagreement, but rather to what should be the single most important and
embarrassing fact about the history of moral theorizing by philosophers
over the last two millennia: namely, that no rational consensus has
been secured on any substantive, foundational proposition about
morality. Is the criterion of right action the reasons for which it is
performed or the consequences it brings about? If the former, is it a
matter of the reasons being universalizable, or that they arise from
respect for duty, or something else? If the latter, is it the utility it
produces or the perfection it makes possible? If the former, is
utility a matter of preference-satisfaction (as the economists often
believe) or preference satisfaction under idealized circumstances—or is
it, rather, unconnected to the preferences of agents, actual or
idealized, but instead a matter of realizing the human essence or
enjoying some ‘objective’ goods? And perhaps a criterion of right
action isn’t even the issue, perhaps the issue is cultivating
dispositions of character conducive to living a good life. And here, of
course, I have merely canvassed just some of the disagreements
that plague Western academic moral theory, not even touching on
non-Western traditions, or radical dissenters from the mainstream of
academic moral theory, such as Nietzsche himself.
Notice, too, that the disagreements of moral philosophers are
amazingly intractable. Nowhere do we find lifelong Kantians suddenly
(or even gradually) converting to Benthamite utilitarianism, or vice
versa. Nietzsche thus locates disagreement at the heart of the most
sophisticated moral philosophies of the West, among philosophers who
very often share lots of other beliefs and practices. Yet what we find
is that these philosophers remain locked in apparently intractable
disagreement about the most important, foundational issues about
morality. This persistent disagreement on foundational questions, of
course, distinguishes moral theory from inquiry in the sciences and
mathematics, not, perhaps, in kind, but certainly in degree. In the
hard sciences and mathematics, intellectual discourse regularly
transcends cultural and geographic boundaries and consensus emerges
about at least some central propositions. How to explain the failure of
moral theory to achieve anything like this?
In Justice in Robes, Ronald Dworkin identifies a “Chicago
School of no-nonsense jurisprudence” that he associates with Judge
Richard Posner. In the new year's first WIP talk, Brian Leiter’s
work-in-progress, "In Praise of Realism (and Against 'Nonsense'
Jurisprudence)", recasts the Dworkin-Posner dispute as a disagreement about
two different kinds of theories that he dubs “Moralism” (Dworkin)
and “Realism,” a dispute whose history Leiter traces through
Thucydides, Plato, Nietzsche, and Rawls, among others. The title of
Leiter's piece is itself a jab at Dworkin's efforts to distinguish his
"moralist" jurisprudential model from the "realists." Dworkin
refers to himself as praising a "theoretical" account of judging, in
contrast to the "anti-theoretical, no-nonsense jurisprudence" of his
opponents. So, Leiter responds that this must make Dworkin an exponent of
"pro-theoretical, nonsense jurisprudence".
Leiter's allegation is that Dworkin effectively has no account of how judges
behave. Instead, he labors under Platonic "optimism" that simply
takes on faith that a world properly understood will make moral sense.
Consequently, when looking at how judges decide cases, we should take them at
their word when they tell us they're decide cases in a way that is coherent
with what comes before, is morally correct, and represents the one true
"right" answer as a matter of law. And more importantly, we should do
this even in the face of considerable empirical and social science evidence
indicating alternative explanations. Dworkin wants to instead locate the
"hidden logic" of judicial decisions in their "justificatory
ascent" -- the degree to which we can hold judicial decisions accountable
to the big principles inlaid within the legal regime.
But this isn't really what happens. Consider the example of the
"privity of contract" doctrine rejected in MacPherson. It
wasn't that MacPherson grasped, in any real sense, the "real"
principle that had been progressively developed in prior cases applying the
"inherently dangerous" standard. Rather, what had happened is that
the latter standard had dissolved into near-complete incoherence. Circumstances
changed, the rule no longer made sense, so Justice Cardozo resolved to change
it. Neither Dworkin nor, for that matter, Cardozo provide any traditional legal
justification for why the change occurred. The story of a "justificatory
ascent" is nonsense made up after the fact. Without the pre-existing
Platonic commitment to the notion that any sensible account of the world will
also make moral sense, there is no reason to substitute perfectly good explanatory
accounts of judicial behavior for poor ones because the latter have the
"advantage" of conforming to systematic moral vision.
