Since it’s publication in 1999, Richard Posner’s The Problematics of Moral and Legal Theory (PMLT) has been nearly entirely ignored by the philosophical establishment. Perhaps it is because Posner himself is a judge and professor of law rather than a trained academic philosopher. Or perhaps it is because Posner is so critical of what he calls “academic moralists.” For present purposes, I am less interested in why philosophers haven’t bothered to take notice of Posner’s view and more interested in whether what he says in PMLT contains some important grains of truth—especially his claim that:
[P]eople who make philosophical arguments for why we should alter our moral beliefs or behavior are wasting their time if what they want to do is to alter those beliefs and the behavior the beliefs might influence. Moral intuitions neither do nor should yield to the weak arguments that are all that philosophers can bring to bear on moral issues. (p.ix)
Posner calls the view he develops in PMLT “pragmatic moral skepticism.” One of Posner’s motivating assumptions is that robust versions of moral realism—whereby “there are universal moral laws ontologically akin to scientific laws” (p.3) that are “neither time-bound nor local” (p.6)—are false. Another assumption is that “the casuistic and deliberative techniques that moral theorists deploy are too feeble, both epistemologically and rhetorically, to shake moral intuitions” (p. ix).
Posner’s primary target in the first chapter of PMLT is a group of moral theory builders he calls academic moralists—a group that he suggests includes Elizabeth Anderson, Alan Gewirth, Frances Kamm, Thomas Nagel, John Rawls, Thomas Scanlon and others. The unifying assumption that these philosophers purportedly share is that, “the kind of moral theorizing nowadays considered rigorous in university circles has an important to play in improving the moral judgments and moral behavior of people” (p.5)—an assumption that Posner rejects.
On his view, contrary to what academic moralists have traditionally assumed, moral theories are unlikely to have an effect on our moral beliefs and intuitions. As he says:
Knowing the moral thing to do furnishes no motive, and creates no motivation, for doing it; 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 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. (p.7)
Pragmatic moral skepticism is hence based on several epistemological assumptions—the chief of which is the purported fact that “in the case of moral controversy, the audience for academic debate is likely to be either uninterested or, because of self-interest or moral intuition, already committed. The committed cannot be swayed by, or the uninterested persuaded to take an interest in, arguments about where one’s moral duty lies." (p.13)
As a result of these considerations, Posner suggests that there is a certain futility to contemporary academic moral theorizing (p.13).
Of course, he is quick to point out that he is not suggesting that we should not study morality nor is he questioning the value of theorizing in general—he is merely suggesting that while descriptive sociological, anthropological, and evolutionary theories about morality are valuable, normative theory building is not. This suggestion is driven at least partly by Posner’s assumption that, “a person’s moral code is not a balloon that the philosopher’s pinprick will burst; it is a self-sealing tire….the volleying back and forth of these rational arguments does not result in victory for one side; the ball is too easy…to return” (p.41).
Posner does not deny that our moral views and intuitions change through time—rather, he denies that the moral theories of academic philosophers have much to do with these changes taking place.
