The Problems of Jurisprudence
Richard A. Posner
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In this book, one of our country's most distinguished scholar-judges shares with us his vision of the law. For the past two thousand years, the philosophy of law has been dominated by two rival doctrines. One contends that law is more than politics and yields, in the hands of skillful judges, correct answers to even the most difficult legal questions; the other contends that law is politics through and through and that judges wield essentially arbitrary powers. Rejecting these doctrines as too metaphysical in the first instance and too nihilistic in the second, Richard Posner argues for a pragmatic jurisprudence, one that eschews formalism in favor of the factual and the empirical. Laws, he argues, are not abstract, sacred entities, but socially determined goads for shaping behavior to conform with society's values.
Examining how judges go about making difficult decisions, Posner argues that they cannot rely on either logic or science, but must fall back on a grab bag of informal methods of reasoning that owe less than one might think to legal training and experience. Indeed, he reminds us, the greatest figures in American law have transcended the traditional conceptions of the lawyer's craft. Robert Jackson did not attend law school and Benjamin Cardozo left before getting a degree. Holmes was neither the most successful of lawyers nor the most lawyerly of judges. Citing these examples, Posner makes a plea for a law that frees itself from excessive insularity and takes all knowledge, practical and theoretical, as grist for its mill.
The pragmatism that Posner espouses implies looking at problems concretely, experimentally, without illusions, with an emphasis on keeping diverse paths of inquiry open, and, above all, with the insistence that social thought and action be evaluated as instruments to desired human goals rather than as ends in themselves. In making his arguments, he discusses notable figures in jurisprudence from Antigonc to Ronald Dworkin as well as recent movements ranging from law and economics to civic republicanism, and feminism to libertarianism. All are subjected to Posner's stringent analysis in a fresh and candid examination of some of the deepest problems presented by the enterprise of law.
ed. 1 987) . Are There Ri,!?ht Answers to Legal Questions? 203 a sense, be-objective, impersonal. 13 In just the same way, objective interpretation presupposes an interpretive community that is homogeneous. These conditions for objectivity do not exist in the American legal community today any more than they exist in its literary community. Reflecting larger fissures in society, the legal community is politically and culturally divided. Its heterogeneity, interacting with the predominance of
comparison with a plain-meaning approach that by completely ignoring the author's linguistic community puts itself at the mercy of semantic drift. We can begin to sense the variety of interpretive methods that compete for the law's attention. But more important to the quest for interpretive objectivity than flexing our taxonomic muscles is developing a sense of what kind of text a statute is. If we think it is like a work of literature, we might as well throw up our hands, because the
relying on the congressional grant or the government, which contended that the grant contains an implied exception? Here is a better-known example of an indeterminate statutory case. Kaiser Aluminum and Chemical Corporation owned a plant in Louisiana at which fewer than 2 percent of the skilled craftworkers were black, even though the work force in the area was almost 40 percent black. Kaiser agreed with the union representing the plant's skilled craftworkers to reserve for blacks half the
Utilitarianism, Economics, and Legal Theory," 30 id. at 307 ( 1980). For answers to some of the criticisms, see "Wealth Maximization Revisited," note 3 above; Lloyd Cohen, "A Justification of Social Wealth Maximization as a Rights-Based Ethical Theory," 10 Harvard Journal of Law and Public Policy 4 1 1 ( 1987); D. BruceJohnsen, "Wealth Is Value," 15 Journal of Legal Studies 263 ( 1 986). 24. "Almost all earnings advantages and disadvantages of ancestors are wiped out in three generations."
order to focus on one point. A rule suppresses potentially relevant circumstances of the dispute (could the injurer have avoided the accident at reasonable cost?), while a standard gives the trier of fact-the judge or jury-more discretion because there are more facts to find, weigh, and compare. The rule engenders tension with the social policies that underlie it and that may be achieved only imperfectly when the rule is applied without regard to the particular circumstances of the dispute.