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Title: Law, Pragmatism, and Democracy : by Richard A. Posner ISBN: 0674010817 Publisher: Harvard Univ Pr Pub. Date: March, 2003 Format: Hardcover Volumes: 1 List Price(USD): $35.00 |
Average Customer Rating: 4.5
Rating: 4
Summary: Scolarly and insightful but sketchy
Comment: Richard A. Posner is an insightful and forethinking patriot. This book as others he has written, without being condescending, do promote a great deal of deep thinking and questioning by a reader. He has great credibility as a writer and is an established legal scholar but his strict interpretations although thought provoking don't reconcile with reality.
I understood him to say that law makers and jurists are now so defensive and overreactive to public thinking that they miss the structure that they were meant to use to enforce and make law. I could be wrong but I found myself shaking my head and disagreeing as I read the book. His opinions are weakly connected and overwrought with stiffly constructed sentences that create a subtle metaphor for his opinions.
The law is suppose to be somewhat dynamic and flexible. This is not to say that the law should be construed without any literal interpretation of codes but without some flex there is no reality. We use precedent to interpret our laws and that's a strict interpretation of Constitutional Law. I also agree that the laws of a land of Constitutional Law are meant to be somewhat predictable which is exactly why we don't have a Napoleonic Civil Code. We have to flex though to adapt to varying degrees of current social tenor that give us room for mitigating or extenuating circumstances.
Our judicial system is based upon a concept of two sides being heard and then rendering closure on a dispute.
Democracy accords a great deal of responsibility to average citizens. Any lawyer who has been before a jury recognizes the fallibility of the system but jurors do rise to occasions and do the right thing. I agree that never will all of the citizens be actively interested in taking their responsiblity to heart but without those resounding voices from the bleachers the elected officials would have no thermometer from which to navigate their leadership.
There has to be cooperation and dialogue for democracy to work and obviously it does. Our country still rises from every pothole it hits because the dialogue remains open and our people are inspired to have their voices heard. So although I found the book to be a great discussion on history and legislative and judicial processes I found the conclusions to be without authenticity.
Rating: 5
Summary: Another brain-stunner from Judge Posner!!
Comment: 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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Title: Skepticism and Freedom: A Modern Case for Classical Liberalism (Studies in Law and Economics) by Richard A. Epstein ISBN: 0226213048 Publisher: University of Chicago Press Pub. Date: June, 2003 List Price(USD): $39.00 |
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Title: The Future of Freedom: Illiberal Democracy at Home and Abroad by Fareed Zakaria ISBN: 0393047644 Publisher: W.W. Norton & Company Pub. Date: April, 2003 List Price(USD): $24.95 |
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Title: Risk and Reason : Safety, Law, and the Environment by Cass R. Sunstein ISBN: 0521791995 Publisher: Cambridge University Press Pub. Date: October, 2002 List Price(USD): $30.00 |
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Title: Frontiers of Legal Theory by Richard A. Posner ISBN: 067400485X Publisher: Harvard Univ Pr Pub. Date: June, 2001 List Price(USD): $39.95 |
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Title: Of Paradise and Power: America and Europe in the New World Order by Robert Kagan ISBN: 1400040930 Publisher: Knopf Pub. Date: 28 January, 2003 List Price(USD): $18.00 |
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