The Problems of Jurisprudence

Richard A. Posner

• Publisher: Harvard University Press
• Year: 1993
• Print ISBN:
  9780674708761
  9780674708754
• eBook ISBN:
  9780674255487
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

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.

PART I

THE EPISTEMOLOGY OF LAW

1

Law as Logic, Rules, and Science

This chapter begins the inquiry into whether and to what degree law is objective, impersonal, determinate: whether, in other words, it is an external (though not necessarily an effective—that is a separate question) constraint on judges; in an earlier diction that has come to seem naive, whether judges find rather than make law. I offer a moderately skeptical answer, in two steps. First, many important questions of law, though certainly not all and maybe only a tiny fraction (but one rich in landmark and seminal cases), cannot be answered by the use of the methods of legal reasoning, in part because those methods are not powerful when viewed as tools for construction rather than merely for criticism. Second, when legal reasoning runs out and the judge has to appeal to policies, preferences, values, morals, public opinion, or whatever else may be necessary to answer a legal question in a way satisfactory to himself and his colleagues, it will often mean that the answer is indeterminate. If, to anticipate subsequent discussion, “truth is what would emerge as the result of unconstrained inquiry pursued indefinitely,”¹ then indeterminacy is the state where unconstrained inquiry is—interminable: where there is no light at the end of the tunnel. That is often the case in law.

The first half of my thesis denies Coke’s “artificial reason” but is consistent with the possibility that legal outcomes can be made determinate by methods of analysis that owe nothing to legal training or experience. The second half denies that every legal question has a right answer, whatever sources or procedures are appealed to. The artificial-reason thesis reflects nostalgia for a lost sense of the law’s autonomy, the right-answer thesis nostalgia for lost certitudes. I disagree with both theses, but I also disagree with the radical skepticism that equates law to politics (and hence a judge to a legislator or other politician), regards all legal analysis as bunk, all legal questions as indeterminate. Although “politics” is a word of many meanings, some of which overlap “law,” it is not true that what a judge does is indistinguishable from what a legislator or an executive-branch official does.

So I face two ways in this chapter, as throughout the book. I defend my middle position primarily by attacking the extremes, particularly the right-answer / artificial-reason extreme because that is the more plausible and influential one. Whether the reader who is persuaded by my arguments thinks I have shown that the glass is half full or half empty will depend on the reader’s conception of how objective, impersonal, and determinate law must be to deserve the name of law—which is not to say, however, to deserve the citizen’s respect. Law can be highly objective and impersonal, yet thoroughly unjust. The inquiry into justice is postponed to later chapters, but the tradeoff between formal and substantive justice should be kept in mind from the start.

To decide how people, judges specifically, might acquire true beliefs about legal questions will require consideration of the various methods by which nonlawyers acquire true beliefs about nonlegal questions, as well as consideration of the use of such methods by lawyers and judges. The methods can be divided into two broad classes, exact inquiry and practical reason. The first will occupy us in this chapter.

The Syllogism and Other Methods of Logic

I begin with the apt and famous (though, as we shall have occasion to notice, nonstandard) syllogism: “All men are mortal; Socrates is a man; therefore Socrates is mortal.” The validity of the argument—not the truth of the conclusion, which depends on the truth of its premises—seems utterly compelling. But that is only because the conclusion that Socrates is mortal is contained in the first premise, the definition of “man.” That premise says, in effect, here is a box, labeled “men,” with a bunch of things in it, every one of which is “mortal.” The second premise tells us that the things in the box have name tags and that one of the tags says “Socrates.” When we pluck Socrates out of the box we know he is mortal because the only things in it are mortals. We are merely taking out what we put in.

