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PRAGMATISM, PLURALISM AND LEGAL
INTERPRETATION: POSNER'S AND RORTY'S
JUSTICE WITHOUT METAPHYSICS MEETS
HATE SPEECH
Michel Rosenfeld*
INTRODUCTION
Not surprisingly, legal interpretation is in a crisis in pluralist
societies with widely diverging conceptions of the good.1 When
there is sharp disagreement over fundamental values, there seems
to be a complete lack of objective criteria to interpret legal texts,
and particularly broadly articulated wide ranging textual provisions
such as those characteristic of constitutions.2 Accordingly, interpretation
looms as hopelessly subjective, and the interpretive subject
as indispensable but utterly problematic.3 In a homogeneous
society with widely shared religious, ethical, and political values,
legal interpretations will count as just if they manage to reconcile
* Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University. This
Article is adapted from a forthcoming book entitled JUST INTERPRETATIONS: LAW BETWEEN
ETHICS AND POLITICS, scheduled to be published in the fall of 1997 by the University
of California Press. I am grateful to David Carlson, Thomas Grey, and Richard Posner
for their helpful and insightful comments on a previous draft of this Article. All remaining
errors are of course mine.
1 In the United States, the crisis affecting legal interpretation extends both to private
and public law, and has often bitterly divided the Supreme Court. See Michel Rosenfeld,
Deconstructionand Legal Interpretation:Conflict, Indeterminacyand the Temptations of the
New Legal Formalism, in DECONSTRUCTION AND THE POSSIBILITY OF JUSTICE 152
(Drucilla Cornell et al. eds., 1992) [hereinafter Rosenfeld, Deconstruction and Legal
Interpretation].
2 This is illustrated by the United States Supreme Court's jurisprudence on the Due
Process Clause and the Equal Protection Clause of the Fourteenth Amendment. Compare
Lochner v. New York, 198 U.S. 45 (1905) (holding that the Due Process Clause prohibits
economic regulation of employer/employee relationship) with West Coast Hotel Co. v.
Parrish, 300 U.S. 379 (1937) (finding that the Due Process Clause permits such regulation);
and Plessy v. Ferguson, 163 U.S. 537 (1896) (holding racial apartheid permissible under the
Equal Protection Clause) with Brown v. Board of Educ., 347 U.S. 483 (1954) (concluding
that racial apartheid violates the Equal Protection Clause).
3 The interpretive subject ultimately determines which particular interpretation to give
a legal text, and may refer to an individual judge or a collective ideology. What is crucial
for our purposes, is that in an ideologically divided polity, the interpretive subject will
always seem biased, and therefore merely subjective to at least some of those affected by
legal interpretations. A vivid example of profound divisions regarding the interpretive
subject is provided by the bitter controversy surrounding Judge Robert Bork's nomination
to the United States Supreme Court. See Symposium, The Bork Nomination,9 CARDOZO
L. REV. 1 (1987).
CARDOZO LAW REVIEW
justice according to law with justice beyond law.4 In a deeply divided
heterogeneous society, however, seemingly irresoluble disagreements
regarding justice beyond law make virtually any
proposed alignment between justice according to law and justice
beyond law unacceptable to a significant portion of the citizenry.
Consequently, in divided polities, the search for just interpretations
tends to yield just interpretation.
Pragmatism is particularly attractive in a pluralist society inasmuch
as it promises to circumvent the thorny path to a just legal
interpretation. Indeed, by cutting through the dichotomy between
subject and object, and by rejecting the need for foundations, pragmatism
is supposed to eliminate the problematization of the interpretive
subject. Characterized chiefly by its orientation towards
the future, its adaptability, its fluidity, and its "down to earth"
quality, pragmatism purports to offer practical solutions to concrete
problems. Moreover, by confining legal interpretation to the
concrete and by orienting it towards practical consequences, pragmatism
raises the possibility of settling questions of justice according
to law without necessity to appeal to justice beyond law, or to
take sides in the contest among competing conceptions of the good.
