Not So Cold an Eye: Richard Posner\u27s Pragmatism

Over the past twenty odd years, Judge Richard Posner has established himself as one of the most creative and influential thinkers in the history of American law. His work divides into two parts: the prejudicial corpus, which is devoted almost entirely to the comprehensive economic analysis of law,\u27 and the postjudicial corpus, which treats issues involving what may be called the theory of judging and courts--that is, the normative theory of how judges should decide cases and how courts should be organized. This division is rough and wavering, for Posner\u27s work prior to his appointment to the federal bench often dealt with topics relevant to the theory of judging,\u27 and his work in law and economics has continued since his appointment. But while such a water- color boundary may fail in cartography, my purpose here is not map making but rather map reading. The map, Judge Posner\u27s recent book The Problems of Jurisprudence, ostensibly covers terrain on the postjudicial side of my imperfect border. The book is a campaign for Pragmatism in the battle against competing general approaches to the theory of judging. And it is a campaign that succeeds brilliantly in demolishing much of the cant and piety in contemporary thinking about law. When Posner raises the flag and proclaims his Pragmatist Manifesto as a general approach to law and judging, however, it is but a partial proclamation, because he announces it from within the water-color boundary between scholar and judge, between explanation and justification, and between economic theory and judicial practice. The path to this ambiguous destination begins with Judge Posner listing at least a dozen fundamental jurisprudential questions such as What is law? and Where does law come from? \u27 Jurisprudence ad- dresses questions which Posner says are the sort that an intelligent layperson of speculative bent-not a lawyer-might think particularly interesting. Then, quite rapidly, he discards both the list and the perspective of the intelligent, speculative layperson. Posner picks a new point of view, the view of the enlightened judge, interested not only in deciding cases, but in contemplating how a judge may justify these decisions and his role. This is the judge robeless, not bench proud but library bound, eyes strained and burning to see himself impartially. And from this coign of vantage, the long list of old jurisprudential questions is reduced to three very contemporary queries going to the heart of the judge\u27s vision of himself: [W]hether, in what sense, and to what extent the law is a source of objective and determinate, rather than merely personal or political, answers to contentious questions