Evolutionary biology – or, more precisely, two (purported) applications of Darwin's theory of evolution by natural selection, namely, evolutionary psychology and what has been called human behavioral biology – is on the cusp of becoming the new rage among legal scholars looking for interdisciplinary insights into the law. We argue that as the actual science stands today, evolutionary biology offers nothing to help with questions about legal regulation of behavior. Only systematic misrepresentations or lack of understanding of the relevant biology, (...) together with far-reaching analytical and philosophical confusions, have led anyone to think otherwise. Evolutionary accounts are etiological accounts of how a trait evolved. We argue that an account of causal etiology could be relevant to law if (1) the account of causal etiology is scientifically well-confirmed, and (2) there is an explanation of how the well-confirmed etiology bears on questions of development (what we call the Environmental Gap Objection). We then show that the accounts of causal etiology that might be relevant are not remotely well-confirmed by scientific standards. We argue, in particular, that (a) evolutionary psychology is not entitled to assume selectionist accounts of human behaviors, (b) the assumptions necessary for the selectionist accounts to be true are not warranted by standard criteria for theory choice, and (c) only confusions about levels of explanation of human behavior create the appearance that understanding the biology of behavior is important. We also note that no response to the Environmental Gap Objection has been proffered. In the concluding section of the article, we turn directly to the work of Owen Jones, a leading proponent of the relevance of evolutionary biology to law, and show that he does not come to terms with any of the fundamental problems identified in this article. (shrink)

Introduction: From legal realism to naturalized jurisprudence -- A note on legal indeterminacy -- Part I. American legal realism and its critics -- Rethinking legal realism: toward a naturalized jurisprudence (1997) -- Legal realism and legal positivism reconsidered (2001) -- Is there an "American" jurisprudence? (1997) -- Postscript to Part I: Interpreting legal realism -- Part II. Ways of naturalizing jurisprudence -- Legal realism, hard positivism, and the limits of conceptual analysis (1998, 2001) -- Why Quine is not a postmodernist (...) (1997) -- Beyond the Hart/Dworkin debate: the methodology problem in jurisprudence (2003) -- Part III. Naturalism, morality, and objectivity -- Moral facts and best explanations (2001) -- Objectivity, morality, and adjudication (2001) -- Law and objectivity (2002). (shrink)

This volume capitalizes on a growth of interest in Nietzsche's work on morality from two sides -- from scholars of the history of philosophy and from ...

BRIAN LEITER; Is There An ‘American’ Jurisprudence?, Oxford Journal of Legal Studies, Volume 17, Issue 2, 1 July 1997, Pages 367–387, https://doi.org/10.1093/oj.

The latest volume in the Oxford Readings in Philosophy series, this work brings together some of the best and most influential recent philosophical scholarship on Nietzsche. Opening with a substantial introduction by John Richardson, it covers: Nietzsche's views on truth and knowledge, his 'doctrines' of the eternal recurrence and will to power, his distinction between Apollinian and Dionysian art, his critique of morality, his conceptions of agency and self-creation, and his genealogical method. For each of these issues, the papers show (...) Nietzsche's continuing philosophical importance. Giving a clear and accessible overview, while retaining an analytical philosophical approach throughout, this volume is essential reading for all students of Nietzsche. (shrink)

This chapter contains sections titled: Jurisprudence: Method and Subject Matter Legality and Authority Positivism: Austin vs. Hart The Authority of Law Judicial Discretion Incorporationism and Legality Raz' s Theory of Authority Incorporationism and Authority Conclusion Postscript References.

This Handbook will be an essential reference point for graduate students and professional academics working on continental philosophy, as well as those with an ...

Both an introduction to Nietzsche’s moral philosophy, and a sustained commentary on his most famous work, On the Genealogy of Morality, this book has become the most widely used and debated secondary source on these topics over the past dozen years. Many of Nietzsche’s most famous ideas - the "slave revolt" in morals, the attack on free will, perspectivism, "will to power" and the "ascetic ideal" - are clearly analyzed and explained. The first edition established the centrality of naturalism to (...) Nietzsche’s philosophy, generating a substantial scholarly literature to which Leiter responds in an important new Postscript. In addition, Leiter has revised and refreshed the book throughout, taking into account new scholarly literature, and revising or clarifying his treatment of such topics as the objectivity of value, epiphenomenalism and consciousness, and the possibility of "autonomous" agency. (shrink)