Notwithstanding its great promise, pragmatism, in large measure
owing to its great success, has meant so many different things
to such a large number of people as to raise as many questions as it
answers. It is not clear, for instance, whether it is more accurate to
speak of pragmatism or pragmatisms; whether there is any link between
pragmatism in philosophy and in law; or whether pragmatism
can make a palpable, concrete contribution to the solution of
the crisis in legal interpretation. With this in mind, Part I of this
Article examines whether it is more accurate to speak of pragmatism
or of pragmatisms. Part II deals with the relationship between
pragmatism in philosophy and pragmatism in law. Parts III and IV
address the question of whether one can extract a common core of
useful standards relevant to legal interpretation from very different
versions of pragmatism by considering, respectively, the traditional
scientific pragmatism of Richard Posner and the neopragmatism of
4 For instance,
U]ustice according to law is achieved when each person is treated in conformity
with his or her legal entitlement. Justice [beyond] law, on the one hand, is the
justice that makes it plausible to claim that a law is unjust (even if it is scrupulously
applied in strict compliance with the entitlements which the law
establishes).
Michel Rosenfeld, Autopoiesis and Justice, 13 CARnozo L. REV. 1681, 1681 (1992) (footnote
omitted).
[Vol. 18:97
LEGAL INTERPRETATION
Richard Rorty. Based on adoption of the hypothesis that one can
extract a common core from different versions of pragmatism, Part
V puts Posner's and Rorty's pragmatism to the test, and considers
whether pragmatism affords a satisfactory practical solution to the
difficult and highly divisive interpretive conflicts raised by hate
speech. Finally, Part VI provides certain concluding remarks
stressing the limits of pragmatism and the dangers inherent in its
misuse for purposes of settling or circumventing interpretive
conflicts.
I. PRAGMATISM OR PRAGMATISMS?
Pragmatism, which originated in the United States, and which
counts the nineteenth-century American philosopher Charles
Sanders Peirce as its first major proponent,5 has been the dominant
philosophy in the United States ever since.6 Pragmatism has also
made important inroads in Europe, where it has influenced many
philosophers, most notably Jirgen Habermas.7 Moreover, by giving
pragmatism a "linguistic turn," America's most celebrated neopragmatist,
Richard Rorty, has instigated a further rapprochement
between American pragmatism and contemporary European theory,
to wit, poststructuralism and deconstruction.9
At this point, pragmatism radiates so far over the philosophical
and legal landscape as to risk becoming devoid of any determinate
meaning. Indeed, if in philosophy pragmatism regroups such
diverse figures as Peirce, William James, John Dewey, and Richard
Rorty, in contemporary American legal theory it arguably encom-
5 See Richard A. Posner, What Has Pragmatism to Offer Law?, in PRAGMATISM IN
LAW AND SOCIETY 29,' 30 (Michael Brint & William Weaver eds., 1991) [hereinafter Posner,
What Has Pragmatismto Offer Law?]. Posner points out that Peirce maintained that
he got the idea of pragmatism from a lawyer friend. Id.
6 See JOHN P. DIGGINS, THE PROMISE OF PRAGMATISM: MODERNISM AND THE CRISIS
OF KNOWLEDGE AND AUTHORITY 3 (1994) [hereinafter DIGGINS, THE PROMISE OF
PRAGMATISM].
7 For Habermas's discussion of Peirce and pragmatism, see JORGEN HABERMAS,
KNOWLEDGE AND HUMAN INTERESTS 90-139 (Jeremy J. Shapiro trans., 1971) (1968). See
also THOMAS MCCARTHY, THE CRITICAL THEORY OF JORGEN HABERMAS 293,299 (1978)
(discussing affinities between Habermas and Peirce); DIGGINS, THE PROMISE OF PRAGMATISM,
supra note 6, at 476 (referring to Habermas as a "neopragmatist").
8 See Richard Rorty, The Banality of Pragmatismand the Poetry of Justice, in PRAGMATISM
IN LAW AND SOCIETY 89, 91 (Michael Brint & William Weaver eds., 1991) [hereinafter
Rorty, The Banality of Pragmatismand the Poetry ofJustice] ("[Wle new pragmatists
talk about language instead of experience or mind or consciousness, as the old pragmatists
did.").
