1 Posner discusses wealth maximization at length in The Economics of Justice ch. 3 (Cambridge, Mass.: Harvard University Press, 1981).Google Scholar

2 Posner leaves room for judges to invoke principles of corrective justice. He also admits that “as a universal social norm wealth maximization is…unsatisfactory” (at 372), primarily because it fails to provide a firm grounding for individual rights (at 376–80) and secondarily because it offers an incomplete account of the initial distribution of rights (at 374–76). Posner also admits that because experiments in social planning often fail, with disastrous consequences for all concerned, people should be make incremental changes in social structures instead of pushing wealth maximization for all it is worth (at 387).Google Scholar

3 The choice of this option would obviously trim the plaintiff's liberty in another respect by denying him or her the freedom to make an unbreakable agreement.Google Scholar

4 The example of adjudication at the margin just discussed is mine, not Posner's.Google Scholar

5 See, e.g., Fish, S., “Almost Pragmatism: Richard Posner's Jurisprudence,” 57 U. Chi. L. Rev. 1447, 1447–56 (1990).Google Scholar

6 Hart, H. L. A., The Concept of Law 78–79 (New York: Oxford University Press, 1961) (“Hart, Concept”).Google Scholar

7 My jurisprudential views are set out at length in “Negative Positivism and the Hard Facts of Life,” 68 Monist 347 (1985); and ”Elmer's Case: A Legal Positivist Replies to Dworkin,” 6 Law & Phil. 381 (1987).Google Scholar

8 See Hart, H. L. A., “Positivism and the Separation of Law and Morals,”reprinted in H. L. A. Hart, Essays in Jurisprudence and Philosophy 49, 64 (1983) (“Hart, ‘Positivism’”). Hart refers to such cases as “penumbral cases.” He offers as an example of such a case an instance in which a judge is forced to decide whether a law barring the use of vehicles in a park applies to roller skates. P. M. S. Hacker summarizes Hart's position as being that ”[r]ules can never dictate their own application: any appearance of inexorability stems from the inexorability of our methods of application of rules in standard cases. But non-standard cases will perforce arise, requiring the exercise of judicial discretion.” Hacker,” Hart's Philosophy of Law,” in P. M. s. Hacker & J. Raz, eds., Law, Morality and Society: Essays in Honour of H. L A. Hart 7–8 (Oxford: Clarendon Press, 1977).Google Scholar

9 Hart,” Positivism” at 64.Google Scholar

10 Later in the same article Hart writes that “logic does not prescribe interpretation of terms; it dictates neither the stupid nor intelligent interpretation of any expression. Logic only tells you hypothetically that if you give a certain term a certain interpretation then a certain conclusion follows. Logic is silent on how to classify particulars—and this is the heart of a judicial decision.”Id. at 67 (emphasis in original).Google Scholar

11 Coleman,” Negative and Positive Positivism,” 11 J. Legal Stud. 139, 142 (1982). To say that law and morality are conceptually distinct is not to imply that, as a matter of fact, morality and law do not overlap in any existing legal system. It is to say only that “there exists at least one conceivable legal system in which the rule of recognition does not specify being a principle of morality among the truth conditions for any proposition of law.”Id. at 143.Google Scholar

12 See Wendell Holmes, Oliver, “The Path of the Law,” 10 Haw. L. Rev. 457 (1897).Google Scholar

13 Hart's contribution to the debate is the article cited in note 8, which first appeared at 71 Harv. L. Rev. 593 (1958). It is followed by Lon L. Fuller's article,” Positivism and Fidelity to Law—A Reply to Professor Hart,” 71 Harv. L. Rev. 630 (1958).Google Scholar

14 For example, Posner and Hart share Bentham's concern to avoid the postulation of dubious or fictional entities.Google Scholar

15 Hart, Concept 17.Google Scholar

16 Id. at 102.Google Scholar

17 Id. (emphasis in original).Google Scholar

18 In a wonderfully frank passage, Posner writes at 190–91, much of what judges say about their jobs in speeches and opinions partakes of the same falsity that characterizes other political discourse. Just as elected officials believe that their effectiveness depends on the public's thinking they serve the public interest rather than their personal interests or those of the most powerful special interests, so most judges believe, without evidence (indeed in the face of [evidence to the contrary]), that the judiciary's effectiveness depends on a belief by the public that judges are finders rather than makers of law. Although judges will occasionally lift the veil a bit, as I am doing [here], they rarely level with the public—and not always with themselves—concerning the seamier side of the judicial process. This is the side that includes the unprincipled compromises and petty jealousies and rivalries that accompany collegial decision making, the indolence and apathy that life tenure can induce, the flickers of ambition for different or higher office (judicial or otherwise), the boredom and burnout that heavy caseloads over a long period of years can induce, the pervasive reliance of modern American judges on ghost–writers (most judicial opinions nowadays are drafted by law clerks), the isolation from normal human concerns that is experienced by people who spend all day, day after day, observing the world through the prism of law's “artificial reason,” and the desire, conscious or not, to shape the law to one's personal values…[I]t is a mistake to credit the Olympian depictions of judges by the judges themselves or by academics or other lawyers who believe in a powerful judiciary and want the public to be comfortable with the concept.Google Scholar

