Posner’s wrong.

In his new book, The Problematics of Moral and Legal Theory, Richard A. Posner, Chief Judge of the United States Court of Appeals for the Seventh Circuit and senior lecturer at the University of Chicago Law School, disputes the idea that moral philosophy can be used to solve differences of opinion. Posner contends that the Kantian project of attempting to resolve moral disputes through moral reasoning is fundamentally and fatally flawed. However, Posner goes a step further to say that not only is it impossible to derive the transcendent moral principles upon which Kant's argument depends, but that as a result judges should not rely upon moral arguments in deciding how to rule on a particular case. 6 Posner supports his position by making a distinction between academic moral philosophers and what he terms "moral entrepreneurs. "7 While Posner accepts the influential role that moral entrepreneurs play in shaping public morality, he rejects the contention that academic moral philosophers can have a similar effect. Instead of moral theory, Posner argues in his book that judges should incorporate social science into their method of adjudication.8 By understanding the potential effects of given judicial decision, the pragmatic judge can create the "best" results for society. However, in making these decisions, the judge is constrained by existing laws and the morality contained therein. Drawing from Holmes, Posner argues that the only time judges should bring moral concerns into their decision-making process is when they feel a clear moral "outrage" against the position taken in the law which they are considering overturning.9 I want to argue that Posner is drawing an untenable distinction between morality and social science. Despite Posner's claims that judges can exclude morality from their decision-making process, this claim is based upon an overly narrow view of the ability of judges to parse issues when faced with a morally contentious case. Judges cannot escape making moral decisions, not so much because each possible decision has some sort of moral impact and rests upon a set of moral assumptions as Dworkin and Nussbaum among others have claimed, but rather because morality is sometimes the only thing they have left to fall back upon. Even in those cases where the claims of efficiency that Posner trumpets do have relevance to the case, moral concerns must often also be brought in. Social science can offer guidance in achieving the goals that society sets, but it can offer no guidance in setting those goals in the first place. While Posner wants to leave these questions to the political process to resolve, this is a false hope-judges cannot avoid moral determinations as to the goals of society due to the very nature of their role as interpreters of law. Thus, Posner is forced, at least implicitly, to draw upon moral argumentation in his theory of adjudication. I will construct my argument as a "contentious narration" of Posner's book. By this I mean that I will present Posner's argument roughly as it unfolds in The Problematics of Moral and Legal Theory but will question each stage of the argument as it moves along. By gradually conceding to Posner various points for the sake of argument, I will show both the strengths of his argument and the assumptions he makes which undermine later portions of his reasoning. I will start by explaining and questioning the distinction Posner draws between academic moral philosophers and moral entrepreneurs. After resurrecting at least partial validity for moral theory, I will argue that social scientific analysis provides no better guidance than moral theory for how judges should decide a case. From there, I will move to a discussion of the inescapability of moral arguments for judges, despite the importance of considerations of efficiency. I will conclude by suggesting that Posner may have some Kantian sympathies himself.