The problematics of moral and legal theory

Harvard Law Review

Volumn 111, Issue 7, 1998, Pages 1638-1709

  Posner, Richard A ^a,b  

^a United States Court of Appeals for the Seventh Circuit ^*  (United States)

^b UNIVERSITY OF CHICAGO   (United States)

Author keywords

[No Author keywords available]

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EID: 0346934924     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1342477     Document Type: Article

References (182)

1. Commentators have remarked on Dworkin's conflation of moral and political terms. See, e.g., Thomas D. Eisele, Taking Our Actual Constitution Seriously, 95 MICH. L. REV. 1799, 1819 (1997). Dworkin famously believes that judges should engage in moral reasoning, at least in difficult cases. See sources cited infra note 118. His proposal would fall completely flat if he substituted "political" for "moral."
2. Annette Baier and Bernard Williams are examples of students of morality who, like Nietzsche and Heidegger, are not primarily moralists - are indeed, like them, skeptical of normative moral theory. See Annette Baier, Doing Without Moral Theory?, in ANTI-THEORY IN ETHICS AND MORAL CONSERVATISM 29, 29-48 (Stanley G. Clarke & Evan Simpson eds., 1989);
3. Bernard Williams, The Scientific and the Ethical, in ANTI-THEORY IN ETHICS AND MORAL CONSERVATISM, supra, at 65, 65-86.
4. See DONALD E. BROWN, HUMAN UNIVERSALS 138-39 (1991).
5. For an interesting recent discussion of this point, see WILLIAM IAN MILLER, THE ANATOMY OF DISGUST 179-205 (1997).
6. BERNARD WILLIAMS, MORALITY: AN INTRODUCTION TO ETHICS 20-26 (1972). What my type of moral relativism does do, however, is spike one of the arguments against tolerance.
7. In a recent paper, In Praise of Theory, 29 ARIZ. ST. L.J. 353, 362-63 (1997) [hereinafter Dworkin, In Praise of Theory], Ronald Dworkin runs them together, while in another and philosophically more ambitious paper he runs moral relativism, moral subjectivism, and moral skepticism together, treating them as different names for what he calls "external [moral] skepticism."
8. Ronald Dworkin, Objectivity and Truth: You'd Better Believe It, 25 PHIL. & PUB. AFF. 87, 88-89 (1996) [hereinafter Dworkin, Objectivity and Truth], ("[I]nternal [moral] skepticism" is skepticism about some but not all moral claims. Id. at 90.) I am not a moral relativist in his sense of the term.
9. Thomas Nagel, Universality and the Reflective Self, in THE SOURCES OF NORMATIVITY 200, 205 (Onora O'Neill ed., 1996).
10. For amplification of this view, see THOMAS NAGEL, THE LAST WORD 101-26 (1997).
11. This is an illustration of my rejection of vulgar relativism. See supra p. 1642. That suttee (the immolation - at least nominally voluntary - of a widow on her husband's bier) was an accepted practice of Hindu society did not make it morally right, and so make its suppression by the British morally wrong.
12. For elaboration of this point, see RICHARD A. POSNER, LAW AND LEGAL THEORY IN ENGLAND AND AMERICA 4-6 (1996).
13. CHARLES LARMORE, THE MORALS OF MODERNITY 8 (1996). Larmore defends his position in chapter 5. See id. at 89-120.
14. Id. at 162.
15. Id.
16. James Q. Wilson surprisingly acknowledges this point. See JAMES Q. WILSON, THE MORAL SENSE 20-23 (1993).
17. For evidence supporting Wilson's point, see INFANTICIDE: COMPARATIVE AND EVOLUTIONARY PERSPECTIVES 427-520 (Glenn Hausfater & Sarah Blaffer Hrdy eds., 1984);
18. Sarah Blaffer Hrdy, Fitness Tradeoffs in the History and Evolution of Delegated Mothering with Special Reference to Wet-Nursing, Abandonment, and Infanticide, 13 ETHOLOGY & SOCIOBIOLOGY 409, 431-37 (1992).
19. Dworkin, Objectivity and Truth, supra note 6, at 121.
20. Dworkin appears to confuse slavery in ancient Greece with slavery in the antebellum United States. See id. at 121 (referring to "the biological humanity of races they enslaved").
21. See Brian Leiter, Nietzsche and the Morality Critics, 107 ETHICS 250, 263-71 (1997).
22. William Blake, The Marriage of Heaven and Hell, in ENGLISH ROMANTIC WRITERS 68, 75 (David Perkins ed., Harcourt Brace Jovanovich 1967) (1790-1793).
