THE PROBLEMATICS OF MORAL AND LEGAL THEORY by Richard A. Posner. Cambridge, Massachusetts and Londin, England: The Belknap Press of Harvard University Press, 1999.320pp. Cloth $29.95. ISBN 0-674-70771-0.
Reviewed by Ira L. Strauber, Department of Political Science, Grinnell College.
Richard Posner, Federal judge-cum-scholar, describes THE PROBLEMATICS
OF MORAL AND LEGAL THEORY as completing a trilogy that includes THE PROBLEMS
OF JURISPRUDENCE (1990) and OVERCOMING LAW (1995). The primary purpose
of the earlier two books was to criticize legal scholarship and legal reasoning
from the perspective of Judge Posner's amalgam of pragmatism, economic
analysis, and John Stuart Mill's liberalism. In the capstone book the target
for these criticisms is "academic moral theorists," those scholars who
hold to the belief that legal scholarship and the law ought to follow,
or at least be
significantly influenced by, moral philosophy (e.g. Ronald Dworkin,
Martha Nussbaum, John Rawls, Joseph Raz, Thomas Scanlon, Judith Jarvis
Thompson). the criticisms of those scholars provided the inflections for
Posner's defense of his own "pragmatic moral skepticism" and for the characterizations
of jurisprudence, law, judging, and legal education that accompany that
pragmatism.
Before I begin this review in earnest I want to say that this latest book is notably less expansive intellectually, and also shorter, but no less graceful, than earlier two volumes in the trilogy. I mention this because the capstone book should fit the bill for those who might have been curious about what Posner had to say about jurisprudence and the law but were put off by the rather larger books. the capstone book also fits the bill for scholars, good upper level undergraduates, and graduate students who will benefit form reading an entirely readable book that will provoke them to skirmish with the author over the issues of legal pragmatism.
That said, Posner is an advocate of that well-known concept of meta-ethics,
psychology, and behavior which asserts that moral intuitions and reasons
arise solely out of motivations such as expedience, pride, or personal
preferences (e.g., Hume and Adam Smith). For Posner, "knowing the moral
thing to do furnishes no motive, and creates no motivation for doing it"(7).
Granted that the goal of legal scholarship is to influence what people
believe and hoe they will behave, Posner presents a number of meta-ethical,
rhetorical, sociological, and psychological arguments to explain why it
is impossible for moral theorists (who endorse the position that knowing
the moral thing to do provides the motivation for doing it) to contribute
anything positive WHATSOEVER (except perhaps to encourage solidarity among
those who are already predisposed toward a specific moral theory).
But to Posner's dismay, those moral theorists are dominant intellectual force in the academy. Their dominance is something that Posner feels compelled to explain and to decry for its detrimental conservative effect on scholarship and law. He asserts boldly that the "American public wants pragmatic solutions
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to practical problems rather that philosophical debate" (82), and that
moral theorists block the more fact-based and scientific-based approach
to scholarship and judging that would speak to those pragmatic solutions
that the public wants- and that Posner believes it so badly needs. According
to Posner, this scholarship should be based upon relationships between
morality and the law reconceived along the lines of a "pragmatic moral
skepticism." In the first chapter, Posner covers a set of
meta-ethical ins and outs of this skepticism, but what they come down
to is familiar enough. pragmatic moral skepticism treats moral beliefs
as mechanisms of social cooperation and coercion rather than as matters
of right or wrong. These mechanisms are to be analyzed "by reference to
[their] social setting, or more narrowly still to the common beliefs of
[their] adherents and [their] opponents"(21). That analysis should depend,
according to Posner, upon insights drawn primarily from economics and sociology
(he has abundant praise for law and society scholarship), but also from
psychology, evolutionary biology, statistics, historiography, decision
theory, and political science--anything but moral theory.
In the second chapter Posner asserts that even if law and morality overlap
as instruments of social control, the law does not necessarily enforce
morality and often enforces policies that are sometimes morally indifferent
(109). Based on this assertion of a contingent relationship between the
law and morality, posner criticizes the moral-based jurisprudence of H.L.A.
Hart and Dworkin (one of his major antagonists), and the sociological-based
jurisprudence of Jurgen Habermas for their respective universalistic claims
about the law. From there Posner recommends that the law and morality be
understood as two very different forms of social control
such that "pragmatic social objectives... do not have to be validated
by any moral theory" (112), nor do they have to be explained or improved
by "Jesuitical-Talmudic tricks" of casuistry (129).
