I am grateful to Jason for calling attention to the lovely, lucid, and synoptic essay by Scott Soames (USC) on "Analytic Philosophy in America," which I read with appreciation yesterday evening. I concur with Jason’s recommendation that this is an essay that educated non-philosophers ought to read if they want to have an idea what has been going on the last 40-50 years in English-speaking philosophy (as Soames notes at the end, much of what he is describing is philosophy in the English-speaking world, not just philosophy in America). That being said, I want to note one reservation and then raise one question.
The reservation is this: the two pages on philosophy of law contain errors. Soames is not a philosopher of law, and he quite reasonably gives most of his attention to developments in philosophy of language–given his own expertise and the importance of that field to the story he is telling. But the errors in the two pages (pp. 28-29) on philosophy of law range from the minor to the fundamental, and they deserve flagging (and perhaps they can still be corrected).
On the rather minor end of the spectrum: he compares the "revival" in political philosophy effectuated by Rawls and Nozick to the "revival" in philosophy of law effectuated by Dworkin. But surely it was Hart who brought about the integration of jurisprudence into English-speaking philosophy generally, and rejuvenated philosophical interest in law; Dworkin, Feinberg, Raz, Finnis and others simply continued that development. (One can acknowledge this point without agreeing with my stronger claim that the Dworkinian program is now discredited and defunct.) Indeed, among philosophers who think about law, Raz’s influence is far greater than Dworkin’s. Also, and even more minor, Soames describes Dworkin as "at New York University since 1994," when he joined the NYU faculty in the late 1970s (1977, according to the Directory of American Law Teachers). (Perhaps 1994 is meant to be a reference to the date of his cross-appointment to the philosophy department.)
On the more important, substantive end of the spectrum: Soames describes Hart’s positivism as "a view according to which legal validity is, in the main, a matter of fidelity to the institutional sources of positive law, and, except at the margins, independent of substantive moral considerations." Soames’s gloss on Hart is a Razian one (no quarrel there, this is a survey piece, after all), but even on that gloss, it is no part of the positivist view that legal validity is ever a matter of "substantive moral considerations": such considerations may influence how a judge decides cases, but they are not themselves criteria of legal validity. This conflation (between criteria of legal validity and how judges ought to decide particular cases) suggests that Soames has simply adopted wholesale the confusion for which Dworkin is most famous (or infamous, as it were) among legal philosophers, namely, between the questions "what is law?" and "how ought a judge decide the case before him?" This comes out even more clearly when Soames writes:
As opposed to this [the positivist view of legal validity], Dworkin argues for a theory of "constructive interpretation" in which there are no cases in which the contents of laws, and their applications to particular cases, are, in principle, entirely determined by the routine application of conventional, legal rules–independent of any moral assessment of the consequences of particular applications, and any judgment about how those consequences bear on the social purpose of the laws, and the intentions of those who enacted them.
The bolded portion conflates the distinction, emphasized by Raz, between "pure" and "applied" legal statements: that is, the distinction between "pure" statements like "character evidence is inadmissible in a civil trial to prove action in conformity therewith on a particular occasion" (which is a legally valid rule of evidence in the U.S.) and "applied" statements like "defendant’s prior conduct reveals his habitual behavior, and so may be admitted into evidence." Positivists are not committed to the view that applied legal statements are always "entirely determined by the routine application of conventional, legal rules," and Hart, of course, is explicit that there will be a range of cases where judges will have to exercise discretion. No positivist believes, either, that valid "pure" legal statements should be applied in particular cases without regard to "the consequences of particular applications." To the extent that a judge has a duty to decide according to law, then the judge must apply the valid legal norms (those with the requisite institutional sources); but it is no part of the positivist thesis about legal validity to deny that in some cases, the duty to apply legally valid norms is, and ought to be, overriden by other equitable and moral considerations.
Soames then characterizes Dworkin’s view of adjudication as follows:
Instead, all adjudication is seen as requiring the judge to weigh substantive moral concerns with existing legal history, so as to arrive at the most just and morally desirable principles for achieving the legitimate ends of law, while accomodating, so far is reasonably possible, the results of past decisions and existing legal practices.
The "instead" is misplaced, of course, since the positivist view of validity is not a theory of adjudication.
Now to the question. As longtime readers know, I don’t think "analytic philosophy" exists except as a kind of sociological artifact, and I don’t think anyone can give a satisfactory account of it that isn’t wildly over- or under-inclusive. (See here for one of many discussions of this topic.) In this regard, I was struck by Soames’s gloss on page 6:
[I]t is important to remember that analytic philosophy is neither a fixed body of substantive doctrine, a precise methodology, nor a radical break with most traditional philosophy of the past–save for varieties of romanticism, theism, and absolute idealism. Instead, it is a discrete historical tradition stemming from Frege, Moore, Russell, Wittgenstein, and the logical positivists, characterized by respect for science and common sense, belief in the relevance of logic and language for philosophy, emphasis on precision and clarity of argumentation, suspicion of a priori metaphysics, and elevation of the goals of truth and knowledge over inspiration, moral uplift, and spiritual comfort–plus a dose of professional specialization.
I assume most informed folks think Paul Churchland, John McDowell, Bernard Williams, Alvin Plantinga, Laurence BonJour, Hilary Putnam, George Bealer, and Christopher Peacocke are "analytic" philosophers, but doesn’t each of them fail to fit one or more of the characteristics noted by Soames? What do readers think? Non-anonymous postings will, as usual, be strongly preferred.
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