Heidegger and the Theory of Adjudication

Yale Law Journal

Volumn 106, Issue 2, 1996, Pages 253-282

  Leiter, Brian ^a  

^a UNIVERSITY OF TEXAS AT AUSTIN   (United States)

Author keywords

[No Author keywords available]

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EID: 0038977333     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797211     Document Type: Article

References (159)

1. Similar developments have occurred in other areas of philosophy as well. See, e.g., JOHN MCDOWELL, MIND AND WORLD (1994) (drawing on Hegel and Gadamer in discussing basic issues in Anglo-American metaphysics and epistemology); Brian Leiter, Nietzsche and the Morality Critics, 107 ETHICS (forthcoming Jan. 1997) (discussing use of Nietzsche in recent Anglo-American moral philosophy).
2. Similar developments have occurred in other areas of philosophy as well. See, e.g., JOHN MCDOWELL, MIND AND WORLD (1994) (drawing on Hegel and Gadamer in discussing basic issues in Anglo-American metaphysics and epistemology); Brian Leiter, Nietzsche and the Morality Critics, 107 ETHICS (forthcoming Jan. 1997) (discussing use of Nietzsche in recent Anglo-American moral philosophy).
3. See, e.g., Jerry Frug, Argument as Character, 40 STAN. L. REV. 869 (1988); Pierre Schlag, Missing Pieces: A Cognitive Approach to Law, 67 TEX. L. REV. 1195, 1205-07 (1989). Both of these essays misinterpret Nietzsche's thought. On Frug's misunderstanding of Nietzsche, see Brian Leiter, Intellectual Voyeurism in Legal Scholarship, 4 YALE J.L. & HUMAN. 79, 81-90 (1992) [hereinafter Leiter, Intellectual Voyeurism]; contrast Schlag's misguided comments on Nietzsche with Brian Leiter, The Paradox of Fatalism and Self-Creation in Nietzsche, in WILLING AND NOTHINGNESS: SCHOPENHAUER AS NIETZSCHE'S EDUCATOR (C. Janaway ed., forthcoming 1997). For other discussions of the problems with the way lawyers have used philosophy, see Charles W. Collier, The Use and Abuse of Humanistic Theory in Law: Reexamining the Assumptions of Interdisciplinary Legal Scholarship, 41 DUKE L.J. 191 (1991); Leiter, Intellectual Voyeurism, supra, at 91-101; Alan R. Madry, Analytic Deconstructionism? The Intellectual Voyeurism of Anthony D'Amato, 63 FORDHAM L. REV. 1033 (1995); Martha C. Nussbaum, The Use and Abuse of Philosophy in Legal Education, 45 STAN. L. REV. 1627 (1993).
4. See, e.g., Jerry Frug, Argument as Character, 40 STAN. L. REV. 869 (1988); Pierre Schlag, Missing Pieces: A Cognitive Approach to Law, 67 TEX. L. REV. 1195, 1205-07 (1989). Both of these essays misinterpret Nietzsche's thought. On Frug's misunderstanding of Nietzsche, see Brian Leiter, Intellectual Voyeurism in Legal Scholarship, 4 YALE J.L. & HUMAN. 79, 81-90 (1992) [hereinafter Leiter, Intellectual Voyeurism]; contrast Schlag's misguided comments on Nietzsche with Brian Leiter, The Paradox of Fatalism and Self-Creation in Nietzsche, in WILLING AND NOTHINGNESS: SCHOPENHAUER AS NIETZSCHE'S EDUCATOR (C. Janaway ed., forthcoming 1997). For other discussions of the problems with the way lawyers have used philosophy, see Charles W. Collier, The Use and Abuse of Humanistic Theory in Law: Reexamining the Assumptions of Interdisciplinary Legal Scholarship, 41 DUKE L.J. 191 (1991); Leiter, Intellectual Voyeurism, supra, at 91-101; Alan R. Madry, Analytic Deconstructionism? The Intellectual Voyeurism of Anthony D'Amato, 63 FORDHAM L. REV. 1033 (1995); Martha C. Nussbaum, The Use and Abuse of Philosophy in Legal Education, 45 STAN. L. REV. 1627 (1993).
5. See, e.g., Jerry Frug, Argument as Character, 40 STAN. L. REV. 869 (1988); Pierre Schlag, Missing Pieces: A Cognitive Approach to Law, 67 TEX. L. REV. 1195, 1205-07 (1989). Both of these essays misinterpret Nietzsche's thought. On Frug's misunderstanding of Nietzsche, see Brian Leiter, Intellectual Voyeurism in Legal Scholarship, 4 YALE J.L. & HUMAN. 79, 81-90 (1992) [hereinafter Leiter, Intellectual Voyeurism]; contrast Schlag's misguided comments on Nietzsche with Brian Leiter, The Paradox of Fatalism and Self-Creation in Nietzsche, in WILLING AND NOTHINGNESS: SCHOPENHAUER AS NIETZSCHE'S EDUCATOR (C. Janaway ed., forthcoming 1997). For other discussions of the problems with the way lawyers have used philosophy, see Charles W. Collier, The Use and Abuse of Humanistic Theory in Law: Reexamining the Assumptions of Interdisciplinary Legal Scholarship, 41 DUKE L.J. 191 (1991); Leiter, Intellectual Voyeurism, supra, at 91-101; Alan R. Madry, Analytic Deconstructionism? The Intellectual Voyeurism of Anthony D'Amato, 63 FORDHAM L. REV. 1033 (1995); Martha C. Nussbaum, The Use and Abuse of Philosophy in Legal Education, 45 STAN. L. REV. 1627 (1993).
6. See, e.g., Jerry Frug, Argument as Character, 40 STAN. L. REV. 869 (1988); Pierre Schlag, Missing Pieces: A Cognitive Approach to Law, 67 TEX. L. REV. 1195, 1205-07 (1989). Both of these essays misinterpret Nietzsche's thought. On Frug's misunderstanding of Nietzsche, see Brian Leiter, Intellectual Voyeurism in Legal Scholarship, 4 YALE J.L. & HUMAN. 79, 81-90 (1992) [hereinafter Leiter, Intellectual Voyeurism]; contrast Schlag's misguided comments on Nietzsche with Brian Leiter, The Paradox of Fatalism and Self-Creation in Nietzsche, in WILLING AND NOTHINGNESS: SCHOPENHAUER AS NIETZSCHE'S EDUCATOR (C. Janaway ed., forthcoming 1997). For other discussions of the problems with the way lawyers have used philosophy, see Charles W. Collier, The Use and Abuse of Humanistic Theory in Law: Reexamining the Assumptions of Interdisciplinary Legal Scholarship, 41 DUKE L.J. 191 (1991); Leiter, Intellectual Voyeurism, supra, at 91-101; Alan R. Madry, Analytic Deconstructionism? The Intellectual Voyeurism of Anthony D'Amato, 63 FORDHAM L. REV. 1033 (1995); Martha C. Nussbaum, The Use and Abuse of Philosophy in Legal Education, 45 STAN. L. REV. 1627 (1993).
7. See, e.g., Jerry Frug, Argument as Character, 40 STAN. L. REV. 869 (1988); Pierre Schlag, Missing Pieces: A Cognitive Approach to Law, 67 TEX. L. REV. 1195, 1205-07 (1989). Both of these essays misinterpret Nietzsche's thought. On Frug's misunderstanding of Nietzsche, see Brian Leiter, Intellectual Voyeurism in Legal Scholarship, 4 YALE J.L. & HUMAN. 79, 81-90 (1992) [hereinafter Leiter, Intellectual Voyeurism]; contrast Schlag's misguided comments on Nietzsche with Brian Leiter, The Paradox of Fatalism and Self-Creation in Nietzsche, in WILLING AND NOTHINGNESS: SCHOPENHAUER AS NIETZSCHE'S EDUCATOR (C. Janaway ed., forthcoming 1997). For other discussions of the problems with the way lawyers have used philosophy, see Charles W. Collier, The Use and Abuse of Humanistic Theory in Law: Reexamining the Assumptions of Interdisciplinary Legal Scholarship, 41 DUKE L.J. 191 (1991); Leiter, Intellectual Voyeurism, supra, at 91-101; Alan R. Madry, Analytic Deconstructionism? The Intellectual Voyeurism of Anthony D'Amato, 63 FORDHAM L. REV. 1033 (1995); Martha C. Nussbaum, The Use and Abuse of Philosophy in Legal Education, 45 STAN. L. REV. 1627 (1993).
8. See, e.g., Jerry Frug, Argument as Character, 40 STAN. L. REV. 869 (1988); Pierre Schlag, Missing Pieces: A Cognitive Approach to Law, 67 TEX. L. REV. 1195, 1205-07 (1989). Both of these essays misinterpret Nietzsche's thought. On Frug's misunderstanding of Nietzsche, see Brian Leiter, Intellectual Voyeurism in Legal Scholarship, 4 YALE J.L. & HUMAN. 79, 81-90 (1992) [hereinafter Leiter, Intellectual Voyeurism]; contrast Schlag's misguided comments on Nietzsche with Brian Leiter, The Paradox of Fatalism and Self-Creation in Nietzsche, in WILLING AND NOTHINGNESS: SCHOPENHAUER AS NIETZSCHE'S EDUCATOR (C. Janaway ed., forthcoming 1997). For other discussions of the problems with the way lawyers have used philosophy, see Charles W. Collier, The Use and Abuse of Humanistic Theory in Law: Reexamining the Assumptions of Interdisciplinary Legal Scholarship, 41 DUKE L.J. 191 (1991); Leiter, Intellectual Voyeurism, supra, at 91-101; Alan R. Madry, Analytic Deconstructionism? The Intellectual Voyeurism of Anthony D'Amato, 63 FORDHAM L. REV. 1033 (1995); Martha C. Nussbaum, The Use and Abuse of Philosophy in Legal Education, 45 STAN. L. REV. 1627 (1993).
9. See, e.g., Jerry Frug, Argument as Character, 40 STAN. L. REV. 869 (1988); Pierre Schlag, Missing Pieces: A Cognitive Approach to Law, 67 TEX. L. REV. 1195, 1205-07 (1989). Both of these essays misinterpret Nietzsche's thought. On Frug's misunderstanding of Nietzsche, see Brian Leiter, Intellectual Voyeurism in Legal Scholarship, 4 YALE J.L. & HUMAN. 79, 81-90 (1992) [hereinafter Leiter, Intellectual Voyeurism]; contrast Schlag's misguided comments on Nietzsche with Brian Leiter, The Paradox of Fatalism and Self-Creation in Nietzsche, in WILLING AND NOTHINGNESS: SCHOPENHAUER AS NIETZSCHE'S EDUCATOR (C. Janaway ed., forthcoming 1997). For other discussions of the problems with the way lawyers have used philosophy, see Charles W. Collier, The Use and Abuse of Humanistic Theory in Law: Reexamining the Assumptions of Interdisciplinary Legal Scholarship, 41 DUKE L.J. 191 (1991); Leiter, Intellectual Voyeurism, supra, at 91-101; Alan R. Madry, Analytic Deconstructionism? The Intellectual Voyeurism of Anthony D'Amato, 63 FORDHAM L. REV. 1033 (1995); Martha C. Nussbaum, The Use and Abuse of Philosophy in Legal Education, 45 STAN. L. REV. 1627 (1993).
10. See, e.g., Jerry Frug, Argument as Character, 40 STAN. L. REV. 869 (1988); Pierre Schlag, Missing Pieces: A Cognitive Approach to Law, 67 TEX. L. REV. 1195, 1205-07 (1989). Both of these essays misinterpret Nietzsche's thought. On Frug's misunderstanding of Nietzsche, see Brian Leiter, Intellectual Voyeurism in Legal Scholarship, 4 YALE J.L. & HUMAN. 79, 81-90 (1992) [hereinafter Leiter, Intellectual Voyeurism]; contrast Schlag's misguided comments on Nietzsche with Brian Leiter, The Paradox of Fatalism and Self-Creation in Nietzsche, in WILLING AND NOTHINGNESS: SCHOPENHAUER AS NIETZSCHE'S EDUCATOR (C. Janaway ed., forthcoming 1997). For other discussions of the problems with the way lawyers have used philosophy, see Charles W. Collier, The Use and Abuse of Humanistic Theory in Law: Reexamining the Assumptions of Interdisciplinary Legal Scholarship, 41 DUKE L.J. 191 (1991); Leiter, Intellectual Voyeurism, supra, at 91-101; Alan R. Madry, Analytic Deconstructionism? The Intellectual Voyeurism of Anthony D'Amato, 63 FORDHAM L. REV. 1033 (1995); Martha C. Nussbaum, The Use and Abuse of Philosophy in Legal Education, 45 STAN. L. REV. 1627 (1993).
