Judge Posner on Meta-Ethics and Rational vs. Nonrational Argumentation

By:Jeremy Kingston Cynamon

Moral theory is like a system of mathematics that has never gotten beyond addition.R. Posner


In his book, Problematics of Moral and Legal Theory, Judge Richard Posner offers a serious critique of the professionalization of moral philosophy that has gone largely ignored by that social milieu. More broadly, his meta-ethical views explaining the nature of morality, which I will reconstruct in this piece, are quite incisive. I generally agree with Posner’s skepticism towards moral realism, and will not attempt to problematize his arguments in this regard. However, in his attempt to delineate different types of moralists (“moral entrepreneurs” from “academic moralists”) he draws some dubious distinctions.

Particularly concerning is his distinction between rational and nonrational argumentation.[1] In my view, it is political rather than philosophical; a sort of social artifact without internal logic. There is, of course, such a thing as a bad argument, but this is not equivalent to a nonrational argument – at least in Posner’s schema, and in academic parlance more generally. Rationality/Nonrationality can be a marginally useful distinction of style, but I argue that it is often misused to track content and thereby unreflectively weaken the normative weight of radical arguments.


Posner refers to himself as a “pragmatic moral skeptic,” and as such he denies the moral realist position (in the strong form), which claims there is ‘something out there’ called morality accessible through reason or otherwise. Instead, Judge Posner suggests morality is actually a local tool for social order that encompasses a broader scope than law while also reinforcing it at various nodes. He stipulates that we should think of morality as: “the set of duties to others…that are supposed to check our merely self-interested, emotional, or sentimental reactions to serious questions of human conduct. It is concerned with what we owe, rather than what we are owed.”[2],[3]

The most important distinction that Posner draws, at least for our purposes here, is between the moral entrepreneurs and academic moralists. The former are those like Martin Luther King, Gandhi, or Jesus, that are able to persuade people, by way of non-rational argumentation to accept new moral beliefs. The latter are thinkers like John Rawls, Ronald Dworkin, Thomas Scanlon, Judith Jarvis Thompson, etc. that carry on the quest for a priori first principles in the tradition of Kant.[4] Posner believes that this group, the academic moralists, employ rational arguments with cogent reasoning, where the moral entrepreneur need not, and generally does not, do so.[5]

The Academic Moralist

Posner devotes most of his attention (and ire) towards academic moralists. He opens his book by emphatically rejecting the foundationalist idea that “there is a moral order accessible to human intelligence…neither time-bound nor local”.[6] He abandons the realist search for a moral system that offers an Archimedean point from which to stare down across the valleys of history and context.[7] But, having forgotten the lessons of history the academic moralist is engaged in reconstructing their own tower of Babel. From time to time, when these academics claim to have discovered the vista from which to make ahistorical judgments about morality, we encounter them sitting atop a rickety throne having crowned themselves its rightful owner. These heirs to Kant rule the non-existent societies of systematic morality.

Though the academic moralist searches obsessively for first principles, Posner believes he or she will never find them. For him, there are no such moral universals: “there are tautological ones, such as ‘murder is wrong’ where ‘murder’ means wrongful killing…but what counts as murder…varies enormously from society to society.”[8] If we desire moral directives that are of any use for guiding our action in particular cases then we will have to descend from the realm of empty analytical truisms. Everyone might possess moral sentiments but the content of these intuitive responses vary from place to place and from society to society, where none is more ‘true’ than any of the others. They are the ideological sediment that we pick up through our lived experience in one society or another.

Beyond the theoretical critique, Posner also offers a practical one. He believes that the academic moralist far overstates his or her actual role in the world – suggesting that these thinkers do not really convince anyone of anything. Posner writes: “Academic moralism is not really about making us better. It is about manning the ramparts, and rallying the troops, that defend the groups into which we are divided.”[9] It might reinforce the views of their readers who are already inclined to agree with them, but rarely does anyone pick up Groundwork of the Metaphysic of Morals and say ‘Oh God! Now I understand morality.’ The type of person who is already inclined to follow the golden rule, be that a result of their pious upbringing or otherwise, is the type of person who might read Kant and say ‘ah yes, he is stating more eloquently what I have always thought’, but the Nietzschean already set in his or her beliefs who picks up Kant’s work will be less than impressed by his reasoning, just as the atheist is rarely enamored by scripture. Accordingly, Judge Posner tells us that: “academic moralism has no prospect of improving human behavior.”[10]

