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Law, Pragmatism, and Democracy
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.
416 pages, Hardcover
First published March 31, 2003
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About the author
Richard A. Posner
129 books181 followersRichard Posner is Senior Lecturer in Law at the University of Chicago Law School.
Following his graduation from Harvard Law School, Judge Posner clerked for Justice William J. Brennan Jr. From 1963 to 1965, he was assistant to Commissioner Philip Elman of the Federal Trade Commission. For the next two years he was assistant to the solicitor general of the United States. Prior to going to Stanford Law School in 1968 as Associate Professor, Judge Posner served as general counsel of the President's Task Force on Communications Policy. He first came to the Law School in 1969, and was Lee and Brena Freeman Professor of Law prior to his appointment in 1981 as a judge of the U.S. Court of Appeals for the Seventh Circuit, where he presided until his retirement on September 2, 2017. He was the chief judge of the court from 1993 to 2000.
Judge Posner has written a number of books, including Economic Analysis of Law (7th ed., 2007), The Economics of Justice (1981), Law and Literature (3rd ed. 2009), The Problems of Jurisprudence (1990), Cardozo: A Study in Reputation (1990), The Essential Holmes (1992), Sex and Reason (1992), Overcoming Law (1995), The Federal Courts: Challenge and Reform (1996), Law and Legal Theory in England and America (1996), The Problematics of Moral and Legal Theory (1999), Antitrust Law (2d ed. 2001), Law, Pragmatism, and Democracy (2003), Catastrophe: Risk and Response (2004), Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11 (2005), How Judges Think (2008), and A Failure of Capitalism: The Crisis of '08 and the Descent into Depression (2009), as well as books on the Clinton impeachment and Bush v. Gore, and many articles in legal and economic journals and book reviews in the popular press. He has taught administrative law, antitrust, economic analysis of law, history of legal thought, conflict of laws, regulated industries, law and literature, the legislative process, family law, primitive law, torts, civil procedure, evidence, health law and economics, law and science, and jurisprudence. He was the founding editor of the Journal of Legal Studies and (with Orley Ashenfelter) the American Law and Economics Review. He is an Honorary Bencher of the Inner Temple and a corresponding fellow of the British Academy, and he was the President of the American Law and Economics Association from 1995 to 1996 and the honorary President of the Bentham Club of University College, London, for 1998. He has received a number of awards, including the Thomas Jefferson Memorial Foundation Award in Law from the University of Virginia in 1994, the Marshall-Wythe Medallion from the College of William and Mary in 1998, the 2003 Research Award from the Fellows of the American Bar Foundation, also in 2003 the John Sherman Award from the U.S. Department of Justice, the Learned Hand Medal for Exellence in Federal Jurisprudence from the Federal bar Council in 2005, and, also in 2005, the Thomas C. Schelling Award from the John F. Kennedy School of Government at Harvard University.
Following his graduation from Harvard Law School, Judge Posner clerked for Justice William J. Brennan Jr. From 1963 to 1965, he was assistant to Commissioner Philip Elman of the Federal Trade Commission. For the next two years he was assistant to the solicitor general of the United States. Prior to going to Stanford Law School in 1968 as Associate Professor, Judge Posner served as general counsel of the President's Task Force on Communications Policy. He first came to the Law School in 1969, and was Lee and Brena Freeman Professor of Law prior to his appointment in 1981 as a judge of the U.S. Court of Appeals for the Seventh Circuit, where he presided until his retirement on September 2, 2017. He was the chief judge of the court from 1993 to 2000.
Judge Posner has written a number of books, including Economic Analysis of Law (7th ed., 2007), The Economics of Justice (1981), Law and Literature (3rd ed. 2009), The Problems of Jurisprudence (1990), Cardozo: A Study in Reputation (1990), The Essential Holmes (1992), Sex and Reason (1992), Overcoming Law (1995), The Federal Courts: Challenge and Reform (1996), Law and Legal Theory in England and America (1996), The Problematics of Moral and Legal Theory (1999), Antitrust Law (2d ed. 2001), Law, Pragmatism, and Democracy (2003), Catastrophe: Risk and Response (2004), Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11 (2005), How Judges Think (2008), and A Failure of Capitalism: The Crisis of '08 and the Descent into Depression (2009), as well as books on the Clinton impeachment and Bush v. Gore, and many articles in legal and economic journals and book reviews in the popular press. He has taught administrative law, antitrust, economic analysis of law, history of legal thought, conflict of laws, regulated industries, law and literature, the legislative process, family law, primitive law, torts, civil procedure, evidence, health law and economics, law and science, and jurisprudence. He was the founding editor of the Journal of Legal Studies and (with Orley Ashenfelter) the American Law and Economics Review. He is an Honorary Bencher of the Inner Temple and a corresponding fellow of the British Academy, and he was the President of the American Law and Economics Association from 1995 to 1996 and the honorary President of the Bentham Club of University College, London, for 1998. He has received a number of awards, including the Thomas Jefferson Memorial Foundation Award in Law from the University of Virginia in 1994, the Marshall-Wythe Medallion from the College of William and Mary in 1998, the 2003 Research Award from the Fellows of the American Bar Foundation, also in 2003 the John Sherman Award from the U.S. Department of Justice, the Learned Hand Medal for Exellence in Federal Jurisprudence from the Federal bar Council in 2005, and, also in 2005, the Thomas C. Schelling Award from the John F. Kennedy School of Government at Harvard University.