On his view, shifts in moral beliefs are more often the result of changes in material circumstances combined with the influence of “a very different type of moral advocate from the academic moralist” (p. 42) Posner calls these moral advocates “moral entrepreneurs” and he gives the following account of their modus operandi:
Moral entrepreneurs typically try to change the boundaries of altruism, whether by broadening them, as in the case of Jesus Christ and Jeremy Bentham, or by narrowing them, as in the case of Hitler…they don’t do it with arguments, or at least good ones. Rather, they mix appeals to self-interest with emotional appeals that bypass our rational calculating faculty and stir inarticulable feelings of oneness with or separateness from the people (or it could be land or animals) that are to constitute, or be rejected from, the community that the moral entrepreneur is trying to create. (p.42)
Consider, for instance, the animal rights movement—which gained a lot of traction in the wake of the publication of Peter Singer's Animal Liberation in 1975. Given Singer’s non-technical writing style, his broad audience, his use of both emotionally charged descriptions of animal abuse and graphic photographs, Posner would likely place him in the camp of moral entrepreneurs rather than academic moralists. Moreover, Posner would likely suggest that this explains Singer’s success in changing so many people’s beliefs and intuitions about the acceptability of certain forms of meat-eating and animal experimentation. According to Posner, simply pointing out to the meat eater that his moral beliefs and practices are inconsistent will be inadequate for engendering change. As he says:
They [i.e., academic moralists] believe that if you point out to a meat eater that because he considers suffering a bad thing and animals suffer as a result of his diet he is being inconsistent, you may persuade him to become a vegetarian. But behavioral inconsistency is a weaker ordering principle that logical consistency….the meat eater can distinguish between human and animal suffering; can deny that animals have to suffer in being for food…can point out that his own consumption of meat is too slight to affect the number of animals killed; can even argue that to put animals on a par, as it were, with human beings could make us less sensitive to human suffering…can point out that Genesis explicitly invites us to eat meat; or can equivocate, by confining his meat eating to the meat of animals raised and killed humanely, or to road kill, or by adopting the position that moral philosopher R.M. Hare calls ‘demi-vegetarianism’. If you want to turn a meat eater, especially a non-academic one, into a vegetarian you must get him to love the animals that we raise for food; and you cannot urge a person into love…An academic moral argument is unlikely to stir the conscience, incite a sense of indignation, or engender feelings of love or guilt. And if it does, one has only to attend to the opposing moral arguments to be returned to one’s starting point.
(pp. 51-52)
Posner seems to get the moral psychology correct in this passage. If one’s goal is to convert someone to “compassionate omnivorism,” vegetarianism, or veganism, one would have markedly more success taking people on tours of factory farms or exposing them to video and audio footage of slaughterhouses than one would by giving them a well-argued but non-emotionally charged treatise on animal welfare to read. Consider, for instance, my earlier post on what I called “non-compassionate omnivorism.” I essentially provided the readers with the following kind of admittedly sterile argument:
1. Knowingly contributing to or complying with an immoral act is itself immoral.
2. The methods and practices of factory farming are immoral.
3. To knowingly eat and/or purchase factory farmed meat is to knowingly contribute to or comply with an immoral act.
4. Therefore, eating and/or purchasing factory farmed meat is itself morally problematic—especially when one can afford to eat and/or purchase non-factory farmed meat.
Did this convince any of the meat eating readers of this blog to convert to “compassionate omnivorism”? I doubt it. I suspect that had I instead posted pictures of the miserable conditions factory farmed animals are forced to endure as they make the dreary march from birth to our dinner plates, more people would have reconsidered their eating and purchasing habits. But what does this say about human psychology? And what does it say about the effectiveness of rational and emotionally sterilized argumentation—the bread and butter of contemporary academic moralists?
If the method and style of argumentation we rely on in developing our views is mostly ineffective when it comes to engendering moral change, then what else should we be doing? Is appealing to someone’s emotions any less philosophically respectable than providing them with a syllogism (see Robert Solomon’s interesting new book In Defense of Sentimentality for a insightful answer to this question)? Should philosophers be more interested in moral change than they are? Is simply writing to a very small audience of other philosophers sufficient--i.e., is it enough to merely construct elegant ethical theories or should moral philosophers be worried about how these theories are going to make a practical difference? I am curious to see what the readers of this blog think about these issues. Minimally, I think it is time that Posner’s view receives the attention that it deserves—raising as it does several interesting questions ranging from meta-ethics and moral psychology to public policy and the proper relationship between the academy and the world at large.
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UPDATE: Thanks to Matt for pointing out that Ronald Dworkin reviewed Posner's book (see here). John Mikhail (Georgetown University Law) also has a review posted on SSRN here. Searching JSTOR and The Philosopher's Index produces virtually no hits however. So, I welcome more information concerning other reviews of the book.
UPDATE: Posner's posts from his guest-blogging days can be found here. Leiter's earlier post on Posner's jurisprudence can be found here.
