Extra-Legal

The sixth form at the boys’ boarding-school where I was educated was addressed on one occasion by an outside speaker, a sanctimonious pedagogue who announced to us that he and his wife – bootfaced on the platform beside him – had overcome sex. He counselled us to do the same. To an audience of overheated 17-year-olds whose only ambition was for sex to overcome them, the proposition was as mystifying as a book written by a judge and called Overcoming Law.

The judge in this case, Richard Posner, is the Chief Judge of the United States Court of Appeals for the Seventh Circuit. He is also a senior lecturer in law at Chicago University and a widely published polemicist. At the heart of his polemics are three pulses, legal pragmatism, Millian liberalism and legal economics, which Posner believes beat in sympathy. Powered by them, he sets out to overcome ‘law’ in the bad old sense – formalistic, self-referential, supposedly autonomous law of the sort his generation and mine were taught at law school and read in the judgments of a judicial generation which has now passed on. This is a task which today is a great deal easier than overcoming sex, because anybody who seriously propounds the view that the words on the page are an unvarying statement of principle or rule for all time, and the lawyer’s task simply their explication, is in for the kind of bashing which Posner delivers in one of his chapters to the writings of Robert Bork. President Reagan’s capable and ultra-conservative nominee for the Supreme Court whose rejection by the Senate resulted instead in the appointment of Clarence Thomas.

Although legal literalism can crop up almost anywhere, its sharpest American manifestation, ‘originalism’, is a stalking-horse for a movement which wants to see a number of the Supreme Court’s most controversial modern decisions – those on abortion rights, flag-burning and so forth – reversed. Because the Constitution is sacrosanct (short of amendments which are not at present politically feasible), the only way back from these liberal decisions is by a reversal of the Court’s jurisprudence in favour of what the Founding Fathers are imagined to have wanted (or, in the case of abortion rights, to have overlooked). The trouble is, as Posner acknowledges, that everyone in the US claims to be an originalist: they have to be because of the scriptural status of the Constitution and its amendments. In consequence, every one of the liberal decisions which offend today’s originalists is itself loyally couched in constitutional rhetoric. The real debate is extra-legal. It is not whether judges ‘ought’ to be deriving abortion rights, which are not in the Constitution, from a right of privacy which is likewise not in the Constitution but can arguably be spelt out of the Fourteenth Amendment, or whether they should simply acknowledge that the Constitution has nothing to say on the issue: it is whether these cases have posed wrongs which the Supreme Court was right to remedy – a question of policy which the courts cannot duck, since to decline jurisdiction is just as dramatic a policy step as to accept it, but on which equally judges have no moral entitlement to the final word.

By this I do not mean that a legislature, being elected, is morally entitled to immunity for any tyrannical measure it cares to pass: I mean that the highest-profile issues on which, for better or for worse, the judges have to come to a decision are often not legal issues at all except in their formal presentation. We have seen this sharply in the United Kingdom, not only in the decision – which someone had to take – whether Tony Bland’s life support should be discontinued but in Victoria Gillick’s attempt to stop the Department of Health issuing contraceptive advice to, among others, girls below the legal age of consent. Willingly or unwillingly, the courts in such cases become arbiters of public morality. The process has nothing to do with the existence of a written constitution and everything to do with willingness to adjudicate. In fact the great and largely untried strength of a common law system like the United Kingdom’s is that it is relieved of the need to search a constitutional text for legitimation, and therefore of the need to pretend to have found it, before getting down to the task of decision-making.

It is here that Posner’s pragmatism strikes, for me at least, the right note. The sense in which he deploys it is, he says, ‘not ... its caricatural sense of deciding today’s case with no heed for tomorrow, but ... advocating the primacy of consequences in interpretation as in other departments of practical reason, the continuity of legal and moral discourse, and a critical rather than pietistic attitude toward history and tradition.’ The formulation has perhaps one rhetorical vice in its comforting use of ‘continuity’, where my guess is that he means, more disconcertingly, the mutability of legal and moral discourse. But, as I have argued recently in these pages, the recognition of outcomes as a legitimate subject of jurisprudence is necessary and welcome. It is, however, only a tentative first step – barely more, really, than a recognition that what people care about is the result, not how the lawyers got there. If this were all that mattered we would not need law: Judge Dredd (‘I’m a street judge’) or some form of people’s court with limitless powers and no appeal would do the business. So it is to outcomes that Posner’s other concerns are directed, with Millian liberalism as his end and economic analysis of law as his means.

