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.
