Moore Legal Reality. A Naturalist Approach To Legal Ontology

Legal Reality: A Naturalist Approach to Legal Ontology
Author(s): Michael S. Moore

Source: Law and Philosophy, Vol. 21, No. 6 (2002), pp. 619-705
Published by: Springer
Stable URL: http://www.jstor.org/stable/3505202
Accessed: 20-03-2017 15:35 UTC
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted
digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about
JSTOR, please contact support@jstor.org.
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
http://about.jstor.org/terms
Springer is collaborating with JSTOR to digitize, preserve and extend access to Law and Philosophy
This content downloaded from 200.89.68.240 on Mon, 20 Mar 2017 15:35:37 UTC
All use subject to http://about.jstor.org/terms
MICHAEL S. MOORE
LEGAL REALITY: A NATURALIST APPROACH TO LEGAL

ONTOLOGY *
(Accepted 10 September 2002)
I. INTRODUCTION 620
II. TWO LEGAL EXAMPLES 624
A. Singular Legal Propositions of American Satutory Law 624

B. General Legal Propositions of American Common Law 628
mI. FINDING A PLACE FOR LEGAL QUALITIES IN OUR WORLD 632
A. "Answer" Number One: Refusing Sense to the Question 632
B. Answer Number Two: The Skeptical Answers That Deny The
Existence of Legal Things 636
1. Happy Skepticisms 636
a. The Fusion Strategy 636
b. The Non-Cognitivist Skeptic 639
c. Skeptical Reductions 649
2. Unhappy Skeptics 653
C. Answer Number Three: Dualistic Realisms 657
D. Answer Number Four: Naturalistic Realisms 664
1. Classical Reductionist Naturalisms 665
a. Analytically Reductionist Naturalism 665
b. Metaphysically Reductionist Naturalism 669
2. Non-Reductionist Naturalisms 672
a. Anomalous Monism 672
b. Supervenience Naturalism 676
3. Metaphysically Reductionist Naturalism Revisited 679
E. Answer Number Five: Peircean Realism 693
F. Answer Number Six: Law as a Secondary Property 697
IV. CONCLUSION 704
* Charles R. Walgreen
Philosophy, Co-Directo
University of Illinois. T
uralism and Other Real
University, April 13-14
Address of the Annual M
Law and Social Philosop
My thanks go to all who
and particularly to Sco
presentation.
! Law and Philosophy 21: 619-705,2002.

94? ) 2003 Kluwer Academic Publishers. Printed in the Netherlands.
620 MICHAEL S. MOORE
I. INTRODUCTION
Ontology is the study of what exists. As my subtitle sugg

topic is to enquire into the sorts of things legal that we may
suppose to exist. Prima facie, our legal ontology seems t
particular entities, such as laws; properties (qualities, set
such as legal validity; and relations, such as legal obligati
one person to another.
My interest in this paper is not to develop a taxonomy
sorts of things legal exist, nor to classify our ontologica
ments into particulars versus two (or more) kinds of u
Rather, I am interested in a more global question, one I sh
relational question: assuming that various legal entities,
and relations exist, how should we picture that existe
exactly, how do legal things relate to items that we may
be somewhat less problematic in terms of our ontologica
ments (items like judicial behavior, shared community be
of institutional history, semantic facts, and moral facts)?
The history of jurisprudence is not reassuring when e
on ontological voyages in legal seas. For much of what our
have written is both unclear and irrelevant to anything
care much about. It is also often maddeningly grandiose i
of expression. To be told, for example, that "law is not an
universal, given once and for all; since it does not transc
empirical dimension, but on the contrary is immanent t
is not always the self-same thing,"l is not likely to be a
starting point for informative discussion. The present gen
legal philosophers have some reason to be more optimistic
worthwhileness of the topic. If we are more modest, less
and more focused we perhaps can justify such optimism.
The modesty point first: we have to tone down wha
expect from theories of ontology, and of metaphysics mo
ally. An older, less modest view has it that metaphys
foundational, in the sense that it is what one studies fir
all other understandings partake of it; (2) universal, in the
it can illuminate being as such (and not just the nature of
1 Enrico Pattaro, "A Final Word", in P. Amselek and N. MacCormi
Controversies About Law's Ontology (Edinburgh: Edinburgh Univer
1991), at p. 143.
LEGAL REALITY 621
kinds of things that exist); (3) incorrigible, in the sense that the roc
bed of certainty is to be found in metaphysical truths, truths t
are not just epistemically prior ("foundational") but are knowab
with certainty; (4) autonomous, in the sense that metaphysic
discontinous with physics or with any other discrete science of
world.2
We do well to reject each of these claimed features of meta-
physics. We have no reason to think that existential questions are
epistemically prior to other sorts of questions, as if we could settle
what exists and then go on to settle every other question we might
ask. Metaphysics is the tail of the (epistemological) dog, not the dog
itself. On the realist metaphysics that I accept for certain classes of
things, it is true that the existence of certain things does not depend
on our theories; even so, our discovery that certain things exist and
the justifiability in our believing that they exist, do depend on our
best theories. There is to be sure a feed back loop - it counts against
a theory if it commits us to strange ("queer") entities - yet what
makes a theory best is not that it corresponds to entities we know to
exist prior to any theorizing.
It is thus a mistake to be disappointed if our metaphysics does
not deliver a "thunderous knockdown metaphysical demonstration
no one can resist who has the wit to understand,"3 so long as we
are properly modest about the epistemic claims of our metaphysical
theories. Our metaphysical commitments are determined by our best
theories, but what makes such theories best - i.e., most rational to
believe - is not determined by some a-theoretical glance at some
brute reality. Epistemologically speaking our metaphysics is the tail
wagged by the dog of our best theories, not vice-versa.
We also should be modest about there being much (if anything)
useful to say about being qua being. Even if existence as such has
2 For these more traditional views of metaphysics, see Roger Hancock,

"History of Metaphysics", in P. Edwards (ed.), The Encyclopedia of Philos-
ophy, Vol. 5 (New York: Macmillan, 1967), p. 289; W. H. Walsh, "Nature of
Metaphysics", in ibid. at p. 300; Archie Bahm, Metaphysics: An Introduction
(New York: Barnes and Noble, 1974), pp. 3-7; David Hamlyn, Metaphysics
(Cambridge: Cambridge University Press, 1984), pp. 1-10; Richard Taylor,
Metaphysics, 2nd edn. (Englewood Cliffs, N.J. Prentice-Hall, 1974), pp. 1-9.
3 Ronald Dworkin, Law's Empire (Cambridge, MA: Harvard University Press,
1986), at p. 85.
nature, we can fruitfully investigate much more discrete natu

while suspending this most general of all metaphysical enquirie
We modest metaphysicians should also give up the quest
certainty, as Dewey called it. Such Cartesian certainty is not t
found in metaphysics, nor any place else for that matter. Everythi
(as Quine was so fond of reminding us) is up for grabs, even if
maintenance of sanity requires that most of it not be so all at o
Finally, a properly modest metaphysics should claim
independence from science or other branches of knowledge
example, the insights of an advancing neuroscience that te
some to an "eliminative materialism" about folk psycholog
mental states5 cannot be ignored by the philosophy of mind,
some ground that the latter is metaphysics while the former is
science. Similarly in legal theory, there is no disconnect betw
substantive legal theories of when, for example, people are cont
tually obligated to one another, and the nature of legal obligatio
general. One's general account of what a legal obligation is, can
ignore the legal obligations people have in various legal system
Now the parochial point. When we are locating things legal
the world - when we are theorizing about their nature and th
relationships to other sorts of things - we do well to look bey
law to other, prima facie similar ontological enquiries. Philoso
is rich with comparison cases; depending on where one start
finding existence unproblematic, one can find challengingly stra
and thus worthy of investigation, the existence of: theoretical enti
in science such as force, field, kinetic energy, etc.; enduring physic
objects, such as a ship or an elephant; real numbers in mathema
the meaning of a sentence, etc. Still, the most fruitful analogies
4 Compare my own skepticism about Heidegger's version of this in Moor

Educating Oneself in Public: Critical Essays in Jurisprudence (Oxford: Oxf
University Press, 2000), at pp. 388-392, with Panayot Butchvarov, Being Q
Being (Bloomington: Indiana University Press, 1979).
5 E.g., Stephen Stich, From Folk Psychology to Cognitive Science: The C
Against Belief (Cambridge, MA: M.I.T. Press, 1983); Daniel Dennett, The Int
tional Stance (Cambridge, MA: M.I.T. Press, 1987); Paul Churchland, "Elemin
tive Materialism and the Propositional Attitudes", Journal of Philosoph
(1981), pp. 67-90, reprinted in P. Churchland, A Neurocomputational Perspec
(Cambridge, MA: M.I.T. Press, 1989); Patricia Churchland, Neurophilos
(Cambridge, MA: M.I.T. Press, 1990).
LEGAL REALITY 623
law seem to be two.6 One is in psychology and the philoso

of mind and the other is in meta-ethics, where we may wo
(respectively) how mental states or moral qualities are to be loc
in the natural world. Given the enormous amount of philosop
attention that has been given to each of these problems, it w
not be surprising to have possibilities distinguished, blind alle
charted, arguments explored, that would be helpful in asking
legal qualities are to be located in the natural world. In additio
since on the view of law I shall suppose to be true in this paper,
qualities in some sense depend on both moral qualities and
shared mental states and actions often termed "institutional fa
to explicate minds and morals will be to explicate law as well.
Thirdly, under the injunction "more focused," I shall in
paper eschew general jurisprudence and its general enquiry
law as such.7 Instead, I shall focus on one legal system, th
the United States, and focus on two types of U.S. legal phenom
that are much less general than legal obligation, legal validity
legal system. It is not that I disagree with Hart, who held that
general concepts of law, legal system, legal obligation, validity
informed our views of what was the law on some particular t
in some oie legal system.8 One can agree with Hart on that sc
and still think that it may be more fruitful to tease out the natur
the general and universal features of law by focusing more par
larly on discrete legal phenomena within one particular legal sy
There being no epistemic priority here either way, I in any e
intend to put on that leg of the trousers first.
6 A presupposition as well of Susan Hurley, Natural Reasons (Oxford: Ox

University Press, 1986) and Nicos Stavropoulos, Objectivity in Law (Ox
Oxford University Press, 1996).
7 For the distinction between general versus particular jurisprudence, s
Moore, "Hart's Concluding Scientific Postscript", Legal Theory, 4 (1
pp. 301-327, reprinted as chapter 3 of Moore, Educating Oneself in Public, s
note 4.
8 H.L.A. Hart, "Comment", in R. Gavison (ed.), Issues in Contemporary L

Philosophy (Oxford: Oxford University Press, 1987), at pp. 36-40.
II. TWO LEGAL EXAMPLES
A. Singular Legal Propositions of American Statutory La
I shall here attempt the always dangerous feat of followi

advice and propose two sorts of legal phenomena for con
The first are the kinds of laws that U.S. lawyers call "t
a case" and what legal theorists often call singular prop
law.9 Despite Wittgenstein's caution about bad philosophy
from an insufficient diet of examples, many legal theo
few favorite cases. One of mine is Kirby v. United States
In Kirby a state sheriff (Kirby) was arrested for "obst
retarding the passage of the U.S. mail," a felony under
statute passed in 1790. What Sheriff Kirby had done was
ordinary speech, an obstructing and a retarding of the passa
U.S. Mail: he had stopped a riverboat carrying a federal m
and his mail, and taken both off the boat. This no doubt
particular mail somewhat in reaching its destination. Kir
out that the federal mail carrier he had stopped was
murder, that he (Kirby) had arrested him for that crime un
state arrest warrant, and that if Kirby had not so acted the
mail carrier would have escaped the state's jurisdiction an
arrest altogether.
The U.S. Supreme Court decided that Sheriff Kirby
guilty of the crime of obstructing or retarding the passage
Mail. The Court did not do this because of some defense
such as the modem defense of balance of evils; rather, t
reached this result as a matter of construing the federa
description of the actus reus of this crime. Further, the
not adopt its construction of this statute in light of the sta
9 I deal with singular propositions of law generically, and with t

proposition of law in the Kirby case specifically, in Moore, "Law a
Social Philosophy and Policy 18 (2001), pp. 115-145, reprinted i
F.D. Miller and J. Paul (eds.), Natural Law and Modem Moral P
(Cambridge: Cambridge University Press, 2001).
10 74 U.S. (7 Wall.) 482 (1869). Kirby has been one of my work
a long time. In addition to "Law as Justice", supra note 9, see
"A Natural Law Theory of Interpretation", Southern California
58 (1985), pp. 277-398, at pp. 386-387; Moore, "The Semantics o
Southern California Law Review 54 (1981), pp. 151-294, at p. 277.
LEGAL REALITY 625
statute, allowing the later, more specific murder statute to carv

an exception in the federal statute; given the Supremacy Claus
the federal Constitution, no such accommodation of state law
a federal statute was warranted. Rather, the Court viewed Kir
literal obstructing of the mail as not being a legal obstructing. P
phrasing Blackstone and Aquinas, the Court thought the "spirit
the statute trumped the "letter" of the statute so that Kirby was n
guilty.
The singular proposition of law on which I wish to focus is this
one: "Sheriff Kirby was not guilty of obstructing or retarding the
passage of the U.S. Mail." Such a proposition is singular in that it
applies only to Sheriff Kirby in this case. It is not a general propo-
sition of law because it does not apply to other people nor even to
Sheriff Kirby for other actions. Such a proposition is a legal propo-
sition in that it predicates a legal property to Sheriff Kirby. Kirby
possessed the ordinary property, having obstructed or retarded the
passage of the U.S. Mail; yet he did not possess the legal property
of being such an obstructor. He thus was not liable to punishment,
such remedy being tied exclusively to legal properties.
Now indulge me some assumptions. First, assume (contrary to
some federal judges to whom I have taught this case) that the U.S.
Supreme Court correctly decided Kirby; Kirby should not have been
held to have violated the federal statute. Second, assume (contrary to
some legal positivists) that the singular proposition of law - Kirby is
not guilty of obstructing or retarding the passage of the U.S. Mail -
was true prior to any court's decision to that effect. That is, assume
with me: (a) that singular propositions of law have a truth value
prior to a court's decision in that case; and (b) that the truth value
of this singular proposition of statutory law did not change with the
court's decision - it was true before and true after. Third, assume
that the legal fact that Kirby is not guilty is related (in some way)
to the following non-legal facts: (1) the facts of institutional history,
that an early Congress of the United States passed a statute which
said, "no one shall obstruct or retard the passage of the U.S. Mail,"
and no subsequent Congress had amended or repealed that statutory
language; (2) the semantic fact that (under almost any semantic
theory) what Sheriff Kirby did would be within the extension of
the ordinary English predicate, "is an obstructing or retarding of
the passage of the U.S. Mail"; (3) the moral facts that giving gr
weight to the ordinary meaning of the words appearing in vali
enacted statutes in the interpretation of those statutes is corre
because it furthers democracy, liberty, fairness, and utility; (4)
moral fact that it is (instrumentally) good within a federal syst
to have unimpeded passage of mail; (5) the partly moral, par
causal, partly linguistic fact that the function of the federal stat
was to achieve unimpeded passage of mail through the several sta
comprising the federal union; (6) the partly moral, partly caus
fact that exempting people like Sheriff Kirby does not serve t
function of the statute and is therefore in that respect bad; (7)
moral facts that getting murderous mail carriers like this one
the street (or off the river) is an instrumental good, that punish
such guilty murderers is an intrinsic good, and that not punishi
innocent people like Kirby is also an intrinsic good; (8) the mor
fact that the goods in (7) in this case outweigh the goods in (3) a
(6).
I feel entitled to ask for these three assumptions here because I
have argued for each of them at some length elsewhere.11 I realize
that the three assumptions together argue strongly for some kind of
value-laden ("natural law") view of singular propositions of Amer-
ican statutory law. But in this paper I fully intend to beg that
question. Assuming some such natural law account of these legal
propositions is true, then in some sense the legal property in question
depends on both moral and non-moral properties. My question in
this paper is, just what sense is this?
One may have noticed that my eight facts group themselves
naturally into three "ingredients" in an overall theory of statutory
interpretation: the ordinary meaning of the words and sentences in
English, the purpose of the statute, and the all-things-considered,
"safety valve" question.12 Recognizing that this is not yet a
complete theory of statutory interpretation, other facts could also be
relevant, corresponding to other ingredients in a theory of statutory
interpretation. Thus (moral and historical) facts about prior inter-
pretations of the statute by other courts or administrative agencies,13
1 See citations, note 10 above.

12 Ibid.
13 "A Natural Law Theory of Interpretation", supra note 10, at pp. 358-376.
LEGAL REALITY 627
historical facts about the "essential context" in which the statute

was passed,14 linguistic facts about the rules of normal conversa-
tional implicature,15 historical cum moral facts about the existence
of tipping principles, epistemic tie-breaker rules, or burden of proof
rules about law, etc.16 Despite the greater accuracy of including such
additional facts, in this enquiry one can make do with the eight facts
above-described, which are the ones needed to apply the three main
ingredients in the interpretation of any statute.
It might be objected that my list of relevant facts is incomplete
in another dimension as well. In adapting some such theory of inter-
pretation to the constitutional context, Richard Fallon has urged that
my theory lacks any specification of priority or combination rules
between the various ingredients in the overall interpretive theory.17
Yet it is important to see that this - at least at the level of generality
of the facts as I have stated them - would be a doomed ambition. The
facts of lexical and compositional semantics, the fact about what
particular rules are good for (their function or purpose), the facts
about the costs to all other values of certain legal results, are too
various in their weightiness in different cases to be captured by any
general rules of combination or priority.
Rules of combination, such as a simple conjunctive or disjunctive
test, are obviously inadequate. The correct interpretation does not
demand that all the ingredients line up in one direction; each
ingredient, in other words, is not necessary to a correct interpre-
tation. Likewise each ingredient is not sufficient - no matter how
plain the ordinary meaning of some statutory phrase, that other
ingredients point strongly against the "plain meaning" interpretation
cannot be ignored in arriving at singular legal propositions like that
in the Kirby case.18 Nor are more complex arrangements of conjunc-
14 Ibid. at pp. 304-306.

15 Paul Grice, "Presupposition and Conversational Implicature", in Grice,
Studies in the Ways of Words (Cambridge, Mass.: Harvard University Press, 1989).
16 See Easterbrook's opinion in In re Erickson, 815 F.2d 1091 (7th Cir. 1987).
17 Fallon, "A Constructivist-Coherence Theory of Constitutional Interpreta-
tion", Harvard Law Review 100 (1987), pp. 1189-1286, at pp. 1194-1230.
18 Argued for most famously in Fuller, "Positivism and Fidelity to Law -
A Reply to Professor Hart", Harvard Law Review, 71 (1958), pp. 630-672,
at pp. 661-669. See also Moore, "Semantics", supra note 10, at pp. 273-281;
Moore, "A Natural Law Theory", supra note 10, at pp. 383-388.
tions or disjunctions of these facts possible, as if one could iso

ordinary meaning, essential context, and purpose, for exampl
necessary elements of one sufficient set, recognizing that there cou
be other sets sufficient (so that this first set is not necessary).
item in such a list is not necessary to the set, nor can one gener
that the set will always be sufficient for a correct interpretatio
these factors line up.
Priority rules that order conflicts between ingredients are
not plausible. The plain meaning rule, for example, would m
ordinary meaning lexically prior to the intent of the legislature or
anything else.19 As a heuristic this is perhaps defensible (alth
as a heuristic the reverse is perhaps even better, as Judge Pos
urges in his advice to judges to figure out what the statute aim
prevent and only then closely look at the wording).20 But, in te
of the right-making characteristics for a judicial decision, no
exclusion is possible or desirable.
We thus can expect no precision in how to combine the v
general moral, historical, scientific, and semantic facts that ma
legal interpretation correct. The best we can do with these facts is
give a list of them, realizing that their relative importance and mo
of combination in determining the correct outcome in any given ca
will be unique to that case.
B. General Legal Propositions of American Common Law
My second example is the Good Samaritan rule of the Amer

common law of tort. It is hornbook law today that, while one ge
ally owes no affirmative duties of aid to strangers yet where
has caused (innocently or culpably) the victim's peril, one does
such a duty My case illustrating this truth of the common law of t
is Union Pacific Ry. v. Cappier,21 decided by the Kansas Supre
Court in 1903.
19 At least as the rule is formulated in such classics as Tennessee Valley

Authority v. Hill, 437 U.S. 153 (1978); Caminetti v. United States, 242 U.S. 470
(1917).
20 Posner, "Statutory Interpretation - in the Classroom and in the Courtroom",
University of Chicago Law Review 50 (1983), pp. 800-822, at pp. 807-808.
21 72 Pac. 281 (Kan. Sup. Ct. 1903).
LEGAL REALITY 629
In Cappier a young boy, Irvine, trespassed onto the defendan

