Judging Richard Posner
Declaration of interest: I am one of the many public intellectuals criticized in Richard A. Posner’s latest book, Public Intellectuals: A Study of Decline1 Indeed, I apparently have the distinction of having inspired it. In his introduction, Posner, perhaps the most prolific and widely cited legal theorist of our day, informs us that his editor, having read a review by him of my One Nation, Two Cultures (1999), suggested that he write a book inquiring into the “deficiencies” of public intellectuals in general.
My present dilemma was anticipated by Posner himself. Toward the end of the book, he says that book-review editors should make it a policy not to assign a work to someone criticized in it, “at least without full disclosure” of that fact. This, I suspect, is an allusion not to me but to another well-known legal theorist, Ronald Dworkin, who, despite being an object of criticism in two earlier books by Posner, wrote a scathing review of them in the New York Review of Books (March 9, 2000). In his response to Dworkin in the New York Review, Posner went beyond requiring full disclosure to suggest that a “critical essay,” although not a review, would be acceptable.
If I shared Posner’s utilitarian cast of mind, I might suspect that his disparagement of so many public intellectuals in this book (including my husband Irving Kristol, my son William Kristol, and some of my best friends) was intended to diminish the supply of critical reviewers. In any case, he has provided me with a plausible defense. This is a critical essay as well as a statement of full disclosure.
The subject is irresistible: one of America’s most prominent public intellectuals writing about other public intellectuals—and declaring them to be in “decline.” Richard Posner is the public intellectual par excellence: a judge of the United States Court of Appeals for the Seventh Circuit (and, until last year, its chief judge), senior lecturer at the University of Chicago Law School (and before his judgeship, the Lee and Brena Freeman Professor of Law there), author of dozens of books on almost as many subjects and of countless articles in law journals and periodicals of every kind.
Posner has not only the lively intelligence one expects of a public intellectual, but also extraordinary energy and resourcefulness, a talent for “maximizing,” as he would say, his assets. And maximizing, as well, his public impact, because he has an uncommon taste and talent for controversy and is even less fettered than most by reticence or modesty.
Posner was recently the subject of a long profile in the New Yorker, this following another profile last year in Lingua Franca. He is thus doubly anointed as a public intellectual, once by the most sophisticated “in” journal of academia (now, unhappily, defunct) and again by the most prestigious mass-circulation magazine. Both profiles treat Posner respectfully but wryly: respectfully as one of the leading proponents of what is known as the law-and-economics school, and wryly because he has carried the dicta of that school—rational choice, cost-benefit analysis, free-market economics—far beyond the areas of law and government that were their original province.
Both articles also recall (it is hard not to recall) some of Posner’s more audacious views—on the selling of babies as an assertion of normal “parental rights,” or on prostitution as a substitute for marriage, or on rape and pedophilia as the normal instincts of men inhibited only by the probability of punishment. And both make it clear that these were not tossed off playfully, as a desire to épater les bourgeois, but are the logical products of a mode of thought that is relentlessly economic, utilitarian, and pragmatic. Conservatives who have admired him on these counts may not appreciate just how relentless he has become.
Public Intellectuals is vintage Posner—wide-ranging in subject and far-sweeping in judgment, professedly scientific and aggressively polemical. Until now, Posner tells us, “the public intellectual [had] not been studied systematically.” This is “the first comprehensive such study,” and the first “to study the public intellectual from an economic standpoint.” It is “qualitative and quantitative,” “social scientific” and “anecdotal,” “taxonomic, theoretical, and empirical.”
As befits such a systematic and scientific treatise, this one defines its subject. After some rambling comments on writers who have used the word “intellectual” and individuals who have been regarded as intellectuals, Posner declares the term public intellectual redundant. The intellectual, in contrast to the scholar or mere professional, is, in effect, a public intellectual.
In short, and to an approximation only, the intellectual writes for the general public, or at least for a broader than merely academic or specialist audience, on “public affairs”—on political matters in the broadest sense of that word, a sense that includes cultural matters when they are viewed under the aspect of ideology, ethics, or politics (which may all be the same thing). The intellectual is more “applied,” contemporary, and “result-oriented” than the scholar, but broader than the technician. Approximate synonyms for “intellectual” in this sense are “social critic” and “political intellectual.”
