The Problematics of Moral and Legal Theory

Ambitious legal thinkers have become mesmerized by moral philosophy, believing that great figures in the philosophical tradition hold the keys to understanding and improving law and justice and even to resolving the most contentious issues of constitutional law. They are wrong, contends Richard Posner in this book. Posner characterizes the current preoccupation with moral and constitutional theory as the latest form of legal mystification-an evasion of the real need of American law, which is for a greater understanding of the social, economic, and political facts out of which great legal controversies arise. In pursuit of that understanding, Posner advocates a rebuilding of the law on the pragmatic basis of open-minded and systematic empirical inquiry and the rejection of cant and nostalgia-the true professionalism foreseen by Oliver Wendell Holmes a century ago. A bracing book that pulls no punches and leaves no pieties unpunctured or sacred cows unkicked, The Problematics of Moral and Legal Theory offers a sweeping tour of the current scene in legal studies-and a hopeful prospect for its future.

* Part 1: The Wrong Turn *1. Moral Theory * Introduction: From Moral Realism to Pragmatic Moral Skepticism * Understanding Morality * The Academic Moralist and the Moral Entrepreneur * Professionalism's Cold Grip *2. Legal Theory, Moral Themes * Jurisprudence and Moral Theory * Moral Theory Applied Directly to Law * Some Famous "Moral" Cases * Constitutional Theory * Part 2: The Way Out *3. Professionalism * The Two Professionalisms * The Supersession Thesis *4. Pragmatism * The Pragmatic Approach to Law * Postmodernism Distinguished * Some Institutional Implications of Legal Pragmatism * Index