legal reality: a naturalist approach to legal ontology

MICHAEL S. MOORE

LEGAL REALITY: A NATURALIST APPROACH TO LEGALONTOLOGY �

(Accepted 10 September 2002)

I. INTRODUCTION 620

II. TWO LEGAL EXAMPLES 624

A. Singular Legal Propositions of American Satutory Law 624B. General Legal Propositions of American Common Law 628

III. FINDING A PLACE FOR LEGAL QUALITIES IN OUR WORLD 632

A. “Answer” Number One: Refusing Sense to the Question 632B. Answer Number Two: The Skeptical Answers That Deny The

Existence of Legal Things 6361. Happy Skepticisms 636

a. The Fusion Strategy 636b. The Non-Cognitivist Skeptic 639c. Skeptical Reductions 649

2. Unhappy Skeptics 653C. Answer Number Three: Dualistic Realisms 657D. Answer Number Four: Naturalistic Realisms 664

1. Classical Reductionist Naturalisms 665a. Analytically Reductionist Naturalism 665b. Metaphysically Reductionist Naturalism 669

2. Non-Reductionist Naturalisms 672a. Anomalous Monism 672b. Supervenience Naturalism 676

3. Metaphysically Reductionist Naturalism Revisited 679E. Answer Number Five: Peircean Realism 693F. Answer Number Six: Law as a Secondary Property 697

IV. CONCLUSION 704� Charles R. Walgreen, Jr., University Chair, Professor of Law, Professor of

Philosophy, Co-Director of the College of Law Program in Law and Philosophy,University of Illinois. This paper has been presented to the Conference on Nat-uralism and Other Realisms at the Center for Law and Philosophy, ColumbiaUniversity, April 13–14, 2001; an abridged version will be given as a PlenaryAddress of the Annual Meeting of the International Association for Philosophy ofLaw and Social Philosophy, University of Lund, Lund, Sweden, August 13, 2003.My thanks go to all whose comments made the paper better at these presentations,and particularly to Scott Shapiro, who was my commentator at the Columbiapresentation.

Law and Philosophy 21: 619–705, 2002.© 2003 Kluwer Academic Publishers. Printed in the Netherlands.

620 MICHAEL S. MOORE

I. INTRODUCTION

Ontology is the study of what exists. As my subtitle suggests, mytopic is to enquire into the sorts of things legal that we may plausiblysuppose to exist. Prima facie, our legal ontology seems to include:particular entities, such as laws; properties (qualities, sets, classes),such as legal validity; and relations, such as legal obligations fromone person to another.

My interest in this paper is not to develop a taxonomy of whatsorts of things legal exist, nor to classify our ontological commit-ments into particulars versus two (or more) kinds of universals.Rather, I am interested in a more global question, one I shall call therelational question: assuming that various legal entities, qualities,and relations exist, how should we picture that existence? Moreexactly, how do legal things relate to items that we may think tobe somewhat less problematic in terms of our ontological commit-ments (items like judicial behavior, shared community beliefs, factsof institutional history, semantic facts, and moral facts)?

The history of jurisprudence is not reassuring when embarkingon ontological voyages in legal seas. For much of what our forbearshave written is both unclear and irrelevant to anything we shouldcare much about. It is also often maddeningly grandiose in its modeof expression. To be told, for example, that “law is not an abstractuniversal, given once and for all; since it does not transcend theempirical dimension, but on the contrary is immanent therein, itis not always the self-same thing,”1 is not likely to be a fruitfulstarting point for informative discussion. The present generation oflegal philosophers have some reason to be more optimistic about theworthwhileness of the topic. If we are more modest, less parochial,and more focused we perhaps can justify such optimism.

The modesty point first: we have to tone down what we canexpect from theories of ontology, and of metaphysics more gener-ally. An older, less modest view has it that metaphysics is: (1)foundational, in the sense that it is what one studies first becauseall other understandings partake of it; (2) universal, in the sense thatit can illuminate being as such (and not just the nature of different

1 Enrico Pattaro, “A Final Word”, in P. Amselek and N. MacCormick (eds.),Controversies About Law’s Ontology (Edinburgh: Edinburgh University Press,1991), at p. 143.

LEGAL REALITY 621

kinds of things that exist); (3) incorrigible, in the sense that the rock-bed of certainty is to be found in metaphysical truths, truths thatare not just epistemically prior (“foundational”) but are knowablewith certainty; (4) autonomous, in the sense that metaphysics isdiscontinous with physics or with any other discrete science of theworld.2

We do well to reject each of these claimed features of meta-physics. We have no reason to think that existential questions areepistemically prior to other sorts of questions, as if we could settlewhat exists and then go on to settle every other question we mightask. Metaphysics is the tail of the (epistemological) dog, not the dogitself. On the realist metaphysics that I accept for certain classes ofthings, it is true that the existence of certain things does not dependon our theories; even so, our discovery that certain things exist andthe justifiability in our believing that they exist, do depend on ourbest theories. There is to be sure a feed back loop – it counts againsta theory if it commits us to strange (“queer”) entities – yet whatmakes a theory best is not that it corresponds to entities we know toexist prior to any theorizing.

It is thus a mistake to be disappointed if our metaphysics doesnot deliver a “thunderous knockdown metaphysical demonstrationno one can resist who has the wit to understand,”3 so long as weare properly modest about the epistemic claims of our metaphysicaltheories. Our metaphysical commitments are determined by our besttheories, but what makes such theories best – i.e., most rational tobelieve – is not determined by some a-theoretical glance at somebrute reality. Epistemologically speaking our metaphysics is the tailwagged 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 ofMetaphysics”, 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 natureswhile suspending this most general of all metaphysical enquiries.4

We modest metaphysicians should also give up the quest forcertainty, as Dewey called it. Such Cartesian certainty is not to befound in metaphysics, nor any place else for that matter. Everything(as Quine was so fond of reminding us) is up for grabs, even if themaintenance of sanity requires that most of it not be so all at once.

Finally, a properly modest metaphysics should claim noindependence from science or other branches of knowledge. Forexample, the insights of an advancing neuroscience that temptsome to an “eliminative materialism” about folk psychologicalmental states5 cannot be ignored by the philosophy of mind, onsome ground that the latter is metaphysics while the former is justscience. Similarly in legal theory, there is no disconnect betweensubstantive legal theories of when, for example, people are contrac-tually obligated to one another, and the nature of legal obligation ingeneral. One’s general account of what a legal obligation is, cannotignore the legal obligations people have in various legal systems.

Now the parochial point. When we are locating things legal inthe world – when we are theorizing about their nature and theirrelationships to other sorts of things – we do well to look beyondlaw to other, prima facie similar ontological enquiries. Philosophyis rich with comparison cases; depending on where one starts infinding existence unproblematic, one can find challengingly strange,and thus worthy of investigation, the existence of: theoretical entitiesin science such as force, field, kinetic energy, etc.; enduring physicalobjects, such as a ship or an elephant; real numbers in mathematics;the meaning of a sentence, etc. Still, the most fruitful analogies for

4 Compare my own skepticism about Heidegger’s version of this in Moore,Educating Oneself in Public: Critical Essays in Jurisprudence (Oxford: OxfordUniversity Press, 2000), at pp. 388–392, with Panayot Butchvarov, Being QuaBeing (Bloomington: Indiana University Press, 1979).

5 E.g., Stephen Stich, From Folk Psychology to Cognitive Science: The CaseAgainst Belief (Cambridge, MA: M.I.T. Press, 1983); Daniel Dennett, The Inten-tional Stance (Cambridge, MA: M.I.T. Press, 1987); Paul Churchland, “Elemina-tive Materialism and the Propositional Attitudes”, Journal of Philosophy 78(1981), pp. 67–90, reprinted in P. Churchland, A Neurocomputational Perspective(Cambridge, MA: M.I.T. Press, 1989); Patricia Churchland, Neurophilosophy(Cambridge, MA: M.I.T. Press, 1990).

LEGAL REALITY 623

law seem to be two.6 One is in psychology and the philosophyof mind and the other is in meta-ethics, where we may wonder(respectively) how mental states or moral qualities are to be locatedin the natural world. Given the enormous amount of philosophicalattention that has been given to each of these problems, it wouldnot be surprising to have possibilities distinguished, blind alleyscharted, arguments explored, that would be helpful in asking howlegal qualities are to be located in the natural world. In addition,since on the view of law I shall suppose to be true in this paper, legalqualities in some sense depend on both moral qualities and thoseshared mental states and actions often termed “institutional facts,”to explicate minds and morals will be to explicate law as well.

Thirdly, under the injunction “more focused,” I shall in thispaper eschew general jurisprudence and its general enquiry intolaw as such.7 Instead, I shall focus on one legal system, that ofthe United States, and focus on two types of U.S. legal phenomenathat are much less general than legal obligation, legal validity, orlegal system. It is not that I disagree with Hart, who held that ourgeneral concepts of law, legal system, legal obligation, validity, etc.informed our views of what was the law on some particular topicin some one legal system.8 One can agree with Hart on that scoreand still think that it may be more fruitful to tease out the nature ofthe general and universal features of law by focusing more particu-larly on discrete legal phenomena within one particular legal system.There being no epistemic priority here either way, I in any eventintend to put on that leg of the trousers first.

6 A presupposition as well of Susan Hurley, Natural Reasons (Oxford: OxfordUniversity Press, 1986) and Nicos Stavropoulos, Objectivity in Law (Oxford:Oxford University Press, 1996).

7 For the distinction between general versus particular jurisprudence, seeMoore, “Hart’s Concluding Scientific Postscript”, Legal Theory, 4 (1998),pp. 301–327, reprinted as chapter 3 of Moore, Educating Oneself in Public, supranote 4.

8 H.L.A. Hart, “Comment”, in R. Gavison (ed.), Issues in Contemporary LegalPhilosophy (Oxford: Oxford University Press, 1987), at pp. 36–40.


II. TWO LEGAL EXAMPLES

A. Singular Legal Propositions of American Statutory Law

I shall here attempt the always dangerous feat of following my ownadvice and propose two sorts of legal phenomena for consideration.The first are the kinds of laws that U.S. lawyers call “the law ofa case” and what legal theorists often call singular propositions oflaw.9 Despite Wittgenstein’s caution about bad philosophy resultingfrom an insufficient diet of examples, many legal theorists have afew favorite cases. One of mine is Kirby v. United States.10

In Kirby a state sheriff (Kirby) was arrested for “obstructing orretarding the passage of the U.S. mail,” a felony under a federalstatute passed in 1790. What Sheriff Kirby had done was indeed, inordinary speech, an obstructing and a retarding of the passage of theU.S. Mail: he had stopped a riverboat carrying a federal mail carrierand his mail, and taken both off the boat. This no doubt slowed thatparticular mail somewhat in reaching its destination. Kirby pointedout that the federal mail carrier he had stopped was wanted formurder, that he (Kirby) had arrested him for that crime under a validstate arrest warrant, and that if Kirby had not so acted the murderousmail carrier would have escaped the state’s jurisdiction and probablyarrest altogether.

The U.S. Supreme Court decided that Sheriff Kirby was notguilty of the crime of obstructing or retarding the passage of the U.S.Mail. The Court did not do this because of some defense of Kirby’ssuch as the modern defense of balance of evils; rather, the Courtreached this result as a matter of construing the federal statute’sdescription of the actus reus of this crime. Further, the Court didnot adopt its construction of this statute in light of the state murder

9 I deal with singular propositions of law generically, and with the singularproposition of law in the Kirby case specifically, in Moore, “Law as Justice”,Social Philosophy and Policy 18 (2001), pp. 115–145, reprinted in E.F. Paul,F.D. Miller and J. Paul (eds.), Natural Law and Modern Moral Philosophy(Cambridge: Cambridge University Press, 2001).

10 74 U.S. (7 Wall.) 482 (1869). Kirby has been one of my work horses fora long time. In addition to “Law as Justice”, supra note 9, see also Moore,“A Natural Law Theory of Interpretation”, Southern California Law Review58 (1985), pp. 277–398, at pp. 386–387; Moore, “The Semantics of Judging”,Southern California Law Review 54 (1981), pp. 151–294, at p. 277.

LEGAL REALITY 625

statute, allowing the later, more specific murder statute to carve outan exception in the federal statute; given the Supremacy Clause ofthe federal Constitution, no such accommodation of state law bya federal statute was warranted. Rather, the Court viewed Kirby’sliteral obstructing of the mail as not being a legal obstructing. Para-phrasing Blackstone and Aquinas, the Court thought the “spirit” ofthe statute trumped the “letter” of the statute so that Kirby was notguilty.

The singular proposition of law on which I wish to focus is thisone: “Sheriff Kirby was not guilty of obstructing or retarding thepassage of the U.S. Mail.” Such a proposition is singular in that itapplies 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 toSheriff Kirby for other actions. Such a proposition is a legal propo-sition in that it predicates a legal property to Sheriff Kirby. Kirbypossessed the ordinary property, having obstructed or retarded thepassage of the U.S. Mail; yet he did not possess the legal propertyof 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 tosome federal judges to whom I have taught this case) that the U.S.Supreme Court correctly decided Kirby; Kirby should not have beenheld to have violated the federal statute. Second, assume (contrary tosome legal positivists) that the singular proposition of law – Kirby isnot 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, assumewith me: (a) that singular propositions of law have a truth valueprior to a court’s decision in that case; and (b) that the truth valueof this singular proposition of statutory law did not change with thecourt’s decision – it was true before and true after. Third, assumethat 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 whichsaid, “no one shall obstruct or retard the passage of the U.S. Mail,”and no subsequent Congress had amended or repealed that statutorylanguage; (2) the semantic fact that (under almost any semantictheory) what Sheriff Kirby did would be within the extension ofthe ordinary English predicate, “is an obstructing or retarding of


the passage of the U.S. Mail”; (3) the moral facts that giving greatweight to the ordinary meaning of the words appearing in validlyenacted statutes in the interpretation of those statutes is correctbecause it furthers democracy, liberty, fairness, and utility; (4) themoral fact that it is (instrumentally) good within a federal systemto have unimpeded passage of mail; (5) the partly moral, partlycausal, partly linguistic fact that the function of the federal statutewas to achieve unimpeded passage of mail through the several statescomprising the federal union; (6) the partly moral, partly causalfact that exempting people like Sheriff Kirby does not serve thefunction of the statute and is therefore in that respect bad; (7) themoral facts that getting murderous mail carriers like this one offthe street (or off the river) is an instrumental good, that punishingsuch guilty murderers is an intrinsic good, and that not punishinginnocent people like Kirby is also an intrinsic good; (8) the moralfact that the goods in (7) in this case outweigh the goods in (3) and(6).

I feel entitled to ask for these three assumptions here because Ihave argued for each of them at some length elsewhere.11 I realizethat the three assumptions together argue strongly for some kind ofvalue-laden (“natural law”) view of singular propositions of Amer-ican statutory law. But in this paper I fully intend to beg thatquestion. Assuming some such natural law account of these legalpropositions is true, then in some sense the legal property in questiondepends on both moral and non-moral properties. My question inthis paper is, just what sense is this?

One may have noticed that my eight facts group themselvesnaturally into three “ingredients” in an overall theory of statutoryinterpretation: the ordinary meaning of the words and sentences inEnglish, the purpose of the statute, and the all-things-considered,“safety valve” question.12 Recognizing that this is not yet acomplete theory of statutory interpretation, other facts could also berelevant, corresponding to other ingredients in a theory of statutoryinterpretation. Thus (moral and historical) facts about prior inter-pretations of the statute by other courts or administrative agencies,13

11 See citations, note 10 above.12 Ibid.13 “A Natural Law Theory of Interpretation”, supra note 10, at pp. 358–376.

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historical facts about the “essential context” in which the statutewas passed,14 linguistic facts about the rules of normal conversa-tional implicature,15 historical cum moral facts about the existenceof tipping principles, epistemic tie-breaker rules, or burden of proofrules about law, etc.16 Despite the greater accuracy of including suchadditional facts, in this enquiry one can make do with the eight factsabove-described, which are the ones needed to apply the three mainingredients in the interpretation of any statute.

It might be objected that my list of relevant facts is incompletein another dimension as well. In adapting some such theory of inter-pretation to the constitutional context, Richard Fallon has urged thatmy theory lacks any specification of priority or combination rulesbetween the various ingredients in the overall interpretive theory.17

Yet it is important to see that this – at least at the level of generalityof the facts as I have stated them – would be a doomed ambition. Thefacts of lexical and compositional semantics, the fact about whatparticular rules are good for (their function or purpose), the factsabout the costs to all other values of certain legal results, are toovarious in their weightiness in different cases to be captured by anygeneral rules of combination or priority.

Rules of combination, such as a simple conjunctive or disjunctivetest, are obviously inadequate. The correct interpretation does notdemand that all the ingredients line up in one direction; eachingredient, in other words, is not necessary to a correct interpre-tation. Likewise each ingredient is not sufficient – no matter howplain the ordinary meaning of some statutory phrase, that otheringredients point strongly against the “plain meaning” interpretationcannot be ignored in arriving at singular legal propositions like thatin 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 isolateordinary meaning, essential context, and purpose, for example, asnecessary elements of one sufficient set, recognizing that there couldbe other sets sufficient (so that this first set is not necessary). Eachitem in such a list is not necessary to the set, nor can one generalizethat the set will always be sufficient for a correct interpretation ifthese factors line up.

Priority rules that order conflicts between ingredients are alsonot plausible. The plain meaning rule, for example, would makeordinary meaning lexically prior to the intent of the legislature or ofanything else.19 As a heuristic this is perhaps defensible (althoughas a heuristic the reverse is perhaps even better, as Judge Posnerurges in his advice to judges to figure out what the statute aims toprevent and only then closely look at the wording).20 But, in termsof the right-making characteristics for a judicial decision, no suchexclusion is possible or desirable.

We thus can expect no precision in how to combine the verygeneral moral, historical, scientific, and semantic facts that make alegal interpretation correct. The best we can do with these facts is togive a list of them, realizing that their relative importance and modeof combination in determining the correct outcome in any given casewill be unique to that case.

B. General Legal Propositions of American Common Law

My second example is the Good Samaritan rule of the Americancommon law of tort. It is hornbook law today that, while one gener-ally owes no affirmative duties of aid to strangers yet where onehas caused (innocently or culpably) the victim’s peril, one does owesuch a duty My case illustrating this truth of the common law of tortsis Union Pacific Ry. v. Cappier,21 decided by the Kansas SupremeCourt in 1903.

19 At least as the rule is formulated in such classics as Tennessee ValleyAuthority 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).

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In Cappier a young boy, Irvine, trespassed onto the defendantUnion Pacific’s railroad line. He was hit but not killed immediatelyby one of defendant’s trains. Rather, young Irvine had an arm and aleg severed by the wheels of the train. Defendant’s engineer stoppedthe train, removed Irvine from the tracks, and (for reasons whichwere disputed) went on. Irvine bled to death, and his mother broughta wrongful death suit against the railroad.

