For Deweyans, the whole idea of 'authority' is suspect. We can still say, if we like, that the American legal system possesses a legitimate authority, and that we have an obligation to obey our country's laws. But we should not press either point. Dewey preferred to skip talk of 'authority', 'legitimacy' and 'obligation' and to talk instead about 'applied intelligence' and 'democracy'. He hoped we would stop using the juridical vocabulary which Kant made fashionable among philosophers, and start using metaphors drawn from town meetings rather than from tribunals. He wanted the first question of both politics and philosophy to be not, 'What is legitimate?' or, 'What is authoritative?' but, 'What can we get together and agree on?' This is the strand in Dewey's thought which Rawls, especially in his later writings, has picked up and developed.

Posner's vision of the function of American judges - his vision of their ability to travel back and forth between the present and the future and to try to fashion a moral unity out of our national history - fits nicely into Dewey's way of thinking. Nor is Posner's vision very different, I suspect, from that of most Americans who take an interest in what the courts, and especially the Supreme Court, are up to - at least those who are grateful for the Court's decision in Brown v. Board of Education. For those who believe that the Civil Rights Movement, the movement which Brown initiated, was an enormous boost to our national self-respect and a reassuring instance of our continuing capacity for moral progress, the thought that the courts do not just apply rules, but make them, is no longer frightening. Nor is the Deweyan suggestion that it is a waste of effort to try to figure out just where, in Brown and in similar decisions, finding and applying old law stops and making new law begins.