The Problematics of Moral and Legal Theory

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Summary: A Call for Judicial Neutrality
Review: 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

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Summary: Posner at his best
Review: 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.

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Summary: An intelligent and illuminating book, if too long
Review: 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.

Rating:
Summary: Critical yet constructive
Review: 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.

Rating:
Summary: Enjoyable but Unconvincing
Review: Posner is always enjoyable to read and this book is no exception. Readers who are not current on discussions about moral philosophy and law will find Posner a lucid and accessible point of entry. However, my first reaction is Posner assumes
pragmatis is morally neutral and an adequate framework for the law.
First, values already underscores "pragmatism;" thus, any attempt to apply pragmatics to the law has already been contaminated by values that can probably only be properly analyzed and understood through moral philosophy. Hence, moral philosophy is an indispensible tool for critical analysis of the law.
Second, "pragmatism" is inadequate in forming an analytical framework for the law, particularly with the most difficult questions of the law. Questions about euthanasia, abortion, equal rights, etc. are densely moral and political which pragmatism will contribute little.
Overall an enjoyable book but a flawed idea. It will influence many readers but "The Problematics of Moral and Legal Philosphy" should be read with skepticism. Everyone reading this book should also read "Modern and the Holocaust" by Zymunt Bauman for a counter point to why moral philsophy, which probably raises more questions than it answers, should always be central to any discussion about the law.

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Summary: Holmes Reincarnate!
Review: Supreme Court Justice and legal pragmatist Oliver Wendell Holmes wrote: "I always say the chief end of man is to form general propositions - adding that no general proposition is worth a damn." He also wrote: "Do not be bullied out of your common sense by the specialist; two to one, he is a pedant." Put these two quotes together and they describe Richard Posner's "Problematics of Moral and Legal Theory" perfectly!

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!