Union Pacific's railroad line. He was hit but not killed immedia
by one of defendant's trains. Rather, young Irvine had an arm a
leg severed by the wheels of the train. Defendant's engineer stop
the train, removed Irvine from the tracks, and (for reasons w
were disputed) went on. Irvine bled to death, and his mother brough
a wrongful death suit against the railroad.
In denying liability, the Kansas Supreme Court found that t
Union Pacific had not culpably caused Irvine's peril (of bleed
to death). Because of the no-duty-to-trespassers rule typical of
time, the railroad was not negligent in failing to see Irvine in t
not to hit him, and the trial judge so held in non-suiting plain
for her cause of action in misfeasance. Recognizing that the railr
had a strong moral duty to render aid to one that it had innoce
caused to be in peril, the Kansas Court nevertheless held there t
no corresponding legal duty and thus no liability for Irvine's de
under the plaintiff's second cause of action for nonfeasance.
The general proposition of law which I wish to examine is th
one: those who innocently cause another to be in peril have an
affirmative duty to rescue that other from that peril, so long as they
can do so at reasonable cost to themselves. Such a proposition is
general in that it lays down a rule to govern all persons, not just
the litigants in a particular case. Such a proposition is legal in that
it predicates a legal duty on all those who fall within its factual
triggers.
One might legitimately wonder how this general proposition of
law relates to the Cappier case in which the court seemed to hold
just the opposite. The connection is via the common law power of
overruling. Suppose a case arose today "on all fours" with Cappier's
facts. Although the matter is not free from doubt, my guess is that
the law of Kansas to be applied to this second case is the proposition
I have quoted, and not the opposite proposition to be found in the
1903 opinion. Given the greater experience with positive duties to
those whose risk we have created, and given correspondingly greater
insight, the Kansas Supreme Court should (and probably would)
overrule Cappier. The law of Kansas is thus not exclusively a func-
tion of historical fact (what the Kansas Supreme Court did in 1903);
rather, it is a blend of such historical facts and certain moral facts.
As before, to reach the question that here interests me I nee

to make some assumptions. First, I assume that the hypothetica
overruling decision of my hypothetical second case is correct. T
error of the Kansas Supreme Court in 1903 was serious enough t
it should be overruled, despite the costs to the rule of law valu
generally justifying deference to precedent. Second, I assume t
the general proposition of law above stated is and was true prior
any overruling court recognizing it as true in a decision overrul
Cappier. That is, assume: (a) that there is some law to be applied
my hypothetical second case; and (b), that overruling decisions
applied retroactively, both to the facts of the overruling case and
all other cases. While the overruling does not change the law of
case for Cappier herself, the general proposition for which Capp
stands is recognized as always having been false, as never havin
been the law of Kansas. Overrulings, in other words, do not chan
the law; they only discover for the first time what the law rea
is.
Third, I assume that the truth of the general proposition of law
about affirmative duties of aid is related (in some way) to the
following non-legal truths:
1. The historical facts that in 1903 the Kansas Supreme Court

reversed the jury verdict in favor of Estelle Cappier on the facts
of that case.
2. The moral fact that my imagined second case is similar enough

to Cappier (in that it shares morally relevant properties) so that
one could not find a morally justifiable basis to distinguish the
second case from Cappier.
3. The moral facts that efficiency in adjudication, equality, liberty,
and fairness will be promoted to a certain extent were a court to
follow Cappier and not overrule it.
4. The moral facts that corrective justice is served if those who
breach strong moral duties pay for the harms that are caused (or
were not prevented) by the breach, and that strong moral duties
of rescue are owed to those we ourselves place in peril, however
innocently.
5. The moral fact that the good of corrective justice in (4) is more
important than the goods of precedent in (3), i.e., Cappier is
sufficiently in error that it should be overruled.
LEGAL REALITY 631
It is this combination of historical and moral facts that make it the

case that the general proposition of law quoted earlier is true, and its
negation, false.
Again, one might think that I am begging all the important ques-
tions here. Yet it is not my purpose to rehearse some old arguments
of mine as to how or why a natural law theory of precedent is
correct.22 Assume with me it is, and then ask the question that
interests me here: in what sense does the general proposition of law
depend on the historical and moral facts listed above?
The list of facts here is doubly incomplete as it was for singular
propositions of statutory law. It is incomplete first because other
facts could be relevant here. In particular, there are a welter of facts
behind the "sufficiently similar" fact (2) above. These include moral
facts, such as the scalar nature of the value of the equality and the
resulting diminishing value of equal treatment the less like a second
case is to a first one;23 also included are historical facts, such as
what other decisions there are in Kansas that might have "tugs of
equality" of their own, etc.24 Still, the list we have is illustrative and
will suit the purpose of pursuing my relational question.
Such a list is also seemingly incomplete in its lack of combina-
tory or prioritizing criteria. As with the "overruling" of plain
meaning in statutes, criteria have certainly been proposed for
common law overrulings as well. The U.S. Supreme Court has
recently articulated a list of criteria for overruling in the Consti-
tutional context.25 Yet as Justice Scalia (of all people!) has pointed
out, any such test for overruling cannot capture the crucial factor
here: how much in error was the initial decision up for overruling?26
In common law overruling we seemingly have only what we have
22 Moore, "Precedent, Induction, and Ethical Generalization", in Laurence

Goldstein (ed.), Precedent in Law (Oxford: Oxford University Press, 1987).
23 On this, see Moore, "Legal Principles Revisited", Iowa Law Review 82
(1997), pp. 867-891, reprinted as Chapter 7 of Educating Oneself in Public, supra
note 4.
24 I thus join those who have argued that no single case has a holding (a propo-
sition of law for which that case stands), because the reach of any case depends
on what other cases there are.
25 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833
(1992).
26 Ibid.
for overruling the plain meaning of statutes: a blend of mor

non-moral facts, the weight of each of which varies with eac
III. FINDING A PLACE FOR LEGAL QUALITIES IN OUR WORLD
The question that interests me is in what sense things legal exist:

where or what are they, how do they relate to the non-legal facts
on which they in some sense depend? More particularly: (1) What
makes the singular proposition of American statutory law - that
Sheriff Kirby was not guilty of obstructing or retarding the passage
of the U.S. mail - true? The reference of this singular term we under-
stand; "Sheriff Kirby" refers to a particular person (although this
will not always be true; compare: "this contract is valid.") Yet what
determines the extension of the legal predicate? If a legal obstructing
(or retarding the passage of the U.S. mail) is not the same as an
ordinary obstructing, what is it and how does it relate to the non-
legal, ordinary kind of obstructing? Similarly, by virtue of what in
the world is the general proposition of American common law -
that legal duties of rescue are owed those placed in peril by our own
actions, however, innocent - true? If a legal duty to render aid is not
to be identified simplicatur with a moral duty to render aid, what
is it and how does the legal duty relate to the moral duty? I shall
examine six general sorts of responses to these and parallel onto-
logical queries, answers culled from the literature of psychology,
ethics, and law.
A. "Answer" Number One: Refusing Sense to the Question
When we are unsatisfied with just about any answer we can think
of to some question, a tempting move is to think our question ill-
formed in some way. After all, a question that makes no sense is
a question we need not trouble ourselves to answer. Consider by
way of example Gilbert Ryle's famous attempt to suspend ques-
tions of reference and identity about minds.27 Ryle urged that we
needn't answer the intractable questions of to what mental state
terms like "intention" referred and whether intentions were identical
to certain brain states; these questions of reference and identity
27 Gilbert Ryle, The Concept of Mind (London: Hutcheson, 1949), chap. 1.
LEGAL REALITY 633
were ill-formed because they elided together terms from diffe

categories of discourse. To ask whether brain states and me
states both exist, and, if so, what relations might hold between the
was supposed to be nonsensical - a "category-mistake" - in the s
way that comparing the sun and the average-age of death for t
capacity to rise makes no sense.
I call this the ostrich position because it refuses to look for
reference and extension of legal terms and because it refuse
look for any relation between legal and other, non-legal thing
ethics and in law the dubious honor of occupying the ostrich positio
belongs most notably to Ronald Dworkin.28
Most of us believe that the answers to metaphysical question
about minds, morals, laws, and lots of other things, come in ju
a few familiar packages: one is either a realist about such thin
of either the monist (naturalist) or dualist (non-naturalist) strip
one is an anti-realist of either the skeptical, the Peircean, or t
secondary quality kinds. These five (skeptical and non-skept
answers I explore below. Dworkin, however, apparently beli
that we needn't choose between these metaphysical positions, eit
because the question to which these purport to be answers make
sense or because such answers have no implications for our pra
tices of psychology, ethics, or law. Dworkin thus characterizes
entire metaphysical business as a "preliminary dance" that is "s
and wasteful;" it "neither adds to nor subtracts from the busine
hand."29
Dworkin's arguments for the ostrich position I have examined
before.30 His main argument is to deploy an external/internal
28 Tom Nagel and Nicos Stavropoulos have been heavily influenced by

Dworkin into accepting his "quietist" position about legal and moral metaphysics.
See Tom Nagel, The Last Word (Oxford: Oxford University Press, 1997), pp. vii,
101-106, 125; Stavropoulos, supra note 6, at pp. 160-162. Such influence is
unfortunate because each of these otherwise sophisticated philosophers have (or
had at least) naturalist intuitions. Tom Nagel was once a type-identity naturalist, at
least about mental states (Nagel, "Physicalism", Philosophical Review 74 (1965),
pp. 339-356), and Nicos Stavropoulos seems attracted to both supervenience
naturalism and a secondary property analysis of both law and ethics, as I explore
below.
29 R. Dworkin, Law's Empire, supra note 3, at p. 86.

30 Moore, "Metaphysics, Epistemology, and Legal Theory", Southern
California Law Review 60 (1987), pp. 453-506; Moore, "The Interpretive Turn
distinction, urging that all meaningful/practically relevant pro

tions are internal to some practice such as law.31 External criti
and external supports for such practices are either senseless,
least bootless. All metaphysical questions of reference and iden
are taken to be external, whether asked by the skeptic who d
the existence of things like legal duties or by the metaphysical rea
who asserts their existence and their identification with other thi
Consider this variation of an example of Dworkin's
Stavropoulos' to illustrate the argument. Suppose an art c
looking at a painting says, "that is not a very accurate depiction
unicorn." Stavropoulos urges that "it is intuitively inappropriate fo
biologist to object that unicorns do not exist. It seems that we
a priori that this is inappropriate ...."32 Dworkin would no do
write off the biologists' skeptical remark as an external criti
one the art critic could ignore as senseless or at least irreleva
the practice of art criticism.
Such examples illustrate the affinity of Dworkin's use o
external/internal distinction with Ryle's old use of the doctrin
category differences. Both seek to insulate one realm of disco
from criticism (or support) by another. They are protective de
seemingly allowing us to do our ethics, law, psychology, o
criticism without worry about "external" questions of referenc
identity.
The problem for Dworkin is the same as it was for Ryle: what
in language use, or in any other aspect of a practice, could show
us that a criticism or a support was "external" or "in a different
category?" How, Quine33 asked of Ryle, could Ryle possibly
examine two usages of "exist," - so as to be able to conclude that
in "bodies exist" and "minds exist" we use "exists" in different
in Modem Theory: A Turn for the Worse?", Stanford Law Review 41 (1989),
pp. 871-957, both reprinted in Educating Oneself in Public, supra note 4. The
relevant pages in the latter volume are pages 283-293 and 417-422, respectively.
31 See the citations to Dworkin's work in great detail in ibid. For a similar
exposition and critique of Dworkin's "external" argument, see also Leiter,
"Objectivity, Morality, and Adjudication", in B. Leiter (ed.), Objectivity in Law
and Morals (Cambridge: Cambridge University Press, 1999).
32 Stavropoulos, supra note 6, at p. 181.
33 W.V.O. Quine, Word and Object (Cambridge, MA: M.I.T. Press, 1960), at
p. 131.
LEGAL REALITY 635
senses - without looking to the reference of each? Similarly, h

could Dworkin know that the biologist's skepticism was "exter
without knowing that "unicorn" as she used it referred to one t
(a biological species) whereas "unicorn" as used by the art cr
referred to something else (an object of those conventional bel
we call myths)?
One can see this by imagining a rather different biologist cr
cizing the art critic. Suppose by "unicorn" this biologist did
refer to a biological species; rather, he was referring to the ob
of mythical beliefs. By denying that unicorns exist, he was ei
denying that the myths exist or denying that the myths in ques
ever mention or conceptualize unicorns. Now his negative exist
tial statement is hardly senseless or bootless: if such myths do
exist, then there is no possibility of an artistic rendering of a unico
being good or bad. Now his criticism is "internal," viz, relev
But one knows this only by asking the questions of reference
identity: to what does "unicorn" refer, and does it refer to the s
kind of thing in each of its two usages?
"External" thus is the label Dworkin can put on senseles
irrelevant questions after he has decided on other grounds that t
are senseless/irrelevant; "external" cannot be a reason to write o
such questions. Stavropoulos appears to agree with me on this.
reiterates Quine's point, that practices as such do not individua
ambiguities by themselves.34 One has to get one's hands dirty
metaphysics to see what is being referred to, and whether
the same as some other putatively distinct thing, in order to de
the ambiguities of reference that can make some criticisms see
to be "external" or "category mistakes." Rather oddly, he think
that in this he and I disagree and that he and Dworkin agree. Y
he and I disagree only if I subscribe to what Stavropoulos c
"discourse autonomy" - and attributing "discourse autonomy" to
is pretty absurd. Second, Stavropoulos and Dworkin can agree o
if Dworkin gives up his convention-grounded "external" critici
of moral and legal metaphysics. No doubt interpreting Dworki
be "the best he can be" would eliminate his "external" argumen
but the real Dworkin to whom I was referring is an ostrich preci
because he uses the "external" argument in the way I describe.
34 Stavropoulos, supra note 6, at pp. 180-186.
B. Answer Number Two: The Skeptical Answers That Deny th

Existence of Legal Things
Unlike the ostrich, the skeptic at least grants the ontological

tion the compliment of making sense and having relevanc
skeptic, however, denies that the entities, qualities, or relati
question actually exist. Such a skeptic can readily admit that
we say things like, "He went downtown because he intend
get a haircut," "he did not rescue anyone because he is a mor
callous fellow," "the judge decided against Cappier because no
duty was owed to him by the railroad," we seem to be comm
to the existence of things like intentions, moral qualities, and
obligations. Yet as the late Willard Quine once cheerily remin
us, "many of our casual remarks in the 'there are' form would
dusting up when our thoughts turn seriously ontological."35 Sk
tend to run with such a thought, hoping to show us how we can h
everything we want without being committed to the existen
queer things. At least this is the happy skeptic, who I examine
to encountering his more pessimistic cousin.
1. Happy skepticisms
The happy skeptic is a skeptic because he denies that your fa
entities exist; he is a happy fellow nonetheless because he c
that you never really believed that such things did exist. You
misled by the appearances of your own practices.
a. The fusion strategy. One such happy skeptic is the fus

strategist. The "fusionist" (if I may) focuses on phrases like,
behalf of' and "for the sake of." Imagine a metaphysical enqu
into the nature of behalfs and sakes.36 Such an enquiry is misl
the syntactic category of the words, "behalf' and "sake." Beca
these are nouns, it may seem they refer to some things, and
we go chasing the question of the sort of things behalfs and
35 W.V.O. Quine, Ontological Relativity and Other Essays (New Yo

Columbia University Press, 1969), at p. 100.
36 Quine, Word and Object, supra, note 33, at p. 244. Dan Dennett adds
(as in, "by dint of') and troths (as in "I pledge my troth"), as examples of sp
things named by degenerate nouns. Daniel Dennett, Content and Consciou
(New York: Humanities Press, 1969), p. 7.
LEGAL REALITY 637
might be. The fusionist is a skeptic in that he denies the existen

behalfs and sakes. Yet he is a happy skeptic because anyone usi
these words in these ways never was committed to the existenc
sakes or behalfs. To be told there are no behalfs or sakes should not
be a disappointment, in other words, to anyone who understands his
own ontological commitments.
The fusionist is persuasive about behalfs and sakes, for "behalf'
and "sake" do not occur in referential position in the phrases in
which they appear. We know this because the phrases are "fused,"
that is, the unit of semantic significance here is not the word but the
phrase, and we know this because "behalf" and "sake" do not get
used outside of these limited phrases. A somewhat more compli-
cated example is provided by what Quine called syncategorematic
adjectives.37 Consider the phrases, "mental midget" and "intellec-
tual dwarf." It would be a mistake to seek the referents of "midget"
or "dwarf" in isolation from their modifying adjectives, for the
phrases are fused so that the units of semantic significance are the
whole phrases. Neither phrase refers to small people, nor does it
ascribe intellectual power to them; rather, the reference of the fused
phrase is to those with less than average intelligence. The reason
this is a somewhat more complicated example is because both the
adjectives and nouns making up these fused phrases have other,
non-fused usages. E.g.: "For a dwarf, he is very intellectual." In the
latter usages - what Quine calls their attributive uses - the words,
do occur in referential position so that it is no mistake to ask after
the extensions of "dwarf" and "intellectual" separately.
The fusion strategy has been tried in both psychology and law.
Dan Dennett in his first book (and while still heavily influenced by
his former tutor, Gilbert Ryle) once urged that mental state terms
were non-referential because occurring only in fused phrases.38
Similarly, Herbert Hart in his inaugural lecture at Oxford (while he
too was heavily influenced by Ryle's desire to suspend metaphysical
questions because of purely linguistic considerations) urged that it
was a mistake to seek either the meaning or the reference of legal
words like "right," "duty," etc. Rather, Hart urged, we must regard
whole sentences as the units for our semantic analyses, sentences
37 Quine, Word and Object, supra, note 33, at p. 132.

38 Dennett, Content and Consciousness, supra note 36, chap. 1.
such as, "A has a right to .. ."39 Doing so, Hart told us, will sa
us from the error of asking after what sort of thing a legal ri
might be. We need to be saved from such an ontological quest
because here Hart was a skeptic: there is nothing in the world t
corresponds to the word "right," no "counterparts in the wor
fact which most ordinary words have ..."40
Much of Hart's motive for focusing on sentences and not wo
has to do with his non-cognitivist speech act semantics, dealt
shortly. Still, we can see the temptations of the fusion strate
tugging on Hart as well. Hart asks us what we would think of
ontological enquiry into the nature of tricks in the game of bridge
Hart rightly supposes such an enquiry to be senseless or bootl
because "trick" (in its bridge-game sense) is only used in the ph
"take a trick." The trick is to see that nothing is literally taken wh
one takes a trick in bridge. The whole phrase refers to an action
its component words do not. The same, Hart concludes, is true
"right" as used in law.
There is nothing wrong with the fusion strategy as a mean
revealing our true ontological commitments. A metaphysic
dints, sakes, or tricks would be a joke. There is a real problem
applying the strategy to either psychology or law, however, f
the linguistic data do not seem supportive. Neither "intenti
"desire," "anger," or other words of mental state, nor "right," "dut
"laws," or other words of law, seem limited in the contexts of t
appropriate use. Nor is there a syntactic ambiguity in the usage
such words, as there is for "intellectual dwarf" and its cousins
that there is no separate sense of a syntactically ambiguous ph
that is fused. Unlike "trick," "dint," or "sake," psychological a
legal terms seem to operate like normal nouns to which many v
and adjectives may be attached. In short, there is no fusion of t
words into stock phrases, tempting us to regard the phrase as
smallest unit of semantic significance. Such a strategy thus can
make us happy skeptics and neither should it make us skeptics
39 H.L.A. Hart, Definition and Theory in Jurisprudence (Oxford: Clarend

Press, 1953), reprinted in Hart, Essays in Jurisprudence and Philosophy (Oxf
40 Ibid. at p. 23.
41 Ibid. at p. 33.
LEGAL REALITY 639
all: "legal right" looks referential, so that no linguistic fact abo

usage should convince us that such things do not exist. Unless
other linguistic strategy comes to the rescue, we will have to c
to our skepticism metaphysically.
b. The non-cognitivist skeptic. The fusion strategist is somethin

a mere warm-up act for a by far the more influential type of h
skeptic, the non-cognitivist. Like the fusionist, the non-cognitivist
a skeptic in his denial that mental, moral, or legal things exis
is a happy skeptic because he believes careful attention to lang
will show that none of us ever believed such things to exist any
Like the fusionist, he will show us this because he believes he
isolate non-referential uses of language. Unlike the fusionist,
non-cognitivist's test for non-referential use is built on a kin
speech-act analysis.
Consider some examples of non-cognitivisms. In the sentence
am in pain," Wittgenstein told us, the word "pain" does not r
rather, the whole expression is the equivalent of saying "ouch
"I am in pain," like "ouch," expresses or signals the discomfor
the speaker; "pain" no more than "ouch" refers to something in
non-descriptive speech act. One thus doesn't need a theory of p
nature any more than one needs a theory of ouch's nature, for we
not really committed to there being any such thing(s).
Ethics is the more famous home of non-cognitivist analyses
the traditional emotivist analysis, saying "bullfighting is wro
is to refer to the institution of bullfighting but not to predi
a property of it, namely, its wrongness. Rather, it is to expr
disapproval of bullfighting; perhaps also to recommend to oth
that they similarly disapprove of it; perhaps also to prescribe
oneself and others not to engage in or encourage that form
activity.43 In any case, such expressive, commendatory or pres
42 Wittgenstein, Philosophical Investigations ?244, 3rd edn. (Oxford:

