Law, Pragmatism, and Democracy
Language: English
Pages: 416
ISBN: 0674010817
Format: PDF / Kindle (mobi) / ePub
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.
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not rhapsodize over democracy the way the Concept 1 democrat, or the populist or trans- formative democrat, does, but he is a democrat; and rule by experts, car- ried far enough, transforms democracy into oligarchy. More is lost by swinging too far in the direction of the rule of experts 206 Law, Pragmatism, and Democracy than the representation of interests. Experts constitute a distinct class in society, with values and perspectives that differ systematically from those of “ordinary”
positing a basic norm (Grundnorm) as the highest norm in every legal system.20 “Basic” and “highest” rather clash, but we should understand “highest” in the sense of original, in the same way that “upstream” points toward the origin of a river. In the case of the U.S. (federal) legal system, the basic norm is that the U.S. Constitution creates valid legal norms. The basic norm certifies the authoritativeness of the Constitution as a source of law. The validity of the basic norm is—must be,
Law and Public Policy 129, 130 (1996); Sanford Levinson, “Was the Emancipation Proclamation Constitutional? Do We/Should We Care What the Answer Is?” 2001 University of Illinois Law Review 1135; Jay Winik, “Security Comes before Liberty,” Wall Street Journal, Oct. 23, 2001, p. A26. 21. Dworkin, note 7 above, at 45. 22. Winik, note 20 above—a useful article; it is only the title that I am objecting to. And maybe he just meant that survival comes before liberty, which I would agree with. 23.
be stronger but not certain to be so because the formalist’s zeal to correct legal error, the concept of legal error being more vivid to him than to a pragmatist, may exceed his commitment to stare decisis and other continuity-enhancing dimensions of the rule of law. But even that zeal enlarges and diversifies the portfolio of judicial ap- proaches. Coming back for the last time to Bush v. Gore, I consider it at best a questionable decision, and at worst, especially if one focuses on the
MacGilvray, “Experience as Experiment: Some Consequences of Pragma- tism for Democratic Theory,” 43 American Journal of Political Science 542, 551, 562 (1999); Jack Knight and James Johnson, “Inquiry into Democracy: What Might a Pragmatist Make of Rational Choice Theories?” 43 American Journal of Political Science 566 (1999). Harvey C. Mansfield and Delba Winthrop, quoting Tocqueville, contrast “democratic eagerness to get practical applications of science to the ‘ardent, haughty, and
