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The Pursuit of Pragmatism
Steven D. Smitht
Halfa decade ago, pragmatist legal scholars were wontto regard themselves
as voices crying in the wilderness. Robin West lamented the "demise ofpragmatic
liberalism,"1 which had been displaced by a more theoretical version of
liberalism founded on the ideal of neutrality. Anthony Kronman, writing in
support of a"prudentialism" thatpartook ofmany ofthe characteristics associated
with pragmatism,2 was similarly pessimistic about the "rationalist ethos
of our times."3
At about the same time, Ronald Dworkin was castigating legal pragmatism,
but he evidently believed that the object ofhis criticism was virtually defunct
already. "Many readers must have been shocked," Dworkin speculated, by the
very description oflegal pragmatism; and such readers would "be surprised that
anyone would propose pragmatism as an eligible interpretation of our present
[legal] practice. ' 4 Lest he be accused of brutalizing a straw man, Dworkin saw
fit to attempt a modest rehabilitation of legal pragmatism5 before he proceeded
to demolish it.
But history, as we know, can take sudden and surprising turns. Five years
after West and Kronman offered their dismal diagnoses, leading legal thinkers
are celebrating a "Renaissance ofPragmatism in American Legal Thought."6
Numerous legal scholars today are pleased to claim the title of pragmatist.7 If
t Professor ofLaw, University ofColorado. I thank Paul Campos, Fred Gedicks, Thomas Grey, Kerry
Macintosh, Chris Mueller, Robert Nagel, and Art Travers for reading and commenting on earlier drafts of
this article, and Pierre Schlag for numerous helpful conversations about its subject.
1. West, LiberalismRediscovered:A PragmaticDefinition ofthe Liberal Vision, 46 U. Pin'. L. REV.
673, 736 (1985).
2. Kronman, AlexanderBickel'sPhilosophyofPrudence,94 YALE LI. 1567 (1985). Kronman asserted
that prudentialism is "pragmatic and contextual." Id. at 1571.
3. Id.
4. R. DWORKIN, LAW'S EMPIRE 151-52 (1986).
5. Id. at 148-50.
6. Symposium: The RenaissanceofPragmatismin AmericanLegalThought, 63 S. CAL. L REV. 1569
(1990).
7. In addition to the West and Kronman articles and the Symposium articles noted above, a short list
of representative writings oflegal scholars offered under the banner of"pragmatism" would include Farber,
LegalPragmatismandthe Constitution,72 MiNN. L. REV. 1331 (1988); Grey, Holmes andLegalPragmatism,
41 STAN. L. REV. 787 (1989); Hantzis, LegalInnovation within the Wider IntellectualTradition:The
PragmatismofOliverlendellHolmes,Jr.,82 Nw. U.L. REV. 541 (1988); Stick, CanNihilismBe Pragmatic?,
100 HARV. L. REV. 332 (1986).
The Yale Law Journal
to these are added scholars who see law as a kind of "practical reason"'8 and
feminist scholars whose views overlap with pragmatism,9 the pragmatist camp
expands significantly. Indeed, even scholars who label themselves as critics of
legal pragmatism, such as Dworkin, may in reality be unconfessed pragmatists.1"
Thus it seems only a slight exaggeration to suggest that a movement
which five years ago included almost no one today appears to embrace virtually
everyone.
This surprising development raises dlfficult questions. What explains the
rush to legal pragmatism? And is the movement likely to produce beneficial
results for law and legal thinking? Those issues in turn provoke an even more
preliminary question: What exactly is legal pragmatism? This preliminary
question is particularly troublesome because there is an emerging suspicion that
ifwe look too closely for legal pragmatism, we might not find anything-or at
least not anything worth discussing." Thus, Thomas Grey writes that "much
pragmatist theory... [is] essentially banal. At its most abstract level it concludes
in truisms .... ,,12 In a similar vein, Richard Posner begins a recent
essay on legal pragmatism with a quotation from T.S. Eliot: "'The great
weakness of Pragmatism is that it ends up by being of no use to anybody.' -13
These suspicions are all the more troublesome because they come from thoughtful
scholars who proclaim themselves, with evident pride, to be pragmatists;
indeed, Grey goes so far as to say that legal pragmatism "is not just one theory
among others, but (for now, as far as we can see) the right theory, the best
theory."'
14
In dealing with such questions, the tasks of definition, explanation, and
evaluation cannot be nicely separated. It is difficult to discuss why legal
pragmatism has suddenly become appealing, or whether it has much of value
8. See, e.g., Eskridge & Frickey, Statutory InterpretationasPracticalReasoning,42 STAN. L. REV.
321, 323 (1990) (associating "practical reason" with pragmatism). Daniel Farber asserts that "pragmatism,"
"intuitibnism," "prudence,""institutionalism," and "practical reason" are roughly synonymous terms. Farber,
supranote 7, at 1334-35.
9. See Hantzis,supranote 7, at 543 (observing significant overlap between feminist jurisprudence and
legal pragmatism); Radin, The Pragmatistand the Feminist,63 S. CAL. L. REV. 1699 (1990) (discussing
relation between pragmatism and feminist jurisprudence).
10. See Radin, supranote 9, at 1722 (asserting that "it is clear that [Dworkin] is apragmatist ofsorts').
For my own analysis of Dworkin's pragmatism, see infra Section LB.
11. See Rorty, The BanalityofPragmatismand thePoetry ofJustice,63 S. CAL. L. REV. 1811, 1813
(1990)(suggesting that legal pragmatism is "banal" and thatdespite political differences there are no "interesting
philosophicaldifferences" dividing legal scholars as seemingly diverse as Roberto Unger, Ronald
Dworkin, and Richard Posner) (emphasis in original); see alsoSchlag, ContradictionandDenial,87 MICH.
L. REV. 1216, 1221 n.14 (1989) (noting "conceptual vacancy of the pragmatic approach" and suggesting
thatcurrent legal pragmatism is "just a glossy public relations cover for the promotion ofthe highly stylized
rhetoric of the lawyer's brief"). Schlag's criticism is directed not against "'true' pragmatism" but rather
against "the practice of pragmatism within the legal community." Schlag, Missing Pieces:A Cognitive
Approach to Law, 67 TEX. L. REV. 1195, 1223 & n.110 (1989) (emphasis in original).
12. Grey, supranote 7, at 814.
13. Posner, What HasPragmatismto OfferLaw?, 63 S. CAL. L. REV. 1653, 1653 (1990).
14. Grey, Hearthe OtherSide: Wallace Stevens and PragmatistLegal Theory, 63 S. CAL. L REV.
1569, 1569 (1990).
[Vol. 100: 409
Pursuit of Pragmatism
to offer, unless one has some notion ofwhat legal pragmatism is. But confronted
with the variety of ideas and themes associated with pragmatism,15 one is
almost forced to create order by picking those ideas and themes that are
valuable; for that reason, it is difficult to say what pragmatism is without
considering what pragmatism's value might be. The present Article thus
attempts to consider descriptive issues in conjunction with evaluative issues.
It returns at the end to the question of why legal pragmatism has achieved such
sudden popularity.
Sections I and II examine, respectively, two common understandings of
legal pragmatism: pragmatism as forward-looking instrumentalism, and pragmatism
as a hostility to abstract theory, formalism, and foundationalism. Each
section begins by focusing upon a prominent scholar who either criticizes or
supports that version of legal pragmatism. The critic in Section I is Ronald
Dworkin, and the proponent in Section II is Richard Posner. Paradoxically, it
turns out that Dworkin is best interpreted as a disguised proponent of legal
pragmatism (atleast as he understands it), while Posner routinely deviates from
the prescriptions of pragmatism (at least as he understands it). Nor are these
turn-abouts aberrational; each section argues that the problems apparent in
Dworkin's and Posner's positions are problems for legal scholars in general.
Section II suggests a different understanding of, and function for, legal
pragmatism. Legal pragmatism, I argue, is not in the end a theory about law,
or a set of propositions about law or legal theory. Nor is it merely a temperament
or attitude toward law or legal theory, although it may well reflect
particular temperaments or attitudes. Legal pragmatism is best understood as
a kind of exhortationabout theorizing; its function is not to say things that
lawyers and judges do not know, but rather to remind lawyers and judges of
what they already believe but often fail to practice. The pragmatist is a kind
of preacher. This characterization is not meant to disparage. Preachers serve
an essential function, and the recent rush to pragmatism suggests that many
scholars are finding the pragmatist's sermon timely and appropriate. Whether
they are correct in their assessment, however, remains an open question that
the Article's conclusion addresses briefly.
15. As Margaret Radin notes, there is not a single unitary pragmatism but rather "a number of
pragmatisms." Radin, supranote 9, at 1705; see also Posner, supra note 13, at 1653 (pragmatism is
"umbrella term for diverse tendencies").
1990]
The Yale Law Journal
I. PRAGMATISM AND THE USES OF THE PAST
Legal pragmatism is frequently depicted as an instrumental, forward-looking
approach to law.16 This is the aspect of pragmatism that Ronald Dworkin
assails.
A. Dworkin's Criticism
Dworkin's criticism of legal pragmatism can be presented in the form of
two claims, one descriptive and the other normative. His descriptive claim is
that pragmatism as a theory of law holds that legal officials--in particular,
judges--'do and should make whatever decisions seem to them best for the
community's future, not counting any form of consistency with the past as
valuablefor its own sake."'1 7 Dworkin's normative claim is that judges should
maintain continuity with the past, at least to some extent.18 Taken together,
the descriptive and normative claims can form the premises of a loose syllogism.
If pragmatism values only future good but not continuity with the past,
and if continuity with the pastis valuable, then pragmatism offers an inadequate
or undesirable theory of law.
The battle lines would be clearly drawn if the proponents oflegal pragmatism
would respond to this criticism by accepting Dworkin's description and
demurring to his normative claim. In fact, they appear to do just the opposite.
For example, in defending legal pragmatism against Dworkin's attack, Daniel
Farber agrees with Dworkin that continuity with the past is important in the
law. Dworkin's error, according to Farber, lies not in his normative position
but rather in his belief that pragmatists deny the value of continuity.19 Other
pragmatists seem to agree with Farber. Robin West argues that the liberal
pragmatist "shares the conservative's respect for history."' In Thomas Grey's
thoughtful discussion, an awareness that thinking is inevitably historically
situated is not only consistent with pragmatism, but indeed is an essential
defining characteristic.2'
At this point, it is tempting to conclude that there is no disagreement in
substance, and that only Dworkin's mistaken conception ofpragmatism distinguishes
him from the pragmatists.' But this diagnosis gets things exactly
16. See, e.g., Grey, supranote 7, at 802-04 (describing instrumental theme in pragmatism). For a
discussion of the relation between "pragmatism" and "instrumentalism" in legal theory, see R. SUMMERS,
INSTRUMENTALISM AND AMERICAN LEGAL THEORY 20-22 (1982).
17. R. DWORKIN, supra note 4, at 95 (emphasis added). For a similar understanding, see Lipldn,
Conventionalism, Pragmatism,andConstitutionalRevolutions, 21 U.C. DAVIS L. REV. 645, 654 (1988).
18. Dworkin's arguments for this claim are considered in more detail in infra Section LB.
19. Farber, supranote 7, at 1344-46.
20. West, supranote 1, at 680.
21. Grey, supranote 7, at 798-800.
22. In this vein, Margaret Radin argues that Dworkin is a pragmatist (albeit a complacent, objectionable
sort ofpragmatist), and that he avoids the label only by "gerrymanderfing] the word 'pragmatism' to mean
[Vol. 100: 409
Pursuit of Pragmatism
backwards. In reality, Dworkin's description is plausible as far as it goes; it is
Dworkin's normative claim that goes astray. Indeed, one has reason to doubt
that Dworkin himself can actually mean what his normative claim seems to
assert. Thus, ifDworkin is really an unconfessed pragmatist-and I think he is
by his own definition--that is not because his description of pragmatism does
not fit, butrather because Dworkin is best interpreted as accepting the view that
he purports to criticize.
Start with the descriptive claim: Pragmatism is a theory oflaw that asserts
that "judges do and should make whatever decisions seem to them best for the
community's future, not counting any form of consistency with the past as
valuable for its own sake."3 The key words here are "valuable for its own
sake." Pragmatists know that judges are in part products of their history; they
cannot, even if they would like, wholly escape the past.O Pragmatists also
acknowledge thatjudges may find the past to be useful, as a source of guidance,
perhaps, or as a source of rhetorical material for rationalizing present
decisions. And Dworkin knows full well that pragmatists respect the past for
its present value; indeed, he discusses at some length the ways in which a
pragmatist judge might make use ofthe past, or might talk as ifshe were bound
by the past.5
But this kind of pragmatic use of the past does not defeat Dworkin's
descriptive claim. The pragmatist judge maintains continuity with the past for
two reasons: first, because she cannot help it and, second, because she finds
the past instrumentally useful in promoting future goods. Neither of these
reasons leads the judge to respect the past as "valuable for its own sake."'
In order to show that Dworkin's description does not fit, the pragmatist would
have to demonstrate that he favors maintaining continuity with the past even
when such continuity is avoidable and serves no present or future interests.
It seems unlikely that the pragmatist can make such a showing, because in
fact pragmatism does not value the past "for its own sake." An observation by
Holmes, whom current legal pragmatists commonly regard as a kind ofpatron
crass instrumentalism." Radin, supranote 9, at 1722. I agree with Radin's conclusion, but for different
reasons; Dworkin's definition of pragmatism is at least a plausible one, and he is best interpreted as a
pragmatist by hisown definitionof pragmatism. See infraSection LB.
23. R. DWORKIN, supra note 4, at 95.
24. See supranotes 19-21 and accompanying text.
25. R. DWoRKiN, supra note 4, at 147-58.
26. Since the following discussion puts considerable weight on the idea expressed in these words, it
is worth noting that the phrase "valuable for its own sake" is not merely an inadvertent or unfortunate turn
of phrase, but rather is essential to Dworkin's argument. Because Dworkin agrees that pragmatists would
use the past for instrumental purposes, it is only their refusal to regard the past as "valuable for its own
sake" that distinguishes them from the nonpragmatic position that Dworkin advocates. Of course, the
particular words are not critical; sometimes Dworkin uses other words to express essentially the same idea.
See id.at 147 (pragmatism denies thatpeople have legal rights "just in virtue of" past decisions); id.at 151
(pragmatism "denies that past political decisions in themselvesprovide anyjustification for either using or
withholding the state's coercive power") (emphasis added).
1990]
The Yale Law Journal
saint for the movement,27 is revealing: "[Continuity with the past is only a
necessity and not a duty."8 As Holmes' statement suggests, the pragmatist
recognizes that continuity with the past is necessary, but he does not regard
such continuity as any kind of obligation, or as something "valuable forits own
sake." Indeed, insofar as he can escape the past (and can benefit from the
escape), the pragmatist is ready and eager to do so.29 Dworkin's description
seems right on point.
This conclusion suggests that pragmatists like Farber have selected the
wrong strategy. Rather than quarreling with Dworkin's descriptive claim, they
should challenge him to support his normative claim. Why, after all, should
anyone respect the pastexcept forinstrumental purposes? The question requires
a closer examination of Dworkin's position.
