The Problematics of Moral and Legal Theory.

• Author: Farber, Daniel A.
• Position: Review

THE PROBLEMATICS OF MORAL AND LEGAL THEORY. By Richard A. Posner.(1) Harvard University Press. 1999. Pp. 310. $29.95.

"The fox knows many things, but the hedgehog knows one great thing." So holds a proverb made famous by Isaiah Berlin. Richard Posner began his career as a hedgehog, his "one great thing" being economic efficiency. But Judge Posner has now become one of most fox-like of modern thinkers, with books on topics as diverse as literature, sexuality, aging, and jurisprudence, In each field he has shown sufficient mastery to call into question his own assertion that "there is a limit to how brilliant you can be and want to go to law school." (p. 293)

In Problematics, Judge Posner takes up the question of the role of moral reasoning in judging.(3) He concludes that its role is somewhere between slim and nil. Consequently, moral philosophers have almost nothing to say of relevance to judges (and little enough for anyone else). (pp. 3, 310) In particular, moral theory has nothing to teach judges about even "such morally charged subjects as abortion, affirmative action, racial and sexual discrimination, and homosexual rights." (p. x)

Posner calls on constitutional scholars to abandon "what passes as theory in jurisprudential circles" and devote their attention to the "real world" aspects of constitutional law. (p. x.) But this does not mean that he views judging, in constitutional cases or elsewhere, as value free. Instead, he says, where precedent and other legal texts run out, judges "can do no better than to rely on notions of policy, common sense, personal and professional values, and intuition and opinion, including informed or crystallized public opinion." (p. viii) Endorsing a position he attributes to Holmes, he maintains that "while the political process is ordinarily the right way to go," sometimes "an issue on which public opinion is divided so excites the judge's moral emotions that he simply cannot stomach the political resolution that has been challenged on constitutional grounds." (p. 142)

One alternative to Posner's approach is formalism, which seeks to make judging value-free. Having dealt with this approach elsewhere, Posner does not give it much attention in this book. Nor will I in this review.(4) Yet another alternative is to provide some more systematic account of morality that would assist judges. I will focus on Posner's rejection of this alternative and on his explanation of his own preferred approach.

Like his other work, Problematics is a dazzling display of Posner's stylistic powers and intellectual range. It stumbles, in my admittedly non-expert opinion, in attempting too hasty a treatment of some philosophical issues, though its skepticism about the legal relevance of high-level moral theory seems well-justified. It also overstates the roles of policymaking and of emotional outrage in constitutional cases. In that respect, however, it is a useful counter to the current obsession with textual and historical fidelity at the expense of real world utility. Finally-my most serious criticism -- Posner seems drawn by his desire to be hard-headed into occasional insensitivity toward certain moral values. Posner's work as a judge shows that he himself is not insensitive to these values, but they seem oddly shortchanged in his theoretical account.

1. WHAT CONSTITUTIONAL LAW SHOULD NOT INVOLVE: MORAL ARGUMENT

   Posner is skeptical of the utility of moral reasoning for two reasons: because as a moral relativist, he doubts that any significant moral truth exists, and because in any event moral argument is too inconclusive to lead anywhere, particularly in legal disputes.

   At the outset, it is important to be clear about just what Posner is criticizing--and more importantly, what he is not. He makes it clear that he does not reject the existence of moral values; (p. 50 n.78) moral skeptics and moral relativists "have the same moral emotions as everyone else and differ only in not thinking that moral disagreements can be bridged by moral reasoning." (p. 142) Nor, despite his rejection of "moral reasoning," does he reject all forms of reasoning about morality, though he does reject what he calls academic moralism. Specifically, he does not believe that moral decisionmaking is purely a matter of unreasoned personal convictions that can never be subject to useful discussion. Although his positive remarks about moral discussion are scattered throughout the book, taken together they actually leave a significant role for deliberation about moral or ethical issues. (He defines morality to include only "duties to others" as opposed to ethical reflections on how best to live. (p. 4)) As he sees it, moral agreement may be possible on specifics even among people who disagree about broad principles.(5) (p. 153 n.133) Moral philosophy can also enrich our perspectives by articulating moral systems and thereby giving people choices about how to live or helping them to discover or articulate their own implicit commitments. (pp. 31-32) Finally, Posner believes, moral judgments can sometimes be educated by immersion in facts. (p. viii) Morality is in large part emotional, but "emotion is not pure glandular secretion"; it is "influenced by experience, information, and imagination, and can thus be disciplined by fact." (p. 260) So he leaves room for reasoned discussion of morally charged problems.

   What, then, does he mean when he says he rejects the use of moral reasoning or moral argument in law and more generally? What he seems to mean is that fundamental moral issues are simply not open to useful discussion. One of my colleagues thinks the fetus is a person and abortion is murder; another thinks that the fetus is not a person and abortion laws oppress women. Posner believes that there is no "right answer" to this problem (at least, not one definable in secular terms(6)). Even if in some sense a right answer did exist, he contends, no convincing way would exist for us (in particular, for judges) to identify it.

   Posner is a moral relativist of sorts, arguing that "morality is local, ... there are no interesting moral universals." (p. 6) Admittedly, some rudimentary principles (such as don't kill your friends indiscriminately) may be universal to all human societies. But meaningful moral principles are local. (p. 6) "[T]he morality that condemns the traitor, adulterer, etc., cannot itself be evaluated in moral terms. That would be possible only if there were precise, and hence operational, transcultural moral truths." (p. 9) Morality is relative not only between but even within societies. A person who murders an infant is immoral within our society. Posner says he would consider the person who advocates baby killing "lunatic, a monster, or a fool," but would "hesitate to call him immoral, just as I would hesitate to call Jesus Christ immoral for having violated settled norms of Judaism and Roman law or Pontius Pilate immoral for enforcing that law."(7) (p. 10) Similarly, it is "vacuous" to complain that the subjects of female genital mutilation have no effective choice, because the "moral code of these societies is not founded on principles of freedom, autonomy, or equality, and there is no privileged standpoint from which to argue that it should be." (p. 22) True, people could call moral codes they dislike immoral, but "this is name-calling, rather than appealing to a common set of premises from which persuasive arguments could be derived by logical or empirical means." (p. 23) In short, he tends toward what he calls "a kind of existential morality ... in which people take responsibility for their actions without the comfort of supposing that they are acting in accordance with universal moral norms[.]"(8) (p. 29) (This kind of existentialism sounds good in theory, but the fact that Hannibal Lecter could claim to be following it gives me pause.)

   Posner's version of moral relativism is hard to assess, partly because of his unsystematic presentation, but mostly because it is not clear how he intends it to be taken. On one reading, he is making a strong philosophical claim: it is just a fact that morality, which consists of the moral judgments people make about their own behavior, is subjective rather than objective. But if this is what he means, his admittedly evocative remarks are too far from presenting a fully developed philosophical argument to make criticism fruitful.(9) (As is often the case in philosophical argument, simply trying to pin down the meaning of critical terms...