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"material basis of jurisprudence" a summary

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CBA Record
April, 1996
Department
Summary Judgments
*50 HAIL POSNER! KEEPER OF THE COMMON LAW FLAME!
Patrick W. O'Brien
Copyright (c) 1996 by the Chicago Bar Association; Patrick W. O'Brien
WESTLAW LAWPRAC INDEX
LIT -- Literature Reviews & Analyses
RICHARD A. POSNER, Harvard Law School, 1962, former University of Chicago Law Professor and now
Chief Judge of the United States Court of Appeals for the Seventh Circuit, has published a 597-page book, perhaps
his magnum opus, entitled Overcoming Law. It has a preface, an introduction and 26 chapters divided into six parts:
The Profession, Constitutional Theory, Variety and Idealogy in Legal Theory, Of Gender and Race,
Philosophical and Economical Perspectives and At the Frontier. The broad range of this book is suggested by
chapter titles, such as The Material Basis of Jurisprudence, Legal Positivism Without Positive Law, Bork
and Beethoven, Postmodern Medieval Iceland and Economics and the Social Construction of Homosexuality.
My responsibilities as CBA Record Summary Judgments Editor caused me to riffle through a few pages while
thinking about which professor of legal theory might review this book. Then my eyes stuck on the first sentence of
the preface which said Overcoming Law was about legal theory and warned that legal theory is something which
lawyers ignore at their peril! During 46 years of practice, I have ignored alleged developments in legal theory and
have been indifferent to the clamorous contemporary legal theorists! So had just about every lawyer and judge I
know. It now appears we were wrong and, worse, were imperiled.
My duty to the bench and bar was clear. I must buck up and wade and slash through Posner's bulky work in the
hope of being able to write a review of it which might enable working stiff lawyers and judges to duck the looming
peril.
I finished that task, reviewed my 60 pages of notes and reflected. Only then did I realize that I and any
concerned colleagues could be at ease. Posner's principal message is that any time spent reading post-1921 works of
legal theorists other than Posner is a waste of time!

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The peril dispelled, what about the book? The principal message of this review is that reading Overcoming Law
is a trip that all law buffs should take. I enthusiastically suggest all practicing lawyers, judges and law teachers buy
and read it.
Despite the title of his book (perhaps a product of the Harvard University Press marketing department), Posner
is not out to overcome anything that might be within a rational concept of law. His mission is to overcome -clearly meaning search out and then destroy -- all that is pretentious, uninformed, prejudiced and spurious in the
legal tradition. (p. 21)
This book on legal theory is not intended to advance some specific or constitutional legal theory. Quite the
contrary, Posner insists that a totally unified conception of law is the dream of antediluvian formalists. (p. 76)
He also says to suppose it possible to extract a single unifying intention or theme from the Constitution of the
United States -- a sheaf of documents written at different times and covering a variety of discrete topics -- is to
enter cloud-cuckooland. (p. 179)
Posner's definitions of good and bad legal thinking summarize what I was taught in the late '40s and what I
believe to be good and bad today. Posner says good legal theorizing should involve a taste for fact, a respect
for social science, an eclectic curiosity, a desire to be practical, a belief in individualism and an openness to new
perspectives. (p. viii) Bad legal thinking is that which lacks firm moorings in constitutional text, or structure, or
history, or consensus or other legitimate sources of constitutional law, or because it is reckless of consequences, or
because it oversimplifies difficult moral and political questions. (p. 236)
Posner assures us that we may be free of peril if we have been fans, followers, students or readers of Holmes,
Cardozo and Hand. He says Holmes's dissent in Lochner v. New York, 198 U.S. 45, 74-76 (1905), is the greatest
judicial opinion of the last hundred years. (p. 195) He recommends Holmes's most important book and essay,
Common Law (1881) and The Path of the Law, 10 Harvard Law Review 457 (1897), as well as Cardozo's most
important book, The Nature of the Judicial Process (1921). Posner also commends the opinions of Learned Hand to
his readers. Holmes, Cardozo and Hand -- the titans, the pillars of the common law tradition! Since law school days,
I have been a fan of each. In a 1994 brief in support of a motion for summary judgment to a judge of the Cook
County Circuit Court I was proud to cite a Hand opinion quoting a Holmes opinion! Vulcan Metals Inc. v. Simmons
Mfg. Co., 248 Fed. 853, 857 (2d Cir., 1918).
I am now a fan of Posner, the new champion of the old heroes! I hail him as not just one of the new keepers of
the common law flame, but its Grand Protector. Posner will gustily sniff out and then snuff with vigor all threats to
that venerable flame from the pretentious, uninformed, prejudiced and spurious.
With sound rhetoric, logical argument and keen, but sometimes acerbic, wit, Posner detonates a horde of
American professorial legal theorists -- those authors of the crazy stuff [that] is being published in law reviews
nowadays. (p. 101) Up in smoke they go: traditionalists, formalist butterflies, anarchovegetarianists, naughty
realists, Afrocentrists, legal processists, self-conscious utopianists, doctrinalists, naive *51 humanists, originalists,
reactionary nostalgists, monists, dualists, radical feminists, postmodernists and crits -- members of the Critical
Studies Movement! If what at least one law professor calls the new communitarian movement gets off the ground,

