The Problematics of Moral and Legal Theory

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The Problematics of Moral
and Legal Theory

by
Richard Posner

general information | review summaries | our review | links | about the author

Title:	The Problematics of Moral and Legal Theory
Author:	Richard Posner
Genre:	Philosophy/Law
Written:	1999
Length:	310 pages
Availability:	The Problematics of Moral and Legal Theory - US
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Our Assessment:

B : ambitious book with an interesting argument, ultimately trying to do too much

See our review for fuller assessment.

Review Summaries
Source	Rating	Date	Reviewer
The Economist	C+	18/9/1999	.
New Republic	A-	23/8/1999	Peter Berkowitz
The NY Rev. of Books	D	9/3/2000	Ronald Dworkin

  Note on the Reviews:

  Note that NYU law professor Ronald Dworkin acknowledges in his review that "Problematics is very critical of my own work." -- and see also the comment from The Economist below.
  The enmity between the Dwork-man and Judge P. seems to be coming to an ever-greater boil, and the New York Review of Books review has certainly helped stoke the fires.

  Review Consensus:

  No consensus.

  From the Reviews:

"Judge Posner is well known for his polemical style. In The Problematics of Moral and Legal Theory he loses control of this and attempts to obliterate his intellectual opponents with a barrage of ill-supported assertions. The first part of this book is a near-hysterical attack on Ronald Dworkin, one of America's leading legal philosophers. (...)When Judge Posner moves on to his more familiar ground of arguing that the economic and social effects of the law should be more extensively studied, the entire tenor of the book changes, as if the first section had been written by someone else." - The Economist

"(An) always stimulating, frequently brilliant, occasionally laugh out loud funny, and at a few crucial junctures resolutely obtuse new book. (...) When Posner keeps his eyes trained on the pretensions of academic moral philosophy he proves himself a thinker of an altogether higher order." - Peter Berkowitz, New Republic

"Problematics defends two main claims (...) Posner's arguments for the first of these ambitious claims are very weak. (...) Posner's arguments for his second thesis, that moral philosophy can be of no use to lawyers and judges, are even worse." - Ronald Dworkin, The New York Review of Books

Please note that these ratings solely represent the complete review's biased interpretation and subjective opinion of the actual reviews and do not claim to accurately reflect or represent the views of the reviewers. Similarly the illustrative quotes chosen here are merely those the complete review subjectively believes represent the tenor and judgment of the review as a whole. We acknowledge (and remind and warn you) that they may, in fact, be entirely unrepresentative of the actual reviews by any other measure.

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The complete review's Review:

       Richard Posner is undoubtedly among the leading legal figures in contemporary America. Who you gonna call when you want the government and Microsoft to settle their antitrust dispute ? Dickie P., of course. A Federal judge (and sometime serious contender for a Supreme Court seat, though that ship seems to have sailed) Posner has a keen mind, wields a mighty pen in admirable fashion (in both his legal opinions and his many, many articles, lectures, and books), and, apparently, has an opinion about everything. His broad vision of the law and its function in society makes for interesting theories about all sorts of matters, as reflected in the subjects of his books: sex, old age, law and literature, the judiciary, among others. (Among our favourite Posner titles: his classic, A Guide to America's Sex Laws (see our review.))
       The Problematics of Moral and Legal Theory is an ambitious, foreboding, and forbidding title. Problematics ? Moral and Legal Theory ? Enough to drive most readers away. Too bad. Posner is not your usual dry and verbose academic. His style is approachable, his explanations almost always clear. As unlikely as it sounds, this book -- especially the crackling first section (on moral theory) -- is a fun read. You may not agree (you may gasp in disagreement), but Posner puts forth his usual interesting positions.
       Pegged as a "Law and Economics" guy, Judge Posner is sometimes described as considering economic efficiency paramount in what drives humans, and that the law should be seen in that light as well. Laws that promote economic efficiency (a very broad concept, the definition of which is also subject to much debate) are good, those that don't are bad. Posner's (in)famous argument for the benefits of selling babies exemplifies the notion.
       In The Problematics of Moral and Legal Theory Posner goes about the question differently, arguing why moral theory should not influence the shaping and application of law. Free law from moral theory ! is his cri de coeur here. He sums his position up in his preface:

(I)t is particularly clear that legal issues should not be analyzed with the aid of moral philosophy, but should instead be approached pragmatically.

Posner defines morality as "the set of duties to others," a definition with which there should not be much disagreement. More significantly, Posner argues that "morality is local." For Posner "there are no interesting moral universals" -- something such as murder is uninteresting because it is tautological (defined, per se, as "wrongful killing", and to say wrongful killing is wrongful is ... well, banal). And from there Posner lets rip at the academics who want to use moral theory (with its absolutes and universalism) in the law.
The attack is an impressive one, though there are a few low blows. Posner's contempt for those that practice academic philosophy and wish to apply it beyond the ivory tower is great indeed. He suggests, for example, that:

Exposure to moral philosophy may lead educated people to behave less morally than untutored persons by making them more adept at rationalization.

       And so it goes. He has fun with the "moral entrepreneurs" and skewers a whole array of big lights. The academy and the academics do not fare well here. It certainly makes for entertaining reading: Posner attacks points of weakness ruthlessly and he writes well. Is he convincing ? In part, certainly, but those in the opposing camp are unlikely to see the light. (See Ronald Dworkin's response to Posner's charges, for example -- or Dworkin's review of this book in The New York Review of Books (cited above).)
       From moral theory Posner moves to legal theory, examining how moral theory has and might influence the law. As he sees it, the influence has been extremely limited. He cites a number of ostensibly moral legal cases -- from euthanasia and abortion to segregation and murderous heirs -- and finds moral theory basically absent and unnecessary from the judicial decisions regarding them. Posner also examines constitutional cases, given the emphasis academics have placed on constitutional theory (misplaced, according to Posner), again finding the moral (and academic) influence not significant on Supreme Court decisions
       The first, more descriptive part of the book is titled The Wrong Turn. The second part proposes The Way Out, showing what Posner is really after with his argument. First comes a closer look at the practice of law -- Professionalism -- and then some suggestions for how to right things, titled -- how else ? -- Pragmatism. There is some meandering about here as Posner returns to his favourite themes, such as making the law truly "professional" ("overcoming law", as he titled one of his previous books). The sociology of law rears its head here, and Posner makes his familiar arguments.
       In the final chapter he turns to legal pragmatism (and its critics), ultimately offering three pragmatic suggestions for reform: a two-year law degree, a change in the practice of legal publication in the form of law school student edited law journals, and reform of the American Law Institute.
       The book loses some focus as it shifts from criticism to analysis to suggestion. Nevertheless, there is a lot here that is worthwhile. Posner is a good thinker and a very good writer. There is a lot worth considering here, though many readers might not like what they are being told. Provocative and interesting the book is certainly highly recommended for all interested in either moral or legal theory. And for those that like to read attacks on academics.

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Links:

The Problematics of Moral and Legal Theory:

Harvard University Press publicity page

Reviews:

Richard A. Posner:

The complete review's Richard Posner page
Faculty page at the University of Chicago

Other books by Richard A. Posner under review:

Books about Richard Posner under review:

William Domnarski's biography, Richard Posner

Other books of interest under review:

Books on Legal subjects at the complete review

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About the Author:

Richard A. Posner is Chief Judge, U.S. Court of Appeals for the Seventh Circuit. He is also a senior lecturer at the University of Chicago Law School, and the author of many books.

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