Posner’s Folly: The End of Legal Pragmatism and Coercion’s Clarity

Legal concepts such as substantive due process, equal protection, privacy, freedom of speech, establishment of religion, free exercise, the right to bear arms, the personhood of corporations, and negligence have justified the expansion of the power of the courts, and sometimes of other branches of government, in dramatic ways.

See, e.g., Michael S. Greve, The Upside-Down Constitution (2012); Randy E. Barnett, Restoring the Lost Constitution (2004); and Akhil Reed Amar, America’s Unwritten Constitution (2012).

So, in examining the work of most judges and other legal authorities, the problem posed by non-essentialism is twofold. First, there is the effect, perhaps mostly psychological, of the popularity of non-essentialism in legal scholarship and elsewhere, and this may be one of the factors rendering religious- and literary-style conceptual imprecision more and more acceptable in law either explicitly or implicitly. The imperialistic expansion and long-burgeoning Gnostic vagueness of so many legal concepts over time may draw some of their energy and justification from this source, even though legislators and judges rarely delve openly into the philosophy of concepts, or of anything else, in the way Posner so intelligently does in many areas—yet the unconsidered philosophies behind their work determine the outcomes of that work to a great extent, especially in difficult cases. Second, in the future, judges and others may come to adopt explicitly the non-essentialism already adopted by many theorists within and without the legal academy. Regardless, judges and other legal authorities have a notorious habit of imprecise use of concepts, and a conscious adoption of stricter approaches to conceptual definitions would yield considerable benefits to puzzled subjects, as well as puzzled legal authorities and legal practitioners, who try to make sense of and obey the law.

This is all the more important in our time of increasing diversity and disagreement, as shared norms splinter and the unity of a Christian-ish, Anglo cultural and legal tradition gives way to a clashing collection of differing traditions and newly-minted doctrines. The law and legal authorities can no longer rely so strongly on socially hegemonic ideas and attitudes to underlie and shape ill-defined concepts and their application, not to mention rely on them to buttress confidence in their authority, but rather must make themselves unmistakable to a much greater variety of not-easily-compatible perspectives. “Due process,” “privacy,” and “freedom of speech” mean more differing things to more different groups of Americans today than they did 50, 30, 20, or even ten years ago, and methods of approaching legal questions continue to diversify—how long before what remains of the traditional Anglo-American legal tradition must give way to other elements on many major points? All this argues for greater need of clarity and essentialism in law, which cannot legitimately straddle questions of what to require of its subjects but rather must give those subjects pragmatically precise instructions—and, further, when unenforceable traditional norms and manners decline in political culture or society generally, they must be replaced by coercive norms to maintain order. Those new coercive norms should be clearly formulated.

And so, as these coercive norms expand and social diversity grows, delimitation is needed all the more, though it is typically desirable in law in all times and places. Perhaps one day, comments such as those of Posner and the following from Ronald Dworkin’s Law’s Empire will ring false instead of too true: “We are subjects of law’s empire, liegemen to its methods and ideals, bound in spirit while we debate what we must therefore do. What sense does this make? How can the law command when the law books are silent or unclear or ambiguous?”

Dworkin, supra note 6, at VII (1988).

It is not that law is impossible with Wittgenstein-style non-essentialist concepts, but that such understandings needlessly render law less comprehensible and less stable. Although some law will always be vague, ambiguous, or even self-contradictory, subjects must as a general rule be able to understand the law and the concepts it uses so that they can obey it

“It is a presupposition of thought itself that some kind of objective ‘rightness’ exists.” Hilary Putnam, Reason, Truth, and History 124 (1981). (Whether this is true in an absolute metaphysical sense, it must be true in some sense in order to fix the meaning of law well enough for subjects to obey it, and further true enough to declare coercive legal rules and commands morally “right”—or at least not morally wrong—if law is to be legitimate in a way that the rules of organized crime syndicates cannot be.).

Beyond this, lawmakers and other legal authorities should strive to make laws and legal concepts not just minimally clear, but as clear as reasonably possible—part of the evaluation of a lawmaker, as good or poor at her function, is her capacity for the right level of precision. The more unclear the law is, the more its legitimacy rightly erodes. Law is a matter of practical reason, not theoretical reason, and should conform to the requirements for guides to reliable decision-making about courses of action—ultimately, law is meant to tell both legal authorities and legal subjects what to do rather than what to think. Not only is law an exercise in practical reason, but it is an exercise in social practical reason—the reasoning must be understood not only by those doing the reasoning, but by a number of distant others. The imprecision unavoidable and sometime fruitful in the realm of pure theory, or even in the realm of religious and moral thought meant to guide behavior, must be resolved into precision when commanding others to “do” or “do not.”

