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The Problems of Jurisprudence: Richard Posner's Critique of Legal Theory

Isaac Asimov

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Richard Posner is a prominent American judge and legal scholar who has written extensively on the problems of jurisprudence. In his book "The Problems of Jurisprudence" (1990),Posner argues that legal theory is in a state of crisis. He identifies three main problems with legal theory: its lack of empirical content, its lack of predictive power, and its lack of normative value.

Lack of Empirical Content

Posner argues that legal theory is largely devoid of empirical content. He points out that most legal theories are based on armchair speculation rather than on careful empirical research. As a result, legal theories are often divorced from the real world of law. They do not provide a good understanding of how the law actually works or how it affects people's lives.

The Problems of Jurisprudence

by Richard A. Posner

4.2 out of 5

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For example, many legal theories assume that judges are rational actors who make decisions based on the law. However, empirical research has shown that judges are often influenced by a variety of factors, such as their personal beliefs, their political affiliations, and their social class. This means that legal theories that assume that judges are rational actors are not accurate. They do not provide a good understanding of how judges actually make decisions.

Lack of Predictive Power

Posner also argues that legal theory lacks predictive power. He points out that legal theories are often unable to predict how courts will decide cases. This is because legal theories are based on general principles that do not take into account the specific facts of individual cases. As a result, legal theories are often unable to provide guidance to lawyers and judges on how to resolve particular legal disputes.

For example, many legal theories predict that courts will always enforce contracts. However, in reality, courts sometimes refuse to enforce contracts that are unfair or that violate public policy. This means that legal theories that predict that courts will always enforce contracts are not accurate. They do not provide reliable guidance to lawyers and judges on how to resolve particular contract disputes.

Lack of Normative Value

Finally, Posner argues that legal theory lacks normative value. He points out that most legal theories do not provide any guidance on how to improve the law. They merely describe the law as it is. As a result, legal theories are not helpful to policymakers who are trying to make the law better.

For example, many legal theories describe the law of torts. However, they do not provide any guidance on how to improve the law of torts. They do not provide any suggestions on how to make the law of torts more efficient, more just, or more fair. This means that legal theories are not helpful to policymakers who are trying to improve the law of torts.

Posner concludes that legal theory is in a state of crisis. He argues that legal theory lacks empirical content, predictive power, and normative value. As a result, legal theory is not helpful to lawyers, judges, or policymakers. He calls for a new approach to legal theory that is more empirically grounded, more predictive, and more normative.

The Problems of Jurisprudence

by Richard A. Posner

4.2 out of 5