Awards

• Nominated for David and Elaine Spitz Prize 2005

Overview

A liberal 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.

Full Product Details

Author:   Richard A. Posner
Publisher:   Harvard University Press
Imprint:   Harvard University Press
Edition:   New edition
Dimensions:   Width: 15.60cm , Height: 2.70cm , Length: 23.50cm
Weight:   0.466kg
ISBN:  

9780674018495

ISBN 10:   0674018494
Pages:   416
Publication Date:   01 October 2005
Audience:   Professional and scholarly ,  Professional & Vocational
Format:   Paperback
Publisher's Status:   Unspecified
Availability:   In Print  
Limited stock is available. It will be ordered for you and shipped pending supplier's limited stock.

Table of Contents

"Preface Introduction: Pragmatic Liberalism and the Plan of the Book 1. Pragmatism: Philosophical versus Everyday 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 Some Principles of Pragmatic Adjudication John Marshall as Pragmatist The Objections to Legal Pragmatism Recapitulated 3. John Dewey on Democracy and Law 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 Concept 1 Democracy: Idealistic, Deliberative, Deweyan Concept 2 Democracy: Elite, Pragmatic, Schumpeterian American Democracy Today Democracy and Condescension 5. Democracy Defended 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 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 Kelsen's Theory of Law Kelsen, Pragmatism, and Economics Kelsen Positivism Contrasted with the Positivist Theories of Hart and Easterbrook Hayek Theory of Adjudication Hayek on Kelsen; Kelsen and Schumpeter 8. Legality and Necessity Crisis Prevention as Pragmatic Adjudication Lawyers' Hubris Clinton v. Jones 9. Pragmatic Adjudication: The Case of Bush v. Gore 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 The Pragmatic Approach to Free Speech The ""Purposivist"" Critique of the Pragmatic Approach Conclusion Index"

Reviews

This elegant analysis of democratic theory, by a judge on the United States Court of Appeals for the Seventh Circuit in Chicago, argues for a legal pragmatism that pays greater attention to the consequences of what we do than to abstract principle. * New York Times Book Review * Posner is very convincing when he describes how the American political system actually works, how the federal courts actually function, and how public opinion and elections begin to play a role only when the political elites have made a mess of things. This book is one of his best—vigorously argued and written with wit and panache… He is a genuinely original thinker, as well as a prodigy of learning. Able to draw upon an amazingly broad range of reading, he resists stereotypes and allegiances, and goes his own way. -- Richard Rorty * Dissent * Judge Posner’s book makes a valuable contribution to an expanded understanding of the tense yet mutually reinforcing interaction of law and democracy. -- Arthur Jacobson and John McCormack * International Journal of Constitutional Law * Posner…presents a brilliant defense of the manner in which Americans organize and operate their government… This book is to be read and reread if one is to understand the intricacies of American constitutional democracy. -- R. J. Steamer * Choice * Judge Posner offers a vigorous and extended contemporary elaboration of Churchill’s aphorism that democracy is the worst form of government except for all the others. He surveys much recent literature on the subject, and as might be expected, he does not favor high-minded participatory and deliberative versions of democratic theory. But overall his is a much more robust defense of existing democratic institutions than has been usual in recent work by those who view politics from the perspective of economics and public choice theory. He also expands in an interesting way on the important pragmatic account of adjudication developed in his earlier writings. The book represents a provocative and readable stretch of the authors ongoing reflections on the intellectual scene: the economist/jurist/judge at the breakfast table. -- Thomas Grey, Stanford Law School This book is sure to provoke attention to the topic of democratic theory. Among the book’s many strengths are the discussions of pragmatism, philosophical and everyday; Dewey on democracy, experimentalism, and distributed intelligence; Schumpeter on democracy; John Marshall’s greatness; Kelsen’s legal theory and, to a lesser extent because it is a lesser theory, Hayek’s legal theory; and the anti-trust theory of judicial decision on the democratic process. These seemingly disparate topics belong together so well that the book sustains reading straight through, as is seldom true of academic works. -- Russell Hardin, Stanford University

Judge Posner offers a vigorous and extended contemporary elaboration of Churchill's aphorism that democracy is the worst form of government except for all the others. He surveys much recent literature on the subject, and as might be expected, he does not favor high-minded participatory and deliberative versions of democratic theory. But overall his is a much more robust defense of existing democratic institutions than has been usual in recent work by those who view politics from the perspective of economics and public choice theory. He also expands in an interesting way on the important pragmatic account of adjudication developed in his earlier writings. The book represents a provocative and readable stretch of the authors ongoing reflections on the intellectual scene: the economist/jurist/judge at the breakfast table. -- Thomas Grey, Stanford Law School This hook is sure to provoke attention to the topic of democratic theory. Among the book's many strengths are the discussions of pragmatism, philosophical and everyday; Dewey on democracy, experimentalism, and distributed intelligence; Schumpeter on democracy; John Marshall's greatness; Kelsen's legal theory and, to a lesser extent because it is a lesser theory, Hayek's legal theory; and the anti-trust theory of judicial decision on the democratic process. These seemingly disparate topics belong together so well that the book sustains reading straight through, as is seldom true of academic works. -- Russell Hardin, Stanford University Posner...presents a brilliant defense of the manner in which Americans organize and operate their government...This book is to be read and reread if one is to understand the intricacies of American constitutional democracy. -- R. J. Steamer * Choice * Posner is very convincing when he describes how the American political system actually works, how the federal courts actually function, and how public opinion and elections begin to play a role only when the political elites have made a mess of things. This book is one of his best--vigorously argued and written with wit and panache...He is a genuinely original thinker, as well as a prodigy of learning. Able to draw upon an amazingly broad range of reading, he resists stereotypes and allegiances, and goes his own way. -- Richard Rorty * Dissent * This elegant analysis of democratic theory, by a judge on the United States Court of Appeals for the Seventh Circuit in Chicago, argues for a legal pragmatism that pays greater attention to the consequences of what we do than to abstract principle. * New York Times Book Review * Judge Posner's book makes a valuable contribution to an expanded understanding of the tense yet mutually reinforcing interaction of law and democracy. -- Arthur Jacobson and John McCormack * International Journal of Constitutional Law *

Posner is very convincing when he describes how the American political system actually works, how the federal courts actually function, and how public opinion and elections begin to play a role only when the political elites have made a mess of things. This book is one of his best--vigorously argued and written with wit and panache...He is a genuinely original thinker, as well as a prodigy of learning. Able to draw upon an amazingly broad range of reading, he resists stereotypes and allegiances, and goes his own way. -- Richard Rorty Dissent (08/01/2003)

Author Information

Richard A. Posner is Circuit Judge, the United States Court of Appeals for the Seventh Circuit, and a senior lecturer at the University of Chicago Law School.

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