The two are not, of course, unconnected. Indeed Posner also claims the blessing of pragmatism for liberal individualism ‘by comparing its consequences with those likely to be produced by such alternatives as social democracy and moral conservatism’. But this is a position he can reach only by assuming the very benignity of the consequences of liberal individualism which social democracy, conservatism and a range of other views dispute. The truth is, as it has to be, that liberal individualism is Posner’s chosen standpoint. From it he perceives a world in which economic self-interest offers the best chance of an equitable and successful society. And as a Millian liberal surveying the world from the University of Chicago in and after the Eighties, Posner unsurprisingly perceives economic analysis as the tool best adapted to the exploration and adjustment of the law. This may seem a cheap shot, but there is a telling passage in Eric Hobsbawm’s Age of Extremes:

Those of us who lived through the years of the Great Slump still find it almost impossible to understand how the orthodoxies of the pure free market, then so obviously discredited, once again came to preside over a global period of depression in the late 1980s and 1990s, which, once again, they were equally unable to understand or to deal with. Still, this strange phenomenon should remind us of the major characteristic of history which it exemplifies: the incredible shortness of memory of both the theorists and practitioners of economics.

Posner, cheerfully oblivious of history, claims that economic method enables us ‘to construct and test models of human behaviour for the purpose of predicting and (where appropriate) controlling that behaviour’. Economics, he says, ‘imagines the individual not as “economic man” but as a pragmatist ... not committed to any narrow, selfish goal such as pecuniary wealth maximisation’. In that case ‘imagines’ may well be the operative word, at least in relation to the 20th-century economic freebooter. And for anybody who knows how mean the rich can be and how generous the poor, a sense of dislocation from reality begins to loom when one reads: ‘The economic theory of altruism teaches that an altruistic transfer is likelier the greater the disparity in wealth between donor and donee.’

It is markets, not necessarily individuals within them, however, which in Posner’s world-view behave ‘rationally’: ‘Similarly, a model of criminals as rational maximisers may correctly predict that an increase in the severity of punishment or the probability of its imposition will reduce the crime rate even if most criminals have serious cognitive or emotional defects.’ A footnoté (Posner’s reading is prodigious for a practising jurist) suggests that research has verified such predictions. Is this not something to be dwelt on if it truly offers a verifiable economic correlation between the prescriptions of law and the control of crime? Might it contribute something to the debate about capital punishment, for example? And if research has not verified them, might there be something wrong with the methodology of the predictions? We do not learn. Instead, Posner offers analyses like the following, from his chapter ‘Economics and the Social Construction of Homosexuality’:

Formally, a homosexual act will be chosen over a heterosexual one if (B1 – C1) > 0, (B1 – C1) > (B2 – C2) ... where B1 and B2 are the benefits of the homosexual and the heterosexual act, respectively, to a particular person and C1 and C2 are the respective costs to him ... [E]ven if a person prefers, say, a homosexual to a heterosexual act, if the cost of the former is greater (perhaps because of the threat of punishment or because he wants to have children) he may substitute the heterosexual act unless his aversion to it is very great.

This reductionism – for in spite of Posner’s proleptic denial, that is what it is – derives no true support from the claim which follows: ‘The economic approach to homosexuality yields interesting, testable and to some extent supported hypotheses about homosexual behaviour. The most dramatic is the well-substantiated substitution of safe sex for unsafe sex by male homosexuals in the wake of the Aids epidemic.’ It is one thing to claim (if you are sufficiently unembarrassed by history or morality) that economics is simply rationality in action. It is another to claim that a piece of rational human conduct is simply economics in action and the statistical proof of it a vindication of economic method. The latter is like attributing the fact that most people do not murder their mothers to the efficacy of the law against matricide: it assumes rather a lot both about people and about laws. It certainly does nothing to elevate Posner’s cost-benefit analysis of sexual choice above what it is: an algebraic metaphor for some debatable facts.

