Matthew Yglesias linked to an abstract. I read it and lost my cool. Abstract and rant below
In Praise of Realism (and Against 'Nonsense' Jurisprudence)
University of Chicago Law School
January 23, 2010
U of Texas Law, Public Law Research Paper No. 138
(This is a significantly revised version of a paper first posted in March 2008.)
Ronald Dworkin describes an approach to how courts should decide cases that he associates with Judge Richard Posner as a "Chicago School of anti-theoretical, no-nonsense jurisprudence." Since Professor Dworkin takes his own view of adjudication to be diametrically opposed to that of the Chicago School, it might seem fair, then, to describe Dworkin's own theory as an instance of pro-theoretical, nonsense jurisprudence. That characterization is not one, needless to say, that Professor Dworkin welcomes. Dworkin describes his preferred approach to jurisprudential questions, to be sure, as theoretical, in opposition to what he calls the practical orientation of the Chicago School. But while there is a real dispute between Dworkin and Posner, it is not one illuminated by the contrast between theory and practice. It is, rather a dispute about the kind of theory that is relevant and illuminating when it comes to law and adjudication. And the fault line marked by this dispute is profound indeed, one that extends far beyond Dworkin and Posner and has a venerable and ancient history that includes Thucydides and Plato, Nietzsche and Kant, Marx and Hegel, up to Geuss and Rawls in the present. I shall describe it, instead, as a dispute between Moralists and Realists, between those whose starting point is a theory of how things (morally) ought to be versus those who begin with a theory of how things really are. The essay endeavors to show that our contemporaries, Ronald Dworkin and Richard Posner, are reenacting a version of the dispute between the paradigmatic philosophical moralist Plato and the paradigmatic historical realist Thucydides. The paper concludes by connecting the Posner-Dworkin dispute with recent "realist" critiques of Rawlsian political philosophy, trying to clarify the grounds for skepticism about the practical relevance of such theorizing.
Keywords: jurisprudence, Thucydides, Plato, Dworkin, Posner, Realism, Llewellyn
I have read the abstract after the link "in praise of realism and against nonsense jurisprudence" and I am sincerely gobsmacked. I quote " those whose starting point is a theory of how things (morally) ought to be versus those who begin with a theory of how things really are. The essay endeavors to show that our contemporaries, Ronald Dworkin and Richard Posner." From context I infer that Brian Leiter considers Richard Posner someone who bases his thought on the way things really are. Leiter also accepts the idea that Posner is an anti theorist.
This makes me wonder if there are two different people named Richard Posner. The Posner I know had, at least until 2008, absolute faith in theory and frankly states that he is more interested in theory than in reality. I base my claims about Posner on the critical assessment of Posner pre 2008 due to Posner post 2008.
What is going on ? The problem I think isn't that there are two Posners but that there are different bodies of theory and Leitner assumes that everything which isn't part of one particular theoretical system (ethics) is therefore reality.
Another body of theory is, for example, Euclidean mathematics. It is exactly that theory which fascinated Plato. The hypothsis that Euclidean theory corresponds to anything that fits in this universe is no longer considered the best working hypothesis by Physicists. In any case, non Euclidean geometry is another body of theory and they can't both be reality. They are theory. They are not morality. It is possible to consider theory other than moral theory. Tehre are more things in our minds reality and morality.
Now Posner is not fascinated by Euclidean Geometry. However, he is fascinated by economic theory that was cutting edge 100 years ago. It is very different from Euclidean geometry. The hypothesis that Euclids axioms correspond to reality was ruthlessly tested for milennia and was contradicted by the data in the 20th century (if at all). The interaction of neoclassical economics and reality consists entirely of making predictions (using auxiliary hypotheses), finding they are false and arguing that this doesn't matter.
Posner definitely wrote that there are two definitions of economics -- one which defines it as the study of the economy and one which defines it as the set of implications of assumptions of rationality -- and that he always prefered the second. This is a frank declaration of Platonism.
Quite frankly, I think people at Chicago law have to talk to some economists who don't work at the Chicago economics department (they don't have to go far the business school is far enough). Otherwise, they will continue to make utter fools of themselves.
And now for something completely different. There is something else about the abstract which really bothers me. In this case I am puzzled. It seems to me that prof Leitner absolutely rejects the fact value distinction. He seems to think that some conclusions useful to judges can be reached by considering only the way things really are and not at all how they should be. My view is that no statement about what what we should do can follow from analysis of what is or would be if we did things. I consider my view to be totally conventional and, in particular, very much part of the Chicago Economics Department school of thought (start at the beginning with the introduction to "The Methodology of Positive Econimics" hell start with the
title). I don't see how an approach which begins by describing reality can end with anything but a description of reality.
Posner as presented by Leitner makes a much stronger claim than Dworkin. Dworkin says "If you agree with me that this is good, then you should agree with me that should be done." Posner as presented by Leitner says "If you face facts and don't deny reality then you should agree with me that this should be done." It certainly seems to me that the second is closer to Plato who definitely aimed for conclusions which didn't start with the Greek word for "if."
Finally, earlier Yglesias said that the meaning of "realism" in "legal realism" is the opposite of the meaning in other literatures. I think that Leitner is not referring to legal realism when he uses the word "realism."! I think he is using the word in its other sense and confusing the two diametrically opposite meanings for the word when used as a term of art in different arts.