Posner (Again) Blesses Statism
Law, Pragmatism, and Democracy
Richard A. Posner
Harvard University Press, 2003
vii + 398 pgs.
Richard Posner here answers, at least in one respect, a question that has long puzzled his critics. Posner again and again declares himself a legal pragmatist. Judges should not be bound by "formalistic" demands that they decide cases as strict deductions from laws or precedents. Quite the contrary, judges should not feel themselves irretrievably bound by a set of rules of interpretation. The question that should always guide them is, what will have the best results? "Legal pragmatism is forward-looking. Formalism is backward-looking, grounding the legitimacy of a judicial decision on its being deducible from an antecedently established rule or principle" (p. 71).
An obvious question arises: what counts as "best" in this context? Here Posner’s critics find themselves baffled. Posner never manages to set out clearly the criteria for judges to use in deciding cases. Not, of course, that Posner says nothing on the topic. As always, it is impossible for Posner to shut up. But it seems a labor of Hercules to pin him down on this issue. In the present volume he fills in a few of the blanks.
Posner, a founder and principal exponent of the law-and-economics movement, has often favored wealth maximization as a decision rule for judges. He makes clear, though, that he does not swear full allegiance to this rule. Indeed, he tells us that he is not a consequentialist at all. "If a consequentialist is someone who believes that an act, such as a judicial decision, should be judged by whether it produces the best overall consequences, pragmatic adjudication is not consequentialist, at least not consistently so. That is why I prefer ‘reasonableness’ to ‘best consequences’ as the standard for evaluating judicial decisions pragmatically" (p. 65).
Our author explains what he has in mind by means of a bizarre example. Suppose a brother and sister wish to get married. They ask for an exception to a law banning incest because they are sterile. Clearly, Posner maintains, appeal to consequences would justify granting their request. "It is difficult to see what good consequences the denial of such an exception . . . could have; the bad consequence would be forbidding a harmless relationship that might be indispensable to the happiness of the participants" (pp. 65–66).
But the "pragmatic judge" should be reluctant to intervene. "Horror at incest is a brute fact about present-day American society" (p. 66). Given this unfortunate circumstance, "public upset" would outweigh the benefits to the couple. Judges must not defy popular feelings, however benighted they might be, to an overly great extent.
The example, by the way, tells us a good deal about our distinguished author. The fact that incest is intrinisically immoral seems never to have entered his head. Readers of Posner’s Sex and Reason (1992) will recall his labored attempts to show that rape should be prohibited on consequentialist grounds. The imperative demands of morality mean nothing to our master pragmatist: Kant, it seems safe to say, would not have liked Posner.
To return to Posner’s hero, the pragmatic judge, is he not after all a consequentialist? Surely a consequentialist would take into account public opinion, exactly as the pragmatist would. Posner himself recognizes the point: "A complication is that almost every nonconsequentialist consideration can be recharacterized in consequentialist terms" (p. 67).
But Posner thinks that despite this point, it is not "useful" to call the pragmatist a consequentialist. Sometimes, the pragmatist will decide cases by strict interpretation of the law. If people can rely on fixed standards to guide their behavior, is this not also socially beneficial?
I shall, without reluctance, leave it to Posner to fight a battle with those who say that this too is a consequentialist consideration. A more substantive problem awaits us. Posner tells us that the pragmatist judge must be reasonable; but he refuses to specify what considerations the judge should bear in mind. We may grant his point that the reasonable judge cannot be bound by an algorithm; we might, if so minded, allow his point that he cannot offer a comprehensive list of the judge’s goals. But surely he owes us something? To appeal to pragmatism avails nothing, absent an account of what one is trying to achieve.
We are, fortunately, not left entirely in the dark. Posner makes clear one goal he very much wants to achieve. In his view, so minor a matter as civil liberties must not be allowed to impede America’s crusade against terrorism. Has not September 11 changed everything? "Suppose there were a 100-percent probability that unless prevented, a terrorist known to be loose in Manhattan would explode a nuclear bomb. No sane person would balk at abandonment of the conventional limitations on the power to search and seize and the power to extract information from suspects and even bystanders. Would he refuse to countenance an exception for a lesser threat to public safety? If the probability were 99 percent rather than 100 percent, could he sanely adhere to that position? Eventually, a rule and exception approach would dissolve into balancing, and disagreement would shrink to differing assessments of the risks and harms" (pp. 315–16).
Posner’s reasoning rests on a familiar fallacy. Let us grant him that in imaginable circumstances, there are laws to which a judge might with propriety allow exceptions. It hardly follows that all cases must be decided by balancing. Suppose you think that if a policeman sees through a window a man about to detonate an atomic bomb, he may enter the man’s residence without a warrant. You are not by that view forbidden to hold that torture is always wrong, without consideration of consequences. Like many consequentialists, Posner takes any recognition of emergency situations as total surrender to consequentialism.
Also on evidence in Posner’s view of civil liberties is another dubious procedure. He invokes probability considerations: why, he asks, must we demand certainty before proceeding against a terrorist threat? If the danger is sufficiently great, does not even a small chance that dire consequences might impend justify drastic action? (Posner has devoted another of his innumerable books, Catastrophe: Risk and Response, to the importance of taking account of small chances of danger.)
Posner has moved too quickly. He does not take seriously the prospect that emergency restrictions on civil liberties will subvert our constitutional order. In his view, we have little to fear from our benign government. Once the emergency has passed, civil liberties will be restored to full standing. May we not here rely on past experience: "When the emergencies ended, civil liberties were restored, and later they were enlarged" (p. 304).
His contention seems to me disputable, but suppose that he is right. Has he not forgotten his own point about probability? Even a small chance that emergency measures will permanently subvert civil liberties needs to be considered. Must not this probability, even if one accepts Posner’s view that it is small, be weighed in the "balancing" that Posner so anxiously urges on us?
Our author, avidly insistent on the need to counter threats to security, turns a blind eye to such matters. But let us put the difficulties so far raised to one side. Posner’s view still must confront a severe problem. Posner says that judges must balance considerations of national security against the benefit of civil liberties; but how are the judges supposed to evaluate the dangers to security?
For this problem our author has a simple solution. Judges should accept the government’s word about the severity of threats to security and what needs to be done to combat them. A mere judge, after all, is in no position to overthrow the expert knowledge that government specialists, under the supervision of the Leader, possess. "But if lawyers are not equipped to formulate sound legal policy regarding international terrorism, who is? The President is, virtually by default. The relevant expertise is widely distributed. . . . The President has unimpeded access to this expertise. . . . In times of crises, moreover, it is natural to look to elected officials rather than to judges to choose the response. This is the democratic approach as well as the practical one" (pp. 316–17).
So much for "balancing"; Posner’s ideal judge, like his colleagues in Nazi Germany and Soviet Russia, accepts the superior wisdom of the government and its Leader. One wonders whether Posner has taken so extreme a position as a means to signal to the Bush administration that he will prove a reliable tool if nominated to the Supreme Court.
This, admittedly, is speculation. Posner is at any rate consistent in his contempt for civil liberties, as he reviews various historical episodes. Lincoln acted wisely, he thinks, in his Draconian suppression of individual rights during the Civil War. True enough, the Constitution probably does not allow the president to suspend the writ of habeas corpus; but who cares? "The unconstitutional acts that Lincoln committed during the Civil War suggest that even legality must sometimes be traded off against other values. . . . Is it not vital to morale in wartime that a nation’s leaders show themselves resolute, and is not brushing aside legal niceties that might [!] interfere with the determined prosecution of the war one way of showing this?" (p. 301).
Though Justice Robert Jackson, "one of the greatest pragmatic Justices," is one of Posner’s heroes, our author finds wanting Jackson’s dissent in Korematsu v. United States, the case that upheld the exclusion of Japanese Americans from the west coast during World War II. Must not a good pragmatic judge defer to the military authorities in wartime? "If the Constitution is not to be treated as a suicide pact, [a famous remark by Jackson in another case] why should military exigencies not influence the scope of the constitutional rights that the Supreme Court has manufactured from the Constitution’s vague provisions?" (p. 294).
I have done my best for Posner. Against the charge that his pragmatist view tells the judge nothing, I have endeavored to find a subject, national security, in which his own application of his view does yield some determinate meaning. But on the whole my quest has been fruitless. The Constitution, as Posner sees it, is a tabula rasa on which the pragmatist can write as he pleases.
Does the Constitution forbid states from passing laws that impair the obligations of contract? A provision of the document says exactly this, but Posner says about the Supreme Court’s decision in a famous case that upheld debtor relief: "this is a fancy way of saying that a state can impair the obligation of contracts, notwithstanding the constitutional provision . . . provided it has a compelling reason to do so. The decision may have been wrong, but I would not call it usurpative. Most constitutional provisions have—or, more precisely, can be given, by judges exercising the elastic power of interpretation—enough wiggle room to accommodate an emergency" (p. 295).
