Overcoming Law. – Review – book review
Kermit L. Hall
Overcoming Law By Richard Posner (Harvard University Press, 1995. 605 pp. $39.95.)
Supreme Court Justice Benjamin N. Cardozo once observed that “The final cause of the law is the welfare of society.” The wisdom of such an instrumental approach has suffused the contemporary debate about the theoretical foundations of law. A “modern” view holds, among other things, that by employing the correct methodology, narrative, analytical technique, and mind-set (that is, by thinking and acting professionally) lawmakers can shape legitimately social choices. Law, according to that view, has a preferred claim as the foundational authority for addressing society’s problems, since it offers the promise of objectivity, detachment, impartiality, and reason. In the past quarter century, however, post-modern legal thinkers have sought to move the intellectual debate about law’s underpinnings away from the concept of objectivity and toward the idea of relativism.
Today, post-modernists condemn the value of universal truths, core essences, and foundational theories. To put matters most simply, post-modern legal thinkers have concluded that earlier efforts to explain the authority of law based on principles of neutrality, autonomy, internal integrity, and consensus are at once intellectually flawed and unjust. According to this critique, the modernist tradition, with its formal rules and abstract legal principles developed by the white male ruling class, fails because it ignores the perspectives and experiences of peoples outside the mainstream, notably Asian Americans, African Americans, Latinos, Native Americans, women, and gay people of all cultures.
This shorthand explanation of current debates about legal theory is an essential introduction to Richard Posner’s “Overcoming Law,” his latest work in a long line of brilliantly argued efforts (including a short biography of Cardozo) to confront our tangled web of legal and social relations. As important, Posner’s ideas, and the more general debate about legal theory, hold important implications for the scope of civil rights in the years ahead. Many of the chapters in “Overcoming Law” originated in earlier works, both essays and lectures. Unlike Posner’s other well-known books, such as “The Economics of Justice” and “The Problems of Jurisprudence,” this latest work has something of a catch-all quality to it. It also, however, shows spectacularly the breadth of Posner’s learning (from quantum physics to E.M. Forster’s writing) and the variety of his interests (from anti-trust regulation through capital punishment to homosexual marriages). Moreover, it reveals Posner’s willingness to engage his critics (even if, at times, he dismisses them abruptly) and to learn from them.
Posner blends his continuing devotion to the principles of the “Law and Economics” movement, of which he was a founder in the 1960s, with a continuing fascination with pragmatism as a middle ground between modernist and post-modernist legal theory. “Most lawyers, judges, and law professors,” Posner argues, “still believe that demonstrably correct rather than merely plausible or reasonable answers to most legal questions, even very difficult and contentious ones, can be found … by reasoning from authoritative texts.” Posner, borrowing imaginatively from the post-modernist work that he disputes, views such an enterprise as foolish, even wasteful of time, energy, and money. Instead, Posner urges lawyers to adopt a pragmatic approach to their work, one that is attuned to the tradition of Justice Cardozo. The good lawyer, judge, or lawmaker is concerned more with facts than theory, more with outcomes than philosophical niceties, and more with the distribution of social costs than with intellectual symmetry. It is the lawyer’s duty, according to Posner, to make pragmatic goals and economic realities converge, a conclusion that casts doubt on the received wisdom of both modern and post-modern approaches to law.
Posner’s many critics have dismissed him as a right-wing conservative more sensitive to the needs of modern corporations than to those of consumers, and more interested in the rights of property than in the rights of individuals. There is no doubt that others have borrowed from Posner’s writings to make just such arguments. “Overcoming Law,” however, reveals a scholar far too complex to caricature in such stark terms. If anything, Posner emerges as a strong voice for civil rights and liberties, one that is antidogmatic and committed to debate and free inquiry. The touchstone, however, of the discussion of rights, according to Posner, is results, not rhetoric. The best way to achieve results, according to him, is through a scientific approach that exposes falsehoods by generating hypotheses and testing them through experimentation. Hence, it is possible for useful knowledge to grow (and wise social choices to be made at law) even if ultimate truth remains beyond our grasp. One can ask, for example, the question of the costs associated with abortion of a fetus for the mother, the fetus, and the community. Arguing the fate of any of these as a problem of analytical philosophy, however, is a waste of time, according to Posner, because such an approach overemphasizes the logical manipulation of concepts and underemphasizes the importance of empirical support for one’s views.
