The Problems of Jurisprudence

Front Cover
Harvard University Press, 1990 - Law - 485 pages
In this book, one of our country’s most distinguished scholar-judges shares with us his vision of the law. For the past two thousand years, the philosophy of law has been dominated by two rival doctrines. One contends that law is more than politics and yields, in the hands of skillful judges, correct answers to even the most difficult legal questions; the other contends that law is politics through and through and that judges wield essentially arbitrary powers. Rejecting these doctrines as too metaphysical in the first instance and too nihilistic in the second, Richard Posner argues for a pragmatic jurisprudence, one that eschews formalism in favor of the factual and the empirical. Laws, he argues, are not abstract, sacred entities, but socially determined goads for shaping behavior to conform with society’s values. Examining how judges go about making difficult decisions, Posner argues that they cannot rely on either logic or science, but must fall back on a grab bag of informal methods of reasoning that owe less than one might think to legal training and experience. Indeed, he reminds us, the greatest figures in American law have transcended the traditional conceptions of the lawyer’s craft. Robert Jackson did not attend law school and Benjamin Cardozo left before getting a degree. Holmes was neither the most successful of lawyers nor the most lawyerly of judges. Citing these examples, Posner makes a plea for a law that frees itself from excessive insularity and takes all knowledge, practical and theoretical, as grist for its mill. The pragmatism that Posner espouses implies looking at problems concretely, experimentally, without illusions, with an emphasis on keeping diverse paths of inquiry open, and, above all, with the insistence that social thought and action be evaluated as instruments to desired human goals rather than as ends in themselves. In making his arguments, he discusses notable figures in jurisprudence from Antigone to Ronald Dworkin as well as recent movements ranging from law and economics to civic republicanism, and feminism to libertarianism. All are subjected to Posner’s stringent analysis in a fresh and candid examination of some of the deepest problems presented by the enterprise of law.
 

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Contents

The Birth of Law and the Rise
1
A Short History of Jurisprudence
9
A Preview of the Book
24
Law as Logic Rules and Science
37
Legal Reasoning as Practical Reasoning
71
Other Illustrations of Practical Reasoning in
101
Legitimacy in Adjudication
124
Ontology the Mind and Behaviorism
161
Objectivity in Statutory Interpretation
262
How to Decide Statutory and Constitutional Cases
286
SUBSTANTIVE JUSTICE
311
The Economic Approach to
353
Literary Feminist and Communitarian Perspectives
393
JURISPRUDENCE WITHOUT
421
A Pragmatist Manifesto
454
Index
471

Are There Right Answers to Legal Questions?
197
What Is Law and Why Ask?
220
Common Law versus Statute
251

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About the author (1990)

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

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