Once again Brian Leiter defends a jurisprudence of how things ought to be. We "ought" to see things "as they are."
So what's the difference between the twin and opposed oughts of morality and realism? Ought is a term of morality; you dumb fuck.
It's like listening to a prosecutor arguing that justice is defined by the prosecutorial ethos. So is the defense expected to say the reverse -that justice is defined by defense- or rather that justice is best served by a formal adversarialism in which both sides play their part? That after all is how the system is designed, but it takes an ironic understanding of one's own role to get the point.
Again, and again, and again: The history of justice -and history precedes theory in importance if not now in popularity- is the history of debate among competing doctrines of interpretation: of the relation of words to words, of people to people. and of each to the other. These are moral questions. We argue form to argue value. Dworkin's Hercules is a fictional character, but the closest analogy I can come up with (which Dworkin may not like, but then he doesn't seem always to understand his own arguments even when he's right) is that of a novelist or poet trying to come up with the right answer to the problems of a particular piece, therefore putting great moral weight as poets do on the construction of a descriptive model of the world. It's not the decision that matters it's the act of justification, you stupid fucking jackass. And Dworkin and Posner and Leiter and Shakespeare and Pope (and the Pope) spend most of their lives engaged in the justification of their ideas: in the presentation of intellectual, formal, rhetorical and moral constructions, before a public and posterity which will judge whether to agree or approve or not. Law in a republic is not the laws themselves, which are no more than buoys on the water or pins on a blank map, but the process of their forming. Democracy is the acknowledgment that it has always worked this way and that it's better and more honest to admit it rather than allow self-serving authority to hide behind a lie. You want people to agree with you, you pedantic little fuck. That fact is more foundational to your ideas than your ideas are to anything else. "Democracy is the culture of language in use." How many times have I written that?
The difference between Dworkin and Posner is that Dworkin asks questions concerning morality and Posner answers questions according to what he assumes is moral. Leiter's like a strutting peacock who says he doesn't care what others think. The cognitive dissonance is painful. The rationalism of vanity. Fucking academics
Took at look at The Craftsman yesterday. Searched the index for "Literature", "Novel", and "Law." Zip. Nada. Zilch.