19 This is consistent with Posner's statement that the “behaviorist perspective is external rather than internal” (at 186–87) and with the discussion that follows this remark, which recognizes a need to connect the behavioral account of law with the “self-conscious activity of a judge” (at 187).Google Scholar

20 Hart, Concept 87–88. See also Neil MacCormick, H. L. A. Hart 36 (Stanford, Cal Stanford University Press, 1981).Google Scholar

21 Id. at 87.Google Scholar

22 Id. at 88.Google Scholar

23 Id. In the discussion preceding the quoted remarks, Hart expressly draws a connection between the external perspective and the “bad man” theory of law. He writes that the “external point of view may very nearly reproduce the way in which the rules function in the lives of certain members of the group, namely those who reject its rules and are only concerned with them when and because they judge that unpleasant consequences are likely to follow violation” (id.) He then states: What the external point of view…cannot reproduce is the way in which the rules function as rules in the lives of those who normally are the majority of society. These are the officials, lawyers, or private persons who use them, in one situation after another, as guides to the conduct of social life, as the basis for claims, demands, admissions, criticism, or punishment, viz., in all the familiar transactions of life according to rules. For them the violation of a rule is not merely a basis for the prediction that a hostile reaction will follow but a reason for hostility.” (Id.).Google Scholar

24 Id. at 87.Google Scholar

25 Id. at 88.Google Scholar

26 See, eg., Neil MacCormick,” On Analytical Jurisprudence,” in N. MacCormick & O. Weinberger, An Institutional Theory of Law 93, 102–6 (D. Reidel, 1986).CrossRefGoogle Scholar

27 That this is in fact Posner's attitude is suggested by his comment that people who “are restrained [from breaking the law] by habit, conscience…, concern with reputation or other considerations of reciprocity, [other practical considerations], or sympathy or affection for the potential victims of their wrongdoing” differ in no interesting respect from “Holmes's ‘bad men,’ who obey the law as far as it pays them to do so… Whether there is an independent moral obligation to obey law may thus be an issue of supreme practical unimportance” (at 223–24).Google Scholar

28 Given the centrality of normative conduct in everyday life—Who hasn't made a promise, asserted a right, obeyed a law just because it was a law or criticized another participant in a game for breaking the rules?—it just does seem strikingly unlikely that philosophical and sociological analysis of normative conduct from an internal perspective would have no utility at all.Google Scholar

29 I develop this point in “Elmer's Case,” 6 Law & Phil. at 381 (cited in note 7). See also Coleman, 11 J. Legal Stud. at 139 (cited in note 11); supra note 13; and especially Gerald J. Postema,” Coordination and Convention at the Foundation of Law,” 11 J. Legal Stud. 165 (1982).Google Scholar

30 Hart,” Positivism” at 53 (cited in note 8).Google Scholar

31 Id. at 73. Citations to the original sources can be found in this article.Google Scholar

32 Further evidence that Posner misunderstands legal positivism can be found in his statement that the “positivist's argument for a moral duty to obey law is necessarily of the implied–contractual form: we would all be better off adhering to all the laws voluntarily (thus economizing on enforcement costs) rather than picking and choosing among them: so ex ante—at the constitutional stage or in the original position—we would agree to be law—abiding” (at 234). There is no “positivist argument for a moral duty to obey law.” Nor must a legal positivist argue that such an obligation extends to “all the laws.” To the contrary, legal positivists often assess the morality of laws one by one. As Hart states,” When Bentham and Austin insisted on the distinction between law as it is and as it ought to be, they had in mind particular laws,… and they were concerned to argue that such laws, even if morally outrageous, were still laws.” Hart,” Positivism” at 56 (cited in note 8) (emphasis in original). Finally, legal positivists who believe that there are moral obligations to conform one's behavior to laws need not and have not typically grounded their opinions in hypothetical consent. Bentham's views were strictly utilitarian, and Hart once attempted to generate a moral obligation to cooperate in a joint undertaking according to rules by invoking the notion of fair play, which rests on the existence of mutual restrictions and prior sacrifices by group members. H. L. A. Hart,” Are There Any Natural Rights?” 64 Phil. Rev. 175 (1955).Google Scholar

33 To be fair, he also often keeps them apart, as when he writes that a judge's “decision to obey a rule is compelled not by the rule itself but by the consequences of disobeying it” (at 193).Google Scholar

34 Coleman, 11 J. Legal Stud. at 148 (cited in note 11).Google Scholar

35 Id. at 154.Google Scholar

36 Id. at 160.Google Scholar

37 Id.Google Scholar