As an alternative, Posner proposed that moral issues in the law can
and should be "elided or recast as issues of interpretation, institutional
competence, practical politics, the separation of powers or STARE DECISIS-
or treated as compelling reason for judicial abstention" (113). To think
otherwise, he insists, is to continue to confuse moral reasoning with reasoning
about norms. He admits that legal issues have moral significance for citizens,
and that rarely do judges find themselves torn between the law and their
deeply held moral convictions. In those rare instances when they do, Posner
insists that judges are pragmatists in the sense that they depend on their
reading of the law, social fact considerations. their moral intuitions,
and their sense of outrage to decide cases, but never on academic
moral theory. He discusses some famous cases (e.g., abortion and desegregation)
to buttress this sociological claim about judges, and he makes the point
that applying methods of scientific theory and empirical analysis to them
would improve judging. But he also, acknowledges that this improvement
is something that , at this time, is more to be hoped for than to be expected.
Constitutional theorists are another of Posner's targets. Posner argues that they are motivated by the belief that constitutional theory can contribute to social reform. Posner dissents. He runs though a number of familiar constitutional theorists (e.g., Ely, Dworkin again, Ackerman) to make his argument that they, like moral theorists, persuade only their co-religionists and that their scholarship only obscures the need for scientific and empirical research into the
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implications of constitutional doctrines that social reform actually requires. There is on constitutional theorist though (Cass Sunstein) whose disavowal to social fact considerations earns him (his politics aside) the highest accolade possible from Posner, the label of "pragmatist." But Posner points out that whatever chance there might be for Sustein's scholarship to influence judges is lost because of the bench's disdain for academic constitutional theory.
To close the third chapter, Posner foreshadows the kind of "pragmatists"
theorizing he would like to see other constitutional theorists practice.
He lists a number of empirical questions, akin to those asked by scholars
of judicial politics, related primarily to compliance with, and the implementations
and impact of, constitutional decisions that if scholars would answer them,
might find an audience with judges. Within this context he also presents
a case study about criminal legal procedure to illustrate the pragmatic
value of social scientific thinking about the social costs and consequences
of constitutional policies. And he discusses an affirmative
action case (U.S. V. VIRGINIA, the VMI Case) and a homosexual rights
case (ROMER V. COLORADO) to demonstrate how constitutional "decisions are
so barren of any engagement with reality that the issue of their correctness
scarcely arises" (182) and to encourage social scientific theorizing about
those decisions.
The topic of engagement with reality shapes the rest of this book. In
the fourth and final chapter, Postner argues that greater professionalism
on the part of lawyers (in Weberian sense of being engaged in practice
that requires highly specialized knowledge accumulated by formal education
or apprenticeship) is a pre-requisite for the more pragmatic lawyering
he envisions. Posner takes some solace in the extent to which the law has
already become more professional (e.g., increased specialization in legal
practice, efficient divisions of labor in law firms and court systems)
and more business-like since the Sixties. On balance, he considers this
professionalism a good thing, but he is unhappy that law is less "professional"
than medicine. He addresses that lesser professionalism in relation to
legal education which, despite some strides in the right direction, is
described ad suffering from "a case of professional mystique" ("when belief
in a profession's knowledge claims is not justified by the professions's
actual knowledge") that covers up its resistance to genuine improvements
(187).
One might say that Posner's ambition in this book is to "cure" legal
scholarship of its professional mystique. There is an air of some frustration
in this ambition. This frustration is reflected in Posner's remark that
to believe that legal education, and hence legal practice, could become
more professional by following moral theory is as absurd as to believe
that military strategy or medical treatment could be improved by philosophy.
Instead Posner exhorts his fellow "judges... to understand that the only
sound basis for a legal rule is its social advantage, which requires an
economic judgment, balancing benefits against costs" (208, economic analysis
broadly conceived to include the other social sciences). Here is where
his praise for law and society scholarship enters in. Posner summarizes
his own study of variation in tort litigation as an example of scholarship
with the potential to make understanding the law and its social implications
more professional.
