Citation: 63 S. Cal. L. Rev. 1811 1989-1990
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THE BANALITY OF PRAGMATISM
AND THE POETRY OF JUSTICE
RICHARD RORTY*
Thomas Grey, in his Holmes andLegalPragmatism,says: "From a
certain philosophical perspective, Holmes' pragmatist theory oflaw is...
essentially banal. At its most abstract level it concludes in truisms: Law
is more a matter of experience than of logic, and experience is tradition
interpreted with one eye on coherence and another on policy."1
I think it is true that by now pragmatism is banal in its application
to law. I also suspect that Grey is right when he claims that "pragmatism
is the implicit working theory of most good lawyers."2 To that
extent, at least, everybody seems to now be a legal realist. Nobody wants
to talk about a "science of law" any longer. Nobody doubts that what
Morton White called "the revolt against formalism' 3 was a real advance,
both in legal theory and in American intellectual life generally.
It is true that Ronald Dworkin still bad-mouths pragmatism and
insists that there is "one right answer" to hard legal questions. On the
other hand, Dworkin says that he does not want to talk about "objectivity"
any more. Further, Dworkin's description of "law as integrity" in
Law's Empire' seems to differ only in degree of elaboration from Cardozo's
account of "the judge as legislator" in The Natureof the Judicial
Process.5 So I find it hard to see what the force of the phrase "one right
answer" is supposed to be. Dworkin's polemics against legal realism
appear as no more than an attempt to sound a note of Kantian moral
rigorism as he continues to do exactly the sort of thing the legal realists
* University Professor of Humanities, University of Virginia. B.A. 1949, M.A. 1952, University
of Chicago; Ph.D. 1956, Yale University.
1. Grey, Holmes andLegal Pragmatism,41 STAN. L. REv. 787, 814 (1989).
2. Grey, Hearthe OtherSide" WallaceStevens andPraqmatistLegal Theory, 63 $. CAL.L.
REv. 1569, 1590 (1990).
3. M. WHITE, SOCIAL THOUGHT IN AMERICA: THE REVOLT AGAINST FORMALISM (1949).
4. R. DWoRKIN, LAW'S EMPIRE 176-275 (1986).
5. B. CARDozo, THE NATURE OF THE JUDICIAL PROCESS (1921).
1811
SOUTHERN CALIFORNIA LAW REVIEW [Vol. 63:1811
wanted done. I think Margaret Radin is right when she says that Dworkin's
criticism of pragmatism amounts to little more than "gerrymandering
the word 'pragmatism' to mean crass instrumentalism. ' '7
Since neither Dworkin nor Richard Posner nor Roberto Unger has
any use for what Posner calls "formalism"-namely "the idea that legal
questions can be answered by inquiry into the relation between concepts"-it
seems plausible to claim that the battles that the legal realists
fought in alliance with Dewey have essentially been won.9 The interesting
issues now seem to cluster around formalism in a wider sense, one
that Unger defines as "a commitment to... a method of legal justification
that contrasts with open-ended disputes about the basic terms of
social life, disputes that people call ideological, philosophical, or
visionary."10
Even under this broader definition of formalism, however, it is not
so easy to find a good example of a formalist among legal theorists.
Dworkin sometimes suggests that judges are prevented by their office
from being open ended in this way, although theorists are not. Dworkin
proposes that helping the law work itself pure by means of an ever more
radical egalitarianism is a matter not for "the princes of law's empire"the
judges-but rather for philosophers, the "seers and prophets of that
empire."" But Dworkin is ambiguous on the question of whether Hercules,
in his official capacity, can take heed of open-ended disputes of the
6. See Woozley, No Right Answer, in RONALD DWORKIN AND CONTEMPORARY JURISPRUDENCE
173 (M. Cohen ed. 1983). In a reply to Woozley, Dworkin echoes Dewey by saying that "a
concept of truth that somehow escapes the fact that all our concepts, including our philosophical
concepts, take the only meaning they have from the function they play in our reasoning, argument,
and conviction" isa "mirage." Dworkin, A Reply by RonaldDworkin, in RONALD DWORKIN AND
CONTEMPORARY JURISPRUDENCE 247, 277 (M. Cohen ed. 1983). Dworkin's reply ends by saying
that he is content with the statement that "in hard cases at law one answer might be the most
reasonable of all, even though competent lawyers will disagree about which answer is the most
reasonable." Id. at 278. This gloss neutralizes whatever anti-pragmatist and anti-legal realist force
there might have been in the "one right answer" slogan.
