I recently began reading The Problematics of Moral and Legal Theory by Richard A. Posner. I have always had an intellectual interest in speculative spheres, from ontology to theories of personality to aesthetics and eudaimonology, as well as more concrete problems of political organization and social order; more empirically: I was a philosophy major in college, and I have been accepted to Law School for next year. This book falls squarely in the intersection of some of my dominant interests. I have never been a big fan of Posner (what little I have read always left me with the impression that he was too enthusiastic about cost/benefit analysis, and that he has mistaken the mathematical convenience of quasi-utilitarian arguments in lazy economics papers for evidence of their validity in application), but I simply can’t resist a book that begins like this:

With terms defined and other groundwork laid, we are ready to proceed to the exploration of the thesis of this chapter: that academic moralism is a useless endeavor.

You see, the utter futility of the academic moralist’s raison d’être, combined with the altogether wrong-headedness of the modern approach to theorizing about moral phenomena, divorced from metaphysics, is the single largest source of my intellectual frustration with the academy. And yes, I am familiar with the so-called (Sokaled?) social critics. I have read Gross and Levitt (and Sokal and Bricmont).

It seems odd to me to sit around and theorize about whether it is “morally permissible” to kill one person with a runaway trolley when the alternative is killing five. [Don’t laugh! This is precisely what academic moral theorists do. More on this below, but for now, take a gander at a Google search on the trolley problem.] Should such an unlikely event arise in actuality, it is highly improbable that even a philosophy professor at the helm of said trolley will engage in anything resembling “moral reasoning” in deciding a course of action. Rather than working through the appropriate hedonic calculations, or poring over class notes (“oh, we resolved this issue in lecture last week!”), a “decision” is likely to be driven by revulsion, horror, panic, and all the physiological trembling that arises when faced with an inescapable and terrible situation. Even over a longer horizon, when a moralist might hope that his dogmas have been absorbed and adopted by a wider population, the physiological reaction is sure to be impervious to enlightenment, and at any rate is ignored by these otherwise brilliant academes.

One of Posner’s primary arguments seems to fall along these lines. It is in precisely the most contentious moral quandaries that an appeal to moral intuitions is most otiose. When we agree, there is no interesting moral dilemma, and on the solution of honest moral problems there is nothing near agreement, and no cogent method to resolve the disputes. Thus, modern, academic moral theory (which generally hinges on an appeal to intuition) is altogether pointless. Unfortunately, even in the first fifth of the book, Posner seems to forget his own point. In trying to show the futility of Judith Jarvis Thomson’s famous analogy between abortion and being stuck to a famous violinist for nine months, Posner writes:

What is important for the present discussion is that abortion is killing rather than letting die. So because opponents of abortion consider the fetus a full-fledged human being—and Thomson grants them their premise for the sake of argument—they consider doctors who perform abortions and the women who hire them to be murderers. This is consistent with not deeming the failure to rescue a true stranger a crime at all even if such failure could be thought a “taking” of innocent life; action and inaction often carry a different moral valence even when the consequences are similar.

Don’t look now, Judge, but you’re making a moralistic argument.

More interesting to me, though, is the separation of moral argument from any metaphysical commitments, a problem which Posner mostly brushes aside. One often encounters in academic debates the question of “moral permissiveness” without any discussion of whose permission is being sought or what the consequences are of acting without it or against it. Many of the partisans involved would respond that we may speak of moral truths much like we might of truths mathematical; namely that we may elucidate them and argue them without knowledge of or commitment to any underlying ontological claims. That we have a moral sense, or that there are moral facts, is as indisputable, and no more unprovable, than that there are such things as numbers. That action x is morally wrong is as true as the irrationality of the square root of 2 (where values of x are determined, naturally, by [rhetorical coercion to] agreement of moral intuitions). The problem is that with numbers (and mathematical objects generally) we have rules for manipulating them and discerning their properties—namely, some axiomatic formal logic structure—but in the moral realm there is no such structure apparent. Most often, the moralist hopes to obscure the rules of debate, which, if articulated, would generally run something like:

  1. There are such things as moral facts.
  2. We (I) know there are such things because we (I) have intuitions about them.
  3. (My) intuition properly, correctly and infallibly discerns those facts.
  4. This debate centers around (your) uncertainty as to what (my) intuition recommends.
  5. A solution consists of a reasonably full articulation of (my) intuition.
  6. The claims of (my) intuition in this particular case may be arbitrarily generalized to moral principles that apply to all problems that can be tortured into vaguely resembling the current issue.
  7. (My) moral intuitions are the authority for appeals in this debate.
  8. See point 3.

Let us then return to the trolley problem and the question of “moral permissivity.” Two days ago, I came upon an interesting website—a communal weblog for people somehow connected to the 617 area code who have an interest in philosophical issues. The top post presented a minor variant on the basic trolley problem and asked whether action would be permissible. Naturally, I wondered whose permission was being requested, and I glibly posted my question (along with the requisite reference to Sissy Jupe) as a comment. It was much later (today) when I realized that the initial inquiry had been posted by an Assistant Professor of Philosophy at the University of Wisconsin, a student of Judy Thomson who wrote her dissertation on moral permissivity in trolley situations. I was unable to find an answer to my simple question in her dissertation, but it bears repeating: what does it mean for something to be “morally impermissible?” What happens to someone who acts without or against moral permission? I understand that such an act is supposed be “wrong” (whatever that might mean) but I completely fail to see the practical implications of that wrongness, particularly when the claim is divorced from any metaphysical basis. As far as I can tell, my moral transgressions in this sense allow moral theorists to look upon me with great disdain (“That homunculus didn’t push the fat man! What an unsophisticated moral naïf”) but little else. When divorced of its metaphysical underpinnings, moral theory loses its claim to metaphysical importance.

So the moralists expend tremendous energy formulating principles that resonate with their intuitions, and claim that these principles must be right because we don’t disagree with them, or they try to construct asinine counterexamples to show that their intuitions differ from what is entailed by someone else’s principle. Lamentably, their dismissal of conflicting intuitions is often hopelessly ad hoc and arbitrary. Another professor from the same website, Elizabeth Harman from NYU, tries to explain how “potentiality properties” can help us distinguish between human babies and cats [pdf]. [What are “potentiality properties?” Professor Harman helpfully explains: “A ‘potentiality property’ is a property of having a potentiality” (p. 5).] Thankfully, we now know that allowing contraception does not also require us to allow cosmetics testing on babies. Section 8 of her paper on Potientialities is seemingly a response to one of my former philosophy professors, Michael Tooley. [In fact, I once wrote a paper about potentialities for one of his classes, in which I proposed several problems with the concept of potentialities. For a paper written by a poorly educated, drunken state college student, it wasn’t bad.] Professor Harman’s defense against Tooley’s objections borders on the absurd, but in a highly entertaining fashion (one might say, on the wrong side of the border). I recommend page 20 in particular for good laughs. Of course, if you’re actually looking for a reason to change your current opinion on abortion, or for an argument to persuade the mob to avoid testing chemicals on babies, I don’t recommend any page at all.

All this is to say that, even though it is currently 2:30 a.m. and I am exhausted, and that Posner never really discusses the metaphysical problems of modern moral theory, and accounting for Posner’s economic quackery and lack of subtlety, I am looking forward to a good read. The targets are large and plentiful, so the aim needn’t be so precise.

NP: Cowboy Junkies, To Love is to Bury