The Problematics of Moral and Legal Theory PDF
Preview The Problematics of Moral and Legal Theory
The Problematics of Moral and Legal Theory The Problematics of Moral and Legal Theory $ Richard A. Posner The Belknap Press of Harvard University Press Cambridge, Massachusetts London, England 1999 Copyright © 1999 by the President and Fellows of Harvard College All rights reserved Printed in the United States of America Third printing, 2002 First Harvard University Press paperback edition, 2002 Library of Congress Cataloging-in-Publication Data Posner, Richard A. The problematics of moral and legal theory / Richard A. Posner. p. cm. Includes bibliographical references and index. ISBN 0-674-70771-0 (cloth) ISBN 0-674-00799-9 (pbk.) 1. Law and ethics. 2. Sociological jurisprudence. I. Title. BJ55.P67 1997 170—DC21 98-29596 Contents Preface vii I The Wrong Turn 1 Moral Theory 3 Introduction: From Moral Realism to Pragmatic Moral Skepticism 3 Understanding Morality 17 The Academic Moralist and the Moral Entrepreneur 38 Professionalism’s Cold Grip 68 2 Legal Theory, Moral Themes 91 Jurisprudence and Moral Theory 91 Moral Theory Applied Directly to Law 107 Some Famous “Moral” Cases 129 Constitutional Theory 144 II The Way Out 3 Professionalism 185 The Two Professionalisms 185 The Supersession Thesis 206 4 Pragmatism 227 The Pragmatic Approach to Law 227 Postmodernism Distinguished 265 Some Institutional Implications of Legal Pragmatism 280 Index 311 Preface This book grew out of a series of lectures given in 1997—two Holmes Lectures at Harvard, the James Madison Lecture at New York University, and the J. Byron McCormick Lecture at the University of Arizona. That year, as it happens, was the one hundredth anniversary of the publication of Holmes’s greatest essay, “The Path of the Law,”1 and one way to under- stand the present book is as an extended homage to Holmes’s ideas about morality and law. I am far from agreeing with everything that Holmes wrote, and shall point out in Chapter 3 serious oversights in his essay. But he was on the right track, and one aim of my lectures was to push the engine a bit farther along. I have rewritten, reorganized, and reresearched the lectures for this book, and have rounded out the reworked lectures with material from other pertinent recent writings of mine, including a reply to ªve distin- guished critics of my Holmes Lectures. The result is a whole that I im- modestly dare to hope is more than the sum of its previously published parts. The theme—which, stated most compendiously, is the demystiªca- tion of law and in particular the freeing of it from moral theory, a great mystiªer—is not a new one for me. It ªgures prominently in two of my previous books, The Problems of Jurisprudence (1990) and Overcoming Law (1995). I have tried to develop the theme further here, but with as little repetition of my previous writings as possible, so that the book can be seen as completing a trilogy on the major normative issues that beset the modern judge, moralist, and policymaker. My primary interest is the law; but it is now recognized both within and without the legal profession that lawyers, judges, and law professors 1. Oliver Wendell Holmes, “The Path of the Law,” 10 Harvard Law Review 457 (1897). preface viii cannot “do” law without help from other disciplines. They don’t know enough about the activities that the law regulates and the effects of legal regulation. The profession needs help, but there is disagreement about where it should turn for help. Moral philosophy and pragmatism offer the starkest choice. The philosophically inclined tend to believe that methods of or akin to those of moral philosophy should be used to decide the difªcult questions in law. Pragmatists—at any rate my type of pragmatist, for the word covers a multitude of sins—believe that those methods don’t work in any domain. They believe that the judge or other legal decision- maker thrust into the open area, the area where the conventional sources of guidance run out (such sources as previously decided cases and clear statutory or constitutional texts), can do no better than to rely on notions of policy, common sense, personal and professional values, and intuition 2 and opinion, including informed or crystallized public opinion. Pragma- tists also believe, however, that intuition and opinion and the rest can sometimes be educated by immersion in “the facts.” I have put this term between quotation marks to signal that it is to bear a wider meaning than in the law of evidence. It is a sense that takes in the analytic methods, empirical techniques, and ªndings of the social sciences (including his- tory). In broadest terms, then, and with some exaggeration as we shall see, this book asks whether, when the methods of legal positivism fail to yield a satisfactory resolution of a legal issue, the law should take its bearings from philosophy or from science. And it answers, “from science.” But this is not a book just for lawyers and others who are interested in law. I argue not only that moral philosophy has nothing to offer judges or legal scholars so far as either adjudication or the formulation of jurispru- dential or legal doctrines is concerned, but also that it has very little to offer anyone engaged in a normative enterprise, quite without regard to law. Only it is particularly clear that legal issues should not be analyzed with the aid of moral philosophy, but should instead be approached pragmatically. The proper methods of inquiry are therefore those that facilitate pragmatic decision making—the methods of social science and common sense. The book is in two parts, each containing two chapters. The ªrst part is primarily critical, the second primarily constructive. Chapter 1 tackles 2. As Holmes put it, “The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.” Oliver Wendell Holmes, Jr., The Common Law 1 (1881). preface ix normative moral theory on its own terms, arguing that people who make philosophical arguments for why we should alter our moral beliefs or behavior are wasting their time if what they want to do is to alter those beliefs and the behavior the beliefs might inºuence. Moral intuitions neither do nor should yield to the weak arguments that are all that 3 philosophers can bring to bear on moral issues. I call this position “pragmatic moral skepticism.” It must not be con- fused with philosophically more radical isms. I am not a moral nihilist, nor an epistemological skeptic or relativist, but merely a limited skeptic, as an example will show. That the Nazis killed millions of defenseless civil- ians is a fact; its truth is independent of what anyone believes. That the Nazis’ actions were morally wrong is a value judgment: it depends on beliefs that cannot be proved true or false. I thus reject moral realism, at least in its strong sense as the doctrine that there are universal moral laws ontologically akin to scientiªc laws. I am a kind of moral relativist. But my metaethical views are not essential to pragmatic moral skepticism, the doctrine that moral theory is useless, although they help to explain why it is useless. The doctrine is supported by bodies of thought as various as the psychology of action, the character of academic professions in general and of the profession of academic philosophy in particular, and the undesir- ability of moral uniformity; and above all by the fact that the casuistic and deliberative techniques that moral theorists deploy are too feeble, both epistemologically and rhetorically, to shake moral intuitions. The analogy (of a pregnant woman forced to carry her fetus to term to a person forcibly attached by tubes to a famous violinist for nine months in order to save the violinist from dying of kidney disease) with which Judith Jarvis Thom- son defends a right of abortion, and at the other end of the spectrum of abstraction the elaborate contractarian and natural-law arguments that John Rawls, Ronald Dworkin, John Finnis, and others make on behalf of their preferred resolutions of issues in applied ethics, are convincing only to readers predisposed to agree with the philosophers’ conclusions. The class of innovators whom I call “moral entrepreneurs” do have the power to change our moral intuitions. But moral entrepreneurs are not the same as academic moralists, such as Thomson and the others I have named. Moral entrepreneurs persuade, but not with rational arguments. Academic moralists use rational arguments; but in part because of the sheer feeble- ness of such arguments, they do not persuade. 3. By moral “issues” I mean contested moral questions. When there is no contest, when everyone agrees on what’s right, there is no issue and the need for theory does not arise.
The list of books you might like