9 See DIGGINS, THE PROMISE OF PRAGMATISM, supranote 6, at 3.
1996]
CARDOZO LAW REVIEW
passes everyone but the most rigid of formalists.10 Consistent with
this overly broad sweep, pragmatism would appear to embrace any
practical, result-oriented approach, as opposed to any systemic approach
rooted in fundamental principles. In the words of Cornel
West, the "common denominator" of pragmatism amounts to "a
future-oriented instrumentalism that tries to deploy thought as a
weapon to enable more effective action."'1
By shifting the focus from foundations to results, pragmatism
invites all members of a pluralist society to turn away from their
disputes concerning conceptions of the good in order to join in the
common pursuit of practical results. Thus, under pragmatism, justice
according to law would depend neither on particular conceptions
of the good, nor on finding an Archimedean point between
these conceptions, nor on systematically severing law from other
normative or social endeavors. Instead, justice according to law
would be measured by its practical consequences, by the actual results
to which it leads.
So far, so good. However, a nagging question emerges. Assuming
that different laws (or different interpretations of the same
law) would lead to different practical consequences, can recourse
to pragmatism determine which of the available alternatives ought
to be pursued? In short, is pragmatism self-sufficient or is it merely
parasiticon certain contestable conceptions of the good?
This last question is crucial for our purposes. This is so because
if pragmatism turns out to be merely parasitic on contestable
conceptions of the good, its attractiveness would be very limited.
Under those circumstances, pragmatism could help us avoid normative
disputes when no demonstrable practical consequences are
at stake, but otherwise could do little to overcome clashes between
conceptions of the good. To illustrate this point, let us suppose that
a society is equally divided among those who maintain that wealthmaximization
is the summum bonum and those who assert that society
ought to pursue social solidarity above all. Let us further suppose
that a judge in that society is confronted with the task of
interpreting a broad, generally phrased constitutional equality provision,
and that he or she knows that one plausible interpretation
will actually foster wealth-maximization to the detriment of social
10 See Rorty, The Banality of Pragmatismand the Poetry ofJustice, supranote 8, at 89-
91 (according to Rorty; Judge Richard Posner, the neoconservative leader of the "Law and
Economics" school; Ronald Dworkin; and Roberto Unger, one of the leading figures in the
Critical Legal Studies Movement; can all be considered to be pragmatists).
11 CORNEL WEST, THE AMERICAN EVASION OF PHILOSOPHY: A GENEALOGY OF PRAGMATISM
5 (1989).
100 [Vol. 18:97
LEGAL INTERPRETATION
solidarity, while another plausible interpretation would undoubtedly
lead to the opposite result. In that case, there is no question
that both of the plausible interpretations would lead to palpable,
empirically verifiable effects, but pragmatism would appear to offer
no help to a judge having to choose between the two alternatives.
Accordingly, the judge would have to fall back on contested values
in order to justify either of the two available alternatives.
It is conceivable, though highly unlikely, that pragmatism, if
properly and consistently followed, could rise above dependence
on contestable conceptions of the good. What makes this particularly
unlikely is the wide span of political ideologies embraced by
various proponents of pragmatism, and the great divergence between
old pragmatist and new pragmatist conceptions of "what
works." 'For old pragmatists, like Peirce and Dewey, "what works"
was understood in terms of scientifically grounded experience. 12
For neopragmatists like Rorty, on the other hand, "what works" is
conceived in terms of a "linguistic redescription" susceptible of
gaining widespread acceptance primarily on account of its aesthetic
appeal.
13
A pragmatism completely freed from the grip of contestable
conceptions of the good, then, is highly unrealistic. A pragmatism
entirely parasitic on such conceptions is largely uninteresting. The
possibility of a pragmatism that falls between these two extremes,
however, is worth investigating, and will provide the principal focus
of the remainder of this Article. Such pragmatism may be termed
"intermediate pragmatism" to distinguish it from a "comprehensive
pragmatism" that would do away with the need to rely on contestable
conceptions of the good, and from a "mere pragmatism"
that is but a parasite. Unlike mere pragmatism-which amounts to
a pragmatism of means-and comprehensive pragmatism-which
is a pragmatism of means and ends-intermediate pragmatism purports
to be a pragmatism of means and some ends (or at the very
least, a special pragmatism of means allowing for a different perspective
on ends).
