Overcoming Law
By Richard A. Posner
Harvard University Press, 605 pages, $39.95
Richard Posner is one of the intellectual giants of the legal profession. As a professor at the University of Chicago Law School he founded the contemporary law and economics movement, taking economic analysis from its established home in antitrust law, and extending it to law in general”including torts, contracts, criminal law, property law, and family law. In subsequent works, Posner boldly attempted to turn economic analysis into an all-purpose philosophy of public life.
Economic analysis as practiced by Posner is something like utilitarianism. The main difference is that it does not aim to maximize all preferences equally, but favors preferences backed by purchasing power, which is a reward for producing goods or services valued by other people. People should obtain what they want by paying for it with their own earnings, not by forming political groups to pressure government to buy it for them with other people’s tax money. The emphasis, in short, is on making a bigger economic pie through efficient exchanges, as opposed to the usual academic project of finding reasons to divide the existing pie more evenly.
In one essay Posner offended liberal sensitivities by stating that unproductive people”whether lazy or disabled”should eat only to the extent that their needs fit into the utility curve of productive persons. In another he proposed legitimating the sale of unwanted babies for adoption, thus profoundly shocking sentimental liberals who see nothing wrong with abortion. Although Professor Posner’s proposals usually were closer to common sense than they sounded, and he was much more willing to modify his positions in response to criticism than most of his critics, his willingness to pursue a line of logic to disturbing conclusions earned him a reputation in some circles for having a powerful mind but no heart.
The Richard Posner of today has been a federal appellate judge for more than a decade, and judicial experience has tempered his earlier tendency to push market theory to its logical limits. His work output continues to be prodigious. Besides serving as Chief Judge of the United States Court of Appeals for the Seventh Circuit, and writing exceptionally literate and well-balanced judicial opinions, he publishes a substantial theoretical book more or less annually. If sheer ability were the main criterion, he would be named to the Supreme Court by acclamation, but he has left a vast “paper trail” of provocative statements that could be used against him in a confirmation hearing. He has been sufficiently critical of welfare liberalism and affirmative action to offend the left, and sufficiently supportive of a relativistic sexual morality to offend religious and social conservatives.
The opening chapters of Overcoming Law provide a succinct statement of Posner’s current judicial philosophy, a mixture of pragmatism and scientism. Pragmatists emphasize the pursuit of useful knowledge rather than absolute truth, on the assumption that the latter is inaccessible to us. Posner identifies pragmatism in this sense with science, and aspires to “nudge the judicial game a little closer to the science game.” This implies a relative indifference to such things as tradition, precedent, and the elusive “original intent” of legislators and constitution-framers.
Of course there are pragmatic reasons for following precedent and statutory language on most occasions, or at least pretending to do so, but Posner thinks that the strictly legal materials are too conflicting and incoherent to guide decision-making on the really controversial questions. For Posner as for Oliver Wendell Holmes Jr., his intellectual forerunner, the ultimate goal of the judiciary is to maximize societal welfare with the aid of policy sciences like economics.
In this volume Posner is primarily engaged in a critique of the self-serving, competition-restricting traditions of the legal profession, and of the often utopian and ill-informed proposals of the law professors. What he says on these topics is always perceptive and frequently devastating. Much misery and confusion would be avoided if all judges were to heed Posner’s admonition that they need to have clear goals and a realistic understanding of what judicial remedies can and cannot accomplish.
Posner thinks, for example, that Brown v. Board of Education was a great decision because the Warren Court pierced through the unrealistic rationalizations of “separate but equal” and articulated the social fact that legally mandated racial separation inherently kept African Americans in a state of political and social inferiority. Once the social reality was understood, “Jim Crow” segregation had to be declared unconstitutional regardless of whether the framers of the Fourteenth Amendment thought that the principle of equal protection of the laws was inconsistent with a state policy of racial separation in public schooling.
