Law, Pragmatism, and Democracy

Law, Pragmatism, and Democracy
The Honorable Richard A. Posner | 2003-03-31 00:00:00 | Harvard University Press | 416 | Law
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.
Reviews
Lawyers maneuver by mastering both legal formalism and responsible pragmatic analysis. Richard A. Posner uses BUSH v. GORE as an example of pragmatic adjudication. The Court's action headed off a crisis of presidential succession. Reasonableness, best consequences may be used as a standard to evaluate judicial decisions pragmatically.



Consequentialism cannot be a synonym for legal pragmatism. Judicial discretion to weigh consequence is demarcated by Constitutional and statutory provisions. Legal pragmatists engage in a critical use of history. Legal pragmatism is not ad hoc adjudication. It should not be confused with legal positivism for reason the pragmatist does not recognize a boundary between applying and creating law. Legal Realism, identified with the New Deal, and Critical Legal Studies, identified with sixties'-style radicalism, are not the same as legal pragmatism. The most influential judges have been pragmatists. John Dewey felt legal reasoning was like all practical reasoning. Dewey and Holmes displayed intellectual kinship.



Schumpeter and Hans Kelsen emphasized the discrepancy between the rhetoric and the actuality of democracy. The author was surprised to learn the Kelsen's theory of law left the way open to the interposing of economic concerns. Kelsen's theory is not so much Kantian as having the attributes of logical positivism. Kelsen defines law as a normative system backed by a credible threat.



There is tension between democracy and judicial review. The Constitution is a mix of the democratic with the oligarchic and authoritarian strains. Judge Posner's useful analytic tool is his two concept theory of democracy--the first being deliberative democracy and the second he names elite, Schumpterian, democracy. Throughout much of the book he shows the oscillation between the two concepts in governmental practice.



It is to be regretted that the opinions in GORE v. BUSH did not cite the pragmatic benefit of ending the deadlock. Posner's book's themes is an argument for approaching law and politics from the perspective of a kind of everyday pragmatism. It is excellent and enlightening.
Reviews
The first few chapters are pretty dense and Posner writes unnecassarily complicated sentences. He begins by writing how so many people talk about democracy; that this is good for democracy or that is good for democracy, but no one ever defines democracy when talking about it or are inconsistent. He essentially breaks it down to two, rather broad concepts: creatively called Concept I and Concept II.



Concept I democrats, Posner claims, regard democracy in a purely abstract sense- rule of the people, by the people, for the people, with some severe and very undemocratic ideas of governance. For example, there are many things that should be legal or illegal, no matter how for or against something the general public is. Also, Concept I democrats have an unwarranted confidence in the knowledge and disinterestedness of public officials, especially, those not democratically elected (judges, for example). The most defining characteristic of Concept I democrats is the their utopian leanings, meaning they strive for a perfect society and government- that principles should be clung tightly too, regardless of the outcome.



Concept II democrats have no such illusions and accept American democracy and the people in it as they are. As such, they accept, and encourage, many things Concept I democrats find evil. For example, the fifth amendment, taken to its logical conclusion, means that no one could be forced to be finger-printed, or to give a blood sample. However, this would make law enforcement and prosecution too hard, so these things have been ruled as not in violation of the fifth amendment. Posner gives many other examples. Basically, Concept II democrats hold democratic principles dearly, but are realistic about applying these principles in real world situations.



The last couple of chapters held my interest the most. Here Posner focuses on two cases, Clinton v. Jones, and Gore v. Bush. He focuses more on Gore v. Bush. He thinks the ruling of Clinton v. Jones was unpragmatic, that the case should have waited till Clinton's presidency ended because of the very real possibility that the case would be too distracting for Clinton to effectively run the government.



He thinks the ruling in Gore v. Bush to be an excellent example of pragmatic adjudication. Since the election was so close, it didn't matter which candidate became president, in terms of democracy. Since, at the time of the ruling, Bush had more votes, he became president. He regards the putting off of the smooth succession of the president, possibly beyond Jan. 21, in the name of "every vote counts" to endanger society. He claims a smooth succession of the president is more important than taking the time to count every vote, creating very serious problems in the interum.
Reviews
This book is about the 'pragmatic' concept of democracy and the law in it; aobut 3/4 of the book is spent on the former, 1/4, the latter subject. Posner believes that 'democracy' has been misconstrued by many academics (my, how he scorns academics) and many left liberals, to whom 'democracy' means that everyone shall take an interest in politics, everyone shall vigorously deliberate with friends and neighbors and everyone will vote with an informed and semi-altruistic ("common good") mind. To Posner, this is an impossible utopia.

Posner, and I agree with him, would rather "democracy" stand for a system where we vote for leaders so that they, not we, can take the interest in politics. Part of Posners point lies in highlighting that deliberative democracy (the kind outlined in the preceeding paragraph as opposed to his concept of pragmatic democracy)is prevelant amongst activists and academics precisely because they, being interested in political issues, find it easy to convince themselves that everyone else must be too. They are also more likely to associate with others that have similar intersts, helping to reinforce the belief. Posner's pragmatic democracy is defended against deliberative democracy from a variety of angles (winner take all or proportional representation, how far should free speech be taken, FEC regulations, majoritarianism or countermajoritarianism, state v. federal, etc.) Keep in mind that Posner is not arguing that we should not strive to increase peoples participation in politics, but that assuming everyone to be capable, intersted and responsible enough to live up to deliberative ideals is a goal just short of giving society a 100% makeover.

The second bit of the book is on law and the pragmatic concept: that is, law as an extension of practical reasoning, not legal reasoning, of which Posner argues there is no such concrete thing. Judges, while reccomended to stick to law if it it's instruction is undeniably clear, should look at difficult cases (where a clause may not have direct application or is simply ambiguous) as, in a sense, creating law where it did not exist before. All of this, he couches in the over-broad argument of reasoning from likely consequences. Why does this not, per se, lead him to out-and-out judicial activism? Becuase a few of the consequnces of such activism are loss of continuity if a clauses application is excessively changed, loss of judicial credibility, and decrease in peoples ability to follow law as they read it to apply. The average person, Posner suggests, should be able to predict how the judge will rule. All of this he applies to two cases in particular: Bush v. Gore and Clinton's impeachment (which due to Posner's tendency to wander into unrelated topics, he never quite gets around to). Unfortunately, this section can be skipped if you've read both Posner's "The Problems of Jurisprudence" (see my review) and his two books on Bush v. Gore and the Clinton impeachment.

Still there are some problems. The book being on the two subjects of pragmatic philosophy and pragmatic law, he never ties the two together. Maybe he assumed the connection was self evident but the one does not follow from the other. Also, Posner's polymathic tendency to wander from tangent to tangent sometimes in the space of a few pages, was more noticeable in this book then others. Especially the chapter on Kelsen v. Hayek on law stuck out as irrelevant. Another strange example is that Posner's first broaching of Bush v. Gore led to a lengthy digression on third parties and proportional representation that, while stimulating, was never tied back to Bush v. Gore as the chapter simply ends. Third fault: we've read many of these ideas before in Posners other books (which I strongly reccomend in addition to this one). This one is just a bit more in depth about what is meant by pragmatic law and democracy.

In conclusion, this book is still spectacular, engaging and exemplary of Posner's intense and sparkling wit. I did not deduct any stars from the three above faults because had those faults not been present, this book may have had 7 stars (if that were only possible!) Like many others, I disagree with much of Posner (preferring a textualism closer to Scalia) but have to admit that without this guy, law might be a bit more dull!!

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