Volume 33, 1998
Philosophy of Law
Willard F. Entemann
Judge Posner’s Challenge to the Philosophy of Law
This paper presents a conceptual analysis of Richard Posner's empirical theory of judicial behavior. His theory opposes the conventional view which holds that judges are insulated from external pressures so their judicial decisions will be based upon a disinterested understanding of the law. Since economics holds that all people — including judges — attempt to maximize their utilities, Posner thinks that the conventional view is an embarrassment which presumes judges are not rational. His theory holds that the judicial insulation has actually left judges maximizing their utilities by trading judicial utility against leisure utility. Posner's theory presents a challenge to the hope for a disinterested judiciary. It threatens as well to eliminate the philosophy of law by reducing it to what he calls antecedent conditions.