Vol. 1, Number 2 (April 1991) pp. 39-42
THE PROBLEMS OF JURISPRUDENCE by Richard Posner. Cambridge:
Harvard University Press, 1990. 485 pp. Cloth
Reviewed by Lief Carter, Department of Political Science,
University of Georgia.
The year 1990 may, in some hypothetical retrospective essay
evaluating jurisprudence in the 20th century, mark the final
rejection, at least in thoughtful circles, of determinist,
foundational, and objective jurisprudential theories. In normal
thoughtful circles, e.g., baseball fans, George Will's MEN AT
WORK (Macmillan, 1990) delivered a decisive blow when he wrote of
the designated hitter issue in major league baseball:
I have tried to think through the DH controversy in the light
of political philosophy, the queen of moral disciplines and
the profoundest guide to the right way to live. I have gotten
nowhere. Or to be more precise, I have gotten two places--to
opposite conclusions. (pp. 57-58).
In abnormal thoughtful circles, e.g., the academy, Richard
Posner's PROBLEMS may accomplish the same goal. In both cases
writers whose conservatism, intelligence, and integrity we do not
doubt point thoughtfully to the emperor's nakedness. By way of
Voltaire's comment on Christianity, Posner alludes to the
objectivist concept of law as "a ferocious beast."
(p.33) His analysis of the failure of legal reasoning to generate
best preference solutions to legal problems agrees in nearly all
respects with the now standard arguments of critical legal
scholars. He disagrees with critical scholars only about what to
do instead, i.e., about political matters. Political scientists
in utilitarian moods might conclude that this result is good for
business.
I have such strong reactions to this book that in fairness I
should reveal them before describing it further. First and
foremost, it is a fine book. Those who appreciate a catholic
mind, a rich integration of diverse sources, and a lucid writing
style may, if they have any serious interest in conventional
legal theory, find the book hard to put down. Graduate students
who long latently to look to law instead of politics for answers
to social problems and a defense of liberal values will never
suffer that malady again. And professors, including myself, who
don't mind being reminded of all the significant primary
literature and the delightfully apt illustrative cases they have
missed altogether will find in Posner a treasure of provocative
material to track down.
Second, the fact that sitting judges can and do write books like
this has important political implications. If the role and the
ideology that Posner models, which are at heart a very sensible
pragmatism close to George Will's philosophy of baseball,
symptomize actual judicial practice, that is worth knowing.
Posner's judicial opinions and his books and articles are
stylistically and substantively very similar. See for example his
pragmatic opinion in the copyright case HAYS V. SONY CORPORATION
OF AMERICA, 847 F.2d 412 (1988), which includes this paragraph:
Page 40 follows
At argument Sony tried to distinguish between the manual and what
college and university teachers write on the ground that the
manual is "boring," insignificant, and in short
unworthy of legal protection. In making this argument Sony's
counsel either betrayed a lack of familiarity with academic
writing or was exhibiting an exaggerated deference for members of
this panel. (p. 417)
The panel also included former academic Frank Easterbrook. And if
Posner's approach is atypical but "catches on" with
antediluvian judges, that's significant, too. Indeed I strongly
suspect Posner, who here describes his position as "boringly
centrist" (p.32), imagined an audience of judges, not
scholars, as he wrote this book, which brings me to my final
strong reaction.
Virtually all the ideas in this book, which Posner presents as
his conclusions after hard thought on the matter, are in fact
cliches and have been cliches for twenty years or more. Scholars
who have done any significant amount of digging in twentieth
century legal theory will quickly find themselves muttering under
their breath things like "Julius Stone said that in
1964," or even "I read that in the first edition of
Carter's legal reasoning book for a non-professional audience in
the 70s." In other words, there are many excellent reasons
for reading this book, but learning new theories or approaches to
the problems of jurisprudence is not one of them. Only Burke,
Edmund, not Burke Kenneth, appears in the index. Posner, who has
advocated a utilitarian approach to law and public policy, has
written a captivating book whose many satisfactions derive from
everything except its scholarly utility.
The first of the book's five parts covers "the epistemology
of law." In it we learn that the syllogism and other methods
of formal legal reasoning are overrated. Posner has discovered
that Holmes was right. We learn that legal reasoning is practical
reasoning. There is no serious flirtation here with the
possibility that the epistemology of law might include such
phenomena as lawyer-client conversations, or the transformation
of law from a profession to a business, and thus diverge
seriously from, or be substantially broader than, the
epistemology of appellate court reasoning in hard cases.
