Inbox: - The Problematics of Moral and Legal Theory, Richard Posner - - Problems with Richard Posner's The Problematics of Moral and Legal Theory, Fortson - http://leiterreports.typepad.com/blog/2004/12/a_few_words_on_.html - Nussbaum commented on it (calling it, if I recall correctly, "an occassion for saddness") and I think it was also reviewed by Simon Blackburn and Jules Colman. I may be miss-remembering about the latter two, though. Rorty also wrote a largely critical review of it, despite the fact that Rorty's and Posner's positions are pretty close as far as meta-ethics goes. - Marginal Revolution on Posner - Catastrophe: Risk and Response - Review by: Edward A. Parson (2007). The Big One: A Review of Richard Posner's "Catastrophe: Risk and Response". Journal of Economic Literature, 45(1), 147–164. doi:10.2307/27646750 (on iPad) ## Highlights ### Ronald Dworkin reviews Posner https://www.nybooks.com/articles/2000/03/09/philosophy-monica-lewinsky/ Posner declares, as a matter of a priori psychological dogma, that moral arguments, no matter how sound or powerful, never convince anyone not already convinced anyway, so that unless moral philosophers are “dilettantes” who don’t care whether their work has any practical consequences, they are wasting their time. This is wrong twice: no doubt many people are never moved by the logic of a moral argument, even once in their lives, but it is absurd to suppose that no one ever is. Moral philosophers who try to state and support what they believe to be the truth about matters of enormous importance are hardly dilettantes even if they know they are unlikely to ignite mass movements. [...] Posner insists, however, that judges can avoid all philosophical issues, including those I just mentioned, because they have available to them an entirely diñerent method of resolving legal issues, which he calls “pragmatism.” Judges should not worry about whether acts are diñerent from omissions in some morally pertinent way, or whether a fetus has interests of its own, or what the best conception of democracy is: instead they should identify the likely consequences of allowing assisted suicide, or of making abortion a crime, or of striking down some statute as unconstitutional, and then ask whether these are better than the likely consequences of the opposite decision. [...] This obvious and apparently fatal objection has been pressed on Posner repeatedly over the years, and in Problematics he finally responds to it, but in a way that seems to acknowledge its force. He concedes that “pragmatism will not tell us what is best,” but adds that it can nevertheless help judges in their search for the best results “unhampered by philosophical doubts” provided there is a “fair degree of value consensus among the judges, as I think there is.” But if pragmatism is somehow to replace all reflection on philosophical issues, then the degree of consensus must be not just “fair” but very substantial indeed, and it is wildly implausible that it is substantial enough. Judges disagree about fundamental issues of morality and value as much as other people do, and even if they did agree they would still be responsible for explaining to the larger public, which would remain divided about issues like abortion, why they have settled on the view that they have. So Posner’s lame appeal to a supposed judicial consensus about important values seems to confirm that pragmatism is, after all, useless when values clash. [...] But Posner argues that in diõcult cases the test of whether a president is impeachable is whether the con-sequences of impeaching him would be desirable. That pragmatic standard would seem to license a congress-man undecided whether the constitutional standard for impeachment or conviction was met to vote for it if he thought that removing Clinton would be good for the economy or would produce a better foreign policy. [...] Posner’s most frequent and fervent criticism of the academic scholars who opposed impeachment is that, although they often argue for the importance of moral and political principle in public affairs, they did not proclaim Clinton a moral reprobate. In fact, most of them did criticize Clinton’s personal morality, or took care to say that they were not endorsing it. The most irritating section of the book is a long piece of psychobabble explaining why so many academics supported Clinton: Posner thinks they instinctively protected him as the enemy of their own enemies. He prefers cynical to simple explanations, but in this case a simple explanation is more persuasive. They were committed, not to Clinton, but to the Constitution. They wanted to protect it from sermonizing hypocrites. ### The Problematics of Moral and Legal Theory Moral entrepreneurs persuade, but not with rational arguments. Academic moralists use rational arguments; but in part because of the sheer feebleness of such arguments, they do not persuade. [...] Another confusing equation is of “moral” with “ethical.” It is better to reserve the latter term for the set of attempts to answer the question “How shall I live?” and the former term for the subset that consists of answers that stress duty to others. [...] Relativism in turn invites an adaptationist conception of morality, in which morality is judged—nonmorally, in the way that a hammer might be judged well or poorly adapted to its goal of hammering nails into wood or plaster—by its contribution to the survival, or other ultimate goals, of a society or some group within it. Moral relativism implies that the expression “moral progress” must be used with great caution, because it is perspectival rather than objective; moral progress is in the eye of the beholder. ### Thomas Nadelhofer on The Problematics of Moral and Legal Theory https://leiterreports.typepad.com/blog/2006/06/posners_pragmat.html 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). [...] …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. [...] 