Blackwell, 1958). The "signal theory" of first person mental state avow
discussed briefly in H.L.A. Hart and Stuart Hampshire, "Decision, Intention,
Certainty", Mind 67 (1958), pp. 1-12.
43 See generally A.J. Ayer, Language, Truth and Logic (1936), chap. VI; C
Stevenson, Ethics and Language (Cambridge, MA: Harvard University P
1944); R.M. Hare, The Language of Morals (Oxford: Oxford University Pre
1952); Hare, Freedom and Reason (Oxford: Oxford University Press, 1963).
tive uses of the language were taken to preclude any descriptio

anything such as a moral property of wrongness. Since the predicat
"is wrong" thus does not refer, no theory of the nature of wrongn
is wanted or needed.
In law, Herbert Hart is the most famous proponent of a non-
cognitivist analysis of legal discourse. Hart held, for example, that
our usage of action language in law was not to describe some class
of events; rather, expressions like, "A did it," have an ascriptive
function: they are used to ascribe responsibility to A.44 In his
inaugural lecture at Oxford Hart broadened his analysis. Like the
umpire saying, "you are out" in baseball, the judge saying, "Sheriff
Kirby is not guilty of obstructing or retarding the passage of the
US. Mails," is to affix liability (or an immunity to liability) to the
persons referred to. In such cases, the speakers make it true by their
pronouncements that an actor is responsible, a batter is out, or a
litigant is not guilty. There is no truth of the matter antecedent to
such pronouncements and one thus does not want or need a theory
about the nature of responsibility (in terms of action), of outs, or of
legal rights or duties.
There is a large problem for non-cognitivist analyses of mind,
morals, or law. This is what has come to be known in the trade as
the "speech-out fallacy."45 This is the fallacy of inferring that some
discourse can't be descriptive if it can be shown to be performing
some other function. As Peter Geach directed this criticism at
Hart,46 what possible reason is there to think that because the
sentence, "A did it," is typically used to ascribe responsibility, that it
is not also used to describe something (an event) in which A figured?
For the relative of a homicide victim to shout at the perpetrator,
"you murdered (or killed) my husband," is undoubtedly to ascribe
responsibility, express disapproval, etc. It also describes the action
that person did.
44 H.L.A. Hart, "The Ascription of Responsibility and Rights", Proceedings of

the Aristotelian Society 49 (1949), pp. 171-194.
45 William Lycan, Judgement and Justification (Cambridge: Cambridge
University Press, 1988), at p. 204.
46 Geach, "Ascriptivism", Philosophical Review 69 (1960), pp. 221-225,
reprinted in Geach, Logic Matters (Berkeley: University of California Press,
1980), pp. 250-254.
LEGAL REALITY 641
The speech-act fallacy form of criticism may seem to go on

this far: it tells the non-cognitivist that she cannot derive
skepticism from her insight about language. She cannot infer f
certain distinctive illocutionary act potentials47 typical of cer
discourses, that the words used in such discourses do not re
She has to arrive at her skeptical beliefs, that mental states, mo
qualities, or legal relations do not exist, in some more metaphys
way.
Yet the speech act criticism is more damning than this. To get
at its true force, imagine a clear-headed non-cognitivist taking the
apparent lesson of the speech act fallacy to heart. He reasons thusly:
"In my own metaphysical analysis, I conclude that there are no
such things as intentions, justice, or legal duties; therefore, if the
discourses are not just babble, then they must be made sense of
in terms of some non-descriptive speech act, such as signaling,
expressing, prescribing, ascribing, etc."
The problem for this quoted bit of reasoning lies in its second
step. Just because there is nothing to which one may refer does
not mean that one's language is not being used descriptively. False
descriptions are still descriptions because their authors are trying
to describe things. Non-cognitivism thus does not follow from
skepticism; there are, as we shall see shortly, skeptics who are
nonetheless cognitivists about the relevant discourse.
What the non-cognitivist needs is some linguistic test for non-
descriptive uses of language. Speech act analysis - when focused
on what J.L. Austin once called performative utterances, like "I
do" said in a marriage ceremony - held out the promise of such a
linguistic test, but as we have seen the discovery of non-descriptive
functions for language is no test of referential usage. The problem
for the non-cognitivist is that he has no other argument to convince
us that our "surface grammar" is not our real grammar about such
discourses. That is the real power of the speech act fallacy criticism.
There are of course non-descriptive usages of language. "Ouch,"
"shut the door," and "I do," do not on their face seem like attempts
to describe anything (and this is true independently of whether one
47 "Illocutionary act potential" was William Alston's phrase referring to the

kinds of illocutionary acts for which any given phrase could be used. Alston,
Philosophy of Language (Englewood Cliffs, N.J.: Prentice-Hall, 1964).
can locate some other non-descriptive function such express

are typically used to perform). The problem for non-cognitivis
that the discourses of minds, morals, and law do not seem on t
face non-descriptive. Needed by the non-cognitivists is some de
whereby he can show that the surface features of our usages
deceptive.
The device chosen by some non-cognitivists in ethics is the
external/internal distinction we saw before with regard to the ostrich
position. Some non-cognitivists (including prominently Simon
Blackburn) would adapt this device so as to salvage our seem-
ingly descriptive ethical discourse while at the same time promoting
non-cognitivist and skeptical meta-ethics. One might picture such
"quasi-realism" in the following way. On Monday through Friday
the quasi-realist practices his ethics with full realist seriousness. He
describes moral qualities, makes judgments capable of being true or
false, intends to refer to moral things, sees truth as correspondence
to the moral world, makes claims of knowledge, etc. Internal to his
own practice of ethics, he is both non-skeptical and cognitivist. On
the weekends, however, he sits by Hume's famous fire and muses
about the week's work. What he concludes from these external,
"meta"-enquiries is that there is no moral reality to which he could
have been referring; indeed, he really was staining the world with
his projections and confusing his own stainings with independently
existing qualities. In addition, the seeming cognitivism of his work-
week discourse was just a language game played because it is more
effective in altering other people's behavior than would be naked
commands or expressions of desire. Really, however, that was all
that was going on.
We should probably rename this position "schizo-realism," for
it is schizophrenic (in the popular, non-psychiatric sense) between
cognitivism cum realism during the week and non-cognitivism
cum skepticism on the weekend. The label highlights the obvious
problem: how does one normal person - that is, one lacking the
amnesia typical of some forms of mental illness - believe both of
these things? What keeps the weekend meta-ethics from infecting
the work-week ethics?
LEGAL REALITY 643
Both Blackburn and Jeremy Waldron48 believe that we c

seal off our meta-ethical weekend by denying sense to statem
attempting to import weekend non-cognitivism into work-we
cognitivism. Consider one of Blackburn's examples of such
bridging statement: "if we had different attitudes [about kick
dogs], it would not be wrong to kick dogs."49 In such example
speaker is seemingly saying that his internal, work-week substan
moral judgments would be affected by something his week
meta-ethics tell him is all there is here, viz, attitudes and t
expression.
Blackburn and Waldron distinguish two senses to such bridg
statements, a justificatory and a causal sense. In the justificato
reading, the speaker would be "committed to saying that his o
feelings justify the judgments that she makes."50 This is an inte
statement of ethics, and, as Blackburn and Waldron both point
it is an evaluation that they as well as anyone else can and sho
reject. As a matter of substantive ethics, they no more than any
else need think that their aversion to kicking dogs is the featur
that act that makes that act wrong; they like anyone else can th
that the pain to the dog and the cruelty of the kick are what make
wrong to kick dogs.
Blackburn and Waldron will also allow a kind of causal or non-
justificatory reading of the quoted counterfactual statement. As
Waldron construes this sense: "I only make the moral judgments I do
... because of how I feel. If I felt differently, I would make different
moral judgments."51 If Waldron felt differently about kicking dogs,
he would judge that act's morality differently. This is a purely
external statement about how Waldron's attitudes cause his judg-
ments. It says nothing about how the moral quality of dog-kicking
(an internal matter) connects up with the attitude of the judging
subject (an external matter).
48 Blackburn, "Rule-Following and Moral Realism", in S. Holtzman and C.

Leich (eds.), Wittgenstein: To Follow a Rule (Cambridge: Cambridge University
Press, 1981); Waldron, "The Irrelevance of Moral Objectivity", in R. George (ed.),
Natural Law Theories (Oxford: Oxford University Press, 1992).
49 Blackburn, "Rule-Following", supra note 48, at p. 179.
50 Waldron, "Irrelevance", supra note 48, at p. 171.
51 Ibid. at p. 170.
What Blackburn and Waldron deny sense to is precisely t

bridging sort of statement the dog-kicking statement seems on
face to be. It seems to say neither of the things, purely interna
purely external, that Blackburn and Waldron want it to say; rath
it seems precisely to cross the supposed divide and say that sin
attitudes are all there are for a skeptic-non-cognitivist, differe
attitudes make true different moral judgments.
What Blackburn and Waldron need is some argument that den
sense to such bridging, counterfactual statements when taken
their most obvious way. Apparently, pace Ryle, there is some ki
of category-mistake involved in conjoining talk in one categ
(internal, ethical talk) with talk in another category (external, m
ethical talk). Yet as we saw before with both Ryle and Dwork
there is nothing in language use that can show us such categori
divides. If we want to show a true category mistake, we have to
what is referred to in order to see whether an elision of ambigu
has occurred (as with Stavropoulos' "unicorn" example).
Blackburn has seemed to have taken this criticism to heart, f
he has offered a more metaphysical defense of why true bridg
statements are impossible:
The crucial question ... is whether the projectivist wilfully refuses to hear t
external reading. ... There would be an external reading if realism were tru
For in that case there would be a fact ... whose rise and fall and dependency
others could be charted. But antirealism acknowledges no such state of affa
and no such issue of dependency.... Talk of dependency is [internal] moral t
or nothing."52
Now it seems we can't bring internal evaluations out to our exter

meta-ethics because of the truth of non-cognitivist skepticism:
the weekends, moral qualities don't exist and moral words do n
refer. This is a metaphysical, not a linguistic argument, beca
it assumes we have asked after the referents of moral terms and
discovered that there is nothing there.
This is a very odd response, for at least two reasons. First, it
does not tell us why we cannot take our external, meta-ethical non-
cognitivism inside, to say that if our attitude were different, the truth
52 Blackburn, "How to Be an Ethical Antirealist", Midwest Studies in Philos-

ophy 12 (1988), pp. 361-375, at pp. 367-368, reprinted in Blackburn, Essays in
Quasi-Realism (Oxford: Oxford University Press, 1993), at pp. 172-174.
LEGAL REALITY 645
of moral judgments would be different. Inside, moral judgments

treated with full realist seriousness, so that they are capable of bein
true or false, etc.; so here we cannot assume away realism. And o
we assume there is a moral truth about kicking dogs, why must
statements as the one Blackburn imagines be given a substanti
moral, justificatory sense rather than the causal sense obvio
intended? Blackburn's answer is that "as soon as one uses a sentence
whose simple assertion expresses an attitude, one is in the business
of discussing or voicing ethical opinion."53 Yet the bridge statement
does not express an attitude - it observes an alleged metaphysical
connection between the truth of an ethical judgment and that which
allegedly makes it true. Second, Blackburn's argument is a rejoinder
to an argument why his brand of non-cognitivism/skepticism is
false. In that context it is an odd rejoinder to assume the fact in issue,
viz, that his brand of non-cognitivism is true. If non-cognitivism is
true, then it is true, but saying this - even while clicking one's heels
three times - does not make it so.
Ethics has undoubtedly been the home of the most developed
literature on non-cognitivist brands of skepticism. No equally
sophisticated non-cognitivist analyses of law have emerged, in part
because of the lesser philosophical talents or interest of practitioners
of skepticism in law. Hart was the exception, but once he appreciated
the speech act fallacy he abandoned the non-cognitivist strains in his
early writings.54 There are, however, the Legal Realists who them-
selves sometimes can be interpreted as legal non-cognitivists as well
as skeptics. I refer not to the views of Holmes and Frank, who were
skeptics of a kind (see below). Rather, I refer to those proponents of
the "functionalist" analyses of legal concepts, analyses that focused
on the consequences of authoritative use of legal concepts to the
exclusion of any descriptive meaning.
Occasionally the Legal Realists sounded like their emotivist
cousins in ethics, recognizing the expressive functions of legal
words:
Logicians sometimes talk as if the only function of language were to convey ideas.
But ... certain words and phrases are useful for the purpose of releasing pent-up
53 Ibid. at p. 173.
54 Hart repudiated his ascriptivism article, citing Geach's criticism, in Hart,
Punishment and Responsibility (Oxford: Oxford University Press, 1968), at p. v.
emotions, or putting babies to sleep, or inducing certain emotions and at

a political or a judicial audience."55
More often the Legal Realists, like Hart, focused on the pe

ative force of the utterances of judges as they decided
Unlike the emotivists and the early Hart, however, the
did not base their skepticism on these observations about t
assertorial, illocutionary speech acts of judges. The Legal R
skepticism about things legal having a nature came from
non-speech-act-analysis, quarters.
What makes the Legal Realist nonetheless a kind o
cognitivist skeptic was their focus on the perlocutionary spe
involved in judicial use of legal language. Legal concepts
Hohfeld's old phrase, "dispositive" - like Janus, the old E
god, they look in two directions at once for their meaning
to the consequences of their authoritative pronouncement
the criteria for their correct application. A legal "obstruct
retarding of the passage of the U.S. Mail," for example, has
legal consequences (viz, punishment) attached to its authori
pronouncement by a judge. In short, legal remedies seem to
much a part of the meaning of legal concepts.
In their guise as non-cognitivist skeptics, the Legal Realist
the remedial aspect of legal concepts all there was to such co
They did this, first, by being skeptical that concepts like a
obstruction (or contract, title, ownership, corporation, dom
referred to any things whose nature could guide judgment
were "meaningless" words that literally were without refer
Such words in the jurist's famous "heaven of legal concepts"
any direct empirical referents, and even as "logical constru
they failed because of the indeterminacy in the bridge pri
that purported to connect them to the world of observable
55 Felix Cohen, "Transcendental Nonsense and The Functional App

Columbia Law Review 35 (1935), pp. 809-849, at p. 812.
56 See, e.g., Alf Ross, "Tu-Tu", Harvard Law Review 70 (1957), p
825. (Legal words like "ownership" are literally meaningless words that r
nothing.)
57 For an overview of the various indeterminacies in law alleged to exist by the
Legal Realists, see Moore, Educating Oneself in Public, supra note 4, at pp. 207-
215.
LEGAL REALITY 647
This was the negative existential thesis of the Legal Realists t

qualified them as skeptics. They had, secondly, a positive thesis
made them a kind of non-cognitivist, namely, that the real mea
of legal concepts lay in the legal consequences of such conc
authoritative pronouncement.
Sometimes those legal consequences are simple because sin
The legal consequence of finding a (legal) "obstructing or retar
of the passage of the U.S. Mail" is that penalty attached by
particular federal statute. The legal consequence of having a "
duty to aid one whose peril one has innocently caused" is
liability to pay damages equal to the injury not prevented. Ofte
legal consequences are more complex. For domicile, for exam
Walter Wheeler Cook argued that so many different conseque
attached in so many different legal contexts (personal jurisdict
legislative jurisdiction for taxation, subject matter jurisdictio
divorce, etc.) that domicile was hardly one concept at all.58
ownership, the claim that the various incidents of ownership (righ
manage, duty to pay taxes, power to alienate, right to exclude, etc.
all there is to the concept,59 has become so well accepted that
mainstream theorists (who are in no sense Legal Realist/skept
analyze the meaning of the concept exclusively in terms of su
legal consequences.60 Similarly, the view of ancient Roman law
that "legal person" means no more than "bearers of legal right
obligations" - has become so plausible that other non Legal Re
like Jeremy Waldron have bought the non-cognitivist line on
concept.61
The implication of adopting this kind of legal non-cognitivism
should be readily apparent. If all "legal person," "ownership,"
"domicile," "legal duty," or "obstruct" mean is what legal con-
sequences follow from their authoritative application by a judge,
that gives no guideline either to judges or to those lawyers who
58 American Law Institute, "Discussion of the Tentative Draft Restatement

(First) of the Conflict of Laws", A.L.I. Proceedings, Vol. 3 (Philadelphia: ALI,
1925), pp. 222, 225-231.
59 See the abbreviatory account of ownership in Ross, supra note 56.
60 See Tony Honore, "Ownership", in A.G. Guest (ed.), Oxford Essays in
Jurisprudence (Oxford: Oxford University Press, 1961).
61 Waldron, Presentation to the Greater Philadelphia Philosophy Consortium
Symposium on Legal Personhood, 1993.
either argue to judges or attempt to predict their decisions. S

a non-cognitivist analysis only tells us what the consequence
be of a decision one way or the other; by having eviscerated
descriptive content from the legal trigger for such consequences,
law gives us no reason to make the decision one way rather tha
other. While the Legal Realists rushed to embrace this implic
so as to make plain the ethical dimension of legal decision,
costs to those values we associate with the rule of law are obvious.
I do not here propose to go after the Legal Realist's negative
thesis that legal concepts have no descriptive meaning. That is
surely a topic for another time, as well as one that has been done
many times over. However, we can pause to notice the incon-
sistent skepticism of these legal non-cognitivists. On their view,
the perlocutionary effects of the speech acts of judges are fixed by
legal rules, namely, the rules attaching various legal consequences
to legal concepts. It is this remedial fixing of legal concepts that
allows the Legal Realist the positive program of the "functional
approach." Yet the very same arguments making the Legal Realists
skeptical of the descriptive content of legal concepts should also
have made them skeptical of the concepts' remedial implications. If
"(legally) obstruct or retard the passage of the U.S. Mail" doesn't
mean anything, why does "should be guilty of a felony punishable
by 3 to 10 years in the penitentiary" mean something? That is, why
were the Realists such formalists about remedies? Why doesn't the
above-quoted penalty clause allow a judge to invite Sheriff Kirby to
dinner, cut off his head, require him to quit smoking, as much as it
allows a judge to send Kirby to the pen for 3 to 10 years?
Modest doses of legal non-cognitivism are surely sometimes
good medicine for certain concepts. As a general analysis, however,
legal non-cognitivism threatens law similar to the way the older
non-cognitivism in meta-ethics threatened ethics. That in either
field one occasionally finds a useless concept - one exclusively
definable in terms of its illocutionary or perlocutionary act potential
- should not be a surprise but neither should it be the basis for a
wholesale revamping of the field.
62 Felix Cohen, "The Ethical Basis of Legal Criticism", Yale Law Journal 41
(1931), pp. 201-220.
LEGAL REALITY 649
c. Skeptical reductions. There is a third kind of happy skep

whose beliefs resist the classification scheme I have hitherto been
employing. This is the "skeptic" who in truth does not deny the
existence of mental states, moral qualities, or legal relations. Quite
the contrary: he robustly commits himself to the existence of such
things. Because of this, he is sometimes classified as a realist about
such things.
Such "realism," however, is purchased by a reduction no self-
respecting realist should accept. Consider Hume on causation by
way of example.63 Humeans are realists about there being those
kinds of uniformities in nature Hume called the regular concurrence
of certain types of events. Humeans then reduce causal laws to these
regularities, and further reduce singular causal relations to causal
laws.64 Because of these reductions, Humeans are in a sense causal
realists. Yet our normal temptation is the right one here. Humeans
should be classed as skeptics about causation because they deny
the existence of "causal glue" - the making-things-happen-stuff -
at both the level of causal laws and at the level of singular causal
relations. Moreover, such Humeans are happy skeptics because they
claim that one can go on as before talking about singular causal
relations, since what one (really) means is something ontologically
respectable in light of their reductions.
An example of such reductive skepticism about mental states
is the "logical behaviorism" of a generation ago in psychology.65
Unlike his "methodological behaviorist" cousin, to be discussed
shortly, the logical behaviorist proposed his favored reductions (of
mental states to dispositions to behave) as analyses of what one
really meant by words such as "intention," "desire," "anger," etc.
63 Saul Kripke's example of a "skeptical solution." Kripke, Wittgenstein on

Rules and Private Language (Cambridge, MA: Harvard University Press, 1982),
at pp. 66-68.
64 For some details, see Moore, "Causation and Responsibility", Social Philos-
ophy and Policy 16 (1999), pp. 1-51, at pp. 45-46, reprinted in E.F. Paul et al.
(eds.), Responsibility (Cambridge: Cambridge University Press, 1999).
65 For discussions of logical (or "philosophical") behaviorism, see Martin,
"Interpreting Skinner", Behaviorism 6 (1978), pp. 129-138; N. Malcolm, "Behav-
iorism as a Philosophy of Psychology", in T.W. Wann (ed.), Behaviorism and
Phenomenology (Chicago: University of Chicago Press, 1964); Dennett, Brain-
storms (Putney, VT: Bradford Books, 1978), at p. 63.
We should thus not be disappointed by the lack of any indepen

existence to mental states and the lack of any causal relations
between them and behavior. Such a position is skeptical noneth
because the behavioral reductions rob mental states of precisel
nature one supposed them to have, a nature featuring promine
their phenomenological and causal properties.
In ethics the reductive skeptics are subjectivists and relativ
about moral values. The subjectivist reduces value to indiv
desire or moral belief, whereas the relativist reduces value
shared desires or shared moral beliefs. Painful as it is to us (r
naturalist-realists in ethics, sometimes such reductionist skept
Gil Harman66 are classified with us, as a kind of naturalist-realism
Yet the reductions proposed leave so much of value out of
that one should classify the subjectivist/relativist as a skeptic.
vidual (for subjectivists) or collective (for relativists) infallibi
about morals, for example, seems to be an implication of
positions; yet the possibility of moral error, and the processe
moral reasoning we each go through to avoid such error, seem
be a basic part of our experience with moral values.68 Similar
meaningful disagreement, both between individuals and betw
cultures, seems equally basic, yet subjectivism and relativism s
ingly make such disagreement impossible.69 In these and other
the reductions of subjectivists and relativists leave out so mu
what moral values seem to be that they too should be class
skeptics.
This last discussion reveals how the standard realist/skeptic
criteria, in terms of ontological commitment, requires supplemen-
tation by some loose, intuitive sense of what is essential to entities
of a certain kind. Loosen that sense, and the reductive skeptic here
considered becomes a realist; tighten that sense (in the way dualists
are wont to do), and you can classify all naturalists, myself included,
as reductive skeptics.
66 Gilbert Harman, The Nature of Morality (New York: Oxford University