In denying liability, the Kansas Supreme Court found that theUnion Pacific had not culpably caused Irvine’s peril (of bleedingto death). Because of the no-duty-to-trespassers rule typical of thetime, the railroad was not negligent in failing to see Irvine in timenot to hit him, and the trial judge so held in non-suiting plaintifffor her cause of action in misfeasance. Recognizing that the railroadhad a strong moral duty to render aid to one that it had innocentlycaused to be in peril, the Kansas Court nevertheless held there to beno corresponding legal duty and thus no liability for Irvine’s deathunder the plaintiff’s second cause of action for nonfeasance.

The general proposition of law which I wish to examine is thisone: those who innocently cause another to be in peril have anaffirmative duty to rescue that other from that peril, so long as theycan do so at reasonable cost to themselves. Such a proposition isgeneral in that it lays down a rule to govern all persons, not justthe litigants in a particular case. Such a proposition is legal in thatit predicates a legal duty on all those who fall within its factualtriggers.

One might legitimately wonder how this general proposition oflaw relates to the Cappier case in which the court seemed to holdjust the opposite. The connection is via the common law power ofoverruling. Suppose a case arose today “on all fours” with Cappier’sfacts. Although the matter is not free from doubt, my guess is thatthe law of Kansas to be applied to this second case is the propositionI have quoted, and not the opposite proposition to be found in the1903 opinion. Given the greater experience with positive duties tothose whose risk we have created, and given correspondingly greaterinsight, 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 needto make some assumptions. First, I assume that the hypothetical,overruling decision of my hypothetical second case is correct. Theerror of the Kansas Supreme Court in 1903 was serious enough thatit should be overruled, despite the costs to the rule of law valuesgenerally justifying deference to precedent. Second, I assume thatthe general proposition of law above stated is and was true prior toany overruling court recognizing it as true in a decision overrulingCappier. That is, assume: (a) that there is some law to be applied tomy hypothetical second case; and (b), that overruling decisions areapplied retroactively, both to the facts of the overruling case and toall other cases. While the overruling does not change the law of thecase for Cappier herself, the general proposition for which Cappierstands is recognized as always having been false, as never havingbeen the law of Kansas. Overrulings, in other words, do not changethe law; they only discover for the first time what the law reallyis.

Third, I assume that the truth of the general proposition of lawabout affirmative duties of aid is related (in some way) to thefollowing non-legal truths:

1. The historical facts that in 1903 the Kansas Supreme Courtreversed the jury verdict in favor of Estelle Cappier on the factsof that case.

2. The moral fact that my imagined second case is similar enoughto Cappier (in that it shares morally relevant properties) so thatone could not find a morally justifiable basis to distinguish thesecond 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 tofollow Cappier and not overrule it.

4. The moral facts that corrective justice is served if those whobreach strong moral duties pay for the harms that are caused (orwere not prevented) by the breach, and that strong moral dutiesof rescue are owed to those we ourselves place in peril, howeverinnocently.

5. The moral fact that the good of corrective justice in (4) is moreimportant than the goods of precedent in (3), i.e., Cappier issufficiently in error that it should be overruled.

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It is this combination of historical and moral facts that make it thecase that the general proposition of law quoted earlier is true, and itsnegation, 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 argumentsof mine as to how or why a natural law theory of precedent iscorrect.22 Assume with me it is, and then ask the question thatinterests me here: in what sense does the general proposition of lawdepend on the historical and moral facts listed above?

The list of facts here is doubly incomplete as it was for singularpropositions of statutory law. It is incomplete first because otherfacts could be relevant here. In particular, there are a welter of factsbehind the “sufficiently similar” fact (2) above. These include moralfacts, such as the scalar nature of the value of the equality and theresulting diminishing value of equal treatment the less like a secondcase is to a first one;23 also included are historical facts, such aswhat other decisions there are in Kansas that might have “tugs ofequality” of their own, etc.24 Still, the list we have is illustrative andwill 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 plainmeaning in statutes, criteria have certainly been proposed forcommon law overrulings as well. The U.S. Supreme Court hasrecently articulated a list of criteria for overruling in the Consti-tutional context.25 Yet as Justice Scalia (of all people!) has pointedout, any such test for overruling cannot capture the crucial factorhere: 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 LaurenceGoldstein (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, supranote 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 dependson 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 moral andnon-moral facts, the weight of each of which varies with each case.

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 factson which they in some sense depend? More particularly: (1) Whatmakes the singular proposition of American statutory law – thatSheriff Kirby was not guilty of obstructing or retarding the passageof the U.S. mail – true? The reference of this singular term we under-stand; “Sheriff Kirby” refers to a particular person (although thiswill not always be true; compare: “this contract is valid.”) Yet whatdetermines the extension of the legal predicate? If a legal obstructing(or retarding the passage of the U.S. mail) is not the same as anordinary obstructing, what is it and how does it relate to the non-legal, ordinary kind of obstructing? Similarly, by virtue of what inthe world is the general proposition of American common law –that legal duties of rescue are owed those placed in peril by our ownactions, however, innocent – true? If a legal duty to render aid is notto be identified simplicatur with a moral duty to render aid, whatis it and how does the legal duty relate to the moral duty? I shallexamine 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 thinkof to some question, a tempting move is to think our question ill-formed in some way. After all, a question that makes no sense isa question we need not trouble ourselves to answer. Consider byway of example Gilbert Ryle’s famous attempt to suspend ques-tions of reference and identity about minds.27 Ryle urged that weneedn’t answer the intractable questions of to what mental stateterms like “intention” referred and whether intentions were identicalto certain brain states; these questions of reference and identity

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

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were ill-formed because they elided together terms from differentcategories of discourse. To ask whether brain states and mentalstates both exist, and, if so, what relations might hold between them,was supposed to be nonsensical – a “category-mistake” – in the sameway that comparing the sun and the average-age of death for theircapacity to rise makes no sense.

I call this the ostrich position because it refuses to look for thereference and extension of legal terms and because it refuses tolook for any relation between legal and other, non-legal things. Inethics and in law the dubious honor of occupying the ostrich positionbelongs most notably to Ronald Dworkin.28

Most of us believe that the answers to metaphysical questionsabout minds, morals, laws, and lots of other things, come in justa few familiar packages: one is either a realist about such things,of either the monist (naturalist) or dualist (non-naturalist) stripe, orone is an anti-realist of either the skeptical, the Peircean, or thesecondary quality kinds. These five (skeptical and non-skeptical)answers I explore below. Dworkin, however, apparently believesthat we needn’t choose between these metaphysical positions, eitherbecause the question to which these purport to be answers makes nosense or because such answers have no implications for our prac-tices of psychology, ethics, or law. Dworkin thus characterizes theentire metaphysical business as a “preliminary dance” that is “sillyand wasteful;” it “neither adds to nor subtracts from the business athand.”29

Dworkin’s arguments for the ostrich position I have examinedbefore.30 His main argument is to deploy an external/internal

28 Tom Nagel and Nicos Stavropoulos have been heavily influenced byDworkin 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 isunfortunate because each of these otherwise sophisticated philosophers have (orhad at least) naturalist intuitions. Tom Nagel was once a type-identity naturalist, atleast about mental states (Nagel, “Physicalism”, Philosophical Review 74 (1965),pp. 339–356), and Nicos Stavropoulos seems attracted to both superveniencenaturalism and a secondary property analysis of both law and ethics, as I explorebelow.

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 proposi-tions are internal to some practice such as law.31 External criticismsand external supports for such practices are either senseless, or atleast bootless. All metaphysical questions of reference and identityare taken to be external, whether asked by the skeptic who deniesthe existence of things like legal duties or by the metaphysical realistwho asserts their existence and their identification with other things.

Consider this variation of an example of Dworkin’s andStavropoulos’ to illustrate the argument. Suppose an art criticlooking at a painting says, “that is not a very accurate depiction of aunicorn.” Stavropoulos urges that “it is intuitively inappropriate for abiologist to object that unicorns do not exist. It seems that we knowa priori that this is inappropriate . . .”32 Dworkin would no doubtwrite off the biologists’ skeptical remark as an external criticism,one the art critic could ignore as senseless or at least irrelevant tothe practice of art criticism.

Such examples illustrate the affinity of Dworkin’s use of anexternal/internal distinction with Ryle’s old use of the doctrine ofcategory differences. Both seek to insulate one realm of discoursefrom criticism (or support) by another. They are protective devices,seemingly allowing us to do our ethics, law, psychology, or artcriticism without worry about “external” questions of reference andidentity.

The problem for Dworkin is the same as it was for Ryle: whatin language use, or in any other aspect of a practice, could showus that a criticism or a support was “external” or “in a differentcategory?” How, Quine33 asked of Ryle, could Ryle possiblyexamine two usages of “exist,” – so as to be able to conclude thatin “bodies exist” and “minds exist” we use “exists” in different

in Modern Theory: A Turn for the Worse?”, Stanford Law Review 41 (1989),pp. 871–957, both reprinted in Educating Oneself in Public, supra note 4. Therelevant 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 similarexposition and critique of Dworkin’s “external” argument, see also Leiter,“Objectivity, Morality, and Adjudication”, in B. Leiter (ed.), Objectivity in Lawand 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.

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senses – without looking to the reference of each? Similarly, howcould Dworkin know that the biologist’s skepticism was “external”without knowing that “unicorn” as she used it referred to one thing(a biological species) whereas “unicorn” as used by the art criticreferred to something else (an object of those conventional beliefswe call myths)?

One can see this by imagining a rather different biologist criti-cizing the art critic. Suppose by “unicorn” this biologist did notrefer to a biological species; rather, he was referring to the objectof mythical beliefs. By denying that unicorns exist, he was eitherdenying that the myths exist or denying that the myths in questionever mention or conceptualize unicorns. Now his negative existen-tial statement is hardly senseless or bootless: if such myths do notexist, then there is no possibility of an artistic rendering of a unicornbeing good or bad. Now his criticism is “internal,” viz, relevant.But one knows this only by asking the questions of reference andidentity: to what does “unicorn” refer, and does it refer to the samekind of thing in each of its two usages?

“External” thus is the label Dworkin can put on senseless/irrelevant questions after he has decided on other grounds that theyare senseless/irrelevant; “external” cannot be a reason to write offsuch questions. Stavropoulos appears to agree with me on this. Hereiterates Quine’s point, that practices as such do not individuateambiguities by themselves.34 One has to get one’s hands dirty inmetaphysics to see what is being referred to, and whether it isthe same as some other putatively distinct thing, in order to detectthe ambiguities of reference that can make some criticisms seemto be “external” or “category mistakes.” Rather oddly, he thinksthat in this he and I disagree and that he and Dworkin agree. Yethe and I disagree only if I subscribe to what Stavropoulos calls“discourse autonomy” – and attributing “discourse autonomy” to meis pretty absurd. Second, Stavropoulos and Dworkin can agree onlyif Dworkin gives up his convention-grounded “external” criticismof moral and legal metaphysics. No doubt interpreting Dworkin tobe “the best he can be” would eliminate his “external” argument,but the real Dworkin to whom I was referring is an ostrich preciselybecause 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 theExistence of Legal Things

Unlike the ostrich, the skeptic at least grants the ontological ques-tion the compliment of making sense and having relevance. Theskeptic, however, denies that the entities, qualities, or relations inquestion actually exist. Such a skeptic can readily admit that whenwe say things like, “He went downtown because he intended toget a haircut,” “he did not rescue anyone because he is a morallycallous fellow,” “the judge decided against Cappier because no legalduty was owed to him by the railroad,” we seem to be committedto the existence of things like intentions, moral qualities, and legalobligations. Yet as the late Willard Quine once cheerily remindedus, “many of our casual remarks in the ‘there are’ form would wantdusting up when our thoughts turn seriously ontological.”35 Skepticstend to run with such a thought, hoping to show us how we can haveeverything we want without being committed to the existence ofqueer things. At least this is the happy skeptic, who I examine priorto encountering his more pessimistic cousin.

1. Happy skepticismsThe happy skeptic is a skeptic because he denies that your favoredentities exist; he is a happy fellow nonetheless because he claimsthat you never really believed that such things did exist. You weremisled by the appearances of your own practices.

a. The fusion strategy. One such happy skeptic is the fusionstrategist. The “fusionist” (if I may) focuses on phrases like, “onbehalf of” and “for the sake of.” Imagine a metaphysical enquiryinto the nature of behalfs and sakes.36 Such an enquiry is misled bythe syntactic category of the words, “behalf” and “sake.” Becausethese are nouns, it may seem they refer to some things, and awaywe go chasing the question of the sort of things behalfs and sakes

35 W.V.O. Quine, Ontological Relativity and Other Essays (New York:Columbia University Press, 1969), at p. 100.

36 Quine, Word and Object, supra, note 33, at p. 244. Dan Dennett adds dints(as in, “by dint of”) and troths (as in “I pledge my troth”), as examples of spuriousthings named by degenerate nouns. Daniel Dennett, Content and Consciousness(New York: Humanities Press, 1969), p. 7.

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might be. The fusionist is a skeptic in that he denies the existence ofbehalfs and sakes. Yet he is a happy skeptic because anyone usingthese words in these ways never was committed to the existence ofsakes or behalfs. To be told there are no behalfs or sakes should notbe a disappointment, in other words, to anyone who understands hisown ontological commitments.

The fusionist is persuasive about behalfs and sakes, for “behalf”and “sake” do not occur in referential position in the phrases inwhich they appear. We know this because the phrases are “fused,”that is, the unit of semantic significance here is not the word but thephrase, and we know this because “behalf” and “sake” do not getused outside of these limited phrases. A somewhat more compli-cated example is provided by what Quine called syncategorematicadjectives.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 thephrases are fused so that the units of semantic significance are thewhole phrases. Neither phrase refers to small people, nor does itascribe intellectual power to them; rather, the reference of the fusedphrase is to those with less than average intelligence. The reasonthis is a somewhat more complicated example is because both theadjectives and nouns making up these fused phrases have other,non-fused usages. E.g.: “For a dwarf, he is very intellectual.” In thelatter usages – what Quine calls their attributive uses – the words,do occur in referential position so that it is no mistake to ask afterthe 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 byhis former tutor, Gilbert Ryle) once urged that mental state termswere non-referential because occurring only in fused phrases.38

Similarly, Herbert Hart in his inaugural lecture at Oxford (while hetoo was heavily influenced by Ryle’s desire to suspend metaphysicalquestions because of purely linguistic considerations) urged that itwas a mistake to seek either the meaning or the reference of legalwords like “right,” “duty,” etc. Rather, Hart urged, we must regardwhole 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 saveus from the error of asking after what sort of thing a legal rightmight be. We need to be saved from such an ontological question,because here Hart was a skeptic: there is nothing in the world thatcorresponds to the word “right,” no “counterparts in the world offact which most ordinary words have . . .”40

Much of Hart’s motive for focusing on sentences and not wordshas to do with his non-cognitivist speech act semantics, dealt withshortly. Still, we can see the temptations of the fusion strategytugging on Hart as well. Hart asks us what we would think of anontological enquiry into the nature of tricks in the game of bridge.41

Hart rightly supposes such an enquiry to be senseless or bootless,because “trick” (in its bridge-game sense) is only used in the phrase“take a trick.” The trick is to see that nothing is literally taken whenone takes a trick in bridge. The whole phrase refers to an action, butits component words do not. The same, Hart concludes, is true for“right” as used in law.

There is nothing wrong with the fusion strategy as a means ofrevealing our true ontological commitments. A metaphysics ofdints, sakes, or tricks would be a joke. There is a real problem inapplying the strategy to either psychology or law, however, forthe linguistic data do not seem supportive. Neither “intention,”“desire,” “anger,” or other words of mental state, nor “right,” “duty,”“laws,” or other words of law, seem limited in the contexts of theirappropriate use. Nor is there a syntactic ambiguity in the usage ofsuch words, as there is for “intellectual dwarf” and its cousins, sothat there is no separate sense of a syntactically ambiguous phrasethat is fused. Unlike “trick,” “dint,” or “sake,” psychological andlegal terms seem to operate like normal nouns to which many verbsand adjectives may be attached. In short, there is no fusion of thesewords into stock phrases, tempting us to regard the phrase as thesmallest unit of semantic significance. Such a strategy thus cannotmake us happy skeptics and neither should it make us skeptics at

39 H.L.A. Hart, Definition and Theory in Jurisprudence (Oxford: ClarendonPress, 1953), reprinted in Hart, Essays in Jurisprudence and Philosophy (Oxford:Oxford University Press, 1983).

40 Ibid. at p. 23.41 Ibid. at p. 33.

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all: “legal right” looks referential, so that no linguistic fact about itsusage should convince us that such things do not exist. Unless someother linguistic strategy comes to the rescue, we will have to cometo our skepticism metaphysically.

b. The non-cognitivist skeptic. The fusion strategist is something ofa mere warm-up act for a by far the more influential type of happyskeptic, the non-cognitivist. Like the fusionist, the non-cognitivist isa skeptic in his denial that mental, moral, or legal things exist; heis a happy skeptic because he believes careful attention to languagewill show that none of us ever believed such things to exist anyway.Like the fusionist, he will show us this because he believes he canisolate non-referential uses of language. Unlike the fusionist, thenon-cognitivist’s test for non-referential use is built on a kind ofspeech-act analysis.

Consider some examples of non-cognitivisms. In the sentence, “Iam in pain,” Wittgenstein told us, the word “pain” does not refer;rather, the whole expression is the equivalent of saying “ouch.”42

“I am in pain,” like “ouch,” expresses or signals the discomfort ofthe speaker; “pain” no more than “ouch” refers to something in thisnon-descriptive speech act. One thus doesn’t need a theory of pain’snature any more than one needs a theory of ouch’s nature, for we arenot really committed to there being any such thing(s).

Ethics is the more famous home of non-cognitivist analyses. Onthe traditional emotivist analysis, saying “bullfighting is wrong”is to refer to the institution of bullfighting but not to predicatea property of it, namely, its wrongness. Rather, it is to expressdisapproval of bullfighting; perhaps also to recommend to othersthat they similarly disapprove of it; perhaps also to prescribe tooneself and others not to engage in or encourage that form ofactivity.43 In any case, such expressive, commendatory or prescrip-

42 Wittgenstein, Philosophical Investigations §244, 3rd edn. (Oxford: BasilBlackwell, 1958). The “signal theory” of first person mental state avowals isdiscussed briefly in H.L.A. Hart and Stuart Hampshire, “Decision, Intention, andCertainty”, Mind 67 (1958), pp. 1–12.

43 See generally A.J. Ayer, Language, Truth and Logic (1936), chap. VI; C.L.Stevenson, Ethics and Language (Cambridge, MA: Harvard University Press,1944); R.M. Hare, The Language of Morals (Oxford: Oxford University Press,1952); Hare, Freedom and Reason (Oxford: Oxford University Press, 1963).


tive uses of the language were taken to preclude any description ofanything such as a moral property of wrongness. Since the predicate,“is wrong” thus does not refer, no theory of the nature of wrongnessis wanted or needed.

