Pragmatism Without Politics
| Author | Neil Duxbury |
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb00938.x |
| Published date | 01 July 1992 |
| Date | 01 July 1992 |
REVIEW ARTICLE
Pragmatism Without Politics
Neil
Duxbury*
Richard
A.
Posner,
The
Problems
of
Jurisprudence,
Cambridge, Massachusetts:
Harvard University Press, 1990,
xvi
+
485
pp, f23.95 hb.
As with the study of any branch of law, the study of jurisprudence is very much
an exercise
in
charting change
in
the meaning of concepts. ‘Progress’ is essentially
a matter of old themes being seen to acquire a new lease of life. Even our most
modern,’ or even post-modern,* jurisprudential trends are a testament to the
manner
in
which old ideas linger, shift and slip. One can only wonder how things
could ever be otherwise. And yet the ‘progress’ to which we are witness, the forging
of the new from the old, seems increasingly to be marked by uncertainty. Where
is jurisprudence going? More specifically, where is jurisprudence going
in
relation
to the rest of the law syllabus? As teaching and research in most areas of law, certainly
in
the United Kingdom, appears to become ever more technical and pragmatic,
jurisprudence is becoming more intellectually adventurous, radical, colourful, at
times even whimsical. In its search for new concepts, or at least for new perspectives
on old concepts, jurisprudence has begun to look far beyond the horizons of the
modern law school
-
so
much
so
that, sooner or later, one assumes, academic
lawyers must consider afresh the issue of what
it
is that legal theorists do, and what
bearing their intellectual activities may have on other branches of legal research
and teaching.3
American jurisprudence was subjected to such scrutiny as far back as the 1930s,
when legal realism assumed the role of the rebellious offspring of the law school.
Questions were raised then about what purpose jurisprudence should serve
in
legal
education, and some proponents of realism felt compelled to make their perspectives
seem less uncompromising to other lawyers. Even
so,
for all that realism was tamed
-
for all that, ultimately, it ‘failed’
-
there are still today those who remain bitter
about its lega~y.~ There is a tendency, more generally, for American academic
lawyers
-
critical legal scholars excepted
-
to regard realism not simply as
discredited but as a cause for suspicion. The assumption seems to be: ‘Theory is
fine,
so
long as
it
is kept within reason; but once theorists are let off the leash
-
once jurisprudence strays too far beyond the boundaries of conventional lawyering
*Faculty of Law, University of Manchester.
My thanks
to
Jack Balkin, Peter Goodrich and Richard Posner
for
taking the trouble to comment on an
earlier draft. Responsibility for the end product
is,
naturally, mine.
See,
for example, Gunther Teubner, “‘And
God
Laughed”: Indeterminacy, Self-Reference and Paradox
in Law’ in C. Joerges and D.M. Trubek (4s).
Critical rPgal7hought:
An
American-German Debate
(Baden-Baden:
Nomos,
1989) pp 399-434, at 399 (tracing the idea of autopoietic law
to
the Talmud).
See, for example, Anthony Carty
(4).
Post-Modern
Law:
Enlightenment, Revolution and the Death
of
Man
(Edinburgh: Edinburgh UP, 1990). tracing the inspiration for post-modern jurisprudence
to
the Enlightenment.
See
W.T.
Murphy and Simon Roberts, ‘Introduction’ (1987)
50
MLR 677-687.
See,
for
instance, Charles Fried, ‘Jurisprudential Responses to Legal Realism’ (1988) 73
Cornell
L
Rev
33 1-334.
I
2
3
4
594
The
Modern Law Review
55:4
July 1992 0026-7961
July
19921
Pragmatism Without Politics
-
then the whole exercise becomes a cause for disquiet.’ Realism
-
so
received
wisdom would have
it5
-
was disquieting: it displayed a penchant for moral
relativism and rule-cynicism at a time when fascism was reaching its peak
in
Europe.