On Dworkin's view (with which pragmatists heartily agree) that "objectivity" (in a sense interestingly
different from "intersubjectivity") is an unnecessary notion for an accurate description of
the decisionmaking process, see R. DWORKIN,supranote 4, at 267.
7. Radin, The Pragmatistandthe Feminist,63 S.CAL. L. REV. 1699, 1722 (1990).
8. Posner, What Has Pragmatismto Offer Law?, 63 S.CAL. L. REV. 1653, 1663 (1990).
9. The battles have been won among theorists, if not among the more recently appointed
members of the Supreme Court. The latter have not garnered much supporting theory for their
views; E.D. Hirsch, Jr., the leading representative of intentionalism in the theory of interpretation,
was quick to disassociate himselffrom their use of the concept of "the Framers' intention." See E.D.
Hirsch, Jr., Counterfactualsin Interpretation,in INERPREaaTING LAW AND LITERATURE 55-68 (S.
Levinson & S.Mailloux eds. 1988).
10. R. UNGER, THE CRITICAL LEGAL STUDIES MOVEMENT 1 (1986).
11. See R. DWORKIN, supranote 4, at 407.
1812
PRAGMATISM AND JUSTICE
sort Unger has in mind. On the one hand, Dworkin says that the work of
CLS theorists is "useful to Hercules," but on the other, he warns that
CLS may be merely "an anachronistic attempt" to make legal realism"that
dated movement"-reflower 1 2 Yet surely CLS adherents like
Allan Hutchinson and Peter Gabel are not interested in formulating a
general theory of the sort exemplified by legal realism. Instead, they are,
ifyou like, interested in being useful to Hercules. They want to open up
the discourse of the legal profession to issues that Hercules will eventually
find raised in half of the briefs he must read.
For myself, I find it hard to discern any interesting philosophical
differences between Unger, Dworkin, and Posner; their differences strike
me as entirely political, as differences about how much change and what
sort of change American institutions need. All three have visionary
notions, but their visions are different. I do not think that one has to
broaden the sense of "pragmatist" very far to include all three men under
this accommodating rubric.
The very ease by which these three men are accommodated under
this rubric illustrates the banality of pragmatism. Pragmatism was reasonably
shocking seventy years ago, but in the ensuing decades it has
gradually been absorbed into American common sense. Nowadays,
Allan Bloom and Michael Moore seem to be the only people who still
think pragmatism is dangerous to the moral health of our society. 13 Posner,
therefore, raises a good question when he asks whether the so-called
"new" pragmatists have anything to contribute-anything that we have
not already internalized as a result of being taught by people who were
raised on Dewey.4
My own answer to this question is that the new pragmatism differs
from the old in just two respects, only one of which is of much interest to
people who are not philosophy professors. The first is that we new
pragmatists talk about language instead of experience or mind or consciousness,
as the old pragmatists did. The second respect is that we
have all read Kuhn, Hanson, Toulmin, and Feyerabend, and have
thereby become suspicious of the term "scientific method."1" New
12. Id. at 272-73.
13. See A. BLOOM, THE CLOSING OF THE AMERICAN MIND (1986); Moore, A NaturalLaw
Theory ofInterpretation,58 S. CAL. L. REv. 277 (1985).
14. Posner, supranote 8, at 1658-59.
15. The two respects in which the new pragmatism differs from the old are connected, in that
without the so-called "linguistic turn," the topic of "theory-neutral observation language" would not
have been posed. Without Carnap's and Hempel's attempts to develop logics of confirmation and
explanation by treating theories as (potentially axiomatizable) sets of propositions whose deductive
1990] 1813
SOUTHERN CALIFORNIA LAW REVIEW [Vol. 63:1811
pragmatists wish that Dewey, Sidney Hook, and Ernest Nagel had not
insisted on using this term as a catchphrase, since we are unable to provide
anything distinctive for it to denote.' 6
As far as I can determine, it is only these doubts about scientific
method, and thus about method in general, that might matter for legal
theory. The first respect in which the new pragmatism is new-its switch
from experience to language-has offered philosophy professors some
fruitful new ways to pose old issues of atomism-vs.-holism and representationalism-vs.-anti-representationalism
(as in the controversies between
Hilary Putnam and David Lewis, Donald Davidson and Michael Dummett,
Daniel Dennett and Jerry Fodor). But these issues are pretty
remote from the concerns of non-philosophers. 7 By contrast, as Judge
Posner's article shows, i" method can still seem important.
