The Supreme Court vacancy caused by Scalia's death will provoke a moralistic debate about his successor. The liberal establishment will contend that if Republicans are allowed to pick the replacement, that will be a catastrophic setback for social justice, human rights, &c. They will frame the debate in ethical terms.
To my knowledge, Richard Posner may well be the most influential jurist of his generation. He represents the principal alternative to the perspective of Robert Bork, Antonin Scalia, and Robert George. I'm going to quote some statements of his on metaethics. On personal and social morality.
There's a refreshing candor to his position. He doesn't hesitate to embrace the bleak consequences of atheism. Mind you, he can afford to be cavalier. As a member of the ruling class, he is not threatened by his own self-destructive logic.
I should clarify that, in a primary respect, I don't think it's the job of judges to moralize. To substitute their own morality. To impose their own morality. As a rule, the job of a judge is to apply the law, rather than apply his own morality. It's the job of lawmakers to think ethically, and the job of judges to faithfully interpret and impartially apply the law. To be sure, impartiality is a virtue in that situation.
There are exceptions to that rule. Take the cliche of a judge in Nazi German. He should either resign or use his position to mitigate the evil of Nazism. Use his position to subvert Nazism as best he can. Likewise, a Muslim judge should cease to be Muslim.
In addition, judges can write articles and give speeches in which they propound their moral vision. They can advise law students and lawmakers. Even if there's a sense in which they ought to check their morality at the courthouse door, they can influence the morality that informs law and policy.
That said, it's instructive to see what Posner's alternative amounts to.
"Morality," as I shall use the word, is the set of duties to others (not necessarily just other people) that are designed to check our merely self-interested, emotional, or sentimental reactions to serious questions of human conduct. It is about what we owe, rather than what we are owed, except insofar as a sense of entitlement (to happiness, self-fulfillment, an interesting life, the opportunity to exercise our talents, or the opportunity to realize ourselves) might generate a duty on the part of others to help us get what we are entitled to.
First, morality is local. There are no interesting moral universals. There are tautological ones, such as "Murder is wrong," where "murder" means "wrongful killing," and there are a few rudimentary principles of social cooperation - such as "Don't lie all the time" or "Don't break promises without any reason" or "Don't kill your relatives or neighbors indiscriminately" - that may be common to all human societies.3
If one wants to call these rudimentary principles the universal moral law, fine; but as a practical matter, no moral code can be criticized by appealing to norms that are valid across cultures, norms to which the code of a particular culture is a better or a worse approximation. Those norms, the rudimentary principles of social cooperation that I have mentioned, are too abstract to serve as standards for moral judgment. Any meaningful moral realism is therefore out, and moral relativism (or rather a form of moral relativism, an important qualification to which I'll return shortly) is in. Relativism suggests an adaptationist conception of morality, in which morality is judged - non-morally, in the way that a hammer might be judged well or poorly adapted to its function of hammering nails - by its contribution to the survival, or other goals, of a society. My analysis also suggests that no useful meaning can be given to the expression "moral progress" and that no such progress can be demonstrated.
Second, many so-called moral phenomena can be explained without reference to moral categories. This point reinforces my thesis that the content of moral codes is local by showing that most moral principles that claim universality are better understood as mere workaday social norms in fancy dress. It also implies that the domain of moral theory is smaller than academic moralists believe. This is not to deny the existence of universal moral sentiments, such as guilt and indignation and certain forms of disgust4 (as distinct from altruism, which is not primarily a moral sentiment). But these moral sentiments are object- neutral,and hence not really moral. "Moralistic" would be a better word for them. They are instruments rather than ends.
x. Moral Relativism. - If moral relativism means that the criteria for pronouncing a moral claim valid are local, that is, are relative to the moral code of the particular culture in which the claim is advanced, so that we cannot call another culture "immoral" unless we add "by our lights," then I am a moral relativist.
2. Moral Subjectivism. - Moral subjectivism, as I use the term, is the view that there are no criteria of validity for a moral claim; morality, in this view, is relative to the beliefs of each individual, so that an individual acts immorally only when he acts contrary to whatever morality he has adopted for himself. I am sympathetic to this position. If a person decides to opt out of the morality of his society, the way an Achilles or an Edmund (in King Lear) or a Meursault or a Gauguin or an Anthony Blunt did, or for that matter as the conspirators against Hitler did, there is no way to show that he is morally wrong, provided that he is being consistent with himself. Even if inconsistent, he can be morally wrong only if consistency with oneself, whatever exactly that means, is a tenet of his personal moral code. (I will say more on the confusing concept of being "consistent with oneself" later.) The most that can be said about such a person is that he is acting contrary to the morality of his society and therefore many people will think him wrong.
But the morality that condemns the traitor or the adulterer cannot itself be evaluated in moral terms; that would be possible only if there were reasonably concrete transcultural moral truths. My version of moral subjectivism is consistent with moral relativism in its sense of rejecting transcultural moral truths.
unlike Nagel and the others, I claim that there are no convincing answers to the interesting moral questions. This claim marks me as a moral skeptic in the loose sense of one who doubts the possibility of making objective judgments about the moral claims that moral theorists want to make. The "wet" (non- dogmatic) moral skeptic and the weak moral realist converge.
