Copyright (c) 1999 First Things 95 (August/September 1999): 56-58.
The Problematics of Moral and Legal Theory. By Richard A. Posner. Belknap/Harvard University Press. 320 pp. $29.95.
Reviewed by David M. Smolin
Richard Posner, well–known as both a federal judge and legal academic, is generally recognized as one of the chief originators of the law and economics movement. His latest, awkwardly titled book is a broad polemic against the large role of moral theory in the legal academy, and in favor of his own brand of pragmatism patterned after that of Oliver Wendell Holmes. There is much that is unattractive in this volume. The dreary cover, consisting of large white and gray letters against a black background, well conveys the starkly amoral and rationalistic world of Judge Posner. Nonetheless, despite the unattractiveness of Posner’s amoralism, there is much here that the diligent reader may find useful.
Posner is distressed that so much of contemporary legal scholarship elaborates or relies upon diverse moral theories that attempt, in highly abstract terms, to make normative claims about law. His thesis is that such moral and legal theories are useless because they lack the capacity to settle contested moral or legal claims. Thus, debates between, for example, Roman Catholic natural law theorists and secular feminist legal theorists over abortion are, for Posner, a waste of time, for neither theoretical approach possesses the tools to persuade anyone of contrary views.
Posner describes the purposes of the intricate theorizing in the legal academy in sociological terms. First, although moral theories cannot persuade those with contrary views, they do promote solidarity among the believers, especially outside the legal academy. Academic moral theory, like preaching, "stiffens the backbone" of one’s coreligionists (or co–ideologues) by "convincing people who think like you that they are not alone in their beliefs [and] have the backing of someone who is confident, competent, articulate, and thoughtful."
Second, the esoteric, self–referencing nature of much of contemporary legal theory is a product of the "professionalization" of the legal academy, where law professors have become a profession separate from that of the bench or bar. Posner perceives here a negative form of professionalization, which creates a "professional mystique" through adoption of an "obscurantist style of discourse" that is "impenetrable to outsiders." Posner observes that professions rely on mystique most heavily when they lack knowledge valuable to the rest of society.
Although these two sociological purposes may appear somewhat incompatible, the overall picture is clear. Law professors write solely for other academics, but since their underlying religious/ideological/political positions are relatively conventional, they can also reassure their co–ideologues outside of the academy that someone really smart who speaks the language of modern moral/legal theory is on their side. People outside the academy still give enough credence to academics and academic discourse that they want someone in that world to hold and defend their views, even if they themselves would never be able to decipher the academic writings in which they do so.
Having inhabited the legal academy for a dozen years, I can affirm that much of Posner’s analysis rings true. It is the case, as Posner asserts, that the legal academy is filled with theorists whose writings will never persuade anyone other than their fellow travelers, and whose risk–averse life situation is well summarized by that famous epithet, "tenured radical."
At the same time, Posner, in describing moral academics as split between "two main subsets, the liberal–secular and the conservative–religious," may mislead readers into believing that the academy is more or less equally split between those two groups. Religious conservatives, however much (dis)credit Posner may give them, comprise but a small and endangered minority in the legal academy. Even at ostensibly church–affiliated law schools, religious conservatives usually make up a minority of the faculty. At most law schools, only a few professors could accurately be described as both religiously active and politically conservative, and some of them are trying to hide it, at least until they can obtain tenure.
Posner offers religious conservatives a backhanded compliment, although most readers are likely to miss it. While ridiculing the claims of both "liberal–secular" and "conservative–religious" theorists, it is only religious theorists whom Posner appears to concede may be able to produce a credible theory of moral realism, based on "faith in a Supreme Lawgiver." He thinks, however, that little needs to be said about such a perspective, since "explicit religious arguments are not a part of academic moralism"—even among religious people. Posner suggests that this lack is unfortunate: those (like John Finnis) who "derive their moral codes from religious orthodoxy make a tactical mistake" when they make secular reason the only legitimate basis for moral claims. Instead, they should point out that both religious and moral secularists ultimately found their views on "faith."
Readers will recognize that Posner is not an authority on the complex and diverse relationships between faith and reason within various religious traditions. In addition, Posner’s advice to religious theorists is probably not offered seriously, for Posner would likely follow the reflexive tendency of his colleagues to rule explicitly religious arguments out of bounds if he encountered them in either of his two roles as judge or professor. Nonetheless, within the diverse meanderings of this self–proclaimed skeptic there appears an intuition that moral claims without a foundation in God cannot make that difficult philosophical movement from "is" to "ought."
Natural law theorists derive from human nature and human goods conclusions about what we ought to do. But it is one thing to state that all human beings have some access to God’s law within and through human nature, quite another to expect natural law theories based on reason alone to persuade others about contested moral issues in a context where such theories are stripped of their foundations in God as creator, lawgiver, and judge. Religious believers are attempting to make natural law accomplish something it was never intended to do—justify God’s laws without reference to God. Even if one believes (as I do) in the existence of natural law, one can agree with Posner that the current form of natural law discourse has almost no value in persuading secular academics and activists on issues such as abortion, homosexuality, and assisted suicide.
The difficulty with the present use of natural law theory is that it attempts to create a neutral space between theistic believer and autonomy–based skeptic. While there is certainly much shared by virtue of common humanity, a correctly directed reason is, at best, only intermittently and imperfectly a part of the human condition. (Indeed, how often we religious believers, even with the additional help of divine revelation, manage to delude ourselves on moral and ethical matters!)
Religious believers are likely to get further in discourse with the current generation of secular academics by 1) continually demonstrating, as Posner himself seems to intuit, that only a moral theory founded on God can actually "work," in the sense of bridging the gap between "is" and "ought"; and 2) demonstrating the inherent self–contradictions of the moral theories advocated by the "secular liberals." The best way to succeed, I would contend, is to move back and forth between the worlds of theistic natural law theory and secular moral theory, rather than trying to occupy a supposedly neutral ground between the two.
As a practical matter, most moral academic theorizing in the legal academy is done (in Posner’s terminology) on the secular liberal side, and produces policy recommendations (as Posner likes to point out) that are often wildly impractical and unrelated to the actual moral intuitions of much of the population. Contact with reality—which is to say, the actual operation of the legal system and its impact on society—is more likely to confront academics with the immutable truths of human nature than endless theorizing restrained only by the politically correct predilections of one’s colleagues. If that is true, then Posner’s suggestion that the legal academy might achieve a different and better sort of professionalization through study of the law’s actual effects would, on the whole, probably be a positive development.
David M. Smolin is Professor of Law at Cumberland Law School of Samford University in Birmingham, Alabama, and Fellow of the Southern Center for Law and Ethics.