Practically Unreasonable - A Critique of Practical Reason: A Review of the Problems of Jurisprudence by Richard A. Posner
University of Missouri at Kansas City - School of Law
November 7, 2008
Northwestern University Law Review, Vol. 85, No. 2, 1991
Jurisprudence is confronting a familiar crisis: the political authenticity of judges dispensing decisions. Much of jurisprudence in the past half century is a series of projects designed to confer legitimacy on judicial decisionmaking. The legitimacy projects exhibit a defensive reductionism: moving from structural justifications for the political system to systemic justifications of decisionmaking, and now to methodological justifications on the decisional level.
In the 1980s, the critical legal studies (CLS) movement attacked the joined notions that any principles were neutral and that legitimacy could be achieved by a majoritarian consensus. If accepted, the CLS challenge meant that the rule of law was in serious doubt: law could not rule, let alone rule fairly, because laws were ultimately manipulable. The CLS challenge went to the heart of the rule of law, and has evoked a strong response from legitimacy theorists who want to make judicial decisionmaking politically authentic. It is this project which drives the practical reason movement.
While the current wave of practical reason has various incarnations, the parent concept is Aristotle's idea of phronesis or practical wisdom. For Aristotle, the exercise of good judgment comprised qualities of character and methods of deliberation. Thus, Aristotle's answer to the problem of judicial legitimacy was to select judges who possessed a constellation of appropriate character traits. With the judicial selection process remaining relatively unalterable, however, practical reason theorists have turned their attention to justifying methods of judicial decisionmaking.
The practical reason school has a powerful spokesperson in Judge Richard Posner. In The Problems of Jurisprudence, Posner proclaims: Jurisprudence needs to become more pragmatic. As the title of the final chapter - A Pragmatist Manifesto - implies, Posner's project is to help jurisprudence get there.
This review of The Problems of Jurisprudence focuses on the scientific unreasonableness of Posner's version of practical reason. It suggests that while Posner verbally champions inquiry and critical thinking, his methods move in the opposite direction. Posner's version of practical reason relies on untutored and nonreflective techniques of reasoning, a visceral appeal to common sense as good judgment, and the unjustified supposition that values are shared by the judiciary and the populace.
This review summarizes Posner's book and delineates his version of practical reason. It then takes a position against common sense - as a method of thinking, and particularly as the bedrock for a theory of judging. I submit that the adoption of intuitive and common sense ways of thinking as a judging philosophy will lead to a lack of openness and testability of juristic methods, reductionist instead of systematic thinking about legal issues, and a diminished impetus for both self-reflective and externally exploratory behavior on the part of judges.
Number of Pages in PDF File: 25
Keywords: Practical Reason, Aristotle, Jurisprudence, Legitimacy, Judicial decisionmaking, Critical Legal Studies, Rule of Law, Phronesis, Practical wisdom, Judicial legitimacy, Pragmatism, Pragmatist, Common sense, Richard Posner
JEL Classification: K10, K19, K30, K40, K41, K49Accepted Paper Series
Date posted: November 10, 2008
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