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The Problematics of Moral and Legal Theory

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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 ...

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Overview

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.

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.

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Editorial Reviews

Ira L. Strauber
[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 squirmish with the author over the issues of legal pragmatism.
J. White
Posner believes that most moral understanding is acquired in childhood and largely controlled by parental example, peer pressure, and religion. Once acquired, moral beliefs and commitments can only be changed through 'appeals to self-interest and emotional appeals that bypass our rational calculating faculty'...As usual with Posner, the writing is clear, the footnotes abundant and highly informative, and the index excellent. Highest recommendation for all collections.
Sanford Levinson
More than ever, Richard Posner lays claim to the mantle of Oliver Wendell Holmes, not only in catholicity of interests, but also, in this instance, because Posner's thoroughgoing, no-holds-barred, attack on moral philosophy is reminiscent of Holmes's own acerbic views regarding the potential contribution of moral theorizing to ascertaining the meaning of law. These chapters, as well as his attack on the contemporary vogue of 'constitutional theory,' will surely occasion the greatest controversy, but Posner also has important—and debatable—things to say about the legal profession and its future.
Ira L. Strauber
It is my judgment that a "proper extended" review will be difficult to write insofar as one would distinguish between a cliché versus an aphoristic comment, or between a dubious empirical claim versus a rhetorical stipulation....And if one is interested in the practical side of things, especially in regard to the recent explosion of articles about pragmatism and law, Judge Posner's "clichés" and his "dubious empirical claims" might tell us as much, maybe more, about jurisprudence and the law than a bundle of some of our academic profundities and polished empirical research.
Law and Politics Book Review
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Product Details

  • ISBN-13: 9780674707719
  • Publisher: Harvard University Press
  • Publication date: 3/28/1999
  • Pages: 336
  • Product dimensions: 6.41 (w) x 9.47 (h) x 1.06 (d)

Meet 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.

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Table of Contents

Preface
I The Wrong Turn
1 Moral Theory 3
2 Legal Theory, Moral Themes 91
II The Way Out
3 Professionalism 185
4 Pragmatism 227
Index 311
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