B. Dworkin the Pragmatist?
Dworkin develops his argument against legal pragmatism in his examination
of what he views as three competing theories or general interpretations of law,
which he calls conventionalism, pragmatism, and law as integrity. Of these
three, he argues, pragmatism stands alone in denying that judicial decisions
have any obligation to maintain continuity with the past." It might seem,
therefore, that the pragmatist judge or scholar would be easy to spot; but the
matter is not so simple. As noted, Dworkin recognizes that pragmatists may
make instrumental use ofthe past in promoting future good. In order to promote
predictability and consistency in the law, for example, they would likely tend
to follow precedent and to respect legislation.3' The pragmatist might also
recognize and enforce "as-if rights."32 Thus, the pragmatist judge would usually
behave much like judges committed to the "conventionalist" or "integrity"
theories of adjudication.
Indeed, the pragmatist judge or scholar might even talk like his otherminded
counterparts. Dworkin describes a "sophisticated pragmatist" who, in
pursuing his objective of promoting future good, finds it useful to "disguise"
27. See Grey, supranote 7; Hantzis, supra note 7. Grey describes Holmes as "the first and most
important legal pragmatist." Grey, supra note 14, at 1571-72. But see Kelley, Was Holmes a Pragmatist?
Reflections on a New Twist to an Old Argument, 14 S. ILL. L.J. 427 (1990) (arguing that Holmes' legal
philosophy was positivist but not pragmatist).
28. O.W. HOLMES, COLLECTED LEGAL PAPERS 211 (1920). The remarks that follow clarify the point:
As soon as a legislature is able to imagine abolishing the requirement of a consideration for a simple
contract, it is at perfect liberty to abolish it, if it thinks it wise to do so, without the slightest regard
to continuity with the past. That continuity simply limits the possibilities ofour imagination, and settles
the terms in which we shall be compelled to think.
Id.
29. Cf.West, supranote 1, at 680 (arguing that "[tlhe pragmatic liberal is critical, not accepting, of
historical traditions and institutions").
30. R. DWoRmIN, supranote 4, at 95.
31. Id. at 154-55.
32. Id. at 154.
[Vol. 100: 409
Pursuit of Pragmatism
his pragmatist philosophy and to "pretend" to regard statutes and judicial
precedents as legally binding. Called upon to decide a legal controversy, this
sophisticated pragmatist would "offer his decision as a surprising
'interpretation' ofthe statute or precedent when itis really nothing ofthe kind."
He might do this if he believed that "this 'noble lie' will help him serve [the
community's] true interests better in the long run." Dworkin has empathy for
this pragmatist-in-disguise, observing that the sophisticated pragmatist acts "for
reasons he would believe fully respectable ... ." Moreover, the pragmatist is
as honest as he can be; he would "make his conception [of law] as openly
pragmatic as he dares, disguising only those elements ... that the community
is not quite ready to accept."33
At this point, a wicked suspicion arises: how do we know that Dworkin
himself is not the "sophisticated pragmatist" that he describes with such apparent
insight? Dworkin is renowned, after all, for getting "good" results to legal
questions by advancing "surprising 'interpretation[s]"' of statutes or precedents.34
Of course, Dworkin protests that he, unlike the pragmatist, "takes
rights seriously"; he does not regard rights as mere "as if' constructions for
promoting the public good. Then again the sophisticated pragmatist, as Dworkin
describes him, would offer the same protestation.
Moreover, Dworkin is hardly averse to "as if' thinking; indeed, such
thinking permeates his own law as integrity theory. Law, he argues, should be
regarded "as if' it were the work of a single author and "as if' it reflected a
single coherent vision ofjustice35 The political community should be regarded
"as if' it were a person. 36 In view of Dworkin's pervasive use of simile in
his own analysis, it is difficult to take too seriously his concern about the
pragmatist's "as if' view oflegal rights. Indeed, insofar as the pragmatist judge
actually enforces the "as if" rights, it is difficult to discern the difference
between an "as if' right and a "real" right. In short, if the sophisticated pragmatist
were to write a book about legal theory, making his position "as openly
pragmatic as he dares, disguising only those elements.., that the community
is not quiteready to accept," the book might look very much like Law'sEmpire.
So far, however, the suggestion that Dworkin's book might be a study in
veiled pragmatism is only a suspicion, not a conclusion. How might we go
33. Id. at 154-55.
34. Daniel Farber lists Dworkin as a leading example of "brilliant" constitutional theorists, by which
he means theorists who, while purporting to do interpretation, generate insights "that would not occur to
most people." Farber, The CaseAgainst Brilliance,70 MINN. L. REV. 917, 924-25 (1986). For example,
Dworkin endorses the Supreme Court's decision upholding an affirmative action program in United
Steelworkers v. Weber, 443 U.S. 193 (1979), and he purports to endorse also the majority opinion in the
case. R. DWORKiN, A MATrER OF PRINCIPLE 316-31 (1985). In doing so, however, Dworkin rejects the
opinion's "explicit" argument, which is "fallacious" and indeed commits the same error which Dworkin
exposes in Justice Rehnquist's dissent, and instead endorses a different argument-one that Dworkin attributes
to the majority but that he himself must "reconstructi] from independent remarks" in order to make the
majority's position "more explicit." Id. at 326-27.
35. R. DWORKIN, supranote 4, at 219, 225.
36. See infra notes 51-52 and accompanying text.
1990]
The Yale Law Journal
about confirming or discrediting that suspicion? One approach would look for
clues about Dworkin's personal or subjective intentions. But that approach is
unpromising. Dworkin himself has persuasively described the difficulties of
capturing, or even characterizing, the author's intent behind a text. 7
Moreover,
Dworkin suggests that authorial intent would not necessarily be dispositive of
textual meaning even if that intent could be ascertained.38
Indeed, the finitude
of an author's understanding and the possibility of self-deception39
suggest
that an author might have only an inadequate understanding of his own work.
Instead of focusing on Dworkin's subjective intent therefore, we should
be charitable (as Dworkin himself insists) and seek the interpretation that makes
the work "the best it can be."' The critical question, then, is whether Dworkin
offers convincing justifications for the proposition that legal pragmatism rejects,
namely that the law should regard continuity with the past as "valuable for its
own sake." If he does, then we would not be justified in interpreting his book
as disguised pragmatism, because that would not make the book the best it can
be.
Dworkin argues first that pragmatism does not adequately describe our
existing legal practice with regard to statutes and judicial precedents. He
concedes that a pragmatist judge would purport to follow statutes or judicial
precedents in order to protect expectations and to promote predictability in the
law. But the judge would have no reason, Dworkin argues, to pretend to derive
her decisions from statutes or precedents when these are not clear, and thus
have not given rise to expectations. In fact, however, our judges do try to get
answers even from unclear statutes and precedents. Thus, Dworkin concludes
that pragmatism does not "fit" current legal practice.41
But this ostensible lack of "fit' seems negligible at best. To mention just
one obvious rejoinder: in a political culture suspicious of judicial lawmaking,
pragmatist judges might sensibly try to achieve greater respect for their decisions
by disguising those decisions as interpretations of past enactments, even
when those enactments are unclear. It is interesting to compare Dworkin's
argument here with his response to a much more serious lack of "fit" between
existing legal practice and his own law as integrity theory. Dworkin's theory
asserts that judges should treat the law as expressing "a single and comprehensive
vision of justice,"'42
or a "single, coherent set of principles."4 3
Do our
judges in fact think of law in this way? It seems not; at least, Dworkin worries
37. See, e.g., R. DWORKIN, supranote 4, at 53-62.
38. Id.
39. Cf.id. at 258 ("There is, in this counsel, much room for deception, including self-deception.").
40. Dworkin holds that interpretation should always attempt to make its object "the best it can be."
Id. at 62, 77, 90, 255.
41. See id. at 158-60. But cf. Grey, supra note 14, at 1590 (arguing that pragmatism is "implicit
working theory of most good lawyers"); Posner, supra note 13, at 1666 (asserting that "most American
judges have been practicing pragmatists").
42. R. DWORKIN,supra note 4, at 134.
43. Id. at 166.
[Vol. 100: 409
Pursuit of Pragmatism
that the entrenched practice of dividing law into compartments such as contracts,
torts, and property, with each compartment governed by distinctive
doctrines and principles, presents aproblem of"fit" fora theory which suggests
that law should be regarded as expressing a single set of principles. But he
argues that such compartmentalization is permissible because "[tihe boundaries
between departments usually match popular opinion." Thus,
compartmentalization "promotes a deeper aim of law as integrity" by "allow[ing]
ordinary people as well as hard-pressed judges to interpret law within
practical boundaries that seem natural and intuitive."45
But this argument is beside the point. The argument may justify
compartmentalization,but itdoes notjustify the law asintegrity theory; indeed,
the justification works by showing that there are good reasons not to treat law
as reflecting a singleset ofprinciples. Moreover, justified or not, our pervasive
compartmentalization shows that our practice does not in fact regard law as
expressing asingle coherent set ofprinciples. Dworkin's argument does nothing
to rescue the law as integrity theory from the charge that the theory does not
fit existing legal practice. Thus, the problems of "fit" confronting a pragmatist
theory of law seem negligible in contrast to those that afflict Dworkin's "integrity"
theory.
A second rationale that attempts to support a deeper obligation to the past
than that recognized by pragmatism enlists the aid of Dworkin's well-known
"chain novel" analogy. The analogy likens the judge to a writer involved in a
multimember project in which one author writes the first chapter of a novel,
then passes it on to another author who will write the second chapter, and so
on. Although each successive author must write her chapter as well as she can,
she must also be respectful of what previous authors have done, striving to
maintain continuity in plot and characterization.46
The chain novel analogy provides an intriguing illustration ofwhat interpretation
means in Dworkin's theory. However, if the analogy is intended as an
argument that judges should count continuity with the past as "valuable for its
own sake," then the argument fails for at least two reasons. In the first place,
the relevance of the "chain novel" analogy to law is dubious; and Dworkin
could establish its relevance only by first proving the point for which the
analogy is offered. In essence, Dworkin has simply selected an activity (writing
novels) in which an overarching unity is assumed to be an accepted critical
criterion, and then transferred the same evaluative criterion to a different
activity (law) in which the desirability of overarching unity is at issue. But this
move merely begs the question: is this kind of unity desirable in law? If it is,
then law is like novel writing in this respect. But that is precisely what
Dworkin must show, and his position is not aided at all by proposing an
44. Id. at 252.
45. Id.
46. Id. at 228-32.
1990]
The Yale Law Journal
analogy that will become apposite, if ever, only after he has already proven his
case.
More fundamentally, Dworkin's analogy does not succeed in showing even
that authors in a chain novel have any obligation to respect the past "for its
own sake." The chain novelist should maintain continuity because she iswriting
forfuture readers who will read the book as a whole and will be disappointed
ifthe book is incoherent. Continuity with the past is desirable only to promote
a future good; and if continuity ceases to serve that future good then the value
ofcontinuity will likewise disappear. Suppose, for example, that mature readers
actually prefer a book with frequent ruptures of continuity; they find it more
interesting, or challenging, or realistic. The chain novelist would then be illadvised
to strive for overall continuity; readers will condemn such a book as
artificial or boring. Or suppose that the author could be assured that readers of
the other authors' chapters will not read her chapter, and that readers of her
chapter will not read other chapters. It would then be senseless to strive for
consistency of plot and characterization if such consistency means that the
present chapter-the only chapter herreaders will ever see-will be less interesting.
These supposed situations may seem far-fetched;47 but that observation
merely shows that in novel writing, the future good probably entails some kind
of overall literary coherence; it does not show that continuity with the past is
obligatory in any different sense, or "valuable for its own sake."
Dworkin grounds his more extensive argument against pragmatism and in
favor of law as integrity in his views about community. He asserts that only
by regarding law as the expression of a single, coherent set of principles can
we achieve a "community of principle" whose law will have legitimacy and
moral authority." Conversely, if one views law as serving conflicting principles
and interests-and thus as incorporating compromises, accommodations of
competing moral visions, and "checkerboard" solutions- then the "community
ofprinciple" will not be achieved, and law's authority will suffer.49 This argument
is controversial, of course; but the immediately pertinent point is that if
Dworkin's argument is sound, there is no obvious reason why a legal pragmatist
(in Dworkin's sense ofthe term) could not embrace it and still maintain
her pragmatic belief that we should respect the past only insofar as itis useful
for promoting future good. The reason we should try to treat law as the expression
of a single, coherent set ofprinciples, the pragmatist would argue, is that
by doing so we promote the best kind of community. Thus, rather than standing
inoppositionto pragmatism, law as integrity could be subsumed withinpragmatism
(in much the same way that Dworkin shows that conventionalism can be
in large measure subsumed within pragmatism 0 ).
47. Although, as some modern literature demonstrates, perhaps notas far-fetched as one mightsuppose.
48. R. DWORKIN, supra note 4, at 188, 211-16.
49. Id. at 178-79, 212-13.
50. Id. at 147-50.
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Pursuit of Pragmatism
This outcome is not affected by Dworkin's elaborate "personification"
argument, which contends that we can-and often do-treat a group or an entire
community as if it were a "person," and hence capable of holding principles
independent of those held by its members.5' In the first place, Dworkin makes
it clear that he is not saying the community is a person, but only that we can
treat a group or community as if it were a person.52 This contention seems
plausible enough; we can, at least for some purposes, think about a group as
if it were a person. But the critical question remains: should we? Personifying
a community might serve some valuable purpose,53 but that is just the point:
a proponent ofpersonification needs to explain what purpose would be served
by adopting Dworkin's "as if"view of the political community.Hence, far from
defeating pragmatism, the possibility of personification requires pragmatic
justification.
Moreover, even if a convincing nonpragmatic justification for personification
could be offered (or, even if a political community actually were a "person"
in some ghostly sense), the controversy about pragmatism would remain
as viable as ever.'4 After all, a "person" can adopt a pragmatic philosophy
just as easily as a legal community can. I can decide, for example, to follow
my own past decisions and practices only insofar as this course serves to
promote my present and future good. Indeed, it would seem irrational for an
individual to choose to adhere to past practices when striking a new course
would be more beneficial. Thus, analogizing a community to a person offers
no reason for treating the past as "valuable for its own sake," but rather serves
only to underscore the unattractiveness of that position.
In sum, the essential difference between legal pragmatism and law as
integrity, as Dworkin presents those positions, is that pragmatism, while
respecting the past for instrumental purposes, does not count continuity with
the past as "valuable for its own sake." But Dworkin provides no persuasive
reasons that show that the law shouldregard the past as "valuable for its own
sake." The failure ofhis arguments on this issue makes ittempting to interpret
his book as an exercise in veiled pragmatism. Needing to conceal its pragmatism
from a community that is "not quite ready to accept" it, the book's
analysis purports to assail pragmatism-but with arguments that, upon close
51. Id. at 167-75.
52. Id. at 168 (suggesting that we should think "as ifa political community really were some special
kind of entity," and disavowing the notion that personification implies "some spooky, all-embracing mind
that is more real than flesh-and-blood people") (emphasis added).
