Abstract

Responds to Leiter's naturalist/realist approach to jurisprudence - particularly his claim that such an approach implies exclusive positivism. Considers analogy with naturalized epistemology. "With regard to the first step the realists were anti-foundationalists in the sense that they 'denied that legal reasons justify a unique decision: the legal reasons underdetermine the decision '. The second step, the replacement suggests that instead of a justificatory account of adjudication, i.e. some prescription as to how judges should decide cases, the reaslists provided an empirical description o fhow judges actually decide cases." Notes that positivists are generally commited to a moderate foundationalism by their acceptance of a RoR. "[T]he analogy with the epistemological anti-foundationalist thesis would suggest that foundationalism in law is committed to the view that if X is a legal norm, it is a legal norm in virtue of inference from self-validating foundations. There is nothing in this view that commits the legal foundationalist to the view that legal norms necessarily cover the entire practical domain, and therefor provide a determinate answer to every practical question...Now, if the anti-foundationl step fails, then we need not, indeed must not, take the second step, because if we take it, we will lsoe something of great importance for our understanding of law. If legal norms qua reasons are part of what determines the outcome of cases, then in order to understand how legal decisions are reached, we cannot disregard them." If Leiter rejects this moderate foundationalism, then it is in tension with his other claim that the realists were positivists. Goes on to argue that nothing in the realist program contributes to the hard vs. soft positivism debate and, in fact, does nothing to substantiate positivism. Offers brief explication of "positivism of norms".