The possibility of intermediate pragmatism is worth exploring
in relation to concerns regarding just interpretations in a pluralistic.
society. Indeed, such concerns presuppose commitment to certain
12 See, e.g., CHARLES S. PEIRCE, The Fixationof Belief,in THE PHILOSOPHY OF PEIRCE:
SELECTED WRITINGS 5 (Justus Buchler ed., 1956); JOHN DEWEY, LOGIC: THE THEORY OF
INQUIRY 345 (1938); DIGGINS, THE PROMISE OF PRAGMATISM, supra note 6, at 235.
13 See RICHARD RORTY, CONTINGENCY, IRONY AND SOLIDARITY 7-22 (1989) [hereinafter
RORTY, CONTINGENCY, IRONY AND SOLIDARrrY].
1996]
CARDOZO LAW REVIEW
ends, most notably the promotion of social cooperation and peaceful
co-existence without doing away with diversity predicated on
the legitimate pursuit of competing conceptions of the good. Assuming
that the latter end is not itself a product of pragmatism,14
then intermediate pragmatism may well furnish the practical means
to realize the desired end so long as it does not mandate the
achievement of any inconsistent ends.15
The search for intermediate pragmatism is complicated by the
fact that pragmatists have tended to treat the relationship between
means and ends with a remarkable lack of concern.' 6 One critic
has even suggested that the very success of pragmatism in the
United States can be explained in terms of a pervasive uncritical
acceptance of a Lockean conception of ends.17 In light of this, and
in order to sharpen the contrast between means and ends, I shall
explore the possibility of intermediate pragmatism on the basis of a
comparison between two very different versions of pragmatism,
namely Richard Posner's brand of old pragmatism and Richard
Rorty's neopragmatism. Moreover, what makes a comparison between
Posner, who is on the right of the American political spectrum,
and Rorty, who is on its left, particularly apt for our purposes
is that they both agree that pragmatism justifies extensive freedom
of expression rights.' 8 Actually, Posner goes so far as to-assert that
the scope of protection of free speech is one-and perhaps the
only-legal question to which pragmatism is "directly
applicable."' 9
Given the universal embrace of freedom of speech in contemporary
democracies, one may object that its derivation from prag-
14 If it were, then we would be dealing with comprehensive pragmatism. But that
would simplify rather than complicate the task, for the problem would then be reduced to
the selection of adequate means. Accordingly, if intermediate pragmatism can do away
with the need to pursue the quest for just interpretations, a fortioriso can comprehensive
pragmatism.
15 Of course, if such intermediate pragmatism turned out to be completely indifferent
as between all ends, it would collapse into mere pragmatism and would prove useless inasmuch
as it would be equally compatible with pluralistic diversity and with its destruction.
16 Thus, for instance, "Dewey saw no troubling dualism between means and ends because
he regarded ends as given." DIGGINS, THE PROMISE OF PRAGMATISM, supra note 6,
at 242.
17 See Louis HARTZ, THE LIBERAL TRADITION IN AMERICA: AN INTERPRETATION OF
AMERICAN POLITICAL THOUGHT SINCE THE REVOLUTION 10 (1955).
18 See Posner, What Has Pragmatismto Offer Law?, supra note 5, at 36-37; RORTY,
CONTINGENCY, IRONY AND SOLIDARITY, supra note 13, at 60; RICHARD RORTY, CONSEQUENCES
OF PRAGMATISM 69-70 (1982) [hereinafter RORTY, CONSEQUENCES OF
PRAGMATISM].
19 See Posner, What Has Pragmatismto Offer Law?, supra note 5, at 36.
[Vol. 18:97
LEGAL INTERPRETATION
matism and the agreement between Posner and Rorty may
ultimately be merely trivial. Therefore, to avoid reaching misleading
conclusions, I shall test the respective pragmatisms of Posner
and Rorty against the divisive issue of extremist or hate speech.
Extremist speech, which gives rise to what Karl Popper has called
"the paradox of tolerance,"2 has been afforded protection in certain
constitutional democracies like the United States, but banned
in others.21 Accordingly, pragmatism's production of a resolution
to the paradox of tolerance, and an inquiry into whether both Posner
and Rorty would agree to it, promises to shed light on the possibility
and potential of intermediate pragmatism.
