The Problematics of Moral and Legal Theory (Belknap) [Hardcover]

The Honorable Richard A. Posner (Author)

Book Description

Publication Date: March 1, 1999 | ISBN-10: 0674707710 | ISBN-13: 978-0674707719

Ambitious legal thinkers have become mesmerized by moral philosophy, believing that great figures in the philosophical tradition hold the keys to understanding and improving law and justice and even to resolving the most contentious issues of constitutional law. They are wrong, contends Richard Posner in this book. Posner characterizes the current preoccupation with moral and constitutional theory as the latest form of legal mystification--an evasion of the real need of American law, which is for a greater understanding of the social, economic, and political facts out of which great legal controversies arise. In pursuit of that understanding, Posner advocates a rebuilding of the law on the pragmatic basis of open-minded and systematic empirical inquiry and the rejection of cant and nostalgia--the true professionalism foreseen by Holmes a century ago.

A bracing book that pulls no punches and leaves no pieties unpunctured or sacred cows unkicked, The Problematics of Moral and Legal Theory offers a sweeping tour of the current scene in legal studies--and a hopeful prospect for its future.

Editorial Reviews

Review

Posner believes that most moral understanding is acquired in childhood and largely controlled by parental example, peer pressure, and religion. Once acquired, moral beliefs and commitments can only be changed through "appeals to self-interest and emotional appeals that bypass our rational calculating faculty"...As usual with Posner, the writing is clear, the footnotes abundant and highly informative, and the index excellent. Highest recommendation for all collections. (J. White Choice )

[This book] should fit the bill for those who might have been curious about what Posner has to say about jurisprudence and the law but were put off by the rather longer books. [It] also fits the bill for scholars, good upper level undergraduates, and graduates students who will benefit from reading an entirely readable book that will provoke them to skirmish with the author over the issues of legal pragmatism. (Ira L. Strauber Law and Politics Book Review )

Review

Richard Posner's trenchant criticism of the Kantian assumptions of most contemporary moral philosophy is very refreshing, and much needed. His distinction between "moral entrepreneurs" and "academic moral philosophers" is particularly helpful. (Richard Rorty, Stanford University, author of Achieving Our Country (Harvard) )

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Product Details

• Hardcover: 336 pages
• Publisher: Belknap Press (March 1, 1999)
• Language: English
• ISBN-10: 0674707710
• ISBN-13: 978-0674707719
• Product Dimensions: 9.5 x 6.4 x 1.1 inches
• Shipping Weight: 1.4 pounds
• Average Customer Review: 4.1 out of 5 stars  See all reviews (8 customer reviews)
• Amazon Best Sellers Rank: #1,886,572 in Books (See Top 100 in Books)

More About the Author

Richard A. Posner is a judge of the U.S. Court Appeals for the Seventh Circuit, and a senior lecturer at the University of Chicago Law School. He is the author of numerous books, including Overcoming Law, a New York Times Book Review editors' choices for best book of 1995 and An Affair of State: The Investigation, Impeachment, and Trial of President Clinton, one of Times' choices for Best Book of the Year in 1999 and a Los Angeles Times Book Prize Finalist, 2000.

Customer Reviews

Most Helpful Customer Reviews

47 of 51 people found the following review helpful:

4.0 out of 5 stars Critical yet constructive, October 4, 1999

By A Customer

This review is from: The Problematics of Moral and Legal Theory (Belknap) (Hardcover)

This book is Chief Judge Richard Posner's chance to explode the myth that esoteric moral and political theory has anything meaningful to contribute to solving modern legal issues. All in all, he is up to the task. Specifically, he takes aim at the theories of liberal legal scholars such as Ronald Dworkin (a favorite target of Posner's)and concludes that such theories will ultimately be unconvincing since almost any of them can be rebutted. For Posner, the proper role of abstract philosophical thinking is mainly to poke holes in other people's arguments. However, Posner goes the extra step of actually offering his own constructive advice on how judges/scholars should approach legal issues. In his mind, the key lies in pragmatism- that is, using the tools of disciplines other than law (economics, sociology, etc.) to find solutions that will best serve the future while keeping a certain connection to the past. Though it is sometimes a little difficult to grasp what Posner means by pragmatism, he offers several examples from various fields of law that offer some insight. One of the enjoyable aspects is that although Posner seems to possess an almost encyclopedic knowledge of all fields of law, he writes about them in a way that can be grasped by most educated people. It should be said, however, that one of the books problems is that since it devotes so much time to criticizing other legal theories, Posner must mount a serious rearguard defense against anticipated arguments against his own views. This makes for a sometimes stilted tone to the book. In all, however, the book delivers the insight and bluntness that you come to expect from Posner and is surely a worthwhile purchase for anyone interested in either the legal profession or legal scholarship.

