1. Pragmatism: Philosophical versus everyday. 2. Legal pragmatism. 3. John Dewey on Democracy and law. 4. Two concepts of democracy. 5. Democracy defended. 6. The concepts applied.

Posner characterizes the current preoccupation with moral and constitutional theory as an evasion of the real need of American law, which is for a greater understanding of the social, economic, and political facts out of which great legal controversies arise, and advocates a rebuilding of the law on the basis of systematic empirical inquiry.

In this book, he applies economic theory to four areas of interest to students of social and legal institutions: the theory of justice, primitive and ancient ...

In this book, one of our country's most distinguished scholar-judges shares with us his vision of the law.

In lieu of an abstract, here is a brief excerpt of the content:Against Ethical CriticismRichard A. PosnerOscar Wilde famously remarked that “there is no such thing as a moral or an immoral book. Books are well written, or badly written. That is all.” He was echoed by Auden, who said in his poem in memory of William Butler Yeats that poetry makes nothing happen (though the poem as a whole qualifies this overstatement), by Croce, and by formalist critics such as (...) Cleanth Brooks, a doyen of the New Critics, who insisted that edification was the function of religion but not of poetry. 1 George Orwell, though himself a didactic novelist, was of this view as well, 2 and it is one that most critics adopt when the issue is censorship. I accept Wilde’s thesis—the creed of aestheticism, of art for art’s sake—if understood to mean that the moral content and consequences of a work of literature are irrelevant to its value as literature; or as the critic Helen Vendler has put it, that “treating fictions as moral pep-pills or moral emetics is repugnant to anyone who realizes the complex psychological and moral motives of a work of art.” 3 This is not to deny that reading can have consequences, including moral and political ones. Information affects people’s outlook and behavior, and reading is a source of information. Imaginative literature conveys ideas, opinions, and information, often with great power. Think of the role that novels by Turgenev (Fathers and Sons), Dostoevsky (The Possessed), Conrad (The Secret Agent, Under Western Eyes), Koestler (Darkness at Noon), Orwell (Animal Farm, Nineteen Eighty-Four), and, of course, Solzhenitsyn played in exposing the horrors of anarchism and communism. Of A Passage to India it has been said that “as an account of the social conditions of British India it was powerful enough to have influenced events.” 4 Upton Sinclair’s novel The Jungle is thought to have incited federal regulation of food processing; and few doubt the effect of Uncle Tom’s Cabin (1852) on the abolitionist cause. [End Page 1]At the core of the aesthetic tradition, which I shall be defending in this essay particularly against its opponents in the “law and literature” movement, are three theses. First, immersion in literature does not make us better citizens or better people. One might be able to pick out some works of literature that would have such an effect because of the information they convey or the emotional state they induce, but they would constitute a skewed sample of literary works. Second, we should not be put off by morally offensive views encountered in literature even when the author appears to share them. A work of literature is not to be considered maimed or even marred by expressing unacceptable moral views; by the same token, a mediocre work of literature is not redeemed by expressing moral views of which we approve. The proper criteria for evaluating literature are aesthetic rather than ethical. Third, authors’ moral qualities or opinions should not affect our valuations of their works.The insistence, in short, is on the separation of the moral from the aesthetic—but with two qualifications. Some literature has little interest or value apart from the didactic and for it the proper criticism is didactic. And the separation of moral from aesthetic values is not a rejection of the former. The aesthetic outlook is a moral outlook, one that stresses the values of openness, detachment, hedonism, curiosity, tolerance, the cultivation of the self, and the preservation of a private sphere—in short, the values of liberal individualism.The counter tradition in literary criticism to the aesthetic originates with Plato and insists upon the importance, in some versions to the near or even total exclusion of anything else, of the ethical or political content and effects of works of literature, and less commonly of the author’s own morality. Martha Nussbaum, for example, deems Greek tragedies and Anglo-American realistic novels a part of moral philosophy. 5 Reading novels, she argues, “develops moral capacities without which citizens will not succeed in making reality out of the normative conclusions of any moral or political theory, however excellent.” 6 Wayne Booth, disagreeing with his illustrious... (shrink)

This essay describes modern American legal pragmatism. Its origins in pragmatist philosophy are traced, and it is compared with the law and economics movement in American law and the formalist style of Continental legal theory. The essay argues that the inevitability of legal pragmatism in America, and its dispensability in Europe, reflect fundamental institutional and cultural differences rather than mere accidents of history or legal thought.

