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The Problems of Jurisprudence / Edition 1

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Overview

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.

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Editorial Reviews

New York Times Book Review

Richard Posner is one of the nation's most influential thinkers...He spearheaded the law and economics movement that has, in the eyes of many, revolutionized the entire legal enterprise...The bulk of his book consists of close analyses...and crucial discussions...all of which are bolstered by an impressive array of references to the rich literature of contemporary law, philosophy, science and jurisprudence.
— Calvin Woodward

Christian Science Monitor

[Posner's] book will challenge everyone. All sides will likely draw upon the work, even as they differ with it and among themselves...[It is an] extraordinarily wide-ranging, intellectually stimulating book.
— Robert A. Katzmann

Chicago Tribune

As one reads through this remarkable book, Posner's vision of law slowly builds to a climax that...is awesome...[He] tackles all the basic problems of legal thought and of moral and political philosophy since the time of Plato and Aristotle [and] enables us to see the richly textured fabric of our legal system in a more coherent manner than has anyone else.
— Stephen B. Presser

Philadelphia Inquirer

In short, sophisticated legal types should certainly read Posner to learn that he now argues for "pragmatic jurisprudence" and "reasonable" answers in law against absolute "right answers"...Layman should read Posner for a more vital reason. Because a nation supposedly ruled by law, not men, should be literate enough in jurisprudence to tell the difference.
— Carlin Romano

Public Interest

It's hard to be in the presence of Richard Posner, or his writings, without learning. He says, in his book, many wise things about the ways of judges, and I am persuaded that, in his commentary on judges and their handling of several important issues in our polities, he has it, cannily, right ...If Posner could be elevated, by magic, to the Supreme Court, without the hazards of the confirmation process, that institution would no doubt become a more interesting, charged place.
— Hadley Arkes

New York Times Book Review - Calvin Woodward
Richard Posner is one of the nation's most influential thinkers...He spearheaded the law and economics movement that has, in the eyes of many, revolutionized the entire legal enterprise...The bulk of his book consists of close analyses...and crucial discussions...all of which are bolstered by an impressive array of references to the rich literature of contemporary law, philosophy, science and jurisprudence.
Christian Science Monitor - Robert A. Katzmann
[Posner's] book will challenge everyone. All sides will likely draw upon the work, even as they differ with it and among themselves...[It is an] extraordinarily wide-ranging, intellectually stimulating book.
Chicago Tribune - Stephen B. Presser
As one reads through this remarkable book, Posner's vision of law slowly builds to a climax that...is awesome...[He] tackles all the basic problems of legal thought and of moral and political philosophy since the time of Plato and Aristotle [and] enables us to see the richly textured fabric of our legal system in a more coherent manner than has anyone else.
Philadelphia Inquirer - Carlin Romano
In short, sophisticated legal types should certainly read Posner to learn that he now argues for "pragmatic jurisprudence" and "reasonable" answers in law against absolute "right answers"...Layman should read Posner for a more vital reason. Because a nation supposedly ruled by law, not men, should be literate enough in jurisprudence to tell the difference.
Public Interest - Hadley Arkes
It's hard to be in the presence of Richard Posner, or his writings, without learning. He says, in his book, many wise things about the ways of judges, and I am persuaded that, in his commentary on judges and their handling of several important issues in our polities, he has it, cannily, right ...If Posner could be elevated, by magic, to the Supreme Court, without the hazards of the confirmation process, that institution would no doubt become a more interesting, charged place.
Chicago Tribune
As one reads through this remarkable book, Posner's vision of law slowly builds to a climax that...is awesome...[He] tackles all the basic problems of legal thought and of moral and political philosophy since the time of Plato and Aristotle [and] enables us to see the richly textured fabric of our legal system in a more coherent manner than has anyone else.
— Stephen B. Presser
Philadelphia Inquirer
In short, sophisticated legal types should certainly read Posner to learn that he now argues for "pragmatic jurisprudence" and "reasonable" answers in law against absolute "right answers"...Layman should read Posner for a more vital reason. Because a nation supposedly ruled by law, not men, should be literate enough in jurisprudence to tell the difference.
— Carlin Romano
New York Times Book Review
Richard Posner is one of the nation's most influential thinkers...He spearheaded the law and economics movement that has, in the eyes of many, revolutionized the entire legal enterprise...The bulk of his book consists of close analyses...and crucial discussions...all of which are bolstered by an impressive array of references to the rich literature of contemporary law, philosophy, science and jurisprudence.
— Calvin Woodward
Christian Science Monitor
[Posner's] book will challenge everyone. All sides will likely draw upon the work, even as they differ with it and among themselves...[It is an] extraordinarily wide-ranging, intellectually stimulating book.
— Robert A. Katzmann
Public Interest
It's hard to be in the presence of Richard Posner, or his writings, without learning. He says, in his book, many wise things about the ways of judges, and I am persuaded that, in his commentary on judges and their handling of several important issues in our polities, he has it, cannily, right ...If Posner could be elevated, by magic, to the Supreme Court, without the hazards of the confirmation process, that institution would no doubt become a more interesting, charged place.
— Hadley Arkes
Booknews
Judge Posner of the US Court of Appeals presents his vision of the law and argues for a pragmatic jurisprudence, one that eschews formalism in favor of the factual and empirical. He examines how judges go about making decisions and shows how they rely not on either logic or science but on a grab bag of informal methods that owe less than one might think to legal training and experience. Annotation c. Book News, Inc., Portland, OR (booknews.com)
Lief Carter
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.
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Product Details

  • ISBN-13: 9780674708761
  • Publisher: Harvard University Press
  • Publication date: 3/7/2007
  • Edition description: Reprint
  • Edition number: 1
  • Pages: 512
  • Sales rank: 1,436,882
  • Product dimensions: 7.50 (w) x 9.25 (h) x 1.01 (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: The Birth of Law and the Rise of Jurisprudence


The Origins of Law and Jurisprudence


A Short History of Jurisprudence


A Preview of the Book

PART I. THE EPISTEMOLOGY OF LAW


1. Law as Logic, Rules, and Science


The Syllogism and Other Methods of Logic


Rules, Standards, and Discretion


Scientific Observation

2. Legal Reasoning as Practical Reasoning


What Is Practical Reason?


Authority


Reasoning by Analogy


A Note on Legal Education

3. Other Illustrations of Practical Reasoning in Law


Interpretation


Means-End Rationality


Tacit Knowing


Submitting to the Test of Time

4. Legitimacy in Adjudication


The Problem of Rational Prejudgment


Consensus


Policy versus Pedigree as Warrants for Judicial Action


How Are Judges' Visions Changed?


Critical Legal Studies

PART II. THE ONTOLOGY OF LAW


5.

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