Nietzsche is one of the most important and controversial thinkers in the history of philosophy. H... more Nietzsche is one of the most important and controversial thinkers in the history of philosophy. His writings on moral philosophy are amongst his 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.
Abstract: This is a revised version of a paper presented at the NEH conference on “Civility and A... more Abstract: This is a revised version of a paper presented at the NEH conference on “Civility and American Democracy” at Washington State University in early March, 2011. The paper tries to identify the circumstances in which civility in discourse is both necessary and obligatory. I assume that, pre-theoretically, everyone can agree that “civility” is paramount for discourse in the classroom setting. Teachers should be civil to students, and students to their teachers.
Abstract: This is a draft of the final chapter of my forthcoming book WHY TOLERATE RELIGION? Earl... more Abstract: This is a draft of the final chapter of my forthcoming book WHY TOLERATE RELIGION? Earlier versions of material in the first part of the book appear on SSRN as" Why Tolerate Religion?"(Constitutional Commentary, 2008) and" Foundations of Religious Liberty: Toleration or Respect?"(San Diego Law Review, 2010)(the account of religion has changed somewhat since these two papers).
Abstract: This short paper will be presented at a panel on" Legal Positivism: For and Against?" a... more Abstract: This short paper will be presented at a panel on" Legal Positivism: For and Against?" at the annual meeting of the Association of American Law Schools in New Orleans, January 9, 2010. It attempts to identify the theoretical considerations that explain why legal positivism is the dominant view among legal philosophers.
In teaching jurisprudence, I typically distinguish between two different families of theories of ... more In teaching jurisprudence, I typically distinguish between two different families of theories of adjudication—theories of how judges do or should decide cases.
Scott Shapiro agrees," to some extent,"'with my verdict that the" winner" of the so-called" Hart-... more Scott Shapiro agrees," to some extent,"'with my verdict that the" winner" of the so-called" Hart-Dworkin debate" about the nature of law was HLA Hart's legal positivism. 2 Where he disagrees is that he thinks Ronald Dworkin posed a new kind of objection to positivism in Law's Empire3 to which positivists have not adequately responded.
Abstract: According to one recent scholar," Most commentators on Nietzsche would agree that he is... more Abstract: According to one recent scholar," Most commentators on Nietzsche would agree that he is in a broad sense a naturalist in his mature philosophy"(Janaway 2007: 34). This may come as a surprise to those who think of Heidegger, Kaufmann, DeMan, Kofman, Deleuze, and Nehamas, among others, as" commentators" on Nietzsche.
Most Western constitutions, including the American, single out religious beliefs and practices fo... more Most Western constitutions, including the American, single out religious beliefs and practices for special kinds of legal solicitude and protection. In this essay, I want to ask a question about the moral foundations of such a legal practice. Should we think of what I will refer to generically as" the law of religious liberty" as grounded in the moral attitude of respect for religion or on the moral attitude of tolerance of religion?
Abstract Legal philosophers have been preoccupied with specifying the differences between two sys... more Abstract 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.
Ronald Dworkin describes an approach to how courts should decide cases that he associates with Ju... more Ronald Dworkin describes an approach to how courts should decide cases that he associates with Judge Richard Posner and Professor Cass Sunstein as" a Chicago School of anti-theoretical, no-nonsense jurisprudence."'Since Professor Dworkin takes his own view of adjudication to be diametrically opposed to that of the Chicago School, it might seem fair, then, to describe Dworkin's own theory as an instance of protheoretical, nonsense jurisprudence.
Abstract: General jurisprudence-that branch of legal philosophy concerned with the nature of law ... more Abstract: 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.
Abstract: This essays reviews and evaluates the arguments in Jeremy Waldron's book" The Harm in H... more Abstract: This essays reviews and evaluates the arguments in Jeremy Waldron's book" The Harm in Hate Speech"(Harvard University Press, 2012). We may summarize the argument for Waldron's titular view as follows. First, the “harm in hate speech” results primarily from speech that is written rather than spoken.
" Pragmatism," says Richard Rorty," puts natural science on all fours with politics and art. It i... more " Pragmatism," says Richard Rorty," puts natural science on all fours with politics and art. It is one more source of suggestions about what to do with our lives."'Some self-professed pragmatists, like the American philosopher WVO Quine, would obviously deny this. 2 I shall not engage in a proprietary dispute here about the label" prag-matism," 3 but I do want to present a kind of pragmatic challenge to the idea that we have reason to think" science [is] on all fours with politics and art."
My thanks to Kenneth Himma for organizing this symposium on my book Naturalizing Jurisprudence: E... more My thanks to Kenneth Himma for organizing this symposium on my book Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy 1 and to the editors of Law & Philosophy for agreeing to host it. I am especially grateful to the contributors–Julie Dickson, Michael Steven Green, and Mark Greenberg–for their thoughtful and detailed engagement with my work. I learned from their essays, even when I disagreed, and I also found much that I agree with.