Such a perspective moves Posner the pragmatist to reject the idea of immutable rights, moral obligations, and reverence for the past. He significantly discounts the concept of stare decisis as a basis for good policy in the law, although he recognizes, at the same time, that a judge may well find it practical to adhere to precedent and maintain a low profile. The best guide to justice, according to Posner, is through a pragmatic application of economic principles to such diverse human activities as education, politics, health, and family relations. Posner also accepts that some aspects of social behavior resist economic analysis by a judge. The abortion issue, Posner argues, ultimately turns on the moral and cultural question of whether we should count the fetus as part of the community rather than economic choice.
What is most striking in this new work, however, is that Posner connects his vision of the liberal state with John Stuart Mill’s concept of “self-regarding” behavior. Mill insisted that every person is entitled to liberty to the extent consistent with the liberty of every other person in the society. Self-regarding behavior is that behavior which does not harm other individuals.
This matter is a key to understanding Posner’s vision of “overcoming law.” He means by this phrase the value of overcoming the modernist impulse to fix the meaning of law in some objective reading of formal legal texts and the post-modern belief that all law is politics and therefore relative. Thus, he fuses the liberalism of Mill with the pragmatism of John Dewey and especially that of Oliver Wendell Holmes, Jr. Posner cites Holmes’ famous invocation, supposedly spoken in private, that a law is constitutional unless it makes a judge want to “puke.” In this light, judicial behavior is little more than instinctual; it operates below the level of understood thought, so much so that any effort to assign it a rational justification is more rhetorial than real. Empirical inquiry, however, can and should inform the essentially instinctive behavior of a judge. Paradoxically, this approach leads Posner to conclude that a judge’s effort to stretch constitutional clauses to support a position is acceptable if such stretching is accompanied by “a compelling practical case or imperative felt need for intervention.” Posner’s message is that values alone are not good enough, no matter how carefully derived from reasoned formulations or strongly felt. To be legitimate, choices at law have to be founded in empirical observation and a test sufficiently scientific that they can be rejected, on factual grounds, if found to do something that was not intended.
By book’s end, few legal thinkers are left standing. Posner applies his combination of classical liberalism and pragmatism to scuttle the ideas of feminists, critical race theorists, critical legal studies proponents, and constitutional scholars of the left and right. He describes, for example, Herbert Wechsler’s attack on Brown v. Board of Education (1954, 1955) as ill conceived because it missed the point: judges could never stand on neutral principles in the “messy world of empirical reality” when forced to assess the motives and consequences of public school segregation. Posner brings equally withering criticisms to bear on such notable figures as Bruce Ackerman, Ronald Dworkin, Patricia J. Williams, and Mark Tushnet.
Posner’s emphasis on pragmatism does not, of course, end the debate about outcomes. Indeed, he gives a particularly incisive reading of the affirmative action debate, arguing that the only measure of its legitimacy is the extent to which it works to meet its own professed objectives, a test that he believes most programs fail. Posner also admits that his empirical and scientific method often does not help to resolve difficult disagreements over ends. He suggests in these instances that the best we can hope for is to “muddle through.” If so, then it may well be that all the intellectual debris Posner scatters in his wake is of greater value than he admits. Analytical methods and theory, in this regard, may have something to tell us about what choices are appropriate on metaphysical and even moral grounds.
Anyone interested in the current debates about rights and liberties, the status of jurisprudence, and the relationship between legal theory and social practice will find “Overcoming Law” rewarding, engaging, and, depending on one’s view, either compelling or obtuse. ,They will also discover a kinder and gentler Posner, one now able to find merit in the work of scholars that he previously dismissed as intellectually suspect. As important, he reminds us again of Justice Cardozo’s admonition that the final cause of the law is the welfare of society. Since the economic value of every choice cannot be calculated, what we mistake for uncertainty in the law is actually a useful degree of ambiguity in our social fabric. Ironically, Posner, the leader of the Law and Economics movement, actually brings us closer to a reading of the post-modern condition that stresses toleration and diversity as prime social goods than do similar efforts by post-modern critics who have judged Posner so harshly in the past. Posner accepts the idea that politics shapes the law, a surprisingly post-modern view of legal culture from a scholar usually described as more interested in economic benefits for the haves and doom for the have-nots. Yet he also recognizes that attention to the social costs of proclaiming rights is essential to the freedom of every individual in a self-regarding society.
Dr. Kermit L. Hall is Dean of the College of Humanities and a professor of history and constitutional law at Ohio State University, and editor-in-chief of “The Oxford Companion to the Supreme Court” and “The Oxford Companion to American Law.”
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