THE OPTIMISM OF THE PESSIMISTS:

-REVIEW: of Law, Pragmatism, and Democracy by Richard A. Posner (Richard Rorty, Dissent)

Richard A. Posner, a federal appellate judge who is one of the most admired figures in the American legal system, thinks we...should put aside the illusion that the American public will gradually become better informed and wiser. He asks us to recognize that modern democratic
governments, including our own, are better described as what Alan Ryan has called "elective aristocracies" than as examples of popular rule. We should take note of the tautologous but depressing fact that half the population has an IQ below 100. We should admit that "ordinary people have as little interest in complex policy issues as they have aptitude for them."

Posner concludes that "deliberative democracy, at least as conceived by Dewey, is as purely aspirational and unrealistic as rule by Platonic guardians." What we have, and what we should be satisfied with, is an understanding of democracy that "accepts people as they are, does not think it feasible or desirable to try to change them . . . and regards representative democracy as a pragmatic method of controlling, and providing for an orderly succession of, the officials who (not the people) are the real rulers of the nation."

To see the American political system in this way is to substitute what Posner calls "Concept 2" democracy for Deweyan "Concept 1" democracy. For
Concept 2 democrats, democracy is "not self-rule" but is "rule by officials who are, however, chosen by the people and who if they don't perform to
expectations are fired by the people." Concept 2 democrats "don't think that jawing in the agora is the most productive way for people to spend their time. They don't believe that politics has intrinsic value or that political activity is ennobling." Concept 2 democracy is a matter of balancing competing interests, not of debating the worth of ideas, and so is no more ennobling than commerce.

Posner, a philosophy buff who cheerfully calls himself a "moral relativist," is happy to endorse Dewey's anti-foundationalist and contextualist views
about knowledge, rationality, and morality. But he thinks, rightly, that "pragmatism has no political valence" and that Dewey's social hopes have
nothing in particular to do with these views. "The connection between the liberal-visionary and the pragmatic" is indeed, as he says, "purely historical and contingent." Nor does he think that philosophical pragmatism has much to contribute to legal thought. Judges will not learn how to do their job better by reading Dewey and William James. Still, he says, "the pragmatic mood, the pragmatic culture that Tocqueville described, has given rise to a different pragmatism-what I call 'everyday pragmatism'-which has much to contribute to law." This latter sort of pragmatism is embodied in Posner's own distinctive "law and economics" brand of judicial decision-making. This approach relies on cost-benefit analyses of the socio-economic consequences of deciding a case in one way rather than another.

"Everyday pragmatism," Posner continues, "is the mindset denoted by the popular usage of the word 'pragmatic,' meaning practical and businesslike,
'no-nonsense,' disdainful of abstract theory and intellectual pretension, contemptuous of moralizers and utopian dreamers." Posner contrasts the
application of this kind of pragmatism to law with the originalism of a Robert Bork and the moralizing of a Ronald Dworkin. In rejecting both, he
sees himself as carrying through on Justice Oliver Wendall Holmes's criticisms of legal formalism. He is quite willing to drop the pretense that
the federal judiciary is above the battle and to admit that it is as political an institution as are the other two branches of the federal government. [...]

Still, there is something missing in Posner's account of American democracy. Maybe politics is not ennobling, and perhaps Hannah Arendt was wrong, as Posner argues she was, to try to invest the United States with the glamour of the Greek polis. Perhaps Dewey was overly nostalgic for the Burlington, Vermont, of his own youth-a period when the United States could still revel in its Tocquevillian newness. But just as Pericles was right when he said there was something ennobling about being a free citizen of Athens, there is still something wonderful about being an American-something that Posner has trouble taking account of.

It is not for nothing that our democracy has been seen, by millions of people throughout the last two centuries, as more than just another arena of
competition between interest groups. The United States has not been a beacon of hope for the world merely because American voters have been able to fire politicians who fouled up. Our country's self-image is still shaped, and its history is still being molded, by a Lincolnesque narrative of moral
progress-progress made by appeals to the better angels of our nature.

What both Mr. Posner and Mr. Rorty would appear not to have recognized is that there's something almost madly idealistic in the conservative faith that, though Man is Fallen and most men are dolts, a free nation can be made of them and you can on occasion get them to listen to the angels of their better nature.

Posted by Orrin Judd at November 24, 2003 8:37 PM