Law, Pragmatism, and Democracy

This elegant analysis of democratic theory, by a judge on the United States Court of Appeals for the Seventh Circuit in Chicago, argues for a legal pragmatism that pays greater attention to the consequences of what we do than to abstract principle. * New York Times Book Review * Posner is very convincing when he describes how the American political system actually works, how the federal courts actually function, and how public opinion and elections begin to play a role only when the political elites have made a mess of things. This book is one of his bestvigorously argued and written with wit and panache He is a genuinely original thinker, as well as a prodigy of learning. Able to draw upon an amazingly broad range of reading, he resists stereotypes and allegiances, and goes his own way. -- Richard Rorty * Dissent * Judge Posners book makes a valuable contribution to an expanded understanding of the tense yet mutually reinforcing interaction of law and democracy. -- Arthur Jacobson and John McCormack * International Journal of Constitutional Law * Posnerpresents a brilliant defense of the manner in which Americans organize and operate their government This book is to be read and reread if one is to understand the intricacies of American constitutional democracy. -- R. J. Steamer * Choice * Judge Posner offers a vigorous and extended contemporary elaboration of Churchills aphorism that democracy is the worst form of government except for all the others. He surveys much recent literature on the subject, and as might be expected, he does not favor high-minded participatory and deliberative versions of democratic theory. But overall his is a much more robust defense of existing democratic institutions than has been usual in recent work by those who view politics from the perspective of economics and public choice theory. He also expands in an interesting way on the important pragmatic account of adjudication developed in his earlier writings. The book represents a provocative and readable stretch of the authors ongoing reflections on the intellectual scene: the economist/jurist/judge at the breakfast table. -- Thomas Grey, Stanford Law School This book is sure to provoke attention to the topic of democratic theory. Among the books many strengths are the discussions of pragmatism, philosophical and everyday; Dewey on democracy, experimentalism, and distributed intelligence; Schumpeter on democracy; John Marshalls greatness; Kelsens legal theory and, to a lesser extent because it is a lesser theory, Hayeks legal theory; and the anti-trust theory of judicial decision on the democratic process. These seemingly disparate topics belong together so well that the book sustains reading straight through, as is seldom true of academic works. -- Russell Hardin, Stanford University

Richard A. Posner retired as a judge of the United States Court of Appeals for the Seventh Circuit in 2017. He was previously a senior lecturer at the University of Chicago Law School.

Preface Introduction: Pragmatic Liberalism and the Plan of the Book 1. Pragmatism: Philosophical versus Everyday The Pragmatic Mood and the Rise of Philosophical Pragmatism Orthodox versus Recusant Pragmatism The Influence of Philosophical Pragmatism on Law Everyday Pragmatism 2. Legal Pragmatism Some Principles of Pragmatic Adjudication John Marshall as Pragmatist The Objections to Legal Pragmatism Recapitulated 3. John Dewey on Democracy and Law Deweyan Democracy: From Epistemic to Deliberative Dewey's Concept of Political Democracy Evaluated Dewey's Theory of Law The Theory Extended 4. Two Concepts of Democracy Concept 1 Democracy: Idealistic, Deliberative, Deweyan Concept 2 Democracy: Elite, Pragmatic, Schumpeterian American Democracy Today Democracy and Condescension 5. Democracy Defended The Two Concepts Evaluated But Is the Well Poisoned? Pragmatism and Convergence An Economic Interpretation of Concept 2 Democracy A Behavioralist Interpretation But Is Concept 2 Democracy Legitimate? 6. The Concepts Applied The Impeachment of President Clinton The 2000 Election Deadlock Judges on Democracy Schumpeter, Antitrust, and the Law of Democracy Of Human Nature 7. Kelsen versus Hayek: Pragmatism, Economics, and Democracy Kelsen's Theory of Law Kelsen, Pragmatism, and Economics Kelsen Positivism Contrasted with the Positivist Theories of Hart and Easterbrook Hayek Theory of Adjudication Hayek on Kelsen; Kelsen and Schumpeter 8. Legality and Necessity Crisis Prevention as Pragmatic Adjudication Lawyers' Hubris Clinton v. Jones 9. Pragmatic Adjudication: The Case of Bush v. Gore The Case A Potential Crisis Averted A Pragmatic Donnybrook The Perils of Formalism The Democratic Legitimacy of Pragmatic Adjudication Revisited Coping with Indeterminacy 10. Purposes versus Consequences in First Amendment Analysis The Pragmatic Approach to Free Speech The "Purposivist" Critique of the Pragmatic Approach Conclusion Index