Before taking a closer look at Posner and Rorty, however, an
important question must be addressed, namely: What links, if any,
can be established between pragmatism in philosophy and pragmatism
in law? Although law and philosophy constitute two distinct
practices, they overlap in certain instances.22 From this, however, it
does not necessarily follow that there is any common ground between
pragmatism in law and in philosophy. In other words, it is
conceivable that legal pragmatism is reducible to a mere parasitic
pragmatism. If that were the case, then the possibility of intermediate
pragmatism in philosophy would be of no help in establishing
plausible links between justice according to law and justice beyond
law. With that in mind, let us now take a closer look at how pragmatism
in law stacks up against pragmatism in philosophy.
II. PRAGMATISM IN LAW VERSUS PRAGMATISM IN PHILOSOPHY
Neither Rorty nor Posner sees any intimate relationship between
philosophical pragmatism and legal pragmatism. Rorty
states: "I agree with Posner that judges will probably not find pragmatist
philosophers-either old or new-useful. ' 23 This is not to
say, however, that Posner, Rorty, and other pragmatists see no relationship
between pragmatism in philosophy and in law. According
to them, pragmatist philosophy performs a useful task that
facilitates the practice of legal pragmatism, but that task involves
the removal of obstacles-or, to use Posner's metaphor, "clear[ing]
20 See 1 K.R. POPPER, THE OPEN SocIETY AND ITS ENEMIES 265 n.4 (5th ed. 1966).
Popper suggests resolving the paradox by limiting tolerance to the tolerant. Id. at 266 n.4.
For further discussion of the paradox, see infra notes 136-82 and accompanying text.
21 See infra note 165 and accompanying text.
22 See MICHEL ROSENFELD, AFFIRMATIVE ACTION AND JUSTICE: A PHILOSOPHICAL
AND CONSTITUTIONAL INQUIRY 135-40 (1991).
23 Rorty, The Banality of Pragmatismand the Poetry of Justice, supra note 8, at 92.
1996] 103
CARDOZO LAW REVIEW
the underbrush" 24-rather than building a philosophical framework
affording backing to legal practice. According to this view,
pragmatist philosophy's antifoundationalism has a liberating effect
on law, by freeing the legal theorist from having to justify practical
solutions to legal problems under any comprehensive theory. In
the words of Thomas Grey, "[p]ragmatism is freedom from theoryguilt
.... "25
The apparent liberation afforded to law by pragmatist philosophy
may have at least three different meanings. First, it may mean
that pragmatist philosophy frees law from the need to have any ties
to philosophy or any other comprehensive theory. Second, it may
mean that pragmatist philosophy makes it possible for law to pick
and choose whatever it finds useful among all available philosophies,
without regard for consistency or comprehensiveness. Or,
third, it may mean that, while law need not derive something positive
from pragmatist philosophy, legal pragmatism depends on
pragmatic philosophy for purposes of keeping at bay any encroachments
from foundationalism or comprehensive theory. In the first
case, philosophical pragmatism would make the case that legal
pragmatism has altogether no need and no use for philosophy. In
the second case, legal pragmatism would emerge as a mere pragmatism
that could be engrafted on any philosophy of one's choosing
without concern for consistency or comprehensiveness. Finally,
in the third case, philosophical pragmatism and legal pragmatism
would have a mutual connection making it possible for them to
combine together into some version of intermediate pragmatism.
All three of these cases have at least some plausibility. The
plausibility of the first case stems, above all, from the sense that
law is a practical endeavor that must aim for workable solutions
that make a real difference in the empirical world. Accordingly,
there ought to be a clear division of labor between philosophy and
law. Thus, for instance, a philosophically grounded theory of justice
may well justify holding a party to a contract to his or her original
promise as he or she intended it and understood it at the time
of entering into the relevant contract. However, with no practical
way to verify what a person actually intended or understood some
24 Posner, What Has Pragmatismto Offer Law?, supra note 5, at 44.
25 Thomas C. Grey, What Good is Legal Pragmatism?,in PRAGMATISM IN LAW AND
SOCIETY 9, 10 (Michael Brint & William Weaver eds., 1991) [hereinafter Grey, What Good
is Legal Pragmatism?].
