The problematics of moral and legal theory

Abstract

In these Holmes Lectures, delivered a century after the publication of Oliver Wendell Holmes's great essay The Path of the Law, Judge Posner argues for an essentially Holmesian conception of the proper relations among modem normative moral philosophy ("academic moralism"), morality, and law. Academic moralism, he argues, lacks either the intellectual cogency or the emotional power to change people's beliefs or behavior; the power to do so resides in "moral entrepreneurs," which academic moralists emphatically are not. Academic moralism's lack of cogency disqualifies it to guide judicial decisionmaking even - in fact, especially - in cases involving controversial moral issues, such as abortion and euthanasia, as the Supreme Court has recognized.