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The Problematics of Moral and Legal Theory [Paperback]

Richard A. Posner
4.3 out of 5 stars  See all reviews (7 customer reviews)
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Book Description

June 14 2002
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 Oliver Wendell 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.

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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)

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))

More than ever,Richard Posner lays claim to the mantle of Oliver Wendell Holmes, not only in catholicity of interests, but also, in this instance, because Posner's thoroughgoing, no-holds-barred attack on moral philosophy is reminiscent of Holmes's own acerbic views regarding the potential contribution of moral theorizing to ascertaining the meaning of law. These chapters, as well as his attack on the contemporary vogue of "constitutional theory," will surely occasion the greatest controversy, but Posner also has important--and debatable--things to say about the legal profession and its future. (Sanford Levinson, University of Texas at Austin Law School)

The breadth and depth of Posner's scholarship is formidable, and his analyses are always provocative. This book is a highly welcome contribution to contemporary jurisprudential debate. (Neil Duxbury, Faculty of Law, University of Manchester)

About the Author

Richard A. Posner is Circuit Judge, the United States Court of Appeals for the Seventh Circuit, and a senior lecturer at the University of Chicago Law School.

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4.0 out of 5 stars Holmes Reincarnate! May 10 2004
Supreme Court Justice and legal pragmatist Oliver Wendell Holmes wrote: "I always say the chief end of man is to form general propositions - adding that no general proposition is worth a damn." He also wrote: "Do not be bullied out of your common sense by the specialist; two to one, he is a pedant." Put these two quotes together and they describe Richard Posner's "Problematics of Moral and Legal Theory" perfectly!
Simply put, Federal Judge Richard Posner has a HUGE bone to pick with moral philosophy's belief that they can effect law (or much else for that matter) for the two reasons stated above: (a) morality, says Posner (rightly, i think) is relative - "no general proposition is worth a damn." (b) Moral philosophers are, by in large, pedants who take themselves much more seriously than anyone not a moral philosopher does.
Posner backs up and documents the futility of moral philosophy for law quite well. In fact, I came across this book while writing something to do with the abortion wars, which is used as an example of Posner's dilemma. The abortion contreversey has not been close to solved, despite moral philosophy's best efforts, because the matter is simply not one amenable to reason in the first place. One side sees a child; the other, a fetus. One side sees the mother's 'right; the other, the babie's 'right'. The fact is that for all of moral philosophy's talk that there is a 'right' answer in all of this (each side convinced that they posess it) the 'right' answer merely depends on which premises you accept (and will be unlikely talked out of as the conviction is emotional, not 'rational').
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4.0 out of 5 stars An intelligent and illuminating book, if too long Nov. 19 2002
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.
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4.0 out of 5 stars Enjoyable but Unconvincing Dec 31 2001
Posner is always enjoyable to read and this book is no exception. Readers who are not current on discussions about moral philosophy and law will find Posner a lucid and accessible point of entry. However, my first reaction is Posner assumes
pragmatis is morally neutral and an adequate framework for the law.
First, values already underscores "pragmatism;" thus, any attempt to apply pragmatics to the law has already been contaminated by values that can probably only be properly analyzed and understood through moral philosophy. Hence, moral philosophy is an indispensible tool for critical analysis of the law.
Second, "pragmatism" is inadequate in forming an analytical framework for the law, particularly with the most difficult questions of the law. Questions about euthanasia, abortion, equal rights, etc. are densely moral and political which pragmatism will contribute little.
Overall an enjoyable book but a flawed idea. It will influence many readers but "The Problematics of Moral and Legal Philosphy" should be read with skepticism. Everyone reading this book should also read "Modern and the Holocaust" by Zymunt Bauman for a counter point to why moral philsophy, which probably raises more questions than it answers, should always be central to any discussion about the law.
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5.0 out of 5 stars A Call for Judicial Neutrality Sept. 7 2001
Don't believe any criticisms of this book that it advocates moral relativism or insensitive pragmatism. What Posner is driving at is the removal of moral theory from the practice of law. Translated: the removal of the politicization of law whether of the left variety [egalitarianism, redistributionism] or the right variety [natural law]. This sounds like anti-moralism, but it is not. Posner wants law to return to its role as the blind judge balancing the scales of justice rather than the judicial usurper of democracy. Posner wants a rational approach to law as opposed to the current masking of its role as a dispenser of goods for the "interest group state." Highly recommended. Wayne Lusvardi, Pasadena, California
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