Philosophy & Monica Lewinsky

Richard Posner
Richard Posner; drawing by David Levine


Richard Posner is the wonder of the legal world. He is Chief Judge of the Seventh Circuit Court of Appeals—Ronald Reagan appointed him to that court in 1981—and he is therefore one of the busiest and most important federal judges of the nation. He is an authority on antitrust law, and was recently appointed an arbitrator in the huge Microsoft antitrust suit. He was a professor at the University of Chicago Law School for many years before he became a judge, and he continues to teach there as a senior lecturer. He has produced books on a variety of legal subjects in numbers that would be amazing even if he had no other responsibilities.1 To judge from the copious footnotes in all his books, he is a voracious speed-reader as well.

Posner gained his academic reputation—and his appeal to conservative politicians—by popularizing the “economic analysis” thesis that has had surprising influence in American law schools for decades: that law should be designed to ensure that assets and opportunities are in the hands of those who can and would pay most to have them. He has argued, for example, that mothers should be permitted to auction off their newborn babies,2 and that criminal laws prohibiting rape are justified because “even if the rapist cannot find a consensual substitute… it does not follow that he values the rape more than the victim disvalues it.”3 In recent years he has qualified his enthusiasm for wealth maximization, however4 : though his arguments on almost every subject are still dominated by economic speculation, he now believes that law is to be tested not against the single goal of increasing collective wealth but against the much more general goal of “pragmatism.” He means that law should aim at achieving the best consequences overall, taking into account not only the community’s overall wealth but other desirable consequences as well.

His two most recent books, both published last year, are very different, and in some ways contradictory. The Problematics of Moral and Legal Theory is an academic work based on various lectures given in recent years. It endorses moral relativism, declares that if someone sincerely claimed that it is right to kill infants, “I would hesitate to call him immoral,” advises that we should not call slavery, Nazism, and Stalinism immoral (“that is just an epithet”) but rather “not adaptive,” and insists that moralizing is useless except as a rhetorical tool for charlatans and charismatic leaders.5 An Affair of State is an account of President Clinton’s affair with Monica Lewinsky and his impeachment and trial; it is, on the contrary, drenched in moral indignation and chastises academics and intellectuals who opposed impeachment for not denouncing Clinton’s moral flaws often or ferociously enough. Nevertheless Posner regards the two books as pursuing the same central theme: he invites his readers to treat the impeachment book as “an…

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