A Pragmatic View of the Judicial Process

THE PROBLEMS OF JURISPRUDENCE, By Richard A. Posner. Cambridge, Mass.: Harvard University Press. 485 pp., $29.95 NO sooner had I finished his ``Law and Literature: A Misunderstood Relation'' than Richard A. Posner's new work, ``The Problems of Jurisprudence,'' reached me. When most of us say that we hope to finish a book over the summer, we mean we hope to finish reading it. When Judge Posner says the same thing, he must mean he intends to finish writing it.

Posner's latest volume argues ``for a functional, policy-saturated, nonlegalistic, naturalistic, and skeptical, but decidedly not cynical, conception of the legal process; in a word ... for a pragmatic jurisprudence.'' Beginning with the epistemology of law, Posner asks what is legal reasoning and to what extent can it produce knowledge and not merely opinion or belief? Next, looking at the same questions from an ontological perspective, Posner queries, ``What are the `objects' of legal inquiry? In what sense do law, and even fact, `exist'''? Then he looks at ``interpretation'' - statutory, constitutional, and common law - and wonders whether it is too elastic a concept to guide decisionmaking. Next, Posner assesses a variety of overarching concepts of justice. Lastly, he raises the basic question: What alternatives are there to systems of jurisprudence?

Posner concludes that law ``uses a crude methodology to deal with extremely difficult questions.'' There is no such thing as ``legal reasoning'' as distinguished from simple logic and various methods of practical reasoning that everyone uses. Difficult legal cases, Posner contends, can ``rarely be decided objectively if objectivity is taken to mean more than reasonableness.''

Large changes in the law can result as much from a nonrational process like conversion as from hard reality. Posner views law as an activity, in which there are ``no moral `reals' (at least none available to decide difficult legal issues).'' No single overarching concept of justice can give direction. Posner contends that American law ``can be improved by greater awareness of its pragmatic character.'' The soundness of legal interpretations is ``best gauged ... by an examination of their consequences in the world of fact.''

Posner predicts that his book will provoke political activists who want the law to move left or right, as well as those who want to believe that law is autonomous and apolitical. Whether or not Posner is correct, his book will challenge everyone: All sides will likely draw upon the work, even as they differ with it and among themselves.

Take, for example, one audience to whom the book is addressed - those concerned with how judges should interpret statutes. Increasingly, federal judges spend time reviewing legislation to discern what Congress meant. Various approaches abound, as judges try to make sense of ambiguities and gaps in legislative language. Posner examines a few of them. Some urge the ``plain meaning'' approach, where the plain meaning of the words dictates interpretation. Others look to the method of ``imaginative reconstruction'' in which the judge puts himself or herself in the shoes of enacting legislators, and tries to determine the most reasonable result. Still others push for ``purposive interpretation'' in which a judge seeks to ascertain whether a particular interpretation serves the purposes of the law.

In critiquing these approaches, Posner argues, among other things, that we must understand the context in which laws are made. ``[M]eaning does not reside simply in the words of a text, for the words are always pointing to something outside.'' Understanding context leads us to try to better appreciate the legislative process by which laws are made.

The role of the judiciary in reviewing legislation largely depends upon subjective, political perspectives about the proper allocation of responsibilities among the branches. These perspectives are grounded in assumptions about how Congress functions, and the ability of the judiciary to make sense of congressional intent. Its various proponents should thus welcome Posner's call for a better appreciation of the external context which bounds judicial decisionmaking.

Indeed, Posner is not alone in his concern. Across the judicial spectrum, such judges as Frank M. Coffin, Ruth Bader Ginsburg, Abner Mikva, Patricia M. Wald, and James L. Buckley, have urged that greater attention be paid to understanding the legislative process. In that regard, Posner's indictment of legal education - its failure to teach legislation, and to incorporate other disciplines bearing upon social reality - is most compelling. The task is also to educate those who write legislation, lawyers and non-lawyers alike, about the judicial process, so that they might signal more clearly their meaning to the courts.

Examining how judges should interpret statutes is but one slice of this extraordinarily wide-ranging, intellectually stimulating book. We have much to ponder as we wait to see what Posner presents us with next summer.