The Moral Entrepreneur

Because Posner writes off the effectiveness of academic moralists to alter peoples’ beliefs he must offer a different explanation as per how moral codes change over time. His answer is the passion and steadfastness of mainstream moral entrepreneurs. Judge Posner classifies such diverse figures as Abraham Lincoln, Martin Luther King Jr., Peter Singer, and Catharine MacKinnon in this category. Though its hard to make sense of his classifications, Posner offers a plausible story explaining the role that this group plays. He writes:

Successful moral entrepreneurs are like arbitrageurs in the securities markets…They spot the discrepancy between the existing code and the changing environment and persuade the society to adopt a new, more adaptive code. That is why we usually find successful examples of moral entrepreneurship in periods or places of crisis, flux or transition.[11]

Clearly there is something amiss here, but I think, also something of value. When our material conditions change, thereby changing our most pressing material concerns, our moral codes must also be updated. For example, abortion may be usefully classified as immoral when we lack the technology to determine the health of a fetus, coupled with a general shortage of persons. However, when medical innovations have progressed to such a point where we do not have population shortages, and we have genetic testing capabilities that tell us whether a fetus will be born healthy, then there is little reason to consider abortion immoral. These sorts of discrepancies (between material reality and the moral code) create a fertile corridor in which the moral entrepreneur can persuade the community addressed to update its beliefs.[12]

This story about the development of moral codes as inherently linked to material conditions is useful but flawed. Posner believes that we: “usually find successful examples of moral entrepreneurship in periods…of crisis.” But, in setting up the inquiry in this way, it is easy for Posner to find examples of ‘crisis’ that contain within them changes to moral codes. Yet, market society is always in a state of crisis, so we don’t gain much by saying that moral developments emerge at these nodes. It is not wrong, it just offers no new insight. If we wish to sharpen Posner’s story we might consider what sorts of crisis are most ripe for moral developments.[13]

Rational vs. Nonrational Argumentation

Posner distinguishes the academic moralists by their rational arguments, separating them from the moral entrepreneurs whose greatest asset is their polemical style. Successful moralists most often employ irrational argumentation — and this is largely what allows for their success. The moralist is either effective and irrational or rational and impotent.

Responding to this distinction Richard Rorty rhetorically asks: “What is the point of dividing the various tactics we use to persuade our fellow citizens into the rational ones and the others?”[14] For Rorty, the line between rational and irrational argumentation is an unnecessary, and even a dangerous one to draw. Citing Dewey and Kuhn, Rorty adds that: “the criteria of relevance, and thus of rationality, are social norms.”[15] When we attempt to create these norms our distinctions are necessarily placed so as to favor the interests of some over the interest of others. In this case, being identified as rational bestows an argument with greater normative weight, though it may be qualitatively equal to or worse than an ‘irrational’ argument.

Take for example the classification of Catharine MacKinnon as a moral entrepreneur rather than an academic. It seems to me this pigeonholing serves to corroborate Posner’s own sentiments by dismissing the weight of her arguments simply because he does not find them appealing. Describing MacKinnon as a polemicist makes it easier for the cognoscenti to dismiss her arguments as irrational, rather than casting a critical lens upon them. Breaking free of the rigid standards of academia does not mean that one’s work is ‘irrational’, it simply means that it is non-standard. New insights can be cast off as irrational or polemical temporarily, but eventually as the disjuncture between our material reality and our moral code reaches its apex, we will have to reclassify those irrational arguments as the new standards.

Lets consider some of MacKinnon’s writing alongside that of Rawls, who Posner identifies as a rational academic. Below I have taken two passages from each thinker:

Male workers benefit from women’s services and support personally and sexually. They also benefit materially from women’s unpaid labor, much as capitalists benefit from the labor of workers. Sex roles in the marketplace are monetized forms of sex roles at home…male workers, through this system of relations, are forced into the service of   capital through their sense of responsibility and love for their families…Men thus become compliant workers, willing to accept exploitation in the workplace because of the necessity of supporting a family…capitalism makes male dominance rational for men by giving men a stake in it.[16]

Taking the basic structure as the primary subject enables us to regard distributive justice       as a case of pure background procedural justice: when everyone follows the publicly recognized rules of cooperation, the particular distribution that results is acceptable as just whatever that distribution turns out to be….Society is an ongoing scheme of fair          cooperation over time without any specified beginning or end relevant for political justice. The principles of justice specify the form of background justice apart from all particular historical conditions.[17]

Looking at these two excerpts side by side makes a few things clear. For one, Rawls is a much more systematic and careful thinker, but also a more repetitive one. MacKinnon, while certainly trailing Rawls in the aforementioned respects, is the more engaging writer. Does this mean that Rawls is using rational argumentation while MacKinnon is employing polemical skills?