Contemporary moral psychology has been dominated by two broad traditions, one usually associated with Aristotle, the other with Kant. The broadly Aristotelian approach emphasizes the role of childhood upbringing in the development of good moral character, and the role of such character in ethical behavior. The broadly Kantian approach emphasizes the role of freely chosen conscious moral principles in ethical behavior. We review a growing body of experimental evidence that suggests that both of these approaches are predicated on an implausible (...) view of human psychology. This evidence suggests that both childhood upbringing and conscious moral principles have extraordinarily little impact on people's moral behavior. This paper argues that moral psychology needs to take seriously a third approach, derived from Nietzsche. This approach emphasizes the role of heritable psychological and physiological traits in explaining behavior. In particular, it claims that differences in the degree to which different individuals behave morally can often be traced back to heritable differences between those individuals. We show that this third approach enjoys considerable empirical support - indeed that it is far better supported by the empirical data than are either the Aristotelian or Kantian traditions in moral psychology. (shrink)

A remarkable number of Nietzsche's substantive moral psychological views have been borne out by evidence from the empirical sciences. Moral judgments are products of affects on Nietzsche's view, but the latter are in turn causally dependent upon more fundamental features of the individual. Nietzsche accepts a doctrine of types. The path is short from the acceptance of the Doctrine of Types to the acceptance of epiphenomenalism, as Leiter, and more recently, Riccardi argue. This chapter explains Nietzsche's phenomenological account of (...) willing, which serves as independent motivation for the view that Nietzsche denies the causal efficacy of conscious acts of willing. It also explores that in spite of an absence of volitional freedom, self‐control can be usefully understood on a strength‐model of motivational resources. The chapter concludes with a brief discussion of how Nietzsche, without employing the contemporary methods of empirical psychology, could nonetheless be such a prescient moral psychologist. (shrink)

What constitutes a “good” life—not necessarily a morally good life, but a life that is good for the person who lived it? In response to this question of “well-being," philosophers have offered three significant answers: A good life is one in which a person can satisfy their desires (“Desire-Satisfaction” or “Preferentism”), one that includes certain good features (“Objectivism”), or one in which pleasurable states dominate or outweigh painful ones (“Hedonism”). To adjudicate among these competing theories, moral philosophers traditionally gather data (...) from thought experiments and intuition. In this chapter, we supplement that traditional approach with a pair of experimental studies that examine whether the three theories reflect laypeople’s intuitions about well-being. The empirical studies yield two primary findings. First, they provide evidence for lay "well-being pluralism": laypeople treat desire satisfaction, positive objective conditions, and happiness as all constitutive of well-being. Second, the studies provide evidence of "hedonic dominance": laypeople evaluate an individual’s happiness as more important to an individual’s overall well-being than desire satisfaction or objective conditions. (shrink)

Studying evidence law as part of naturalized epistemology means using the tools and results of the sciences to evaluate evidence rules based on the accuracy of the verdicts they are likely to produce. In this chapter, we introduce the approach and address skeptical concerns about the value of systematic empirical research for evidence scholarship, focusing, in particular, on worries about the external validity of jury simulation studies. Finally, turning to applications, we consider possible reforms regarding eyewitness identifications and character evidence.

"--Christopher L. Eisgruber, Princeton University "This is a provocative and bracing essay, one that is bound to stimulate much discussion.

Many kinds of relativism have been attributed to Karl Marx. We discuss three broad areas of Marx’s thinking: his theories of history, science, and morality. Along the way, we show that Marx is committed to a version of philosophical naturalism that privileges the results of genuine science over alternative ways of understanding the world. This outlook presupposes the possibility of objective knowledge of the world. It follows that Marx is no relativist (at least in the senses we consider). Unlike many (...) non-relativists, however, Marx pays close attention to the problems with which contemporary philosophers interested in relativism are most preoccupied: irresolvable moral disagreements between social groups, the evolution of institutions and practices over time, and the prominent, perhaps decisive role played by non-cognitive social factors in belief formation. We show how some later Marxists have mistaken this close attention for evidence that Marx himself is a relativist. (shrink)

Brian Leiter draws on empirical psychology to defend a set of radical ideas from Nietzsche: there is no objectively true morality, there is no free will, no one is ever morally responsible, and our conscious thoughts play almost no significant role in our actions. Nietzsche emerges as not just a great philosopher but a prescient psychologist.

