Law, Pragmatism, and Democracy / Edition 1

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Overview

A liberal state is a representative democracy constrained by the rule of law. Richard Posner argues for a conception of the liberal state based on pragmatic theories of government. He views the actions of elected officials as guided by interests rather than by reason and the decisions of judges by discretion rather than by rules. He emphasizes the institutional and material, rather than moral and deliberative, factors in democratic decision making.

Posner argues that democracy is best viewed as a competition for power by means of regular elections. Citizens should not be expected to play a significant role in making complex public policy regarding, say, taxes or missile defense. The great advantage of democracy is not that it is the rule of the wise or the good but that it enables stability and orderly succession in government and limits the tendency of rulers to enrich or empower themselves to the disadvantage of the public. Posner's theory steers between political theorists' concept of deliberative democracy on the left and economists' public-choice theory on the right. It makes a significant contribution to the theory of democracy—and to the theory of law as well, by showing that the principles that inform Schumpeterian democratic theory also inform the theory and practice of adjudication. The book argues for law and democracy as twin halves of a pragmatic theory of American government.

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Editorial Reviews

The New York Times
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
The Washington Post
Both Posners are on display in Law, Pragmatism and Democracy. The two of him scorn "philosophical pragmatism" — the exhilarating theory of truth as derived from practical consequences — and advocate "everyday pragmatism," analysis that is "practical and business-like, 'no-nonsense,' disdainful of abstract theory and intellectual pretension, contemptuous of moralizers and utopian dreamers." The aim is a jurisprudence that is result-oriented in a large sense — one that explicitly balances social costs and advantages while granting only limited deference to precedent and "legislative intent." — Garrett Epps
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Product Details

  • ISBN-13: 9780674010819
  • Publisher: Harvard University Press
  • Publication date: 3/31/2003
  • Edition description: New Edition
  • Edition number: 1
  • Pages: 416
  • Product dimensions: 6.42 (w) x 9.46 (h) x 1.39 (d)

Meet the Author

Richard A. Posner is Circuit Judge, the United States Court of Appeals for the Seventh Circuit, and a senior lecturer at the University of Chicago Law School.

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Table of Contents

Preface
Introduction: Pragmatic Liberalism and the Plan of the Book 1
1 Pragmatism: Philosophical versus Everyday 24
2 Legal Pragmatism 57
3 John Dewey on Democracy and Law 97
4 Two Concepts of Democracy 130
5 Democracy Defended 158
6 The Concepts Applied 213
7 Kelsen versus Hayek: Pragmatism, Economics, and Democracy 250
8 Legality and Necessity 292
9 Pragmatic Adjudication: The Case of Bush v. Gore 322
10 Purposes versus Consequences in First Amendment Analysis 357
Conclusion 384
Index 388
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