ON THE PROSPECTS OF A

NATURALIZED JURISPRUDENCE:
REVIEW OF BRIAN LEITER, NATURALIZING JURISPRUDENCE

ROBIN BRADLEY KAR†

Abstract

Brian Leiter is one of the leading proponents of the use and application of
so-called “naturalistic developments” in contemporary philosophy to
central questions in analytic jurisprudence. He is also arguably the
leading philosophical interpreter of legal realism. In Naturalizing
Jurisprudence, he collects many of his most important essays on these
topics, organized by theme, and presents previously unpublished
responses to critics.

This review critically examines all the three parts of Leiter’s book.
Following Leiter’s division, Part I of this review addresses the
philosophical legacy of American legal realism (with specific reference to
the nature of justification in adjudication). Part II discusses the
appropriate philosophical methodology to determine law’s nature
(including what conclusions to draw from this methodology). Part III
discusses the bearing that contemporary meta-ethical thought might have
on issues of legal objectivity. Special emphasis is given throughout to the
larger prospects for a naturalized jurisprudence, and to how alternative
versions of naturalized views might look.

INTRODUCTION ................................................................................ 102

I. THE PHILOSOPHICAL LEGACY OF AMERICAN LEGAL REALISM . 103
II. METHODOLOGY AND LAW’S NATURE ....................................... 110
III. CONTEMPORARY META-ETHICS AND LEGAL OBJECTIVITY ....... 115

† Professor of Law and Philosophy, University of Illinois College of Law.

101
102 NOTRE DAME PHILOSOPHICAL REVIEWS [XXX

INTRODUCTION

Brian Leiter is one of the leading proponents of the use and

application of so-called “naturalistic developments” in contemporary
philosophy to central questions in analytic jurisprudence. He is also
arguably the leading philosophical interpreter of legal realism. In
Naturalizing Jurisprudence, he collects many of his most important
essays on these topics, organized by theme, and presents previously
unpublished responses to critics. The result is a work that goes well
beyond the individual essays to present a trenchant, multi-faceted
and mutually-reinforcing set of challenges to core views and
methodologies that are prevalent in the field. In an important sense,
the book is also agenda-setting: it clarifies the impact that naturalistic
developments in philosophy can have on core questions in analytic
jurisprudence, while gesturing towards a larger and partly empirical
project aimed at working out the full scope of these consequences for
legal epistemology, the nature of law, and the objectivity of legal
judgment.
This is thus an important book by one of the most influential
legal philosophers of our time. In what follows, I will critically
examine the three parts of this book, which address, more
specifically: (1) the philosophical legacy of American legal realism,
with specific reference to the nature of justification in adjudication;
(2) the appropriate philosophical methodology to determine the
nature of law (including what conclusions to draw from this
methodology); and (3) the bearing that issues in meta-ethics might
have on legal objectivity. Although Leiter devotes portions of his
book to arguing for various of his naturalistic commitments as well,
these are large topics, which have commanded an enormous
literature of their own. The commitments themselves are
controversial but have a distinguished pedigree and have garnered
widespread approval in one form or another. It is therefore clearly
important to know what naturalism might mean for jurisprudence if
true. Leiter’s more distinctive contributions are, in any event, on this
narrower topic, and I will therefore focus on those aspects of his
work here.
2009] PROSPECTS OF A NATURALIZED JURISPRUDENCE 103

One initial issue concerns the meaning of the word

“naturalism”. Although this term does not have a single definition in
philosophy, most people associate the term with several core
commitments, which can be stated in broad brush fashion. The first
is a metaphysical view, which states that properties, or events, must
be capable of explaining some aspect of our experience, or making
the right kind of causal difference in our experience, if they are to be
considered real. Naturalists often differ, at this stage, over the precise
types of explanations that will count. The second is an
epistemological view, which holds that the modern sciences have
proven to be our best method of ascertaining what is true about the
world, and which thus holds scientific inquiry up as the paradigm of
knowledge formation. The term can also refer more specifically to a
special way of answering epistemological questions, which owes
itself to Quine’s famous work on naturalized epistemology. There is
also a more minimalist and yet still fully naturalistic constraint that
one might place on epistemology, which is simply to rule out any
claims to knowledge about a particular subject matter that either
presuppose the existence of any non-natural properties, in the
metaphysical sense noted above, or would require us to have
scientifically implausible psychological capacities to obtain the
relevant knowledge.
Finally, most so-called “naturalist” philosophers either reject,
or are at least highly skeptical of, the possibility of acquiring a priori
knowledge through conceptual analysis. On a methodological level,
many naturalists favor a view of philosophy as the most general and
reflective branch of the sciences instead. Leiter uses the term
“naturalism” to refer to each of these ideas at different places in his
book, and he gives them further refinements as appropriate. In what
follows, I will therefore indicate what sense or senses are most
pertinent to the discussion at hand.