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Posner undoubtedly will surround and try to kill it, too.

I enjoy the vigor of Posner's criticisms. Whether they are fair or sound I do not know. Posner does seem both
sound and fair in giving some room to those whose views differ from his, e.g., representative quotations from
Economic Science Nobel Prize-winning University of Chicago Professor Ronald Coase:
In my youth it was said that what was too silly to be said may be sung. In modern economics it may be
put into mathematics. When economists find that they are unable to analyze what is happening in the real
world, they invent an imaginary world which they are capable of handling. (p. 409, fn. 14)
But at least one Posner criticism seems unfair and unsound. Posner begins Overcoming Law with over 20 pages
of description of his inner mental state, his doubts or confidences. In self- absorbed detail, he describes the
essences of his particular pragmatism, economic mindedness and Millian liberalism (pp. 4-29). Yet Professor
Wechsler, the author of one of the most heavily cited [[[law review articles] in legal history is criticized by Posner
because Wechsler started his article with a short personal statement. Toward Neutral Principles of Constitutional
Law, 73 Law Review 1, 2 (1959).
Posner derides Wechsler as a self-consciousmaster crafts[person] of the guild of lawyers who assumes
[his] inner mental state, his doubts or confidences, have a significance independent of the reasoning or evidence he
offers in support of his views, (pp. 70, 71) The ideological identity data submitted by Wechsler is a splinter
compared to the plank of such data provided by Posner for his readers. (See Matthew 7:3-5, The Jerusalem Bible,
Doubleday, 1966.)
I must caution that some pretentious and even some uninformed, prejudiced and spurious generalities are
encountered in Overcoming Law which detract from the force and fire of Posner's message.
First a few examples which show that Posner can be pretentious:
Because Victorian-like ancient Athenian marriages were often deficient in intimacy, men of homosexual
preference like Oscar Wilde could have successful or at least unremarkable marriages. (p. 568)
This mish-mash involving the marriages of ancient Athenians, those of the Victorian epoch and the fruitful (two
sons) marriage of a homosexual is a shovelful of buncombe. Since humans began marrying one-on-one, common
sense teaches that marriages would be often deficient in intimacy and nevertheless could be at least
unremarkable whether the parties to it were heterosexual, had a gender clash or one or both were emotionally or
sexually impaired.
The history of the legal profession is to a great extent, and despite noisy and incessant protestation and
apologetics, the history of efforts by all branches of the profession, including the professoriat and the judiciary, to
secure a lustrous place in the financial and social-status sun. (p. 33)
The above bombast overlooks the fact that the history of humankind is, to a great *52 extent, the history of

