Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit, who also continues to teach at the University of Chicago Law School, will be guest-blogging here starting Monday, December 27 through next Saturday (January 1) or Sunday (January 2).
Richard Posner is, of course, best-known for his seminal work establishing economic analysis of law as the major intellectual event in American legal scholarship of the past thirty years. Over the last twenty years, he has also become recognized as one of the most important and influential federal judges in the United States. But for his candid and unflinching academic writings, he would surely be the obvious choice for an appointment to the United States Supreme Court (were one to be made on the merits), but in the current political environment, it is hard to imagine religious conservatives agreeing to an outspoken social and economic libertarian--not to mention atheist, who is also not at all bashful about the duty of judges to make "good law" when such law needs to be made--surviving the confirmation process. That is a misfortune, but just one of many in America today!
Not since Benjamin Cardozo 75 years ago, have we had a sitting judge who has written so frankly about what it is judges do and ought to do. Posner's jurisprudential interests have centered around adjudication, rather than the more traditional conceptual questions about the nature of law and its relationship to morality. He has defended in various places what he has called a "pragmatic" approach to adjudication. (The Problematics of Moral and Legal Theory [Harvard University Press, 1999] contains one particularly useful exposition; citations, below, are to this book.) The view is "pragmatic" in various respects, but it seems to me the key one is this: by treating the primary duty of judges as the forward-looking one of reaching "good" resolutions to disputes (where that is usually understood in utilitarian or economic-efficiency terms), the Posnerian judge not only demotes precedent and statutes from the role of "binding authorities" to that of (often useful and reliable) "rules of thumb" about what would be the best outcome, he also sets a pragmatic bar on theorizing about adjudication: namely, the theories have to be useful for judges, given their duty to produce outcomes that maximize the good (however exactly the good is understood).
This pragmatic attitude towards theory--which Posner shares, most strikingly, with Marx, who tells us in the Second Thesis on Feuerbach that, "The dispute over the reality or non-reality of thinking which is isolated from practice is a purely scholastic question"--accounts for the view for which Posner is most notorious among philosophers, namely, his scathing attacks on the value and relevance of what he calls "academic moralism" (Posner 1999, 5) --"the kind of moral theorizing nowadays considered rigorous in university circles" (id.)--to the work of judges. Such theory, says Posner,
has no prospect of improving human behavior. Knowing the moral thing to do furnishes no motive, and creates no motivation. Motive and motivation have to come from outside morality. Even if this is wrong, the analytical tools employed in academic moralism--whether moral casuistry, or reasoning from the canonical texts of moral philosophy, or careful analysis, or reflective equilibrium, or some combination of these tools--are too feeble to override either narrow self-interest or [pre-existing] moral intuitions. And academic moralists have neither the rhetorical skills nor the factual knowledge that might enable them to persuade without having good methods of inquiry and analysis. As a result of its analytical, rhetorical, and factual deficiencies, academic moralism is helpless when intuitions clash or self-interest opposes, and otiose when they line up. (Posner 1999, 7)
(Posner, of course, stakes his ground here with the Humeans who deny that there is any intrinsic connection between knowledge of the moral rightness of an action and an agent's motiviation to perform it.)
Posner is not alone in such skepticism about the practical value of moral theory, though he may be the most vigorous proponent of such a view since Karl Marx himself. In a 1997 essay in Daedelus, for example, the eminent political scientist Charles Lindblom expressed the same kind of skepticism as Posner's:
[T]here is no clear, umistakable, demonstrated connection between. . .the distinguished contributions of a whole history of political philosophy and any of society's major ventures. . ...We have to face, at one extreme, the possibility that the world of the 1940s and 1950s--and today's world, too--would look pretty much as it does had there never been a Plato or Aristotle or their equivalents; never a Hobbes, a Locke, a Weber, or their equivalents. (Lindblom 1997, 241-242)
Notice, of course, that this kind of skepticism about academic moral theory need not depend on any general skepticism about whether ideas (or reasons) make a causal difference to the course of events. Hardcore eliminative materialists may embrace this kind of radical skepticism, but more relaxed materialists (like Posner and Marx) need not. People may act for reasons, and ideas may be hugely influential, and all of that is compatible with skepticism about moral theory. Posnerian and Marxian skepticism is directed, rather, at one or both of the following claims: (1) that moral ideas and reasons make a causal difference to the course of events; or, (2) that certain normative ideas in the form of a theory make a causal difference to the course of events. The former claim would, of course, subsume the latter: if moral ideas make no causal difference, then of course moral theories will make no causal difference. The converse does not hold, however: (2) is a weaker claim than (1), which might explain why even some contemporary moral philosophers have embraced versions of (2) (perhaps Annette Baier, for example).
This latter, more modest skepticism does require that we specify the distinctive form of normative theory, such that normative ideas so expressed are causally inert. A "theory" in the problematic sense, I take it, aims for a systematic and explicit justification of its normative claims. Moreover, this justification aims for a level of abstractness and comprehensiveness remote from the particularized decision-making of ordinary life. Of course, ordinary people have normative views, and these views may influence their actions. But ordinary decisions are not generally (if ever) informed by a normative theory in the sense at issue.
The preceding characterization of normative theory certainly fits Posner's examples of "academic moralists" (like Dworkin and Rawls), and it also jibes with his criticism of academic moralism. For it is precisely the characteristics of academic moral theory--the drawing of fine distinctions, the mustering of careful arguments and counter-arguments, the parsing of concepts--that are supposed to explain its inefficacy for Posner: such stuff simply numbs the mind, bores the reader, and is ineffectual with respect to altering people's antecedent, basic motivations and desires. But is Posner right? A bit of armchair sociology suggests he may well be. We do know, for example, that academic moral theory is little read, even within the academy. (Rawls's A Theory of Justice  may be the exception, though as Posner has pointed out to me, it is far from clear whether this distinguished work is widely read or just widely referred to for a few pithy, memorable, metaphoric ideas--the difference principle, the veil of ignorance, the original position, overlapping consensus, and so forth--rather than the elaborate argumentative apparatus which purportedly generates these ideas.) We know that academic moral theory bores many people, including students. We know that most people and most politicans are not especially smart or acute, and have trouble following a complex argument. (The entire blogosphere is evidence for that! Recall this stunning example from many months ago of a PhD economist who can't even follow a simple argument.) We know that people are strongly moved by self-interest in many (perhaps most) circumstances. Given all that--who could seriously deny any of it?--it would, indeed, be surprising if academic moral theory made any difference at all to the course of events. The burden is properly placed on the proponents of the thesis that academic moral theory matters to make the case.
The first and less modest kind of skepticism--the one which questions whether moral ideas, theoretically expressed or otherwise, exert much force in the course of human affairs--is more dependent on a certain view of human nature, one, arguably, shared by Posner as well as others in what I have called the "classical realist" tradition in political theory, which includes, in different ways, thinkers from Machiavelli to Nietzsche to Holmes. (For discussion of all these figures, as well as Posner, see my "Classical Realism," Philosophical Issues 11 (2001): 244-267.) Like the skepticism about moral theory, this kind of skepticism about the efficacy of moral reasons rests on the thought that given what human beings are really like, one should not expect moral claims or normative theory to have much impact upon them: either people are such that they won't answer to moral demands, or they are such that moral theory will not affect them. Posner takes over from rational choice theory a picture of agents as rational maximizers of their satisfactions, and it is that picture of human nature, together with the Humeanism about motivation noted earlier, that explains much of Posner's general world view, including his skepticism about academic moral philosophy.
I have touched on just a few important themes in Posner's jurisprudential writings, but given the scope of his corpus, and his theoretical interests, there is much, much more, even of a philosophical nature, that might merit comment: for example, his skepticism about the objectivity of morality; his writings on Holmes; and his rational choice treatment of judges as kinds of maximizers. Although I have not conferred with Judge Posner about the topics he plans to address this week, hopefully these introductory remarks will prove useful for those unfamiliar with Posner's work of a jurisprudential nature.