Richard Posner has finally become a pragmatist

This exit interview with Richard Posner, who is retiring as a judge, is interesting.

“About six months ago,” Judge Posner said, “I awoke from a slumber of 35 years.” He had suddenly realized, he said, that people without lawyers are mistreated by the legal system, and he wanted to do something about it. … He had become concerned with the plight of litigants who represented themselves in civil cases, often filing handwritten appeals. Their grievances were real, he said, but the legal system was treating them impatiently, dismissing their cases over technical matters. “These were almost always people of poor education and often of quite low level of intelligence,” he said. “I gradually began to realize that this wasn’t right, what we were doing.” … Judge Posner said he hoped to work with groups concerned with prisoners’ rights, with a law school clinic and with law firms, to bring attention and aid to people too poor to afford lawyers.

In one of his final opinions, Judge Posner, writing for a three-judge panel, reinstated a lawsuit from a prisoner, Michael Davis, that had been dismissed on technical grounds. “Davis needs help — needs it bad — needs a lawyer desperately,” he wrote. On the phone, Judge Posner said that opinion was a rare victory. “The basic thing is that most judges regard these people as kind of trash not worth the time of a federal judge,” he said

I don’t want to be snarky – it is unqualifiedly great that someone of Posner’s stature on the right is taking up this cause. I do want to point out though, that it can be interpreted as a partial completion of something that was incomplete before – Posner’s commitment to pragmatism as an approach to understanding the law.

As the NYT piece notes in passing, Posner is famous for his argument that law should be interpreted pragmatically, as an exercise in problem solving. Yet as Jack Knight and Jim Johnson pointed out twenty years ago, in a response to Posner’s major book on pragmatism, he left out all of the political arguments that were part of the web and woof of pragmatist thinking in the early twentieth century. John Dewey, for example, saw pragmatism as tied up with democracy, and democracy with a commitment to radical equality, in which ‘publics’ would be able to solve problems without interference from Old Corruption.

Knight and Johnson quote a bit from Posner’s argument back then:

Today’s legal pragmatism is so dominated by persons of liberal or radical persuasion as to make the movement itself seem (not least in their eyes) a school of left-wing thought. Yet not only has pragmatism no inherent political valence, but those pragmatists who attack pieties of the right while exhibiting a wholly uncritical devotion to the pieties of the left (such as racial and sexual equality, the desirability of a more equal distribution of income and wealth, and the pervasiveness of oppression and injustice in modern Western society) are not genuine pragmatists; they are dogmatists in pragmatist clothing.

As Knight and Johnson point out, Posner’s efforts to divorce pragmatist problem solving from considerations of power simply do not make sense.

Posner …rightly affirms the central importance of unforced inquiry to pragmatism. Dewey made this theme central to his conception of democratic politics. He also made it central to his writings on law.62 Thus Posner correctly recognizes that “from a pragmatist perspective the main concern is with the danger of premature closure of legal debate.” But he then wavers considerably regarding the seemingly obvious political consequences of this statement. Unforced inquiry entails reasoned deliberation. If we are to avoid “premature closure,” however, it also seemingly entails free and equal access for relevant actors to all relevant arenas of deliberation, debate, and decision. While Posner readily accepts the first of these implications, he remains very reluctant to accept the second. This is especially clear in his remarks both on the diversity of the legal establishment and on the barrier that economic inequality presents with respect to access to the courts.”

More specifically:

He concedes that asymmetries of wealth or political power distort free and open inquiry in the American legal system. The adversary system does not much resemble the concept of unforced inquiry that is the pragmatists’ ideal and the scientists’ ethic. Furthermore, the competitors in our privatized competitive system of justice often have markedly and irremediably unequal resources. Most criminal defendants lack the resources to hire counsel equal in skill and experience to the public prosecutor, and public subvention of the cost of counsel for indigent criminal defendants has not been sufficiently generous to close the gap. Having identified another serious barrier to free and equal access, however, Posner once again falters. He finds “troublesome” suggestions that the remedy for these distortions of unforced inquiry “may require redistributing wealth or continually intervening in the marketplace of ideas.”

It would appear that in the intervening decades, Posner has changed his mind, and has done so in an eminently pragmatist fashion, as the result of practical experience. Again, I’m not looking to score points here – if someone like Posner picks up this cause, it is likely to resonate with people who would dismiss or ignore similar arguments from the left. Instead, I’m pleased that he’s developing his commitment to pragmatism, in the ways that Knight and Johnson advocated, rather than leaving it in a stunted condition.