The experimental turn in philosophy has reached several sub-fields including ethics, epistemology, and metaphysics. This paper is among the first to apply experimental techniques to questions in the philosophy of law. Specifically, we examine Lon Fuller's procedural natural law theory. Fuller famously claimed that legal systems necessarily observe eight principles he called "the inner morality of law." We evaluate Fuller's claim by surveying both ordinary people and legal experts about their intuitions about legal systems. We conclude that, at best, we (...) should be skeptical of Fuller's inner morality of law in light of the experimental data. (shrink)

Almost twenty years ago, a genuinely new school of thought emerged in the field of jurisprudential methodology. It is a pragmatist school. Roughly, the pragmatists contend that, when inquiring about the nature of law, we should evaluate potential answers based on practical criteria. For many legal philosophers, this contention seems both unclear and unhinged. That appearance is lamentable. The pragmatist approach to jurisprudential methodology has received insufficient attention for at least two reasons. First, the pragmatists do not conceive of themselves (...) as comprising a school; in fact, these proponents have different names for their common position, which makes it hard to see the commonalities. Second, the most famous statement of the pragmatist view has received withering criticism, criticism that has not been sufficiently answered, a fact that may lead opponents of pragmatism, as well as potential supporters, to doubt that a viable view of this kind can be held. This Essay aims to serve as a corrective. (shrink)

Legal philosophers make a number of bold, contentious claims about the nature of law. For instance, some claim that law necessarily involves coercion, while others disagree. Some claim that all law enjoys presumptive moral validity, while others disagree. We can see these claims in at least three, mutually exclusive ways: (1) We can see them as descriptions of law’s nature (descriptivism), (2) we can see them as expressing non-descriptive attitudes of the legal philosophers in question (expressivism), or (3) we can (...) see them as practical claims about how we should view law or order our society (pragmatism). This paper argues that we should understand these claims in the pragmatist way, as claims about how we should view law or order society. (shrink)

Metaethical minimalism. sometimes called quietism, is the view that first-order moral judgments can be true but nothing makes them true. This article raises three worries for that view. First, minimalists have no good reason to insist that moral judgments can be true. Second, minimalism, in abandoning the requirement that true judgments need to have truthmakers, leads to a problematic proliferation of truths. Third, most versions of minimalism entail a disjointed and therefore unacceptable theory of language and thought.

For more than a decade, activists, scholars, journalists, and politicians of various stripes have been discussing and decrying mass incarceration. This collection of voices has mostly focused on contingent features of the phenomenon. Critics mention racial disparities, poor prison conditions, and spiraling costs. Some critics have alleged broader problems: they have called for an end to all incarceration, even all punishment. Lost in this conversation is a focus on what is inherently wrong with mass incarceration specifically. This essay fills that (...) void and supplies an answer, drawing on the early modern English philosopher Thomas Hobbes. On the Hobbesian account developed here, mass incarceration is always wrong because it is always inconsistent with having a free society. (shrink)

Beginning with a thought experiment about a mysterious Delphic oracle, this article motivates, explains, and attempts to defend a view it calls Ethical Pragmatism. Ethical Pragmatism is the view that we can and should carry on our practice of moral deliberation without reference to moral truths, or more broadly, without reference to metaethics. The defense the article mounts tries to show that neither suspicions about the tenability of fact-value distinctions, nor doubts about the viability of global pragmatism, nor worries about (...) the “force” of ethical injunctions without reference to moral truths constitute good reason to reject Ethical Pragmatism. (shrink)

Little attention is given to Richard Rorty’s metaethical views. No doubt this stems from the fact that most commentators are more interested in his metaphilosophical views; most see his metaethical views, offered in scattered passages, as just the downstream runoff from higher-level reflection. This article considers Rorty’s metaethics on their own merits, quite apart from whether his global picture works. I ultimately argue that Rorty’s metaethical outlook is attractive but beset by internal difficulties. Specifically, I contend that Rorty does not (...) and cannot remain faithful to the methodological approach to metaethics for which he advocates. At the paper’s close, I gesture at a nearby methodological approach that best approximates Rorty’s metaethical methodology. (shrink)

This chapter offers an overview of experimental legal philosophy with a special focus on questions in general jurisprudence, that part of legal philosophy that asks about the concept and nature of law. Much of the experimental general jurisprudence work has tended to follow the questions that have interested general jurisprudence scholars for decades, that is, questions about the relation between legal norms and moral norms. Wholesale criticism of experimental general jurisprudence is scant, but, given existing debates about experimental philosophy generally, (...) one can anticipate where disagreement is likely to occur. Outside of experimental general jurisprudence, there is plenty of vibrant discussion about how experimental results can enrich our understanding of various concepts that figure in everyday legal thought such as causation, intention, consent, or meaning. In the future, experimental legal philosophers should continue to consider the degree to which their project is purely descriptive or whether it is revisionary or pragmatic in its ambitions. Also, future work might consider whether to focus more attention on legal experts. (shrink)

Ronald Dworkin and Richard Rorty are sometimes thought to be diametrically opposed philosophers, particularly in their approach to foundational questions in moral thought. Dworkin is a champion of truth and objectivity in morality. Rorty, by contrast, is a great pragmatist who subscribed to a deflated vision of truth and unambiguously renounced objectivity, in favor of what he called “solidarity”. If their stated -isms and alliances were not evidence enough of discord, they also criticized one another in print, particularly on these (...) foundational, or metaethical, questions. The point of this chapter is to show that things are not what they seem: Rorty and Dworkin largely agree on metaethics. The difference between them is largely a difference in emphasis. (shrink)