In law, Herbert Hart is the most famous proponent of a non-cognitivist analysis of legal discourse. Hart held, for example, thatour usage of action language in law was not to describe some classof events; rather, expressions like, “A did it,” have an ascriptivefunction: they are used to ascribe responsibility to A.44 In hisinaugural lecture at Oxford Hart broadened his analysis. Like theumpire saying, “you are out” in baseball, the judge saying, “SheriffKirby is not guilty of obstructing or retarding the passage of theUS. Mails,” is to affix liability (or an immunity to liability) to thepersons referred to. In such cases, the speakers make it true by theirpronouncements that an actor is responsible, a batter is out, or alitigant is not guilty. There is no truth of the matter antecedent tosuch pronouncements and one thus does not want or need a theoryabout the nature of responsibility (in terms of action), of outs, or oflegal 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 asthe “speech-out fallacy.”45 This is the fallacy of inferring that somediscourse can’t be descriptive if it can be shown to be performingsome other function. As Peter Geach directed this criticism atHart,46 what possible reason is there to think that because thesentence, “A did it,” is typically used to ascribe responsibility, that itis 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 ascriberesponsibility, express disapproval, etc. It also describes the actionthat person did.

44 H.L.A. Hart, “The Ascription of Responsibility and Rights”, Proceedings ofthe Aristotelian Society 49 (1949), pp. 171–194.

45 William Lycan, Judgement and Justification (Cambridge: CambridgeUniversity 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.

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The speech-act fallacy form of criticism may seem to go onlythis far: it tells the non-cognitivist that she cannot derive herskepticism from her insight about language. She cannot infer fromcertain distinctive illocutionary act potentials47 typical of certaindiscourses, that the words used in such discourses do not refer.She has to arrive at her skeptical beliefs, that mental states, moralqualities, or legal relations do not exist, in some more metaphysicalway.

Yet the speech act criticism is more damning than this. To getat its true force, imagine a clear-headed non-cognitivist taking theapparent lesson of the speech act fallacy to heart. He reasons thusly:“In my own metaphysical analysis, I conclude that there are nosuch things as intentions, justice, or legal duties; therefore, if thediscourses are not just babble, then they must be made sense ofin 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 secondstep. Just because there is nothing to which one may refer doesnot mean that one’s language is not being used descriptively. Falsedescriptions are still descriptions because their authors are tryingto describe things. Non-cognitivism thus does not follow fromskepticism; there are, as we shall see shortly, skeptics who arenonetheless cognitivists about the relevant discourse.

What the non-cognitivist needs is some linguistic test for non-descriptive uses of language. Speech act analysis – when focusedon what J.L. Austin once called performative utterances, like “Ido” said in a marriage ceremony – held out the promise of such alinguistic test, but as we have seen the discovery of non-descriptivefunctions for language is no test of referential usage. The problemfor the non-cognitivist is that he has no other argument to convinceus that our “surface grammar” is not our real grammar about suchdiscourses. 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 attemptsto describe anything (and this is true independently of whether one

47 “Illocutionary act potential” was William Alston’s phrase referring to thekinds 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 expressionsare typically used to perform). The problem for non-cognitivists isthat the discourses of minds, morals, and law do not seem on theirface non-descriptive. Needed by the non-cognitivists is some devicewhereby he can show that the surface features of our usages aredeceptive.

The device chosen by some non-cognitivists in ethics is theexternal/internal distinction we saw before with regard to the ostrichposition. Some non-cognitivists (including prominently SimonBlackburn) would adapt this device so as to salvage our seem-ingly descriptive ethical discourse while at the same time promotingnon-cognitivist and skeptical meta-ethics. One might picture such“quasi-realism” in the following way. On Monday through Fridaythe quasi-realist practices his ethics with full realist seriousness. Hedescribes moral qualities, makes judgments capable of being true orfalse, intends to refer to moral things, sees truth as correspondenceto the moral world, makes claims of knowledge, etc. Internal to hisown practice of ethics, he is both non-skeptical and cognitivist. Onthe weekends, however, he sits by Hume’s famous fire and musesabout the week’s work. What he concludes from these external,“meta”-enquiries is that there is no moral reality to which he couldhave been referring; indeed, he really was staining the world withhis projections and confusing his own stainings with independentlyexisting qualities. In addition, the seeming cognitivism of his work-week discourse was just a language game played because it is moreeffective in altering other people’s behavior than would be nakedcommands or expressions of desire. Really, however, that was allthat was going on.

We should probably rename this position “schizo-realism,” forit is schizophrenic (in the popular, non-psychiatric sense) betweencognitivism cum realism during the week and non-cognitivismcum skepticism on the weekend. The label highlights the obviousproblem: how does one normal person – that is, one lacking theamnesia typical of some forms of mental illness – believe both ofthese things? What keeps the weekend meta-ethics from infectingthe work-week ethics?

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Both Blackburn and Jeremy Waldron48 believe that we canseal off our meta-ethical weekend by denying sense to statementsattempting to import weekend non-cognitivism into work-weekcognitivism. Consider one of Blackburn’s examples of such abridging statement: “if we had different attitudes [about kickingdogs], it would not be wrong to kick dogs.”49 In such example thespeaker is seemingly saying that his internal, work-week substantivemoral judgments would be affected by something his weekendmeta-ethics tell him is all there is here, viz, attitudes and theirexpression.

Blackburn and Waldron distinguish two senses to such bridgingstatements, a justificatory and a causal sense. In the justificatoryreading, the speaker would be “committed to saying that his ownfeelings justify the judgments that she makes.”50 This is an internalstatement of ethics, and, as Blackburn and Waldron both point out,it is an evaluation that they as well as anyone else can and shouldreject. As a matter of substantive ethics, they no more than anyoneelse need think that their aversion to kicking dogs is the feature ofthat act that makes that act wrong; they like anyone else can thinkthat the pain to the dog and the cruelty of the kick are what makes itwrong to kick dogs.

Blackburn and Waldron will also allow a kind of causal or non-justificatory reading of the quoted counterfactual statement. AsWaldron construes this sense: “I only make the moral judgments I do. . . because of how I feel. If I felt differently, I would make differentmoral judgments.”51 If Waldron felt differently about kicking dogs,he would judge that act’s morality differently. This is a purelyexternal 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 judgingsubject (an external matter).

48 Blackburn, “Rule-Following and Moral Realism”, in S. Holtzman and C.Leich (eds.), Wittgenstein: To Follow a Rule (Cambridge: Cambridge UniversityPress, 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 thebridging sort of statement the dog-kicking statement seems on itsface to be. It seems to say neither of the things, purely internal orpurely external, that Blackburn and Waldron want it to say; rather,it seems precisely to cross the supposed divide and say that sinceattitudes are all there are for a skeptic-non-cognitivist, differentattitudes make true different moral judgments.

What Blackburn and Waldron need is some argument that deniessense to such bridging, counterfactual statements when taken intheir most obvious way. Apparently, pace Ryle, there is some kindof category-mistake involved in conjoining talk in one category(internal, ethical talk) with talk in another category (external, meta-ethical talk). Yet as we saw before with both Ryle and Dworkin,there is nothing in language use that can show us such categoricaldivides. If we want to show a true category mistake, we have to seewhat is referred to in order to see whether an elision of ambiguityhas occurred (as with Stavropoulos’ “unicorn” example).

Blackburn has seemed to have taken this criticism to heart, forhe has offered a more metaphysical defense of why true bridgingstatements are impossible:

The crucial question . . . is whether the projectivist wilfully refuses to hear theexternal reading. . . . There would be an external reading if realism were true.For in that case there would be a fact . . . whose rise and fall and dependency onothers could be charted. But antirealism acknowledges no such state of affairsand no such issue of dependency. . . . Talk of dependency is [internal] moral talkor nothing.”52

Now it seems we can’t bring internal evaluations out to our externalmeta-ethics because of the truth of non-cognitivist skepticism: onthe weekends, moral qualities don’t exist and moral words do notrefer. This is a metaphysical, not a linguistic argument, becauseit assumes we have asked after the referents of moral terms anddiscovered that there is nothing there.

This is a very odd response, for at least two reasons. First, itdoes 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 inQuasi-Realism (Oxford: Oxford University Press, 1993), at pp. 172–174.

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of moral judgments would be different. Inside, moral judgments aretreated with full realist seriousness, so that they are capable of beingtrue or false, etc.; so here we cannot assume away realism. And oncewe assume there is a moral truth about kicking dogs, why must suchstatements as the one Blackburn imagines be given a substantivelymoral, justificatory sense rather than the causal sense obviouslyintended? Blackburn’s answer is that “as soon as one uses a sentencewhose simple assertion expresses an attitude, one is in the businessof discussing or voicing ethical opinion.”53 Yet the bridge statementdoes not express an attitude – it observes an alleged metaphysicalconnection between the truth of an ethical judgment and that whichallegedly makes it true. Second, Blackburn’s argument is a rejoinderto an argument why his brand of non-cognitivism/skepticism isfalse. 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 istrue, then it is true, but saying this – even while clicking one’s heelsthree times – does not make it so.

Ethics has undoubtedly been the home of the most developedliterature on non-cognitivist brands of skepticism. No equallysophisticated non-cognitivist analyses of law have emerged, in partbecause of the lesser philosophical talents or interest of practitionersof skepticism in law. Hart was the exception, but once he appreciatedthe speech act fallacy he abandoned the non-cognitivist strains in hisearly writings.54 There are, however, the Legal Realists who them-selves sometimes can be interpreted as legal non-cognitivists as wellas skeptics. I refer not to the views of Holmes and Frank, who wereskeptics of a kind (see below). Rather, I refer to those proponents ofthe “functionalist” analyses of legal concepts, analyses that focusedon the consequences of authoritative use of legal concepts to theexclusion of any descriptive meaning.

Occasionally the Legal Realists sounded like their emotivistcousins in ethics, recognizing the expressive functions of legalwords:

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 attitudes ina political or a judicial audience.”55

More often the Legal Realists, like Hart, focused on the perform-ative force of the utterances of judges as they decided cases.Unlike the emotivists and the early Hart, however, the Realistsdid not base their skepticism on these observations about the non-assertorial, illocutionary speech acts of judges. The Legal Realist’sskepticism about things legal having a nature came from other,non-speech-act-analysis, quarters.

What makes the Legal Realist nonetheless a kind of non-cognitivist skeptic was their focus on the perlocutionary speech actsinvolved in judicial use of legal language. Legal concepts are, inHohfeld’s old phrase, “dispositive” – like Janus, the old Etruscangod, they look in two directions at once for their meaning: bothto the consequences of their authoritative pronouncement and tothe criteria for their correct application. A legal “obstructing orretarding of the passage of the U.S. Mail,” for example, has certainlegal consequences (viz, punishment) attached to its authoritativepronouncement by a judge. In short, legal remedies seem to be verymuch a part of the meaning of legal concepts.

In their guise as non-cognitivist skeptics, the Legal Realists madethe remedial aspect of legal concepts all there was to such concepts.They did this, first, by being skeptical that concepts like a (legal)obstruction (or contract, title, ownership, corporation, domicile)referred to any things whose nature could guide judgment. Thesewere “meaningless” words that literally were without referents.56

Such words in the jurist’s famous “heaven of legal concepts” lackedany direct empirical referents, and even as “logical constructions”they failed because of the indeterminacy in the bridge principlesthat purported to connect them to the world of observable fact.57

55 Felix Cohen, “Transcendental Nonsense and The Functional Approach”,Columbia Law Review 35 (1935), pp. 809–849, at p. 812.

56 See, e.g., Alf Ross, “Tu-Tu”, Harvard Law Review 70 (1957), pp. 812–825. (Legal words like “ownership” are literally meaningless words that refer tonothing.)

57 For an overview of the various indeterminacies in law alleged to exist by theLegal Realists, see Moore, Educating Oneself in Public, supra note 4, at pp. 207–215.

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This was the negative existential thesis of the Legal Realists thatqualified them as skeptics. They had, secondly, a positive thesis thatmade them a kind of non-cognitivist, namely, that the real meaningof legal concepts lay in the legal consequences of such concepts’authoritative pronouncement.

Sometimes those legal consequences are simple because single.The legal consequence of finding a (legal) “obstructing or retardingof the passage of the U.S. Mail” is that penalty attached by theparticular federal statute. The legal consequence of having a “legalduty to aid one whose peril one has innocently caused” is theliability to pay damages equal to the injury not prevented. Often thelegal consequences are more complex. For domicile, for example,Walter Wheeler Cook argued that so many different consequencesattached in so many different legal contexts (personal jurisdiction,legislative jurisdiction for taxation, subject matter jurisdiction fordivorce, etc.) that domicile was hardly one concept at all.58 Forownership, the claim that the various incidents of ownership (right tomanage, duty to pay taxes, power to alienate, right to exclude, etc.) isall there is to the concept,59 has become so well accepted that evenmainstream theorists (who are in no sense Legal Realist/skeptics)analyze the meaning of the concept exclusively in terms of suchlegal consequences.60 Similarly, the view of ancient Roman law –that “legal person” means no more than “bearers of legal rights andobligations” – has become so plausible that other non Legal Realistslike Jeremy Waldron have bought the non-cognitivist line on thisconcept.61

The implication of adopting this kind of legal non-cognitivismshould 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. Sucha non-cognitivist analysis only tells us what the consequence willbe of a decision one way or the other; by having eviscerated anydescriptive content from the legal trigger for such consequences, thelaw gives us no reason to make the decision one way rather than theother. While the Legal Realists rushed to embrace this implicationso as to make plain the ethical dimension of legal decision,62 itscosts to those values we associate with the rule of law are obvious.

I do not here propose to go after the Legal Realist’s negativethesis that legal concepts have no descriptive meaning. That issurely a topic for another time, as well as one that has been donemany 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 bylegal rules, namely, the rules attaching various legal consequencesto legal concepts. It is this remedial fixing of legal concepts thatallows the Legal Realist the positive program of the “functionalapproach.” Yet the very same arguments making the Legal Realistsskeptical of the descriptive content of legal concepts should alsohave made them skeptical of the concepts’ remedial implications. If“(legally) obstruct or retard the passage of the U.S. Mail” doesn’tmean anything, why does “should be guilty of a felony punishableby 3 to 10 years in the penitentiary” mean something? That is, whywere the Realists such formalists about remedies? Why doesn’t theabove-quoted penalty clause allow a judge to invite Sheriff Kirby todinner, cut off his head, require him to quit smoking, as much as itallows a judge to send Kirby to the pen for 3 to 10 years?

Modest doses of legal non-cognitivism are surely sometimesgood medicine for certain concepts. As a general analysis, however,legal non-cognitivism threatens law similar to the way the oldernon-cognitivism in meta-ethics threatened ethics. That in eitherfield one occasionally finds a useless concept – one exclusivelydefinable in terms of its illocutionary or perlocutionary act potential– should not be a surprise but neither should it be the basis for awholesale revamping of the field.

62 Felix Cohen, “The Ethical Basis of Legal Criticism”, Yale Law Journal 41(1931), pp. 201–220.

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c. Skeptical reductions. There is a third kind of happy skepticwhose beliefs resist the classification scheme I have hitherto beenemploying. This is the “skeptic” who in truth does not deny theexistence of mental states, moral qualities, or legal relations. Quitethe contrary: he robustly commits himself to the existence of suchthings. Because of this, he is sometimes classified as a realist aboutsuch things.

Such “realism,” however, is purchased by a reduction no self-respecting realist should accept. Consider Hume on causation byway of example.63 Humeans are realists about there being thosekinds of uniformities in nature Hume called the regular concurrenceof certain types of events. Humeans then reduce causal laws to theseregularities, and further reduce singular causal relations to causallaws.64 Because of these reductions, Humeans are in a sense causalrealists. Yet our normal temptation is the right one here. Humeansshould be classed as skeptics about causation because they denythe existence of “causal glue” – the making-things-happen-stuff –at both the level of causal laws and at the level of singular causalrelations. Moreover, such Humeans are happy skeptics because theyclaim that one can go on as before talking about singular causalrelations, since what one (really) means is something ontologicallyrespectable in light of their reductions.

An example of such reductive skepticism about mental statesis the “logical behaviorism” of a generation ago in psychology.65

Unlike his “methodological behaviorist” cousin, to be discussedshortly, the logical behaviorist proposed his favored reductions (ofmental states to dispositions to behave) as analyses of what onereally meant by words such as “intention,” “desire,” “anger,” etc.

63 Saul Kripke’s example of a “skeptical solution.” Kripke, Wittgenstein onRules 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 andPhenomenology (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 independentexistence to mental states and the lack of any causal relationshipbetween them and behavior. Such a position is skeptical nonethelessbecause the behavioral reductions rob mental states of precisely thenature one supposed them to have, a nature featuring prominentlytheir phenomenological and causal properties.

In ethics the reductive skeptics are subjectivists and relativistsabout moral values. The subjectivist reduces value to individualdesire or moral belief, whereas the relativist reduces value toshared desires or shared moral beliefs. Painful as it is to us (real)naturalist-realists in ethics, sometimes such reductionist skeptics asGil Harman66 are classified with us, as a kind of naturalist-realism.67

Yet the reductions proposed leave so much of value out of valuethat one should classify the subjectivist/relativist as a skeptic. Indi-vidual (for subjectivists) or collective (for relativists) infallibilityabout morals, for example, seems to be an implication of thesepositions; yet the possibility of moral error, and the processes ofmoral reasoning we each go through to avoid such error, seems tobe a basic part of our experience with moral values.68 Similarly,meaningful disagreement, both between individuals and betweencultures, seems equally basic, yet subjectivism and relativism seem-ingly make such disagreement impossible.69 In these and other waysthe reductions of subjectivists and relativists leave out so much ofwhat moral values seem to be that they too should be classed asskeptics.

This last discussion reveals how the standard realist/skepticcriteria, in terms of ontological commitment, requires supplemen-tation by some loose, intuitive sense of what is essential to entitiesof a certain kind. Loosen that sense, and the reductive skeptic hereconsidered becomes a realist; tighten that sense (in the way dualistsare wont to do), and you can classify all naturalists, myself included,as reductive skeptics.

66 Gilbert Harman, The Nature of Morality (New York: Oxford UniversityPress, 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.

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In law the reductive skeptics tend to come in two groupings, asin ethics.70 First, there are famous reductions of law to the behaviorof single persons. I refer to the famous reductions of law to actualor predicted judicial behavior. On Jerome Frank’s view, there is nosingular proposition of law in Kirby until the U.S. Supreme Courtmade one such proposition true by its decision;71 on Holmes’ view,there is such a singular proposition of law in Kirby prior to theCourt’s decision but that law is simply a prediction of how the Courtwould decide that case.72 In both instances, Holmes, Frank, andthe entire generation of Legal Realists who followed them in thisrespect, identified law with something that unproblematically exists,viz, the (present or future) behavior of judges.