Contra Posner, I hardly think we can make this claim. Perhaps to some readers MacKinnon seems more polemical because she makes claims that are unsettling. By contrast, in the vast majority of his work Rawls provides us with philosophical justifications for notions that many people had already been harboring. It is hard to prima facie disagree with Rawls, but it is also hard to be surprised by anything he writes. It is these sorts of qualities that Posner picks up on when he attempts to categorize MacKinnon (and others like her) as polemical moral entrepreneurs, while proclaiming Rawls (and others like him) as rational academic moralists. His distinction then, is not one that should confer normative weight, as ‘rational’ and ‘irrational’ typically do. The difference between MacKinnon and Rawls is not as Posner suggests, that the former’s success is due to her “singlemindedness” and “polemical skills” while the latter’s is due to his rational argumentation.[18]

Both the moral entrepreneur and the moral philosopher are engaged in the same enterprise: convincing an audience to accept a moral belief or system. The extent to which either’s work is successful cannot be attributed to how close or far they are from ‘true’ morality. Instead, their success differs greatly according to their audience – and so it is still useful to maintain Posner’s between these two groups. A student of moral philosophy might be more convinced by the systematic style of Rawls than by the lyrical quality of Whitman, while the average person will likely find more of value (and indeed of substance) in the work of the poet.

Nonetheless, we would be better served by setting aside the second order distinction between rational and nonrational argumentation. In my view, academics present formal arguments. Some of them are appealing, others are too arcane to attract any attention outside of the ivory towers. Moralists from other sectors of society present informal arguments. Some of these are appealing, others are too arcane to attract any attention outside of the small circles from which they emerge. We should not regard the formal styles of argumentation that are considered the standards in academia to have any intrinsic worth. On the surface, this is what Posner is doing by labeling the moral entrepreneurs peddlers of nonrational arguments.[19] The division implies an epistemic frailty in polemical argumentation that is not shared by the rational. Yet, insofar as there is an epistemic dubiousness inherent to moral arguments it effects the rational and irrational sorts equally.

Rationality as a Criteria for Access to Academic Spaces

It would be much easier to understand this distinction between rational and nonrational argumentation and thereby between the academic moralist and the moral entrepreneur, if we consider them as social artifacts. When viewed using such a lens these categories present themselves as the result of socio-political developments. What is known as rational or nonrational in the current moment is best understood as the contingent product of history.

Such categories are produced and reproduced by collective actors insulating themselves into a contained space within which they construct a system of rules for entry, and rules for governance more generally.

Judge Posner’s distinction between the cogent, rational arguments of Rawls and the nonrational, polemical arguments of MacKinnon, is thus political not philosophical. He deems those arguments rational which comport with the “cognitive elements” that have been chosen as standards by the academic establishment. [20] Ironically, he does so after deeming that group utterly unable to effect the world. It appears he realizes the hallowed halls of academia shield themselves from radical intellectuals, but fails to recognize how he is complicit in this narrow-mindedness.

By bestowing upon its members the character of ‘rational’ argumentation, the establishment is able to normalize its ranks, and to borrow Posner’s own language ‘man the ramparts’. The badge of rationality is intended to confer the institutional recognition that provides traditional benefits of membership (e.g. tenure, acceptance to journals, etc.) Disconcertingly however, the criterion for becoming a club member has less to do with the quality of one’s arguments and more to do with their content.

Labels like rational and nonrational serve only to obscure the actual object of categorization, while purporting to be logically cogent categories. If their façade is broken, they then appear as distinctions of style. This preliminary unearthing however, leaves a still a veiled distinction of content. When Posner labels MacKinnon as irrational, he thereby deems her ideas radical and dangerous. By contrast, when he labels Rawls as cogent and rational, he deems his ideas as stabilizing and non-threatening to the status-quo.[21]

The frame of the rational/nonrational category is constructed of a bundle of norms that are not internally coherent, and as such result in a stylistically homogenized assortment of ideologically neutered doctrine across the normative disciplines. If we were to set aside the sort of thinking that cites these ersatz philosophical distinctions, or at the very least acknowledge that they are the historically contingent products of socio-political processes, then academia might have a more diverse range of views represented. In a social space that is intended, at least in part, to provide innovative ideas non-standard approaches should be strongly affirmed.

