Law, Pragmatism, and Democracy

Author: (American) Richard A. Posner
Publisher:
Publishing Date: 2005-11-01
Features: The Tension Between Democracy and Rule of Law (Preface)
Initially, it was "democracy and the rule of law," later evolving into "democracy and rule of law," which has become a popular phrase in China's legal academia since the reform and opening-up. Even if the juxtaposition of these terms is accidental, repeated mention can easily make people perceive democracy and the rule of law as a natural and inseparable pair. After more than two decades, like any good couple, democracy and the rule of law have inevitable conflicts. These tensions have become increasingly apparent and are now being felt by an ever-growing number of people. A typical example is the debate over the verdict in the Liu Yong case, which sparked controversy in Chinese society at the end of 2003. Beyond numerous technical arguments, the core of this debate, abstractly speaking, revolves around the issue of democracy and the rule of law. Some scholars emphasized the supremacy of the judiciary and the professionalism of legal skills, while others, along with the majority public opinion expressed online, argued that the law must be grounded in public opinion. While individual judgments on the Liu Yong case may lean toward one side or the other, from a purely rational perspective, both sides are well-founded, logically coherent, and even righteous and principled. Can the majority's opinion alone justify a verdict? Wouldn't this turn into a trial by public opinion, leading to an alarming "tyranny of the majority," thereby severely infringing on the fundamental rights of citizens—such as freedom, personal safety, and property—even if Liu Yong himself was not innocent. However, if a law lacks or lacks sufficient public support, does it still possess legitimacy? Would people continue to support and participate in the development of the rule of law? Moreover, could the law be controlled by capital or power, becoming a mask for corruption and evil? In a transforming China, in a society that has yet to fully move beyond a community-based social structure and lacks the basic interpersonal relationships and mutual trust required for a stranger-based society, people cannot immediately fully embrace the rule of law, which is based on abstract non-personal relationships and operationally relies on legal professionals. This is one of the fundamental political and legal challenges of rapidly transforming societies. The Liu Yong case merely highlighted this conflict. In recent years, the debates surrounding various cases and events in society have also implicitly contained such disputes. Therefore, Posner's new work, although focused on the realities of the United States, is also highly important and timely for Chinese legal scholars and political scientists.
Posner discusses an old issue in American politics and the rule of law. The debates over the U.S. Constitution during the founding period of the United States raised the problem of "tyranny of the majority." Thus, as many American political scholars and constitutional scholars, including Posner, view it, the U.S. Constitution was never designed as a pure democracy. The separation of powers and federalism, the later adoption of the Bill of Rights, the establishment of judicial review through the Marbury v. Madison case, and even the three significant constitutional amendments passed after the Reconstruction and Civil War all demonstrate that American constitutionalism has deliberately avoided a pure democracy. In the legal community, this debate over democracy and the rule of law has largely centered on questioning the system of judicial review, with some even accusing it of "usurpation"—usurping the power of the people or the Congress and the President elected by them. Of course, the conflict between the two is not always sharp; it only becomes prominent when society faces major divisions, and scholars from different factions engage in intense discussions, proposing their theories, which may appear abstract but are always targeted and carry implicit political agendas. For example, Beer's theory of the "non-dangerous departments." Beer argues that judicial review (the supremacy of the rule of law) is not undemocratic; rather, it is an effective supplement to democracy. Because the constitution is passed by the people, and the Supreme Court, as one of the constitutional branches, is one of the least dangerous decision-making bodies. Even if its decisions do not initially satisfy the public, the very fact that the Supreme Court makes lawful decisions that do not represent public opinion can test whether the public's passions are enduring and intense, allowing the public to "think twice" and prevent them from making foolish decisions out of ignorance or fear. Therefore, judicial review is ultimately consistent with democratic principles. This argument was made in the 1960s, when the U.S. federal Supreme Court decided the Brown case, abolishing racial segregation in public schools. Beer provided a moderate defense of the Supreme Court's radical decision. In the 1970s, American politics began to gradually shift to the right, but the Supreme Court remained dominated by liberals, leading to criticism. The attacks came from two directions: first, it was accused of violating the rule of law because the Supreme Court's interpretations went beyond the original meaning of the constitution; second, it also violated democracy. Under these circumstances, Ilych proposed the theory of "strengthened representation" to defend the series of decisions made by the U.S. federal Supreme Court in the 1950s and 1960s. Ilych constructed a fundamental purpose of the U.S. Constitution and its amendments, which was to create a representative government elected by the people, genuinely and truly representing the interests of all the people—a form of democratic politics. In Ilych's view, the feasibility of this representative democracy depends on whether it can ensure that all capable adults participate in the election of government officials and fairly represent everyone. As long as judicial decisions advance these values, even if they violate the original meaning of the constitution, they still align with the spirit