The Business of Democracy Is Democracy

Publication Date

10-2005

Journal

International Journal of Constitutional Law

Abstract

A review essay on Richard A. Posner, Law, Pragmatism, and Democracy. Harvard University Press, 2003. Pp. 398.

The Bush v. Gore Supreme Court decision in 2000 reminded America of the sometimes paradoxical relationship between the democratic process and legal institutions. Judge Posner's book makes a valuable contribution to an expanded understanding of the tense yet mutually reinforcing interaction of law and democracy. He sketches a stark, minimalist procedural definition of democracy within which the people do not actually rule, a definition that corresponds well with his support of the Court's decision in Bush v. Gore. Since elections are simply procedures that peacefully sort out who among competing elites will assume power for limited terms, a judicial intervention ensuring the orderly resolution of contested elections need neither divine nor respect the popular will—if there is such a thing. One would do well to read Tom Campbell and Adrienne Stone's Law and Democracy collection—replete with more substantive views of the relationship between popular government and the rule of law, including civic, republican, and deliberative perspectives—in tandem with Posner's book, as it might serve to put some badly needed flesh on the latter's rather skeletal theoretical framework.

Volume

3

Issue

4

First Page

706

Last Page

722

Publisher

Oxford University Press

Disciplines

Jurisprudence | Law | Law and Politics | Law and Society

Comments

Review Essay

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