Posner says that "lack of method" was "a great weakness" of legal
realism. 9 He distinguishes between "scientistic philosophy" and "social
science... the application of scientific method to social behavior" and
says that his own economic approach to law is "rooted in and inspired by
a belief in the intellectual power and pertinence of economics."20 My
own Kuhnian-Feyerabendian doubts about scientific method make me
wish that Posner had been content with this last remark and not added
the sentences about method. Social scientists, like novelists, poets, and
politicians, occasionally come up with good ideas that judges can use.
For all I know, the brand of economics that centers on considerations of
efficiency may provide Hercules with some very useful ideas. But I am
consequences could be phrased in such an observation language, this topic would not have seemed
urgent. Also, without Quine's attack on the analytic-synthetic distinction (an attack that is less easily
mounted against the pre-linguistic-turn necessary-vs.-contingent distinction), and Sellars's attack on
the notion of "pure sense-datum report," Kuhn's reception would have been colder than it was.
16. For reasons why Dewey's use of that phrase was misleading and unhelpful, see Rorty,
Introduction, in 8 JOHN DEwEY: THE LATER WORKS ix-xviii (J. Boydston ed. 1986) and Rorty,
Pragmatism Without Method, in SIDNEY HOOK: PHILOSOPHER OF DEMOCRACY AND HUMANISM
259 (P. Kurtz ed. 1983).
17. Insofar as concern with language as such has entered into legal theory, it has done so in the
form of the "deconstructionist" wing of the CLS movement. For some powerfully argued criticisms
ofthe claim that deconstructionism has something to contribute to legal theory, see Williams, Critical
Legal Studie" The Death of Transcendenceand the Rise ofthe New Langdells, 62 N.Y.U. L.
REv. 429 (1987). Whereas Radin suggests that with Dewey you do not need Derrida, see Radin,
supranote 7, at 1719, William's point is that if you have Wittgenstein, you do not need Derrida. I
think the latter claim is slightly more accurate, since the later Wittgenstein updates Dewey by working
out a non-representationalist approach to language, as opposed to a non-representationalist
approach to inquiry. Wittgenstein thus lets one meet the deconstructionists on their own turf.
18. Posner, supra note 8.
19. Id. at 1659.
20. Id. at 1668-69.
1814
PRAGMATISM AND JUSTICE
fairly certain that it would be hard for Posner to explain what was especially
scientific about either the genesis or the application of these ideas.2 1
My assurance on this point is the result of watching many philosophers
try and fail to find an epistemic or methodological, as opposed to a sociological
or moral, distinction between science and non-science. 22
I agree with Grey that one advantage of pragmatism is freedom
from theory-guilt.23 Another advantage is freedom from anxiety about
one's scientificity. So I think it is in the spirit of Dewey to say that the
test of the power and pertinence of a given social science is how it works
when you try to apply it. The test of law and economics is whether
judges agree in finding Posner's ideas useful when, as Grey puts it,
"interpreting tradition with one eye on coherence and the other on
policy."
24
On the other hand, I agree with Posner that judges will probably not
find pragmatist philosophers--either old or new-useful. Posner is right
in saying that pragmatism clears the underbrush and leaves it to others to
plant the forest.25 I would add that the underbrush in question is mostly
specifically philosophical underbrush. The "new" pragmatism should, I
think, be viewed merely as an effort to clear away some alder and sumac,
which sprang up during a thirty-year spell of wet philosophical
weather-the period that we now look back on as "positivistic analytic
philosophy." This clearance will restore the appearance of the terrain
that Dewey landscaped, but it will not do more than that.
To accomplish more, and in particular to avoid the complacency
that Radin rightly sees as the danger of coherence theories of knowledge,26
we have to turn to Dewey the prophet rather than Dewey the
pragmatist philosopher. We have to read the Emersonian visionary
rather than the contributor to The JournalofPhilosophywho spent forty
years haggling over definitions of "true" with McGilvary, Lovejoy, Russell,
Lewis, Nagel, and the rest. This is the Dewey whom Cornel West
describes as calling for "an Emersonian culture of radical democracy, '27
21. For some skepticism about the scientificity of economics, see D. McCLosKEY, THE RHETORIC
OF ECONOMICS (1985).
22. See Rorty, Is NaturalScience aNaturalKind?,in CONSTRUCTION AND CONSTRAINT: THE
SHAPING OF SCIENTIFIC RATIONALITY 49 (E. McMullin ed. 1988).
23. See Grey, supranote 2, at 1569.
24. Grey, supra note 1.
25. Posner, supranote 8, at 1670.
26. Radin, supranote 7, at 1710.
27. C. wEST, THE AMERICAN EVASION OF PHILOSOPHY: A GENEALOGY OF PRAGMATISM
104 (1989).