Such a reduction is skeptical because it seemingly leaves outwhat is essential to law, namely, that it be reason-giving. At thevery least, surely something has to give reasons for action – andstrong ones, “obligations” – to judges within a legal system if thatthing counts as law within that system.73 Frank’s silence-while-waiting-for-an-actual-decision, and Holmes’ predictions of judicialdecisions, cannot act as reasons for judges to make decisions oneway rather than another. As Hart noted, in their rush to ontologicalrespectability (at least from an empiricist’s point of view), the LegalRealists seemed to leave out something crucial about law.74

Brian Leiter and I have engaged in some minor skirmishing onthe historical question of how alive were the Realists to this criti-cism.75 We each no doubt have our favorite Realists for this purpose.Mine is Jerome Frank, who seemed unable to take the point despite

70 Although the groupings differ. In ethics, no one (to my knowledge) urges asubjectivism that reduces what is good to what someone else believes to be goodor to what someone else desires – except certain religions with respect to God.The analogue to the subjectivist in law, by contrast, does give such final say toothers, namely, judges. Still, in both cases goodness or legal liability are reducedto the psychological states of some one person or small group of persons.

71 Jerome Frank, Law and the Modern Mind (New York: Brentano’s, 1930).72 O.W. Holmes, Jr., “The Path of the Law”, Harvard Law Review 10 (1897),

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’sshould be Felix Cohen, who well understood that the predictivetheory of law could not be used by judges, or by those arguing tojudges; such judges, Cohen urged, were required to make moraljudgments not unlike those I sketched in Part II above.77 In anycase, the history interests me less than the logical space; to the extentanyone, Legal Realists included, reduces law to judicial behavior, heleaves out the essential reason-giving character of law.

The second kind of reductive skeptic about law parallels the rela-tivist in ethics. This is the view that reduces the law to the beliefs orpractices of a group of people, namely, the legal profession withinsome legal system. On this view, the singular and general proposi-tions of law I isolated in Part II are true if and only if some majorityof the legal profession (in the United States, for the federal lawproposition, or in Kansas, for the proposition of Kansas law) believeit to be true or practice law in such a way as to presuppose that itis true. This is the view that in earlier writings I called “convention-alist”78 and that Jules Coleman and Brian Leiter now term, “minimalobjectivity.”79

As Coleman and Leiter recognize, for certain items conven-tionalist reductions seem to be the appropriate metaphysics. Theirexample is, fashionable.80 Another is reputation. What is fashion-able, or what a person’s reputation is, cannot be pried apart fromwhat most people think to be the case, either explicitly or as revealedin their practices. Yet as Coleman and Leiter also recognize, asan account of what makes legal propositions true conventionalismis very problematic.81 The legal conventionalist, like his relativistcousin in ethics, makes the majority infallible.82 On such a view,

76 See ibid. The Frank/Morris Cohen correspondence is discussed in DavidHollinger, 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.

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most lawyers cannot be wrong so long as they agree. Yet our exper-ience in law no less than in ethics demands the possibility of being“revolutionaries” in thought.83 In neither field do we feel compelledto yield our view in the face of some brute sociological fact aboutwhat others believe. Moreover, and again like the relativist in ethics,the legal conventionalist runs out of right answers as fast as he runsout of social agreement.84 If there is no majority belief on somemoral or legal matter, the relativist and the conventionalist must alsoconclude they lack a view on the issue as well.

The skeptical reduction of legal truth to a sociology of agreed-upon propositions is thus too shallow to accommodate basic featuresof our moral experience and our legal practice. Such a reduction thusfinds few followers amongst legal theorists, at least in any blatantform. Sophisticated legal conventionalisms are no doubt possible,matching the more sophisticated relativisms in ethics.85 Yet as I andothers have tried to show in ethics,86 these too in the end will fallprey to the obvious objections.

2. Unhappy skepticsThe unhappy version of skepticism is the version that thinks itsskepticism gives us some reason to be disappointed. Such a skepticis a cognitivist about the discourse in question. He holds that wemean to be referring to certain sorts of things in our psychological,moral or legal discourses. Unhappily for us, the things to which wepurportedly are referring do not exist. Our psychological, moral, orlegal statements thus do have a truth value – the cognitivist bit – butthat 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 bothsophisticated enough to see the glaring problems of the sophomoric relativism ofmany 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 cogni-tivist (or “error theory”) skepticism from the more typical non-cognitivists kinds.87 Mackie was writing in ethics, but his distinctionbetween skeptics is illuminating elsewhere as well. We have seentwo generations of such skeptics in psychology, for example, thefirst being the methodological behaviorism of Skinner and others.88

In fact, as Dan Dennett nicely shows, Skinner never really saw thedifference clearly enough to declare himself one way or the otheron what kind of behaviorist he was.89 Unlike the logical behavior-ists the methodological behaviorist concedes that our talk of mentalstates is rife with commitments to mental states with both phenom-enal properties and causal powers. Like Mackie in ethics, Skinner’smethodological views were that our ordinary talk – the folk psycho-logy – is just plain false in these suppositions. A proper scientist– one concerned with public, observable, repeatable phenomena– would replace such mentalese with the environmental variablesthat truly cause behavior. Similarly, the “eliminative materialists”of more current cognitive science have urged that the outer-worldrelated features of mental states’ objects make it impossible toinclude such states in the best theory of human brains and behavior.Neuroscience will give us that best theory, but it will replace the folkpsychology and its mentalese vocabulary.90

Cognitivist legal skeptics are difficult to isolate from their happierskeptical cousins. No doubt this is in part due to the significantlyscantier attention to metaphysical problems in jurisprudence, whencompared to ethics and the philosophy of mind. Like the stubbornlyunphilosophical Skinner in psychology, legal skeptics do not typi-cally see the difference between a cognitivist and a non-cognitivistskepticism and so do not declare themselves one way or the otheron this divide.

87 J.L. Mackie, Ethics: Inventing Right and Wrong (Harmondsworth: Penguin,1977).

88 On Skinner as a methodological (rather than a logical) behaviorist, seeMapel, “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.

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Nonetheless, perhaps we can tease out the cognitivist strain ofskepticism in law too. Coleman and Leiter91 see the possibilities of alegal skepticism that parallels Mackie’s “error theory” skepticism inethics, drawing on those of our legal practices that seem cognitivist:the right answer thesis presupposed by that practice, the seemingreference of descriptive use of legal language, the claims of legalknowledge and expertise, etc. Such a skeptic would see the law ascommitted to a truth conditional semantics, a theory of referenceand extension for the terms within sentences, but then proclaim thatwe are doomed to disappointment because the things to which ourcognitivist legal practice is committed do not exist.

Neil MacCormick and Ota Weinberger92 attribute this kindof cognitivist legal skepticism to the Scandinavian Realists,Hagerstrom, Lundstedt, and Olivercrona.93 We might add someof the more enthusiastic moments of the American Legal Realistsand their Critical Legal Studies descendants to the list, because inthose moments these skeptics took their negative ontological thesesas having seriously destructive payoffs for our legal practices. AsMacCormick and Weinberger write, if law is both committed to acertain class of entities and those entities do not exist, then thereought to be “an intellectual and moral crisis for those professionallyengaged in the practice or the teaching of law. What are we to donow that we have seen that the Emperor is clothed with no laws – forthere can be no such thing with which to clothe any such being?”94

The cognitivist skeptic is an honest fellow. He does not seekto soften the blow of his skepticism with the palliatives of non-cognitivist or reductive skepticisms. It really matters whether mentalstates, moral qualities, or legal duties exist, but unfortunately for usthey do not.

In fact it matters so much that it seems doubtful whether cogni-tivist skeptics can live with their own skepticism. When Fred

91 Coleman and Leiter, supra note 79, at p. 246.92 N. MacCormick and O. Weinberger, An Institutional Theory of Law

(Dordrecht: D. Reidel Publishing, 1986), at pp. 2–3.93 A. Hagerstrom, Inquiries into the Nature of Law and Morals (Stockholm,

1953); V. Lundstedt, Legal Thinking Revised (Stockholm, 1956); K. Olivercrona,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 Skinnerwhy it was written in the mentalese his methodological behaviorismhad purportedly shown to lack reference. His response was that suchmentalese was only a convenient heuristic and expository device;in principle, at least, he could have written the tale in the austerelanguage of environmental reinforcers.96 Similarly, one scans theunselfconscious writings of today’s eliminative materialists for anysigns of abandonment of the terms of the folk psychology they saylacks reference. Again, one hears how “practical” or “pragmati-cally useful”it is to employ the literally false psychology of beliefs,desires and intentions.97 Dan Dennett even admits to an inabilityto think without those concepts a part of the disreputable folkpsychology.98

In ethics, readers of Mackie’s book, Ethics: Inventing Right andWrong often wondered how Chapter 1 of that book could lay outan error theory skepticism and then the remaining chapters go onto his own substantive ethics – as if there was anything left todiscuss! Similarly in law, when legal skeptics become legal actors– Frank as a judge, Llewellyn as a quasi-legislator for the UCC– one would have thought their radical skepticism about generalpropositions of law would lead them to behave differently fromthose who are not skeptical about such things. Yet in fact legalpractice, even when practiced by avowed skeptics, seems to go onmuch as before. Frank Michelman once explained these facts as dueto some practical necessities for law: legal practice cannot functionif it adopted the skepticism of the Realists or the Crits, so – despitethe lack of any good answers to the skeptics, in Michelman’s view– those who practice law do what they have to do, which is ignoresuch 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 Humanities,

Harvard, 1976–1977.97 Dan Dennett, The Intentional Stance (Cambridge, MA: M.I.T. Press, 1987).98 Dennett, Content and Consciousness, supra note 36, at p. 190.99 Said at the meeting of the Study Group on Intra-Disciplinary Disagreement

of the American Academy of Arts and Sciences, Charlottesville, Virginia, 1995.This was a discipline by discipline assessment of the degree of incursion of post-modernist skepticism.

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Yet skepticism deserves a better answer than this. Devoutly reli-gious people have an impossible time understanding the worldin which we live without their religious beliefs. Yet a cognitivistskepticism is a fully justified position about the more metaphysicalof religious propositions. In some ways at least, it would be nice ifthere were a Cosmic Purpose to all this in terms of some person-likeCreator’s intentions,100 but there isn’t.

So cognitivist skepticism deserves an answer in terms of truth orfalsity, not in terms of how difficult it would be to live with if it wereaccepted. Fortunately, about law such skepticism is false. The termsin both singular and general legal propositions are used referentially– a point for the cognitivist – but there are things to which they referthat makes them true. That, at least, is what I shall seek to showin the succeeding subsections, detailing four kinds of things legalthings might be.

C. Answer Number Three: Dualistic Realisms

If one is both a cognitivist and a non-skeptic, then it is incumbenton one to say to what mental, moral, or legal words refer. Perhapsthe first answer that occurs to one is the dualist answer: each suchwords refer to their own unique sort of things. “Everything is whatit is and no other thing” might be thought to be the beginning ofwisdom here. A little reflection will show that this simple thoughtcan hardly be the basis for a dualist metaphysics, for the prolifera-tion of kinds of existence – one for every kind of thing – is fartoo pluralistic to be tempting. (Indeed, going very far down thisroad probably ends one in predicate-nominalism,101 the idea thatsince no universals really exist we can pretend that there are asmany of them as there are words naming them.) Rather the dualistaggregates all sorts of different things into much larger groupings,which become kinds of existence, characterized by very generalfeatures like spatio-temporal location and causal relations. Roberto

100 But not “nice” in the sense of supporting moral realism. See Moore, “Goodwithout 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 anunstable dualism between particulars and universals to which we aresupposed to subscribe;102 particulars have temporal/spatial locationand enter into singular causal relations; universals do not exist inspace or time, and do not enter into singular causal relations.

The impulse to the various dualisms familiar in philosophy stemsfrom two considerations. One is a uniform sense that truth is corre-spondence with some reality, that the meaning of a sentence isits truth conditions, that those truth conditions consist of singularterms which refer and predicates that have an extension. Truth, forthe dualist, is uniform across all domains of existence. (This isin contrast to the linguistic-dualist like Ryle,103 for whom truth,reference, existence, etc., all vary their meaning depending on whatcategory one is in.) Second, however, is the sense that some kind ofthings are so different from normal physical objects, events, etc.,that they cannot be accommodated in the physical world. Aboutmental states, for example, this sense most often takes note of thepeculiarity of conscious experience, or qualia. It is private, internal,and seems to support the extraordinary claims to knowledge called“privileged access” of each person to the contents of her own mind:we have immediate, non-inferential knowledge, we are incorrigiblein our beliefs (if I believe I am in pain, I am), and our mental statesare transparent to us (if I am in pain, I know it).104 Alternatively,sometimes the mark of the mental is taken to be Intentionality,what Franz Brentano called the directedness-upon-an object.105

Such Intentional objects are not real world objects but exist onlyas contents of consciousness, contents that do not obey the ordinary

102 Roberto Unger, Knowledge and Politics (New York: Macmillan, 1975).103 “Linguistic dualist” was the apt name given to Ryle and Ryleans, who

while they attacked metaphysical dualism nonetheless reconstituted a dualismin language with their doctrine of category differences. See Charles Landesman,“The New Dualism in the Philosophy of Mind”, Review of Metaphysics 19 (1965),pp. 329–345. I document in detail Ronald Dworkin’s relativising of justification,truth, existence, etc., to categories of discourse, in Moore, “Metaphysics, Epistem-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 Psychiatry:

Rethinking the Relationship (Cambridge: Cambridge University Press, 1984),pp. 254–265.105 See, e.g., Dennett, Content and Consciousness, supra note 36, chap. 2.

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extensional logic of discourse about the physical world. Similarly,about moral qualities, where the insight of uniqueness focuses onthe reason-giving capacity of moral qualities. Although ordinaryphysical things give us reasons to believe certain propositions to betrue, moral things also give us reasons for action: they tell us whatto do, and not just what to believe.

If one combines the uniform sense of truth with the notion thatthese differences are too fundamental to be accommodated in thephysical world, one ends up a dualist. Such a dualist challenges thepre-eminence of physical science by appropriating the entire truth-oriented apparatus of such science and duplicating it in a separaterealm of existence. Thus born is the dualistic science of psychologyof Rene Descartes, Franz Brentano, and Sigmund Freud.106 In sucha science terms refer to real entities, sentences are true just in casethe singular terms refer to an entity within the extension of thepredicate of the sentence, etc. . . . with the enormous rider, that thethings that make such sentences true do not exist as physical entities,qualities, and relations exist. Rather, mental things exist in time butnot in space.

In ethics, the two impulses earlier described produce a non-naturalist meta-ethics like that of G.E. Moore.107 Moral qualitiesexist, but not with the spatio-temporal location and causal relationstypical of the natural world. Like universals, moral entities (such asrights), moral qualities (such as goodness), moral relations (such asresponsibility), have no spatio-temporal or causal properties; unlikeuniversals, such moral things essentially consist in their necessaryability to give reasons for action to persons.

It is not easy to produce historical examples of true dualists inlegal theory, theorists who held there to be a separate legal worldwhere legal things like duties, corporations, domiciles, and (legal)obstructions existed. Mostly such explicit legal dualism is to befound 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’seschewal of the type-identity materialism implicit in his unpublished Project fora Scientific Psychology and his re-invention of many of the categories of thatProject (such as cathected energy) as attributes of mind, rather than brains, is thatFreud 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 Ihring’sHeaven of legal concepts.108

Despite the paucity of historical examples, we can construct whatsuch a legal dualist would believe. He would hold singular andgeneral propositions of law to be true if and only if the terms withinthem corresponded with aspects of a distinctively legal reality. Sucha reality might be something like a fictional reality created byworks of fiction. A fictional realist believes, for example, that thesentence, “Henry Wilcox was greedy,” is true in the normal way:the singular term picks out a real (albeit fictional) person, the onein E.M. Forster’s novel, Howard’s End, and that person is withinthe real (albeit fictional) extension of the predicate “is greedy.” Onthis Meinongian view of fiction, there really is a Henry Wilcox andhe really does have properties, only he and they exist in a differentmode of existence from the physical world. They exist rather likethe counterparts of historical persons exist in David Lewis’ modalrealism about possible worlds – not actual for us in our possibleworld, but real nonetheless because actual for them in their possibleworld.109 In the case of law the possible world that is the legal worldwould not be a function of some work of fiction, like E.M. Forster’sHoward’s End. Rather, it would be a function of distinctively legaltexts. Still, these texts would be constitutive of a legal world againstwhich the truth of all legal propositions is to be tested.

To my knowledge Hilary Putnam’s sole reaction to Lewis’ modalrealism consisted of a single sentence: “the actual existence ofparallel worlds [is] a dotty idea.”110 Not to put too fine a pointit, so is my reconstructed legal dualist. To begin with, such legaldualism seems undermotivated. There is no aspect of law that isboth hard to accommodate in the natural world and yet seems socentral to law as to be part of its essence. With minds the phenomenaof consciousness and Intentionality partly motivate dualism; formorality, a source for non-prudential, non-desire based reasons for

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.), Realism

and the Background of Phenomenology (Glencoe, IL: Free Press, 1960); DavidLewis, On the Plurality of Worlds (Oxford: Blackwell, 1986).110 Hilary Putnam, Realism and Reason (Cambridge: Cambridge University

Press, 1983), at p. 218. Elsewhere Putnam calls it an “ontologically extravagantview.” Ibid. at p. 40.

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action serves this function. But nothing in law or fiction moves onein this direction.

Secondly, the legal dualism I have imagined violates what onemight call the Law of Ockham’s Cleaver, a rough paraphrase ofwhich is that one should not unnecessarily proliferate modes ofexistence. (Ockham’s razor is for finer-grained work.) For whatevertemptations towards dualistic metaphysics the legal theorist mighthave can seemingly be accommodated in the Cartesian dualismabout minds or in the Moorean dualism about morals. If law islargely a matter of morality, as it is for the natural lawyer, then legaltruth-makers can occupy the non-natural world along with othermoral things. If law is largely a matter of institutional fact, as it isfor the legal positivist, then legal truth-makers can occupy the socialworld constructed from individual minds and actions. In finding ahome for those things by virtue of which legal propositions are true,the legal theorist who sees no room for legal things in the physicalworld has ready-made, alternative homes in already existing dual-isms. A third such world, one that is distinctively legal, thus seemsunnecessary.

The costs of all metaphysical dualisms are well known. Thereare three major costs. One is the difficulty of making sense of theidea of there being different modes of existence. The very idea rela-tivizes existence, so that we mean something different dependingon what it is we say exists. This is reminiscent of the attempts torelativize (numerical) identity, so that it means something differentdepending on what is being identified with what.111 Likewise, somehave urged that we must relativize causality, so that agents-as-causes is a different relation than events-as-causes.112 In all suchcases, 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 anon-relativized, unitary conception of them.

