Ursin — Volume 57, Issue 4

Judge Richard Posner argues that when conventional legal materials fail to answer legal questions, judges necessarily resort to policy judgments and political opinions, functioning as legislators. This article examines Posner's positive theory of judicial decision-making by analyzing the jurisprudence of Justice Traynor and Judge Friendly. Posner contends that judges operate within an open area where existing doctrine does not generate answers, requiring creative lawmaking. The article tests Posner's account against historical accounts of judicial thinking, finding that prominent judges indeed engage in pragmatic reasoning that extends beyond formal legal materials. Traynor and Friendly employed sophisticated legal reasoning integrating policy considerations while respecting doctrinal boundaries. The article challenges academic critics who deny that judges make law or who fear judicial pragmatism undermines democratic legitimacy. By examining how great judges actually think and decide cases, the article demonstrates that judicial decision-making necessarily involves lawmaking elements, though constrained by legal principle and doctrine.

Topics: Legal Theory · Constitutional Law

Keywords: judicial lawmaking · Richard Posner · Roger Traynor · Henry Friendly · judicial decision-making · pragmatism · legal doctrine