11. See, e.g., J. M. Balkin, Understanding Legal Understanding: The Legal Subject and the Problem of Legal Coherence, 103 YALE L.J. 105 (1993). Balkin writes: Since H.L.A. Hart, jurisprudence has been grounded on the so-called "internal point of view" - the perspective of a participant in the legal system who regards its laws as norms for her behavior. In contrast, I believe that we must ground jurisprudence in a critical perspective, one that employs ideological critique to reflect on our internal experience of law. . . . A critical perspective takes seriously the contributions of subjectivity to the nature of law; it treats the sociology of knowledge as a full partner in the jurisprudential enterprise. Instead of taking for granted the primacy of the internal viewpoint of participants in the legal system, a critical perspective asks how this internal experience comes about. Id. at 110-11 (footnote omitted); cf. id. at 128 (criticizing Joseph Raz's use of "internal point of view"). In this passage - and, indeed, in the rest of the article - Balkin seems not to appreciate the philosophical reasons for taking "the internal point of view," which grow out of the hermeneutic tradition in the philosophy of social science. According to this tradition, the only way to understand human practices is by understanding their meaning to participants in those practices. Hart wants to understand the human institution known as "law," and because he accepts the hermeneutic point, he thinks he must understand "law" from an "internal point of view." Hart is not "taking for granted the primacy of the internal viewpoint"; he takes the internal viewpoint as primary for quite substantial reasons arising from the philosophy of social science. For a rich discussion of these issues, see Stephen R. Perry, Interpretation and Methodology in Legal Theory, in LAW AND INTERPRETATION: ESSAYS IN LEGAL PHILOSOPHY 97 (Andrei Marmor ed., 1995). It may be interesting to ask also about the factors that caused the practice to have the "meaning" it does to its participants - the question Balkin calls on us to answer - but this question is simply a non sequitor on Hart's project: To understand the meaning of a human practice is one thing, to understand its causes another. What is missing in Balkin's analysis is an argument either that: (a) we ought simply to change the subject; or (b) the questions of jurisprudence really collapse into questions in the "sociology of knowledge." I, myself, am not unsympathetic to such arguments, and try to say more about this in a forthcoming work on American legal realism. See BRIAN LEITER, AMERICAN LEGAL REALISM AND NATURALIZED JURISPRUDENCE (forthcoming); see also discussion infra Part IV. Balkin does argue that the "internal" perspectives of participants in the practice may vary. See Balkin, supra, at 128. But he does not actually show that they do vary with respect to those aspects of "law" that Hart thinks need accounting for in a suitable jurisprudential theory: most importantly, the "normative" aspect of law, the sense in which a norm's being a "legal" norm affects practical reasoning. The point is a relatively simple one: If I say, "Don't go faster than 65 m.p.h. on the highway" that may give you reasons for acting (depending, for instance, on whether you think I am a good driver, knowledgeable about tha roads, sensitive to your schedule, etc.). But when the Texas legislature issues the same prescription - "Don't go faster than 65 m.p.h. on the highway" - that adds certain reasons for action that were not present when I articulated the same norm. The jurisprudential question concerns what this "normativity" actually consists in; whether, for instance, this is the normativity of mere prudence, or whether the normativity of law is simply redundant on the normativity of morality. Again, for a useful discussion, see Perry, supra. Balkin's article, then, is a case of some interesting ideas, derived (loosely speaking) from the Continental tradition in philosophy, which fail to make contact with the Anglo-American tradition in legal philosophy because of a fundamental misunderstanding of that tradition.
12. See, e.g., J. M. Balkin, Understanding Legal Understanding: The Legal Subject and the Problem of Legal Coherence, 103 YALE L.J. 105 (1993). Balkin writes: Since H.L.A. Hart, jurisprudence has been grounded on the so-called "internal point of view" - the perspective of a participant in the legal system who regards its laws as norms for her behavior. In contrast, I believe that we must ground jurisprudence in a critical perspective, one that employs ideological critique to reflect on our internal experience of law. . . . A critical perspective takes seriously the contributions of subjectivity to the nature of law; it treats the sociology of knowledge as a full partner in the jurisprudential enterprise. Instead of taking for granted the primacy of the internal viewpoint of participants in the legal system, a critical perspective asks how this internal experience comes about. Id. at 110-11 (footnote omitted); cf. id. at 128 (criticizing Joseph Raz's use of "internal point of view"). In this passage - and, indeed, in the rest of the article - Balkin seems not to appreciate the philosophical reasons for taking "the internal point of view," which grow out of the hermeneutic tradition in the philosophy of social science. According to this tradition, the only way to understand human practices is by understanding their meaning to participants in those practices. Hart wants to understand the human institution known as "law," and because he accepts the hermeneutic point, he thinks he must understand "law" from an "internal point of view." Hart is not "taking for granted the primacy of the internal viewpoint"; he takes the internal viewpoint as primary for quite substantial reasons arising from the philosophy of social science. For a rich discussion of these issues, see Stephen R. Perry, Interpretation and Methodology in Legal Theory, in LAW AND INTERPRETATION: ESSAYS IN LEGAL PHILOSOPHY 97 (Andrei Marmor ed., 1995). It may be interesting to ask also about the factors that caused the practice to have the "meaning" it does to its participants - the question Balkin calls on us to answer - but this question is simply a non sequitor on Hart's project: To understand the meaning of a human practice is one thing, to understand its causes another. What is missing in Balkin's analysis is an argument either that: (a) we ought simply to change the subject; or (b) the questions of jurisprudence really collapse into questions in the "sociology of knowledge." I, myself, am not unsympathetic to such arguments, and try to say more about this in a forthcoming work on American legal realism. See BRIAN LEITER, AMERICAN LEGAL REALISM AND NATURALIZED JURISPRUDENCE (forthcoming); see also discussion infra Part IV. Balkin does argue that the "internal" perspectives of participants in the practice may vary. See Balkin, supra, at 128. But he does not actually show that they do vary with respect to those aspects of "law" that Hart thinks need accounting for in a suitable jurisprudential theory: most importantly, the "normative" aspect of law, the sense in which a norm's being a "legal" norm affects practical reasoning. The point is a relatively simple one: If I say, "Don't go faster than 65 m.p.h. on the highway" that may give you reasons for acting (depending, for instance, on whether you think I am a good driver, knowledgeable about tha roads, sensitive to your schedule, etc.). But when the Texas legislature issues the same prescription - "Don't go faster than 65 m.p.h. on the highway" - that adds certain reasons for action that were not present when I articulated the same norm. The jurisprudential question concerns what this "normativity" actually consists in; whether, for instance, this is the normativity of mere prudence, or whether the normativity of law is simply redundant on the normativity of morality. Again, for a useful discussion, see Perry, supra. Balkin's article, then, is a case of some interesting ideas, derived (loosely speaking) from the Continental tradition in philosophy, which fail to make contact with the Anglo-American tradition in legal philosophy because of a fundamental misunderstanding of that tradition.
13. See, e.g., J. M. Balkin, Understanding Legal Understanding: The Legal Subject and the Problem of Legal Coherence, 103 YALE L.J. 105 (1993). Balkin writes: Since H.L.A. Hart, jurisprudence has been grounded on the so-called "internal point of view" - the perspective of a participant in the legal system who regards its laws as norms for her behavior. In contrast, I believe that we must ground jurisprudence in a critical perspective, one that employs ideological critique to reflect on our internal experience of law. . . . A critical perspective takes seriously the contributions of subjectivity to the nature of law; it treats the sociology of knowledge as a full partner in the jurisprudential enterprise. Instead of taking for granted the primacy of the internal viewpoint of participants in the legal system, a critical perspective asks how this internal experience comes about. Id. at 110-11 (footnote omitted); cf. id. at 128 (criticizing Joseph Raz's use of "internal point of view"). In this passage - and, indeed, in the rest of the article - Balkin seems not to appreciate the philosophical reasons for taking "the internal point of view," which grow out of the hermeneutic tradition in the philosophy of social science. According to this tradition, the only way to understand human practices is by understanding their meaning to participants in those practices. Hart wants to understand the human institution known as "law," and because he accepts the hermeneutic point, he thinks he must understand "law" from an "internal point of view." Hart is not "taking for granted the primacy of the internal viewpoint"; he takes the internal viewpoint as primary for quite substantial reasons arising from the philosophy of social science. For a rich discussion of these issues, see Stephen R. Perry, Interpretation and Methodology in Legal Theory, in LAW AND INTERPRETATION: ESSAYS IN LEGAL PHILOSOPHY 97 (Andrei Marmor ed., 1995). It may be interesting to ask also about the factors that caused the practice to have the "meaning" it does to its participants - the question Balkin calls on us to answer - but this question is simply a non sequitor on Hart's project: To understand the meaning of a human practice is one thing, to understand its causes another. What is missing in Balkin's analysis is an argument either that: (a) we ought simply to change the subject; or (b) the questions of jurisprudence really collapse into questions in the "sociology of knowledge." I, myself, am not unsympathetic to such arguments, and try to say more about this in a forthcoming work on American legal realism. See BRIAN LEITER, AMERICAN LEGAL REALISM AND NATURALIZED JURISPRUDENCE (forthcoming); see also discussion infra Part IV. Balkin does argue that the "internal" perspectives of participants in the practice may vary. See Balkin, supra, at 128. But he does not actually show that they do vary with respect to those aspects of "law" that Hart thinks need accounting for in a suitable jurisprudential theory: most importantly, the "normative" aspect of law, the sense in which a norm's being a "legal" norm affects practical reasoning. The point is a relatively simple one: If I say, "Don't go faster than 65 m.p.h. on the highway" that may give you reasons for acting (depending, for instance, on whether you think I am a good driver, knowledgeable about tha roads, sensitive to your schedule, etc.). But when the Texas legislature issues the same prescription - "Don't go faster than 65 m.p.h. on the highway" - that adds certain reasons for action that were not present when I articulated the same norm. The jurisprudential question concerns what this "normativity" actually consists in; whether, for instance, this is the normativity of mere prudence, or whether the normativity of law is simply redundant on the normativity of morality. Again, for a useful discussion, see Perry, supra. Balkin's article, then, is a case of some interesting ideas, derived (loosely speaking) from the Continental tradition in philosophy, which fail to make contact with the Anglo-American tradition in legal philosophy because of a fundamental misunderstanding of that tradition.
14. Note that I do not address the question at any length of whether Heidegger really is right. Such an undertaking is plainly beyond the scope of this Article. While I am skeptical about some of the strong forms of Heidegger's claim, I think that his ideas are interesting enough, and poorly enough understood, that they warrant a sympathetic hearing of the sort I try to give here.
15. See infra text accompanying notes 85-106.
16. See, e.g., Michael S. Moore, The Need for a Theory of Legal Theories: Assessing Pragmatic Instrumentalism, 69 CORNELL L. REV. 988, 989 (1984) (reviewing ROBERT S. SUMMERS, INSTRUMENTALISM AND AMERICAN LEGAL THEORY (1982)) (stating that theory of adjudication tells us "how judges decide and ought to decide cases"); Steven Walt, Some Problems of Pragmatic Jurisprudence, 70 TEX. L. REV. 317, 324 (1991) (reviewing RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE (1990)) (noting that "theory of adjudication . . . accounts for how judges reach results based on a wealth of facts and how they ought to do so").
17. See, e.g., Michael S. Moore, The Need for a Theory of Legal Theories: Assessing Pragmatic Instrumentalism, 69 CORNELL L. REV. 988, 989 (1984) (reviewing ROBERT S. SUMMERS, INSTRUMENTALISM AND AMERICAN LEGAL THEORY (1982)) (stating that theory of adjudication tells us "how judges decide and ought to decide cases"); Steven Walt, Some Problems of Pragmatic Jurisprudence, 70 TEX. L. REV. 317, 324 (1991) (reviewing RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE (1990)) (noting that "theory of adjudication . . . accounts for how judges reach results based on a wealth of facts and how they ought to do so").
18. See, e.g., Michael S. Moore, The Need for a Theory of Legal Theories: Assessing Pragmatic Instrumentalism, 69 CORNELL L. REV. 988, 989 (1984) (reviewing ROBERT S. SUMMERS, INSTRUMENTALISM AND AMERICAN LEGAL THEORY (1982)) (stating that theory of adjudication tells us "how judges decide and ought to decide cases"); Steven Walt, Some Problems of Pragmatic Jurisprudence, 70 TEX. L. REV. 317, 324 (1991) (reviewing RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE (1990)) (noting that "theory of adjudication . . . accounts for how judges reach results based on a wealth of facts and how they ought to do so").
19. See, e.g., Michael S. Moore, The Need for a Theory of Legal Theories: Assessing Pragmatic Instrumentalism, 69 CORNELL L. REV. 988, 989 (1984) (reviewing ROBERT S. SUMMERS, INSTRUMENTALISM AND AMERICAN LEGAL THEORY (1982)) (stating that theory of adjudication tells us "how judges decide and ought to decide cases"); Steven Walt, Some Problems of Pragmatic Jurisprudence, 70 TEX. L. REV. 317, 324 (1991) (reviewing RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE (1990)) (noting that "theory of adjudication . . . accounts for how judges reach results based on a wealth of facts and how they ought to do so").
20. RONALD DWORKIN, LAW'S EMPIRE 265 (1986). Dworkin is, of course, a bit vague about what degree of descriptive "fit" is required before we can turn to normative considerations. It might even be thought that normative considerations are implicit at the level of fit: For example, a theory, to be descriptively adequate, need not account for those cases where judges decide based on which side offers the largest bribe. While this is plainly true for Dworkin, it may not be true for all writers interested in theories of adjudication. See, e.g., Jerome Frank, Are Judges Human? Part Two: As Through a Class Darkly, 80 U. PA. L. REV. 233, 240 (1931). In general, the question is this: Must the theory be descriptively adequate to the sorts of reasons judges give in their opinions for their decisions, or must it be descriptively adequate to the real grounds of decision, where those may diverge from the reasons given in opinions? One difference between Legal Realism and the mainstream of the Anglo-American tradition of jurisprudence is the answer it gives to this question.
21. RONALD DWORKIN, LAW'S EMPIRE 265 (1986). Dworkin is, of course, a bit vague about what degree of descriptive "fit" is required before we can turn to normative considerations. It might even be thought that normative considerations are implicit at the level of fit: For example, a theory, to be descriptively adequate, need not account for those cases where judges decide based on which side offers the largest bribe. While this is plainly true for Dworkin, it may not be true for all writers interested in theories of adjudication. See, e.g., Jerome Frank, Are Judges Human? Part Two: As Through a Class Darkly, 80 U. PA. L. REV. 233, 240 (1931). In general, the question is this: Must the theory be descriptively adequate to the sorts of reasons judges give in their opinions for their decisions, or must it be descriptively adequate to the real grounds of decision, where those may diverge from the reasons given in opinions? One difference between Legal Realism and the mainstream of the Anglo-American tradition of jurisprudence is the answer it gives to this question.
22. Let me be clear about what I am saying here: Philosophical theories do try to be descriptively adequate to our intuition about normative matters (for instance, how ought one to act and what ought one to believe). But to be descriptively adequate to one's instuitions about normative matters is plainly not the same as being descriptively adequate to our actual practices (for instance, how we actually act, what we actually believe, etc.). There are, of course, branches of philosophy that are not essentially normative (i.e., they do not aim to describe what ought to be done or what ought to be believed). Thus, in metaethics the philosopher aims "to make sense of a practice having [certain] features," namely those that are "manifest in ordinary moral practice as it is engaged in by ordinary folk." MICHAEL SMITH, THE MORAL PROBLEM 5 (1994). Philosophy of science is arguably similar (though some philosophers of science, I suspect, would contest this characterization). The philosopher of science does try to be descriptively adequate to the actual practices of the natural sciences (indeed, it was precisely on this score that writers like Kuhn and Feyerabend got a foothold for their now famous critiques of positivist philosophy of science). Philosophers of science do not try to tell scientists how they ought to proceed; rather, they try to reconstruct (i.e., describe) the logic of science methodology. Philosophy of science aims only for descriptive adequacy, but it has no normative ambitions vis-à-vis natural science. (Historically, of course, philosophies of science constructed on the model of the natural sciences were employed normatively to criticize the practice of the social or "human" sciences: Such disciplines were charged with not being scientific at all if they did not conform to the logic of scientific methodology as manifest in the natural sciences.) Thus, the theory of adjudication is anomalous in its conjoining of descriptive and normative ambitions in one theory, and in assigning lexical priority to the descriptive claims.
23. On the Quinean conception of a naturalized epistemology, by contrast, there is no (significant) normative component: Epistemology falls into place as a chapter of psychology precisely because the primary ambition of the theory is to describe the causal connections between sensory input and cognitive output. See W.V. QUINE, Epistemology Naturalized, in ONTOLOGICAL RELATIVITY AND OTHER ESSAYS 69, 75-84 (1969). For Quine's wavering on the issue of normativity, see W.V. QUINE, PURSUIT OF TRUTH 19-20 (1990). Quine's purely descriptive conception of epistemology is widely (though perhaps not rightly) thought to be deficient. See, e.g., Jaegwon Kim, What Is Naturalized Epistemology?, reprinted in NATURALIZING EPISTEMOLOGY 33 (Hilary Kornblith ed., 1994); Stephen Stich, Naturalizing Epistemology: Quine, Simon and the Prospects for Pragmatism, in PHILOSOPHY AND COGNITIVE SCIENCE 1, 3-5 (Christopher Hookway & Donald Peterson ed., 1993). An analogous difficulty arises in the "naturalized" jurisprudence that I associate with Legal Realism. I take up the general problem at length in a book I am currently writing. See LEITER, supra note 3.
24. On the Quinean conception of a naturalized epistemology, by contrast, there is no (significant) normative component: Epistemology falls into place as a chapter of psychology precisely because the primary ambition of the theory is to describe the causal connections between sensory input and cognitive output. See W.V. QUINE, Epistemology Naturalized, in ONTOLOGICAL RELATIVITY AND OTHER ESSAYS 69, 75-84 (1969). For Quine's wavering on the issue of normativity, see W.V. QUINE, PURSUIT OF TRUTH 19-20 (1990). Quine's purely descriptive conception of epistemology is widely (though perhaps not rightly) thought to be deficient. See, e.g., Jaegwon Kim, What Is Naturalized Epistemology?, reprinted in NATURALIZING EPISTEMOLOGY 33 (Hilary Kornblith ed., 1994); Stephen Stich, Naturalizing Epistemology: Quine, Simon and the Prospects for Pragmatism, in PHILOSOPHY AND COGNITIVE SCIENCE 1, 3-5 (Christopher Hookway & Donald Peterson ed., 1993). An analogous difficulty arises in the "naturalized" jurisprudence that I associate with Legal Realism. I take up the general problem at length in a book I am currently writing. See LEITER, supra note 3.
25. On the Quinean conception of a naturalized epistemology, by contrast, there is no (significant) normative component: Epistemology falls into place as a chapter of psychology precisely because the primary ambition of the theory is to describe the causal connections between sensory input and cognitive output. See W.V. QUINE, Epistemology Naturalized, in ONTOLOGICAL RELATIVITY AND OTHER ESSAYS 69, 75-84 (1969). For Quine's wavering on the issue of normativity, see W.V. QUINE, PURSUIT OF TRUTH 19-20 (1990). Quine's purely descriptive conception of epistemology is widely (though perhaps not rightly) thought to be deficient. See, e.g., Jaegwon Kim, What Is Naturalized Epistemology?, reprinted in NATURALIZING EPISTEMOLOGY 33 (Hilary Kornblith ed., 1994); Stephen Stich, Naturalizing Epistemology: Quine, Simon and the Prospects for Pragmatism, in PHILOSOPHY AND COGNITIVE SCIENCE 1, 3-5 (Christopher Hookway & Donald Peterson ed., 1993). An analogous difficulty arises in the "naturalized" jurisprudence that I associate with Legal Realism. I take up the general problem at length in a book I am currently writing. See LEITER, supra note 3.
26. On the Quinean conception of a naturalized epistemology, by contrast, there is no (significant) normative component: Epistemology falls into place as a chapter of psychology precisely because the primary ambition of the theory is to describe the causal connections between sensory input and cognitive output. See W.V. QUINE, Epistemology Naturalized, in ONTOLOGICAL RELATIVITY AND OTHER ESSAYS 69, 75-84 (1969). For Quine's wavering on the issue of normativity, see W.V. QUINE, PURSUIT OF TRUTH 19-20 (1990). Quine's purely descriptive conception of epistemology is widely (though perhaps not rightly) thought to be deficient. See, e.g., Jaegwon Kim, What Is Naturalized Epistemology?, reprinted in NATURALIZING EPISTEMOLOGY 33 (Hilary Kornblith ed., 1994); Stephen Stich, Naturalizing Epistemology: Quine, Simon and the Prospects for Pragmatism, in PHILOSOPHY AND COGNITIVE SCIENCE 1, 3-5 (Christopher Hookway & Donald Peterson ed., 1993). An analogous difficulty arises in the "naturalized" jurisprudence that I associate with Legal Realism. I take up the general problem at length in a book I am currently writing. See LEITER, supra note 3.
27. On the Quinean conception of a naturalized epistemology, by contrast, there is no (significant) normative component: Epistemology falls into place as a chapter of psychology precisely because the primary ambition of the theory is to describe the causal connections between sensory input and cognitive output. See W.V. QUINE, Epistemology Naturalized, in ONTOLOGICAL RELATIVITY AND OTHER ESSAYS 69, 75-84 (1969). For Quine's wavering on the issue of normativity, see W.V. QUINE, PURSUIT OF TRUTH 19-20 (1990). Quine's purely descriptive conception of epistemology is widely (though perhaps not rightly) thought to be deficient. See, e.g., Jaegwon Kim, What Is Naturalized Epistemology?, reprinted in NATURALIZING EPISTEMOLOGY 33 (Hilary Kornblith ed., 1994); Stephen Stich, Naturalizing Epistemology: Quine, Simon and the Prospects for Pragmatism, in PHILOSOPHY AND COGNITIVE SCIENCE 1, 3-5 (Christopher Hookway & Donald Peterson ed., 1993). An analogous difficulty arises in the "naturalized" jurisprudence that I associate with Legal Realism. I take up the general problem at length in a book I am currently writing. See LEITER, supra note 3.
28. See, e.g., ALVIN I. GOLDMAN, EPISTEMOLOGY AND COGNITION (1986); Philip Kitcher, The Naturalists Return, 101 PHIL. REV. 53 (1992); Larry Laudan, Normative Naturalism, 57 PHIL. SCI. 44 (1990).
29. See, e.g., ALVIN I. GOLDMAN, EPISTEMOLOGY AND COGNITION (1986); Philip Kitcher, The Naturalists Return, 101 PHIL. REV. 53 (1992); Larry Laudan, Normative Naturalism, 57 PHIL. SCI. 44 (1990).
30. See, e.g., ALVIN I. GOLDMAN, EPISTEMOLOGY AND COGNITION (1986); Philip Kitcher, The Naturalists Return, 101 PHIL. REV. 53 (1992); Larry Laudan, Normative Naturalism, 57 PHIL. SCI. 44 (1990).
31. See, e.g., IMMANUEL KANT, GROUNDWORK OF THE METAPHYSICS OF MORALS 74-75 (H.J. Paton trans Harper & Row 1964); H.J. Paton, Analysis of the Argument, in KANT, supra, at 25-26.
32. See, e.g., IMMANUEL KANT, GROUNDWORK OF THE METAPHYSICS OF MORALS 74-75 (H.J. Paton trans Harper & Row 1964); H.J. Paton, Analysis of the Argument, in KANT, supra, at 25-26.
33. An alternative explanation, suggested to me by Doug Laycock, is the tendency for Anglo-American lawyers to keep their normative proposals not too far removed from existing practice so that they stand a greater chance of changing that practice.
34. It is the Presumption, then, that contributes to the essentially conservative character of most work in analytic jurisprudence.
35. John Mackie, The Third Theory of Law, reprinted in RONALD DWORKIN AND CONTEMPORARY JURISPRUDENCE 161, 163 (Marshall Cohen ed., 1983).
36. Oliver Wendell Holmes, Jr., The Paths of the Law, 10 HARV. L. REV. 457, 467 (1897).
37. Id. This placing of Holmes differs, in emphasis, from what I say in the section on " Normative Theory of Adjudication" in Brian Leiter, Legal Realism, in A COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY 261, 276-77 (D.M. Patterson, ed., 1996). The ambiguity of Holme's normative position was impressed on me in conversation with Stephen Perry.
38. See, e.g., Moore, supra note 6, at 1003; Walt, supra note 6. at 324.
39. See, e.g., RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (1977) (explaining that those norms that provide both best explanation and best justification - as matter of political morality - of prior institutional history are legally binding).
40. See JOSEPH RAZ, Legal Positivism and the Sources of Law, in THE AUTHORITY OF LAW (1979) (claiming that only norms that have social source - e.g., being enacted by legislature - are legally binding).
41. See, e.g., H.L.A. HART, Postscript to THE CONCEPT OF LAW (Joseph Raz & Penelope Bulloch eds., 2d ed. 1994) (1961); Jules L. Coleman, Negative and Positive Positivism, 11 J. LEGAL STUD. 139 (1982), reprinted in RONALD DWORKIN AND CONTEMPORARY JURISPRUDENCE, supra note 14, at 28; David Lyons, Principles, Positivism and Legal Theory, 87 YALE L.J. 415, 425 (1977) (reviewing DWORKIN, supra note 18) (arguing that moral considerations are legally binding insofar as they have social source, including, e.g., convention among relevant officials to employ moral considerations to resolve disputes). On the issues here, see generally W.J. WALUCHOW, INCLUSIVE LEGAL POSITIVISM (1994) and Jules L. Coleman & Brian Leiter, Legal Positivism, in A COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY, supra note 16, at 241, 243-59.
42. See, e.g., H.L.A. HART, Postscript to THE CONCEPT OF LAW (Joseph Raz & Penelope Bulloch eds., 2d ed. 1994) (1961); Jules L. Coleman, Negative and Positive Positivism, 11 J. LEGAL STUD. 139 (1982), reprinted in RONALD DWORKIN AND CONTEMPORARY JURISPRUDENCE, supra note 14, at 28; David Lyons, Principles, Positivism and Legal Theory, 87 YALE L.J. 415, 425 (1977) (reviewing DWORKIN, supra note 18) (arguing that moral considerations are legally binding insofar as they have social source, including, e.g., convention among relevant officials to employ moral considerations to resolve disputes). On the issues here, see generally W.J. WALUCHOW, INCLUSIVE LEGAL POSITIVISM (1994) and Jules L. Coleman & Brian Leiter, Legal Positivism, in A COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY, supra note 16, at 241, 243-59.
43. See, e.g., H.L.A. HART, Postscript to THE CONCEPT OF LAW (Joseph Raz & Penelope Bulloch eds., 2d ed. 1994) (1961); Jules L. Coleman, Negative and Positive Positivism, 11 J. LEGAL STUD. 139 (1982), reprinted in RONALD DWORKIN AND CONTEMPORARY JURISPRUDENCE, supra note 14, at 28; David Lyons, Principles, Positivism and Legal Theory, 87 YALE L.J. 415, 425 (1977) (reviewing DWORKIN, supra note 18) (arguing that moral considerations are legally binding insofar as they have social source, including, e.g., convention among relevant officials to employ moral considerations to resolve disputes). On the issues here, see generally W.J. WALUCHOW, INCLUSIVE LEGAL POSITIVISM (1994) and Jules L. Coleman & Brian Leiter, Legal Positivism, in A COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY, supra note 16, at 241, 243-59.
44. See, e.g., H.L.A. HART, Postscript to THE CONCEPT OF LAW (Joseph Raz & Penelope Bulloch eds., 2d ed. 1994) (1961); Jules L. Coleman, Negative and Positive Positivism, 11 J. LEGAL STUD. 139 (1982), reprinted in RONALD DWORKIN AND CONTEMPORARY JURISPRUDENCE, supra note 14, at 28; David Lyons, Principles, Positivism and Legal Theory, 87 YALE L.J. 415, 425 (1977) (reviewing DWORKIN, supra note 18) (arguing that moral considerations are legally binding insofar as they have social source, including, e.g., convention among relevant officials to employ moral considerations to resolve disputes). On the issues here, see generally W.J. WALUCHOW, INCLUSIVE LEGAL POSITIVISM (1994) and Jules L. Coleman & Brian Leiter, Legal Positivism, in A COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY, supra note 16, at 241, 243-59.
45. See, e.g., H.L.A. HART, Postscript to THE CONCEPT OF LAW (Joseph Raz & Penelope Bulloch eds., 2d ed. 1994) (1961); Jules L. Coleman, Negative and Positive Positivism, 11 J. LEGAL STUD. 139 (1982), reprinted in RONALD DWORKIN AND CONTEMPORARY JURISPRUDENCE, supra note 14, at 28; David Lyons, Principles, Positivism and Legal Theory, 87 YALE L.J. 415, 425 (1977) (reviewing DWORKIN, supra note 18) (arguing that moral considerations are legally binding insofar as they have social source, including, e.g., convention among relevant officials to employ moral considerations to resolve disputes). On the issues here, see generally W.J. WALUCHOW, INCLUSIVE LEGAL POSITIVISM (1994) and Jules L. Coleman & Brian Leiter, Legal Positivism, in A COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY, supra note 16, at 241, 243-59.
46. See, e.g., H.L.A. HART, Postscript to THE CONCEPT OF LAW (Joseph Raz & Penelope Bulloch eds., 2d ed. 1994) (1961); Jules L. Coleman, Negative and Positive Positivism, 11 J. LEGAL STUD. 139 (1982), reprinted in RONALD DWORKIN AND CONTEMPORARY JURISPRUDENCE, supra note 14, at 28; David Lyons, Principles, Positivism and Legal Theory, 87 YALE L.J. 415, 425 (1977) (reviewing DWORKIN, supra note 18) (arguing that moral considerations are legally binding insofar as they have social source, including, e.g., convention among relevant officials to employ moral considerations to resolve disputes). On the issues here, see generally W.J. WALUCHOW, INCLUSIVE LEGAL POSITIVISM (1994) and Jules L. Coleman & Brian Leiter, Legal Positivism, in A COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY, supra note 16, at 241, 243-59.
47. KARL LLEWELLYN, THE BRAMBLE BUSH 72 (1930).
48. Holmes, supra note 15, at 474-75.
49. Although I shall concentrate in what follows on the Background of intelligibility required for the making of relevancy judgments, it bears noting that there are many other features of legal judgment that present related difficulties: for example, judgments about "reasonableness" (as in the omnipresent "reasonableness" standards in the law) or judgments about what does or does not constitute an "exception" to a rule. I concentrate on judgments of "relevancy" because these are central to analogical reasoning, which, in turn, is central to judging. But judgments of "relevance" are only one of many subtle judgments made by lawyers and judges that may not admit of theoretical reconstruction.
50. 505 U.S. 144 (1992).
51. See id. at 149.
52. 469 U.S. 528 (1985).
53. See id. at 555-56.
54. Id. at 588 (O'Connor, J., dissenting).
55. See New York, 505 U.S. at 150.
56. See id. at 194-98 (White, J., dissenting).
57. Id. at 161.
58. Id.
59. Id. at 202 (White, J., concurring in part and dissenting in part). My version of the majority opinion follows Justice White's reading of it more closely than partisans of federalism values may like. Arguably, we could reconstruct Justice O'Connor's point as follows: Federalism values are more seriously implicated where the federal regulation reaches a distinctive state function, like regulation, than when it reaches activities that states have in common with private actors, like economic activities. In that event, the fact that the regulation in New York only reaches the state is indicative of the fact that it encroaches more profoundly on the autonomy of the state. This is certainly a more charitable understanding of Justice O'Connor's argument, though it is not clear that this is the argument she actually makes. Moreover, such an argument seems like a roundabout attempt to revive the "traditional government functions" approach explicitly repudiated in Garcia. In that case, Justice O'Connor's opinion is still an end run around the earlier decision. For my purposes in the text, however, none of these points matter. If anything, they serve to underline Llewellyn's point about the plasticity of precedent.
60. Heidegger's often obscure prose is defended - not convincingly to my mind - in HUBERT L. DREYFUS, BEING-IN-THE-WORLD 7-8 (1991); indeed, it would seem that Dreyfus's splendid clarity on the same themes undercuts his defense of Heidegger's often absurd prose style.
61. The fact that he was a Nazi, who later lied about his involvement with Nazism, as well as a bastard - personally and politically - are also aspects of Heidegger that make him an unattractive figure. For discussion of the relevant biographical facts, see VICTOR FARÍAS, HEIDEGGER AND NAZISM (Joseph Margolis & Tom Rockmore eds. & Paul Burrell trans., Temple Univ. Press 1989) (1987). One attraction of Hubert Dreyfus's influential interpretation of Heidegger is that it extracts from Heidegger arguments and themes that are of independent philosophical interest, and that do not seem to be linked to his Nazism. But I have little doubt that other aspects of Heidegger's thought (not considered here) and his Nazism are deeply linked, the protestations of Jacques Derrida and Richard Rorty, among others, notwithstanding. See, e.g., Jacques Derrida, Philosopher's Hell: An Interview, in THE HEIDEGGER CONTROVERSY, 264, 266-67 (Richard Wolin ed., 1991); Richard Rorty, Taking Philosophy Seriously, NEW REPUBLIC, Apr. 11, 1988, at 31, 32-33 (reviewing VICTOR FARÍAS, HEIDEGGER ET LA NAZISME (1987)). As Nietzsche has observed: "[O]ur ideas, our values, our yeas and nays, our ifs and buts, grow out of us with the necessity with which a tree bears fruit - related and each with an affinity to each, and evidence of one will, one health, one soil, one sun." FRIEDRICH NIETZSCHE, ON THE GENEALOGY OF MORALS 16 (Walter Kaufman ed. & Walter Kaufman & R.J. Hollingdale trans., 1969). Heidegger's Nazism and his philosophy were "fruit" of the same tree, and it would be astounding if there were not some affinities, at some level, between the disgusting political and personal record of the man and the philosophy he propounded. For a reading of Heidegger that vindicates this Nietzschean perspective, see GEORGE STEINER, HEIDEGGER (1978). However, it still seems to me that the Heideggerian themes that Dreyfus develops can be parsed from Heidegger's Nazism, even if other aspects of his thought cannot.
62. The fact that he was a Nazi, who later lied about his involvement with Nazism, as well as a bastard - personally and politically - are also aspects of Heidegger that make him an unattractive figure. For discussion of the relevant biographical facts, see VICTOR FARÍAS, HEIDEGGER AND NAZISM (Joseph Margolis & Tom Rockmore eds. & Paul Burrell trans., Temple Univ. Press 1989) (1987). One attraction of Hubert Dreyfus's influential interpretation of Heidegger is that it extracts from Heidegger arguments and themes that are of independent philosophical interest, and that do not seem to be linked to his Nazism. But I have little doubt that other aspects of Heidegger's thought (not considered here) and his Nazism are deeply linked, the protestations of Jacques Derrida and Richard Rorty, among others, notwithstanding. See, e.g., Jacques Derrida, Philosopher's Hell: An Interview, in THE HEIDEGGER CONTROVERSY, 264, 266-67 (Richard Wolin ed., 1991); Richard Rorty, Taking Philosophy Seriously, NEW REPUBLIC, Apr. 11, 1988, at 31, 32-33 (reviewing VICTOR FARÍAS, HEIDEGGER ET LA NAZISME (1987)). As Nietzsche has observed: "[O]ur ideas, our values, our yeas and nays, our ifs and buts, grow out of us with the necessity with which a tree bears fruit - related and each with an affinity to each, and evidence of one will, one health, one soil, one sun." FRIEDRICH NIETZSCHE, ON THE GENEALOGY OF MORALS 16 (Walter Kaufman ed. & Walter Kaufman & R.J. Hollingdale trans., 1969). Heidegger's Nazism and his philosophy were "fruit" of the same tree, and it would be astounding if there were not some affinities, at some level, between the disgusting political and personal record of the man and the philosophy he propounded. For a reading of Heidegger that vindicates this Nietzschean perspective, see GEORGE STEINER, HEIDEGGER (1978). However, it still seems to me that the Heideggerian themes that Dreyfus develops can be parsed from Heidegger's Nazism, even if other aspects of his thought cannot.
63. The fact that he was a Nazi, who later lied about his involvement with Nazism, as well as a bastard - personally and politically - are also aspects of Heidegger that make him an unattractive figure. For discussion of the relevant biographical facts, see VICTOR FARÍAS, HEIDEGGER AND NAZISM (Joseph Margolis & Tom Rockmore eds. & Paul Burrell trans., Temple Univ. Press 1989) (1987). One attraction of Hubert Dreyfus's influential interpretation of Heidegger is that it extracts from Heidegger arguments and themes that are of independent philosophical interest, and that do not seem to be linked to his Nazism. But I have little doubt that other aspects of Heidegger's thought (not considered here) and his Nazism are deeply linked, the protestations of Jacques Derrida and Richard Rorty, among others, notwithstanding. See, e.g., Jacques Derrida, Philosopher's Hell: An Interview, in THE HEIDEGGER CONTROVERSY, 264, 266-67 (Richard Wolin ed., 1991); Richard Rorty, Taking Philosophy Seriously, NEW REPUBLIC, Apr. 11, 1988, at 31, 32-33 (reviewing VICTOR FARÍAS, HEIDEGGER ET LA NAZISME (1987)). As Nietzsche has observed: "[O]ur ideas, our values, our yeas and nays, our ifs and buts, grow out of us with the necessity with which a tree bears fruit - related and each with an affinity to each, and evidence of one will, one health, one soil, one sun." FRIEDRICH NIETZSCHE, ON THE GENEALOGY OF MORALS 16 (Walter Kaufman ed. & Walter Kaufman & R.J. Hollingdale trans., 1969). Heidegger's Nazism and his philosophy were "fruit" of the same tree, and it would be astounding if there were not some affinities, at some level, between the disgusting political and personal record of the man and the philosophy he propounded. For a reading of Heidegger that vindicates this Nietzschean perspective, see GEORGE STEINER, HEIDEGGER (1978). However, it still seems to me that the Heideggerian themes that Dreyfus develops can be parsed from Heidegger's Nazism, even if other aspects of his thought cannot.
64. The fact that he was a Nazi, who later lied about his involvement with Nazism, as well as a bastard - personally and politically - are also aspects of Heidegger that make him an unattractive figure. For discussion of the relevant biographical facts, see VICTOR FARÍAS, HEIDEGGER AND NAZISM (Joseph Margolis & Tom Rockmore eds. & Paul Burrell trans., Temple Univ. Press 1989) (1987). One attraction of Hubert Dreyfus's influential interpretation of Heidegger is that it extracts from Heidegger arguments and themes that are of independent philosophical interest, and that do not seem to be linked to his Nazism. But I have little doubt that other aspects of Heidegger's thought (not considered here) and his Nazism are deeply linked, the protestations of Jacques Derrida and Richard Rorty, among others, notwithstanding. See, e.g., Jacques Derrida, Philosopher's Hell: An Interview, in THE HEIDEGGER CONTROVERSY, 264, 266-67 (Richard Wolin ed., 1991); Richard Rorty, Taking Philosophy Seriously, NEW REPUBLIC, Apr. 11, 1988, at 31, 32-33 (reviewing VICTOR FARÍAS, HEIDEGGER ET LA NAZISME (1987)). As Nietzsche has observed: "[O]ur ideas, our values, our yeas and nays, our ifs and buts, grow out of us with the necessity with which a tree bears fruit - related and each with an affinity to each, and evidence of one will, one health, one soil, one sun." FRIEDRICH NIETZSCHE, ON THE GENEALOGY OF MORALS 16 (Walter Kaufman ed. & Walter Kaufman & R.J. Hollingdale trans., 1969). Heidegger's Nazism and his philosophy were "fruit" of the same tree, and it would be astounding if there were not some affinities, at some level, between the disgusting political and personal record of the man and the philosophy he propounded. For a reading of Heidegger that vindicates this Nietzschean perspective, see GEORGE STEINER, HEIDEGGER (1978). However, it still seems to me that the Heideggerian themes that Dreyfus develops can be parsed from Heidegger's Nazism, even if other aspects of his thought cannot.
65. The fact that he was a Nazi, who later lied about his involvement with Nazism, as well as a bastard - personally and politically - are also aspects of Heidegger that make him an unattractive figure. For discussion of the relevant biographical facts, see VICTOR FARÍAS, HEIDEGGER AND NAZISM (Joseph Margolis & Tom Rockmore eds. & Paul Burrell trans., Temple Univ. Press 1989) (1987). One attraction of Hubert Dreyfus's influential interpretation of Heidegger is that it extracts from Heidegger arguments and themes that are of independent philosophical interest, and that do not seem to be linked to his Nazism. But I have little doubt that other aspects of Heidegger's thought (not considered here) and his Nazism are deeply linked, the protestations of Jacques Derrida and Richard Rorty, among others, notwithstanding. See, e.g., Jacques Derrida, Philosopher's Hell: An Interview, in THE HEIDEGGER CONTROVERSY, 264, 266-67 (Richard Wolin ed., 1991); Richard Rorty, Taking Philosophy Seriously, NEW REPUBLIC, Apr. 11, 1988, at 31, 32-33 (reviewing VICTOR FARÍAS, HEIDEGGER ET LA NAZISME (1987)). As Nietzsche has observed: "[O]ur ideas, our values, our yeas and nays, our ifs and buts, grow out of us with the necessity with which a tree bears fruit - related and each with an affinity to each, and evidence of one will, one health, one soil, one sun." FRIEDRICH NIETZSCHE, ON THE GENEALOGY OF MORALS 16 (Walter Kaufman ed. & Walter Kaufman & R.J. Hollingdale trans., 1969). Heidegger's Nazism and his philosophy were "fruit" of the same tree, and it would be astounding if there were not some affinities, at some level, between the disgusting political and personal record of the man and the philosophy he propounded. For a reading of Heidegger that vindicates this Nietzschean perspective, see GEORGE STEINER, HEIDEGGER (1978). However, it still seems to me that the Heideggerian themes that Dreyfus develops can be parsed from Heidegger's Nazism, even if other aspects of his thought cannot.
66. The fact that he was a Nazi, who later lied about his involvement with Nazism, as well as a bastard - personally and politically - are also aspects of Heidegger that make him an unattractive figure. For discussion of the relevant biographical facts, see VICTOR FARÍAS, HEIDEGGER AND NAZISM (Joseph Margolis & Tom Rockmore eds. & Paul Burrell trans., Temple Univ. Press 1989) (1987). One attraction of Hubert Dreyfus's influential interpretation of Heidegger is that it extracts from Heidegger arguments and themes that are of independent philosophical interest, and that do not seem to be linked to his Nazism. But I have little doubt that other aspects of Heidegger's thought (not considered here) and his Nazism are deeply linked, the protestations of Jacques Derrida and Richard Rorty, among others, notwithstanding. See, e.g., Jacques Derrida, Philosopher's Hell: An Interview, in THE HEIDEGGER CONTROVERSY, 264, 266-67 (Richard Wolin ed., 1991); Richard Rorty, Taking Philosophy Seriously, NEW REPUBLIC, Apr. 11, 1988, at 31, 32-33 (reviewing VICTOR FARÍAS, HEIDEGGER ET LA NAZISME (1987)). As Nietzsche has observed: "[O]ur ideas, our values, our yeas and nays, our ifs and buts, grow out of us with the necessity with which a tree bears fruit - related and each with an affinity to each, and evidence of one will, one health, one soil, one sun." FRIEDRICH NIETZSCHE, ON THE GENEALOGY OF MORALS 16 (Walter Kaufman ed. & Walter Kaufman & R.J. Hollingdale trans., 1969). Heidegger's Nazism and his philosophy were "fruit" of the same tree, and it would be astounding if there were not some affinities, at some level, between the disgusting political and personal record of the man and the philosophy he propounded. For a reading of Heidegger that vindicates this Nietzschean perspective, see GEORGE STEINER, HEIDEGGER (1978). However, it still seems to me that the Heideggerian themes that Dreyfus develops can be parsed from Heidegger's Nazism, even if other aspects of his thought cannot.
67. MARTIN HEIDEGGER, BEING AND TIME (John Macquarrie & Edward Robinson trans., 1962).
68. See EDMUND HUSSERL, CARTESIAN MEDITATIONS: AN INTRODUCTION TO PHENOMENOLOGY (Dorion Cairns trans., 1970).
69. Cf. HEIDEGGER, supra note 36, at 50 (noting that phenomenology "is opposed to taking over any conceptions which only seem to have been demonstrated").
70. HUBERT L. DREYFUS & PAUL RABINOW, MICHAEL FOUCAULT: BEYOND STRUCTURALISM AND HERMENEUTICS xxi (2d ed. 1983).
71. See, e.g., HANS-GEORG GADAMER, TRUTH AND METHOD 248-49 (Garrett Barden & John Cumming eds. & trans., Crossroad Publ'g Co. 1975) (1960). For a more substantial discussion with particular reference to law, see David Couzens Hoy, Interpreting the Law: Hermeneutical and Poststructuralist Perspectives, 58 S. CAL. L. REV. 136 (1985).
72. See, e.g., HANS-GEORG GADAMER, TRUTH AND METHOD 248-49 (Garrett Barden & John Cumming eds. & trans., Crossroad Publ'g Co. 1975) (1960). For a more substantial discussion with particular reference to law, see David Couzens Hoy, Interpreting the Law: Hermeneutical and Poststructuralist Perspectives, 58 S. CAL. L. REV. 136 (1985).
73. See MAURICE MERLEAU-PONTY, PHENOMENOLOGY OF PERCEPTION 98-206 (Colin Smith trans., 1962).
74. Arguably similar notions are at work in the later Wittgenstein, as well as in Harold Garfinkel's ethnomethodology, Charles Taylor's work on the philosophy of the human sciences, and some recent work in analytic philosophy. See ROBERT B. BRANDOM, MAKING IT EXPLICIT (1994); HAROLD GARFINKEL, STUDIES IN ETHNOMETHODOLOGY (1967); CHARLES TAYLOR, PHILOSOPHY AND THE HUMAN SCIENCES (1985); LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS (R. Rhees ed. & G.E.M. Anscombe ed. & trans., 1953). In the legal literature, the themes in the text are most often associated with the work of Wittgenstein. See, e.g., Dennis M. Patterson, Law's Pragmatism: Law as Practice & Narrative, 76 VA. L. REV. 937 (1990). One advantage of considering Heidegger's arguments for
75. Arguably similar notions are at work in the later Wittgenstein, as well as in Harold Garfinkel's ethnomethodology, Charles Taylor's work on the philosophy of the human sciences, and some recent work in analytic philosophy. See ROBERT B. BRANDOM, MAKING IT EXPLICIT (1994); HAROLD GARFINKEL, STUDIES IN ETHNOMETHODOLOGY (1967); CHARLES TAYLOR, PHILOSOPHY AND THE HUMAN SCIENCES (1985); LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS (R. Rhees ed. & G.E.M. Anscombe ed. & trans., 1953). In the legal literature, the themes in the text are most often associated with the work of Wittgenstein. See, e.g., Dennis M. Patterson, Law's Pragmatism: Law as Practice & Narrative, 76 VA. L. REV. 937 (1990). One advantage of considering Heidegger's arguments for similar conclusions is that Heidegger, unlike Wittgenstein and his various followers, offers a more detailed philosophical story both about what practices consist in and why it is they resist theoretical articulation. For Wittgenstein, practice too often functions as an inquiry-stopper: When the philosophical going gets complex, the Wittgensteinian cries, "It's all a matter of knowing how to go on with the practice" - end of story. (I am reminded, in this regard, of the philosopher Larry Sklar's emendation of the famous Wittgenstein dictum on the task of philosophy: "Philosophy leaves everything as it is - in a fog.") The philosophical burden on the proponent of such a move should be heavy; Heidegger has the virtue of carrying more of this burden than Wittgenstein. (I am indebted here to Sandy Levinson for raising these issues with me.)