[Vol. 18:97
LEGAL INTERPRETATION
time in the past,26 a legal rule relying on past subjective intent to
settle contractual disputes would be impractical and could well lead
to more harm than good. In short, holding contract promisors to
their actual subjective intent may constitute a compelling ethical
norm, but an unworkable legal norm.
That law raises pragmatic questions which neither philosophy
nor ethics can answer is hardly surprising. Actually, even certain
comprehensive theories that are not reducible to pragmatism, such
as Habermas's discourse theory, recognize the legitimacy of pragmatic
justifications in law, but not in morals.27 Indeed, there is
nothing logically inconsistent about embracing Kantian morals and
adopting a pragmatic approach when it comes to law.28 Accordingly,
the crucial question raised by the first of the three cases discussed
above is not whether there is a split between philosophy and
law, but whether, as a consequence of being unavoidably steeped
in pragmatic considerations, law ultimately proves to be independent
of philosophy.
Unless one adheres to an extremely reductive conception of
law as being purely instrumental, and as having no role whatever in
establishing any kind of ends, the answer to the last question must
be in the negative. In any complex advanced legal system, law
must determine at least some ends. Such determinations, moreover,
cannot always be achieved by mere reference to law or to the
political process resulting in the enactment of positive law. For example,
whether a broadly articulated constitutional equality right
should be construed to prohibit discrimination against homosexuals,
or whether a generally phrased constitutional privacy right requires
protecting a woman's right to an abortion, is unlikely to be
cogently addressed without any reference to ethical norms or other
broader philosophical concerns. Thus, unless pragmatism is made
synonymous with preservation of the status quo, or unless particularly
extreme circumstances are at hand, the consequences alone
26 Even if a promisor is scrupulously honest, his or her recollection of what he or she
intended months or years ago, when the contract now in dispute was entered into, may well
be distorted or vague.
27 See JORGEN HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DisCOURSE
THEORY OF LAW AND DEMOCRACY (William Rehg trans., 1996) [hereinafter
HABERMAS, BETWEEN FACTS AND NORMS]; Michel Rosenfeld, Law as Discourse: Bridging
the Gap Between Democracy and Rights, 108 HARV. L. REV. 1163, 1177 (1995) (book
review).
28 As a matter of fact, Kant advocates a prudent course of action in law and politics
even if that results in postponing compliance with the dictates of morals. See IMMANUEL
KANT, PerpetualPeace:A PhilosophicalSketch, in KANT: POLITICAL WRITINGS 93, 118-19
(Hans Reiss ed. & H.B. Nisbet trans., 2d ed. 1991) (1970).
1996]
CARDOZO LAW REVIEW
cannot supply a principled answer to the relevant question confronting
the constitutional judge.29 Indeed, protecting homosexual
lifestyles is likely to have certain practical consequences, and refusal
to do so certain otherpractical consequences. Because of this,
a judge may not be able to arrive at a cogent resolution of the
question of constitutional equality rights for homosexuals on the
basis of a legal pragmatism that is completely severed from ethics
or philosophy. More generally, the first of the three cases described
above looms as unpersuasive. Adherence.to legal pragmatism,
therefore, does not, in the last analysis, justify a complete
emancipation of justice according to law from justice beyond law.
The second of the three cases stems from an understanding of
the liberating effect of pragmatist philosophy on law that, in effect,
reverses the respective positions of philosophy and law. In a conventional
foundationalist setting, philosophy can be viewed as preceding,
and standing above, law. For example, one may embrace a
Lockean theory of property and assess the legitimacy of laws in
terms of their compatibility with the relevant precepts of Lockean
theory.3° In case of conflict, Lockean theory would unquestionably
control, and inconsistent laws or interpretations of laws would have
to be cast aside to make room for suitable substitutes. In the antifoundationalist
setting carved out by pragmatist philosophy, by
contrast, practical solutions to actual legal problems would become
paramount and philosophical justifications would play a subsidiary
role. Thus, the principal objective would be to find an acceptable
and workable practical solution to an actual legal problem, and
then resort to philosophy only to refute charges that the adopted
solution is arbitrary or unethical. Putting law before philosophy,
while linked to the pragmatist philosopher's skepticism,31 is by no
means an exercise in cynicism. