Some puzzles about the objectivity of law

Law and Philosophy

Volumn 23, Issue 3, 2004, Pages 273-323

  Rosati, Connie S ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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[No Author keywords available]

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EID: 4143121226     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.1023/B:LAPH.0000014571.10545.6e     Document Type: Review

References (181)

1. These defenses vary widely, of course, adopting different views of objectivity in general and of legal objectivity in particular. See, e.g., Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986), and "Objectivity and Truth: You'd Better Believe It", Philosophy and Public Affairs 25 (1996), pp. 87-139; Kent Greenawalt, Law and Objectivity (New York: Oxford University Press, 1992); Michael Moore, "Moral Reality Revisited", Michigan Law Review 90 (1992), p. 2424 and "A Natural Law Theory of Interpretation", Southern California Law Review 58 (1985), p. 279; Jules Coleman and Brian Leiter, "Determinacy, Objectivity, and Authority", University of Pennsylvania Law Review 142 (1993), p. 549, reprinted in Andrei Marmor (ed.), Law and Interpretation: Essays in Legal Philosophy (Oxford: Oxford University Press, 1995); Nicos Stavropoulos, Objectivity in Law (Oxford: Clarendon Press, 1996); Hilary Putnam, "Are Moral and Legal Values Made or Discovered?" and "Reply to Brian Leiter", Legal Theory 1 (1995), pp. 5-19 and 69-80; Jules Coleman, "Truth and Objectivity in Law", Legal Theory 1 (1995), pp. 33-68; Brian Leiter, "Objectivity and the Problems of Jurisprudence", Texas Law Review 72 (1993), p. 187, "Rethinking Legal Realism: Toward a Naturalized Jurisprudence", Texas Law Review 76 (1997), p. 267 "The Middle Way", Legal Theory 1 (1995), pp. 21-31, "Legal Indeterminacy", Legal Theory 1 (1995), pp. 482-492, and "Objectivity, Morality and Adjudication", in Brian Leiter (ed.), Objectivity in Law and Morals (New York: Cambridge University Press, 2001), pp. 66-98; David O. Brink, "Legal Theory, Legal Interpretation, and Judicial Review", Philosophy and Public Affairs 17(1988), pp. 105-148, and "Legal Interpretation, Objectivity, and Morality", in Objectivity in Law and Morals, pp. 12-65; and Heidi Li Feldman, "Objectivity in Legal Judgment", Michigan Law Review 92 (1994), p. 1187. See also, Andrei Marmor, Positive Law and Objective Values (Oxford: Clarendon Press, 2001). For an extensive bibliography, see Objectivity in Law and Morals, pp. 331-349.
2. These defenses vary widely, of course, adopting different views of objectivity in general and of legal objectivity in particular. See, e.g., Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986), and "Objectivity and Truth: You'd Better Believe It", Philosophy and Public Affairs 25 (1996), pp. 87-139; Kent Greenawalt, Law and Objectivity (New York: Oxford University Press, 1992); Michael Moore, "Moral Reality Revisited", Michigan Law Review 90 (1992), p. 2424 and "A Natural Law Theory of Interpretation", Southern California Law Review 58 (1985), p. 279; Jules Coleman and Brian Leiter, "Determinacy, Objectivity, and Authority", University of Pennsylvania Law Review 142 (1993), p. 549, reprinted in Andrei Marmor (ed.), Law and Interpretation: Essays in Legal Philosophy (Oxford: Oxford University Press, 1995); Nicos Stavropoulos, Objectivity in Law (Oxford: Clarendon Press, 1996); Hilary Putnam, "Are Moral and Legal Values Made or Discovered?" and "Reply to Brian Leiter", Legal Theory 1 (1995), pp. 5-19 and 69-80; Jules Coleman, "Truth and Objectivity in Law", Legal Theory 1 (1995), pp. 33-68; Brian Leiter, "Objectivity and the Problems of Jurisprudence", Texas Law Review 72 (1993), p. 187, "Rethinking Legal Realism: Toward a Naturalized Jurisprudence", Texas Law Review 76 (1997), p. 267 "The Middle Way", Legal Theory 1 (1995), pp. 21-31, "Legal Indeterminacy", Legal Theory 1 (1995), pp. 482-492, and "Objectivity, Morality and Adjudication", in Brian Leiter (ed.), Objectivity in Law and Morals (New York: Cambridge University Press, 2001), pp. 66-98; David O. Brink, "Legal Theory, Legal Interpretation, and Judicial Review", Philosophy and Public Affairs 17(1988), pp. 105-148, and "Legal Interpretation, Objectivity, and Morality", in Objectivity in Law and Morals, pp. 12-65; and Heidi Li Feldman, "Objectivity in Legal Judgment", Michigan Law Review 92 (1994), p. 1187. See also, Andrei Marmor, Positive Law and Objective Values (Oxford: Clarendon Press, 2001). For an extensive bibliography, see Objectivity in Law and Morals, pp. 331-349.
3. These defenses vary widely, of course, adopting different views of objectivity in general and of legal objectivity in particular. See, e.g., Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986), and "Objectivity and Truth: You'd Better Believe It", Philosophy and Public Affairs 25 (1996), pp. 87-139; Kent Greenawalt, Law and Objectivity (New York: Oxford University Press, 1992); Michael Moore, "Moral Reality Revisited", Michigan Law Review 90 (1992), p. 2424 and "A Natural Law Theory of Interpretation", Southern California Law Review 58 (1985), p. 279; Jules Coleman and Brian Leiter, "Determinacy, Objectivity, and Authority", University of Pennsylvania Law Review 142 (1993), p. 549, reprinted in Andrei Marmor (ed.), Law and Interpretation: Essays in Legal Philosophy (Oxford: Oxford University Press, 1995); Nicos Stavropoulos, Objectivity in Law (Oxford: Clarendon Press, 1996); Hilary Putnam, "Are Moral and Legal Values Made or Discovered?" and "Reply to Brian Leiter", Legal Theory 1 (1995), pp. 5-19 and 69-80; Jules Coleman, "Truth and Objectivity in Law", Legal Theory 1 (1995), pp. 33-68; Brian Leiter, "Objectivity and the Problems of Jurisprudence", Texas Law Review 72 (1993), p. 187, "Rethinking Legal Realism: Toward a Naturalized Jurisprudence", Texas Law Review 76 (1997), p. 267 "The Middle Way", Legal Theory 1 (1995), pp. 21-31, "Legal Indeterminacy", Legal Theory 1 (1995), pp. 482-492, and "Objectivity, Morality and Adjudication", in Brian Leiter (ed.), Objectivity in Law and Morals (New York: Cambridge University Press, 2001), pp. 66-98; David O. Brink, "Legal Theory, Legal Interpretation, and Judicial Review", Philosophy and Public Affairs 17(1988), pp. 105-148, and "Legal Interpretation, Objectivity, and Morality", in Objectivity in Law and Morals, pp. 12-65; and Heidi Li Feldman, "Objectivity in Legal Judgment", Michigan Law Review 92 (1994), p. 1187. See also, Andrei Marmor, Positive Law and Objective Values (Oxford: Clarendon Press, 2001). For an extensive bibliography, see Objectivity in Law and Morals, pp. 331-349.
4. These defenses vary widely, of course, adopting different views of objectivity in general and of legal objectivity in particular. See, e.g., Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986), and "Objectivity and Truth: You'd Better Believe It", Philosophy and Public Affairs 25 (1996), pp. 87-139; Kent Greenawalt, Law and Objectivity (New York: Oxford University Press, 1992); Michael Moore, "Moral Reality Revisited", Michigan Law Review 90 (1992), p. 2424 and "A Natural Law Theory of Interpretation", Southern California Law Review 58 (1985), p. 279; Jules Coleman and Brian Leiter, "Determinacy, Objectivity, and Authority", University of Pennsylvania Law Review 142 (1993), p. 549, reprinted in Andrei Marmor (ed.), Law and Interpretation: Essays in Legal Philosophy (Oxford: Oxford University Press, 1995); Nicos Stavropoulos, Objectivity in Law (Oxford: Clarendon Press, 1996); Hilary Putnam, "Are Moral and Legal Values Made or Discovered?" and "Reply to Brian Leiter", Legal Theory 1 (1995), pp. 5-19 and 69-80; Jules Coleman, "Truth and Objectivity in Law", Legal Theory 1 (1995), pp. 33-68; Brian Leiter, "Objectivity and the Problems of Jurisprudence", Texas Law Review 72 (1993), p. 187, "Rethinking Legal Realism: Toward a Naturalized Jurisprudence", Texas Law Review 76 (1997), p. 267 "The Middle Way", Legal Theory 1 (1995), pp. 21-31, "Legal Indeterminacy", Legal Theory 1 (1995), pp. 482-492, and "Objectivity, Morality and Adjudication", in Brian Leiter (ed.), Objectivity in Law and Morals (New York: Cambridge University Press, 2001), pp. 66-98; David O. Brink, "Legal Theory, Legal Interpretation, and Judicial Review", Philosophy and Public Affairs 17(1988), pp. 105-148, and "Legal Interpretation, Objectivity, and Morality", in Objectivity in Law and Morals, pp. 12-65; and Heidi Li Feldman, "Objectivity in Legal Judgment", Michigan Law Review 92 (1994), p. 1187. See also, Andrei Marmor, Positive Law and Objective Values (Oxford: Clarendon Press, 2001). For an extensive bibliography, see Objectivity in Law and Morals, pp. 331-349.
5. These defenses vary widely, of course, adopting different views of objectivity in general and of legal objectivity in particular. See, e.g., Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986), and "Objectivity and Truth: You'd Better Believe It", Philosophy and Public Affairs 25 (1996), pp. 87-139; Kent Greenawalt, Law and Objectivity (New York: Oxford University Press, 1992); Michael Moore, "Moral Reality Revisited", Michigan Law Review 90 (1992), p. 2424 and "A Natural Law Theory of Interpretation", Southern California Law Review 58 (1985), p. 279; Jules Coleman and Brian Leiter, "Determinacy, Objectivity, and Authority", University of Pennsylvania Law Review 142 (1993), p. 549, reprinted in Andrei Marmor (ed.), Law and Interpretation: Essays in Legal Philosophy (Oxford: Oxford University Press, 1995); Nicos Stavropoulos, Objectivity in Law (Oxford: Clarendon Press, 1996); Hilary Putnam, "Are Moral and Legal Values Made or Discovered?" and "Reply to Brian Leiter", Legal Theory 1 (1995), pp. 5-19 and 69-80; Jules Coleman, "Truth and Objectivity in Law", Legal Theory 1 (1995), pp. 33-68; Brian Leiter, "Objectivity and the Problems of Jurisprudence", Texas Law Review 72 (1993), p. 187, "Rethinking Legal Realism: Toward a Naturalized Jurisprudence", Texas Law Review 76 (1997), p. 267 "The Middle Way", Legal Theory 1 (1995), pp. 21-31, "Legal Indeterminacy", Legal Theory 1 (1995), pp. 482-492, and "Objectivity, Morality and Adjudication", in Brian Leiter (ed.), Objectivity in Law and Morals (New York: Cambridge University Press, 2001), pp. 66-98; David O. Brink, "Legal Theory, Legal Interpretation, and Judicial Review", Philosophy and Public Affairs 17(1988), pp. 105-148, and "Legal Interpretation, Objectivity, and Morality", in Objectivity in Law and Morals, pp. 12-65; and Heidi Li Feldman, "Objectivity in Legal Judgment", Michigan Law Review 92 (1994), p. 1187. See also, Andrei Marmor, Positive Law and Objective Values (Oxford: Clarendon Press, 2001). For an extensive bibliography, see Objectivity in Law and Morals, pp. 331-349.
6. These defenses vary widely, of course, adopting different views of objectivity in general and of legal objectivity in particular. See, e.g., Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986), and "Objectivity and Truth: You'd Better Believe It", Philosophy and Public Affairs 25 (1996), pp. 87-139; Kent Greenawalt, Law and Objectivity (New York: Oxford University Press, 1992); Michael Moore, "Moral Reality Revisited", Michigan Law Review 90 (1992), p. 2424 and "A Natural Law Theory of Interpretation", Southern California Law Review 58 (1985), p. 279; Jules Coleman and Brian Leiter, "Determinacy, Objectivity, and Authority", University of Pennsylvania Law Review 142 (1993), p. 549, reprinted in Andrei Marmor (ed.), Law and Interpretation: Essays in Legal Philosophy (Oxford: Oxford University Press, 1995); Nicos Stavropoulos, Objectivity in Law (Oxford: Clarendon Press, 1996); Hilary Putnam, "Are Moral and Legal Values Made or Discovered?" and "Reply to Brian Leiter", Legal Theory 1 (1995), pp. 5-19 and 69-80; Jules Coleman, "Truth and Objectivity in Law", Legal Theory 1 (1995), pp. 33-68; Brian Leiter, "Objectivity and the Problems of Jurisprudence", Texas Law Review 72 (1993), p. 187, "Rethinking Legal Realism: Toward a Naturalized Jurisprudence", Texas Law Review 76 (1997), p. 267 "The Middle Way", Legal Theory 1 (1995), pp. 21-31, "Legal Indeterminacy", Legal Theory 1 (1995), pp. 482-492, and "Objectivity, Morality and Adjudication", in Brian Leiter (ed.), Objectivity in Law and Morals (New York: Cambridge University Press, 2001), pp. 66-98; David O. Brink, "Legal Theory, Legal Interpretation, and Judicial Review", Philosophy and Public Affairs 17(1988), pp. 105-148, and "Legal Interpretation, Objectivity, and Morality", in Objectivity in Law and Morals, pp. 12-65; and Heidi Li Feldman, "Objectivity in Legal Judgment", Michigan Law Review 92 (1994), p. 1187. See also, Andrei Marmor, Positive Law and Objective Values (Oxford: Clarendon Press, 2001). For an extensive bibliography, see Objectivity in Law and Morals, pp. 331-349.
7. These defenses vary widely, of course, adopting different views of objectivity in general and of legal objectivity in particular. See, e.g., Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986), and "Objectivity and Truth: You'd Better Believe It", Philosophy and Public Affairs 25 (1996), pp. 87-139; Kent Greenawalt, Law and Objectivity (New York: Oxford University Press, 1992); Michael Moore, "Moral Reality Revisited", Michigan Law Review 90 (1992), p. 2424 and "A Natural Law Theory of Interpretation", Southern California Law Review 58 (1985), p. 279; Jules Coleman and Brian Leiter, "Determinacy, Objectivity, and Authority", University of Pennsylvania Law Review 142 (1993), p. 549, reprinted in Andrei Marmor (ed.), Law and Interpretation: Essays in Legal Philosophy (Oxford: Oxford University Press, 1995); Nicos Stavropoulos, Objectivity in Law (Oxford: Clarendon Press, 1996); Hilary Putnam, "Are Moral and Legal Values Made or Discovered?" and "Reply to Brian Leiter", Legal Theory 1 (1995), pp. 5-19 and 69-80; Jules Coleman, "Truth and Objectivity in Law", Legal Theory 1 (1995), pp. 33-68; Brian Leiter, "Objectivity and the Problems of Jurisprudence", Texas Law Review 72 (1993), p. 187, "Rethinking Legal Realism: Toward a Naturalized Jurisprudence", Texas Law Review 76 (1997), p. 267 "The Middle Way", Legal Theory 1 (1995), pp. 21-31, "Legal Indeterminacy", Legal Theory 1 (1995), pp. 482-492, and "Objectivity, Morality and Adjudication", in Brian Leiter (ed.), Objectivity in Law and Morals (New York: Cambridge University Press, 2001), pp. 66-98; David O. Brink, "Legal Theory, Legal Interpretation, and Judicial Review", Philosophy and Public Affairs 17(1988), pp. 105-148, and "Legal Interpretation, Objectivity, and Morality", in Objectivity in Law and Morals, pp. 12-65; and Heidi Li Feldman, "Objectivity in Legal Judgment", Michigan Law Review 92 (1994), p. 1187. See also, Andrei Marmor, Positive Law and Objective Values (Oxford: Clarendon Press, 2001). For an extensive bibliography, see Objectivity in Law and Morals, pp. 331-349.
8. These defenses vary widely, of course, adopting different views of objectivity in general and of legal objectivity in particular. See, e.g., Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986), and "Objectivity and Truth: You'd Better Believe It", Philosophy and Public Affairs 25 (1996), pp. 87-139; Kent Greenawalt, Law and Objectivity (New York: Oxford University Press, 1992); Michael Moore, "Moral Reality Revisited", Michigan Law Review 90 (1992), p. 2424 and "A Natural Law Theory of Interpretation", Southern California Law Review 58 (1985), p. 279; Jules Coleman and Brian Leiter, "Determinacy, Objectivity, and Authority", University of Pennsylvania Law Review 142 (1993), p. 549, reprinted in Andrei Marmor (ed.), Law and Interpretation: Essays in Legal Philosophy (Oxford: Oxford University Press, 1995); Nicos Stavropoulos, Objectivity in Law (Oxford: Clarendon Press, 1996); Hilary Putnam, "Are Moral and Legal Values Made or Discovered?" and "Reply to Brian Leiter", Legal Theory 1 (1995), pp. 5-19 and 69-80; Jules Coleman, "Truth and Objectivity in Law", Legal Theory 1 (1995), pp. 33-68; Brian Leiter, "Objectivity and the Problems of Jurisprudence", Texas Law Review 72 (1993), p. 187, "Rethinking Legal Realism: Toward a Naturalized Jurisprudence", Texas Law Review 76 (1997), p. 267 "The Middle Way", Legal Theory 1 (1995), pp. 21-31, "Legal Indeterminacy", Legal Theory 1 (1995), pp. 482-492, and "Objectivity, Morality and Adjudication", in Brian Leiter (ed.), Objectivity in Law and Morals (New York: Cambridge University Press, 2001), pp. 66-98; David O. Brink, "Legal Theory, Legal Interpretation, and Judicial Review", Philosophy and Public Affairs 17(1988), pp. 105-148, and "Legal Interpretation, Objectivity, and Morality", in Objectivity in Law and Morals, pp. 12-65; and Heidi Li Feldman, "Objectivity in Legal Judgment", Michigan Law Review 92 (1994), p. 1187. See also, Andrei Marmor, Positive Law and Objective Values (Oxford: Clarendon Press, 2001). For an extensive bibliography, see Objectivity in Law and Morals, pp. 331-349.
9. These defenses vary widely, of course, adopting different views of objectivity in general and of legal objectivity in particular. See, e.g., Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986), and "Objectivity and Truth: You'd Better Believe It", Philosophy and Public Affairs 25 (1996), pp. 87-139; Kent Greenawalt, Law and Objectivity (New York: Oxford University Press, 1992); Michael Moore, "Moral Reality Revisited", Michigan Law Review 90 (1992), p. 2424 and "A Natural Law Theory of Interpretation", Southern California Law Review 58 (1985), p. 279; Jules Coleman and Brian Leiter, "Determinacy, Objectivity, and Authority", University of Pennsylvania Law Review 142 (1993), p. 549, reprinted in Andrei Marmor (ed.), Law and Interpretation: Essays in Legal Philosophy (Oxford: Oxford University Press, 1995); Nicos Stavropoulos, Objectivity in Law (Oxford: Clarendon Press, 1996); Hilary Putnam, "Are Moral and Legal Values Made or Discovered?" and "Reply to Brian Leiter", Legal Theory 1 (1995), pp. 5-19 and 69-80; Jules Coleman, "Truth and Objectivity in Law", Legal Theory 1 (1995), pp. 33-68; Brian Leiter, "Objectivity and the Problems of Jurisprudence", Texas Law Review 72 (1993), p. 187, "Rethinking Legal Realism: Toward a Naturalized Jurisprudence", Texas Law Review 76 (1997), p. 267 "The Middle Way", Legal Theory 1 (1995), pp. 21-31, "Legal Indeterminacy", Legal Theory 1 (1995), pp. 482-492, and "Objectivity, Morality and Adjudication", in Brian Leiter (ed.), Objectivity in Law and Morals (New York: Cambridge University Press, 2001), pp. 66-98; David O. Brink, "Legal Theory, Legal Interpretation, and Judicial Review", Philosophy and Public Affairs 17(1988), pp. 105-148, and "Legal Interpretation, Objectivity, and Morality", in Objectivity in Law and Morals, pp. 12-65; and Heidi Li Feldman, "Objectivity in Legal Judgment", Michigan Law Review 92 (1994), p. 1187. See also, Andrei Marmor, Positive Law and Objective Values (Oxford: Clarendon Press, 2001). For an extensive bibliography, see Objectivity in Law and Morals, pp. 331-349.
10. These defenses vary widely, of course, adopting different views of objectivity in general and of legal objectivity in particular. See, e.g., Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986), and "Objectivity and Truth: You'd Better Believe It", Philosophy and Public Affairs 25 (1996), pp. 87-139; Kent Greenawalt, Law and Objectivity (New York: Oxford University Press, 1992); Michael Moore, "Moral Reality Revisited", Michigan Law Review 90 (1992), p. 2424 and "A Natural Law Theory of Interpretation", Southern California Law Review 58 (1985), p. 279; Jules Coleman and Brian Leiter, "Determinacy, Objectivity, and Authority", University of Pennsylvania Law Review 142 (1993), p. 549, reprinted in Andrei Marmor (ed.), Law and Interpretation: Essays in Legal Philosophy (Oxford: Oxford University Press, 1995); Nicos Stavropoulos, Objectivity in Law (Oxford: Clarendon Press, 1996); Hilary Putnam, "Are Moral and Legal Values Made or Discovered?" and "Reply to Brian Leiter", Legal Theory 1 (1995), pp. 5-19 and 69-80; Jules Coleman, "Truth and Objectivity in Law", Legal Theory 1 (1995), pp. 33-68; Brian Leiter, "Objectivity and the Problems of Jurisprudence", Texas Law Review 72 (1993), p. 187, "Rethinking Legal Realism: Toward a Naturalized Jurisprudence", Texas Law Review 76 (1997), p. 267 "The Middle Way", Legal Theory 1 (1995), pp. 21-31, "Legal Indeterminacy", Legal Theory 1 (1995), pp. 482-492, and "Objectivity, Morality and Adjudication", in Brian Leiter (ed.), Objectivity in Law and Morals (New York: Cambridge University Press, 2001), pp. 66-98; David O. Brink, "Legal Theory, Legal Interpretation, and Judicial Review", Philosophy and Public Affairs 17(1988), pp. 105-148, and "Legal Interpretation, Objectivity, and Morality", in Objectivity in Law and Morals, pp. 12-65; and Heidi Li Feldman, "Objectivity in Legal Judgment", Michigan Law Review 92 (1994), p. 1187. See also, Andrei Marmor, Positive Law and Objective Values (Oxford: Clarendon Press, 2001). For an extensive bibliography, see Objectivity in Law and Morals, pp. 331-349.
11. These defenses vary widely, of course, adopting different views of objectivity in general and of legal objectivity in particular. See, e.g., Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986), and "Objectivity and Truth: You'd Better Believe It", Philosophy and Public Affairs 25 (1996), pp. 87-139; Kent Greenawalt, Law and Objectivity (New York: Oxford University Press, 1992); Michael Moore, "Moral Reality Revisited", Michigan Law Review 90 (1992), p. 2424 and "A Natural Law Theory of Interpretation", Southern California Law Review 58 (1985), p. 279; Jules Coleman and Brian Leiter, "Determinacy, Objectivity, and Authority", University of Pennsylvania Law Review 142 (1993), p. 549, reprinted in Andrei Marmor (ed.), Law and Interpretation: Essays in Legal Philosophy (Oxford: Oxford University Press, 1995); Nicos Stavropoulos, Objectivity in Law (Oxford: Clarendon Press, 1996); Hilary Putnam, "Are Moral and Legal Values Made or Discovered?" and "Reply to Brian Leiter", Legal Theory 1 (1995), pp. 5-19 and 69-80; Jules Coleman, "Truth and Objectivity in Law", Legal Theory 1 (1995), pp. 33-68; Brian Leiter, "Objectivity and the Problems of Jurisprudence", Texas Law Review 72 (1993), p. 187, "Rethinking Legal Realism: Toward a Naturalized Jurisprudence", Texas Law Review 76 (1997), p. 267 "The Middle Way", Legal Theory 1 (1995), pp. 21-31, "Legal Indeterminacy", Legal Theory 1 (1995), pp. 482-492, and "Objectivity, Morality and Adjudication", in Brian Leiter (ed.), Objectivity in Law and Morals (New York: Cambridge University Press, 2001), pp. 66-98; David O. Brink, "Legal Theory, Legal Interpretation, and Judicial Review", Philosophy and Public Affairs 17(1988), pp. 105-148, and "Legal Interpretation, Objectivity, and Morality", in Objectivity in Law and Morals, pp. 12-65; and Heidi Li Feldman, "Objectivity in Legal Judgment", Michigan Law Review 92 (1994), p. 1187. See also, Andrei Marmor, Positive Law and Objective Values (Oxford: Clarendon Press, 2001). For an extensive bibliography, see Objectivity in Law and Morals, pp. 331-349.
12. These defenses vary widely, of course, adopting different views of objectivity in general and of legal objectivity in particular. See, e.g., Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986), and "Objectivity and Truth: You'd Better Believe It", Philosophy and Public Affairs 25 (1996), pp. 87-139; Kent Greenawalt, Law and Objectivity (New York: Oxford University Press, 1992); Michael Moore, "Moral Reality Revisited", Michigan Law Review 90 (1992), p. 2424 and "A Natural Law Theory of Interpretation", Southern California Law Review 58 (1985), p. 279; Jules Coleman and Brian Leiter, "Determinacy, Objectivity, and Authority", University of Pennsylvania Law Review 142 (1993), p. 549, reprinted in Andrei Marmor (ed.), Law and Interpretation: Essays in Legal Philosophy (Oxford: Oxford University Press, 1995); Nicos Stavropoulos, Objectivity in Law (Oxford: Clarendon Press, 1996); Hilary Putnam, "Are Moral and Legal Values Made or Discovered?" and "Reply to Brian Leiter", Legal Theory 1 (1995), pp. 5-19 and 69-80; Jules Coleman, "Truth and Objectivity in Law", Legal Theory 1 (1995), pp. 33-68; Brian Leiter, "Objectivity and the Problems of Jurisprudence", Texas Law Review 72 (1993), p. 187, "Rethinking Legal Realism: Toward a Naturalized Jurisprudence", Texas Law Review 76 (1997), p. 267 "The Middle Way", Legal Theory 1 (1995), pp. 21-31, "Legal Indeterminacy", Legal Theory 1 (1995), pp. 482-492, and "Objectivity, Morality and Adjudication", in Brian Leiter (ed.), Objectivity in Law and Morals (New York: Cambridge University Press, 2001), pp. 66-98; David O. Brink, "Legal Theory, Legal Interpretation, and Judicial Review", Philosophy and Public Affairs 17(1988), pp. 105-148, and "Legal Interpretation, Objectivity, and Morality", in Objectivity in Law and Morals, pp. 12-65; and Heidi Li Feldman, "Objectivity in Legal Judgment", Michigan Law Review 92 (1994), p. 1187. See also, Andrei Marmor, Positive Law and Objective Values (Oxford: Clarendon Press, 2001). For an extensive bibliography, see Objectivity in Law and Morals, pp. 331-349.
13. These defenses vary widely, of course, adopting different views of objectivity in general and of legal objectivity in particular. See, e.g., Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986), and "Objectivity and Truth: You'd Better Believe It", Philosophy and Public Affairs 25 (1996), pp. 87-139; Kent Greenawalt, Law and Objectivity (New York: Oxford University Press, 1992); Michael Moore, "Moral Reality Revisited", Michigan Law Review 90 (1992), p. 2424 and "A Natural Law Theory of Interpretation", Southern California Law Review 58 (1985), p. 279; Jules Coleman and Brian Leiter, "Determinacy, Objectivity, and Authority", University of Pennsylvania Law Review 142 (1993), p. 549, reprinted in Andrei Marmor (ed.), Law and Interpretation: Essays in Legal Philosophy (Oxford: Oxford University Press, 1995); Nicos Stavropoulos, Objectivity in Law (Oxford: Clarendon Press, 1996); Hilary Putnam, "Are Moral and Legal Values Made or Discovered?" and "Reply to Brian Leiter", Legal Theory 1 (1995), pp. 5-19 and 69-80; Jules Coleman, "Truth and Objectivity in Law", Legal Theory 1 (1995), pp. 33-68; Brian Leiter, "Objectivity and the Problems of Jurisprudence", Texas Law Review 72 (1993), p. 187, "Rethinking Legal Realism: Toward a Naturalized Jurisprudence", Texas Law Review 76 (1997), p. 267 "The Middle Way", Legal Theory 1 (1995), pp. 21-31, "Legal Indeterminacy", Legal Theory 1 (1995), pp. 482-492, and "Objectivity, Morality and Adjudication", in Brian Leiter (ed.), Objectivity in Law and Morals (New York: Cambridge University Press, 2001), pp. 66-98; David O. Brink, "Legal Theory, Legal Interpretation, and Judicial Review", Philosophy and Public Affairs 17(1988), pp. 105-148, and "Legal Interpretation, Objectivity, and Morality", in Objectivity in Law and Morals, pp. 12-65; and Heidi Li Feldman, "Objectivity in Legal Judgment", Michigan Law Review 92 (1994), p. 1187. See also, Andrei Marmor, Positive Law and Objective Values (Oxford: Clarendon Press, 2001). For an extensive bibliography, see Objectivity in Law and Morals, pp. 331-349.
14. These defenses vary widely, of course, adopting different views of objectivity in general and of legal objectivity in particular. See, e.g., Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986), and "Objectivity and Truth: You'd Better Believe It", Philosophy and Public Affairs 25 (1996), pp. 87-139; Kent Greenawalt, Law and Objectivity (New York: Oxford University Press, 1992); Michael Moore, "Moral Reality Revisited", Michigan Law Review 90 (1992), p. 2424 and "A Natural Law Theory of Interpretation", Southern California Law Review 58 (1985), p. 279; Jules Coleman and Brian Leiter, "Determinacy, Objectivity, and Authority", University of Pennsylvania Law Review 142 (1993), p. 549, reprinted in Andrei Marmor (ed.), Law and Interpretation: Essays in Legal Philosophy (Oxford: Oxford University Press, 1995); Nicos Stavropoulos, Objectivity in Law (Oxford: Clarendon Press, 1996); Hilary Putnam, "Are Moral and Legal Values Made or Discovered?" and "Reply to Brian Leiter", Legal Theory 1 (1995), pp. 5-19 and 69-80; Jules Coleman, "Truth and Objectivity in Law", Legal Theory 1 (1995), pp. 33-68; Brian Leiter, "Objectivity and the Problems of Jurisprudence", Texas Law Review 72 (1993), p. 187, "Rethinking Legal Realism: Toward a Naturalized Jurisprudence", Texas Law Review 76 (1997), p. 267 "The Middle Way", Legal Theory 1 (1995), pp. 21-31, "Legal Indeterminacy", Legal Theory 1 (1995), pp. 482-492, and "Objectivity, Morality and Adjudication", in Brian Leiter (ed.), Objectivity in Law and Morals (New York: Cambridge University Press, 2001), pp. 66-98; David O. Brink, "Legal Theory, Legal Interpretation, and Judicial Review", Philosophy and Public Affairs 17(1988), pp. 105-148, and "Legal Interpretation, Objectivity, and Morality", in Objectivity in Law and Morals, pp. 12-65; and Heidi Li Feldman, "Objectivity in Legal Judgment", Michigan Law Review 92 (1994), p. 1187. See also, Andrei Marmor, Positive Law and Objective Values (Oxford: Clarendon Press, 2001). For an extensive bibliography, see Objectivity in Law and Morals, pp. 331-349.
15. These defenses vary widely, of course, adopting different views of objectivity in general and of legal objectivity in particular. See, e.g., Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986), and "Objectivity and Truth: You'd Better Believe It", Philosophy and Public Affairs 25 (1996), pp. 87-139; Kent Greenawalt, Law and Objectivity (New York: Oxford University Press, 1992); Michael Moore, "Moral Reality Revisited", Michigan Law Review 90 (1992), p. 2424 and "A Natural Law Theory of Interpretation", Southern California Law Review 58 (1985), p. 279; Jules Coleman and Brian Leiter, "Determinacy, Objectivity, and Authority", University of Pennsylvania Law Review 142 (1993), p. 549, reprinted in Andrei Marmor (ed.), Law and Interpretation: Essays in Legal Philosophy (Oxford: Oxford University Press, 1995); Nicos Stavropoulos, Objectivity in Law (Oxford: Clarendon Press, 1996); Hilary Putnam, "Are Moral and Legal Values Made or Discovered?" and "Reply to Brian Leiter", Legal Theory 1 (1995), pp. 5-19 and 69-80; Jules Coleman, "Truth and Objectivity in Law", Legal Theory 1 (1995), pp. 33-68; Brian Leiter, "Objectivity and the Problems of Jurisprudence", Texas Law Review 72 (1993), p. 187, "Rethinking Legal Realism: Toward a Naturalized Jurisprudence", Texas Law Review 76 (1997), p. 267 "The Middle Way", Legal Theory 1 (1995), pp. 21-31, "Legal Indeterminacy", Legal Theory 1 (1995), pp. 482-492, and "Objectivity, Morality and Adjudication", in Brian Leiter (ed.), Objectivity in Law and Morals (New York: Cambridge University Press, 2001), pp. 66-98; David O. Brink, "Legal Theory, Legal Interpretation, and Judicial Review", Philosophy and Public Affairs 17(1988), pp. 105-148, and "Legal Interpretation, Objectivity, and Morality", in Objectivity in Law and Morals, pp. 12-65; and Heidi Li Feldman, "Objectivity in Legal Judgment", Michigan Law Review 92 (1994), p. 1187. See also, Andrei Marmor, Positive Law and Objective Values (Oxford: Clarendon Press, 2001). For an extensive bibliography, see Objectivity in Law and Morals, pp. 331-349.
16. These defenses vary widely, of course, adopting different views of objectivity in general and of legal objectivity in particular. See, e.g., Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986), and "Objectivity and Truth: You'd Better Believe It", Philosophy and Public Affairs 25 (1996), pp. 87-139; Kent Greenawalt, Law and Objectivity (New York: Oxford University Press, 1992); Michael Moore, "Moral Reality Revisited", Michigan Law Review 90 (1992), p. 2424 and "A Natural Law Theory of Interpretation", Southern California Law Review 58 (1985), p. 279; Jules Coleman and Brian Leiter, "Determinacy, Objectivity, and Authority", University of Pennsylvania Law Review 142 (1993), p. 549, reprinted in Andrei Marmor (ed.), Law and Interpretation: Essays in Legal Philosophy (Oxford: Oxford University Press, 1995); Nicos Stavropoulos, Objectivity in Law (Oxford: Clarendon Press, 1996); Hilary Putnam, "Are Moral and Legal Values Made or Discovered?" and "Reply to Brian Leiter", Legal Theory 1 (1995), pp. 5-19 and 69-80; Jules Coleman, "Truth and Objectivity in Law", Legal Theory 1 (1995), pp. 33-68; Brian Leiter, "Objectivity and the Problems of Jurisprudence", Texas Law Review 72 (1993), p. 187, "Rethinking Legal Realism: Toward a Naturalized Jurisprudence", Texas Law Review 76 (1997), p. 267 "The Middle Way", Legal Theory 1 (1995), pp. 21-31, "Legal Indeterminacy", Legal Theory 1 (1995), pp. 482-492, and "Objectivity, Morality and Adjudication", in Brian Leiter (ed.), Objectivity in Law and Morals (New York: Cambridge University Press, 2001), pp. 66-98; David O. Brink, "Legal Theory, Legal Interpretation, and Judicial Review", Philosophy and Public Affairs 17(1988), pp. 105-148, and "Legal Interpretation, Objectivity, and Morality", in Objectivity in Law and Morals, pp. 12-65; and Heidi Li Feldman, "Objectivity in Legal Judgment", Michigan Law Review 92 (1994), p. 1187. See also, Andrei Marmor, Positive Law and Objective Values (Oxford: Clarendon Press, 2001). For an extensive bibliography, see Objectivity in Law and Morals, pp. 331-349.
17. These defenses vary widely, of course, adopting different views of objectivity in general and of legal objectivity in particular. See, e.g., Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986), and "Objectivity and Truth: You'd Better Believe It", Philosophy and Public Affairs 25 (1996), pp. 87-139; Kent Greenawalt, Law and Objectivity (New York: Oxford University Press, 1992); Michael Moore, "Moral Reality Revisited", Michigan Law Review 90 (1992), p. 2424 and "A Natural Law Theory of Interpretation", Southern California Law Review 58 (1985), p. 279; Jules Coleman and Brian Leiter, "Determinacy, Objectivity, and Authority", University of Pennsylvania Law Review 142 (1993), p. 549, reprinted in Andrei Marmor (ed.), Law and Interpretation: Essays in Legal Philosophy (Oxford: Oxford University Press, 1995); Nicos Stavropoulos, Objectivity in Law (Oxford: Clarendon Press, 1996); Hilary Putnam, "Are Moral and Legal Values Made or Discovered?" and "Reply to Brian Leiter", Legal Theory 1 (1995), pp. 5-19 and 69-80; Jules Coleman, "Truth and Objectivity in Law", Legal Theory 1 (1995), pp. 33-68; Brian Leiter, "Objectivity and the Problems of Jurisprudence", Texas Law Review 72 (1993), p. 187, "Rethinking Legal Realism: Toward a Naturalized Jurisprudence", Texas Law Review 76 (1997), p. 267 "The Middle Way", Legal Theory 1 (1995), pp. 21-31, "Legal Indeterminacy", Legal Theory 1 (1995), pp. 482-492, and "Objectivity, Morality and Adjudication", in Brian Leiter (ed.), Objectivity in Law and Morals (New York: Cambridge University Press, 2001), pp. 66-98; David O. Brink, "Legal Theory, Legal Interpretation, and Judicial Review", Philosophy and Public Affairs 17(1988), pp. 105-148, and "Legal Interpretation, Objectivity, and Morality", in Objectivity in Law and Morals, pp. 12-65; and Heidi Li Feldman, "Objectivity in Legal Judgment", Michigan Law Review 92 (1994), p. 1187. See also, Andrei Marmor, Positive Law and Objective Values (Oxford: Clarendon Press, 2001). For an extensive bibliography, see Objectivity in Law and Morals, pp. 331-349.
18. These defenses vary widely, of course, adopting different views of objectivity in general and of legal objectivity in particular. See, e.g., Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986), and "Objectivity and Truth: You'd Better Believe It", Philosophy and Public Affairs 25 (1996), pp. 87-139; Kent Greenawalt, Law and Objectivity (New York: Oxford University Press, 1992); Michael Moore, "Moral Reality Revisited", Michigan Law Review 90 (1992), p. 2424 and "A Natural Law Theory of Interpretation", Southern California Law Review 58 (1985), p. 279; Jules Coleman and Brian Leiter, "Determinacy, Objectivity, and Authority", University of Pennsylvania Law Review 142 (1993), p. 549, reprinted in Andrei Marmor (ed.), Law and Interpretation: Essays in Legal Philosophy (Oxford: Oxford University Press, 1995); Nicos Stavropoulos, Objectivity in Law (Oxford: Clarendon Press, 1996); Hilary Putnam, "Are Moral and Legal Values Made or Discovered?" and "Reply to Brian Leiter", Legal Theory 1 (1995), pp. 5-19 and 69-80; Jules Coleman, "Truth and Objectivity in Law", Legal Theory 1 (1995), pp. 33-68; Brian Leiter, "Objectivity and the Problems of Jurisprudence", Texas Law Review 72 (1993), p. 187, "Rethinking Legal Realism: Toward a Naturalized Jurisprudence", Texas Law Review 76 (1997), p. 267 "The Middle Way", Legal Theory 1 (1995), pp. 21-31, "Legal Indeterminacy", Legal Theory 1 (1995), pp. 482-492, and "Objectivity, Morality and Adjudication", in Brian Leiter (ed.), Objectivity in Law and Morals (New York: Cambridge University Press, 2001), pp. 66-98; David O. Brink, "Legal Theory, Legal Interpretation, and Judicial Review", Philosophy and Public Affairs 17(1988), pp. 105-148, and "Legal Interpretation, Objectivity, and Morality", in Objectivity in Law and Morals, pp. 12-65; and Heidi Li Feldman, "Objectivity in Legal Judgment", Michigan Law Review 92 (1994), p. 1187. See also, Andrei Marmor, Positive Law and Objective Values (Oxford: Clarendon Press, 2001). For an extensive bibliography, see Objectivity in Law and Morals, pp. 331-349.
19. These defenses vary widely, of course, adopting different views of objectivity in general and of legal objectivity in particular. See, e.g., Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986), and "Objectivity and Truth: You'd Better Believe It", Philosophy and Public Affairs 25 (1996), pp. 87-139; Kent Greenawalt, Law and Objectivity (New York: Oxford University Press, 1992); Michael Moore, "Moral Reality Revisited", Michigan Law Review 90 (1992), p. 2424 and "A Natural Law Theory of Interpretation", Southern California Law Review 58 (1985), p. 279; Jules Coleman and Brian Leiter, "Determinacy, Objectivity, and Authority", University of Pennsylvania Law Review 142 (1993), p. 549, reprinted in Andrei Marmor (ed.), Law and Interpretation: Essays in Legal Philosophy (Oxford: Oxford University Press, 1995); Nicos Stavropoulos, Objectivity in Law (Oxford: Clarendon Press, 1996); Hilary Putnam, "Are Moral and Legal Values Made or Discovered?" and "Reply to Brian Leiter", Legal Theory 1 (1995), pp. 5-19 and 69-80; Jules Coleman, "Truth and Objectivity in Law", Legal Theory 1 (1995), pp. 33-68; Brian Leiter, "Objectivity and the Problems of Jurisprudence", Texas Law Review 72 (1993), p. 187, "Rethinking Legal Realism: Toward a Naturalized Jurisprudence", Texas Law Review 76 (1997), p. 267 "The Middle Way", Legal Theory 1 (1995), pp. 21-31, "Legal Indeterminacy", Legal Theory 1 (1995), pp. 482-492, and "Objectivity, Morality and Adjudication", in Brian Leiter (ed.), Objectivity in Law and Morals (New York: Cambridge University Press, 2001), pp. 66-98; David O. Brink, "Legal Theory, Legal Interpretation, and Judicial Review", Philosophy and Public Affairs 17(1988), pp. 105-148, and "Legal Interpretation, Objectivity, and Morality", in Objectivity in Law and Morals, pp. 12-65; and Heidi Li Feldman, "Objectivity in Legal Judgment", Michigan Law Review 92 (1994), p. 1187. See also, Andrei Marmor, Positive Law and Objective Values (Oxford: Clarendon Press, 2001). For an extensive bibliography, see Objectivity in Law and Morals, pp. 331-349.
20. These defenses vary widely, of course, adopting different views of objectivity in general and of legal objectivity in particular. See, e.g., Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986), and "Objectivity and Truth: You'd Better Believe It", Philosophy and Public Affairs 25 (1996), pp. 87-139; Kent Greenawalt, Law and Objectivity (New York: Oxford University Press, 1992); Michael Moore, "Moral Reality Revisited", Michigan Law Review 90 (1992), p. 2424 and "A Natural Law Theory of Interpretation", Southern California Law Review 58 (1985), p. 279; Jules Coleman and Brian Leiter, "Determinacy, Objectivity, and Authority", University of Pennsylvania Law Review 142 (1993), p. 549, reprinted in Andrei Marmor (ed.), Law and Interpretation: Essays in Legal Philosophy (Oxford: Oxford University Press, 1995); Nicos Stavropoulos, Objectivity in Law (Oxford: Clarendon Press, 1996); Hilary Putnam, "Are Moral and Legal Values Made or Discovered?" and "Reply to Brian Leiter", Legal Theory 1 (1995), pp. 5-19 and 69-80; Jules Coleman, "Truth and Objectivity in Law", Legal Theory 1 (1995), pp. 33-68; Brian Leiter, "Objectivity and the Problems of Jurisprudence", Texas Law Review 72 (1993), p. 187, "Rethinking Legal Realism: Toward a Naturalized Jurisprudence", Texas Law Review 76 (1997), p. 267 "The Middle Way", Legal Theory 1 (1995), pp. 21-31, "Legal Indeterminacy", Legal Theory 1 (1995), pp. 482-492, and "Objectivity, Morality and Adjudication", in Brian Leiter (ed.), Objectivity in Law and Morals (New York: Cambridge University Press, 2001), pp. 66-98; David O. Brink, "Legal Theory, Legal Interpretation, and Judicial Review", Philosophy and Public Affairs 17(1988), pp. 105-148, and "Legal Interpretation, Objectivity, and Morality", in Objectivity in Law and Morals, pp. 12-65; and Heidi Li Feldman, "Objectivity in Legal Judgment", Michigan Law Review 92 (1994), p. 1187. See also, Andrei Marmor, Positive Law and Objective Values (Oxford: Clarendon Press, 2001). For an extensive bibliography, see Objectivity in Law and Morals, pp. 331-349.
21. See, e.g., Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, and the preface of Greenawalt, Law and Objectivity, supra note 1. Not all critics reject the objectivity of law. Indeed, the critical literature is exceedingly diverse, and it would accordingly be difficult, if not impossible, to state any particular theses to which all critics subscribe. For some representative and varied challenges to the objectivity of law within the CLS, CRT, and feminist camps respectively, see Joseph Singer, "The Player and the Cards: Nihilism and Legal Theory", Yale Law Journal 94 (1984), p. 1 and Duncan Kennedy, "Form and Substance in Private Law Adjudication", Harvard Law Review 89 (1976), p. 1685; Kimberle Crenshaw, "Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law", Harvard Law Review 101 (1988), p. 1331 and Richard Delgado, "The Inward Turn in Outsider Jurisprudence", William and Mary Law Review 34 (1993), p. 741; Martha Minow, "Justice Engendered", Harvard Law Review 101 (1986), p. 10 and Ann C. Scales, "The Emergence of Feminist Jurisprudence: An Essay", Yale Law Journal 95 (1986), p. 1373. Since my discussion does not address the critical literature, I make no effort to provide more complete references and instead refer the interested reader to Coleman and Leiter, who helpfully discuss this literature in detail, and to Objectivity in Law and Morals, pp. 331-349.
22. See, e.g., Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, and the preface of Greenawalt, Law and Objectivity, supra note 1. Not all critics reject the objectivity of law. Indeed, the critical literature is exceedingly diverse, and it would accordingly be difficult, if not impossible, to state any particular theses to which all critics subscribe. For some representative and varied challenges to the objectivity of law within the CLS, CRT, and feminist camps respectively, see Joseph Singer, "The Player and the Cards: Nihilism and Legal Theory", Yale Law Journal 94 (1984), p. 1 and Duncan Kennedy, "Form and Substance in Private Law Adjudication", Harvard Law Review 89 (1976), p. 1685; Kimberle Crenshaw, "Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law", Harvard Law Review 101 (1988), p. 1331 and Richard Delgado, "The Inward Turn in Outsider Jurisprudence", William and Mary Law Review 34 (1993), p. 741; Martha Minow, "Justice Engendered", Harvard Law Review 101 (1986), p. 10 and Ann C. Scales, "The Emergence of Feminist Jurisprudence: An Essay", Yale Law Journal 95 (1986), p. 1373. Since my discussion does not address the critical literature, I make no effort to provide more complete references and instead refer the interested reader to Coleman and Leiter, who helpfully discuss this literature in detail, and to Objectivity in Law and Morals, pp. 331-349.
23. See, e.g., Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, and the preface of Greenawalt, Law and Objectivity, supra note 1. Not all critics reject the objectivity of law. Indeed, the critical literature is exceedingly diverse, and it would accordingly be difficult, if not impossible, to state any particular theses to which all critics subscribe. For some representative and varied challenges to the objectivity of law within the CLS, CRT, and feminist camps respectively, see Joseph Singer, "The Player and the Cards: Nihilism and Legal Theory", Yale Law Journal 94 (1984), p. 1 and Duncan Kennedy, "Form and Substance in Private Law Adjudication", Harvard Law Review 89 (1976), p. 1685; Kimberle Crenshaw, "Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law", Harvard Law Review 101 (1988), p. 1331 and Richard Delgado, "The Inward Turn in Outsider Jurisprudence", William and Mary Law Review 34 (1993), p. 741; Martha Minow, "Justice Engendered", Harvard Law Review 101 (1986), p. 10 and Ann C. Scales, "The Emergence of Feminist Jurisprudence: An Essay", Yale Law Journal 95 (1986), p. 1373. Since my discussion does not address the critical literature, I make no effort to provide more complete references and instead refer the interested reader to Coleman and Leiter, who helpfully discuss this literature in detail, and to Objectivity in Law and Morals, pp. 331-349.
24. See, e.g., Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, and the preface of Greenawalt, Law and Objectivity, supra note 1. Not all critics reject the objectivity of law. Indeed, the critical literature is exceedingly diverse, and it would accordingly be difficult, if not impossible, to state any particular theses to which all critics subscribe. For some representative and varied challenges to the objectivity of law within the CLS, CRT, and feminist camps respectively, see Joseph Singer, "The Player and the Cards: Nihilism and Legal Theory", Yale Law Journal 94 (1984), p. 1 and Duncan Kennedy, "Form and Substance in Private Law Adjudication", Harvard Law Review 89 (1976), p. 1685; Kimberle Crenshaw, "Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law", Harvard Law Review 101 (1988), p. 1331 and Richard Delgado, "The Inward Turn in Outsider Jurisprudence", William and Mary Law Review 34 (1993), p. 741; Martha Minow, "Justice Engendered", Harvard Law Review 101 (1986), p. 10 and Ann C. Scales, "The Emergence of Feminist Jurisprudence: An Essay", Yale Law Journal 95 (1986), p. 1373. Since my discussion does not address the critical literature, I make no effort to provide more complete references and instead refer the interested reader to Coleman and Leiter, who helpfully discuss this literature in detail, and to Objectivity in Law and Morals, pp. 331-349.
25. See, e.g., Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, and the preface of Greenawalt, Law and Objectivity, supra note 1. Not all critics reject the objectivity of law. Indeed, the critical literature is exceedingly diverse, and it would accordingly be difficult, if not impossible, to state any particular theses to which all critics subscribe. For some representative and varied challenges to the objectivity of law within the CLS, CRT, and feminist camps respectively, see Joseph Singer, "The Player and the Cards: Nihilism and Legal Theory", Yale Law Journal 94 (1984), p. 1 and Duncan Kennedy, "Form and Substance in Private Law Adjudication", Harvard Law Review 89 (1976), p. 1685; Kimberle Crenshaw, "Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law", Harvard Law Review 101 (1988), p. 1331 and Richard Delgado, "The Inward Turn in Outsider Jurisprudence", William and Mary Law Review 34 (1993), p. 741; Martha Minow, "Justice Engendered", Harvard Law Review 101 (1986), p. 10 and Ann C. Scales, "The Emergence of Feminist Jurisprudence: An Essay", Yale Law Journal 95 (1986), p. 1373. Since my discussion does not address the critical literature, I make no effort to provide more complete references and instead refer the interested reader to Coleman and Leiter, who helpfully discuss this literature in detail, and to Objectivity in Law and Morals, pp. 331-349.
26. See, e.g., Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, and the preface of Greenawalt, Law and Objectivity, supra note 1. Not all critics reject the objectivity of law. Indeed, the critical literature is exceedingly diverse, and it would accordingly be difficult, if not impossible, to state any particular theses to which all critics subscribe. For some representative and varied challenges to the objectivity of law within the CLS, CRT, and feminist camps respectively, see Joseph Singer, "The Player and the Cards: Nihilism and Legal Theory", Yale Law Journal 94 (1984), p. 1 and Duncan Kennedy, "Form and Substance in Private Law Adjudication", Harvard Law Review 89 (1976), p. 1685; Kimberle Crenshaw, "Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law", Harvard Law Review 101 (1988), p. 1331 and Richard Delgado, "The Inward Turn in Outsider Jurisprudence", William and Mary Law Review 34 (1993), p. 741; Martha Minow, "Justice Engendered", Harvard Law Review 101 (1986), p. 10 and Ann C. Scales, "The Emergence of Feminist Jurisprudence: An Essay", Yale Law Journal 95 (1986), p. 1373. Since my discussion does not address the critical literature, I make no effort to provide more complete references and instead refer the interested reader to Coleman and Leiter, who helpfully discuss this literature in detail, and to Objectivity in Law and Morals, pp. 331-349.
27. See, e.g., Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, and the preface of Greenawalt, Law and Objectivity, supra note 1. Not all critics reject the objectivity of law. Indeed, the critical literature is exceedingly diverse, and it would accordingly be difficult, if not impossible, to state any particular theses to which all critics subscribe. For some representative and varied challenges to the objectivity of law within the CLS, CRT, and feminist camps respectively, see Joseph Singer, "The Player and the Cards: Nihilism and Legal Theory", Yale Law Journal 94 (1984), p. 1 and Duncan Kennedy, "Form and Substance in Private Law Adjudication", Harvard Law Review 89 (1976), p. 1685; Kimberle Crenshaw, "Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law", Harvard Law Review 101 (1988), p. 1331 and Richard Delgado, "The Inward Turn in Outsider Jurisprudence", William and Mary Law Review 34 (1993), p. 741; Martha Minow, "Justice Engendered", Harvard Law Review 101 (1986), p. 10 and Ann C. Scales, "The Emergence of Feminist Jurisprudence: An Essay", Yale Law Journal 95 (1986), p. 1373. Since my discussion does not address the critical literature, I make no effort to provide more complete references and instead refer the interested reader to Coleman and Leiter, who helpfully discuss this literature in detail, and to Objectivity in Law and Morals, pp. 331-349.
28. See, e.g., Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, and the preface of Greenawalt, Law and Objectivity, supra note 1. Not all critics reject the objectivity of law. Indeed, the critical literature is exceedingly diverse, and it would accordingly be difficult, if not impossible, to state any particular theses to which all critics subscribe. For some representative and varied challenges to the objectivity of law within the CLS, CRT, and feminist camps respectively, see Joseph Singer, "The Player and the Cards: Nihilism and Legal Theory", Yale Law Journal 94 (1984), p. 1 and Duncan Kennedy, "Form and Substance in Private Law Adjudication", Harvard Law Review 89 (1976), p. 1685; Kimberle Crenshaw, "Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law", Harvard Law Review 101 (1988), p. 1331 and Richard Delgado, "The Inward Turn in Outsider Jurisprudence", William and Mary Law Review 34 (1993), p. 741; Martha Minow, "Justice Engendered", Harvard Law Review 101 (1986), p. 10 and Ann C. Scales, "The Emergence of Feminist Jurisprudence: An Essay", Yale Law Journal 95 (1986), p. 1373. Since my discussion does not address the critical literature, I make no effort to provide more complete references and instead refer the interested reader to Coleman and Leiter, who helpfully discuss this literature in detail, and to Objectivity in Law and Morals, pp. 331-349.
29. See, e.g., Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, and the preface of Greenawalt, Law and Objectivity, supra note 1. Not all critics reject the objectivity of law. Indeed, the critical literature is exceedingly diverse, and it would accordingly be difficult, if not impossible, to state any particular theses to which all critics subscribe. For some representative and varied challenges to the objectivity of law within the CLS, CRT, and feminist camps respectively, see Joseph Singer, "The Player and the Cards: Nihilism and Legal Theory", Yale Law Journal 94 (1984), p. 1 and Duncan Kennedy, "Form and Substance in Private Law Adjudication", Harvard Law Review 89 (1976), p. 1685; Kimberle Crenshaw, "Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law", Harvard Law Review 101 (1988), p. 1331 and Richard Delgado, "The Inward Turn in Outsider Jurisprudence", William and Mary Law Review 34 (1993), p. 741; Martha Minow, "Justice Engendered", Harvard Law Review 101 (1986), p. 10 and Ann C. Scales, "The Emergence of Feminist Jurisprudence: An Essay", Yale Law Journal 95 (1986), p. 1373. Since my discussion does not address the critical literature, I make no effort to provide more complete references and instead refer the interested reader to Coleman and Leiter, who helpfully discuss this literature in detail, and to Objectivity in Law and Morals, pp. 331-349.
30. Coleman and Leiter, while expressing sympathy for the critics' substantive worries, caution against overly simplistic claims about correlations between race, gender, class, or ideology and adjudicative outcomes, particularly in light of the consideration that among the psychosocial facts that explain the behavior of judges will be their socialization as judges. See Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at pp. 550/204, 617-618/261, and fn. 137. All cites to the Coleman and Leiter article will give page numbers in the University of Pennsylvania Law Review with a backslash followed by page numbers to the Marmor volume.
31. There are, of course, legitimate skeptical theses about law, as I explain later, so when I say the critics' arguments fail, I do not mean to imply that legal skepticism fails. But such skepticism would need to be supported by a far more sophisticated brand of argument than critics have typically offered.
32. I use the expression 'legal fact' to mean (roughly) a true proposition about the law, whereas Coleman and Leiter mean "any statement of what the law requires on some point." See Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1 at p. 598. (Presumably they mean any true statement about what the law requires; otherwise legal facts could, on their usage, be false.) Since some claims about the law will be about legal powers, right, and permissions, rather than requirements, a broader formulation is needed.
33. Construing subjectivism in this way is in keeping with a related treatment of subjectivism in ethics. Geoff Sayre-McCord has suggested that moral realism consists in cognitivism plus a success theory. That is to say, moral realism is the view that moral claims, literally construed, are literally true or false, and what's more, some are true. On this characterization, (metaethical) subjectivism comes out a form of moral realism. It is simply, Sayre-McCord observes, an implausible form of moral realism. See Geoffrey Sayre-McCord, "Introduction: The Many Moral Realisms", in Geoffrey Sayre-McCord (ed.), Essays on Moral Realism (Ithaca: Cornell University Press, 1988), pp. 1-23. Of course, Sayre-McCord's characterization of moral realism is not uncontroversial. Compare the characterization of moral realism in David O. Brink, Moral Realism and the Foundations of Ethics (Cambridge: Cambridge University Press, 1989).
34. Construing subjectivism in this way is in keeping with a related treatment of subjectivism in ethics. Geoff Sayre-McCord has suggested that moral realism consists in cognitivism plus a success theory. That is to say, moral realism is the view that moral claims, literally construed, are literally true or false, and what's more, some are true. On this characterization, (metaethical) subjectivism comes out a form of moral realism. It is simply, Sayre-McCord observes, an implausible form of moral realism. See Geoffrey Sayre-McCord, "Introduction: The Many Moral Realisms", in Geoffrey Sayre-McCord (ed.), Essays on Moral Realism (Ithaca: Cornell University Press, 1988), pp. 1-23. Of course, Sayre-McCord's characterization of moral realism is not uncontroversial. Compare the characterization of moral realism in David O. Brink, Moral Realism and the Foundations of Ethics (Cambridge: Cambridge University Press, 1989).
35. On this point, see Roderick Firth, "Ethical Absolutism and the Ideal Observer", in Wilfrid Sellars and John Hospers (eds.), Readings in Ethical Theory (Englewood Cliffs, NJ: Prentice-Hall, 1970), pp. 200-221, 207. Firth's ideal observer analysis of ethical concepts appeals to the "ethically significant" reactions of an ideal observer.
36. For brief discussion of the problem of identifying normatively significant attitudes, see, e.g., Firth, "Ethical Absolutism and the Ideal Observer". A persistent problem for dispositional analyses in ethics has been identifying such attitudes, and while I have chosen not to pay special attention to that problem in this article, we can expect that it will pose a significant challenge for dispositional analyses of the sort I examine later.
37. Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at pp. 598-599/245, note this difficulty for subjectivism, too. See also H. L. A. Hart, The Concept of Law, 2nd edn. (Oxford: Clarendon Press, 1961/1994), pp. 136-141, for related ideas in his critique of rule-scepticism.
38. Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at pp. 598-599/245, note this difficulty for subjectivism, too. See also H. L. A. Hart, The Concept of Law, 2nd edn. (Oxford: Clarendon Press, 1961/1994), pp. 136-141, for related ideas in his critique of rule-scepticism.
39. As Coleman and Leiter remark, "those who worry about law's objectivity are concerned about whether the decisions judges reach are objectively correct or whether instead they are correct just because the judge so regards them." Ibid., at p. 559/211.
40. One might also worry, of course, about how to determine what the legal facts are, even if the law is largely determinate, but this worry is epistemological rather than metaphysical. For sundry other questions about the objectivity of law and its treatment of people, see generally, Greenawalt, Law and Objectivity, supra note 1. Coleman and Leiter actually treat determinacy as concerning whether there are correct answers to legal disputes at all (my question 1), whereas objectivity concerns "the status of those legal facts," their degree of mind- or evidence-independence. Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at pp. 600/246, 609/254. But their discussion of what the indeterminacy thesis might come to suggests that the most minimal, and arguably most plausible, version of the thesis is concerned with the extent of correct answers. I treat both the question of whether there are correct answers and the question about the nature of legal facts as concerned with objectivity, whereas I treat determinacy as concerned with the extent to which there are correct answers. Any minor terminological differences do not, I believe, affect my discussion. Coleman and Leiter contend that critics of liberalism cannot coherently maintain that law is both subjective and indeterminate. I'm not so sure. A critic could claim that legal facts are facts about what individual judges would believe the law is following ordinary, nonideal reflection, but that no one who reflected on the conflicting principles, rules, and interpretive norms of our legal practices would have beliefs about what the law really is except perhaps in the easiest cases. So law is both subjective and indeterminate. For more detailed discussion of questions about the determinacy of law, see Leiter, "Legal Indeterminacy", supra note 1.
41. One might also worry, of course, about how to determine what the legal facts are, even if the law is largely determinate, but this worry is epistemological rather than metaphysical. For sundry other questions about the objectivity of law and its treatment of people, see generally, Greenawalt, Law and Objectivity, supra note 1. Coleman and Leiter actually treat determinacy as concerning whether there are correct answers to legal disputes at all (my question 1), whereas objectivity concerns "the status of those legal facts," their degree of mind- or evidence-independence. Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at pp. 600/246, 609/254. But their discussion of what the indeterminacy thesis might come to suggests that the most minimal, and arguably most plausible, version of the thesis is concerned with the extent of correct answers. I treat both the question of whether there are correct answers and the question about the nature of legal facts as concerned with objectivity, whereas I treat determinacy as concerned with the extent to which there are correct answers. Any minor terminological differences do not, I believe, affect my discussion. Coleman and Leiter contend that critics of liberalism cannot coherently maintain that law is both subjective and indeterminate. I'm not so sure. A critic could claim that legal facts are facts about what individual judges would believe the law is following ordinary, nonideal reflection, but that no one who reflected on the conflicting principles, rules, and interpretive norms of our legal practices would have beliefs about what the law really is except perhaps in the easiest cases. So law is both subjective and indeterminate. For more detailed discussion of questions about the determinacy of law, see Leiter, "Legal Indeterminacy", supra note 1.
42. One might also worry, of course, about how to determine what the legal facts are, even if the law is largely determinate, but this worry is epistemological rather than metaphysical. For sundry other questions about the objectivity of law and its treatment of people, see generally, Greenawalt, Law and Objectivity, supra note 1. Coleman and Leiter actually treat determinacy as concerning whether there are correct answers to legal disputes at all (my question 1), whereas objectivity concerns "the status of those legal facts," their degree of mind- or evidence-independence. Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at pp. 600/246, 609/254. But their discussion of what the indeterminacy thesis might come to suggests that the most minimal, and arguably most plausible, version of the thesis is concerned with the extent of correct answers. I treat both the question of whether there are correct answers and the question about the nature of legal facts as concerned with objectivity, whereas I treat determinacy as concerned with the extent to which there are correct answers. Any minor terminological differences do not, I believe, affect my discussion. Coleman and Leiter contend that critics of liberalism cannot coherently maintain that law is both subjective and indeterminate. I'm not so sure. A critic could claim that legal facts are facts about what individual judges would believe the law is following ordinary, nonideal reflection, but that no one who reflected on the conflicting principles, rules, and interpretive norms of our legal practices would have beliefs about what the law really is except perhaps in the easiest cases. So law is both subjective and indeterminate. For more detailed discussion of questions about the determinacy of law, see Leiter, "Legal Indeterminacy", supra note 1.
43. Coleman and Leiter remind us that positivists like Hart, and legal realists as well, concede that law may (often) be indeterminate in hard cases but would deny that this indeterminacy undermines liberal legal authority. Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at pp. 563-564/215. This claim is, of course, precisely what critics would dispute, as Coleman and Leiter themselves note. I take no position in this essay on the precise extent to which law would have to be determinate to satisfy both critics and defenders, but I do doubt that leaving things where Hart did will be satisfactory. See also Greenawalt, Law and Objectivity, supra note 1, Ch. 11, in which he rejects the claim that a correct answer exists for every legal question, while arguing for a fair amount of determinacy. Coleman and Leiter suggest that in cases in which legal outcomes are indeterminate, some choices may nevertheless be more rationally defensible than others. Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at pp. 577-578/227. On Coleman's view, though, what is legally correct just is what judges under ideal epistemic conditions find most rationally defensible, and so it isn't entirely clear how there is room for some a legal outcome to be most defensible without being correct. Coleman and Leiter also argue that those concerns that underlie the worry about the rational indeterminacy of law - concerns about individuals having fair notice of the law and the opportunity to conform their behavior to it, as well as a secure framework in which to pursue their life plans - can be met, as legal realists saw, provided that (indeterminate) legal outcomes are predictable. Ibid., at p. 583/231-232. But the ability of agents to predict what judges will do is enough for legitimate authority only if our predictive theory is, as Leiter recognizes, vindicative.
44. Coleman and Leiter remind us that positivists like Hart, and legal realists as well, concede that law may (often) be indeterminate in hard cases but would deny that this indeterminacy undermines liberal legal authority. Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at pp. 563-564/215. This claim is, of course, precisely what critics would dispute, as Coleman and Leiter themselves note. I take no position in this essay on the precise extent to which law would have to be determinate to satisfy both critics and defenders, but I do doubt that leaving things where Hart did will be satisfactory. See also Greenawalt, Law and Objectivity, supra note 1, Ch. 11, in which he rejects the claim that a correct answer exists for every legal question, while arguing for a fair amount of determinacy. Coleman and Leiter suggest that in cases in which legal outcomes are indeterminate, some choices may nevertheless be more rationally defensible than others. Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at pp. 577-578/227. On Coleman's view, though, what is legally correct just is what judges under ideal epistemic conditions find most rationally defensible, and so it isn't entirely clear how there is room for some a legal outcome to be most defensible without being correct. Coleman and Leiter also argue that those concerns that underlie the worry about the rational indeterminacy of law - concerns about individuals having fair notice of the law and the opportunity to conform their behavior to it, as well as a secure framework in which to pursue their life plans - can be met, as legal realists saw, provided that (indeterminate) legal outcomes are predictable. Ibid., at p. 583/231-232. But the ability of agents to predict what judges will do is enough for legitimate authority only if our predictive theory is, as Leiter recognizes, vindicative.
45. Coleman and Leiter remind us that positivists like Hart, and legal realists as well, concede that law may (often) be indeterminate in hard cases but would deny that this indeterminacy undermines liberal legal authority. Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at pp. 563-564/215. This claim is, of course, precisely what critics would dispute, as Coleman and Leiter themselves note. I take no position in this essay on the precise extent to which law would have to be determinate to satisfy both critics and defenders, but I do doubt that leaving things where Hart did will be satisfactory. See also Greenawalt, Law and Objectivity, supra note 1, Ch. 11, in which he rejects the claim that a correct answer exists for every legal question, while arguing for a fair amount of determinacy. Coleman and Leiter suggest that in cases in which legal outcomes are indeterminate, some choices may nevertheless be more rationally defensible than others. Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at pp. 577-578/227. On Coleman's view, though, what is legally correct just is what judges under ideal epistemic conditions find most rationally defensible, and so it isn't entirely clear how there is room for some a legal outcome to be most defensible without being correct. Coleman and Leiter also argue that those concerns that underlie the worry about the rational indeterminacy of law - concerns about individuals having fair notice of the law and the opportunity to conform their behavior to it, as well as a secure framework in which to pursue their life plans - can be met, as legal realists saw, provided that (indeterminate) legal outcomes are predictable. Ibid., at p. 583/231-232. But the ability of agents to predict what judges will do is enough for legitimate authority only if our predictive theory is, as Leiter recognizes, vindicative.
46. Coleman and Leiter remind us that positivists like Hart, and legal realists as well, concede that law may (often) be indeterminate in hard cases but would deny that this indeterminacy undermines liberal legal authority. Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at pp. 563-564/215. This claim is, of course, precisely what critics would dispute, as Coleman and Leiter themselves note. I take no position in this essay on the precise extent to which law would have to be determinate to satisfy both critics and defenders, but I do doubt that leaving things where Hart did will be satisfactory. See also Greenawalt, Law and Objectivity, supra note 1, Ch. 11, in which he rejects the claim that a correct answer exists for every legal question, while arguing for a fair amount of determinacy. Coleman and Leiter suggest that in cases in which legal outcomes are indeterminate, some choices may nevertheless be more rationally defensible than others. Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at pp. 577-578/227. On Coleman's view, though, what is legally correct just is what judges under ideal epistemic conditions find most rationally defensible, and so it isn't entirely clear how there is room for some a legal outcome to be most defensible without being correct. Coleman and Leiter also argue that those concerns that underlie the worry about the rational indeterminacy of law - concerns about individuals having fair notice of the law and the opportunity to conform their behavior to it, as well as a secure framework in which to pursue their life plans - can be met, as legal realists saw, provided that (indeterminate) legal outcomes are predictable. Ibid., at p. 583/231-232. But the ability of agents to predict what judges will do is enough for legitimate authority only if our predictive theory is, as Leiter recognizes, vindicative.
47. See ibid., at p. 559/211-212: "Any time a judge renders a decision, she asserts the existence of what we are calling a legal fact ... The question about metaphysical objectivity, then is a question about the status of these facts, that is, about whether they hold independently of what a particular judge happens to think, or perhaps independently of what all lawyers and judges think."
48. Some philosophers would resist describing their accounts as "analyses," but let me make two points to allay possible worries. First, my discussion involves no commitment to any particular view about philosophical analysis. Second, some views of analysis are sufficiently broad to encompass accounts offered by those who, persuaded by Quineian objections to the analytic/synthetic distinction, eschew conceptual analysis. For recent discussions of analysis, see, e.g., Frank Jackson, From Metaphysics to Ethics (Oxford: Oxford University Press, 1998); Michael Smith, The Moral Problem (Oxford: Blackwell, 1994), pp. 29-59; and Jeffrey C. King, "What is a Philosophical Analysis?", Philosophical Studies 90 (1998), pp. 155-179. King argues that what is called conceptual analysis is, properly understood, analysis of properties. See also Jeffrey C. King, "Two Sorts of Claims About 'Logical Form' ", in Georg Peter and Gerhard Preyer (eds.), Logical Form and Language (Oxford: Oxford University Press, 2002). And see, Allan Gibbard, Wise Choices, Apt Feelings: A Theory of Normative Judgment (Cambridge: Harvard University Press, 1990), p. 32.
49. Some philosophers would resist describing their accounts as "analyses," but let me make two points to allay possible worries. First, my discussion involves no commitment to any particular view about philosophical analysis. Second, some views of analysis are sufficiently broad to encompass accounts offered by those who, persuaded by Quineian objections to the analytic/synthetic distinction, eschew conceptual analysis. For recent discussions of analysis, see, e.g., Frank Jackson, From Metaphysics to Ethics (Oxford: Oxford University Press, 1998); Michael Smith, The Moral Problem (Oxford: Blackwell, 1994), pp. 29-59; and Jeffrey C. King, "What is a Philosophical Analysis?", Philosophical Studies 90 (1998), pp. 155-179. King argues that what is called conceptual analysis is, properly understood, analysis of properties. See also Jeffrey C. King, "Two Sorts of Claims About 'Logical Form' ", in Georg Peter and Gerhard Preyer (eds.), Logical Form and Language (Oxford: Oxford University Press, 2002). And see, Allan Gibbard, Wise Choices, Apt Feelings: A Theory of Normative Judgment (Cambridge: Harvard University Press, 1990), p. 32.
50. Some philosophers would resist describing their accounts as "analyses," but let me make two points to allay possible worries. First, my discussion involves no commitment to any particular view about philosophical analysis. Second, some views of analysis are sufficiently broad to encompass accounts offered by those who, persuaded by Quineian objections to the analytic/synthetic distinction, eschew conceptual analysis. For recent discussions of analysis, see, e.g., Frank Jackson, From Metaphysics to Ethics (Oxford: Oxford University Press, 1998); Michael Smith, The Moral Problem (Oxford: Blackwell, 1994), pp. 29-59; and Jeffrey C. King, "What is a Philosophical Analysis?", Philosophical Studies 90 (1998), pp. 155-179. King argues that what is called conceptual analysis is, properly understood, analysis of properties. See also Jeffrey C. King, "Two Sorts of Claims About 'Logical Form' ", in Georg Peter and Gerhard Preyer (eds.), Logical Form and Language (Oxford: Oxford University Press, 2002). And see, Allan Gibbard, Wise Choices, Apt Feelings: A Theory of Normative Judgment (Cambridge: Harvard University Press, 1990), p. 32.
51. Some philosophers would resist describing their accounts as "analyses," but let me make two points to allay possible worries. First, my discussion involves no commitment to any particular view about philosophical analysis. Second, some views of analysis are sufficiently broad to encompass accounts offered by those who, persuaded by Quineian objections to the analytic/synthetic distinction, eschew conceptual analysis. For recent discussions of analysis, see, e.g., Frank Jackson, From Metaphysics to Ethics (Oxford: Oxford University Press, 1998); Michael Smith, The Moral Problem (Oxford: Blackwell, 1994), pp. 29-59; and Jeffrey C. King, "What is a Philosophical Analysis?", Philosophical Studies 90 (1998), pp. 155-179. King argues that what is called conceptual analysis is, properly understood, analysis of properties. See also Jeffrey C. King, "Two Sorts of Claims About 'Logical Form' ", in Georg Peter and Gerhard Preyer (eds.), Logical Form and Language (Oxford: Oxford University Press, 2002). And see, Allan Gibbard, Wise Choices, Apt Feelings: A Theory of Normative Judgment (Cambridge: Harvard University Press, 1990), p. 32.
52. Some philosophers would resist describing their accounts as "analyses," but let me make two points to allay possible worries. First, my discussion involves no commitment to any particular view about philosophical analysis. Second, some views of analysis are sufficiently broad to encompass accounts offered by those who, persuaded by Quineian objections to the analytic/synthetic distinction, eschew conceptual analysis. For recent discussions of analysis, see, e.g., Frank Jackson, From Metaphysics to Ethics (Oxford: Oxford University Press, 1998); Michael Smith, The Moral Problem (Oxford: Blackwell, 1994), pp. 29-59; and Jeffrey C. King, "What is a Philosophical Analysis?", Philosophical Studies 90 (1998), pp. 155-179. King argues that what is called conceptual analysis is, properly understood, analysis of properties. See also Jeffrey C. King, "Two Sorts of Claims About 'Logical Form' ", in Georg Peter and Gerhard Preyer (eds.), Logical Form and Language (Oxford: Oxford University Press, 2002). And see, Allan Gibbard, Wise Choices, Apt Feelings: A Theory of Normative Judgment (Cambridge: Harvard University Press, 1990), p. 32.
53. Coleman and Leiter describe themselves as distinguishing between "senses," "kinds," or "conceptions" of objectivity, claiming to give a "new conception of it" that is the "kind of objectivity presupposed by our legal practices." See Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at p. 553/207, see also pp. 559/212, and 595/242. As I explain, I think we may be better off talking in terms of different views about the nature of legal facts and properties.
54. Ibid., at p. 616/260. The relevant community might, of course, be different, depending on the system of law. Treating judges as the relevant community assumes that a legal system allows judicial review, and consequently, judges are in some plausible sense the final authority on what the law is. Of course, judicial interpretations of statutes may later be overturned by a legislature. But even where they are, it still falls on judges to interpret and apply statutes. Those decisions of judges that follow legislative action overturning earlier decisions can still be considered final, it's just that judges are obliged to follow the legislature's prescriptions.
55. Ibid., at p. 620/263.
56. Ibid., at p. 621/264. Michael Jubien has pointed out to me an ambiguity in the counterfactual formulation "what judges would decide under ideal conditions." It can be read as being about actual judges placed in ideal conditions or about whatever judges would exist under ideal conditions. On the former understanding but not the latter, he has suggested, the facts would be dependent on us. There are, of course, real difficulties about how to understand the counterfactual under either reading. But even on the first reading, the facts depend on us only in an attenuated sense, and arguably they depend on us in a similar attenuated sense under the second reading, provided that whatever judges would exist under ideal conditions are "human" judges.
57. Ibid., at p. 608/253.
58. Ibid., at p. 612/256. Their characterization of strong objectivity as realist involves a view of realism that some would reject. On one alternative view, minimal and modest objectivity, and even subjectivism, would also count as realist positions. See Sayre-McCord, "The Many Moral Realisms", supra note 6. According to Coleman and Leiter, Michael Moore and David Brink believe legal facts are strongly objective, Stanley Fish and Leiter hold that legal facts are minimally objective, and Ronald Dworkin, Kent Greenawalt and Coleman hold that legal facts are modestly objective. See Moore, "Moral Reality Revisited" and "A Natural Law Theory of Interpretation", supra note 1; Brink, "Legal Theory, Legal Interpretation, and Judicial Review" and "Legal Interpretation, Objectivity, and Morality", supra note 1; Stanley Fish, "Working on the Chain Gang: Interpretation in Law and Literature", Texas Law Review 60 (1982), p. 551 and "Wrong Again", Texas Law Review 62 (1983), p. 299; Leiter, "Objectivity and the Problems of Jurisprudence", supra note 1; Dworkin, Law's Empire and "Objectivity and Truth: You'd Better Believe It", supra note 1; Greenawalt, Law and Objectivity, supra note 1; and Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1.
59. Ibid., at p. 612/256. Their characterization of strong objectivity as realist involves a view of realism that some would reject. On one alternative view, minimal and modest objectivity, and even subjectivism, would also count as realist positions. See Sayre-McCord, "The Many Moral Realisms", supra note 6. According to Coleman and Leiter, Michael Moore and David Brink believe legal facts are strongly objective, Stanley Fish and Leiter hold that legal facts are minimally objective, and Ronald Dworkin, Kent Greenawalt and Coleman hold that legal facts are modestly objective. See Moore, "Moral Reality Revisited" and "A Natural Law Theory of Interpretation", supra note 1; Brink, "Legal Theory, Legal Interpretation, and Judicial Review" and "Legal Interpretation, Objectivity, and Morality", supra note 1; Stanley Fish, "Working on the Chain Gang: Interpretation in Law and Literature", Texas Law Review 60 (1982), p. 551 and "Wrong Again", Texas Law Review 62 (1983), p. 299; Leiter, "Objectivity and the Problems of Jurisprudence", supra note 1; Dworkin, Law's Empire and "Objectivity and Truth: You'd Better Believe It", supra note 1; Greenawalt, Law and Objectivity, supra note 1; and Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1.
60. Ibid., at p. 612/256. Their characterization of strong objectivity as realist involves a view of realism that some would reject. On one alternative view, minimal and modest objectivity, and even subjectivism, would also count as realist positions. See Sayre-McCord, "The Many Moral Realisms", supra note 6. According to Coleman and Leiter, Michael Moore and David Brink believe legal facts are strongly objective, Stanley Fish and Leiter hold that legal facts are minimally objective, and Ronald Dworkin, Kent Greenawalt and Coleman hold that legal facts are modestly objective. See Moore, "Moral Reality Revisited" and "A Natural Law Theory of Interpretation", supra note 1; Brink, "Legal Theory, Legal Interpretation, and Judicial Review" and "Legal Interpretation, Objectivity, and Morality", supra note 1; Stanley Fish, "Working on the Chain Gang: Interpretation in Law and Literature", Texas Law Review 60 (1982), p. 551 and "Wrong Again", Texas Law Review 62 (1983), p. 299; Leiter, "Objectivity and the Problems of Jurisprudence", supra note 1; Dworkin, Law's Empire and "Objectivity and Truth: You'd Better Believe It", supra note 1; Greenawalt, Law and Objectivity, supra note 1; and Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1.
61. Ibid., at p. 612/256. Their characterization of strong objectivity as realist involves a view of realism that some would reject. On one alternative view, minimal and modest objectivity, and even subjectivism, would also count as realist positions. See Sayre-McCord, "The Many Moral Realisms", supra note 6. According to Coleman and Leiter, Michael Moore and David Brink believe legal facts are strongly objective, Stanley Fish and Leiter hold that legal facts are minimally objective, and Ronald Dworkin, Kent Greenawalt and Coleman hold that legal facts are modestly objective. See Moore, "Moral Reality Revisited" and "A Natural Law Theory of Interpretation", supra note 1; Brink, "Legal Theory, Legal Interpretation, and Judicial Review" and "Legal Interpretation, Objectivity, and Morality", supra note 1; Stanley Fish, "Working on the Chain Gang: Interpretation in Law and Literature", Texas Law Review 60 (1982), p. 551 and "Wrong Again", Texas Law Review 62 (1983), p. 299; Leiter, "Objectivity and the Problems of Jurisprudence", supra note 1; Dworkin, Law's Empire and "Objectivity and Truth: You'd Better Believe It", supra note 1; Greenawalt, Law and Objectivity, supra note 1; and Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1.
62. Ibid., at p. 612/256. Their characterization of strong objectivity as realist involves a view of realism that some would reject. On one alternative view, minimal and modest objectivity, and even subjectivism, would also count as realist positions. See Sayre-McCord, "The Many Moral Realisms", supra note 6. According to Coleman and Leiter, Michael Moore and David Brink believe legal facts are strongly objective, Stanley Fish and Leiter hold that legal facts are minimally objective, and Ronald Dworkin, Kent Greenawalt and Coleman hold that legal facts are modestly objective. See Moore, "Moral Reality Revisited" and "A Natural Law Theory of Interpretation", supra note 1; Brink, "Legal Theory, Legal Interpretation, and Judicial Review" and "Legal Interpretation, Objectivity, and Morality", supra note 1; Stanley Fish, "Working on the Chain Gang: Interpretation in Law and Literature", Texas Law Review 60 (1982), p. 551 and "Wrong Again", Texas Law Review 62 (1983), p. 299; Leiter, "Objectivity and the Problems of Jurisprudence", supra note 1; Dworkin, Law's Empire and "Objectivity and Truth: You'd Better Believe It", supra note 1; Greenawalt, Law and Objectivity, supra note 1; and Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1.
63. Ibid., at p. 612/256. Their characterization of strong objectivity as realist involves a view of realism that some would reject. On one alternative view, minimal and modest objectivity, and even subjectivism, would also count as realist positions. See Sayre-McCord, "The Many Moral Realisms", supra note 6. According to Coleman and Leiter, Michael Moore and David Brink believe legal facts are strongly objective, Stanley Fish and Leiter hold that legal facts are minimally objective, and Ronald Dworkin, Kent Greenawalt and Coleman hold that legal facts are modestly objective. See Moore, "Moral Reality Revisited" and "A Natural Law Theory of Interpretation", supra note 1; Brink, "Legal Theory, Legal Interpretation, and Judicial Review" and "Legal Interpretation, Objectivity, and Morality", supra note 1; Stanley Fish, "Working on the Chain Gang: Interpretation in Law and Literature", Texas Law Review 60 (1982), p. 551 and "Wrong Again", Texas Law Review 62 (1983), p. 299; Leiter, "Objectivity and the Problems of Jurisprudence", supra note 1; Dworkin, Law's Empire and "Objectivity and Truth: You'd Better Believe It", supra note 1; Greenawalt, Law and Objectivity, supra note 1; and Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1.
64. Ibid., at p. 612/256. Their characterization of strong objectivity as realist involves a view of realism that some would reject. On one alternative view, minimal and modest objectivity, and even subjectivism, would also count as realist positions. See Sayre-McCord, "The Many Moral Realisms", supra note 6. According to Coleman and Leiter, Michael Moore and David Brink believe legal facts are strongly objective, Stanley Fish and Leiter hold that legal facts are minimally objective, and Ronald Dworkin, Kent Greenawalt and Coleman hold that legal facts are modestly objective. See Moore, "Moral Reality Revisited" and "A Natural Law Theory of Interpretation", supra note 1; Brink, "Legal Theory, Legal Interpretation, and Judicial Review" and "Legal Interpretation, Objectivity, and Morality", supra note 1; Stanley Fish, "Working on the Chain Gang: Interpretation in Law and Literature", Texas Law Review 60 (1982), p. 551 and "Wrong Again", Texas Law Review 62 (1983), p. 299; Leiter, "Objectivity and the Problems of Jurisprudence", supra note 1; Dworkin, Law's Empire and "Objectivity and Truth: You'd Better Believe It", supra note 1; Greenawalt, Law and Objectivity, supra note 1; and Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1.
65. Ibid., at p. 612/256. Their characterization of strong objectivity as realist involves a view of realism that some would reject. On one alternative view, minimal and modest objectivity, and even subjectivism, would also count as realist positions. See Sayre-McCord, "The Many Moral Realisms", supra note 6. According to Coleman and Leiter, Michael Moore and David Brink believe legal facts are strongly objective, Stanley Fish and Leiter hold that legal facts are minimally objective, and Ronald Dworkin, Kent Greenawalt and Coleman hold that legal facts are modestly objective. See Moore, "Moral Reality Revisited" and "A Natural Law Theory of Interpretation", supra note 1; Brink, "Legal Theory, Legal Interpretation, and Judicial Review" and "Legal Interpretation, Objectivity, and Morality", supra note 1; Stanley Fish, "Working on the Chain Gang: Interpretation in Law and Literature", Texas Law Review 60 (1982), p. 551 and "Wrong Again", Texas Law Review 62 (1983), p. 299; Leiter, "Objectivity and the Problems of Jurisprudence", supra note 1; Dworkin, Law's Empire and "Objectivity and Truth: You'd Better Believe It", supra note 1; Greenawalt, Law and Objectivity, supra note 1; and Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1.
66. Ibid., at p. 612/256. Their characterization of strong objectivity as realist involves a view of realism that some would reject. On one alternative view, minimal and modest objectivity, and even subjectivism, would also count as realist positions. See Sayre-McCord, "The Many Moral Realisms", supra note 6. According to Coleman and Leiter, Michael Moore and David Brink believe legal facts are strongly objective, Stanley Fish and Leiter hold that legal facts are minimally objective, and Ronald Dworkin, Kent Greenawalt and Coleman hold that legal facts are modestly objective. See Moore, "Moral Reality Revisited" and "A Natural Law Theory of Interpretation", supra note 1; Brink, "Legal Theory, Legal Interpretation, and Judicial Review" and "Legal Interpretation, Objectivity, and Morality", supra note 1; Stanley Fish, "Working on the Chain Gang: Interpretation in Law and Literature", Texas Law Review 60 (1982), p. 551 and "Wrong Again", Texas Law Review 62 (1983), p. 299; Leiter, "Objectivity and the Problems of Jurisprudence", supra note 1; Dworkin, Law's Empire and "Objectivity and Truth: You'd Better Believe It", supra note 1; Greenawalt, Law and Objectivity, supra note 1; and Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1.
67. Ibid., at p. 612/256. Their characterization of strong objectivity as realist involves a view of realism that some would reject. On one alternative view, minimal and modest objectivity, and even subjectivism, would also count as realist positions. See Sayre-McCord, "The Many Moral Realisms", supra note 6. According to Coleman and Leiter, Michael Moore and David Brink believe legal facts are strongly objective, Stanley Fish and Leiter hold that legal facts are minimally objective, and Ronald Dworkin, Kent Greenawalt and Coleman hold that legal facts are modestly objective. See Moore, "Moral Reality Revisited" and "A Natural Law Theory of Interpretation", supra note 1; Brink, "Legal Theory, Legal Interpretation, and Judicial Review" and "Legal Interpretation, Objectivity, and Morality", supra note 1; Stanley Fish, "Working on the Chain Gang: Interpretation in Law and Literature", Texas Law Review 60 (1982), p. 551 and "Wrong Again", Texas Law Review 62 (1983), p. 299; Leiter, "Objectivity and the Problems of Jurisprudence", supra note 1; Dworkin, Law's Empire and "Objectivity and Truth: You'd Better Believe It", supra note 1; Greenawalt, Law and Objectivity, supra note 1; and Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1.
68. Ibid., at p. 612/256. Their characterization of strong objectivity as realist involves a view of realism that some would reject. On one alternative view, minimal and modest objectivity, and even subjectivism, would also count as realist positions. See Sayre-McCord, "The Many Moral Realisms", supra note 6. According to Coleman and Leiter, Michael Moore and David Brink believe legal facts are strongly objective, Stanley Fish and Leiter hold that legal facts are minimally objective, and Ronald Dworkin, Kent Greenawalt and Coleman hold that legal facts are modestly objective. See Moore, "Moral Reality Revisited" and "A Natural Law Theory of Interpretation", supra note 1; Brink, "Legal Theory, Legal Interpretation, and Judicial Review" and "Legal Interpretation, Objectivity, and Morality", supra note 1; Stanley Fish, "Working on the Chain Gang: Interpretation in Law and Literature", Texas Law Review 60 (1982), p. 551 and "Wrong Again", Texas Law Review 62 (1983), p. 299; Leiter, "Objectivity and the Problems of Jurisprudence", supra note 1; Dworkin, Law's Empire and "Objectivity and Truth: You'd Better Believe It", supra note 1; Greenawalt, Law and Objectivity, supra note 1; and Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1.
69. Ibid., at p. 612/256. Their characterization of strong objectivity as realist involves a view of realism that some would reject. On one alternative view, minimal and modest objectivity, and even subjectivism, would also count as realist positions. See Sayre-McCord, "The Many Moral Realisms", supra note 6. According to Coleman and Leiter, Michael Moore and David Brink believe legal facts are strongly objective, Stanley Fish and Leiter hold that legal facts are minimally objective, and Ronald Dworkin, Kent Greenawalt and Coleman hold that legal facts are modestly objective. See Moore, "Moral Reality Revisited" and "A Natural Law Theory of Interpretation", supra note 1; Brink, "Legal Theory, Legal Interpretation, and Judicial Review" and "Legal Interpretation, Objectivity, and Morality", supra note 1; Stanley Fish, "Working on the Chain Gang: Interpretation in Law and Literature", Texas Law Review 60 (1982), p. 551 and "Wrong Again", Texas Law Review 62 (1983), p. 299; Leiter, "Objectivity and the Problems of Jurisprudence", supra note 1; Dworkin, Law's Empire and "Objectivity and Truth: You'd Better Believe It", supra note 1; Greenawalt, Law and Objectivity, supra note 1; and Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1.
70. One might, of course, be suspicious of a theory of properties that was this capacious, but that is a separate worry. I see no obvious reason to think that a plausibly narrow account of properties would preclude all putative properties that include among their constituents the property of having a particular belief.
71. See J. L. Mackie, Ethics: Inventing Right and Wrong (Harmondsworth: Penguin Books, 1977).
72. The difference between Mackiean and Platonistic error theories thus lies in their respective ontologies.
73. With regard to the first possibility, perhaps, as the work of some CLS writers might suggest, more than one theory can fit and justify the settled law and those theories that do deeply conflict.
74. At least, Coleman and Leiter suggest this may be true about modest objectivity. See Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1 at p. 629/271. Leiter presumably thinks that some version of minimal objectivity better explains or fits our legal practices.
75. See Karl Llewellyn, The Bramble Bush: Some Lectures on Law and Its Study (New York: Columbia University School of Law, 1930).
76. See, generally, Kennedy, "Form and Substance in Private Law Adjudication", supra note 2.
77. See Bruce Ackerman, We the People: Foundations (Cambridge: Harvard University Press, 1991).
78. See West Coast Hotel v. Parrish, 300 U.S. 379 (1937) (overruling Adkins v. Children's Hospital of District of Columbia, 261 U.S. 525 (1923)).
79. See Plessy v. Ferguson, 163 U.S. 537 (1896).
80. See Brown v. Board of Education, 347 U.S. 483 (1954).
81. One context in which we might be tempted to say that we never discovered what the law is would be with respect to untested laws or constitutional provisions, such as the Third Amendment provision regarding the quartering of soldiers. But notice that our saying that we never discovered what the law is in this context would be ambiguous as between descriptive-prognostic and critical readings. That is to say, one who treats what the law "really is" on the first reading would simply mean that because no court ever considered the matter, we have insufficient basis for predicting legal outcomes. On the second reading, in contrast, we could fail to know what the law is even if the courts had spoken and we otherwise had sufficient basis for predicting what a court would say. Thanks to Jerry Dworkin for the example.
82. Among the puzzling questions about stare decisis is just when and why this would be so.
83. I say "may" because one might think that judges ought to be guided by "contra-Plessy," they just ought to proceed in tiny steps over time.
84. Larry Alexander has suggested to me that the second puzzle about the law is really no puzzle, because once one accepts the settlement function of law, one sees that final legal decisions may result in complicated (but unparadoxical) legal statements. I doubt that appeal to the settlement function of law dissolves the second puzzle in any easy way, though it no doubt bears on how one might try to address it. The initial complication is in saying just what the settlement function amounts to and what role it plays. It might simply serve to explain why people, especially, governmental officials, have an obligation to obey the decisions of courts. To say, "The law is and is not Plessy," would then simply be to say that because the Court ruled as it did, one is obligated to obey that authoritative determination (to treat it as correct) even though it is not correct as to the law. Some such response to the second puzzle might ultimately be defensible, but it is not obvious, to me, at any rate, that this is all there is to our conflicting claims about the law. One could, it seems, utter the seemingly paradoxical claim, while denying that one had an obligation to obey, even if one accepted the settlement function. (That will depend, in part, on how the latter function is understood.) More argument would be needed, then, to show that "the law is" clause merely expresses a person's acceptance of an obligation or is best explained as saying that such an obligation exists. A second possibility is that the settlement function somehow figures in a characterization of the nature of legal facts themselves. If one thought, for instance, that something couldn't be a legal fact without implying an obligation to obey and one thought the settlement function of law had the result that authoritative decisions imply an obligation, one might be tempted to think that authoritative legal judgments partly determine the legal facts. But it is presumably compatible with recognizing the settlement function of law that authoritative rulings may effect changes, and when they do, the judge would seem to be saying, "I recognize that the law is X, but now the law is Y." Such a view raises additional difficulties, but for present purposes we can simply observe that it would leave us hard pressed to explain our conflicting legal claims. At any rate, as I have emphasized in the text, my point is not that the puzzle cannot be resolved or even that it will be especially difficult to do so. My point is merely that an account of the nature of legal facts will need to address it and that the problem is more complicated than some have allowed. On the settlement function of law, see, e.g., Larry Alexander and Fred Schauer, "On Extrajudicial Constitutional Interpretation", Harvard Law Review 110 (1997), p. 1359, and Larry Alexander and Emily Sherwin, The Rule of Rules (Durham, NC: Duke University Press, 2001).
85. Larry Alexander has suggested to me that the second puzzle about the law is really no puzzle, because once one accepts the settlement function of law, one sees that final legal decisions may result in complicated (but unparadoxical) legal statements. I doubt that appeal to the settlement function of law dissolves the second puzzle in any easy way, though it no doubt bears on how one might try to address it. The initial complication is in saying just what the settlement function amounts to and what role it plays. It might simply serve to explain why people, especially, governmental officials, have an obligation to obey the decisions of courts. To say, "The law is and is not Plessy," would then simply be to say that because the Court ruled as it did, one is obligated to obey that authoritative determination (to treat it as correct) even though it is not correct as to the law. Some such response to the second puzzle might ultimately be defensible, but it is not obvious, to me, at any rate, that this is all there is to our conflicting claims about the law. One could, it seems, utter the seemingly paradoxical claim, while denying that one had an obligation to obey, even if one accepted the settlement function. (That will depend, in part, on how the latter function is understood.) More argument would be needed, then, to show that "the law is" clause merely expresses a person's acceptance of an obligation or is best explained as saying that such an obligation exists. A second possibility is that the settlement function somehow figures in a characterization of the nature of legal facts themselves. If one thought, for instance, that something couldn't be a legal fact without implying an obligation to obey and one thought the settlement function of law had the result that authoritative decisions imply an obligation, one might be tempted to think that authoritative legal judgments partly determine the legal facts. But it is presumably compatible with recognizing the settlement function of law that authoritative rulings may effect changes, and when they do, the judge would seem to be saying, "I recognize that the law is X, but now the law is Y." Such a view raises additional difficulties, but for present purposes we can simply observe that it would leave us hard pressed to explain our conflicting legal claims. At any rate, as I have emphasized in the text, my point is not that the puzzle cannot be resolved or even that it will be especially difficult to do so. My point is merely that an account of the nature of legal facts will need to address it and that the problem is more complicated than some have allowed. On the settlement function of law, see, e.g., Larry Alexander and Fred Schauer, "On Extrajudicial Constitutional Interpretation", Harvard Law Review 110 (1997), p. 1359, and Larry Alexander and Emily Sherwin, The Rule of Rules (Durham, NC: Duke University Press, 2001).
86. See Leiter, "Rethinking Legal Realism: Toward a Naturalized Jurisprudence", supra note 1. Leiter examines in some detail the realists' interest in prediction, arguing persuasively, based on what the requirements for such prediction would be, that a widespread view about legal realism is fundamentally mistaken. See also Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at pp. 581-584/229-233.
87. See Leiter, "Rethinking Legal Realism: Toward a Naturalized Jurisprudence", supra note 1. Leiter examines in some detail the realists' interest in prediction, arguing persuasively, based on what the requirements for such prediction would be, that a widespread view about legal realism is fundamentally mistaken. See also Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at pp. 581-584/229-233.
88. See Robert H. Bork, The Tempting of America: the Political Seduction of the Law (New York: Simon & Schuster, 1990), p. 157. Justice Scalia likewise acknowledges that "almost every originalist would adulterate [originalism] with the doctrine of stare decisis." See Antonin Scalia, "Originalism: the Lesser Evil", Cincinnati Law Review 57 (1989), p. 849, at p. 861.
89. See Robert H. Bork, The Tempting of America: the Political Seduction of the Law (New York: Simon & Schuster, 1990), p. 157. Justice Scalia likewise acknowledges that "almost every originalist would adulterate [originalism] with the doctrine of stare decisis." See Antonin Scalia, "Originalism: the Lesser Evil", Cincinnati Law Review 57 (1989), p. 849, at p. 861.
90. See, e.g., Richard H. Fallon, Jr., "Forward: Implementing the Constitution", Harvard Law Review 111 (1997), p. 54; and Cass Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (Cambridge: Harvard University Press, 1999). Fallon argues that the Supreme Court's role is not solely to identify the "meaning" of the Constitution, but to "implement" it through the development of doctrine, and so justices ought to "subordinate their personal views about how the Constitution would best be implemented and ... accept doctrinal structures that they regard as less optimal." Fallon, "Forward: Implementing the Constitution", p. 59. Sunstein argues that the current Supreme Court generally is, as it ought to be, "minimalist," deciding only what must be decided to resolve the case before it satisfactorily, thereby leaving room for experimentation, fact finding, and democratic resolution of problems. See also Michael C. Dorf, "Foreword: The Limits of Socratic Deliberation", Harvard Law Review 112 (1998), p. 4 (defending the idea of "provisional adjudication" that would permit the experimentation needed to uncover information that can lead to the formulation of more adequate constitutional doctrine).
91. See, e.g., Richard H. Fallon, Jr., "Forward: Implementing the Constitution", Harvard Law Review 111 (1997), p. 54; and Cass Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (Cambridge: Harvard University Press, 1999). Fallon argues that the Supreme Court's role is not solely to identify the "meaning" of the Constitution, but to "implement" it through the development of doctrine, and so justices ought to "subordinate their personal views about how the Constitution would best be implemented and ... accept doctrinal structures that they regard as less optimal." Fallon, "Forward: Implementing the Constitution", p. 59. Sunstein argues that the current Supreme Court generally is, as it ought to be, "minimalist," deciding only what must be decided to resolve the case before it satisfactorily, thereby leaving room for experimentation, fact finding, and democratic resolution of problems. See also Michael C. Dorf, "Foreword: The Limits of Socratic Deliberation", Harvard Law Review 112 (1998), p. 4 (defending the idea of "provisional adjudication" that would permit the experimentation needed to uncover information that can lead to the formulation of more adequate constitutional doctrine).
92. See, e.g., Richard H. Fallon, Jr., "Forward: Implementing the Constitution", Harvard Law Review 111 (1997), p. 54; and Cass Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (Cambridge: Harvard University Press, 1999). Fallon argues that the Supreme Court's role is not solely to identify the "meaning" of the Constitution, but to "implement" it through the development of doctrine, and so justices ought to "subordinate their personal views about how the Constitution would best be implemented and ... accept doctrinal structures that they regard as less optimal." Fallon, "Forward: Implementing the Constitution", p. 59. Sunstein argues that the current Supreme Court generally is, as it ought to be, "minimalist," deciding only what must be decided to resolve the case before it satisfactorily, thereby leaving room for experimentation, fact finding, and democratic resolution of problems. See also Michael C. Dorf, "Foreword: The Limits of Socratic Deliberation", Harvard Law Review 112 (1998), p. 4 (defending the idea of "provisional adjudication" that would permit the experimentation needed to uncover information that can lead to the formulation of more adequate constitutional doctrine).
93. See, e.g., Richard H. Fallon, Jr., "Forward: Implementing the Constitution", Harvard Law Review 111 (1997), p. 54; and Cass Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (Cambridge: Harvard University Press, 1999). Fallon argues that the Supreme Court's role is not solely to identify the "meaning" of the Constitution, but to "implement" it through the development of doctrine, and so justices ought to "subordinate their personal views about how the Constitution would best be implemented and ... accept doctrinal structures that they regard as less optimal." Fallon, "Forward: Implementing the Constitution", p. 59. Sunstein argues that the current Supreme Court generally is, as it ought to be, "minimalist," deciding only what must be decided to resolve the case before it satisfactorily, thereby leaving room for experimentation, fact finding, and democratic resolution of problems. See also Michael C. Dorf, "Foreword: The Limits of Socratic Deliberation", Harvard Law Review 112 (1998), p. 4 (defending the idea of "provisional adjudication" that would permit the experimentation needed to uncover information that can lead to the formulation of more adequate constitutional doctrine).
94. For example, Gerald Postema has observed that law is essentially practical yet also a social phenomenon. See Gerald Postema, "The Normativity of Law", in Ruth Gavison (ed.), Issues in Contemporary Legal Philosophy: The Influence of H.L.A. Hart (Oxford: Clarendon Press, 1987), pp. 81-104. David Lyons, while taking issue with Postema's characterization, has noted the "moral pretensions" of law. See David Lyons, "Comment", in Issues in Contemporary Legal Philosophy, pp. 114-126. Stephen Perry has traced the special methodological difficulties of jurisprudence to the fact that law is both normative and social. See Stephen R. Perry, "Interpretation and Methodology in Legal Theory", in Law and Interpretation: Essays in Legal Philosophy, pp. 97-135. And Raz has commented that the law "is a social fact" but with a "normative aspect." See Joseph Raz, "On the Authority and Interpretation of Constitutions: Some Preliminaries", in Larry Alexander (ed.), Constitutionalism (Cambridge: Cambridge, 1998), pp. 152-193, 170.
95. For example, Gerald Postema has observed that law is essentially practical yet also a social phenomenon. See Gerald Postema, "The Normativity of Law", in Ruth Gavison (ed.), Issues in Contemporary Legal Philosophy: The Influence of H.L.A. Hart (Oxford: Clarendon Press, 1987), pp. 81-104. David Lyons, while taking issue with Postema's characterization, has noted the "moral pretensions" of law. See David Lyons, "Comment", in Issues in Contemporary Legal Philosophy, pp. 114-126. Stephen Perry has traced the special methodological difficulties of jurisprudence to the fact that law is both normative and social. See Stephen R. Perry, "Interpretation and Methodology in Legal Theory", in Law and Interpretation: Essays in Legal Philosophy, pp. 97-135. And Raz has commented that the law "is a social fact" but with a "normative aspect." See Joseph Raz, "On the Authority and Interpretation of Constitutions: Some Preliminaries", in Larry Alexander (ed.), Constitutionalism (Cambridge: Cambridge, 1998), pp. 152-193, 170.
96. For example, Gerald Postema has observed that law is essentially practical yet also a social phenomenon. See Gerald Postema, "The Normativity of Law", in Ruth Gavison (ed.), Issues in Contemporary Legal Philosophy: The Influence of H.L.A. Hart (Oxford: Clarendon Press, 1987), pp. 81-104. David Lyons, while taking issue with Postema's characterization, has noted the "moral pretensions" of law. See David Lyons, "Comment", in Issues in Contemporary Legal Philosophy, pp. 114-126. Stephen Perry has traced the special methodological difficulties of jurisprudence to the fact that law is both normative and social. See Stephen R. Perry, "Interpretation and Methodology in Legal Theory", in Law and Interpretation: Essays in Legal Philosophy, pp. 97-135. And Raz has commented that the law "is a social fact" but with a "normative aspect." See Joseph Raz, "On the Authority and Interpretation of Constitutions: Some Preliminaries", in Larry Alexander (ed.), Constitutionalism (Cambridge: Cambridge, 1998), pp. 152-193, 170.
97. For example, Gerald Postema has observed that law is essentially practical yet also a social phenomenon. See Gerald Postema, "The Normativity of Law", in Ruth Gavison (ed.), Issues in Contemporary Legal Philosophy: The Influence of H.L.A. Hart (Oxford: Clarendon Press, 1987), pp. 81-104. David Lyons, while taking issue with Postema's characterization, has noted the "moral pretensions" of law. See David Lyons, "Comment", in Issues in Contemporary Legal Philosophy, pp. 114-126. Stephen Perry has traced the special methodological difficulties of jurisprudence to the fact that law is both normative and social. See Stephen R. Perry, "Interpretation and Methodology in Legal Theory", in Law and Interpretation: Essays in Legal Philosophy, pp. 97-135. And Raz has commented that the law "is a social fact" but with a "normative aspect." See Joseph Raz, "On the Authority and Interpretation of Constitutions: Some Preliminaries", in Larry Alexander (ed.), Constitutionalism (Cambridge: Cambridge, 1998), pp. 152-193, 170.
98. For some indication of the diverse array of ideas about normativity in the literature in metaethics, see William K. Frankena, "Obligation and Value in the Ethics of G.E. Moore", in Paul Arthur Schilpp (ed.), The Philosophy of G.E. Moore (La Salle, IL: Open Court, 1942), pp. 93-110; Smith, The Moral Problem, supra note 14, at p. 95; David Copp, Morality, Normativity, and Society (New York: Oxford University Press, 1995), p. 10, and Ch. 2; Gibbard, Wise Choices, Apt Feelings: A Theory of Normative Judgment, supra note 14, at pp. 9, 21, and 33; Christine Korsgaard, The Sources of Normativity (Cambridge: Cambridge University Press, 1996); and Stephen Darwall, "How Should Ethics Relate to (the Rest of?) Philosophy: Moore's Legacy", Southern Journal of Philosophy XL1 Suppl. (2003), pp. 1-20.
99. For some indication of the diverse array of ideas about normativity in the literature in metaethics, see William K. Frankena, "Obligation and Value in the Ethics of G.E. Moore", in Paul Arthur Schilpp (ed.), The Philosophy of G.E. Moore (La Salle, IL: Open Court, 1942), pp. 93-110; Smith, The Moral Problem, supra note 14, at p. 95; David Copp, Morality, Normativity, and Society (New York: Oxford University Press, 1995), p. 10, and Ch. 2; Gibbard, Wise Choices, Apt Feelings: A Theory of Normative Judgment, supra note 14, at pp. 9, 21, and 33; Christine Korsgaard, The Sources of Normativity (Cambridge: Cambridge University Press, 1996); and Stephen Darwall, "How Should Ethics Relate to (the Rest of?) Philosophy: Moore's Legacy", Southern Journal of Philosophy XL1 Suppl. (2003), pp. 1-20.
100. For some indication of the diverse array of ideas about normativity in the literature in metaethics, see William K. Frankena, "Obligation and Value in the Ethics of G.E. Moore", in Paul Arthur Schilpp (ed.), The Philosophy of G.E. Moore (La Salle, IL: Open Court, 1942), pp. 93-110; Smith, The Moral Problem, supra note 14, at p. 95; David Copp, Morality, Normativity, and Society (New York: Oxford University Press, 1995), p. 10, and Ch. 2; Gibbard, Wise Choices, Apt Feelings: A Theory of Normative Judgment, supra note 14, at pp. 9, 21, and 33; Christine Korsgaard, The Sources of Normativity (Cambridge: Cambridge University Press, 1996); and Stephen Darwall, "How Should Ethics Relate to (the Rest of?) Philosophy: Moore's Legacy", Southern Journal of Philosophy XL1 Suppl. (2003), pp. 1-20.
101. For some indication of the diverse array of ideas about normativity in the literature in metaethics, see William K. Frankena, "Obligation and Value in the Ethics of G.E. Moore", in Paul Arthur Schilpp (ed.), The Philosophy of G.E. Moore (La Salle, IL: Open Court, 1942), pp. 93-110; Smith, The Moral Problem, supra note 14, at p. 95; David Copp, Morality, Normativity, and Society (New York: Oxford University Press, 1995), p. 10, and Ch. 2; Gibbard, Wise Choices, Apt Feelings: A Theory of Normative Judgment, supra note 14, at pp. 9, 21, and 33; Christine Korsgaard, The Sources of Normativity (Cambridge: Cambridge University Press, 1996); and Stephen Darwall, "How Should Ethics Relate to (the Rest of?) Philosophy: Moore's Legacy", Southern Journal of Philosophy XL1 Suppl. (2003), pp. 1-20.
102. For some indication of the diverse array of ideas about normativity in the literature in metaethics, see William K. Frankena, "Obligation and Value in the Ethics of G.E. Moore", in Paul Arthur Schilpp (ed.), The Philosophy of G.E. Moore (La Salle, IL: Open Court, 1942), pp. 93-110; Smith, The Moral Problem, supra note 14, at p. 95; David Copp, Morality, Normativity, and Society (New York: Oxford University Press, 1995), p. 10, and Ch. 2; Gibbard, Wise Choices, Apt Feelings: A Theory of Normative Judgment, supra note 14, at pp. 9, 21, and 33; Christine Korsgaard, The Sources of Normativity (Cambridge: Cambridge University Press, 1996); and Stephen Darwall, "How Should Ethics Relate to (the Rest of?) Philosophy: Moore's Legacy", Southern Journal of Philosophy XL1 Suppl. (2003), pp. 1-20.
103. For some indication of the diverse array of ideas about normativity in the literature in metaethics, see William K. Frankena, "Obligation and Value in the Ethics of G.E. Moore", in Paul Arthur Schilpp (ed.), The Philosophy of G.E. Moore (La Salle, IL: Open Court, 1942), pp. 93-110; Smith, The Moral Problem, supra note 14, at p. 95; David Copp, Morality, Normativity, and Society (New York: Oxford University Press, 1995), p. 10, and Ch. 2; Gibbard, Wise Choices, Apt Feelings: A Theory of Normative Judgment, supra note 14, at pp. 9, 21, and 33; Christine Korsgaard, The Sources of Normativity (Cambridge: Cambridge University Press, 1996); and Stephen Darwall, "How Should Ethics Relate to (the Rest of?) Philosophy: Moore's Legacy", Southern Journal of Philosophy XL1 Suppl. (2003), pp. 1-20.
104. See Hart, The Concept of Law, supra note 9, and "Legal Duty and Obligation", in Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford: Clarendon Press, 1982), p. 144. See also Postema, "The Normativity of Law", supra note 39, and Stephen R. Perry, "Hart's Methodological Positivism", Legal Theory 4 (1998), pp. 427-467, 445.
105. See Hart, The Concept of Law, supra note 9, and "Legal Duty and Obligation", in Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford: Clarendon Press, 1982), p. 144. See also Postema, "The Normativity of Law", supra note 39, and Stephen R. Perry, "Hart's Methodological Positivism", Legal Theory 4 (1998), pp. 427-467, 445.
106. See Hart, The Concept of Law, supra note 9, and "Legal Duty and Obligation", in Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford: Clarendon Press, 1982), p. 144. See also Postema, "The Normativity of Law", supra note 39, and Stephen R. Perry, "Hart's Methodological Positivism", Legal Theory 4 (1998), pp. 427-467, 445.
107. See Hart, The Concept of Law, supra note 9, and "Legal Duty and Obligation", in Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford: Clarendon Press, 1982), p. 144. See also Postema, "The Normativity of Law", supra note 39, and Stephen R. Perry, "Hart's Methodological Positivism", Legal Theory 4 (1998), pp. 427-467, 445.
108. Copp, Morality, Normativity, and Society, supra note 40, at p. 10 and pp. 22-24.
109. Although Copp uses some examples from law to illustrate type-one normative claims, he observes that it can be a matter of dispute whether claims in a given domain, such as law, are type-one or type-two normative. See ibid., at p. 24. And see his remarks about etiquette, ibid., at pp. 99-100. Doubts about the viability of Copp's distinction might rest on ideas of the sort raised, in another context, by Christine Korsgaard, in "The Normativity of Instrumental Reasons", in Garrett Cullity and Berys Gaut (eds.), Ethics and Practical Reason (Oxford: Clarendon Press, 1997), pp. 215-254. For examination of how law's objectivity may be connected, in part, to its relation to external normative standards, such as cultural morality, efficiency, and political morality proper, see Greenawalt, Law and Objectivity, supra note 1, Ch. 9.
110. Although Copp uses some examples from law to illustrate type-one normative claims, he observes that it can be a matter of dispute whether claims in a given domain, such as law, are type-one or type-two normative. See ibid., at p. 24. And see his remarks about etiquette, ibid., at pp. 99-100. Doubts about the viability of Copp's distinction might rest on ideas of the sort raised, in another context, by Christine Korsgaard, in "The Normativity of Instrumental Reasons", in Garrett Cullity and Berys Gaut (eds.), Ethics and Practical Reason (Oxford: Clarendon Press, 1997), pp. 215-254. For examination of how law's objectivity may be connected, in part, to its relation to external normative standards, such as cultural morality, efficiency, and political morality proper, see Greenawalt, Law and Objectivity, supra note 1, Ch. 9.
111. Although Copp uses some examples from law to illustrate type-one normative claims, he observes that it can be a matter of dispute whether claims in a given domain, such as law, are type-one or type-two normative. See ibid., at p. 24. And see his remarks about etiquette, ibid., at pp. 99-100. Doubts about the viability of Copp's distinction might rest on ideas of the sort raised, in another context, by Christine Korsgaard, in "The Normativity of Instrumental Reasons", in Garrett Cullity and Berys Gaut (eds.), Ethics and Practical Reason (Oxford: Clarendon Press, 1997), pp. 215-254. For examination of how law's objectivity may be connected, in part, to its relation to external normative standards, such as cultural morality, efficiency, and political morality proper, see Greenawalt, Law and Objectivity, supra note 1, Ch. 9.
112. Although Copp uses some examples from law to illustrate type-one normative claims, he observes that it can be a matter of dispute whether claims in a given domain, such as law, are type-one or type-two normative. See ibid., at p. 24. And see his remarks about etiquette, ibid., at pp. 99-100. Doubts about the viability of Copp's distinction might rest on ideas of the sort raised, in another context, by Christine Korsgaard, in "The Normativity of Instrumental Reasons", in Garrett Cullity and Berys Gaut (eds.), Ethics and Practical Reason (Oxford: Clarendon Press, 1997), pp. 215-254. For examination of how law's objectivity may be connected, in part, to its relation to external normative standards, such as cultural morality, efficiency, and political morality proper, see Greenawalt, Law and Objectivity, supra note 1, Ch. 9.
113. On my reading of them, Coleman and Leiter should not really be understood as committing themselves to any particular analysis of legal facts or properties - and certainly not to any of the rough and ready views they jointly sketch. Rather they should be understood as indicating the general form of analysis that each believes will ultimately prove most promising, and that is consistent with acknowledging, as I believe they would, that the rough views they sketch face problems. For this reason, I doubt that either Coleman or Leiter would disagree much with the main arguments to come.
114. Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at p. 607/252.
115. Ibid., at p. 612/256.
116. Ibid., at p. 608/253.
117. Ibid., at p. 602/248-249.
118. At one point, Coleman and Leiter suggest that modestly objective facts are only "de facto" inaccessible, whereas strongly objective facts are "de jure" or "in principle" inaccessible. Ibid., at pp. 631-632/273. But if strongly objective facts really were "de jure" inaccessible, that would suggest that we can never have access to them, and presumably only skeptics think that. If my suggestions in the text are correct, then the real difference would seem to be that for the modest objectivist, the analysis of legal facts guarantees their in principle accessibility, whereas for the strong objectivist, it is a deeply contingent matter whether we ever come to know the legal facts and, indeed, whether our adjudicatory methods are at all suitable for helping us come to know them.
119. Notice that in talking in terms of legal properties, we need not yet commit ourselves to any particular theory of properties.
120. Ibid., at p. 613/257.
121. Ibid., at p. 613/257-258.
122. Ibid., at p. 614/258.
123. Ibid., at pp. 615-616/259.
124. Ibid., at p. 615/259.
125. Recognizing this is, of course, perfectly consistent with allowing that we might sometimes fail ever to come to see the best move in a particular game of chess. Note that even natural law theorists, who in an important sense must deny that we make law, would have to account for its conventional component. For some discussion of the relation of natural and positive law, see Robert P. George, "Natural Law and Positive Law", in Robert P. George (ed.), The Autonomy of Law (Oxford: Clarendon Press, 1996).
126. Frankena, "Obligation and Value in the Ethics of G.E. Moore", supra note 40. I am grateful to Michael Jubien and Jeff King for helpful conversations about property entailment and Frankena's critique of Moore.
127. Ibid., at pp. 98-99.
128. See Connie S. Rosati, "Agency and the Open Question Argument", Ethics 113 (April 2003), pp. 490-527.
129. One could claim that just as moral properties are sui generis, they stand in relationships to one another that are sui generis. But that leaves unexplained the apparently meaning determined inferential relations between sentences using different normative concepts.
130. I have argued elsewhere that the failure revealed by Moore's open question argument is a failure of extant forms of naturalism to make some appropriate connection to our agency. Although an account of a normative property might make sense of how inferential relations hold among normative claims in a number of ways, to be successful, it must effect some appropriate connection to whatever it is about us that makes us capable of acting for reasons and guiding ourselves by rules. See Rosati, "Agency and the Open Question Argument". For Greenawalt's rejection of strong objectivity about legal facts, see Law and Objectivity, supra note 1, pp. 208-210, and 221.
131. I have argued elsewhere that the failure revealed by Moore's open question argument is a failure of extant forms of naturalism to make some appropriate connection to our agency. Although an account of a normative property might make sense of how inferential relations hold among normative claims in a number of ways, to be successful, it must effect some appropriate connection to whatever it is about us that makes us capable of acting for reasons and guiding ourselves by rules. See Rosati, "Agency and the Open Question Argument". For Greenawalt's rejection of strong objectivity about legal facts, see Law and Objectivity, supra note 1, pp. 208-210, and 221.
132. Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at p. 616/260. Their discussion also sometimes suggests that minimal objectivity is the view that legal facts are determined by "collective" or "convergent practices." Ibid., at p. 608/253. But in the absence of a full characterization of the notion of a convergent practice, which Coleman and Leiter do not offer, it is difficult to assess whether that formulation avoids any of the difficulties I raise for the formulation that appeals to majority views.
133. Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at p. 616/260. Their discussion also sometimes suggests that minimal objectivity is the view that legal facts are determined by "collective" or "convergent practices." Ibid., at p. 608/253. But in the absence of a full characterization of the notion of a convergent practice, which Coleman and Leiter do not offer, it is difficult to assess whether that formulation avoids any of the difficulties I raise for the formulation that appeals to majority views.
134. Ibid., at pp. 608-609/253. These claims about being fashionable are somewhat puzzling. For one thing, it isn't clear what Coleman and Leiter mean by a majority of "the community." The majority of ordinary Joes? The majority of "fashion experts" or designers? The majority of a particular group whose approval is sought (e.g. members of the DAR or hip hop artists)? And is something's being fashionable a matter of its eliciting approval or disapproval? E.g. The appeal of body piercing may be its tendency to upset parents and "establishment types" as much as its attractiveness to a segment of younger people and artists. However we characterize the relevant "fashionable-making" reactions and "fashionable- determining" community, facts about fashion will be just as objective as facts about electrons.
135. See Ibid., at p. 627/269, and Leiter, "Objectivity and the Problems of Jurisprudence", supra note 1, at p. 206. Leiter remarks, in the latter work, a review of Greenawalt's Law and Objectivity, "Lawyers and judges by and large do seem to draw the natural anti-realist conclusion that where there is deep and pervasive disagreement about a matter, such as the correct legal outcome in a given case, there is no fact of the matter. My armchair sociology - as an academic and a lawyer - tells me that the idea of answers that are correct independent of what all lawyers and judges believe is not part of existing legal consciousness." Ibid.
136. See Ibid., at p. 627/269, and Leiter, "Objectivity and the Problems of Jurisprudence", supra note 1, at p. 206. Leiter remarks, in the latter work, a review of Greenawalt's Law and Objectivity, "Lawyers and judges by and large do seem to draw the natural anti-realist conclusion that where there is deep and pervasive disagreement about a matter, such as the correct legal outcome in a given case, there is no fact of the matter. My armchair sociology - as an academic and a lawyer - tells me that the idea of answers that are correct independent of what all lawyers and judges believe is not part of existing legal consciousness." Ibid.
137. See Ibid., at p. 627/269, and Leiter, "Objectivity and the Problems of Jurisprudence", supra note 1, at p. 206. Leiter remarks, in the latter work, a review of Greenawalt's Law and Objectivity, "Lawyers and judges by and large do seem to draw the natural anti-realist conclusion that where there is deep and pervasive disagreement about a matter, such as the correct legal outcome in a given case, there is no fact of the matter. My armchair sociology - as an academic and a lawyer - tells me that the idea of answers that are correct independent of what all lawyers and judges believe is not part of existing legal consciousness." Ibid.
138. Coleman and Leiter also raise a version of the problem of rational disagreement for minimal objectivity. As they present the difficulty, though, it concerns the problem that where we have disagreement, we have absence of convergent behavior, and in the absence of convergent behavior surrounding a rule, there is no duty imposed by the rule. Yet even when people disagree about what the rule requires, they may nevertheless believe it requires something, rather than nothing. See Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at pp. 619-620/263. As I see it, the problem of disagreement persists for judicial majoritarianism even if there is convergent behavior. For additional critical discussion of minimal objectivity about legal facts, see Ibid., at pp. 618-620/260-263.
139. Coleman and Leiter also raise a version of the problem of rational disagreement for minimal objectivity. As they present the difficulty, though, it concerns the problem that where we have disagreement, we have absence of convergent behavior, and in the absence of convergent behavior surrounding a rule, there is no duty imposed by the rule. Yet even when people disagree about what the rule requires, they may nevertheless believe it requires something, rather than nothing. See Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at pp. 619-620/263. As I see it, the problem of disagreement persists for judicial majoritarianism even if there is convergent behavior. For additional critical discussion of minimal objectivity about legal facts, see Ibid., at pp. 618-620/260-263.
140. The critics might suggest, of course, that judges were merely plumping (consciously or unconsciously) for their preferred moral views
141. Hart, The Concept of Law, supra note 9, at pp. 94-110. What I am imagining is the proponent of judicial majoritarianism borrowing one of Hart's central ideas. I do not mean to suggest that Hart himself subscribed to any version of judicial majoritarianism.
142. Hart himself recognized this. See ibid., at pp. 123, 147-154, and 251.
143. Coleman and Leiter make a related point when they consider an objection to minimal objectivity based on "dominant ideology." See Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at pp. 617-618/260-261. I here make the distinct point that our legal practices themselves suggest that we accept some idealization of judges and conditions for judging.
144. Ibid., at p. 598/245.
145. Leiter, "Objectivity and the Problems of Jurisprudence", supra note 1, at p. 208.
146. Ibid., at p. 208.
147. I b i d.
148. Perhaps the more cautious way to put the point is that we would need much more argument before we could conclude that the normativity of law is so unlike the normativity of morality (or reasons or personal good).
149. Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at p. 629/671. Coleman and Leiter treat Greenawalt as a modest objectivist about legal facts. See Greenawalt, Law and Objectivity, supra note 1. Greenawalt's position, though, is somewhat unclear. Early in Law and Objectivity, he offer two joint criteria for when there is a determinate answer to a question of law. In some places, these joint criteria appear to offer a rough test as to when there is a determinate answer about the law rather than an analysis of legal facts. "The main criterion for judging the existence of a determinate answer is whether virtually any lawyer or other intelligent person familiar with the legal system would conclude, after careful study, that the law provides that answer. This standard well reflects the notion that the answer is there, not dependent on an individual's particular opinion. Let me emphasize that this is a rough criterion for seeing whether the law really does provide an answer in some simple, indisputable, sense. I am not asserting that somehow near unanimity [automatically] constitutes a determinate answer ... But almost universal agreement that an answer is required is strong evidence of such an answer, given the nature of law. To cover the possibility of misjudgment, I add as a further criterion of a determinate answer that no powerful argument consonant with the broad premises of the legal system exists for a contrary answer." Ibid., at pp. 12-13 (emphases added). In other places, the joint criteria seem to be treated as an account of what constitutes a determinate legal fact. "Many answers to questions about [statutory] rules are objectively correct in the sense of being understood to be correct by virtually all lawyers and others familiar with the law and of not being subject to a powerful contrary argument that is consonant with the premises of the legal system." Ibid., at p. 59 (emphasis added), see also pp. 22, 68, and 207. Later, however, Greenawalt offers a different picture, appealing alternately to "the answer supported by the best reasons" or, what he takes to be equivalent, the answer "an ideal judge would reach." Ibid., at pp. 208-209. I'm inclined to think Greenawalt means for the appeal to near consensus to serve only as a rough test for when there is a correct legal answer, whereas his preferred account of legal facts treats them as modestly objectivist. We should note, however, that Greenawalt's ideal judge account of legal facts appears to involve less idealization than Coleman's. Greenawalt seems concerned, as Richard Brandt was in developing his reforming naturalism, to offer an account that avoids making normative facts - here, legal facts - inaccessible to us. See Richard B. Brandt, A Theory of the Good and the Right (Oxford: Clarendon Press, 1979), pp. 12, 112. He thus understands "best reasons" in terms of "understandings of which people are then capable." Greenawalt, Law and Objectivity, supra note 1, at p. 210; see also p. 234. He contrasts perfect judges with "best imaginable human judges," adopting the latter understanding, though without explaining the difference. Ibid., at pp. 209-210. For further discussion of Greenawalt's position, see Leiter, "Objectivity and the Problems of Jurisprudence", supra note 1.
150. Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at p. 629/671. Coleman and Leiter treat Greenawalt as a modest objectivist about legal facts. See Greenawalt, Law and Objectivity, supra note 1. Greenawalt's position, though, is somewhat unclear. Early in Law and Objectivity, he offer two joint criteria for when there is a determinate answer to a question of law. In some places, these joint criteria appear to offer a rough test as to when there is a determinate answer about the law rather than an analysis of legal facts. "The main criterion for judging the existence of a determinate answer is whether virtually any lawyer or other intelligent person familiar with the legal system would conclude, after careful study, that the law provides that answer. This standard well reflects the notion that the answer is there, not dependent on an individual's particular opinion. Let me emphasize that this is a rough criterion for seeing whether the law really does provide an answer in some simple, indisputable, sense. I am not asserting that somehow near unanimity [automatically] constitutes a determinate answer ... But almost universal agreement that an answer is required is strong evidence of such an answer, given the nature of law. To cover the possibility of misjudgment, I add as a further criterion of a determinate answer that no powerful argument consonant with the broad premises of the legal system exists for a contrary answer." Ibid., at pp. 12-13 (emphases added). In other places, the joint criteria seem to be treated as an account of what constitutes a determinate legal fact. "Many answers to questions about [statutory] rules are objectively correct in the sense of being understood to be correct by virtually all lawyers and others familiar with the law and of not being subject to a powerful contrary argument that is consonant with the premises of the legal system." Ibid., at p. 59 (emphasis added), see also pp. 22, 68, and 207. Later, however, Greenawalt offers a different picture, appealing alternately to "the answer supported by the best reasons" or, what he takes to be equivalent, the answer "an ideal judge would reach." Ibid., at pp. 208-209. I'm inclined to think Greenawalt means for the appeal to near consensus to serve only as a rough test for when there is a correct legal answer, whereas his preferred account of legal facts treats them as modestly objectivist. We should note, however, that Greenawalt's ideal judge account of legal facts appears to involve less idealization than Coleman's. Greenawalt seems concerned, as Richard Brandt was in developing his reforming naturalism, to offer an account that avoids making normative facts - here, legal facts - inaccessible to us. See Richard B. Brandt, A Theory of the Good and the Right (Oxford: Clarendon Press, 1979), pp. 12, 112. He thus understands "best reasons" in terms of "understandings of which people are then capable." Greenawalt, Law and Objectivity, supra note 1, at p. 210; see also p. 234. He contrasts perfect judges with "best imaginable human judges," adopting the latter understanding, though without explaining the difference. Ibid., at pp. 209-210. For further discussion of Greenawalt's position, see Leiter, "Objectivity and the Problems of Jurisprudence", supra note 1.
151. Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at p. 629/671. Coleman and Leiter treat Greenawalt as a modest objectivist about legal facts. See Greenawalt, Law and Objectivity, supra note 1. Greenawalt's position, though, is somewhat unclear. Early in Law and Objectivity, he offer two joint criteria for when there is a determinate answer to a question of law. In some places, these joint criteria appear to offer a rough test as to when there is a determinate answer about the law rather than an analysis of legal facts. "The main criterion for judging the existence of a determinate answer is whether virtually any lawyer or other intelligent person familiar with the legal system would conclude, after careful study, that the law provides that answer. This standard well reflects the notion that the answer is there, not dependent on an individual's particular opinion. Let me emphasize that this is a rough criterion for seeing whether the law really does provide an answer in some simple, indisputable, sense. I am not asserting that somehow near unanimity [automatically] constitutes a determinate answer ... But almost universal agreement that an answer is required is strong evidence of such an answer, given the nature of law. To cover the possibility of misjudgment, I add as a further criterion of a determinate answer that no powerful argument consonant with the broad premises of the legal system exists for a contrary answer." Ibid., at pp. 12-13 (emphases added). In other places, the joint criteria seem to be treated as an account of what constitutes a determinate legal fact. "Many answers to questions about [statutory] rules are objectively correct in the sense of being understood to be correct by virtually all lawyers and others familiar with the law and of not being subject to a powerful contrary argument that is consonant with the premises of the legal system." Ibid., at p. 59 (emphasis added), see also pp. 22, 68, and 207. Later, however, Greenawalt offers a different picture, appealing alternately to "the answer supported by the best reasons" or, what he takes to be equivalent, the answer "an ideal judge would reach." Ibid., at pp. 208-209. I'm inclined to think Greenawalt means for the appeal to near consensus to serve only as a rough test for when there is a correct legal answer, whereas his preferred account of legal facts treats them as modestly objectivist. We should note, however, that Greenawalt's ideal judge account of legal facts appears to involve less idealization than Coleman's. Greenawalt seems concerned, as Richard Brandt was in developing his reforming naturalism, to offer an account that avoids making normative facts - here, legal facts - inaccessible to us. See Richard B. Brandt, A Theory of the Good and the Right (Oxford: Clarendon Press, 1979), pp. 12, 112. He thus understands "best reasons" in terms of "understandings of which people are then capable." Greenawalt, Law and Objectivity, supra note 1, at p. 210; see also p. 234. He contrasts perfect judges with "best imaginable human judges," adopting the latter understanding, though without explaining the difference. Ibid., at pp. 209-210. For further discussion of Greenawalt's position, see Leiter, "Objectivity and the Problems of Jurisprudence", supra note 1.
152. Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at p. 629/671. Coleman and Leiter treat Greenawalt as a modest objectivist about legal facts. See Greenawalt, Law and Objectivity, supra note 1. Greenawalt's position, though, is somewhat unclear. Early in Law and Objectivity, he offer two joint criteria for when there is a determinate answer to a question of law. In some places, these joint criteria appear to offer a rough test as to when there is a determinate answer about the law rather than an analysis of legal facts. "The main criterion for judging the existence of a determinate answer is whether virtually any lawyer or other intelligent person familiar with the legal system would conclude, after careful study, that the law provides that answer. This standard well reflects the notion that the answer is there, not dependent on an individual's particular opinion. Let me emphasize that this is a rough criterion for seeing whether the law really does provide an answer in some simple, indisputable, sense. I am not asserting that somehow near unanimity [automatically] constitutes a determinate answer ... But almost universal agreement that an answer is required is strong evidence of such an answer, given the nature of law. To cover the possibility of misjudgment, I add as a further criterion of a determinate answer that no powerful argument consonant with the broad premises of the legal system exists for a contrary answer." Ibid., at pp. 12-13 (emphases added). In other places, the joint criteria seem to be treated as an account of what constitutes a determinate legal fact. "Many answers to questions about [statutory] rules are objectively correct in the sense of being understood to be correct by virtually all lawyers and others familiar with the law and of not being subject to a powerful contrary argument that is consonant with the premises of the legal system." Ibid., at p. 59 (emphasis added), see also pp. 22, 68, and 207. Later, however, Greenawalt offers a different picture, appealing alternately to "the answer supported by the best reasons" or, what he takes to be equivalent, the answer "an ideal judge would reach." Ibid., at pp. 208-209. I'm inclined to think Greenawalt means for the appeal to near consensus to serve only as a rough test for when there is a correct legal answer, whereas his preferred account of legal facts treats them as modestly objectivist. We should note, however, that Greenawalt's ideal judge account of legal facts appears to involve less idealization than Coleman's. Greenawalt seems concerned, as Richard Brandt was in developing his reforming naturalism, to offer an account that avoids making normative facts - here, legal facts - inaccessible to us. See Richard B. Brandt, A Theory of the Good and the Right (Oxford: Clarendon Press, 1979), pp. 12, 112. He thus understands "best reasons" in terms of "understandings of which people are then capable." Greenawalt, Law and Objectivity, supra note 1, at p. 210; see also p. 234. He contrasts perfect judges with "best imaginable human judges," adopting the latter understanding, though without explaining the difference. Ibid., at pp. 209-210. For further discussion of Greenawalt's position, see Leiter, "Objectivity and the Problems of Jurisprudence", supra note 1.
153. Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at p. 629/671. Coleman and Leiter treat Greenawalt as a modest objectivist about legal facts. See Greenawalt, Law and Objectivity, supra note 1. Greenawalt's position, though, is somewhat unclear. Early in Law and Objectivity, he offer two joint criteria for when there is a determinate answer to a question of law. In some places, these joint criteria appear to offer a rough test as to when there is a determinate answer about the law rather than an analysis of legal facts. "The main criterion for judging the existence of a determinate answer is whether virtually any lawyer or other intelligent person familiar with the legal system would conclude, after careful study, that the law provides that answer. This standard well reflects the notion that the answer is there, not dependent on an individual's particular opinion. Let me emphasize that this is a rough criterion for seeing whether the law really does provide an answer in some simple, indisputable, sense. I am not asserting that somehow near unanimity [automatically] constitutes a determinate answer ... But almost universal agreement that an answer is required is strong evidence of such an answer, given the nature of law. To cover the possibility of misjudgment, I add as a further criterion of a determinate answer that no powerful argument consonant with the broad premises of the legal system exists for a contrary answer." Ibid., at pp. 12-13 (emphases added). In other places, the joint criteria seem to be treated as an account of what constitutes a determinate legal fact. "Many answers to questions about [statutory] rules are objectively correct in the sense of being understood to be correct by virtually all lawyers and others familiar with the law and of not being subject to a powerful contrary argument that is consonant with the premises of the legal system." Ibid., at p. 59 (emphasis added), see also pp. 22, 68, and 207. Later, however, Greenawalt offers a different picture, appealing alternately to "the answer supported by the best reasons" or, what he takes to be equivalent, the answer "an ideal judge would reach." Ibid., at pp. 208-209. I'm inclined to think Greenawalt means for the appeal to near consensus to serve only as a rough test for when there is a correct legal answer, whereas his preferred account of legal facts treats them as modestly objectivist. We should note, however, that Greenawalt's ideal judge account of legal facts appears to involve less idealization than Coleman's. Greenawalt seems concerned, as Richard Brandt was in developing his reforming naturalism, to offer an account that avoids making normative facts - here, legal facts - inaccessible to us. See Richard B. Brandt, A Theory of the Good and the Right (Oxford: Clarendon Press, 1979), pp. 12, 112. He thus understands "best reasons" in terms of "understandings of which people are then capable." Greenawalt, Law and Objectivity, supra note 1, at p. 210; see also p. 234. He contrasts perfect judges with "best imaginable human judges," adopting the latter understanding, though without explaining the difference. Ibid., at pp. 209-210. For further discussion of Greenawalt's position, see Leiter, "Objectivity and the Problems of Jurisprudence", supra note 1.
154. Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at p. 629/671. Coleman and Leiter treat Greenawalt as a modest objectivist about legal facts. See Greenawalt, Law and Objectivity, supra note 1. Greenawalt's position, though, is somewhat unclear. Early in Law and Objectivity, he offer two joint criteria for when there is a determinate answer to a question of law. In some places, these joint criteria appear to offer a rough test as to when there is a determinate answer about the law rather than an analysis of legal facts. "The main criterion for judging the existence of a determinate answer is whether virtually any lawyer or other intelligent person familiar with the legal system would conclude, after careful study, that the law provides that answer. This standard well reflects the notion that the answer is there, not dependent on an individual's particular opinion. Let me emphasize that this is a rough criterion for seeing whether the law really does provide an answer in some simple, indisputable, sense. I am not asserting that somehow near unanimity [automatically] constitutes a determinate answer ... But almost universal agreement that an answer is required is strong evidence of such an answer, given the nature of law. To cover the possibility of misjudgment, I add as a further criterion of a determinate answer that no powerful argument consonant with the broad premises of the legal system exists for a contrary answer." Ibid., at pp. 12-13 (emphases added). In other places, the joint criteria seem to be treated as an account of what constitutes a determinate legal fact. "Many answers to questions about [statutory] rules are objectively correct in the sense of being understood to be correct by virtually all lawyers and others familiar with the law and of not being subject to a powerful contrary argument that is consonant with the premises of the legal system." Ibid., at p. 59 (emphasis added), see also pp. 22, 68, and 207. Later, however, Greenawalt offers a different picture, appealing alternately to "the answer supported by the best reasons" or, what he takes to be equivalent, the answer "an ideal judge would reach." Ibid., at pp. 208-209. I'm inclined to think Greenawalt means for the appeal to near consensus to serve only as a rough test for when there is a correct legal answer, whereas his preferred account of legal facts treats them as modestly objectivist. We should note, however, that Greenawalt's ideal judge account of legal facts appears to involve less idealization than Coleman's. Greenawalt seems concerned, as Richard Brandt was in developing his reforming naturalism, to offer an account that avoids making normative facts - here, legal facts - inaccessible to us. See Richard B. Brandt, A Theory of the Good and the Right (Oxford: Clarendon Press, 1979), pp. 12, 112. He thus understands "best reasons" in terms of "understandings of which people are then capable." Greenawalt, Law and Objectivity, supra note 1, at p. 210; see also p. 234. He contrasts perfect judges with "best imaginable human judges," adopting the latter understanding, though without explaining the difference. Ibid., at pp. 209-210. For further discussion of Greenawalt's position, see Leiter, "Objectivity and the Problems of Jurisprudence", supra note 1.
155. Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at p. 629/671. Coleman and Leiter treat Greenawalt as a modest objectivist about legal facts. See Greenawalt, Law and Objectivity, supra note 1. Greenawalt's position, though, is somewhat unclear. Early in Law and Objectivity, he offer two joint criteria for when there is a determinate answer to a question of law. In some places, these joint criteria appear to offer a rough test as to when there is a determinate answer about the law rather than an analysis of legal facts. "The main criterion for judging the existence of a determinate answer is whether virtually any lawyer or other intelligent person familiar with the legal system would conclude, after careful study, that the law provides that answer. This standard well reflects the notion that the answer is there, not dependent on an individual's particular opinion. Let me emphasize that this is a rough criterion for seeing whether the law really does provide an answer in some simple, indisputable, sense. I am not asserting that somehow near unanimity [automatically] constitutes a determinate answer ... But almost universal agreement that an answer is required is strong evidence of such an answer, given the nature of law. To cover the possibility of misjudgment, I add as a further criterion of a determinate answer that no powerful argument consonant with the broad premises of the legal system exists for a contrary answer." Ibid., at pp. 12-13 (emphases added). In other places, the joint criteria seem to be treated as an account of what constitutes a determinate legal fact. "Many answers to questions about [statutory] rules are objectively correct in the sense of being understood to be correct by virtually all lawyers and others familiar with the law and of not being subject to a powerful contrary argument that is consonant with the premises of the legal system." Ibid., at p. 59 (emphasis added), see also pp. 22, 68, and 207. Later, however, Greenawalt offers a different picture, appealing alternately to "the answer supported by the best reasons" or, what he takes to be equivalent, the answer "an ideal judge would reach." Ibid., at pp. 208-209. I'm inclined to think Greenawalt means for the appeal to near consensus to serve only as a rough test for when there is a correct legal answer, whereas his preferred account of legal facts treats them as modestly objectivist. We should note, however, that Greenawalt's ideal judge account of legal facts appears to involve less idealization than Coleman's. Greenawalt seems concerned, as Richard Brandt was in developing his reforming naturalism, to offer an account that avoids making normative facts - here, legal facts - inaccessible to us. See Richard B. Brandt, A Theory of the Good and the Right (Oxford: Clarendon Press, 1979), pp. 12, 112. He thus understands "best reasons" in terms of "understandings of which people are then capable." Greenawalt, Law and Objectivity, supra note 1, at p. 210; see also p. 234. He contrasts perfect judges with "best imaginable human judges," adopting the latter understanding, though without explaining the difference. Ibid., at pp. 209-210. For further discussion of Greenawalt's position, see Leiter, "Objectivity and the Problems of Jurisprudence", supra note 1.
156. Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at p. 629/671. Coleman and Leiter treat Greenawalt as a modest objectivist about legal facts. See Greenawalt, Law and Objectivity, supra note 1. Greenawalt's position, though, is somewhat unclear. Early in Law and Objectivity, he offer two joint criteria for when there is a determinate answer to a question of law. In some places, these joint criteria appear to offer a rough test as to when there is a determinate answer about the law rather than an analysis of legal facts. "The main criterion for judging the existence of a determinate answer is whether virtually any lawyer or other intelligent person familiar with the legal system would conclude, after careful study, that the law provides that answer. This standard well reflects the notion that the answer is there, not dependent on an individual's particular opinion. Let me emphasize that this is a rough criterion for seeing whether the law really does provide an answer in some simple, indisputable, sense. I am not asserting that somehow near unanimity [automatically] constitutes a determinate answer ... But almost universal agreement that an answer is required is strong evidence of such an answer, given the nature of law. To cover the possibility of misjudgment, I add as a further criterion of a determinate answer that no powerful argument consonant with the broad premises of the legal system exists for a contrary answer." Ibid., at pp. 12-13 (emphases added). In other places, the joint criteria seem to be treated as an account of what constitutes a determinate legal fact. "Many answers to questions about [statutory] rules are objectively correct in the sense of being understood to be correct by virtually all lawyers and others familiar with the law and of not being subject to a powerful contrary argument that is consonant with the premises of the legal system." Ibid., at p. 59 (emphasis added), see also pp. 22, 68, and 207. Later, however, Greenawalt offers a different picture, appealing alternately to "the answer supported by the best reasons" or, what he takes to be equivalent, the answer "an ideal judge would reach." Ibid., at pp. 208-209. I'm inclined to think Greenawalt means for the appeal to near consensus to serve only as a rough test for when there is a correct legal answer, whereas his preferred account of legal facts treats them as modestly objectivist. We should note, however, that Greenawalt's ideal judge account of legal facts appears to involve less idealization than Coleman's. Greenawalt seems concerned, as Richard Brandt was in developing his reforming naturalism, to offer an account that avoids making normative facts - here, legal facts - inaccessible to us. See Richard B. Brandt, A Theory of the Good and the Right (Oxford: Clarendon Press, 1979), pp. 12, 112. He thus understands "best reasons" in terms of "understandings of which people are then capable." Greenawalt, Law and Objectivity, supra note 1, at p. 210; see also p. 234. He contrasts perfect judges with "best imaginable human judges," adopting the latter understanding, though without explaining the difference. Ibid., at pp. 209-210. For further discussion of Greenawalt's position, see Leiter, "Objectivity and the Problems of Jurisprudence", supra note 1.
157. Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at p. 629/671. Coleman and Leiter treat Greenawalt as a modest objectivist about legal facts. See Greenawalt, Law and Objectivity, supra note 1. Greenawalt's position, though, is somewhat unclear. Early in Law and Objectivity, he offer two joint criteria for when there is a determinate answer to a question of law. In some places, these joint criteria appear to offer a rough test as to when there is a determinate answer about the law rather than an analysis of legal facts. "The main criterion for judging the existence of a determinate answer is whether virtually any lawyer or other intelligent person familiar with the legal system would conclude, after careful study, that the law provides that answer. This standard well reflects the notion that the answer is there, not dependent on an individual's particular opinion. Let me emphasize that this is a rough criterion for seeing whether the law really does provide an answer in some simple, indisputable, sense. I am not asserting that somehow near unanimity [automatically] constitutes a determinate answer ... But almost universal agreement that an answer is required is strong evidence of such an answer, given the nature of law. To cover the possibility of misjudgment, I add as a further criterion of a determinate answer that no powerful argument consonant with the broad premises of the legal system exists for a contrary answer." Ibid., at pp. 12-13 (emphases added). In other places, the joint criteria seem to be treated as an account of what constitutes a determinate legal fact. "Many answers to questions about [statutory] rules are objectively correct in the sense of being understood to be correct by virtually all lawyers and others familiar with the law and of not being subject to a powerful contrary argument that is consonant with the premises of the legal system." Ibid., at p. 59 (emphasis added), see also pp. 22, 68, and 207. Later, however, Greenawalt offers a different picture, appealing alternately to "the answer supported by the best reasons" or, what he takes to be equivalent, the answer "an ideal judge would reach." Ibid., at pp. 208-209. I'm inclined to think Greenawalt means for the appeal to near consensus to serve only as a rough test for when there is a correct legal answer, whereas his preferred account of legal facts treats them as modestly objectivist. We should note, however, that Greenawalt's ideal judge account of legal facts appears to involve less idealization than Coleman's. Greenawalt seems concerned, as Richard Brandt was in developing his reforming naturalism, to offer an account that avoids making normative facts - here, legal facts - inaccessible to us. See Richard B. Brandt, A Theory of the Good and the Right (Oxford: Clarendon Press, 1979), pp. 12, 112. He thus understands "best reasons" in terms of "understandings of which people are then capable." Greenawalt, Law and Objectivity, supra note 1, at p. 210; see also p. 234. He contrasts perfect judges with "best imaginable human judges," adopting the latter understanding, though without explaining the difference. Ibid., at pp. 209-210. For further discussion of Greenawalt's position, see Leiter, "Objectivity and the Problems of Jurisprudence", supra note 1.
158. Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at p. 621/264.
159. Ibid., at p. 622/265.
160. See note 7. Like subjectivism, an Ideal Judge analysis would be circular if it appealed to an ideally situated judge's judgments or beliefs about the law. In order to eliminate circularity from the depiction of modest objectivity about legal facts, I have been framing this form of analysis, again, following Firth, in terms of an ideally situated judge's "legally significant reactions." A preliminary challenge for defenders of the view will be to specify what these reactions might be, and meeting this challenge will be no easy matter. See note 8. One might be tempted to argue that we find circularity unproblematic in dispositional analyses of color, and so we should find it unproblematic here. But the color case is different: we grasp, say, phenomenal redness, unlike legal obligatoriness, only by direct experience, and so it seems to require an ostensive analysis in which some such expression as 'looks red' will be ineliminable. But see Smith's discussion of what he calls the "permutation problem" in The Moral Problem, supra note 14, at pp. 48-56 and 163.
161. As Coleman and Leiter remark, "Our claim ... is that a legal judgment rendered under conditions like these would fix what the law is on that point." Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at p. 630/272. I have, again, expressed the idea in terms of legally significant reactions.
162. Bowers v. Hardwick, 478 U.S. 186 (1986).
163. See Nat Hentoff, "Infamous Sodomy Law Struck Down", The Village Voice, March 8, 2001.
164. See Bruce W. Brower, "Dispositional Ethical Realism", Ethics 103 (1993), pp. 221-249.
165. They acknowledge that they haven't completely fleshed out the notion of ideal epistemic conditions or shown that "our working conception of law is sufficiently coherent to admit of (metaphysical) objectivity of any sort." See Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at p. 637/277.
166. Ibid., at p. 630/272.
167. See Firth, "Ethical Absolutism and the Ideal Observer", supra note 7.
168. See Smith, The Moral Problem, supra note 14.
169. See David Lewis, "Dispositional Theories of Value", Proceedings of the Aristotelian Society, 63 (Suppl.) (1989), pp. 129-132.
170. See Peter Railton, "Moral Realism", Philosophical Review 95 (1986), pp. 163-207, and "Facts and Values", Philosophical Topics 14 (1986), pp. 5-31.
171. See Peter Railton, "Moral Realism", Philosophical Review 95 (1986), pp. 163-207, and "Facts and Values", Philosophical Topics 14 (1986), pp. 5-31.
172. See C. L. Stevenson, "The Nature of Ethical Disagreement", in Facts and Values (Westport, CT: Greenwood Press, 1963), pp. 1-9.
173. See Brandt, A Theory of the Good and the Right, supra note 75, at pp. 12, 112.
174. See J. David Velleman, "Brandt's Definition of 'Good' ", Philosophical Review 97 (1988), pp. 353-371; David Sobel, "Full Information Accounts of Well-Being", Ethics 104 (1994), pp. 784-810; Connie S. Rosati, "Persons, Perspectives, and Full-Information Accounts of the Good", Ethics 105 (1995), pp. 296-325.
175. See J. David Velleman, "Brandt's Definition of 'Good' ", Philosophical Review 97 (1988), pp. 353-371; David Sobel, "Full Information Accounts of Well-Being", Ethics 104 (1994), pp. 784-810; Connie S. Rosati, "Persons, Perspectives, and Full-Information Accounts of the Good", Ethics 105 (1995), pp. 296-325.
176. See J. David Velleman, "Brandt's Definition of 'Good' ", Philosophical Review 97 (1988), pp. 353-371; David Sobel, "Full Information Accounts of Well-Being", Ethics 104 (1994), pp. 784-810; Connie S. Rosati, "Persons, Perspectives, and Full-Information Accounts of the Good", Ethics 105 (1995), pp. 296-325.
177. Condition 5 would seem to be redundant, since the information Coleman and Leiter envision the ideal judge as having under condition 5 would appear to be included under the first condition. That is to say, full factual information would presumably include the sort of "informal cultural and social knowledge of the sort essential to analogical reasoning, in which differences and distinctions must be marked as 'relevant' or 'irrelevant'."
178. Coleman and Leiter make clear their allegiance to a positivist picture, but we should nevertheless recognize possible disputes on this point.
179. Coleman and Leiter themselves accept that legal reasons will be indeterminate, though they acknowledge that some kinds of indeterminacy may threaten the authority of law. Coleman and Leiter, "Determinacy, Objectivity, and Authority", supra note 1, at p. 567/218-219; see also pp. 576-578/225-228.
180. Our ordinary legal practices may, of course, rest on theoretical or conceptual commitments that turn out to be mistaken. See Ibid., at p. 599/245-246.
181. Many thanks to Larry Alexander, Victor Caston, Gerald Dworkin, Michael Jubien, and Stephen Perry for helpful conversation and comments on various versions of this article, and to Christian Coons and Nick Dhiel for helpful discussion about the objectivity of law during my philosophy of law seminar, winter quarter 2002. An early version of the article was presented at the legal theory workshop at the University of Pennsylvania Law School on February 7, 2003. I am grateful to participants for lively discussion of the issues raised herein. The penultimate version was presented at the Analytic Legal Philosophy Conference at Oxford University on May 17, 2003. I am indebted to conferees for their many challenging questions. Anonymous referees for Law and Philosophy provided helpful suggestions for final revisions, for which I am most appreciative. Preliminary research for this article was undertaken with the support of a Laurance S. Rockefeller Fellowship at the University Center for Human Values, Princeton University. My continuing thanks to Amy Gutmann and the Center.