Press, 1977).
67 Geoffrey Sayre-McCord, "The Many Moral Realisms", in Sayre-McCord
(ed.), Essays on Moral Realism (Ithaca, NY: Cornell University Press, 1988).
68 See, e.g., Moore, "Moral Reality Revisited", Michigan Law Review 90
(1992), pp. 2424-2533 at pp. 2460-2462.
69 Ibid. at pp. 2462-2468.
LEGAL REALITY 651
In law the reductive skeptics tend to come in two grouping

in ethics.70 First, there are famous reductions of law to the beh
of single persons. I refer to the famous reductions of law to ac
or predicted judicial behavior. On Jerome Frank's view, there i
singular proposition of law in Kirby until the U.S. Supreme C
made one such proposition true by its decision;71 on Holmes'
there is such a singular proposition of law in Kirby prior to t
Court's decision but that law is simply a prediction of how the C
would decide that case.72 In both instances, Holmes, Frank,
the entire generation of Legal Realists who followed them in
respect, identified law with something that unproblematically e
viz, the (present or future) behavior of judges.
Such a reduction is skeptical because it seemingly leaves
what is essential to law, namely, that it be reason-giving. At
very least, surely something has to give reasons for action - a
strong ones, "obligations" - to judges within a legal system if
thing counts as law within that system.73 Frank's silence-whi
waiting-for-an-actual-decision, and Holmes' predictions of jud
decisions, cannot act as reasons for judges to make decision
way rather than another. As Hart noted, in their rush to ontolo
respectability (at least from an empiricist's point of view), the
Realists seemed to leave out something crucial about law.74
Brian Leiter and I have engaged in some minor skirmishing
the historical question of how alive were the Realists to this c
cism.75 We each no doubt have our favorite Realists for this pur
Mine is Jerome Frank, who seemed unable to take the point de
70 Although the groupings differ. In ethics, no one (to my knowledge) ur

subjectivism that reduces what is good to what someone else believes to be
or to what someone else desires - except certain religions with respect to
The analogue to the subjectivist in law, by contrast, does give such final s
others, namely, judges. Still, in both cases goodness or legal liability are red
to the psychological states of some one person or small group of persons.
71 Jerome Frank, Law and the Modem Mind (New York: Brentano's, 1930
72 O.W. Holmes, Jr., "The Path of the Law", Harvard Law Review 10 (189
pp. 457-468.
73 See Moore, "Law as Justice", supra note 9.
74 Hart, The Concept of Law (Oxford: Oxford University Press, 1961), at Ch.
VI.
75 See Moore, Educating Oneself, supra note 4, at pp. 35-36.
some very explicit instruction on it by Morris Cohen.76 Leiter

should be Felix Cohen, who well understood that the predic
theory of law could not be used by judges, or by those arguin
judges; such judges, Cohen urged, were required to make m
judgments not unlike those I sketched in Part II above.77 In
case, the history interests me less than the logical space; to the exte
anyone, Legal Realists included, reduces law to judicial behavior,
leaves out the essential reason-giving character of law.
The second kind of reductive skeptic about law parallels the r
tivist in ethics. This is the view that reduces the law to the beliefs
practices of a group of people, namely, the legal profession wi
some legal system. On this view, the singular and general prop
tions of law I isolated in Part II are true if and only if some majorit
of the legal profession (in the United States, for the federal la
proposition, or in Kansas, for the proposition of Kansas law) bel
it to be true or practice law in such a way as to presuppose th
is true. This is the view that in earlier writings I called "convent
alist"78 and that Jules Coleman and Brian Leiter now term, "min
objectivity."79
As Coleman and Leiter recognize, for certain items conven-
tionalist reductions seem to be the appropriate metaphysics. Their
example is, fashionable.80 Another is reputation. What is fashion-
able, or what a person's reputation is, cannot be pried apart from
what most people think to be the case, either explicitly or as revealed
in their practices. Yet as Coleman and Leiter also recognize, as
an account of what makes legal propositions true conventionalism
is very problematic.81 The legal conventionalist, like his relativist
cousin in ethics, makes the majority infallible.82 On such a view,
76 See ibid. The Frank/Morris Cohen correspondence is discussed in David

Hollinger, Morris Cohen and the Scientific Ideal (Cambridge, Mass.: MIT Press,
1975), pp. 85-88.
77 See Cohen, "Ethical Basis", supra note 62.
78 See Moore, "Natural Law Theory", supra note 10.
79 Coleman and Leiter, "Determinancy, Objectivity, and Authority", in A.
Marmor (ed.), Law and Interpretation (Oxford: Oxford University Press, 1995),
at p. 253.
80 Ibid.
81 Ibid. at pp. 262-263.
82 Moore, "Moral Reality Revisited", supra note 68, at pp. 2467-2468.
LEGAL REALITY 653
most lawyers cannot be wrong so long as they agree. Yet our ex

ience in law no less than in ethics demands the possibility of be
"revolutionaries" in thought.83 In neither field do we feel compe
to yield our view in the face of some brute sociological fact ab
what others believe. Moreover, and again like the relativist in eth
the legal conventionalist runs out of right answers as fast as he
out of social agreement.84 If there is no majority belief on som
moral or legal matter, the relativist and the conventionalist must al
conclude they lack a view on the issue as well.
The skeptical reduction of legal truth to a sociology of agree
upon propositions is thus too shallow to accommodate basic feat
of our moral experience and our legal practice. Such a reduction
finds few followers amongst legal theorists, at least in any blat
form. Sophisticated legal conventionalisms are no doubt possibl
matching the more sophisticated relativisms in ethics.85 Yet as I
others have tried to show in ethics,86 these too in the end will
prey to the obvious objections.
2. Unhappy skeptics
The unhappy version of skepticism is the version that thinks
skepticism gives us some reason to be disappointed. Such a skep
is a cognitivist about the discourse in question. He holds that
mean to be referring to certain sorts of things in our psycholog
moral or legal discourses. Unhappily for us, the things to which
purportedly are referring do not exist. Our psychological, moral
legal statements thus do have a truth value - the cognitivist bit -
that value is uniformly "false" - the skeptical bit.
83 Ibid.
84 Ibid. at pp. 2462-2467.
85 It is not clear to me that "sophisticated relativisms" is not a contradiction
in terms, but philosophers such a Bernard Williams and Gilbert Harman are both
sophisticated enough to see the glaring problems of the sophomoric relativism of
many anthropologists and yet have still proposed revised relativisms themselves.
See Harman, supra note 66; B. Williams, Ethics and the Limits of Philosophy
(Cambridge, MA: Harvard University Press, 1985).
86 For discussion, see Moore, "Moral Reality", Wisconsin Law Review (1980),
pp. 1061-1156, at pp. 1088-1096; and Heidi Hurd, "Relativistic Jurisprudence:
Skepticism Founded on Confusion", Southern California Law Review 61 (1988),
pp. 1417-1509, at pp. 1483-1506.
John Mackie most clearly distinguished this kind of cogn

tivist (or "error theory") skepticism from the more typical no
cognitivists kinds.87 Mackie was writing in ethics, but his distinctio
between skeptics is illuminating elsewhere as well. We have s
two generations of such skeptics in psychology, for example, t
first being the methodological behaviorism of Skinner and others
In fact, as Dan Dennett nicely shows, Skinner never really saw
difference clearly enough to declare himself one way or the ot
on what kind of behaviorist he was.89 Unlike the logical behavi
ists the methodological behaviorist concedes that our talk of me
states is rife with commitments to mental states with both phen
enal properties and causal powers. Like Mackie in ethics, Skinne
methodological views were that our ordinary talk - the folk psyc
logy - is just plain false in these suppositions. A proper scientis
- one concerned with public, observable, repeatable phenom
- would replace such mentalese with the environmental variable
that truly cause behavior. Similarly, the "eliminative materialis
of more current cognitive science have urged that the outer-wor
related features of mental states' objects make it impossible
include such states in the best theory of human brains and behav
Neuroscience will give us that best theory, but it will replace the fol
psychology and its mentalese vocabulary.90
Cognitivist legal skeptics are difficult to isolate from their happie
skeptical cousins. No doubt this is in part due to the significan
scantier attention to metaphysical problems in jurisprudence, wh
compared to ethics and the philosophy of mind. Like the stubbor
unphilosophical Skinner in psychology, legal skeptics do not ty
cally see the difference between a cognitivist and a non-cognitiv
skepticism and so do not declare themselves one way or the oth
on this divide.
87 J.L. Mackie, Ethics: Inventing Right and Wrong (Harmondsworth: Pengui

1977).
88 On Skinner as a methodological (rather than a logical) behaviorist, see
Mapel, "Philosophical Criticism of Behaviorism: An Analysis", Behaviorism 5
(1977), pp. 17-32.
89 See Brainstorms, supra note 65, loc. cit.
90 See citations, supra note 5.
LEGAL REALITY 655
Nonetheless, perhaps we can tease out the cognitivist strain

skepticism in law too. Coleman and Leiter91 see the possibilities
legal skepticism that parallels Mackie's "error theory" skepticis
ethics, drawing on those of our legal practices that seem cognit
the right answer thesis presupposed by that practice, the see
reference of descriptive use of legal language, the claims of l
knowledge and expertise, etc. Such a skeptic would see the law
committed to a truth conditional semantics, a theory of refe
and extension for the terms within sentences, but then proclaim t
we are doomed to disappointment because the things to which
cognitivist legal practice is committed do not exist.
Neil MacCormick and Ota Weinberger92 attribute this
of cognitivist legal skepticism to the Scandinavian Rea
Hagerstrom, Lundstedt, and Olivercrona.93 We might add
of the more enthusiastic moments of the American Legal Rea
and their Critical Legal Studies descendants to the list, becaus
those moments these skeptics took their negative ontological t
as having seriously destructive payoffs for our legal practice
MacCormick and Weinberger write, if law is both committed
certain class of entities and those entities do not exist, then
ought to be "an intellectual and moral crisis for those professio
engaged in the practice or the teaching of law. What are we t
now that we have seen that the Emperor is clothed with no laws -
there can be no such thing with which to clothe any such being
The cognitivist skeptic is an honest fellow. He does not
to soften the blow of his skepticism with the palliatives of n
cognitivist or reductive skepticisms. It really matters whether me
states, moral qualities, or legal duties exist, but unfortunately f
they do not.
In fact it matters so much that it seems doubtful whether co
tivist skeptics can live with their own skepticism. When
91 Coleman and Leiter, supra note 79, at p. 246.

92 N. MacCormick and 0. Weinberger, An Institutional Theory of
(Dordrecht: D. Reidel Publishing, 1986), at pp. 2-3.
93 A. Hagerstrom, Inquiries into the Nature of Law and Morals (Stockho
1953); V. Lundstedt, Legal Thinking Revised (Stockholm, 1956); K. Oliverc
Law as Fact (London, 1939), pp. 18-22.
94 MacCormick and Weinberger, supra note 92, at p. 3.
Skinner's autobiography95 appeared a number of us queried Ski

why it was written in the mentalese his methodological behavio
had purportedly shown to lack reference. His response was that
mentalese was only a convenient heuristic and expository devi
in principle, at least, he could have written the tale in the aus
language of environmental reinforcers.96 Similarly, one scans
unselfconscious writings of today's eliminative materialists for
signs of abandonment of the terms of the folk psychology they
lacks reference. Again, one hears how "practical" or "pragm
cally useful"it is to employ the literally false psychology of beli
desires and intentions.97 Dan Dennett even admits to an inabil
to think without those concepts a part of the disreputable
psychology.98
In ethics, readers of Mackie's book, Ethics: Inventing Right
Wrong often wondered how Chapter 1 of that book could lay
an error theory skepticism and then the remaining chapters go
to his own substantive ethics - as if there was anything lef
discuss! Similarly in law, when legal skeptics become legal acto
- Frank as a judge, Llewellyn as a quasi-legislator for the
- one would have thought their radical skepticism about gen
propositions of law would lead them to behave differently fro
those who are not skeptical about such things. Yet in fact
practice, even when practiced by avowed skeptics, seems to go
much as before. Frank Michelman once explained these facts as
to some practical necessities for law: legal practice cannot funct
if it adopted the skepticism of the Realists or the Crits, so - des
the lack of any good answers to the skeptics, in Michelman's v
- those who practice law do what they have to do, which is ign
such skepticisms even if they are one's own.99
95 B.F. Skinner, Particulars of My Life (New York: McGraw-Hill, 1976).

96 Skinner's response at a meeting of the Fellows in Law and Humani
Harvard, 1976-1977.
97 Dan Dennett, The Intentional Stance (Cambridge, MA: M.I.T. Press, 198
98 Dennett, Content and Consciousness, supra note 36, at p. 190.
99 Said at the meeting of the Study Group on Intra-Disciplinary Disagreem
of the American Academy of Arts and Sciences, Charlottesville, Virginia, 1
This was a discipline by discipline assessment of the degree of incursion of p
modernist skepticism.
LEGAL REALITY 657
Yet skepticism deserves a better answer than this. Devoutly r

gious people have an impossible time understanding the w
in which we live without their religious beliefs. Yet a cognitiv
skepticism is a fully justified position about the more metaphy
of religious propositions. In some ways at least, it would be ni
there were a Cosmic Purpose to all this in terms of some person
Creator's intentions,?00 but there isn't.
So cognitivist skepticism deserves an answer in terms of truth
falsity, not in terms of how difficult it would be to live with if it w
accepted. Fortunately, about law such skepticism is false. The te
in both singular and general legal propositions are used referent
- a point for the cognitivist - but there are things to which they r
that makes them true. That, at least, is what I shall seek to sh
in the succeeding subsections, detailing four kinds of things l
things might be.
C. Answer Number Three: Dualistic Realisms
If one is both a cognitivist and a non-skeptic, then it is incumbent

on one to say to what mental, moral, or legal words refer. Perhaps
the first answer that occurs to one is the dualist answer: each such
words refer to their own unique sort of things. "Everything is what
it is and no other thing" might be thought to be the beginning of
wisdom here. A little reflection will show that this simple thought
can hardly be the basis for a dualist metaphysics, for the prolifera-
tion of kinds of existence - one for every kind of thing - is far
too pluralistic to be tempting. (Indeed, going very far down this
road probably ends one in predicate-nominalism,101 the idea that
since no universals really exist we can pretend that there are as
many of them as there are words naming them.) Rather the dualist
aggregates all sorts of different things into much larger groupings,
which become kinds of existence, characterized by very general
features like spatio-temporal location and causal relations. Roberto
100 But not "nice" in the sense of supporting moral realism. See Moore, "Good
without God", in R. George (ed.), Natural Law, Liberalism, and Morality (Oxford:
Clarendon Press, 1996).
101 David Armstrong's phrase. Armstrong, Nominalism and Realism, Vol. I
of Universals and Scientific Realism (Cambridge: Cambridge University Press,
1978), pp. 11-24.
Unger, for examples, traces all of our troubles since Hobbes to

unstable dualism between particulars and universals to which we
supposed to subscribe;102 particulars have temporal/spatial locati
and enter into singular causal relations; universals do not exist
space or time, and do not enter into singular causal relations.
The impulse to the various dualisms familiar in philosophy ste
from two considerations. One is a uniform sense that truth is corre-
spondence with some reality, that the meaning of a sentenc
its truth conditions, that those truth conditions consist of singu
terms which refer and predicates that have an extension. Truth,
the dualist, is uniform across all domains of existence. (This
in contrast to the linguistic-dualist like Ryle,103 for whom trut
reference, existence, etc., all vary their meaning depending on w
category one is in.) Second, however, is the sense that some kind
things are so different from normal physical objects, events, e
that they cannot be accommodated in the physical world. Ab
mental states, for example, this sense most often takes note of
peculiarity of conscious experience, or qualia. It is private, intern
and seems to support the extraordinary claims to knowledge call
"privileged access" of each person to the contents of her own mi
we have immediate, non-inferential knowledge, we are incorrigib
in our beliefs (if I believe I am in pain, I am), and our mental sta
are transparent to us (if I am in pain, I know it).104 Alternative
sometimes the mark of the mental is taken to be Intentionality
what Franz Brentano called the directedness-upon-an object.
Such Intentional objects are not real world objects but exist onl
as contents of consciousness, contents that do not obey the ordin
102 Roberto Unger, Knowledge and Politics (New York: Macmillan, 1975).
103 "Linguistic dualist" was the apt name given to Ryle and Ryleans, w
while they attacked metaphysical dualism nonetheless reconstituted a dualis
in language with their doctrine of category differences. See Charles Landesm
"The New Dualism in the Philosophy of Mind", Review of Metaphysics 19 (196
pp. 329-345. I document in detail Ronald Dworkin's relativising of justificati
truth, existence, etc., to categories of discourse, in Moore, "Metaphysics, Epist
ology", and Moore, "Interpretive Turn", supra note 30, at p. 287 nn. 185-191
p. 416 n. 331, p. 419 nn. 341-347 (in Educating Oneself).
104 On the triad of claims of privileged access, see Moore, Law and Psychiatr
Rethinking the Relationship (Cambridge: Cambridge University Press, 1984)
pp. 254-265.
105 See, e.g., Dennett, Content and Consciousness, supra note 36, chap. 2.
LEGAL REALITY 659
extensional logic of discourse about the physical world. Simila

about moral qualities, where the insight of uniqueness focuses
the reason-giving capacity of moral qualities. Although ordina
physical things give us reasons to believe certain propositions t
true, moral things also give us reasons for action: they tell us
to do, and not just what to believe.
If one combines the uniform sense of truth with the notion
these differences are too fundamental to be accommodated in t
physical world, one ends up a dualist. Such a dualist challenges
pre-eminence of physical science by appropriating the entire tr
oriented apparatus of such science and duplicating it in a sepa
realm of existence. Thus born is the dualistic science of psycho
of Rene Descartes, Franz Brentano, and Sigmund Freud.106 In
a science terms refer to real entities, sentences are true just in
the singular terms refer to an entity within the extension of
predicate of the sentence, etc. ... with the enormous rider, tha
things that make such sentences true do not exist as physical entit
qualities, and relations exist. Rather, mental things exist in tim
not in space.
In ethics, the two impulses earlier described produce a non-
naturalist meta-ethics like that of G.E. Moore.107 Moral qualities
exist, but not with the spatio-temporal location and causal relations
typical of the natural world. Like universals, moral entities (such as
rights), moral qualities (such as goodness), moral relations (such as
responsibility), have no spatio-temporal or causal properties; unlike
universals, such moral things essentially consist in their necessary
ability to give reasons for action to persons.
It is not easy to produce historical examples of true dualists in
legal theory, theorists who held there to be a separate legal world
where legal things like duties, corporations, domiciles, and (legal)
obstructions existed. Mostly such explicit legal dualism is to be
found as the object of derision of the Legal Realists, whose joy in
106 Freud may be the only surprise on this list. My interpretation of Freud's
eschewal of the type-identity materialism implicit in his unpublished Project for
a Scientific Psychology and his re-invention of many of the categories of that
Project (such as cathected energy) as attributes of mind, rather than brains, is that
Freud post-1895 was a dualist.
107 G.E. Moore, Principia Ethica (Cambridge: Cambridge University Press,
1903).
being skeptics seemed to be enhanced by poking fun at Von Ihrin

Heaven of legal concepts.108
Despite the paucity of historical examples, we can construct w
such a legal dualist would believe. He would hold singular a
general propositions of law to be true if and only if the terms with
them corresponded with aspects of a distinctively legal reality. S
a reality might be something like a fictional reality created
works of fiction. A fictional realist believes, for example, that t
sentence, "Henry Wilcox was greedy," is true in the normal wa
the singular term picks out a real (albeit fictional) person, the
in E.M. Forster's novel, Howard's End, and that person is wit
the real (albeit fictional) extension of the predicate "is greedy."
this Meinongian view of fiction, there really is a Henry Wilcox
he really does have properties, only he and they exist in a differ
mode of existence from the physical world. They exist rather
the counterparts of historical persons exist in David Lewis' mod
realism about possible worlds - not actual for us in our poss
world, but real nonetheless because actual for them in their poss
world.109 In the case of law the possible world that is the legal worl
would not be a function of some work of fiction, like E.M. Forst
Howard's End. Rather, it would be a function of distinctively l
texts. Still, these texts would be constitutive of a legal world agai
which the truth of all legal propositions is to be tested.
To my knowledge Hilary Putnam's sole reaction to Lewis' mo
realism consisted of a single sentence: "the actual existence
parallel worlds [is] a dotty idea."110 Not to put too fine a po
it, so is my reconstructed legal dualist. To begin with, such leg
dualism seems undermotivated. There is no aspect of law tha
both hard to accommodate in the natural world and yet seems
central to law as to be part of its essence. With minds the phenomen
of consciousness and Intentionality partly motivate dualism; fo
morality, a source for non-prudential, non-desire based reasons
108 As in Felix Cohen, "Transcendental Nonsense", supra note 55, at p. 809.

