Yesterday I read Lincoln Caplan’s profile of Richard Posner, the brilliant, protean and controversial judge on the U.S. Court of Appeals for the Seventh Circuit. “There are two Posners,” writes Caplan, “the ferocious reformer and the discerning aesthete, who understands the power of art – and has greater faith in its power than the law’s.”
“What we value in literature,” Posner told him, “is invariably created by geniuses, right? They’re the only ones who survive. But law, no. It’s created by mediocrities for the most part.’”
This is an extraordinary statement – more like Shelley’s insistence that “poets are the unacknowledged legislators of the world” than the words of a federal judge in a legal system dedicated to upholding “a government of laws, and not of men.”
It’s worth thinking about these days, especially today, which honors a man who dedicated his life to protesting laws – of segregation and Jim Crow, of intimidation and all-white juries – that brutally contradicted the principles on which this country was supposedly founded.
It’s dangerous business to appeal to a higher law – dangerous for the protesters, and dangerous for the nation, because romantic appeals are the stock in trade of demagogues everywhere. But Posner, I think, is talking, not about rhetoric that enflames our basest emotions and that sets us against each other – but about art that embodies the true spirit of humanity. It’s why we remember Lincoln’s speeches, and Churchill’s. It’s what distinguishes the poetry of Martin Luther King, Jr. from the bombast of Donald Trump.