In the second part, "the ontology of law," Posner gives
his most fertile supply of sources that legal theorists do not
automatically encounter. It is an elegant encyclopedia article
that integrates philosophies of science and of mind from Hume to
Quine with standard theories of behavioral psychology and the
legal realist literature. We learn that we must be skeptical
about our chances of finding right answers in either law or fact.
Parts three and four deal conventionally with the conventional
problems of legal theory, e.g., indeterminacy in statutory
interpretation and the failures of distributive and positive
theories of substantive justice. The concluding part presents
Posner's "pragmatist manifesto," which boils down to:
Page 41 follows
...looking at problems concretely, experimentally, without
illusions, with full awareness of the limitations of human
reason, with a sense of the "localness" of human
knowledge,
the difficulty of translations between cultures, the
unattainability of "truth, " the consequent importance
of
keeping diverse paths of inquiry open, the dependence of
inquiry on culture and social institutions, and above all the
insistence that social thought and action be evaluated as
instruments to valued human goals rather than ends in
themselves (p. 465).
For reasons he does not adequately defend, Posner claims his
pragmatism substantially differs from that of Richard Rorty,
which Posner condemns as "romantic. "
Though for experienced scholars in the field the book has no
utility, I wish I could recommend it on aesthetic grounds
unconditionally. But if we define aesthetic success as fitting
together the various parts of a subject coherently within a
frame, a careful reader will find a few too many misfits to feel
completely satisfied . For example, Posner at one points defines
analogic reasoning as "[t]he heart of legal reasoning as
conceived by most modern lawyers" (p. 86), yet a few pages
later Posner's law schools teach something like the
opposite--"a language rather than a method of reasoning: a
culture, a vocabulary, a set of representative texts and
problems" (p. 99 and see p. 110). The two positions can be
reconciled, but most of this book defeats an army of straw men,
led by analogic reasoning, and Posner comes close to admitting as
much when he describes, quite accurately, how pragmatic legal
education and legal judgment already are. (See, for example, his
approving comments on BOLLING V. SHARPE, pp. 144- 146).
Readers will also detect an epistemological bumpiness. Most of
the time Posner delights us with an attention to detail that
appeals in just the way great mysteries and well-constructed
crossword puzzles delight. Posner shows us how to find God in the
details without nitpicking. He cannot, for example, let Joseph
Isenbergh's phrase "it is easy enough to understand a
judge's temptation to cut through, rather than unravel, the
Gordian knot" pass without gently pointing out that
"The Gordian knot couldn't be untied--it had to be cut
...." (p . 58n). But occasionally he lapses into the
epistemology of the muffled snort. I have chosen four
illustrations and comment on the first two:
1. On page 79, contrasting scientific and judicial analytical
methods, Posner argues that even when judges agree, "their
decisions have much less intrinsic persuasiveness than unanimous
scientific judgments have, because judges ' methods of inquiry
are so much feebler than scientists' methods." (See also p.
117.) But, I want to snort back something about apples and
oranges: The scientists' methods do not seek to do justice and
decide the fates of litigants. The tasks of scientists and judges
differ, and their audiences and cultures accept different norms
and languages of persuasiveness.
Page 42 follows
2. On pages 81-82, Posner writes that "To give up, in the
face of anomalies, Marbury v. Madison...would not cause the same
epistemic wrench as giving up the proposition that 2 + 2 = 4 or
that all men are mortal." To which I react, re the first
part, that 2 + 2 = 10 with no epistemic wrench in base 4, and, re
the second, that the point raises interesting theological and
cryogenic
3. "This is equivalent to saying that the earth really is
round today but a century from now we may know better -- quite a
confused statement." (p. 114)
4. "But Nietzsche's expose of the origins of Christianity
may be the closest parallel to what Holmes did to law, even
though their attitude toward their subject matter was different
(and the two were even more different in tone, Nietzsche being a
most irresponsible writer)" (p. 240).
In short, while Posner is a judicial centrist, he occupies the
far right philosophically. He makes no serious effort to overcome
all the obvious objections to his positions raised by
Wittgenstein and Heidegger on to the present day. Posner does not
acknowledge that man does not merely use language to perform
certain behaviors. He believes that by practical reason men can
behave well in a world that consists, for Posner, of a manageably
small cluster of objective social phenomena. It would have
converted this fine book into a great book if Posner had
addressed head-on why judges must pretend that the world is this
way in the face of the overwhelming data that show it isn't.
So Posner leaves us with a fine irony. His book in nearly all
ways beautifully illustrates the truth of what it takes pains to
ignore: We use words and other forms of performance to
demonstrate our virtue and trustworthiness to one another quite
apart from the decisions and choices we make. Posner's integrity
radiates from this book, which of all its themes teaches virtue
best.
Copyright 1991