I. THE PHILOSOPHICAL LEGACY OF AMERICAN LEGAL REALISM

In Part I of Naturalizing Jurisprudence, Leiter draws on

Quine’s work on naturalized epistemology to present a philosophical
reconstruction of American Legal Realism. The term “American
Legal Realism” (hereafter legal realism) refers to an important set of
developments in U.S. legal academia, which date back to the 1920s
and 30s, and are typically associated with two primary views: first,
104 NOTRE DAME PHILOSOPHICAL REVIEWS [XXX

that the law is indeterminate, and, second, that “the law just is what
judges decide it is”. Within the legal academy, most non-
philosophers take legal realism to express an undeniable part of the
truth (as reflected in the familiar motto that “we are all legal realists
now”), whereas most philosophers consider Hart’s work in The
Concept of Law to have exposed legal realism’s central tenets to be
philosophical non-starters. This state of affairs is unfortunate, in my
view, because it prevents both sides from appreciating important
insights into the law that are reflected, perhaps only imperfectly, in
their opponents’ claims. One of the most important, though as yet
underappreciated, aspects of Leiter’s work may thus lie in its ability
to help ease the reception of legal philosophy within the larger legal
academy by producing a deeper reconciliation between these
common views. Leiter is, of course, more than clear that he has the
converse aim: to bring legal realist insights back into central debates
in analytic jurisprudence.
Consider three ways that one might try to understand the
basic legal realist claims under discussion. First, one might interpret
them as expressing a deeply skeptical philosophical claim, to the
effect that we cannot make sense of objective tests for legal validity.
As Leiter notes, this view, which is now more commonly associated
with the critical legal studies movement, was the genuine target of
Hart’s criticisms, and these criticisms were largely successful. Leiter
is thus careful to distinguish his own philosophical reconstruction
from these skeptical views. Second, one might interpret the legal
realists as making no philosophical claims at all, and as instead
making only a series of empirical claims about what explains actual
judicial decisions. On this view, the legal realists would be claiming
that legal reasons (even as applied to the relevant facts) do not
explain actual judicial decisions (in at least an important class of
cases), whereas other factors do. Empirical claims of this kind are
perfectly consistent with Hart’s work because they say nothing about
the possibility of objective tests for legal validity. Still, to reconcile
legal realism with Hart’s work in this way would produce a
decidedly minimal reconciliation, because it would caste the legal
realists’ insights as wholly irrelevant to the philosophy of law. (In
what follows, I will thus call this a “merely empirical” project.)
Third, and finally, one might try to identify something non-skeptical
but of philosophical significance in the legal realists’ insights,
something that might speak to a specifically philosophical problem,
2009] PROSPECTS OF A NATURALIZED JURISPRUDENCE 105