It
came,
in
short, to be seen as the philosophy of might equals right.6 Yet this
surely does not discredit realism, but serves to emphasise its importance. Certainly,
anything of significance that has occurred in American jurisprudence during this
century has, to a greater or lesser extent, occurred in relation to legal realism; it
is with realism, after all, that Anglo-American jurisprudence turned its attention
to the political content of law. Realism made American lawyers
in
particular
-
and not just legal philosophers
-
consider seriously the question of what they believed
law to be about, and what they believed
it
should be about.
If
realism is an illustration
of how jurisprudence fails, then there is surely no
need
for
it
ever to succeed, whatever
the criteria for success.
However one conceives it, jurisprudence should not simply be an exercise
in
reinforcing established wisdom about the legal system. There would be no point
to jurisprudence
if
its proponents did not, from time to time, wander off into an
intellectual wilderness
in
search of the unorthodox and the counterintuitive. For
all the generality of the suggestion, perhaps jurisprudence can serve no better purpose
than to prompt other lawyers to question their own ideas and assumptions about
law, even if sometimes such prompting may meet with a negative response. One
of the basic problems with jurisprudence
in
the United Kingdom is that its
representatives seem to be content by and large to address themselves to a readership
of legal theorists rather than to a more general audience. The American experience
informs us again that horizons need not be
so
narrow.’
The writings of the American judge and legal theorist, Richard Posner, rather
epitomise both how jurisprudence can sometimes seem inordinately narrow and how,
too,
it
is a subject which can force lawyers to broaden their attentions to ideas which
are
prima
facie
counterintuitive. The driving force behind the economic analysis
of law in the United States, Posner is doubtless best known for his ‘ethic’ of wealth
maximisation
-
the idea that,
in
all activities which involve choice, individuals
act as rational maximisers of their own wealth*
-
an ethic which, in the eyes of
many critics, is not really ethical at all (or is only
so
in a curiously perverted
sen~e).~ Posner himself has conceded that ‘[tlhere is for good or
ill
nothing in the
ethic of wealth maximisation which says that society has a duty to help the needy.
It has a duty not to hurt them, to leave them alone; but it has no duty, and
in
a
strict ethic of wealth maximisation no right, to force the productive people to support
Though for some piecemeal attempts
to
challenge this wisdom,
see
my ‘Some Radicalism about Realism?
Thurman Arnold and the Politics of Modern Jurisprudence’
(1990)
10
Oxford
J
of Legal Studies
I
1-41;
‘In
the Twilight of Legal Realism: Fred Rodell and the Limits of Legal Critique’
(1991)
I1
Oxford
J
of Legal Studies
354-395; and ‘Jerome Frank and the Legacy of Legal Realism’ (1991)
18
Journal
of
Law
and
Society
175-205.
See,
for
example, Francis E. Lucey, ‘Jurisprudence and the Future Social Order’ (1941) 16
Social
Science
21
1-217; Ben W. Palmer, ‘Hobbes, Holmes and Hitler’ (1945)
31
American Bur Association
Journal
569-573.
See my
‘In
the Twilight of Legal Realism’ and ‘Jerome Frank and the Legacy
of
Legal Realism,’
above
n
5,
passim.
See
Richard A. Posner,
The Economics ofJustice
(Cambridge, Mass: Harvard UP, 1981) pp
60-
1
15.
See, for example, Robin West, ‘Submission, Choice and Ethics: A Rejoinder to Judge Posner’ (1986)
99
Harvard
L
Rev
1449-1456, at 1449-1450; Arthur A. Leff, ‘Economic Analysis of Law: Some
Realism about Nominalism’ (1974)
60
Virginia
L
Rev
45
1-482, at 454-456 (and also Posner’s response
in
The Problems of Jurisprudence,
pp 76-77); ‘Unspeakable Ethics, Unnatural Law’ (1979) 6
Duke
W
1229- 1249, at 1244- 1245; Mark Kelman,
A
Guide
to
Critical Legal Studies
(Cambridge, Mass:
Harvard UP, 1987) p 149.
595
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