Many theorists, conspicuously since the publication of Wittgenstein’s Philosophical Investigations,

Ludwig Wittgenstein, Philosophical Investigations (G.E.M. Anscombe trans., 1967).

I believe that the infection of legal theory and law itself with this sort of non-essentialist thinking has caused a great deal of confusion and contributed to the current failure of contemporary theorists to recognize even as much as the necessary features to define law, such as its inherent coercion.

But cf., e.g., (“For all its appeal—apparent simplicity, stability and roots in classical philosophy—the ‘essential features’ element of the standard model is unworkable.”) Evans, supra note 19, at 208.

Law and legal concepts should become more scientific, by which I mean first, that all legal concepts should have non-contradictory cores defined by essential properties, and second, that real-world effects—particularly coercive ones—should be the foundational raw material of legal concepts rather than justice, rights, duties, fault, or the like considered abstractly in the way that jurists love so much. This latter requirement may be only a matter of emphasis, but a change in emphasis has often produced real legal change affecting real subjects. There are bounds to a scientific approach to legal concepts: Law is a humanity, not a science—with all the inevitable limits to precision that human things demand—and unlike science, religion, philosophy, and literature, law must employ force in order to fulfill its function, and even to be distinguishable as law at all rather than exhortation, guideline, rhetoric, or something else such as a mere source for voluntary rules of personal conduct.

In a book aptly titled Overcoming Law, Posner rightly says, and this can be said of the prophet, philosopher, and scholar as well, that “[t]he scientist is the inquirer who [is] disdainful of enlisting the power of the state to enforce agreement with his views.”

Posner, supra note 15, at 450.

Just as the scientist and the philosopher always should seek to use definitions as definite as realistically possible in contrast to the prophet and the poet, so too should the legal authority, and here I agree with Posner’s hope when he says that he wishes “to nudge the judicial game a little closer to the science game.”

Id. at 8.

“In areas of exact inquiry, Orwell’s stated goal of writing prose as clear as a windowpane seems, if properly understood, an attainable ideal. . .,” says Posner. “Newton will survive as long as Homer, but the essential Newton—the Newton that will survive—is not the language in which he described his theories and findings but the theories and findings themselves, while the essential Homer cannot be detached from the language in which he wrote or chanted.”

Posner, supra note 11, at 273.

Unfortunately, judges do not rigidly distinguish between the simple application of the law and the making of it, including when they de facto make law by interpreting it discretionarily, and “[m]ost judges blend the two inquiries, the legalist and the legislative, rather than addressing them in sequence”

Richard A. Posner, How Judges Think 84 (2010).

Many of the unfortunate realities that Posner describes are, I think, indisputably well-established, such as the Supreme Court’s frequently political nature in what is supposed to be a republic characterized by the separation of powers. The political branches headed by the elected representatives of the people may be no more political in their decision-making than the Court when it interprets the Constitution, suggests Posner. “I shall argue that, viewed realistically,” he says, “the Supreme Court, at least most of the time, when it is deciding constitutional cases is a political organ.”

Richard A. Posner, Foreword: A Political Court, 119 Harv. L. Rev. 31, 34 (2005).

In fact, Posner candidly calls the Supreme Court a “lawless judicial institution,”

Id. at 41.

But although the Court is lawless, its decisions are lawlike, Posner says. “[E] ven if legislative in a sense,” they are “so much more constrained, disciplined, impersonal, reasoned, nonpartisan—as to be ‘lawlike’” when compared to “the characteristic product of the official legislatures.”

Id. at 75.

This sets up an interesting conundrum for those who see the courts, and particularly the Supreme Court, as systematically overstepping their proper bounds in unjust, anti-legal ways and undermining public confidence in our institutions in doing so, but also often taking very vague constitutional and statutory provisions and refining them into something closer, although rarely as close as might be, to the clear and specific regulations that the coercive rule of law ideally mandates. Not that specific regulations must be carved in stone—in fact, rationality requires they be subject to revision when circumstances warrant.

