72 Pages Posted: 24 Jan 2006
In The Problematics of Moral and Legal Theory, Judge Richard Posner argues that moral and legal theory are largely worthless in their own right and have little if anything to contribute to legal scholarship. In this review essay, I first summarize the major themes of Problematics and then evaluate Posner's arguments on their merits. Among the main points I make are the following.
First, the most conspicuous feature of Problematics is Posner's failure to engage in any serious way with the model of moral theory described by Rawls in A Theory of Justice. In keeping with a traditional analogy, Rawls' model is organized around a series of comparisons between rules of justice and rules of grammar. The model begins from the empirical assumption that each person develops a sense of justice under normal circumstances, an assumption it takes to be the best explanation of the moral analogue of what linguists and cognitive scientists call the projection problem. The model then identifies the first task of moral philosophy to be an accurate description of the sense of justice, thereby solving the moral analogue of what linguists and cognitive scientists call the problem of descriptive adequacy. The model follows the standard practice of the cognitive sciences in distinguishing a person's operative moral principles (those principles actually operative in her exercise of moral judgment) from her express principles (those principles she verbalizes in an effort to explain or justify her judgments). Finally, the model draws a distinction between moral performance (a person's actual exercise of moral judgment in concrete situations) and moral competence (the mental capacity or cognitive system underlying those judgments) in a sense analogous to the linguistic competence-performance distinction first introduced by Chomsky in Aspects of the Theory of Syntax and now used throughout the cognitive sciences. Posner's failure to address these and other plausible features of Rawls' model vitiates much of what he says in Problematics about morality and moral theory.
Second, Posner's defense of moral relativism is undermined by his mistaken assumption that alleged moral universals such as 'murder is wrong' are nothing more than vacuous tautologies. This assumption is false: the proposition 'murder is wrong' is not analytic, but synthetic - as Locke and Hume, among others, recognized, and as any well-formulated criminal code will attest. Moreover, Posner's contention that these common prohibitions are not universal is not only unfounded but contradicted by the very sources he cites in his book. Finally, Posner fails to come to terms in any serious way with the hypothesis that human beings share a sense of justice rich enough to support a system of universal human rights and obligations, including the right not to be murdered. This hypothesis is plausible and supported by a considerable body of empirical evidence. Throughout Problematics, Posner adopts the mantle of science and pokes fun at philosophers for being unscientific. But, in truth, it is his relativism, not their universalism, which seems out of touch with modern science.
Keywords: moral theory, legal theory, cognitive science, human rights, pragmatism, Quill, Glucksberg, Posner, Dworkin, Rawls, Chomsky, Thomson
JEL Classification: D63, D64, K00, K13, K14
Suggested Citation: Suggested Citation
Mikhail, John, Law, Science, and Morality: A Review of Richard Posner's 'The Problematics of Moral and Legal Theory'. Stanford Law Review, Vol. 54, p. 1057, 2002; Georgetown Law and Economics Research Paper No. 877011; Georgetown Public Law Research Paper No. 877011 . Available at SSRN: https://ssrn.com/abstract=877011
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