The Problematics of Moral and Legal Theory.

• Author: Mikhail, John

INTRODUCTION

Holmes once said of a book he was reviewing, "It is hard to know where to begin in dealing with this extraordinary production--equally extraordinary in its merits and its limitations." (1) Similar thoughts come to mind when considering how to deal with Judge Richard Posner's The Problematics of Moral and Legal Theory. (2) From time to time, lawyers and judges seeking to promote economic values such as efficiency and wealth-maximization have taken the further step of arguing that competing paradigms of jurisprudence based on commonsense notions of justice are theoretically inadequate bases on which to ground a system of legal rights and obligations. Holmes himself is a leading example of this tendency. (3) Posner's book is perhaps the most ambitious attempt yet by a judge to attack the foundations of natural justice in order to promote the law and economics movement in this way. It contains many telling criticisms of recent professional moral philosophy, delivered with a force and directness only a secure outsider can provide. Nonetheless, the book's central arguments are remarkably unsuccessful. In his zeal to criticize philosophers, Posner commits surprising mistakes that suggest he misunderstands basic questions, not only of moral philosophy, but of jurisprudence as well.

Problematics is an important book, due in part to the identity of its author. Judge Posner is a highly respected federal judge whose influence on American law has been considerable. Before being appointed to the Seventh Circuit Court of Appeals by President Ronald Reagan in 1981, he was a law professor at the University of Chicago, where he helped pioneer the law and economics movement, and where he founded and edited one of the nation's leading faculty-edited law journals, The Journal of Legal Studies. As a judge, he has written over 1800 judicial opinions, many of which have become staples of legal education. (4) Posner is an authority on antitrust--"one of the most important antitrust scholars of the past half-century" (5)--and has authored, co-authored, or edited more than three dozen books on virtually every aspect of law. He has been called "the wonder of the legal world," (6) "the leading legal thinker of his generation," (7) and "one of the most fascinating thinkers in the nation." (8) Indoubtedly, individuals have played as pivotal a role in the development of American law during the past three decades.

Problematics is also important because of the topic it addresses. Not since James Wilson delivered his famous Lectures on Law (9) at the University of Pennsylvania in 1790-1791 has such a prominent American judge dealt so explicitly with what he takes to be the most influential philosophy of his day. For Wilson--arguably the leading legal mind of his generation (10)--this meant the mental and moral philosophy of Descartes, Locke, Hume, and Reid, and the natural law jurisprudence of Grotius, Pufendorf, Blackstone, and Burlamaqui. For Posner, it means the moral and legal philosophy of H.L.A. Hart, Ronald Dworkin, Jurgen Habermas, John Rawls, and Judith Jarvis Thomson. But here the parallels between Wilson and Posner more or less end. Whereas Wilson admired philosophy, saw jurisprudence as a natural extension of moral philosophy and the philosophy of mind, and drew upon philosophy for the general purpose of strengthening the intellectual ties between philosophy and law, Posner's approach is nearly the opposite. He is generally unsympathetic to philosophy and sharply critical of what he sees as the unjustified inroads contemporary moral philosophers have made on legal scholarship. Moreover, he believes recent academic moral philosophy, as an intellectual endeavor, to be unimpressive at best.

The contents of Problematics grow out of a series of lectures Posner gave in 1997 to law school audiences at Harvard University, New York University, and the University of Arizona, each of which has been published separately. (11) For the purposes of the book, Posner has revised these lectures and supplemented them with additional material, drawn in part from replies to critics that have also been previously published. (12) Despite some structural weaknesses of the kind often accompanying the publication of separate lectures in this form--Problematics contains no real conclusion, for instance--the book stands on its own as a coherent and well-integrated document. I will treat it as such, drawing on the earlier works only when necessary to develop a particular criticism of my own.

