The Problematics of Moral and Legal Theory

In The Problematics of Moral and Legal Theory, Judge Richard Posner asks a critical question: can moral philosophy ever help the practice of law? Posner answers this question with a resounding no.Take a simple example. Suppose that a robber is shot dead at the scene of the crime and, the shooter is charged with murder. Should he be convicted? A pacifist might say yes, since killing is always wrong. Others would say no, since he acted in self defense (killing is not always wrong). Others would say that it depends on whether he was threatened.If you were the judge or the jury, who should you believe? Posner argues that you will believe the person who most closely approximates your preconceived beliefs. In other words, a pacifist prosecutor will have a hard time convincing anyone who believes in self-defense, since each and every moral philosophy can be countered by another moral philosophy.Posner goes on to argue that moral philosophy can help us with things that we all agree on, like "democracy is good" and "freedom should be protected." The problem is that no case before a court ever deals with such broad disputes. Instead, each side lines up its moral arguments, and the judge basically ignores them all. Posner also shows that moral philosophy is of some use in changing what people agree is right, as with Martin Luther King, Jr.In the down and dirty disputes before a judge, though, Posner says that we have to rely more on our gut reaction, economics, and sociology than moral theory. The judge must ask, "If I did X, would society be better off?" Posner calls this legal pragmatism, the hope that the law can be rationalized along empirical grounds. He is careful to distinguish this stance from philosophical pragmatism and moral relativism. The former worries only about ends, while Posner explicitly worries about means, and the latter would not allow anyone to ever say that "murder is wrong." Posner has no problem with moral precepts that everyone agrees with.The downside of this book is that it is way too long. The first few chapters outline most of his argument, and the rest of the book deals with legal history and particular examples from supreme court cases. Law students might find these parts worthwhile. Those who are interested in philosophy and law should read this book, as should those who want a look at how judges think and work. Whether you agree with him or not, his exploration of the topic is cool and complete.

Don't believe any criticisms of this book that it advocates moral relativism or insensitive pragmatism. What Posner is driving at is the removal of moral theory from the practice of law. Translated: the removal of the politicization of law whether of the left variety [egalitarianism, redistributionism] or the right variety [natural law]. This sounds like anti-moralism, but it is not. Posner wants law to return to its role as the blind judge balancing the scales of justice rather than the judicial usurper of democracy. Posner wants a rational approach to law as opposed to the current masking of its role as a dispenser of goods for the "interest group state." Highly recommended. Wayne Lusvardi, Pasadena, California

In almost 20 years as America's most influential non-Supreme Court judge since Learned Hand, Richard Posner has made great use of his astounding intellectual repertoire to bring insights from other disciplines (most notably, economics) to bear on the law. In this work, Posner takes aim at the "academic moralists" whose theoretical works have, in his opinion, not only contributed little of use to the legal profession, but also stunted its growth. The root of Posner's disdain for such moral theorizing is his belief that universal standards of right and wrong do not exist and thus that all morality is local. It is therefore pointless to talk of whether this or that moral theory is the "right" one- the very aim of the scholars whose work Posner so gleefully dismisses. Unfortunately, the disproportionate attention paid to academic moralism has weakened the legal profession by decreasing the amount of time devoted to more "pragmatic" (Posner's favorite word) issues that actually can be of use in resolving legal issues. In Posner's view, today and tomorrow's scholars must be trained to think pragmaticallly if law is to make any significant advances. While this book is stinging in its rebukes, it must be said that there is a lot in it that may not be appealing even to those who are generally sympathetic to Posner's concerns. Most obvious is his moral relativism (what he deems "pragmatic moral skepticism"), especially since Posner is most often identified as a conservative (though he is really on the libertarian side). In addition, the good judge is never really able to quell criticisms that his pragmatic view of judging is so squishy as to be able to justify almost any result. These drawbacks, however, should not detract from the more general thrust of the book, which is that ambitious philosophy adds nothing to the law.

This book is Chief Judge Richard Posner's chance to explode the myth that esoteric moral and political theory has anything meaningful to contribute to solving modern legal issues. All in all, he is up to the task. Specifically, he takes aim at the theories of liberal legal scholars such as Ronald Dworkin (a favorite target of Posner's)and concludes that such theories will ultimately be unconvincing since almost any of them can be rebutted. For Posner, the proper role of abstract philosophical thinking is mainly to poke holes in other people's arguments. However, Posner goes the extra step of actually offering his own constructive advice on how judges/scholars should approach legal issues. In his mind, the key lies in pragmatism- that is, using the tools of disciplines other than law (economics, sociology, etc.) to find solutions that will best serve the future while keeping a certain connection to the past. Though it is sometimes a little difficult to grasp what Posner means by pragmatism, he offers several examples from various fields of law that offer some insight. One of the enjoyable aspects is that although Posner seems to possess an almost encyclopedic knowledge of all fields of law, he writes about them in a way that can be grasped by most educated people. It should be said, however, that one of the books problems is that since it devotes so much time to criticizing other legal theories, Posner must mount a serious rearguard defense against anticipated arguments against his own views. This makes for a sometimes stilted tone to the book. In all, however, the book delivers the insight and bluntness that you come to expect from Posner and is surely a worthwhile purchase for anyone interested in either the legal profession or legal scholarship.

Posner has been leading up to this book for a long time. He attacks moral philosophy as being irrelevant for helping make important legal or any other kind of decision. Instead he advocates a pragmatic, empirical approach. To paraphrase Jeffrey Rosen of the New Republic, if we lived in a sane society, the Senate would beg Posner to be Chief Justice of the Supreme Court. Unfortunately, for our society, Posner has not only left a long paper trail, but a paper super highway.