Cf. The common law “treats all generalizations as contingent and perfectible.” Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life 178 (1993).

Posner’s rhetorical candor fails in the acknowledgement of his nihilism. Like so many other moderns and postmoderns, he must dress nihilism in the language of liberalism, pragmatism, diversity, and the like, but ultimately believes that nothing is good nor evil but thinking makes it so. He says that pragmatism’s “core is merely a disposition to base action on facts and consequences rather than on conceptualisms, generalities, pieties, and slogans.”

Posner, supra note 36, at 3.

This way of thinking has nothing convincing to say to potentially change the minds of those who do not share the beliefs relevant to slavery and National Socialism that Posner says that “we” do, or any way to object if public opinion changes to favor those things once again, as it well might.

Nor can the distinction between substantive and procedural values withstand scrutiny. Does the protection of privacy require a legal right to abortion? Some say yes, others no, and the question cannot be resolved without substantive values about the rights of women and of unborn children, and of what legal “privacy” covers substantively—how is it obvious that paying an abortionist to terminate a pregnancy is a private matter that must be almost entirely free from government control, whereas one’s private correspondence can be discovered through legal compulsion by an opposing party in litigation before any wrongdoing has been found? Or that adults’ sexual matters are private, but the hiring, pay, and promotion decisions of private businesses are subject to reams of public regulation? Do the procedural values necessary to secure diversity of “ways of life” protect those who wish to return to the plantation system complete with “Negro slavery,” or descendants of Aztecs who wish to resurrect the ceremonies of human sacrifice suppressed by the conquering Spanish Catholics? Does freedom of speech or expression protect those who delight in posting to the internet the photos, names, and addresses of private citizens together with unproven accusations that they are cop-killers? If such speech should be illegal because it can lead to harm, should we also outlaw speech critical of Christianity, Islam, or Judaism, as some countries do in order to forestall hate crimes? No procedural values can resolve these questions, only substantive values that privilege—or so much as acknowledge—some rights and ways of life rather than others.

“Epistemological democracy” seems to be a term for “affirming nothing so long as social disagreement exists.” Since law involves the coercive regulation of some by others, such a stance by any legal authority is just a hypocritical pose. In all real political states, some or perhaps nearly all subjects do not agree with the entirety of the law’s requirements or conform to them. Regardless of their personal beliefs about truth or what they may say, lawmakers and the legal authorities who enforce the law must act as if they know what the law is and are justified in inflicting upon subjects the law’s consequences, including financial penalties, disbarment from occupations, incarceration, and occasionally death. Lawmakers, including judges when behaving as de facto lawmakers, must act as if they know what the law should be, and what it should prescribe in order to punish those who act illegally—and saying to a defendant convicted of a crime and sentenced to a decade in prison that “I am unsure that this is the right thing, but I am doing it to you anyway” is unlikely to amount to much consolation.

“Epistemological democracy” may contribute to the ongoing slow-motion exposure, in the view of many, of the façade of our political and legal systems as corrupt frauds, and we may see the public bankruptcy of what Posner, to borrow his description of façade as an expansive concept, might label “[a]n intricate complex of interrelated laws, judge-made and statutory, [that] protects this interest that has no name, the interest I am calling ‘the face we present to the world.’”

Id. at 531.

Law is the one humanity that, to be its best self, must exclusively use a scientific approach when formulating its own distinct concepts, and so law must translate the religious, moral, and literary concepts that it uses as source materials into scientific-style concepts for itself. Religious and moral rules and commands as well as the concepts on which they depend—and I believe that morality is a subspecies of religion—can at times be their best and perhaps only selves when non-essentialist and self-contradictory from a worldly perspective; whether they are self-contradictory in an ultimate analysis is another question. I say this not about mysteries of faith such as the Trinity and its associated doctrines, although it may be true of them, but about rules and commands that believers are meant to obey. Some religious rules and commands are straightforward but others, such as the difficult “So whatever you wish that men would do to you, do so to them,”

Matt. 7:12, National Council of the Churches of Christ, Revised Standard Version Catholic Edition (RSVCE), Biblegateway.com, https://www.biblegateway.com/versions/Revised-Standard-Version-Catholic-Edition-RSVCE-Bible/ (last visited Feb 2, 2018).