This essay offers a new way to conceptualize the “police violence against Blacks” phenomenon. I argue that we should see the situation as an instance of what Thomas Hobbes called the state of nature, that is, a state without effective law. This understanding of the phenomenon stands in sharp contrast to that offered by Professor Michelle Alexander in her book The New Jim Crow. Alexander sees the phenomenon as a continuation of centuries-old patterns of state-backed anti-Black racism. My account is (...) that police are not under control of the state in their interactions with Blacks. (shrink)

A man, carrying a gun in his waistband, robs a food vendor. In making his escape, the gun discharges, critically injuring the robber. About such instances, it is common to think, “he got what he deserved.” This Article seeks to explore cases like that—cases of “natural punishment.” Natural punishment occurs when a wrongdoer faces serious harm that results from her wrongdoing and not from anyone seeking retribution against her. The Article proposes that U.S. courts follow their peers and recognize natural (...) punishment as genuine punishment for legal, specifically constitutional, purposes. Were U.S. courts to do so, they would need to reduce the amount of punishment they would otherwise bestow on wrongdoers upon conviction if a natural punishment has occurred or foreseeably will occur. A handful of foreign jurisdictions already accept something like this Article’s proposal, but natural punishment has no formal legal recognition in the United States. The goal of this Article is twofold: first, it offers a rigorous and defensible definition of natural punishment by distinguishing it from nearby notions and dispelling any association with supernatural ideas; second, it demonstrates that recognizing natural punishment as genuine punishment will not much disturb existing American legal institutions and understandings. -/- As an added bonus, the concept of natural punishment can be employed to solve a longstanding problem in criminal law theory, the Mystery of Credit for Time Served. The Mystery surrounds the common practice of giving prisoners credit toward their prison sentences for their time served in jail awaiting trial. The Mystery poses a dilemma about whether the detention time was punishment: If it was punishment, then the detainee was punished before trial in violation of Due Process; however, if the time was not punishment, there is no reason to discount the prison sentence. Seeing the time in detention as an instance of natural punishment resolves the Mystery. (shrink)

Scattered skeptical remarks and a general austerity that infused his writings have given Justice Oliver Wendell Holmes a reputation as some type of nihilist. Noted commentators such as Richard Posner and Albert Alschuler have claimed as much. This article seeks to correct this misunderstanding. Holmes was not a nihilist in the sense of being melancholy due to a belief that the world has no absolute moral values or gods. Instead, Holmes was a pragmatist in the spirit of William James and (...) John Dewey. While Holmes had doubts about moral truth and deities, he ultimately thought that their existence (or non-existence) should have no bearing on our behavior or the law. We must, through our collective efforts, find values that work for us. (shrink)

Despite pervasive variation in the content of laws, legal theorists and anthropologists have argued that laws share certain abstract features and even speculated that law may be a human universal. In the present report, we evaluate this thesis through an experiment administered in 11 different countries. Are there cross‐cultural principles of law? In a between‐subjects design, participants (N = 3,054) were asked whether there could be laws that violate certain procedural principles (e.g., laws applied retrospectively or unintelligible laws), and also (...) whether there are any such laws. Confirming our preregistered prediction, people reported that such laws cannot exist, but also (paradoxically) that there are such laws. These results document cross‐culturally and –linguistically robust beliefs about the concept of law which defy people's grasp of how legal systems function in practice. (shrink)

This short review raises a trilemma for Chris Voparil’s reading of Richard Rorty. Voparil must deny one of three things. He must deny that Rorty affirmed a Jamesian approach to metaethics; he must deny that Rorty affirmed a version of Peircean realism; or, he must deny that Rorty treated all domains of discourse roughly the same. Because Rorty is quite clear in his commitment to the first and third theses and far less clear in affirming Peircean realism, I argue that (...) Voparil is forced to give up attributing realism to Rorty or must simply concede that his version of Rorty is incoherent. (shrink)

The current standard interpretation of Moore’s proof assumes Moore offers a solution to Kant’s famously posed problem of an external world, which Moore quotes at the start of his 1939 lecture “Proof of an External World.” As a solution to Kant’s problem, Moore’s proof fails utterly. Similarly, a second received interpretation imputes an aim of refuting metaphysical idealism that Moore’s proof does not at all achieve. This study departs from the received interpretations to credit Moore’s stated aim for the proof (...) Moore performed in his 1939 lecture that is to impose a counter-example to an explicitly stated presupposition of Kant’s famously posed problem of an external world. The outcome would therefore subvert Kant’s problem. There is not, however, any rival external world problem that Moore commends in place of Kant’s problem. (shrink)

The current standard interpretation of Moore’s proof assumes he offers a solution to Kant’s famously posed problem of an external world, which Moore quotes at the start of his 1939 lecture “Proof of an External World.” As a solution to Kant’s problem, Moore’s proof would fail utterly. A second received interpretation imputes an aim of refuting metaphysical idealism that Moore’s proof does not at all achieve. This study departs from received interpretations to credit the aim Moore announced for the proof (...) Moore performed in his 1939 lecture. Moore’s aim was to impose a counter-example to a stated presupposition of Kant’s problem of an external world. Moore’s lecture nevertheless neither endorses a replacement for Kant’s problem nor acknowledges that an immediate implication of achieving his announced aim would subvert Kant’s famously posed problem of an external world. (shrink)