Where does philosophy, the oldest academic subject, stand at the beginning of the new millennium? This remarkable volume brings together leading figures from most major branches of the discipline to offer answers. What remains of the "linguistic turn" in twentieth-century philosophy? How should moral philosophy respond to and incorporate developments in empirical psychology? Where might Continental and Anglophone feminist theory profitably interact? How has our understanding of ancient philosophy been affected by the emergence of analytic philosophy? Where does the mind-body (...) problem stand today? What role must value judgments play in science? Do Marx, Nietzsche, or Freud matter in the 21st century? These and many other questions at the cutting edge of the discipline are addressed by distinguished philosophers from Australia, Britain, Canada, and the United States. They aim not only to stimulate philosophical debate, but to introduce those in cognate disciplines--biology, classics, economics, history, law, linguistics, literary studies, mathematics, philosophy, physics, political science, psychology, among others--to what is happening in contemporary philosophy. In a substantial introduction, the editor gives an overview of the state of philosophy today and helps orient non-philosophers. List of Contributors Julia Annas: Ancient Philosophy for the Twenty-First Century Don Garrett: Philosophy and History in the History of Modern Philosophy Brian Leiter: The Hermeneutics of Suspicion: Recovering Marx, Nietzsche, and Freud Timothy Williamson: Past the Linguistic Turn? Jaegwon Kim: The Mind-Body Problem at Century's Turn David J. Chalmers: The Representational Character of Experience Alvin I. Goldman: The Need for Social Epistemology Philip Kitcher: The Ends of the Sciences Nancy Cartwright: From Causation to Explanation and Back Thomas Hurka: Normative Ethics: Back to the Future Peter Railton: Toward an Ethics that Inhabits the World Rae Langton: Projection and Objectification Philip Pettit: Existentialism, Quietism, and the Role of Philosophy. (shrink)

This chapter offers a new interpretation of Nietzsche’s argument for moral skepticism, an argument that should be of independent philosophical interest as well. On this account, Nietzsche offers a version of the argument from moral disagreement, but, unlike familiar varieties, it does not purport to exploit anthropological reports about the moral views of exotic cultures, or even garden-variety conflicting moral intuitions about concrete cases. Nietzsche, instead, calls attention to the single most important and embarrassing fact about the history of moral (...) theorizing by philosophers over two millennia: namely, that no rational consensus has been secured on any substantive, foundational proposition about morality. Persistent and apparently intractable disagreement on foundational questions, of course, distinguishes moral theory from inquiry in the sciences and mathematics. According to Nietzsche, the best explanation for this disagreement is that, even though moral skepticism is true, philosophers can still construct valid dialectical justifications for moral claims because the premises of different justifications will answer to the psychological needs of at least some philosophers and thus be deemed true by some of them. The chapter concludes by considering various attempts to defuse this abductive argument for scepticism. (shrink)

The “terrible” existential truths about the human situation raise Schopenhauer's question: why continue living at all? Nietzsche's answer is that only viewed in terms of aesthetic values can life itself be “justified”. But how could the fact that life exemplifies aesthetic value restore our attachment to life in the face of these terrible existential truths? I suggest that there are two keys to understanding Nietzsche's answer: first, his assimilation of aesthetic pleasure to a kind of sublimated sexual pleasure; and second, (...) his psychological thesis that powerful affects neutralize pain, and thus can “seduce” the sufferer back to life. Life can supply the requisite kind of aesthetic pleasure only if it features what I call the “spectacle of genius,” the spectacle represented by the likes of Beethoven, Goethe, and Napoleon. Since such geniuses are not possible in a culture dominated by “morality”, the critique of morality is essential to the restoration of an affective attachment to life. (shrink)

Nietzsche famously proclaimed the “death of God,” but in so doing it was not God’s death that was really notable—Nietzsche assumes that most reflective, modern readers realize that “the belief in the Christian god has become unbelievable” —but the implications of that belief becoming unbelievable, namely, “how much must collapse now that this faith has been undermined,” in particular, “the whole of our European morality”. What is the connection between the death of God and the death of morality? I argue (...) that Nietzsche thinks the death of God will undermine the “moral egalitarianism” that is central to modern morality, in both its deontological and utilitarian forms. I offer an account of how Nietzsche sees the connection, arguing that no one has yet offered a nontheistic defense of moral egalitarianism. I conclude with some skeptical considerations about whether Nietzsche was right that atheism would, in fact, undermine morality. (shrink)