When a typical believer seeks to follow them with consistency in her actions, she must translate them into clearer and more concrete concepts from which she can derive clear rules to follow. For example, she may decide that “cunning yet innocent” includes the evasion of questions in certain circumstances, which she must further define, but never includes outright lying even though “cunning yet innocent” by itself is not specific enough to require any such distinction. After she makes the distinction, the believer can then formulate a rule against lying, and Wittgenstein himself said that religious believers show their beliefs by “regulating” their actions rather than in some more amorphous way.

A religious belief of a believer “will show, not by reasoning or by appeal to ordinary ground for belief but rather by regulating for it in all his life.” L. Wittgenstein, Lectures & Conversations on Aesthetics, Psychology and Religious Belief 53–4 (Cyril Barrett ed., 1967).

Many legal authorities enjoy issuing their own religious-style pronouncements, with the U.S. Supreme Court being particularly fond of them. A classic example of a regulatorily near-useless revelation is this from the Court:

This airy edict thinly disguised as constitutional law does little to indicate what actions the Supreme Court would allow the government to regulate and what actions it would not. Certainly, marriage, many family relationships, child rearing, and education are heavily regulated by a bewildering array of federal and state statutes, common law, and administrative rules, while acts of procreation and contraception are less so. “Personal dignity and autonomy” are very much in the eye of the beholder. The last sentence has no legally relevant meaning at all—somehow it buttresses a right to abortion but not, say, to a right to polygamy, to a single-sex work environment, or to sell one’s own internal organs.

These, as well as somewhat more recognizably legal concepts such as “negligence,” “equal protection,” the “right to privacy,” “due process,” and the “personhood of corporations,” must be translated into rules and commands that subjects can rationally understand and obey if law is to aspire to rationality and justice. The imperative for such translation is greater in law than in religion and morality, for many religious and moral concepts can vary substantially from thinker to thinker and still be themselves—they can be more purely individual mental kinds—and, further, religious and moral concepts are not necessarily used by some to regulate the actions of others. Legal concepts are necessarily social and must be substantially shared by a variety of subjects, and are used to coerce.

It is not that the law should dispense with the use of concepts of high generality any more than it should dispense with religious concepts as sources—“do unto others as you would have them do unto you” clearly plays a prominent role in the thinking underlying a wide range of law, as do “dignity and autonomy.” Instead, before law is made, they should be translated into specific legal concepts that indicate more clearly to subjects what they must and must not do, and which can serve as more precise and stable sources for rules and commands than either openly or de facto non-essentialist procedures.

For instance, giving to courts the power to penalize subjects for uncontoured “negligence” would give them a quasi-religious power to interpret, often unpredictably, the concept in different ways at different times that then would lead to different outcomes for subjects however diligently those subjects attempted to be law-abiding. Unlike God, courts neither merit this power nor can be relied upon to exercise it properly. This is why legislators, judges, and regulators translate negligence, constitutional rights, and other general concepts into more specific ones, if not explicitly then at least implicitly when they produce concrete rules and commands. Insofar as this process does not produce precise essentialist concepts, it is faulty.

Again, sometimes legal concept formulation must leave room for considerable discretion for legal authorities, but that discretion should be delineated as precisely as reasonably possible. Essentialism can contribute to this. And again, it is not that essentialism alone can cure law of harmful vagueness, rationally-irresolvable ambiguity, and arbitrary discretion—far from it—but essentialism is a necessary step along the right path. Like many essentialist concepts, all non-essentialist concepts should be, at most, sources for law rather than used as legal concepts, that is to say, used to regulate subjects’ actions by means of the legal system.

“Negligence,” as a general American legal concept, includes violations of behavior expected of the reasonable man of ordinary prudence, and also includes higher standards such as “utmost care” that demand more than ordinary prudence, as in the case of common carriers. At times, those different standards dictate different results in a given tort lawsuit because the two standards are partially contradictory and at times irreconcilable, even though the general concept of negligence encompasses them both. Allowing judges and jurors to use the negligence concept containing the contradictory standards, without including in the concept specifications of the circumstances in which each standard should be used, gives them a non-essentialist concept that renders the application of the law unpredictable for some litigants and potential litigants. They cannot know when a court will choose which standard. The non-essentialist concept allows courts to choose out of it what the court wants, when the court wants, while leaving the contradictory elements behind. This is irrational and unjust. The same goes for such vague doctrines as “dignity and autonomy,” the “right to privacy,” and whatever can be deduced for law from “the right to define one’s own concept of existence” as well as more mundane examples such as “disorderly conduct.”

