Justice Posner makes many strong arguments, and his critique of opposing views is often devastating. Unfortunately, he is less convincing when it comes to defending the central theses of this book: its theories of pragmatism, democracy and judicial control. Posner`s version of pragmatism is both too narrow and too broad. Its exaggerated narrowness lies in the fact that Posner did not understand that the pragmatic soundness of an action cannot be evaluated without first determining whether the results it achieves are normatively desirable. This last judgment cannot itself be purely pragmatic, but requires a kind of normative theory of the objective. On the other hand, Posner`s pragmatism is also too broad, as it is not clear whether considerations can be excluded from its scope. A theory that includes everything ultimately proves nothing. Finally, Posner`s argument that judicial decision-making should be based on his theories of pragmatism and democracy suffers from the limitations of these theories themselves. It also has other shortcomings, including the likely inability of judges to implement these theories. As Posner himself partially acknowledges, judges can often serve democracy better if they remain within the bounds of formalism. Posner insists that policymakers and legal decision-makers be guided by what he calls “everyday pragmatism” rather than “abstract” moral considerations (chaps. 1-2).

He combines this conception of pragmatic government with an unromantic theory of democracy that rejects the more sophisticated and idealistic views currently held by many political theorists and jurists. In contrast to “deliberative democracy” and other theories that require a high degree of altruistic political engagement on the part of citizens, Posner follows Joseph Schumpeter (1950) in defending a theory of democracy that is limited to “a competing power struggle between members of a political elite. for the electoral support of the masses” (130). He further argues that judicial review should be based on a combination of pragmatism and adherence to his limited conception of democracy, rather than on “formalistic” theories of jurisprudence that require strict adherence to constitutional text, precedents or the “original intent” of the authors (chaps. 6-10). Richard Posner`s Law, Pragmatism, and Democracy (2003) is the most comprehensive account to date of his pragmatic view of law and democracy. For the most part, Posner`s theory of pragmatism has been attacked from the outside, mainly by theorists who do not sympathize with pragmatism. In contrast, in this review, we challenge Posner`s representation of pragmatism of the pragmatic tradition. We argue that Posner`s views are problematic not because they are pragmatic, but because they are often not pragmatic enough.

We tested Posner`s representation of pragmatism by examining its implications. Posner sees ideals as useless and philosophical theories as empty. However, in the absence of a meaningful approach to examining social goals, pragmatism becomes an exercise in efficiency – the search for appropriate means to achieve our predetermined goals. Posner`s report has little to say about the choice of ends. As a result, his attack on abstract ideals becomes a confirmation of these ideals, since he leaves the dominant moral ideals of contemporary society unreconstructed. On the other hand, we return to the idea of classical pragmatists (notably John Dewey) to offer an alternative vision of pragmatism. This report better integrates theory and practice and provides more meaningful guidance for the choice of objectives. Although Posner adopts many of the ideas of the classical pragmatists, he resolutely departs from each other, which leads to internal contradictions with his own pragmatic obligations and ultimately uses non-pragmatic forms of argumentation. Posner is in this position because the pragmatic ideas on which he bases his theory have far stronger and more revolutionary implications than Posner is willing to consider. After presenting his account of pragmatism, Posner attacks theories of deliberative democracy as unpragmatic.

According to Posner, the pragmatist acknowledges that it is too unrealistic and idealistic to expect meaningful political dialogue from most Americans. Instead, Posner advocates a concept of democracy based on the ideas of Joseph Schumpeter: democracy should consist of a group of elite managers whose goal is to find the most effective ways to achieve our inherited goals. We argue that Posner`s narrative of democracy is not at all pragmatic – not even on his own terms. Since people are not encouraged to strive to form a community based on shared ideals, society`s dominant normative ideals are arbitrarily allowed to drift. Posner considers that the balance that results from individuals pursuing their own private interests is sufficient to generate the broader social ethic. We assert that this conclusion is profoundly flawed. Moreover, we show that some central features of deliberative democracy are by no means non-pragmatic, but are in fact closely related to pragmatic research. Justice Richard Posner, who unexpectedly announced his resignation on Friday, is the most influential judge in decades. He is also perhaps the greatest jurist of his time. Among other things, he is one of the founding pioneers of law and economics.

I doubt we will soon see another titan ranking so high in the legal and academic worlds at the same time. In fact, we may never will. The increasing specialization of the legal profession makes it almost impossible to repeat Posner`s extraordinary feat. Posner`s model of democracy is also seriously flawed. While he is certainly right when he asserts that Schumpeterian democracy is a superior alternative to the unrealistic visions of deliberative democrats, he is all too quick to conclude that it is the best version currently available. Posner`s defense of Schumpeter does not sufficiently take into account the shortcomings revealed in recent research in political science and economics. As a result, Posner fails to adequately refute the possibility that Schumpeterian democracy could function better if the powers of democratic legislators were reduced much more than he deems desirable. And I wholeheartedly support his advocacy for the abolition of the Blue Book – the hyper-complicated citation system used by most law journals: Justice Richard Posner Law`s recent book, Pragmatism, and Democracy is an important contribution to the ongoing debate about the best conception of democracy and the role of judicial review in it. Daniel J. Solove & Michael Sullivan, Can Pragmatism Be Radical? Richard Posner and Legal Pragmatism, 113 Yale L.J. 687 (2003). Can pragmatism be radical? Richard Posner und der juristische Pragmatismus.

A liberal state is a representative democracy constrained by the rule of law. Richard Posner argues for a liberal conception of the state based on pragmatic theories of government. He sees the actions of elected officials as guided by interests rather than reason, and judges` decisions as a discretionary power rather than rules. It focuses on institutional and material rather than moral and deliberative factors of democratic decision-making. As Justice Posner leaves the bench, he plans to continue his academic work and contributions to public debate. The rest of us will continue to benefit from his many ideas. In time, he might even finally convince law journal publishers to see the light and burn the blue book! In a statement announcing his resignation, Justice Posner wrote that he was “proud to have promoted a pragmatic approach to judgment during my tenure on the Court and to have had the opportunity to apply my view that judicial opinions should be easy to understand and that judges should always focus on what is right and wrong.” I fully agree with Justice Posner that legal advice should, to the extent possible, be “easy to understand.” On the other hand, I am more skeptical about his pragmatic approach to judicial decision-making. In this review of Posner`s important 2004 book Law, Pragmatism, and Democracy, I have laid out some of my reservations. Here`s part of the summary: Download the free Kindle app and instantly read Kindle books on your smartphone, tablet, or computer — no Kindle device required.