We thus find the syllogism’s validity compelling by virtue of a metaphor, the metaphor of the box. (It may seem odd that one’s confidence in the validity of logic should be bolstered by a metaphor—yet this is a clue to the limitations of logic and the cognitive importance of metaphor.) As we move away from the simplest, most transparent examples of logical reasoning, such as the syllogism, the nature and cogency of such reasoning become less perspicuous. We think that the proposition 2 + 2 = 4 is true by definition in much the same sense that the proposition that Socrates is mortal is true by definition. But because it is not clear in the numerical example what the container and the thing contained are, the metaphor of inclusion is no longer available to reassure us of the compelling quality of logical reasoning. And as soon as we begin to ask complicated mathematical questions, such as whether every even number is the sum of two odd prime numbers (as 16, for example, is the sum of 13 and 3), we enter a realm in which no mechanical or apodictic decision procedure is available and the questions are as difficult, uncertain, and inaccessible to lay understanding as the most difficult questions about the empirical as distinguished from the conceptual, the definitional, world. Indeed, it has proved impossible to reduce mathematics to logic.² But we can set these problems to one side and stick with the simplest forms of logical reasoning, for with rare exceptions they are the only ones lawyers use.

So compelling and familiar is syllogistic reasoning that lawyers and judges, ever desirous of making their activity seem as objective as possible, try hard to make legal reasoning seem as syllogistic as possible.³ The overuse of the syllogism is the defining characteristic of the brand of legal formalism attacked by Holmes. But today when used pejoratively, “formalism” is more likely to refer to an exaggerated belief in the transparency of statutory or constitutional language and hence in the possibility of definitely correct answers to difficult interpretive questions than to the overuse of the syllogism. When used nonpejoratively, formalism can refer to a strong—but perhaps justifiably strong—belief in the possibility of obtaining right answers to legal questions by means of conventional methods of legal analysis, mainly the careful reading of texts to find the rules in them, followed by deduction from the rules to the outcome of the particular case.⁴ Or formalism can refer simply to the use of logic to reason from premises to legal conclusions.

The most useful sense of this protean term, however, derives from the contrast between form and substance—form referring to what is internal to law, substance to the world outside of law, as in the contrast between formal and substantive justice. The autonomy and objectivity of law are secured by confining legal analysis to the formal level, the level requiring only an exploration of the relations among legal ideas. Autonomy and objectivity are threatened when the legal outcome depends on facts about the world, which might be the facts of a dispute or the social or ethical facts relevant to creating or interpreting a rule. Since logical reasoning is the exploration of relations between concepts, the relation between the form-substance sense of formalism and the logico-mathematical sense should be plain.

Formalism comes in both natural law and legal positivist varieties. The only prerequisite to being a formalist is having supreme confidence in one’s premises and in one’s methods of deriving conclusions from them. The natural law formalist is certain about the principles of justice and the power of logic to derive specific case outcomes from those premises; the positive law formalist is certain that the law consists only of legislative or other official commands that, read carefully, yield demonstrably correct results in all cases. Either approach spares the lawyer or judge from a messy encounter with empirical reality. There are not only natural law formalists and positive law formalists but also natural law realists and positive law realists. Most natural lawyers are formalists, though; and while most legal positivists are realists, there are plenty of positive law formalists. It is a safe bet that a majority of legal professionals are formalists.

Formalism contains a built-in bias against legal change; this is a clue to the breadth and durability of its appeal. The most secure premise for deducing the outcome of a new case is the decision of the most recent case that had essentially the same facts, so that the rule expressed or implied in that case fits the new one like a glove (another comfortable metaphor). As a result, people who are defending the legal status quo—whether it is a liberal status quo or a conservative one—tend to assume a formalist stance. But so, paradoxically, do the people attacking the status quo.⁵ Having the burden of persuasion, they want to show that their “revisionist” position is compelled by logic, is the authentic original position, that the defenders of the status quo are not merely wrong but demonstrably, irrefutably, and newly wrong—for example, because the precedents on which the defenders rely are invalid deductions from a more authoritative premise, such as the text of the Constitution. The rhetorical power of formalism makes discourse about law more formalistic than the actualities of the judicial process warrant.

I have been stressing the syllogism (including the enthymeme), but of course lawyers employ other elementary forms of logic as well, such as the principle that a proposition cannot be both true and false or that if two things are identical to a third they are identical to each other. Lawyers also use the language of logic where, strictly speaking, it does not belong. Most judges (myself included) would say without hesitation that it would be illogical to read into a speed-limit statute an implied exception for BMWs (as distinct from one for police cars or ambulances). Yet this is using “illogical” as a synonym for “clearly wrong.” A harmless usage unless taken literally, it misconceives the domain of logic. Logic has nothing to do with the question, easy though it may be to answer. The question is one of statutory interpretation, and we shall see that interpretation, although it sometimes yields reasonably certain answers, is not a method of logic. Given the purpose of the statute, there is no reason to exclude BMWs. But the rejection of the exception becomes a logical conclusion only after a rule has been extracted from the statute by a process that is not itself one of logic.

