Has modem philosophy taken a  practical turn?  If such a turn requires the first emphasis on practicality, then probably not. Prior philosophy has not discarded or neglected practicality. But a  turn  might instead be understood as a profound transformation.\u27 Even if philosophy\u27s practical concern is not new, perhaps its targets, methods, or character have changed significantly

Tobia, Kevin P.

English

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Yale Journal of Law & the Humanities
Volume 29 | Issue 2 Article 3
September 2018
Philosophy's Practical Turn
Kevin P. Tobia
Yale Law School
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Philosophy's Practical Turn
Kevin P. Tobia*
Has modem philosophy taken a "practical turn?" If such a turn requires
the first emphasis on practicality, then probably not. Prior philosophy has
not discarded or neglected practicality. But a "turn" might instead be
understood as a profound transformation.' Even if philosophy's practical
concern is not new, perhaps its targets, methods, or character have
changed significantly.
Only time will tell whether this modem moment signifies a
transformation in practical philosophy. The purpose of this introduction is
simply to suggest that, insofar as practical philosophy continues or
transforms, a particular subset of work deserves attention: practical legal
philosophy. The purpose of this journal symposium is to feature that work.
The atmosphere in some corners of contemporary philosophy suggests
something like a practical turn, or at least practical transformation.
Philosophy seems to be broadening, and this expansion provides room for
practical concerns once prohibited.2 Moreover, longstanding philosophical
areas-for example, ethics and epistemology-witness a shift in practical
emphasis. There is also a growing appreciation of the value of public
philosophy, argument made less esoteric and more impactful.
These developments and impressions do not mark a "turn" in the sense
of turning from former non-practicality, since philosophy has long
addressed practical issues. The eighteenth and nineteenth centuries saw
* Yale Law School.
1. So-called "turns" occur within philosophy, law, and other disciplines. See, e.g., THE
LINGUISTIC TURN: ESSAYS IN PHILOSOPHICAL METHOD, (Richard Rorty ed., 1992); RICHARD J.
BERNSTEIN, THE PRAGMATIC TURN (2010); Charles L. Barzun, The Positive U-Turn, STAN. L. REv.
1323 (2017); Pascal Borry, Paul Schotsmans & Kris Dierickx, The Birth of the Empirical Turn in
Bioethics, 19 BIOETHICS 49 (2005); Michael Freeden, Editorial: The 'Political Turn' in Political
Theory, 19 J. POL. THEORY 1 (2014).
2. Notably, the modem expansion includes increasingly broader recognition of often-neglected
philosophical areas. Among others, these include African/a, African-American, and Caribbean
philosophy; Arabic and Islamic philosophy; Asian and Asian-American philosophy; Feminist
philosophy; Indigenous philosophy; Latin American philosophy; LGBTQ philosophy; philosophy of
disability; philosophy of gender and sexuality; and philosophy of race. It is not the case that every
project in each of these areas is "practical" philosophy. However, the expansion of these areas and
broader awareness of them only increases the amount of philosophy and thus the amount of practical
philosophy.
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Wollstonecraft and Mills' defenses of women's rights.3 The 1970s marked
a transformative growth of philosophical bioethics.4 Significant examples
abound before and after these dates. Others will be recognized
retrospectively as we continue to expand the "philosophical cannon."'
Nevertheless, there is a recent sense of growing focus on practicality.
Our time also marks a moment of tremendous practical philosophical
outlets such as Giving What We Can, and Effective Altruism more
broadly.6 Despite important debates about the theory, ambitions, and
methods of those organizations,7 their status as novel and notable
practical-philosophical vehicles is undeniable.
Whether history will reveal philosophy's current practicality as a
speedbump or U-turn, philosophy's practical projects are intriguing from
our modern vantage point. One subset of these projects is especially
remarkable and worth continued attention. We can call these projects
"philosophy in service of practicality," or "philosophy for practicality."
These are projects that attempt to make progress on practical problems by
using the tools of philosophy.
To clarify the significance of this type of project, consider its foil:
practicality in service of philosophy, or practicality for philosophy.
Included in that set of projects are those that employ practical issues to
illuminate philosophical debates. For example, one might argue that some
philosophical view has practical consequences that provide reasons against
the philosophical view. Where philosophy for practicality generally starts
with the practical issue, practicality for philosophy typically begins with a
more traditional philosophical debate.
To be sure, many projects fall between the poles of these categories.
However, philosophy for practicality is an especially valuable enterprise-
and one that should not be neglected. For one, scores of extant real issues
could benefit from rich philosophical analysis. Moreover, neglect or
disrespect of "philosophy for practicality" can be self-reinforcing. When
these projects are dismissed for their non-philosophical subject matter, this
further rigidifies the boundary between appropriate and inappropriate
domains of philosophical inquiry.
This is not to say that we should abolish or even deemphasize
practicality for philosophy. These projects have value and are worth
3. MARY WOLLSTONECRAFT, A VINDICATION OF THE RIGHTS OF WOMAN: WITH STRICTURES AND
MORAL SUBJECTS (1792); see also JOHN STUART MILL, THE SUBJECTION OF WOMEN (1869).
4. See, e.g., The Belmont Report, NATIONAL COMMISSION FOR THE PROTECTION OF HUMAN
SUBJECTS OF BIOMEDICAL AND BEHAVIORAL RESEARCH (Apr. 18, 1979); see also PETER SINGER,
ANIMAL LBERATION: A NEW ETHICS FOR OUR TREATMENT OF ANIMALS (1975).
5. See, e.g., THE NEGLECTED CANON: NINE WOMEN PHILOSOPHERS: FIRST TO THE TWENTIETH
CENTURY (T. Dykeman ed., 1999); see also AFRICA, ASIA, AND THE HISTORY OF PHILOSOPHY:
RACISM IN THE FORMATION OF THE PHILOSOPHICAL CANON, 1780-1830 (P.K. Park ed., 2013).
6. See generally PETER SINGER, THE MOST GOOD YOU CAN Do: How EFFECTIVE ALTRUISM IS
CHANGING IDEAS ABOUT LIVING ETHICALLY (2015); WILLIAM MACASKILL, DOING GOOD BETTER:
EFFECTIVE ALTRUISM AND A RADICAL NEW WAY TO MAKE A DIFFERENCE (2015).
7. See, e.g., lason Gabriel, Effective Altruism and its Critics, 34 J. APPLIED PHIL. 457 (2017).
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Tobia
attention and engagement. But such projects also have common pitfalls.
Practicality for philosophy is often fought on philosophy's turf. The
transmutation of real-world problems into problems on the standard
philosophical terrain can reduce or eliminate the projects' practical import.
In the worst case, such "practical philosophy" parades under the guise of
pragmatic engagement by simply snatching up real-world concerns as new
fodder for old philosophical games. Such projects are particularly
susceptible to charges of moral grandstanding.8
A classic example of this problem is the use of practical considerations
as tiebreakers, reasons, or considerations in favor of some established
philosophical theory. Why should we be externalists about justification?
Because it supports radical feminism. Why should we be Rule
Consequentialists? Because it supports queer causes. These argument
forms are certainly legitimate, but their conclusions can have little
practical significance. Often, the important practical values or standpoints
are assumed. Anyone not already committed to radical feminism or queer
rights is unlikely to be persuaded of those causes on the basis of
philosophical theory. At stake are questions of philosophical debates, and
any practicality is easily misunderstood as mere expressive signaling. And
sometimes the apparent practicality just is mere expressive signaling.
This approach of practicality for philosophy may be more comfortable
than philosophy for practicality. The latter is more daunting. It requires
intellectual humility and the recognition that the philosopher has ventured
into unfamiliar territory, the world of the practical concern itself.
Philosophy for practicality requires not only recognition of the limits of
philosophical expertise, but also the acknowledgment that philosophy is
one tool among many and one most effectively coupled with knowledge of
the real conditions of society. Doing philosophy for practicality demands
recognizing the practical issue on its own terms, aware that philosophical
tools or theories may not be effective at all.
The law is one domain that benefits from philosophy for practicality.
There are numerous ways in which philosophy contributes to legal studies.
But to be most effective, philosophers must play by the rules of this
different game-engaging with the law and relevant facts on their own
