32 Pages Posted: 10 Oct 2011
Date Written: 2001
The process by which we represent our society's will and welfare in the medium of law is an imaginative and expressive one, narrating the path from a virtuous past to a decent future, informed by aesthetic judgment. In Literary Criticisms of Law, Guyora Binder and Robert Weisberg argued that, because law is literary in this sense, scholars can use the methods of literary criticism to "read" the law and to subject it to critical evaluation and reflective aesthetic judgment. In reviewing that book, Judge Richard Posner reasserted his long-held position that it is most useful to evaluate law economically rather than aesthetically. In this response, Guyora Binder reads Judge Posner's economic analysis as a pragmatic rhetoric. Judge Posner deploys a vigorous style in place of the premises of welfare economics which he has now abandoned, and defends markets on grounds that are ultimately aesthetic. Binder concludes that Judge Posner's normative pragmatism leaves him no choice but to evaluate law aesthetically, in spite of himself.
Keywords: Law and Literature, Posner, Pragmatism, Jurisprudence
Suggested Citation: Suggested Citation
Binder, Guyora, The Poetics of the Pragmatic: What Literary Criticisms of Law Offers Posner (2001). Stanford Law Review, Vol. 53, pp. 1509-1539, 2001; Buffalo Legal Studies Research Paper No. 2000-002. Available at SSRN: https://ssrn.com/abstract=1939434