The concept of moral theory does not provide a solid basis for moral judgements, much less a basis for legal judgements – Laundry List.

My thesis has a strong form and a weak one. The strong form, again, is that moral theory does not provide a solid basis for moral judgments. The weak form is that even if moral theory can provide a solid basis for some moral judgments, it should not be used as a basis for legal judgments. Moral theory is not something that judges are, or can be, made comfortable with or good at, it is socially divisive, and it does not mesh with the actual issues in cases. I shall focus on the strong form of the thesis in Part I of the Lectures. The distinct arguments for the weak form will emerge in Part II, which is much shorter, not only because it builds on Part I, but also because, independently of the arguments in Part I, the case for the weak form is stronger. The argument in Part I is complex and to some extent counterintuitive. It requires careful groundwork, which is the task of this and the next two sections. "Morality," as I shall use the word, is the set of duties to others (not necessarily just other people) that are designed to check our merely self-interested, emotional, or sentimental reactions to serious questions of human conduct. It is about what we owe, rather than what we are owed, except insofar as a sense of entitlement (to happiness, selffulfillment, an interesting life, the opportunity to exercise our talents, or the opportunity to realize ourselves) might generate a duty on the part of others to help us get what we are entitled to. I do not question the existence or genuineness of morality - I do not argue that it is just a cynical cover for the operation of self-interest - although I do argue that it has less effect on behavior than many moralists believe. Nor do I disparage morality as a subject of inquiry or question the practicability or importance of normative reasoning. If "moral theory" is used in its broadest possible sense, as a synonym for normative reasoning, you will find no criticism of moral theory as such in these Lectures. As for the frequent use of the word "moral" as an impressive synonym for "political,"' my only criticism is that labeling political arguments "moral" invites confusion. My concern is with the type of moral theory that I call "academic moralism," the type found in the writings of present-day academic philosophers such as Elizabeth Anderson, Sissela Bok, Ronald Dworkin, David Gauthier, Alan Gewirth, Frances Kamm, Thomas Nagel, Martha Nussbaum, John Rawls, Joseph Raz, and Judith Jarvis Thomson. This is a diverse list, but there is at least a family resemblance among the persons listed; and the family is what I am calling academic moralism. Some of those listed are considered primarily legal philosophers (for example, Dworkin and Raz) or political philosophers (for example, Rawls) rather than moral philosophers. But they all want the law to follow the teachings of moral theory, though not always at a close distance. 2 I present a series of reasons for doubting that academic moralism will help people who are seeking answers to moral questions, though as I have not read, let alone studied, every important work in the domain of academic moralism, I may have overlooked works that might still my doubts. Because Dworkin stands squarely at the intersection of the two bodies of literature that I discuss, academic moral theory and moralistic legal theory, I pay particular attention to his views. I confess to a visceral dislike (no doubt reciprocated) of academic moralism. A lot of it strikes me as prissy, hermetic, censorious, naive, sanctimonious, self-congratulatory, too far Left or too far Right, and despite its frequent political extremism, rather insipid. But these vices in the bosom of the virtuous are perhaps not very serious. Moreover, they may reflect nothing deeper than the fact that, as in many other academic fields today, too many people, driven by the imperative "Publish or perish," are writing on moral theory. The best of the literature is free from these vices, and I want to focus on the best. I also want to be constructive. In Part II, I try to show that normative reasoning in law can be freed from dependence on the sort of moral theory that academic moralists propagate. Very briefly, my reasons for doubting the fruitfulness of academic moralism, even in settings remote from law, are as follows. First, morality is local. There are no interesting moral universals. There are tautological ones, such as "Murder is wrong," where "murder" means "wrongful killing," and there are a few rudimentary principles of social cooperation - such as "Don't lie all the time" or "Don't break promises without any reason" or "Don't kill your relatives or neighbors indiscriminately" - that may be common to all human societies.3 If one wants to call these rudimentary principles the universal moral law, fine; but as a practical matter, no moral code can be criticized by appealing to norms that are valid across cultures, norms to which the code of a particular culture is a better or a worse approximation. Those norms, the rudimentary principles of social cooperation that I have mentioned, are too abstract to serve as standards for moral judgment. Any meaningful moral realism is therefore out, and moral relativism (or rather a form of moral relativism, an important qualification to which I'll return shortly) is in. Relativism suggests an adaptationist conception of morality, in which morality is judged - nonmorally, in the way that a hammer might be judged well or poorly adapted to its function of hammering nails - by its contribution to the survival, or other goals, of a society. My analysis also suggests that no useful meaning can be given to the expression "moral progress" and that no such progress can be demonstrated. Second, many so-called moral phenomena can be explained without reference to moral categories. This point reinforces my thesis that the content of moral codes is local by showing that most moral principles that claim universality are better understood as mere workaday social norms in fancy dress. It also implies that the domain of moral theory is smaller than academic moralists believe. This is not to deny the existence of universal moral sentiments, such as guilt and indignation and certain forms of disgust 4 (as distinct from altruism, which is not primarily a moral sentiment). But these moral sentiments are objectneutral, and hence not really moral. "Moralistic" would be a better word for them. They are instruments rather than ends. Third, academic moralism cannot succeed in its aim of improving human behavior, for a number of reasons: i. Knowing the moral thing to do does not furnish a motivation for doing it; the motivation has to come from outside morality. 2. The analytical tools employed in academic moralism - whether moral casuistry, or reasoning from the canonical texts of moral philosophy, or reflective equilibrium - are too feeble to override either narrow self-interest or moral intuitions. As a result, academic moralism is helpless when moral intuitions clash or self-interest opposes them, and otiose when there is no such conflict. So "right answers" moral realism is hopeless, just like the metaphysical kind. And academic moralists have neither the rhetorical resources nor the detailed knowledge of social reality that might enable them to persuade without good methods of inquiry and analysis. 3. There is so much disagreement among academic moralists that the reader can easily find a persuasive rationalization for his preferred course of conduct, whatever it is. 4. The character of a modern academic career in philosophy is not conducive to moral innovation or insight. 5. Exposure to moral philosophy may actually lead people to behave less morally by making them more adept at rationalization. There is empirical evidence that moral reflection undermines the capacity for effective moral action. Fourth, it would be a disaster if moral theorists succeeded in their implied aim of imposing a uniform morality on society. Of course, these theorists, in our society anyway, do not agree on what that morality should be. But every moral theory takes for granted that a uniform morality is desirable, while what a society like ours needs is moral variety. In fact, we need some immoralists, or at least amoralists. It may be asked how, if academic moralism is ineffectual in changing people's behavior, moral change comes about. My answer emphasizes the role not only of material conditions, but also of moral entrepreneurs, and shows why the modern university professor is not well situated to play the role of moral entrepreneur. As for why there is moral debate if it is as inconclusive as I believe, the answer is that the fruitful moral debates take place outside the precincts of academic moralism. So why hasn't academic moralism withered and died? I suggest that it survives because of the religious needs of people who are attracted to a career in moral philosophy and the rhetorical needs of people who want courts to play an aggressive role in the formation of social policy.