1990] 1815
SOUTHERN CALIFORNIA LAW REVIEW [Vol. 63:1811
the Dewey who is grist for CLS mills. Like the "prophetic pragmatism"
for which West calls, this Dewey is "a child of Protestant Christianity
wedded to left romanticism.
28
No argument leads from a coherence view oftruth, an anti-representationalist
view of knowledge, and an anti-formalist view of law and
morals, to Dewey's left-looking social prophecies. The Heidegger of
Being and Time shared all those views, but Heidegger looked rightward
and dreamed different dreams.29 These were anti-egalitarian, nostalgic
dreams, which resembled those of T.S. Eliot and Allen Tate rather than
the one that Dewey embodied in a quote from Keats:30
[Man should not dispute or assert, but whisper results to his neighbor,
and thus, by every germ of spirit sucking the sap from mold etherial,
every human being might become great, and Humanity instead of
being a wide heath of Furze and briars with here and there a remote
Pine or Oak, would become a grand democracy of Forest Trees131
This romantic side of Dewey is not banal. When one comes across
such passages as this, one wakes out of the slumber induced by what
Grey calls "the good gray liberal expounds the mild virtues of the theoretic
middle way.' ' 33 But this side of Dewey is not distinctively pragmatist
either. These passages do not let one know, as Grey rightly says
Wallace Stevens does, what it feels like to be a pragmatist-what it feels
like to have overcome the dualisms of fiction and reality, imagination and
reason. The pragmatists provided good philosophical arguments against
some of the philosophical presuppositions of formalism. Yet the success
of the revolt against formalism that Morton White describes, the revolt
whose success lets us find much of Dewey platitudinous, owed as much
to visionary carrots as to argumentative sticks.
Dewey's Keatsian vision was shared by many social democrats in
many countries at the turn ofthe century.3 As Putnam rightly says, it is
not a vision that can be successfully backed up by a Habermas-Apel style
argument about the presuppositions of rational discourse.3 4
But visions
do not really need backup. To put forth a vision is always one of
28. Id. at 227.
29. See M. HEIDEGGER, AUF DER ERFAHRUNG DES DENKENS (1954).
30. On the overlap between Dewey and Heidegger, see M. OKRENT, HEIDEGGER'S PRAGMATISM
3-10, 280-81 (1988).
31. J. DEWEY, ART AS EXPERIENCE 347 (1934).
32. Grey, supra note 2, at 1592.
33. See J. KLOPPENBERG, UNCERTAIN VICTORY: SOCIAL DEMOCRACY AND PROGRESSIVISM
IN EUROPEAN AND AMERICAN THOUGHT 1870-1920 26-27 (1986).
34. Putnam, A Reconsiderationof Deweyan Democracy, 63 S. CAL. L. REv. 1671, 1687-88
(1990).
1816
PRAGMATISM AND JUSTICE
Fitzjames Stephen's "leaps in the dark."3 Thus, insofar as we late comers
can get more than platitudes from Dewey, it will be because we are
able to read our own specific egalitarian hopes into his generic ones, not
because we can still use his anti-formalist arguments as weapons.
As examples of attempts to actualize specific hopes, consider such
debatable decisions as Brown v. Board of Education,36 Roe v. Wade,37
Judge Sand's recent decision that begging is a first amendment right,"8
various state supreme court decisions holding that all school districts
within the state must have the same per-pupil expenditure, and some
future Supreme Court decision that will strike down anti-sodomy laws.
These are cases in which the courts have done, or might do, what Posner
claims "the pragmatic counsel... to the legal system" would warn them
against.39 They have "roil[ed] needlessly the political waters."' They
have "prematurely nationalized an issue [that many thought] best left to
simmer longer at the state and local level until a consensus based on
experience with a variety of approaches.., emerged."41
Undoubtably, an ideally unromantic and bland pragmatist would
offer such advice, but Dewey the visionary would not. Dewey the
romantic would have been delighted that the courts sometimes tell the
politicians and the voters to start noticing that there are people who have
been told to wait forever until a consensus emerges-a consensus within
a political community from which these people are effectively excluded.42
Dewey the pragmatist would not, I think, have accepted Dworkin's
quasi-Kantian claim that in these cases the courts were simply "taking
rights seriously" rather than being visionary-for he would have thought
"rights" a good example of what Posner calls "the law's metaphysical
balloons."4 Unlike Dworkin, Dewey would not have attempted to formulate
a general legal theory that justified the practice ofmaking leaps in
35. Id. at 1693-94.
36. 347 U.S. 483 (1954).