23. For other examples, see RENFORD BAMBROUGH, MORAL SCEPTICISM AND MORAL KNOWLEDGE 19-21 (1979). Bambrough's book is a powerful critique of moral skepticism, but it fails to show how any moral issue can actually be resolved unless the contestants' disagreement is at root one of fact.
24. I emphasize this kind of instrumental criticism of moral codes, specifically codes of sexual morality, in RICHARD A. POSNER, SEX AND REASON 220-40 (1992). It seems to me the only defensible way of criticizing a moral code.
25. See id. at 256-57.
26. See DAVID O. BRINK, MORAL REALISM AND THE FOUNDATIONS OF ETHICS 29 (1989).
27. See POSNER, supra note 9, at 20.
28. See Richard A. Posner, Law's Reason, NEW REPUBLIC, May 6, 1996, at 26, 30
29. (reviewing JÜRGEN HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND DEMOCRACY (William Rehg trans., 1996)). I do not doubt the value of such descriptions; my point is only that by claiming universality for them, the authors create an exaggerated impression of the extent of disagreement among themselves.
30. See, e.g., Dworkin, Objectivity and Truth, supra note 6, at 120 ("Anyone who is convinced that slavery is wrong, and knows that his view is now shared by almost everyone else, will think that general moral sensibility has improved, at least in that respect, since slavery was widely practiced and defended.").
31. SAMUEL SCHEFFLER, HUMAN MORALITY 10 (1992).
32. Dworkin, Objectivity and Truth, supra note 6, at 99; see also id. at 109.
33. Id. at 118.
34. Id. at 128.
35. An economist, for example, would explain the intuition behind Judith Jarvis Thomson's suggested solution to the "trolley" hypothetical in two words: ex ante. See JUDITH JARVIS THOMSOM, THE REALM OF RIGHTS 176-202 (1990).
36. For the evidence, see ROBERT B. CIALDINI, INFLUENCE 133-36 (1984);
37. Bibb Latané, Steve A. Nida & David W. Wilson, The Effects of Group Size on Helping Behavior, in ALTRUISM AND HELPING BEHAVIOR 287, 290-97 (J. Philippe Rushton & Richard M. Sorrentino eds., 1981).
38. Suppose the benefit of a rescue to a rescuer is 100 and the cost 80. Then if there is only one potential rescuer, he will rescue, since 100 is greater than 80. But suppose there are 10 potential rescuers, and each one thinks that there is a 30% chance that, if he doesn't perform the rescue, one of the other nine will. Then each will reckon the net expected value of his rescuing at 70 (.7 x 100), and since the cost (80) now exceeds the expected benefit, he will not rescue.
39. See generally NANCY EISENBERG, ALTRUISTIC EMOTION, COGNITION, AND BEHAVIOR 30-56 (1986) (explaining the differences among "sympathy," "empathy," and "personal distress" motivations for altruistic behavior).
40. Other motivations are possible as well; those motivations are self-interested. See Eric A. Posner, Altruism, Status, and Trust in the Law of Gifts and Gratuitous Promises, 1997 WIS. L. REV. 567, 569-85.
41. Thus, in my book Sex and Reason, cited above in note 19, I tried to spell out the implications for the regulation of sex of adopting Mill's political and moral philosophy. I disclaimed the possibility of convincing anyone to adopt his philosophy. See id. at 230-31.
42. I have made this argument with reference to poets and novelists in Richard A. Posner, Against Ethical Criticism, 21 PHIL. & LITERATURE 1 (1997),
43. which appears in amplified form in RICHARD A. POSNER, LAW AND LITERATURE 305-44 (revised and enlarged ed. 1998). Here is how Rorty puts it: It would be better [for Western moral philosophers] to say: Here is what we in the West look like as a result of ceasing to hold slaves, beginning to educate women, separating church and state, and so on. Here is what happened after we started treating certain distinctions between people as arbitrary rather than fraught with moral significance. If you would try treating them that way, you might like the results.
44. Richard Rorty, Justice as a Larger Loyalty, in JUSTICE AND DEMOCRACY: CROSS-CULTURAL PERSPECTIVES 9, 19-20 (Ron Bontekoe & Marietta Stepaniants eds., 1997).
45. See ROBERT TRIVERS, SOCIAL EVOLUTION 41-65, 109-44, 361-94 (1985);
46. Matt Ridley & Richard Dawkins, The Natural Selection of Altruism, in ALTRUISM AND HELPING BEHAVIOR, supra note 30, at 19, 24-31. So, other things being equal, having three nephews (each of whom will have 25% of your genes) will contribute more to your inclusive fitness than having one child (who will have 50% of your genes).
