Speaking on the topic of Utilitarianism with the Law and Philosophy Workshop, denizen of the Seventh Circuit and favorite of the Law School, Judge Richard Posner offered the mischievously understated opening: “I don’t really have much interest in the normative side of Utilitarianism.”
This might strike some as odd coming from a thinker popularly associated with the view that judges ought to pursue economic efficiency as a primary goal (a description most recently repeated in January 11th’s New Yorker). Posner elaborated that Utilitarianism has been extremely valuable for focusing our attention on practical consequences and for providing a tool to debunk the talismanic use of powerful words like “justice” and “rights.” But Utilitarianism, taken as a normative doctrine, is plagued by “insuperable boundary problems.” (With respect to economic efficiency, Posner noted that efficiency is one thing a judge might value, but there are other things that might factor into finding the “best” law.)
Posner’s current view is that in reality there is a great deal of disagreement over values. Where all share basic assumptions, argument is generally a technical matter of working out the meaning and implication of the facts. Where fundamental assumptions are not shared, Posner has become resigned to skepticism that progress is possible through theoretical argument. This more recent view that moral argument has little to recommend itself to the practice of law continues to irk moral philosophers and to stir the philosophical pot.
For Posner, theoretical (read moral) arguments are typically rationalizations of previously affirmed attitudes. But this is not to say that moral values are not real. It is simply to note that the moral values we hold are not derived from moral philosophy. Instead, moral philosophy tends to be an attempt to justify the moral values we hold antecedently. One member of the workshop suggested, receiving confirmation from Posner, that this view tracked with the moral/ethical position of A.J. Ayer, who argued that moral statements have no cognitive content (that is, there are no moral facts), but rather simply report our feelings or emotions.
To spark a bit of philosophical pyrotechnics, Posner conscripted a workshop participant into the elaboration of his view of the proper use of moral values. The discussion turned to the propriety of shaping children’s values through public education, specifically the distinction between imparting the value of vegetarianism as opposed to the value of non-violence. While Posner affirmed that teaching children not to beat one another would be an appropriate public goal, he chided that teaching a morality-based vegetarianism to school-children would be akin to the religious dogmatism found in Iran. The relevant distinction, for Posner, is that we belong to a type of commercial society, where the value of peaceful citizens is implicit in the goals of such a society; a societal propensity toward violence hurts trade. The propriety of a particular educational program is conditional, based on a shared commitment to a general type of societal arrangement. In other words, so long as certain values are shared, the propensity of different programs of education to support those given values can be worked out through technical rather than theoretical inquiry.
Posner simply noted that he accepts the type of society we have, and that he can see how an attempt to make people more peaceful would be a good project within this society. In any event, the moral argument for vegetarianism, derived from an assertion that we have obligations to animals, seemed to Posner to fall outside of any commitment implied by a shared acceptance of our commercial society.
But if we are practically limited to argument about technical facts, what happens if our view of facts is ultimately driven by the values we accept? One workshop participant suggested that, following recent work on cultural cognition by Dan Kahan, we might think that we conform our view of facts to those values we see as commitments that define our cultural identity. If this is persuasive, what could be made of a requirement to limit argument to questions of fact? Posner’s view was that agreement over facts, though sometimes disputed, would often be resolved over time. Posner pointed to developing majority views toward homosexuality as an example of this process. He recounted that when he was younger homosexuality was far less accepted than today, and as a result, people were not aware of the homosexuals around them. With increasing awareness of homosexual people came awareness that many of the stereotype-driven aversions were inaccurately applied to the homosexuals that people knew, while positively associated characteristics did apply. It was not that people changed their values through a convincing moral argument, but instead that they learned more facts about the world.
The problem, suggested by Posner’s own view of rationalization in moral debate, is where the aversion to a type of person drives the selection of relevant criteria entitling a person to respect. If one’s view of the relevance of various facts is a product of an antecedent non-cognitive attitude, then the utility of factual argument seems limited. Posner’s remarks expressed a general optimism (reflected in his endorsement of broad normative implications flowing from our commercial society) in our ability to find general, broad-based agreement on these questions of moral relevance.