Best Anglophone philosophers of law since 1945

Best Anglophone philosophers of law since 1945: the results

So our latest poll got a bit more than 200 votes; since there were fewer choices here (a bit like the earlier Kant poll), I will just note the "top ten":

1. H.L.A. Hart (Condorcet winner: wins contests with all other choices)

2. Joseph Raz （loses to H.L.A. Hart by 139–35)

3. Ronald Dworkin (loses to H.L.A. Hart by 141–31, loses to Joseph Raz by 91–85)

4. John Finnis (loses to H.L.A. Hart by 158–17, loses to Ronald Dworkin by 125–47)

5. Joel Feinberg （loses to H.L.A. Hart by 168–3, loses to John Finnis by 79–75）

6. Jeremy Waldron （loses to H.L.A. Hart by 169–11, loses to Joel Feinberg by 84–63）

7. Lon Fuller（loses to H.L.A. Hart by 167–6, loses to Jeremy Waldron by 80–68）

8. Jules Coleman （loses to H.L.A. Hart by 167–4, loses to Lon Fuller by 85–42）

9. Tony Honore （loses to H.L.A. Hart by 172–2, loses to Jules Coleman by 69–54）

10. R.A. Duff （loses to H.L.A. Hart by 167–1, loses to Tony Honore by 62–47）

Just outside the top ten were Neil MacCormick, Gerald Postema, Frederick Schauer, and Michael Moore. The top ten living philosophers of lawwere Raz, Finnis, Waldron, Coleman, Honore, Duff, Postema, Schauer, Moore, and David Lyons. Recall that, as in prior polls, only living philosophers of law over 60 were included in the poll.

As in earlier polls, and putting ordinal ranking (partly) to one side, the results, including those just on the cusp of the top ten, seem sensible (though Stephen Perry, for his work in tort theory and general jurisprudence, should pretty clearlyhave been in the top ten as well), though I was a bit astonished by Lon Fuller's showing: Yes, "The Case of the Speluncean Explorers" is a brilliant piece of legal writing, but his purported contributions to jurisprudence are feeble and confused. As to the ordinal ranking, it is nice to see that Hart came out so firmly on top, and also good to see that Raz came out ahead of Dworkin.

Thoughts from readers?

Posted by Brian Leiter on March 03, 2016 at 09:53 AM in Legal Philosophy, Philosophy in the News | Permalink

Comments

1A graduate student said...

I thought the same about Fuller. Seeing that ranking last and not ranking had different effects, I thought it important to rank Fuller last rather than alongside the many thinkers whose work I am not familiar with. I think Dworkin got most things wrong but there are enough original, interesting and agenda-setting thoughts embedded in the confusions and misrepresentations that I still ranked him highly. Sifting through Law's Empire can be bizarrely rewarding even when you disagree with most of the premises, let alone the arguments. Trying to work out what is going on in The Morality of Law, on the other hand, is not much fun.

I had Raz first, above Hart. I wonder how many of those sympathetic to Raz's work still put Hart on top; I suspect many. It seems to me this is owing in no small part to his role in revitalizing the subject. In my view Raz's is today the more impressive overall body of work, even granted the debt to Hart.

ReplyMarch 03, 2016 at 10:15 AM2Cora Diamond said...

In reply to "A graduate student". The page called "Some history" on the Oxford Law and Philosophy site mentions that a great part of Hart's contribution to his subject came as colleague and teacher. This includes also some of his influence on what we think of as other branches of philosophy, like philosophy of action. A good example would be his relation to Peter Strawson, who was ranked as one of the most significant philosophers of action, in considerable measure for his great essay on freedom and resentment. That essay came out of discussions with Hart, who was his colleague at University College. Hart's contribution can be seen in essays contemporaneous with Strawson's; and his remarks about the significance of the reactive attitudes were published a year before Strawson's. I am not concerned with who gets credit for the ideas here, -- they both do --- but only to illustrate the kind of wide-ranging importance that Hart had as a philosopher.

ReplyMarch 03, 2016 at 11:39 AM3Matt said...

