Monteiro, Alessandra Oitaven Pearce de Carvalho; http://lattes.cnpq.br/1698884051250524
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.
