The poetics of the pragmatic: what Literary Criticisms of Law offers Posner.

AuthorBinder, Guyora
PositionRichard Posner

Is it practical to evaluate law aesthetically, as if it were a kind of literature? In reviewing Literary Criticisms of Law.(1) Judge Richard Posner argues that it is not instrumentally useful to view law as a kind of literature.(2) He thereby reasserts his long-held position that law should be evaluated economically rather than aesthetically.(3) In this response, I argue that Posner's pragmatism requires that he evaluate law aesthetically, if he wishes to evaluate it at all.

Famous as a tireless promoter of conservative law and economics, Judge Posner has more recently restyled himself as an equally energetic exponent of "pragmatism,"(4) thereby placing himself in the unlikely company of such progressive social critics as Richard Rorty, Cornel West, Margaret Radin, and Stanley Fish.(5) This has been a welcome development. Pragmatism is an appealingly flexible doctrine that makes the test of any action or belief the difference it makes in practice. Pragmatism asks us to compare the consequences of any action or claim with the consequences of available alternative actions or claims. But unlike other consequentialist doctrines, such as utilitarian policy analysis or verificationist epistemology, pragmatism does not prescribe further criteria for comparing alternative bundles of consequences.(6) It treats the justification of action and belief as a matter of situated practical judgment and denies that justification must rest on a foundation of indubitable knowledge.

Judge Posner's pragmatic turn has placed a rhetorically able and visible advocate in the service of this sensible doctrine. It has helped him think through the complex practical responsibilities of his role as a judge, while tempering his claims for efficiency analysis and adulterating that analysis with other values.(7) It has coincided with a great broadening in his intellectual interests, and in his articulated values and sympathies. It has produced one very good book of legal philosophy, The Problems of Jurisprudence,(8) and another containing many excellent arguments, The Problematics of Moral and Legal Theory.(9) which is, however, marred by an intemperate tone. Pragmatism has benefited Judge Posner in many respects, but it has not overcome one disabling idiosyncrasy: His persistent antipathy toward the humanities seems to blind Judge Posner to the role of aesthetic value in practical judgment and justification. It also impedes his ability to assess, or even absorb, the argument Robert Weisberg and I offered in Literary Criticisms of Law.

In his recent review of Literary Criticisms of Law, Judge Posner reiterates his long-held position that literary theory is irrelevant to law. Offering our book as an example, Judge Posner characterizes scholarship applying literary theory to law as an unpragmatic, even "decadent" enterprise, pursued only by enervated leftists left behind by the march of free enterprise. Readers of his review essay do not learn that Literary Criticisms of Law offers a pragmatic critique of the law and literature field more extensive, but more balanced, than Judge Posner's own. More importantly, readers do not learn about our argument that a literary analysis and evaluation of law is indispensable to the kind of pragmatic jurisprudence Judge Posner professes to favor.

In the balance of this essay, I explicate the polemical impulses that appear to have shaped Judge Posner's crabbed reading of our book. And I argue that a pragmatic jurisprudence, whether progressive or conservative, must recognize that law cannot be viewed simply as an instrument. Law is the art of composing society, and normative legal argument therefore is a rhetoric of aesthetic value, properly understood as a kind of cultural criticism.

In Literary Criticisms of Law, Robert Weisberg and I critiqued scholarship applying the theory and methods of literary studies to law. We showed that much literary criticism of law is flawed by one of two unpragmatic premises: the skeptical premise that legitimate law must rest on objective foundations,(10) and the sentimental premise that it must fully appreciate the feelings of its subjects.(11) We also showed that some scholarship attempts to parry both skeptical and sentimental critiques with a genteel authoritarianism that calls on legal decisionmakers to present their own refined characters as symbols of the law's virtue.(12) We argued that these vices of skepticism, sentimentalism, and authoritarianism often depend on simplistic caricatures that reduce literature to a metaphor for irrationality, sympathy, or refinement. We added that in portraying literature as necessarily subverting, correcting, or saving law, literary criticism of law also mischaracterizes law as crudely mechanical. By thus opposing literature to law, such scholarship tends to obscure the expressive and aesthetic concerns inherent in making, using, and evaluating law.