109 See Meinong, "The Theory of Objects", in R.M. Chisholm (ed.), Real
and the Background of Phenomenology (Glencoe, IL: Free Press, 1960); D
Lewis, On the Plurality of Worlds (Oxford: Blackwell, 1986).
110 Hilary Putnam, Realism and Reason (Cambridge: Cambridge Univer
Press, 1983), at p. 218. Elsewhere Putnam calls it an "ontologically extravaga
view." Ibid. at p. 40.
LEGAL REALITY 661
action serves this function. But nothing in law or fiction move

in this direction.
Secondly, the legal dualism I have imagined violates what
might call the Law of Ockham's Cleaver, a rough paraphra
which is that one should not unnecessarily proliferate mod
existence. (Ockham's razor is for finer-grained work.) For wha
temptations towards dualistic metaphysics the legal theorist m
have can seemingly be accommodated in the Cartesian du
about minds or in the Moorean dualism about morals. If law is
largely a matter of morality, as it is for the natural lawyer, then legal
truth-makers can occupy the non-natural world along with other
moral things. If law is largely a matter of institutional fact, as it i
for the legal positivist, then legal truth-makers can occupy the social
world constructed from individual minds and actions. In finding
home for those things by virtue of which legal propositions are true,
the legal theorist who sees no room for legal things in the physica
world has ready-made, alternative homes in already existing dual-
isms. A third such world, one that is distinctively legal, thus seem
unnecessary.
The costs of all metaphysical dualisms are well known. There
are three major costs. One is the difficulty of making sense of the
idea of there being different modes of existence. The very idea rela-
tivizes existence, so that we mean something different depending
on what it is we say exists. This is reminiscent of the attempts to
relativize (numerical) identity, so that it means something different
depending on what is being identified with what.111 Likewise, some
have urged that we must relativize causality, so that agents-as-
causes is a different relation than events-as-causes.112 In all such
cases, when we relativize such basic notions as existence, identity,
and causality we are in danger of losing our grip on the world.
These basic items are hard enough to understand if we keep to a
non-relativized, unitary conception of them.
111 See David Wiggins, Sameness and Substance (Cambridge, MA: Harvard
University Press, 1980), who in chapter 1 examines and rejects the idea of relative
identity.
112 E.g., Roderick Chisholm and Richard Taylor. See R. Taylor, Action and
Purpose (Englewood Cliffs, N.J.: Prentice-Hall, 1965).
Moreover, apart from univocality, there is a primacy to the phy

calist conception of existence, causality, etc.; existence is m
robust, least problematic, for most of us when we think of phy
objects, qualities, and relations existing. If we were to relat
existence in the way dualism requires, we have the indepen
problem of making sense of modes of existence that do not req
or allow spatial, temporal, or causal properties.
The second problem for all dualisms is the relational proble
The moment one posits more than one mode of existence, one f
the question how, if at all, things in different modes of exist
relate to one another. It is possible to think that there is no r
tionship, but this is very counterintuitive. The wrongness of a
of burning a cat seems somehow related to the pain of the ca
the cruelty of the cat-burners; the intention to move my finger s
somehow related to various patterns of electro-chemical reactio
the supplementary motor area of the brain;113 the legal proposi
isolated in Part II above seem somehow related to the moral and
non-moral facts there described.
It is also possible to think that the only relationship that exists
is one of systematic co-variance. This is the "two clocks" picture,
a picture in which two clocks (say a physical clock and a mental
clock) are set initially and ever after every change by one is accom-
panied by a change in the other. It is not that a change in one clock
is (numerically) identical to a change in the other nor even that a
change in one causes a change in the other. Rather, mind and brain,
moral and natural, legal and moral, on this model simply co-vary
in a systematic way. As I shall examine when I discus below the
kind of asymmetrical co-variance now termed supervenience, such
co-variance is possible but it cries out for some underlying relation-
ship that explains the co-variance. (Indeed, the two-clock metaphor
hints at one such explanation; mental states and brain states are
epiphenomenal to each other, effects of a remote common cause.)
These considerations motivate most dualisms to an interactionist
dualism. In psychology, this is the view that physical events such as
electromagnetic radiation can cause mental states such as perceptual
113 Gary Goldberg, "Supplementary Motor Area Structure and Function:

Review and Hypotheses", The Behavioral and Brain Sciences 8 (1985), pp. 567-
588.
LEGAL REALITY 663
belief and that mental states such as intentions can cause phy
events such as bodily movement. This is very much a matt
common sense, but how can the dualist conceptualize this c
interaction between physical things and mental things? It is n
for nothing that dualists about the mind are accused of pu
ghosts in machines,114 ghosts that without any physical ener
cause synapses to be crossed115 or "action readiness" potential
be stayed.116 These are literally mind-boggling possibilities!
Interactionist dualism in ethics is (if possible) in even w
shape. G.E. Moore, our paradigmatic dualist in ethics, saw that
non-naturalism about moral properties was only plausible if s
properties interacted in some strong way with natural properti
I should never have thought of suggesting that goodness was 'non-natural' u

had supposed that it was 'derivative' in the sense that, whenever a thing is g
its goodness ... 'depends on the presence of certain non-ethical characteris
possessed by the thing in question: I have always supposed that it did so 'de
in the sense that, if a thing is good ... then that it is so follows from the fac
it possesses certain natural intrinsic properties .. ."117
Such interaction is not happily conceived of in terms of causatio

is implausible to suppose that natural properties cause moral pro
ties to come into existence. Yet Moore seems to think more than th
moral properties asymmetrically co-varied with natural ones, so
there could be no change in moral properties without some chan
natural properties. Rather, moral properties depend on natural
they follow from them. If we rule out causal relations, just wh
the world is the sense of this dependence, or following, relation? T
naturalist has an answer here, in terms of full or partial identities
what could be the answer of the non-naturalist (who must esc
those identities to be a non-naturalist)?
114 Ryle, The Concept of Mind, supra note 27.

115 Sir John Eccles, having read Ryle's book, self-consciously added a
ghost to do the physical work of synapse crossing.
116 Benjamin Libet, "Unconscious Cerebral Initiative and the Role of Cons
Will in Voluntary Action", The Behavioral and Brain Sciences 8 (1985), pp.
539. Libet posits a role for the will in stopping actions initiated in the brain, n
starting them(!) Arthur Danto, ibid., points out that this is literally unintelli
117 G.E. Moore, "A Reply to My Critics", in P.A. Schlipp (ed.), The Philoso
of G.E. Moore (Evanston, IL: Northwestern University Press, 1942), at p. 5
The third problem for dualistic metaphysics in any realm is t

pressure it exerts in epistemology to come up with some spe
mode of knowing to match this special mode of existing. If we r
out a causal theory of perception as inadmissable for perceiving n
natural moral properties and non-physical mental properties, h
we do come to know them seems mysterious. The pressure is
invent a new way of coming to knowledge: moral intuitions, for non
natural, moral properties, and introspection for non-physical, menta
properties. It is of course possible that we have these "sixth sens
but these would be more than simply the epistemic posits need
by a dualistic metaphysics if we had some theory of moral/men
perception like our theory of perception in the physical world. S
a theory should tell us when our intuitions/introspections are reliab
and when they are not, and it should explain why our intuitions
introspections are reliable when they are. Lacking any such theo
we should join skeptics like Mackie, who calls intuition a "la
answer" to the hard question of epistemology forced on one
dualistic metaphysics.118
The dualisms in ethics and the philosophy of mind are s
problematic that no legal theorist should think he can find a n
physical home for legal properties in either non-natural mo
properties or in non-physicalist mental properties. Nor should th
dualisms serve as a model of a successful metaphysical program t
legal theorists could undertake on their own. Not only is any su
autonomous legal dualism pretty "dotty" on it face - see abov
but it would also face the same three problems that beset the mu
better motivated dualisms in ethics and psychology.
D. Answer Number Four: Naturalist Realisms
The most obvious way to accommodate legal things in the phys-

ical world is to identify such legal things with physical things.
Then there are no mysterious modes of existence, no odd relations
between entities in different modes, no sui generis and unexplained
modes of knowing items in the non-physical realms.119 On the
naturalist picture, mental states, moral qualities, and legal properties
118 Mackie, Ethics, supra note 87, at p. 39.

119 For a contrary argument - that my and Sturgeon's non-analytic naturalism
still need a "queer" epistemology - see Michael Huemer, "Naturalism and the
LEGAL REALITY 665
are each a kind of physical property, located in space and time

capable of entering into causal relations with other physical thi
The flip side of these one-world benefits is the downside d
ment that the naturalist is in danger of being just another skep
reductionist. The dualist about minds will protest that redu
minds to brains will eliminate that which is distinctive about minds
- for consciousness and Intentionality are not obvious features of
the syntactic engine that is the brain. Similarly, dualists about moral
qualities will protest that natural properties like pleasure and pain
have no normative force. As G.E. Moore remarked, those naturalists
who identify goodness as pleasure are committed to equating "X is
good" to "X is pleasurable,"'20 yet the latter statement of natural fact
seems barren of the normative force that makes the former statement
one of ethics.
There are two sorts of responses to the worry that naturalism is
but another closet skepticism. One is to articulate a kind of non-
reductionist naturalism whereby one can say that the natural world is
all there really is, that moral properties in some sense just are natural
properties, yet that also allows one to hold that moral properties
are in some sense independent of the natural properties on which
they depend. This kind of non-reductionist naturalism is currently
very popular - and equally so - in the philosophy of mind, ethics,
and the philosophy of law. We shall want to examine it with care,
particularly to see whether in its rush to be non-reductionist it does
not become a kind of closet dualism or closet skepticism.
1. Classical reductionist naturalisms

a. Analytically reductionist naturalism. First I shall examine the
other response. This response is based on the old slogan that to
explain something is not necessarily to explain it away. To appre-
ciate this response we first need a picture of the kind of naturalism
that is fully reductionist. There are actually two such reductionist
naturalisms. There is first the kind of naturalism against which
Moore was arguing.'21 This was an analytic naturalism, one that
hoped to find in the meaning of moral words like "good" a relation
Problem of Moral Knowledge", Southern Journal of Philosophy 38 (2000),
pp. 575-597.
120 Moore, Principia, supra note 107, at p. 12.
121 Ibid.
of synonymy with words like "pleasurable." "Bachelor" is said

be synonymous with the phrase, "unmarried male person," and
hope of analytically reductionist naturalism in ethics is to disco
(not stipulate) similar analytic truths about "good," "right,"
other moral terms.
Mid-Century philosophy of mind and philosophy of law a
had analytic naturalism in mind as one of their targets. Gil
Ryle, for example, argued against any reduction of voluntarin
to volitionally-caused bodily movement, on the basis of his ob
vations of language use; specifically, "voluntary" was an adject
whose use was appropriate only in contexts where moral blame
in question, a restriction not matched by the supposed univers
source of actions in volitions.122 With a nice slurring over of
distinction between pragmatics and semantics (crucial to a trut
conditional semantics), Ryle thus concluded from this usage fa
that "voluntary" and "volitional" were not synonymous.
Similarly in the philosophy of law, Herbert Hart apparently t
as the target of his own anti-reductionist efforts a kind of anal
naturalism about law.123 Hart, like Moore and Ryle, urged tha
reductions were possible for the things in which he was interest
legal rights, contracts, legal responsibility - because the words
to refer to such things were not synonymous with any words nami
non-legal facts.
Both Hart and Moore deployed what Moore called the "op
question argument" to show the lack of synonomy (although H
put it in terms of the "defeasibility" of legal terms). For
proposed analytic truth about "good" or "contract," Moore and H
asked, it seemed sensical yet to ask, "but is that good?" (or, "is
a contract?"). From the good sense such open questions seem
to make, no matter how extensive the list of natural proper
supposed by some definition, Moore and Hart concluded tha
analytic definition of moral or legal terms was possible. And fr
this linguistic fact, Moore and Hart concluded, there was no se
to be made of any identification of moral properties with natu
properties, or legal entities with non-legal things.
122 Ryle, Concept of Mind, supra note 27, at p. 69.

123 Hart, "Ascription", supra note 44.
LEGAL REALITY 667
Few today would be tempted by analytic naturalism abo

minds, morals, or law. Consider such a naturalism about the le
obstructing involved in the Kirby case. Grant me my assumpt
about the case in Part II: the moral, semantic, and historical fac
there reference fully determine the truth of the singular propositi
of law relevant to that case, that Kirby was not guilty of obstructi
An analytic naturalist should be baffled at how he could suppo
an argument that connects "not obstructing or retarding the pas
of the U.S. mail" to the various statements describing the rele
moral, semantic, and historical facts referenced earlier.
His initial problem here lies in the lack of any plausible r
of combination or priority for these non-legal factors. There se
no hope of ordering these factors into a set of individually ne
sary, jointly sufficient conditions in the manner of a definition
bachelors into such merkmal.124 Nor is there any hope even
more complex combinations of these factors into subsets that
not necessary but which are sufficient, having within each of th
elements that are necessary to the sufficiency of its subset.125
Such lack of combinatory rules is not the real problem for
analytic naturalist, however. For he could adopt the criteriolog
view of the matter often attributed to the later Wittgenstein.126 O
this view, the list of non-legal facts making for a legal obstructing
just that, a list with no formula for combining the factors on the l
Still, the claim would be, the whole list is analytically connected
the phrase, "obstructing or retarding the passage of the U.S. Ma
Yet even this less precise version of analytic naturalism found
on the fact that underwrites the persuasiveness of Moore's o
question (and Hart's defeasibility) argument. For surely, Moore a
Hart could say, it is a sensible question to ask of the whole
"but is this a legal obstructing?" Even if we think the answer
"no," it seems possible that the answer might be yes. The quest
124 The logical positivists' term for criteria in the strong sense of necessary
sufficient conditions for correct usage.
125 The semantic analogue of Mackie's "INUS" analysis of causation.
Mackie, "Causes and Conditions", American Philosophical Quarterly 2 (1
pp. 245-264.
126 On criteriological theories of meaning, see Moore, "Natural Law Theory",
supra note 10, at p. 292 n. 25, and Moore, "Semantics", supra note 10, at pp. 214-
221.
does not seem analytically closed in the way the question, "is t
unmarried male person a bachelor?" or "is a legal obstructing a
obstructing?", seem to be closed.
The power of Moore's and Hart's insight lay in direction
that would have surprised them. They were right that there a
open questions about "obstructing," "good," "contract," etc. Yet
reason they were right did not lie in the special nature of eth
or legal concepts - Moore holding them to be simple words ref
ring to non-natural things and Hart holding them to be defea
words referring to no things. Rather, there are open questions a
"obstructing," "good," and "contract" because there are open qu
tions about "water," "gold," "death," and "tiger." On a general v
of semantics quite alien to the one Moore and Hart thought to
generally correct (only not applicable to ethics and law), all su
words are typically used referentially, not attributively.127 Tha
such words take their meaning from the nature of the things refer
to and not from some list of properties definitive of such wo
Although the nature of such things will be given in terms of cer
properties, those properties: (1) may well not be the proper
speakers use to pick out the things in question; and (2) will no
connected to the word in question by linguistic convention but o
by substantive theory, be it scientific, moral, or legal.
The reason that legal words like "obstructing," "contract," "tit
"domicile," etc. were defeasible lay not in any special character
legal usage. Rather, one could not give lists of properties cl
by convention as the meanings of such words because such
were hostage to ever better theories about the nature of th
referred to by such words. This account of defeasibility would
surprised Hart because he believed both that such legal words
not attempt to refer to any things and that there were no such thi
to be referred to. Similarly, such a basis for Moore's open quest
technique would no doubt have surprised him, given his view t
moral words like "good" were simple (in the sense of not be
127 "K-P semantics," after Kripke and Putnam. Saul Kripke, Naming and Ne
sity, 2nd edn. (Cambridge, MA: Harvard University Press, 1980); Hilary Putn
"The Meaning of 'Meaning"', in his Mind, Language, and Reality (Cambridg
Cambridge University Press, 1975).
LEGAL REALITY 669
defined in terms of other properties) and that their reference

to a non-natural property that almost by definition had no nature.
b. Metaphysically reductionist naturalism. If one accepts what

come to be known as K-P semantics, then Hart and Moore w
right in their conclusions (even if wrong in their reasoning
them); there can be no analytic reductions of moral or legal w
to natural or non-legal properties. Yet the very basis for rejec
analytic reductionism is also the basis for attempting a second k
of reduction. Consider the well worn example of "heat."128 Prio
molecular theory, no one identified the heat of some gas with
kinetic energy of molecules comprising it. Even after the discov
of various experimental laws relating heat to pressure, volume,
diffusion rates through porous membranes, heat was still iden
fied with our mode of verifying its presence, the feel of it and
more accurate measurability with thermometers. When the ideal
theory became well accepted, people began to identify heat with
kinetic energy of molecules, kinetic energy itself being identi
with the mass and velocities of molecules. Surely prior to the acc
ance of the ideal gas theory it was not analytic that the heat of a
is the kinetic energy of the molecules comprising that gas. If it wer
analytic, then the statement, "heat is kinetic energy" should b
informative as "heat is heat" (to paraphrase Moore). We need ro
for informative identity statements. We need to be able to accep
true the identity of heat with kinetic energy yet have that iden
be a discovery of scientific theory, not a deliverance of synony
anyone who understood the language must accept.
Thus is born a second kind of strong reductionism, o
dispensing with analytic necessity and dealing in non-analytic,
metaphysical necessity. By the best scientific theory we can mus
it appears to be true - (metaphysically) necessarily true - that he
kinetic energy. We can then reduce heat to molecular kinetic ene
Sometimes it is thought that such metaphysical reductions eli
nate the thing reduced, so that we might say of heat, "it does
really exist." Yet reduction is a two-way street. If heat can
reduced to kinetic energy, so also can kinetic energy be reduced
128 The late Warren Quinn's example in his "Truth and Explanation in Eth
Ethics 96 (1986), pp. 524-544, at p. 535.
heat. If water = H20, then H20 = water, if x=y, then y=x, etc. W
dealing with metaphysical necessities, what we come to know f
is irrelevant. So if we can show that legal properties are identica
some non-legal properties, we needn't fear that we have elimina
law from the world.
It is true that often non-analytic reductions do produce anomalou
sounding implications. If water is H20, then (by Leibniz's L
anything we can truthfully say of water we can equally truthf
say of H20, and vice-versa. If "water is wet" is true, then
"H20 is wet;" if "water tastes good" is true, then so is "H20 tas
good." Yet wetness and tastiness might seem to be the kind of m
properties that it would be odd to apply to the micro-level. Hydrog
and oxygen atoms, and water molecules, may seem not to be eit
tasty or not tasty, wet or dry. Even more troublesome would b
think that tables are solid, but that the things tables are - molec
of various kinds - are not solid at all, consisting mostly of em
space. 29
What such worries reveal is not some defect in non-analytic
reductions. It is not as if, lacking synonymy, the reductions leave
behind features of the things reduced. Nothing in fact is left behind
by non-analytic reductions. If water is wet and tasty, then so
are (sufficiently large aggregates of) H20 molecules; if tables are
solid, then so are the conglomeration of molecules making up such
tables. Oddness of usage is to be expected when a novel identity
is discovered, because many predicates we attached only to the
familiar end of that identity (water, tables), sound odd when attached
to the end we knew nothing about.
It is sometimes said that there can be a third kind of reductionism,
one that is metaphysical and not analytic, but one that does not
depend on identifying mental properties with physical ones, moral
qualities with natural ones, or legal relations to non-legal relations.
This is nomological reductionism. This is the view that there might
be causal laws connecting some mental property M with some phys-
ical property P without M being identical to P. That is, for all things
x, x is M if and only if x is P. The predicates for M and P in such
129 The well known thesis of Sir Arthur Eddington (Eddington, The Nature of
the Physical World (New York, 1928), pp. ix ff.
LEGAL REALITY 671
cases are co-extensive in their extensions, without M and P bei

identical and without "M" and "P" being synonymous.130
This is a reductionist view in that it allows P predicates to
substituted for M predicates in any expression without changi
the truth-value of that expression. Yet we may ignore this kind
reductionism, for two reasons. One is that it is not a naturalis
reductionism; without identifying mental properties with phys
properties, mental properties are not yet given a place in the ph
ical world. Secondly, natural properties are not happily though
be the causes of moral properties, nor are moral properties eas
conceived of as the causes of legal properties. So if nomolog
reductionism without identity is a possibility in psychology, it is no
in law or ethics.
Returning to the type-identity form of metaphysical red
tionism, we have yet to discuss the problem that has limited t
plausibility of such reductions to the physical sciences. The
problem for any metaphysically reductionist scheme about law is
same problem as has bedeviled metaphysically reductionist schem
about minds or morals. This is the lack of any single, unified na
to the things that are the plausible reduction bases - brain stat
natural properties, moral and institutional properties, respectiv
From what we know about the human brain, for example,
extremely unlikely that any single type of brain state will turn
to be correlated with the having of an intention, and not m
more likely that some single, unitary brain state will turn out t
correlated with the having of an intention to go downtown tod
Likewise with our more general terms of moral evaluation, goo
130 It turns out to be rare even within physical science to find these kind
of bilateral reduction sentences for the theoretical terms of physics and che
istry. Even within physical science the reductionist ambitions of Carnap and
colleagues about the general reducibility of dispositional and theoretical terms
to be scaled back considerably; the later Carnap abandoned the quest for bilat
reduction sentences (needed by both nomological and type identity reducti
for dispositional terms, in favor of an open set of conditional reduction sente
that, as he recognized, gave only partial definitions of such terms; his follow
gave up even these in their explication of theoretical terms in physical scien
terms of "bridge principles" (Hempel) and "correspondence rules" (Nagel) th
use but do not even partially define theoretical terms. See Moore, "The Sema
of Judging", supra note 10, at pp. 221-232, for a discussion.
ness - even when restricted to moral goodness - seems connec

to different natural properties on different occasions, making
impossible to identify the property of moral goodness with a
single natural property like pleasurable, happiness-producing,
whatever. Similarly in law, not only are the facts that make t
legal propositions quite diverse in their makeup, but which fact
are most important vary from case to case. It thus seems out of
question to identify the truth-makers of American statutory law
say, the plain meanings of the words, or even the purposes of
rules. Sometimes one of these factors dominates but at other times
seems to be of little importance.
The upshot is that although type-identity reductions are perfectly
respectable, they are where you find them. Water is H20, heat is
kinetic energy, but intentions are not brain state X, goodness is
not pleasure, and legal correctness is not simply moral correct-
ness, simplicatur. This insight usually motivates what are called
non-reductionist naturalisms.
2. Non-reductionist naturalisms
Although one of the crucial concepts of the non-reductive naturalist,
supervenience, originated in ethics,131 the lead oar in moving the
non-reductive naturalist boat along has been drawn by the philos-
ophy of mind. Let us thus start there to see the possibilities for ethics
and for law.
a. Anomalous monism. Non-reductive naturalists in fields such as

law often fasten onto Donald Davidson as their model for such
a position.132 For Davidson famously proposed an "anomalous
monism."133 Such a view is monistic in the sense that it reject
dualism about the mind; each instance (or "token") of a mental stat
such as an intention is identical to some physical state of the brain
131 For a nice history of supervenience, see Jaewon Kim, Supervenience and
Mind (Cambridge: Cambridge University Press, 1993), at pp. 53-58. As Kim
notes, Hare seems to be the first to actually use the word, although the idea i
pretty clearly evident in G.E. Moore. See "Reply", supra note 117.
132 See Hurley, supra note 4, at pp. 300-301; Stavropoulos, supra note 4, a
p. 71.
133 Donald Davidson, "Mental Events", in his Action and Events (Oxford:
LEGAL REALITY 673
Yet such a view is "anomalous" (Davidson's own characterizat

because there are no psycho-physical laws connecting types of b
states to types of mental states, such as intentions. All that re
exists is physical stuff but still we can never reduce the law
psychology to the laws of physics and chemistry.
Davidson's anomalous monism illustrates the attraction of non-
reductive naturalisms. If true, they allow us to have our cake and
eat it too. There is really just one world, the physical world. Yet
we cannot (and thus need not) dispense with all we find valuable in
an autonomous psychology of persons. Davidson also illustrates the
patent dangers of any non-reductionist naturalism: if one accepts
the anomaly that there are no psycho-physical laws connecting
types of mental events with types of physical events, then one
may well not be a naturalist-monist, but rather, either a skeptic or
a dualist about the mental. Since I and many others think this is
precisely the dilemma Davidson's anomalous monism faces, it is
worth showing why this is so before we consider more popular (and
more promising) non-reductive naturalisms.
Like the dualists, Davidson is struck by the Intentionality of
mental states, that is, their directedness upon contents or objects.
More particularly, he is struck by the manner in which we ascribe
the contents of mental states to one another, by adjusting the content
of them to match our norms of coherence, rationality, and consist-
ency.134 States would not be mental states without these Intentional
features, Davidson thinks. Physical states do not have these features,
and, indeed, seem to have other features incompatible with them
having these Intentional features. While Davidson has no objection
to correlating the two types of states, yet there can be no laws
connecting them because such laws would require the alteration of
the metaphysically necessary features of these two different types of
states.
The correlation point is important because it what allows