53. On the other hand, such personification might represent an unfortunate confusion of thought. Cf.
Cohen, TranscendentalNonsense and the FunctionalApproach, 35 COLUM. L. REV. 809, 811 (1935)
(ridiculing courts that try to determine whether state hasjurisdiction over corporation by "assum[ing] that
it travels about from State to State as mortal men travel"). Or group personification might have pernicious
consequences, as when one member of a national or ethnic community is blamed or punished for actions
of other members of that community.
54. Dworkin's argument appears to assert that the possibility ofpersonification is a necessary condition
for law as integrity, not that personification necessarily entails law as integrity. See R. DWORKIN, supra
note 4, at 187.
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The Yale Law Journal
inspection, do not support the book's stated conclusion. From this perspective,
Dworkin is notjust making bad arguments; rather, he is dropping hints that will
lead reflective readers to the correct interpretation, albeit one that he must for
the present purport to disavow. Whether this reflects Dworkin's subjective
intent remains, of course, uncertain.55 Whatever Dworkin may have had in
mind, an interpretation presenting him as pragmatist is persuasive because that
interpretation makes Dworkin the best he can be.
C. IrresistiblePragmatism?
The failure of Dworkin's arguments against pragmatism plainly do not
reflect any lack of dialectical prowess on his part. It seems, rather, that
Dworkin's criticism ofpragmatism undertakes alabor for which even herculean
powers are inadequate. If pragmatism is understood as asserting that we-or
judges-should do what will produce the most good in the future, using the past
but not counting it as valuable for its own sake, then the case for pragmatism
seems almost overwhelming.
Let us begin with two propositions that, if they do not quite qualify for the
lofty status of"self-evident truths," at least come awfully close. First, a person
ought to choose and act so as to produce more rather than less good. Second,
any given choice or action can affect what happens in the future but cannot
alter what, at the time of the action or decision, has already happened in the
past.
Although objectors might find grounds to quarrel with these propositions,
most objections can be deflected by clarifying what the propositions assert; and
any remaining objections will probably have little appeal anyway. The first
proposition, which asserts that a person ought to choose and act so as to
promote more rather than less good, is little more than a corollary to what
Aquinas called the first principle of practical reasoning: Do good, and avoid
evil.56 If one should do good rather than evil, then it seems to follow that one
should do more rather than less good. If someone has a choice between A and
B, and if A will produce twice as much good as B, will anyone deny that A
is the better choice?
One objection to this reasoning might be that people disagree fiercely over
what is good. They also disagree about the best ways ofpursuing the good. But
the first proposition neither denies nor takes sides in such disputes. It does not
say, for example, whether goods are irreducibly plural, as in John Finnis'
theory,57 or reducible to a single scale of goodness, as in Bentham's
55. See supranotes 37-39 and accompanying text.
56. T.AQUINAS, SUMMA THEOLOGICA, Q.94, A.2, reprintedin THE POLITICAL IDEAS OF ST.THOMAS
AQUINAS 45 (D. Bigongiari ed. 1953).
57. J. FISNIS, NATURAL LAW AND NATURAL RIGHTS 92-94 (1980).
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Pursuit of Pragmatism
thought.58 Nor does it say whether the best way to promote good is for individuals
to make a fresh calculation in each case, as in act utilitarianism, or for
individuals to adopt and follow general rules, as in rule utilitarianism.59 A
critic might conclude that the first proposition does not particularly help resolve
specific ethical or legal controversies. But that objection is beside the point,
since the first proposition does not purport to resolve such controversies.
A different and more directly challenging objection, arising out of a
deontological ethical position, might assert that "goods" or "the good" should
not provide the criteria for choice and action; instead, one should act in accordance
withprinciples declaring what is "right." But this deontological contention
may plausibly be construed in ways that make it unthreatening to the
proposition it purports to challenge. For example, "right," or "rights," may be
understood as one species-perhaps an especially important species-of
"good."60
Or principles of "rightness" may be viewed as rules or generalizations
designed to further the realization of "goods."'" By either of these constructions,
the deontological contention is fully consistent with the proposition
that one should act to produce more rather than less good.
Of course, the deontologist might refuse to accept these reconciling constructions;
the "right" is not, he might insist, either a kind of good or a way
of promoting good.62 But if the deontologist takes that position, then the
deontological position loses much of its appeal. If the "right" is neither a kind
of good nor a way of promoting good, then why should anyone feel obliged
to respect it? The deontologist can disconnect the right from the good only at
the cost of undermining whatever reasons lead us to feel a commitment to the
right in the first place.63
A third objection might assert that individuals are entitled to pursue their
self-interest, even when doing so produces less overall good.' One kind of
response would simply reject this objection outright: One is never entitled to
pursue one's own interests to the detriment ofthe overall good. A second kind
of response would seek to reconcile the objection with the initial proposition.
Individuals may have a right to pursue their self-interest, but only because
encouraging individuals to pursue their self-interest is generally the best way
58. SeeJ. BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OFMORALS AND LEGISLATION 1-23 (1948)
(reprint of 1823 ed.) (arguing that happiness is fundamental value underlying all human good and moral
systems).
59. See Rawls, Two Concepts ofRules, 64 PHIL. REV. 3, 18-29 (1955).
60. For an argument to this effect, see Laycock, The Ultimate Unity ofRights and Utilities,64 TEX.
L. REv. 407 (1985).
61. See G.E. MOORE, PRINCU'IA ETHICA 146-48 (1954) (1st ed. 1903) (arguing that"'right' does and
can mean nothing but 'cause of a good result"').
62. See generallyW.D. Ross, THE RIGHT AND THE GOOD (1930).
63. In a similar vein, J. D. Goldsworthy argues that "any adequate explanation of morality will refer
to some good or set ofgoods which morally virtuous behavior might help an agent achieve." Goldsworthy,
God orMackie? The Dilemma of SecularMoralPhilosophy,30 AM. 1. JURISPRUDENCE 43, 54 (1985).
64. For a useful discussion of the validity and limits ofself-preference, see J. FNNIS, supra note 57,
at 107-09.
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The Yale Law Journal
to promote the overall good.65 Or the proposition and the objection might be
reconciled in a different way: one might admit that a "right" to pursue one's
self-interest at the expense of the general good exists, but argue that one
nonetheless ought not to do so (just as one ought not to market pornography
even though one may have the "right" to do so).
If these responses fail to deflect the objection, I can only try to minimize
its force by observing that even if one has a right to pursue one's self-interest
at the expense of the overall good, that right is not likely to pertain to those
persons with whom the present discussion is concerned, specifically, judges and
public officials acting in their official roles.66 In the end, therefore, the force
of the first proposition seems undeniable: Individuals, and especially public
officials, should choose and act in ways that produce more rather than less
good.
The second proposition, which asserts that our present choices and acts can
affect the future but cannot alter what happened in the past, seems even less
likely to provoke genuine controversy. Not only the economic wisdom about
"sunk costs," but also popular adages about, for example, spilt milk reflect the
proposition; and it is effectively expressed in the logically unassailable maxim,
"what's past is past." Of course, we can, and often do, reinterpretthe past. And
if one wanted to be clever, one might argue that since the past exists only in
our memory and our interpretations of it, by reinterpreting the past we do in
fact alter it.67
Such an argument plays on the paradoxes of tense inherent in
talking about the pastas something that exists in the present. But the argument
does not really challenge the essential proposition. Millions of people suffered
under Hitler, and no amount of reinterpretation on our part can retroactively
relieve that suffering. "The Moving Finger writes; and, having writ\ Moves
on."-
68
In sum, the two propositions have an obvious plausibility and an ability to
deflect or withstand apparent objections. And if the two propositions are
accepted, the logical conclusion with respect to law is-legal pragmatism. Legal
officials should choose and act to promote the greatest good. And since the only
65. See 2 F. HAYEK, LAW, LEGISLATION, AND LBERTY 145 (1976) (arguing that "in fact we generally
are doing most good by pursuing gain.... [The entrepreneur] is led to benefit more people by aiming for
the largest gain than he could if he concentrated on the satisfaction of the needs ofknown persons.").
66. Cf.R. DWORKIN, supranote 4, at 174 ("We allow officials acting in their official capacity no such
area [in which they may act for personal advantage] at all. They must, we say, treat all members of their
community as equals, and the individual's normal latitude for self-preference is called corruption in their
case.").
67. It would seem even more plausible to conclude, however, that if the only past that exists is the
one that exists in our memory and interpretations, then the past in the ordinary sense does not "exist" at
all. In that case, the second proposition would be intact: If the past does not exist, then clearly our present
acts cannot change it.
68. "[IMor all your Piety nor Wit\ Shall lure it back to cancel half a Line,\Nor all your Tears wash
out a Word of it."
THE RUBAIYAT OF OMAR KHAYYAM 170, verse 7! ('.citzgerald trans. 1952).
[Vol. 100: 409
1990] Pursuit of Pragmatism 423
good that they have any power to affect lies in the future,69 it follows that they
should act to promote the future good. Continuity with the past is valuable
insofar as it helps to promote good in the future. If it does not serve that
purpose, then continuity with the past is not valuable.
This analysis suggests that legal pragmatism, as Dworkin defines it, is, or
at least is close to being, a kind ofirresistible truth. Of course, that truth leaves
a great deal of room for various kinds of disagreements. All the standard
disputes about what things are good and how society should realize goods
remain intact; pragmatism does nothing to disturb those disputes. Whether
judges can better promote the future good by following rules, by employing
"situation sense," or by recognizing and enforcing "rights," remains a viable
controversy. Diverse views about how to use the past will also continue to
flourish; both the Burkean who regards history as a distillation of human
wisdom and the cynic who follows Voltaire in believing that history is largely
a record ofhuman depravity can claim the label ofpragmatist. But pragmatism
does expose one kind of debate as frivolous. That debate asks whether the law
is obligated to count continuity with the past as "valuable for its own sake."
It is, in other words, the debate about pragmatism itself.70
The present analysis thus suggests that everyone is virtually compelled to
be, at some level, a pragmatist. Legal pragmatists like to claim that their
movement is antifoundational,71 but pragmatism itself is in one sense a kind
of foundation for political and legal discussion. Or, to paraphrase Dworkin,72
69. Itshould be apparent that Iam treating "the present" as an infinitesimally thin line separating past
from future. If it seems more natural to treat "the present" as a more extended period, then references to
"the future" can be understood to mean "present and future."
70. As this essay was nearing completion, I came across Anthony Kronman's thoughtful article entitled
Precedentand Tradition, 99 YALE I.J. 1029 (1990). Kronman is even more insistent than Dworkin in
pressing the claim that we should respect the past "for its own sake," or "merely because it is the past,"
or "simply in virtue of its pastness," id. at 1036, 1039, 1042, and he is not satisfied even with utilitarian
and deontological positions advocating a strong doctrine ofprecedent because these arguments do notrespect
the past "for its own sake." Id. at 1036-43. Kronman's argument is subtle and provocative, and any
peremptory response seems inappropriate. Nonetheless, although much of what Kronman says seems not
only correct but even wise, I remain tentatively unconvinced that his argument provides a good reason to
respect the past "for its own sake." Kronman builds on Edmund Burke in arguing that the preservation and
advance of human culture depend upon continuity with the past. We should therefore respect the past for
at least two reasons. First, the past is a source of accumulated wisdom; the culture which it bequeaths to
us is therefore valuable. ("A failure to honor the past is... foolish or imprudent-the stupidly shortsighted
waste of its accumulated wisdom... "'Id.at 1066.) This is an instrumentalist argument, and a pragmatist
could accept it without forsaking his pragmatism. Second, and more essentially, Kronman argues that it is
culture which makes us distinctively human, and which separates us, as Aristotle said, from the beasts and
the gods. Thus, "[w]e must, ifwe are to be human beings atall, adopt toward the past the custodial attitude
Burke recommends." Id.But this contention seems less plausible. Would a society that in an instrumental
spirit chose to preserve only as much ofthe past as suited its presentpurposes cease to be human? Kronman
argues that we in fact live in just such a society-that the traditionalism he recommends is not merely
unpopular but virtually incomprehensible. Id. at 1043-47. Have we all then ceased to be human? And if
so, is it clear that "humanness" in the sense Kronman intends is something we want or ought to recover?
71. See infra note 73.
72. See R. DWORKIN, supra note 4, at 360: "Every conscientious judge, in either of the supposed
camps, is an interpretivist in the broadest sense.... The great debates of constitutional method are debates
within interpretation, not about its relevance."
The Yale Law Journal
every conscientious judge and scholar (including Dworkin) in any of the
supposed camps, is a pragmatist in the broadest sense. The great debates are
debates within pragmatism, not about its relevance.
The conclusion that legal pragmatism is irresistible might seem, at least for
self-proclaimed pragmatists, too good to be true. In fact, the conclusion is too
true to be good. Pragmatism in the sense discussed above is irresistible because
it is platitudinous. If the truths offered in the name of pragmatism can be
uniformly accepted without disturbing any existing debates (except for the
misconceived debate about pragmatism itself), then it would seem that pragmatism
is not useful in resolving legal problems. Ironically, a position that has
insisted that an idea is true only to the extent that it is useful would be convicted
under its own standard. Indeed, if everyone is necessarily apragmatist, then
it seems that pragmatism is not a distinct legal theory at all. Rather than accept
this unhappy conclusion, we ought to consider a different interpretation of legal
pragmatism.
II. LEGAL PRAGMATISM AND THE USES OF THEORY
The previous section considered a view that focuses on legal pragmatism's
attitude toward the past.But scholars also commonly describe pragmatism in
terms of its attitude toward theory. This description is apt for depicting much
contemporary legal pragmatism, which expresses a deep distrust for "abstract
theory," "grand theory," "formalism," or "foundationalism." I The antiformalist
theme is conspicuous in a recent essay by Judge Richard Posner.74
73. See, e.g., Farber, supranote 7, at 1342 (opposition to "[floundational grand theory"); Grey, supra
note 14, at 1571 (describing "pragmatist suspicion of foundational theorizing"); Hantzis, supranote 7, at
588, 594 (distrust of "abstract doctrine" and "abstract theories"); Kronman, supra note 2, at 1570, 1590,
1605 (hostility to "[a]bstract theories," "abstractedness," "abstract theorizing"); Radin, supranote 9,at 1707
(pragmatism is "a commitment against abstract idealism, transcendence, foundationalism, and against
atemporal universality").
It would probably be an exercise in false precision to try to distinguish carefully among these terms.
The philosophical attack on "foundationalism" takes as its target the notion that there is some "theory of
knowledge," or Cartesian-type method, which will produce certain or reliable knowledge. See R. RORTY,
PHILOSOPHY AND THE MIRROR OF NATURE 132 (1979) [hereinafter R. RORTY, MIRROR]. In legal academic
writing, the target is the notion that "theory" can provide us with knowledge ofthe law, or of what legal
texts mean, or of how cases should be decided. In this sense, terms such as "formalism," "grand theory,"
and "foundationalism" seem to mean approximately the same thing. Onewould like to say that the meaning
ofthese terms will become clearer as thediscussion proceeds. But thereality may bejust the opposite: What
will become clear as the discussion proceeds is that it is not at all clear just what legal pragmatists are
opposing when they inveigh against formalism or foundationalism.
