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This supposed demonstration of my “fatuity” is a flop. Of course teachers confront issues that are the subject of pedagogical theory— about, for example, the best way to teach the multiplication tables. If some teacher were to announce that he was not relying, even tacitly, on any such assumptions, then (unless he were wholly incompetent) he would only be keeping his reliance dark. Perhaps Posner thinks that academic pedagogical theory is bad, and that teachers would do better to rely on their own experience and common sense. Even so, they would be relying on their own instincts or convictions about the very same matters that the educational theorists study, and Posner’s claim is not that judges are typically better at philosophy than academic philosophers are, but rather that judges do not need to have opinions about philosophical issues. The parallel claim would be that teachers do not need opinions about how to teach.
(8) “There is a considerable overlap between law and morality. Only it is too limited an overlap to justify a project of trying to align these two systems of social control, the sort of project that Islamic nations such as Iran and Pakistan have been engaged in of late. (So Dworkin and his allies are the Taliban of Western legal thought.)[xxi][21]
I assume that Posner does not mean, by bracketing me with the Taliban, that I decapitate people who disagree with me. But what does he mean? That I believe that every religious or moral obligation or responsibility should be enforced by law? I have never suggested such a mad project; on the contrary I have repeatedly argued that individuals have rights against the state that permit them to do what others might think the wrong thing without legal interference. That position is central, for example, to my argument for abortion rights in Life’s Dominion.
(9) “Dworkin appears to confuse slavery in ancient Greece with American Negro slavery. See [Objectivity and Truth: You’d Better Believe It] at 121 (reference to ‘the biological humanity of races they enslaved’). Greek slavery was not racial.”[xxii][22]
I did not confuse the two slaveries, and I did not say that Greek slavery was racial. I was discussing the reasons we have for wanting to explain why people have held political convictions different from ours. In one sentence I used our disagreement with the Greeks about slavery as an example of such a disagreement. Two sentences later I wrote, “We might be able to show, for example, that people who defended slavery held false empirical beliefs about the biological humanity of races they enslaved, or that slave owners were subject to special economic stringency that blinded them to slavery’s immorality, or that they lacked pertinent information of some other kind or were subject to other influences known to distort judgment.” There is no suggestion, in that sentence, of which of these explanations — or that any of them — apply to the Greek case. (In fact, however, the Greeks did rationalize slavery by supposing that slaves belonged to a biologically distinct order or race. See Aristotle, Politics I.13 [1260 a12] ("The slave has no deliberative faculty at all") and III.9 [1280 a32-4] "Slaves and brute animals... cannot [form a state], for they have no share in happiness or in a life of free choice" (Ross translation, Oxford: Clarendon Press, 1921).) I assume that Posner has not made the mistake of limiting “race” to pigmentation.
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