This is a more elaborate definition, but perhaps not a more comprehensive or illuminating one, than that given us by Russell Jacoby, who coined the term public intellectual fifteen years ago in his widely read book, The Last Intellectuals (recently reissued). Public intellectuals, Jacoby then wrote (and Posner quotes in a footnote), are “writers and thinkers who address a general and educated audience.” Posner further specifies that public intellectuals (he continues to use the term in spite of its redundancy) may or may not be academics; they may be journalists, writers, artists, or politicians; they may reside in think tanks or have “ordinary” jobs.
But whatever their provenance, they have certain characteristics—that is, certain deficiencies—in common. They “tend to be “opinionated, judgmental, sometimes condescending, and often waspish . . . often careless with facts and rash in predictions.” Those among them who are academics display these traits in an exaggerated form:
A proclivity for taking extreme positions, a taste for universals and abstraction, a desire for moral purity, a lack of worldliness, and intellectual arrogance work together to induce in many academic public intellectuals selective empathy, a selective sense of justice, an insensitivity to context, a lack of perspective, a denigration of predecessors as lacking moral insight, an impatience with prudence and sobriety, a lack of realism, and excessive self-confidence.
In the first, more systematic half of his book, Posner attempts to generalize about the deficiencies of the current generation of public intellectuals. To illustrate their irresponsibility and carelessness with facts, he offers brief potted critiques of: Noam Chomsky, who compares America with Nazi Germany and regards capitalism as both exploitative and inefficient; Stephen Jay Gould, who denies that intelligence is affected by heredity and race; Camille Paglia, who has become a media celebrity by writing “really wild public-intellectual stuff”; the economist Gary Becker, who ventured so far outside his proper domain as to propose term limits for judges; David Frum, a conservative, who favored the impeachment of President Clinton on moral grounds, and a whole cast of liberal characters—Arthur M. Schlesinger, Jr., Sean Wilentz, Thomas Nagel, Alan Dershowitz, Cass Sunstein, and scores of historians—who opposed it on no less spurious grounds.
In a separate category are all the “false prophets” who have made predictions that turned out to be erroneous and became famous in spite of (or because of) those errors: Paul Kennedy, who predicted the waning of American power; John Kenneth Galbraith, who said that the economy of the United States would come to resemble that of the Soviet Union; Paul Ehrlich, who warned that Americans would be subject to water and food rationing by 1980; Jeane Kirkpatrick, who thought that Communist regimes would never evolve into democratic societies; Daniel Bell, who predicted not only the end of ideology but also the end of American economic “hegemony”; and Edward Luttwak, who was confident that the Soviet invasion of Afghanistan would succeed and that the Gulf war would be a catastrophic failure.
Posner supplements these illustrative cases with an analysis of the “market” for public intellectuals, described in terms of cost and benefit, “inspection” and “credence” goods, opportunity costs, market equilibrium, and market discipline. A graph labeled “demand for and supply of public intellectuals” shows D (demand) and S (supply) intersecting at a point marked P (price) and Q (quantity). Posner’s only concession to the idiosyncrasies of this particular market is his redefinition of “price” (in the text but not the graph) as “money and other (call it psychic) income.”
The “decline” of the public intellectual, Posner tells us, is a case of “market failure,” the failure of the market to produce “a socially valuable product.” Public intellectuals have tried to enhance their market value by being original, novel, and entertaining, thus sacrificing accuracy, utility, and practicality. In doing so, they have brought about a sharp drop in the average quality of public-intellectual work.
The book’s most quantitative, seemingly scientific chapter includes ten tables intended to put “additional empirical flesh on the theoretical skeleton” and to provide “a statistical profile of the modern public intellectual.” The first of these tables lists 546 public intellectuals—a presumably comprehensive roster—specifying the number of times each was mentioned in the past five years in the media, on the web, and in scholarly journals. Other tables rank the top 100 in media and scholarly citations, break down the totals into various categories (sex, race, religion, profession, political inclination), and give circulation figures for two dozen publications divided into “left-leaning” and “right-leaning.”
