Tuesday, October 21, 2008

Posner is an "economic liberal" who sees the rule of law as nothing other than a subset of economic policy. And the rule of law to him is the rule of judges. Democracy however is not the rule of law but the rule of argument.
Posner's philosophy is asocial and atomistic. His descendants include many who ascribe to the atomism but try to reconstruct the social within the limits of atomism. An example of such a hybrid would the eccentricity of Ian Ayres. 
Posner's ideas are the logical conclusion of the logic of justice as contract, as market contract: a moral esthetic of non-contradictory order. He imagines a society of one telos. Democracy is founded on the assumption of many teloi. His theories are fundamentally anti-democratic. They are "machine fascism" posited as freedom in that we can in ideal circumstances choose what kind of machine we want to be. 
Democracy as the culture of language in use; of argument over the meanings of words and things. Posner says he has answered certain questions, and he thinks he has the right to speak for others. Economic life is a subset of social life. Posner argues it is the reverse. He s wrong on the facts. But his philosophy is more dangerous to the country than born again christianity and "young earth" creationism.
Posner's is a strain of post war american Jewish rationalism, from the right. Chomsky would be his equivalent on the left. Both are at their best regarding matters of logic and simple facts [revising my first comment somewhat]. Posner on Scalia is as sharp as Chomsky on American foreign policy. They differ on values. Though neither of them are willing—perhaps capable—of articulating anything on that subject beyond platitude, Posner is willing to see himself as embodying a form of abstract reason a variant of which Chomsky only claims to represent. But they're both Cartesian to the core. 
It's significant that legal theory Rawlsian and otherwise sees language through the prism of civil contract and an ideal of reasoned decision-making. But the heart of law and language in our moral system is in the vulgar theater of the criminal courts. Legal philosophers defend ideas they believe in. Defense attorneys defend people they don't believe in at all. They don't defend truth, they defend their clients. 
Our criminal court system is built not on fantasies of the human capacity for reason but on an empirical awareness of our capacity for unreason: for failure. That's the response to Posner, and its staring you and him in the face. What's the proper relation of the courts to the legislature to the executive? Tension.
Of the prosecution to the defense? Tension.
Of the government to the press? Tension.
Of experts to the people? Tension.
That's the only "right" answer in a representative democracy.
[Answering a question about the reference to jewish rationalism] I'm the product of that world: secularized jewish intellectualism in the service of reason, with a tension between the intellectualism of the humanities and of the sciences. Chomsky didn't begin with contempt for Skinner but for Freud, more importantly for what Freud tried to describe. Both Chomsky and Posner defend a theory of rational action. Their works function as products of "Baroque" academicism or "Late" Modernism -as products of their age- though as Cartesians neither would allow that descriptions using the terminology of history should be seen to apply to their ideas.
Norman Mailer, Philip Roth, Woody Allan, or Larry David for that matter would never be so arrogant.
Scalia posits himself as the humble servant of higher authority: the text, the church the state etc...
Posner is the technocrat and servant of logic.
One filters authority through a sense of the theater of social function, the other is indifferent. One is popular, one is not. It's the authoritarianism of the priest vs the authoritarianism of the technocrat. With Posner you just have to go a little deeper to find the deus ex machina.
I prefer Scalia because he understands the social function of language. You can argue with a fundamentalist over interpretations, because whether he will admit it or not, he is interpreting a text and the text in this case is public and in the common language. You can argue democracy with a someone who holds a conservative interpretation. You can not argue with someone who claims only logical structures in esoteric form.
A government by technocracy is not democracy. It's the pseudo-science of authoritarianism. cf. the "Brights" and "New" atheists.
Technocracy like the military is an authoritarian order that must be seen to serve democracy, not the other way around.
Too many people do get this obvious point.
We need more literary critics reading law. If words have meanings, so do structures. "The passive voice" carries meanings. Posner is another rhetorician against rhetoric. That's the contradiction. Language is rhetoric. Democracy is language in use.
This is all really really basic stuff in the history of ideas.
Desire vs Convention.
There are right-wing Conventionalists and Left wing, depending on whether they see it as rooted in the people as a whole or the elite. Edmund Burke or William Blake. The rule of law is conventionalist and one of the early leaders of the ACLU call it "a conservative institution." Guilds, unions and workingmens' associations are conventionalist. Academic liberals these days are not, and are less and less aware that they could ever be anything else. But the arts are conventionalist. The wishful arts of individualism and desire, the arts of wishful thinking, operate as illustration: Ayn Rand is art for political scientists, cranks and the desperately mobile.
And Paul Krugman and Newt Gingrich both got their start with Isaac Asimov's conceptualist dime-store "Foundation Trilogy."
Enough is enough. I keep thinking I'm trying to have a conversation. I've been having a conversation with myself for 25 years.
Mostly repetition, but the description of technocrats as akin to the military in being anti-democratic forces that must be kept in check is new. Nice one.

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