Abstract Highly influential legal scholar and judge Richard Posner, newly retired from the bench, believes that law is irrelevant to most of his judicial decisions as well as to most constitutional decisions of the U.S. Supreme Court. His recent high-profile repudiation of the rule of law, made in statements for the general public, was consistent with what he and others have been saying to legal audiences for decades. Legal pragmatism has reached its end in abandoning all the restraints of law. Posner-endorsed “epistemological democracy” obscures a discretion that is much worse than the rule of law promoted by epistemological authoritarianism. I argue that a focus on conceptual essentialism and on the recognition of coercive intent as essential to the concept of law, both currently unpopular among legal theorists and many jurists, can clarify legal understandings and serve as starting points for the restoration of the rule of law. A much more precise, scientific approach to legal concepts is required in order to best ensure the rational and moral legitimacy of law and to combat eroding public confidence in political and legal institutions, especially in an increasingly diverse society. The rational regulation by some (lawmakers) of the real-world actions of others (ordinary citizens) requires that core or central instances of concepts have essential elements rather than be “democratic.” Although legal pragmatism has failed just as liberal theory generally has failed, the pragmatic value of different conceptual approaches is, in fact, the best measure of their worth. Without essentialism in concept formation and an emphasis on coercion, the abilities to understand and communicate effectively about the practical legal world are impaired. Non-essentialism grants too much unwarranted discretion to judges and other legal authorities, and thus undermines the rule of law. Non-essentialist or anti-essentialist conceptual approaches allow legal concepts to take on characteristics appropriate to religious and literary concepts, which leads to vague and self-contradictory legal concepts that incoherently and deceptively absorb disparate elements that are best kept independent in order to maximize law’s rationality and moral legitimacy. When made essentialist, the concept of political positive law shrinks, clarifies, and reveals its true features, including the physically-coercive nature of all laws and the valuable method of tracing the content of law by following its coercive intents and effects.

中文翻译：

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波斯纳的愚蠢：法律实用主义的终结和强制的清晰

摘要从法官席上退休的极具影响力的法律学者和法官理查德·波斯纳（Richard Posner）认为，法律与其大多数司法裁决以及美国最高法院的大多数宪法裁决均无关。他最近在向公众发表的声明中对法治的高调声名与他和其他人数十年来一直对合法听众说的话一致。法律实用主义已经结束了对法律的一切束缚。波斯纳认可的“认识论民主”掩盖了自由裁量权，这种自由裁量权比认识论专制主义提倡的法治更糟。我认为，目前法律理论家和许多法学家都对概念性的本质主义和强制性意图作为法律概念必不可少的关注的焦点，可以阐明法律理解，并作为恢复法治的起点。为了更好地确保法律的合理性和道德合法性，并打击公众对政治和法律制度，尤其是在一个日益多样化的社会中日益削弱的公众信心，需要一种更为精确，科学的法律概念方法。一些人（立法者）对其他人（普通公民）的现实世界行为的理性监管要求，概念的核心或核心实例必须具有基本要素，而不是“民主”。尽管法律实用主义失败了，正如自由主义理论普遍失败一样，但实际上，不同概念方法的实用价值是衡量其价值的最佳方法。没有在概念形成上的本质主义和对强制的强调，有效地理解和沟通实际法律世界的能力受到损害。非本质主义给法官和其他法律当局过多的不必要的酌处权，从而破坏了法治。非本质主义或反本质主义的概念方法使法律概念具有适合于宗教和文学概念的特征，从而导致含糊不清和自相矛盾的法律概念，它们不一致地和欺骗性地吸收了最好保持独立以最大限度地提高法律效力的不同要素。理性和道德合法性。当成为本质主义者时，政治实在法的概念会缩小，澄清并揭示其真实特征，