47. See Susan M. Essock-Vitale & Michael T. McGuire, Predictions Derived from the Theories of Kin Selection and Reciprocation Assessed by Anthropological Data, 1 ETHOLOGY & SOCIOBIOLOGY 333, 237-42 (1980);
48. cf. MARTIN DALY & MARGO WILSON, SEX, EVOLUTION, AND BEHAVIOR 37-58 (2d ed. 1983) (describing the strategies that various organisms evolved to maximize inclusive fitness).
49. Cf. Charles J. Morgan, Eskimo Hunting Groups, Social Kinship, and the Possibility of Kin Selection in Humans, 1 ETHOLOGY & SOCIOBIOLOGY 83 (1979) (demonstrating the importance of social kinship in Eskimo whale-hunting parties);
50. Charles J. Morgan, Natural Selection for Altruism in Structured Populations, 6 ETHOLOGY & SOCIOBIOLOGY 211, 215-17 (1985) (explaining how altruistic individuals and clans are more likely to survive because of the benefits to the larger group).
51. See ODED STARK, ALTRUISM AND BEYOND: AN ECONOMIC ANALYSIS OF TRANSFERS AND EXCHANGES WITHIN FAMILIES AND GROUPS 132 (1995);
52. Cristina Bicchieri, Learning to Cooperate, in THE DYNAMICS OF NORMS 17, 39 (Cristina Bicchieri, Richard Jeffrey & Brian Skyrms eds., 1997). Generalization (less grandly, pattern recognition) seems to be an innate and very valuable, but of course fallible, capacity of the human animal.
53. See JEAN PIAGET, THE MORAL JUDGMENT OF THE CHILD 19-69, 116-59 (Marjorie Gabain trans., Free Press 1948).
54. See FRANS DE WAAL, BONOBO: THE FORGOTTEN APE (1997). De Waal explains: Bonobo society offers females a more relaxed existence [than does chimpanzee society]. . . . The rich forest habitat of the bonobo evidently permits such an organization. Our ancestors . . . adapted to a much harsher environment [the savanna]. It is dubious that a bonobolike primate could have made it in a savanna habitat while keeping its social system intact. Id. at 135. Of course, it is legitimate for feminists to invoke bonobos against anyone who claims that the behavior of monkeys shows that human males are inherently patriarchal.
55. See Richard A. Posner, Social Norms and the Law: An Economic Approach, 87 AM. ECON. REV., May 1997, at 365, 365.
56. See JOHN DEIGH, THE SOURCES OF MORAL AGENCY: ESSAYS IN MORAL PSYCHOLOGY AND FREUDIAN THEORY 133-59 (1996).
57. See BERNARD WILLIAMS, Moral Luck, in MORAL LUCK 20, 21 (1981);
58. BERNARD WILLIAMS, Moral Luck: A Postscript, in MAKING SENSE OF HUMANITY 241, 245 (1995). This point is overlooked in Griffin's discussion of the "fat tourist" moral dilemma.
59. See JAMES GRIFFIN, VALUE JUDGEMENT 102-03, 110 (1996). The fat tourist is blocking, albeit innocently, the way to safety of the thin tourists; killing him to remove the block is not the same atrocity (Griffin believes) as killing an innocent person who does not have any causal relation to the peril of others in order to save the others. Why sheer causality, shorn of any triggering effect on altruism, should affect our moral sentiments is a big puzzle for moralists.
60. See generally THE EMERGENCE OF MORALITY IN YOUNG CHILDREN (Jerome Kagan & Sharon Lamb eds., 1987) (describing the origins and development of morals in children).
61. See J. Hirshleifer, Natural Economy Versus Political Economy, 1 J. SOC. & BIOLOGICAL STRUCTURES 319, 332, 334 (1978);
62. Robert L. Trivers, The Evolution of Reciprocal Altruism, 46 Q. REV. BIOLOGY 35, 49 (1971).
63. See, e.g., RONALD DE SOUSA, THE RATIONALITY OF EMOTION 171-203 (1987);
64. MARTHA C. NUSSBAUM, UPHEAVALS OF THOUGHT: A THEORY OF THE EMOTIONS (forthcoming).
65. SCHEFFLER, supra note 25, at 68.
66. See, e.g., Christine M. Korsgaard, Kant's Formula of Universal Law, 66 PAC. PHIL. Q. 24, 26 (1985). Kant's footprints are all over modern moral theory.
67. See WILSON, supra note 13, at 11. Of course, most people are not criminals, but I am unaware of evidence that would permit an estimate of how many of the law-abiding refrain from crime for reasons of morality, as distinct from fear of punishment, lack of motive, altruism (natural rather than dutiful), or other considerations of self-interest narrowly or broadly defined.