Throughout, the book is unified by Posner's distinctive stance, which is pragmatist in philosophy, economic in methodology, and liberal (in the sense of John ...

Abstract While pragmatism cannot resolve deep normative disagreements, it can, as a technique of judicial reasoning, at once resolve satisfactorily the majority of cases that do not involve such disagreements, while protecting democracy from overweening judicial assertiveness.

In this book, which consists of a revised version of the first Clarendon Law Lectures delivered in October 1995, Judge Posner attempts a comparative analysis of the English and American legal systems. The perspective is different from that of other works which have attempted the same kind of comparative study for two reasons: first because the author is a judge; and second because he is perhaps the best-known and most influential proponent of the idea that the social sciences, and (...) in particular economics, should inform both the study and the administration of the law. The essays contained in this volume reflect the judge's deep learning and exemplify the value of comparative study as a means of identifying trends, ideas and connections which may be immediately apparent from the study of a single system of law. (shrink)

The correct solution to complex problems, such as those involved in international relations, can generally be discovered ex post but not predicted ex ante. Economics and game theory attempt to model such complexity, but have difficulty taking into account psychological subtleties, the myriad factors that each agent considers when making a decision, and cultural differences. And understanding that one is dealing with a system—that is, with interacting factors instead of with insulated monads—may not make the questions any more amenable to (...) prediction, particularly because the more unique an event, the less likely it is to be foreseen. Jervis's analysis of complex systems may therefore be more of a contribution to the historical sciences than to predictive social science. (shrink)

The training and experience of such academic philosophers as Richard Rorty and Hilary Putnam do not equip them with the economic and other social‐scientific tools necessary to make useful contributions to political discussion. In the case of Rorty, this has resulted in his being unable to make effective ripostes to left‐wing critics of his defense of “bourgeois liberalism,” his uncritical endorsement of simplistic arguments for social reform, and his embrace of false prophecies of doom, such as those found in (...) Orwell's novel Nineteen Eighty‐Four. Moreover, his disdain for “theory” has blinded him to the utility of mid‐level theories, such as those of economics, in dealing with concrete social problems. (shrink)

The book carries on Posner's project of analyzing the law as an institution of social governance.

Orwell's novel Nineteen Eighty-Four and Huxley's novel Brave New World have often been thought prophetic commentaries on economic, political, and social matters. I argue, with particular reference to the supposed applicability of these novels to issues of technology and privacy, that the novels are best understood as literary works of art, rather than as social science or commentary, and that when so viewed Orwell's novel in particular reflects a dissatisfaction with everyday life and a nostalgia for Romantic values.