I'm not impartial (he was on my dissertation committee and is a friend) but I also think that Stephen Perry was greatly under-place.

The Fuller ranking is clearly wrong. He is, in some ways, "important", but also not that good, and so shouldn't be placed that high in a listing of the "best" philosophers of law. I was also surprised to see Honore place as high as he did. Apart from his book with Hart, I tend to think of him more as a historian of the law than a philosopher. _Causation in the Law_ is an important book, but not nearly enough to place him above several others, I think. But, maybe some of his other philosophical work is more important that I'm thinking.

ReplyMarch 03, 2016 at 01:02 PM4Les Green said...

Of the top ten, six were students of Hart's, or students of students of Hart's. And Tony Honoré is a co-author and colleague of Hart's. (The pattern doesn't change going down the next twenty people in the ranking.) Of course, many of Hart's 'children' and 'grandchildren' have views radically different from Hart's own. And a few make their living by simply denying anything that Hart ever asserted. But still: are there other fields where one philosopher (and indeed, one philosopher in one faculty in one university) had such influence? Rawls and the Rawlsians, maybe? (Not neglecting Hart's important influence on Rawls and, later, vice versa.)

ReplyMarch 03, 2016 at 03:09 PM5Russell Blackford said...

I'm pleased to see Hart come out on top of the list, and I'm especially pleased to see Feinberg to do so well.

This particular poll causes some problems for me, or at least provokes thoughts about some issues. One is that a great deal of what I, at least, would count as philosophy of law has been done by people who are not, by institutional affiliation, philosophers. Perhaps that's not surprising, because the law - (even?) more than social sciences such as sociology - inevitably reflects on itself. I'm sure you can practice as a suburban solicitor, or even as a high-powered city barrister operating in a technical jurisdiction, without doing much philosophical reflection; beyond a certain point, though, large, consequential legal issues can't be settled without considering normative questions relating to the law's role, purposes, etc.

In the upshot, much of what goes on in the superior courts (and in their judgments) involves philosophical reflection. And a lot of legal philosophy comes from people who are classified as jurists or legal scholars, rather than as philosophers. If we took a wider view of who is a philosopher of law... well, I don't know whether Patrick Devlin would make a "best" list, but he should be somewhere on a "most important" list for his classic debate with Hart. I'd place Richard Posner on a "best" list, and there are many others worth considering. Owen Fiss would be another good example.

And then there's the question of what to do with Stanley Fish, who started out as a literary scholar. He's not someone I consider one of the "best" anything, but a lot of what he does looks like philosophy of law to me, and he's had a large audience and presumably some influence.

The other point that struck me was the blurred line between philosophy of law and political philosophy. A great deal of what appears in A Theory of Justice, for example, could easily be considered philosophy of law, but Rawls was not on the list to choose from. I don't necessarily disagree with that choice - comparing him with Dworkin, say, the latter certainly has a lot more to say about the actual institutions of the law. Still, the line becomes blurred: much of what Rawls is saying is directly and explicitly relevant to the way legal institutions should be structured and how they should operate.

BL COMMENT: I was not using institutional affiliation as a relevant consideration, but rather the content of the work. Richard Posner is not a philosopher of law, nor is Stanley Fish: those are easy cases. Rawls is arguable.

ReplyMarch 03, 2016 at 05:08 PM6Phil said...

Where was Nigel Simmonds in the overall ranking? I ask because he's a favourite author of mine (I think I rated him fifth overall), but also because he's one of the few current writers drawing inspiration from Fuller, whom I also rate rather higher than our host does.

ReplyMarch 03, 2016 at 06:13 PM7Rob Mullins said...

I ranked Fuller reasonably highly, solely because of his work on the rule of law. I agree that his claims in the Morality of Law about the nature of law were very confused. I still think his expositions of the basic desiderata are still very useful and insightful. (As Raz says in his essay on the rule of law, Fuller's list is 'full of good sense'). My impression is that Fuller's work, though misconceived, greatly improved the philosophical understanding of the rule of law. But maybe I'm mistaken?

ReplyMarch 03, 2016 at 07:30 PM8John Gardner said...

