Law, pragmatism, and democracy / Richard A. Posner.

Format:

Book

Author/Creator:

Posner, Richard A.

Language:

English

Subjects (All):

Justice, Administration of--United States.

Justice, Administration of.

United States.

Rule of law--United States.

Rule of law.

Democracy.

Pragmatism.

Physical Description:

xii, 398 pages ; 24 cm

Place of Publication:

Cambridge, Mass. : Harvard University Press, 2003.

Summary:

Aliberal state is a representative democracy constrained by the rule of law. Richard Posner argues for a conception of the liberal state based on pragmatic theories of government. He views the actions of elected officials as guided by interests rather than by reason and the decisions of judges by discretion rather than by rules. He emphasizes the institutional and material, rather than moral and deliberative, factors in democratic decision making.

Posner argues that democracy is best viewed as a competition for power by means of regular elections. Citizens should not be expected to play a significant role in making complex public policy regarding, say, taxes or missile defense. The great advantage of democracy is not that it is the rule of the wise or the good but that it enables stability and orderly succession in government and limits the tendency of rulers to enrich or empower themselves to the disadvantage of the public. Posner's theory steers between political theorists' concept of deliberative democracy on the left and economists' public-choice theory on the right. It makes a significant contribution to the theory of democracy -- and to the theory of law as well -- by showing that the principles that inform Schumpeterian democratic theory also inform the theory and practice of adjudication. The book argues for law and democracy as twin halves of a pragmatic theory of American government.

Contents:

Introduction: Pragmatic Liberalism and the Plan of the Book 1

1 Pragmatism: Philosophical versus Everyday 24

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 57

Some Principles of Pragmatic Adjudication

John Marshall as Pragmatist

The Objections to Legal Pragmatism Recapitulated

3 John Dewey on Democracy and Law 97

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 130

Concept 1 Democracy: Idealistic, Deliberative, Deweyan

Concept 2 Democracy: Elite, Pragmatic, Schumpeterian

American Democracy Today

Democracy and Condescension

5 Democracy Defended 158

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 213

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 250

Kelsen's Theory of Law

Kelsen, Pragmatism, and Economics

Kelsen's Positivism Contrasted with the Positivist Theories of Hart and Easterbrook

Hayek's Theory of Adjudication

Hayek on Kelsen; Kelsen and Schumpeter

8 Legality and Necessity 292

Crisis Prevention as Pragmatic Adjudication

Lawyers' Hubris

Clinton v. Jones

9 Pragmatic Adjudication: The Case of Bush v. Gore 322

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 357

The Pragmatic Approach to Free Speech

The "Purposivist" Critique of the Pragmatic Approach.

Notes:

Includes bibliographical references and index.

ISBN:

0674010817

OCLC:

50583191