68. Christine M. Korsgaard, Morality as Freedom, in KANT'S PRACTICAL PHILOSOPHY RECONSIDERED 23, 47 (Yirmiyahu Yovel ed., 1989).
69. The egotism of altruism is illustrated by the first sentence of Bertrand Russell's autobiography: "Three passions, simple but overwhelmingly strong, have governed my life: the longing for love, the search for knowledge, and unbearable pity for the suffering of mankind." BERTRAND RUSSELL, THE AUTOBIOGRAPHY OF BERTRAND RUSSELL 3 (1951) (emphasis added).
70. For some tart words on the altruistic personality, see JAMES FITZJAMES STEPHEN, Philanthropy, in LIBERTY, EQUALITY, FRATERNITY AND THREE BRIEF ESSAYS 292, 292-96 (Chicago Univ. Press 1990) (1859).
71. On the problem of judicial motivation, or what I call the "judicial utility function," see RICHARD A. POSNER, OVERCOMING LAW 109-44 (1995).
72. See ROBERT COLES, THE MORAL INTELLIGENCE OF CHILDREN 179-82 (1997) (referring specifically to the ineffectuality of classroom instruction in moral philosophy in improving moral behavior).
73. Martha Nussbaum has acknowledged the tension between moral philosophers and moral entrepreneurs (whom she calls "prophets"). See Martha C. Nussbaum, Rage and Reason, NEW REPUBLIC, Aug. 11 & 18, 1997, at 36, 36. She notes that "Mill's The Subjection of Women didn't have much influence with its calm, rational arguments." Id. at 37. Yet Mill was a good deal less academic than modern academic philosophers are.
74. Cf. Lawrence Lessig, Erie-Effects of Volume 110: An Essay on Context in Interpretive Theory, 110 HARV. L. REV. 1785, 1805-06 (1997) (describing MacKinnon as an "entrepreneur[] of social change").
75. See, e.g., RODNEY STARK, THE RISE OF CHRISTIANITY: A SOCIOLOGIST RECONSIDERS HISTORY 179-89 (1996).
76. During World War II, and for years after, most Americans believed that the kamikaze pilots had been drunk, chained into their cockpits, or otherwise coerced or bamboozled into undertaking suicide attacks. We now know that the pilots were genuine volunteers and that most of them were motivated by what appear to have been the purest motives of altruism, honor, duty, and patriotism. See, e.g., EDWIN P. HOYT, THE KAMIKAZES 19, 52-53 (1983);
77. RIKIHEI INOGUCHI & TADASHI NAKAJIMA WITH ROGER PINEAU, THE DIVINE WIND: JAPAN'S KAMIKAZE FORCE IN WORLD WAR II 180-90 (Greenwood Press 1978) (1959);
78. RICHARD O'NEILL, SUICIDE SQUADS: W.W. II 10-15, 134-97 (1981).
79. See DAVID HACKETT FISCHER, ALBION'S SEED: FOUR BRITISH FOLKWAYS IN AMERICA 892 (1989);
80. RICHARD E. NISDETT & DOV COHEN, CULTURE OF HONOR: THE PSYCHOLOGY OF VIOLENCE IN THE SOUTH 88-91 (1996).
81. Even criminals, especially when they operate in gangs, might, as I suggested earlier, be better off if they behaved honestly toward their associates in crime.
82. See generally Richard A. Posner & Eric Rasmusen, Creating and Enforcing Norms, with Special Reference to Sanctions (Oct. 1997) (unpublished manuscript, on file at the Harvard Law School Library) (discussing the creation and enforcement of norms).
83. I include the "elite" to avoid taking a position on how one determines what a society, as opposed to an individual, wants.
84. I speak from experience. See Richard A. Posner, Utilitarianism, Economics, and Legal Theory, 8 J. LEGAL STUD. 103 (1979),
85. powerfully criticized in RONALD DWORKIN, Is Wealth a Value?, in A MATTER OF PRINCIPLE 237 (1985).
86. See generally BERNARD WILLIAMS, Nietzsche's Minimalist Moral Psychology, in MAKING SENSE OF HUMANITY, supra note 43, at 65, 68-69 (identifying excess moral content in psychology and urging a more "realistic" moral psychology).
87. GRIFFIN, supra note 43, at 104.
88. This is the title of Jeremy Waldron's paper in THEORY AND PRACTICE: NOMOS XXXVII 138 (Ian Shapiro & Judith Wagner DeCew eds., 1995) [hereinafter THEORY AND PRACTICE].