Davidson, he thinks, his monism. In this world, my intention right
now to go downtown may well be identical to some brain state S
in me. This just happens to be true in the way that "I am the only
Oregonian in the room" may happen to be true, "I" and "the only
Oregonian in the room" on this occasion picking out one and the
134 Ibid.
same person. Yet if things were different - if we were in some oth

possible world - that intention would not be identical with S -
more than I would be the only Oregonian in the room - which is w
psycho-physical laws (which necessarily operate in other possi
worlds) are ruled out.
Davidson is an odd model for moral or legal theorists attrac
by non-reductive naturalism. Partly, this is due to the fact th
Davidson's arguments against reduction are built on his con
versially holistic views on how we ascribe content to Intentio
states. That basis for anti-reductionism doesn't generalize even
mental states (such as sensations, which take no Intentional obje
certainly does not generalize to moral properties or legal enti
and in any event is quite controversial. Secondly, despite David
eminence in philosophy generally, anomalous monism is a pos
hardly any other philosopher accepts.135 It can hardly be parad
an example of non-reductive naturalism that is be well establi
or even well understood.
Still, most of the criticism of anomalous monism has focused on
the argument for why there can be no psycho-physical laws and thus
no reduction of the mental to the physical. More interesting for our
purposes is a different criticism: assuming one has good grounds
for rejecting any type identities between mental states and physical
states, can one nonetheless be a naturalist asserting only token iden-
tities between such things?136 If that is a real possibility, then that
is a lesson that can be applied in ethics and law; if those fields have
their own arguments for non-reducibility, ones that do not depend
on Intentionality, perhaps they too can nonetheless be monistic and
naturalist in their ontology.
Yet anomalous monism is too anomalous to be a live possibility
anywhere. Consider it in its home, the philosophy of mind. What
does it mean to say that the token, my intention to go downtown
today, is identical to some brain state token of mine, and yet there
are no type identities of which this token identity is an instance?
Think of all the physical things going on in my brain during the
135 See Kim, Supervenience, supra note 131, at p. 195.

136 This is the line of criticism pursued by Jennifer Horsby, "Which Physical
Events are Mental?", Proceedings of the Aristotelian Society 81 (1981), pp. 73-
92.
LEGAL REALITY 675
time interval when I am having the intention to go downtown t

- big stuff, like blood flow patterns in different areas of the b
amounts of electro-chemical activity, and little stuff, like cer
ion pumps working in the axon sheaths around certain neur
certain synapses firing, etc. In this "buzzing, blooming confus
of physical goings-on, where is my intention to go downtown
be found? How much of these physical goings-on, what swatch
them, should we isolate as the intention-token? Our problem h
is not just epistemic, how hard it is to know; the problem is m
physical - what reason is there to think that there is any swatc
the physical goings-on that is the intention-token? When there
type of swatch that is identical to any type of intention, that m
we can't look again in the brain whenever the same intention-
recurs to see if the brain state type recurs. We get only one look, b
then, what are we looking for?
Remember, all we have to work with are accidental gene
izations, not causal laws. This is enough, we might well think,
identify Moore with the only Oregonian in the room. That tok
identity seemingly requires no causal laws (such as, for examp
law to the effect that no two Oregonians can stand to be in the
room together) to be true. Yet notice we do rely on a theory of typ
here that both "Moore" and "the only Oregonian in the room" sh
namely, the theory of what individuates persons. We know wh
chunks of reality get lumped together as a person, and all we need
make the token identity is to see which chunk shares the proper
referred-to-as-"Moore," and born in Oregon. That sharing of ty
is precisely what we lack in anomalous monism. We have to imp
the type, intention to go downtown today, into the brain, since
not already there, and that is precisely what the anomalous mo
denies to us.
In Davidson's case it is pretty plain where his anomalous monism
lands him. He ends up being a skeptic about the mental of the elim-
inative materialist kind. For him as for Dennett, mental property
ascriptions like intentions are a kind of practically useful fiction that
we can hardly imagine ourselves doing without. But really, when
our thoughts turn seriously ontological, there are no such things.
The only world there is is the physical world, and in that world no
such things exist.
b. Supervenience naturalism. Anomalous monism, then, can har

be our model for non-reductive naturalism in ethics or law. I shall
therefore turn to a much more popular non-reductive naturalism,
that associated with the fashionable notion of supervenience. The
supervenience naturalist is struck by the diversity of things that
exist in the world that do not in any obvious way reduce to natural
kinds like water and gold and yet which do not give rise to any
dualistic temptations. The image of John Wayne on the television,
which seems different than the illuminated dots that in some sense
constitute it; the angry face, which seems different from the various
physical features that in some sense constitute it; the meaning of
a sentence as uttered or written, which seems different from the
sounds or scratchings that in some sense constitute it; the melody
of a piece of music, which seems different than the frequencies of
vibrations that in some sense constitute it; the action of a person,
which seems different than the bodily movements that in some
sense constitute it. The first of each of these pairs has been said
to supervene on the second of each pair.137
"Supervenience" is in danger of becoming the kind of conversa-
tional patter that "interpretation" has become and which "paradigm"
and "form of life" were to a previous generation of philosophers. It
is clear what is wanted from the concept by those who see it in the
above examples: to say, "x supervenes on y" is supposed to give you
what Davidson's anomalous monism promises, both an absolution
from any burden of showing how the supervening items are (type)
identical to other items, together with a reassurance that one is not
committed to any queer things or dualist ontology in the absence of
reducibility.
Although these twin hopes for supervenience are the same
as for Davidson's anomalous monism, these are in fact different
notions.138 Supervenience means asymmetrical co-variance. Some
property F supervenes on some other property G if and only if
137 Some of these examples are from Hurley, supra note 4, at p. 297. For other
examples, see Kim, supra note 131, at pp. 55-56.
138 Although Davidson himself didn't think so. For an examination of the
inconsistency between anomalous monism and supervenience naturalism, see
Simon Eunine, Donald Davidson (Stanford: Stanford University Press, 1991), at
pp. 67-71.
LEGAL REALITY 677
any change in F must be matched by some change in G, but

vice-versa. Sometimes supervenience is given a slightly differe
formulation: if F supervenes on G, then some objects x and y can
be the same in their possession of G yet differ in their posses
of F.139 Both of these formulations are trying to capture the
quoted earlier from G.E. Moore: supervening properties in s
sense depend orfollow the base properties on which they superv
Notice that this is inconsistent with anomalous monism because of
the law-like connections (existing in other possible worlds) between
F and G. If F varies, then G must vary as well; if G remains the same,
then F must remain the same as well.
Supervenience is thus less anomalous than anomalous monism.
Still, supervenience has some puzzles of its own. Elsewhere I distin-
guish six oddities supervenience is alleged to display.140 The crucial
one is this: to discover that two properties F and G co-vary can be
the beginning of an explanation of how such properties are related,
yet surely it cannot be a complete account. Why do they co-vary
has to be a question that leaps out at one. After all, generalizations
about supervenient relations are law-like; they hold necessarily in
other possible worlds. So one cannot give the kind of "just so"
shrug for an answer that one can give to accidental correlations, like
Moore being the only Oregonian in the room. "He just is" is a pretty
good answer there, but to say "moral properties just do co-vary with
natural properties," is not adequate.
The standard explanations of systemic co-variance all seem
unavailable. One of these is to explain a co-variance between F and
G in terms of an identity between them: if F is G, then of course
they will co-vary, yet the non reductionist aspect of supervenience
naturalism rules out such a type-identity claim. In addition, such a
claim seems to founder on the alternative realizability of the super-
vening property by many different base properties, as was discussed
earlier. And it is such an alternative realizability that makes for an
asymmetrical co-variance that needs explaining; base properties can
vary in such a way as to instantiate an alternative realization of the
139 Davidson, for example, uses both formulations. See "Mental Events", supra
note 133.
140 Moore, "Moral Reality Revisited", supra note 68, at pp. 2518-2526.
same supervening property, so supervening properties needn't v

just because base properties do.
Another explanation of co-variance between two properties F a
G could be the causal one: F causes G. Yet this too, like the t
identity explanation, leads to a kind of reductionism, in this ca
a nomological reduction. In addition, this leads to dualism, not
naturalism, because there is no metaphysical reduction of G-ness
F-ness. Finally, where F and G are natural and moral properties
or moral and legal properties, the causal explanation seems v
counterintuitive. Cruelty does not cause wrongness even if in so
sense it constitutes it; moral duty does not cause legal duty even
in some sense it constitutes it.
A third standard explanation of co-variance would be the
epiphenomenal explanation: F and G co-vary because they are
epiphenomena of each other, that is, co-effects of a common
cause. If F changes, that could only be because some common
cause C changes, and if C changes, G must change too. Yet the
epiphenomenal explanation seems to eviscerate any sense to the idea
that the supervening property depends on the base properties super-
vened upon. In addition, it is unclear how common cause accounts
can explain asymmetrical co-variance. And finally, in ethics and law
epiphenomenal relations between F and G seem as out of place as
causal relations. Causing wrongness, or causing legal duty, seems
odd, even if the causing is done by some remote common cause.
Absent any of these accounts, supervenience is anomalous. It
is thus a mistake to think that we have said very much when we
say that moral properties supervene on natural properties, or that
legal properties supervene on moral properties. Let us be clear: we
haven't said anything yet about the relation between these pairs
of properties. Nor will it help to assert a token-identity between
instantiations of these properties. Supervenience gives us no more
help in making sense of a purely token identity than did Davidson's
anomalous monism. Token identity just adds to our headaches; now
we have a double demand for some relation between types F and G
that can explain co-variance and can explain how an instance of F
can be identical to an instance of G.
My own explanation for why moral properties co-vary with
natural properties, mental properties co-vary with physical proper-
LEGAL REALITY 679
ties, and legal properties co-vary with the moral and non-m
properties identified in Part II, lies in a type identity bet
each of the two properties in these pairs. Supervenience natur
makes sense, in other words, only if it gives up the ambition
non-reductionist.
3. Metaphysically reductionist naturalism revisited

The problem with which we ended our previous discussio
reductionist naturalism was the alternative realizability problem
motivates supervenience. It looks very plausible to suppose th
intention to go downtown today can be realized by many diffe
physical events in the brain, that the wrongness of an action c
realized by many different natural properties, or that the truth o
singular proposition of American statutory law can be determ
by quite different combinations of factors on different occa
The way for a metaphysical reductionist to accommodate
facts is to make the base properties quite complex. Specific
the base needs to be an indefinitely large number of disjunct
organized properties, so that one can accommodate the fact th
this occasion the truth-maker for a singular proposition of Americ
statutory law is one set of factors, and on another occasion it
well be another set of factors. When each disjunct of some com
base property is itself sufficient for the existence of the superven
property, then the supervening property can meaningfully be
to depend on, follow from, be determined by, the base prope
This gives sense to these terms that the supervenience theorist
otherwise unable to supply. Moreover, co-variance is also expl
by this type identity of supervening property to disjunction of
properties. Because the sufficiency of each disjunct of the base
the existence of the supervening property entails the necessity of
supervening property for the existence of that disjunct, any ch
in the supervening property must be accompanied by a change i
base properties. But not vice-versa. If the base properties cha
that can be simply a shift from one sufficient disjunct to another
that there is no change in the supervening property. So the as
metrical feature of supervenience can also be explained by
underlying type identity.
Now some quibbles. First, what about infinite disjunctions?

an identity between a moral property and an infinite number
disjuncts of natural properties explain the supervenience of m
properties onto natural ones? I used to think the answer to this que
tion to be no, but that was because I assumed an infinite numb
disjuncts meant that any natural property could be the base proper
on which some moral property like wrongness supervened.141
was a mistake. So long as there are also an infinite (and probab
larger) number of natural properties on which wrongness does
supervene, the supervenience of moral properties on natural o
is adequately explained by a type identity with an infinite num
of disjuncts. In fact, I doubt that we need infinite disjuncts of
properties to account for the degree of alternative realizability
actually seems plausible, at least for law and ethics. The whole
of giving a "theory of interpretation" of statutes presupposes s
finite and relatively short list of base properties on which the
conclusions supervene. Maybe it is different for mental states,
with non-carbon-based systems possibly having intentions, but
there some finite modes of realizability seem more plausible.
Second, what about the apparent lack of combination and prio
rules between the various legal truth-makers, which are the b
properties on which legal facts supervene? Given such lack, ho
can there be disjuncts of sufficient conditions for legal facts? This
a real problem, but it is not one unique to law. Consider the m
question, who deserves to die as a punishment for their culpab
wrongdoing? Assume (along with American criminal law) that
death penalty is deserved on some occasions but that not all n
provoked, intentional killers of innocent victims deserve that m
severe penalty. Then we might well do what American constitut
law does: isolate a set of "aggravating factors," such as killing m
than one victim, any one of which is said to be sufficient as a b
for deserving the death penalty. Recognizing at least the incomp
ness of our knowledge (if not a deeper incompleteness of the wo
we might keep the list of sufficiently aggravating factors
with such open-ended factors as "wantonly vile, evil, or inhum
killings. Recognizing alternatively that situations in which even
presence of one or more aggravating factors does not seem su
141 Ibid. at pp. 2522-2523.
LEGAL REALITY 681
cient for deserving the death penalty, we might then again mir
American constitutional law and list a set of defeasing ("m
ating") factors that can rob the aggravating factors of their nor
sufficiency. Putting the two lists together, we should conclude
what we really are working with is one open-ended list of fac
determining in combination desert for death, with the caveat
the list is just that, a list without any combination or priority r
No factor is really sufficient, nor is any identifiable subset of fact
sufficient, and no factor is necessary, including perhaps the en
list.
There is a real difficulty in these moral and legal examples in
isolating independently sufficient sets of factors that can then serve
as the disjuncts of base properties in the type identity reductions here
proposed. The temptations of a purely token identity are born here.
That some murderer deserves to die one may confidently believe to
be true, as we may that why he deserves to die is (e.g.) because he
tortured his victim to death; his desert thus is the culpability of a
torturer. Yet we despair of generalizing; we know that torture is not
necessary to deserve the death penalty yet neither need it always be
sufficient. That it is sufficient in this case may be all we are confident
of.
Despite all of this, we have seen that purely token identities make
no sense. It has to be true that there are some types the conjunc-
tion of which is sufficient. The types must obviously be much
finer-grained than the aggravating and mitigating factors found in
American criminal codes, and much finer-grained than my "ingredi-
ents" in a theory of statutory interpretation. Yet types there must be
such that some conjunctions of them are sufficient for the legal or
moral conclusion.
Consider two analogies where the richness of the world baffles
our abilities to talk of sufficient sets of individually necessary condi-
tions. One is the ideal of formal justice. An old skepticism about
this equality-based ideal, going back at least to Feuerbach, is that
the ideal presupposes some theory of relevant likenesses in cases
that make them merit like treatment. Such theory must be nothing
less than a theory of all of morality, for it takes all of morality to
isolate what natural facts might be sufficient on a given occasion
to merit like treatment; any fact of difference between two cases
might be a morally relevant difference, and it takes a total m

theory to see if this is so in any given case. The richness of m
theory and the corresponding richness in possibilities for mor
relevant differences so threatens our ability to capture sufficie
of likeness between cases as to lead some to give it up entirely
this view, we have a distinctive form of reasoning, "reasoning
analogy," that dispenses altogether with the need for sufficient
of conditions. We just "see" primitive similarity relations betw
such particulars.142
The second analogy lies in the realm of causation. Humean a
neo-Humean accounts of causation reduce statements of singul
causal relations into statements of causal laws.143 Causal laws a
formulated in terms of antecedent clauses giving conditions joi
sufficient for the effect described in the consequent clause. An
problem for both of these generalist accounts of causation is t
defeasibility of any seemingly sufficient set of conditions. So
times, as in the concurrent overdetermination cases, there is m
than one sufficient set, so that the set in question is not necessary;
more often, there is at least potentially some other condition
yet discovered actually necessary to make the set sufficient, so
set in question is not really sufficient.145 Continued refinemen
the causal laws can of course be made, but there is no foreseea
end to this process. The skeptic concludes that there are no su
"deductive-nomological" causal laws and becomes a probabalist
something worse) about causation.
Yet these flights to analogical reasoning and to probabali
theories are premature, as is the flight to non-reductive natura
about law. In defense of a neo-Humean view of causation and cau
laws, John Mackie urged that the needed sets of sufficient conditio
must ultimately be looked for well below the macro level whe
142 E.g., John Wisdom, "Philosophy, Metaphysics, and Psycho-Analysis", in

Philosophy and Psychoanalysis (New York: Barnes and Noble, 1953). Ed
Levi An Introduction to Legal Reasoning (Chicago: University of Chicago P
1949) and Steven Burton An Introduction to Law and Legal Reasoning, 2nd
(Boston: Little, Brown, 1995) seem to have caught some of this incubus as w
143 Moore, "Causation", supra note 64, at pp. 45-46.
144 Ibid. at pp. 9-13.
145 Moritz Schlick, "Causation in Everyday Life and in Recent Scien
University of California Publications in Philosophy 15 (1932), pp. 99-125.
LEGAL REALITY 683
sufficiency is hard to find. Rather, we should look for those m

"laws of working" connecting very small sized types of events
the needed sufficient sets.146 Similarly, to make sense of univer
izability in law or morals, we should not be embarrassed by our n
to rely on all of moral theory to find relevant likenesses. It is a
that is literally beyond us but we do the best we can, making do wit
seemingly sufficient likeness on each occasion. So with singular
general propositions of law, we must look for the needed disju
of sufficient sets in much smaller categories than my large one
Part II; this should embarrass us here no more than elsewhere. It
easier to believe that such sets exist than it is to make sense of pure
token identities.
A third quibble reveals itself in the dismissive attitude of
adopted towards reductions to disjunctive sets. Susan Hurley reje
out of hand any "gimmicky disjunctive theory" because it "prov
a 'reduction' of little interest."147 Hurley's dismissal is reminisc
of Wittgenstein's dismissal of the idea that a rope made up of ov
lapping strands can have any unity by virtue of the disjunction
sets of strands making up the rope at different locations.148 It is no
hard to discern the source of such scorn: what disjunctive sets
sufficient conditions seem to lack is any account of what ma
Wittgenstein's rope one rope - or that makes the disjunction
physical states into the mental state of intention, that makes t
disjunction of natural properties into the kind, goodness, or th
makes the disjunction of moral and institutional properties into
kind, legal duty. The danger, of course, is that what makes
disjunction a unity is either some irreducibly mental, moral, or l
property - in which event we are back at dualism - or some patt
of response to the base properties that is typically human - in wh
event we will be back at skepticism (including perhaps the part
skepticism of secondary properties).
Let us call this the problem of finding an independent specifi
tion of supervening properties, since what is claimed to be missi
146 J.L. Mackie, The Cement of the Universe (Oxford: Oxford University Pr
1974).
147 Hurley, supra note 4, at p. 13. More sustained argument for this pessimism
about disjunctive universals may found in D.M. Armstrong, Universals (Boulder,
CO: Westview Press, 1989), pp. 82-83.
148 Wittgenstein, Philosophical Investigations, supra note 42, at ?67.
in disjunctive reductionism is any account specifying (in a m

united way) what mental, moral, or legal qualities are, other
the disjunction of base properties.
Before seeking to solve the problem, let us first share the disco
fort. Independent specification of the supervening property is
more of a problem for any supervenience naturalist who beli
he can get by with purely token identities. For the latter th
does not even have the "unity" of a disjunctive set with whic
work; all he has is a set of isolated tokens of base properties
in the past have been identical to the supervening property to
with no guarantee that similar identities will recur and withou
restriction on what base property token might be identical to w
supervening property token in the future. Independent specific
of the supervening property is crucial for such a token-ident
supervening naturalist.
Returning to the disjunctive reductionism at hand. It is alwa
course possible to find a single label for disjunctive sets of pr
erties. One might, for example, call the truth-makers of sing
propositions of law to be "interpretive facts," as does Dworki
his rare metaphysical moments.149 Yet a unitary label only d
the inevitable; Dworkin holds his interpretive facts to superve
the various moral and non-moral facts making for a correct in
pretation of a legal text150 and at that stage faces the same questi
viz, what makes an interpretive fact unitary?
My own label has been "functional kind"151 but this has not
intended by itself to answer this worry about unified legal pr
ties. The phrase "functional kind" as I have been using it refer
complex kind of instrumental good. It should not be equated si
with artifacts that have a human use or purpose, as Lon Fuller
wont to do.152 English is rich with what are often called funct
149 Dworkin, "On Gaps in the Law", in P. Amsalek and N. MacCormick (e

