PRESTOPUNDIT

The Economist on Richard Posner's Law, Pragmatism, and Democracy -- from the review:

Mr Posner describes himself as an “everyday” pragmatist. Despite the thousands of words he devotes to the subject, it is not really clear what he means by this. He seems to mean that he is in favour of ignoring general moral and ethical principles because they are meaningless. All that counts—and what judges should consider above all else in interpreting the law—is what is sensible and produces the best result from society's point of view.

But these are highly controversial questions, and the answers to them invariably involve assumptions about moral principles. Mr Posner's approach is essentially hollow, amounting to little more than a demand that people not think too deeply about issues.

The second problem with many of Mr Posner's ideas is that they seem inappropriate for a senior judge to be expounding. For example, he argues strongly in this book for the notion that democracy has little to do with rational deliberation or citizen involvement, but is instead merely a matter of competition between self-interested elites for the temporary favour of an apathetic and ignorant electorate.

As a description of how America's democracy actually works, this is certainly plausible, but Mr Posner goes beyond this description to argue that this is the best that can be expected from the system and those who use it. That is a disconcertingly scornful view for a judge to take of the American public.

More troubling still is Mr Posner's view that judges should impose their own policy choices on a case whenever ambiguity in the law gives them the discretion to do so. Many judges do this, though nearly all deny it, justifying their decisions instead by reference to laws and court precedents. Mr Posner thinks this is usually legal flim-flammery, and that frank judicial activism would be better. Few people, on the right or the left, would swallow this.