Some of the summary tables point to the obvious: among the most visible public intellectuals there are more men than women, more nonblacks than blacks, more Americans than foreigners, more living than dead, more “left-leaning” than “right-leaning.” Predictably, government service and journalism correlate with more media citations; being dead or academic with fewer. Other findings are more intriguing: Jews constitute 43 percent of the total number of public intellectuals and 36 percent of the top hundred in media citations.
We also learn—no surprise—that the left-leaning outweigh the right-leaning among public-intellectual journals and magazines. But it will come as a surprise—a disagreeable surprise, I suspect—to some of the editors, contributors, and benefactors of Partisan Review to find it listed among the left-leaning publications, and those of Lingua Franca to find it among the right-leaning ones. The Public Interest, on the other hand (admittedly right-leaning), would be delighted if its circulation were anywhere near the 36,800 given here. It does not inspire confidence in Posner’s other tables that this one, whose facts and figures are readily available, is so faulty.
Posner’s lists, I suspect, will serve much the same function as the book rankings on Amazon.com, permitting public intellectuals to look up their exact standing—and that of their colleagues—among the hoi polloi (the 546) and the elite (the top 100). Posner himself must have been gratified to find his name tenth in the list of scholarly citations, but perhaps disappointed with his rank toward the bottom third in media citations.
If the lists are of dubious utility, so is Posner’s economic analysis. His supply-and-demand graph is generic, applicable to all situations of supply and demand, and his redefinition of “price” to include “psychic” income is a cop-out, a catch-all term including any form of gratification that is not economic. Nor, surprisingly, does Posner make any attempt to determine the actual income earned by public intellectuals—though one of his predecessors did try to do just that.
Posner refers in passing to Charles Kadushin’s The American Intellectual Elite, published in 1974 (which some might regard as the first attempt at a systematic study of public intellectuals, before they were called that). Kadushin cited a 1969 survey demonstrating that the incomes of intellectuals were higher than those of academics. One might have thought, given Posner’s penchant for economics and statistics, that he would have updated this survey so as to give substance to the abstractions of supply and demand, price and quantity. It would be interesting to know something, for example, about the relative earnings of public intellectuals in and out of the academy, or the supplemental income received by professors for op-ed pieces (minute, in most cases) or television appearances (nil), or royalties on nonacademic books published by commercial presses compared with academic ones by university presses. Instead, all we have by way of crass figures are references to the “millions of dollars” earned by Allan Bloom for The Closing of the American Mind and the advance of “several hundred thousand dollars” received by Robert Putnam for Bowling Alone—neither of them typical, as Posner is all too well aware.
As for Posner’s wider claims, I do not find in his various graphs and tables a “statistical profile” of the public intellectual, nor do I see how they could be employed, as he claims, to “test hypotheses” about the quality of public-intellectual work. Posner admits that the use of scholarly citations as “a proxy for scholarly quality or influence is controversial.” Yet he goes on to defend that use, claiming that such citations are “highly correlated with virtually every refined measure of quality.”
But what does “quality,” refined or not, mean in this context? Is it a neutral term, implying no judgment on the work itself? Or a normative term, suggesting a standard against which that work may be assessed? Posner implies the latter. He asserts that he is engaged in an “empirical inquiry into the value, or quality, of public intellectuals,” with “value” defined in terms of careful investigation and the filling of an intellectual gap with a clarifying “insight or distinction.” Elsewhere, he declares that he wants to put the “public-intellectual market” in perspective by “showing that, and why, its average quality is low (‘disappointing’) and perhaps falling.” A normative sense is also obviously implied in the very theme of this book, “a study of decline.”