of the constitution as interpreted and advance the democratic values the constitution intends to promote. In Ilych's view, the series of decisions made by the federal Supreme Court in the 1950s and 1960s strengthened representative democracy. With the increasing conservatism of American politics, society, and the federal Supreme Court in the 1980s, the earlier liberal rulings of the Supreme Court faced more challenges and even the possibility of being overturned by the legislature or the Supreme Court. In this context, new theories of democracy and judicial review emerged. For example, Akman's dualist theory of "constitutional moments" in democratic theory. He argues that there are two forms of democratic political activities in the world: one is higher, occurring during periods of revolutionary self-awareness, known as "constitutional moments"—such as the founding of the United States, the Civil War, the Reconstruction of the South, and the New Deal. During these periods, a profound, broad, genuine, and impeccable public will is formed. The other is lower, occurring during normal periods, which is ordinary political life. Akman believes that when judges apply the principles adopted during "constitutional moments" to the legislative products of ordinary politics, judicial review is not undemocratic; rather, they are loyal to a deeper concept of democracy, focusing on a public will that has been tested and refined through public debate and sincere reflection. Therefore, if a increasingly conservative Supreme Court attempts to overturn the rulings of the 1950s and 1960s Supreme Court on the grounds of democracy, it would actually violate the true spirit of democracy.
Later, in the late 1990s, there was Tushnet's theory of the "popular constitution." Simply put, it targets the federal Supreme Court, which has been occupied and dominated by conservative judges since the 1990s. Tushnet emphasizes that the constitution is not solely interpreted by the Supreme Court; the legislative and executive branches are also departments of the constitution. Therefore, the interpretation of the constitution should not be solely entrusted to the justices of the Supreme Court; it should be taken from the justices and handed over to the people. This is what is known as the "popular constitution." Of course, there are many other theories, all of which attempt to address the practical political problems of American society within the framework established by the U.S. Constitution, guided by some of the main value concepts with potential conflicts, and attempt to coordinate the relationship between democracy and the rule of law (judicial review). From a purely theoretical perspective, all of these are well-founded and logically coherent. But the problem is that even the most perfect theory is merely a strong argument with normative and guiding functions, not necessarily empirical validity. From a legal perspective, institutional constraints are more important.
The theory proposed by Posner in this book still belongs to this American tradition but with innovations and advancements. Through theoretical and empirical analysis, he points out that the democracy and the rule of law actually operating in the United States are pragmatic, not ideal. The "ideal" in democratic theory and practice refers to the deliberative democracy discussed in the book, which is Dewey-style democracy, emphasizing the participation of more people in democratic life through education and the provision of information, and making decisions through careful, informed thinking. In legal theory and practice, it refers to legal formalism, which is the belief that correct legal decisions can be derived through a set of legal skills and pre-established legal rules. The "pragmatic" in democratic theory and practice refers to Schumpeterian democracy, which emphasizes the role of elites in democracy. In legal practice, it is a practical reasoning that considers all relevant factors and focuses on systemic consequences, which may even adopt the rhetoric of legal formalism when necessary for strategic reasons. But why is American democracy and the rule of law pragmatic? Is it because of the influence of a certain ideology? Is this pragmatic democracy and the rule of law good? Should we pursue deliberative democracy and legal formalism? Posner does not start from idealistic moral philosophy or political philosophy but, like his, based on multidisciplinary research, he starts from a social science perspective to provide a substantial explanation and defense of American democracy and the rule of law (judiciary) practices. Broadly speaking, Posner's analysis shows that in modern society, it is impossible to practically adopt deliberative democracy. Because, from a human nature perspective, people's interests are always different, and not everyone is concerned or will be concerned about the issues that political or legal scholars believe ordinary people should care about. It is true that "all have a responsibility in the rise and fall of the nation"; this is only true in theory, but in practice, ordinary people have different preferences and limited information-processing capabilities, and social division of labor often makes them focus on issues more relevant to them. Many major decisions involve political philosophy and various specific knowledge, requiring rigorous argumentative reasoning, which is not something everyone or the average person enjoys or is good at. Therefore, modern democracy must be representative democracy, elite democracy, a practical form of modern democracy that is feasible. It is easy to question whether this pragmatic elite democracy weakens democracy and leads to adverse consequences. Posner argues that this is not necessarily the case. In addition to the traditional reasons of respecting individual freedom and limiting state power, Posner elaborates another important argument: such an elite democracy actually allows for specialization, enabling people to devote more time and energy to their own concerns, especially "getting rich," cultivating the concept of interest exchange, pragmatic, and equal ideas. Therefore, the results for the entire society, whether economically or politically and culturally, are better. This is a pragmatic argument.