For Posner, a "great decision" rises above legal argument. Speaking of a decision of John Marshall, our author has this to say: "Pure assertion, but an assertion that in the manner of great rhetoric carried its own weight of authority, if not of ‘truth.’ The test of a great legal opinion is not its conformity to the tenets of legal formalism. It is how good a fit it makes with its social context. Often that fit is cemented by a rhetorical flourish" (p. 93).
Legal ethics must also not be allowed to interfere with the pragmatic judge, especially if he aspires to greatness. Marshall’s opinion in Marbury v. Madison involved a conflict of interest, since it was Marshall himself who had signed the commission that had not been delivered to Marbury. "But Marbury is a great decision, and Marshall the greatest Chief Justice in our history" (p. 355). It passes a key test of greatness: it created new values out of nothing. "Marbury asserted rather than deduced the supremacy of the Supreme Court in the interpretation of the Constitution" (p. 262).
Our author, not to be denied, goes Marshall one better. Why not add provisions to the Constitution in defiance of the prescribed procedures for amendment? The Fourteenth Amendment was imposed by military force. The Radical Republican Congress dissolved the governments of Southern states that rejected the amendment. To be recognized as legitimate, a successor government had first to ratify it. This procedure clearly defies the Constitution: if a legislature does not count as a state government until after its supposed act of ratification, that act cannot count as ratification by a state. For Posner, there is no problem: "And the post-Civil War amendments to the Constitution . . . would not have been ratified had it not been for the subjugation of the Confederate states by force of arms" (p. 262).
Posner’s pragmatic jurisprudence is a sorry affair, bereft of intellectual substance. Why, then, is Posner celebrated as the brightest and most scholarly of federal judges? He is able to absorb with great rapidity large quantities of information on various subjects and to deploy this material, often very effectively, in his numerous books. Readers of Law, Pragmatism, and Democracy will encounter discussions of the legal theories of Hans Kelsen and Friedrich Hayek, John Dewey’s pragmatism, and Joseph Schumpeter’s elitist theory of democracy, which Posner much prefers to the deliberative democracy in fashion nowadays.
Faced with such abundance, even the skeptical reader seems compelled to admire Posner. Must not even opponents of pragmatism recognize his remarkable merits, just as even the staunchest Austrian economist must acknowledge that Lord Keynes possessed a scintillating intelligence?
Those who probe further, I suggest, will have reason to put aside their initial impressions. Posner’s erudition is at times a contrived affair. What is one to think when Posner tells us that until preparing for a lecture in 2001, "I had never read Kelsen" (p. 250)? This is the equivalent of a specialist in Austrian economics saying, at the height of his career, that he never until recently opened Human Action.
In one area, in particular, Posner’s pretensions fall to the ground. Posner often disparages academic philosophy; indeed, he has devoted an entire volume, The Problematics of Moral and Legal Theory, to his antiphilosophical enterprise. But it transpires that he has little grasp of what he presumes to condemn. Posner’s account of Quine on the analytic, though "in the ballpark," misses the main point of Quine’s key argument. His misrepresentation of Nelson Goodman is much more serious. Goodman did not, contrary to what Posner alleges, challenge induction; his "new riddle of induction" is not at all like Popper’s inductive skepticism (p. 37). When discussing the alleged "obsession of the philosophical tradition with the conditions that make it possible (or impossible . . .) to affirm the certainty of ‘obvious’ propositions," he gives an example of such a proposition, a controversial opinion: "the Nuremberg Tribunal was legal" (p. 36). He recognizes elsewhere (pp. 370–71) that the tribunal was not impartial; one would have thought this a requirement of legality. I have saved the best for last. He solemnly tells us that we "now think Euclidean geometry, Ptolemaic astronomy, and Newtonian physics are all erroneous theories" (p. 39). I have at times in my remarks been unkind to Posner, but I have a suggestion for him that will win him intellectual acclaim far in excess of what he has already achieved. He has only to point out some of the alleged errors of Euclidean geometry to be recognized a great mathematician. What can have been on his mind when he wrote the sentence I have just quoted? Non-Euclidean geometry? Hilbert’s standards of rigorous proof? We await further enlightenment from Judge Posner. n MR
I have benefited greatly here from Ilya Somin, "Posner’s Pragmatism," Critical Review, vol. 16, no. 1 (2004), pp. 1–22.
Naturally, Posner prefers Kelsen to Hayek. The latter’s appeal to custom hardly comports well with the unlimited discretion that the pragmatist judge requires.