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efforts by all of its branches to secure a lustrous place in the financial and social-status sun. To a great extent it
is also a history of efforts by all of humankind's branches to cooperate with others for the good of all without
worrying much about whether their place in the financial and social-status sun is lustrous or, indeed, whether they
spent their life where the financial and social-status sun never shines.
Occasionally, it seems to me, Posner drifts into the dreaded uninformed, prejudiced and spurious category.
Posner says, until about thirty years ago, just about when Posner entered it, the legal profession was secure
in the belief that it had cogent tools of inquirya methodology that could generate objectively correct answers to
even the most difficult legal question,had a pipeline to the truth. (pp. 34, 58).
I finished law school in 1950 and have been active in the legal profession as a commercial case trial lawyer ever
since. I was never taught and have never believed any such nonsense. Nor have I ever heard anyone I deemed
rational voice such an opinion. Elsewhere Posner may recognize his distortion when he says that, in fact, ever since
Socrates [470-399BC] there have been influential thinkers who were skeptical about the capacity of legal reasoning
to deliver something that could reasonably be called truth. (p. 2, emphasis added) In my opinion, skepticism about
legal reasoning was found in ordinary thinkers since long before Socrates and probably came to life at about the
same time that the first grunts of legal reasoning emerged from some huddle of Cro-Magnon elders.
With the benefit of hindsight, 1960 can be identified as the highwater mark of the American legal profession's
cartel, and hence of jurisprudence as a guild ideology. (p. 60).Thus stood the American legal profession in 1960,
on the eve of revolution. Today all is changed, changed utterly. (p. 63)
I protest and tremulously suggest that the legal profession is no more and no less a cartel or a guild today
than it was in 1950, 1960 or probably ever was. There certainly have been many substantial changes in the legal
profession since 1960 -- and since 1900 and 1930 -- but to say it has changed utterly since 1960 (whether for the
better or not) is, to use Posner's splendid phrase, to enter cloud-cuckooland.
The judges of the Plessy-Lochner period were not interpreting the Reconstruction amendments; they were
inverting them. (p. 224)
A quick glance at the Plessy and Lochner Supreme Court decisions shows that some of the judges of this
country during the nine years of the Plessy-Lochner period were quite capable of interpreting the Reconstruction
amendments. In Plessy v. Ferguson, 163 U.S. 537 (1896), the Court upheld a Louisiana railway racial segregation
law. Justice Harlan wrote a strong dissent saying, Our Constitution is color blind and neither knows nor tolerates
classes of citizens. In respect to civil rights, all citizens are equal before the law.In my opinion, the judgment this
day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott
case. (163 U.S. at 559) In Lochner v. New York, 198 U.S. 45 (1905) the Court, by a five to four vote, rejected a
New York state law limiting the workday of employees in certain baking and confectionery establishments to 10
hours. The law had been upheld by judges of the New York trial court, the Appellate Court and the New York Court
of Appeals. In the Supreme Court, Justices Harlan, White and Day dissented. Justice Holmes wrote a separate
dissent -- the opinion which Posner calls the greatest judicial opinion of the last hundred years. On behalf of all

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those able judges of the Plessy-Lochner period who were not inverting the Reconstruction amendments, I cry
Foul.
However, I cry Hurrah for Posner's introduction to his readers [[[Chapter 10, The First Neoconservative,
(pp. 259-270)] of one Sir James Fitzjames Stephen who was born in 1829 and died in 1884. Stephen was:
simultaneously or successively a barrister, prolific essayist, moralist, political thinker, writer of influential treatises
on criminal law, colonial official and High Court judge -- as well asthe uncle of Virginia Woolf. (p. 259)
Stephen's writing was Forceful, pithy, aphoristic, [he] was a magnificent prose stylist in the English tradition of
brook-no-disagreement plain speaking.
His best known book, Liberty, Equality, Fraternity, first published in 1873, was an audacious, indeed
pugnacious, (p. 264) attack on the normative political theory of John Stuart Mill as developed in On Liberty and
other works. (p. 259) Stephen's attack on Mill's principles is also an attack on Posner's beliefs because Posner is a
confessed Millian liberal. (p. 13)
Holmes and Stephen were acquainted, and Posner thinks Stephen's direct, muscular, witty, vivacious,
economical style of writing may have influenced Holmes. (p. 261) Posner's expressions of admiration for Stephen
and Holmes are hearty and genuine, despite their rejection of Posner's Millian liberalism. This is just one of many
examples in Overcoming Law of how there can be respect, indeed admiration, between persons with conflicting
views about important matters.
Overcoming Law is a reminder of how reviewing the clashing views of thinking lawyers of any epoch can be
an entertaining and enlightening aid to the civilization process.
I close with a meditation topic for courtroom lawyers: imagine an oral argument before a panel consisting of
Chief Judge Richard A. Posner, Justice Oliver Wendell Holmes, Jr., and High Court Judge Sir James Fitzjames
Stephen. Dream team or nightmare?
FNNote 1. Patrick W. O'Brien, Summary Judgments editor of the CBA Record, is a retired partner of and senior
counsel to Mayer, Brown & Platt.
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