In two recent statements, Judge Richard Posner, one of the fathers of law and economics, has seemed to reject the "rule of law." See the Jeffrey Toobin piece in The New Yorker, commenting on Posner's recent piece in the Harvard Law Review:
Of the 2004-05 Supreme Court term, he wrote, “Almost a quarter century as a federal appellate judge has convinced me it is rarely possible to say with a straight face of a Supreme Court constitutional decision that it was decided correctly or incorrectly.” This was because the most important pronouncements of the Court were invariably political in nature, rather than strictly legal. Constitutional cases, Posner asserted, “can be decided only on the basis of a political judgment, and a political judgment cannot be called right or wrong by reference to legal norms.” The Justices, guided only by the majestic generalities of the Constitution, and the malleable (and sometimes disposable) precedents of the Court itself, enjoy a degree of authority and freedom of action that is without parallel in our system of government.
Or see Posner's current piece in The New Republic:
Lawyers who are busily debating legality without first trying to assess the consequences of the program have put the cart before the horse. Law in the United States is not a Platonic abstraction but a flexible tool of social policy. In analyzing all but the simplest legal questions, one is well advised to begin by asking what social policies are at stake. Suppose the NSA program is vital to the nation's defense, and its impingements on civil liberties are slight. That would not prove the program's legality, because not every good thing is legal; law and policy are not perfectly aligned. But a conviction that the program had great merit would shape and hone the legal inquiry. We would search harder for grounds to affirm its legality, and, if our search were to fail, at least we would know how to change the law--or how to change the program to make it comply with the law--without destroying its effectiveness. Similarly, if the program's contribution to national security were negligible--as we learn, also from the Times, that some FBI personnel are indiscreetly whispering--and it is undermining our civil liberties, this would push the legal analysis in the opposite direction."
While Posner accepts that there are limits, he refuses to accept a clear line between interpretation and policy-making. This line is, if not the definition of the "rule of law," a critical component of the rule of law. Posner rejects the separation between law and politics. While this is no doubt true descriptively, is it acceptable normatively? Should judges, as Posner suggests, search for the best public policy solution even if it is the less compelling interpretative solution? For me, this depends not on the philosophy of the judge, but on the explicit or implicit scope of agency assigned to the judge. In the recent Supreme Court hearings, Roberts and Alito have been required to foreswear broad scope of judicial agency. While I am uncertain whether this is normatively attractive as a general matter, it certainly seems to be the consensus position, and it seems starkly inconsistent with Posner's position.