Moreover, on the surface, elite democracy may seem undemocratic, while deliberative democracy appears more ideal, but Posner points out that in practice, deliberative democracy is more elite than elite democracy and cannot be a democracy of full public participation. Because no system can demand that every individual be knowledgeable and carefully consider matters, which is actually asking too much. In modern society, only a highly elite group can truly participate in this deliberative democratic process, as it almost requires the ability, intelligence, and leisure of a university professor. Therefore, deliberative democracy is practically exclusionary of public participation. This is another pragmatic argument supporting elite democracy. Therefore, in Posner's view, the core issue of democratic practice does not lie in what is theoretically ideal but in what kind of democracy is feasible, considering human nature and various social constraints, and what systemic consequences it will bring. Posner upholds the pursuit of democracy but does not regard it as an absolute value. He emphasizes the consequences of institutional operation but does not accept a simple consequentialism based on individual cases; he always emphasizes systemic consequences. Within this systemic consequentialism, the rule of law and judicial review can also find their rightful place.
It is worth noting that, compared to the many theories mentioned earlier, Posner does not believe he has proposed a new theory of democracy and the rule of law, nor does he expect politicians and judges to accept this theory, thereby improving democratic and legal practices in American society. Posner does not believe that a new concept or theory can directly impact the world. Through extensive empirical analysis of American politics and the judiciary, Posner argues that this pragmatic democratic theory and judicial theory are actually the practice of American democracy and justice, and are followed to varying degrees by all American judges. Therefore, this book is an attempt to describe or summarize American democratic and judicial practices. In Posner's view, whether it is the American people, politicians, or judges, regardless of what ideology or philosophy they claim to uphold, they are all natural everyday pragmatists with an inherent pragmatic tendency. Pragmatism is a philosophy that permeates all aspects of daily American life. It is not entirely devoid of normative or guiding significance. In response to some major events in the United States in recent years, such as the impeachment of Clinton, the 2000 election crisis, and the legal responses of the United States after the 9/11 attacks, Posner further expands his pragmatic analysis of democracy and the rule of law. He argues that the final Supreme Court ruling that triggered the impeachment of Clinton lacked certain pragmatic considerations—some justices took the slogan of "no one is above the law" from the rule of law too literally, turning it into a dogma, ultimately turning a minor civil lawsuit of sexual harassment into a "national affair" that consumed resources and involved the nerves of various political factions, sparking a political crisis. On the issue of the 2000 election, Posner points out that the Supreme Court's ruling was very pragmatic, successfully avoiding a crisis, but the ruling did not provide a candid and forceful pragmatic argument; instead, it relied heavily on ideologicalized democratic concepts. Posner argues that since Bush and Gore's votes were almost identical, a pragmatic consideration should be to assume that both represented sufficient public opinion, and both had sufficient legitimacy for political governance, with little difference in the final outcome, whether one became the country's leader. Under such circumstances, the Supreme Court should have given more consideration to whether it was worth being meticulous about who got a few more votes (even if this issue is difficult to determine precisely in a substantive sense), whether it truly achieved democracy, and whether the Supreme Court should have considered how to prevent a bad election result and a constitutional crisis in the issue of presidential succession, as such a crisis could lead to national governance and security issues, potentially becoming a huge disaster for the entire United States. "Justice must be done, though the heavens may fall" is an irresponsible judicial attitude in Posner's view.