The long‐awaited second volume of Morton Horwitz's history of American legal thought covers the period 1870 to 1960. The focus is on academic law. Horwitz's thesis is that every generation rebels against the existing conceptual structure of law, but then establishes its own equally formalistic structure to replace it. The cycle can be broken only if the essentially political character of law is faced up to squarely. Unfortunately, Horwitz has attempted to reduce a century of American legal history to an (...) academic debate over formalism, which, in turn, he reduces to the personal idiosyncrasies of some of the participants. However, the book also contains a valuable, close‐grained intellectual history of the legal profession's struggle to adapt legal categories to changed social and economic conditions. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Decline of Literary CriticismRichard A. PosnerRónán McDonald, a lecturer in literature at the University of Reading, has written a short, engaging book the theme of which is evident from the title: The Death of the Critic. Although there is plenty of both academic and journalistic writing about literature, less and less is well described by the term "literary criticism." The literary critics of the first two-thirds or so (...) of the twentieth century, now dead, including poets and other creative writers, such as T. S. Eliot, journalists such as Edmund Wilson, and academic literary critics, as distinct from literary scholars, such as F. R. Leavis in England and Cleanth Brooks in the United States, have so few successors that the very genre, if not yet dead, is moribund.1 McDonald deplores the decline of literary criticism and seeks to explain its causes.In place of literary criticism, McDonald (and many others, such as John Ellis) argue, we have postmodern literary theory, an animal of quite a different color from literary criticism.2 "Texts... are interpreted and analysed with a view to unlocking the social norms and attitudes encoded therein, not assessed or evaluated as integral, self-contained creations" (McDonald, p. 21). "The 'best' [is regarded] as a politically dubious category, with selections made in its name often nurturing hidden and hierarchical agendas"(p. ix). "In a comparatively short time, [End Page 385] academic literary criticism has been transformed. Many [literary critics] now regard social activism as the major purpose of literary criticism." And "people who write about literature now write in a prose thick with impenetrable jargon," which erects a barrier between literary theory and literature.3 The well documented decline in the reading of literature has many causes but one may be the obscurantist and politicized style of teaching literature that is in vogue in many colleges.4But something deeper is involved. After all, most literary teachers are not postmodernists. What has happened is the professionalization, in not altogether a good sense, of literary studies. Let me illustrate. More than half a century ago, Cleanth Brooks published what became a famous book of literary criticism, consisting of close readings of famous poems.5 The New Critics were much taken with the metaphysical poets, the most prominent of whom was John Donne, and the high point of Brooks's book was his brilliant close reading of "Canonization," one of Donne's most famous love poems. Just this year (2008) a professor of literature named Ramie Targoff published John Donne, Soul and Body, which has an extensive treatment of Donne's love poetry, though it does not mention "Canonization." As far as I can judge, Targoff's book is a fine scholarly achievement—well written (and not defaced by jargon), thoroughly researched, thoughtful, imaginative. She argues that contrary to some scholars who have regarded Donne as a Neoplatonist who therefore believed that the highest love is purely spiritual (as it was for Plato), he was, throughout his career—even when he became a fiercely devout Anglican cleric writing fervid religious verse—a believer that body and soul were one in all activities, including sexual love; hence the religious imagery in "Canonization," emphasized by Cleanth Brooks, who would I think have found Targoff's analysis congenial. Her book is I would guess a model of modern literary scholarship.But here is the difference between Brooks's book, and specifically his discussion of Donne's poem, and Targoff's. Brooks, who though a distinguished Yale English professor did not have a Ph.D., wrote for a mixed audience—academics, students, the general reader—and he made the nonacademic members of that audience want to read Donne, or read more Donne, or re-read Donne with greater understanding and enjoyment. Targoff writes for other scholars of early modern English literature. Someone else who chances on the book (like me) may read it and think well of it, but unless one has esoteric religious or philosophical interests the experience of reading her book will not quicken one's [End Page 386] interest in reading Donne's poetry—which is a great shame, given the state of the literary culture... (shrink)

Some people hate themselves. But if I say, “I hate myself,” who is this “I” that stands apart from “myself”? And notice how in the expression “I am not myself today,” the “I” and “myself” change places. Now it is “myself” who is the authentic, the authoritative, the judgmental “I,” and it is “I” who is the self that is judged and found wanting. Some people talk to themselves; when they do, who is speaking and who is listening?

The law and economics movement is the principal interdisciplinary field of legal studies. This paper traces the history of the movement and explains its basic principles, contrasts the version of the movement that predominates in the United States with the version that prevails in Europe, noting the greater emphasis of the former on substantive doctrine and of the latter on rule of law considerations, and emphasizes the importance of the movement for legal and economic reform in developing nations.