111 See David Wiggins, Sameness and Substance (Cambridge, MA: HarvardUniversity Press, 1980), who in chapter 1 examines and rejects the idea of relativeidentity.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 physi-calist conception of existence, causality, etc.; existence is mostrobust, least problematic, for most of us when we think of physicalobjects, qualities, and relations existing. If we were to relativizeexistence in the way dualism requires, we have the independentproblem of making sense of modes of existence that do not requireor allow spatial, temporal, or causal properties.

The second problem for all dualisms is the relational problem.The moment one posits more than one mode of existence, one facesthe question how, if at all, things in different modes of existencerelate to one another. It is possible to think that there is no rela-tionship, but this is very counterintuitive. The wrongness of an actof burning a cat seems somehow related to the pain of the cat andthe cruelty of the cat-burners; the intention to move my finger seemssomehow related to various patterns of electro-chemical reactions inthe supplementary motor area of the brain;113 the legal propositionsisolated in Part II above seem somehow related to the moral andnon-moral facts there described.

It is also possible to think that the only relationship that existsis one of systematic co-variance. This is the “two clocks” picture,a picture in which two clocks (say a physical clock and a mentalclock) 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 clockis (numerically) identical to a change in the other nor even that achange in one causes a change in the other. Rather, mind and brain,moral and natural, legal and moral, on this model simply co-varyin a systematic way. As I shall examine when I discus below thekind of asymmetrical co-variance now termed supervenience, suchco-variance is possible but it cries out for some underlying relation-ship that explains the co-variance. (Indeed, the two-clock metaphorhints at one such explanation; mental states and brain states areepiphenomenal to each other, effects of a remote common cause.)

These considerations motivate most dualisms to an interactionistdualism. In psychology, this is the view that physical events such aselectromagnetic 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.

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belief and that mental states such as intentions can cause physicalevents such as bodily movement. This is very much a matter ofcommon sense, but how can the dualist conceptualize this causalinteraction between physical things and mental things? It is notfor nothing that dualists about the mind are accused of puttingghosts in machines,114 ghosts that without any physical energycause synapses to be crossed115 or “action readiness” potentials tobe stayed.116 These are literally mind-boggling possibilities!

Interactionist dualism in ethics is (if possible) in even worseshape. G.E. Moore, our paradigmatic dualist in ethics, saw that hisnon-naturalism about moral properties was only plausible if suchproperties interacted in some strong way with natural properties:

I should never have thought of suggesting that goodness was ‘non-natural’ unless Ihad supposed that it was ‘derivative’ in the sense that, whenever a thing is good . . .

its goodness . . . ‘depends on the presence of certain non-ethical characteristics’possessed by the thing in question: I have always supposed that it did so ‘depend,’in the sense that, if a thing is good . . . then that it is so follows from the fact thatit possesses certain natural intrinsic properties . . .”117

Such interaction is not happily conceived of in terms of causation; itis implausible to suppose that natural properties cause moral proper-ties to come into existence. Yet Moore seems to think more than thatmoral properties asymmetrically co-varied with natural ones, so thatthere could be no change in moral properties without some change innatural properties. Rather, moral properties depend on natural ones,they follow from them. If we rule out causal relations, just what inthe world is the sense of this dependence, or following, relation? Thenaturalist has an answer here, in terms of full or partial identities, butwhat could be the answer of the non-naturalist (who must eschewthose 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 little

ghost to do the physical work of synapse crossing.116 Benjamin Libet, “Unconscious Cerebral Initiative and the Role of Conscious

Will in Voluntary Action”, The Behavioral and Brain Sciences 8 (1985), pp. 529–539. Libet posits a role for the will in stopping actions initiated in the brain, not forstarting them(!) Arthur Danto, ibid., points out that this is literally unintelligible.117 G.E. Moore, “A Reply to My Critics”, in P.A. Schlipp (ed.), The Philosophy

of G.E. Moore (Evanston, IL: Northwestern University Press, 1942), at p. 588.


The third problem for dualistic metaphysics in any realm is thepressure it exerts in epistemology to come up with some specialmode of knowing to match this special mode of existing. If we ruleout a causal theory of perception as inadmissable for perceiving non-natural moral properties and non-physical mental properties, howwe do come to know them seems mysterious. The pressure is toinvent a new way of coming to knowledge: moral intuitions, for non-natural, moral properties, and introspection for non-physical, mentalproperties. It is of course possible that we have these “sixth senses,”but these would be more than simply the epistemic posits neededby a dualistic metaphysics if we had some theory of moral/mentalperception like our theory of perception in the physical world. Sucha theory should tell us when our intuitions/introspections are reliableand when they are not, and it should explain why our intuitions andintrospections are reliable when they are. Lacking any such theory,we should join skeptics like Mackie, who calls intuition a “lameanswer” to the hard question of epistemology forced on one bydualistic metaphysics.118

The dualisms in ethics and the philosophy of mind are soproblematic that no legal theorist should think he can find a non-physical home for legal properties in either non-natural moralproperties or in non-physicalist mental properties. Nor should thesedualisms serve as a model of a successful metaphysical program thatlegal theorists could undertake on their own. Not only is any suchautonomous legal dualism pretty “dotty” on it face – see above –but it would also face the same three problems that beset the muchbetter 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 relationsbetween entities in different modes, no sui generis and unexplainedmodes of knowing items in the non-physical realms.119 On thenaturalist 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

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are each a kind of physical property, located in space and time andcapable of entering into causal relations with other physical things.

The flip side of these one-world benefits is the downside detri-ment that the naturalist is in danger of being just another skepticalreductionist. The dualist about minds will protest that reducingminds to brains will eliminate that which is distinctive about minds– for consciousness and Intentionality are not obvious features ofthe syntactic engine that is the brain. Similarly, dualists about moralqualities will protest that natural properties like pleasure and painhave no normative force. As G.E. Moore remarked, those naturalistswho identify goodness as pleasure are committed to equating “X isgood” to “X is pleasurable,”120 yet the latter statement of natural factseems barren of the normative force that makes the former statementone of ethics.

There are two sorts of responses to the worry that naturalism isbut another closet skepticism. One is to articulate a kind of non-reductionist naturalism whereby one can say that the natural world isall there really is, that moral properties in some sense just are naturalproperties, yet that also allows one to hold that moral propertiesare in some sense independent of the natural properties on whichthey depend. This kind of non-reductionist naturalism is currentlyvery 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 doesnot become a kind of closet dualism or closet skepticism.

1. Classical reductionist naturalismsa. Analytically reductionist naturalism. First I shall examine theother response. This response is based on the old slogan that toexplain something is not necessarily to explain it away. To appre-ciate this response we first need a picture of the kind of naturalismthat is fully reductionist. There are actually two such reductionistnaturalisms. There is first the kind of naturalism against whichMoore was arguing.121 This was an analytic naturalism, one thathoped 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 tobe synonymous with the phrase, “unmarried male person,” and thehope of analytically reductionist naturalism in ethics is to discover(not stipulate) similar analytic truths about “good,” “right,” andother moral terms.

Mid-Century philosophy of mind and philosophy of law alsohad analytic naturalism in mind as one of their targets. GilbertRyle, for example, argued against any reduction of voluntarinessto volitionally-caused bodily movement, on the basis of his obser-vations of language use; specifically, “voluntary” was an adjectivewhose use was appropriate only in contexts where moral blame wasin question, a restriction not matched by the supposed universalsource of actions in volitions.122 With a nice slurring over of thedistinction between pragmatics and semantics (crucial to a truthconditional semantics), Ryle thus concluded from this usage factthat “voluntary” and “volitional” were not synonymous.

Similarly in the philosophy of law, Herbert Hart apparently tookas the target of his own anti-reductionist efforts a kind of analyticnaturalism about law.123 Hart, like Moore and Ryle, urged that noreductions were possible for the things in which he was interested –legal rights, contracts, legal responsibility – because the words usedto refer to such things were not synonymous with any words namingnon-legal facts.

Both Hart and Moore deployed what Moore called the “openquestion argument” to show the lack of synonomy (although Hartput it in terms of the “defeasibility” of legal terms). For anyproposed analytic truth about “good” or “contract,” Moore and Hartasked, it seemed sensical yet to ask, “but is that good?” (or, “is thata contract?”). From the good sense such open questions seemedto make, no matter how extensive the list of natural propertiessupposed by some definition, Moore and Hart concluded that noanalytic definition of moral or legal terms was possible. And fromthis linguistic fact, Moore and Hart concluded, there was no senseto be made of any identification of moral properties with naturalproperties, or legal entities with non-legal things.

122 Ryle, Concept of Mind, supra note 27, at p. 69.123 Hart, “Ascription”, supra note 44.

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Few today would be tempted by analytic naturalism aboutminds, morals, or law. Consider such a naturalism about the legalobstructing involved in the Kirby case. Grant me my assumptionsabout the case in Part II: the moral, semantic, and historical facts Ithere reference fully determine the truth of the singular propositionof law relevant to that case, that Kirby was not guilty of obstructing.An analytic naturalist should be baffled at how he could supportan argument that connects “not obstructing or retarding the passageof the U.S. mail” to the various statements describing the relevantmoral, semantic, and historical facts referenced earlier.

His initial problem here lies in the lack of any plausible rulesof combination or priority for these non-legal factors. There seemsno hope of ordering these factors into a set of individually neces-sary, jointly sufficient conditions in the manner of a definition ofbachelors into such merkmal.124 Nor is there any hope even ofmore complex combinations of these factors into subsets that arenot necessary but which are sufficient, having within each of themelements that are necessary to the sufficiency of its subset.125

Such lack of combinatory rules is not the real problem for theanalytic naturalist, however. For he could adopt the criteriologicalview of the matter often attributed to the later Wittgenstein.126 Onthis view, the list of non-legal facts making for a legal obstructing isjust that, a list with no formula for combining the factors on the list.Still, the claim would be, the whole list is analytically connected tothe phrase, “obstructing or retarding the passage of the U.S. Mail.”

Yet even this less precise version of analytic naturalism founderson the fact that underwrites the persuasiveness of Moore’s openquestion (and Hart’s defeasibility) argument. For surely, Moore andHart could say, it is a sensible question to ask of the whole list,“but is this a legal obstructing?” Even if we think the answer is“no,” it seems possible that the answer might be yes. The question

124 The logical positivists’ term for criteria in the strong sense of necessary andsufficient conditions for correct usage.125 The semantic analogue of Mackie’s “INUS” analysis of causation. See

Mackie, “Causes and Conditions”, American Philosophical Quarterly 2 (1965),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 thatunmarried male person a bachelor?” or “is a legal obstructing a legalobstructing?”, seem to be closed.

The power of Moore’s and Hart’s insight lay in directionsthat would have surprised them. They were right that there areopen questions about “obstructing,” “good,” “contract,” etc. Yet thereason they were right did not lie in the special nature of ethicalor legal concepts – Moore holding them to be simple words refer-ring to non-natural things and Hart holding them to be defeasiblewords referring to no things. Rather, there are open questions about“obstructing,” “good,” and “contract” because there are open ques-tions about “water,” “gold,” “death,” and “tiger.” On a general viewof semantics quite alien to the one Moore and Hart thought to begenerally correct (only not applicable to ethics and law), all suchwords are typically used referentially, not attributively.127 That is,such words take their meaning from the nature of the things referredto and not from some list of properties definitive of such words.Although the nature of such things will be given in terms of certainproperties, those properties: (1) may well not be the propertiesspeakers use to pick out the things in question; and (2) will not beconnected to the word in question by linguistic convention but onlyby substantive theory, be it scientific, moral, or legal.

The reason that legal words like “obstructing,” “contract,” “title,”“domicile,” etc. were defeasible lay not in any special character oflegal usage. Rather, one could not give lists of properties closedby convention as the meanings of such words because such listswere hostage to ever better theories about the nature of thingsreferred to by such words. This account of defeasibility would havesurprised Hart because he believed both that such legal words didnot attempt to refer to any things and that there were no such thingsto be referred to. Similarly, such a basis for Moore’s open questiontechnique would no doubt have surprised him, given his view thatmoral words like “good” were simple (in the sense of not being

127 “K-P semantics,” after Kripke and Putnam. Saul Kripke, Naming and Neces-sity, 2nd edn. (Cambridge, MA: Harvard University Press, 1980); Hilary Putnam,“The Meaning of ‘Meaning”’, in his Mind, Language, and Reality (Cambridge:Cambridge University Press, 1975).

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defined in terms of other properties) and that their reference wasto a non-natural property that almost by definition had no nature.

b. Metaphysically reductionist naturalism. If one accepts what hascome to be known as K-P semantics, then Hart and Moore wereright in their conclusions (even if wrong in their reasonings tothem); there can be no analytic reductions of moral or legal wordsto natural or non-legal properties. Yet the very basis for rejectinganalytic reductionism is also the basis for attempting a second kindof reduction. Consider the well worn example of “heat.”128 Prior tomolecular theory, no one identified the heat of some gas with thekinetic energy of molecules comprising it. Even after the discoveryof various experimental laws relating heat to pressure, volume, anddiffusion rates through porous membranes, heat was still identi-fied with our mode of verifying its presence, the feel of it and itsmore accurate measurability with thermometers. When the ideal gastheory became well accepted, people began to identify heat with thekinetic energy of molecules, kinetic energy itself being identifiedwith the mass and velocities of molecules. Surely prior to the accept-ance of the ideal gas theory it was not analytic that the heat of a gasis the kinetic energy of the molecules comprising that gas. If it wereanalytic, then the statement, “heat is kinetic energy” should be asinformative as “heat is heat” (to paraphrase Moore). We need roomfor informative identity statements. We need to be able to accept astrue the identity of heat with kinetic energy yet have that identitybe a discovery of scientific theory, not a deliverance of synonymyanyone who understood the language must accept.

Thus is born a second kind of strong reductionism, onedispensing with analytic necessity and dealing in non-analytic, butmetaphysical necessity. By the best scientific theory we can muster,it appears to be true – (metaphysically) necessarily true – that heat iskinetic energy. We can then reduce heat to molecular kinetic energy.

Sometimes it is thought that such metaphysical reductions elimi-nate the thing reduced, so that we might say of heat, “it doesn’treally exist.” Yet reduction is a two-way street. If heat can bereduced to kinetic energy, so also can kinetic energy be reduced to

128 The late Warren Quinn’s example in his “Truth and Explanation in Ethics”,Ethics 96 (1986), pp. 524–544, at p. 535.


heat. If water = H2O, then H2O = water, if x=y, then y=x, etc. Whendealing with metaphysical necessities, what we come to know firstis irrelevant. So if we can show that legal properties are identical tosome non-legal properties, we needn’t fear that we have eliminatedlaw from the world.

It is true that often non-analytic reductions do produce anomaloussounding implications. If water is H2O, then (by Leibniz’s Law)anything we can truthfully say of water we can equally truthfullysay of H2O, and vice-versa. If “water is wet” is true, then so is“H2O is wet;” if “water tastes good” is true, then so is “H2O tastesgood.” Yet wetness and tastiness might seem to be the kind of macroproperties that it would be odd to apply to the micro-level. Hydrogenand oxygen atoms, and water molecules, may seem not to be eithertasty or not tasty, wet or dry. Even more troublesome would be tothink that tables are solid, but that the things tables are – moleculesof various kinds – are not solid at all, consisting mostly of emptyspace.129

What such worries reveal is not some defect in non-analyticreductions. It is not as if, lacking synonymy, the reductions leavebehind features of the things reduced. Nothing in fact is left behindby non-analytic reductions. If water is wet and tasty, then soare (sufficiently large aggregates of) H2O molecules; if tables aresolid, then so are the conglomeration of molecules making up suchtables. Oddness of usage is to be expected when a novel identityis discovered, because many predicates we attached only to thefamiliar end of that identity (water, tables), sound odd when attachedto 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 notdepend on identifying mental properties with physical ones, moralqualities with natural ones, or legal relations to non-legal relations.This is nomological reductionism. This is the view that there mightbe causal laws connecting some mental property M with some phys-ical property P without M being identical to P. That is, for all thingsx, 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 ofthe Physical World (New York, 1928), pp. ix ff.

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cases are co-extensive in their extensions, without M and P beingidentical and without “M” and “P” being synonymous.130

This is a reductionist view in that it allows P predicates to besubstituted for M predicates in any expression without changingthe truth-value of that expression. Yet we may ignore this kind ofreductionism, for two reasons. One is that it is not a naturalisticreductionism; without identifying mental properties with physicalproperties, mental properties are not yet given a place in the phys-ical world. Secondly, natural properties are not happily thought tobe the causes of moral properties, nor are moral properties easilyconceived of as the causes of legal properties. So if nomologicalreductionism without identity is a possibility in psychology, it is notin law or ethics.

Returning to the type-identity form of metaphysical reduc-tionism, we have yet to discuss the problem that has limited theplausibility of such reductions to the physical sciences. The realproblem for any metaphysically reductionist scheme about law is thesame problem as has bedeviled metaphysically reductionist schemesabout minds or morals. This is the lack of any single, unified natureto the things that are the plausible reduction bases – brain states,natural properties, moral and institutional properties, respectively.From what we know about the human brain, for example, it isextremely unlikely that any single type of brain state will turn outto be correlated with the having of an intention, and not muchmore likely that some single, unitary brain state will turn out to becorrelated with the having of an intention to go downtown today.Likewise with our more general terms of moral evaluation, good-

130 It turns out to be rare even within physical science to find these kindsof bilateral reduction sentences for the theoretical terms of physics and chem-istry. Even within physical science the reductionist ambitions of Carnap and hiscolleagues about the general reducibility of dispositional and theoretical terms hadto be scaled back considerably; the later Carnap abandoned the quest for bilateralreduction sentences (needed by both nomological and type identity reductions)for dispositional terms, in favor of an open set of conditional reduction sentencesthat, as he recognized, gave only partial definitions of such terms; his followersgave up even these in their explication of theoretical terms in physical science interms of “bridge principles” (Hempel) and “correspondence rules” (Nagel) thatuse but do not even partially define theoretical terms. See Moore, “The Semanticsof Judging”, supra note 10, at pp. 221–232, for a discussion.


ness – even when restricted to moral goodness – seems connectedto different natural properties on different occasions, making itimpossible to identify the property of moral goodness with anysingle natural property like pleasurable, happiness-producing, orwhatever. Similarly in law, not only are the facts that make truelegal propositions quite diverse in their makeup, but which factorsare most important vary from case to case. It thus seems out of thequestion to identify the truth-makers of American statutory law as,say, the plain meanings of the words, or even the purposes of therules. Sometimes one of these factors dominates but at other timesseems to be of little importance.

The upshot is that although type-identity reductions are perfectlyrespectable, they are where you find them. Water is H2O, heat iskinetic energy, but intentions are not brain state X, goodness isnot pleasure, and legal correctness is not simply moral correct-ness, simplicatur. This insight usually motivates what are callednon-reductionist naturalisms.

