The Problematics of Moral and Legal Theory (Belknap)

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 Holmes a century ago. 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. Cover......Page 1 Title Page......Page 4 Contents......Page 6 Preface......Page 8 I / The Wrong Turn......Page 16 1 / Moral Theory......Page 18 Understanding Morality......Page 32 The Academic Moralist and the Moral Entrepreneur......Page 53 Professionalism’s Cold Grip......Page 83 Jurisprudence and Moral Theory......Page 106 Moral Theory Applied Directly to Law......Page 122 Some Famous “Moral” Cases......Page 144 Constitutional Theory......Page 159 II / The Way Out......Page 198 The Two Professionalisms......Page 200 The Supersession Thesis......Page 221 The Pragmatic Approach to Law......Page 242 Postmodernism Distinguished......Page 280 Some Institutional Implications of Legal Pragmatism......Page 295 Index......Page 326 Richard A. Posner. Includes Bibliographical References And Index.