Do moral properties figure in the best explanatory account of the world? According to a popular realist argument, if they do, then they earn their ontological rights, for only properties that figure in the best explanation of experience are real properties. Although this realist strategy has been widely influential—not just in metaethics, but also in philosophy of mind and philosophy of science—no one has actually made the case that moral realism requires: namely, that moral facts really will figure in the (...) best explanatory picture of the world. This issue may have been neglected in part because the influential dialectic on moral explanations between philosophers Gilbert Harman and Nicholas Sturgeon has focused debate on whether moral facts figure in relevant explanations. Yet as others have noted, explanatory relevance is irrelevant when it comes to realism: after all, according to the popular realist argument, it is inference to the best explanation of experience that is supposed to confer ontological rights. I propose to ask, then, the relevant question about moral explanations: should we think that moral properties will figure in the best explanatory account of the world? (shrink)

Shapiro has recently argued that Dworkin posed a new objection to legal positivism in Law's Empire, to which positivists, he says, have not adequately responded. Positivists, the objection goes, have no satisfactory account of what Dworkin calls “theoretical disagreement” about law, that is, disagreement about “the grounds of law” or what positivists would call the criteria of legal validity. I agree with Shapiro that the critique is new, and disagree that it has not been met. Positivism can not offer an (...) explanation that preserves the “face value” of theoretical disagreements, because the only intelligible dispute about the criteria of legal validity is an empirical or “head count” dispute, i.e., a dispute about what judges are doing, and how many of them are doing it. Positivism, however, has two other explanations for theoretical disagreement, which “explain away” rather than preserve the “face value” disagreement. According to positivists, either theoretical disagreements are disingenuous, in the sense that the parties, consciously or unconsciously, are really trying to change the law, that is, they are trying to say, as Dworkin puts it, “what it should be” not “what the law is”; or they are simply in error, that is, they honestly think there is a fact of the matter about what the grounds of law are, and thus what the law is, in the context of their disagreement, but they are mistaken, because, in truth, there is no fact of the matter about the grounds of law in this instance precisely because there is no convergent practice of behavior among officials constituting a Rule of Recognition on this point. The “Disingenuity” and “Error Theory” accounts of theoretical disagreement are explored, with attention to the theoretical desiderata at stake in choosing between competing explanatory theories. Particular attention is given to the best explanation for Riggs v. Palmer in light of the actual historical context of the decision and other opinions by the Riggs judges in contemporaneous cases. (shrink)

Nietzsche is one of the most important and controversial thinkers in the history of philosophy. His writings on moral philosophy are amongst the most widely read works, both by philosophers and non-philosophers. Many of the ideas raised are both startling and disturbing, and have been the source of great contention. On the Genealogy of Morality is Nietzsche's most sustained and important contribution to moral philosophy, featuring many of the ideas for which he is best known, including the slave revolt in (...) morals; will to power; genealogy; and perspectivism. The Routledge Philosophy GuideBook to Nietzsche on Morality introduces the reader to these and other important Nietzschean themes patiently and clearly. It is the first book to examine the work in such a way, and will be a vital point of reference for any Nietzsche scholar, and essential reading for students coming to Nietzsche for the first time. (shrink)

The essay offers a philosophical reconstruction of Nietzsche’s theory of the will, focusing on (1) Nietzsche’s account of the phenomenology of “willing” an action, the experience we have which leads us (causally) to conceive of ourselves as exercising our will; (2) Nietzsche’s arguments that the experiences picked out by the phenomenology are not causally connected to the resulting action (at least not in a way sufficient to underwrite ascriptions of moral responsibility); and (3) Nietzsche’s account of the actual causal genesis (...) of action. Particular attention is given to passages from Daybreak, Beyond Good and Evil and Twilight of the Idols and a revised version of my earlier account of Nietzsche’s epiphenomenalism is defended. Finally, recent work in empirical psychology (Libet, Wegner) is shown to support Nietzsche’s skepticism that our “feeling” of will is a reliable guide to the causation of action. (shrink)