My belief that moral theory lacks the necessary resources for resolving moral controversies enables me to reconcile my qualified acceptance of moral subjectivism with my qualified rejection of moral skepticism. A person who murders an infant is acting immorally in our society; a person who sincerely claimed, with or without supporting arguments, that it is right to kill infants would be asserting a private moral position. I might consider him a lunatic, a monster, or a fool, as well as a violator of the prevailing moral code. But I would hesitate to call him immoral, just as I would hesitate to call Jesus Christ immoral for having violated settled norms of Judaism and Roman law, or Pontius Pilate immoral for enforcing that law. Had I been a British colonial official (but with my present values) in nineteenth- century India, I would have outlawed suttee,8 but because I found it disgusting, not because I found it immoral. We tend to find deviations from our own morality disgusting, but our reactions prove nothing about the soundness of that morality. No doubt Hindu men thought widows who resisted their fate disgusting. It was right to try the Nazi leaders rather than to shoot them out of hand in a paroxysm of disgust. But it was politically right. It created a trustworthy public record of what the Nazis had done. And it exhibited "rule of law" virtues to the German people that made it less likely that Germany would again embrace totalitarianism.9 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.
Every society, and every subculture within a society, past or present, has had a moral code, but a code shaped by the exigencies of life in that society or that subculture rather than by a glimpse of some overarching source of moral obligations. To the extent it is adaptive to those exigencies, the code cannot be criticized convincingly by outsiders. Infanticide is abhorred in our culture, but routine in societies that lack the resources to feed all the children that are born.13 Slavery is routine when the victors in war cannot afford to feed or free their captives, so that the alternative to slavery is death. Are infanticide and slavery "wrong" in these circumstances? It is provincial to say that "we are right about slavery, for example, and the Greeks wrong,"14 so different was slavery in the ancient world from racial enslavement, as practiced, for example, in the United States until the end of the Civil War, and so different were the material conditions that nurtured these different forms of slavery15. To call infanticide or slavery presumptively bad would be almost as provincial as to condemn them without qualification. The inhabitants of an infanticidal or slave society would say with equal plausibility that infanticide or slavery is presumptively good, though they might allow that the presumption could be rebutted in peaceable, wealthy, technologically complex societies.
I do not shrink from the implication of my analysis that there is no moral progress in any sense flattering to the residents of wealthy modern nations, and that we cannot think of ourselves as being morally more advanced than head-shrinkers and cannibals and mutilators of female genitalia. We are lucky in knowing more about the material world than our predecessors did and some of our contemporaries do. Armed with this knowledge, we can show that certain vanished moral codes were not effective instruments for achieving social goals (in some cases that is why they vanished), and perhaps that some current ones are maladaptive in this sense as well. If a moral code does not further the interests of the dominant groups in a society, or if it weakens the society to the point of making it vulnerable to conquest (even if only by arousing the fear or hatred of a stronger society), or if it engenders unbearable internal tensions, then either the code or the society will eventually become extinct; the moral code of the antebellum South, the moral code of the Nazis, and the moral code of the Soviet Union are all examples. As we have a different moral code, which naturally we prefer (it is ours), we like to describe the disappearance of the bad old codes as tokens of moral progress;24 we call their adherents "immoral." But progress and adaptation are not the same thing. If a moral code is adaptive, it may still be alterable, but it will be difficult to criticize. Had Hitler or Stalin succeeded in their projects, our moral beliefs would probably be different (we would go around saying things like "You can't make an omelette without breaking eggs'); and they failed not because the projects were immoral, but because the projects were unsound.
within each locale it may be possible to evaluate behavior by its conformity to a moral system, even though judgment about the morality of the system itself must be withheld. Indeed, the casuistic approach to moral questions assumes the givenness of the local moral system. It is indeed "startlingly counterintuitive to think there is nothing wrong with genocide or slavery or torturing a baby for fun127 - in our culture. That's the rub. The moral dictionary is local.
Charities know that the way to get people to give money for the feeding of starving children is to publish a picture of a starving child, not to talk about a moral duty. I think that most Americans would actually be miffed to be told, other than by their own religious advisors, that it was their duty to support the needy.
When we see a person in distress, or even a picture of such a person, our impulse is to help (though it is balanced, and often outweighed, by contrary impulses, such as the impulse of self-preservation), even though nowadays the person is unlikely to be a relative or other intimate. We react that way, and approve of others who react that way, not because there is a moral law dictating altruism, but because we are social animals. Cats, for example, are not. If a cat sees another cat (unless it is its own kitten) in distress, it reacts with indifference. This is not because cats are stupid, but because the fewer cats there are, the better it is for cats - the hunting is easier. Cats grow up solitary; children grow up in groups; a moral code will develop in children from their interactions with each other and with adults.39
Some feminists admire bonobos, a species of monkey in which the female is dominant. It would make as much sense to admire sharks, vultures, or leeches. These creatures are adapted each to its particular environment, which is neither our prehistoric nor our present environment.40 Admiring bonobos or deploring sharks is like calling a warthog ugly. A shark who had a moral lexicon would pronounce the eating of human swimmers moral, just as a warthog with an aesthetic vocabulary would snort derisively at the Venus de Milo.
All that the moral emotions actually imply, however, is that we are social animals with large brains. The sociality makes desirable, and the large brain makes feasible, the development and enforcement of rules of social cooperation and differentiation, as opposed to the kind of hard-wired role differentiation found in ants. The most important rules of cooperation in a human society are embodied in its moral code, but what is codified is what is useful rather than what idealists might think is good. To be effective, the rules must be obeyed. Many of them are self-enforcing; if you don't cooperate with other people, they won't cooperate with you, and so you'll lose the benefits of cooperation.4 ' Some rules are enforced by law. Some become internalized as duties whose violation engenders the disagreeable feeling that we call guilt. Where there are no sanctions at all, however, not even guilt (and not all people feel guilt if they violate a particular provision of their society's moral code), it is difficult to understand why a person would obey such a rule unless it were consistent with his self-interest. Richard A. Posner, " The Problematics of Moral and Legal Theory," 111 Harvard Law Review 1637 (1997).