Law, Pragmatism and Democracy [Hardcover]

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!!