These must be refined into regulatory concepts and rules that come closer to the ideal of informing subjects of exactly what behavior will expose them to legal liability, or allow them to obtain legally-specified benefits, and what will not. The concepts should contain properties that both do not contradict one another and are also specific enough to cover as many future contingencies as possible. Due to the vagaries of facts, thought, and language, this ideal is often unreachable, but it should be an ideal at which the law aims. Marginal cases especially will present evergreen challenges, but by having cores to them, legal concepts can more clearly signal which cases are marginal and which are central. “Negligence,” the “right to privacy,” and so on are often refined into essentialist concepts for certain purposes—but often are not, and often are altered unexpectedly without the salutary candor and precision that more rigorous conceptual thinking would provide.

More examples of translations: moral principles such as “avoid harm to others” have been translated into tort law in various ways, but have not been used to create a general duty to rescue strangers in distress even when the cost to the potential rescuer is negligible. The conjectured constitutional “right to privacy” has been refined to cover the commercial purchase of contraceptives but not items inside discarded residential garbage.

(“[T]he issue here is whether the Fourth Amendment prohibits the warrantless search and seizure of garbage left for collection outside the curtilage of a home. We conclude, in accordance with the vast majority of lower courts that have addressed the issue, that it does not.” (quoting California v. Greenwood, 486 U.S. 35, 37 (1988))). The Supreme Court of Canada came to the same conclusion. (“[T]he police did not breach P’s right to be free from unreasonable search and seizure. When P’s conduct is assessed objectively, he abandoned his privacy interest when he placed his garbage for collection at the rear of his property where it was accessible to any passing member of the public” ( quoting R. v. Patrick, 17 SCC 579, 580 (2009))).

In other words, Posner’s epistemological democracy should become epistemological authoritarianism. Keeping legal concepts “democratic” empowers the discretion of legal authorities at the expense of legal stability and predictability for legal subjects and citizens. Although legal authorities’ discretion can be employed to benefit legal subjects and advance justice when following clearer legal rules would not, authoritarianism produces better results overall for the same reasons that the rule of law is superior to the rule of men—allowing the powerful to do as they think best comes at too great a cost, even though law sometimes prevents the powerful from doing the best thing. In law, epistemological democracy is most often democracy restricted to rulers, and epistemological authoritarianism is freeing for the ruled.

Many legal authorities’ discretion is too great—Posner seems to think it close to legally unconstrained, though perhaps constrained by what society will accept—and non-essentialist concepts always leave it greater in sub-optimal ways when compared to the advantages of essentialism. More generally, contemporary non-essentialism helps to justify pre-existing tendencies toward slipshod thinking, certainly a long-standing feature of human life.

Beyond the conscious use of essentialism per se, using it to clarify the high-level concept of law, such as the recognition of coercive intent as an essential element, is a precondition for clarifying many downstream legal concepts.

Contra “[Essentialism] cannot provide answers to many of the questions of categorization that arise in constitutional law. Judges should, therefore, abandon the search for ‘essential features.’” Evans, supra note 19, at 208.

For example, in shifting a certain class of cases from the ordinary prudence standard to the utmost care standard of negligence, the direct real-world effect is not to increase the safety of those newly due utmost care. That may or may not occur. The direct effect, or at least directly-intended effect, is to make liable, or at least potentially liable, a new group of potential defendants to an increased risk of lawsuits, and the associated expenses and other disadvantages, and an increased risk of paying judgments, which may also have a higher average cost. The direct effect is the coercive force of the law applied more strictly against a certain group of subjects. When this is recognized, the coerced subjects’ interests come into sharper relief, and the more distantly-intended effects can be more easily seen to be subject to greater uncertainty. Perhaps the more risk-adverse members of the industry in question will get out of the business, thus rendering the industry’s customers, whom the legal authorities had intended to make safer, in reality less safe.

