Pragmatism and Its Consequences:

Richard A. Posner, Law, Pragmatism, and Democracy (Harvard Univ. Press 2003)

Judge Richard A. Posner's newest book comes at an opportune moment. The post-September 11 landscape still features fierce debates over the proper scope of civil liberties in a time of seemingly permanent war. Meanwhile, the Senate's battles over judicial confirmation have heated up - sparked in part by continuing rancor over the 2000 election, its resolution in Bush v. Gore, and the Clinton impeachment. On both sides, these are good times for the intemperate.

Law, Pragmatism, and Democracy will please neither camp. Posner's latest work offers a contrarian, damn-both-your-houses take on these and other issues.

Posner argues for what he labels an "everyday pragmatist" approach to questions of law and democracy. In doing so, he contributes what might be called an intemperate brief for a temperate approach.

Posner's Everyday Pragmatism: Common Sense v. Theory

Law, Pragmatism, and Democracy continues in the same vein as Posner's last several books: advancing a defense of pragmatism as "the best description of the American judicial ethos."

Posner acknowledges the confusion inherent in his use of the term, which has a specialized meaning in the philosophical literature. He makes clear that his approach is not pragmatism in the academic meaning of the word, but rather, "everyday pragmatism."

Everyday pragmatism is less of a theory than an approach - a common-sense method to solving problems. It is "disdainful of abstract theory and intellectual pretension," and asks only what the consequences of particular decisions will be. Posner's everyday pragmatist is an engineer and a builder, not an architect fixated by elegant but unworkable designs.

A popular saying in the legal academy suggests that it takes a theory to beat a theory, and Posner's loose definition of everyday pragmatism may be criticized for just that reason. If pragmatism is merely the effort to do what makes sense, how can we know what makes sense without some overarching set of values or principles by which to judge the consequences of our actions? And what if pragmatism becomes no more than a vehicle through which we smuggle an undisclosed value or set of values - in Posner's case, presumably, the value of economic efficiency?

Posner acknowledges that his brand of pragmatism "has no moral compass." For many, that would be a damning criticism - but Posner turns it into a peculiarly American virtue.

The "dream of using theory to guide and constrain political, including judicial, action is just that," he argues - "a dream." Everyday pragmatism, he suggests, at least proceeds from the bottom up - attempting to evaluate the consequences of actions given the multitude of goals and values that make up our heterogeneous society. It does not attempt to reshape American society to fit a particular set of values, as he implies that many theorists do.

Moreover, Posner makes plain that his everyday brand of pragmatism is sensitive, at least, to the value of clear rules and standards. Posner notes that for pragmatists, following strict rules may often be preferable, on the whole, to a rudderless concern for immediate consequences. But his pragmatic willingness to follow the rules is based on practical utility, not formalism for its own sake. He freely counsels aspiring pragmatists to abandon formalism when necessary.

Whether pragmatism would look the same in Posner's hands as in someone else's is unlikely. It is not a very clear guide. But as a sort of mood in which decisionmaking might occur, it remains useful. The high theorists may build castles in the sky if they wish, often to the eventual benefit of others. In the meantime, as Posner's approach underlines, a focus on more immediate consequences should be challenge enough for most lawyers or judges.

Posner's real venture into uncharted territory in this book lies not in his discussion of pragmatism, but rather in his pragmatic take on democracy.

Posner contrasts two visions of democracy. One, which he calls "Concept 1 democracy," is familiar enough to readers of law journals: it is so-called "deliberative democracy." In Concept 1 democracy, voters and politicians alike are expected to be civic-minded, debating one another town-meeting-style with the public interest in mind rather than their own selfish ends.

This kind of democracy, Posner argues, is a pipe dream. It is all very well to talk about deliberative democracy in the safe precincts of the "faculty workshop," in which all the participants are equally gifted (or glib) and all agree on the basic premises of the discussion. But, he argues, nothing in the capacity of the American people, or in the varied and intractable nature of their differences, suggests that they are likely to turn our polyglot democracy into a new Athens.

As a result, Concept 1 democrats who acknowledge this state of affairs may be forced to substitute deliberation by elites - especially judges - for popular deliberation. That result is deeply anti-democratic.

For his alternative, "Concept 2 democracy," Posner draws on the work of Joseph Schumpeter. This is a brazenly unromantic vision of democracy - one that treats politics "as a competition among self-interested politicians, constituting a ruling class, for the support of the people, also assumed to be self-interested, and to be none too interested in or well informed about politics."

Not surprisingly, Posner's model of democracy looks not to ancient Athens but to the market, Posner's favorite model. It divides our democracy into two distinct classes: the class of voters-as-consumers, and the "sellers" - the elite class of elected officials and their appointees. These elite rulers market their views to the voters and so compete for electoral advantage.