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) [...] …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." (… [...] …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) [...] 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. [...] 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. [...] 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. [...] And what does it say about the effectiveness of rational and emotionally sterilized argumentation—the bread and butter of contemporary academic moralists? [...] 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? ### From the comments Posner's book did receive a fair amount of attention by philosophes when it came out. Dworkin reviewed it (harshly, of course) in the NYRB, Nussbaum commented on it (calling it, if I recall correctly, "an occassion for saddness") and I think it was also reviewed by Simon Blackburn and Jules Colman. I may be miss-remembering about the latter two, though. Rorty also wrote a largely critical review of it, despite the fact that Rorty's and Posner's positions are pretty close as far as meta-ethics goes. --- And as for the 'should' in the claim that moral theory shouldn't effect moral behaviour, he wants an argument to that conclusion. Williams is actually much better, I'd guess from what's been quoted here, on this kind of thing: he thinks that the problem is one of who the audience is, not of moral theorising per se, and has gestures in the direction of an argument why the audience should change. --- There is research on cognitive psychology on this issue. I don't think anyone takes posner's view -- that moral reasoning is completely irrelvant to moral beliefs. That's simply not factually justified. The debate in psychology is whether moral reasoning matters outside of social contexts. Haidt at Virginia claims to have empirically demonstrated that moral reasoning is an ex post rationalization, and a method of influencing others' moral intuitions, but not a causal variable in the formation of one's own intuitions. See here: http://faculty.virginia.edu/haidtlab/articles/haidt.emotionaldog.pdf Pizaro and Bloom at Yale have responded that moral intuitions might very well be causal, but that such intuiotns are shaped by prior reasoning. http://www.peezer.net/pubs/comment_rationaldog.pdf Speaking as a vegan, Singer convinced me to change my diet -- but it was practical ethics (which is pure philosophy) and not animal liberation that was decisive. I did not read the latter, in fact, until much later. Speaking as a sometime-activist, I think it's simply wrong to say that philosophical reasoning plays no role in morality. When you confront someone's beliefts, you run into a whole series of (usually ill-formed) counter-arguments. If you cannot respond to these counter-arguments, then the basis for your advocacy is undermined. A strong philosophical foundation might not be sufficient for moral persuasion, but it is certainly necessary. --- Right. For what it's worth, here's my five pence. I worry that either Posner misunderstands the academic moralists or his criticism of them is confused. As far as I see, the goals of the philosophers he lists are rather more moderate. As Posner himself mentiones many of them, Rawls and Scanlon most notably, have been after 'the relfective equilibrium' in their first-order normative theories. The aim has thus been to describe *our moral intuitions* in a more systematic way by using a fundamental underlying principle which normative output hopefully is co-extensive with our intuitions. If not, then usually so much worse for the principles and moral theory. Of course the hope is that the principles provide us with means to extend our moral intuitions to provide guidance in new situations of which our intuitions may be silent as yet. Now, if this much is true, then I just cannot see how the resulting theories would be too feeble to override our moral intuitions. After all, (i) this is not their purpose or aim and (ii) the moral theories carry the very same motivational import as the moral intuitions they systematise. So, I guess I think that Posner, like Williams often, doesn't quite hit the intended target. Maybe there are some theory builders who do not ground their views on our moral convictions but rather some fundamental moral value like well-being defended independently as such a bedrock. Maybe these people would say that in conflict cases so much worse for our pre-theoretical moral convictions. But, the odd strict consequentialist and Kantian apart, I'm not sure I've ever met any academic ethicists who would think this and pursue changing public policies on the basis