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Booth School of Business, University of Chicago

University of Chicago Law School


The Independent Judiciary in an Interest-Group Perspective: Comment
Author(s): James M. Buchanan
Source: The Journal of Law & Economics, Vol. 18, No. 3, Economic Analysis of Political Behavior:
Universities-National Bureau Conference Series Number 29 (Dec., 1975), pp. 903-905
Published by: University of Chicago Press for Booth School of Business, University of Chicago
and University of Chicago Law School
Stable URL: http://www.jstor.org/stable/725071
Accessed: 17-12-2015 21:21 UTC

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COMMENT
JAMES M. BUCHANAN
Virginia Polytechnic Institute & State University

LIKEthis paper. Public choice, or the economic approach to politics, has


long needed an analysis of the judicial branch of the governmental structure,
and the Landes-Posner paper represents a good start in that direction.1
I share with the authors a rejection of the notion that the judiciary's role is
one of representing the underrepresented groups in the political process. I
join in their criticism of the romantic view that the members of the judiciary
are the unique guardians of some mystical "public interest," something that
is wholly ignored by other branches of government. Closely related to this,
and perhaps even more relevant, I share with Landes and Posner the view
that ethical norms should not be determining factors in judicial decisions.
From this common vantage point, it follows that I should be broadly
sympathetic with the theory of the judicial branch developed by Landes and
Posner. But there remain some differences, or rather difficulties with the
paper as it now stands.
I am not willing to go all the way with an interest-group model for legislation and to label all enactments as special-interest benefits "purchased" by
successful coalitions, achieved at net costs to losing coalitions. There is no
doubt but that much of political activity can be explained by such a model.
But I should not want to attribute this characteristic to all legislation. I am
sure that this is not the intent of Landes and Posner, but this impression
might well be gained from a hurried reading of their paper. Some legislation,
some of the activity of legislative bodies, is surely aimed at the supply of
genuinely "public goods," by which I mean the collective provision and
financing of goods and services jointly to all members of the community, and
in such fashion that all or substantially all secure net gains. To acknowledge
this need not modify the Landes-Posner role for an independent judiciary
since, even when genuinely public goods are provided which benefit all
groups, there may be major distributional differences in alternative financing schemes.
But there is a more basic problem. In my own conception (which I acknowledge to be an abstraction that must be forced on a possibly different
empirical reality), the "rules" are fixed. The rules of the game, embodied in
the effective "constitution" (whether codified or not) qualify as "relatively
I
William M. Landes & Richard A. Posner, The Independent Judiciary in an Interest-Group
Perspective, 18 J. Law & Econ. 875 (1975).

903

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904

THE JOURNAL OF LAW AND ECONOMICS

absolute absolutes" in the sense discussed by Frank Knight and Henry


Simons. Ideally, these rules should be changed explicitly by constitutional
amendment, and neither by ordinary legislatures nor by courts. Ideally,
legislatures simply carry out productive activity that is allowed under the
rules, under the law, activity that involves the provision of those goods and
services that can best be provided and/or financed jointly. Ideally, courts
interpret and enforce the rules, both for private parties and for legislative
and executive branches of government.
I share fully with Landes and Posner the view that it is inappropriate for
courts to change the rules, regardless of ethical content. But Landes and
Posner seem to imply that ordinary legislation does involve basic rules
changes. This is where I may differ most sharply with them. Ordinary
legislatures, characterized often by the struggle among competing interestgroup coalitions within some ultimate majority rule constraints, should not
be empowered to modify the basic law of the polity any more than should the
courts or the executive.
In fact, of course, administrative-executive agencies, courts, and ordinary
legislatures do modify the rules, the basic law of the land. The effective
constitution is changed by all branches, and we could scarcely expect anything different. But the normative abstractions that we impose on the actual
workings of an imperfect political world are important themselves in placing
limits on action. My own view is, therefore, somewhat more favorable to an
independent judiciary than that of Landes and Posner. I want an independent judiciary to enforce the rules that exist, however these might have
emerged. I want this judiciary to restrict the actions of legislative bodies and
administrative agencies that try to modify these rules when they are not
legitimately empowered to do so. This role for the judiciary extends further
than the Landes-Posner one of forcing legislative and executive branches to
keep past commitments. I want the courts to start once again to take a hard
look at the constitutionality of legislative and executive actions, but in terms
of the existing rules of the game, and not in terms of the judges' own social or
ethical ideals. The tragedy of Earl Warren's court lay not in its activism but
in its avowal of a role for the judiciary that is wholly inconsistent with the
structure of constitutional democracy.
Many of my statements are explicitly normative. And this points to a
matter of concern that arises with respect to the Landes-Posner paper, to
some of my own work, and to much other work in the area covered in this
conference. How do we separate normative and positive elements of analysis? In the Landes-Posner paper, how much of their analysis can be interpreted as explaining the political structure that we observe and how much
can be interpreted as normative argument for that structure which might
exist?
In a strictly positivist framework, the analysis does yield implications that
may be tested, and it is possible that, over a sequence of rejected hypotheses,

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COMMENT

905

the basic paradigm might be modified. Many actions of the courts, and
especially of the last quarter century, are not consistent with the role for the
judiciary in the Landes-Posner model. But as and if we observe judges
increasingly trying to promote their own private versions of "public good"
should we modify our paradigm? Descriptively, scientifically, we must do
so. But we may still hold fast to a normative description of the judicial role,
to a paradigm that is consistent with "democratic values" in a more inclusive
sense. The demonstration of this consistency is, itself, a part of positive
analysis. But it is also normative argument, and, as such, valuable in the
ongoing discussion of public philosophy. Through such analyses as that of
Landes and Posner, we may explain why the public and the elected politicians should want a politically independent and ethically-neutral judiciary,
but we must also allow for the possibility that the judiciary which we observe has strayed beyond rationally-desired limits.
I have found it useful to think of the basic rules, of the law, as public
capital.2 This economic dimension makes us think about the quasipermanent nature of law, about a whole sequence of periods in which income is yielded, about the necessity for maintaining the stock in order to
maintain the income yield, about the dangers of allowing the stock to depreciate or to erode. The Landes-Posner role for the judiciary can be readily
discussed within this metaphor. But the modern political science or Warren
Court model of a judiciary which they criticize cannot, by any stretch of the
imagination, be made consistent with a "public capital" conception of law.
Economists may be easily convinced. But this is not the problem. The
Warren Court attitude informs far too many of our legal scholars, our
lawyers, and our judges. We must, I fear, experience still further erosion in
the public capital stock that our basic law represents before the reeducation
process (which may only now be in its beginning stages) can have an appreciable effect.
2

See James M. Buchanan, The Limits of Liberty: Between Anarchy and Leviathan (1975).

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