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Displaying 1 - 5 of 5 reviews
July 10, 2008
What I learned from this book: Fuck literalism, fuck the living constitution! Judges make shit up!
December 22, 2024
Posner has touched the heart of the American psyche with this book. He convincingly describes exactly the flavor of American democracy and draws from the ideas of a smattering of great philosophers from Joseph Schumpeter to Hans Kelsen and Frederick Hayek, to John Dewey to expound a type of pragmatism that not only gives a positive theory of American democracy—as interest-based and efficient rather than value-based and idealistic—but also a normative theory of how laws should be interpreted and how the American political machinery should operate.
The main point of the book is really a union of Deweyan and Shumpeterian philosophies—the best way to embody the distributed intelligence of the people is not to attempt derivation from well-trained experts, but to let it emerge through intellectual natural selection by trusting the private interests of self-interested voters, by acknowledging that the contours of constitutional rights are shaped by the judicial hand rather than the original text of the constitution and are thus malleable to changing and exigent circumstances, and by assuring a dynamic antitrust rather than a static one in politics focusing not on diverse political competitors but instead on facilitating progress by eliminating political entrenchment and ensuring one political monopoly can always wrest power over its predecessor.
This quote from the book sums it up well: “knowledge is not produced mechanically by the repeated application of algorithmic procedures by expert investigators all trained the same way. It is produced by the tug of communal demands, the struggle between doubt and habit, the striving of individuals of diverse background, aptitude, training, and experience, the application of methods of inquiry, such as imagination and intuition, that owe little to expert training.”
The main point of the book is really a union of Deweyan and Shumpeterian philosophies—the best way to embody the distributed intelligence of the people is not to attempt derivation from well-trained experts, but to let it emerge through intellectual natural selection by trusting the private interests of self-interested voters, by acknowledging that the contours of constitutional rights are shaped by the judicial hand rather than the original text of the constitution and are thus malleable to changing and exigent circumstances, and by assuring a dynamic antitrust rather than a static one in politics focusing not on diverse political competitors but instead on facilitating progress by eliminating political entrenchment and ensuring one political monopoly can always wrest power over its predecessor.
This quote from the book sums it up well: “knowledge is not produced mechanically by the repeated application of algorithmic procedures by expert investigators all trained the same way. It is produced by the tug of communal demands, the struggle between doubt and habit, the striving of individuals of diverse background, aptitude, training, and experience, the application of methods of inquiry, such as imagination and intuition, that owe little to expert training.”
June 25, 2013
This is an interesting exposition and defense of Posner's "legal pragmatism", which is
(1)modeled after Schumpeter's democratic theory, and
(2)is taken to be closer to what he calls 'everyday pragmatism' than 'philosophical pragmatism'
Posner attacks two schools of democratic theory - deliberative democracy and social choice theory - and numerous branches of legal theory, most notably legal formalism. I won't try to recreate the argument, and will instead quickly note (for my benefit, to be honest) five sticking points that either left me confused or in disagreement with Posner.