Controversies About Law's Ontology (Edinburgh: Edinburgh University P
1991), at p. 85. ("Law is a matter of interpretive fact".)
150 Ibid. ("Law is ... a supervenient fact ...")
151 Moore, "Law as a Functional Kind", in R. George (ed.), Natural
Theories (Oxford: Oxford University Press 1992), reprinted in Moore, Educ
Oneself, supra note 4.
152 See, e.g., Fuller The Law in Quest of Itself (Boston: Beacon Press,
pp. 10-11, where Fuller likens law to a steam engine.
LEGAL REALITY 685
words, words like "knife," "steam engine," "mousetrap," "stomac

"lawyer," "chair," that are analyzed in part in terms of what s
items are good for.153 Part of what makes a singular propositio
statutory law true is indeed the function of the statute in this sens
i.e., what good(s) it should be seen to serve.154 Part of what
relevant to the truth of the singular proposition of law in Kirby
the fact that the function of the federal statute was to promote fre
passage of mail in a federal system. But such statutory functio
is only part of what was relevant to that legal truth. Also relev
was the larger functions of the ordinary meaning for words that
used in statutes, which are to promote both democratic rule by
majority and notice of the law to citizens.155 Also relevant was
even larger function of all law which is to serve justice, includ
the retributive justice achieved when murderers are punished a
the innocent are not.156 Thus, when I classify as a functional k
the act-type referred to by the phrase, "obstruct or retard the pass
of the U.S. mail" (as used in the federal statute), I do so because
nature of the kind is given by its service of this complex hierar
of functions - the functions of this statute, of all statutes, of all law
On this view of things, a functional kind such as a le
obstructing is an instrumental moral good of a complex kind. W
thus face two queries about the unity of legal properties that sup
vene in this way on a disjunctive set of moral properties. On
the question of what unity is possessed by the functional kind, l
obstructing, in light of its supervenience on a disjunction of so
large number of sets containing variations on at least three differen
moral kinds. The second is what unity is possessed by each of s
moral kinds (such as retributive justice) in light of its supervenie
on some large number of sets of natural properties.
The model for an answer to both the moral and the legal que
tion lies in the functionalist approach current in the philosoph
153 Cragg, "Functional Words, Facts, and Values", Canadian Journal of Phi
ophy 6 (1976), pp. 85-96.
154 Moore, "Natural Law", supra note 4, at pp. 383-386.
155 Ibid. at pp. 313-318.
156 Ibid. at pp. 386-388.
of mind of the last forty years.157 For the functionalist gives

functional specification of the disjunctive set of physical prop
ties by virtue of which one intends to go downtown today
functional specification is one in terms of causal laws, connect
intentions both to other mental states and to behavior. Some of
us have argued, for example, that intentions are functional states
that mediate between belief/desire sets and the volitional source of
actions; they are caused by such background states of motivation
and they cause those immediate action-initiators known as volitions
(or willings).158 Such intentions have the roles of resolving conflicts
between belief/desire sets, transforming prima facie desires into
all things considered judgments, and they have the further role of
"agglomerating" themselves into larger and larger plans.159
An intention, on this functional specification, just is the state
that plays these causal roles in the explanation of behavior. Such a
definition is designed to avoid the Scylla of thinking that the only
"unity" to intentions lies in their being identical to a disjunction
of otherwise heterogeneous physical states, and yet to avoid the
Charybdis of reintroducing some irreducibly dualist mental property
(such as conscious experience or Intentionality) to do the unifying
work. A functional specification is intended to be free of any
non-physicalist ontological commitments. No "functional reality"
is wanted or needed. Rather, all that is needed are the physical states
making up the base properties, the behavior to be explained, and
causal roles for the set of physical states that intentions are.
Well, almost all that is needed. There is this nagging problem
for the functionalist-physicalist. If intentions are identified with a
set of physical properties, and if intentions play the causal roles
set forth above, then surely (by Leibniz' Law) the relevant physical
properties play these causal roles too. So what reason do we have to
continue talking of intentions or disjunctive sets of physical prop-
157 Summarized in Moore, "Mind, Brain, and Unconscious", in P. Clark and

C. Wright (eds.), Mind, Psychoanalysis, and Science (Oxford: Basil Blackwell,
1988).
158 Moore, Act and Crime (Oxford: Clarendon Press, 1993), chap. 6.
159 Ibid. "Agglomeration" is Michael Bratman's term for one of the qualities
a notion of intentions independent of belief/desire sets helps to make sense of.
Intentions, Plans, and Practical Reason (Cambridge, MA: Harvard University
Press, 1987).
LEGAL REALITY 687
erties? What can't we frame our explanations of behavior in

of whatever disjunct of physical properties causes the behav
given occasion? Why isn't functionalism, in other words, a
skepticism, an eliminative materialism?
The standard answer that I and others have employed re
the distinction between causal relations and causal explanat
Statements of causal relations are usually thought to be ext
but causal explanations are not. Thus, an intention to go dow
today may causally explain my downtown-going behavi
though the physical state that intention on this occasion is,
The intention explains because of the systematic regulariti
intentions as a type are. Although a singular causal relation
between the physical state my intention-token is, and my ac
no causal relation exists in general between physical states
type and acts of this type. Causal generalizations makin
explanations, in other words, exist only at the general level of
and "intention" is our word for that causally explaining typ
This is usually termed the explanationist conception o
logical commitment. We commit ourselves to the exist
something - and some one thing - if the existence of that t
necessary for the best explanation one can muster for som
item (like human behavior) that we assume for this pur
unproblematically exist. Since intentions seem to be an ine
able posit of our best explanation of human behavior, we ha
reason to believe that they exist - i.e., we have good reason t
otherwise heterogenous physical states in just the way neces
make sure there is a physical something (the whole set) play
perceived causal roles.
Explanationists in ethics such as Sturgeon, Brink, Railton
Lycan, and myself argue that exactly the same structure o
ment is appropriate for moral kinds like retributive justice
160 Moore, "Moral Reality Revisited", supra note 68, at pp. 2498-2501,
2533.
161 Sturgeon, "Moral Explanations", in D. Copp and D. Zimmerman (eds.),

Morality, Reason and Truth (Totawa, N.J.: Littlefield, 1984); Brink Moral Realism
and the Foundations of Ethics (Cambridge: Cambridge University Press, 1989);
Railton, "Moral Realism", Philosophical Review 95 (1986), pp. 163-207; Boyd,
"How to be a Moral Realist", in G. Sayre McCord (ed.), Essays on Moral Realism
(Ithaca, N.Y.: Cornell University Press, 1988); Lycan, Judgment and Justification,
functional specification for moral kinds like retributive justice

given by the causal roles played by such kinds. Specifically, suc
kinds cause moral beliefs, individual behavior, and (via them) lar
social movements. Each such moral kind being type identical to
disjunctive set of natural properties, on each occasion some disju
of the set will also cause the phenomena in question if the mor
kind causes it (Leibniz again). Yet the best causal explanation
the phenomena will be in terms of the moral kind, not the ind
vidual disjuncts of natural properties. This, because of the grea
generality of the explanation, as in the case of intentions.
Rather than rehearsing this argument further (which is hopefully
clear enough in its analogy to the functionalist approach to
philosophy of mind) I shall rather consider a recent criticism of
explanationist defense of my and Sturgeon's reductionist-naturali
realism in ethics. Michael Huemer urges that I have failed to m
good on the analogy of ethics to psychology because in ethics I h
not shown how moral properties like goodness explains anything
equally well explained by the disjunctive set of natural propert
on which goodness supervenes.162 Thus, Huemer imagines so
puckish naturalists who use the concepts good*, or badness, or an
symbol whatsoever, to stand for the base properties on which go
ness supervenes. By Huemer's stipulation, none of these concept
has the normative force of goodness (indeed, one of them, badne
has the opposite normative force). Would not good* or badness th
explain anything goodness would explain for us?
We can learn two things from Huemer's criticism. One is wh
explanatory competitions naturalist-realists do not have to win. W
do not have to show that goodness is a better explanation of mor
beliefs or of behavior than the disjunctive set of properties on which
goodness supervenes - after all, goodness is that set. We do have
win vis-a-vis explanations framed in terms of the natural propert
constituting the disjunct of that set on some given occasion. It is
lumping of these heterogeneous natural properties together as
disjunctive set that gives us a better explanation of human belie
and behavior. This is what must be shown to justify a commitme
supra note 45, chap. 11; Moore, "Moral Reality", supra note 86; Moore, "Mor
Reality Revisited", supra note 68.
162 Huemer, supra note 119.
LEGAL REALITY 689
to some one thing, the set, which we call "goodness." This exac
parallels the explanatory competition between intention and its
properties in the philosophy of mind; psychological explanatio
are best if they explain behavior better than any given disjunct
the set of physical properties that psychological properties are.
psychological explanations do not have to beat themselves, in ef
- by showing how intention explains things that the set of phy
properties an intention is, does not.
The second lesson to be drawn from Huemer's criticism is how
easy it is to slip into dualist commitments about minds, morals, or
law. Notice that for Huemer's puckish "naturalists" to get started,
they have to assume that they can pry apart goodness from its
natural property base. It is this that allows them to imagine a purely
descriptive concept naming the disjunctive set of natural properties,
good*, or a normative concept but with opposite normative force,
badness. Clearly for Huemer the essence of goodness lies in its
normative force, that is, in its capacity to give moral agents reasons
for action. That capacity is apparently not sharable by the set of
natural properties constituting goodness, nor by anything named
by purely descriptive concepts. That is dualism. And of course, if
dualism is true, naturalism is false, but assuming dualism is hardly
a way of showing naturalism to be false. If the naturalist makes the
case that a disjunctive grouping of otherwise heterogenous natural
properties best explains moral beliefs and moral behavior, nothing
else need be shown to justify an ontological commitment to good-
ness. It may well be that it is because of the reason-giving capacity
of that set that the set has the explanatory success that it does with
moral beliefs and moral behavior; but that fact too is a hypothesis
to be established, not an assumption to be made because of some
dualist commitments about the essence of morality.
The explanationist defense of the existence of "legal kinds"
(functional kinds, of the complex sort described earlier, that are
identical to a disjunctive set of non-legal facts) differs little from the
explanationist defense of moral kinds. This should not be surprising
if one accepts my stipulated natural law view in Part II, since
that view treats law as an instrumental moral good. The existence
of the instrumental moral good that is law is, like intrinsic moral
goods, part of the best explanation of five sorts of phenomena: (1)
legal truths other than the one doing the explaining; (2) indiv
behaviors of judges, lawyers, and citizens; (3) larger social dev
ments, such as the rise of a capitalist economy; (4) the beliefs a
what is and what is not legal; and (5) certain macro characteri
of legal propositions "in the large," such as the fact that no gro
infallible about the truth of such propositions. These parallel ex
the sorts of moral truths, moral behaviors, moral developmen
moral beliefs, and macro-moral phenomena best explained by m
kinds.163
Consider by way of example a crucial part of item (2) above, the
behavior of judges when they decide cases. Everyone in legal theory
concedes the existence of this item, so that we have good grounds to
believe that whatever is required to explain the existence of this item
also exists. Also, explaining why judges reach the decisions they do
has been a central preoccupation of American jurisprudence for over
a century.164 There is thus a well developed literature asking what
the best explanation of this phenomena might be. Functional kinds
of the complex sort earlier described exist if the best explanation of
this phenomena includes such things.
Skeptics about law such as the Legal Realists proffer explana-
tions of judicial behavior making no reference to such legal kinds;
rather, what explains what judges do is a mixture of other items -
the particular facts of the cases before them, the justice between
the parties if a decision is made one way rather than another, social
policies other than justice, social conventions, etc. (all collapsed into
the rubric "policy"). 165 Legal positivists such as Hart and legal inter-
pretivists such as Dworkin both seek to explain judicial behavior by
reference to legal kinds, but what they mean by legal kinds differs
163 Moore,"Moral Reality Revisited", supra note 68, at pp. 2506-2511.

164 Herbert Hart used to chide American Jurisprudence for its pathological
"obsession" with judicial behavior. Hart, "American Jurisprudence Through
English Eyes: The Nightmare and the Noble Dream", Georgia Law Review 11
(1977), pp. 969-989.
165 Brian Leiter has done much to clarify the nature of Legal Realist skepticism
about law and to show how much of it is best seen as using the inference-to-
the-best-explanation approach about judicial behavior to argue for the negative
existential thesis constitutive of skepticism. See particularly, Leiter, "Explanation
and Legal Theory", Iowa Law Review 82 (1997), pp. 905-909; Leiter, "Legal
Realism and Legal Positivism Reconsidered", Ethics 111 (2001), pp. 278-301.
LEGAL REALITY 691
from the functionalist nature of legal kinds explicated herein

Hart, such kinds are made up of institutional facts,166 while f
Dworkin such legal kinds consist of interpretive facts.167
Admittedly, much of the jurisprudential literature on adjud
tion should not be seen as framing explanatory competitions of
kind. Rather, much of that literature argues normatively that ju
ought to base their decisions on policy, institutional facts, int
pretive facts, or functional kinds. Still, another part of that literat
seeks to do "descriptive," not normative jurisprudence: judges
in fact caused to decide as they do by ... [fill in the blank: poli
institutional facts, etc.]. Indeed, most jurisprudents seek to show th
their favored facts both best justify how judicial decisions oug
to be made and best explain why they are made as they are. It
in this latter, descriptive/explanatory task that explanatory com
itions (revelatory of one's ontological commitments) about judi
behavior are to be found.
This is not the place to rehearse all the reasons supportive of
functional kinds as part of the best explanation of judicial behavior.
(The plausibility of such a view can be glimpsed by adverting to
the Kirby and Cappier decisions in Part II and asking what best
explained those examples of judicial decision-making.) What should
be emphasized here is how this explanatory competition should not
be framed.
One competition the functionalist explanation does not have to
win is one set up between functional kinds, on the one hand,
and belief in functional kinds by judges, on the other. Functional
kinds, policy, institutional facts, and interpretive facts have to
compete inter se for being part of the best explanation of judicial
behavior; none of them has to compete with judicial beliefs (about
functional kinds, policy, institutional facts, or interpretive facts).
When explaining intelligent, motivated human behavior, there will
usually exist causally efficacious beliefs of the human subject whose
behavior it is. Subjective explanations framed in terms of such
166 'Institutional Facts" is Neil MacCormick's favored label for the blend of
historical and semantic facts that are the truth-makers of legal propositions for
Hart's (and MacCormick's) brand of legal positivism. See MacCormick and
Weinberger, supra note 92.
167 Dworkin, supra note 3; Dworkin, supra note 149.
beliefs of the acting subject do not eliminate the objects of th

beliefs from being part of the best explanation of the behavio
question; such things can cause the behavior in question through
beliefs of the acting subject. Thus, if one is explaining why a p
icist decides that there is a proton in a cloud chamber168 in ter
of the physicist's more general beliefs about subatomic phy
that does not eliminate the proton as part of the best explanatio
the physicist's decision. Likewise for judges, that why they dec
Kirby as they did includes their beliefs in the injustice of convic
an innocent does not eliminate the injustice itself as part of the
explanation of that bit of judicial behavior. It is entirely possible th
the injustice caused the judicial beliefs about the injustice,169
that both therefore figure in the best explanation of judicial behav
A second sort of explanatory competition the legal functiona
does not have to win is one against himself, so to speak. As bef
the crucial explanatory competition is not between functional k
and the disjunctive set of non-legal facts to which functional k
are identical. Rather, paralleling ethics and the philosophy of m
the crucial competition is between functional kinds (the w
set) versus one of the disjuncts of the non-legal facts making
that set. In Kirby, that disjunct might be described as: avoidin
grave violation of negative retributive justice (by punishing a m
innocent like Sheriff Kirby), and achieving an important degr
of positive retributive justice (by making possible the apprehe
sion and punishment of murderous mail carriers who otherwise
escape), and absence of sufficiently grave disservice of a sufficie
weighty good served by this statute (free passage of mail in a feder
system), and absence of a grave violation of the notice require
criminal cases (because the ordinary meaning is being contract
not expanded), and absence of a grave violation of the majority
right to rule in a democracy (because no legislator could have fo
seen this sort of application of his general language), and ... [t
other factors I stipulated away in Part II to keep things simple].
This description is not, as I noted before, nearly fine-graine
enough to capture a truly sufficient condition for the truth of
168 The physicist example is from Gilbert Harmon, supra note 66.
169 On the causal efficacy of moral kinds for moral beliefs, see Moore, su
note 68.
LEGAL REALITY 693
kind of singular proposition of American statutory law. Yet ev

inadequately described as it is, with its many weasel word
"sufficiently grave," "sufficiently weighty," etc., the particularity
this disjunct should be apparent. It will compete poorly in explai
why judges and others have certain legal beliefs, behave as they
or form legal institutions with the shape that they have.
E. Answer Number Five: Peircean Realism
If one retains any vestiges of the verificationist impulse that was so

strong two generations ago in philosophy, and yet one was otherwise
attracted to metaphysical realism, then one might well be tempted
by Peircean Realism. This is a view that does its metaphysics with
an epistemological metaphor. The idea is that the truth value of
some proposition depends on the belief an ideally rational person
(who thus makes no invalid inferences) would have if possessed
of complete information in an ideal epistemic situation. This is not
some form of subjectivism or conventionalism because no actual
beliefs of historical persons are relied on. Rather it is an ideal belief
of an ideal human knower in an ideal epistemic situation - which of
course is none of us.
Charles Peirce is most famously associated with such a view,
although Hilary Putnam moved from metaphysical realism to
Peircean ("internal," in Putnam's lexicon) realism some years
ago.170 Usually such a metaphysical move is made across the board,
for all thought, physics as much as psychology, ethics, or law.
This is because the arguments convincing Putnam and others to
abandon metaphysical realism for its epistemically idealized cousin
are very general arguments having nothing to do with the particular
ontological challenges of intentions, goodness, or legal duties.
Those general arguments are verificationist-flavored arguments.
They focus on the narrow range of cases where Peircean realism and
metaphysical realism do differ, namely, those cases that are beyond
human comprehension. A metaphysical realist is committed to it
being possible that there are some truths of physics, psychology,
170 Putnam, "Realism and Reason", in Meaning and the Moral Sciences
(London: Routledge and Kegan-Paul, 1978); Putnam, Reason, Truth and History
(Cambridge: Cambridge University Press, 1981); Putnam, Realism and Reason,
supra note 110, at pp. 84-86.
morality, or law that are beyond human comprehension, even i

idealize that ability to comprehend to its limits. Such truths, if
exist, are in principle unknowable, at least by us. So the Peirc
realist does a modestly skeptical reduction: what there is is w
could be known by an epistemically idealized human knower.
Some Peircean realists seem to think that, like Rawlsian cont
tualists in ethics, they can avoid questions of reference and iden
For they have an alternative truth-maker for propositions: the beli
of an idealized knower. Yet absent some Lewis-like commitments
to there really being such a knower in some possible world that
is not our actual world, this is nothing at all. Putnam's version
is preferable: idealized epistemic approaches to truth constitute an
internal realism precisely because within the limits of what an ideal-
ized knower can know all the apparatus of metaphysical realism
is appropriate. Within the limits of what we can know, there are
natural kinds, our intentions in using language are usually referential
("indexical"), not attributive, etc.
To see this is to see how little difference Peircean versus meta-
physical realism makes. It only matters in the class of cases - if there
are any - that we will never in principle know about. If we have to
argue about it, I will keep my bets on metaphysical realism; for I
do not see how the Peircean realist ever gets external to the range
of things the best and the brightest of us can know so he can report
back to us that there is nothing there. It is this external glimpse that
allows him to report back to us that our ontologies are all internal to
human epistemic capacities.
But I like to argue metaphysical positions that have little impact
on anything. I will be the first to confess that whether I am right or
wrong about the issue between the metaphysical versus the Peircean
realist matters very little, not to physics and even more clearly not
to a practical discipline like law.
Recently Coleman and Leiter have proposed a version of
Peircean realism for adoption by law,171 thus disagreeing with the
foregoing. They obviously think that their "modest objectivism" has
some advantages over my "strong objectivism" (their phrase for a
metaphysical realism of a naturalist stripe) for law and morality.
As they see, Peircean realism shares with metaphysical realism the
171 Coleman and Leiter, supra note 79, at pp. 263-276.
LEGAL REALITY 695
advantages over all forms of conventionalism and subjectivism:

realisms allow "the possibility that everybody could be wrong ab
what a rule requires; what seems right to everyone about what a
requires may not be right."'72 The Peircean realist has this vir
because truth is tied to an idealized epistemic knower, not to a
actual beliefs of historical persons. This is a virtue because, as
saw with conventionalism, the seeming sense of revolutionary j
ments - judgments going against conventional belief - needs to
accommodated by one's metaphysics, be it a metaphysics of law
of physics.
Coleman and Leiter think that Peircean realism can share this
virtue with metaphysical realism without paying the costs in terms
of an evidence-transcendent reality. This they treat as an advantage
of Peircean realism over metaphysical realism not because of some
Ockham-like worry about metaphysical extravagance; rather, they
think Peircean realism garners an epistemic advantage from its
metaphysical parsimony. According to modest objectivity, legal
facts are not evidence-transcendent. Legal facts are fixed by judg-
ments under epistemically ideal conditions. Therefore, modest
objectivity does not face the same problem that metaphysical
realism does in explaining how a judge could gain access to strongly
objective facts.
The problem to which Coleman and Leiter are referring is the
problem that motivates most skepticisms with which I am familiar,
what I call the gap problem. There is generally a gap between the
evidence available to us and that which the evidence evidences.
About induction, no matter how many cases we examine the causa
laws we seek to infer always cover more; about other minds, n
matter how much behavior of others we may observe, another mind
potentially contains mental states - like Dummett's courage of one
living a safe life that never tests it173 - that never are evidenced by
behavior; about the macro world of objects like tables and chairs,
our evidence for their existence is only a set of perceptual exper-
iences yet from this we infer an object that endures even when
experienced by no one; about the past our evidence is often woefully
172 Ibid. at p. 264.

