CALLED THE MOST CITED LEGAL SCHOLAR OF ALL TIME, former federal appellate judge Richard A. Posner calls himself a “pragmatist” in the dimensions of legal interpretation and in the judgment of many contentious social issues, including forms of personal identity and race.
His bona fides are impressive, and the references made by other judges, scholars and writers to his many judicial opinions, books, law review articles and legal journal essays, do indeed verify his ranking in citations.
The concept of pragmatism, or more specifically, American pragmatism, which is generally identified by early twentieth-century thinkers including William James, John Dewey, and Charles Sanders Peirce, goes by many variations, but perhaps most simply it is a school of philosophy that seeks to direct its attention to facts (often inconvenient), and to the consideration of effects stemming from policy and politics; that is, on the reasonably probable impact of decisions on groups, institutions and even larger society. These effects can be unintended, which in more abstract versions of philosophical inquiry, are frequently overlooked. In academia especially, the use of “narrative” or story-telling (which can also go by the term of rhetoric, or the use of language in order to persuade, often regardless of factual inconsistency), has replaced investigation and solid social science methods of research, verification, and testing of hypotheses.
Mr. Posner is generally known among his former law school colleagues at the University of Chicago, as an iconoclast; as even a critical troublemaker in his willingness to call out bias and illogical positions taken by numerous legal scholars. This bias and emotionalism can become especially pitched when the topic turns to personal identity; but more, when it can be formulated as a more generalized phenomenon. One subject that lends itself especially well to such rhetorical manipulation is race.
In one of Posner’s books is an assemblage of several of his essays, titled Overcoming Law (where by “overcoming” he generally refers to those aspects of our Western legal system that rest on false assumptions, weak factual awareness, denial of facts, or even the logic of the law as an independent or “autonomous” construction). Posner asserts that law should be “more empirical and less conceptual” and that “the judicial game” should be “a little closer to the science game.”
This is good advice in my view, and he unpacks several examples of law school peer literature that exhibit difficulties in clear thinking, and are cases of non-pragmatic arguments that are advanced by feeling, emotional hyperbole, exaggerated claims, and perhaps especially, a hostility to criticism. But more than mere hostility, many of his law school colleagues who write on political issues are almost hysterical (in a clinical sense) and even violent in how they will attack their ideological opponents (or their imaginary enemies).
This problem may be most pronounced in theories of race, both in the way race “hustlers” or race promoters see themselves as victims, and in how they describe their asserted tormentors and adversaries as “colonizers,” or even “terrorists.” It is a dangerous practice that survives—despite its basis in hate speech—through the ideological accommodation of modern law school culture.
Posner does a good job of putting his finger on the excesses of many law professors who have taken up a cause of extremism or vengeance for perceived historical wrongs. He cites their “loose grip on facts” and their consistent failure to see (or even consider) how their speech and policies can have many unintended consequences in creating the very racial division they putatively seek to cure.
But Posner has a major blind spot of his own: he finds racial and other forms of modern identitarian causes to be largely misguided (while defending otherwise the liberty to be free of formal prejudice), and while he will describe critical race theories, for example, to be distorted in the ways they seek to carve out their own special forms of suffering and justifications for compensation. However, he sees no such distortions to American society by the entrenched interests that have codified the concept of “anti-Semitism.”
What Posner calls “empathetic jurisprudence” is further classified as “narratology” and imaginative literary writing, drawing into the discussion Aristotle’s distinction between history and literature (or fact-seeking versus storytelling). All of this Posner filters through his pragmatic preferences for rational thought, while nevertheless drawing a hard line around anyone who would dare criticize the holocaust narrative (not merely so-called holocaust denial but the stable mass media version of its features). He even praises Canada’s punitive criminal law on “holocaust denial.” This law assumes that “denial” or even questioning official narratives creates harm, and that this harm incurs a social cost that requires government intervention.
This kind of special-interest blindness, even by a scholar who prides himself on rational empiricism, and practical or “pragmatic” criticism of such protected special categories, is likely not surprising to most readers here. But the particular implication I would like to raise is that in the context of today’s increasing hysteria, violence and “re-education” initiatives organized around classes on White racism, the law itself is moving in a steady manner toward criminalization of the White race itself—and, ipso facto, in its supposed historical culpability of Whites, especially toward two particular racial or ethnic categories: Blacks and Jews.
In the former, Posner asks if Blacks can ever locate and accept a group identity that is not affiliated or linked to Black slavery. But he fails to interrogate what may be an even more dangerous and entrenched narrative that continues to destabilize American society through its highly organized political interests: Can modern Jews locate and accept an identity that is not linked to the Holocaust?
Posner ends one of his essays with a seeming fair-minded consideration: “If Whites must acquire a stereoscopic biracial perspective in order to cope effectively with our society’s racial problems, blacks must too.” This may indeed signify a path toward a more enlightened perspective on American racial division (a “tit for tat” or good for the goose and gander simplification of course), but what he leaves out is that his personal identity is anchored in modern Zionism and is therefore excepted from any such consideration. But worse, the anti-Semitic construct continues to be growing more legs and arms in how it is defined, protected as a program (a profitable one), and as codified in international criminal law. The current “disinformation” agenda of the political Left lends itself to the interests enmeshed with the official narrative on anti-Semitism, and it achieves its success not by pragmatic refutation or rational dialogue, but, like Black racial extremism, through an organized effort to diminish White status (and White demographic representation), and to simply erase its culture and history. The parallels to Bolshevik hostility and violence toward White Russians are telling; e.g., writer Douglas A. Smith characterizes the White Russians as “former people.” This is precisely the political nature of a growing Black racial extremism that is combined with a highly organized Jewish institutional agenda that together seek a partnership in a systematic program (pogrom?) to make the American White race not only diminished but effectively extinguished culturally, economically, and electorally. This may ultimately fail, but not without a pragmatic preemptive response by Whites. As John Stuart Mill advised in Considerations on Representative Government, change is accomplished by the activation of the twin pillars of a functional democracy: political participation and competence.
V.S. Solovyev is a graduate of the University of Chicago