76. Arguably similar notions are at work in the later Wittgenstein, as well as in Harold Garfinkel's ethnomethodology, Charles Taylor's work on the philosophy of the human sciences, and some recent work in analytic philosophy. See ROBERT B. BRANDOM, MAKING IT EXPLICIT (1994); HAROLD GARFINKEL, STUDIES IN ETHNOMETHODOLOGY (1967); CHARLES TAYLOR, PHILOSOPHY AND THE HUMAN SCIENCES (1985); LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS (R. Rhees ed. & G.E.M. Anscombe ed. & trans., 1953). In the legal literature, the themes in the text are most often associated with the work of Wittgenstein. See, e.g., Dennis M. Patterson, Law's Pragmatism: Law as Practice & Narrative, 76 VA. L. REV. 937 (1990). One advantage of considering Heidegger's arguments for similar conclusions is that Heidegger, unlike Wittgenstein and his various followers, offers a more detailed philosophical story both about what practices consist in and why it is they resist theoretical articulation. For Wittgenstein, practice too often functions as an inquiry-stopper: When the philosophical going gets complex, the Wittgensteinian cries, "It's all a matter of knowing how to go on with the practice" - end of story. (I am reminded, in this regard, of the philosopher Larry Sklar's emendation of the famous Wittgenstein dictum on the task of philosophy: "Philosophy leaves everything as it is - in a fog.") The philosophical burden on the proponent of such a move should be heavy; Heidegger has the virtue of carrying more of this burden than Wittgenstein. (I am indebted here to Sandy Levinson for raising these issues with me.)
77. Arguably similar notions are at work in the later Wittgenstein, as well as in Harold Garfinkel's ethnomethodology, Charles Taylor's work on the philosophy of the human sciences, and some recent work in analytic philosophy. See ROBERT B. BRANDOM, MAKING IT EXPLICIT (1994); HAROLD GARFINKEL, STUDIES IN ETHNOMETHODOLOGY (1967); CHARLES TAYLOR, PHILOSOPHY AND THE HUMAN SCIENCES (1985); LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS (R. Rhees ed. & G.E.M. Anscombe ed. & trans., 1953). In the legal literature, the themes in the text are most often associated with the work of Wittgenstein. See, e.g., Dennis M. Patterson, Law's Pragmatism: Law as Practice & Narrative, 76 VA. L. REV. 937 (1990). One advantage of considering Heidegger's arguments for similar conclusions is that Heidegger, unlike Wittgenstein and his various followers, offers a more detailed philosophical story both about what practices consist in and why it is they resist theoretical articulation. For Wittgenstein, practice too often functions as an inquiry-stopper: When the philosophical going gets complex, the Wittgensteinian cries, "It's all a matter of knowing how to go on with the practice" - end of story. (I am reminded, in this regard, of the philosopher Larry Sklar's emendation of the famous Wittgenstein dictum on the task of philosophy: "Philosophy leaves everything as it is - in a fog.") The philosophical burden on the proponent of such a move should be heavy; Heidegger has the virtue of carrying more of this burden than Wittgenstein. (I am indebted here to Sandy Levinson for raising these issues with me.)
78. Arguably similar notions are at work in the later Wittgenstein, as well as in Harold Garfinkel's ethnomethodology, Charles Taylor's work on the philosophy of the human sciences, and some recent work in analytic philosophy. See ROBERT B. BRANDOM, MAKING IT EXPLICIT (1994); HAROLD GARFINKEL, STUDIES IN ETHNOMETHODOLOGY (1967); CHARLES TAYLOR, PHILOSOPHY AND THE HUMAN SCIENCES (1985); LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS (R. Rhees ed. & G.E.M. Anscombe ed. & trans., 1953). In the legal literature, the themes in the text are most often associated with the work of Wittgenstein. See, e.g., Dennis M. Patterson, Law's Pragmatism: Law as Practice & Narrative, 76 VA. L. REV. 937 (1990). One advantage of considering Heidegger's arguments for similar conclusions is that Heidegger, unlike Wittgenstein and his various followers, offers a more detailed philosophical story both about what practices consist in and why it is they resist theoretical articulation. For Wittgenstein, practice too often functions as an inquiry-stopper: When the philosophical going gets complex, the Wittgensteinian cries, "It's all a matter of knowing how to go on with the practice" - end of story. (I am reminded, in this regard, of the philosopher Larry Sklar's emendation of the famous Wittgenstein dictum on the task of philosophy: "Philosophy leaves everything as it is - in a fog.") The philosophical burden on the proponent of such a move should be heavy; Heidegger has the virtue of carrying more of this burden than Wittgenstein. (I am indebted here to Sandy Levinson for raising these issues with me.)
79. As Cathy Kemp has correctly reminded me, practical know-how does not exhaust our account of the Background in the phenomenological tradition. There are, for example, aspects of our experience of things and persons - a certain "ambiance," or "orientation," or "affect" - that are, like the Background of practical skills, not reducible to cognitive propositions, but at the same time are also not reducible to practical skills. Needless to say, I do not aim to be comprehensive in my characterization of the phenomenological tradition; I call attention to one important theme, one that we may fruitfully try to understand in its application to theories of adjudication. Other aspects of the Background might pose related difficulties for theories of adjudication.
80. HEIDEGGER, supra note 36, at 69.
81. The Macquarrie and Robinson translation of HEIDEGGER, supra note 36, popularized these terms in the English speaking world. The German words - Zuhandenheit (i.e., "readiness-to-hand") and Vor-handen-heit (i.e., "presence-at-hand") - do not have neat English equivalents. Three analytic Heidegger scholars (William Blattner, John Haugeland, and Dreyfus) have suggested instead the terms "availableness" and "occurrentness," though I confess I find these unattractive substitutes. See, e.g., DREYFUS, supra note 34, at xi.
82. The "cognitive" aspect of an activity is that aspect (e.g., judging, "This is a pen.") that can be evaluated in terms of its truth and falsity. Noncognitive activity - like screeching, cooing, or moaning - is, by contrast, not apt for evaluation in terms of truth and falsity because it asserts nothing about the world that might be true or false.
83. HEIDEGGER, supra note 36, at 95.
84. "Equipment" are the entities we encounter in the mode of "Being-in" that Heidegger calls "concern," i.e., "having to do with something, producing something, attending to something and looking after it, making use of something, giving something up and letting it go, undertaking, accomplishing, evincing, interrogating, considering, discussing, determining. . . ." Id. at 83.
85. The "Being" of equipment, says Heidegger, is readiness-to-hand. See, e.g., id. at 98.
86. Id. at 97.
87. Id. at 104.
88. Id. at 98.
89. Id.
90. Id.
91. Id. at 107.
92. Id. at 98.
93. Id. at 190-91.
94. See id. at 86-90. This issue is discussed helpfully (if somewhat repetitively) in CHARLES B. GUIGNON, HEIDEGGER AND THE PROBLEM OF KNOWLEDGE (1983). For a rich, systematic treatment of the topic, see also JOHN RICHARDSON, EXISTENTIAL EPISTEMOLOGY (1986). These accounts, by students of Dreyfus, follow in large part the account now set out in DREYFUS, supra note 34, at 248-51. I am inclined to think that the attack on the Cartesian tradition of epistemology is not successful, and indeed, is deeply confused. The confusion is brought out nicely by Dreyfus: "It is only when we reflect philosophically on the structure of deliberative, representational intentionality that we get skepticism; coping practices, on the contrary, do not represent and so cannot misrepresent." Id. at 249. The reader should be forgiven if this strikes him or her as an argument for the irrelevance of the Heideggerian point to skepticism. The issue, of course, is more complex than this, but is tangential to my concerns here. For a more substantial, and representative, critique of the Heideggerian line, see Leslie Stevenson, Heidegger on Cartesian Skepticism, 1 BRIT. J. HIST. PHIL. 81 (1993).
95. See id. at 86-90. This issue is discussed helpfully (if somewhat repetitively) in CHARLES B. GUIGNON, HEIDEGGER AND THE PROBLEM OF KNOWLEDGE (1983). For a rich, systematic treatment of the topic, see also JOHN RICHARDSON, EXISTENTIAL EPISTEMOLOGY (1986). These accounts, by students of Dreyfus, follow in large part the account now set out in DREYFUS, supra note 34, at 248-51. I am inclined to think that the attack on the Cartesian tradition of epistemology is not successful, and indeed, is deeply confused. The confusion is brought out nicely by Dreyfus: "It is only when we reflect philosophically on the structure of deliberative, representational intentionality that we get skepticism; coping practices, on the contrary, do not represent and so cannot misrepresent." Id. at 249. The reader should be forgiven if this strikes him or her as an argument for the irrelevance of the Heideggerian point to skepticism. The issue, of course, is more complex than this, but is tangential to my concerns here. For a more substantial, and representative, critique of the Heideggerian line, see Leslie Stevenson, Heidegger on Cartesian Skepticism, 1 BRIT. J. HIST. PHIL. 81 (1993).
96. See id. at 86-90. This issue is discussed helpfully (if somewhat repetitively) in CHARLES B. GUIGNON, HEIDEGGER AND THE PROBLEM OF KNOWLEDGE (1983). For a rich, systematic treatment of the topic, see also JOHN RICHARDSON, EXISTENTIAL EPISTEMOLOGY (1986). These accounts, by students of Dreyfus, follow in large part the account now set out in DREYFUS, supra note 34, at 248-51. I am inclined to think that the attack on the Cartesian tradition of epistemology is not successful, and indeed, is deeply confused. The confusion is brought out nicely by Dreyfus: "It is only when we reflect philosophically on the structure of deliberative, representational intentionality that we get skepticism; coping practices, on the contrary, do not represent and so cannot misrepresent." Id. at 249. The reader should be forgiven if this strikes him or her as an argument for the irrelevance of the Heideggerian point to skepticism. The issue, of course, is more complex than this, but is tangential to my concerns here. For a more substantial, and representative, critique of the Heideggerian line, see Leslie Stevenson, Heidegger on Cartesian Skepticism, 1 BRIT. J. HIST. PHIL. 81 (1993).
97. That is, Heidegger needs an argument against the position well represented in the mainstream of the philosophical tradition by Leibniz's claim that "the most important observations and turns of skill in all sorts of trades and professions are as yet unwritten. . . . Of course we can also write up this practice, since it is at bottom just another theory . . . ." LEIBNIZ, SELECTIONS 48 (Philip P. Wiener ed., 1951). (I am grateful to Larry Solum for this reference.)
98. See RUDOLF CARNAP, THE LOGICAL STRUCTURE OF THE WORLD (Rolf A. George trans., 2d ed. 1967).
99. See, e.g., Carl G. Hempel, The Logical Analysis of Psychology, in READINGS IN PHILOSOPHY OF PSYCHOLOGY 14, 17-22 (Ned Block ed., 1980).
100. Heidegger is often wrongly construed that way in the legal literature. See, e.g., Thomas C. Grey, Holmes and Legal Pragmatism, 41 STAN. L. REV. 787, 801 (1989) ("Heidegger held that all beliefs presuppose prejudices - judgments already made, implicit in practice, prior to reflection, largely historical and collective in origin, tacitly accepted, and for the moment unquestioned."); Edward L. Rubin, On Beyond Truth: A Theory for Evaluating Legal Scholarship, 80 CAL. L. REV. 889, 898 n.20 (1992) (discussing "the Heideggerian notion that our pre-existing, historically developed beliefs structure the way we perceive the world"). What these authors describe sounds more like what Heidegger calls "fore-sight" rather than "fore-having" (the Background). HEIDEGGER, supra note 36, at 191. On these issues, see DREYFUS, supra note 34, at 198-201; Hubert Dreyfus, Holism and Hermeneutics, 34 REV. METAPHYSICS 3, 10-12 (1980).
