Why I can’t conceivably influence the modern secular courts, at least according to Judge Posner.

I have written in the past about the dominance of Law and Economics in modern American jurisprudence.  In that, I noted that brilliant and industrious Richard Posner, the Chief Justice of the Seventh Circuit Court of Appeals, is the primary proponent and exponent of Law and Economics in our time.  I wondered in that post whether we, as the church of Jesus Christ, have a compelling alternative answer to Law and Economics.  You can read that post here.

Whatever the reader may think, Judge Posner clearly believes that Christians do not have an answer for Law and Economics.  In fact, he believes that we have no hope of influencing the judiciary (and the rest of government?) at all.  He sees academic moral philosophy as a threat, but not Christian morality.  The problem is that we Christians have, as he puts it, “controversial metaphysical commitments” that cannot “conceivably appeal to the judges of our secular courts.”[1]

Posner makes his position clear on this in a sort of off-hand way in the first chapter of The Problematics of Moral and Legal Theory.  In that section of the book, he is castigating the use of moral philosophy in the development of the law.  Posner prefers his own “pragmatic” approach to law, and he argues vehemently for it.  In the midst of that argument, he writes:

Academic moral theory should be distinguished from moral preachment outside the academy.  The Jesus Christ of the Gospels is a moralist, but, unlike Plato or Aquinas, he is not a theorist and does not make academic-style arguments.  My concern is with the type of moralizing that is or at least pretends to be free from controversial metaphysical commitments, such as those of a believing Christian, and so might conceivably appeal to the judges of our secular courts.[2]

To say the very least, there is a lot in that quote to unpack.  Too much for this post.  However, I will try to note a few interesting points.

First, as previously stated, a believing Christian such as myself has no hope of influencing a judge in our secular courts, according to Posner.  Why?  Well, because I have controversial metaphysical commitments.  In other words, my arguments flow from a set of truth claims, a worldview if you will, that are inadmissible in the public square.  (I have written on this in another post taking a more historical perspective on the issue and quoting Harold Berman’s Law and Revolution, The Formation of the Western Legal Tradition.  That post takes the position that much of law, and indeed modern life, does not make sense because we have abandoned the worldview that gave birth to it.)

This is consistent with Prof. Stephen D. Smith’s excellent observations in the second chapter of his book Law’s Quandary.  Quoting John Searle, he writes:

We have already seen that, according to John Searle, an “educated person” today will adopt a metaphysics based on “science”—and in particular heavily informed by atomic physics and Darwinian evolution.  The implication is that the religious world view is inadmissible for purposes of serious thought, and Searle elsewhere makes the point explicit.  The scientific world view, he says, “is not an option.  It is not simply up for grabs along with a lot of competing world views.”[3]

He then quotes from John Searle’s The Rediscovery of the Mind (Representation and Mind) as follows:

Our problem is not that somehow we have failed to come u with a convincing proof of the existence of God or that the hypothesis of an afterlife remains in serious doubt, it is rather that in our deepest reflections we cannot take such opinions seriously.  When we encounter people who claim to believe such things, we may envy them the comfort and security they claim to derive from these beliefs, but at bottom we remain convinced that either they have not heard the news or they are in the grip of faith.[4]

Thus, we see that “religious world view is inadmissible for purposes of serious thought” because the “deepest reflections [of the educated classes] cannot take such opinions seriously.” 

Prof. Smith continues by noting that “[t]his development was perceived to be foreordained and inexorable.  The taken-for-granted ‘fact’ of secularization made it inevitable that understandings (of biology, of history—and of law) based on religion must give way to understandings based on science.  To cling to religion was thus to condemn oneself to backwardness and inevitable extinction.”[5]  However, it is not altogether clear that religion (or at least within the field of law some commitment to a metaphysic other than science) can be so easily done away, as Prof. Smith goes on to argue in the remainder of the book.

Second, and lastly for now, the above Posner quote indicates that Posner views Jesus Christ as a moralizing preacher who cannot possibly impact modern secular courts.  He may have shaped the world as we know it more than any other figure, but, I guess according to Posner, Searle, and the like, His time is over and good riddance.  On the other hand, I think Jesus Christ is right now the ruling Lord of the universe whose Kingdom shall have no end.  I believe that He not only can but does control every decision of government, including the decisions of modern secular courts.  (See, for example, Proverbs 21:1, Isaiah 46, or Romans 13:1.)  I guess time will tell who is ultimately correct.  Regardless, the difference indicates how much worldviews really do matter.

[1] Richard A. Posner, The Problematics of Moral and Legal Theory 15 (1999).

[2] Id.

[3] Stephen D. Smith, Law’s Quandary 34 (2004).

[4] John R. Searle, The Rediscovery of the Mind (Representation and Mind) 90-91 (1992).

[5] Law’s Quandary at 35.