such as the nature of justification in adjudication. This would be a

more ambitious project, and one with the potential for a much more
robust and consequential reconciliation. Leiter’s project falls
squarely into this third category, and his work is unique in this
regard.
Leiter begins this project by specifying in more detail the
discrete set of legal realist claims that will serve as the basis for his
philosophical reconstruction. Leiter reads the legal realists as
making, first, a specific (and somewhat narrow) underdetermination
claim: namely, that – in those hard cases that typically reach the
stages of appellate litigation – the class of legal reasons (as applied to
the relevant facts) underdetermine judicial decisions. Second, Leiter
reads the legal realists as jointly committed to a “Core View”,
according to which judges respond primarily to the stimulus of the
facts (rather than the law) in these cases. Although many associate
legal realism with the further view that judges have unfettered
discretion in these cases, and are motivated primarily by personal
idiosyncracies, Leiter reminds us that there was another, distinct
strain of legal realism, according to which judges instead give
predictable responses to recurring and identifiable fact-scenarios.
These particular legal realists therefore recommended an empirical
research program aimed at uncovering the general principles that
explain judicial behavior in this class of cases. Notice that a research
program of this kind would be naturalistic, in the sense that it would
be methodologically continuous with the sciences and would replace
a priori inquiries (here, into the nature of justification in
adjudication) with a purely psychological set of questions. The
program would also be pragmatic, in the sense that it would aim to
uncover empirical generalizations that lawyers might use to predict
how judges will actually decide cases. One of Leiter’s explicit aims
in Part I is, in fact, to bring naturalistic and pragmatic developments
in contemporary philosophy more squarely into jurisprudential
debates, and his initial means of doing this is by this interpretation of
legal realism.
There is a real question whether this particular constellation
of views accurately describes any one or more of the historical legal
realists’ claims, but this question is, in my view, ultimately the
wrong one to ask in the present context. The constellation is either
close enough to many of the historical legal realists’ views, or can be
derived from sufficiently articulated strains of legal realism, to merit
106 NOTRE DAME PHILOSOPHICAL REVIEWS [XXX

attention as a recognizable form of legal realism. Leiter is, moreover,

seeking to glean insights from the legal realists’ work that might
have genuine philosophical significance, and, for these purposes, his
reconstruction will almost certainly have to be more philosophically
sophisticated than anything the historical realists might have
articulated on their own. Leiter argues that this constellation of views
also meets the minimal requirement of being reconcilable with Hart’s
criticisms because – unlike the deeply skeptical views of legal
validity that Hart meant to target with his criticisms in The Concept
of Law – this version presupposes an objective test for legal validity
when distinguishing between legal and non-legal reasons in its initial
underdetermination claim. This version of legal realism also asserts
only local rather than global, or philosophical, indeterminacy. The
more important question is thus whether this project can be
distinguished from a merely empirical one in a way that might
establish its philosophical significance.
Leiter’s basic strategy for establishing this significance is the
following. He asks us to consider, by analogy, what Quine sought to
do by “naturalizing” questions of epistemology. Because this
analogy is so critical to Leiter’s work, I want to spell out the main
steps of Quine’s argument, as I understand them, for later reference.
Quine was interested in the nature of justification in the production
of scientific knowledge, and, when examining this problem, he
famously argued that:

(1) Our scientific theories are, logically speaking,

underdetermined by the empirical evidence, in part because,
for any recalcitrant piece of data, we can choose either to
abandon the theoretical hypothesis that we are testing or
preserve it while abandoning some of the auxiliary
hypotheses that informed the original test. (Here, Quine was
following the earlier work of Pierre Duhem, though he was
also extending it to the meanings that go into scientific
theories.)

(2) We cannot, moreover, know any propositions to be true a

priori (or prior to any experience) and analytically (or solely
by virtue of the meanings of their terms), because there is no
purely analytic domain of conceptual knowledge.
2009] PROSPECTS OF A NATURALIZED JURISPRUDENCE 107

(3) Because of (2), we cannot rely purely on a priori, conceptual

reasoning to determine what the right epistemic norms are to
guide our processes of belief-revision when determining how
to adjust our theories in response to recalcitrant empirical
data.

(4) We must therefore acknowledge the bankruptcy of traditional

philosophical inquiries (which purport to rely on pure
conceptual analysis) into the nature of justification in the
production of scientific knowledge.

(5) Yet importantly, the natural sciences have proven incredibly

successful in producing knowledge (or true justified beliefs)
about the world, and we have discovered no better means of
producing such knowledge.

(6) Hence, we should replace traditional philosophical inquiries

into the nature of justification in epistemology with a purely
descriptive and psychological program that aims to discover
the epistemic norms that actually govern our processes of
belief-revision in the modern sciences.