Similarly, when the Supreme Court decided that citizens do not have a privacy interest in discarded garbage, it did not decide to directly empower the police to search garbage without a warrant, but rather took away the potential legal power of citizens to coerce police and prosecutors away from such searches by having any evidence thus obtained rendered useless, or by granting monetary compensation at the government’s expense, or by some other method. A will does not empower a testator to inform others of the desired disposition of his property—this could be done by a legally-informal document—but rather, as a specifically legal document, a will directs the coercive power of the state against those who might take the testator’s property against his wishes after his death.

On wills and other “law-constituted” forms, see D’Agostino, supra note 8, at 194–203.

This approach also reveals what is directly at stake in an ongoing class of free speech and religious liberty cases. For example, when a baker refuses to bake a cake for a same-sex wedding in certain jurisdictions,

See, e.g., Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018).

Such anti-discrimination cases are about forcing private citizens to do things they do not wish to do by using the legal system—which may or may not be justified in these cases, but of course often is. Obscuring the operation of the law by focusing first or solely on preventing discrimination or the like is deceptive, although it can be useful after first identifying the coercive effects of the law. In any case, Posner’s nihilistic procedural values of liberalism and epistemological democracy are of no use.

The relationship among law, knowledge, and coercion is highly relevant to conceptual essentialism since that relationship determines the need for essentialism, the value of which is contingent upon the ends and means in question.

Tracing the flow of coercion is a useful way to frame the metaphors that I believe we inevitably use to understand law. “[L]egal concepts are analyzed as if they were spatialized objects existing in two- or three-dimensional space. Hence it is that legal thinkers, even today, will speak un-self-consciously about legal concepts as ‘covering certain areas’ or as having certain ‘boundaries’ that must be established through ‘line-drawing’ exercises…” Schlag, supra note 53, at 194. Schlag is much more skeptical of the value of spatial metaphors than I.

Posner has long favored paying close attention to science in judicial decision-making, and I agree with those who say that legal philosophers would do well to examine more closely actual experience, including data from empirical disciplines such as sociology and psychology.

“[W]e ought not let the contingent and contested contemporary demarcations of the academic disciplines circumscribe the inquiry. . . . Some of what follows will be sociological, in the broadest sense, and more than some will draw on experimental psychological research.” Schauer, supra note 70, at 4. He says that “we should not too quickly accept that the domain of inquiry designated as ‘philosophical’ should be limited to the search for essential properties” and also relies upon “empirical and analytical conclusions from economics and political science.” Id. at 4.

I disagree with those who suggest that the concept of law and other legal concepts can be more fruitfully understood from a non-essentialist standpoint than from an essentialist one, and even with those who simply leave the door to non-essentialism open. One writes:

It is this “quite possibly mistaken view of the nature of our concepts”—essentialism

See id. at 37–8. (“Cognitive scientists who study concept formation have almost universally concluded that people do not use concepts in the way that the ‘essential feature’ view of concepts supposes. . . . [P]eople think of concepts and categories in terms of properties . . . that may not hold even for all the central cases of the category”).

Posner says of judges’ work that “[i]ts raw materials are the ugly realities of life, but the judicial game transmutes them into intellectual disputes over rights and duties, claims and proofs, presumptions and rebuttals, jurisdiction and competences.”

Posner, supra note 15 at 134.

Family resemblances, cluster concepts, and the like can and should be reinterpreted with a firm anchor in some form of essentialism that employs necessary and sufficient properties, even if the question of inclusion of additional properties is objectively irresolvable.

“It is worth repeating that the most important versions of anti-essentialism are not merely about peripheral cases. . . . Rather, the question is whether even the core or standard or central cases can be understood in terms of necessary features.” Schauer, supra note 70, at 39.

Therefore, even those who favor the highly dubious epistemologies of post-modernism must believe, if they believe in law, that valid and socially-objective conclusions

For any workable legal system, this must include conclusions based upon imperfect knowledge. See, e.g., “Despite the limited evidence, judges rightly affirm propositions such as ‘the contract is valid,’ and deny their negation, in cases in which there is offer, acceptance, consideration, and no available defense.” Michael S. Moore, The Plain Truth About Legal Truth, 26 Harv. J.L. Pub. Pol. 23, 34–5 (2003).