Do the rich descriptions and narrative shapings of literature provide a valuable resource for readers, writers, philosophers, and everyday people to imagine and confront the ultimate questions of life? Do the human activities of storytelling and complex moral decision-making have a deep connection? What are the moral responsibilities of the artist, critic, and reader? What can religious perspectives—from Catholic to Protestant to Mormon—contribute to literary criticism? Thirty well known contributors reflect on these questions, including iterary theorists Marshall Gregory, James Phelan, (...) and Wayne Booth; philosophers Martha Nussbaum, Richard Hart, and Nina Rosenstand; and authors John Updike, Charles Johnson, Flannery O'Connor, and Bernard Malamud. Divided into four sections, with introductory matter and questions for discussion, this accessible anthology represents the most crucial work today exploring the interdisciplinary connections between literature, religion and philosophy. (shrink)

A current focus of legal debate is the proper role of the courts in the interpretation of statutes and the Constitution. Are judges to look solely to the naked language of an enactment, then logically deduce its application in simple syllogistic fashion, as legal formalists had purported to do? Or may the inquiry into meaning be informed by perhaps unbridled and unaccountable judicial notions of public policy, using legal realism to best promote the general welfare? Judge Posner considers the (...) concepts of formalism and realism to be meaningful and useful in common law reasoning but in interpretation to be useless and, worse, forbidden. He analogizes unclear "orders" from a legislature to garbled battlefield communications, and argues that the duty of the recipient of those orders (the judge) is to advance as best he can the enterprise set on foot by the superiors. Case studies elaborate this thesis. Judicial decisions interpreting fixed texts, Judge Posner concludes, can be neither logically correct or incorrect, philosophically sound or unsound, until the ultimate jurist, time, has adjudged their results. (shrink)

Cost-benefit analysis is a widely used governmental evaluation tool, though academics remain skeptical. This volume gathers prominent contributors from law, economics, and philosophy for discussion of cost-benefit analysis, specifically its moral foundations, applications and limitations. This new scholarly debate includes not only economists, but also contributors from philosophy, cognitive psychology, legal studies, and public policy who can further illuminate the justification and moral implications of this method and specify alternative measures. These articles originally appeared in the Journal of Legal Studies. (...) Contributors: - Matthew D. Adler - Gary S. Becker - John Broome - Robert H. Frank - Robert W. Hahn - Lewis A. Kornhauser - Martha C. Nussbaum - Eric A. Posner - Richard A. Posner - Henry S. Richardson - Amartya Sen - Cass R. Sunstein - W. Kip Viscusi. (shrink)

(2001). Just Being a Lawyer: Reflections on the Legal Ethics of a President under Impeachment A review of “An Affair of State: The Investigation, Impeachment and Trial of President Clinton,” by Richard A. Posner. Legal Ethics: Vol. 4, No. 2, pp. 155-171.

The legal literature generally assumes that an aggregate-risk-utility test is employed to determine whether conduct was reasonable or negligent. However, this test is infrequently mentioned by the courts and almost never explains their decisions. Instead, they apply, explicitly or implicitly, various justice-based standards that take into account the rights and relationships among the parties. This is true even for the two judges most closely identified with the aggregate-risk-utility test: Learned Hand and Richard Posner. During the five decades that (...) Hand served as a federal judge, he mentioned the test in only eleven opinions, between 1938 and 1949, and in none of those opinions did he actually apply the test to resolve the negligence issue. In his last reference to the test, in 1949, he essentially abandoned it. None of his fellow circuit judges ever mentioned the test. Posner claims that the Hand formula expresses an economic efficiency interpretation of negligence that has long been implicit in judicial opinions. However, Posner’s arguments are based on speculative and implausible assumptions, overbroad generalizations, selective quotations, and superficial descriptions of cases that misstate or ignore facts, language, rationales, and holdings that are inconsistent with his argument. The same flaws are apparent in Posner’s attempts to apply the Hand formula in his own judicial opinions. Neither he nor his like-minded colleague, Frank Easterbrook, has been able to employ the Hand formula to resolve the negligence issue in any case, and none of their fellow circuit judges has attempted to do so. (shrink)

