Posner’s wrong – his theory is either tautological or helplessly abstract.

Posner begins The Problematics of Moral and Legal Theory by noting his own long history of interest in the relation between morality and law, specifically his attempts to demystify this relationship. To this end, he claims that his current book is the third part of a trilogy that contains The Problems of Jurisprudence and Overcoming Law." Posner notes that when judges look outside of the law for help in how to decide a particular case, they face a stark opposition of choices between moral philosophy on the one hand and pragmatism on the other." As Posner defines them, moral philosophy, a la Kant, seeks "a moral order accessible to human intelligence and neither time-bound nor local, an order that furnishes objective criteria for praising or condemning the beliefs and behavior of individuals and the design and operation of legal institutions." 13 Posner defines morality, the basis of this moral order, as "the set of duties (not necessarily just to other people-the duties could run to animals as well, or, importantly to God) that are designed to check our merely self-interested, emotional, or sentimental reactions to serious questions of human contact. It is about what we owe, rather than what we are owed .... Contrastingly, pragmatism asserts that when faced with a decision-making situation, one should turn to a combination of "policy, common sense, personal and professional values, and intuition and opinion, including informed or crystal- ,,15 lized public opinion. When the methods of pragmatism fail, one should turn to science instead of moral philosophy. 6 In short, moral philosophy offers nothing not only to adjudication and jurisprudence but also to anyone "engaged in a normative enterprise, quite without regard to law."17 In drawing the battle lines against moral philosophy, Posner concedes that all legal disputes have some fundamental grounding in morality, only he argues that this grounding is in fact so basic that it can be of no assistance in actually deciding the case. For example, there may be a basic prohibition against murder in all societies, but this moral universal is either tautological, in that it defines murder as any unjustified killing, or helplessly abstract, in that it shifts the debate to unresolvable questions of when killing is justifiable and when not. 8 By asserting that "there are no interesting moral universals,"'9 Posner rejects the Kantian project of a transcendent morality •20 that lies at the heart of what he considers to be moral philosophy. Posner, though, does not make much of an attempt to justify this statement, but essentially takes it as a given that morality is merely a feature of one's social environment. Part of this is a definitional problem. In effect, Posner defines moral issues in such a way that they only exist when they are unresolved: "By moral 'issues' I mean contested moral questions. When there is no contest, when everyone agrees on what's right, there is no issue and the need for theory does not arise."2 ' This, though, is to put the cart before the horse. For Posner, universal moral agreement is a sign not of a successful moral argument, but rather of a moral principle so basic that it need not be questioned. This position forecloses the possibility that the consensus could have been achieved through moral argumentation. On the other hand, if moral dispute exists, then it would seem according to Posner that this is a sign that a resolution of this dispute is inconceivable. While Posner may be correct that certain basic principles, such as that murder is wrong, are unhelpful in deciding complex moral issues, this does not lead to the conclusion that a dispute over moral outcomes necessarily results in the impossibility of their resolution. Implicit in Posner's argument is also the idea that the diversity of moral positions in the world today, many of them contradictory, demonstrates the victory of moral relativism over moral realism, at least from an empirical standpoint.22 If people are unwilling to abandon their moral positions because of the existence of reasoned argument, then the moral philosopher would seem to be at a loss of purpose. Furthermore, there does certainly seem to be a resonance with Posner's non-universalization position to anyone who has ever been in a passionate argument about moral principles and 23 failed to walk away with a changed mind. Indeed, it is the inability of moral arguments to change minds that Posner makes the crux of his argument against academic moral philosophers, whom he also calls "academic moralists."24 The source of the failure of academic moralists lies in what Posner sees as the motivation for moral behavior in the first place, namely the moral sentiments. Moral sentiments refer to those emotional reactions like pity or disgust that one experiences in certain situa25 tions and then translates into moral approval or disapproval. Because moral sentiments are not object-specific, they are, unlike 26 moral principles, universal. A further argument for the universality of moral sentiments comes from Posner's claim that the Y7are instinctual in origin and thus common to all human beings. However, the lack of specificity of moral sentiments also means that they 28 are useless in determining how to act in a given situation. For example, someone from a Western culture may experience repulsion at the idea of female circumcision, but this moral sentiment may not be experienced by the Ethiopian either performing or undergoing the procedure. Yet, this repulsion or lack thereof cannot be unproblematically translated into a moral argument that will convince the other side of the moral invalidity of its position. "A moralist cannot persuade you by the methods of reason to one morality or another, but he can offer you a morality that you can accept or reject for reasons of pride, comfort, convenience, or advantage, though not because it is 'right' or 'wrong." 2 9 This confirms Posner's point about the impossibility of resolving moral disputes through reasoned moral argument. But if all that academic moral philosophers can offer are reasoned moral arguments, ° then their usefulness for public morality falls away. In other words, Posner argues, academic moralists are unable to fulfill the very goals that they see as being the purpose of their enterprise.3 ' What I have been saying, though, should not be interpreted as suggesting that Posner rejects the existence of morality or its importance in shaping the beliefs that people have. Posner, who limits his criticism to moral philosophy per se, s does certainly believe that individuals hold moral positions and even that these positions can change, only that these changes occur not as the result of moral reasoning, but rather through appeals to the moral sentiments. If you want to turn a meat eater, especially a nonacademic one, into a vegetarian, you must get him to love the animals that we raise for food; and you cannot argue a person into love. If you want to make a person disapprove of torturing babies, show him a picture of a baby being tortured; don't read him an essay on moral theory. An academic moral argument is unlikely to stir the conscience, incite a sense of indignation, or engender feelings of love or guilt. And if it does, one has only to attend to the opposing moral argu- 33 ments to be returned to one's starting point. It is this appeal to moral sentiments that separates, at least for Posner, the moral entrepreneur from the academic moralist. The moral entrepreneur appeals to a mix of self-interest and emotional appeals "that bypass our rational calculating faculty and stir inarticulable feelings of oneness or separateness ... from the moral community that the moral entrepreneur is trying to create. They teach us to love or hate whom they love or hate." Posner cites as examples of moral entrepreneurs, in a grouping probably never before seen in history, Jesus Christ, Jeremy Bentham, Adolf Hitler, and Catherine MacKinnon. 5 These people have all changed the moral beliefs of others because of the effectiveness of their emotional appeals. This impact, Posner contends, is absent among academic moral philosophers. Academic moralists can offer interpretations of and help explain what past moral philosophers have argued and what the dimensions of current moral debates might be, but they can never provide definitive reasons for the adoption of one moral position over another.36 Thus, academic moral philosophy, to the extent that it is of any value at all, can only stimulate people to further moral reflection, far from the goal held by academic moralists of resolving moral disputes. "At its best, moral philosophy, like literature, enriches; it neither proves nor edifies."'