Abstract: I agree with Tadusz Szubka's thesis that there is a" partial" continuity between Rorty'... more Abstract: I agree with Tadusz Szubka's thesis that there is a" partial" continuity between Rorty's work in the 1960s (esp. The Linguistic Turn) and his later pragmatic philosophy in which he repudiated" analytic" philosophy. I suggest additional support for the thesis of continuity comes from an examination of Rorty's undergraduate and graduate education.
" Legal positivism," a theory about the nature of law developed over the last two hundred years b... more " Legal positivism," a theory about the nature of law developed over the last two hundred years by, among others, Jeremy Bentham, Hans Kelsen, HLA Hart, and Joseph Raz, is often caricatured by its jurisprudential opponents, as well as by lawyers and legal scholars not immediately interested in jurisprudential inquiry." Positivist" too often functions now as an" epithet" in legal discourse, equated (wrongly) with" formalism," the view that judges must apply the law" as written," regardless of the consequences.
Abstract: Any reader of Foucault's corpus recognizes fairly quickly that it is animated by an eth... more Abstract: Any reader of Foucault's corpus recognizes fairly quickly that it is animated by an ethical impulse, namely, to liberate individuals from a kind of oppression from which they suffer. This oppression, however, does not involve the familiar tyranny of the Leviathan or the totalitarian state; it exploits instead values that the victim of oppression herself accepts, and which then leads the oppressed agent to be complicit in her subjugation. It also depends, crucially, on a skeptical thesis about the epistemology of the social sciences.
Abstract: Nietzsche holds that people lack freedom of the will in any sense that would be suffici... more Abstract: Nietzsche holds that people lack freedom of the will in any sense that would be sufficient for ascriptions of moral responsibility; that the conscious experience we have of willing is actually epiphenomenal with respect to the actions that follow that experience; and that our actions largely arise through non-conscious processes (psychological and physiological) of which we are only dimly aware, and over which we exercise little or no conscious control.
It is well-known that Nietzsche has provocative views about the nature of the will and free will.... more It is well-known that Nietzsche has provocative views about the nature of the will and free will. ¹ It is less often appreciated that his views on these topics have considerable merit.
Nietzsche is one of the most important and controversial thinkers in the history of philosophy. H... more Nietzsche is one of the most important and controversial thinkers in the history of philosophy. His writings on moral philosophy are amongst his 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.
Abstract: This is a revised version of a paper presented at the NEH conference on “Civility and A... more Abstract: This is a revised version of a paper presented at the NEH conference on “Civility and American Democracy” at Washington State University in early March, 2011. The paper tries to identify the circumstances in which civility in discourse is both necessary and obligatory. I assume that, pre-theoretically, everyone can agree that “civility” is paramount for discourse in the classroom setting. Teachers should be civil to students, and students to their teachers.
Abstract: This is a draft of the final chapter of my forthcoming book WHY TOLERATE RELIGION? Earl... more Abstract: This is a draft of the final chapter of my forthcoming book WHY TOLERATE RELIGION? Earlier versions of material in the first part of the book appear on SSRN as" Why Tolerate Religion?"(Constitutional Commentary, 2008) and" Foundations of Religious Liberty: Toleration or Respect?"(San Diego Law Review, 2010)(the account of religion has changed somewhat since these two papers).
Abstract: This short paper will be presented at a panel on" Legal Positivism: For and Against?" a... more Abstract: This short paper will be presented at a panel on" Legal Positivism: For and Against?" at the annual meeting of the Association of American Law Schools in New Orleans, January 9, 2010. It attempts to identify the theoretical considerations that explain why legal positivism is the dominant view among legal philosophers.
In teaching jurisprudence, I typically distinguish between two different families of theories of ... more In teaching jurisprudence, I typically distinguish between two different families of theories of adjudication—theories of how judges do or should decide cases.
Scott Shapiro agrees," to some extent,"'with my verdict that the" winner" of the so-called" Hart-... more Scott Shapiro agrees," to some extent,"'with my verdict that the" winner" of the so-called" Hart-Dworkin debate" about the nature of law was HLA Hart's legal positivism. 2 Where he disagrees is that he thinks Ronald Dworkin posed a new kind of objection to positivism in Law's Empire3 to which positivists have not adequately responded.
Abstract: According to one recent scholar," Most commentators on Nietzsche would agree that he is... more Abstract: According to one recent scholar," Most commentators on Nietzsche would agree that he is in a broad sense a naturalist in his mature philosophy"(Janaway 2007: 34). This may come as a surprise to those who think of Heidegger, Kaufmann, DeMan, Kofman, Deleuze, and Nehamas, among others, as" commentators" on Nietzsche.
