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Law, Pragmatism, and Democracy

ISBN-10: 0674018494
ISBN-13: 9780674018495
Edition: 2003
List price: $29.00
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Description: A liberal state is a representative democracy constrained by the rule of law. Richard Posner argues for a conception of the liberal state based on pragmatic theories of government. He views the actions of elected officials as guided by interests  More...

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Book details

List price: $29.00
Copyright year: 2003
Publisher: Harvard University Press
Publication date: 10/31/2005
Binding: Paperback
Pages: 416
Size: 6.25" wide x 9.25" long x 1.25" tall
Weight: 0.946

A liberal state is a representative democracy constrained by the rule of law. Richard Posner argues for a conception of the liberal state based on pragmatic theories of government. He 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. 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 economists' public-choice theory on the right. "Posner ... presents a brilliant defense of the manner in which Americans organize and operate their government ... This book is to be read and reread if one is to understand the intricacies of American constitutional democracy." --R. J. Steamer, Choice

Richard A. Posner is Circuit Judge, the United States Court of Appeals for the Seventh Circuit, and a senior lecturer at the University of Chicago Law School.

Preface
Introduction: Pragmatic Liberalism and the Plan of the Book
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
Legal Pragmatism
Some Principles of Pragmatic Adjudication
John Marshall as Pragmatist
The Objections to Legal Pragmatism Recapitulated
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
Two Concepts of Democracy
Concept 1 Democracy: Idealistic, Deliberative, Deweyan
Concept 2 Democracy: Elite, Pragmatic, Schumpeterian
American Democracy Today
Democracy and Condescension
Democracy Defended
The Two Concepts Evaluated
But Is the Well Poisoned?
Pragmatism and Convergence
An Economic Interpretation of Concept 2 Democracy
A Behavioralist Interpretation
But Is Concept 2 Democracy Legitimate?
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
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 Schumpeter
Legality and Necessity
Crisis Prevention as Pragmatic Adjudication
Lawyers' Hubris
Clinton v. Jones
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
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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