On the other hand, Roe v. Wade led the Court and the nation into endless trouble because the justices in the majority did not comprehend the moral and political dimensions of the abortion conflict, misperceiving it as a simple issue of liberty or medical practice. Posner writes that “On a pragmatic view the error of Roe v. Wade is not that it read the Constitution wrong”for there are plenty of well-regarded decisions that reflect an equally freewheeling approach to constitutional interpretation”but that it prematurely nationalized an issue better left to simmer at the state and local level until a consensus of some sort based on experience with a variety of approaches to abortion emerged.”
That “wait and see” attitude may sound morally anemic, but there is a lot of good sense in it. It is good for judges and other powerful officials to have sound pragmatic instincts, especially if the alternative is a reckless determination to pursue some inflexible rule regardless of the costs.
Pragmatism as a total philosophy is another matter altogether, however. The defining characteristic of philosophical pragmatism is that it turns away from the concept that a proposition is true if it corresponds to absolute truth, “the way things really are.” Instead, a body of theory is judged by its internal coherence and its usefulness in meeting the practical challenges of the world. Pragmatists think that this relativism allows them to avoid metaphysical claims, which they disparage as “dogma,” but in practice this often means that they smuggle controversial metaphysical claims into their definitions.
Posner is no exception. He writes that because “No one knows how things really are,” there is no logical way to settle disputes over first principles. For example, “A claim that every human being has had a human father except Jesus Christ belongs to one frame of reference, the Christian; the denial of the claim to another, the scientific; both are found in our society.” But that way of comparing Christian theism with scientific naturalism trivializes Christianity, and confuses science with scientism. All scientific investigation can say about the Virgin Birth is that such an event would be a miracle, and that is exactly what Christians say about it.
Posner then cites, apparently as a typical example of Christian thought, Cardinal Bellarmine’s refusal to look through Galileo’s telescope. He says that Bellarmine was not being irrational; he was just “refusing to play the science game,” in which theories are required to conform to observation, because “his game was faith.” He might as well have said that Bellarmine’s game was superstition, or cynicism. If Christianity really involved a rejection of observation as a reliable basis for knowledge, then Christianity would be irrational on standards accepted by Christians themselves. Posner only pretends to take seriously the possibility that theism could be rational, while signalling with his terminology and choice of examples that rationality and scientific naturalism are virtually the same.
There is therefore a tension between Posner’s pragmatism and his continuing inclination towards scientism. A more consistent pragmatist would recognize that, while science at its best provides useful knowledge, the scientific community has some of the same characteristics that cause other professions to cling to self-serving dogmas. Big science is a virtual government monopoly dominated by very ambitious people, who have every incentive to put the most favorable spin on the data to further their own careers. The notorious cases involving Robert Gallo and David Baltimore illustrate how difficult it is to confirm allegations of brazen fraud, let alone the much more common practice of selective presentation of data.
Big science requires big money, and to get that money scientists sometimes employ a certain amount of hype. Thus, the AIDS research lobby insists in the teeth of the data that “everyone is at risk”; physicists tell the public that a Theory of Everything is at hand if only we will build them a Supercollider; and environmental scientists warn of disasters that will occur if funding for their laboratories is not increased. To point this out is not to bash science, but merely to recognize that scientists, like generals, bishops, and university presidents, tend to say things that further their institutional interests. In other words they behave as pragmatists, and not as people who believe in absolute truth and value it for its own sake.
There is an old joke among philosophers that says that “pragmatism doesn’t work.” The insight behind the paradox is that a philosophy that deals only with means and has nothing to say about ultimate ends is inadequate. Who wants to rely upon people who think that the only truth is that we should employ the most effective means to get whatever it is we happen to want? Truth prevails among men and women who love truth more than they love wealth, security, and applause. Such persons may be pragmatic in practice, but in philosophy they are not pragmatists, because pragmatism provides no reason for preferring truth to the rewards that come from telling people what they want to hear.
Philip E. Johnson is Professor of Law at the University of California, Berkeley, and author most recently of Reason in the Balance (InterVarsity Press).