Who, then, stands at the very top of Posner’s list of scholarly citations, his “measure of quality”? The post-modernist theorists Michel Foucault, Pierre Bourdieu, Jürgen Habermas, and Jacques Derrida—with Foucault having almost twice as many citations as the next-ranking intellectual. Posner does not comment on this striking fact, or draw any implications about its bearing on quality; nor do these names merit more than passing mention elsewhere in the book. On the other hand, the fifth-ranked intellectual, Noam Chomsky, draws a good deal of Posner’s critical fire, as do ten more of his bêtes noires among the top three dozen on this list. It is obvious that the scholarly list is hardly a reliable criterion of quality.
It might be more plausible to use the list as a proxy for “influence.” But even this is dubious, for there is no way of knowing the content or substance of these scholarly citations. What if many of them are negative or critical, thus casting doubt on the influence, as well as the quality, of these intellectuals? Perhaps, for Posner, it all comes down to the old adage that any publicity is a good thing so long as one’s name is spelled right.
If the first part of the book does not meet Posner’s promised standard of rigor, the second half is even more problematic. This deals with various “genres” of public-intellectual work: literary criticism, satire, “declinist” social criticism, public philosophy, and legal commentary.
After all those tables and statistics, one might have expected Posner to focus upon individuals who rank high on his lists and thus exemplify public-intellectual activity in a given genre. Posner admits that he has made no attempt to do this. What he fails to say is that some of the disputes on which he does focus in these chapters took place in scholarly journals that are hardly within the public purview, and do not even merit a mention in his own table of publications catering to public intellectuals.
The genre of literary criticism, for example, features Wayne Booth, a distinguished scholar who, however, barely makes Posner’s grand roster of 546. Another of his targets, Martha Nussbaum, is better known as a philosopher than as a literary critic; she does not appear in Posner’s elite media list but does in the scholarly one (by virtue, I suspect, of her feminist writings rather than her literary ones). Nussbaum makes an appearance again in Posner’s chapter on the “public philosopher,” this time paired with Richard Rorty, who, like her, is on the scholarly but not the media list.
The key characters in Posner’s chapter on the “declinist” or “Jeremiah” school of social criticism are Robert Bork, who has the distinction of appearing on both elite lists, and myself, who appear on neither. His chapter on the law is dominated by Ronald Dworkin—again, on the scholarly list but not the media one. Satire is something of an oddity among these genres, not only because the prototypes he discusses, George Orwell and Aldous Huxley, have no claim at all to scholarship, but because they are of another time and place. For the reader, it is refreshing to be taken out of the contemporary framework, but strange to find these particular individuals discussed at great length, whereas prominent American public intellectuals of that vintage are mentioned only in passing.
The question keeps recurring: why focus on these public intellectuals when others are more obviously representative? Why, indeed, go to such pains to create a “statistical profile” of the public intellectual if it is not to be utilized? Why, for that matter, select these particular genres rather than others, which, by Posner’s own criteria, are more important? Journalism and government, as his tables make clear, produce far more influential public intellectuals than literary criticism or philosophy. Henry Kissinger, Daniel Patrick Moynihan, and George Will are at the very top of the media list, and all of them are not only extremely influential but also eminently respectable intellectuals and scholars. Surely they deserve more than the passing references they receive here.
If Posner’s choices of individuals and genres seem arbitrary, it may be because there is another principle of selection at work—one that, by Posner’s own standard of cost-benefit analysis, is perfectly rational. Each of these chapters is, in whole or part, a reprise of an article or review that he has published previously. The only exception is the chapter on the public philosopher, though even here some of his critique of Rorty has appeared in his earlier books. A strict market analysis of Public Intellectuals would suggest that its author saw it as an opportunity to maximize profits (monetary and psychic) by recycling his own work and converting it into yet another book.
The subtitle, “A Study of Decline,” points to a more serious difficulty, for we are never told what these public intellectuals are in decline from. When and where were public intellectuals not in decline? And who might those admirable people be?
In passing, Posner does list some of the “great intellectuals of the 20th century” who wrote about political or ideological questions and therefore qualify as public intellectuals: John Dewey, Bertrand Russell, Max Weber, Arthur Koestler, Edmund Wilson, George Orwell, Lionel Trilling, F.R. Leavis, C.S. Lewis. But he does not explain what made them “great” or what separates them from their less worthy successors.