This review essay consists of two main parts. Part I provides a neutral summary of Problematics, attempting to fulfill what Posner identifies as, and I agree to be, the basic though often-neglected obligation of a book review, that of giving readers a clear enough sense of a book "to enable them to make an informed decision about whether to read it." (13) The discussion in Part I is largely patterned on the structure of Problematics itself. Posner's book is divided into two parts, each containing two chapters. In Part One (titled "The Wrong Turn"), Posner criticizes academic moral philosophy and the increasing reliance on it by legal theorists to solve difficult problems of constitutional law. In Part Two ("The Way Out"), Posner provides a sociological analysis of the legal profession and argues that pragmatism is the key to achieving genuine professionalism and reform. In Part I of this review, I summarize some of the main arguments of Posner's book, paying particular attention to Posner's criticisms of moral and legal theory in Chapters One and Two.

Part II of this essay consists of an extended criticism of Problematics. I begin by examining aspects of Posner's conception of moral theory in light of one plausible and influential model of moral theory, the "generative grammar" model proposed by Rawls in A Theory of Justice. (14) Rawls' model begins from the empirical assumption that each person develops a sense of justice under normal circumstances, an assumption the model takes to be the best explanation of the moral analogue of what linguists and cognitive scientists call "the projection problem." (15) The model takes the first task of moral philosophy to be constructing an accurate description of the sense of justice, thereby solving the moral analogue of what linguists and cognitive scientists call "the problem of descriptive adequacy." (16) The model follows the standard practice of the cognitive sciences in distinguishing a person's operative moral principles (those principles actually operative in her exercise of moral judgment) from her express principles (those principles she verbalizes in an effort to explain or justify her judgments). (17) Finally, the model draws a distinction between "moral performance" (a person's actual exercise of moral judgment in concrete situations) and "moral competence" (the mental capacity or cognitive system underlying those judgments) in a sense analogous to the linguistic competence-performance distinction introduced by Noam Chomsky in Aspects of the Theory of Syntax and now widely used throughout the cognitive sciences. (18) In Part II.A., after describing these four elements of Rawls' highly traditional model of moral theory, I criticize Posner's own conception of morality and moral theory in light of them. (19)

In Part II.B., I closely examine one of Posner's central criticisms of moral philosophy, which concerns the belief many philosophers hold in the existence of moral universals. Posner rejects the existence of any such universals and affirms a version of moral relativism. One of his main arguments is that the proposition "murder is wrong," which is commonly taken to be the paradigm example of a universal moral principle, is an empty statement, having the logical status of a tautology. His argument proceeds from the assumption that "murder is wrong" means the same thing as "wrongful killing is wrong." As I argue in Part II.B., this assumption is false. The proposition "murder is wrong" is not empty, tautological, or what philosophers call "analytic," but nonempty, informative, or what philosophers call "synthetic." (20) Moreover, Posner's assumption that the prohibition of murder is not universal is not only unfounded, but contradicted by the very sources he cites in his book. Finally, Posner fails to come to terms in any serious way with the hypothesis that human beings share a sense of justice rich enough to support a universal system of rights and obligations, including the right not to be murdered. This hypothesis is plausible and supported by a considerable body of empirical evidence. Throughout Problematics, Posner adopts the mantle of science and pokes fun at philosophers for being unscientific. But in truth, it is his relativism, not their universalism, that seems out of touch with modern science.

Given Posner's aim of freeing legal scholarship from what he takes to be the corrupting influence of philosophy, it makes sense that he would seek to criticize arguments by philosophers that have exerted influence on lawyers. Among his targets is Judith Thomson's defense of abortion, whose paper of that name was first published in the inaugural issue of the journal Philosophy and Public Affairs (21) two years before the Supreme Court decided Roe v. Wade. (22) Thomson's paper, which turns on the analogy of the killing of a fetus with the killing of a person by removing his life support, where that support consists of the circulatory system of a second person who is forced to support the first person against her will, is "the most widely reprinted essay in all of contemporary philosophy" (23) and a source of inspiration for many important law review articles. (24) Excerpts of it are also reprinted in many leading constitutional law casebooks. (25) Posner criticizes Thomson's arguments at length, concluding that they do not deserve the attention and praise they have received. His main criticism is...