Mark Greenberg (UCLA School of Law and Department of Philosophy) has posted Naturalism and Normativity in the Philosophy of Law on SSRN. Here is the abstract:
In this paper, I criticize an influential understanding of naturalization according to which work on traditional problems in the philosophy of law should be replaced with sociological or psychological explanations of how judges decide cases. W.V. Quine famously proposed the “naturalization of epistemology.” Quine argued that we should replace certain traditional philosophical inquiries into the justification of our beliefs with empirical psychological inquiry into how we actually form beliefs. In a prominent series of papers and a forthcoming book, Brian Leiter (1997; 1998; 2001; 2007) has raised the intriguing idea that Quine's naturalization of epistemology is a useful model for philosophy of law.
I examine Quine's naturalization of epistemology and Leiter's suggested parallel. I argue that the parallel does not hold up. I show that, granting Leiter's substantive assumption that the law is indeterminate, there is no philosophical confusion or overreaching in the legal case that is parallel to the philosophical overreaching of foundationalism in epistemology. Moreover, if we take seriously Leiter's analogy between, on the one hand, the justification of belief in scientific theories and, on the other, the justification of decisions in legal cases, the result is almost the opposite of what Leiter suggests. The closest parallel in the legal case to Quine's position would be the rejection of the philosophical positions that lead to the indeterminacy thesis. Finally, the conclusion that law is indeterminate could not establish the bankruptcy of philosophical investigation into the relation between the grounds of law and the content of the law. After all, the argument for that conclusion depends on a philosophical account of the relation between the grounds of law and the content of law. The argument therefore presupposes that that relation is an appropriate subject for philosophical inquiry.
This should cause some fireworks. Highly recommended, as is Leiter's book, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy, which contains discussion of Greenberg in the Postscript to Part I.
