Posner characterizes the current preoccupation with moral and constitutional theory as an evasion of the real need of American law, which is for a greater understanding of the social, economic, and political facts out of which great legal controversies arise, and advocates a rebuilding of the law on the basis of systematic empirical inquiry.
Abstract While pragmatism cannot resolve deep normative disagreements, it can, as a technique of judicial reasoning, at once resolve satisfactorily the majority of cases that do not involve such disagreements, while protecting democracy from overweening judicial assertiveness.
In this book, which consists of a revised version of the first Clarendon Law Lectures delivered in October 1995, Judge Posner attempts a comparative analysis of the English and American legal systems. The perspective is different from that of other works which have attempted the same kind of comparative study for two reasons: first because the author is a judge; and second because he is perhaps the best-known and most influential proponent of the idea that the social sciences, and in (...) particular economics, should inform both the study and the administration of the law. The essays contained in this volume reflect the judge's deep learning and exemplify the value of comparative study as a means of identifying trends, ideas and connections which may be immediately apparent from the study of a single system of law. (shrink)
This essay describes modern American legal pragmatism. Its origins in pragmatist philosophy are traced, and it is compared with the law and economics movement in American law and the formalist style of Continental legal theory. The essay argues that the inevitability of legal pragmatism in America, and its dispensability in Europe, reflect fundamental institutional and cultural differences rather than mere accidents of history or legal thought.
The correct solution to complex problems, such as those involved in international relations, can generally be discovered ex post but not predicted ex ante. Economics and game theory attempt to model such complexity, but have difficulty taking into account psychological subtleties, the myriad factors that each agent considers when making a decision, and cultural differences. And understanding that one is dealing with a system—that is, with interacting factors instead of with insulated monads—may not make the questions any more amenable to (...) prediction, particularly because the more unique an event, the less likely it is to be foreseen. Jervis's analysis of complex systems may therefore be more of a contribution to the historical sciences than to predictive social science. (shrink)
Orwell's novel Nineteen Eighty-Four and Huxley's novel Brave New World have often been thought prophetic commentaries on economic, political, and social matters. I argue, with particular reference to the supposed applicability of these novels to issues of technology and privacy, that the novels are best understood as literary works of art, rather than as social science or commentary, and that when so viewed Orwell's novel in particular reflects a dissatisfaction with everyday life and a nostalgia for Romantic values.
The training and experience of such academic philosophers as Richard Rorty and Hilary Putnam do not equip them with the economic and other social‐scientific tools necessary to make useful contributions to political discussion. In the case of Rorty, this has resulted in his being unable to make effective ripostes to left‐wing critics of his defense of “bourgeois liberalism,” his uncritical endorsement of simplistic arguments for social reform, and his embrace of false prophecies of doom, such as those found in Orwell's (...) novel Nineteen Eighty‐Four. Moreover, his disdain for “theory” has blinded him to the utility of mid‐level theories, such as those of economics, in dealing with concrete social problems. (shrink)
The law and economics movement is the principal interdisciplinary field of legal studies. This paper traces the history of the movement and explains its basic principles, contrasts the version of the movement that predominates in the United States with the version that prevails in Europe, noting the greater emphasis of the former on substantive doctrine and of the latter on rule of law considerations, and emphasizes the importance of the movement for legal and economic reform in developing nations.
Some people hate themselves. But if I say, “I hate myself,” who is this “I” that stands apart from “myself”? And notice how in the expression “I am not myself today,” the “I” and “myself” change places. Now it is “myself” who is the authentic, the authoritative, the judgmental “I,” and it is “I” who is the self that is judged and found wanting. Some people talk to themselves; when they do, who is speaking and who is listening?
Do the rich descriptions and narrative shapings of literature provide a valuable resource for readers, writers, philosophers, and everyday people to imagine and confront the ultimate questions of life? Do the human activities of storytelling and complex moral decision-making have a deep connection? What are the moral responsibilities of the artist, critic, and reader? What can religious perspectives—from Catholic to Protestant to Mormon—contribute to literary criticism? Thirty well known contributors reflect on these questions, including iterary theorists Marshall Gregory, James Phelan, (...) and Wayne Booth; philosophers Martha Nussbaum, Richard Hart, and Nina Rosenstand; and authors John Updike, Charles Johnson, Flannery O'Connor, and Bernard Malamud. Divided into four sections, with introductory matter and questions for discussion, this accessible anthology represents the most crucial work today exploring the interdisciplinary connections between literature, religion and philosophy. (shrink)
The long‐awaited second volume of Morton Horwitz's history of American legal thought covers the period 1870 to 1960. The focus is on academic law. Horwitz's thesis is that every generation rebels against the existing conceptual structure of law, but then establishes its own equally formalistic structure to replace it. The cycle can be broken only if the essentially political character of law is faced up to squarely. Unfortunately, Horwitz has attempted to reduce a century of American legal history to an (...) academic debate over formalism, which, in turn, he reduces to the personal idiosyncrasies of some of the participants. However, the book also contains a valuable, close‐grained intellectual history of the legal profession's struggle to adapt legal categories to changed social and economic conditions. (shrink)