The Problems of Jurisprudence by Richard A. Posner (original) (raw)
Reviewed by Raymond B. Marcin* Dust off those old copies of William James.' Pragmatism is "in." 2 Richard A. Posner's newest book, THE PROBLEMS OF JURISPRUDENCE, may well signal the vocabulary of Pragmatism as the lingua franca of jurisprudence in the 1990's. Those who are looking for a "unified field theory" to encompass all of the insights of the great jurisprudential movements of today will find something to chew on in Posner's new book. He does not announce such a theory; in fact, he all but discounts it in his treatment of literary, feminist, and criticalist jurisprudence. In his endorsement of philosophical pragmatism, however, he provides a vocabulary and a set of concepts that render communication among the various contemporary schools, especially the law-and-economics and so-called new-legal-process schools, possible and even efficient. There is a surprise or two in the book for doctrinaire law-and-economics disciples. Posner actually modifies some of his previously published views on wealth maximization, which he now sees as playing only a "limited role" in his theory. 3 Indeed, he spends a goodly portion of the book recasting the wealth-maximization approach to law in pragmatic terms. 4 In reading the * Judge of the United States Court of Appeals for the Seventh Circuit; Senior Lecturer, University of Chicago Law School.
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Reconstructing the Legacy of Pragmatist Jurisprudence
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In Law, Pragmatism and Democracy, Richard Posner wrestles with the ghost of John Dewey for the mantle of pragmatist jurisprudence. Most commentators have seen this work as pitting Posner against Dewey in a contest of pragmatisms, the stakes for which are no less than their respective legacies for legal and democratic theory. Some have sided with Posner and others with Dewey. I contend that the commentators have misidentified the target of Posner’s critique. Posner had another legal theorist in mind and he was disingenuous in naming Dewey. A careful reconstruction of Posner’s argument shows that Dewey’s pragmatism provides a genuine middle way between Posner’s position and that of his intended rival.
Posnerian law and economics on the bench
International Review of Law and Economics, 1984
has been one of the most productive and influential scholars working in the field of law and economics. Indeed, the prolific and wide ranging nature of his writings, the vigor with which he has advanced his particular approach and its supporting arguments, together with the absorbing quality of that approach, have in combination resulted in his having set the agenda for much of the scholarship-research and argument-during the last decade. l In fact, much of the work in the field of law and economics represents footnotes to and arguments over his approach and its many applications. Posner's approach to law and economics contains both a positive and a normative argument. In his positive writings, Posner argues that wealth maximization can be used to explain and describe the development and the evolution of the common law. Normatively, Posner argues that wealth maximization is a desirable, and feasible, principle for use in developing law and rights. In short, wealth maximization both is the explanation of law and rights and ought to be the basis for the development of law and rights. Such a summary perhaps states Posner's argument more baldly and less subtly than it warrants, but it does accord with his own characterization9 and it does represent what researchers in the field understand him basically to be saying.3 Although Posner's approach and specific arguments have been subjected to substantial and perhaps devastating criticism, it remains important, for reasons beyond the insights which it has provided to the particular areas of law on which he has written. Certainly Posner's work has underscored, perhaps with a vengeance and clearly with candor, the fact that both common and statute law have promoted the transformation of the legal foundations of the economy from a post-feudal to a capitalist or market economy, from one in which landed property (law, power and orientation) dominates to one in which nonlanded property dominates, and from one in which status unabashedly dominates to one in which contractual market relationships and transactions dominate (however much such may reflect and give effect to underlying power structures).4As such, legal institutions are not given immutably by nature but are themselves a response to economic needs and flexible in response to changes in those needs. Thus, law is neither absolute, nor exogenous, nor given, but a *Both authors acknowledge the assistance of Douglas Anderson and thank Professor Charles K. Rowley, Judge Richard A. Posner, and two anonymous reviewers for helpful comments.
Legal Philosophy in America (2008)
The Oxford Handbook of American Philosophy (Cheryl Misak, ed.), 2008
This article o ers an overview of the major areas and approaches where American theorists have o ered signi cant contributions to legal philosophy. The rst section discusses American legal realism; the second section looks brie y at the legal process school; the third section gives brief overviews of law and economics and the other post-realist critical theories; the fourth section summarizes the approach of Lon Fuller; the fth section examines the legal theory of Ronald Dworkin; and the fth section summarizes some signi cant American contributors to schools of thought that originated in Europe, as well as American contributions to the analysis of legal concepts and doctrinal areas. TO THE EXTENT that there is something distinctive about legal philosophy in America or by Americans (cf. Leiter 1997), it connects to a pragmatic or prescriptive focus, and a xation on judicial reasoning in general, and constitutional decision making in particular. However, American theorists have also made important contributions to analytical legal philosophy (if mostly thereby furthering projects begun in Britain or continental Europe). This chapter o ers an overview of the major areas and approaches where American theorists have o ered signi cant contributions to legal philosophy. Section I discusses American legal realism; section II looks brie y at the legal process school; section III gives brief overviews of law and economics and the other postrealist critical theories; section IV summarizes the approach of Lon Fuller; section V examines the legal theory of Ronald Dworkin; and section VI summarizes some signi cant American contributors to schools of thought that originated in Europe, as well as American contributions to the analysis of legal concepts and doctrinal areas.
Posnerian Jurisprudence and Economic Analysis of Law: The View from the Bench
University of Pennsylvania Law Review, 1985
Judge Richard A. Posner, of the United States Court of Appeals for the Seventh Circuit, is a renowned scholar in the field of law and economics. Since his appointment to the bench, on December 4, 1981, Judge Posner has had an opportunity to apply in his opinions some of the theories he has so forcefully propounded in his numerous books and articles.' Posner's innovative methodological approach has won him widespread fame and criticism and has made him a top contender for nomination to the Supreme Court during President Reagan's second term. 2 The simple yet powerful idea that drives Posner's theories is that economic 3 analysis is a valuable tool for understanding, interpreting, and creating law. An examination of Posner's judicial work affords an unprecedented opportunity to evaluate the usefulness of economic analysis in judicial decisionmaking. Posner's opinions demonstrate some of the strengths and limitations of the economic analysis of law as a jurisprudential methodology. More importantly, an examination of Posner's opinions reveals t B.A. 1982, Yale University; J.D. Candidate, Ph. D. Candidate (Economics),
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