The Judicial Process and How Judges Think?
E W Thomas* |
In his most recent book, How Judges Think (2008), Richard Posner holds that judicial reasoning is essentially pragmatic. The author of the present article notes that much of Posner’s thinking follows his own book, The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles (2005). Thus, Posner believes realism is basic to pragmatism. He accepts that the law is indeterminate and that the doctrine of precedent is intrinsically malleable. In the result, judicial reasoning is a creative activity and “the law” simply the material out of which judges fashion their decisions. As with the author, Posner is highly critical of the role of formalism (“legalism”) in impeding sound judicial reasoning. He embraces the importance of principles (“standards”). Posner also rejects any notion of a transcendental law, believing that judicial restraint is to be found, not in the text of the law, but in the external and internal constraints that are part of the judicial process. But while in general agreement with Posner’s thesis, the author is critical of certain aspects; he is puzzled by Posner’s exclusion of reasoning by analogy from the pragmatist’s armoury; he considers that Posner’s survey of the constraints on the judiciary is incomplete; he rejects Posner’s trenchant criticism of legal academics as overstated; and he is critical of the fact that, in a book purporting to be about how judges think, Posner omits any reference to justice.
*Retired Justice of the New Zealand Court of Appeal, former Acting Justice of the New Zealand Supreme Court, and Distinguished Visiting Fellow at the Law School at The University of Auckland. |
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