It is similarly misleading to suggest that logic informs in a helpful way the idea of treating like things alike—an idea of great resonance for law (equal justice under law, equal protection of the laws, equality before the law, one law for rich and poor, and so forth). Although a natural extension of the logical propositions that things are identical to themselves and that two things identical to a third are identical to each other, the idea is empty without specification of the criteria for “likeness,” and in law those criteria are political.⁶ The legal principle of equal treatment distinguishes those differences between litigants that may properly be considered in the allocation of legal benefits and burdens, such as differences in skill and effort, from those that, sometimes or always, may not be, such as differences in religion, race, social class, income, or relationship to the judge. The principle has nothing interesting to do with the avoidance of contradiction except insofar as it forbids completely arbitrary—“irrational”—classifications (like the exception for BMWs), as distinct from vicious, invidious, or politically intolerable ones that may be perfectly rational, at least to the classifiers. But irrational classifications are rare.

Rules, Standards, and Discretion

Despite the critical tone of the previous section, most legal questions are resolved syllogistically. A legal rule has the form of the major premise of a syllogism. For example: no contract is enforceable without consideration; the contract in suit has no consideration; therefore the contract is not enforceable. By a process not itself syllogistic or otherwise deductive, judges extract rules from statutes and previous decisions and then use them as premises to decide cases syllogistically. Are wages income? Is marriage to one’s sister valid? Is murder excused if the victim consents in advance? Is it illegal to drive sixty miles an hour in a forty-mile zone? Is Illinois entitled to have three U.S. senators? These and many other legal questions are answered deductively by the application of clear and uncontested rules to facts determined or conceded. The reason such questions do not figure largely in legal debate, and indeed lie almost beneath the professional horizon, is that they are too simple to be a likely subject of litigation or even to require legal counseling. This makes it easy in doing jurisprudence—too easy—to forget about such questions and suppose that all legal questions are indeterminate. (There is a missing link here: questions might have determinate answers without those answers’ being logically entailed. But that is a subject taken up in later chapters.) Not only are many legal questions determinate in the approximate sense of logical determinacy; they are the very ones that loom largest in the thinking of ordinary people about law. Most laypeople demand of the law only that it tell them the rules they must live by, and they are therefore more likely than lawyers to think of law as determinate, constraining. A big part of legal training, especially at the elite law schools, is exploration of the law’s indeterminacies, and it creates an outlook remote from that of the average person and indeed from that of many lawyers. Another reason that laypersons have a more vivid sense of the law’s determinacy than do lawyers is that lawyers, sometimes with a guilty conscience, tell the laity (I mean laypersons in general—not clients!) that the law is determinate.

We must distinguish between the validity of a syllogism and its soundness—that is, its power to yield a true conclusion. Soundness depends not only on the validity of the particular syllogism but also on the truth of the premises.⁷ This is not a problem with the syllogism about Socrates, because no one is likely to question that all men are mortal or that Socrates was a man. (Why no one is likely to question the first premise is not so clear as one might think, and will be discussed later.) But with rules of law, the truth of the major and minor premises is often contestable. To begin with, establishing the minor premise—in other words, finding the facts—is often difficult; and finding facts is not a process of logic. How difficult depends in part on the rule’s generality. Compare the two basic liability regimes for injuries caused by accident: strict liability and negligence. Under the former the injurer is liable if he caused the accident, and usually it will be pretty straightforward to determine whether he did cause it. Under negligence the injurer is liable only if he could have avoided the accident by exercising due care. Even if “due care” is defined quite precisely, for example as taking precautions that cost less than the expected cost of the accidents they would prevent, there may be difficulty determining whether this precondition of liability has been established.

A rule, such as negligence, that requires a relat...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Preface
• Introduction: The Birth of Law and the Rise of Jurisprudence
• Part I. The Epistemology of Law
• Part II. The Ontology of Law
• Part III. Interpretation Revisited
• Part IV. Substantive Justice
• Part V. Jurisprudence Without Foundations
• Index