Like Leiter’s version of legal realism, Quine’s program for

epistemology is thus naturalistic, in the sense that it is
methodologically continuous with the sciences and seeks to replace a
priori inquiries (here, into the nature of justification in the
production of scientific knowledge) with a purely psychological set
of questions. Quine’s recommended program is also pragmatic, in
the sense that it seeks to identify those epistemic norms that actually
work to produce knowledge in our most successful scientific
practices. To understand the philosophical significance of the
particular constellation of views that Leiter draws from the legal
realists, Leiter thus asks us to view the American Legal Realists as
“prescient philosophical naturalists” who recommended a similar
naturalistic research program aimed at discovering how justification
works in adjudication. This project should replace the misguided
effort to produce a philosophical account of adjudication based
solely on a priori reasoning with concepts.
In my view, Leiter’s work has set the stage for an
extraordinarily important and promising line of jurisprudential
108 NOTRE DAME PHILOSOPHICAL REVIEWS [XXX

inquiry, though it is one that has not yet been taken up with sufficient
zeal in the larger legal academy. What this program might reveal is a
set of nonobvious factors and/or epistemic norms in virtue of which
legal judgments are justified in practice, where by “nonobvious” I
mean to refer to factors that go beyond both the content of the
relevant legal sources, as interpreted using the relevant canons of
interpretation, and the rules of logic combined. Factors like these
would be analogous to the epistemic norms that govern theory
construction in the sciences, but, while I expect there to be some
overlap, there should also be important differences and distinctive
contributions from convention (at least). Leiter has described this
program quite nicely, but it has yet to be carried out with sufficient
rigor to settle on an authoritative list of factors that might qualify for
this role. This is a curious state of affairs, but my sense is that it
persists because Leiter has not yet met the burden of distinguishing
his project from a merely empirical one in a way that enough others
have found sufficiently satisfying. Leiter does suggest, in this regard,
that general worries about foundationalism in epistemology should
apply to theories of adjudication (thereby suggesting the bankruptcy
of foundationalist approaches to this topic as well), and he does
observe that the naturalistic questions he would have us pursue as an
alternative at least have the merit of being meaningful and useful.
Apart from these points, however, Leiter depends almost exclusively
on the analogy to Quine, and, in my view, this analogy needs to be
further developed in three important ways if this project is to reach
its full promise and widest possible audience.
First, one should remember that Quine himself refers to the
successful practices of the modern sciences in what I have called step
(5) of his argument. This success is critical to his larger argument
that we should study these practices to identify epistemic norms that
will have appropriate normative force. When turning to adjudication,
however, it is less clear that our practices have been as successful, or
even what the relevant criterion of success might be. Leiter might be
read as touching on this issue when he distinguishes between what he
calls the “sociological” and the “idiosyncrasy” wings of legal
realism: the sociological wing studies consistent patterns of
adjudications that cannot be derived from the mere application of
legal sources to the relevant facts, but that one might nevertheless
fairly characterize as producing “uniquely correct” decisions (at least
on one plausible view), whereas the idiosyncrasy wing focuses on
2009] PROSPECTS OF A NATURALIZED JURISPRUDENCE 109

cases where psychological peculiarities about judges explain why

they sometimes reach different outcomes in factually
indistinguishable cases. Still, absent some further account of what
success in adjudication amounts to, and how precisely to identify it, a
naturalized project of this kind threatens to collapse into a merely
empirical project.
Second, one must consider how best to frame an appropriate
legal analogue of step (1) in Quine’s argument. This step asserts the
existence of indeterminacies in the evidence-theory relationship,
where the logical relations between evidence about the world and
various candidate scientific theories are relatively well understood.
This understanding cannot be uncritically imported into the legal
context, however, because there are important differences between
knowledge about the world and knowledge about what the law
requires in a given set of circumstances. Perhaps the most important
such difference, for present purposes, arises from the role that
conventions appear to play in producing legal knowledge. This role
raises a number of special questions that a naturalized legal
epistemology should address. For example: What is the precise role
that conventions play in the production of legal knowledge? How
should we account for these conventions in purely naturalistic terms,
and in a way that would allow us to have epistemic access to their
requirements? Is the role that conventions play in this special context
(i.e., of producing legal knowledge) sufficient to substitute for the
now discredited role that meanings were once thought to play in the
production of a priori knowledge about the world? Or does the
relationship between conventions and legal truth point in the
opposite direction, by suggesting that legal truth – unlike truth about
the world – may not even be complete? To say that truth about a
given subject matter is “incomplete” is to say the following: it is not
the case that for any proposition about that subject matter, either that
proposition or its negation is true. Finally, are there any other
important differences between legal knowledge and knowledge about
the world that might affect the existence or scope of the relevant
legal indeterminacies, or the shape of the relevant epistemic norms
that constrain legal knowledge? Once again, answers to questions
like these would help to clarify the appropriate contours of a
naturalized approach to adjudication, and would provide useful
guidance to researchers hoping to shed light on how legal knowledge
is produced.
110 NOTRE DAME PHILOSOPHICAL REVIEWS [XXX

