The Problems of Jurisprudence

by
Edition: Reprint
Format: Paperback
Pub. Date: 1993-03-15
Publisher(s): Harvard Univ Pr
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Summary

In this book, one of our country's most distinguished scholar-judges shares with us his vision of the law. For the past two thousand years, the philosophy of law has been dominated by two rival doctrines. One contends that law is more than politics and yields, in the hands of skillful judges, correct answers to even the most difficult legal questions; the other contends that law is politics through and through and that judges wield essentially arbitrary powers. Rejecting these doctrines as too metaphysical in the first instance and too nihilistic in the second, Richard Posner argues for a pragmatic jurisprudence, one that eschews formalism in favor of the factual and the empirical. Laws, he argues, are not abstract, sacred entities, but socially determined goads for shaping behavior to conform with society's values. Examining how judges go about making difficult decisions, Posner argues that they cannot rely on either logic or science, but must fall back on a grab bag of informal methods of reasoning that owe less than one might think to legal training and experience. Indeed, he reminds us, the greatest figures in American law have transcended the traditional conceptions of the lawyer's craft. Robert Jackson did not attend law school and Benjamin Cardozo left before getting a degree. Holmes was neither the most successful of lawyers nor the most lawyerly of judges. Citing these examples, Posner makes a plea for a law that frees itself from excessive insularity and takes all knowledge, practical and theoretical, as grist for its mill. The pragmatism that Posner espouses implies looking at problems concretely, experimentally, without illusions, with an emphasis on keeping diverse paths of inquiry open, and, above all, with the insistence that social thought and action be evaluated as instruments to desired human goals rather than as ends in themselves. In making his arguments, he discusses notable figures in jurisprudence from Antigonc to Ronald Dworkin as well as recent movements ranging from law and economics to civic republicanism, and feminism to libertarianism. All are subjected to Posner's stringent analysis in a fresh and candid examination of some of the deepest problems presented by the enterprise of law.

Table of Contents

Preface xi
Introduction: The Birth of Law and the Rise of Jurisprudence 1(3)
The Origins of Law and Jurisprudence
4(5)
A Short History of Jurisprudence
9(15)
A Preview of the Book
24(13)
PART I. THE EPISTEMOLOGY OF LAW
Law as Logic, Rules, and Science
37(34)
The Syllogism and Other Methods of Logic
38(4)
Rules, Standards, and Discretion
42(19)
Scientific Observation
61(10)
Legal Reasoning as Practical Reasoning
71(30)
What Is Practical Reason?
71(8)
Authority
79(7)
Reasoning by Analogy
86(12)
A Note on Legal Education
98(3)
Other Illustrations of Practical Reasoning in Law
101(23)
Interpretation
101(4)
Means-End Rationality
105(3)
Tacit Knowing
108(4)
Submitting to the Test of Time
112(12)
Legitimacy in Adjudication
124(37)
The Problem of Rational Prejudgment
124(1)
Consensus
125(5)
Policy versus Pedigree as Warrants for Judicial Action
130(18)
How Are Judges' Visions Changed?
148(5)
Critical Legal Studies
153(8)
PART II. THE ONTOLOGY OF LAW
Ontology, the Mind, and Behaviorism
161(36)
Ontological Skepticism
161(6)
Mental and Other Metaphysical Entities in Law
167(19)
Behaviorism and the Judicial Perspective
186(11)
Are There Right Answers to Legal Questions?
197(23)
Questions of Law
197(6)
Questions of Fact
203(17)
What Is Law, and Why Ask?
220(27)
Is It a Body of Rules or Principles, an Activity, or Both?
220(19)
Holmes, Nietzsche, and Pragmatism
239(8)
PART III. INTERPRETATION REVISITED
Common Law versus Statute Law
247(15)
Objectivity in Statutory Interpretation
262(24)
The Plain-Meaning Fallacy
262(7)
The Quest for Interpretive Theory
269(9)
Indeterminate Statutory Cases
278(8)
How to Decide Statutory and Constitutional Cases
286(27)
Is Communication Ever Possible?
293(6)
Beyond Interpretation
299(3)
A Case Study of Politics and Pragmatism
302(11)
PART IV. SUBSTANTIVE JUSTICE
Corrective, Retributive, Procedural, and Distributive Justice
313(40)
Corrective Justice and the Rule of Law
313(17)
A Note on Retributive Justice-and on Rights
330(2)
Formal Justice
332(2)
Distributive Justice
334(14)
What Has Moral Philosophy to Offer Law?
348(5)
The Economic Approach to Law
353(40)
The Approach
353(9)
Criticisms of the Positive Theory
362(12)
Criticisms of the Normative Theory
374(13)
Common Law Revisited
387(6)
Literary, Feminist, and Communitarian Perspectives on Jurisprudence
393(30)
Law and Literature
393(11)
Natural Law and Feminist Jurisprudence
404(10)
Communitarianism
414(9)
PART V. JURISPRUDENCE WITHOUT FOUNDATIONS
Neotraditionalism
423(31)
The Decline of Law as an Autonomous Discipline
424(9)
The Neotraditionalist Response
433(21)
A Pragmatist Manifesto
454(17)
Index 471

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