2. Non-reductionist naturalismsAlthough one of the crucial concepts of the non-reductive naturalist,supervenience, originated in ethics,131 the lead oar in moving thenon-reductive naturalist boat along has been drawn by the philos-ophy of mind. Let us thus start there to see the possibilities for ethicsand for law.

a. Anomalous monism. Non-reductive naturalists in fields such aslaw often fasten onto Donald Davidson as their model for sucha position.132 For Davidson famously proposed an “anomalousmonism.”133 Such a view is monistic in the sense that it rejectsdualism about the mind; each instance (or “token”) of a mental statesuch as an intention is identical to some physical state of the brain.

131 For a nice history of supervenience, see Jaewon Kim, Supervenience andMind (Cambridge: Cambridge University Press, 1993), at pp. 53–58. As Kimnotes, Hare seems to be the first to actually use the word, although the idea ispretty 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, at

p. 71.133 Donald Davidson, “Mental Events”, in his Action and Events (Oxford:

Oxford University Press, 1980).

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Yet such a view is “anomalous” (Davidson’s own characterization)because there are no psycho-physical laws connecting types of brainstates to types of mental states, such as intentions. All that reallyexists is physical stuff but still we can never reduce the laws ofpsychology 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 andeat it too. There is really just one world, the physical world. Yetwe cannot (and thus need not) dispense with all we find valuable inan autonomous psychology of persons. Davidson also illustrates thepatent dangers of any non-reductionist naturalism: if one acceptsthe anomaly that there are no psycho-physical laws connectingtypes of mental events with types of physical events, then onemay well not be a naturalist-monist, but rather, either a skeptic ora dualist about the mental. Since I and many others think this isprecisely the dilemma Davidson’s anomalous monism faces, it isworth showing why this is so before we consider more popular (andmore promising) non-reductive naturalisms.

Like the dualists, Davidson is struck by the Intentionality ofmental states, that is, their directedness upon contents or objects.More particularly, he is struck by the manner in which we ascribethe contents of mental states to one another, by adjusting the contentof them to match our norms of coherence, rationality, and consist-ency.134 States would not be mental states without these Intentionalfeatures, Davidson thinks. Physical states do not have these features,and, indeed, seem to have other features incompatible with themhaving these Intentional features. While Davidson has no objectionto correlating the two types of states, yet there can be no lawsconnecting them because such laws would require the alteration ofthe metaphysically necessary features of these two different types ofstates.

The correlation point is important because it what allowsDavidson, he thinks, his monism. In this world, my intention rightnow to go downtown may well be identical to some brain state Sin me. This just happens to be true in the way that “I am the onlyOregonian in the room” may happen to be true, “I” and “the onlyOregonian 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 otherpossible world – that intention would not be identical with S – anymore than I would be the only Oregonian in the room – which is whypsycho-physical laws (which necessarily operate in other possibleworlds) are ruled out.

Davidson is an odd model for moral or legal theorists attractedby non-reductive naturalism. Partly, this is due to the fact thatDavidson’s arguments against reduction are built on his contro-versially holistic views on how we ascribe content to Intentionalstates. That basis for anti-reductionism doesn’t generalize even to allmental states (such as sensations, which take no Intentional objects),certainly does not generalize to moral properties or legal entities,and in any event is quite controversial. Secondly, despite Davidson’seminence in philosophy generally, anomalous monism is a positionhardly any other philosopher accepts.135 It can hardly be paraded asan example of non-reductive naturalism that is be well establishedor even well understood.

Still, most of the criticism of anomalous monism has focused onthe argument for why there can be no psycho-physical laws and thusno reduction of the mental to the physical. More interesting for ourpurposes is a different criticism: assuming one has good groundsfor rejecting any type identities between mental states and physicalstates, can one nonetheless be a naturalist asserting only token iden-tities between such things?136 If that is a real possibility, then thatis a lesson that can be applied in ethics and law; if those fields havetheir own arguments for non-reducibility, ones that do not dependon Intentionality, perhaps they too can nonetheless be monistic andnaturalist in their ontology.

Yet anomalous monism is too anomalous to be a live possibilityanywhere. Consider it in its home, the philosophy of mind. Whatdoes it mean to say that the token, my intention to go downtowntoday, is identical to some brain state token of mine, and yet thereare 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 Hornsby, “Which Physical

Events are Mental?”, Proceedings of the Aristotelian Society 81 (1981), pp. 73–92.

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time interval when I am having the intention to go downtown today– big stuff, like blood flow patterns in different areas of the brain,amounts of electro-chemical activity, and little stuff, like certainion pumps working in the axon sheaths around certain neurons,certain synapses firing, etc. In this “buzzing, blooming confusion”of physical goings-on, where is my intention to go downtown tobe found? How much of these physical goings-on, what swatch ofthem, should we isolate as the intention-token? Our problem hereis not just epistemic, how hard it is to know; the problem is meta-physical – what reason is there to think that there is any swatch ofthe physical goings-on that is the intention-token? When there is notype of swatch that is identical to any type of intention, that meanswe can’t look again in the brain whenever the same intention-typerecurs to see if the brain state type recurs. We get only one look, butthen, what are we looking for?

Remember, all we have to work with are accidental general-izations, not causal laws. This is enough, we might well think, toidentify Moore with the only Oregonian in the room. That tokenidentity seemingly requires no causal laws (such as, for example, alaw to the effect that no two Oregonians can stand to be in the sameroom together) to be true. Yet notice we do rely on a theory of typeshere that both “Moore” and “the only Oregonian in the room” share,namely, the theory of what individuates persons. We know whatchunks of reality get lumped together as a person, and all we need tomake the token identity is to see which chunk shares the properties,referred-to-as-“Moore,” and born in Oregon. That sharing of typesis precisely what we lack in anomalous monism. We have to importthe type, intention to go downtown today, into the brain, since it isnot already there, and that is precisely what the anomalous monistdenies to us.

In Davidson’s case it is pretty plain where his anomalous monismlands him. He ends up being a skeptic about the mental of the elim-inative materialist kind. For him as for Dennett, mental propertyascriptions like intentions are a kind of practically useful fiction thatwe can hardly imagine ourselves doing without. But really, whenour thoughts turn seriously ontological, there are no such things.The only world there is is the physical world, and in that world nosuch things exist.


b. Supervenience naturalism. Anomalous monism, then, can hardlybe our model for non-reductive naturalism in ethics or law. I shalltherefore turn to a much more popular non-reductive naturalism,that associated with the fashionable notion of supervenience. Thesupervenience naturalist is struck by the diversity of things thatexist in the world that do not in any obvious way reduce to naturalkinds like water and gold and yet which do not give rise to anydualistic temptations. The image of John Wayne on the television,which seems different than the illuminated dots that in some senseconstitute it; the angry face, which seems different from the variousphysical features that in some sense constitute it; the meaning ofa sentence as uttered or written, which seems different from thesounds or scratchings that in some sense constitute it; the melodyof a piece of music, which seems different than the frequencies ofvibrations that in some sense constitute it; the action of a person,which seems different than the bodily movements that in somesense constitute it. The first of each of these pairs has been saidto 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. Itis clear what is wanted from the concept by those who see it in theabove examples: to say, “x supervenes on y” is supposed to give youwhat Davidson’s anomalous monism promises, both an absolutionfrom any burden of showing how the supervening items are (type)identical to other items, together with a reassurance that one is notcommitted to any queer things or dualist ontology in the absence ofreducibility.

Although these twin hopes for supervenience are the sameas for Davidson’s anomalous monism, these are in fact differentnotions.138 Supervenience means asymmetrical co-variance. Someproperty 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 otherexamples, 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, seeSimon Eunine, Donald Davidson (Stanford: Stanford University Press, 1991), atpp. 67–71.

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any change in F must be matched by some change in G, but notvice-versa. Sometimes supervenience is given a slightly differentformulation: if F supervenes on G, then some objects x and y cannotbe the same in their possession of G yet differ in their possessionof F.139 Both of these formulations are trying to capture the ideaquoted earlier from G.E. Moore: supervening properties in somesense depend or follow the base properties on which they supervene.Notice that this is inconsistent with anomalous monism because ofthe law-like connections (existing in other possible worlds) betweenF 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 crucialone is this: to discover that two properties F and G co-vary can bethe beginning of an explanation of how such properties are related,yet surely it cannot be a complete account. Why do they co-varyhas to be a question that leaps out at one. After all, generalizationsabout supervenient relations are law-like; they hold necessarily inother possible worlds. So one cannot give the kind of “just so”shrug for an answer that one can give to accidental correlations, likeMoore being the only Oregonian in the room. “He just is” is a prettygood answer there, but to say “moral properties just do co-vary withnatural properties,” is not adequate.

The standard explanations of systemic co-variance all seemunavailable. One of these is to explain a co-variance between F andG in terms of an identity between them: if F is G, then of coursethey will co-vary, yet the non reductionist aspect of superveniencenaturalism rules out such a type-identity claim. In addition, such aclaim seems to founder on the alternative realizability of the super-vening property by many different base properties, as was discussedearlier. And it is such an alternative realizability that makes for anasymmetrical co-variance that needs explaining; base properties canvary in such a way as to instantiate an alternative realization of the

139 Davidson, for example, uses both formulations. See “Mental Events”, supranote 133.140 Moore, “Moral Reality Revisited”, supra note 68, at pp. 2518–2526.


same supervening property, so supervening properties needn’t varyjust because base properties do.

Another explanation of co-variance between two properties F andG could be the causal one: F causes G. Yet this too, like the typeidentity explanation, leads to a kind of reductionism, in this case,a nomological reduction. In addition, this leads to dualism, not tonaturalism, because there is no metaphysical reduction of G-ness toF-ness. Finally, where F and G are natural and moral properties,or moral and legal properties, the causal explanation seems verycounterintuitive. Cruelty does not cause wrongness even if in somesense it constitutes it; moral duty does not cause legal duty even ifin some sense it constitutes it.

A third standard explanation of co-variance would be theepiphenomenal explanation: F and G co-vary because they areepiphenomena of each other, that is, co-effects of a commoncause. If F changes, that could only be because some commoncause C changes, and if C changes, G must change too. Yet theepiphenomenal explanation seems to eviscerate any sense to the ideathat the supervening property depends on the base properties super-vened upon. In addition, it is unclear how common cause accountscan explain asymmetrical co-variance. And finally, in ethics and lawepiphenomenal relations between F and G seem as out of place ascausal relations. Causing wrongness, or causing legal duty, seemsodd, even if the causing is done by some remote common cause.

Absent any of these accounts, supervenience is anomalous. Itis thus a mistake to think that we have said very much when wesay that moral properties supervene on natural properties, or thatlegal properties supervene on moral properties. Let us be clear: wehaven’t said anything yet about the relation between these pairsof properties. Nor will it help to assert a token-identity betweeninstantiations of these properties. Supervenience gives us no morehelp in making sense of a purely token identity than did Davidson’sanomalous monism. Token identity just adds to our headaches; nowwe have a double demand for some relation between types F and Gthat can explain co-variance and can explain how an instance of Fcan be identical to an instance of G.

My own explanation for why moral properties co-vary withnatural properties, mental properties co-vary with physical proper-

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ties, and legal properties co-vary with the moral and non-moralproperties identified in Part II, lies in a type identity betweeneach of the two properties in these pairs. Supervenience naturalismmakes sense, in other words, only if it gives up the ambition to benon-reductionist.

3. Metaphysically reductionist naturalism revisitedThe problem with which we ended our previous discussion ofreductionist naturalism was the alternative realizability problem thatmotivates supervenience. It looks very plausible to suppose that anintention to go downtown today can be realized by many differentphysical events in the brain, that the wrongness of an action can berealized by many different natural properties, or that the truth of asingular proposition of American statutory law can be determinedby quite different combinations of factors on different occasions.The way for a metaphysical reductionist to accommodate thesefacts is to make the base properties quite complex. Specifically,the base needs to be an indefinitely large number of disjunctivelyorganized properties, so that one can accommodate the fact that onthis occasion the truth-maker for a singular proposition of Americanstatutory law is one set of factors, and on another occasion it maywell be another set of factors. When each disjunct of some complexbase property is itself sufficient for the existence of the superveningproperty, then the supervening property can meaningfully be saidto depend on, follow from, be determined by, the base property.This gives sense to these terms that the supervenience theorist wasotherwise unable to supply. Moreover, co-variance is also explainedby this type identity of supervening property to disjunction of baseproperties. Because the sufficiency of each disjunct of the base forthe existence of the supervening property entails the necessity of thesupervening property for the existence of that disjunct, any changein the supervening property must be accompanied by a change in thebase properties. But not vice-versa. If the base properties change,that can be simply a shift from one sufficient disjunct to another, sothat there is no change in the supervening property. So the asym-metrical feature of supervenience can also be explained by thisunderlying type identity.


Now some quibbles. First, what about infinite disjunctions? Canan identity between a moral property and an infinite number ofdisjuncts of natural properties explain the supervenience of moralproperties onto natural ones? I used to think the answer to this ques-tion to be no, but that was because I assumed an infinite number ofdisjuncts meant that any natural property could be the base propertyon which some moral property like wrongness supervened.141 Thiswas a mistake. So long as there are also an infinite (and probablylarger) number of natural properties on which wrongness does notsupervene, the supervenience of moral properties on natural onesis adequately explained by a type identity with an infinite numberof disjuncts. In fact, I doubt that we need infinite disjuncts of baseproperties to account for the degree of alternative realizability thatactually seems plausible, at least for law and ethics. The whole ideaof giving a “theory of interpretation” of statutes presupposes somefinite and relatively short list of base properties on which the legalconclusions supervene. Maybe it is different for mental states, whatwith non-carbon-based systems possibly having intentions, but eventhere some finite modes of realizability seem more plausible.

Second, what about the apparent lack of combination and priorityrules between the various legal truth-makers, which are the baseproperties on which legal facts supervene? Given such lack, howcan there be disjuncts of sufficient conditions for legal facts? This isa real problem, but it is not one unique to law. Consider the moralquestion, who deserves to die as a punishment for their culpablewrongdoing? Assume (along with American criminal law) that thedeath penalty is deserved on some occasions but that not all non-provoked, intentional killers of innocent victims deserve that mostsevere penalty. Then we might well do what American constitutionallaw does: isolate a set of “aggravating factors,” such as killing morethan one victim, any one of which is said to be sufficient as a basisfor deserving the death penalty. Recognizing at least the incomplete-ness of our knowledge (if not a deeper incompleteness of the world),we might keep the list of sufficiently aggravating factors openwith such open-ended factors as “wantonly vile, evil, or inhumane”killings. Recognizing alternatively that situations in which even thepresence of one or more aggravating factors does not seem suffi-

141 Ibid. at pp. 2522–2523.

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cient for deserving the death penalty, we might then again mirrorAmerican constitutional law and list a set of defeasing (“mitig-ating”) factors that can rob the aggravating factors of their normalsufficiency. Putting the two lists together, we should conclude thatwhat we really are working with is one open-ended list of factorsdetermining in combination desert for death, with the caveat thatthe list is just that, a list without any combination or priority rules.No factor is really sufficient, nor is any identifiable subset of factorssufficient, and no factor is necessary, including perhaps the entirelist.

There is a real difficulty in these moral and legal examples inisolating independently sufficient sets of factors that can then serveas the disjuncts of base properties in the type identity reductions hereproposed. The temptations of a purely token identity are born here.That some murderer deserves to die one may confidently believe tobe true, as we may that why he deserves to die is (e.g.) because hetortured his victim to death; his desert thus is the culpability of atorturer. Yet we despair of generalizing; we know that torture is notnecessary to deserve the death penalty yet neither need it always besufficient. That it is sufficient in this case may be all we are confidentof.

Despite all of this, we have seen that purely token identities makeno sense. It has to be true that there are some types the conjunc-tion of which is sufficient. The types must obviously be muchfiner-grained than the aggravating and mitigating factors found inAmerican criminal codes, and much finer-grained than my “ingredi-ents” in a theory of statutory interpretation. Yet types there must besuch that some conjunctions of them are sufficient for the legal ormoral conclusion.

Consider two analogies where the richness of the world bafflesour abilities to talk of sufficient sets of individually necessary condi-tions. One is the ideal of formal justice. An old skepticism aboutthis equality-based ideal, going back at least to Feuerbach, is thatthe ideal presupposes some theory of relevant likenesses in casesthat make them merit like treatment. Such theory must be nothingless than a theory of all of morality, for it takes all of morality toisolate what natural facts might be sufficient on a given occasionto merit like treatment; any fact of difference between two cases


might be a morally relevant difference, and it takes a total moraltheory to see if this is so in any given case. The richness of moraltheory and the corresponding richness in possibilities for morallyrelevant differences so threatens our ability to capture sufficiencyof likeness between cases as to lead some to give it up entirely. Onthis view, we have a distinctive form of reasoning, “reasoning byanalogy,” that dispenses altogether with the need for sufficient setsof conditions. We just “see” primitive similarity relations betweensuch particulars.142

The second analogy lies in the realm of causation. Humean andneo-Humean accounts of causation reduce statements of singularcausal relations into statements of causal laws.143 Causal laws areformulated in terms of antecedent clauses giving conditions jointlysufficient for the effect described in the consequent clause. An oldproblem for both of these generalist accounts of causation is thedefeasibility of any seemingly sufficient set of conditions. Some-times, as in the concurrent overdetermination cases, there is morethan one sufficient set, so that the set in question is not necessary;144

more often, there is at least potentially some other condition notyet discovered actually necessary to make the set sufficient, so theset in question is not really sufficient.145 Continued refinements inthe causal laws can of course be made, but there is no foreseeableend to this process. The skeptic concludes that there are no such“deductive-nomological” causal laws and becomes a probabalist (orsomething worse) about causation.

Yet these flights to analogical reasoning and to probabalistictheories are premature, as is the flight to non-reductive naturalismabout law. In defense of a neo-Humean view of causation and causallaws, John Mackie urged that the needed sets of sufficient conditionsmust ultimately be looked for well below the macro level where

142 E.g., John Wisdom, “Philosophy, Metaphysics, and Psycho-Analysis”, in hisPhilosophy and Psychoanalysis (New York: Barnes and Noble, 1953). EdwardLevi An Introduction to Legal Reasoning (Chicago: University of Chicago Press,1949) and Steven Burton An Introduction to Law and Legal Reasoning, 2nd edn.(Boston: Little, Brown, 1995) seem to have caught some of this incubus as well.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 Science”,

University of California Publications in Philosophy 15 (1932), pp. 99–125.

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sufficiency is hard to find. Rather, we should look for those micro“laws of working” connecting very small sized types of events forthe needed sufficient sets.146 Similarly, to make sense of universal-izability in law or morals, we should not be embarrassed by our needto rely on all of moral theory to find relevant likenesses. It is a taskthat is literally beyond us but we do the best we can, making do withseemingly sufficient likeness on each occasion. So with singular andgeneral propositions of law, we must look for the needed disjunctsof sufficient sets in much smaller categories than my large ones inPart II; this should embarrass us here no more than elsewhere. It iseasier to believe that such sets exist than it is to make sense of purelytoken identities.

