Cover image for Law, pragmatism, and democracy
Law, pragmatism, and democracy
Posner, Richard A.
Personal Author:
Publication Information:
Cambridge, Mass. : Harvard University Press, [2003]

Physical Description:
xii, 398 pages ; 24 cm
Format :


Call Number
Material Type
Home Location
Item Holds
KF384 .P67 2003 Adult Non-Fiction Non-Fiction Area

On Order



A liberal state is a representative democracy constrained by the rule of law. Richard Posner argues for a conception of the liberal state based on pragmatic theories of government. He views the actions of elected officials as guided by interests rather than by reason and the decisions of judges by discretion rather than by rules. He emphasizes the institutional and material, rather than moral and deliberative, factors in democratic decision making.

Posner argues that democracy is best viewed as a competition for power by means of regular elections. Citizens should not be expected to play a significant role in making complex public policy regarding, say, taxes or missile defense. The great advantage of democracy is not that it is the rule of the wise or the good but that it enables stability and orderly succession in government and limits the tendency of rulers to enrich or empower themselves to the disadvantage of the public. Posner's theory steers between political theorists' concept of deliberative democracy on the left and economists' public-choice theory on the right. It makes a significant contribution to the theory of democracy--and to the theory of law as well, by showing that the principles that inform Schumpeterian democratic theory also inform the theory and practice of adjudication. The book argues for law and democracy as twin halves of a pragmatic theory of American government.

Author Notes

Richard A. Posner is a judge of the U.S. Court of Appeals for the Seventh Circuit and a Senior Lecturer at the University of Chicago Law School.

Reviews 1

Choice Review

Posner, a judge of the US Court of Appeals for the seventh circuit and a first-rate constitutional scholar, presents a brilliant defense of the manner in which Americans organize and operate their government. He demonstrates that the basic rules and institutions of the American legal and political system are explicable in pragmatic terms, an approach that is responsible for America's success vis-a-vis all other governmental systems, past and present. Its virtue is that it works better than the alternatives despite the fact that the quality of US elected and unelected officials has, since the presidency of George Washington, remained unimpressive. Especially enlightening are chapters that grapple with the meanings of democracy (participatory, populist, deliberative, elite, pragmatic) and with the twists and turns of constitutional law (the criterion for pragmatic jurisprudence is reasonableness). Posner buttresses his case with the insights of John Dewey, Friedrich Hayek, Hans Kelsen, and especially Joseph Schumpeter. Posner suggests that Bush v. Gore was a good example of pragmatic jurisprudence. Had the Supreme Court not halted the Florida election recount, there was no barrier to a serious crisis of presidential succession. This book is to be read and reread if one is to understand the intricacies of American constitutional democracy. ^BSumming Up: Essential. Upper-division undergraduate collections and above. R. J. Steamer emeritus, University of Massachusetts at Boston

Table of Contents

Prefacep. ix
Introduction: Pragmatic Liberalism and the Plan of the Bookp. 1
1 Pragmatism: Philosophical versus Everydayp. 24
The Pragmatic Mood and the Rise of Philosophical Pragmatism
Orthodox versus Recusant Pragmatism
The Influence of Philosophical Pragmatism on Law
Everyday Pragmatism
2 Legal Pragmatismp. 57
Some Principles of Pragmatic Adjudication
John Marshall as Pragmatist
The Objections to Legal Pragmatism Recapitulated
3 John Dewey on Democracy and Lawp. 97
Deweyan Democracy: From Epistemic to Deliberative
Dewey's Concept of Political Democracy Evaluated
Dewey's Theory of Law
The Theory Extended
4 Two Concepts of Democracyp. 130
Concept 1 Democracy: Idealistic, Deliberative, Deweyan
Concept 2 Democracy: Elite, Pragmatic, Schumpeterian
American Democracy Today
Democracy and Condescension
5 Democracy Defendedp. 158
The Two Concepts Evaluated
But Is the Well Poisoned?
Pragmatism and Convergence
An Economic Interpretation of Concept 2 Democracy
A Behavioralist Interpretation
But Is Concept 2 Democracy Legitimate?
6 The Concepts Appliedp. 213
The Impeachment of President Clinton
The 2000 Election Deadlock
Judges on Democracy
Schumpeter, Antitrust, and the Law of Democracy
Of Human Nature
7 Kelsen versus Hayek: Pragmatism, Economics, and Democracyp. 250
Kelsen's Theory of Law
Kelsen, Pragmatism, and Economics
Kelsen's Positivism Contrasted with the Positivist Theories of Hart and Easterbrook
Hayek's Theory of Adjudication
Hayek on Kelsen; Kelsen and Schumpeter
8 Legality and Necessityp. 292
Crisis Prevention as Pragmatic Adjudication
Lawyers' Hubris
Clinton v. Jones
9 Pragmatic Adjudication: The Case of Bush v. Gorep. 322
The Case
A Potential Crisis Averted
A Pragmatic Donnybrook
The Perils of Formalism
The Democratic Legitimacy of Pragmatic Adjudication Revisited
Coping with Indeterminacy
10 Purposes versus Consequences in First Amendment Analysisp. 357
The Pragmatic Approach to Free Speech
The "Purposivist" Critique of the Pragmatic Approach
Conclusionp. 384
Indexp. 388