Most Western constitutions, including the American, single out religious beliefs and practices fo... more Most Western constitutions, including the American, single out religious beliefs and practices for special kinds of legal solicitude and protection. In this essay, I want to ask a question about the moral foundations of such a legal practice. Should we think of what I will refer to generically as" the law of religious liberty" as grounded in the moral attitude of respect for religion or on the moral attitude of tolerance of religion?
Abstract Legal philosophers have been preoccupied with specifying the differences between two sys... more Abstract 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.
Ronald Dworkin describes an approach to how courts should decide cases that he associates with Ju... more Ronald Dworkin describes an approach to how courts should decide cases that he associates with Judge Richard Posner and Professor Cass Sunstein as" a Chicago School of anti-theoretical, no-nonsense jurisprudence."'Since Professor Dworkin takes his own view of adjudication to be diametrically opposed to that of the Chicago School, it might seem fair, then, to describe Dworkin's own theory as an instance of protheoretical, nonsense jurisprudence.
Abstract: General jurisprudence-that branch of legal philosophy concerned with the nature of law ... more Abstract: 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.
Abstract: This essays reviews and evaluates the arguments in Jeremy Waldron's book" The Harm in H... more Abstract: This essays reviews and evaluates the arguments in Jeremy Waldron's book" The Harm in Hate Speech"(Harvard University Press, 2012). We may summarize the argument for Waldron's titular view as follows. First, the “harm in hate speech” results primarily from speech that is written rather than spoken.
" Pragmatism," says Richard Rorty," puts natural science on all fours with politics and art. It i... more " Pragmatism," says Richard Rorty," puts natural science on all fours with politics and art. It is one more source of suggestions about what to do with our lives."'Some self-professed pragmatists, like the American philosopher WVO Quine, would obviously deny this. 2 I shall not engage in a proprietary dispute here about the label" prag-matism," 3 but I do want to present a kind of pragmatic challenge to the idea that we have reason to think" science [is] on all fours with politics and art."
My thanks to Kenneth Himma for organizing this symposium on my book Naturalizing Jurisprudence: E... more My thanks to Kenneth Himma for organizing this symposium on my book Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy 1 and to the editors of Law & Philosophy for agreeing to host it. I am especially grateful to the contributors–Julie Dickson, Michael Steven Green, and Mark Greenberg–for their thoughtful and detailed engagement with my work. I learned from their essays, even when I disagreed, and I also found much that I agree with.
Abstract: I agree with Tadusz Szubka's thesis that there is a" partial" continuity between Rorty'... more Abstract: I agree with Tadusz Szubka's thesis that there is a" partial" continuity between Rorty's work in the 1960s (esp. The Linguistic Turn) and his later pragmatic philosophy in which he repudiated" analytic" philosophy. I suggest additional support for the thesis of continuity comes from an examination of Rorty's undergraduate and graduate education.
" Legal positivism," a theory about the nature of law developed over the last two hundred years b... more " Legal positivism," a theory about the nature of law developed over the last two hundred years by, among others, Jeremy Bentham, Hans Kelsen, HLA Hart, and Joseph Raz, is often caricatured by its jurisprudential opponents, as well as by lawyers and legal scholars not immediately interested in jurisprudential inquiry." Positivist" too often functions now as an" epithet" in legal discourse, equated (wrongly) with" formalism," the view that judges must apply the law" as written," regardless of the consequences.
Abstract: Any reader of Foucault's corpus recognizes fairly quickly that it is animated by an eth... more Abstract: Any reader of Foucault's corpus recognizes fairly quickly that it is animated by an ethical impulse, namely, to liberate individuals from a kind of oppression from which they suffer. This oppression, however, does not involve the familiar tyranny of the Leviathan or the totalitarian state; it exploits instead values that the victim of oppression herself accepts, and which then leads the oppressed agent to be complicit in her subjugation. It also depends, crucially, on a skeptical thesis about the epistemology of the social sciences.
Abstract: Nietzsche holds that people lack freedom of the will in any sense that would be suffici... more Abstract: Nietzsche holds that people lack freedom of the will in any sense that would be sufficient for ascriptions of moral responsibility; that the conscious experience we have of willing is actually epiphenomenal with respect to the actions that follow that experience; and that our actions largely arise through non-conscious processes (psychological and physiological) of which we are only dimly aware, and over which we exercise little or no conscious control.
It is well-known that Nietzsche has provocative views about the nature of the will and free will.... more It is well-known that Nietzsche has provocative views about the nature of the will and free will. ¹ It is less often appreciated that his views on these topics have considerable merit.
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