74. Of course, Posner ranks among the most prolific legal scholars ofour time, and it would thus be
unfair tosuggest thathis essay on pragmatism, see Posner,supranote 13, fully or finally represents Posner's
thinking on thesubject It surelydoes not. Fora more detailed presentation ofPosner's jurisprudential views,
see R. POSNER, THE PROBLEMS OF JURISPRUDENCE (1990). The essay nonetheless merits examination in
its own right both because itconstitutes a succinct exposition ofpragmatism as Posner understands it, and
because it illustrates a common pitfall that, I will argue, pragmatists inevitably encounter.
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Pursuit of Pragmatism
A. Posner'sPredicament
Posner proclaims himself a pragmatist, and while noting the difficulties of
defining pragmatism in any precise way,75 he emphasizes antiformalism as
a central and valuable feature ofpragmatic thought.7
1 This hostility to formalism
gives legal pragmatism practical significance, in Posner's view, because
it provides grounds for criticizing and discarding some kinds of solutions to
legal problems. In particular, Posner attacks as formalist those approaches to
constitutional interpretation or statutory construction that are commonly called
"originalist." 77
But, Posner's hostility to formalism seems less than devout. Perhaps he is,
in fact, not fond of the particular version of formalism he criticizes-i.e.,
"originalist" construction 8-but that is hardly decisive; formalism comes in
a variety of shapes and sizes. Posner's efforts to make law more scientific79
and his well-known attempts to resolve a multitude of legal problems and to
unify numerous and diverse areas oflaw within the regime oflaw and econom-
ics"0
are arguably instances-indeed, extreme instances-of formalist thinking.81
And although Posner emphasizes the pragmatic distrust for "metaphysical
75. While noting thatpragmatism is "an umbrella term for diverse tendencies," Posner, supranote 13,
at 1653, he finds three elements to be characteristic of pragmatist thought: (1) "a distrust ofmetaphysical
entities"; (2) "an insistence that propositions be tested by their consequences"; and (3) "an insistence on
judging our projects, whether scientific, ethical, political, or legal, by their conformity to social or other
human needs rather than to 'objective,' impersonal criteria." Id. at 1660-61.
76. Id. at 1656, 1663-64.
77. Id. at 1664-67.
78. Posner has attimes soundedvery much like an originalist inhis views on the interpretation oflegal
texts. See, e.g., Posner, Legal Formalism, Legal Realism, and the Interpretationof Statutes and the
Constitution, 37 CASE W. RES. L. REV. 179, 189-90 (1986-87); Posner, Law andLiterature:A Relation
Reargued,72 VA. L. REV. 1351, 1361-75 (1986) [hereinafter Posner, Literature].But he indicates that his
adoption of a pragmatic approach to interpretation is a recent development. Posner, Legislation and its
Interpretation:A Primer,68 NEB. L. REV. 431, 434 (1989) [hereinafter Posner, Legislation].
79. Posner has "encourage[d] the application ofscientific methods to the study of the legal system."
Posner, An Afterward, I3.LEGAL STUD. 437, 437 (1972).
As biology is to living organisms, astronomy to the stars, or economics to the price system, so
shouldlegal studies be to the legal system: an endeavor to make precise, objective, and systematic
observations of how the legal system operates in fact and to discover and explain the recurrent
patterns in the observations-the "laws" of the system.
Id.
80. R. POSNER, ECONOMIC ANALYSIS OFLAW (3d ed. 1986); R.POSNER, THE ECONOMICS OFJUSTICE
(1981) [hereinafter R. POSNER, JUSTICE].
81. For an early criticism that persuasively made this basic point, seeLeff, EconomicAnalysisofLaw:
Some Realism aboutNominalism, 60 VA. L. REv. 451 (1974). Leff described the first edition of Posner's
EconomicAnalysis ofLaw as "four hundred pages oftunnel vision." Id. at452. For a more recent and even
more scathing assessment, see M. KELMAN, A GtIDE TO CRITICAL LEGAL STUDIES 117-18 (1987)(footnotes,
and more stinging passages, omitted):
Posner's rather quirky EconomicAnalysis ofLaw is... imperialistic, complete, catechismic. It
may offer mind-numbingly off-target answers to many, many questions, but it does have an
answer for everylegal issue, and,perhaps more important, the answers canbe derived from a very
short list of normative and descriptive propositions ....Posner [is] obstinate in his drive for
completeness, in his powerful urge to flatten human experience and deny complexity in the service
of a desperate Panglossian optimism about the "straight" world of middle-class barter ....
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The Yale Law Journal
entities" such as "mind," "intent," "free will," and "causation," 82 he seems
not only comfortable with, but addicted to the equally metaphysical concepts
of"preferences" (Is a "preference" more solid or earthy than an "intention"?),
or the "hypothetical market," or the economic conception of "value."' 83 In
short, if one were to nominate candidates for the office ofleading legal formalist
of our era, Richard Posner might well be the frontrunner.
How then can Posner escape the charge of gross inconsistency? One
possibility is that Posner was a formalist outthat he has repented ofhis former
ways. To be sure, Posner has seemed more temperate of late in his advocacy
of law and economics," and his interests have turned increasingly to literary
theory." Nonetheless, Posner's penchant for formalist thinking continues to
show through. His essay on pragmatism expresses his aspiration to make law
more scientific as well as his continued support for economic analysis.86
Indeed, Posner has recently advocated the extension of economic analysis to
a realm of human concern--religious faith-that seems most remote from economic
calculations.87 Moreover, Posner's fondness for the more formal disciplines
of science and economics is manifest even in his discussions ofliterature and
rhetoric; he suggests that literary interpretation is a form of thought suitable
primarily for less developed areas in which the social sciences have not yet
established themselves.88
Hence, if Posner seems less confident of the adequacy of any particular
formalist approach to law, he continues to view formalist theory as an ideal
toward which law should aspire. Despite a tempering of views, he remains the
once and future formalist. And his criticism of formalism in his pragmatism
essay accordingly remains problematic.
The real explanation for that criticism, it seems, lies notin any renunciation
ofPosner's formalist yearnings, butrather in the loaded definition offormalism
82. Posner, supranote 13, at 1660, 1662-63.
83. See, e.g., R. POSNER, JUSTICE supra note 80, at 60-62.
84. For example, in his 1983 Preface to THE ECONOMICS OF JUSTICE, first published in 1981, Posner
cautions that his wealth maximization theory of ethics is offered "as a subject of speculation rather than
a blueprint for social action," and he adds: "I hope I have not 'oversold' this approach by insufficient
attention to the rather bizarre results that its unflinching application could produce." R. POSNER, JUSTICE,
id., at v-vi.
85. See, e.g., R. POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION (1988); Posner,
Literature,supranote 78.
86. Posner, supranote 13, at 1667-70.
87. McConnell & Posner, An EconomicApproachto Issues ofReligiousFreedom,56 U. CHL L. REV.
1(1989).
88. See Posner,Literature,supranote 78, at 1375-76. James Boyd White argues thatPosner's formalist
mode of thought is evident even in the literary analyses Posner offers. Posner's "whole book is written,"
White contends:
on fundamental understandings, about the nature of literature and of law alike, that seem to me
deeply wrong .... [Posner] is committed to a mode of thought and expression, to a sense of
language and law--at its heart it is scientific and economic in character-that prevents him from
seeing in the texts he studies the most important part of their meaning.
White, What Can a Lawyer LearnFrom Literature?(Book Review), 102 HARV. L. REV. 2014, 2014-15
(1989).
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Pursuit of Pragmatism
that he offers. He refers disparagingly to "the formalist idea, whose scientistic
provenance and pretensions are evident, of law as a body of immutableprinci-
ples."89
Later in the essay he asserts that "[legal formalism is the idea that
legal questions can be answered by inquiry into the relation between concepts
and hence without need for more than a superficial examination oftheir relation
to the world offact."9 By offering starkly pejorative definitions of formalism,
Posner provides himself with a possible escape from the charge that his own
economic approach is formalist he can assert that his theories are founded on
empirical observation-on "more than a superficial examination oftheir relation
to the world of fact"-and thus are not "formalist."
Unfortunately, by offering pejorative definitions offormalism, Posner also
creates problems for his pragmatist position. In the first place, he deprives
himself of the pleasure of having respectable opponents.91 Does anyone today
contend that law is "a body of immutable principles"? 9 Are there serious
contemporary scholars who maintain that "legal questions can be answered by
inquiry into the relation between concepts ... without need for more than
superficial examination of their relation to the world of fact"? Posner may
believe, ofcourse, that some views or theories infacthave only a "superficial"
grounding infact or experience, just as his critics make the same charge against
his theories.93 And at that point, the relevant disagreements once again occur
89. Posner, supranote 13, at 1656 (emphasis added).
90. Id. at 1663.
91. See Rorty, supranote 11, at 1812 (arguing that even under a broad definition offormalism, "it
is not so easy to find a good example of aformalist among legal theorists"); cf.Posner, Law andEconomics
IsMoral,24 VAL. U.L. REV. 163, 163 (1990) ("litmakes [some people] feel goodto denounce the causes,
the organizations, the activities, and the ideologies of which there are, after all, no present-day defenders
in respectable society. That to me is not a very interesting activity.").
92. Perhaps Posner means to target that usual formalist villain-Christopher Columbus Langdell.
Langdell was one of those figures who, if he had not existed, would have to be invented; and for allI know,
it is entirely possible that the Langdell we have been taught to hold in contempt wasinvented. See Wells,
SituatedDecisionmaking,63 S.CAL. L. REV. 1727, 1729 (1990) (noting that "Langdell... has served as
a strawperson and lightning rod for attacks against the possibility of rational foundations"). In any event,
Langdell is long dead; a respectable and significant legal theory deserves a less musty opponent.
Or perhaps, as one of his comments implies, Posner means to go after the natural law thinking of a
philosopher like Thomas Aquinas. See Posner,supra note 13, at 1663 (asserting that formalism is "the
domain ofthelogician, thecasuist, theThomist, theTalmudist"). Ifso,two observations are pertinent. First,
one may fairly doubt the significance ofa theoretical position that has to go back to the thirteenth century
to find a suitable opponent. Second, Posner does not actually find an opponent even in Aquinas, since to
suggest that the Thomist natural law tradition regards law as "a body of immutable principles" would be
little more than a naive parody of a highly sophisticated position. For a useful discussion explaining the
naturallaw concept ofdeterminatioand thus showing the error ofequatingThc mist natural law with abelief
that law is immutable and universal, see Finnis, On "The CriticalLegalStudies Movement", 30 AM. .
JURISPRUDENCE 21 (1985).
93. Arthur Leff argued:
[I]t must immediately be noted, and never forgotten, that [Posner's] basic propositions are really
not empirical propositions at all.They are allgenerated by "reflection" on an "assumption" about
choice under scarcity and rational maximization.... Nothing merely empirical could get in the
way of such a structure because it is definitional. That is why the assumptions can predict how
people behave: in these terms there is no other way they can behave.
Leff, supranote 81, at 457.
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within pragmatism, not about it. In short, by defining his own pragmatic
position by reference to a straw man formalism that no one actually advocates,
Posner renders his prescriptions indistinct and useless.
ButPosner's antiformalism is not merely useless; it is potentially pernicious.
His arguments facilitate an unfortunate equivocation upon two different senses
ofthe term "formalism." One sense is descriptive: A "formalist" theory or way
ofthinking is one that attempts to provide a structured way of answering legal
questions. A formalist might, for example, spell out a procedure to be used in
answering certain questions; or she might offer a substantive rule, or"formula,"
that has the effect of requiring decisionmakers to act in accordance with
specified criteria and to disregard other criteria. Pragmatists can hardly afford
to claim that views or theories that are formalist in this descriptive sense are
necessarily defective.94 Indeed, structured theories-and it is hard to see how
any theory can avoid being structured and still be a "theory" in any meaningful
sense-can be and typically are justified in pragmatic terms; particular rules,
formulas, or theories are defended on the ground that they are useful for
achieving desired objectives. For example, Frederick Schauer's recent tentative
defense of a rule-oriented formalism is not only consistent with, but appears
to grow out of, a pragmatic perspectiveY Schauer argues that a rule-focused
law may serve valuable objectives such as avoiding abuses of power and
promoting certainty and predictability in human affairs." Likewise, Posner
provides highly formalist economic theories, at least in the descriptive sense.
However, "formalism" is also, and more commonly, used in a second,
pejorative sense to refer to thinking that is not only structured, but that is
unduly rigid or impervious to experience or new information. The pejorative
connotation that the term "formalism" has acquired97 permits an unfortunate
equivocation. A critic of a particular theory may characterize the theory as
"formalist" in the descriptivesense-this is easy enough to do, since all theories
are formalistin that sense-and then quickly shift to thepejorativesense. Inthis
way, the critic manages to dismiss the disfavored theory without ever doing the
critical work that ought to be necessary to secure the desired conclusion.
Posner's attack on originalist construction illustrates this kind ofequivocation.
Posner attacks "originalism" on the ground that it is "formalist." 98 And
of course originalism is "formalist" in the descriptive sense; it provides a
structure for statutory and constitutional construction, and it attempts to limit
the kinds of factors that judges performing those tasks could consider. But one
94. For an insightful essay by a pragmatist scholar showing that all decisionmaking is inevitably
structured, see Wells, supra note 92.
95. Schauer, Formalism,97 YALE L.L 509 (1988).
96. Id. at 539-44.
97. See, e.g., id. at 510-11, 547-48. Schauer's essay is an effort to recover the descriptive sense ofthe
term, thus rescuing a potentially useful concept from the pejorative sense that currently prevents it from
being freely used.
98. Posner, supranote 13, at 1664-66.
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Pursuit of Pragmatism
can hardly conclude just from this structured quality that the originalist approach
is notjustified, or even that it is not pragmatic. Whether an originalist
approach to legal interpretation will generate better legal and political consequences
than a nonoriginalist approach presents a controversial question that
can hardly be resolved just by observing that the originalist approach is "for-
malist."99
Indeed, Posner himself points out that a pragmatic or consequentialist law
would consider, among the relevant consequences, systemic consequences; I°°
and these might justify a "rule of law" approach to adjudication which, by
preventing judges from considering particular factors, might seem inconsistent
with a more naive pragmatism. Posner's correct observation about systemic
consequences might well support a similar, systemic defense of originalist
interpretation. Indeed, Posner is aware of, and elsewhere addresses, that possibility.10'
The critical point, therefore, is not that Posner believes he has disposed
ofthe question oforiginalism by calling originalist interpretation "formalist."
In fact, he has much more to say on the subject. The important point,
rather, is that calling originalist interpretation "formalist" does not advance, but
only confuses the discussion. The accusation is simply arhetorical pointwhich
properly understood, should not count either for or against the originalist
position.