Third, one might clarify the jurisprudential stakes of this

project by identifying concrete places where other theorists are
relying on a priori conceptual analysis to drive parts of their own
views on adjudication. Consider, for example, the phenomenon of
hard cases. These are cases in which legal sources, as interpreted
using the relevant canons of legal interpretation and as applied to the
relevant facts of a case, fail to determine a uniquely correct
resolution. Dworkin famously holds the view that cases like these
nevertheless always admit of uniquely correct resolutions, which
judges must identify by relying on substantive moral insight, whereas
Hart famously held the view that these cases are always legally
indeterminate and must be decided as an exercise of legal discretion.
It seems plausible to me that one or both of these views might be
derived from forms of conceptual reasoning that would be ruled out
by the naturalistic commitments articulated at step (3) in Quine’s
argument, but one would need to say much more to establish that this
is the case. Clarifying places in the literature where others theorists
have relied on conceptual analysis in developing their alternative
views on adjudication would therefore help not only to crystallize the
jurisprudential stakes of the present project but also to highlight its
distinctive contributions.
Part I of Leiter’s book thus develops an important and
distinctive approach to legal epistemology, which, in my view,
invites a larger and more refined research program aimed at
clarifying the nature of justification in adjudication.

II. METHODOLOGY AND LAW’S NATURE

In the second Part of the book, entitled “Ways of Naturalizing

Jurisprudence”, Leiter considers both the methodological and
substantive impact that a naturalistic turn might have on the central
question of analytic jurisprudence: namely, the “what is law”
question. (This question is distinct from the “what does law require”
question – which was addressed more centrally in the last section.)
On one widespread view, which is most commonly associated with
Joseph Raz, the point of this inquiry is to acquire knowledge about
what law is, where the philosophical search for knowledge is
distinguished from the merely sociological search in the following
way: sociologists of law aim to uncover empirical generalizations
about law that may be only contingently true, whereas philosophers
2009] PROSPECTS OF A NATURALIZED JURISPRUDENCE 111

of law aim to identify propositions about law that are both

necessarily true and adequately explain the nature of law. (The term
“nature of law” refers here to those essential properties that a given
set of phenomena must exhibit in order to be law.) Leiter accepts this
basic characterization of the goal of analytic jurisprudence, and one
can see why those attracted to this view, but who have not yet
absorbed Quine’s criticisms of analyticity, might think that
conceptual analysis would be an appropriate method to generate this
knowledge.
It is, in fact, striking just how much analytic jurisprudence
engages in conceptual analysis and intuition pumping to determine
what law is – and how much proceeds without regard for how deeply
these methods have been problematized as credible sources of
knowledge. Leiter deserves rich praise for raising this issue, and for
prompting a more reflective look into the appropriate role that
conceptual analysis should play in this field. These are important
questions of methodology, and a good portion of Part II is, in fact,
dedicated to canvassing three distinct grounds for caution on this
score. The first derives from Quine’s famous criticisms of the
analytic-synthetic distinction, which suggest that we may not even be
able to make sense of a purely analytic domain of concepts that could
give rise to a priori knowledge about the world. The second arises
from a growing body of empirical work that has discovered
parochialism in many of the linguistic intuitions that philosophers
sometimes draw upon and assume to be universal. The third derives
from the less than sterling history of conceptual analysis itself, which
is replete with conceptual claims that were once thought to be
necessarily true but that we have subsequently had to revise or
abandon in light of further experience.
For those interested in developing a purely descriptive
account of law, it would thus seem to follow that the traditional
methods of conceptual analysis should be abandoned. Taking a cue
from Quine, Leiter urges that analytic jurisprudence should instead
become the most general and reflective branch of the sciences that
study what law is. He then specifies this idea in the following way:
we should answer the “what is law” question by asking which
concept of law would make our best ongoing scientific inquiries into
law true and explanatory. Application of this methodology then
allows Leiter to make two major contributions to the “what is law”
debate.
112 NOTRE DAME PHILOSOPHICAL REVIEWS [XXX

