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Le pragmatisme de Richard Posner : un regard critique

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  • Thierry Kirat

    (IRISECREP - Institut de recherche interdisciplinaire en socio-économie - Centres de Recherches et d'Etudes Politiques - Université Paris Dauphine-PSL - PSL - Université Paris Sciences et Lettres - CNRS - Centre National de la Recherche Scientifique)

Abstract

The paper offers a critical analysis of the Richard A. Posner's statement that his economic theory of law is a new branch of the pragmatism tree. The Legal Realists such as Holmes, Cardozo and Llewellyn wished to discover the extra-legal factors of judicial rulings, beyond the so-called rational, abstract, deductive and neutral reasoning process that the Classical Legal Thought considered as the model of judicial decision. Posner narrows that sensibility : he predits that the American judge mimicks the (efficient) outcomes that the market should have generated if factors like transaction costs, externalities, information asymmetries did not have prevented its operation. In other words, the Posnerian judge decides on the ground on wealth maximization criteria. That argument does not fit with the pragmatist methodology : its link to both the facts and practical experience of judicial rulings is weak. It is more a normative judgment than an empirical outcome

Suggested Citation

  • Thierry Kirat, 2005. "Le pragmatisme de Richard Posner : un regard critique," Working Papers halshs-00004517, HAL.
    • Handle: RePEc:hal:wpaper:halshs-00004517
    Note: View the original document on HAL open archive server: https://shs.hal.science/halshs-00004517
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