Problems of Jurisprudence

by Richard A. Posner

In this book, one of our country's most distinguished scholar judges shares with us his vision of the law. For the past thousand years, the philosophy of law has been dominated by two rival doctrines. One contends that the law is more than politics and yields, in the hands of skillful judges, correct answers to even the most difficult legal questions; the other maintains that law is politics through and through and that judges wield essentially arbitrary powers.

Genres: Law, Philosophy, Politics, Nonfiction

Paperback

First published January 1, 1990

About the author

Richard 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.

Reviews

[Hayden Smith · Rating 5 out of 5]

Posner's best, hands down. Comprehensive, bracing, confessional.

[Jacob · Rating 5 out of 5]

This is not a chapter book with one cohesive argument throughout but a series of essays on jurisprudence. This is probably the best of the Posner anthologies out there and the essays cover Posner’s thoughts on everything from the issue of the textualist’a dogma where he excoriates formalism as superficial, to the analogy between law and science and where that analogy falls apart, to Aristotelian distributive justice, to CRT, to Posner’s positive and normative theories on economics’ place in law.

One of my favorite quotes from the book, and I quote from memory so it may not be verbatim, is “authority in law emanates from a politically accredited source rather than from individuals in whom society reposes and absolute epistemic trust. The trappings of judicial authority—the robes, the solemn rhetoric, the elaborate deference, and so forth—are clues to the nature of this authority. Another clue is the doctrine of precedence itself, which, in a sense, is just a refusal to correct error.” Posner went on to aptly diagnose law’s “feet of clay” problem. The entire book is the Bible on, well, the problems of jurisprudence!

In short, each essay in the book is about so hefty a topic that an entire book could’ve been written about it. Because they are essays, the analysis of the topics certainly could’ve been more rigorous. So, yes, the essays in the book are only a light treatment of these colossal topics. But it is not necessary to be heavy in order to have weight. This is a charmingly light book, with immense weight.