89. For criticism of Waldron's implied answer ("Nothing"), see Martha C. Nussbaum, "Lawyer for Humanity": Theory and Practice in Ancient Political Thought, in THEORY AND PRACTICE, supra, at 181.
90. ONORA O'NEILL, TOWARDS JUSTICE AND VIRTUE: A CONSTRUCTIVE ACCOUNT OF PRACTICAL REASONING 157 (1996).
91. Id. at 173.
92. It is not much consolation to be told that the existence of a moral dilemma presupposes moral values. See BAMBROUGH, supra note 18, at 95-96. Otherwise there would not be a dilemma, at least not a moral one. I am not denying the existence of moral values, but only the cogency of moral theory.
93. JAMES F. CHILDRESS, PRACTICAL REASONING IN BIOETHICS (1997).
94. See id. at 32.
95. DAN W. BROCK, LIFE AND DEATH: PHILOSOPHICAL ESSAYS IN BIOMEDICAL ETHICS 385 n.14 (1993).
96. Benjamin R. Barber, Justifying Justice: Problems of Psychology, Politics and Measurement in Rawls, in READING RAWLS: CRITICAL STUDIES ON RAWLS' A THEORY OF JUSTICE 292, 299 (Norman Daniels ed., Stanford Univ. Press 1989) (1975).
97. See R.M. HARE, ESSAYS ON BIOETHICS 220 (1993) (stating that demi-vegetarians are those whose diet contains some, but very little, meat).
98. See Richard A. Posner, Are We One Self or Multiple Selves? Implications for Law and Public Policy, 3 LEGAL THEORY 23, 23-24 (1997).
99. See Judith Jarvis Thomson, A Defense of Abortion, 1 PHIL. & PUB. AFF. 47, 48-49 (1971).
100. See CYNTHIA R. DANIELS, AT WOMEN'S EXPENSE: STATE POWER AND THE POLITICS OF FETAL RIGHTS 16-17, 19-23 (1993);
101. John C. Fletcher & Mark I. Evans, Maternal Bonding in Early Fetal Ultrasound Examinations, 308 NEW ENG. J. MED. 392 (1983).
102. The other side of this particular coin is Robin West's report that she became "fervently prochoice" as a result of seeing a photograph of a woman who had died during an illegal abortion. Robin L. West, The Constitution of Reasons, 92 MICH. L. REV. 1409, 1435 (1994). West noted, very much in the spirit of these Lectures, "that moral convictions are changed experientially or empathically, not through argument." Id. at 1436.
103. The problem of what (if anything) government should do about abortion crosses the wavering line that separates moral from political philosophy. When Rawls descends from the abstractions of political philosophy to concrete issues of law and public policy, he becomes a superficial dispenser of the "liberal" dogmas concerning abortion, campaign financing, income distribution, socialized medicine, and the rights of women in a divorce. See, e.g., JOHN RAWLS, POLITICAL LIBERALISM 243 n.32, 407 (1996);
104. John Rawls, The Idea of Public Reason Revisited, 64 U. CHI. L. REV. 765, 772-73, 793 (1997).
105. For criticisms of the "practical work" of Rawls, Putnam, Kamm, Habermas, and others, see RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 334-52 (1990); POSNER, cited above in note 52, at 171-97, 444-67; POSNER, cited above in note 19, at 220-40; and Posner, cited above in note 23, at 29-30. These earlier writings of mine (especially the first three) sketch the critique of moral philosophy that the present Lectures develop more fully.
106. WILLIAM SHAKESPEARE, HAMLET, act 5, sc. 1, ll. 66-67, at "3 (Susanne L. Wofford ed., St. Martin's Press 1994).
107. AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT 85 (1996). The qualification "through no fault of her own" is not a part of Thomson's own analysis. See Thomson, supra note 75, at 49.
108. I elide the profound difficulties involved in trying to infer lunacy from the holding of weird opinions.
109. Actually, it is unclear from her article how she would treat this case. See Thomson, supra note 75, at 66.
110. This contrast is stressed in GRIFFIN, cited above in note 43, at 14.
111. As Holmes put it: The world has produced the rattlesnake as well as me; but I kill it if I get a chance, as also mosquitos [sic], cockroaches, murderers, and flies. My only judgment is that they are incongruous with the world I want; the kind of world we all try to make according to our power. Letter from Oliver Wendell Holmes to Lewis Einstein (May 21, 1914), in THE ESSENTIAL HOLMES 114, 114 (Richard A. Posner ed., 1992).