terms. Of course, notable successes can involve shifting the rules or
conceptual landscape; consider for example, MacKinnon's rich
development of sexual harassment.9 But even those projects require an
understanding of the facts and extant landscape-the conditions of the
society over which the practical philosophy operates. This kind of
practical philosopher cannot proceed in isolation. Philosophy in service of
8. See generally Justin Tosi & Brandon Warnke, Moral Grandstanding, 44 PHIL. & PUB. AFF.
197 (2016).
9. CATHERINE A. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX
DISCRIMINATION (1979).
2017] 241
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Yale Journal of Law & the Humanities
practicality requires engaging (perhaps "non-philosophically") with the
object of study and also the relevant other modes of inquiry, from law and
history to statistics and sociology.
The essays featured here all display this virtue of practical philosophy.
Backpay for Exonerees advances an innovative philosophical argument in
support of backpay for the unjust punishment of exonerated people."o This
argument is made all the more powerful by the essay's thoughtful
engagement with both the law and empirics to estimate the actual amount
of backpay we ought to deliver. Due Process Demands as Propaganda
takes aim at a popular objection to Title IX." The Essay argues that "due
process demands" can function as propaganda, employing insights from
the philosophy of language to illuminate legal debates. Welcoming
Monsters: Disability as a Liminal Legal Concept provides a primer on the
philosophy of disability and its previous and possible contributions to the
law.12 This, too, serves as a model of philosophical work that is thoroughly
engaged with its practical concern, drawing upon both philosophy and
other relevant modes of inquiry. Disentangling Perjury and Lying rejects a
common understanding that perjury and lying are inextricably connected.13
By providing a rich analysis of perjury caselaw, the essay serves as a final
example of philosophy engaging richly with its practical focus.
Whether or not philosophy is taking a practical turn, some historical
lessons still bear on current (novel or traditional) practical efforts. Decades
ago, Karl Llewellyn published his well-known essay "On Philosophy in
American Law."l4 Much has changed since its 1934 publication, but
Llewellyn's analysis still rings true. He concludes with comments on the
historical development of "sociological jurisprudence." To make
sociological jurisprudence "real required more than armchair estimates.
Pound and Frankfurter had indeed begun the work in the Cleveland crime
survey.... To apply the criterion of judging law by its effects called for
more exact knowledge both of what law was and of what its effects might
be. Indeed it called for more accurate knowledge of the conditions of
society."
To be sure, powerful practical philosophy does arise from the armchair.
But the practicality of that work is enriched by engagement with empirical
10. Erik Encarnacion, Backpay for Exonerees, 29 YALE J. L. & HUMAN. 245 (2017).
11. Annaleigh E. Curtis, Due Process Demands as Propaganda, 29 YALE J. L. & HUMAN. 273
(2017).
12. Jonas-S6bastien Beaudry, Welcoming Monsters: Disability as a Liminal Legal Concept, 29
YALE J. L. & HUMAN. 291 (2017).
13. Allison Douglis, Note, Disentangling Perjury and Lying, 29 YALE J. L. & HUMAN. 339
(2017).
14. Karl N. Llewellyn, On Philosophy in American Law, 82 U. PA. L. REV. 205 (1934). See
generally ON PHILOSOPHY IN AMERICAN LAW (Francis J. Mootz III ed., 2009) (collection of modem
essays on Llewellyn's essay). This is an excellent collection of essays, which provides much
inspiration for developing the field of practical legal philosophy.
15. Llewellyn, supra note 14, at 212.
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work and a multitude of other disciplines. Practical (legal) philosophy
should not be understood as mandating armchair abandonment. It's better
understood as mandating a bigger bookcase and circle of interlocutors.
Engage the facts, engage the law, and humbly recognize the relevance and
insight of others' philosophy and especially apparent "non-philosophy."
This is how to continue achieving realness-a necessary feature of
philosophy in service of practicality.
5
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Philosophy\u27s Practical Turn

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Philosophy\u27s Practical Turn

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