Ambitious legal thinkers have become mesmerized by moral philosophy, believing that great figures in the philosophical tradition hold the keys to understanding and improving law and justice and even to resolving the most contentious issues of constitutional law. They are wrong, contends Richard Posner in this book. Posner characterizes the current preoccupation with moral and constitutional theory as the latest form of legal mystification--an evasion of the real need of American law, which is for a greater understanding of the social, economic, and political facts out of which great legal controversies arise. In pursuit of that understanding, Posner advocates a rebuilding of the law on the pragmatic basis of open-minded and systematic empirical inquiry and the rejection of cant and nostalgia--the true professionalism foreseen by Holmes a century ago.
A bracing book that pulls no punches and leaves no pieties unpunctured or sacred cows unkicked, The Problematics of Moral and Legal Theory offers a sweeping tour of the current scene in legal studies--and a hopeful prospect for its future.
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.
Simply put, Federal Judge Richard Posner has a HUGE bone to pick with moral philosophy's belief that they can effect law (or much else for that matter) for the two reasons stated above: (a) morality, says Posner (rightly, i think) is relative - "no general proposition is worth a damn." (b) Moral philosophers are, by in large, pedants who take themselves much more seriously than anyone not a moral philosopher does.
Posner backs up and documents the futility of moral philosophy for law quite well. In fact, I came across this book while writing something to do with the abortion wars, which is used as an example of Posner's dilemma. The abortion contreversey has not been close to solved, despite moral philosophy's best efforts, because the matter is simply not one amenable to reason in the first place. One side sees a child; the other, a fetus. One side sees the mother's 'right; the other, the babie's 'right'. The fact is that for all of moral philosophy's talk that there is a 'right' answer in all of this (each side convinced that they posess it) the 'right' answer merely depends on which premises you accept (and will be unlikely talked out of as the conviction is emotional, not 'rational').
Posner goes on to outlay a theory of pragmatism that, as Holmes briefly touched on in "The Path of the Law" that first, acknowledges that "no general proposition is worth a damn," and that while theory has its place, so does practice and that the law needs to be much more cognizant of the latter than it has been.
If all this makes Posner seem like a post-modernist, that is because the difference (and there is a difference) is hard to decipher. Those post-modernists like Stanley Fish want to get rid of principle - "general propositons" - alltogether and see law as nothing but a game of political rhetoric. While Posner shares Fish's pessimism on general principles, he doesn't think they should be abandoned, but used pragmatically - not the caricature of using principles to justify ends wanted in advance, but to use them like we use rules of baseball; they are conventions and need to be seen as such (there is no 'natural law') but they exist and must exist to allow the game to be played. Posner explains much of this in the book (though it might take some read throughs to get it clear).
To close, I gave the book 4 stars becasue while Posner seemed to enjoy himself in trashing philosophy and law, one gets the feeling (as one so often does with Posner) that he has very little to put in its place. This may perfectly be his intent - that nothing can be put in its place. If so, he should point that out and explain why rather than just leaving us hanging. Oh well!
Simply put, this is the book (if "Sex and Reason" wasn't) that will ensure that should Posner get a Supreme Court nod, he will NEVER make it past the senate!