1)his treatment of deliberative democracy (DD) is insufficient in at least two ways. First, he only attacks a particular type of DD, ignoring the very important branch that is associated with people like Dryzek and I.M. Young. This book came out in 2003, but it reads like it really came out a few years earlier. Second, his strategy of arguing that the DD proponents are inconsistent in terms of their practical loyalties fails. The strategy has several steps. First, he argues that DD either entirely or largely (it's not clear which) comprise what he calls "concept 1" democratic thought. This type of thought is idealistic, sees politics as a transformative process, and aims at achieving some sort of greater good. It is contrasted with his Schumpeterian "concept 2" vision, which is largely but not entirely faithful to Schumpeter's thought. The second step is to say concept 1 proponents end up either being inconsistent or being committed to positions that they would want to avoid. The problem is that whether he intends it to be the case or not, the people he describe in his second step could plausibly be type 1 without being proponents of DD. Actually, it's hard to see why adherence to type 1 would necessarily imply a pro-DD position. Plus, as I mentioned, there are multiple branches of DD, and it's not clear that being pro-DD entails being type 1
2)he repeatedly says that pragmatism is not utilitarianism, but I wasn't clear on why. Two of the reasons he gives amount to: (a)pragmatism is fine with truncating the search for "good outcomes" - it's fine with applying rules of thumb, etc., (b)pragmatism is sensitive to things such as the moral indignation of people, and is committed to taking such things into account when weighing the desirability of a possible solution. My reaction was that I just didn't understand why this doesn't just amount to a sophisticated version of rule utilitarianism. At least some rule utilitarians are fine with using rules of thumb, etc., because doing so is judged to be conducive to promoting utility. If Posner's pragmatism is okay with using rules of thumb, on what other grounds does it do so? It really just seems to amount to utility. What's more, utilitarians would also take into account things such as moral indignation when determining the desirability of a position. I guess that some would not - these rule utilitarians might be committed to living by a complete set of rules that would best promote utility, and this set might reject taking into account certain sensibilities. Yet I think other rule utilitarians would be fine with taking the world as it is and applying their utilitarian analysis piecemeal. These utilitarians would likely be the ones to take gut-level "yay" or "ugh!" reactions into account
3)his pragmatism seems to lead to some odd conclusions. For instance, he things that neo-Nazis in the US should have reasonably extensive freedom of speech rights in part because the likelihood of causing harm is quite low. Those advocating political assassination or jihad against the US may, for corresponding reasons, have fewer freedom of speech rights. The basic idea is sensible: yelling "fire" in a crowded theater is very likely to bring about harm, so it's not allowed, etc. But it still seems really weird to imply that the rights a group has is a function of how zany it is. To the extent that I am saying something incredibly zany - and thus unlikely to be taken seriously - I am afforded latitude? This intuitively seems like an irrelevant criterion. To push this further: let's say that I am saying offensive but zany things for years, and I eventually become more popular. Does this mean that I now have less of a right to say these zany things? There is nothing inconsistent with answering this with a "yes", but, again, it seems odd. Even weirder: assuming that all this comes to pass, but the group becomes even more popular, it would hit a threshold whereby Posner's pragmatism would warrant giving my zany group more freedom of speech, since a refusal to do so would be problematic on pragmatic grounds. Again, there is nothing inconsistent with any of this, but it seems odd
4)Despite Posner's argument that Americans understand that the judiciary is at heart pragmatist in orientation, Posner's defense of rhetoric seems parasitic on a widespread belief that judges are formalist. Judges use high-minded rhetoric - which is substantively empty - because it works, and they should be applauded for doing so. But if we were certain that judges were pragmatists, it's not clear why we wouldn't just discount all "concept 1" rhetoric as cheap talk. Posner points at a couple of reasons why rhetoric may persist despite this objection, but he's really unconvincing here
5)Posner asserts that J.S. Mill's On Liberty is a pragmatic, or at least proto-pragmatic, text that is totally disconnected from his views in Utilitarianism. I disagree with the latter part of this assertion, and was disappointed to see that Posner offers no evidence whatsoever for this surprising contention. So far as I can tell, he does not even include a footnote.
It's likely that at least one of these "problems" is really just due to my misreading or misunderstanding him, but for better or for worse, they are issues that came up in my reading. There were others, but this review is already too long, so I'll end here.
(1)modeled after Schumpeter's democratic theory, and
(2)is taken to be closer to what he calls 'everyday pragmatism' than 'philosophical pragmatism'
Posner attacks two schools of democratic theory - deliberative democracy and social choice theory - and numerous branches of legal theory, most notably legal formalism. I won't try to recreate the argument, and will instead quickly note (for my benefit, to be honest) five sticking points that either left me confused or in disagreement with Posner.
