The Poetics of the Pragmatic: What Literary Criticisms of Law Offers Posner

By Binder, Guyora | Stanford Law Review, July 2001 | Go to article overview

The Poetics of the Pragmatic: What Literary Criticisms of Law Offers Posner


Binder, Guyora, Stanford Law Review


Is it practical to evaluate law aesthetically, as if it were a kind of literature? In reviewing Literary Criticisms of Law.(1) Judge Richard Posner argues that it is not instrumentally useful to view law as a kind of literature.(2) He thereby reasserts his long-held position that law should be evaluated economically rather than aesthetically.(3) In this response, I argue that Posner's pragmatism requires that he evaluate law aesthetically, if he wishes to evaluate it at all.

Famous as a tireless promoter of conservative law and economics, Judge Posner has more recently restyled himself as an equally energetic exponent of "pragmatism,"(4) thereby placing himself in the unlikely company of such progressive social critics as Richard Rorty, Cornel West, Margaret Radin, and Stanley Fish.(5) This has been a welcome development. Pragmatism is an appealingly flexible doctrine that makes the test of any action or belief the difference it makes in practice. Pragmatism asks us to compare the consequences of any action or claim with the consequences of available alternative actions or claims. But unlike other consequentialist doctrines, such as utilitarian policy analysis or verificationist epistemology, pragmatism does not prescribe further criteria for comparing alternative bundles of consequences.(6) It treats the justification of action and belief as a matter of situated practical judgment and denies that justification must rest on a foundation of indubitable knowledge.

Judge Posner's pragmatic turn has placed a rhetorically able and visible advocate in the service of this sensible doctrine. It has helped him think through the complex practical responsibilities of his role as a judge, while tempering his claims for efficiency analysis and adulterating that analysis with other values.(7) It has coincided with a great broadening in his intellectual interests, and in his articulated values and sympathies. It has produced one very good book of legal philosophy, The Problems of Jurisprudence,(8) and another containing many excellent arguments, The Problematics of Moral and Legal Theory.(9) which is, however, marred by an intemperate tone. Pragmatism has benefited Judge Posner in many respects, but it has not overcome one disabling idiosyncrasy: His persistent antipathy toward the humanities seems to blind Judge Posner to the role of aesthetic value in practical judgment and justification. It also impedes his ability to assess, or even absorb, the argument Robert Weisberg and I offered in Literary Criticisms of Law.

In his recent review of Literary Criticisms of Law, Judge Posner reiterates his long-held position that literary theory is irrelevant to law. Offering our book as an example, Judge Posner characterizes scholarship applying literary theory to law as an unpragmatic, even "decadent" enterprise, pursued only by enervated leftists left behind by the march of free enterprise. Readers of his review essay do not learn that Literary Criticisms of Law offers a pragmatic critique of the law and literature field more extensive, but more balanced, than Judge Posner's own. More importantly, readers do not learn about our argument that a literary analysis and evaluation of law is indispensable to the kind of pragmatic jurisprudence Judge Posner professes to favor.

In the balance of this essay, I explicate the polemical impulses that appear to have shaped Judge Posner's crabbed reading of our book. And I argue that a pragmatic jurisprudence, whether progressive or conservative, must recognize that law cannot be viewed simply as an instrument. Law is the art of composing society, and normative legal argument therefore is a rhetoric of aesthetic value, properly understood as a kind of cultural criticism.

In Literary Criticisms of Law, Robert Weisberg and I critiqued scholarship applying the theory and methods of literary studies to law. We showed that much literary criticism of law is flawed by one of two unpragmatic premises: the skeptical premise that legitimate law must rest on objective foundations,(10) and the sentimental premise that it must fully appreciate the feelings of its subjects. …

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