First, Leiter develops a response to an important set of recent

challenges to legal positivism, and, in particular, to its stated goal of
developing a purely descriptive and general account of law. These
challenges arise from a group of natural law theorists (principally
Stephen Perry, John Finnis, Ronald Dworkin, Gerald Postema, Nikos
Stravopolous and Liam Murphy) who have each argued, in one way
or another, that one cannot settle upon a satisfying account of the
concept of law without engaging in substantive moral and/or
normative argumentation. Although the details of these arguments
vary, they share a common structure: they begin with the observation
that more than one concept of law is logically consistent with the
relevant empirical data about law (sometimes because there is more
than one way to delimit the “relevant data”), and then argue that we
must therefore engage in substantive moral and/or normative
argumentation to settle on the right concept. As Leiter observes,
however, this conceptual underdetermination parallels the more
general undeterdetermination of theories by the evidence. If the aim
is to produce a purely descriptive account of law, then – Leiter urges
– there is no reason why the basic epistemic norms that constrain
theory construction in the sciences cannot be applied to resolve this
indeterminacy as well. Indeed, one might push the point further on
Leiter’s behalf, by noting that there is no pragmatic justification for
the use of non-epistemic norms (such as moral norms) for the
production of purely descriptive knowledge. Hence, reference to
moral insight is not only unnecessary for this particular purpose but
also unjustified and likely to conflict with that goal.
In my view, this aspect of Leiter’s work is best understood as
articulating a general method for answering worries about the brute
possibility of settling on unique concepts of natural phenomena in
the absence of moral and/or normative argumentation. Leiter’s
argument does not distinguish (nor does it purport to distinguish)
between the moral value of different empirical inquiries, and so there
should still be room to argue for the relative value of different
empirical projects based on moral and/or normative grounds.
Different forms of empirical inquiry might also yield somewhat
different concepts of law, which pick out slightly different natural
phenomena. None of this, however, should make it impossible to
produce a purely descriptive account of those natural phenomena,
and none of this should lead us to regard the truth values of these
descriptions as turning on moral facts.
2009] PROSPECTS OF A NATURALIZED JURISPRUDENCE 113

Second, Leiter enters into the more internecine debates

between inclusive and exclusive legal positivists over whether the
relevant tests for legality can incorporate moral criteria. Leiter
argues, with some plausibility, that proponents on both sides of this
debate have tended to rely on traditional forms of conceptual analysis
and intuition pumping to support their respective views. Leiter
observes that these arguments have nevertheless failed to settle the
incorporability issue. Still, none of this should be surprising if – as
Leiter qua naturalistic philosopher has argued – conceptual analysis
alone is insufficient to produce knowledge about what anything is,
let alone law. As noted above, Leiter has suggested that we can – on
the other hand – provide a straightforward answer to this question if
we ask instead which concept of law would render our best ongoing
scientific inquiries into law true and explanatory. The relevant
empirical research programs are said to be those generated by the
legal realists, and these programs have produced the following claim:
while legal sources (as interpreted using the relevant canons of legal
interpretation) sometimes logically determine unique outcomes to
legal disputes, these sources can also sometimes leave legal
questions indeterminate. In order for this claim to be true and
explanatory, we must presumably posit a concept of law that is
completely source-based; only in terms of such a concept can we
explain the special class of judicial behavior that is dubbed
“determinate” in this claim, and thereby render the claim true. This
concept is, moreover, none other than the exclusive legal positivist
concept of law, which does not allow for the incorporation of moral
criteria. If considerations like these are valid, they give rise to an
important and distinctive set of considerations favoring exclusive
legal positivism over both its inclusive legal positivist and non-
positivist rivals.
From a naturalistic perspective, the central virtue to Leiter’s
method of answering the “what is law” question is that it guarantees
that the resulting concept will pick out something real in the natural
world. There are, however, at least two remaining questions that will
arise for this view, even granting Leiter’s naturalistic commitments.
First, one should remember that a naturalistic criterion for reality is
not itself a guarantee of philosophical significance. There are, after
all, numerous entities in the natural world, and not all of them call
for a special branch of philosophy. When trying to determine which
natural phenomena, and which natural facts, are relevant to the
114 NOTRE DAME PHILOSOPHICAL REVIEWS [XXX