I agree with Rob Mullins. Considered as a seminal theorist of the rule of law, Fuller deserves his high ranking. It is a shame that sometimes his errors obscure his insights, especially his insights in ch II of The Morality of Law. As for Honoré: his post-retirement work on outcome responsibility has propelled him into global superstardom, but we should not overlook the many jurisprudential jewels of his earlier career ('Ownership', 'The Dependence of Morality on Law', 'Groups, Laws, and Obedience', 'Reflections on Revolutions', etc.) It was he who convened Oxford's very first law-and-philosophy seminars - with Tony Woozley in 1951 - at which Hart was present and gave a talk.

As Honoré's longstanding co-teacher, I must declare an interest in respect of the latter judgments. Possibly, like Hart, Tony has left part of his huge impression on many of today's younger legal philosophers thanks to his contributions as teacher, mentor, and colleague. By the way - for those who are interested - Tony is still teaching legal philosophy to graduate students with his usual vigour and enthusiasm in this, his 96th year. He will laugh when I tell him that he has finally made it into the top ten.

ReplyMarch 04, 2016 at 05:28 AM9Matthew Kramer said...

Having just seen this thread, I'm glad that the later comments have countered the earlier derogatory remarks about Fuller. Fuller was maladroit in the technicalities of philosophy, and his attacks on legal positivism were badly misconceived. However, his distillation of his eight principles of legality in Chapter 2 of "The Morality of Law" -- though marred by a number of missteps in the course of his exposition -- was a major and permanently valuable contribution to the philosophy of law. He also made significant contributions to contract-law theory and to our understanding of the nature of legal interpretation and adjudication.

I didn't vote in this poll. (I haven't voted in any of these recent polls, because the public ranking of living individuals strikes me as invidious.) However, if I had voted, I would have placed Fuller pretty much where he is.

ReplyMarch 04, 2016 at 08:42 AM10Matt said...

Thanks for the further information on Honore, John. That's interesting and helpful.

ReplyMarch 04, 2016 at 09:28 AM11Christopher D. Boom said in reply to Cora Diamond...

Prof. Diamond: is 'Punishment and the Elimination of Responsibility' Hart's piece on the reactive attitudes published before 'Freedom of Resentment'? Also, do you know the names of any of the other essays you referenced? Thanks in advance!

ReplyMarch 04, 2016 at 10:43 AM12Cora Diamond said...

Reply to Christopher D. Boom: Yes, Hart's ideas about the significance of the reactive attitudes for the criminal law come out in "Punishment and the Elimination of Responsibility". (See pp. 182-3 of Punishment and Responsibility.) I had in mind also Hart's longer discussion of Barbara Wootton, in "Changing Conceptions of Responsibility". Wootton's writings of 1959 and 1960 were obviously important for Hart, but also form part of the background of Strawson's discussion.

ReplyMarch 04, 2016 at 12:46 PM13Matt said...

I'd find the comments from Matthew Kramer and other defenders of Fuller more persuasive if this had been a poll on the "most important" rather than "the best" philosophers of law. Undoubtedly, Fuller has been "important". But, for him to be among the "best", I'd want to say that his conclusions would need to be not just influential and fruitful(*) but also that the arguments for his conclusions would need to be good. I don't think he hits that later target much at all, and it seems that even his supporters here mostly agree. (If an argument is "badly misconceived" and "marred by a number of missteps" I think it's safe to assume that it's probably not good, even if the idea that it's groping towards, in its confused and ham-fisted way, is a useful one.) The arguments against positivism mostly come down to something like, "but, But, BUt, BUT, THE NAZIS!!!!!". I hope we all see that that's a pretty bad argument. (There are others, of course, but they are not that much better.) Given this, I don't see how he can plausibly rank as high as he is placed on a list of "the best" legal philosophers.

(*) I might also think that, though a lot of fruit has been picked from the Fuller tree, a very significant percentage of it was rotting by the time that people got their hands on it. This makes even the "fruitfulness" of his ideas less valuable than it might be.

************** In response to Christopher D. Boom, Hart's 'Punishment and the Elimination of Responsibility' was presented as a lecture in early 1961 and published in 1962, the same year that "Freedom and Resentment" was published. Hart had published some papers on punishment that seem relevant to this discussion before that, ("Acts of Will and Responsibility" in 1960, and "Legal Responsibility and Excuses" in 1958, for example) but whether they influenced Strawson I cannot say. Hart cites Strawson a couple of times in the papers published in _Punishment and Responsibility_, but in a cursory enough way that it's hard to establish influence by just looking at that.

ReplyMarch 04, 2016 at 01:17 PM14Matthew Kramer said...

The latest comment misquotes me. I said that Fuller's attacks on legal positivism are badly misconceived. I did not similarly characterize his exposition of his eight principles of legality, which is separable from those attacks and which is profoundly perceptive (even though it is marred by a number of missteps in the course of his reflections).

Having written at length on Fuller elsewhere, I'm simply going to refer here to my two main discussions of his work: Chapter 3 of my "In Defense of Legal Positivism," which presents a set of rejoinders to Fuller's attacks on legal positivism; and Chapter 2 of my "Objectivity and the Rule of Law," which engages favorably though not uncritically with his exposition of his eight principles of legality. Much of "The Morality of Law" is deserving of harsh criticism -- and I've engaged in harsh criticism of it -- but the insights in the second chapter of that book, along with Fuller's contributions to some other areas of legal theory, warrant his being ranked among the top legal philosophers of the past seven decades.

ReplyMarch 04, 2016 at 02:13 PM15Christopher D. Boom said...

Thanks to both Prof. Diamond and Matt!

Because I'm currently writing a dissertation on Fuller, I'd also like to quickly reply to Matt's (3/4 1:17 pm) comment. Personally, I don't find Fuller's remarks about the Nazis to be all that central to his critique of positivism (but for a sympathetic treatment, see Ingo Mueller's 'Hitler's Justice'). For the interested reader, I highly recommend the interpretive work of Waldron, Simmonds, T.R.S. Allan, Colleen Murphy, Jennifer Nadler, Kristen Rundle, Evan Fox-Decent, and Dan Priel.

ReplyMarch 04, 2016 at 02:41 PM16Brian Leiter said...

I agree with Matt and John G. that Fuller's discussion of the principles of legality is useful for thinking about the rule of law, but he completely misunderstood its import, which is consistent with his years and years of absurd non-sequiturs in criticizing positivism. Some of those mentioned by Mr. Boom who defend Fuller commit the same non-sequiturs, but I am not familiar with what everyone on that list has said.

ReplyMarch 04, 2016 at 03:27 PM17Matthew Kramer said...

Yes, I agree with Brian's comment 16. In this thread, because of the context, I've been emphasizing the point in the first half of the opening sentence of that comment. However, I concur with the point in the latter half of that sentence, and I would have emphasized it if the context had warranted my doing so.

ReplyMarch 04, 2016 at 03:53 PM18Mathieu said...

I wonder why CLS proponents were omitted from the poll. I am by no means a defender of CLS --quite the contrary! -- but I cannot see why D. Kennedy or R. Unger could not be labelled as philosophers of law. Sure, they were doing sometimes very bad philosophy; they sometimes borrowed from intrinsically bad philosophy (e.g. a charlatan compatriot of mine) or they badly used, or misused, otherwise good philosophical works. I would not have rated them very high, but still, they should have been included, in my opinion. Or maybe the poll should have been rebranded: "best Anglophone analytical jurisprudents and criminal law-and-philosophy theorists since 1945".

Another quibble: the poll is supposed to be about best *Anglophone* philosophers of law. But it really includes philosophers who studied and work in British and American (sometimes Australian) universities. The poll excludes lots of European legal philosophers whose work, or at least a great deal of it, is primarily in English. A huge part of Alf Ross's post-1945 writing was in English.

Re Fuller. I agree with Matt, but only insofar as the Morality of Law is under discussion. Hart clearly had the better of the debate, and he rightly made no concessions to Fuller whatsoever (although Waluchow argued to the contrary in a 1985 article). However, Fuller's work on legal fictions is really excellent and philosophically stimulating.

BL COMMENT: Ross's most important work was published in Danish (and then badly translated, as it happens!). I am not aware of anyone familiar with both philosophy and their work who thinks Duncan Kennedy or Roberto Unger are philosophers.

ReplyMarch 04, 2016 at 04:18 PM19Ori said...

Hello everyone. Honestly looking at the list deflated me a little. Not because I would have voted significantly differently. But because of what the list says about our field. How many of those on the list are great philosophers? That is how many are thinkers who can stand in the same category of philosophical excellence as the top ten political philosophers, or moral philosophers, or philosophers of language of the past century (or 70 years)? I count maybe four such giants (not necessarily the top four on the list). The names are not important. Moreover, you may count 5 or even 6. But what is important is that once upon a time the great legal philosophers were also the great philosophers (e.g., Hegel, Bentham, Plato, Aquinas, Kant, Marx). Why is this no longer the case? At least not to the same degree? Moreover, I too wonder whether we are defining our community too narrowly. Catherine Mckinnon, for example, is a thinker on law whose influence really is for the ages. Can't we claim her as a philosopher? To be clear, I do not mean to take away anything from the incredible achievements of all those on the list (and those who did not make the top ten but could have just as easily been on the list). I should be so lucky to achieve a tenth of their achievements. They are all of course fantastic academics. Yet still perhaps some self reflection is called for by our community - in 70 years (I would even say a century) we have I fear produced far fewer greats than other sister fields. Did anyone else have this reaction?

ReplyMarch 05, 2016 at 03:54 PM20Brian Leiter said...

Two comments in reply to Ori:

1. I don't think anyone in the other lists compares to, e.g., Plato or Kant either, so I don't see the difference with philosophy of law. 2. As with Kennedy and Unger, I find it incredible that anyone would think MacKinnon is a philosopher of law. That's quite independent of the fact that she's probably the most influential living law professor. See my comments on an earlier poll at my law school blog: http://leiterlawschool.typepad.com/leiter/2009/05/the-most-important-legal-thinkers-in-american-law-of-the-past-century.html

ReplyMarch 05, 2016 at 05:25 PM21Ori said...

Dear Brian,

I tend to agree that there is no new Plato in recent history. But my point was a little different. It used to be the case that the great philosophers of law were also the great philosophers of their time. Looking at your “best Anglophone philosophers of law since 1945” suggests that that is no longer the case; at least to a significant degree. I think this is reflected in another poll that you ran recently “Most Important Anglophone philosophers, 1945-2000.”

I would like to stress that my point is that of degree. There are a couple legal philosophers who, it seems to me, should be on a list of “100 greatest philosophers of past 100 years” and maybe a couple that come close (I use “a couple” to remain vague on the numbers). But it does seem that philosophers playing in other sandboxes are the ones hitting most of the high notes in recent history. Looking at the polls I was wondering why that were the case.

For me, stretching the category of “philosopher of law” to incorporate MacKinnon does not feel incredible as you put it. Pushing the envelope a little, but I can live with it comfortably. In any case the specific example is not all that important. What I am wondering is whether the field is in some sense (which needs clarification) narrower than it should be. A great philosopher must speak past her own branch of philosophy. Perhaps that partially explains my previous observation?

ReplyMarch 06, 2016 at 12:18 AM22John Gardner said...

I don't get Ori's point at all. The top three listed above (Hart, Raz, Dworkin) were also top 20 moral & political philosophers in the earlier poll dealing with that field, and would still have been ranked highly in that earlier poll, no doubt, even if their work in legal philosophy, more narrowly conceived, were disregarded. That is because their work ranges widely across value theory. That philosophers of law work primarily in value theory is hardly surprising. If that results in them being left out of 'Most Important Anglophone Philosophers 1945-2000' then that speaks more to the relative undervaluation of value theory in the modern philosophical academy than it does to the narrowness of legal philosophy. Value theorists don't get to sing the 'high notes', as Ori calls them, which are assigned to MLE (which are in turn wrongly conceived as autonomous from value theory).