Along with these criticisms of the field, we offered a program for reform. A more illuminating literary criticism of law, we concluded, would explicate and evaluate the expressive meaning and effects of law. It would acknowledge legal institutions as constitutively important elements in a culture, and strive to understand, evaluate and improve their cultural consequences.(13) While our approach draws on "cultural studies" and "the new historicist" literary criticism, our aim is not to urge the application of a particular literary theory to law, but to insist that any adequate normative theory of law's legitimacy and its purposes must read and evaluate law's meaning. We argued not simply for a cross-disciplinary importation of literary theory into law, but for a genuinely interdisciplinary cultural criticism of law.

Our argument for thus integrating literature and law relied on capacious conceptions of both. Strictly speaking, literature is language presented or appreciated for the aesthetic experience of its sense and sound. Figuratively speaking, however, any activity is "literary" that involves creatively expressing and arranging meanings. That law is a discursive enterprise increases the plausibility of the law-as-literature trope, but law, like drama, creates meaning through action as well through language. Legal scholars have likened aspects of law to such diverse literary practices as interpretation, narration, dramatic performance, rhetorical figuration, lyric self-expression, and mimetic representation.(14) In Literary Criticisms of Law, we view any practice as literary in so far as it makes new social meanings out of received cultural materials, and presents them for expressive or aesthetic purposes.(15)

We argued that literature, thus conceived, is inherent in law, which we conceived as the activity of making and justifying legal institutions, laws, legal claims, and legal decisions. We include within law the reasons, large and small, appealed to in making legal decisions and arguments. Thus, law includes claims about the ultimate purposes (liberty, public welfare, self-government, moral perfection) and founding origins (divine will, contract, majority will, heroic sacrifice, crisis resolved, evil overcome) that legitimate legal institutions and systems.(16) When law is defined in these broad terms, "legal" decisionmaking is not the narrow preserve of the judiciary or the legal profession. Legal decisionmakers of course include the legislators who make and officials who apply law. But legal decisionmakers also include, in a democracy, the citizens who elect and influence lawmakers, who confer legitimacy upon legal institutions, who support or acquiesce in their enforcement efforts, and who ultimately must decide whether to obey the law, and how.(17) So to say that "law" is an expressive or aesthetic activity is to say that the decisions we face in collective self-governance are partly, but unavoidably, expressive or aesthetic.

By "expressive" and "aesthetic" I refer to two noninstrumental motives for human action, commonly thought to motivate artistic creation. Expressive actions are undertaken to identify the actor with a certain value, or character, or identity.(18) The term "aesthetic" refers to value that is final rather than instrumental, but that nevertheless depends upon subjective judgment. Aesthetic judgment is concrete and particular: It can be governed by no general standard of value given in advance. In this sense, aesthetic judgment is free. When we value aesthetically we value what we are not ethically bound or logically compelled to value. Yet aesthetic value is not the same as pleasure. It is conferred by an act of judgment, so that we can appreciate what we do not enjoy, and enjoy what we do not appreciate.(19) Aesthetic judgment does not apply standards of value, but instead assesses values. Aesthetic criticism identifies values expressed by human creations, judges those values, and also judges the creations as better or worse expressions of those values.(20)

In defining aesthetic value in this way, I mean to leave open the relationship between aesthetics and ethics. If ethical value means simply "value," it of course includes aesthetic value. But ethics can refer to evaluative judgments made by subsuming a particular under some category or concept, in which case it is distinct from aesthetic value. It can refer more narrowly to the duties governing human action, or more narrowly still, to the duties that flow from an attitude of impartiality, or equal concern for the welfare or dignity of all persons. To the extent that ethical judgment involves applying a universal standard of value, formulated in advance of the act of judgment, it is different from aesthetic judgment.

Accordingly, I do wish to distinguish aesthetic value from one conception of ethical value prevalent among moral philosophers and legal theorists. According to this conception, an ethical theory must be built on the foundation of some universally applicable conception of the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT