Brian Leiter (University of Chicago) has posted Some Realism about Political and Legal Philosophy on SSRN. Here is the abstract:
There have been two main traditions of theorizing about society, politics, and law in Western thought, but they do not divide up along familiar lines of modern or ancient, Enlightenment or pre-Enlightenment, analytic or Continental, historical or systematic. On one side, we find, for example, Thucydides, Machiavelli, Marx, Nietzsche, Freud and--to mention more recent thinkers who are mostly on the realist side of the divide—H.L.A. Hart and Michel Foucault. On the other side, we find Plato, Aquinas, Locke, Kant, Hegel and—once again, to mention more recent theorists—John Rawls, Jurgen Habermas and Ronald Dworkin. I treat the former as representing “realism” in political and legal thought, the latter “moralism,” terms whose meaning I explore.
“Realists,” in my non-metaphysical sense, are committed to some or all of the following ideas: (1) human beings, throughout history and across cultures, are motivated primarily by their passions and interests (not by “reason”) (“Humeanism” about motivation); (2) many human passions and interests are anti-social or “immoral” (people are, for example, frequently selfish, cruel, self-aggrandizing, avaricious, self-deceived, envious, etc.) (“Nietzscheanism” about motivation); (3) given what human being are like (either by nature or under existing conditions), theories devoted to articulating and discursively justifying people’s (perhaps rational?) moral obligations and duties, are irrelevant to changing people’s behavior—arguments do not change passions and interests; (4) indeed, there are no objective moral obligations or duties or other moral requirements, so arguing about them is a scholastic exercise; (5) people’s beliefs about their actions and motivations are mostly self-serving and post-hoc, designed to obscure or rationalize what they are really doing and what their real motivations are (philosophers are significant contributors to this obfuscation); (6) theories of society, politics, and law should try to explain what is really going on (e.g., the actual patterns of human behavior, both individual and social); (7) “ordinary opinion,” “common sense” and “folk intuitions” are data to be explained, not resources for genuine explanation; (8) theories of society, politics, and law should never assume that their subject-matter is morally defensible.
Moralists, by contrast, concern themselves, first and foremost, with discursive theories about how individuals and institutions morally ought to act. Moralists do not necessarily sit in judgment, wagging their finger at leaders and citizens who fail to live up to the moralist’s arguments about their obligations: sometimes, as with Hegel (or, in a different tradition, Confucius), they sometimes engage in elaborate rationalizations of the existing state of affairs (or, more precisely, the interests of the dominant class in the existing state of affairs). Often, they simply "press into formulas" (as Nietzsche says) prevailing moral opinions.
I develop both “realism” and “moralism” as ideal types and argue against moralism on both epistemic and practical grounds.
From the paper:
Moralism obviously has the upper hand in political philosophy in the contemporary academy, but in legal theory, the situation is better: the most important figure in Anglophone legal philosophy of the last century, H.L.A. Hart, was generally a realist, even as most of those influenced by him (like Joseph Raz and many of his students) sank into moralism. Realists about law have also been well-represented in France (e.g., Michel Troper), Italy (e.g., Giovanni Tarello and Riccardo Guastini), Scandinavia (e.g., Alf Ross), Australia (e.g., Julius Stone) and the United States (e.g., Karl Llewellyn and Richard Posner). Jurisprudential realists all share the aim to describe how law operates without romantic or moralizing illusions. We want to know what law and legal institutions are like in reality, not what we might wish them to be. Realists also do not suppose that the way things are will be morally defensible: it can (and often does) turn out that law and its operations are foolish or appalling. Realists can, as we have already noted, be animated by normative hopes, but they do not build them in to the account of their subject-matter (contrast, for example, Ronald Dworkin’s moralist jurisprudence which builds a moral obligation to obey the law into his account of the nature of law.
And from the conclusion:
All of which is to say that political realists, like legal realists, can have ideals and aspirations. What distinguishes them from the moralists who dominate both legal and political philosophy in the universities today is that, first, they understand that to make the world as we would like it to be, we need to understand how it really works; and, second, they view theorizing about the moral obligations of judges or political leaders to be an irrelevant exercise. Moralist political and legal philosophy is flotsam on the surface of reality. Philosophers concerned with knowledge of reality should, instead, be realists.
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