37. 410 U.S. 113 (1973).
38. Young v. New York City Transit Auth., 729 F. Supp. 341 (S.D.N.Y. 1990), rev'din part,
vacatedin part, 903 F.2d 146 (2d Cir. 1990).
39. Posner, supranote 8, at 1668.
40. Id.
41. Id.
42. It might be objected that this phrase is inapplicable to Roe v. Wade, since women are
included in the relevant community. I am not sure they are, both on Ely-like grounds of underrepresentation
and on the vaguer but more powerful ground that (as banners at a pro-choice demonstration
recently put it) "if men got pregnant, they would have made abortion a sacrament."
43. See Posner, supra note 8, at 1663.
1990] 1817
SOUTHERN CALIFORNIA LAW REVIEW [Vol. 63:1811
the constitutional dark.' Rather, I imagine Dewey would say that to
suddenly notice previously existing but hitherto invisible constitutional
rights is just the quaint way in which our courts are required to express a
conviction that the political waters badly need roiling.
In the terms Radin uses, this conviction can be restated as the claim
that a paradigm shift is needed in order to break up "bad coherence."4
Such a shift can be initiated when visionary judges conspire to prevent
their brother Hercules, the "complacent pragmatist judge" whom Radin
describes, from perpetuating such coherence. The cheer we egalitarians
raise at such breakthroughs into romance-at such examples of the
poetry of justice-is, I think, what justifies Posner's statement that
although it was "not... a good judicial opinion," Holmes' Lochner dissent
was "the greatest judicial opinion of the last hundred years."46 I
read that dissent as saying, in part, "Like it or not, gentlemen, trade
unions are part of our country too." I think ofBrown as saying that, like
it or not, black children are children too. I think of Roe as saying that,
like it or not, women get to make hard decisions too, and of some hypothetical
future reversal ofBowers v. Hardwick47 as saying that, like it or
not, gays are grown-ups too.
I can share Dworkin's and Ely's concerns over the "unprincipled"
character of such decisions-their concern at the possibility that equally
romantic and visionary, yet morally appalling, decisions may be made by
pragmatist judges whose dreams are Eliotic or Heideggerian rather than
Emersonian or Keatsian. But as a pragmatist, I do not believe that legal
theory offers us a defense against such judges-that it can do much to
prevent another DredScott decision. In particular, I do not see that such
judges will have more or less "integrity" than those who decided Brown
44. See Farber,LegalPragmatismandthe Constitution,72 MINN. L. REv. 1331 (1988). I agree
with Farber that we do not need "a unified principle that would provide the basis for judicial decisions,"
id. at 1334, and with Farber's criticism of Dworkin's attacks on pragmatism, id. at 1343-49.
But I think that Farber concedes too much to the opposition when he says that a "principled pragmatism
is far from being an oxymoron," id. at 1377, and also when he contests John Hart Ely's
claim that "when a majority has chosen to invade an arguably fundamental right, courts have no
principled way of determining whether the right should be considered fundamental," id. at 1355.
Farber is right, of course, ifwhat he means by "principled" in these contexts is simply susceptible to
being supported by a reasonable argument-but this is not what Dworkin and Ely mean. Dworkin
and Ely want a distinction between principle and policy, which pragmatists must refuse them.
45. Radin, supranote 7, at 1710.
46. R. POSNER, LAW AND LrrERATuRE 285 (1988). I am grateful to my colleague George
Rutherglen for helping me see that Harlan's dissent in Lochner was, romance apart, a far better
example of what one expects judicial opinions to look like. Iam also grateful to him for looking over
a draft of this article and saving me from some howlers.
47. 478 U.S. 186 (1986).
1818
PRAGMATISM AND JUSTICE
or Roe. I agree with Grey when he says: "Pragmatism rejects the maxim
that you can only beat a theory with a better theory .... No rational
God guarantees in advance that important areas ofpractical activity will
be governed by elegant theories."48
Further, I think that pragmatism's philosophicalforce is pretty well
exhausted once this point about theories has been absorbed. But, in
American intellectual life, "pragmatism" has stood for more than just a
set of controversial philosophical arguments about truth, knowledge, and
theory. It has also stood for a visionary tradition to which, as it happened,
a few philosophy professors once made particularly important
contributions-a tradition to which some judges, lawyers, and law
professors still make important contributions. These are the ones who, in
their opinions, or briefs, or articles, enter into what Unger calls "openended
disputes about the basic terms of social life."4 9
48. Grey, supranote 1, at 814-15.
49. R UNGER, supra note 10.
1990] 1819