The Philosopher‐Judge: Some Friendly Criticisms of Richard Posner's Jurisprudence
| Date | 01 May 1996 |
| Author | Matthew H. Kramer |
| Published date | 01 May 1996 |
| DOI | http://doi.org/10.1111/j.1468-2230.1996.tb02093.x |
REVIEW ARTICLE
The Philosopher-Judge: Some Friendly Criticisms
of
Richard Posner’
s
Jurisprudence
Matthew
H.
Kramer”
Richard
A.
Posner,
Overcoming
Law,
Cambridge, Massachusetts: Harvard
University Press, 1995,
x
+
597pp, hb $29.95.
Richard Posner has put together a very good book indeed. The latest of his
numerous works is a sprawling mClange of book reviews and other essays that have
appeared elsewhere, combined
with
several important essays that have not
previously been published. Although a lot of the footnotes in the book are probably
due to the efforts of the nine research assistants whom Posner thanks in his preface,
the range
of
the volume is nonetheless extraordinary. Such a book from a full-time
academic would be impressive; such a book from an active judge (who has also
written other vast tomes) is truly remarkable.
To submit that Posner’s text deserves high praise as
an
excellent piece of work is
not to imply that it is flawless, of course. The title is misleading; there are
occasional passages
or
statements that could have benefited from careful polishing;
there are a number of minor solecisms, analytical slips, inapposite quotations and
typographical errors; and there are some more important shortcomings on which
this review will focus.’ Before turning to any of the more important shortcomings,
however, we should briefly examine the overall tenor and achievements
of
Posner’s book.
Posner has divided his volume into six main parts, which deal
with
the following
topics: the legal profession and legal education, American constitutional theory,
varieties of legal theory, gender and race in legal theory, philosophical and
economic perspectives, and new directions for legal theory (especially law and
literature). Despite a prefatory statement to the contrary, the book
is
in many ways
a potpourri. Nonetheless, Posner has clearly laboured to tie the chapters together as
far
as
possible, and his basic theoretical commitments
-
pragmatism, economics
and classical liberalism
-
loom large in almost every chapter. (At only one point
has Posner inadvertently retained a reference to one of his chapters as ‘this article’
The insightful analyses and other meritorious features in Posner’s book are too
numerous and heterogeneous and complicated to be discussed adequately in a short
review article. Among the book’s fine virtues are its deliciously witty barbs, its
*Faculty of Law, University of Cambridge.
I
wish
to
thank the anonymous reader for very helpful comments.
1
(P
236)).
Posner’s title
is
not redeemed by
his
explanation of it on pp 2&21
-
an explanation in which he states
that ‘[tlhe “law”
to
which my title refers is
a
professional totem signifying
all
that is pretentious,
uninformed, prejudiced, and spurious in the legal tradition.’ For an example of the ungainly sentences
that could have profited from more extensive stylistic refinement, consider the following: ‘Judges rely
for their knowledge of the facts of or bearing on
a
case on the briefs and record and on published
materials’ (~210). Two examples of solecisms are ‘precocious’ for ‘perspicacious’ (p40) and
‘in
tandem’ for ‘in concert’ (p472).
465
0
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(MLR
59:3,
May).
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by Blackwell Publishers.
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