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The Problems of Jurisprudence

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For newcomers to the philosophy of law and for anyone interested in legal reasoning and the difficult problems of jurisprudence, this book gives an excellent overview. The author discusses the history of the subject as well as giving a thorough discussion of modern developments. In addition, many references are given for readers who want to investigate the subject in more detail. The philosophy of law has become even more important in recent years due to the social tensions surrounding the Supreme Court of the United States as well as the difficult legal issues involved in nation building.

The following questions, among many others, arose for this reviewer when reading the book, with some of them being answered in the book and some not:

1. What is the difference, if any, between standards and rules?
2. What is the difference, if any, between substantive justice and formal justice?
3. Does the granting of broad discretionary powers to legal officials encourage abuse?
4. When a legal rule ages, does it become less or more applicable to the activities it is supposed to refer to, i.e. will judges become more tempted to declare exceptions and extensions to it?
5. How important is the use of formal logic in legal deliberations?
6. Can most, or even all, legal argumentation/deliberation be given an algorithmic or formulaic definition?
7. Can statutes or constitutions, being forms of communication, be verified in the same way as scientific hypotheses can?
8. Does good legal judgment consist of caution, detachment, imagination, and common sense or must these be supplemented by other activities or modes of cognition?
9. Is law an autonomous discipline, with the designation "autonomous" given its usual intuitive meaning?
10. Can the complexity of legal deliberations/reasoning of a judge be modeled successfully using a language or framework that is clearly not being used by that judge?
11. Is the "test of time" a legitimate criterion for accepting certain legal practices?
12. What is the role of metaphors in legal reasoning?
13. What is the role of defeasible reasoning in legal deliberation/argumentation?
14. Are legal deliberations always inconclusive?
15. Is there any need, from the standpoint of rational legal deliberations, for the "trappings of the judicial process," i.e. the elaborate courtrooms with elevated benches and compelled etiquette on the part of the observers and litigants?
16. Is criminal law dependent on the notion of free will?
17. Assuming that certainty is unattainable in most legal deliberations, what is the role of probability theory in these deliberations?
18. Is the interpretation of legal texts deductive, and if not, what does it mean to interpret a legal text?
19. What is the difference between common law and statutory law?
20. Does agreement on the meaning of legal texts depend ultimately on the use of force?
21. How does one characterize an activist judge from a non-activist one?
22. When a legal text or document is examined, is it always important to acknowledged the intent of the individual(s) who wrote it?
23. Can interpretations of legal documents ever be politically neutral?
24. Can a legal system be constructed that would be free of errors?
25. How influential has feminist thought been in the philosophy of law in the last few decades?
26. What is the nature of "prudentialism" that is advocated by the author of the book?

What is law? How exactly do judges reason out it's kinks? Does it operate on presumtions of behaviourism or free-will? Why aren't lawyers or judges puzzled by these quandries? Posner seeks answers and ends up in a not-so-comforting place.

This book starts small and ends big. From epistemology (how we gain legal knowledge) through ontology up through his concluding 'Pragmatist Manifesto' the book is quite philosophical and this may be offputting to some in the legal profession. As usual though, Posner tackles his subjects in a clear, fast-paced and exciting way. The task that Posner sets for himself is to forge a place in legal theory (or lack of?) between two radical extremes: On one hand, there is the view that law is a completely isolated profession and legal reasoning is completely internal to it. The other sees law as a clever guise for politics- it's 'methods' being a subterfuge for the judge to justify her political views.

Through pragmatism, Posner sees both theories as gross exageration- the first, falsley denying law's susceptibility to outside non-legal techniques and the second's refusal to acknowledge the judiciary's independence from the legislature.

As Posner acknowledges in the intro, Posner's view here is middle of the road and to many, it will be boring. He doesn't take sides, rather he creates a side: that of legal pragmatism. No matter what your persuasion philosophtical, political or jurisprudential persuasion, there's nothing like a little Posner to get you thinking!!