Let me say that I think the world of Judge Posner. I agree with him much more than I disagree with him. I do think that Posner's pragmatism is over done, but I generally admire his anti-rationalism, which I take to be generally Hayekian in spirit. He complains constantly about the tendency of intellectuals to imagine that a society run by intellectuals would be better than what we now have, and he is right to complain.
But I want to riff off a few of Posner's thoughts on academic moral philosophy and related topics he's broached over at Leiter's.
Let's start with this:
But should the Constitution, or political philosophy, be understood to prescribe utilitarianism, whether in the Benthamite or J. S. Mill versions, or maybe “secular humanism,” as our civic religion? That might depend on the character of morality, on what kind of normative order morality is, exactly. Specifically, on whether it must be reasoned, functional, practical, articulably derived from or related to some unexceptionable social goal. Well, much or even most morality seems based, rather, on instinct, emotion, custom, history, politics, or ideology, rather than on widely shared social goals. Think of the absolute prohibition of infanticide in contrast to the far more tolerant view of even late-term abortions. Think of the prohibition of bullfighting, cock fights, and cruelty to animals generally. Think of the rejection in our society of the Islamic punishment code, public nudity, polygamy, indentured servitude, chain gangs, voluntary gladiatorial combat, forced redistribution of wealth, preventive war, torture, the mutilation of corpses, sex with corpses, sex with nonobjecting animals, child labor, duelling, suicide, euthanasia, arranged marriages, race and sex discrimination. Are there really compelling reasons for these unarguable tenets of the current American moral code? One can give reasons for them, but would they be anything more than rationalizations? They have causes, that history, sociology, or psychology might elucidate, but causes are not reasons.
Now I am going to do some of the theorizing that Posner pretends to deplore, but likes to do himself.
I can think of three basic models of social order. On the Leviathan model, order is achieved through the constant threat of coercion. On the consensus model, order is achieved through near universal agreement about social goals, and on the instruments to those goals. On what I'll call the Scots-Austrian or liberal model, order is achieved through the coordination of individuals acting in pursuit of their own goals on regular patterns of individual behavior.
Now, Scots-Austrian order, what you might call liberal order (as opposed to the other types: authoritarian and communitarian order), may require some structural threat of coercion, to provide the assurance of general compliance with certain norms/rules necessary for the individual's confidence in the rationality her voluntary compliance. But individuals are motivated to comply not because they are coerced, but because compliance is in their interests on the condition that most everyone else complies. In contrast, individuals living under a Leviathan comply because they are afraid of being punished by Leviathan.
Furthermore, Scots-Austrian order requires a kind of consensus, within limits. That is, Scots-Austrian order needs the absence of concerted attempts to disrupt the behaviorial regularities that subserve the order. Yes, this is vague. But here is the point. Scots-Austrian order doesn't require consensus, per se, just the absence of interference with the order. And there are an infinite number of possible combinations of reasons why one might be motivated to act in accordance with the regularities that constitute the order.
I call this view “contractarian functionalism.” Imagaine a certain macro-level pattern of social order as a computer program. And think of the beliefs, preferences, norms and so forth that animate individuals as lines of code in the program. Now, as we all know, you can get the same program, the same set of macro-level functions, from wildly different sets of code.
As Posner rightly says, “much or even most morality seems based, rather, on instinct, emotion, custom, history, politics, or ideology, rather than on widely shared social goals.” Absolutely. This is a nice list of the ingredients of social order. Yet only certain combinations of these ingredients can sustain a Scots-Austrian or liberal order. Yet ANY of these combinations will do. If we want a word processor, Word, WordPerfect, AbiWord, OpenOffice or whatever will do. If we want liberal order, any of the suitable combinations of instinct, emotion, custom, history, politics, and ideology will do. Each program and each social order will have different underpinnings, but each will perform the same basic functions.
That's why contractarian choice of the basic general structure radically underdetermines ground-level policy choice.
When a brilliant philosopher like Rawls gets down to the policy level and talks about abortion and campaign financing and the like, you recognize a perfectly conventional liberal and you begin to wonder whether his philosophy isn't just elaborate window dressing for standard left liberalism.
I don't think Rawls's philosophy is “elaborate window dressing.” Rawl's views on abortion and campaign finance may or may not be consistent with his conception of liberal order (what he called a “well-ordered society”). Whether or not it is is largely a question os social science, and I think it is a major Kantian flaw in Rawls that he consistently underplayed the importance of empirical social science, although his theory in principle recognizes its importance. Anyway, it is certainly plausible that Rawls's policy-level views are a feasible implementation of a Rawlsian well-ordered society. Yet there may be other feasible implementations of Rawls's conception of a well-ordered society, in which case Rawls's general theory is not simply a “rationalization” of his particular policy preferences.
. . . the sort of political discussion in which political philosophers, law professors, and other intellectuals engage is neither educative nor edifying; I also think it is largely inconsequential, and I am grateful for that fact.
One of the interesting things about contractarian functionalism is that it makes quite clear that even if contractarian functionalism, or some other theory, identifies the objectively best kind of society, this does not entail that the everyone should share the same moral beliefs, or even logically consistent moral beliefs. The truth about the good may be indifferent to whether people believe the truth about the good.
The Straussians may be right, and it could be the case that it is useful to provide people with stirring sermons about their god-given rights, even if the idea of a god-given right is nonsense. The interesting work for moral and political theorists is to determine whether hypotheses like these are the case.
What are the properties of the most desirable kind of social order? (Desirable to whom? To us, silly.) What kinds of beliefs, norms, instincts, and so forth support that kind of order. On the basis of such knowledge, we might quite usefully come to know what sort of thing it is worth exhorting people to believe, what sorts of norms it is worth defending, even if they seem arbitrary and irrational, and what sorts of cultural enthusiasms we should attempt to dampen. From the persepctive of the contractarian functionalist, we could cite genuine reasons for sustaining our prejudices and appreciating our rationalizations. We could become instances ofthat Hayekian enigma: the progressive conservative.