A third quibble reveals itself in the dismissive attitude oftenadopted towards reductions to disjunctive sets. Susan Hurley rejectsout of hand any “gimmicky disjunctive theory” because it “providesa ‘reduction’ of little interest.”147 Hurley’s dismissal is reminiscentof Wittgenstein’s dismissal of the idea that a rope made up of over-lapping strands can have any unity by virtue of the disjunction ofsets of strands making up the rope at different locations.148 It is nothard to discern the source of such scorn: what disjunctive sets ofsufficient conditions seem to lack is any account of what makesWittgenstein’s rope one rope – or that makes the disjunction ofphysical states into the mental state of intention, that makes thedisjunction of natural properties into the kind, goodness, or thatmakes the disjunction of moral and institutional properties into thekind, legal duty. The danger, of course, is that what makes thedisjunction a unity is either some irreducibly mental, moral, or legalproperty – in which event we are back at dualism – or some patternof response to the base properties that is typically human – in whichevent we will be back at skepticism (including perhaps the partialskepticism of secondary properties).

Let us call this the problem of finding an independent specifica-tion of supervening properties, since what is claimed to be missing

146 J.L. Mackie, The Cement of the Universe (Oxford: Oxford University Press,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 moreunited way) what mental, moral, or legal qualities are, other thanthe disjunction of base properties.

Before seeking to solve the problem, let us first share the discom-fort. Independent specification of the supervening property is evenmore of a problem for any supervenience naturalist who believeshe can get by with purely token identities. For the latter theoristdoes not even have the “unity” of a disjunctive set with which towork; all he has is a set of isolated tokens of base properties thatin the past have been identical to the supervening property tokens,with no guarantee that similar identities will recur and without anyrestriction on what base property token might be identical to whichsupervening property token in the future. Independent specificationof the supervening property is crucial for such a token-identity,supervening naturalist.

Returning to the disjunctive reductionism at hand. It is always ofcourse possible to find a single label for disjunctive sets of prop-erties. One might, for example, call the truth-makers of singularpropositions of law to be “interpretive facts,” as does Dworkin inhis rare metaphysical moments.149 Yet a unitary label only delaysthe inevitable; Dworkin holds his interpretive facts to supervene onthe various moral and non-moral facts making for a correct inter-pretation of a legal text150 and at that stage faces the same question,viz, what makes an interpretive fact unitary?

My own label has been “functional kind”151 but this has not beenintended by itself to answer this worry about unified legal proper-ties. The phrase “functional kind” as I have been using it refers to acomplex kind of instrumental good. It should not be equated simplywith artifacts that have a human use or purpose, as Lon Fuller waswont to do.152 English is rich with what are often called functional

149 Dworkin, “On Gaps in the Law”, in P. Amsalek and N. MacCormick (eds.),Controversies About Law’s Ontology (Edinburgh: Edinburgh University Press,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 Law

Theories (Oxford: Oxford University Press 1992), reprinted in Moore, EducatingOneself, supra note 4.152 See, e.g., Fuller The Law in Quest of Itself (Boston: Beacon Press, 1940),

pp. 10–11, where Fuller likens law to a steam engine.

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words, words like “knife,” “steam engine,” “mousetrap,” “stomach,”“lawyer,” “chair,” that are analyzed in part in terms of what suchitems are good for.153 Part of what makes a singular proposition ofstatutory law true is indeed the function of the statute in this sense,i.e., what good(s) it should be seen to serve.154 Part of what wasrelevant to the truth of the singular proposition of law in Kirby wasthe fact that the function of the federal statute was to promote freepassage of mail in a federal system. But such statutory functionis only part of what was relevant to that legal truth. Also relevantwas the larger functions of the ordinary meaning for words that areused in statutes, which are to promote both democratic rule by themajority and notice of the law to citizens.155 Also relevant was theeven larger function of all law which is to serve justice, includingthe retributive justice achieved when murderers are punished andthe innocent are not.156 Thus, when I classify as a functional kindthe act-type referred to by the phrase, “obstruct or retard the passageof the U.S. mail” (as used in the federal statute), I do so because thenature of the kind is given by its service of this complex hierarchyof functions – the functions of this statute, of all statutes, of all law.

On this view of things, a functional kind such as a legalobstructing is an instrumental moral good of a complex kind. Wethus face two queries about the unity of legal properties that super-vene in this way on a disjunctive set of moral properties. One isthe question of what unity is possessed by the functional kind, legalobstructing, in light of its supervenience on a disjunction of somelarge number of sets containing variations on at least three differentmoral kinds. The second is what unity is possessed by each of suchmoral kinds (such as retributive justice) in light of its supervenienceon some large number of sets of natural properties.

The model for an answer to both the moral and the legal ques-tion lies in the functionalist approach current in the philosophy

153 Cragg, “Functional Words, Facts, and Values”, Canadian Journal of Philos-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 afunctional specification of the disjunctive set of physical proper-ties by virtue of which one intends to go downtown today. Afunctional specification is one in terms of causal laws, connectingintentions both to other mental states and to behavior. Some ofus have argued, for example, that intentions are functional statesthat mediate between belief/desire sets and the volitional source ofactions; they are caused by such background states of motivationand they cause those immediate action-initiators known as volitions(or willings).158 Such intentions have the roles of resolving conflictsbetween belief/desire sets, transforming prima facie desires intoall 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 statethat plays these causal roles in the explanation of behavior. Such adefinition is designed to avoid the Scylla of thinking that the only“unity” to intentions lies in their being identical to a disjunctionof otherwise heterogeneous physical states, and yet to avoid theCharybdis of reintroducing some irreducibly dualist mental property(such as conscious experience or Intentionality) to do the unifyingwork. A functional specification is intended to be free of anynon-physicalist ontological commitments. No “functional reality”is wanted or needed. Rather, all that is needed are the physical statesmaking up the base properties, the behavior to be explained, andcausal roles for the set of physical states that intentions are.

Well, almost all that is needed. There is this nagging problemfor the functionalist-physicalist. If intentions are identified with aset of physical properties, and if intentions play the causal rolesset forth above, then surely (by Leibniz’ Law) the relevant physicalproperties play these causal roles too. So what reason do we have tocontinue talking of intentions or disjunctive sets of physical prop-

157 Summarized in Moore, “Mind, Brain, and Unconscious”, in P. Clark andC. 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 UniversityPress, 1987).

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erties? What can’t we frame our explanations of behavior in termsof whatever disjunct of physical properties causes the behavior on agiven occasion? Why isn’t functionalism, in other words, a kind ofskepticism, an eliminative materialism?

The standard answer that I and others have employed relies onthe distinction between causal relations and causal explanations.160

Statements of causal relations are usually thought to be extensionalbut causal explanations are not. Thus, an intention to go downtowntoday may causally explain my downtown-going behavior eventhough the physical state that intention on this occasion is, does not.The intention explains because of the systematic regularities thatintentions as a type are. Although a singular causal relation existsbetween the physical state my intention-token is, and my act-token,no causal relation exists in general between physical states of thistype and acts of this type. Causal generalizations making causalexplanations, in other words, exist only at the general level of types,and “intention” is our word for that causally explaining type.

This is usually termed the explanationist conception of onto-logical commitment. We commit ourselves to the existence ofsomething – and some one thing – if the existence of that thing isnecessary for the best explanation one can muster for some otheritem (like human behavior) that we assume for this purpose tounproblematically exist. Since intentions seem to be an inelimin-able posit of our best explanation of human behavior, we have goodreason to believe that they exist – i.e., we have good reason to disjoinotherwise heterogenous physical states in just the way necessary tomake sure there is a physical something (the whole set) playing theperceived causal roles.

Explanationists in ethics such as Sturgeon, Brink, Railton, Boyd,Lycan, and myself argue that exactly the same structure of argu-ment is appropriate for moral kinds like retributive justice.161 The

160 Moore, “Moral Reality Revisited”, supra note 68, at pp. 2498–2501, 2526–2533.161 Sturgeon, “Moral Explanations”, in D. Copp and D. Zimmerman (eds.),

Morality, Reason and Truth (Totawa, N.J.: Littlefield, 1984); Brink Moral Realismand 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 isgiven by the causal roles played by such kinds. Specifically, suchkinds cause moral beliefs, individual behavior, and (via them) largersocial movements. Each such moral kind being type identical to adisjunctive set of natural properties, on each occasion some disjunctof the set will also cause the phenomena in question if the moralkind causes it (Leibniz again). Yet the best causal explanation forthe phenomena will be in terms of the moral kind, not the indi-vidual disjuncts of natural properties. This, because of the greatergenerality of the explanation, as in the case of intentions.

Rather than rehearsing this argument further (which is hopefullyclear enough in its analogy to the functionalist approach to thephilosophy of mind) I shall rather consider a recent criticism of theexplanationist defense of my and Sturgeon’s reductionist-naturalist-realism in ethics. Michael Huemer urges that I have failed to makegood on the analogy of ethics to psychology because in ethics I havenot shown how moral properties like goodness explains anything notequally well explained by the disjunctive set of natural propertieson which goodness supervenes.162 Thus, Huemer imagines somepuckish naturalists who use the concepts good*, or badness, or anysymbol whatsoever, to stand for the base properties on which good-ness supervenes. By Huemer’s stipulation, none of these conceptshas the normative force of goodness (indeed, one of them, badness,has the opposite normative force). Would not good* or badness thenexplain anything goodness would explain for us?

We can learn two things from Huemer’s criticism. One is whatexplanatory competitions naturalist-realists do not have to win. Wedo not have to show that goodness is a better explanation of moralbeliefs or of behavior than the disjunctive set of properties on whichgoodness supervenes – after all, goodness is that set. We do have towin vis-a-vis explanations framed in terms of the natural propertiesconstituting the disjunct of that set on some given occasion. It is thelumping of these heterogeneous natural properties together as onedisjunctive set that gives us a better explanation of human beliefsand behavior. This is what must be shown to justify a commitment

supra note 45, chap. 11; Moore, “Moral Reality”, supra note 86; Moore, “MoralReality Revisited”, supra note 68.162 Huemer, supra note 119.

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to some one thing, the set, which we call “goodness.” This exactlyparallels the explanatory competition between intention and its baseproperties in the philosophy of mind; psychological explanationsare best if they explain behavior better than any given disjunct ofthe set of physical properties that psychological properties are. Suchpsychological explanations do not have to beat themselves, in effect– by showing how intention explains things that the set of physicalproperties an intention is, does not.

The second lesson to be drawn from Huemer’s criticism is howeasy it is to slip into dualist commitments about minds, morals, orlaw. Notice that for Huemer’s puckish “naturalists” to get started,they have to assume that they can pry apart goodness from itsnatural property base. It is this that allows them to imagine a purelydescriptive 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 itsnormative force, that is, in its capacity to give moral agents reasonsfor action. That capacity is apparently not sharable by the set ofnatural properties constituting goodness, nor by anything namedby purely descriptive concepts. That is dualism. And of course, ifdualism is true, naturalism is false, but assuming dualism is hardlya way of showing naturalism to be false. If the naturalist makes thecase that a disjunctive grouping of otherwise heterogenous naturalproperties best explains moral beliefs and moral behavior, nothingelse need be shown to justify an ontological commitment to good-ness. It may well be that it is because of the reason-giving capacityof that set that the set has the explanatory success that it does withmoral beliefs and moral behavior; but that fact too is a hypothesisto be established, not an assumption to be made because of somedualist commitments about the essence of morality.

The explanationist defense of the existence of “legal kinds”(functional kinds, of the complex sort described earlier, that areidentical to a disjunctive set of non-legal facts) differs little from theexplanationist defense of moral kinds. This should not be surprisingif one accepts my stipulated natural law view in Part II, sincethat view treats law as an instrumental moral good. The existenceof the instrumental moral good that is law is, like intrinsic moralgoods, part of the best explanation of five sorts of phenomena: (1)


legal truths other than the one doing the explaining; (2) individualbehaviors of judges, lawyers, and citizens; (3) larger social develop-ments, such as the rise of a capitalist economy; (4) the beliefs aboutwhat is and what is not legal; and (5) certain macro characteristicsof legal propositions “in the large,” such as the fact that no group isinfallible about the truth of such propositions. These parallel exactlythe sorts of moral truths, moral behaviors, moral developments,moral beliefs, and macro-moral phenomena best explained by moralkinds.163

Consider by way of example a crucial part of item (2) above, thebehavior of judges when they decide cases. Everyone in legal theoryconcedes the existence of this item, so that we have good grounds tobelieve that whatever is required to explain the existence of this itemalso exists. Also, explaining why judges reach the decisions they dohas been a central preoccupation of American jurisprudence for overa century.164 There is thus a well developed literature asking whatthe best explanation of this phenomena might be. Functional kindsof the complex sort earlier described exist if the best explanation ofthis 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 betweenthe parties if a decision is made one way rather than another, socialpolicies other than justice, social conventions, etc. (all collapsed intothe rubric “policy”).165 Legal positivists such as Hart and legal inter-pretivists such as Dworkin both seek to explain judicial behavior byreference 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 ThroughEnglish 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 negativeexistential thesis constitutive of skepticism. See particularly, Leiter, “Explanationand Legal Theory”, Iowa Law Review 82 (1997), pp. 905–909; Leiter, “LegalRealism and Legal Positivism Reconsidered”, Ethics 111 (2001), pp. 278–301.

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from the functionalist nature of legal kinds explicated herein; forHart, such kinds are made up of institutional facts,166 while forDworkin such legal kinds consist of interpretive facts.167

Admittedly, much of the jurisprudential literature on adjudica-tion should not be seen as framing explanatory competitions of thiskind. Rather, much of that literature argues normatively that judgesought to base their decisions on policy, institutional facts, inter-pretive facts, or functional kinds. Still, another part of that literatureseeks to do “descriptive,” not normative jurisprudence: judges arein fact caused to decide as they do by . . . [fill in the blank: policy,institutional facts, etc.]. Indeed, most jurisprudents seek to show thattheir favored facts both best justify how judicial decisions oughtto be made and best explain why they are made as they are. It isin this latter, descriptive/explanatory task that explanatory compet-itions (revelatory of one’s ontological commitments) about judicialbehavior are to be found.

This is not the place to rehearse all the reasons supportive offunctional kinds as part of the best explanation of judicial behavior.(The plausibility of such a view can be glimpsed by adverting tothe Kirby and Cappier decisions in Part II and asking what bestexplained those examples of judicial decision-making.) What shouldbe emphasized here is how this explanatory competition should notbe framed.

One competition the functionalist explanation does not have towin is one set up between functional kinds, on the one hand,and belief in functional kinds by judges, on the other. Functionalkinds, policy, institutional facts, and interpretive facts have tocompete inter se for being part of the best explanation of judicialbehavior; none of them has to compete with judicial beliefs (aboutfunctional kinds, policy, institutional facts, or interpretive facts).When explaining intelligent, motivated human behavior, there willusually exist causally efficacious beliefs of the human subject whosebehavior it is. Subjective explanations framed in terms of such

166 “Institutional Facts” is Neil MacCormick’s favored label for the blend ofhistorical and semantic facts that are the truth-makers of legal propositions forHart’s (and MacCormick’s) brand of legal positivism. See MacCormick andWeinberger, supra note 92.167 Dworkin, supra note 3; Dworkin, supra note 149.


beliefs of the acting subject do not eliminate the objects of thosebeliefs from being part of the best explanation of the behavior inquestion; such things can cause the behavior in question through thebeliefs of the acting subject. Thus, if one is explaining why a phys-icist decides that there is a proton in a cloud chamber168 in termsof the physicist’s more general beliefs about subatomic physics,that does not eliminate the proton as part of the best explanation ofthe physicist’s decision. Likewise for judges, that why they decidedKirby as they did includes their beliefs in the injustice of convictingan innocent does not eliminate the injustice itself as part of the bestexplanation of that bit of judicial behavior. It is entirely possible thatthe injustice caused the judicial beliefs about the injustice,169 andthat both therefore figure in the best explanation of judicial behavior.

A second sort of explanatory competition the legal functionalistdoes not have to win is one against himself, so to speak. As before,the crucial explanatory competition is not between functional kindsand the disjunctive set of non-legal facts to which functional kindsare identical. Rather, paralleling ethics and the philosophy of mind,the crucial competition is between functional kinds (the wholeset) versus one of the disjuncts of the non-legal facts making upthat set. In Kirby, that disjunct might be described as: avoiding agrave violation of negative retributive justice (by punishing a moralinnocent like Sheriff Kirby), and achieving an important degreeof positive retributive justice (by making possible the apprehen-sion and punishment of murderous mail carriers who otherwise willescape), and absence of sufficiently grave disservice of a sufficientlyweighty good served by this statute (free passage of mail in a federalsystem), and absence of a grave violation of the notice required incriminal cases (because the ordinary meaning is being contracted,not expanded), and absence of a grave violation of the majority’sright to rule in a democracy (because no legislator could have fore-seen this sort of application of his general language), and . . . [theother factors I stipulated away in Part II to keep things simple].

This description is not, as I noted before, nearly fine-grainedenough to capture a truly sufficient condition for the truth of this

168 The physicist example is from Gilbert Harmon, supra note 66.169 On the causal efficacy of moral kinds for moral beliefs, see Moore, supra

note 68.

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kind of singular proposition of American statutory law. Yet eveninadequately described as it is, with its many weasel words of“sufficiently grave,” “sufficiently weighty,” etc., the particularity ofthis disjunct should be apparent. It will compete poorly in explainingwhy judges and others have certain legal beliefs, behave as they do,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 sostrong two generations ago in philosophy, and yet one was otherwiseattracted to metaphysical realism, then one might well be temptedby Peircean Realism. This is a view that does its metaphysics withan epistemological metaphor. The idea is that the truth value ofsome proposition depends on the belief an ideally rational person(who thus makes no invalid inferences) would have if possessedof complete information in an ideal epistemic situation. This is notsome form of subjectivism or conventionalism because no actualbeliefs of historical persons are relied on. Rather it is an ideal beliefof an ideal human knower in an ideal epistemic situation – which ofcourse is none of us.

Charles Peirce is most famously associated with such a view,although Hilary Putnam moved from metaphysical realism toPeircean (“internal,” in Putnam’s lexicon) realism some yearsago.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 toabandon metaphysical realism for its epistemically idealized cousinare very general arguments having nothing to do with the particularontological 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 andmetaphysical realism do differ, namely, those cases that are beyondhuman comprehension. A metaphysical realist is committed to itbeing 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 if weidealize that ability to comprehend to its limits. Such truths, if theyexist, are in principle unknowable, at least by us. So the Peirceanrealist does a modestly skeptical reduction: what there is is whatcould be known by an epistemically idealized human knower.

