This treatment, crucial to Posner's argument, betrays no more than a passing familiarity with the basics of traditional problems of ethics. Are we to suppose that someone like St. Thomas Aquinas, who believed in the Fall, believed that moral universals could be inferred from the uniform morality of fallen men? The point is rather that moral demands follow from the nature of reality, and that reality is common to all human beings; or again, that morality follows from the way human beings are structured, and insofar as all human beings share this essence, they share in common moral demands. It need not follow that all human beings actually live up to this standard, and, in fact, we might for many reasons expect them not to.
[M]orality is local. There are no interesting moral universals. There are tautological ones, such as "Murder is wrong," where "murder" means "wrongful killing," and there are a few rudimentary principles of social cooperation - such as "Don't lie all the time" or "Don't break promises without any reason" or "Don't kill your relatives or neighbors indiscriminately" - that may be common to all human societies. If one wants to call these rudimentary principles the universal moral law, fine; but as a practical matter, no moral code can be criticized by appealing to norms that are valid across cultures, norms to which the code of a particular culture is a better or a worse approximation. Those norms, the rudimentary principles of social cooperation that I have mentioned, are too abstract to serve as standards for moral judgment. Any meaningful moral realism is therefore out, and moral relativism (or rather a form of moral relativism, an important qualification to which I'll return shortly) is in. Relativism suggests an adaptationist conception of morality, in which morality is judged - nonmorally, in the way that a hammer might be judged well or poorly adapted to its function of hammering nails - by its contribution to the survival, or other goals, of a society.
Natural law theory does propose that morality is natural to human beings, but this does not entail that human beings invariably are moral in a state of nature. This is the familiar error of confusing the Hobbesian concept of nature (what we might find were we to tromp out into the wild, or what happens when civilization breaks down) rather than the Aristotelian concept of nature (when a thing actualizes its potential in a way that manifests its essence). Nature in this sense is what a thing attains to, not what it is when social constructs are not present.
Posner's errors extend beyond his apparent unfamiliarity with the relevant literature. Posner chooses to formulate the prohibition against murder tautologically when there is no need to do so. For example, "one ought not intentionally kill another human being except in self-defense or the defense of others, or as part of a just war." And while for Posner, a Seventh Circuit judge and an academic, a universal prohibition against murder may not be particularly "interesting", one suspects the case might be different for those such as the Congolese, whose circumstances in the aftermath of a brutal civil war are significantly less comfortable and secure.
Finally, Posner critiques a sort of categorical moral universalism, and then concludes that "[a]ny meaningful moral realism is therefore out." However, there is a clear distinction in believing that certain moral rules hold universally, and believing in "moral realism." Aristotle, for instance, did not view ethics as categorical, but teleological; and he did not view moral propositions as being universal, but holding in the ordinary course of events. Aristotle was also a moral realist, in that one's actions effect the virtue in the soul. Given Aristotle's eminent and hugely influential place in ethical theory, one might expect Posner to be passingly familiar with him, or at least familiar with the distinction.
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