1)his treatment of deliberative democracy (DD) is insufficient in at least two ways. First, he only attacks a particular type of DD, ignoring the very important branch that is associated with people like Dryzek and I.M. Young. This book came out in 2003, but it reads like it really came out a few years earlier. Second, his strategy of arguing that the DD proponents are inconsistent in terms of their practical loyalties fails. The strategy has several steps. First, he argues that DD either entirely or largely (it's not clear which) comprise what he calls "concept 1" democratic thought. This type of thought is idealistic, sees politics as a transformative process, and aims at achieving some sort of greater good. It is contrasted with his Schumpeterian "concept 2" vision, which is largely but not entirely faithful to Schumpeter's thought. The second step is to say concept 1 proponents end up either being inconsistent or being committed to positions that they would want to avoid. The problem is that whether he intends it to be the case or not, the people he describe in his second step could plausibly be type 1 without being proponents of DD. Actually, it's hard to see why adherence to type 1 would necessarily imply a pro-DD position. Plus, as I mentioned, there are multiple branches of DD, and it's not clear that being pro-DD entails being type 1
2)he repeatedly says that pragmatism is not utilitarianism, but I wasn't clear on why. Two of the reasons he gives amount to: (a)pragmatism is fine with truncating the search for "good outcomes" - it's fine with applying rules of thumb, etc., (b)pragmatism is sensitive to things such as the moral indignation of people, and is committed to taking such things into account when weighing the desirability of a possible solution. My reaction was that I just didn't understand why this doesn't just amount to a sophisticated version of rule utilitarianism. At least some rule utilitarians are fine with using rules of thumb, etc., because doing so is judged to be conducive to promoting utility. If Posner's pragmatism is okay with using rules of thumb, on what other grounds does it do so? It really just seems to amount to utility. What's more, utilitarians would also take into account things such as moral indignation when determining the desirability of a position. I guess that some would not - these rule utilitarians might be committed to living by a complete set of rules that would best promote utility, and this set might reject taking into account certain sensibilities. Yet I think other rule utilitarians would be fine with taking the world as it is and applying their utilitarian analysis piecemeal. These utilitarians would likely be the ones to take gut-level "yay" or "ugh!" reactions into account
3)his pragmatism seems to lead to some odd conclusions. For instance, he things that neo-Nazis in the US should have reasonably extensive freedom of speech rights in part because the likelihood of causing harm is quite low. Those advocating political assassination or jihad against the US may, for corresponding reasons, have fewer freedom of speech rights. The basic idea is sensible: yelling "fire" in a crowded theater is very likely to bring about harm, so it's not allowed, etc. But it still seems really weird to imply that the rights a group has is a function of how zany it is. To the extent that I am saying something incredibly zany - and thus unlikely to be taken seriously - I am afforded latitude? This intuitively seems like an irrelevant criterion. To push this further: let's say that I am saying offensive but zany things for years, and I eventually become more popular. Does this mean that I now have less of a right to say these zany things? There is nothing inconsistent with answering this with a "yes", but, again, it seems odd. Even weirder: assuming that all this comes to pass, but the group becomes even more popular, it would hit a threshold whereby Posner's pragmatism would warrant giving my zany group more freedom of speech, since a refusal to do so would be problematic on pragmatic grounds. Again, there is nothing inconsistent with any of this, but it seems odd
4)Despite Posner's argument that Americans understand that the judiciary is at heart pragmatist in orientation, Posner's defense of rhetoric seems parasitic on a widespread belief that judges are formalist. Judges use high-minded rhetoric - which is substantively empty - because it works, and they should be applauded for doing so. But if we were certain that judges were pragmatists, it's not clear why we wouldn't just discount all "concept 1" rhetoric as cheap talk. Posner points at a couple of reasons why rhetoric may persist despite this objection, but he's really unconvincing here
5)Posner asserts that J.S. Mill's On Liberty is a pragmatic, or at least proto-pragmatic, text that is totally disconnected from his views in Utilitarianism. I disagree with the latter part of this assertion, and was disappointed to see that Posner offers no evidence whatsoever for this surprising contention. So far as I can tell, he does not even include a footnote.
It's likely that at least one of these "problems" is really just due to my misreading or misunderstanding him, but for better or for worse, they are issues that came up in my reading. There were others, but this review is already too long, so I'll end here.
April 17, 2025
This is one of those rare books that you read and are shocked you ever thought you had a semblance of a comprehensive worldview beforehand. I don't agree with everything Posner says (I suspect he would've changed his tune on campaign finance reform if this book were written after Citizens United v. FEC) but his thoughts about law and democracy, together with his prescriptive philosophy on both, makes this an incredibly worthwhile read.
November 3, 2007
Posner outlines the radical middle. Worth 4 1/2 stars. Check out the blog he writes with Paul Becker.
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