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Description
Aliberal state is a representative democracy constrained by the rule of law. Richard Posncr argues for a conception of the liberal state based on pragmatic theories of government, lie 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
Posncr 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 econimists 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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Contents
1. Pragmatism: Philosophical versus Everyday
• The Pragmatic Mood and the Rise of Philosophical Pragmatism
• Orthodox versus Recusant Pragmatism
• The Influence of Philosophical Pragmatism on Law
• Everyday Pragmatism
2. Legal Pragmatism
• Some Principles of Pragmatic Adjudication
• John Marshall as
Pragmatist
• The Objections to Legal Pragmatism Recapitulated
3. John Dewey on Democracy and Law
• Deweyan Democracy: From Epistemic to Deliberative
• Dewey's Concept of Political Democracy Evaluated
• Dewey's Theory of Law
• The Theory Extended
4. Two Concepts of Democracy
• Concept 1 Democracy: Idealistic, Deliberative, Deweyan
• Concept 2 Democracy: Elite, Pragmatic, Schumpeterian
• American Democracy Today
• Democracy and Condescension
5. Democracy Defended
• The Two Concepts Evaluated
• But Is the Well Poisoned?
• Pragmatism and Convergence
• An Economic Interpretation of Concept 2 Democracy
• A Bebavioralist Interpretation
• But Is Concept 2 Democracy Legitimate?
6. The Concepts Applied
• The Impeachment of President Clinton
• The 2000 Election Deadlock
• Judges on Democracy
• Schumpeter, Antitrust, and the Law of Democracy
• Of Human Nature
7. Kelsen versus Hayek: Pragmatism, Economics, and Democracy
• Kelsen's Theory of Law
• Kelsen, Pragmatism, and Economics
• Kelsen's Positivism Contrasted -with the Positivist Theories of Hart and Easterbrook
• Hayek's Theory of Adjudication
• Hayek on Kelsen; Kelsen and Scbumpeter
8. Legality and Necessity
• Crisis Prevention as Pragmatic Adjudication
• Lawyers' Hubris
• Clinton v. Jones
9. Pragmatic Adjudication: The Case of Bush v. Gore
• The Case
• A Potential Crisis Averted
• A Pragmatic Donnybrook
• The Perils of Formalism
• The Democratic Legitimacy of Pragmatic Adjudication Revisited
• Coping-with Indeterminacy
10. Purposes versus Consequences in First Amendment Analysis
• The Pragmatic Approach to Free Speech
• The "Purposivist" Critique of the Pragmatic Approach
Conclusion
Index
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