112. See generally MORAL DILEMMAS AND MORAL THEORY passim (H.E. Mason ed., 1996) (discussing the philosophical debate over the intractability of moral dilemmas).
113. See Dworkin, Objectivity and Truth, supra note 6, at 133.
114. Cf. POSNER, THE PROBLEMS OF JURISPRUDENCE, supra note 77, at 449.
115. SAMUEL P. OLINER & PEARL M. OLINER, THE ALTRUISTIC PERSONALITY: RESCUERS OF JEWS IN NAZI EUROPE 261-356 (1988).
116. See 5 GEORGE LEAMAN, HEIDEGGER IM KONTEXT: GESAMTÜBERBLICK ZUM NS-ENGAGEMENT DER UNIVERSITÄTSPHILOSOPHEN [HEIDEGGER IN CONTEXT: OVERVIEW OF THE NAZI INVOLVEMENT OF UNIVERSITY PROFESSORS] 25-27, 109-33 (1993). Professors were notable by their absence from the cells of resistance to Hitler that developed during his rule. See ALICE GALLIN, MIDWIVES TO NAZISM: UNIVERSITY PROFESSORS IN WEIMAR GERMANY 1925-1933, at 4-5, 100-05 (1986).
117. See MICHAEL L. GROSS, ETHICS AND ACTIVISM: THE THEORY AND PRACTICE OF POLITICAL MORALITY 150 (1997).
118. Id.
119. See id. at 149-50.
120. Some, however, find employment in the public-interest sector, at considerably lower wages than in private firms - an indication of altruistic motivation. See Robert H. Frank, What Price the Moral High Ground?, 63 S. ECON. J. 1, 10-12 (1996).
121. See, e.g., James Rest & Darcia Narváez, The College Experience and Moral Development, in 2 HANDBOOK OF MORAL BEHAVIOR AND DEVELOPMENT 229, 243 (William M. Kurtines & Jacob L. Gewirtz eds., 1991).
122. See id. at 243-44; see also Stephen Thoma, Moral Judgments and Moral Action, in MORAL DEVELOPMENT IN THE PROFESSIONS: PSYCHOLOGY AND APPLIED ETHICS 199, 201 (James R. Rest & Darcia Narváez eds., 1994) (noting research that found only a weak relationship between moral judgment and moral action).
123. GROSS, supra note 89, at 85.
124. See DAVID NYBERG, THE VARNISHED TRUTH: TRUTH TELLING AND DECEIVING IN ORDINARY LIFE (1993).
125. As Martha Nussbaaum puts it, "in order to believe that a logical argument can produce a result in calling the soul to an acknowledgement of its own deficiencies," moral philosophers have to believe "that at least a good part of evil is based on error . . . [and] that people have many good beliefs and good intentions." Nussbaum, supra note 54, at 36.
126. Duncan Kennedy has a pertinent observation on this theme, anent the policy preferences of Ronald Dworkin: "Hercules" - Dworkin's model judge, who Dworkin claims decides cases on the basis of principle, not policy - "is not just a liberal; he is a systematic defender of liberal judicial activism from Brown [v. Board of Education] to the present. He is actually a left liberal, as close as you can get in terms of outcomes to a radical." DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION 128 (1997). Over the course of his career, Dworkin has endorsed as the legally "right answer" not just Brown without delay and racial quotas, but civil disobedience, nonprosecution of draft card burners, the explicit consideration of distributive consequences rather than reliance on efficiency, judicial review of apportionment decisions, extensive constitutional protection of criminals' rights, the constitutional protection of the right of homosexuals to engage in legislatively prohibited practices, the right to produce and consume pornography, and abortion rights. Id. at 127-28 (footnotes omitted).
127. John Finnis, Is Natural Law Theory Compatible with Limited Government?, in NATURAL LAW, LIBERALISM, AND MORALITY: CONTEMPORARY ESSAYS 1, 13 (Robert P. George ed., 1996).
128. Here is the sentence in full, together with the sentence that follows; all the italics are in the original: The union of the reproductive organs of husband and wife really unites them biologically (and their biological reality is part of, not merely an instrument of, their personal reality). Reproduction is one function and so, in respect of that function, the spouses are indeed one reality, and their sexual union therefore can actualize and allow them to experience their real common good - their marriage with the two goods, parenthood and friendship, which are the parts of its wholeness as an intelligible common good even if, independently of what the spouses will, their capacity for biological parenthood will not be fulfilled in consequence of that act of genital union. Id. at 15.
129. See 2 ST. THOMAS AQUINAS, SUMMA THEOLOGICA 1825-27 (Fathers of the English Dominican Province trans., Benziger Brothers 1947).
130. See Paul J. Weithman, Natural Law, Morality, and Sexual Complementarity, in SEX, PREFERENCE, AND FAMILY: ESSAYS ON LAW AND NATURE 227, 235-37 (David M. Estlund & Martha C. Nussbaum eds., 1997).
131. AS does Weithman. See id. at 244-45.
132. See NAGEL, THE LAST WORD, supra note 7, at 130.
133. Id. at 121; see also id. at 122 (declaring this belief "highly unreasonable and difficult to honestly accept").
134. Letter from Oliver Wendell Holmes to Lewis Einstein (July 23, 1906), in THE ESSENTIAL HOLMES, supra note 83, at 58.
135. MAX WEBER, Science as a Vocation, in FROM MAX WEBER 129, 155 (H.H. Gerth & C. Wright Mills eds. & trans., 1946) (1919).
136. For similar arguments from within philosophy, see Annette Baier, cited above in note 2, at 29. But I am quick to add that although I admire science, I do not delude myself that scientists are morally superior people any more than moral philosophers are. For some pertinent remarks on this score, see Gordon Tullock, Are Scientists Different?, 20 J. ECON. STUD. 90, passim (1993).
137. See PETER UNGER, LIVING HIGH AND LETTING DIE: OUR ILLUSION OF INNOCENCE 156 n.10 (1996). To spur his anticipated tiny readership to open their pockets, linger considerately lists the toll-free phone numbers of three charities. See id. at 175.
138. For a discussion of the relative effectiveness and efficiency of law and social norms, see Posner, cited above in note 41.
139. ONORA O'NEILL, CONSTRUCTIONS OF REASON 231 (1989).
140. ELIZABETH ANDERSON, VALUE IN ETHICS AND ECONOMICS 213 (1993).
141. See id. at 195-203.
142. CHRISTOPHER EATON GUNN, WORKERS' SELF-MANAGEMENT IN THE UNITED STATES 130 (1984).
143. For some pertinent observations, see Arthur Levine, How the Academic Profession is Changing, DAEDALUS, Fall 1997, at 1, 4-5.
144. Quoted without an indication of its source in Mark Lilla, The Enemy of Liberalism, N.Y. REV. BOOKS, May 15, 1997, at 38, 38.
145. POSNER, supra note 9, at 17.
146. See, e.g., RONALD DWORKIN, FREEDOM'S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION 2-12 (1996);
147. Dworkin, In Praise of Theory, supra note 6, at 360;
148. Ronald Dworkin, Reply, 29 ARIZ. ST. L.J. 432, 432-35 (1997) [hereinafter Dworkin, Reply].
149. For criticism, see Michael W. McConnell, The Importance of Humility in Judicial Review: A Comment on Ronald Dworkin's 'Moral Reading' of the Constitution, 65 FORDHAM L. REV. 1269 (1997).
150. See, e.g., Dworkin, Reply, supra note 118, 31435-36.
151. See Oliver W. Holmes, The Path of the Law, 10 HARV. L. REV. 457, 457-64 (1897).
152. For a striking illustration, consider the discrepancy between the original and modern meanings of the phrase "all men are created equal" in the Declaration of Independence. Originally it referred to the situation of man in the state of nature, not in society; hence it had no reference to the position of slaves. See PAULINE MAIER, AMERICAN SCRIPTURE: MAKING THE DECLARATION OF INDEPENDENCE 135-36 (1997). The right of "all men" (that is, of all citizens) to "the pursuit of happiness" apparently comprehended such interests as safety, security, the right to acquire property, and the ability to decide how to live one's life. See id. at 134, 165-67, 270-71 n.79.
153. Dworkin, In Praise of Theory, supra note 6, at 375.
154. Michael S. Moore, Moral Reality Revisited, 90 MICH. L. REV. 2424, 2470 (1992).
155. See, e.g., WALTER SINNOTT-ARMSTRONG, MORAL DILEMMAS (1988).
156. See, e.g., COLIN MCGINN, ETHICS, EVIL, AND FICTION (1997);
157. MARTHA C. NUSSBAUM, LOVE'S KNOWLEDGE: ESSAYS ON PHILOSOPHY AND LITERATURE (1990).
158. Dworkin acknowledges the possibility that an issue unresolvable in one normative domain might be resolvable in another, specifically the legal domain. He points out that although the question whether Picasso or Beethoven was the greater artist may be unanswerable, if Congress directed the erection of a statue to whoever was the greater it might be determinable from the text or history of the statute what concept of "greatness" was to be employed and how it might be made operational. See Dworkin, Objectivity and Truth, supra note 6, at 137-38.