Further, there are features and goals that may not be strictly essential to law, but are essential to maintaining respect for it and, thus, perhaps for maintaining the rule of law in the long run. Situating the question as a relation of the means necessary to achieve socially-desired ends, Fish wrote of Posner’s The Problems of Jurisprudence:

I have gone beyond Fish in one sense and denied that law can exist at all without a socially-objective conceptual universe that includes these “metaphysical entities.” A collection of willful commands, untethered from socially-recognizable rules of at least substantial predictability that are administered with at least substantial impartiality, is not the rule of law, but the rule of men—and not only is formulating a legal rule without using legal concepts impossible, but a legal rule is a legal concept.

Here, we can usefully employ the term a priori. Even something as simple as “Do not exceed 55MPH” involves multiple prior legal concepts such as “a rule,” “meant to guide subjects’ behavior,” “a measurement of physical speed meant to be employed in determining the legal speed limit,” “enforceability,” and the “penalty” for the rule’s violation. It almost certainly involves other legal concepts such as the “exceptions to the rule,” explicit or implicit, including whatever the law classifies as “emergency vehicles” under a “duty to travel as quickly as reasonably possible” in “appropriate circumstances.”

I do not criticize those linguists who assert that non-essentialist theories may be valuable ways to describe how speakers use many terms and concepts in various contexts, and that is often what legal theorists such as Posner appear to be doing.

But Schauer never adopts non-essentialism and writes, “That our language and our concepts, especially those that do not describe natural kinds such as gold and water, are best characterized in terms of prototypes, central cases, generic properties, clusters, and family resemblances is contested terrain.” Schauer, supra note 70, at 39.

Imprecision, vague association, and outright incoherence characterize, to greater or lesser degrees, much of our thinking and speech both in everyday life and in certain professional areas, especially those in which these qualities are often actively sought such as politics, propaganda (often euphemistically called journalism), and legal argument.

“More importantly, the nonessentialist view is consistent with a great deal of research in contemporary and not-so-contemporary cognitive science. People simply do not think and use concepts in terms of essences or necessary and sufficient conditions.” Frederick Schauer, The Best Laid Plans, 120 Yale L. J. 586–621, 617 (2010).

In addition, and contrary to the beliefs of some, there is considerable scientific evidence that the human mind naturally tends toward conceptual essentialism.

See, e.g., Woo-kyoung Ahn et al., Why Essences Are Essential in the Psychology of Concepts, 82 Cognition 59–69 (2001). They discuss the theory of psychological essentialism. “Essentialist theories have recourse to the notion of naturalness of a causal relation. It is precisely in distinguishing natural from non-natural relations or properties that the content of essentialist beliefs is crucial.” Id. at 62.

Structured cause and effect reasoning is a human habit as well as a required property for the interpretation of any intelligible world.

Cf. “Psychological essentialism was initially proposed in reaction to the common assumption that concepts are equivalent to undifferentiated clusters of readily accessible properties.” Ahn et al., supra note 99, at 90.

Regardless of the accuracy of the theory of psychological essentialism and setting aside the preferences of the human mind—rationality and not preference should be our ultimate guide—problems arise when non-essentialist family resemblances or other non-essentialist forms become considered acceptable, or even unavoidable, when terms and concepts need to be used prescriptively for coercive social action. I criticize the refusal to recognize that any family resemblance or similar concept must involve an essential core or else be a mishmash of more lucid categories and a sign of muddled thinking, even if that muddled thinking has no substantial cost or has advantages in many contexts.

Family resemblance can be employed valuably and positively not only in describing the thinking of real people in the real world, but also in non-linear explorations of reality such as much literature, other forms of art, and religion, in all of which incoherent thinking can be a stepping-stone to insight and thus a more profound understanding of reality. Law does not qualify and cannot valuably be extended to include such categories. Although even in philosophy the quest for precision can go beyond what is useful or possible, it is the duty of theorists, scholars, and jurists to clarify language and use concepts with the optimal levels of precision and limitation rather than accept the common sloppiness of thought and speech, or even the truth-revealing obscurity of art and religion, and it is the duty of legal scholars to clarify legal argument.

“It thus appears that an important feature of human cognition and human communication is the use of probalistically but not universally true characterizations as a vital part of our cognitive and communicative existence.” Schauer, supra note 70, at 39. The imprecision of everyday language becomes unacceptable when indulged by philosophers, and thus I reject the influence of ordinary language philosophy if and when its claims lead philosophers to accept in their own work the counter-productive imprecision of the ordinary use of language.

