Some Analyses Of Posner's Pragmatic Moral Skepticism

In 1897, the United States Justice Oliver Wendell Holmes published The Path of the Law on Harvard Law Review, one of the important theses is ,"for the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics."Mr. Holmes's insight didn't catch scholars attention until the 1960s and 70s, when the law and economics and the general sociology of law rose in America.After 100 years, on September22, 1997, Harvard University held Holmes Lectures, for memory of The Path of the Law had published for 100 years. Richard Posner gave the speech, who is one of the most famous contemporary jurists, and then he was the chief judge of the United States Court of Appeals for the Seventh Circuit. The title of the speech is The Problematics of Moral and Legal Theories, and the theme of it is to criticize moral theory and constitutional theory. In Posner's view, one understanding of this lecture is as a lasting tribute to Mr. Holmes's legal and moral theory, briefly saying, it is to eliminate the mystery of the law, especially to extricate the law from the major producers in the mysterious ways——the moral theory, and replace it with pragmatism, which is more concerning about empirical research and concerning about the consequences.Posner aims to criticize a type of moral theory, that is what he calls"academic moralism", which is a moral realism, it can be found in the writings of present-day academic philosophers, the ambition of it is to change people's moral beliefs and thus change their behavior; and then Posner uses the criticisms as a lever for challenging the type of legal theories that resembles or draws on moral theory, which are main of the grand constitutional theories, he believes that these theories are too abstract and at the same time too be confined by the cultures, so that they don't have any help to the resolution of the actual legal disputes. Specially, his thesis has two forms, that is the strong form——academic moralism does not provide a solid basis for moral judgment, for knowing the moral thing to do does not furnish a motivation for doing it , the motivation and motive have to come from outside the morality; and the weak form——even if moral theory do provide a solid basis for some moral judgments, it should not be used as a basis for legal judgment, he stresses moral theory has no use in legal judgment, this does not mean judicial opinions never quote moral philosophers'views, but means even they do, these views are not as an authority to support one or the other party of a moral dispute, they are cited as representatives of non-controversial moral position, this because of the moral pluralism of the contemporary society, as either opposed moral positions has its supporters and moral claims which have different moral premises have no commensurability between them. Posner proposes his moral stance——pragmatic moral skepticism, that is,"I embrace a version of moral relativism, reject moral particularism in the too expansive form, and accept diluted versions of moral subjectivism, moral skepticism, and emotivism my approach is similar to the general stance of Oliver Wendell Holmes, Jr.,…it is opposed with metaphysical or the'right-answer'moral realism, and so opposed with natural law theories——whether metaphysical or non-metaphysical, but it overlaps with the soft moral realism."Since moral theory has no use in those two aspects, then Posner presents his substitutional ways——getting help from the scientific method and pragmatic adjudication. Regarding to the value and the significance differences, in Posner's view, moral philosophy is not able to solve them, as the fact that between different values there has no commensurability, truly, science can not resolve the value conflicts, but it can resolve the rationality problem between"purposes - means"from the tool rational perspective, so science can resolve some moral disputes, Posner claims that when the moral claims are established on examinable experience hypothesis, that is, the arguments for these moral claims are the functional ones, then it will create an empirical basis for moral criticism, while moral arguments can not resolve this kind of problems. As to hard cases which include moral disputes, when we seek help from the pragmatic adjudication, which concerns about consequences and empirical analysis, then we may get better answers.Although we have known Posner's primary intention and his concern for social reality are good, but this does not mean that his theory is perfect and we can not criticize it. In the writer's view, Posner's theory has at least these following defects and they provide probabilities for reconsidering and criticizing it: Firstly, in order to negate academic moralism has some influence on the practice, Posner very narrowly defines the scope of academic moralism , this makes people question why he launches so fierce attack on such a narrow area. Secondly, as to Posner's argument approach, when he negates academic moralists'influence, he does not provide a sustained critique of the arguments of the academic moralists and a scrutiny of major cases in which philosophical views are generally thought to have changed public or private morality, showing that the received view of philosophical influence is inaccurate, while Posner places the burden of proof on the part who objects his views, and this can not be very persuasivable. Thirdly, when Posner presents his moral relativism, which suggests an adaptationist conception of morality, and introduces"social objectives"to evaluate morality, he is no longer neutral, Posner treats the moral codes which violate the common human practice too leniently, it seems that he has one kind of too broadly"sympathetic understanding"of them, and whether this is a vulgar relativism, that is we have a moral duty to tolerate cultures that have moral views different from ours, while Posner definitely rejects this vulgar relativism? Fourthly, there are some questions in Posner's pragmatic adjudication theory, such as his definition for pragmatism is not clear, and it can not make people understand what his"pragmatism"means, he aims to substitute moral philosophy with pragmatism, and in order to make his pragmatic adjudication works, he must explain what"the best answer"or"a better result"is under the judicial decision-making context, who would decide which"best"or"better"viewpoint that judge must adopt, and if the judges decide it, what does the difference between the moral theory and the pragmatic adjudication in the function? It seems that pragmatism only works if there is an aim smuggled into the works, and whether this is using one kind of moral theory replacing another one? In Posner's analysis of criminal defendants'procedural rights, when he pays attention to quantifiable factors, such as efficiency and cost, whether he has ignored there are some values in certain aspects of human life which are not easy to be quantified, they are good in their own right? And on the one hand, Posner emphasizes efficiency and social science, on the other hand he neglects more subjective areas in the human experience such as rights and similar ethical concerns, whether this is a moral choice?...