The Elimination Of Moral Confusion In Laws

In 1997 on the Oliver Wendell Holmes Lecture,Richard Allen Posner made a speech titled as The Problematics of Moral and Legal Theories,launching the fiercest criticism on moral theories and moral theorists.In this speech,he carefully discussed the features of morality,the relationship between law and morality,as well as the development of professionalism,and analyzed in detail the various shortcomings of moral theories,as well as the various behaviors of moral theorists.These thoughts were the extension of his previous thoughts as well as the reflection and summary of his academic approach.In his works,as represented by The Economics of Justice,The Problems of Jurisprudence,as well as Sex and Reason,Posner deeply analyzed the issues of justice,rights,and sex,revealing the origins and characteristics of morality,while also establishing his view of morality,which laid the foundation for his reflection on moral theories.In Overcoming Law and The Problematics of Moral and Legal Theories,Posner bombarded the moral theories,criticizing the professional environment formed by moral theories and the serious defects of moral reasoning.At the same time,he also pointed out that when legal positivism fails to provide a satisfactory answer for a legal dispute,the law should be guided by science,rather than by non-philosophical teachings.As marked by The Problematics of Moral and Legal Theories,Posner has formed a profound and sophisticated reflection system regarding legal and morality,which contains his thoughts and methods,marks the crossroads,and points out the direction.This paper was aimed to reveal the specific content of Posner's legal and moral views.For this purpose,the paper followed Posner's idea,focused on the research of his criticism of moral theories,and put forward the views and attitudes he values one by one.The first part of this paper analyses the medium and macro-background of Posner's legal and moral theory.The medium background is the formation process of pragmatism jurisprudence of Posner.The thought of pragmatism is the pillar of Posner's pragmatism jurisprudence,which includes three premises and a “ladder”.The three premises include:(a)against the backdrop of the academic context,Posner wields pragmatism philosophy to reconstruct jurisprudence;(b)against the backdrop of the judicial context,Posner deems that daily pragmatism is the best description of judges' judgments;(c)the two contexts have rejected extremely philosophical pragmatism.But Posner's pragmatism is by no means totally divorced from the pragmatism philosophy which is the "ladder" of Posner's pragmatism thought.As for the macro background,it is the moral dilemma faced by American law and the moral theory prevailing in American law circles.The existence of moral dilemma is not only a legal problem but also a social problem;the moral theory is incompatible with Posner's academic approach and pursuit.The macro background brings the problems that Posner needs to solve,and the medium background provides the thoughts for Posner to solve the problems.The second part of this paper will analyze Posner's theory pertinent to morality.This paper comes to the conclusion of moral theory and summaries it into four propositions:(a)morality is relative;(b)moral argument fails to promote moral action;(c)objectivity of morality can not be studied;(d)moral unity is of danger.While discussing the four propositions,this paper concludes Posner's moral standpoints and his four points of morality understanding.Posner's moral stances of pragmatic moral skepticism neither shares the same idea of moral relativism nor moral realism,for it is milder and more skeptical than relativism.The four points of understanding include:First,in the case of the absence of knowledge,moral dilemma is "incurable".Secondly,even science can not directly solve moral problems,however,it can provide an external critical perspective to solve some moral problems,which is exactly the advantage over moral theory.Thirdly,moral intuition lays the most solid foundation for moral judgment.Fourth,morality is oppressive.Based on his theory on morality providing basic knowledge for him,he further reflects on the relationship between law and morality as well as the way to solve moral problems.The third sections of the paper can be divided into two parts:laws are separated from morality;moral theory is separated from juridical practice.As for the separation between laws and morality,there are three kinds of attitudes towards the relationship between laws and ethnics,that is,the separation of Hart and Fuller in Semantics,the separation of Posner's practice/pragmatism and the combination of Dworkin's Integral Law.On the one hand,Posner rejecting the separation of concepts,believed that the law should follow the path of practice.On the other hand,he refused to interpret the combination of law and morality and believed that law and morality are the social systems in which each person performs his or her duties.As for the latter,through the analysis of Posner's criticism of direct moral reasoning and indirect moral reasoning,it is concluded that what he really concerns is the separation of law and justice.Posner has transformed the relationship between law and morality by using a sociological perspective,and replaces its connotation with a more important question: what kind of jurisprudence do we need? It is a transcendence of Jurisprudence horizon.Then,the fourth part of this paper will explore Posner's practical methods.He intends to solve moral problems and put forward practical methods,that is,scientific theory,new professionalism and pragmatism.Posner is not against theory,but instead he just possesses no consistent theory,as he is fond of "beautiful and practical" scientific theory.New professionalism wields a set of real and socially valuable expertise to replace the mysterious the profession of cultivation.It must be practice-oriented and can accept the opinions of other disciplines.Thus,it will greatly promote the development of legal knowledge and lead the law to a sounder path.Pragmatism has no moral compass.It will take off the robe woven by moral discourse and walk naked.Pragmatism is forward-looking as it regards precedents as information and advocates breaking through the shackles of tradition.Besides,pragmatism is intuitive and experimental.It advocates unspeakable conscience and practice to make a judgement.Pragmatism is embedded in American legal practice.It is not lawless but is deeply bound by legal practice.The fifth part of the paper will make a brief evaluation on the criticism towards Posner's legal and moral theories by some scholars,and meanwhile will shed light on the possible reference for us.While evaluating individuals,we can try to provide a meaningful critical evaluation,but it is not only unnecessary but also dangerous for magnificent,exaggerated and worshipful praise.Pragmatism moral skepticism aims to expose moral theorists,but falls into a philosophical trap when debating with moral theorists.When pragmatism moral skepticism is regarded as a moral position,it often faces a predication and gives people a feeling that there is no moral position.Pragmatism trial holds a contradictory mentality towards the precedent and a misunderstanding about tradition.Pragmatism trial does not fail to explain "what is the best consequence".Instead,it takes many scientific tools as guidance and makes the best judgment on the basis of combined specific contexts.Pragmatism trial is by no means universal and sometimes we need to reject pragmatism in practical manner.This paper talks about enlightenment of three points: the real enemy of social science law is the moral theory of Chinese style;unlike the endogenous rule of law in Western countries,China's rule of law construction boasts distinct characteristics of reform,and reform entails the spirit of pragmatism.Due to the oppressive morality,we are supposed to make careful judgments that we have moral consensus in the analysis of moral events.