In the end we are left with the Jekyll-and-Hyde spectacle ofPosner assuming
the role of antiformalist, at least for rhetorical purposes, when he wants to
criticize a view that he does not favor and then reappearing as a formalist when
he wants to offer a constructive proposal or theory ofhis own. But this depiction
is hardly applicable to Posner alone. Legal pragmatism in general faces
Posner's predicament.
B. The Pragmatist'sPredicament
The predicament that confronts aspiring pragmatists such as Posner can be
described simply: Pragmatists dislike and distrust theory. Pragmatists also like
and need theory. Consequently, pragmatists will always inveigh against theory,
and then they will go back to theorizing. Even worse, pragmatists cannot offer
any method or criterion for theorizing different from the methods and criteria
already employed by nonpragmatists.
99. Cf. Alexander, Essay: Of Two Minds About Law and Minds, 88 MICH. L. REV. 2444 (1990)
(arguing that "[t]he pragmatist may (pragmatically) optfor originaUsm"); Stick, supranote 7, at385 (arguing
that constitutional originalists can be pragmatists).
100. Posner, supranote 13, at 1666.
101. Posner has suggested that pragmatic judges should construe statutes so as to carry out the will
of the legislature except in "the rare case where the gains in substantive justice from ignoring or denying
the will of the legislature will exceed the loss in impairing interbranch relations and injecting uncertainty
into the legislative process." Posner, Legislation,supranote 78, at 449-50. This acknowledgement makes
Posner's easy and apparently broad condemnation oforiginalist interpretation as "formalist' all the more
puzzling.
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Pragmatists know that theory can impose, distort, or mislead. Theory limits
ourperspective, prompts us to ask some questions but to overlook others; itcan
serve as a tool of suppression and oppression. Perceiving these dangers, the
pragmatist wants to flee from theory, or, in Grey's phrase, to achieve "freedom
from theory-guilt";1 °2 he wants to return to the innocence of "experience" and
"context." At the same time, pragmatists know that theory is both valuable and
necessary. We cannot simply receive raw data from experience and leave that
data unprocessed; we inevitably categorize, classify, and explain. In short, we
theorize. Moreover, even if we could somehow avoid theorizing, we surely
would not want to, because without the structure and order provided by theory
our lives would be frighteningly chaotic and meaningless.
This dilemma confounds in law as in other areas of life. Legal theory can
mislead and distort. But legal theory is also necessary and valuable."0 3 For
example, pragmatists surely do not believe that judges should simply decide
each case on the basis of an unguided gestalt; like everyone else, they believe
that some kinds of factors are relevant to the judicial decision and that other
factors are irrelevant, or that some ways ofdeciding cases should be encouraged
while other ways of deciding cases should be discouraged. Similarly, the
pragmatist does not favor leaving common law or constitutional decisions as
a mass ofparticular, unprocessed controversies and results; he wants "as much
system as possible"' 4 and hence will try to make connections, offer explanations,
and identify valuable categories for understanding and using the raw
material. And as soon as the pragmatist begins to talk about how judges should
decide cases or about how common law or constitutional decisions should be
understood, he will have embarked on a new project of theory-building.
Faced with this theorizing imperative, pragmatists may claim that they
propound a distinctively pragmatic way of doing theory. The claim, however,
cannot be made good. Pragmatists recurringly emphasize themes such as
"experience," avoidance of abstraction, "intuition," "dialogue," and
"contextualism." But upon inspection, none of these themes supplies any
distinctively pragmatic way of constructing or evaluating theories.
1. The PriorityofExperience
Pragmatists commonly insist that theories must be grounded in experience."05
Taken at face value, this counsel seems unexceptionable. It is so
102. Grey, supranote 14, at 1569; cf. Hantzis, supranote 7, at 564 (using language reminiscent of
Lord's Prayer to describe Holmes' pragmatic approach as one that will "guard us from the temptation to
resolve legal questions by means of speculative philosophy").
103. See, e.g.,Farber,supranote 7, at 1349; Radin, supranote 9, at 1701 (recognizing from pragmatistfeminist
perspective, that "ideal theory is also necessary").
104. Farber, supranote 7, at 1349.
105. E.g., Farber, supranote 7, at 1341 ("The heart ofpragmatist thought is the view that the ultimate
testis always experience.'); Radin, supranote 9, at 1707 ("Pragmatism and feminism largely share, I think,
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Pursuit of Pragmatism
unexceptionable, in fact, that one must wonder whether anyone disagrees or,
assuming someone wanted to disagree, whether anyone could devise a theory
that is not grounded in experience. Try itfor yourself: invent a theory that does
not arise from or relate to anything in your experience. What would such a
theory even address? Distributive justice in the Martian economy? Sexual
relations in the sixth dimension? Surely this is not the kind of theorizing that
pragmatists are criticizing when they solemnly insist that theories are defective
if they are not grounded in experience. But then what are they criticizing?
Some pragmatists seem to understand their point as one aboutchronological
priority: rather than imposing our preestablished theoretical categories upon
experience, we should start with experience, and only afterwqards construct
categories to fit experience. Judge Posner asserts that for the pragmatist, "the
emphasis will be empiricalfrom the start,"and that the pragmatist, in contrast
to the formalist, will not try to force experience into preexisting categories. 106
In the same vein, Daniel Farber explains that "[t]he difference between the
pragmatist and the foundationalist is not that the pragmatist disavows legal
theory, but rather that the pragmatist takes no position in advance about how
broad in scope such theory should be."107
But the "experience first-conceptualize later" positionreflects an unrealistic
view ofhow experience relates to theorizing. This view implies a sort oftabula
rasa notion of knowledge construction: the theorist first collects, in neutral
fashion, a mass oftheory-innocent data, and then constructs categories to make
use of such data. But the reality is clearly more complex. We are always
already endowed with categories and ideas given to us by our culture. And we
can never gather data or consult experience in an atheoretical way.10 Consethe
commitment to finding knowledge in the particulars of experience.").
106. Posner, supranote 13, at 1664 (emphasis added).
107. Farber, supra note 7, at 1349 (emphasis added). Despite (or perhaps because of) their
commonsensical quality, statements like this one leave it far from clear just whom or what the pragmatists
think they are criticizing. What exactly does Farber have in mind when he suggests that one should not take
a theoretical position "in advance"? He explains that with respect to contract law or promissory estoppel
doctrine one mustfirst become acquainted with the cases, and only thereafter construct theories on the "level
ofgenerality [that] works best." Id.Such a course seems sensible enough; indeed, it seems inevitable. How
could anyone construct a theory ofcontract law or promissory estoppel "in advance" ofencountering some
contract or promissory estoppel cases? Does anyone arrive at law school innocent ofcontract or estoppel
cases, but with a theory, worked out "in advance," of contract or promissory estoppel?
108. William James understood and expressed this point clearly and repeatedly:
Experience merely as such doesn't come ticketed and labelled, we have first to discover what it
is. ... What we usually do is first to frame some system of concepts mentally classified,
serialized, or connected in some intellectual way, and then to use this as a tally by which we
"keep tab" on the impressions that present themselves. When each is referred to some possible
place in the conceptual system, it is thereby "understood."
W. JAMES, Pragmatism, in PRAGMATISM AND OTHER ESSAYS 76 (1963). Elsewhere James argued that
Every hour brings its new percepts, its own facts of sensation and relation, to be truly taken
account of; but the whole ofourpast dealings with such facts is already founded in the previous
truths. It is therefore only the smallest and recentest fraction of the first two parts ofreality that
comes to us without the human touch, and that fraction has immediately to become humanized
in the sense ofbeing squared, assimilated, orin some way adapted, tothe humanized mass already
there. As a matter of fact we can hardly take in an impression at all, in the absence ofa precon-
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quently, the process of constructing, criticizing, and revising theories inevitably
involves a back-and-forth motion in which experience-based theory is adjusted
in light of theory-laden experience. The world cannot be divided into two
camps of theorists, one of which starts with experience and then constructs
theory, while the other camp constructs theory and then imposes the theory
upon experience. 109 Instead, we have a chicken-and-egg situation, but one in
which the chicken is never clearly distinguishable from the egg.11
Ironically, pragmatist philosophers have taken the lead in arguing that
experience is never concept-free, and that thinking is always historically and
culturally situated."' Thus, if legal pragmatists such as Posner and Farber
actually mean to advocate a chronological priority of experience, they betray
a central pragmatist insight. Their view in fact seems more like the
"foundationalist" view that knowledge should mirror nature, a view that pragmatist
philosophers such as Rorty have tellingly criticized."'
Alternatively, legal pragmatists may view their arguments about the priority
ofexperience as a pointabout levels of abstraction. The argument might go like
this: although every theory arises from and relates to experience, it also abstracts
from experience. We construct a category-say, "contract law" or "promissory
estoppel"--after examining cases, but we then use that category to organize
and understand new cases. Instead of examining the material fresh, we
come to it with preestablished categories which cause us to see some features
but to overlook others. In this way, the theoretical category produces an abstracted
image ofthe material. And although such abstraction is both inevitable
ception of what impressions there may possibly be.
When we talk of reality "independent" ofhuman thinking, then, it seems a thing very hard
to find. Itreduces to the notion of what is just entering into experience and yet to be named, or
else to some imagined aboriginal presence in experience, before any belief about the presence
had arisen, before any human conception had been applied. It is what is absolutely dumb and
evanescent, the merely ideal limit of our minds. We may glimpse it, but we never grasp it; what
we grasp is always some substitute for it which previous human thinking has peptonized and
cooked for our consumption. If so vulgar an expression were allowed us, we might say that
wherever we find it, it has already been faked.
Id. at 109. Other pragmatist philosophers have insisted on the same point. See, e.g., R. RORTY, MIRROR,
supra note 73, at 154 (observing that "we are never conscious of unsynthesized intuitions [i.e., sense
impressions], nor of concepts apart from their application to intuitions"); R. RORTY, CONSEQUENCES OF
PRAGMATISM xxxix (1982) [hereinafter R. RORTY, PRAGMATISM] (suggesting that we "never encounter[]
reality except undera chosendescription")(emphasis in original). "John Dewey likewise insisted, 'I know
nothing of a perceptual order apart from a conceptual."' Id. at 79 (quoting Dewey).
109. Of course, one can always depict aparticular theorist as imposing theory upon practice by focusing
upon a point in the theorizing process when the theorist is doing that. But choosing a particular point to
focus upon is arbitrary or tendentious; it is never a complete depiction.
110. For an illuminating discussion by a legal pragmatist, see Wells, supranote 92. After identifying
twocompeting models oflegal decisionmaking, which she calls "structured decisionmaking" and "contextual
decisionmaking," Wells persuasively argues that every legal decision necessarily involves both processes.
Id. at 1737. Thus, attempts to distinguish between decisionmaking processes using terms such as "abstract,"
"rational," "universal," and "rule-bound" on the one hand, and "concrete," "intuitive," "particular," or
"case-specific" on the other are, Wells argues, misleading. Id. at 1737-39.
111. John Stick asserts that "the whole point of pragmatism and Rorty's argument is that we cannot
start over, and we cannot see things fresh." Stick, supra note 7, at 396.
112. See generally R. RORTY, MIRROR, supra note 73.
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Pursuit of Pragmatism
anduseful, italso has its costs-i.e., the costs ofoverlooking potentially significant
features of experience. At some point, those costs will exceed the benefits
of abstraction, and our theories will then become more harmful than helpful.
Such a view seems to inform the pragmatists' frequent condemnation of
"abstraction" or "abstract theory."
Unlike the argument about the chronological priority of experience, this
point about the risks of excessive abstraction seems to be correct. Since every
theory abstracts to some degree, however, the pragmatist cannot afford to
condemn abstraction per se.'1 ' She can only condemn theories that are excessively
or unhelpfully abstract. But once the pragmatist adds this qualification,
a familiar difficulty reappears: everyone presumably agrees that theories should
not be excessively or unhelpfully abstract. The real disputes that arise do not
challenge this standard, but rather disagree about whether particular theories
actually are unhelpfully abstract. And on this question, although pragmatists
will of course have their individual opinions in particular cases, they have no
general guidance to give.
Indeed, it seems unlikely that pragmatists ever could say much in general
about how to determine the proper level of theoretical abstraction. In the first
place, there is no scale for measuring a theory's abstractness. Even if such a
scale existed, moreover, one probably cannot specify any general standard for
deciding how much abstraction is too much. ("Ackerman's theory of social
justice measures 6.5 on the Piercean Scale, thus exceeding the optimal level
of5.3 for constitutional theories.') Consequently, legal pragmatists are confined
to asserting that theories should be constructed onthe "level ofgenerality [that]
works best."' 4 That contention is surely compelling, and it will become significant
justas soon as serious scholars begin to urge that theories be constructed
on levels of generality that do not work best.
In sum, pragmatist propositions about the priority of experience do not
helpfully distinguish between the kind oftheorizing we should do and the kind
we should not do. One might as well say, paraphrasing Farber, that "the
difference between the pragmatist and the foundationalist is not that the pragmatistdisavows
legal theory, butrather that the pragmatist favors goodtheories
while the foundationalist favors badtheories." Such a distinction is not exactly
meaningless; it is merely useless. Some theories are bad, perhaps because they
are excessively abstract or insufficiently grounded in experience. For example,
some pragmatists evidently believe that scholars like Bruce Ackerman are led
astray by ambitious theoretical aspirations." 5 They may be right. But so long
as Ackerman and the pragmatists agree (as they presumably do) that theories
should be adequately grounded in experience, a position that merely condemns
113. See Vels, supranote 92, at 1738; see alsoMinow & Spelman, In Context, 63 S. CAL. L. REV.
1597, 1624-25, 1628 (1990).
114. Farber, supranote 7, at 1349.
115. See, e.g., id. at 1331 n.4 (by implication); Kronman, supra note 2, at 1607.
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excessive abstraction and favors experiential grounding fails to delineate among
competing theories in a useful way.
2. Pragmatist"Method"
The pragmatists' recurring invocation of "intuition," "dialogue," and
"contextualism" may suggest that pragmatists apply a distinctive method of-or,
if"method" sounds too regimented and precise, "approach" to-theorizing. For
example, pragmatists sometimes talk about the importance ofusing "intuition"
in solving problems."6 But "intuition" hardly constitutes a "method" of, or
even an "approach" to, theorizing."7
The hard questions, after all, are not
whether to use "intuition," but rather what "intuition" means, which "intuitions"
to accept, how much weight to give them, and how to put "intuitions"
to constructive use. Pragmatism provides no method of answering these questions.
