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The Problematics of Moral and Legal Theory University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 1998 The Problematics of Moral and Legal Theory Richard A. Posner Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Richard A. Posner, "The Problematics of Moral and Legal Theory," 111 Harvard Law Review 1637 (1998). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. VOLUME 111 MAY 1998 NUMBER 7 1HARVARD LAW REVIEW1 '997 OLIVER WENDELL HOLMES LECTURES THE PROBLEMATICS OF MORAL AND LEGAL THEORY Richard A. Posner TABLE OF CONTENTS I. THE Lminrs OF MORAL THEORIZING ........................................................................... 638 A. The Thesis of PartI Summarized............................................................................. 638 B. My Moral Stance ......................................................................................................... 1642 x. Moral Relativism ................................................................................................ 1642 2. Moral Subjectivism ............................................................................................ 1643 3. Moral Skepticism ............................................................................................... 1643 4. Emotivism ........................................................................................................... 1645 5. Moral Particularism ........................................................................................... 1645 C. What I Think of "Theory".......................................................................................... 1646 D. The Relativity of Morals ............................................................................................ 1649 E. Reconceiving Morality Functionally........................................................................ 1657 R The Moral Sentiments ................................................................................................1662 G. The Problem of Motivation and the Methods of the Moral Entrepreneur........... 1664 H. The Scholarship of Morality ...................................................................................... 1668 1. Functional Analysis ........................................................................................... 1668 2. High Moral Theory ............................................................................................ 1670 3. Reflective Equilibrium ...................................................................................... 1673 4. Moral Casuistry .................................................................................................. 1675 L The Perils of Uniformity ......................................................................................... 1681 J. Professionalism'sCold Grip and the Impotence of Education............................... 1682 K. Moral Change and the Persistenceof Moral Debate - and of Academic Moralism ....................................................................................... 1689 11. THE Lu TS OF MORAL REASONING IN LAv .................................................................. 1693 A. Law and Morality: The Relation Reargued ............................................................. 1693 B. Some Cases ................................................................................................................... 1698 z. The Euthanasia Cases ....................................................................................... 17o0 2. The Abortion Cases ........................................................................................... 1702 3. The Segregation Cases and a Note on Affirmative Action ........................... 1703 4. The Case of the Murdering Heir ...................................................................... 1707 C. Conclusion to Part II ................................................................................................. 1708 APPENDIX ......................................................................................................................................1710 1637 THE PROBLEMATICS OF MORAL AND LEGAL THEORY Richard A. Posner' In these Holmes Lectures, delivered a century after the publication of Oliver Wendell Holmes's great essay The Path of the Law, Judge Posner argues for an essentially Holmesian conception of the properrelations among modern normative moral philosophy ("academic moralism"), morality, and law. Academic moralism, he argues, lacks either the intellectual cogency or the emotional power to change people's beliefs or behavior; the power to do so resides in "moral entrepreneurs," which academic moralists emphatically are not. Academic moralism's lack of cogency disqualifies it to guide judicial decisionmaking even - in fact, especially - in cases involving controversial moral issues, such as abortion and euthanasia, as the Supreme Court has recognized. I. THE LIMITS OF MORAL THEORIZING A. The Thesis of Part I Summarized M y aim is to criticize moral theory, or, more precisely, a type of moral theory (the subject of Part 1)and then use the criticisms as a lever for challenging the type of legal theory that resembles or draws on moral theory (the subject of Part DI). I have in mind, for example, the constitutional theorizing of Bruce Ackerman, Akhil Amar, Walter Berns, Ronald Dworkin, John Finnis, Robert George, Andrew Kop- pelman, and David Richards, among others, occupying all points of the ideological compass, as well as the nonconstitutional legal theorizing of Jules Coleman, Joel Feinberg, George Fletcher, Charles Fried, Leo Katz, Gregory Keating, Margaret Jane Radin, and Ernest Weinrib, and again many others of diverse political hue. I shall argue that moral theory does not provide a solid basis for moral judgments, let alone for legal ones. I shall intermittently relate this thesis to one of the big and somewhat neglected stories of our time: the rise of pro- fessionalism in a sense illuminated by Max Weber's concepts of ratio- nalization and disenchantment. And I shall indicate how in legal as well as private life we can get along without doing or even thinking about moral theory. * Chief Judge, United States Court of Appeals for the Seventh Circuit; Senior Lecturer, Uni- versity of Chicago Law School. This is a revised and expanded version of the Holmes Lectures delivered at the Harvard Law School on October 14 and 15, 1997. For research assistance I thank Sorin Feiner, and for comments on earlier drafts I thank Lucian Bebchuk, Thomas Eisele, Ward Farnsworth, Lawrence Lessig, Robert Nozick, Martha Nussbaum, Eric Posner, Richard Rorty, David Strauss, Cass Sunstein, members of the lecture audiences, and Dennis Thompson and his students in the Program for the Study of Ethics and the Professions at Harvard's Ken- nedy School of Government. 1638 1998] THE PROBLEMATICS OF MORAL AND LEGAL THEORY 1639 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 ar- guments for the weak form will emerge in Part II, which is much shorter, not only because it builds on Part I, but also because, inde- pendently 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 coun- terintuitive. 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, self- fulfillment, 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,
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