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

Choice

Posner...presents a brilliant defense of the manner in which Americans organize and operate their government...This book is to be read and reread if one is to understand the intricacies of American constitutional democracy.
— R. J. Steamer

Dissent

Posner is very convincing when he describes how the American political system actually works, how the federal courts actually function, and how public opinion and elections begin to play a role only when the political elites have made a mess of things. This book is one of his best—vigorously argued and written with wit and panache...He is a genuinely original thinker, as well as a prodigy of learning. Able to draw upon an amazingly broad range of reading, he resists stereotypes and allegiances, and goes his own way.
— Richard Rorty

New York Times Book Review
This elegant analysis of democratic theory, by a judge on the United States Court of Appeals for the Seventh Circuit in Chicago, argues for a legal pragmatism that pays greater attention to the consequences of what we do than to abstract principle.
International Journal of Constitutional Law

Judge Posner's book makes a valuable contribution to an expanded understanding of the tense yet mutually reinforcing interaction of law and democracy.
— Arthur Jacobson and John McCormack

Thomas Grey
Judge Posner offers a vigorous and extended contemporary elaboration of Churchill's aphorism that democracy is the worst form of government except for all the others. He surveys much recent literature on the subject, and as might be expected, he does not favor high-minded participatory and deliberative versions of democratic theory. But overall his is a much more robust defense of existing democratic institutions than has been usual in recent work by those who view politics from the perspective of economics and public choice theory. He also expands in an interesting way on the important pragmatic account of adjudication developed in his earlier writings. The book represents a provocative and readable stretch of the authors ongoing reflections on the intellectual scene: the economist/jurist/judge at the breakfast table.
Russell Hardin
This hook is sure to provoke attention to the topic of democratic theory. Among the book's many strengths are the discussions of pragmatism, philosophical and everyday; Dewey on democracy, experimentalism, and distributed intelligence; Schumpeter on democracy; John Marshall's greatness; Kelsen's legal theory and, to a lesser extent because it is a lesser theory, Hayek's legal theory; and the anti-trust theory of judicial decision on the democratic process. These seemingly disparate topics belong together so well that the book sustains reading straight through, as is seldom true of academic works.
Choice - R. J. Steamer
Posner...presents a brilliant defense of the manner in which Americans organize and operate their government...This book is to be read and reread if one is to understand the intricacies of American constitutional democracy.
Dissent - Richard Rorty
Posner is very convincing when he describes how the American political system actually works, how the federal courts actually function, and how public opinion and elections begin to play a role only when the political elites have made a mess of things. This book is one of his best--vigorously argued and written with wit and panache...He is a genuinely original thinker, as well as a prodigy of learning. Able to draw upon an amazingly broad range of reading, he resists stereotypes and allegiances, and goes his own way.
International Journal of Constitutional Law - Arthur Jacobson And John McCormack
Judge Posner's book makes a valuable contribution to an expanded understanding of the tense yet mutually reinforcing interaction of law and democracy.
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: 9780674018495
  • Publisher: Harvard University Press
  • Publication date: 10/28/2005
  • Edition description: New Edition
  • Edition number: 1
  • Pages: 416
  • Sales rank: 901,865
  • Product dimensions: 6.00 (w) x 9.00 (h) x 1.00 (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. Pragmatism: Philosophical versus Everyday

The Pragmatic Mood and the Rise of Philosophical Pragmatism

Orthodox versus Recusant Pragmatism

The Influence of Philosophical Pragmatism on Law Everyday Pragmatism

2. Legal Pragmatism

Some Principles of Pragmatic Adjudication

John Marshall as Pragmatist

The Objections to Legal Pragmatism Recapitulated

3. John Dewey on Democracy and Law

Deweyan Democracy: From Epistemic to Deliberative

Dewey's Concept of Political Democracy Evaluated

Dewey's Theory of Law

The Theory Extended

4. Two Concepts of Democracy

Concept 1 Democracy: Idealistic, Deliberative, Deweyan

Concept 2 Democracy: Elite, Pragmatic, Schumpeterian

American Democracy Today

Democracy and Condescension

5. Democracy Defended

The Two Concepts Evaluated

But Is the Well Poisoned?

Pragmatism and Convergence

An Economic Interpretation of Concept 2 Democracy

A Behavioralist Interpretation

But Is Concept 2 Democracy Legitimate?

6. The Concepts Applied

The Impeachment of President Clinton

The 2000 Election Deadlock

Judges on Democracy

Schumpeter, Antitrust, and the Law of Democracy

Of Human Nature

7. Kelsen versus Hayek: Pragmatism, Economics, and Democracy

Kelsen's Theory of Law

Kelsen, Pragmatism, and Economics

Kelsen Positivism Contrasted with the Positivist Theories of Hart and Easterbrook

Hayek Theory of Adjudication Hayek on Kelsen; Kelsen and Schumpeter

8. Legality and Necessity

Crisis Prevention as Pragmatic Adjudication

Lawyers' Hubris

Clinton v. Jones

9. Pragmatic Adjudication: The Case of Bush v. Gore

The Case

A Potential Crisis Averted

A Pragmatic Donnybrook

The Perils of Formalism

The Democratic Legitimacy of Pragmatic Adjudication Revisited

Coping with Indeterminacy

10. Purposes versus Consequences in First Amendment Analysis

The Pragmatic Approach to Free Speech

The "Purposivist" Critique of the Pragmatic Approach

Conclusion

Index

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