In this chapter Posner takes the opportunity to differentiate his "cure" from arguments that might be confused with it. He distinguishes between his legal pragmatism and philosophical versions of it (in various places throughout the book
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Posner also distinguishes his pragmatism from his intellectual guide, Holmes). And he draws as sharp a line as he can between his pragmatism, Duncan Kennedy's pragmatic postmoderism, Stanley Fish's contempt for grand legal and political theory, and Dworkin's attack on pragmatism (abated by Dworkin's praise for some judicial virtues that overlap with Posner's pragmatism).
At a less abstract level, Posner provides some brief samples from constitutional
law to illustrate how a professional pragmatist judge might regard formal
issues such as overruling precedents, ans substantive issues like surrogate
motherhood and homosexual marriage, within the context of institutional
competence, practical politics, and the like. Within that context he endorses
pragmatic developments in administrative law scholarship (but not administrative
law adjudication) as an example of movement toward the more pragmatic and
scientific understanding of the law he advocates- i.e., that shows promise
to the extent that it owes more and more to
economics and political science.
It is worth nothing that Posner provides some measure of balance in his defense of pragmatism by putting forward voluntarily some caveats about the costs of pragmatic adjudication. These caveats are welcome in and of themselves: they might also prove useful for evaluating the pragmatic craft of judge Posner's own judicial opinions.
The book ends with provocative and prosaic recommendations about potential institutional ramifications of pragmatism. One provocative recommendation addresses the costs and benefits of making the third year of law school optional as a means to professionalize legal education. The other provocative recommendation is to rethink the function of law reviews by: 1) making doctrinal research a priority, 2) submitting work for anonymous peer review, and 3) abandoning constitutional law scholarship altogether. The prosaic recommendation is to revive the American Law Institute to address issues of legal reform.
There are some scholars who will argue that Posner's prosaic recommendation is a fitting end to his trilogy. For example, Lief Carter REVIEWED THE PROBLEMS OF JURISPRUDENCE as a cliche-ridden book of dubious scholarly utility (1991). on the other hand, Mark Graber reviewed OVERCOMING LAW as a provocative book about empirical flaws in legal scholarship, but then he criticized it for the same lack of empirical integrity that posner finds in other legal scholarship (1995). I suppose because I fancy myself a pragmatist (but a far more skeptical one than Posner), I find more to praise than criticize in Posner's work. Nevertheless, both Carter's and Graber's comments have merit in relation to the capstone book, and their comments are worthy of being fully evaluated in a "proper extended" review that addresses significant continuities and discontinuities in the trilogy as a whole.
I do not think that kind of review will be so easy to construct. Judge Posner usually writes in tight, persuasive, concentric rings of qualified arguments befitting his self-proclaimed vague and inconsistent utilitarianism (xii-xii) and his relativistic and existential morality (29). Scattered within these rings are rhetorical stipulations such as "Morality may be losing its grip on modern people" (74); aphorism like "A person's moral code is not a balloon that the philosopher's pinprick will burst, it is a self-sealing tire" (41); and partisan political pinpricks directed at left-liberal moral codes such as "The best first-year legal education today is probably better than it was in the 1950's. This is true even though some inroads into quality have been
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made by affirmative action at both the student and faculty levels, by the disappearance of the Socratic bully... and by the decline in the casuistic brilliance of faculty as the law schools shifted from emphasis on hiring from legal smarts to academic creativity..." (293).
The overall after-effect of this kind of writing is that intellectual
expansiveness I referred to at the beginning of my review. It is my judgment
that a "proper extended" review will be difficult to write insofar as one
would distinguish between a cliche versus an aphoristic comment, or between
a dubious empirical claim versus a rhetorical stipulation. To have to make
such distinctions may annoy some readers and reviewers, but I find them
to be one of the intellectual and political fascinations of reading Posner.
And if one is interested in the practical side of things, especially in
regard to the recent explosion of articles about pragmatism and law, Judge
Posner's "cliches" and his "dubious empirical claims" might tell us as
much, maybe more, about jurisprudence and the law than a bundle of some
of our academic
profundities and polished empirical research.
REFERENCES
Carter, Lief. THE PROBLEMS OF JURISPRUDENCE by Richard Posner. THE LAW
AND
POLITICS BOOK REVIEW 1:2 (April 1991), 39-42.
Graber, Mark A. OVERCOMING LAW by Richard Posner. THE LAW AND POLITICS
BOOK
REVIEW 5:11 (November, 1995). 270-72.