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Probably to most students of Moral Philosophy there comes a time when they feel a vague sense of dissatisfaction with the whole subject." This is how H. A. Pilchard introduced the problem of his famous 1912 essay "Does Moral Philosophy Rest on a Mistake?"(1) Moral philosophy is concerned to prove that the things we take upon reflection to be our moral obligations or duties really are our obligations and duties. The mistake lies in thinking that there are any such proofs. Any attempt to offer a proof will fail to be more convincing than our immediate sense of obligation itself. Our moral intuitions are all that we have to rely upon, and reasons extrinsic to the nature of the action whose obligation is in question fail to be persuasive.
In his new book, The Problematics of Moral and Legal Theory,(2) Richard A. Posner, the prolific Chief Judge of the U. S. Court of Appeals for the Seventh Circuit, also argues that moral philosophy rests upon a mistake and for much the same reason. There are no philosophically persuasive proofs determining our obligations. Despite this agreement, Prichard and Posner approach the question from quite different perspectives. To Prichard the hardness of a statement of moral obligation is of the same degree as the hardness of a mathematical truth. Just as there is no argument to convince us that 7+5=12 that is more persuasive than what we find when we reflect directly upon this equation, so there is no argument to convince us that promises ought to be kept that is more persuasive than what we find when we reflect upon the nature of promising. For Prichard, moral facts are discovered in the way that mathematical facts are discovered, namely by reflecting upon their content. Posner, on the other hand, denies that there really are moral facts that can be discovered either by empirical methods or rational reflection. A moral code is a set of norms functioning as a system of social controls; it contributes to a society's survival and to other social goals that are achievable only by keeping the self-interest of individuals in check. A statement of moral obligation is not something that can be judged to be either true or false; nor does our acceptance of it count as knowledge. There is no objective moral order to be right or wrong about. To the extent to which moral philosophy is an effort to reveal an objective moral order (moral realism), then it rests upon a mistake.
Posner calls himself a relativist: "morality is local ... there are no interesting moral universals" (6). Our moral intuitions are not insights into transcultural moral universals but are merely symptoms of internalized culturally determined norms. Posner waffles somewhat over the question of moral universals. There may be some, but they are not interesting. Some of them are mere tautologies such as "Murder is wrong" where "what counts as murder ... varies enormously from society to society." Others are "rudimentary principles of social cooperation--such as don't lie all the time or break promises without any reason or kill your relatives or neighbors indiscriminately" (6). It is not clear why these are uninteresting since they seem to be indispensable in sustaining a climate of comfort, trust, and cooperation in our social interactions. If the moral codes of human social groups include such principles and special cases of them, then the idea that morality is local is itself uninteresting if not false. In any case, the extent to which moral codes are made up of principles common to them all is an empirical question to which Posner pays little attention. Relativism in this empirical sense is a matter of degree. Some rules are limited to certain groups such as the prohibition against eating pork or consuming alcoholic drinks. But there may well be a core of moral rules realized in almost all social groups. Perhaps what is central to Posner's conception is not this empirical relativism so much as his "adaptionist [or functionalist] conception of morality, in which morality is judged ... by its contribution to the survival, or other ultimate goals, of a society or some group within it" (6).
There is nothing particularly original about the functionalist conception of morality Posner offers. One would expect something like this from almost any thinker oriented toward the social sciences. The main difficulties with moral realism were formulated over two hundred and fifty years ago by David Hume in his Treatise of Human Nature: Normative rules cannot be reduced to or deduced from statements of fact; the function of rational procedures is to identify efficient means to realize our ends; our ultimate ends are beyond rational consideration; disagreements with others over moral issues can be settled by empirical means only if there is substantive agreement on moral norms; where there is no agreement, appeal to reason sooner or later comes to an end. A good deal of moral discussion is rhetorical rather than rational, and it frequently appeals to the emotions rather than facts because verifiable facts soon run out and, besides, there are no moral facts.
The main point of interest in Posner's book, then, lies not in the underlying philosophical standpoint but in his efforts to debunk moral philosophy. His sallies against the professors of philosophy (the purveyors of what he calls academic moralism) and the professors of law who think that moral philosophy …