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The Problematics of Moral and Legal Theory (Belknap) Hardcover – 5 May 1999

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Product details

  • Hardcover: 332 pages
  • Publisher: Harvard University Press (5 May 1999)
  • Language: English
  • ISBN-10: 0674707710
  • ISBN-13: 978-0674707719
  • Product Dimensions: 24.1 x 16.3 x 2.7 cm
  • Average Customer Review: 4.0 out of 5 stars  See all reviews (1 customer review)
  • Amazon Bestsellers Rank: 2,157,644 in Books (See Top 100 in Books)

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[This book] should fit the bill for those who might have been curious about what Posner has to say about jurisprudence and the law but were put off by the rather longer books. [It] also fits the bill for scholars, good upper level undergraduates, and graduates students who will benefit from reading an entirely readable book that will provoke them to skirmish with the author over the issues of legal pragmatism.--Ira L. Strauber "Law and Politics Book Review "

About the Author

Richard A. Posner is Circuit Judge, the United States Court of Appeals for the Seventh Circuit, and a senior lecturer at the University of Chicago Law School. --This text refers to the Paperback edition.

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2 of 3 people found the following review helpful By A Customer on 16 Jan 2001
Format: Hardcover
Posner shows how moral theory is not equipped to bridge legal and practical problems, i.e. moral theory's inability to determine right from wrong (in many circumstances). Thus, moral theorists (such as the evil Mr Dworkin) have distorted legal reasoning and consequently stunted the development of legal theory. Posner's arguments are both convincing and correct but have unsurprisingly attracted much criticism from moral theorists (since they are trying to justify why they spent most of their lives arriving at the wrong answer). In a sense this book is one big reply to the attacks on legal-economic reasoning and in fact Posner spends a significant amount of the book replying directly to Dworkin's arguments.
This book, together with Posner's "Economic Analysis of Law" (which must be read first), will go a long way to equipping you with arguments which highlight the absurdity of moral theory (especially the lack of operational content) and provide you with reasoning and logic which have long been illusory to moral philosophers.
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Most Helpful Customer Reviews on Amazon.com (beta)

