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October 14, 2007

Separated at Birth? Richard Posner and Joseph Raz on Judicial Interpretation

Richard Posner, The Pragmatics of Moral and Legal Theory (Harvard University Press, 1999), p. 242:

The judicial pragmatist...wants to come up with the decision that will be best with regard to present and future needs.  He is not uninterested in past decisions, in statutes, and so forth.  Far from it.  For one thing, these are repositories of knowledge, even, sometimes, of wisdom; so it would be folly to ignore them even if they had no authoritative significance.  For another, a decision that destabilized the law by departing too abruptly from precedent might on balance have bad consequences.  Judges often must choose between rendering substantive justice in the case at hand and maintaining the law's certainty and predictability.  The trade-off--posed most starkly in cases in which the statute of limitations is asserted as a defense--will sometimes point to sacrificing substantive in the individual case to consistency with previous cases or with statutes or, in short, the well-founded expectations necessary to the orderly management of society's business...

So the pragmatist judge regards precedent, statutes, and constitutional text both as sources of potentially valuable information about the likely best result in the present case and as signposts that he must be careful not to obliterate or obscure gratuitously, because people may be relying upon them.

Joseph Raz, "On the Authority and Interpretation of Constitutions:  Some Preliminaries," in Constitutionalism:  Philosophical Foundations, ed. L. Alexander (Cambridge University Press, 1998), p. 178:

[G]iven that constitutional decisions, like many other legal decisions, have on people's lives, they are justified only if they are morally justified.  As we saw, considerations of continuity are of great moral importance...But they are hardly ever the only moral considerations affecting an issue.  When they are not, courts should try to reach decisions that satisfy as much as possible all relevant considerations, and when it is impossible to satisfy all completely, they should strive to satisfy them as much as possible, given their relative importance.  Hence, while on occasion the desirability of continuity in the matter concerned will prevail over all else, often this will not be the case, though even when continuity does not override all else, it should still be taken into account as much as possible.  Hence, in such cases, while the courts should still interpret the constituion, for they are still rightly moved by considerations of continuity, they should also give weight to other moral considerations. That is, their interpretation should also be forward-looking.

Posted by Brian Leiter on October 14, 2007 in Legal Theory | Permalink


Hello Brian,

I think you mean "*Problematics* of Moral and Legal Theory."

All best,

Posted by: Maynard | Oct 15, 2007 3:20:02 PM

But "Pragmatics" is such an exquisite Freudian slip it's a typo we might live with.

Posted by: Patrick S. O'Donnell | Oct 15, 2007 4:34:49 PM

I was looking at Raz's essay this afternoon and wrote (thinking I was being rather lazy at the time) 'pragmatic' in the margin near the above passage. After reading this post I both feel validated and slightly off-put by the coincidence.

Posted by: Scott Wisdom | Oct 15, 2007 11:11:12 PM

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