Indeed, pragmatists have no special claim to "intuition"; on the contrary,
they are rather ambivalent about the usefulness of intuition. The perspectivist
theme in pragmatic thought emphasizes that all thinking, and presumably all
feelings and intuitions, are culturally and historically situated."8 This emphasis
on the historical and cultural determinants of belief undermines any view
that treats "intuition" as a special faculty that can provide correct answers to
legal questions." 9
For all these reasons, pragmatists cannot hold out "intuition"
as a distinctively pragmatic approach to theorizing. 20
Pragmatists also stress the importance of "dialogue" in evaluating experience
and in constructing and criticizing theories.'2
' But the appeal to "dialogue"
encounters the same difficulties as the appeal to "intuition." First, the
recommendation ofdialogue hardly constitutes a "method" or "approach" for
theorizing. The hard question is not whether people should talk, but rather what
they should say and what (among the various ideas communicated) they should
116. See e.g., Farber,supranote 7, at 1334-35 (listing"intuitionism" among group of rough synonyms
for legal pragmatism); Rubin, The PracticeandDiscourseof LegalScholarship,86 MICH. L. REV. 1835,
1878 (1988) (associating legal pragmatism with reliance on intuition).
117. Alasdair Maclntyre comments that "one of the things that we ought to have learned from the
history ofmoral philosophy is thatthe introduction ofthe word 'intuition' by a moral philosopher is always
a signal that something has gone badly wrong with an argument." A. MACINTYRE, AFrER ViRTUE 69 (rev.
ed. 1984).
118. See Grey, supranote 7, at 798-801.
119. Thus, Robin West observes that although the pragmatist should take intuitions seriously, including
the "conservative" intuition of the moral worth of the fetus, "[niothingfollows from the conservative's
intuition that human life in all its forms, including fetal, is sacred other than the fact that he has it ....
West, supranote 1, at 735 (emphasis in original).
120. Cf. R. RORTY, PRAGMATISM, supra note 109, at xxix-xxx ("Of course we have such [realist]
intuitions. How could we escape having them? We have been educated within an intellectual tradition built
around such claims .... The pragmatist is urging that we do our best tostop havingsuch intuitions. ..
(emphasis in original).
121. See, e.g., Farber, supra note 7, at 1343; Radin, supranote 9, at 1725; cf.Grey, supra note 14,
at 1591 (asserting that "the first pragmatist precept. . . is one familiar to every lawyer. 'hear the other
side"').
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Pursuit of Pragmatism
believe. Prescribing "dialogue" fails to answer these hard questions. Second,
pragmatists have no special claim to "dialogue." Not just pragmatists, but also
radical critics," civic republicans," ethical naturalists,1" feminists,"as
legal process theorists (both old and new),1"s liberal neutrality theorists,27
and professed antipragmatists"a favor "dialogue." Indeed, "dialogue" seems
to have become the all-purpose elixir ofour time. Such agreement only shows,
the pragmatist might contend, that everyone is in fact a pragmatist. That
observation may be correct, but it also leaves us with the same old problem:
the counsels of pragmatism turn out to be merely platitudinous, and hence
unhelpful in resolving live legal controversies.
Pragmatists also commonly emphasize the theme of "contextualism"; we
should consider and resolve legal problems "in context." '29 Such a course
seems sensible and, indeed, inescapable. Is there any other way to consider
problems-any way to consider a problem outside of any context? Contextualists
assure us that there is not-that all thinking and argumentation is contextual3---and
they seem to be right. We often charge an opponent with taking a
statement or question "out of context," but we clearly do not mean "out ofany
context." Rather, we mean that someone has not viewed the statement or
question in what we regard as the propercontext. The real question is never
"context or no context?" but rather "which context?"131
But if we inevitably consider questions and problems in a context, then the
counsel to "be contextual" merely urges us to do what we cannot help doing
anyway. Pragmatism would nonetheless be useful if it could provide guidance
about how to select the proper context for controversial issues; but on that
question, unfortunately, pragmatists offer little help. Their failure to provide
enlightenment on this issue does not reflect any lack either of charity or of
reflection; rather, there are at least two reasons why nothing very useful can
be said on that question. First, generalizations explaining how to choose the
122. See, e.g., Hutchinson, Talkingthe GoodLife:From FreeSpeech to DemocraticDialogue,1YALE
J. L. & LIBERATION 17, 18 (1989) (advocating "Democratic dialogism" as means of social transformation).
123. See, e.g., Michelman, Law'sRepublic, 97 YALE L.L 1493, 1503-05, 1524-32 (1988) (advocating
republican vision of "dialogic constitutionalism').
124. See M. PERRY, MORALITY, POLITICS, AND LAW 51-54, 152-58 (1988).
125. See Colker, Feminism, Theology, andAbortion: Toward Love, Compassion, and Wisdom, 77
CALIF. L. REV. 1011, 1074 (1989) (advocating 'feminist-theological dialogue").
126. Fora useful discussion, seeWeisberg, The CalabresianJudicialArtist:StatutesandtheNew Legal
Process,35 STAN. L. REv. 213, 241-48 (1983).
127. See B. ACKERMAN, RECONSTRUCTING AMERICAN LAW 96-104 (1983)(emphasizing centrality of
"liberal dialogue" in construction of legal values); B. ACKERMAN, SOCIAL JUSTICE INTHELIBERAL STATE
4-5 (1980) (proposing "comprehensive insistence on dialogue" as basic method forresolving issues ofpolitics
and justice).
128. See R. DWORKIN, supra note 34, at 70-71 (advocating active use of judicial review as way of
generating public debate on matters of principle).
129. See, e.g., Kronman, supranote 2, at 1571; Minow &Spelman, supranote 113; Wells, supranote
92, at 1734-36, 1745-46.
130. See Minow & Spelman, supranote 113, at 1627, 1651.
131. See id. at 1629 (asserting that "once the pretended distinction between context and abstraction
is discarded, the important question becomes which context should matter").
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proper context might themselves, precisely by virtue oftheir generality, deviate
from the contextualist prescription. Second, the question "which context?"
presumably must itself be addressed in a context, thus forcing us to ask what
is the proper context for addressing that question; and one quickly confronts
an infinite regress.132 Consequently, although proponents ofcontextualism can
and do express their views about the most helpful contexts for considering
particular problems, they can say little of a general nature about how to select
proper contexts. For example, Minow and Spelman are interested in a kind of
contextual analysis that underscores "legacies of power and oppression."'133
If they are right that every contextual analysis reflects background moral,
political, and epistemological theories,'34 then Minow's and Spelman's emphasis
must reflect background theories that specify the importance of"power"
and "oppression" in legal and social phenomena. And if their background
theories are sound, then their particular emphasis on these factors is appropriate
as well. But there is nothing in a concern for contextualism itself thatproduces
an emphasis on "legacies of power and oppression."
In short, the pragmatist suggests that in dealing with the practical and
theoretical problems of law, we should use "intuition," which seems, at least
from a pragmatist perspective, much akin to "good judgment." We should talk
things over, and we should look at problems in context. All of this seems
eminently sensible. Who does-who could-disagree? 13
But such counsel hardly
constitutes a method or approach to theorizing, much less a distinctively
pragmatic method or approach. 136 It is as if a philosopher grandly announced
that he had discovered a method for resolving all ofthe conceptual conundrums
132. In their essay In Context,Minow and Spelman allude to this possibility when they note, "[a]s we
turn to address the meaning of 'context' in these contexts, we are pointedly aware of a plausible question
likely to occur to a sensitive reader- what is the context of our inquiry?" Minow & Spelman, supranote
113, at 1597. It seems correct, as they imply, that questions such as "which context?" cannot themselves
be acontextual. But if every first-order question requires consideration of the proper context, and if the
second-order question (i.e., what is the proper context for addressing the first-order question?) requires
consideration of the context for addressing the second-order question, no apparent reason exists to stop at
two removes from the first-order question; the question "And what is the proper context for addressing that
question?" leads on forever.
133. Id. at 1601.
134. Id. at 1626.
135. A pragmatist might point out, of course, that even if nearly all lawyers and scholars purport to
accept pragmatist counsels about experience, dialogue, and context, they do not all articulate and talk about
these concerns. Although that observation may turn out to be significant, see infra Section III, the
nonpragmatist might respond that he does not often talk explicitly about the need to use experience and
to think in context for the same reason that he does not go around pointing out that the sky is overhead
rather than underfoot or that in North America July tends to be warmer than January. Such observations
would be correct, and they register significant facts. But since everyone is fully aware of these facts, there
seems little reason to point them out. Indeed, the person who does suddenly declare that "the sky is over
us" will likely be regarded as (to put it charitably) a latecomer, not a source of wisdom or insight.
136. In a similar vein, although Richard Rorty plainly admires and agrees with much in John Dewey's
criticism ofthe philosophical tradition, he also observes that Dewey had a "habit ofannouncing a bold new
positive program" but in fact could offer only "a series of resounding but empty slogans." R. RORTY,
PRAGMATISM, supranote 108, at 78.
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Pursuit of Pragmatism
that have plagued humans for centuries and, when asked to describe the method,
explained gravely: "Careful, correct thinking." Well, yes-but ....
C. The PragmaticTemperament
The discussion thus far suggests that although legal pragmatists express a
distrust of theory, they can neither avoid theorizing nor articulate any distinctively
pragmatic method or set ofcriteria for theorizing. Nonetheless, it seems
undeniable that pragmatists at leastfeel differently about theory. This attitudinal
difference may indicate a real distinction between the pragmatist and the
nonpragmatist. Thomas Grey has recently emphasized the importance of
learning "what it feels like" to be a pragmatist.13
1 In a similar vein, Judge
Posner describes pragmatism as "an attitude, or orientation,"139 and Anthony
Kronman has indicated the importance of"attitude" or "temperamental disposition""
in the Burkean version of pragmatism that he calls
"prudentialism."14' And hostility to abstract theory is a central feature in the
pragmatic temperament. Like the "grand theorist," the pragmatist theorizes. He
does not theorize joyously, however, but rather out of necessity, and with
constant misgivings.'42 Forced to articulate what makes a theory adequate,
the pragmatist and the grand theorist may say similar things. But they harbor
radically different attitudes. The grand theorist, but notthe pragmatist, has faith
in and love for theory. The grand theorist takes delight when an ambitious
theory succeeds; the pragmatist rejoices to see a pretentious theory hum-
bled.
1 43
These contrasting attitudes might be viewed in reference to atemperamental
need for order. We theorize, after all, in large measure to satisfy our own need
to understand life and experience as somehow orderly and coherent. However,
as an inspection ofthe offices ofa handful of randomly selected law professors
should demonstrate, individuals differ dramatically in their need for order. The
grand theorist harbors a deep need for coherence. The pragmatist, by contrast,
137. All of this brings to mind the nursery rhyme:
Which is the way to London Town?
Which is the way to London Town?
One foot up, the other foot down.
That is the way to London Town.
138. Grey, supranote 14, at 1570.
139. Posner, supranote 13, at 1670.
140. Kronman, supranote 2, at 1569, 1598.
141. This emphasis on attitude as an important distinguishing feature is characteristic ofpragmatists.
William James began his lectures on pragmatism by arguing that the competing positions taken on a variety
oflongstanding philosophical issues could usefully be understood as expressions ofcontrasting philosophical
temperaments. W. JAMES, supranote 108, at 6-9.
142. See Grey,supranote 7, at 815 (describing pragmatists as "theoreticians armed witha presumptive
suspicion of neat theories").
143. This diagnosis no doubt oversimplifies a more complex psychological reality. In some cases, the
pragmatist scholar may be particularly susceptible to the attractions ofgrand theory, and may consciously
embrace pragmatism in an effort to resist the temptations of theory.
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is content with a lower degree of order.144 Thus, in the abstract, both may
agree that theories should be constructed on "the level ofgenerality that works
best." But for the grand theorist,this standard dictates a relatively encompassing
theory, because a more modest theory will fail to satisfy the theorist's
appetite for coherence, and thus will not "work best." The pragmatist, by
contrast, is not as hungry for overarching order; she may even relish the
freedom of a world in flux, and thus nurture an ingrained resentment toward
theories which offer too much order.45 For her, therefore, a more localized,
less pretentious theory will "work best."'46
This interpretation would explain not only the pragmatists' hostility to
"grand theory," but also their complacent reaction to the revelation that law is
to some degree disorderly, internally contradictory, or indeterminate. For
nonpragmatists, such disorder may be deeply troubling; it means that the law
is unworthy of respect, and thus bereft of moral authority or legitimacy. This
conclusion may drive the nonpragmatist to strategies of desperation. He may
enlist the aid of a mythical demigod in the struggle to show that the law can
be viewed as the expression of a single, comprehensive vision of justice, and
that it does yield a correct answer to every legal question.47 Or, finding such
visions of order to be an unsustainable illusion, he may denounce the legal
144. By this standard, it seems that Ronald Dworkin is correct in claiming that he is not a pragmatist;
his desire for overall coherence is arecurring theme in his work. Similarly, despite his avowed pragmatism,
it seems that Judge Posner is not of a pragmatic disposition; his economic analysis, in particular, evinces
a powerful need to reduce the disparate materials of law to a coherent system.
145. Such an attitude is conspicuous in the writing of William James, who recoiled from the notion
of a"universe [that] is absolutely secure," preferring a"loose universe" that "is stillpursuing its adventures"
andthat is "unfinished, growing in all sorts ofplaces." W. JAMES, supranote 108, at 113-14. James ascribed
this preference to temperament, observing that the pragmatist is averse to too much order because he is a
"happy-go-lucky anarchistic sort ofcreature." Id. at 114.
146. Of course, most real human beings will have both pragmatic and nonpragmatic moods and
moments. Holmes is a prime example. Current pragmatist scholars find in Holmes a primary source oflegal
pragmatism. See, e.g., supranote 7. At the same time, a good deal in Holmes' thinking and practice seems
antithetical to theprecepts ofpragmatism. Thus, while struggling to distinguish Holmes' use of theory from
Langdell's, Grey concedes that both men were conceptualists and formalists, Grey, supranote 7, at 822,
and that Holmes "loved the logical manipulation of doctrine for its own sake nearly as much as Langdell
did, and this could lead him astray in practice." Id. at 819. By his own admission, Holmes "hate[d] facts"
and exalted "general propositions." Id.at 842. He reconciled himself to the study oflaw because he believed
it might "open[] a way to philosophy." Id. at 840. He admitted that injudging cases he worried little about
"the practical effect of the decision," concentrating instead on the decision's "relation to the theory and
philosophy of the law." Id.at 848. There is no reason to suppose that Holmes' vacillations and deviations
were unique to himself. Insofar as such inconsistencies reflect a human need bothfor order and for freedom,
it seems likely that everyone will be both pragmatic and nonpragmatic in varying degrees.
As Wtlliam James pointed out:
Most of us have a hankering for the good things on both sides of the line. Facts are good, of
course-give us lots of facts. Principles are good-give us plenty of principles.... And so
forth-your ordinary philosophic layman never being a radical, never straightening outhis system,
but living vaguely in one plausible compartment of it or another to suit the temptations of
successive hours.
W. JAMES, supranote 108, at 9-10.
147. See R. DWORIN, TAKING RIGHTS SERTOTI'1y 81-130 (1977).
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Pursuit of Pragmatism
system as deeply illegitimate.148
To the more pragmatic lawyer or scholar,
on the other hand, a certain degree of indeterminacy does not necessarily
threaten the basic legitimacy of the legal system; indeed, it may provide
desirable flexibility within which a fact-responsive equity has room to oper-
ate.
149
Similarly, if the issue concerns the legitimacy of nonoriginalist judicial
review, some theorists will feel driven to develop elaborate theories of creative
interpretation or "representation reinforcement." 150 They may even resort to
assigning a "prophetic" calling to federal judges.' A pragmatist, by contrast,
will find these theories exotic and unnecessary; he will be content to defend
nonoriginalist judicial review on the less pretentious grounds ofprudence and
historical practice.152
Despite its explanatory power, however, an interpretation which depicts
legal pragmatism as an "attitude" or "temperament" leaves pragmatists with
a serious problem: the interpretation undermines the pragmatic criticism of
"grand theory." The pragmatist's significant point, it turns out, is not that
theory should be grounded in experience, or that theory should be contextual
and should avoid excessive abstraction. On those points, everyone agrees. The
pragmatist could better express his real concern by saying: "I feel no need for,
nor do I take any joy in, elegant or comprehensive theories." To which the
grand theorist can easily respond: "I do." And once one understands pragmatism
as an expression of temperament, the legal pragmatist has no effective
rebuttal to the grand theorist's position. Matters oftemperament, after all, are
typically not promising material for intellectual debate. Ambitious theories, like
stormy evenings, Super Bowls, or presidential campaigns, will leave some
people excited and others depressed; but there is little in such reactions that one
can usefully argue about. 5 3
Indeed, legal pragmatism actually legitimates the grand theorist's position.
A nonpragmatist might argue that the law (or the universe) just does not exhibit
or support the kind of comprehensive order that the grand theorist purports to
148. Foran illuminating discussion of the association ofindeterminacy and illegitimacy by critical legal
scholars, see Kress, Legal Indeterminacy,77 CALIF. L. REv. 283, 285-95 (1989). Cf.H.L.A. HART, THE
CONCEPT OF LAW 135 (1961) (speculating that legal skeptics of his day were often "disappointed absolut-
ist[s]").
149. See Kress, supranote 148, at 294. See generallyK. LLEWELLYN, THE COMMON LAW TRADITION
(1960).
150. The references are to theorists such as Dworkin and to John Ely. J. ELY, DEMOCRACY AND
DISTRUST (1980).
151. See M. PERRY, THE CONSTITUTION, THE COURTS, AND HUMAN RIGHIS (1982).
152. See Grey, The Constitutionas Scripture,37 STAN. L. REV. 1, 20 (1984).
153. One can believe that certain kinds ofattitudes are admirable or appropriate (reverence on sacred
occasions, perhaps) or inappropriate (levity at a funeral). Such appropriateness or inappropriateness seems
to rest more on ethical or even aesthetic than on epistemological grounds. Thus, legal pragmatists might
be better advised to develop a pragmatic aesthetic instead of treating pragmatism as a theory of law with
propositional content. Though he asserts that legal pragmatism is a theory, and indeed the truest and best
theory, Thomas Grey's recent turn to poetry as a vehicle for expressing the meaning ofpragmatism may
represent a step in this direction. See Grey, supranote 14.
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describe. But pragmatism, having insisted that the test of a theory is not its
correspondence to any objective reality but rather its capacity to fulfill "human
needs,"'54 cannot so readily offer this objection. On the contrary, if grand
theory effectively satisfies a human need for order and meaning, the pragmatist
ought to applaud the accomplishment.'55 He can observe, of course, that he
personallyfeels no such need. But that is hardly a criticism at all, any more
than it is a criticism of diabetes research to say that I personally don't have
diabetes.
Thus, interpreting legal pragmatism as an expression oftemperament leaves
pragmatists with nothing of significance to say-or, at least, with nothing
significant of a propositional nature that is characteristically pragmatic. And
the question that emerges from this interpretation is why pragmatists keep on
talking. Or, more precisely, why do they keep talking aboutpragmatism?'56
D. Legal Pragmatismas Self-Deception?
One possible answer to the question might suggest that legal pragmatists
continue to talk about pragmatism because they are deceived; they think that
pragmatism has something distinctive and valuable to say even though it
actually does not. Perhaps pragmatism attracts them because it is one version
ofthe old dream that the questions which plague and divide us might somehow
be banished if we couldjust get answers directly-without distorting conceptual
mediation-from nature itself. Thoughtful pragmatists would disavow any such
notion, ofcourse; indeed, they may regard the impossibility ofany unmediated
apprehension of nature as a special pragmatist insight.'57 But having an insight
is one thing; faithfully acting on that insight is another. Reading the
discussions of legal pragmatists, one sometimes has the sense that even though
the pragmatists say they accept the inevitability of mediating theory, they
cannot quite bring themselves to believe it. They act as if through the
incantatory repetition ofsacred words--"experience," "context," "perspective,"
"dialogue"-self-validating answers would finally, somehow,just spring forth.
Ifpragmatists practice self-deception in this way, they would hardly be the
first to do so. In Carl Becker's classic depiction, the philosophers of the
154. See, e.g., Posner, supranote 13, at 1660; Stick, supranote 7, at 393.
155. See Grey, supranote 7, at 804 (observing that "a wise pragmatist will also accept as legitimate
the 'philosophical' human need to generate such [all-encompassing meta-accounts]").
156. Of course, legal pragmatists may have all sorts of interesting and valuable things to say on
particular subjects; the question is whether these more particular insights and ideas are products oflegal
pragmatism. Thomas Grey, in suggesting that legalpragmatism is "banal" and"truistic" on an abstractlevel,
see supra note 12 and accompanying text, implies that legal pragmatism is not banal on a more concrete
level. And it is certainly true that persons who call themselves legal pragmatists-Grey is an outstanding
example--offer valuable insights on a variety of issues. But if the general propositions oflegal pragmatism
are mere truisms that virtually everyone accepts (including people who might not share Grey's more
particular views), then the connection between Grey's particular views andthe utterable propositional content
of his pragmatism is at least problematic.
157. See supranotes 102-07 and accompanying text.
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Pursuit of Pragmatism
Enlightenment period bear a striking resemblance to some modem legal pragmatists.
The philosopheswere of a reforming bent; they were driven by "the
humanitarian impulse to set things right."158 They wanted to make use of the
past but also to free themselves from the traditions and superstitions--from entrenched
conceptions and institutions-that the past had bequeathed to them.159
And the way to achieve this freedom, they believed, was to turn directly to
human nature and experience.160 Thus, the philosophes studied history so that
they could "establish the rights suitable to man's nature on the facts of human
experience.
' 161
In searching history and human experience for answers to political and
ethical questions, however, thephilosophesencountered an obstacle. Experience
and history form a capacious net that gathers in facts, ideas, lessons, and
observations of all kinds. The philosophes"wished to get rid ofthe bad ideas
and customs inherited from the past; quite as obviously they wished to hold
fast to the good ones, if any good ones there were. ' 162 But how could they
make this distinction? The bare facts ofhistory did not distinguish between the
"naturally good" and the "naturally bad" in experience. 163 But ifhistory could
not itself provide the standard for making the requisite distinction, only one
alternative remained available: the philosophers would have to supply the
standard themselves. Paradoxically, they could learnfrom human experience
the distinction between the good and the bad only by bringing to human
experience a standard for making that distinction. Thus, "the principles they
are bound to find are the very ones they start out with.""
Becker relishes the irony:
Is it, then, possible that the Philosophers were not really interested in
establishing the rights suitable to man's nature on the facts of human
experience? Is it possible that they were engaged in that nefarious
medieval enterprise ofreconciling the facts ofhuman experience with
truths already, in some fashion, revealed to them?
Alas yes, that is, indeed, the fact! The eighteenth-century Philosophers,
like the medieval scholastics, held fast to a revealed body of
knowledge, and they were unwilling or unable to learn anything from
158. C. BECKER, THE HEAVENLY CITY OF THE EIGHTEENTH CENTURY PHILOSOPHERS 41 (1932).
159. See id. at 93.
160. Even when the philosophescontinued to use the language of "natural law," Becker argues, their
usage was vastly different than Aquinas'. Enlightenment philosophers associated Nature not with a priori
or theological first principles, but rather with "the actual behavior of nature"; they sought "not a logical
concept, but a substantial reality." Id. at 56-57.
161. Id. at 101.
162. Id. at 95.
163. Id. at 86.
164. Id. at 104.
The Yale Law Journal
history which could not, by some ingenious trick played on the dead,
be reconciled with their faith.165
But Becker is charitable in his final judgment. "It is apparent that... they are
deceiving us, these philosopher-historians. But we can easily forgive them for
that, since they are, even more effectively, deceiving themselves. ' '166
One can easily discern a close parallel between the eighteenth-century
philosophers and, for example, Posner's argument that a more sure knowledge
is available if we will just startwith empirical observation rather than imposing
our categories on experience. 167 The parallel becomes even tighter in the case
ofRobin West's argument for "pragmatic liberalism." West favors "pragmatic
experientialism."'168 She argues that "the good life is a function of our inherent
nature."'169 And, like the philosophes, West urges us to "seek[] an understanding
of the good from an empiricalunderstanding of what it has meant to
be human"' 17 by, for example, studying history; we must not try to "deduce
[the nature of the good] from arbitrarily adopted premises."' 7' And how will
history and empirical study reveal to us the "good" or the good life? West
argues that "we learn from experience that some past preferences and the
choices based upon them are more conducive to happiness and to the good life
than others."'172
At this point West's position risks appearing like a historically oriented
version of utilitarianism; the task is to figure out from historical study which
policies will make people feel 'happy, and then to promote such policies. But
West quickly fends off any vulgar utilitarian interpretation by distinguishing
between "apparent happiness" and "true happiness." 73 To the pragmatist,
liberalism seeks "the liberation of human potential for the good life, not the
maximization of individual preferences."' 74 "Human nature" evinces tendencies
conducive to this kind of life, but it also harbors destructive tendencies
such as lust, greed, and envy. Hence, not all "natural, historical human
inclinations" are to be respected-only those natural inclinations that lead to "the
165. Id. at 101-02.
166. Id. at 103. For a parallel interpretation, see A. MACINTYRE, supranote 117, at 47-49.
167. See supranote 107 and accompanying text.
168. West, supranote 1, at 680.
169. id. at 696. Apparently, however, our nature is not so "inherent" as this language might suggest,
since in the same sentence West asserts that our "nature is subject to change."
170. Id.at724 (emphasis added). See alsoid.at 736 (arguing that we must "investigate human nature
empirically"); cf.C. BECKER, supranote 158, at 101-03 (discussing eighteenth-century ambition todiscover
"human nature" empirically, and futility of that ambition).
171. West, supranote 1, at 681.
172. Id.at 680.
173. Id.at 689, 718.
174. Id. at 717.
175. See id. at 718.
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Pursuit of Pragmatism
good life." And only "human nature, properly understood,"'176 can lead us
to discern "the good life."
How then are we to decide which parts of human nature to exalt and which
parts to rebuke and restrain? How are we to decide which empirical reports of
happiness to accept and which to reject as merely reporting "apparent happiness"?
West argues that we must make a "discriminating assessment of experience."
'177 We cannot take people's choices or preferences at face value; rather,
we must makejudgments about those choices, recognizing that some choices,
such as "the 'choice' of a purchase or of a religious denomination or ofa line
ofwork may be part of a process ofaddiction and self-annihilation rather than
self-definition and self-enhancement." '178 We do not just take history or experience
raw, but instead season, sift, and refine it using the "method of intelli-
gence."
179
This discussion contains two prescriptions in obvious tension. First, the
"empirical" strain in West's discussion tells us to get our values and our
understanding of the good life from experience and to refrain from imposing
our ideas or values onexperience. Second, the "intelligence" part ofthe discussion
suggests that we cannot take experience at face value, but instead must
evaluate experience with the use ofjudgment and discrimination. But evaluation,judgment,
andintelligence mean reflectively applying our ideas and values
to experience. Thus, the second prescription cannot be fully reconciled withthe
first. West's position resembles that of the philosophes in suggesting that
conclusions reached on the basis ofjudgment, intelligence, and discrimination
can still be viewed as "empirical," free from the taint of values imposed on
experience. 80 West's liberal pragmatist echoes the "objective" journalist who
insists, "I don't let my own views or values influence my reporting in any way;
I only report the facts ... (as seen, selected, and interpreted by me)."'81
176. Id. at 736 (emphasis added).
177. Id. at 681.
178. Id.at 711.
179. Id. at 694. Although the "method of intelligence" remains obscure in its operational details, it
evidently involves reflection, experimentation, and broad social discussion. See id.at 694-96.
180. For an account of John Dewey's similar misadventures in his quest for a "metaphysics of
experience," see R. RORTY, PRAGMATISM, supra note 108, at72-85. Rorty argues that Dewey "was never
able to escape the notion that what he himself said about experience described what experience itself looked
like, whereas what others said of experience was a confusion between the data and the products oftheir
analyses." Id. at79-80.
181. Of course, West's pragmatism essay may not represent her more developed views. Indeed, while
WVest once endorsed pragmatism but doubted that the legal community would adopt a pragmatic view of
law, it is even possible that during the intervening half-decade the roles have been reversed: The legal
community now regards pragmatism with favor, but West has moved beyond pragmatism. In a recent article
West describes pragmatism orinstrumentalism as one of three important strands in American jurisprudence,
but she does not appear to endorse pragmatism as the preferred and superior view. See West, Progressive
and ConservativeConstitutionalism,88 MIcH. L. REV. 641,659(1990). She does, however, continue to cite
her pragmatism essay with apparent approval. Id. at 670 n.75. More importantly, her recent article seems
suspiciously heavy on abstract categorization. Constitutional scholars are divided into two camps: progressives
and conservatives. Each camp neatly subdivides into three smaller groups, and each of these smaller
groups has a characteristic position on three issues: politics,jurisprudence, and constitutional interpretation.
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Throughout this discussion I have tried to use the conditional mood in
suggesting that pragmatism might be a form of deception. Pragmatists may be
engaged in deception, or self-deception, but they need not be. When one
encounters pragmatists making ambitious claims fortheir position, by suggesting,
for example, that pragmatism can actually provide solutions to legal
problems, one should be wary. But pragmatists are not required to make this
claim. In that case, however, the old, pesky question returns: if legal pragmatism
cannot provide solutions to legal questions, and if it has only innocuous
things to say about how solutions should be found, then why do pragmatists
continue to talk about pragmatism?
III. PRAGMATISM AS EXHORTATION
Thus far, the search for a distinct and potentially valuable pragmatic
position has proven disappointing. There may well be a pragmatic temperament
or attitude, but this attitude does not issue in useful propositions or criticisms;
indeed, it undermines the pragmatist criticism of "grand theory." Pragmatists
also provide recurring themes: forward-looking instrumentalism, the priority
ofexperience, contextualism, and perspectivism. But these themes turn out upon
inspection to be either empty or innocuous. At best, it seems, pragmatists are
telling us what we already take for granted; at worst, insofar as pragmatists
think they are saying something distinctive and useful, legal pragmatism is a
project in self-deception.
Before dismissing pragmatism on these grounds, however, we should ask:
what is so bad about being platitudinous? If a theorist or scholar purports to
offer some new revelation or novel insight but then proceeds to recite pious
generalities that everyone already acknowledges, we will naturally be disappointed.
Similarly, insofar as legal pragmatism claims to be a distinctive,
valuable position or theory about law, but in fact offers only platitudes, then
it has failed to deliver on its promises. On the other hand, platitudes are
eminently suited to perform certain functions such as exhortation.
A more familiar example illustrates the nature ofthis exhortatory function.
Startwith some quality-let us say, "cowardice"-that virtually everyone regards
as a vice. Even the universal condemnation ofthis quality would hardly mean
that cowardice presents human beings with no problems. On the contrary, the
concept of "cowardice" raises at least two different kinds of problems. The
intellectual problem involves deciding what kinds ofconduct or attitude constitute
"cowardice." After all, while condemning this vice, mostpeople also allow
that a healthy regard for one's safety is not only permissible but praiseworthy.
The overall structure, abstract and internally coherent, ispresented in aseries of 2 x 3 and 3 x3 grids. For
myself, I find West's schemas at least interesting, often plausible and illuminating, and aesthetically
appealing. (I've always been partial to tripartite categorization schemes.) But I'm not sure that a devout
pragmatist would have much patience for all this abstract categorization and conceptual symmetry.
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Pursuit of Pragmatism
How then do we distinguish between a contemptible "cowardice" on the one
hand and an appropriate "caution" on the other? How do we decide whether
Rambo behavior is inspirational or ridiculous? What separates "courage" from
"cowardice" at one end of the boldness continuum, and from "recklessness"
or "foolhardiness" at the other?
The vice ofcowardice also generates aless intellectual, more practical kind
of problem. Even if one is certain that it would be cowardly to shrink from a
particular danger, one may nevertheless shrink from it-because one lacks the
courage to confront it. Most vices-cowardice, gluttony, greed, selfishness,
dishonesty--are unfortunately all too pervasive; and the principal reason forthis
problem is not that we do not realize that such things are wrong, but that we
find ithard to live up to our moral ideals. To be sure, this kind of moral failure
has a cognitive element. Not liking to think ofourselves as cowardly or wicked,
we are prone to excuse, rationalize, or simply refuse to think about our moral
failings. Nonetheless, the rootproblem stems fromweakness ofwill and deviant
practice, not inability to comprehend the vice.
Because the intellectual and practical problems differ in nature, they call
for different kinds ofremedies. The first kind of problem may be amenable to
theoretical treatment; an ethical philosopher might give us, if not a formula for
distinguishing "cowardice" from proper caution, at least criterii or guidance
to help make that distinction. Conversely, exhortation-a coach's pre-game pep
talk, for example, or a poem urging the reader to "Be a hero in the
strife"-would offer little help with respect to the intellectual problem. We
already know, after all, that we should not be cowardly; the intellectual question
is what constitutes cowardice.
On the other hand, exhortation may be helpful to soldiers who know that
they must go into battle and are struggling to muster up the courage to do so.
Moral exhortation is directed to problems ofpractice; it seeks to strengthen the
will to live up to ideals, or it prevents people from conveniently excusing or
forgetting to think about their shortcomings. And withrespect to this function,
one can hardly object that the exhorter's message is platitudinous, or that the
listeners already believe that cowardice or greed or gluttony should be avoided.
On the contrary, exhortation is by its very nature platitudinous in that sense;
its purpose is to sharpen people's sense of and commitment to ideals they
already hold. Conversely, a theoretical discussion of ethical philosophy would
be ill-suited for that function. Generals typically do not prepare an army for
battle by assigning the troops to study Book III of the NichomacheanEthics.
Recognizing the function ofexhortation suggests that the criticisms oflegal
pragmatist themes offered earlier in this article may be misdirected. Such
criticisms assert that many of the things that legal pragmatists typically say are
propositions which everyone already takes for granted. Insofar as pragmatists
are trying to offer criteria or principles for evaluating legal theories, that
conclusion suggests that pragmatism offers little of value. But imagine a
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different function for pragmatism; perhaps the purpose of pragmatist writing
is to exhort scholars and judges to avoid intellectual vices that they already
acknowledge as such but are nonetheless prone to commit.
For example, everyone may agree that theories should be firmly grounded
in experience. Theorists generally start with experience, not only because they
believe they should but because that is the only place they can start. Once
conceived, however, a theory may acquire a vitality of its own. Rather than
helping the scholar to understand or deal with experiential reality, the theory
becomes the scholar's reality. This sort of theorizing resembles the religious
vice of idolatry. The worshipper creates an image to help focus her thoughts
and feelings on a more ultimate reality; but she concludes by worshipping the
image itself. In the same way, a legal scholar may come to regard his theory
as, like Dworkin's past, "valuable for its own sake"; he thereby succumbs to
"apiece ofperverse abstraction worship." '182
And pragmatism operates as akind
of exhortation, reminding the scholar of proper priorities, calling him back to
experiential reality. 83
One can easily misperceive the exhortatory function of legal pragmatism
because the vices against which it admonishes-excessive abstraction, unwarranted
generalization, formalistic rigidity, insensitivity to context-occur in
theorizing (or, more loosely, in thinking). If theories remedy intellectual or
theoretical problems and exhortation remedies problems of practice, then it
might seem that pragmatism, which addresses intellectual problems, must be
a kind of theory rather than a form of exhortation. In this instance, however,
the distinction between theoretical problems and problems ofpractice is likely
to confuse. Pragmatism is concerned with problems that occur in the practice
of theorizing. It does not supply distinctive standards for constructing or
evaluating theories, butinstead admonishes thinkers to adhere to standards that
they already accept. And it is precisely the oft-noted platitudinous character of
the pragmatists' counsels that reveals the essentially exhortatory function of
legal pragmatism.
Pragmatists may not rejoice in a view that depicts them primarily as
exhorters. But exhortation performs apotentially useful function; "bad" theorizing-theorizing
that deviates from the theorist's own standards-might bejust as
pervasive as other kinds of immoral practice, and just as deserving ofrebuke.
Indeed, insofar as we will always be engaged in theorizing, we will always
potentially require reminding of the vices associated with that activity.
Nonetheless, amessage which is urgently needed on one occasion or by one
audience may be less useful in other situations. The value of preaching, as
pragmatists should be pleased to acknowledge, depends upon context. For
182. W.JAMES, supranote 108, at 115.
183. Whether intended or not, Grey's suggestion that pragmatism is "freedom from theory-guilt"
expresses this sense ofpragmatism as a way of avoiding the vices associated with theorizing. We generally
feel guilt, after all, when we do what we already know to be wrong.
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Pursuit of Pragmatism
example, we view "frugality" as a venerable virtue, and one may appropriately
preach it to one's teenage son or daughter. But it would be pointless, and
perhaps injurious, to direct the same sermon on frugality to a pre-visitation
Ebenezer Scrooge. In the same way, pragmatic admonishment is a proper
prescription for an era that has been overindulgent towards the theorizing
impulse. Butpragmatism may be just the wrong remedy for a legal and judicial
style that already suffers from theoretical timidity. The critical question,
therefore, focuses on the diagnosis applicable to legal thinking today.
IV. CONCLUSION: ISTHE PRAGMATIST SERMON THE ONE WE NEED Now?
The resurgence of pragmatism in legal thought reflects a widespread
perception that in recent years legal thinking has been unduly theoretical and
abstract. One familiar explanation-albeit only a partial one-for this tendency
suggests that Brown v. Board of Education'8 and later Roe v. Wade...
prompted a crisis of constitutional legitimacy and provoked constitutional
scholars to ever loftier flights oftheoretical abstraction in their efforts to defend
those decisions. 86 A whole generation of theorists was born out of the struggle
over what Alexander Bickel called "the countermajoritarian difficulty.""
The ambitious theories of scholars such as Ely, Dworkin, Rawls, Ackerman,
and Perry stand as the landmark achievements of that generation.
In the long run, however, this project of theory-building has proven
unsatisfying. Each ofthe landmarks mentioned above has been severely eroded,
if not entirely overthrown. The movement toward "grand theory," it may now
seem, represented a wrong turn; and it is time for retrenchment to the more
solid ground ofexperience, practice, and common sense. This diagnosis, which
views legal thought as emerging from (or perhaps still entangled in) a period
of "grand theory," helps to account for the revival of legal pragmatism. It
suggests that the pragmatists' message is not only timeless, but also timely.
A counter diagnosis, however, deserves to be considered. Note first the
insecure status of the theories of Ely, Dworkin, Rawls, and Ackerman within
the realm of"grand theory." Such theories were indeed elaborate, lengthy, and
sweeping in scope; by those criteria they would qualify as "grand theory." In
a different sense, however, such theorizing does not appear "grand" at all, but
rather peculiarly and deliberately modest. John Ely's position, emphasizing a
"concern with process in a broader sense," 188 attempted to spare the judge,
and the theorist, the difficult task ofaddressing questions ofsubstantive justice
184. 347 U.S. 483 (1954).
185. 410 U.S. 113 (1973).
186. For two expressions of this interpretation ofthe proliferation ofconstitutional theorizing, see M.
TUSHNET, RED, WHrrE, AND BLUE vii (1988); Bobbitt, Is Law Politics?(Book Review), 41 STAN. L. REV.
1233, 1237 (1989) (reviewing M. TUSHNET, RED, WHITE, AND BLUE (1988)).
187. A. BICKEL, THE LEAST DANGEROUS BRANCH 16-23 (1962).
188. 1.ELY, supranote 150, at 74.
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or morality. The theories ofRawls, Ackerman, and Dworkin, while seemingly
more "substantive," studiously avoided addressing theperennial ethical, existential,
or theological issues such as "the nature ofman," or of "the good," or the
meaning or purpose oflife. On the contrary, attheir core, the theories suggested
that government and law (and hence legal theory) must not take positions on
questions such as these.189 Such theories did not merely decline to address
such questions, but devoted themselves to insulating the law from moral and
theological thinking that might arise in other disciplines or in the culture
generally. Hence, by contrast with the true "grand theories" in the classical
sense-i.e., to philosophies such as those ofPlato, Aristotle, and Aquinas-recent
legal thought has been decidedly timid; it may plausibly be viewed not as
"grand theory," but rather as a kind of anti-"grandtheory."
This alternative characterization of recent theorizing suggests several
conclusions that clash with those ofthe pragmatist diagnosis. First, the theorizing
of Ely, Rawls, Dworkin, and Ackerman arguably has proven unsatisfying
not because it was too ambitious, but rather because it was so aggressively
unambitious. Such theorizing was precluded in advance fromproviding satisfying
answers to legal and political questions precisely because it refused to
confront essential issues such as the nature of the good life, hiding instead
behind an illusory "neutrality."'" Second, legal pragmatism may plausibly
be viewed not as challenging orreplacing this theoretical quest for"neutrality,"
but rather as carrying on that quest in a slightly altered guise. The underlying
instinct-one that avoids making difficult and controversial substantive judgments
upon fundamental human questions-seems very much the same. 19'
After all, what could be safer and less likely to give offense than a legal
philosophy that principally offers innocuous advice such as "Respect human
experience," "Listen to all sides," and "Be sensitive to context"?
Finally, if this analysis is accurate, then the pragmatist diagnosis and
prescription are misconceived. The remedy, if there is one, for the failures of
recent theorizing lies not in a pragmatic flight from theory, but rather in better
and more courageous theorizing. And the more promising recent development
189. See B. ACKERMAN, SOCIAL JUSTICE INTHE LIBERAL STATE 11 (1980); R. DWORKIN, supranote
34, at 191-92, 222 (1985); R. DWORKIN, supra note 147, at 266, 273 (1977); J. RAWLS, A THEORY OF
JUSTICE 212 (1971).
190. The neutrality notion central to such theories has been widely criticized. For my own discussion
ofsome ofthese criticisms, see Smith, TheRestorationofTolerance,63 CALIF. L. REV. 305, 313-29 (1990).
191. Indeed, from this perspective, current legal pragmatism seems much closer to the grand theory
it purports to oppose than to the thinking of a pragmatist like William James. James began his lectures on
pragmatism by declaring that "the most practical and important thing about a man is still his view of the
universe.... [T]he question is not whether the theory of the cosmos affects matters, but whether in the
longrun anything else affects them." W. JAMES, supra note 108, at 5. And throughout these lectures, James
did not avoid addressing cosmic questions, but enthusiastically confronted them.
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Pursuit of Pragmatism
in legal thought lies not in the revival of legal pragmatism, but rather in the
renewal of interest in what is awkwardly called "natural law."'192
We have, then, two diagnoses of what ails our current legal culture. One
diagnosis points to theoretical cockiness and prescribes pragmatic humility as
the remedy. A counter-diagnosis would attribute our ills to theoretical diffidence;
we have feared to confront the hard, elusive, but nonetheless essential
human questions. This diagnosis suggests thatthe pragmatist sermon is not the
message we need to hear now.
However, these competing prescriptions may, at least over time, converge.
The second diagnosis, by calling for more fearless theorizing, implies that
pragmatist exhortation will be urgently needed. To be sure, it is difficult to
predict what direction natural law thinking might take. Even a proponent of
natural law must admit that at present the propositions generated by naturalist
approaches often seem at least as platitudinous and practically unhelpful as
those issued by legal pragmatism;193 and it may be that we simply lack the
moral and metaphysical resources to get beyond such banalities. But if legal
theorists ever begin to offer-or, what is more likely, incorporate-significant
answers to fundamental ethical and existential questions, then one thing seems
certain: The pragmatic admonitions to be cautious and humble in our theorizing,
to keep in close touch with experience, to appreciate the richness of human
contexts, and to exercise tolerance and empathy toward opposing viewpoints
will be more imperative than ever.
In the end, therefore, the verdict onlegal pragmatism remains an ambivalent
one. We can benefit from pragmatism-but only if we do not expect much from
it. The pragmatist sermon is one that we need to hear, or that we will need to
hear, or both. On the other hand, it is a mistake to expect legal pragmatism to
take us very far, it cannot solve our problems, nor even provide us with a
method for solving our problems. Legal pragmatism is valuable primarily as
an admonishment to avoid theoretical pretentiousness; and it should heed its
own counsels.
192. See, e.g., J. FINNIs, supra note 57; Perry, supra note 124; L. WEhIREB, NATURAL LAW AND
JUSTICE (1987); Johnson, Some Thoughts About Natural Law, 75 CALIF. L. REV. 217 (1987); Moore, A
NaturalLaw Theory ofInterpretation,58 S. CAL L. REv. 279 (1985).
193. See, e.g., M. PERRY, supra note 124, at 11-23 (advocating commitment to "flourishing"); id.at
52 (concluding after considerable analysis that "moral discourse ought to be tried"); Johnson, supranote
192, at 224 (proposing "some unoriginal and possibly platitudinous propositions about the rational life").
For my own offering in this vein, see Smith, Why Should Courts Obey the Law?, 77 GEO. L.J. 113, 131
(1988) (proposing naturalist view of law whose central contention is that"social problems and controversies
need not be resolved only through naked power in the service of purely subjective preferences, but that
human reason can be applied in resolving such matters").
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