Unlike the concept of epistemological democracy, Posner’s general concept of pragmatism does not, initially, produce any incompatibility with an essentialist approach that does not require metaphysical essentialism. By pragmatism, he says, “I mean, to begin with, an approach that is practical and instrumental rather than essentialist—interested in what works and what is useful rather than in what ‘really’ is.”

Posner, supra note 15, at 4.

But I would add that a specific obligation to follow precedent does arise after the practical reasons are identified, precisely because there is a general obligation to serve those practical reasons, and I would add also that this specific obligation is subject to exceptions—and certainly the specific obligation does not arise from some purely a priori or Kantian-style notion of duty. The specific obligation to follow precedent is highly valuable in realizing law’s overarching goals, which require considerable stability and predictability. After all, Posner says that if formalism works best in the long run, then “[a] pragmatic philosopher might without inconsistency think that judges should be formalists rather than pragmatists. . . .”

Id. at 12.

Posner’s work cannot give us the answer, nor even the tools for a good answer, for restoring or preserving the rule of law, perhaps because this does not seem to be one of his priorities.

See, e.g., “As so often in The Problems of Jurisprudence, Posner then walks away, leaving his readers with an unresolved clash of arguments. Throughout the book, one constantly has the sense of strolling into Maxim’s and being handed a trout, a pan, and a place by the stove.” Eric Rakowski, Posner’s Pragmatism (Review of The Problems of Jurisprudence), 104 Harv. L. Rev. 1681, 1691 (1991). I deny that Posner provides a trout.

It is not that conceptual approaches can never change, or that we should not always be open to revision in our thinking, but that some things are so unlikely to change that we need not concern ourselves with the possibility.

Cf. “Practical reason avoids the trap of ensconcing a conceptual scheme, or a theoretical, rule-governed picture of the world, into which new incidents must either fit or exist as anomalies. Its nature is to exist beyond grammars currently extant, moving on to better ones when it can picture them and holding fast to the best existing ones when it cannot.” James Penner, The Rules of Law: Wittgenstein, Davidson, and Weinrib’s Formalism, 46 U. Toronto Fac. L. Rev. 488, 506 (1988).

Posner sometimes seems to use this conceptually essentialist approach because it is pragmatic, but while denying that he does so: “[T]he question arises whether pragmatism has any common core, and, if not, what use the term is. To speak in nonpragmatic terms, pragmatism has three ‘essential’ elements. (To speak in pragmatic, nonessentialist terms, there is nothing practical to be gained from attaching the pragmatist label to any philosophy that does not have all three elements.)”

Richard A. Posner, What Has Pragmatism to Offer Law?, 63 Cal. L. Rev. 1653, 1660 (1990).

A way of restating the above: Modern law has a great number of imperialist tendencies and gradually has conquered more areas of life and regulates each one with greater and greater effect. Despite law’s many benefits—including some benefits of expanded regulation—its overcriminalization, overregulation, vagueness, and ambiguity

See, e.g., Todd Haugh, Overcriminalization’s New Harm Paradigm, 68 Vand. L. Rev. 1191, 1223-24 (2015) (“Overcriminalization not only causes unnecessary criminal violations through increased and unjustified enforcement and adjudication, but it also causes criminal behavior itself”); William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 506-7 (2001) (“Anyone who reads criminal codes in search of a picture of what conduct leads to a prison term, or who reads sentencing rules in order to discover how severely different sorts of crimes are punished, will be seriously misled. The reason is that American criminal law, federal and state, is very broad; it covers far more conduct than any jurisdiction could possibly punish”); and Richard A. Epstein, How Progressives Rewrote the Constitution 2 (2006) (“The New Deal Court thus vindicated both expansive federal powers and limited protection of individual rights of liberty and property…That transformation represents the defining moment in modern American constitutional law: the Court’s shift toward the big government model that continues to dominate today”).

Statements such as this from Posner are common among dedicated legal pragmatists: “There is no algorithm for striking the right balance between rule-of-law and case-specific consequences, continuity and creativity, long-term and short-term, systemic and particular, rule and standard. In fact, there isn’t too much more to say to the would-be pragmatic judge than make the most reasonable decision you can, all things considered.”

Posner, supra note 36, at 64.

A strict formalist’s answer would be, “Apply the law as written regardless of the perceived consequences. All things considered, that is what reasonable judges do.”