The Problems of Jurisprudence

In this book, one of our country's most distinguished scholar-judges shares with us his vision of the law. For the past two thousand years, the philosophy of law has been dominated by two rival doctrines. One contends that law is more than politics and yields, in the hands of skillful judges, correct answers to even the most difficult legal questions; the other contends that law is politics through and through and that judges wield essentially arbitrary powers. Rejecting these doctrines as too metaphysical in the first instance and too nihilistic in the second, Richard Posner argues for a pragmatic jurisprudence, one that eschews formalism in favor of the factual and the empirical. Laws, he argues, are not abstract, sacred entities, but socially determined goads for shaping behavior to conform with society's values. Examining how judges go about making difficult decisions, Posner argues that they cannot rely on either logic or science, but must fall back on a grab bag of informal methods of reasoning that owe less than one might think to legal training and experience. Indeed, he reminds us, the greatest figures in American law have transcended the traditional conceptions of the lawyer's craft. Robert Jackson did not attend law school and Benjamin Cardozo left before getting a degree. Holmes was neither the most successful of lawyers nor the most lawyerly of judges. Citing these examples, Posner makes a plea for a law that frees itself from excessive insularity and takes all knowledge, practical and theoretical, as grist for its mill. The pragmatism that Posner espouses implies looking at problems concretely, experimentally, without illusions, with an emphasis on keeping diverse paths of inquiry open, and, above all, with the insistence that social thought and action be evaluated as instruments to desired human goals rather than as ends in themselves. In making his arguments, he discusses notable figures in jurisprudence from Antigone to Ronald Dworkin as well as recent movements ranging from law and economics to civic republicanism, and feminism to libertarianism. All are subjected to Posner's stringent analysis in a fresh and candid examination of some of the deepest problems presented by the enterprise of law.

Table of Contents:
Preface Introduction: The Birth of Law and the Rise of Jurisprudence The Origins of Law and Jurisprudence A Short History of Jurisprudence A Preview of the Book PART I. THE EPISTEMOLOGY OF LAW 1. Law as Logic, Rules, and Science The Syllogism and Other Methods of Logic Rules, Standards, and Discretion Scientific Observation 2. Legal Reasoning as Practical Reasoning What Is Practical Reason? Authority Reasoning by Analogy A Note on Legal Education 3. Other Illustrations of Practical Reasoning in Law Interpretation Means-End Rationality Tacit Knowing Submitting to the Test of Time 4. Legitimacy in Adjudication The Problem of Rational Prejudgment Consensus Policy versus Pedigree as Warrants for Judicial Action How Are Judges' Visions Changed? Critical Legal Studies PART II. THE ONTOLOGY OF LAW 5.

About the Author :
Richard A. Posner retired as a judge of the United States Court of Appeals for the Seventh Circuit in 2017. He was previously a senior lecturer at the University of Chicago Law School.

Review :
Richard Posner is one of the nation’s most influential thinkers… He spearheaded the law and economics movement that has, in the eyes of many, revolutionized the entire legal enterprise… The bulk of his book consists of close analyses…and crucial discussions…all of which are bolstered by an impressive array of references to the rich literature of contemporary law, philosophy, science and jurisprudence. As one reads through this remarkable book, Posner’s vision of law slowly builds to a climax that…is awesome… [He] tackles all the basic problems of legal thought and of moral and political philosophy since the time of Plato and Aristotle [and] enables us to see the richly textured fabric of our legal system in a more coherent manner than has anyone else. [Posner’s] book will challenge everyone. All sides will likely draw upon the work, even as they differ with it and among themselves… [It is an] extraordinarily wide-ranging, intellectually stimulating book. In short, sophisticated legal types should certainly read Posner to learn that he now argues for ‘pragmatic jurisprudence’ and ‘reasonable’ answers in law against absolute ‘right answers’… Layman should read Posner for a more vital reason. Because a nation supposedly ruled by law, not men, should be literate enough in jurisprudence to tell the difference. It’s hard to be in the presence of Richard Posner, or his writings, without learning. He says, in his book, many wise things about the ways of judges, and I am persuaded that, in his commentary on judges and their handling of several important issues in our polities, he has it, cannily, right… If Posner could be elevated, by magic, to the Supreme Court, without the hazards of the confirmation process, that institution would no doubt become a more interesting, charged place.