Law, Pragmatism, and Democracy (Google eBook)

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Harvard University Press, Jun 1, 2009 - Law - 416 pages
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A liberal state is a representative democracy constrained by the rule of law. Richard Posner argues for a conception of the liberal state based on pragmatic theories of government. He views the actions of elected officials as guided by interests rather than by reason and the decisions of judges by discretion rather than by rules. He emphasizes the institutional and material, rather than moral and deliberative, factors in democratic decision making.

Posner argues that democracy is best viewed as a competition for power by means of regular elections. Citizens should not be expected to play a significant role in making complex public policy regarding, say, taxes or missile defense. The great advantage of democracy is not that it is the rule of the wise or the good but that it enables stability and orderly succession in government and limits the tendency of rulers to enrich or empower themselves to the disadvantage of the public. Posner's theory steers between political theorists' concept of deliberative democracy on the left and economists' public-choice theory on the right. It makes a significant contribution to the theory of democracy--and to the theory of law as well, by showing that the principles that inform Schumpeterian democratic theory also inform the theory and practice of adjudication. The book argues for law and democracy as twin halves of a pragmatic theory of American government.

  

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Posner outlines the radical middle. Worth 4 1/2 stars. Check out the blog he writes with Paul Becker. Read full review

Contents

Pragmatism Philosophical versus Everyday
24
The Pragmatic Mood and the Rise of Philosophical Pragmatism
26
Orthodox versus Recusant Pragmatism
35
The Influence of Philosophical Pragmatism on Law
41
Everyday Pragmatism
49
Legal Pragmatism
57
Some Principles of Pragmatic Adjudication
59
John Marshall as Pragmatist
85
The 2000 Election Deadlock
218
Judges on Democracy
226
Schumpeter Antitrust and the Law of Democracy
234
Of Human Nature
247
Kelsen versus Hayek Pragmatism Economics and Democracy
250
Kelsens Theory of Law
251
Kelsen Pragmatism and Economics
265
Kelsens Positivism Contrasted with the Positivist Theories of Hart and Easterbrook
268

The Objections to Legal Pragmatism Recapitulated
93
John Dewey on Democracy and Law
97
From Epistemic to Deliberative
99
Deweys Concept of Political Democracy Evaluated
111
Deweys Theory of Law
113
The Theory Extended
118
Two Concepts of Democracy
130
Idealistic Deliberative Deweyan
131
Elite Pragmatic Schumpeterian
143
American Democracy Today
150
Democracy and Condescension
155
Democracy Defended
158
But Is the Well Poisoned?
178
Pragmatism and Convergence
184
An Economic Interpretation of Concept 2 Democracy
188
A Behavioralist Interpretation
203
But Is Concept 2 Democracy Legitimate?
206
The Concepts Applied
213
Hayeks Theory of Adjudication
274
Hayek on Kelsen Kelsen and Schumpeter
288
Legality and Necessity
292
Crisis Prevention as Pragmatic Adjudication
293
Lawyers Hubris
308
Clinton v Jones
317
Pragmatic Adjudication The Case of Bush v Gore
322
A Potential Crisis Averted
328
A Pragmatic Donnybrook
331
The Perils of Formalism
347
The Democratic Legitimacy of Pragmatic Adjudication Revisited
349
Coping with Indeterminacy
352
Purposes versus Consequences in First Amendment Analysis
357
The Pragmatic Approach to Free Speech
358
The Purposivist Critique of the Pragmatic Approach
368
Conclusion
384
Index
389
Copyright

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Page 24 - A pragmatist turns his back resolutely and once for all upon a lot of inveterate habits dear to professional philosophers. He turns away from abstraction and insufficiency, from verbal solutions, ^rom bad a priori reasons, from fixed principles, closed systems, and pretended absolutes and origins.

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About the author (2009)

Richard A. Posner is Circuit Judge, the United States Court of Appeals for the Seventh Circuit, and a senior lecturer at the University of Chicago Law School.

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