production of illumination in jurisprudence, I am therefore inclined

to join several other philosophers (most notably Jules Coleman and
Joseph Raz) who worry that we may not be able to do this on purely
theoretical grounds. At root, what is at issue here is the right way to
picture the relationship between knowledge about the world and true
philosophical insight. In my view, naturalistically inclined
philosophers owe some further account of this relationship if they
hope to establish the validity of their proffered account of law.
Second, and relatedly, I do not believe that a naturalistically
inclined philosopher can just accept Raz’s view that the goal of
analytic jurisprudence is to produce knowledge about the nature of
law. We certainly talk about the law, and our ordinary law talk
appears to be conceptually bound up with a number of other puzzling
concepts like those of rules, obligations, reasons, authority, and the
like. For a naturalistically inclined philosopher, it should, however,
always be an empirical question whether any of these concepts
(including “law”) refers to something real. As Leiter clearly
recognizes, the naturalistically inclined philosopher must be careful
not to assert anything that presupposes the existence of any non-
natural or scientifically-implausible entities. Still, one might meet
this criterion not only by identifying a real natural phenomenon to
call “law” but also by identifying places where our law talk fails to
refer and providing a purely descriptive account of what we are
doing when we engage in this talk. There are, moreover, times when
philosophical illumination would appear to require such a tack, and
so this tack must be considered more carefully within a larger project
aimed at naturalizing jurisprudence.
In my view, Part II thus offers a first, but not necessarily the
last, word on how naturalistic developments might shed light on
various puzzles associated with the “what is law” question. There is,
moreover, a way to find broader importance in these reflections.
They should prompt a deeper and more reflective look at the
relationship between three important items: namely, (1) the right
criteria to guarantee that our concepts refer to something real in the
natural world; (2) the appropriate philosophical goal, or point, of
asking the “what is law” question; and (3) the remaining role, if any,
that conceptual analysis might play in helping to attain this goal from
within a purely naturalistic framework.
2009] PROSPECTS OF A NATURALIZED JURISPRUDENCE 115

III. CONTEMPORARY META-ETHICS AND LEGAL OBJECTIVITY

In Part III, Leiter enters into substantive debates in meta-

ethics, and discusses the bearing of naturalism on the objectivity of
moral and legal judgment. Because my focus here is on the relevance
of naturalism to jurisprudence, rather than on the validity of any
particular meta-ethical view, my discussion will be relatively short.
It is worth remembering that Hart himself consistently
recommended trying to account for law without presupposing any
controversial meta-ethical views. This recommendation may have
been sound when Hart was writing, given the relatively undeveloped
state of meta-ethics at the time and the narrow problems he was
addressing. In recent decades, however, debates in meta-ethics have
grown increasingly sophisticated, and there are now important views
within jurisprudence that depend critically on how these debates are
resolved. The most important such view, for present purposes, is one
that directly conflicts with Leiter’s naturalized account of
adjudication. This is Dworkin’s view that all legal questions admit of
uniquely correct answers, which are to be determined by employing
substantive moral insight. This view clearly presupposes that moral
judgments themselves admit of uniquely correct answers, and, hence,
questions of meta-ethics cannot fairly be sidestepped when assessing
this view. What is a naturalist to say about this issue?
Together, the essays in Part III can be read as offering a four
step argument that seeks to answer this question. First, Leiter notes
that some contemporary “naturalistic” moral realists have sought to
understand moral properties as a distinctive class of natural
properties, and have articulated the criteria needed to test for the
reality of such properties. (These criteria are a refined form of the
metaphysical test for reality mentioned at the beginning of this
essay.) If such properties were to exist, one might vindicate the
objectivity of moral judgment from within a purely naturalistic
framework, but the existence of such properties is in part an
empirical question. Second, Leiter canvasses the dominant accounts
of such properties in the literature, which are found in the work of
Peter Railton and Nicholas Sturgeon, and argues that these accounts
are empirically implausible. Third, Leiter discusses several
alternative, “non-natural” accounts of moral objectivity, owing
primarily to Dworkin and McDowell, and criticizes their cogency.
Finally, Leiter concludes that objective legal judgment cannot
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depend on moral judgment, and begins to develop a naturalistic