of their views. --- one thing that has always troubled me is how to draw principled dividing lines between a predjudice and a starting point for reflective equilibrium. Similarly, I have a great deal of difficulty with the methodology in ethics (the thought experiments and the "moral intuition pumping") that anecdotally I have noted ethicists agree with ### Review by: Edward A. Parson (2007). The Big One: A Review of Richard Posner's "Catastrophe: Risk and Response". Journal of Economic Literature, 45(1), 147–164. doi:10.2307/27646750 There is something to outrage every one in his recommendation, and that is likely to be a useful spur to thought, even if Posner may be indulging in some private fondness for being outrageous and unpredictable. But these are not the proposals of a conservative ideologue. Rather they suggest a naive faith in the ability of honest analytic efforts to give useful insight into even the end-of-the-world risks. He proposes—and models—a bold willingness to compare diverse social values, to attempt to quantify benefits and costs even when only the crudest estimates are defensible, and to consider the possibility that new circumstances may call for limits on values that have been considered sacrosanct. But this broad program fails: he does not make the case for the commonality of these risks or for the general applicability of a cost-benefit framework in addressing them. ### [[=Peter Singer]] reviews Catastrophe: R & R https://www.nytimes.com/2005/01/02/books/review/catastrophe-apocalypse-when.html Posner made his name defending an economically rational approach to the law, and his new book is dense with complex calculations of the expected costs of catastrophic events, and the amount worth spending in attempts to avert them. [...] Any economic discussion of the expected cost of catastrophe must put a dollar value on human life. Some will object to this in principle, but unless we can agree on a figure, it will be impossible to decide what expenditure is worth incurring, to build safer roads, say, or to keep minute quantities of toxic chemicals out of our drinking water. Economists working in this area usually investigate how much people are willing to pay to reduce the risk of death -- for example, by buying safety devices for their homes, or preferring to work in a safer occupation for a lower wage than they could get in a high-risk occupation. The reduction in risk is then multiplied by the sum the average person is willing to pay for it to arrive at the value people implicitly place on their lives. Currently, most government departments use a figure of around $5 million, give or take a million or two. [...] One problem with this approach is that most of us assess large risks differently from small ones. We may pay a steep price to reduce a risk of one in a thousand to one in ten thousand, but we are not much concerned about reducing a risk of one in a million to one in a billion. Yet a rational person who is interested in continuing to live should be willing to pay something for this reduction in risk. Clearly, these data show that while people appear to be moderately competent at assessing large risks, they are not very good at thinking about small risks. Posner, however, mostly takes the data on their face, and suggests that the value of a human life actually varies in accordance with the degree of risk we are considering -- **so that the loss of each human life in a highly improbable catastrophe should be valued only at $50,000 instead of the $5 million that it would be valued at if we were considering a more likely disaster. This is bizarre. The real worth of our lives has nothing to do with the probability of a particular cause of death.** [...] IN short, Posner really has a much stronger case for saying we should spend more to avert small risks of catastrophe than his own calculations indicate. And the case gets stronger still if we take into account some of the larger ethical issues he rapidly brushes aside, especially the question of how we should view the fact that the extinction of our species would prevent the existence of all future generations of human beings. [...] Posner's practical recommendations seem calculated to parcel out irritation to everyone. Physicists will not like the doubts he casts on particle accelerators. Liberals will be alarmed by his support for greater police powers to counteract bioterrorism, including censorship of scientific publications that could help terrorists devise new biological weapons. Conservatives will dislike his support for taxes on carbon dioxide emissions, and will be apoplectic at his proposal that we hand over some of the nation's sovereign powers to an international environmental protection agency to enforce an improved version of the Kyoto Protocol on global warming. As for ordinary readers, they will most likely be annoyed by the book's frequent repetitiveness, particularly in the concluding chapter, and may wonder what the two pages urging severe punishment for computer hackers are doing in a book about catastrophes. (Did Posner lose part of his manuscript to a computer virus?) Still, we would be well advised to set aside such minor discontents and take the message of this book seriously. We ignore it at (a small risk of) our (very great) peril.