In his analysis of the U.S. counterterrorism measures after 9/11, Posner similarly criticizes the dogmatic liberal arguments that emphasize citizens' rights and refuse flexibility. Posner points out that the development of human society is not an ideal process of continuously expanding freedom; freedom and rights are always relative to the environment. Therefore, at least in some emergency situations, necessity must outweigh legality. Of course, even in emergencies, it is still necessary to balance various important interests; but this weighing must be done from the outset, rather than always adopting a "hindsight" attitude toward measures that were necessary at the time but seem excessive in retrospect. Pragmatic justice does not pursue a single reasonable answer but a reasonable answer, thus a multiple answer. Posner's analyses, like his previous works, are sharp, bold, rigorous, and even almost ruthless, and their conclusions may naturally be "politically incorrect," and some Chinese scholars may instinctively disagree with them. However, regardless of that, the depth, breadth, and meticulousness of his analysis, as well as his successful application of multidisciplinary knowledge, especially empirical research, will leave a deep impression and provoke thought.
In contemporary Chinese society, democracy and the rule of law have become popular slogans. If they are not examined, verified, and reflected upon empirically, they may hinder the practice and development of democracy and the rule of law in China, turning them into empty rhetoric. Therefore, empirical examination and theoretical reflection on democracy and the rule of law are not aimed at, nor do they necessarily lead to, the destruction of faith. On the contrary, what is called faith that is not accepted after deep thinking, reflection, or even skepticism may only be the affectation of intellectuals.
I do not want to continue this clumsy overview of the book's theme. Books are meant to be read. I only want to point out another perspective for reading this book. In a certain sense, this book can also be considered a work of comparative political and legal theory, cross-culturally. The book discusses many Austrian and German legal scholars and thinkers, and many of them were even specifically studied by Posner for the chapters he wrote. Throughout the book, Schumpeter, as well as the chapters dedicated to Kelsen and Hayek, are all Austrian scholars. Additionally, Posner occasionally mentions Carl Schmitt, a German who has gained increasing fame in mainland China in recent years. Compared to his previous works, this is the first time Posner has given so much and such a systematic attention to European continental scholars. From the geographical scope covered in his academic discussions, this also indicates the expansion of Posner's academic research. Not only spatially but also in depth. These scholars have actually been studied by many people before, some of whom have gradually been forgotten, but Posner's analysis always maintains the scholar's independent and sharp sensitivity, uncovering new insights and offering new interpretations and critiques of some seemingly settled issues. For example, Schumpeter was previously mainly regarded as an important economist in academia. In this book, Posner focuses on Schumpeter's thoughts on democracy and the implicit pragmatism, linking Schumpeter's democratic political thought with his economic thought. I do not know if other Western scholars have paid attention to this aspect of Schumpeter's theory, but at least for Chinese scholars, Posner's analysis is entirely new. The same applies to Kelsen's pure legal theory. Pure legal theory is well-known in Chinese legal academia, and there have been many critiques and analyses of it, but no one—neither in Western academia nor elsewhere—has pointed out, as Posner does, that the framework of pure legal theory actually leaves ample space for the involvement of social sciences in legal decision-making. The same applies to Hayek's analysis. Although Hayek was an economist and a widely read and influential thinker who engaged extensively with the social sciences, Posner's analysis points out that because Hayek misunderstood and overemphasized the formalist dimension of common law, Hayek's legal theory actually rejects the existence of social sciences in legal practice. All these analyses and conclusions can naturally be debated, but Posner's research depth, insight, and arguments are still admirable and cannot be solely attributed to his talent.
What is most important to me is that Posner never，，。，、、，。，、、65，!、，。，，。
In contemporary China, society is transforming, and democracy and the rule of law are all struggling forward in a state of constant adjustment (and thus, wavering). Of course, we must first focus on the practice of democracy and the rule of law in China, and we should also pay attention to the major theoretical issues they imply. We must not only be concerned with China's experience but also with the experience of other countries, not only the United States but also all over the world. For the rule of law and legal studies in China, we all need long-term, persistent efforts.
Su Li
June 27, 2005
At the Peking University Law School