account of legal objectivity that meets this constraint.
In my view, one of the most helpful aspects of Part III is that
it thereby clarifies the logical relations between various issues in
meta-ethics and the possibility of objective legal judgment. Leiter’s
discussion of naturalistic moral realism, in what I have called step
one of his argument, is solid and helpful: it lays out the right tests
that one must meet to justify a naturalistic form of moral realism. His
arguments at step three, against non-naturalistic accounts of moral
objectivity, depend, on the other hand, on the cogency of his
underlying naturalistic commitments. These are large issues, which
go beyond the scope of this essay, and – for reasons already
discussed – I have therefore chosen to assume arguendo that
naturalism in some form is true. For those interested in
understanding the relevance of naturalism for jurisprudence, there
are nevertheless two recent developments that are worth mentioning,
because they bear on other parts of Leiter’s argument, and may affect
the larger conclusions that should be drawn.
First, there is the recent development of so-called “quasi-
realist” accounts of moral language, by Allan Gibbard and Simon
Blackburn most prominently. These accounts are fully consistent
with Leiter’s naturalistic commitments because they account for our
moral language in terms of psychological attitudes that we express,
but without positing any natural moral properties that purportedly
explain aspects of our experience. These philosophers have
nevertheless gone to great lengths to account for various other
objectivist features of our moral language, including the following
facts: (1) we can morally disagree in ways that are not attributable to
differing beliefs about the world, and we consider these
disagreements to require revision of one or another of our competing
beliefs as a matter of logic; (2) we sometimes embed ethical
judgments in conditionals and other more complex syntactic
structures, and reason with them using the ordinary rules of logic;
and (3) we take our ethical views to be responsive to at least some
reasons that are poorly understood as reasons to change our
descriptive beliefs about the world. Modern quasi-realists have also
accepted a deflationary account of truth, and now believe that there is
no further property of truth that our descriptive judgments may have
that our moral judgments must lack. If this is so, then quasi-realism
may offer an account of moral objectivity that is purely naturalistic
2009] PROSPECTS OF A NATURALIZED JURISPRUDENCE 117

but also sufficiently robust to allow for objective legal judgments to

depend upon moral judgments.
Second, and now returning to naturalistic forms of moral
realism proper, Leiter rightly observes that one must assess the
cogency of any such views on a case by case basis. In particular, one
must determine whether a given account has identified a natural
property that is sufficiently related to something of moral value to
count as a moral property, and whether that natural property is
needed to explain various aspects of our experience in the right way.
Railton and Sturgeon have sought to do this by explaining things like
moral progress in terms of natural properties that arguably have the
appropriate normative significance. Leiter is nevertheless concerned
– and I think rightfully so – that these explanations may not be
sufficiently compelling on their own. This is an issue that is close to
my heart, because – in The Deep Structure of Law and Morality – I
have developed a purely naturalistic account of our sense of
obligation, which, I argue, is needed to explain a number of
distinctive features of our social lives. Although I cannot repeat those
arguments here, and although the arguments are themselves
speculative, I can note that the explanation makes reference to a
natural property that will have appropriate normative significance if
contractualism is true. The account also explains a much more robust
set of phenomena than is found in Railton’s and Sturgeon’s work,
and does so in a coherent fashion. The account thus represents the
type of work that might alter the second step of Leiter’s argument in
Part III, along with the appropriate conclusions to be drawn.
Regardless of the merits of this particular view, naturalistic
forms of moral realism are still in their relative infancy: we are still
developing the type of theoretical work needed to know what facts
must obtain for naturalistic moral realism to be true, and we are still
engaging in many of the empirical inquiries needed to answer that
question. It is thus too early, in my view, to dismiss naturalistic
forms of moral realism from broader debates over how to naturalize
jurisprudence.
In sum, then, Part III helps clarify some of the important
relationships between current debates in meta-ethics and certain core
questions in the philosophy of law. Given the rapidly developing
state of the debates in meta-ethics, I am, however, less inclined to
think that we can come to firm conclusions about the relationship
between legal and moral objectivity. Part III is better read as
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developing one promising view on this topic, which should invite a

more robust discussion of the full set of alternatives. Part III does,
however, make one thing very clear: we can no longer heed Hart’s
advice to avoid questions in meta-ethics when developing serious
views in jurisprudence.