On the Alleged "Sophistication" of Academic Moralism

The editors of the Northwestern University Law Review have graciously invited me to respond to Professor Waldron's review of my book The Problematics of Moral and Legal Theory.1 Waldron's review, though not uncritical, is generous, and it would be churlish of me to take sharp issue with it. More important than being generous, it gives an accurate impression of the book, thus fulfilling the reviewer's elementary yet often neglected duty of telling readers enough about a book to enable them to make an informed decision about whether to read it. But several of the issues that Waldron raises may benefit from a further discussion. They all relate to the question whether normative moral philosophy is intellectually "sophisticated." Waldron believes it is; I believe it is not. The first issue is slight, but leads to the heart of our disagreement. He ascribes to me the view that "despite law professors' desperate eagerness to be well thought of by philosophers, their efforts in this regard end up eliciting nothing but amusement from those specialists who actually understand what (if anything) makes philosophy worthwhile."2 He does not offer a page reference for this point supposedly of mine, and I don't think he could. It is true that law professors who use normative moral philosophy in their work would like to be well thought of by philosophers, but I think many are. Certainly that is true of Ronald Dworkin, Joseph Raz, Charles Fried, Michael Moore, and others I could name. They may lack the subtlety or in some cases the philosophical erudition and range of reference, and perhaps the imagination, of the very best professional normative moral philosophers, but in a blindfold test it would be difficult to tell that they are merely law professors. For normative moral philosophy, or, as I sometimes call it, "academic moralism," is not an arcane or technical field, like music composition or high-energy physics, or, for that matter, modem economics. It is a body of texts, and though many of them are impenetrable without long study, people can write competently about the problems of moral philosophy without a first-hand acquaintance with the most difficult of those texts. The canonical texts are little more than window dressing. Academic moralism is a thin and flabby field, a game played without rules, a dressing up of personal values and political preferences in a solemn and censorious diction of duty and right. Notice that Waldron, in the passage I quoted, wrote "philosophers" and "philosophy" whereas I talk in my book about "normative moral philosophy" or "academic moralism." Waldron is aware that I am not against philosophy tout court, or even moral philosophy tout court, but in places he seems to forget these distinctions,3 and they are very important. I have written extensively about the application of philosophy to law and have even used philosophy in a number of my judicial opinions. Although I have tended to use epistemology, philosophy of science, and philosophy of action rather than moral philosophy, I greatly admire the kind of moral philosophy that one finds, for example, in Nietzsche and, among contemporaries, in Bernard Williams-moral philosophy that consists of philosophizing about morality, as distinct from arguing for one moral position or another. It is only the efforts of philosophers, or of law professors using the methods of philosophy, to argue the pro's or con's of a moral or legal issue, such as abortion, or equality, or euthanasia, or homosexual rights, or capital punishment, that seem to me to lead nowhere. Waldron believes that my arguments-not those for the uselessness of academic moralism for law, with which he agrees, but rather those for the futility of academic moralism for any purpose other than academic careerism-betray a certain lack of inwardness with the philosophical tradition and, as a result, will make few converts among professional philosophers. I am sure that he is right on both counts. …