Elsewhere in the volume Posner himself considers the use of metaphor in legal reasoning. The pragmatist, he says, may be more alert than the scientific realist to the possibility ‘that metaphor – which, properly understood, has no truth value – can be productive of knowledge by altering an inquirer’s frame of reference.’ This is good; it might well afford a tenable defence of his use of economics; but to concede that economic theory is at best, and in places, an illuminating metaphor for law will not sit with Posner’s idealisation of economics or allow him to qualify economics as he later qualifies metaphor: ‘A way of thinking, metaphor, yes, but often of an undisciplined and misleading character’. The reductionism of which he is guilty, I think, is not that against which he defends himself (‘that deep within us, pulling the strings, is a nasty little “economic man” ’) but a sustained effort to reduce the subtleties of law and adjudication to mechanisms of choice and constraint which mimic the supposed rationalities of the market. In this it does not differ at bottom from the class reductionism which he rightly assaults in some marxisant academics.

A harsher critic than I might well regard Posner’s economic fixation as the 13th chime of the clock, especially since Posner himself insists on the integration, in his thinking, of economics, liberalism and pragmatism – ‘the three approaches joining to form a powerful beam with which to illuminate theoretical issues in law’. By doing so he risks the pragmatic baby going down the drain with the economic bathwater, and this would be a pity because, as I have suggested, his pragmatic approach to constitutional law contains worthwhile insights. He accepts moreover that there are large questions of, and underlying, law on which economics have no purchase; here, he says: ‘I take my stand with the John Stuart Mill of On Liberty (1859), the classic statement of classical liberalism. On Liberty argues that every person is entitled to the maximum liberty – both personal and economic – consistent with the liberty of every other person in the society.’ But instantly, because he is no fool, he is on the retreat. First, he admits, you have to eliminate from the calculus what he calls ‘mental externalities’: that is to say, the welter of attitudes which have no economic or even obviously self-interested foundation and which, if admitted, ‘could furnish economic justification for every manner of discrimination against despised minorities’. It is by hiving off these ‘externalities’, he goes on, that the thinker moves from utilitarianism and economics to liberalism; but he is now using liberalism in an ethical rather than an organisational sense; and even though he attempts to retrieve his argument by associating liberalism with the Pareto test of efficiency – that a change makes someone better off and no one worse off – he has to accept that ‘the problem becomes insoluble when people’s preferences include the desire to deny some form of liberty ... to other people’: in other words, liberalism and liberality are by no means the same thing.

Posner is not ungenerous to the opposition. He writes in praise of Sir James Fitzjames Stephen, Mill’s philosophical antagonist, whose patrician prose and Nietzschean views he cannot help admiring, at least as a period piece, and whom he ends by trying to recruit: ‘Could it be that intelligent authoritarians and intelligent libertarians are at one on most practical questions?’ Hm. I wonder if Posner knows about the low blow which Stephen delivered to Mill long after the latter’s death when Stephen, by 1890 a Queen’s Bench judge, had to construe an extradition statute passed by the Parliament of which Mill had been a member. In debate Mill had contributed his view of what ‘an offence of a political character’ meant – a question on which Stephen had expressed a different view in his History of the Criminal Law. ‘I think,’ said Stephen in a judgment dripping with condescension,

that my late friend Mr Mill made a mistake upon the subject, probably because he was not accustomed to use language with that degree of precision which is essential to everyone who has ever had, as I have had on many occasions, to draft Acts of Parliament, which, although they may be easy to understand, people continually try to misunderstand, and in which therefore it is not enough to attain to a degree of precision which a person reading in good faith can understand; but it is necessary to attain if possible a degree of precision which a person reading in bad faith cannot misunderstand.

Stephen may make up in aphoristic wit what he lacks in generosity of spirit, but he is not a safe bedfellow for a liberal.