Posner’s reticence on this question has something to do, I suspect, with his own philosophical predilections. For the fact is that all of these formidable intellectuals of the past were moralists, and some of them—Trilling, Leavis, Lewis, Koestler, Orwell—were passionately so. It was on moral grounds that they arrived at their political and ideological views. For Posner, however, there is no more debilitating intellectual vice than moralism.
In his discussion of literary criticism, for example, Posner rebukes both Wayne Booth and Martha Nussbaum for belonging to the “moralist camp,” which fails to see that the analysis of literature is a purely aesthetic exercise. Because aesthetic criticism, even if written for a general audience, “does not contribute to public discourse on political or ideological matters,” the literary critic, Posner concludes, cannot be a public intellectual.
Yet Posner does grant the status of public intellectual to the most eminent literary critics of the last generation: T.S. Eliot, Edmund Wilson, and Lionel Trilling. Posner tries to accommodate this awkward fact by having them “straddle the divide” between the moralist and aesthetic camps. In fact, however, all of them, consciously and habitually, used literary criticism as the vehicle for moral, social, even political criticism. In this they stood in sharp contrast to the “new critics” of their time (such as Cleanth Brooks) who were formalists and aestheticists in Posner’s sense. Trilling in particular was so little of a “straddler” that he is the prototype of the moral critic. It is he who coined the term “moral imagination” and who exercised that imagination more effectively and imaginatively than any other literary critic—indeed, than any other public intellectual of the time.
The other archetype of the moralist is the “Jeremiah” or “cultural pessimist” who thinks that the culture has deteriorated in recent times. Bork’s Slouching Towards Gomorrah (1996) and my One Nation, Two Cultures are the prime specimens on the Right, while Robert Putnam’s Bowling Alone (2000) represents the leftist tendency in this genre. This “convergence between Left and Right declinists,” Posner explains, comes from a common rejection of liberalism and materialism, and a common tendency to exaggerate or mistake the flaws of contemporary society.
Posner deplores the “casualness” with which Bork supposedly manipulates the evidence of decline. He dwells at some length on Bork’s discussions of evolution and abortion—the first of which occupies all of two paragraphs of Slouching Towards Gomorrah and the second a dozen pages (this in a 350-page book). The rest of Bork’s book—on the ideas of liberty and equality as they have evolved in the course of our history, on intellectuals, the courts, popular culture, feminism, race, and the prospects for democracy—are casually disposed of in a few paragraphs.
My own book—a “chastened version” of Bork, Posner declares—is subjected to a similarly selective and casual critique, focused largely on sex and divorce and ignoring less sensational subjects such as the idea of civil society, the role of the polity, and the social and moral functions of religion. Posner devotes two paragraphs to the distribution of condoms in schools, claiming that I oppose it because I “want to make premarital sex dangerous in order to discourage it.” My book contains exactly two separate single-sentence references to condoms, the first suggesting that the laws requiring the distribution of condoms in school “may be said to legitimize promiscuity”; the second, that faith-based institutions favor sexual abstinence as an alternative to the distribution of condoms.
The idea that I want to make sex dangerous is so remote from anything I wrote or believe that it takes some explaining. The generous explanation is not malice or even gross carelessness on Posner’s part, but rather an inability to understand others except in his own terms. For the view he attributes to me is in fact his own. It is pure “rational choice,” cost-benefit analysis, as he himself suggests when he goes on to say: “Himmelfarb is on to something: the more dangerous sex is, the less of it there will be.” It may make sense to him to oppose the distribution of condoms in order to make sex more dangerous, but to an inveterate “moralist” like myself, this is a perfectly monstrous idea. His comments on my view of popular culture, on the other hand, are not monstrous, only risible. My family and friends will be amused to learn that my “implicit taste in popular culture runs to square dances, Glenn Miller, and South Pacific.” I wonder where he found that in my book.