101. Heidegger is often wrongly construed that way in the legal literature. See, e.g., Thomas C. Grey, Holmes and Legal Pragmatism, 41 STAN. L. REV. 787, 801 (1989) ("Heidegger held that all beliefs presuppose prejudices - judgments already made, implicit in practice, prior to reflection, largely historical and collective in origin, tacitly accepted, and for the moment unquestioned."); Edward L. Rubin, On Beyond Truth: A Theory for Evaluating Legal Scholarship, 80 CAL. L. REV. 889, 898 n.20 (1992) (discussing "the Heideggerian notion that our pre-existing, historically developed beliefs structure the way we perceive the world"). What these authors describe sounds more like what Heidegger calls "fore-sight" rather than "fore-having" (the Background). HEIDEGGER, supra note 36, at 191. On these issues, see DREYFUS, supra note 34, at 198-201; Hubert Dreyfus, Holism and Hermeneutics, 34 REV. METAPHYSICS 3, 10-12 (1980).
102. Heidegger is often wrongly construed that way in the legal literature. See, e.g., Thomas C. Grey, Holmes and Legal Pragmatism, 41 STAN. L. REV. 787, 801 (1989) ("Heidegger held that all beliefs presuppose prejudices - judgments already made, implicit in practice, prior to reflection, largely historical and collective in origin, tacitly accepted, and for the moment unquestioned."); Edward L. Rubin, On Beyond Truth: A Theory for Evaluating Legal Scholarship, 80 CAL. L. REV. 889, 898 n.20 (1992) (discussing "the Heideggerian notion that our pre-existing, historically developed beliefs structure the way we perceive the world"). What these authors describe sounds more like what Heidegger calls "fore-sight" rather than "fore-having" (the Background). HEIDEGGER, supra note 36, at 191. On these issues, see DREYFUS, supra note 34, at 198-201; Hubert Dreyfus, Holism and Hermeneutics, 34 REV. METAPHYSICS 3, 10-12 (1980).
103. DREYFUS, supra note 34, at 3.
104. HEIDEGGER, supra note 36, at 190.
105. Hubert Dreyfus suggests another nice illustration of the point. In commenting on Heidegger, he quotes approvingly the following illustrative observation by Bourdieu: [I]n all societies, children are particularly attentive to the gestures and postures which, in their eyes, express everything that goes to make an accomplished adult - a way of walking, a tilt of the head, facial expressions, ways of sitting and of using implements, always associated with a tone of voice, a style of speech, and (how could it be otherwise?) a certain subjective experience. PIERRE BOURDIEU, OUTLINE OF A THEORY OF PRACTICE 87 (1977), quoted in DREYFUS, supra note 34, at 17. According to Dreyfus, all of these characteristics - the way of walking, the tilt of the head, the facial expressions, etc. - in Bourdieu's view "add up to an interpretation of what it is to be a person." Id. Class differences are often made manifest in this way: custodial staff and sanitation workers, for example, tend to avert their eyes, and to proceed through their tasks as though they were invisible - often expressing surprise when they are greeted or acknowledged by members of the bourgeois classes. The latter, by contrast, often carry themselves with a constant expectation of recognition and a sense of weighty presence.
106. As Doug Laycock points out to me, a central problem in the law of sexual harassment is precisely the impossibility of codifying rules of conduct for those who either (a) lack any understanding of them at all, or (b) have inconsistent understandings of them.
107. HEIDEGGER, supra note 36, at 107.
108. PIERRE BOURDIEU, THE LOGIC OR PRACTICE 25 (Richard Nice trans., Polity Press 1990) (1980). Bourdieu's interests differ from Heidegger's in at least the following respect: Bourdieu wants to examine the theoretical knower, "the epistemological and social conditions" of his activity, to illuminate the conditions of possibility of theoretical knowledge. Id. But like Heidegger, he is motivated to undertake this inquiry precisely because he sees theoretical knowledge as missing out on the more primary mode of "practical" engagement with the social world. See id. at 26. Bourdieu's question is: What is it about theoretical knowledge and the theoretical knower that makes him miss the practical? See id. at 25-29. This question is suggested in Heidegger as well, see HEIDEGGER, supra note 36, at 76, but is worked out in more detail in BOURDIEU, supra.
109. BOURDIEU, supra note 68, at 12.
110. Id. at 14. Bourdieu specifically distinguishes the "two relations to the world, one theoretical, the other practical." Id.
111. Id. at 19.
112. See Gerald J. Postema, "Protestant" Interpretation and Social Practices, 6 LAW & PHIL. 283 (1987).
113. Id. at 302-03.
114. Id. at 313.
115. Id.
116. See, e.g., Scott Brewer, Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy, 109 HARV. L. REV. 923, 933, 951-52 (1996) (criticizing certain other theories of adjudication for failing to provide conceptual explication of judgments of "relevant similarity"). In Brewer's somewhat loaded terminology, see id. at 951-53, the position defended in this Article is both "mystical" and "skeptical": It both denies that we can give a theoretically explicit account of judgments of "relevance," though, at the same time, it does not suppose that arguments by analogy necessarily have much "rational force." Even Brewer, it bears noting, concedes to the "mystics" that "there is inevitably an uncodifiable imaginative moment in exemplary, analogical reasoning" (though he thinks, perhaps rightly, that this makes legal reasoning no worse off than "other areas of reasoning in whose rational force our intellectual culture has placed great confidence - namely, both the empirical and the demonstrative sciences"). Id. at 954. Later he speaks of the need for a "rule" that would provide a "patterned direction of attention" to the relevant features of a particular set of examples, but then never actually provides one. See id. at 973; cf. id. at 978 (argument by analogy requires, among other things, "making sense of patterns of characteristics"). Though he sheds much light on the logical form of analogical arguments, he never, as far as I can see, rebuts the mystic who thinks that we cannot have a "rational explication," id. at 1026, of judgments of relevance. Instead, he conflates the question of whether we can have an explicit theory of relevance judgments with the question of whether or not there are "significant rational constraints" on the process of analogizing or disanalogizing particular cases. See id. But because judgments of relevance are only part of the reasoning process that Brewer claims is rationally constrained (the process, as he puts it, of constructing analogy-warranting rules and analogy-warranting rationales), nothing he says shows that we can expect to have a theory of relevance judgments, even if analogical reasoning is not without all rational constraints. "[A] knowledge of the logical form of argument by analogy (a 'knowledge that') will not," he finally admits, "provide all the skills one needs to make or criticize such arguments effectively (a 'knowledge-how')." Id. at 1027. But this is to concede the point of the Heideggerian critique developed here.
117. Notice that the Heideggerian challenge is actually quite different from the superficially similar one posed by Stanley Fish in, e.g., Dennis Martinez and the Uses of Theory, 96 YALE L.J. 1773 (1987). While Heidegger's claim is that the mindless coping skills that are the foundation of intelligibility cannot be made explicit in the way "theory" contemplates, Fish's claim is that a theoretical reconstruction of the "tacit knowledge" (or coping skills) at the foundation of practice is neither necessary for participation in the practice, nor does it make a difference in the practice. See id. at 1774-90. In short, for Fish, "theory" is not useful (hence the title of his piece), while for Heidegger "theory" is not possible (whatever its use is or might be). This is not to deny that there are Heideggerian moments in Fish, as when he remarks, "Someone who looks with practice-informed eyes sees a field already organized in terms of perspicuous obligations, self-evidently authorized procedures, and obviously relevant pieces of evidence." Id. at 1788. The difference is that for Heidegger or Bourdieu the ultimate point is that at the foundation of this field of intelligibility are mindless coping skills that resist explicit articulation in propositional form, while for Fish the ultimate point is only that "practice-informed" eyes are enough, and theory makes no difference. The Fish critique would actually be more plausible if it were conjoined with the Heideggerian point; as it is, it invites easy rejoinders. See, e.g., Michael S. Moore, The Interpretive Turn in Modern Theory: A Turn for the Worse?, 41 STAN. L. REV. 871, 909-10 (1989) (distinguishing between process of discovery and process of justification, and noting that "theory" is concerned primarily with latter, while Fish's point speaks only to former); see also RICHARD A. WASSERSTROM, THE JUDICIAL DECISION: TOWARD A THEORY OF LEGAL JUSTIFICATION 25-36 (1961) (providing seminal jurisprudential discussion of distinction between processes of discovery and justification). I discuss at the end of this Article the consequences of the Heideggerian point for theories of justification (i.e., normative theories). See also Leiter, supra note 16.
118. Notice that the Heideggerian challenge is actually quite different from the superficially similar one posed by Stanley Fish in, e.g., Dennis Martinez and the Uses of Theory, 96 YALE L.J. 1773 (1987). While Heidegger's claim is that the mindless coping skills that are the foundation of intelligibility cannot be made explicit in the way "theory" contemplates, Fish's claim is that a theoretical reconstruction of the "tacit knowledge" (or coping skills) at the foundation of practice is neither necessary for participation in the practice, nor does it make a difference in the practice. See id. at 1774-90. In short, for Fish, "theory" is not useful (hence the title of his piece), while for Heidegger "theory" is not possible (whatever its use is or might be). This is not to deny that there are Heideggerian moments in Fish, as when he remarks, "Someone who looks with practice-informed eyes sees a field already organized in terms of perspicuous obligations, self-evidently authorized procedures, and obviously relevant pieces of evidence." Id. at 1788. The difference is that for Heidegger or Bourdieu the ultimate point is that at the foundation of this field of intelligibility are mindless coping skills that resist explicit articulation in propositional form, while for Fish the ultimate point is only that "practice-informed" eyes are enough, and theory makes no difference. The Fish critique would actually be more plausible if it were conjoined with the Heideggerian point; as it is, it invites easy rejoinders. See, e.g., Michael S. Moore, The Interpretive Turn in Modern Theory: A Turn for the Worse?, 41 STAN. L. REV. 871, 909-10 (1989) (distinguishing between process of discovery and process of justification, and noting that "theory" is concerned primarily with latter, while Fish's point speaks only to former); see also RICHARD A. WASSERSTROM, THE JUDICIAL DECISION: TOWARD A THEORY OF LEGAL JUSTIFICATION 25-36 (1961) (providing seminal jurisprudential discussion of distinction between processes of discovery and justification). I discuss at the end of this Article the consequences of the Heideggerian point for theories of justification (i.e., normative theories). See also Leiter, supra note 16.
119. Notice that the Heideggerian challenge is actually quite different from the superficially similar one posed by Stanley Fish in, e.g., Dennis Martinez and the Uses of Theory, 96 YALE L.J. 1773 (1987). While Heidegger's claim is that the mindless coping skills that are the foundation of intelligibility cannot be made explicit in the way "theory" contemplates, Fish's claim is that a theoretical reconstruction of the "tacit knowledge" (or coping skills) at the foundation of practice is neither necessary for participation in the practice, nor does it make a difference in the practice. See id. at 1774-90. In short, for Fish, "theory" is not useful (hence the title of his piece), while for Heidegger "theory" is not possible (whatever its use is or might be). This is not to deny that there are Heideggerian moments in Fish, as when he remarks, "Someone who looks with practice-informed eyes sees a field already organized in terms of perspicuous obligations, self-evidently authorized procedures, and obviously relevant pieces of evidence." Id. at 1788. The difference is that for Heidegger or Bourdieu the ultimate point is that at the foundation of this field of intelligibility are mindless coping skills that resist explicit articulation in propositional form, while for Fish the ultimate point is only that "practice-informed" eyes are enough, and theory makes no difference. The Fish critique would actually be more plausible if it were conjoined with the Heideggerian point; as it is, it invites easy rejoinders. See, e.g., Michael S. Moore, The Interpretive Turn in Modern Theory: A Turn for the Worse?, 41 STAN. L. REV. 871, 909-10 (1989) (distinguishing between process of discovery and process of justification, and noting that "theory" is concerned primarily with latter, while Fish's point speaks only to former); see also RICHARD A. WASSERSTROM, THE JUDICIAL DECISION: TOWARD A THEORY OF LEGAL JUSTIFICATION 25-36 (1961) (providing seminal jurisprudential discussion of distinction between processes of discovery and justification). I discuss at the end of this Article the consequences of the Heideggerian point for theories of justification (i.e., normative theories). See also Leiter, supra note 16.
120. See KARL N. LLEWELLYN, THE COMMON LAW TRADITION 121-57 (1960).
121. 469 U.S. 528 (1985).
122. 505 U.S. 144 (1992).