So one has to approach Posner as the curate approached his egg. And he is good in parts. A number of chapters are recycled reviews, mostly predictable in their stance but all written with style and intellectual energy and one – on the pre and post-war record of some of Germany’s judges – alarmed and passionate. He is at his most useful, however, where he deals with the centrist orthodoxies which attract his pragmatic criticism without engaging his economic theories. He strikes intelligently at Ronald Dworkin, whose insistence that prior constitutional principle was responsible for the decision in the abortion case of Roe v. Wade is made the occasion for a demonstration that neither Dworkin or Rawls or anyone else has produced an intellectually sustainable account of the decision in constitutional terms, and that only pragmatism can do so. By this, Posner means not simply that you can’t stop the Supreme Court from deciding what it wants to decide but that, rather than pretend that the voids in the Constitution are not there, jurists should be able to examine the merits of contentious cases ‘without the pretentious and ultimately useless rhetorics of interpretative methodology’. But rhetoric, Posner goes on to argue, is not mere presentation: it is, as Aristotle proposed, a method of reasoning and one which has an interesting relationship to legal pragmatism, postulating as the latter does that judges will – and should – ‘stretch clauses ... when there is a compelling practical case or imperative felt need for intervention’.

Tolerance and restraint are important virtues in judging. But a judge’s philosophical or religious or economic or political views are bound to shape his response to specific cases in the open area where judicial decision-making is discretionary. How else are such cases to be decided? The values that all reasonable and rational people in our society endorse make too thin a gruel to resolve the difficult cases.

And that is that. Posner does not propose a unilateral declaration of judicial independence, but he is willing to let constitutional adjudication pretend to a loyalty to the written text which originalists demand in a measure that they can never obtain and which pragmatists do not believe in but have to deliver. This, it seems to me, is where the real discussion needs to begin, not to end. First of all, as Posner readily recognises, you cannot run a legal system on judicial predilection, if only because the decision which today evokes prolonged public applause, if not founded on recognised principles of law, may well contain reasoning which in tomorrow’s case, with different facts and merits, will either produce a dreadful decision or have to be abandoned. But, differing from Dworkin’s view that judges are under a positive duty to follow precedent, he writes:

There are practical reasons of both an epistemological and political character why judges should usually follow precedent and should usually adhere to the immanent values of their legal tradition, but no question of obligation is involved, and if there are good reasons to break with the past for the sake of the present and the future the judge should not hesitate to do so.

The role of precedent is not to relieve judges of the need for thought or to tie their hands with old rope (though at times it can do both those things) but to afford citizens a measure of legal certainty in exercising such choices as life gives them. Whether this is more truly described as a requirement of principle or as a question of practicality, it is the axiomatic tension between the need for such certainty and the need for adaptability in the law which gives pragmatism its value as a demystifying critique. But if pragmatism as an affirmative theory of adjudication is not to become an abandonment of legal principle it needs a further dimension in which the outcomes of leading-edge cases are not passively accepted as derivatives of extra-judicial données carried into the courtroom by judges along with the dust on their shoes, but are understood as a function of society-wide conflict and concern in which the law, too, has an interest and – whether one likes it or not – a decision-making (though rarely a decisive) part to play. Posner eschews this task: ‘I am inclined to reject as imprudent, overambitious, excessively contentious, and in the end too inconclusive the task of fashioning a comprehensive theory of constitutional law.’ But a pragmatist who is also a judge, to say nothing of a judge who is also a theoretician, cannot properly avoid the issue by inflating it into ‘a comprehensive theory of constitutional law’ and walking away from it. With or without a written constitution, the relationship of principle to outcome, or more grandly of law to justice, is a recurrent problem of adjudication to which we still lack a principled approach because we have only recently begun to accept that adjudication is not necessarily a linear journey from one to the other.

It is a pity that the wealth of academic literature within the United States on Posner’s topics keeps him fully occupied in attack and defence, because in the last ten years the Canadian Supreme Court, newly equipped with Canada’s Charter of Rights and Freedoms, has developed a jurisprudence free of the United State’s baggage of politico-historical debate and manoeuvre. It has used the image of a living tree to describe a constitutional organism of which parts will in time die and on which new limbs will grow, but which will always be the same tree. Posner might find there a more useful metaphor of adjudication than in a marketplace whose laws are largely in the eye of the beholder.