Bowling Alone also prompts some comments that tell us more about Posner than about its author, Robert Putnam. The subtitle of the book, “The Collapse and Revival of American Community,” Posner sees as a “clear bid for bestsellerdom, with its clever combined appeal to fear and hope.” He also makes a point of the fact that the book was published by a commercial rather than an academic press, leaving the impression (in spite of his own predilection for the free market) that in Putnam’s case, economic motives are somehow disreputable and that there is something suspect about an academic who publishes with a commercial firm.
Posner’s discussion of the public philosopher is equally revealing—again, about himself as much as about his subjects. Any number of scholars might join him in criticizing Martha Nussbaum’s invocation of the ancient Greeks in defense of present-day homosexual rights. But the grounds of his criticism are as dubious as her defense.
Nussbaum’s approval of what she takes to be the Greek attitude toward homosexuality, and at the same time her condemnation of such third-world practices as female circumcision, infanticide, and the inequality of women, spring, Posner says, from the same suspect source: “a universal conception of the good life.” Economists, he reminds us, have no use for such universalist notions. For them, “money values, express or imputed, are a meaningful index to a meaningful concept of human welfare.” Thus, female circumcision in the third world can be legitimately criticized only in terms of cost-benefit analysis—a test, Posner intimates, that it might well fail. Martha Nussbaum’s sin, in short, is that she is a moralist and thus not enough of a relativist.
Still more telling with respect to Posner’s own philosophy is the most bitterly polemical—and self-referential—of his chapters, the one in which he recapitulates his debate with Ronald Dworkin in the pages of the New York Review. That dispute was prompted by Dworkin’s long review of two of Posner’s books, both published in 1999: An Affair of State, on the impeachment of President Clinton, and The Problematics of Moral and Legal Theory, a more ambitious exposition of his philosophy.
Posner chooses to focus here only on the former book. His only allusion to the latter is a reference to Dworkin’s attributing to him “extreme views on such matters as baby-selling and infanticide.” He dismisses that criticism (as well as the allegation that in writing about the impeachment he was violating judicial ethics) with the simple assertion: “The charge and the attributions were false, but this is not the place to answer them.” In a footnote he refers the reader to an article by him in the Northwestern University Law Review. But surely this book on public intellectuals, intended for a public audience, rather than a law journal, is the appropriate place for such an answer.
In fact, the two books Dworkin was reviewing are intimately related to one another, as both of them are to Public Intellectuals. For all three propound a philosophy of pragmatism—“pragmatic moral skepticism,” Posner now calls it—as against any “moralistic” philosophy, or indeed, any moral or political philosophy. In The Problematics of Moral and Legal Theory, Posner develops this theme most explicitly and boldly.
Of Hitler’s Germany, he says, for example:
That the Nazis killed millions of defenseless citizens is a fact; its truth is independent of what anyone believes. That the Nazis’ actions were morally wrong is a value judgment: it depends on beliefs that cannot be proved true or false.
Of the postwar Nuremberg trial:
It was politically [Posner's emphasis] right. It created a trustworthy public record of what the Nazis had done, and it exhibited “rule of law” [note the ironic quotation marks] virtues to the German people that made it less likely that Germany would again embrace totalitarianism. . . . But the trial was right not because it could produce proof that the Nazis really [his emphasis] were immoralists; they were, but according to our lights, not theirs.
Of human sacrifice:
We deplore human sacrifice in part because we are more squeamish than premodern people . . . , in part because we instinctively judge other cultures by our own standards, but in part because we know that human sacrifice does not avert drought, flooding, famine, earthquakes, or other disasters and is thus a poor means to a society’s ends.
A person who murders an infant is acting immorally in our society; a person who sincerely claimed, with or without supporting arguments, that it is right to kill infants would be asserting a private moral position. I might consider him a lunatic, a monster, or a fool, as well as a violator of the locally prevailing moral code. But I would hesitate to call him immoral, just as I would hesitate to call Jesus Christ immoral for having violated settled norms of Judaism and Roman law or Pontius Pilate immoral for enforcing that law.
