Book Reviews Posner, A. Richard. Law and Legal Theory in England and America. Oxford: Clarendon Press, 1996. Pp. xii, 114. Index. In 'Hart v. Dworkin, Europe against America', the first of three lectures delivered at Oxford in 1996, Richard Posner appears to enter a theoretical debate about the nature of the law. In fact, his task is to survey certain features of the American and English judiciary that will eventually lead him to a discussion of the merits and shortcomings of each legal order. Posner's approach is straightforward, case-law-oriented and is propelled by the power of the factual. In his first lecture (at 1-37), Posner touches on the indeterminacy problem that accompanies the practice of law and rests with the fact that it is quite impossible to come up with a generally satisfying and gratifying answer to the question: 'What is the law?' Posner suggests dismissing the whole question as bearing little value and, rather, engaging in a functionalist analysis of the structure of American and British adjudication that would promise 'a practical pay-off'. Of what follows, including observations intertwined with sparkling and intriguing commentary, his first knock-out example may serve as an illustration: 'The British government wanted the Nazi leaders shot without a trial. The Americans, however, wanted a trial, so a trial there was.'(at 4) Alluding to the Nuremberg Trial debate about natural/positive law, about retroactive/unenacted law, Posner takes the political purpose of the Court's proceedings as underlining the futility of theoretical discourse about the concept of law when the trial's sole purpose was the extinction of Nazism. Contending that the same would hold true if the political aim had been another, the thrust of the argument is to delegitimize any questioning of the nature of law when what is at stake is the nature of the judicial process. Posner points to the eminent role played by the judiciary in the American system, which leads to a distinctive attitude towards the theoretical issue concerning the relationship between the judge and the legislator. When adjudication and legislation meld into one, the focus necessarily needs to shift towards the production of workable tools of theoretical accompaniment. The comparative view leads Posner to the distinguished observation that American judges are more innovative and more political than English ones. Thus, the ground is laid for the ensuing lecture, where he takes up some canonical as well as a number of recent cases in torts and contracts adjudication that came before American or English courts (at 39-67). Posner suggests that, in contrast to the strictly dogmatic argumentation of the English Judge, the US Judge will tend to import social sciences into his reasoning. This description is misleading in itself, to the point that Posner equates the usage of efficiency-oriented economic reasoning with an interdisciplinary approach to the adjudicatory process. Nevertheless, Posner can justly point to differences in the processes of recruitment of judges in the respective systems that makes for some of the differences in the style of American and English judges: post-graduate v. under-graduate studies, elected/confirmed vs. merit-evaluated, activist vs. technically adept, bold vs. timid. The third lecture (at 69-114), then, is intended as a sociological analysis of each judiciary's mode of functioning and the merits of its performance. Replete with statistical data, the lecture is quite a dry read, and fails to meet expectations of revelations concerning the distinctive differences between the two legal orders. 'The [loser-pays] rule makes weak cases less attractive to bring but strong cases less attractive to defend against' (at 71, cf. 96) whereas '[i]t is not that it is more expensive to litigate a claim in England than in America but that it is less worthwhile to do so because the expected recovery net of legal expenses is smaller'(at 77). Accordingly, the ratio of cases tried in the US and the UK is 23:1, while less English cases actually get to court (at 83). Furthermore, the handing down of 1 million dollar verdicts shows a US-UK ratio of 60:1 (at 99), while in criminal law the number of imprisonments in the US is 30 times greater than the English figure (at 105). At the same time, Posner's aim is to show that it is legal culture that has bearings on the differences discerned between American and English Law (at 106 ff.). Here, Posner's argument reconnects with his opening lecture. Legal positivism, certainty and predictability of English law make for fewer cases and fewer appeals (at 91-94). 'Trust judges, and you do not need juries as much.' (at 107) Posner's quest to assign some of the differences in the US and English adjudicatory systems leads him to observe that: 'Litigation is a kind of fighting, and Americans are fighters: the modern English, outside of the soccer stadium, are not.' (at 109) While he announces that he is not in a position to render a 'theory of legal culture', his comparative remarks are lightweight to the point where the reader (as well as the listener) may wonder what merit there is to toying with allusions to cultural diversity on one side of the Atlantic and to 'deference' and 'fatalism' on the other. Where Posner sees shifts on either side towards the adoption of characteristic elements of the other system, e.g. the tendency in America to adopt the English 'loser-pays' rule, he does so in order to voice a hearty scepticism about fragmentary alterations of the legal orders. As to what the American observer of the English judiciary may learn the comparativist Posner concludes that a 'nation can function, perhaps even thrive, with a much smaller legal system than we have grown accustomed to' (at 112). Among further lessons from the Old World, Posner includes the cooperative character of the English barrister towards the bench, presumably resting on the ban of contingent fees and, again, the loser-pays rule. His most striking observation, however, may be that of the 'courteous and civilized manner in which the English system manages disagreement - disagreement among judges, among barristers, and between bench and bar' (at 114). Putting down this tiny volume, one is left feeling somewhat disturbed. Yet, it is not so much about the insights developed in the three lectures, it is more a feeling of discontent about the casualness with which their author claims to have contributed to the, indeed, necessary comparison of two legal systems which, after all, both belong to the common law tradition. In light of the work being done today on the convergence and divergences between different orders, contexts and discourses of law, one can only dream of the many interesting issues which could have been discussed under such a promising title. Peer Zumbansen Research Assistant University of Frankfurt Law School
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