1. Madry, Alan & Richeimer, Joel, The Possibility of Normative Jurisprudence: A Response to Brianv LeiterGoogle Scholar (see article in this issue of journal) [hereinafter M&R].

2. Leiter, Brian, Heidegger and the Theory of Adjudication, 106 Yale LJ. 253 (1996).CrossRefGoogle Scholar

3. A descriptive theory, of the sort I and other Legal Realists advocate, does not eschew mentalistic idioms, contrary to M&R (p. 211).Google Scholar To discount “what [judges] say they are doingrdquo; is to discount, in large measure, their published rationales for their decisions; to focus on ldquo;what causes them to do what they dordquo; requires only that we focus on the reasons not articulated in their opinions that explain their decisions. Reasons (and mental events more generally) can, of course, be causes, and nothing I say suggests otherwise. See generally, Leiter, Brian, Rethinking Legal Realism: Toward a Naturalized Jurisprudence, 76 Tex. L. Rev. 267, 298–301 (1997).Google Scholar Thus, nothing in naturalized jurisprudence as I conceive it requires denying ldquo;our interior livesrdquo; (M&R, p. 211).Google Scholar

4. In this regard, M&R misunderstand Holmes. They note that Holmes thinks judges “have failed adequately to recognize their duty of weighing [consciously and explicitly] considerations of social advantage,” and take this to show that Holmes would have judges depart from their existing practice (M&R, p. 216).Google Scholar They omit mention of the comment that immediately follows: “The duty is inevitable.…” precisely because, as Holmes tells us on the prior page, “Behind the logical form [of every legal argument] lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet at the very root and nerve of the whole proceeding.” Holmes, O.W., The Path of the Law, 10 Harv. L. Rev. 457, 467, 466 (1897).Google Scholar In other words, judges (according to Holmes) are already “weighing considerations of social advantage”; Holmes would simply have them do so openly. My account of the relation between descriptive and prescriptive theory never denied the role for this kind of normative advice: my claim was simply that telling judges that what they “ought” to do is be more explicit about what they already actually do is a rather modest normative demand, one that clearly acknowledges the constraint of actual practice.

5. See Moore, Michael S., The Need for a Theory of Legal Theories, 69 Cornell L. Rev. 988 (1984)Google Scholar; Walt, Steven, Some Problems of Pragmatic Jurisprudence, 70 Tex. L. Rev. 317 (1991).Google Scholar (Both articles are cited in Leiter, , supra note 2 at 255 n.6.)Google Scholar Unfortunately, M&R misunderstand Moore's critique of Robert Summers's interpretation of Legal Realism. Moore doesn't reject the idea that an adequate description of judicial decision making is a constraint on normative theory; he simply rejects Summers's quasi-Realist idea that a mere social-scientific, causal explanation for judicial decisions could suffice to address questions about the legitimacy of adjudication.

6. M&R are guilty of considerable critical overreaching when they suggest, falsely, that I attribute this Dworkinian approach to theory of adjudication to Coleman, Lyons, and Raz, (M&R, p. 217).Google Scholar My paper, of course, does nothing of the kind, for the obvious reason that, as M&R themselves note: “None of these philosophers… is addressing a theory of adjudication” (M&R, p. 217–218).Google Scholar I cite these writers in the context of discussing one element of a theory of adjudication, namely “an account of proper standards of decision.” Leiter, , supra note 2 at 258.Google Scholar A theory of law is, of course, one part of a theory of adjudication; but many writers have a theory of law who have no theory of adjudication. Nothing I said involved denying this obvious point.

7. M&R do take issue with one part of my reconstruction of Heidegger. They write: “Leiter mistakenly claims that according to Heidegger the background can't be made explicit, because of its vastness” (M&R, p. 233, n.72).Google Scholar But I was quite explicit that this gloss on the Heideggerian point was not supposed to be an interpretation of Heidegger. The question of why the Background can't be made explicit “presents some diflicult issues in the interpretation of Heidegger. In their stead, let me propose two considerations that are Heideggerian in spirit.” Leiter, , supra note 2, at 267.Google Scholar Why did I take this tack? I'll put the point bluntly: I find it utterly obscure what Heidegger's argument actually is for the claim that the Background resists theoretical articulation; even Dreyfus does not do much better than bald assertion rather than argument on this issue. It is neither encouraging nor helpful to be told, as we are by M&R, that the reason the Background can't be theoretically articulated is because it “is a mass concept, not a count concept” (M&R, p. 223, n.72).Google Scholar This too looks like assertion, not argument.