Of slavery and infanticide:
The immorality of slavery and the immorality of infanticide are for many moralists prime candidates for universal moral principles, yet now we see that they are contingent on local circumstances.
And so on. Bestiality, female circumcision, abortion, baby-selling—all are subject to the pragmatic test of utility and the “adaptive” needs of society. These and other examples also appear in an earlier Posner book, Sex and Reason (1992), which argues for the legalization of prostitution on the grounds that it is a substitute for and complement to marriage; for the selling of infants (although not older children) to pedophiles, on the grounds that “very few child abusers have a sexual interest in infants”; and for other sexual practices that are based on rational—which is to say, economic—principles as he sees them, rather than the familiar prejudices of moralists and philosophers.
It is clear from Public Intellectuals and his other recent books that Posner has carried the insights of law-and-economics far beyond their original scope or intention. For he now seeks not only to economize the law, so to speak, by making it subject to economic criteria and constraints, but to pragmatize it as well—to liberate it from traditional rules and conventions. The profile of Posner in Lingua Franca quotes a 1999 article in which he casually dismisses the idea of “the rule of law” by noting that it is “an accidental and readily dispensable element of our legal ideology.” To the New Yorker interviewer, he protested: “If someone is obviously guilty, why do you have to have all this rigmarole?”—the “rigmarole,” that is, of precedents, procedures, and statutes. The interviewer, in a spirit of wonderment rather than hostility, found him “a flamboyantly candid judicial activist,” “the most mercilessly seditious legal theorist of his generation.”
It is all the more remarkable that so many conservatives should be well disposed to a judicial activist and legal theorist who is, in important matters, so flamboyantly unconservative. Perhaps it is because they are properly appreciative of the original law-and-economics philosophy, with its emphasis on property rights and the free market; and appreciative as well of his trenchant critique of such icons of the liberal establishment as Ronald Dworkin, Alan Dershowitz, Martha Nussbaum, and Richard Rorty. A man who has chosen his enemies so well—and who displays such a phenomenal ability to out-talk, out-write, and out-argue them—cannot be all bad, many conservatives seem to think.
“I’m not fully socialized into the legal profession,” Posner told his New Yorker interviewer, referring to his impatience with the “rigmarole” of the law. He is also, I would venture to say, not fully socialized into society. He professes to accept the prevailing moral code because it happens to be our own, our “local code,” not because it is more moral than any other. And he criticizes “academic moralists” who torment themselves with questions of ethics and justice, unlike ordinary people who believe what they believe, and act as they act, unaffected by what the philosophers may say. But he himself is not like those ordinary people, and his moral code is emphatically not theirs.
In the market for public intellectuals, Posner informs us, the academic who ventures into the public arena incurs costs, sacrificing some of the repute and prestige that attach to the pure scholar. But there are compensations as well, in the form of a different kind of repute and prestige—and in fees and royalties. As time goes on, I would add, as the academic becomes less of a scholar and more of a public intellectual, those costs mount, sometimes to the point where he may jeopardize not only his academic standing but also his standing as a public intellectual.
Richard Posner, one of our most distinguished public intellectuals, may be in the process of becoming the victim of his own success. For intellectuals, as for celebrities, the danger is over-exposure, not only in the personal sense, with the media tiring of the familiar face and the predictable opinions, but in an intellectual sense as well. With greater public exposure, the fallacies and foibles that might be muted in scholarly tomes become more conspicuous.
Posner’s prolificness is awesome. But it also makes him vulnerable. He deplores the tendency of public intellectuals to go to extremes, to try to enhance their market value by being original, novel, and entertaining. But few of them, in fact, go to the extremes of Posner himself, who does so, I believe, not for the economic or other self-serving reasons he attributes to others but for philosophical or ideological ones. For Posner, in spite of his protests, does have a philosophy—one that takes him, logically and inevitably, to the extremes of moral relativism. It may be time for his admirers to consider rescuing what is valuable in the school of thought with which he is identified from the extravagances of the master himself.
1 Harvard, 408 pp., $29.95.