Response: The Law Professor as Moral Philosopher?

Abstract

Jean Bethke Elshtain observes in her essay that "[w]e do it all the time." That is, we "legislate morality" all the time? Indeed, Elshtain is sharply critical of those who argue that we ought to de-moralize law: "[O]ne can rightly put ethical and moral questions to the law and expect ethical and moral answers." Elshtain even suggests that we should think of "the law professor as an ethical and moral philosopher." According to Elshtain, "the law professor as philosopher is in the best position to respect and to transmit" the law's moral and philosophical enterprise. Of course, law professors - even those who would be reluctant, if not loathe, to think of themselves or their colleagues as moral philosophers - understand that, in their professional work, they must often struggle with moral issues (or, at least, with issues that are widely regarded to be moral issues). Indeed, we citizens of the legal academy spend a lot of time these days talking about "morality." Law schools feature courses in "law and morality" (or something to that effect). One of the most prominent legal academics of his generation, Ronald Dworkin, is, whatever else he may be, a moral philosopher. So is another influential Oxford law professor: Dworkin's colleague and nemesis, John Finnis. The University of Chicago Law School has appointed a moral philosopher, Martha Nussbaum, to its faculty A founding father of "law and economics," Richard Posner, although not himself a moral philosopher, devoted the major part of his 1997 Oliver Wendell Holmes Lectures at Harvard to savaging what he called "academic moralism" and its practitioners, whom Posner termed "academic moralists."