The Problems of Jurisprudence

Rating:
Summary: "Today we are all skeptics."
Review: The time has arrived for "a new method of analysis." (443) "Jurisprudence," Posner writes, "needs to become more pragmatic." (387) "The so-called 'pragmatic revival' [is] the new 'hot' topic in jurisprudence." (Peter Lake, Posner's Pragmatist Jurisprudence, 73 Neb. L. Rev. 545, 546 (1994)) Posner's pragmatic jurisprudence is "an attitude rather than a dogma" (28) that emphasizes the importance of "the way you look,[] not what you find." (Jason Johnston, Not So Cold An Eye: Richard Posner's Pragmatism, 44 Vand. L. Rev. 741, 743 (1991)) Indeed, the time has come to case aside the "pieties of jurisprudence" in an effort to "reconceive [the] legal enterprise." (462) "Today, we are all skeptics." (453)

Oh, and skeptical Posner is, for "there is no such thing as 'legal reasoning ... [and] demonstrate[ing] that a [legal] decision is correct [] often is impossible." (459) Law is merely "an activity rather than a concept or a group of concepts," "there is no longer a useful sense in which law is interpretive," and "there are no over-reaching concepts of justice that our legal system can seize upon to give direction to the enterprise." (459-60) Playing upon Nietzsche's Zarathustra, "[Some] will say that I have announced 'the death of law.'"

Traditional analytical jurisprudence, of course, really isn't dead. Nevertheless, Posner advocates for the adoption of a methodology that manifests itself in a skepticism that, unfortunately, demands a perpetual crystal ball and has far to little respect for democratically established rules (that is, laws). Militant consequentialism with an eye towards wealth maximization, it turns out, is where it's really at. Let's just hope all judges are as wise as Posner when making their predictions during this lofty task.

Posner's pragmatism is methodologically anti-foudationalist, anti-formalist, and anti-theoretical. "It is based on a meta-ethical posture that is, at root, ethically relativist." Lake at 546. It casts aside most of the jurisprudential greats - Rawls, Kant, Hart, and Dworkin, for example - with little or no serious consideration. Brushed aside as silly theorists, they are.

Professor Walt outlines one of the main problems with Posner's "attitude": "The problem with Posner's pragmatic jurisprudence concerns the distinctiveness of its claims. The problem is that a pragmatic jurisprudence is either indistinguishable from its theoretical competitors or it is uninformative. In either case, a pragmatic jurisprudence is defective." (Steven Walt, Some Problems of Pragmatic Jurisprudence, 70 Tex. L. Rev. 317, 321 (1991))

If a pragmatic jurisprudence is not a theory, as Posner claims, but merely a set of "methodological strictures," as Walt puts it, then if the "strictures are to be justifiably deemed pragmatic, they must be informative." Id. But the three essential elements of Posner's pragmatic jurisprudence - a general distrust of metaphysics and metaphysical entities, the demand that propositions be assessed by their consequences, and construing all jurisprudential projects as propositions about jurisprudential projects - lack enough specificity to be at all informative. Id. at 321-23. Stated a bit differently, Posner's pragmatic jurisprudence is more about what Posner believes are the problems of jurisprudence and less about what to do about them. The path to enlightenment, it would seem, is to recognize that there is no path.

"I find pragmatism bracing; others may find it paralyzing." (466) Paralyzing in the sense that it is self-admittedly still-born anti-theory-theory. It is a nicely refined skepticism that adds nothing constructive, let alone instructive. It lays waste to jurisprudence and leaves nothing in its wake. The minute one thinks one is close to a legal proposition one thinks is true, turn the other way, for it will be but another crazed illusion. Because I am one of those naïve "nostalgic-soaked" simpletons who believe in the wacky, obsolete methods of legal reasoning, concepts of justice, and the all-to-human correspondence theory of truth, I suppose that I fall into the latter category of folks who find Posner's anti-jurisprudence "paralyzing."

Rating:
Summary: The polymath, Richard Posner, strikes again!
Review: This book's analysis of the problems that confront judges when they decide cases is cogent, persuasive, and (without a dictionary) difficult to understand. However, if you can master the blended vocabulary of psychology, epistimology, and hermeneutics it is a brilliant tour de force that raises troubling questions about how to read foundational legal documents. A must read for legal scholars.-Kelly Whiting

Rating:
Summary: Pragmatism that's reasonable.
Review: What is law? How exactly do judges reason out it's kinks? Does it operate on presumtions of behaviourism or free-will? Why aren't lawyers or judges puzzled by these quandries? Posner seeks answers and ends up in a not-so-comforting place.

This book starts small and ends big. From epistemology (how we gain legal knowledge) through ontology up through his concluding 'Pragmatist Manifesto' the book is quite philosophical and this may be offputting to some in the legal profession. As usual though, Posner tackles his subjects in a clear, fast-paced and exciting way. The task that Posner sets for himself is to forge a place in legal theory (or lack of?) between two radical extremes: On one hand, there is the view that law is a completely isolated profession and legal reasoning is completely internal to it. The other sees law as a clever guise for politics- it's 'methods' being a subterfuge for the judge to justify her political views.

Through pragmatism, Posner sees both theories as gross exageration- the first, falsley denying law's susceptibility to outside non-legal techniques and the second's refusal to acknowledge the judiciary's independence from the legislature.

As Posner acknowledges in the intro, Posner's view here is middle of the road and to many, it will be boring. He doesn't take sides, rather he creates a side: that of legal pragmatism. No matter what your persuasion philosophtical, political or jurisprudential persuasion, there's nothing like a little Posner to get you thinking!!