Richard Posner's Democratic Pragmatism

Abstract

Judge Richard Posner's recent book, "Law, Pragmatism, and Democracy", is a major contribution to the ongoing debate over the best conception of democracy and the role of judicial review within it.

Posner urges that political and legal decision-makers should be guided by what he calls everyday pragmatism rather than worry about abstract moral considerations (chs. 1-2). He links this conception of pragmatic government to an unromantic theory of democracy that rejects more demanding and idealistic views currently embraced by many political theorists and legal scholars. In contrast to deliberative democracy and other theories that require a high level of disinterested political involvement on the part of citizens, Posner follows Joseph Schumpeter in defending a theory of democracy limited to a competitive power struggle among members of a political elite for the electoral support of the masses. He further argues that judicial review should be based on a combination of pragmatism and adherence to his limited conception of democracy, rather than sticking closely to formalist theories of adjudication, which demand strict adherence to the text of the Constitution, legal precedent, or the original intent of the framers (chs. 6-10).

Judge Posner makes a large number of powerful points and his critiques of opposing views are often devastating. Unfortunately, he is less persuasive in defending the central theses of this book: his theories of pragmatism, democracy, and judicial review. Posner's version of pragmatism is both too narrow and too broad. Its excessive narrowness resides in Posner's failure to come to grips with the fact that the pragmatic soundness of an action cannot be assessed without a prior determination of whether the results it accomplishes are normatively desirable. This latter judgment cannot itself be a purely pragmatic one, but requires some sort of normative theory of ends. On the other hand, Posnerian pragmatism is also too broad because it is not clear what if any considerations can be excluded from its scope. A theory that incorporates everything ultimately proves nothing.

Posner's model of democracy likewise suffers from important deficiencies. While he is surely correct in claiming that Schumpeterian democracy is a superior alternative to the unrealistic visions of deliberative democrats, he is too quick to conclude that it is the best currently available version. Posner's defense of Schumpeter does not sufficiently consider the shortcomings exposed in recent scholarship in political science and economics. As a result, Posner fails to adequately refute the possibility that Schumpeterian democracy might function better if the powers of democratic legislatures were much more severely restricted than he considers desirable.

Finally, Posner's argument that judicial decision-making should be based on his theories of pragmatism and democracy suffers from the limitations of those theories themselves. It also has additional shortcomings of its own, including the likely inability of judges to implement those theories. As Posner himself partially acknowledges, judges may often serve democracy better by staying within the bounds of formalism.

Keywords: Constitutional law, political ignorance, democracy, judicial review, pragmatism, formalism, Schumpeter, Posner, deliberative democracy

JEL Classification: K19