173 Michael Dummett, Truth and Other Engimas (Cambridge, MA: Harvard
University Press, 1980), pp. 14-16.
incomplete compared to what we infer from it - Aaron Burr eit

was on the Mississippi when Jefferson said he was (to be part of
Western Conspiracy), or he was not, even if our evidence is so sc
as to not resolve the question.174
Reductionist skeptics eliminate this gap by denying that it exi
A mind simply is a set of dispositions to behavior, for exam
so the evidence we possess matches that which it evidences.
Peircean realist proposes a modestly skeptical reduction; what th
is is not reduced to the evidence we possess but to the evidence
idealized knower in an idealized epistemic situation (including a
information humans could collect) could possess.
Notice how little of the gap (between evidence and thing
evidenced) is bridged by the reduction of the Peircean realist. Th
is still a huge gap between, on the one hand, the evidence and o
abilities to process it that any of us actually possess, and, on th
other hand, that of a Peircean knower. The Peircean judge - Dwor
calls him "Hercules" - knows things that are indemonstrable
any real judge. I thus fail to see any epistemic advantages for s
Peircean metaphysics. It is true that for a Peircean realist ther
less to know - the in principle unknowable. But within the lim
of what is knowable by an idealized knower, any real person is
better off epistemically in coming to knowledge about anything
because he doesn't quest after the unknowable.
Surely the intuition that leads Coleman and Leiter in the oppos
direction here is rooted in the continuity they sense to exist betwee
the knowledge claims of any of us and the "knowledge" of
idealized knower. Every judge can approach Hercules' ability
information base even if no judge is Hercules. Hercules - and
of his Peircean siblings in other fields, such as Adam Smith's id
observer or Rawls' original contractor - just have more of what
each have some of. By contrast, Platonic judges face a differenc
in kind and not just a difference in amount; Platonists have to
reality, and not just see as well as any person could possibly see.
This seeming quantitative/qualitative difference is an illusion
Remember, there is a Peircean reality for the internal realist,
moral and legal terms refer to aspects of that reality, the identity o
174 See the revision of Jefferson's view that Burr was there, in Nathan Schachn
Aaron Burr.
LEGAL REALITY 697
things within that reality is handled in the same way as we ha

done before, the truth of propositions lies in their corresponde
with that reality. The Peircean caveat is that that reality is limi
to what can be known by an idealized knower. But internal to
caveat, everything stays the same. In particular, every real per
can be in error on some point, or on every point, because w
they believe does not correspond to Peircean reality, that is, to
idealized beliefs of an idealized knower. Such Peircean reality is
"closer" to the actual beliefs of any of us than is the reality of
metaphysical realist.
I conclude that if one wants any epistemic advantage he has
go conventionalist. Then we could solve Dummett's worry ab
psychologically grasping evidence-transcendent truths - bec
conventionalist truths are those that are grasped.175 Then we co
solve Crispin Wright's worry about the usability of eviden
transcendent truths - because conventionalist truths are the ones
in use.176 Then Coleman's and Leiter's judges would not have to
grasp and to use evidence-transcendent legal truths - for the conven-
tionalist truths are the ones already grasped and used by judges.
Yet none of this can be said about Peircean realism. To garner its
advantage over conventionalism (of making sense of the possibility
of universal error) leaves no room for an epistemic advantage based
on some close connection to the actual beliefs of historical persons.
E Answer Number Six: Law as a Secondary Quality
Nicely positioned between skepticism on one side, and (both meta-

physical and Peircean) realism on the other, is a view of law as a
secondary property. Sometimes this view is pushed in the direction
of supervenience naturalism, as in Hurley and Stavropoulos; some-
times the view is pushed in the direction of Peircean realism, as in
Coleman and Leiter. But the secondary property view of the matter
is in fact distinct from these and any other of the positions we have
been examining. (As I shall mention below, secondary qualities are
more conventional than either supervenience naturalism or Peircean
realism can allow.)
175 Dummett, supra note 173, at pp. 153-164, 358-359.

176 Crispin Wright, Realism, Meaning and Truth (Oxford: Basil Blackwell,
1987), pp. 1-2.
The idea of secondary qualities is usually traced to Locke.

Primary qualities for Locke were the undisputed real stuff - w
we would today call natural kinds, named by projectible predica
qualities doing work in our best causal theory of the world, et
Secondary qualities are, as the name suggests, rather second cl
citizens in the makeup of the world. They are not part of our b
explanation of the world. Indeed, they are not wholly in the wo
of objective fact; rather, they are subjective in the sense that t
are in part constituted by the kind of experience human beings
when confronted with certain primary qualities.
Take a color, such as red (a standard example of a second
property for Lockeans). The color red is said to be in the worl
the sense that there are primary qualities (electromagnetic radia
of certain wave lengths, together with the reflective and absor
capacities of certain surfaces) that uniformly cause a certain exp
ence in human beings, namely, the experience of seeing red. "
does not refer to those primary qualities, but it does refer
property that those qualities possess - the dispositional property
causing seeing-red perceptual experiences in human beings.
Fans of secondary qualities thus promote them with the s
pitch that they are in part objective even if also in part subject
Stavropoulos: "something is red in some sense because we say
but in some other sense it is not up to us - we say so becau
is red."178 This sounds more mysterious than it is. It is to rec
nize that if secondary properties exist and if redness is on
them, then redness is a part of the objective world, as real as
other psycho-social fact. That certain properties of physical obj
(their light absorbing surfaces), together with the electromagne
radiation those objects reflect, cause certain rods and cones in
back of the human eye to react in certain ways, which caus
(eventually) the experience of seeing red in normal human bein
is a truth about the objective world. Its only "subjectivity" lies
the recognition that the truth conditions for "is red" include pr
nently, "is experienced as red by normal human beings." Were
all to experience light of the wave length we now call "green"
177 Locke, An Essay Concerning Human Understanding (London, 1690), Bo

II, Chapter 8.
178 Stavropoulos, supra note 6, at p. 102.
LEGAL REALITY 699
we experience red, then "red" would not change its meaning; t

it is to our collective experience, our red-seeing experiences w
be caused by green wave length light; and it is our experienc
dominates the primary properties causing it, so if those come
"red" goes with the experience.
Whether there are secondary properties is an open question.
believer in secondary properties has to fight and win a two-f
war: he has to avoid the realist's attempt to liken seconda
primary qualities, and he has to fend off the skeptic's attemp
show that they are wholly subjective, that is, that they are m
projections with which we stain the world on an individual b
My own temptations, of course, lie in the realist direction
tempting to conclude, with Kripke179 and Armstrong,180 that
refers to the primary properties (electromagnetic radiation, etc
that the connection between "is red" and "is experienced as
is non-analytic. But then some of us (Armstrong181 and myse
would give the same analysis of "pain"; the connection betwee
painful" and "feels painful" is also non-analytic, so that it is po
for there to be unfelt pains, differential pain thresholds, etc. Sinc
many people find this metaphysics implausible (despite its rid
us of any need for analytic truths, rare commodities as it turns ou
I shall make assumptions contrary to my own temptations her
us assume that there are secondary properties and that red is o
them. Can this be a plausible analysis, or even analogy, for m
and legal properties?
Take morals first. Skeptics like Blackburn find a secondary p
erty analysis implausible, and they do so for reasons that here
common cause with realists like myself: a fundamental featur
everyone's moral experience is the sense we have that everyone
could be wrong on some issue.183 We all sense this potent
be a moral revolutionary vis-a-vis our fellows. Both the realist
179 Kripke, supra note 127, at p. 140 n. 71.

180 David Armstrong, A Materialist Theory of the Mind (London: Routledg
Kegan Paul, 1968), chap. 12.
181 Ibid. at pp. 100-113.
182 Moore, Law and Psychiatry, supra note 104, chap. 7.
183 Blackburn, "Errors and the Phenomenology of Value", in T. Honderich
Morality and Objectivity (London: Routledge and Kegan Paul, 1985), reprint
Blackburn's Essays in Quasi-Realism (Oxford: Oxford University Press, 19
the noncognitivist can accommodate this experience but as we

the conventionalist (relativist) about morals cannot. In this res
the secondary properties account of morality differs not at all f
standard issue relativism. On the secondary property account, a
the relativist account, if everyone but me responds to natural f
like cruelty with praise and commendation, then cruelty is go
My attempt to say that cruelty is bad is like the inverted spect
fellow who says that what everyone else sees as red he sees as g
and thus is green: we are both wrong because decisively outvo
Since the meaning of "good" and "red" is tied to the responses
humankind in general, my attempt at revolution can be dismi
as the babbling of a person who doesn't know the meanings of
words he seeks to employ.
This relativist implication precludes secondary properties as
good ontological home for moral properties, as people as div
in their anti-realist metaphysics as Simon Blackburn and C
McGinn have agreed.184 This implication also debars a secondar
property analysis of legal qualities. There is no consensus that
settle the question whether Sheriff Kirby obstructed and retarded
passage of the U.S. Mail. The singular legal proposition that Ki
was not guilty of such an obstructing depends on the non-legal f
laid out in Part II; but it does not depend on what response th
facts cause in most citizens, most lawyers, or even most judges.
practice of law is not (and should not be) that conventionalist.
I take it that it is precisely the conventionalist nature o
secondary property analysis that motivates Coleman and Leite
elide a secondary property analysis into some kind of Peirc
realism185 (although this is not as clearly true of Leiter in his
writings,186 because he seemingly separates the two). They do t
by idealizing the epistemic situation in which human responders
caused by certain primary qualities to have a response like, "se
like red" or "seems not guilty of obstructing." Coleman and Lei
ideal judge possesses all relevant information, is fully rational,
184 See ibid.; Colin McGinn, The Subjective View: Secondary Qualities
Indexical Thoughts (Oxford: Clarendon Press, 1983), pp. 145-155.
185 Coleman and Leiter, supra note 79, at pp. 270-271.
186 Leiter, "Objectivity and the Problems of Jurisprudence", Texas Law Rev
72 (1993), pp. 187-209, at p. 194 n. 26.
LEGAL REALITY 701
all the imagination, empathy, or other heuristics available that

generate insight, and is in an ideal epistemic situation in that
free of bias, prejudice, or prejudgment.
Coleman and Leiter's ideal judge, like Dworkin's Hercules, is
course no real judge. He is smarter, more knowledgeable, and b
situated than any real judge. This is what allows Coleman and L
to rebut the charge of conventionalism. But it also is what takes t
out of a secondary property analysis. Fans of secondary prop
tout them as being in the objective world precisely because the
the dispositions of actual, historical persons to actually have ce
experiences and beliefs, caused by certain primary properties
take away the actuality of the experience plus belief, to talk o
"beliefs" of a hypothetical, idealized person, is to leave the ac
world. Moreover, although put in terms of what beliefs an
judge would have, it should been clear that Coleman and Le
analysis renders that "would" not a true counterfactual; "would
them means "should," that is, the relation is not causal but nor
tive, invoking a norm of rationality. This also robs their idea
"secondary property" analysis of being unproblematically i
objective world, one of the attractions of a true secondary prop
analysis.
It is true that standard secondary property analysis restricts the
experiences that count to those occurring in normal conditions, e.g.,
standard lighting for "red." Yet normal is not ideal; it is rather a
common condition that obtains much of the time and in which
people are caused to have the distinctive experience of seeing red.
Normal conditions are real states of the world in a way in which
idealized epistemic situations are not.
An illustration of this difference is provided by the concept of
negligence. Negligence has its own idealized human knower, the
reasonable person. There are two concepts of this fellow. The first
concept identifies him as the statistical average of humankind. This
is the famous "man on the Clapham omnibus" of English jury
instructions. To be negligent on this average or normal conception
is to fail to believe and do what the average person would do. Such
negligence is thus dispositional in the sense that non-negligence is
the disposition of most of us to certain statistically normal behavior.
The second conception of the reasonable person is explici

normative. Even if most of us in summer drive with our elbows
resting on an open car window,187 even if every mine operator since
Tubal Cain fails to have railings around ladder openings in platforms
in mines,188 we shouldn't. The reasonable person is the person who
believes and does what he should, not what most of us would believe
and do.
American tort and criminal law reject the secondary property
view of negligence, the first view that collapses what is reasonable
into the dispositions of most of human-kind to believe and behave
in certain ways. It does this precisely for the reason that moves
Coleman and Leiter: legal concepts should not be wholly conven-
tionalist in the way a true secondary property analysis would render
them.
I find even more puzzling the resort to secondary property

analysis by supervenience naturalists about law and morality such as
Nicos Stavropoulos189 and Susan Hurley.190 On their face these two
things don't go together. On the supervenience-naturalist account
of law, Sheriff Kirby's legal non-obstructing is token identical to
a particular combination of the non-legal properties identified in
Part II, and legal obstructing as a type supervenes on those kinds
of non-legal properties. In these relations of token identity and
asymmetrical co-variance of types, there is no room for typical
human response to play a role. Legal properties depend on non-
legal properties, full stop, for the supervenience naturalist. They
thus do not and cannot depend on typical human experiences caused
by those non-legal properties. I thus find the attempt to attach a
secondary property analysis to a supervenience naturalist account
of law to be puzzling.
But perhaps I was mistaken in taking seriously this analogizing of
law and ethics to anomalous monism and supervenience naturalism
187 In Schilling v. Stockel, 133 N.W.2d 335 (Wis.Sup.Ct. 1965), the Wisconsin
Supreme Court held that as a matter of law it was negligent to drive with one's
arm resting in an open car window, even while recognizing that many or even
most drivers engaged in the practice.
188 The famous language of the Maine Supreme Court in Mahew v. Sullivan
Mining Co., 76 Me. 100 (1884).
189 Stavropoulos, supra note 6, at pp. 100-103.
190 Hurley, supra note 6, at pp. 15-20, 283-287.
LEGAL REALITY 703
in the philosophy of mind. Their view is perhaps more accurat

captured by the following beliefs:
1. Each token of a legal kind (like obstructing the mail) and ea

token of a moral kind is identical to some constellation of tokens
of non-legal and non-moral properties, respectively.
2. Each legal property and each moral property is not type-
identical to any constellation (disjunctive or otherwise) of
non-legal and non-moral properties, respectively.
3. Some constellation of tokens of non-legal properties and some
constellation of tokens of non-moral properties (the "base"
properties), singularly cause the beliefs, behaviors, and social
structures referenced earlier; thus, those tokens of legal and
moral kinds identical to these constellations also singularly
cause these things.
4. The best explanation of such beliefs, behaviors, and social struc-
tures lies with the non-legal and non-moral base properties, not
with the legal and moral properties. It is not, in other words,
causal roles that individuate moral or legal properties.
5. What individuates moral and legal properties are the concepts
people employ for them. Just as "red" names the disposition
of certain base properties to cause red-seeing experiences in
humans, so "good" names the disposition of certain base prop-
erties to cause beliefs with goodness as their content, and
"legal duty" names the disposition of certain base properties
to cause beliefs in legal actors with legal duty as their content.
The experiences and beliefs such base properties cause cannot
be described without using the concepts of redness, goodness
or legal obligation, because the content of such beliefs and
experiences employ such concepts.
6. The legal and moral properties named by such concepts
supervene on a completely open-ended set of non-legal and
non-moral base properties; this means that no good-seeing or
law-seeing experience can change without there being some
change in some non-legal and non-moral properties, without any
restriction on what those changes or the properties involved in
them might be. Why such co-variance should exist is myster-
ious, except that one posits the necessary existence of some
theory (carefully distinguished from the existence of some
theory making metaphysically necessary such co-variance)

might explain it.
This would be a true secondary property analysis of legal and m

concepts, and perhaps this is what Stavropoulos and Hurley pro
Yet belief number five reveals the doubly conventionalist natu
the analysis. Not only are "good" and "liable" a function of ave
human response, as is true of all secondary property analyses
now we (collectively) are ourselves actively responsible for ge
ating such response by our conceptualizing the world in terms of
artificial (i.e., not metaphysically necessary)) concepts of red,
and liable. With such conventionalism comes the standard prob
of both vulgar and not so vulgar relativism.
IV. CONCLUSION
Metaphysics is not for everybody. At least it is not to

taste. There are many sorts of questions about the law
the question of ontology I have been pursuing in this p
almost all of these other questions undoubtedly have m
implications for practical affairs. Still, the motive for
turning to philosophy initially was the curiosity about t
questions of existence with which metaphysics deals.191
of thing law is is one such question.
I suspect that many philosophers became legal an
philosophers in part to avoid metaphysical questions
philosophy of law is the poorer for it. Most of that impo
is due to the eschewal of metaphysics within legal p
have legal standards making liability turn on questions o
action, causation, intention, the best interest of a child
moral turpitude, equal protection of the law, the right of f
etc. On the K-P semantics that I, Brink, Stavropoulos a
think makes for the best interpretation of those elements o
there is no help but to "go metaphysical" and ask after the
191 As David Armstrong concluded his most recent book on the m

universals, such a problem "may commend itself to those happy few
intellectual fascination in... 'grubbing around in the roots of being.
supra note 147, at p. 139.
LEGAL REALITY 705
events in general and human actions in particular; causal relat

and causal generalizations; intentions and other propositional
tudes; moral qualities like goodness and moral relations like nat
rights, etc.
Some of the impoverishment is also due to an ignorance of the
metaphysics of law itself. Despite my beginning in particular juris-
prudence in this paper, that has been the topic. The supposition is
that how law fits into our picture of the world is a worthwhile ques-
tion to pursue. It lacks the direct, practical payoffs of a metaphysics
of events, etc., within legal practice. Still, as Mallory said of Everest,
because law is there it may be worth climbing it to see how it relates
to the other mountains we have already climbed.
University of Illinois School of Law

504 East Pennsylvania Avenue
Champaign, IL 61820
E-mail: micmoore@law.uiuc.edu

Moore Legal Reality. A Naturalist Approach To Legal Ontology

Încărcat de

Informații document

Titlu original

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

Moore Legal Reality. A Naturalist Approach To Legal Ontology

Încărcat de

Drepturi de autor:

Formate disponibile

Legal Reality: A Naturalist Approach to Legal Ontology

Author(s): Michael S. Moore

LEGAL REALITY: A NATURALIST APPROACH TO LEGAL

(Accepted 10 September 2002)

A. Singular Legal Propositions of American Satutory Law 624

! Law and Philosophy 21: 619-705,2002.

Ontology is the study of what exists. As my subtitle sugg

2 For these more traditional views of metaphysics, see Roger Hancock,

nature, we can fruitfully investigate much more discrete natu

4 Compare my own skepticism about Heidegger's version of this in Moor

law seem to be two.6 One is in psychology and the philoso

6 A presupposition as well of Susan Hurley, Natural Reasons (Oxford: Ox

8 H.L.A. Hart, "Comment", in R. Gavison (ed.), Issues in Contemporary L

II. TWO LEGAL EXAMPLES

A. Singular Legal Propositions of American Statutory La

I shall here attempt the always dangerous feat of followi

9 I deal with singular propositions of law generically, and with t

statute, allowing the later, more specific murder statute to carv

1 See citations, note 10 above.

historical facts about the "essential context" in which the statute

14 Ibid. at pp. 304-306.

tions or disjunctions of these facts possible, as if one could iso

B. General Legal Propositions of American Common Law

My second example is the Good Samaritan rule of the Amer

19 At least as the rule is formulated in such classics as Tennessee Valley

In Cappier a young boy, Irvine, trespassed onto the defendan

As before, to reach the question that here interests me I nee

1. The historical facts that in 1903 the Kansas Supreme Court

2. The moral fact that my imagined second case is similar enough

It is this combination of historical and moral facts that make it the

22 Moore, "Precedent, Induction, and Ethical Generalization", in Laurence

for overruling the plain meaning of statutes: a blend of mor

III. FINDING A PLACE FOR LEGAL QUALITIES IN OUR WORLD

The question that interests me is in what sense things legal exist:

A. "Answer" Number One: Refusing Sense to the Question

27 Gilbert Ryle, The Concept of Mind (London: Hutcheson, 1949), chap. 1.

were ill-formed because they elided together terms from diffe

28 Tom Nagel and Nicos Stavropoulos have been heavily influenced by

29 R. Dworkin, Law's Empire, supra note 3, at p. 86.

distinction, urging that all meaningful/practically relevant pro

senses - without looking to the reference of each? Similarly, h

34 Stavropoulos, supra note 6, at pp. 180-186.

B. Answer Number Two: The Skeptical Answers That Deny th

Unlike the ostrich, the skeptic at least grants the ontological

a. The fusion strategy. One such happy skeptic is the fus

35 W.V.O. Quine, Ontological Relativity and Other Essays (New Yo

might be. The fusionist is a skeptic in that he denies the existen

37 Quine, Word and Object, supra, note 33, at p. 132.

39 H.L.A. Hart, Definition and Theory in Jurisprudence (Oxford: Clarend

all: "legal right" looks referential, so that no linguistic fact abo

b. The non-cognitivist skeptic. The fusion strategist is somethin

42 Wittgenstein, Philosophical Investigations ?244, 3rd edn. (Oxford:

tive uses of the language were taken to preclude any descriptio

44 H.L.A. Hart, "The Ascription of Responsibility and Rights", Proceedings of

The speech-act fallacy form of criticism may seem to go on

47 "Illocutionary act potential" was William Alston's phrase referring to the

can locate some other non-descriptive function such express

Both Blackburn and Jeremy Waldron48 believe that we c

48 Blackburn, "Rule-Following and Moral Realism", in S. Holtzman and C.

What Blackburn and Waldron deny sense to is precisely t

Now it seems we can't bring internal evaluations out to our exter

52 Blackburn, "How to Be an Ethical Antirealist", Midwest Studies in Philos-

of moral judgments would be different. Inside, moral judgments