123. Id. at 202 (White, J., dissenting).
124. See id. at 161-62.
125. DREYFUS, supra note 34, at 257-58. As Jody Kraus has pointed out to me, the idea that there could be such a thing as "natural kinds" - i.e., things that are what they are independent of anyone's practical interests - does not seem consistent with the thrust of the interpretation of Heidegger that Dreyfus develops.
126. This should be understood as a point not about semantics per se, but rather about the conditions under which signs that have semantic value (strictly speaking) become culturally available and significant.
127. The situation is somewhat complicated by the fact that Garcia concerns a regulation of a city, San Antonio, while New York concerns a regulation of a state. Assuming we are suitably immersed in the relevant practices, however, we can see that the issue about the autonomy of local government (state or city) is relevantly similar, and that the regulations - though one is concerned with wages, the other with the disposal of radioactive wastes - are also relevantly similarly with respect to local autonomy.
128. Mackie, supra note 14, at 163.
129. Of course, it remains possible, and indeed likely, that we can still articulate norms for decisionmaking that speak to those aspects of judicial decision that are not coextensive with the Background competence. Such norms are also likely to be quite important.
130. If writers like Kent Greenawalt are correct, then there is, in fact, nothing distinctive about legal reasoning; that is, legal reasoning simply adopts methods of reasoning (e.g., reasoning by analogy, which is itself dependent upon relevance judgments) that are familiar from nonlegal life. See KENT GREENAWALT, LAW AND OBJECTIVITY 199 (1992) ("The major reasons in law are not distinctive to law. I cannot think of a characteristically legal reason that does not have a familiar analogue in common experience and judgment."). In that case, if Heidegger is right about the centrality of the Background to understanding in ordinary life, then he would be right a fortiori about understanding in law. At this point, the legal philosopher might wonder why this problem should be considered her problem? Part of the answer, of course, is that the legal philosopher seeks a theory of legal understanding.
131. See, e.g., ANTHONY T. KRONMAN, THE LOST LAWYER 209-25 (1993); Daniel A. Farber, The Inevitability of Practical Reason: Statutes, Formalism, and the Rule of Law, 45 VAND. L. REV. 533 (1992); Lawrence B. Solum, Comment, The Virtues and Vices of a Judge: An Aristotelian Guide to Judicial Selection, 61 S. CAL. L. REV. 1735 (1988). A number of these pieces take Llewellyn as representative of this line of thought. For a similar take on Llewellyn, but from a Wittgensteinian perspective, see Dennis M. Patterson, Law's Practice, 90 COLUM. L. REV. 575 (1990) (reviewing KARL N. LLEWELLYN, THE CASE LAW SYSTEM IN AMERICA (1989)). For a rather different, and more skeptical, view of the later Llewellyn, see Leiter, supra note 16, at 274.
132. See, e.g., ANTHONY T. KRONMAN, THE LOST LAWYER 209-25 (1993); Daniel A. Farber, The Inevitability of Practical Reason: Statutes, Formalism, and the Rule of Law, 45 VAND. L. REV. 533 (1992); Lawrence B. Solum, Comment, The Virtues and Vices of a Judge: An Aristotelian Guide to Judicial Selection, 61 S. CAL. L. REV. 1735 (1988). A number of these pieces take Llewellyn as representative of this line of thought. For a similar take on Llewellyn, but from a Wittgensteinian perspective, see Dennis M. Patterson, Law's Practice, 90 COLUM. L. REV. 575 (1990) (reviewing KARL N. LLEWELLYN, THE CASE LAW SYSTEM IN AMERICA (1989)). For a rather different, and more skeptical, view of the later Llewellyn, see Leiter, supra note 16, at 274.
133. See, e.g., ANTHONY T. KRONMAN, THE LOST LAWYER 209-25 (1993); Daniel A. Farber, The Inevitability of Practical Reason: Statutes, Formalism, and the Rule of Law, 45 VAND. L. REV. 533 (1992); Lawrence B. Solum, Comment, The Virtues and Vices of a Judge: An Aristotelian Guide to Judicial Selection, 61 S. CAL. L. REV. 1735 (1988). A number of these pieces take Llewellyn as representative of this line of thought. For a similar take on Llewellyn, but from a Wittgensteinian perspective, see Dennis M. Patterson, Law's Practice, 90 COLUM. L. REV. 575 (1990) (reviewing KARL N. LLEWELLYN, THE CASE LAW SYSTEM IN AMERICA (1989)). For a rather different, and more skeptical, view of the later Llewellyn, see Leiter, supra note 16, at 274.
134. See, e.g., ANTHONY T. KRONMAN, THE LOST LAWYER 209-25 (1993); Daniel A. Farber, The Inevitability of Practical Reason: Statutes, Formalism, and the Rule of Law, 45 VAND. L. REV. 533 (1992); Lawrence B. Solum, Comment, The Virtues and Vices of a Judge: An Aristotelian Guide to Judicial Selection, 61 S. CAL. L. REV. 1735 (1988). A number of these pieces take Llewellyn as representative of this line of thought. For a similar take on Llewellyn, but from a Wittgensteinian perspective, see Dennis M. Patterson, Law's Practice, 90 COLUM. L. REV. 575 (1990) (reviewing KARL N. LLEWELLYN, THE CASE LAW SYSTEM IN AMERICA (1989)). For a rather different, and more skeptical, view of the later Llewellyn, see Leiter, supra note 16, at 274.
135. See, e.g., ANTHONY T. KRONMAN, THE LOST LAWYER 209-25 (1993); Daniel A. Farber, The Inevitability of Practical Reason: Statutes, Formalism, and the Rule of Law, 45 VAND. L. REV. 533 (1992); Lawrence B. Solum, Comment, The Virtues and Vices of a Judge: An Aristotelian Guide to Judicial Selection, 61 S. CAL. L. REV. 1735 (1988). A number of these pieces take Llewellyn as representative of this line of thought. For a similar take on Llewellyn, but from a Wittgensteinian perspective, see Dennis M. Patterson, Law's Practice, 90 COLUM. L. REV. 575 (1990) (reviewing KARL N. LLEWELLYN, THE CASE LAW SYSTEM IN AMERICA (1989)). For a rather different, and more skeptical, view of the later Llewellyn, see Leiter, supra note 16, at 274.
136. John T. Noonan, Jr., Hercules and the Snail Darter, N.Y. TIMES, May 25, 1986, § 7, at 13; cf. KRONMAN, supra note 89, at 217 ("The habits that constrain a judge as he goes about his work are not the product of thought but of experience, and no amount of abstract theorizing can ever be a substitute for them, much less bring them into being in the first place.").
137. Thus, Farber says practical reasoning theorists reject the formalistic view "that rules and precedents in and of themselves dictate [via deduction] outcomes." Farber, supra note 89, at 539 (emphasis added). It is doubtful, though, that anyone since Blackstone has held this precise view (and perhaps not even Blackstone).
138. Id. at 533; see also id. at 542 ("If practical reason is only a vague description of how judges should decide cases, it seemingly provides no method to criticize their decisions. Nor does it provide any constraint on outcomes, but leaves judges free to impose their own social values at the expense of the legislatures.").
139. Id. at 540.
140. Id. at 554.
141. Id. at 541; see also William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 STAN. L. REV. 321, 352 (1990) (arguing that legal interpretation involves utilizing broad range of evidence, none of which is necessarily dispositive).
142. Farber, supra note 89, at 554. Notice Farber's assumption that throwing a ball is a cognitive skill.
143. Richard A. Epstein, Common Law, Labor Law, and Reality: A Rejoinder to Professors Getman and Kohler, 92 YALE L.J. 1435, 1435 (1983).
144. I do not mean to deny here the Duhem-Quine thesis about the underdetermination of theories by evidence, or Quine's closely related doctrine that no theoretical statement is immune from revision. Recalcitrant data can always be accommodated if we are willing to make substantial enough adjustments in our background theoretical assumptions. But this subtle point growing out of the epistemology of science is not Epstein's. Epstein asserts that one cannot displace a theoretical edifice simply by adducing evidence inconsistent with the claims of the theory. It is, of course, easy to understand why free market utopians like Epstein would find such a doctrine attractive: It precludes taking into account the actual reality of, for example, labor relations under capitalism. This is precisely what Julius G. Getman and Thomas C. Kohler point out, see Julius G. Getman & Thomas C. Kohler, The Common Law, Labor Law, and Reality: A Response to Professor Epstein, 92 YALE L.J. 1415, 1416-17, 1427-33 (1983), to which Epstein responds, see Epstein, supra note 97. Epstein claims that, according to economic theory, an essentially nineteenth-century legal regime in labor relations will promote liberty and autonomy. Getman and Kohler point out that historical evidence shows this is not so. Epstein replies, in essence, "Economic theory says it ought to be so, and unless you have a better theory, it is so." See Epstein, supra note 97, at 143-51. As an epistemological precept, this is so bizarre as to defy characterization, but it is certainly not a posture that finds any support from Quine or Duhem. For a discussion of the generally poor predictive record of economics, as well as a skilled philosophical exploration of why this might be so, see ALEXANDER ROSENBERG, ECONOMICS - MATHEMATICAL POLITICS OR SCIENCE OF DIMINISHING RETURNS? (1992).
145. I do not mean to deny here the Duhem-Quine thesis about the underdetermination of theories by evidence, or Quine's closely related doctrine that no theoretical statement is immune from revision. Recalcitrant data can always be accommodated if we are willing to make substantial enough adjustments in our background theoretical assumptions. But this subtle point growing out of the epistemology of science is not Epstein's. Epstein asserts that one cannot displace a theoretical edifice simply by adducing evidence inconsistent with the claims of the theory. It is, of course, easy to understand why free market utopians like Epstein would find such a doctrine attractive: It precludes taking into account the actual reality of, for example, labor relations under capitalism. This is precisely what Julius G. Getman and Thomas C. Kohler point out, see Julius G. Getman & Thomas C. Kohler, The Common Law, Labor Law, and Reality: A Response to Professor Epstein, 92 YALE L.J. 1415, 1416-17, 1427-33 (1983), to which Epstein responds, see Epstein, supra note 97. Epstein claims that, according to economic theory, an essentially nineteenth-century legal regime in labor relations will promote liberty and autonomy. Getman and Kohler point out that historical evidence shows this is not so. Epstein replies, in essence, "Economic theory says it ought to be so, and unless you have a better theory, it is so." See Epstein, supra note 97, at 143-51. As an epistemological precept, this is so bizarre as to defy characterization, but it is certainly not a posture that finds any support from Quine or Duhem. For a discussion of the generally poor predictive record of economics, as well as a skilled philosophical exploration of why this might be so, see ALEXANDER ROSENBERG, ECONOMICS - MATHEMATICAL POLITICS OR SCIENCE OF DIMINISHING RETURNS? (1992).
146. See, e.g., Farber, supra note 89, at 543-49.
147. See STEPHEN SCHIFFER, REMNANTS OF MEANING 265 (1987).
148. KRONMAN, supra note 89, at 223.
149. Id. at 219. Compare Michael Tigar's related observation, analogizing trial lawyers to cooks: "With a recipe, you can cook something. With theory, techniques, and skill - informed by experience - you can call yourself a cook." MICHAEL E. TIGAR, EXAMINING WITNESSES xi (1993).
150. Recall that for Heidegger, the Background forms the horizon of intelligibility, meaning that it enables as well as delimits the sphere of understanding.
151. KRONMAN, supra note 89, at 224.
152. See, e.g., id. at 225.
153. See supra note 83 and accompanying text.
154. See supra note 23.
155. See DWORKIN, supra note 7; DWORKIN, supra note 18.
156. I develop these arguments in a paper I am now writing, Objectivity, Morality and Adjudication, in OBJECTIVITY IN LAW AND MORALS (Brian Leiter ed., forthcoming 1998). For related considerations, see Mackie, supra note 14.
157. I will explore these in LEITER, supra note 3; see also Brian Leiter, Legal Indeterminacy, 1 LEGAL THEORY 481 (1995).
158. See Brian Leiter, Rethinking Legal Realism: Toward a Naturalized Jurisprudence (Aug. 23, 1996) (unpublished manuscript, on file with the Yale Law Journal).
159. This is a play on the title of THE LINGUISTIC TURN (Richard Rorty ed., 1967). Heidegger would not advocate "naturalism," though for reasons that are tangential to my concerns here.