159. See Vacco v. Quill, 117 S. Ct. 2293 (1997); Washington v. Glucksberg, 117 S. Ct. 2238 (1997).
160. Cf. Richard Craswell, Contract Law, Default Rules, and the Philosophy of Promising, 88 MICH. L. REV. 489, 489-91, 497-98 (1989) (making a similar point about the attempts of Charles Fried and Randy Barnett to use philosophical theories about promising to construct a theory of contract law). And it is interesting to note that Bobbin, in his typology of constitutional arguments, excludes moral arguments.
161. See PHILIP BOBBITT, CONSTITUTIONAL FATE 94-95 (1982).
162. The brief is reprinted in Ronald Dworkin, Thomas Nagel, Robert Nozick, John Rawls, Thomas Scanlon & Judith Jarvis Thomson, Assisted Suicide: The Philosophers' Brief, N.Y. REV. BOOKS, Mar. 27, 1997, at 41.
163. See Quill, 117 S. Ct. at 2297; Glucksberg, 117 S. Ct. at 2267-71. Dworkin tries to put a positive "spin" on this defeat, but he is highly critical of the Justices' opinions nonetheless, as well as, of course, the outcome of the two cases. See Ronald Dworkin, Assisted Suicide: What the Court Really Said, N.Y. REV. BOOKS, Sept. 25, 1997, at 40. What is most interesting about Dworkin's post mortem is his belated but still very welcome recognition that the empirical experience with euthanasia, notably in the Netherlands, where it is quasi-legal and quite common, is relevant to the constitutional question. See id. at 41-43;
164. see also Assisted Suicide and Euthanasia: An Exchange, N.Y. REV. BOOKS, Nov. 6, 1997, at 69 (letter of Ronald Dworkin). Yet Dworkin continues to insist that cases in which facts or consequences matter to constitutional decision-making are "rare." See Dworkin, Reply, supra note 118, at 433.
165. See Compassion in Dying v. Washington, 79 F.3d 790, 813-814, 829-831 (9th Cir. 1996) (en banc), rev'd sub nom. Washington v. Glucksberg, 117 S. Ct. 2258 (1997).
166. Dworkin, Reply, supra note 118, at 451.
167. Id.
168. 410 U.S. 113 (1973).
169. See id. at 163.
170. Justices Rehnquist and White dissented. See id. at 171 (Rehnquist, J., dissenting); id. at 221 (White, J., dissenting).
171. Dworkin, Reply, supra note 118, at 437.
172. 347 U.S. 483 (1954).
173. See, e.g., Gayle v. Browder, 352 U.S. 903 (1956) (mem.).
174. Ugly to us - to the Justices deciding the case and to like-thinking people. Not ugly sub specie aeternitatis.
175. The case for affirmative action in favor of other groups is far weaker, and I will ignore it.
176. This leads to the paradox that the acceptability of the decision may depend on the political diversity of the judiciary, which means that a proper resolution of the issue of affirmative action may depend on an anterior decision to use affirmative action to constitute the decision-making body!
177. 22 N.E. 188 (N.Y. 1889).
178. See, e.g., RONALD DWORKIN, LAW'S EMPIRE 15-21 (1986).
179. See Riggs, 22 N.E. at 189-91.
180. The dissenting judges were concerned that taking away the murderer's legacy added to the punishment for his crime without legislative warrant See id. at 193 (Gray, J., dissenting). This concern was questionable, to say the least. Compare two murderers, one who kills a poor person and derives no monetary benefit from the crime, and the other who kills his grandfather and obtains a legacy as a result. If they are given the same criminal sentence, the second murderer is actually punished more lightly, the legacy being a partial (it could even be a complete) offset to the sentence. He could be given a longer sentence and allowed to keep the legacy, but what would be the point? In endorsing the result in Riggs v. Palmer, I don't wish to be thought complacent about the dangers, which Holmes warned against in The Path of the Law, that are involved in judges' trying to use their moral beliefs, however unexceptionable, to decide technical legal issues. For a striking example, see the opinions in Mazzei v. Commissioner, 61 T.C. 497 (1974), dealing with the deductibility from federal income tax of a fraud loss incurred by the participant in a criminal conspiracy.
181. 163 U.S. 537 (1896); see id. at 552 (Harlan, J., dissenting).
182. Holmes elaborated: When I say that a thing is true, I mean that I cannot help believing it. . . . I therefore define the truth as the system of my limitations, and leave absolute truth for those who are better equipped. With absolute truth I leave absolute ideals of conduct equally on one side. Oliver Wendell Holmes, Ideals and Doubts, 10 ILL. L. REV. 1, 2 (1915).