Posner's attitude to moral theory of law and his pragmatism

Victor Dorokhin

Chapter 3 in Law, Morality and Economics, 2026, pp 136-161 from Edward Elgar Publishing

Abstract: This chapter explores Richard Posner's shift from utilitarianism towards a pragmatist justification of wealth maximization and critically evaluates the philosophical coherence and normative consequences of his position. It begins with an account of Posner's self-described “pragmatic moral skepticism,” which rejects traditional moral theories—including those of Rawls, Dworkin, and Kant—as abstract, culturally biased, and practically irrelevant for legal adjudication. Posner instead advocates for “everyday pragmatism” as a more suitable framework for judicial reasoning, one that emphasizes empirical outcomes, institutional context, and the rejection of fixed moral or legal principles. The chapter analyses Posner's critique of moral theory, his engagement with legal philosophers such as Habermas and Nussbaum, and his alignment with moral relativism and noncognitivism. Drawing on extensive commentary from Ronald Dworkin, Brian Butler, Anthony Kronman, David Luban, John Mikhail, and others, the chapter highlights the internal contradictions and methodological limitations of Posner's approach. It concludes that Posner's pragmatism, rather than offering a robust alternative to moral reasoning in law, functions as a doctrinal cover for conservative judicial practice and fails to provide a coherent normative basis for economic analysis of law.

Keywords: Everyday pragmatism; Moral theory of law; Pragmatic ethics; Richard Posner; Utilitarianism; Wealth maximization (search for similar items in EconPapers)
Date: 2026
ISBN: 9781035379491
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