8. Leiter, , supra note 2, at 28Google Scholar

9. Id. at 277 n. 87.

10. Id. at 281.

11. Cf. M&R, p. 237Google Scholar: “To repeat, the sciences are obligated to explain everything. Theories of adjudication are not.” But nothing I said suggests that theories of adjudication carry the exact same theoretical burden as the sciences.

12. Indeed, my article explicitly affirms the competence of judges to do what they do, notwithstanding the failure of theory. See Leiter, , supra note 2, at 276–82.Google Scholar

13. I've inserted the material in brackets, as the only real issue raised by my paper is whether jurisprudence is a social scientific theory.

14. Hart, H.L.A., The Concept of Law V (1961).Google Scholar

15. Perry, Stephen R., Interpretation and Methodology in Legal TheoryGoogle Scholar, in Law and Interpretation: Essays in Legal Philosophy 97Google Scholar (Marmor, Andrei ed., 1995).Google Scholar

16. It might be objected that Hart's conception of the “social scientific” dimension of law was “hermeneutic” not “positivistic” in character that is, Hart took for granted that to understand law one must understand it from the “internal” point of view of participants in the practice. But this does not show that, when it comes to theory of adjudication, a theory about how judges ought to decide cases is not a theory that specifies “mechanistic” rules for decision. which is all that is at issue in the Heideggerian critique. See the discussion in the text that follows below.

17. Leiter, , supra note 2, at 280 (citation omitted).Google Scholar

18. Id. at 280–81.

19. See Leiter, Brian, Nietzsche and the Morality Critics, 107 Ethics 250, 252–55 (1997).CrossRefGoogle Scholar

20. Leiter, , supra note 2, at 258.Google Scholar

21. See Leiter, Brian, Naturalism and Naturalized JurisprudenceGoogle Scholar, in Analyzing Law: New Essays in Legal Theory (Bix, Brian ed., 1998)Google Scholar; Leiter, Brian, Holmes, Economics and Classical RealismGoogle Scholar, in The Legacy of Holmes, Oliver Wendell Jr.: The Path of the Law” and Its InfluenceGoogle Scholar (Burton, Steven J. ed., 1998).Google Scholar

22. Oddly, Jules Coleman claims (in arguing against what I call “naturalized jurisprudence”) that “No contemporary analytic jurisprudent is a formalist.” Coleman, Jules, Second Thoughts and Other First ImpressionsGoogle Scholar, in Analyzing Law, supra note 21, at 50Google Scholar (ms). But to be a formalist—in the sense of “formalism” at stake in my arguments for naturalized jurisprudence—is simply to believe that the class of legal reasons justifies a unique outcome in many or all cases. Dworkin (at least in his early work) believes the latter, Hart and many other writers believe the former.

23. The maxim is, as it is in Marx, a broadside against non-naturalized philosophy. Let me also note—for lack of a more apt place for doing so—that the final footnote of M&R's article strikes me as gratuitously ad hominem: What difference could it make what Heidegger would have thought of Quinean naturalism, or what Quine thought of Heideggerian phenomenology? How could it matter that “neither would want to be used to defend the other” (M&R, p. 239Google Scholar, n.81)? If we dispense with the ad hominem, then all we are left with is the point I had explicitly made already in the last footnote of my article: “Heidegger would not advocate ‘naturalism,’ though for reasons that are tangential to my concerns here.” Leiter, , supra note 2, at 282 n.112.Google Scholar

24. Marx, Karl, The German IdeologyGoogle Scholar, in The Marx-Engels Reader 155Google Scholar (Tucker, R.C. ed., 1978).Google Scholar

25. For relevant qualifications on the scope of this claim, see Leiter, , Rethinking Legal Realism, supra note 3, at 301–2.Google Scholar