Todos contra Posner: uma apreciação crítica da análise econômica do direito e do pragmatismo jurídico à luz da “fragilidade da bondade”

Abstract

This work seeks to understand Richard Posner’s legal reasoning approaches (economic analysis of law and legal pragmatism) to make it possible to assess the relevance of the various criticisms directed at them. We take three steps in this quest: first, we systematize the criticisms in blocks of relevance, electing some authors from different ethical and epistemological framework to “locate” Posner's thought within the context of possibilities. Then, we systematize the theoretical and performative contradictions in which Posner occur, in order to reconstruct his thinking through some conceptual key that can make it globally coherent from a narrative perspective. After testing and discarding some potential conceptual keys (related to possible ideological commitments, moral propaganda strategies and a polemicist personality in itself), we find, in "The Fragility of Goodness" (Martha Nussbaum), a promising “meta conceptual key”: the perception that an authentic moral life depends on an openness to contingency. Such a position of vulnerability distinguishes a platonic approach to rationality from an aristotelian one, and, at the same time, suggests how (or why) these rationalities can be corrupted (modern and ancient skepticism). Next, we turn ourselves to Netflix’s show, Dark, so it can helps us to test some conceptual keys that were derivated from the “fragility of goodness”, in order to explain Posner's contradictions. First, we easily find that Posner-economicist fits the archetype of theoretical (platonic) reason, since there is no openness to contingency and, therefore, no openness to moral excellence. Next, we try to fit Posner-pragmatist into the archetypes of practical reason (aristotelian), modern skepticism and ancient skepticism. The movement between the four archetypes allows us to conclude that Posner-pragmatist cannot be traced back to the orthodox epistemological frameworks of Western philosophy. Therefore, to “adjudicate” the accurace of the criticisms, we turn ourselves to Dark one more time to find the last possible conceptual key that might be able to explain Posner’s contradictions. Once we have found it, it will be possible to understand the ethical and political implications that such a pragmatic posture entails for a pluralistic society. Finally, we realize that Posner-pragmatist “fears” the contingency just as Posner economicist does, having only adopted a different strategy to deal with it. Instead of trying to “control” it, Posner-pramatist chooses to “run away” from it. That means we managed to find a conceptual key that could “explain” Posner's contradictions and that allowed us to understand and correctly criticize his economic and pragmatic approaches.