Amazon.com: 8 reviews
49 of 53 people found the following review helpful
Critical yet constructive 4 Oct 1999
By A Customer - Published on Amazon.com
Format: Hardcover
This book is Chief Judge Richard Posner's chance to explode the myth that esoteric moral and political theory has anything meaningful to contribute to solving modern legal issues. All in all, he is up to the task. Specifically, he takes aim at the theories of liberal legal scholars such as Ronald Dworkin (a favorite target of Posner's)and concludes that such theories will ultimately be unconvincing since almost any of them can be rebutted. For Posner, the proper role of abstract philosophical thinking is mainly to poke holes in other people's arguments. However, Posner goes the extra step of actually offering his own constructive advice on how judges/scholars should approach legal issues. In his mind, the key lies in pragmatism- that is, using the tools of disciplines other than law (economics, sociology, etc.) to find solutions that will best serve the future while keeping a certain connection to the past. Though it is sometimes a little difficult to grasp what Posner means by pragmatism, he offers several examples from various fields of law that offer some insight. One of the enjoyable aspects is that although Posner seems to possess an almost encyclopedic knowledge of all fields of law, he writes about them in a way that can be grasped by most educated people. It should be said, however, that one of the books problems is that since it devotes so much time to criticizing other legal theories, Posner must mount a serious rearguard defense against anticipated arguments against his own views. This makes for a sometimes stilted tone to the book. In all, however, the book delivers the insight and bluntness that you come to expect from Posner and is surely a worthwhile purchase for anyone interested in either the legal profession or legal scholarship.
17 of 18 people found the following review helpful
Posner at his best 2 Dec 2000
By M. Golkar - Published on Amazon.com
Format: Hardcover
In almost 20 years as America's most influential non-Supreme Court judge since Learned Hand, Richard Posner has made great use of his astounding intellectual repertoire to bring insights from other disciplines (most notably, economics) to bear on the law. In this work, Posner takes aim at the "academic moralists" whose theoretical works have, in his opinion, not only contributed little of use to the legal profession, but also stunted its growth. The root of Posner's disdain for such moral theorizing is his belief that universal standards of right and wrong do not exist and thus that all morality is local. It is therefore pointless to talk of whether this or that moral theory is the "right" one- the very aim of the scholars whose work Posner so gleefully dismisses. Unfortunately, the disproportionate attention paid to academic moralism has weakened the legal profession by decreasing the amount of time devoted to more "pragmatic" (Posner's favorite word) issues that actually can be of use in resolving legal issues. In Posner's view, today and tomorrow's scholars must be trained to think pragmaticallly if law is to make any significant advances. While this book is stinging in its rebukes, it must be said that there is a lot in it that may not be appealing even to those who are generally sympathetic to Posner's concerns. Most obvious is his moral relativism (what he deems "pragmatic moral skepticism"), especially since Posner is most often identified as a conservative (though he is really on the libertarian side). In addition, the good judge is never really able to quell criticisms that his pragmatic view of judging is so squishy as to be able to justify almost any result. These drawbacks, however, should not detract from the more general thrust of the book, which is that ambitious philosophy adds nothing to the law.
12 of 13 people found the following review helpful
An intelligent and illuminating book, if too long 20 Nov 2002
By James Daniels - Published on Amazon.com
Format: Hardcover
In The Problematics of Moral and Legal Theory, Judge Richard Posner asks a critical question: can moral philosophy ever help the practice of law? Posner answers this question with a resounding no.
Take a simple example. Suppose that a robber is shot dead at the scene of the crime and, the shooter is charged with murder. Should he be convicted? A pacifist might say yes, since killing is always wrong. Others would say no, since he acted in self defense (killing is not always wrong). Others would say that it depends on whether he was threatened.
If you were the judge or the jury, who should you believe? Posner argues that you will believe the person who most closely approximates your preconceived beliefs. In other words, a pacifist prosecutor will have a hard time convincing anyone who believes in self-defense, since each and every moral philosophy can be countered by another moral philosophy.
Posner goes on to argue that moral philosophy can help us with things that we all agree on, like "democracy is good" and "freedom should be protected." The problem is that no case before a court ever deals with such broad disputes. Instead, each side lines up its moral arguments, and the judge basically ignores them all. Posner also shows that moral philosophy is of some use in changing what people agree is right, as with Martin Luther King, Jr.
In the down and dirty disputes before a judge, though, Posner says that we have to rely more on our gut reaction, economics, and sociology than moral theory. The judge must ask, "If I did X, would society be better off?" Posner calls this legal pragmatism, the hope that the law can be rationalized along empirical grounds. He is careful to distinguish this stance from philosophical pragmatism and moral relativism. The former worries only about ends, while Posner explicitly worries about means, and the latter would not allow anyone to ever say that "murder is wrong." Posner has no problem with moral precepts that everyone agrees with.
The downside of this book is that it is way too long. The first few chapters outline most of his argument, and the rest of the book deals with legal history and particular examples from supreme court cases. Law students might find these parts worthwhile. Those who are interested in philosophy and law should read this book, as should those who want a look at how judges think and work. Whether you agree with him or not, his exploration of the topic is cool and complete.
9 of 10 people found the following review helpful
Holmes Reincarnate! 10 May 2004
By Kevin Currie-Knight - Published on Amazon.com
Format: Paperback Verified Purchase
Supreme Court Justice and legal pragmatist Oliver Wendell Holmes wrote: "I always say the chief end of man is to form general propositions - adding that no general proposition is worth a damn." He also wrote: "Do not be bullied out of your common sense by the specialist; two to one, he is a pedant." Put these two quotes together and they describe Richard Posner's "Problematics of Moral and Legal Theory" perfectly!
Simply put, Federal Judge Richard Posner has a HUGE bone to pick with moral philosophy's belief that they can effect law (or much else for that matter) for the two reasons stated above: (a) morality, says Posner (rightly, i think) is relative - "no general proposition is worth a damn." (b) Moral philosophers are, by in large, pedants who take themselves much more seriously than anyone not a moral philosopher does.
Posner backs up and documents the futility of moral philosophy for law quite well. In fact, I came across this book while writing something to do with the abortion wars, which is used as an example of Posner's dilemma. The abortion contreversey has not been close to solved, despite moral philosophy's best efforts, because the matter is simply not one amenable to reason in the first place. One side sees a child; the other, a fetus. One side sees the mother's 'right; the other, the babie's 'right'. The fact is that for all of moral philosophy's talk that there is a 'right' answer in all of this (each side convinced that they posess it) the 'right' answer merely depends on which premises you accept (and will be unlikely talked out of as the conviction is emotional, not 'rational').
Posner goes on to outlay a theory of pragmatism that, as Holmes briefly touched on in "The Path of the Law" that first, acknowledges that "no general proposition is worth a damn," and that while theory has its place, so does practice and that the law needs to be much more cognizant of the latter than it has been.
If all this makes Posner seem like a post-modernist, that is because the difference (and there is a difference) is hard to decipher. Those post-modernists like Stanley Fish want to get rid of principle - "general propositons" - alltogether and see law as nothing but a game of political rhetoric. While Posner shares Fish's pessimism on general principles, he doesn't think they should be abandoned, but used pragmatically - not the caricature of using principles to justify ends wanted in advance, but to use them like we use rules of baseball; they are conventions and need to be seen as such (there is no 'natural law') but they exist and must exist to allow the game to be played. Posner explains much of this in the book (though it might take some read throughs to get it clear).
To close, I gave the book 4 stars becasue while Posner seemed to enjoy himself in trashing philosophy and law, one gets the feeling (as one so often does with Posner) that he has very little to put in its place. This may perfectly be his intent - that nothing can be put in its place. If so, he should point that out and explain why rather than just leaving us hanging. Oh well!
Simply put, this is the book (if "Sex and Reason" wasn't) that will ensure that should Posner get a Supreme Court nod, he will NEVER make it past the senate!
8 of 12 people found the following review helpful
Enjoyable but Unconvincing 31 Dec 2001
By Mark Twain - Published on Amazon.com
Format: Hardcover
Posner is always enjoyable to read and this book is no exception. Readers who are not current on discussions about moral philosophy and law will find Posner a lucid and accessible point of entry. However, my first reaction is Posner assumes
pragmatis is morally neutral and an adequate framework for the law.
First, values already underscores "pragmatism;" thus, any attempt to apply pragmatics to the law has already been contaminated by values that can probably only be properly analyzed and understood through moral philosophy. Hence, moral philosophy is an indispensible tool for critical analysis of the law.
Second, "pragmatism" is inadequate in forming an analytical framework for the law, particularly with the most difficult questions of the law. Questions about euthanasia, abortion, equal rights, etc. are densely moral and political which pragmatism will contribute little.
Overall an enjoyable book but a flawed idea. It will influence many readers but "The Problematics of Moral and Legal Philosphy" should be read with skepticism. Everyone reading this book should also read "Modern and the Holocaust" by Zymunt Bauman for a counter point to why moral philsophy, which probably raises more questions than it answers, should always be central to any discussion about the law.
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