'Law, Pragmatism, and Democracy': The Legal Theory of No Legal Theory

R. A. Hettinga rah at shipwright.com
Mon Sep 15 13:45:03 PDT 2003


The New York Times

September 14, 2003 

'Law, Pragmatism, and Democracy': The Legal Theory of No Legal Theory 

By Richard A. Posner. 
398 pp. Cambridge, Mass.: Harvard University Press. $35. 

Richard A. Posner is an extraordinary person. If he did not exist, it would be hard to believe that he could. He is a judge on the United States Court of Appeals for the Seventh Circuit in Chicago, and -- one would think -- a busy man. But he writes on almost every legal issue of the day, from Bush v. Gore to Roe v. Wade. He has published ''Public Intellectuals'' and a biography of Benjamin Cardozo. Thirty years ago, his book ''The Economic Analysis of Law'' began a revolution in legal theory whose effects are still being digested. Ten years ago, ''Sex and Reason'' scandalized just about everyone by coolly and rationally analyzing the way the law should treat sex and its consequences. Posner keeps up a rate of production of polemical essays on politics, law and moral philosophy that would do credit to an entire law school. He writes with a flair that puts most journalists to shame and a depth of knowledge that puts most professors to shame. 

Putting professors to shame is what he excels at; it is a large part of the purpose of ''Law, Pragmatism, and Democracy.'' Although Posner teaches at the University of Chicago Law School, he uses ''academic'' essentially as a term of abuse. One target of his derision is the recent academic enthusiasm for ''deliberative democracy.'' Deliberative democrats think that what democracy involves is not the messy, noisy, winner-take-all of the electoral process, but a collective and cooperative search for the right answer to our common problems -- the sort of thing that Dewey wrote about for more than half a century. Posner's take on the matter is that the enthusiasts for deliberative democracy want to substitute the moral prejudices of professors for the wishes of the plain man or the slightly less plain politician. 

His other target is the ''formalist'' view of law, which says that courts should always ask one question only: what does the law require? In the formalist view, there will always be a single answer, and the task of judges is to declare it. The present Supreme Court is addicted to presenting its decisions in formalist terms. But, Posner unflinchingly insists, although the court eventually made the right decision in Bush v. Gore, it gave such an incoherent and unconvincing account of what it was doing that it ultimately impaired its own authority. Conversely, in Clinton v. Jones, the court made a mistake that a pragmatic judge would not have made, because that decision opened the door to the whole sorry farce of the impeachment of President Clinton. 

Posner's targets have nothing positive in common. The link is that they are the antitheses of what he wants to argue for -- legal and democratic pragmatism. True to form, he does not suggest that we should all run out and read the works of Charles Sanders Peirce, William James and John Dewey (although he himself appears to have done so). He wants to argue for pragmatism in the ordinary sense of the term: paying greater attention to the consequences of what we do than to high principle, making institutions work a bit better on the assumption that perfection is out of reach and is, in any case, a dangerous goal. 

Still, Posner is an intellectual to the end of his fingers, and like most others of the breed, he hates to leave his opponents in possession of any territory that he can seize. This means that ''Law, Pragmatism, and Democracy'' is several books in one. Roughly a third of it will be useful to students in law school who need a quick route into the role of pragmatism in American law. Another section of the book does some very neat work on the connection between what we nowadays call ''liberal democracy'' and what the ancients called ''mixed government.'' 

The founding fathers, Posner says, did not want to set up a democracy but a mixed government. That is in fact what they created -- with monarchical elements in the presidency, aristocratic elements in the Senate and Supreme Court and democratic elements in the lower house. The whole thing was intended to be a balance of interests in the way Cicero said successful republics must be. Some of us have said for 40 years that what we call ''representative democracy'' is what an earlier age understood as elective aristocracy. It is good to have Posner on our side. 

The only regret is that he does little to spell out the reason for wanting populist elements in a mixed constitution -- essentially, that once you have agreed that government is a job for the full-time expert and that ''rule by the people'' is literally impossible, you need some way in which the ordinary man can stop the elite from walking off with the store. The London mob used to smash the windows of the rich; universal suffrage serves the same purpose with less damage. Posner writes only about the representation of interests, which is not the Athenian view that democracy was a mechanism for putting the fear of God into the ruling elite. 

Posner's preferred account of democracy was provided by Joseph Schumpeter, the Viennese economist best known for his description of capitalism as propelled by ''gales of creative destruction.'' In exile in America during World War II, Schumpeter wrote ''Capitalism, Socialism, and Democracy,'' a book with which Posner has fallen in love. At least, he has fallen in love with the two chapters in which Schumpeter destroyed what he called the classical theory of democracy and defended what he considered a realistic one. 

Schumpeter argues that democracy is a system in which would-be rulers compete for the people's vote. The number of voters does not greatly matter; what matters is that the government is the winner of a genuinely competitive election. Posner, who is fascinated by economics, seizes on the way that Schumpeter's theory emphasizes competition between elites. It looks, as many writers have said, like the beginnings of an economic theory of democracy. And Posner has some interesting thoughts on ways in which we might make American democracy more competitive -- giving would-be third parties a fairer chance to enter the political marketplace, for instance. 

But Schumpeter was not an enthusiast for making politics more competitive. He was profoundly distrustful of the ordinary man, whose views he thought irrational and ill informed, and he deplored the activities of that great American institution, the pressure group. Posner mildly criticizes Schumpeter for not saying enough about what should happen between elections. If you think that politics should operate like a market, it's a fair point; nobody makes once-and-for-all choices in the ordinary marketplace. In fact, the one thing that Schumpeter said about what should happen between elections was that the voters should not put pressure on government, but should simply allow it to govern. 

Many readers of ''Law, Pragmatism, and Democracy'' may choose to leave Posner's discussion of democratic theory for last, turning first to his illustrations of pragmatic adjudication in action to see what the ''cash value'' of the theoretical chapters is. Posner's premise is that there is no such thing as legal reasoning. Lawyers and judges know a lot about legislation, previous cases and the like. But on all else, they should defer to experts in nonlegal fields, who provide the raw materials for interpretation and decision. But if there is no such thing as legal reasoning, what will limit judges from going off in any direction? A large constraint, Posner argues, is the need not to be overruled too often and too embarrassingly by a higher court. 

The Supreme Court, however, cannot be overridden; it works with looser constraints than any other court. Its task is to make sensible decisions that will have good consequences for the country as a whole. In Bush v. Gore, for instance, there was a need to bring an end to the electoral mess, and there were ways of doing this discreetly. Justice Scalia is told off particularly severely for political ineptitude. Silence was the prudent position; his concurring judgment gave the dissenters a target and a chance to grandstand. 

In Clinton v. Jones, the pomposity of the court's declaration that ''no man is above the law'' blinded the justices to the need to let quite a lot of people be a little above the law. Given what sexual harassment suits are like, Posner says, the president should have been protected while in office; a narrowly tailored immunity would have served the nation well. 

These agreeably unprincipled views look less appealing when Posner turns to the erosion of civil liberties during emergencies. Here, the message is that civil libertarians should stop whining, and get used to the idea that in a crisis we have less freedom. No doubt -- though one would expect a thinker like Posner to regret the loss rather than celebrate it so enthusiastically. Still, his argument is an elegant illustration of what is lost by pragmatism's abandonment of principle. Perhaps we ought to be grateful for it, as just one more of Richard A. Posner's many provocations. 

Alan Ryan is the warden of New College and a professor of politics at the University of Oxford. 

R. A. Hettinga <mailto: rah at ibuc.com>
The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
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"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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