Applied analytical political philosophy has not been a thriving enterprise in the United States in recent years. Certainly it has made little discernible impact on public culture. Political philosophers absorb topics and ideas from the Zeitgeist, but it shows little inclination to return the favor. After the publication of his monumental work A Theory of Justice back in 1971, John Rawls became a deservedly famous intellectual, but who has ever heard political critics or commentators refer to the difference principle or (...) fair equality of opportunity in discussions aimed at a wide audience? Writing philosophically astute and beautifully accessible prose, often in not strictly academic journals of opinion, Ronald Dworkin has been in some ways the very model of a public intellectual, but the only reference to his opinions that I have seen in any newspaper occurred in a New York Times review of a restaurant near London along the Thames (as I recall, Dworkin was quoted as saying it was at the very least the best restaurant in the northern hemisphere). You might chalk up the situation to the fact that political philosophers tend to be liberal and the public political culture in the United States has been growing decidedly conservative, but that mismatch can hardly be the whole story. Right-wing libertarianism is a popular doctrine, but Robert Nozick’s classical and never superseded 1974 exploration of that view in his brilliant Anarchy, State, and Utopia is not cited. Nor is there a significant literature that seeks to derive practical policy recommendations from Nozick’s theory and relevant factual claims. Moreover, the isolation of political philosophy stands in marked contrast to the wide influence of theory in some disciplines. For example, consider the enormous germinating impact of Richard Posner’s ideas on law and economics over the past thirty years on academic and extra-academic American legal culture. (shrink)

In his professional life, Richard Posner is addressed as inasmuch as he is Chief Judge of the U.S. Court of Appeals for the Seventh Circuit. He is also a senior lecturer at the University of Chicago Law School. Finally, he is a prolific author of books and articles in scholarly journals in which he expounds at length and with copious footnotes his particular views of jurisprudence and public policy. One of his frequent intellectual adversaries, legal philosopher Ronald Dworkin, (...) wryly described Judge Posner as. (shrink)

The design of new constitutions is fraught with challenges on both issues of structural design and individual rights. As both a descriptive and normative matter it is exceedingly difficult to believe that one structural solution will fit all cases. The high variation in nation size, economic development, and ethnic division can easily tilt the balance for or against a Presidential or Parliamentary system, and even within these two broad classes the differences in constitutional structure are both large and hard to (...) measure. The only confident claim is that some system of separation of powers coupled with checks and balances is needed. Deciding which system, however, is far harder. In contrast, that same level of doubt does not arise in connection with the correct specification of individual right. Strong systems of negative rights on matters of liberty, property, religion, and speech are preferable across a wide range of social organizations. On the other hand, any effort to create systems of positive entitlements will fail because of the negative effects that they have on wealth creation and the inability to define or limit the scope of the relevant entitlements. (shrink)

A monumental work on the flow of time, from the universe's creation to "Now," by the best-selling author of Physics for Future Presidents. "Now" is a simple concept--you're reading this sentence now. Yet a real definition of "now" has eluded even the great Einstein. We know that time stretches and is affected by gravity and velocity. Yet, as eminent physicist Richard A. Muller points out, it is only today that we have all the physics at hand--relativity, entropy, entanglement, antimatter, (...) and the Big Bang--to explain the flow of time. With these building blocks in place, Muller reaches a startling conclusion: our expanding universe is continuously creating not only new space but also new time. The front edge of this new time is what we call "now," and this moment is truly unique--it is the only moment in which we can exercise our free will. Muller's thought-provoking vision is a powerful counter to established theories in science and philosophy, and his arguments will spark major debate about the most fundamental assumptions of our universe. (shrink)

Factitious disorder is the deliberate simulation of illness for the purpose of seeking the sick role. It is a 20th-century diagnosis, though the grounds for its introduction are uncertain. While previous authors have considered the social changes contributing to growth in the disorder, this article looks at some of the pressures on doctors that may have created the diagnostic need for a disorder between hysteria and malingering. The recent history of those disorders suggests that malingering would no longer be acceptable (...) when applied to the potentially larger numbers involved in workers’ compensation or in mass conscription. Equally, the absolution given to hysteria on the basis of the Freudian subconscious would survive only as long as that model retained credibility. Growing egalitarianism and changing doctor—patient relationships in the 20th century would no longer tolerate a sharp division between culpable malingering and exculpated hysteria, which may previously have been made on grounds of class or gender. They would contribute to the need for a mediating diagnosis, such as factitious disorder. (shrink)