Some Peircean realists seem to think that, like Rawlsian contrac-tualists in ethics, they can avoid questions of reference and identity.For they have an alternative truth-maker for propositions: the beliefsof an idealized knower. Yet absent some Lewis-like commitmentsto there really being such a knower in some possible world thatis not our actual world, this is nothing at all. Putnam’s versionis preferable: idealized epistemic approaches to truth constitute aninternal realism precisely because within the limits of what an ideal-ized knower can know all the apparatus of metaphysical realismis appropriate. Within the limits of what we can know, there arenatural 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 thereare any – that we will never in principle know about. If we have toargue about it, I will keep my bets on metaphysical realism; for Ido not see how the Peircean realist ever gets external to the rangeof things the best and the brightest of us can know so he can reportback to us that there is nothing there. It is this external glimpse thatallows him to report back to us that our ontologies are all internal tohuman epistemic capacities.

But I like to argue metaphysical positions that have little impacton anything. I will be the first to confess that whether I am right orwrong about the issue between the metaphysical versus the Peirceanrealist matters very little, not to physics and even more clearly notto a practical discipline like law.

Recently Coleman and Leiter have proposed a version ofPeircean realism for adoption by law,171 thus disagreeing with theforegoing. They obviously think that their “modest objectivism” hassome advantages over my “strong objectivism” (their phrase for ametaphysical 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.

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advantages over all forms of conventionalism and subjectivism: bothrealisms allow “the possibility that everybody could be wrong aboutwhat a rule requires; what seems right to everyone about what a rulerequires may not be right.”172 The Peircean realist has this virtuebecause truth is tied to an idealized epistemic knower, not to anyactual beliefs of historical persons. This is a virtue because, as wesaw with conventionalism, the seeming sense of revolutionary judg-ments – judgments going against conventional belief – needs to beaccommodated by one’s metaphysics, be it a metaphysics of law orof physics.

Coleman and Leiter think that Peircean realism can share thisvirtue with metaphysical realism without paying the costs in termsof an evidence-transcendent reality. This they treat as an advantageof Peircean realism over metaphysical realism not because of someOckham-like worry about metaphysical extravagance; rather, theythink Peircean realism garners an epistemic advantage from itsmetaphysical parsimony. According to modest objectivity, legalfacts are not evidence-transcendent. Legal facts are fixed by judg-ments under epistemically ideal conditions. Therefore, modestobjectivity does not face the same problem that metaphysicalrealism does in explaining how a judge could gain access to stronglyobjective facts.

The problem to which Coleman and Leiter are referring is theproblem that motivates most skepticisms with which I am familiar,what I call the gap problem. There is generally a gap between theevidence available to us and that which the evidence evidences.About induction, no matter how many cases we examine the causallaws we seek to infer always cover more; about other minds, nomatter how much behavior of others we may observe, another mindpotentially contains mental states – like Dummett’s courage of oneliving a safe life that never tests it173 – that never are evidenced bybehavior; 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 whenexperienced 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 eitherwas on the Mississippi when Jefferson said he was (to be part of theWestern Conspiracy), or he was not, even if our evidence is so scantas to not resolve the question.174

Reductionist skeptics eliminate this gap by denying that it exists.A mind simply is a set of dispositions to behavior, for example,so the evidence we possess matches that which it evidences. ThePeircean realist proposes a modestly skeptical reduction; what thereis is not reduced to the evidence we possess but to the evidence anidealized knower in an idealized epistemic situation (including allinformation humans could collect) could possess.

Notice how little of the gap (between evidence and thingsevidenced) is bridged by the reduction of the Peircean realist. Thereis still a huge gap between, on the one hand, the evidence and ourabilities to process it that any of us actually possess, and, on theother hand, that of a Peircean knower. The Peircean judge – Dworkincalls him “Hercules” – knows things that are indemonstrable toany real judge. I thus fail to see any epistemic advantages for suchPeircean metaphysics. It is true that for a Peircean realist there isless to know – the in principle unknowable. But within the limitsof what is knowable by an idealized knower, any real person is nobetter off epistemically in coming to knowledge about anything justbecause he doesn’t quest after the unknowable.

Surely the intuition that leads Coleman and Leiter in the oppositedirection here is rooted in the continuity they sense to exist betweenthe knowledge claims of any of us and the “knowledge” of anidealized knower. Every judge can approach Hercules’ ability andinformation base even if no judge is Hercules. Hercules – and allof his Peircean siblings in other fields, such as Adam Smith’s idealobserver or Rawls’ original contractor – just have more of what weeach have some of. By contrast, Platonic judges face a differencein kind and not just a difference in amount; Platonists have to seereality, 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, andmoral and legal terms refer to aspects of that reality, the identity of

174 See the revision of Jefferson’s view that Burr was there, in Nathan Schachner,Aaron Burr.

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things within that reality is handled in the same way as we havedone before, the truth of propositions lies in their correspondencewith that reality. The Peircean caveat is that that reality is limitedto what can be known by an idealized knower. But internal to thatcaveat, everything stays the same. In particular, every real personcan be in error on some point, or on every point, because whatthey believe does not correspond to Peircean reality, that is, to theidealized beliefs of an idealized knower. Such Peircean reality is no“closer” to the actual beliefs of any of us than is the reality of themetaphysical realist.

I conclude that if one wants any epistemic advantage he has togo conventionalist. Then we could solve Dummett’s worry aboutpsychologically grasping evidence-transcendent truths – becauseconventionalist truths are those that are grasped.175 Then we couldsolve Crispin Wright’s worry about the usability of evidence-transcendent truths – because conventionalist truths are the onesin use.176 Then Coleman’s and Leiter’s judges would not have tograsp 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 itsadvantage over conventionalism (of making sense of the possibilityof universal error) leaves no room for an epistemic advantage basedon some close connection to the actual beliefs of historical persons.

F. 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 asecondary property. Sometimes this view is pushed in the directionof supervenience naturalism, as in Hurley and Stavropoulos; some-times the view is pushed in the direction of Peircean realism, as inColeman and Leiter. But the secondary property view of the matteris in fact distinct from these and any other of the positions we havebeen examining. (As I shall mention below, secondary qualities aremore conventional than either supervenience naturalism or Peirceanrealism 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.177

Primary qualities for Locke were the undisputed real stuff – whatwe would today call natural kinds, named by projectible predicates,qualities doing work in our best causal theory of the world, etc.Secondary qualities are, as the name suggests, rather second classcitizens in the makeup of the world. They are not part of our bestexplanation of the world. Indeed, they are not wholly in the worldof objective fact; rather, they are subjective in the sense that theyare in part constituted by the kind of experience human beings havewhen confronted with certain primary qualities.

Take a color, such as red (a standard example of a secondaryproperty for Lockeans). The color red is said to be in the world inthe sense that there are primary qualities (electromagnetic radiationof certain wave lengths, together with the reflective and absorbivecapacities of certain surfaces) that uniformly cause a certain experi-ence in human beings, namely, the experience of seeing red. “Red”does not refer to those primary qualities, but it does refer to aproperty that those qualities possess – the dispositional property ofcausing seeing-red perceptual experiences in human beings.

Fans of secondary qualities thus promote them with the salespitch that they are in part objective even if also in part subjective.Stavropoulos: “something is red in some sense because we say so;but in some other sense it is not up to us – we say so because itis red.”178 This sounds more mysterious than it is. It is to recog-nize that if secondary properties exist and if redness is one ofthem, then redness is a part of the objective world, as real as anyother psycho-social fact. That certain properties of physical objects(their light absorbing surfaces), together with the electromagneticradiation those objects reflect, cause certain rods and cones in theback of the human eye to react in certain ways, which cause . . .

(eventually) the experience of seeing red in normal human beings,is a truth about the objective world. Its only “subjectivity” lies inthe recognition that the truth conditions for “is red” include promi-nently, “is experienced as red by normal human beings.” Were weall to experience light of the wave length we now call “green” as

177 Locke, An Essay Concerning Human Understanding (London, 1690), BookII, Chapter 8.178 Stavropoulos, supra note 6, at p. 102.

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we experience red, then “red” would not change its meaning; tied asit is to our collective experience, our red-seeing experiences wouldbe caused by green wave length light; and it is our experience thatdominates the primary properties causing it, so if those come apart“red” goes with the experience.

Whether there are secondary properties is an open question. Thebeliever in secondary properties has to fight and win a two-frontwar: he has to avoid the realist’s attempt to liken secondary toprimary qualities, and he has to fend off the skeptic’s attempt toshow that they are wholly subjective, that is, that they are mereprojections with which we stain the world on an individual basis.My own temptations, of course, lie in the realist direction. It istempting to conclude, with Kripke179 and Armstrong,180 that “red”refers to the primary properties (electromagnetic radiation, etc.) andthat the connection between “is red” and “is experienced as red”is non-analytic. But then some of us (Armstrong181 and myself182)would give the same analysis of “pain”; the connection between “ispainful” and “feels painful” is also non-analytic, so that it is possiblefor there to be unfelt pains, differential pain thresholds, etc. Since somany people find this metaphysics implausible (despite its riddingus of any need for analytic truths, rare commodities as it turns out),I shall make assumptions contrary to my own temptations here. Letus assume that there are secondary properties and that red is one ofthem. Can this be a plausible analysis, or even analogy, for moraland legal properties?

Take morals first. Skeptics like Blackburn find a secondary prop-erty analysis implausible, and they do so for reasons that here findcommon cause with realists like myself: a fundamental feature ofeveryone’s moral experience is the sense we have that everyone elsecould be wrong on some issue.183 We all sense this potential tobe a moral revolutionary vis-a-vis our fellows. Both the realist and

179 Kripke, supra note 127, at p. 140 n. 71.180 David Armstrong, A Materialist Theory of the Mind (London: Routledge and

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 (ed.),

Morality and Objectivity (London: Routledge and Kegan Paul, 1985), reprinted inBlackburn’s Essays in Quasi-Realism (Oxford: Oxford University Press, 1993).


the noncognitivist can accommodate this experience but as we sawthe conventionalist (relativist) about morals cannot. In this respectthe secondary properties account of morality differs not at all fromstandard issue relativism. On the secondary property account, as onthe relativist account, if everyone but me responds to natural factslike cruelty with praise and commendation, then cruelty is good.My attempt to say that cruelty is bad is like the inverted spectrumfellow who says that what everyone else sees as red he sees as greenand thus is green: we are both wrong because decisively outvoted.Since the meaning of “good” and “red” is tied to the responses ofhumankind in general, my attempt at revolution can be dismissedas the babbling of a person who doesn’t know the meanings of thewords he seeks to employ.

This relativist implication precludes secondary properties as agood ontological home for moral properties, as people as diversein their anti-realist metaphysics as Simon Blackburn and ColinMcGinn have agreed.184 This implication also debars a secondaryproperty analysis of legal qualities. There is no consensus that cansettle the question whether Sheriff Kirby obstructed and retarded thepassage of the U.S. Mail. The singular legal proposition that Kirbywas not guilty of such an obstructing depends on the non-legal factslaid out in Part II; but it does not depend on what response thosefacts cause in most citizens, most lawyers, or even most judges. Ourpractice of law is not (and should not be) that conventionalist.

I take it that it is precisely the conventionalist nature of asecondary property analysis that motivates Coleman and Leiter toelide a secondary property analysis into some kind of Peirceanrealism185 (although this is not as clearly true of Leiter in his ownwritings,186 because he seemingly separates the two). They do thisby idealizing the epistemic situation in which human responders arecaused by certain primary qualities to have a response like, “seemslike red” or “seems not guilty of obstructing.” Coleman and Leiter’sideal judge possesses all relevant information, is fully rational, has

184 See ibid.; Colin McGinn, The Subjective View: Secondary Qualities andIndexical 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 Review

72 (1993), pp. 187–209, at p. 194 n. 26.

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all the imagination, empathy, or other heuristics available that cangenerate insight, and is in an ideal epistemic situation in that he isfree of bias, prejudice, or prejudgment.

Coleman and Leiter’s ideal judge, like Dworkin’s Hercules, is ofcourse no real judge. He is smarter, more knowledgeable, and bettersituated than any real judge. This is what allows Coleman and Leiterto rebut the charge of conventionalism. But it also is what takes themout of a secondary property analysis. Fans of secondary propertiestout them as being in the objective world precisely because they arethe dispositions of actual, historical persons to actually have certainexperiences and beliefs, caused by certain primary properties. Totake away the actuality of the experience plus belief, to talk of the“beliefs” of a hypothetical, idealized person, is to leave the actualworld. Moreover, although put in terms of what beliefs an idealjudge would have, it should been clear that Coleman and Leiter’sanalysis renders that “would” not a true counterfactual; “would” forthem means “should,” that is, the relation is not causal but norma-tive, invoking a norm of rationality. This also robs their idealized“secondary property” analysis of being unproblematically in theobjective world, one of the attractions of a true secondary propertyanalysis.

It is true that standard secondary property analysis restricts theexperiences that count to those occurring in normal conditions, e.g.,standard lighting for “red.” Yet normal is not ideal; it is rather acommon condition that obtains much of the time and in whichpeople are caused to have the distinctive experience of seeing red.Normal conditions are real states of the world in a way in whichidealized epistemic situations are not.

An illustration of this difference is provided by the concept ofnegligence. Negligence has its own idealized human knower, thereasonable person. There are two concepts of this fellow. The firstconcept identifies him as the statistical average of humankind. Thisis the famous “man on the Clapham omnibus” of English juryinstructions. To be negligent on this average or normal conceptionis to fail to believe and do what the average person would do. Suchnegligence is thus dispositional in the sense that non-negligence isthe disposition of most of us to certain statistically normal behavior.


The second conception of the reasonable person is explicitlynormative. Even if most of us in summer drive with our elbowsresting on an open car window,187 even if every mine operator sinceTubal Cain fails to have railings around ladder openings in platformsin mines,188 we shouldn’t. The reasonable person is the person whobelieves and does what he should, not what most of us would believeand do.

American tort and criminal law reject the secondary propertyview of negligence, the first view that collapses what is reasonableinto the dispositions of most of human-kind to believe and behavein certain ways. It does this precisely for the reason that movesColeman and Leiter: legal concepts should not be wholly conven-tionalist in the way a true secondary property analysis would renderthem.

I find even more puzzling the resort to secondary propertyanalysis by supervenience naturalists about law and morality such asNicos Stavropoulos189 and Susan Hurley.190 On their face these twothings don’t go together. On the supervenience-naturalist accountof law, Sheriff Kirby’s legal non-obstructing is token identical toa particular combination of the non-legal properties identified inPart II, and legal obstructing as a type supervenes on those kindsof non-legal properties. In these relations of token identity andasymmetrical co-variance of types, there is no room for typicalhuman response to play a role. Legal properties depend on non-legal properties, full stop, for the supervenience naturalist. Theythus do not and cannot depend on typical human experiences causedby those non-legal properties. I thus find the attempt to attach asecondary property analysis to a supervenience naturalist accountof law to be puzzling.

But perhaps I was mistaken in taking seriously this analogizing oflaw and ethics to anomalous monism and supervenience naturalism

187 In Schilling v. Stockel, 133 N.W.2d 335 (Wis.Sup.Ct. 1965), the WisconsinSupreme Court held that as a matter of law it was negligent to drive with one’sarm resting in an open car window, even while recognizing that many or evenmost 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.

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in the philosophy of mind. Their view is perhaps more accuratelycaptured by the following beliefs:

1. Each token of a legal kind (like obstructing the mail) and eachtoken of a moral kind is identical to some constellation of tokensof 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) ofnon-legal and non-moral properties, respectively.

3. Some constellation of tokens of non-legal properties and someconstellation of tokens of non-moral properties (the “base”properties), singularly cause the beliefs, behaviors, and socialstructures referenced earlier; thus, those tokens of legal andmoral kinds identical to these constellations also singularlycause these things.

4. The best explanation of such beliefs, behaviors, and social struc-tures lies with the non-legal and non-moral base properties, notwith 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 conceptspeople employ for them. Just as “red” names the dispositionof certain base properties to cause red-seeing experiences inhumans, 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 propertiesto cause beliefs in legal actors with legal duty as their content.The experiences and beliefs such base properties cause cannotbe described without using the concepts of redness, goodnessor legal obligation, because the content of such beliefs andexperiences employ such concepts.

6. The legal and moral properties named by such conceptssupervene on a completely open-ended set of non-legal andnon-moral base properties; this means that no good-seeing orlaw-seeing experience can change without there being somechange in some non-legal and non-moral properties, without anyrestriction on what those changes or the properties involved inthem might be. Why such co-variance should exist is myster-ious, except that one posits the necessary existence of sometheory (carefully distinguished from the existence of some


theory making metaphysically necessary such co-variance) thatmight explain it.

This would be a true secondary property analysis of legal and moralconcepts, and perhaps this is what Stavropoulos and Hurley propose.Yet belief number five reveals the doubly conventionalist nature ofthe analysis. Not only are “good” and “liable” a function of averagehuman response, as is true of all secondary property analyses: butnow we (collectively) are ourselves actively responsible for gener-ating such response by our conceptualizing the world in terms of theartificial (i.e., not metaphysically necessary)) concepts of red, good,and liable. With such conventionalism comes the standard problemsof both vulgar and not so vulgar relativism.

IV. CONCLUSION

Metaphysics is not for everybody. At least it is not to everyone’staste. There are many sorts of questions about the law other thanthe question of ontology I have been pursuing in this paper, andalmost all of these other questions undoubtedly have more directimplications for practical affairs. Still, the motive for some of usturning to philosophy initially was the curiosity about the ultimatequestions of existence with which metaphysics deals.191 What sortof thing law is is one such question.

I suspect that many philosophers became legal and politicalphilosophers in part to avoid metaphysical questions. If so, thephilosophy of law is the poorer for it. Most of that impoverishmentis due to the eschewal of metaphysics within legal practice. Wehave legal standards making liability turn on questions of voluntaryaction, causation, intention, the best interest of a child, crimes ofmoral turpitude, equal protection of the law, the right of free speech,etc. On the K-P semantics that I, Brink, Stavropoulos and othersthink makes for the best interpretation of those elements of liability,there is no help but to “go metaphysical” and ask after the nature of:

191 As David Armstrong concluded his most recent book on the metaphysics ofuniversals, such a problem “may commend itself to those happy few who feel theintellectual fascination in . . . ‘grubbing around in the roots of being.’ ” Universals,supra note 147, at p. 139.

LEGAL REALITY 705

events in general and human actions in particular; causal relationsand causal generalizations; intentions and other propositional atti-tudes; moral qualities like goodness and moral relations like naturalrights, etc.

Some of the impoverishment is also due to an ignorance of themetaphysics of law itself. Despite my beginning in particular juris-prudence in this paper, that has been the topic. The supposition isthat how law fits into our picture of the world is a worthwhile ques-tion to pursue. It lacks the direct, practical payoffs of a metaphysicsof 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 relatesto the other mountains we have already climbed.

University of Illinois School of Law504 East Pennsylvania AvenueChampaign, IL 61820E-mail: [email protected]

legal reality: a naturalist approach to legal ontology

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