If Concept 1 democracy is the dream, Posner writes, Concept 2 democracy is the modern American reality.

Not content simply to describe this reality, Posner lauds it. Concept 2 democracy, in his view, allows the voters to focus their energies productively and avoid intractable debates. Meanwhile, it carves out an arena for ambitious politicians that yokes their energy (albeit imperfectly) to the public will.

Posner seeks a form of democracy that will blunt and soften ideological extremes. For example, he favors a system that limits the number of political parties, thus forcing them to moderate their views to reach a broader audience. But he favors reforming the law to discipline the Democrats and Republicans by ensuring a credible threat of entry by third parties.

Impeachment, Bush v. Gore, and September 11: Posner's Pragmatic Take

Readers who are unmoved by Posner's more highfalutin' treatment of democracy may still ask the pragmatist's fundamental question: What are the results of his everyday pragmatism? When it comes to pragmatism's application to specific issues, Law, Pragmatism, and Democracy is a mixed bag.

Posner usefully revisits the Clinton impeachment saga. For example, he criticizes the Supreme Court's decision in Clinton v. Jones, which permitted Paula Jones to maintain her sexual harassment suit despite the fact that Clinton was then a sitting President. Posner argues that the Court failed to consider the likely practical consequences of such a lawsuit - instead relying on high-blown but ultimately unhelpful bromides such as "no man is above the law." A more pragmatic approach, he implies, would have placed greater weight on its anticipation of how disruptive and distracting such lawsuits and their fallout (in this case, the Lewinsky scandal) might be.

At the same time, he takes the deliberative democrats in the law schools and elsewhere to task over the Clinton impeachment. Given that their philosophy is grounded on the moral capacity of public officials to perform their duties in the public interest, he asks, why were they so silent about the disrepute into which Clinton selfishly cast his party and his office?

Posner also offers a pragmatic defense of the Supreme Court's work in Bush v. Gore - one that is less convincing than his attack on Clinton v. Jones. He aptly calls Bush v. Gore "the most execrated modern decision of the Supreme Court." The opinion itself, Posner admits, is "at worst . . . a very bad decision."

But he nevertheless defends it on pragmatic grounds. He sees it as a reasonable response to a potential political crisis - in which former Treasury Secretary Lawrence Summers would have become Acting President, and the nation would have been paralyzed by bitter political struggle.

A writer who, like Posner, says that pragmatism is the dominant American philosophy must acknowledge that a political resolution of the election struggle might yet have resulted in a more practical settlement of the dispute. Put bluntly, Bush v. Gore was hardly the only pragmatic alternative available.

But Posner is right at least to point out that the most bitter survivors of Bush v. Gore will likely be the law professors, whose opinions shouldn't concern us too much. Despite dire predictions, Posner notes, the public has largely moved on, and the Court has suffered little lasting damage to its prestige.

Bush v. Gore is a poor decision, but there have been others. If it illustrates anything, it is not that the Court is inherently political, but that one should expect little from judicial decisions reached in haste and under duress.

Unfortunately, Posner can offer no clearer metric than that for judging when wartime measures go too far, and it is not enough.

Judges may well be as dogmatic, during wartime, in overestimating the claims of national security, as they are, in peacetime, in enshrining liberty. Perhaps a truly far-seeing pragmatic judge should be modest during war and peace alike: reluctant to overemphasize liberty in peacetime, knowing that a threat may be around the corner, and careful about curtailing that liberty once the threat arrives, knowing that emotion rather than prudence may be guiding his or her decision.

Posner the Anti-Pietist: A Pleasingly Plainspoken Writer

In any event, the signal virtue of Law, Pragmatism, and Democracy, as with much of Posner's work, is neither the big picture nor its broader applications. Rather, it is the little chestnuts he strews along the way.

As always, it is worth the price of admission just to enjoy Posner's casual destruction of commonplace legal and social pieties. For instance, he bluntly questions the usefulness of "slogans like 'self-government' and 'democracy,'" and calls "condescension toward ordinary people" the "leitmotif of constitutional theorizing." And he refers to Law Day as "lawyers' self-congratulation day."

Whatever the bon mot, Posner is always at his best when bursting bubbles and exposing the profession's self-regard. His arrows hit their marks, even when aimed at himself - he calls the pragmatic approach to judging that he offers here "nebulous and banal," among other things. That bracing, unsentimental, plainspoken quality is certainly present in Law, Pragmatism, and Democracy, although it is less vivid than in some of Posner's recent books.

If Posner himself is the epitome of a pragmatic judge, then readers of this book may pray that the federal bench will be blessed with more Posners. Given the difficulty most commonplace judges would have in wisely applying his formless pragmatic "mood," however, they may also mutter: "...but not too many."