To be clear, Leiter is not opposed to pressing for particular normative
claims, in legal contexts or elsewhere. The problem is when such commitments
are recast as descriptive accounts of how courts actually operate. Realism, as
the name indicates, is about clear, untinted descriptions of what courts really
are doing. This is quite consistent with trying to muster whatever rhetorical,
persuasive, or organizational tools available to get them to do something else.
Philosophy Talk, a weekly, one-hour radio series, recently celebrated their 200th episode with a discussion of the "Top 10 most pressing philosophical issues for the 21st century." The discussion included Chicago's own Brian Leiter and Martha Nussbaum. Listen to the show here.
On Tuesday, John P. Wilson Professor of Law Brian Leiter was a guest on WNPR's show, "Where We Live." Together with Danielle Citron and Senator Gary LeBeau, he discussed the extent to which First Amendment protections should be extended into cyberspace.
On their website, WNPR sums up the conversation:
Our discussion this morning kept circling back to some central questions--questions we've been dealing with and will continue to deal with on Where We Live:
How is the internet changing our social contract? What rights are we
willing to give up in order to maintain order in the digital world?
And as the internet continues to fundamentally change the course of
global communications and transactions--what new rules should govern
online life and what, if any, new rights must we protect?
This past weekend, John P. Wilson Professor of Law Brian Leiter took part in a Bloggingheads.tv "diavlog" with Yale's Scott Shapiro entitled "Even Further Beyond the Hart-Dworkin Debate." The entire conversation is embedded below, or you can jump to individual topics here:
Monday marked this year’s first meeting of the Law and
Philosophy Workshop. It is traditional for one of the workshop’s early meetings
to be limited to students in order to familiarize them with some of the key
concepts and common problems that characterize that year’s topic. This year’s
topic being “Toleration and Religious Liberty,” it was fitting for Brian Leiter
to present his paper, “Why Tolerate Religion?” (available here) at this first student-only
“Why Tolerate Religion?” is an attempt to find a principled
argument for religious toleration that does not apply equally to toleration of
conscience generally. Leiter notes that religion has been given a special place
in our constitutional system, and asks if this is justified. At the workshop’s
opening, he acknowledged that in his paper he was taking for granted that if
there is a principled foundation for the law of religious liberty, it is to be
associated with the idea of toleration,
as opposed to some other concept such as equal respect.
Chicago's own Martha Nussbaum is one of the contributors to this illuminating new set of interviews with leading political philosophers, who discuss the major issues in the field, their contributions to it, as well as the issues that will be most important for the future. The book's web site includes many interesting excerpts from the interviews, including Professor Nussbaum's own observations about neglected topics in political philosophy. One such topic, she says, is religion:
Good writing in political philosophy about religion is relatively rare. Again, there is a strong tradition here in Western thought, including Roger Williams, Thomas Hobbes, John Locke, Spinoza, David Hume, Immanuel Kant, Moses Mendelssohn (whose writings ought to be much better known than they are), and John Rawls. But we need to start working on this topic with an eye to the problems that vex our world today, problems of religious fear and loathing spawned by the fear of global terrorism. To do this work well, we need to learn much more about non-Judeo-Christian religions, and, most obviously, about Islam. We ought to be teaching every undergraduate philosophy major courses on Islamic philosophy, but to do that we first have to educate ourselves! I would like to see a vigorous conversation about religion and political philosophy across national, cultural, and religious lines.
Last Thursday (Nov. 16) the Federalist Society and American Constitution Society at the Law School sponsored a "debate" between myself and Judge Richard Posner about what Judge Posner has called "pragmatic adjudication." (Thanks should also go to Chicago 2L William Rothwell for his work setting this event up.) The podcast of that event is now on-line here. Since it is long (about 1 1/2 hours), I thought I would try to say a little bit about both our subject and some of the "highlights."
The session was less a "debate" than a discussion, in which I invited Judge Posner to clarify his conception of "pragmatic adjudication." I took as the focal point of our discussion pp. 241-242 of his book The Problematics of Moral and Legal Theory (Harvard University Press, 1999), where he defends the view that the duty of judges is "always [to] try to do the best they can do for the present and the future, unchecked by any felt duty to secure consistency in principle with what other officials have done in the past" (241). Based on these materials, I put to Judge Posner four questions about his conception of pragmatic adjudication.