Jeremy Kingston Cynamon is a PhD candidate in Political Theory at Brandeis University. He did his undergraduate work in Political Science at UC Berkeley. You can follow him on twitter @__JKC__.


[1] Though I believe the distinction between entrepreneur and academic is useful, I think that categorization is only a matter of audience, rather than (audience + rational/irrational) argumentation) as Posner does.

[2] Posner, Richard A. The Problematics of Moral and Legal Theory. Cambridge, MA: Belknap Press, 1999. [4]

[3] In doing so Posner is distinguishing morality from ethics. Whereas the latter might be conceptualized as ‘how should I live’, morality is the subject of our duties to others.

[4] Though for inexplicable reasons Posner does not consider Kant himself to be an academic moralist.

[5] To be certain, Posner is not very hot on either group. He reduces the academic moralists to more pretentiously erudite, but less efficacious moral entrepreneurs, writing: “rather than poets and novelists being moral philosophers manqué, moral philosophers are poets and novelists manqué.”

[6] Ibid. [3]

[7] Whether or not there actually is something called morality that exists outside man is a question Posner seems to feel is unnecessary. If it is impossible for humans to reach that thing called morality, we might as well say it does not exist.

[8] Ibid. [6]

[9] Ibid. [90]

[10] Ibid. [7]

[11] Ibid. [44]

[12] Obviously the moralists are not directly pointing out the material changes, because these alone struggle to gain traction. Rather, they almost always couch their arguments in the language of other moralized discourses, e.g.; autonomy, rights, etc.

[13] That said, I am not entirely certain that this is in itself a worthwhile task or even an achievable one. We might never determine exactly what conditions are necessary to precipitate a change in the moral code, nor do we need to. It seems to me that as long as there is a disconnect between our condition and our moral code, then someone – an academic or an entrepreneur – will fill the void. Stories that try to account for exactly how this happens, will inevitably overlook certain important aspects.

[14] Rorty, Richard. “Dewey and Posner on pragmatism and moral progress.” The University of Chicago Law Review 74, no. 3 (2007): 915-927.

[15] Ibid. [927]

[16] MacKinnon, Catharine A. Toward a feminist theory of the state. Harvard University Press, 1989. [66-7]

[17] Rawls, John. “Justice as fairness.” The philosophical review 67, no. 2 (1958): 164-194.

[18] Posner, Richard A. The Problematics of Moral and Legal Theory. [43]

[19] However, I will argue momentarily that this distinction in style, is more accurately described as one of content

[20] Fligstein, Neil. The architecture of markets: An economic sociology of twenty-first-century capitalist societies. Princeton University Press, 2002. [15]

[21] Rawls’ difference principle is undoubtedly a very radical idea. However, it is also unsurprisingly the part of his work that has received the least attention. Even then, its implementation, depending on one’s interpretation, might not require radically altering our mode of production. It is thus, a quasi radical idea that has slipped passed the guardians of the status-quo, only to be ex post facto relegated from the conversation.


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  1. Judith Redin

    This is a remarkably cogent and effective argument. However, I detect a rather peculiar use of commas. I was unaware that Judge Posner also dabbles in philosophy.

  2. Evie.J

    Interesting piece, but perhaps a little quick to draw bold conclusions. While I am certain there are countless times I have deemed an argument irrational because I disagree with its content, I am reluctant to let go of an objective standard of reasoning altogether.

    • Schrodinger's Dog

      Agreed that some of the conclusions are perhaps too quickly and boldly drawn. Also agreed that one wouldn’t want to dispense with rationality altogether. If I have followed the author’s reasoning sufficiently well, however, he means to critique Posner’s view of rationality, rather than rationality as such. I would have liked to hear more about this difference – that between a poor rational argument (in the Posnerian sense of rational) and a good argument (be it reasonable or rational in the full senses of these things). Still, a very interesting read.

  3. Michael Coburn

    Are the grounds of morality rational in the first place? It seems to me that they are not. Morality is based in the passions and, although both Posner and this author seem to want to dismiss the possibility, in inspiration or revelation. And, yet, if we can’t reason about them or engage in rational discourse about them, what are we other than slaves to whim and caprice?

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