Jonathan Rowe rightly pinpoints the great problem with Richard Posner’s hand-me-down Holmesian positivism in this phrase: “morality is simply dominant public opinion.” Rowe asks, “what do we do when the masses support genocide or slavery?”
Well, Posner has given us a (politely whispered) answer to that:
It was right to try the Nazi leaders [at Nuremburg] rather than to shoot them out of hand in a paroxysm of disgust.... But it was not right because a trial could produce proof that the Nazis really were immoralists; they were, but according to our lights, not theirs.
Richard Posner, Problematics of Moral And Legal Theory, 111 Harv. L. Rev. 1637,1644-45 (1998) (emphasis added). In Skepticism And Freedom, Richard Epstein demolishes the pretenses this claim makes to legal discourse. Posner’s view, Epstein writes, “offers skilled oral advocates the possibility of taking any side of legal dispute and coming out the better for it,” id. at 75, but has little else to commend it. Beginning with a quotation from Posner, Epstein writes:
“[A] variety of widely accepted norms, including the keeping of certain promises, the abhorrence of the unjustified killing of human beings, and perhaps even the sanctity of property rights, promote the adaptation of the human species to its environment. But so does genocide.”
Zowie! The passage just quoted begins with too much equivocation. Why only the keeping of “certain” promises, what counts as an “unjustified killing,” does the protection of property rights require their “sanctity”? But all these small points can be resolved using the usual tools of common law interpretation.... The shock value of the last sentence is a rhetorical device that Posner borrows from Homes. But it badly misfires. It shows that the man who prides himself on his steely ability to cut through the legal malarkey lacks the most elementary sense of proportion, or, dare one say it, judgment, not to say any appreciation of the tragedies of human suffering. Despite his protestations to the contrary, his form of pragmatism morphs into a cruel form of moral skepticism. The very possibility that this position could be squared with a utilitarian account would, if correct, be a devastating indictment of that venerable system. But of course he cannot cite any utilitarian who would embrace that position, so how does he come by it...? Whatever one’s doubts about the scope of enforceable promises, the segue from limited government to genocide takes a determined form of moral blindness open only to the totally inept or the devilishly brilliant.
Posner...reverts to his crude form of social Darwinism by noting that “the race that exterminates other races spreads its members’ genes. If the Nazis geopolitical ambitions had been fulfilled, Hitler would have been entitled to kudos from those who believe that Darwinism is a source of moral norms.”
Id. at 77-78.
Richard Posner, the most lauded member of the federal bench, is philosophically incapable of condemning the most notorious evil in human history—and he loudly proclaims the fact, even revels in it. I suspect the reason people do not realize with horror what is going on when Posner makes a statement like this is because its very indecency is so extreme that it takes a long time to sink in. As Epstein puts it, “[t]o defend the Nazis, one has to adopt a factual skepticism that makes truth as arbitrary as moral propositions which, alas, Holmes, the philosopher, was prepared to do when he wrote that ‘moral preferences are more or less arbitrary.... Do you like sugar in your coffee or don’t you...? So as to truth.’” Id. at 83. Posner, too, really is prepared to employ this sort of skepticism toward the wrongness of the Holocaust, and, evidently, all lesser evils. You will forgive me if I say that any man capable of looking at the Holocaust with studied equanimity as being equally legitimate with any other social phenomenon that claims “collective support” is absolutely and deliberately blind, and deserves no place in the polite scholarly company of which he is today one of the leaders.
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