Luka Burazin’s Naturalized Jurisprudence is an elegant discussion of the various movements to naturalize legal philosophy. Burazin differentiates between substantive and methodological naturalism, further distinguishing two types of substantive naturalism: “Ontological naturalism is a view that philosophy should accept as real or actually existing only (in a broad sense) natural things, properties, entities and phenomena (i.e., those identified through the methods of empirical sciences)…. Semantic naturalism is the view that a philosophical analysis of a concept must show it to be ‘analyzable in terms that admit of empirical inquiry’” (P. 1).
In contrast, he explains methodological naturalism as “the view that philosophical theorizing should abandon armchair theorizing on the basis of philosophers’ intuitions and common-sense beliefs (‘truisms’), thought experiments (hypothetical situations), and a priori conceptual analysis, and use instead the (empirical) methods of successful (natural and social) sciences and the scientific style of explanation.” (P. 1.)
It is worth noting at the outset that ontological naturalism, as stated here, appears to be inconsistent with the existence of propositional and non-propositional abstract objects, such as law, sets, and objective moral rules, which our linguistic practices assume exist, because picked out by noun-terms. If ontological naturalism is concerned to explain the world that we construct with our conceptual, mathematical, and evaluative practices, it seems to be a non-starter from the outset. If it is concerned with identifying some mind-independent truth, it seems unequipped to do so.
While an ontological naturalist might, as Burazin points out, explain law in terms of human behaviour and mental states, there are two problems. First, since mental states are not publicly observable, an ontological approach would have to rely on verbal testimony that describes their mental states, evidence that might not always be available. Second, it is not clear that law and its associated practices can be adequately explained without relying on abstract non-naturalistic objects, like norms and systems.
Burazin goes on to characterize American Legal Realism (ALR) as a form of methodological naturalism that “advocates replacing conceptual and normative (justificatory) theories with empirical and descriptive theories (thus changing the goals of theoretical inquiries), or normative naturalism, which aims to regulate a certain human practice (e.g., of acquiring knowledge or adjudicating) but requires that normative theories be based on empirical findings on which normative recommendations can actually be followed by their addresses and can actually produce the desired effects” (P. 2).
In his view, ALR advocates abandoning normative theories of how judges should decide cases with empirical studies of judicial behavior that do no more than explain the judges’ decisions in terms of their beliefs and inferences they make.
Of course, this seems to require that we utterly abandon normative theorizing about legitimate judicial decision-making. If the goal of theorizing about law is to understand the notion as we construct it, which comports with a methodological naturalist approach, then a replacement naturalism of this sort will fail to explain the most important dimensions of our shared lives together – our normative and evaluative practices. While, I suppose, those practices might be objectively mistaken (assuming such talk can be explained within a naturalistic framework), not being able to explain or even address them comprehensively greatly diminishes the utility and value of a naturalistic explanation.
Related to this line of thought, Burazin considers Leiter’s proposal “to abandon a priori conceptual analysis of the concept of law and turn jurisprudence into an abstract and reflective part of empirical social sciences of law, with the main task of jurisprudence being to offer ‘greater reflective clarity about the concepts invoked in the most powerful explanatory and predictive empirical social-scientific research on law” (P. 4).
One concern about Leiter’s proposal is that it seems to require abandoning all a priori analysis, leaving us no way to explain logical and mathematical reasoning – even if it countenances the existence of norms. Deductive reasoning is a matter of evaluating inferences under certain standards of reasoning and is hence a priori in character.
None of this should be taken to deny, of course, the altogether sensible suggestions that empirical experimental methods are useful in clarifying the content of our concepts – especially if one takes the position that the only concepts to which we have epistemic access are the ones that are manufactured by our shared practices for using words.
Sensing these issues, Burazin proposes a “conceptually methodological naturalism” that “retains the conceptual goals of traditional jurisprudence … but requires that conceptual analysis be based on the empirically ascertained usage of the relevant words” (P. 5).
Indeed, this is the very template that Hart and Raz adopted, as both were concerned with analyzing our ordinary concept of law. As Hart put this important point at the beginning of the Preface to The Concept of Law:
More over, at many points, I have raised questions which may well be said to be about the meanings of words.… Many important distinctions, which are not immediately obvious, between types of social situations or relationships may best be brought to light by an examination of the standard uses of the relevant expressions and of the way in which these depend on a social context, itself left unstated.1
Similarly, as Raz explains:
The notion of law as designating a type of social institution is not … part of the scholarly apparatus of any learned discipline. It is not a concept introduced by academics to help explain some social phenomena. Rather, it is a concept entrenched in our society’s self-understanding…. It is part of our self-consciousness, of the way we conceive and understand our society…. That consciousness is part of what we study when we inquire into the nature of law.2
It is hard to do justice to Burazin’s essay with so few words, but I can say this: in six pages, he manages to provide an accessible, though philosophically sophisticated, explanation of many different naturalistic theses. Though many of these positions remain contentious, as my discussion of them suggests, this is a well-written, elegantly organized discussion of a topic that has many dimensions. It is a fantastic starting point for anyone – theorists, students, and laypersons – interested in understanding the naturalistic movement.
- H. L. A. Hart, The Concept of Law (2012).
- Joseph Raz, Can There Be a Theory of Law?, in Between Authority and Interpretation 31 (2009).