17 of 18 people found the following review helpful:

4.0 out of 5 stars Posner at his best, December 1, 2000

By 

M. Golkar (New York City) - See all my reviews

This review is from: The Problematics of Moral and Legal Theory (Belknap) (Hardcover)

In almost 20 years as America's most influential non-Supreme Court judge since Learned Hand, Richard Posner has made great use of his astounding intellectual repertoire to bring insights from other disciplines (most notably, economics) to bear on the law. In this work, Posner takes aim at the "academic moralists" whose theoretical works have, in his opinion, not only contributed little of use to the legal profession, but also stunted its growth. The root of Posner's disdain for such moral theorizing is his belief that universal standards of right and wrong do not exist and thus that all morality is local. It is therefore pointless to talk of whether this or that moral theory is the "right" one- the very aim of the scholars whose work Posner so gleefully dismisses. Unfortunately, the disproportionate attention paid to academic moralism has weakened the legal profession by decreasing the amount of time devoted to more "pragmatic" (Posner's favorite word) issues that actually can be of use in resolving legal issues. In Posner's view, today and tomorrow's scholars must be trained to think pragmaticallly if law is to make any significant advances. While this book is stinging in its rebukes, it must be said that there is a lot in it that may not be appealing even to those who are generally sympathetic to Posner's concerns. Most obvious is his moral relativism (what he deems "pragmatic moral skepticism"), especially since Posner is most often identified as a conservative (though he is really on the libertarian side). In addition, the good judge is never really able to quell criticisms that his pragmatic view of judging is so squishy as to be able to justify almost any result. These drawbacks, however, should not detract from the more general thrust of the book, which is that ambitious philosophy adds nothing to the law.

11 of 12 people found the following review helpful:

4.0 out of 5 stars An intelligent and illuminating book, if too long, November 19, 2002

By 

James Daniels (Columbus, OH) - See all my reviews

This review is from: The Problematics of Moral and Legal Theory (Belknap) (Hardcover)

In The Problematics of Moral and Legal Theory, Judge Richard Posner asks a critical question: can moral philosophy ever help the practice of law? Posner answers this question with a resounding no.

Take a simple example. Suppose that a robber is shot dead at the scene of the crime and, the shooter is charged with murder. Should he be convicted? A pacifist might say yes, since killing is always wrong. Others would say no, since he acted in self defense (killing is not always wrong). Others would say that it depends on whether he was threatened.

If you were the judge or the jury, who should you believe? Posner argues that you will believe the person who most closely approximates your preconceived beliefs. In other words, a pacifist prosecutor will have a hard time convincing anyone who believes in self-defense, since each and every moral philosophy can be countered by another moral philosophy.

Posner goes on to argue that moral philosophy can help us with things that we all agree on, like "democracy is good" and "freedom should be protected." The problem is that no case before a court ever deals with such broad disputes. Instead, each side lines up its moral arguments, and the judge basically ignores them all. Posner also shows that moral philosophy is of some use in changing what people agree is right, as with Martin Luther King, Jr.

In the down and dirty disputes before a judge, though, Posner says that we have to rely more on our gut reaction, economics, and sociology than moral theory. The judge must ask, "If I did X, would society be better off?" Posner calls this legal pragmatism, the hope that the law can be rationalized along empirical grounds. He is careful to distinguish this stance from philosophical pragmatism and moral relativism. The former worries only about ends, while Posner explicitly worries about means, and the latter would not allow anyone to ever say that "murder is wrong." Posner has no problem with moral precepts that everyone agrees with.

The downside of this book is that it is way too long. The first few chapters outline most of his argument, and the rest of the book deals with legal history and particular examples from supreme court cases. Law students might find these parts worthwhile. Those who are interested in philosophy and law should read this book, as should those who want a look at how judges think and work. Whether you agree with him or not, his exploration of the topic is cool and complete.