Legal philosophers have been preoccupied with specifying the differences between two systems of normative guidance that are omnipresent in all modern human societies: law and morality. Positivists propose a solution to this ‘Demarcation Problem’ according to which the legal validity of a norm cannot depend on its being morally valid, either in all or at least some possible legal systems. The proposed analysis purports to specify the essential and necessary features of law in virtue of which this is true. Yet, (...) the concept of law is an ‘artefact concept’, that is, a concept that picks out a phenomenon that necessarily owes its existence to human activities intended to create it. Artefact concepts, even simple ones like ‘chair’, are notoriously resistant to analyses in terms of their essential attributes, precisely because they are hostages to human ends and purposes, and also cannot be individuated by their natural properties. Twentieth-century philosophy of science dealt with a kindred Demarcation Problem: how to demarcate epistemically reliable forms of inquiry from epistemically unreliable ones, that is, how to demarcate science from pseudo-science or nonsense. Like the legal philosophers, they sought to identify the essential properties of a human artefact (namely, science). They failed, and spectacularly so, which led some philosophers to wonder, ‘Why does solving the Demarcation Problem matter?’ This essay develops the lessons for legal philosophy from this episode and its philosophical aftermath, and concludes that, in order not to become embroiled in pointless Fullerian speculations about the effects of jurisprudential doctrines on behaviour, we should abandon the Demarcation Problem in jurisprudence. (shrink)

General jurisprudence-that branch of legal philosophy concerned with the nature of law and adjudication-has been relatively unaffected by the "naturalistic" strains so evident, for example, in the epistemology, philosophy of mind and moral philosophy of the past forty years. This paper sketches three ways in which naturalism might affect jurisprudential inquiry. The paper serves as a kind of precis of the main themes in my book NATURALIZING JURISPRUDENCE: ESSAYS ON AMERICAN LEGAL REALISM AND NATURALISM IN LEGAL PHILOSOPHY (Oxford University Press, (...) 2007). (shrink)

Daybreak marks the arrival of Nietzsche's 'mature' philosophy and is indispensable for an understanding of his critique of morality and 'revaluation of all values'. This volume presents the distinguished translation by R. J. Hollingdale, with a new introduction that argues for a dramatic change in Nietzsche's views from Human, All Too Human to Daybreak, and shows how this change, in turn, presages the main themes of Nietzsche's later and better-known works such as On the Genealogy of Morality. The main themes (...) of Daybreak are located in their intellectual and philosophical contexts: in Nietzsche's training as a classical philologist and his fascination with the Sophists and Thucydides; in the moral philosophies of Kant and Schopenhauer, which are the central foci of Nietzsche's critique of morality; and in the German Materialist movement of the 1850s and after, which shaped Nietzsche's conception of persons. The edition is completed by a chronology, notes and a guide to further reading. (shrink)

ABSTRACTI offer an interpretation of Nietzsche's striking idea of ‘the innocence of becoming’, and a partial defense of its import, namely, that no one is ever morally responsible or guilty for what they do and that many of the so-called reactive attitudes are misplaced. I focus primarily, though not exclusively, on the arguments as set out in Twilight of the Idols. First, there is Nietzsche's hypothesis, partly psychological and partly historical or anthropological, that the ideas of ‘free’ action or free (...) will, and of responsibility for actions freely chosen or willed, were introduced primarily in order to justify punishment. Call this the Genetic Thesis about Free Will. Second, there is Nietzsche's claim that the moral psychology, or ‘psychology of the will” as he calls it, that underlies this picture is, in fact, false – that, in fact, it is not true that every action is willed or that it reflects a purpose or that it originates in consciousness. Call these, in aggregate, the Descriptive Thesis about the Will. Finally, there is articulation of a programmatic agenda, namely, to restore the ‘innocence of becoming’ by getting rid of guilt and punishment based on guilt – not primarily because ascriptions of guilt and responsibility are false, but because a world understood as ‘innocent’, one understood in terms of ‘natural’ cause and effect, is a better world in which to live. I focus in particular on a reactive attitude often ignored by philosophers, but of crucial importance for Nietzsche, namely, revenge. I aim to explain and defend Zarathustra's recommendation: ‘Enemy’ you shall say, but not villain; sick you shall say, but not scoundrel; fool you shall say, but not ‘sinner.’ Nietzsche's views are contrasted with those of important modern writers on these topics, especially P.F. Strawson and Derk Pereboom. (shrink)

Marx did not have a normative theory, that is, a theory that purported to justify, discursively and systematically, his normative opinions, to show them to be rationally obligatory or objectively valid. In this regard, Marx was obviously not alone: almost everyone, including those who lead what are widely regarded as exemplary ‘moral’ lives, decide and act on the basis of normative intuitions and inclinations that fall far short of a theory. Yet self-proclaimed Marxists like G. A. Cohen and Jurgen Habermas (...) have reintroduced a kind of normative theory into the Marxian tradition that Marx himself would have ridiculed. This essay defends Marx’s position and tries to explain the collapse of Western Marxism into bourgeois practical philosophy, i.e., philosophizing about what ought to be done that is unthreatening to capitalist relations of production. (shrink)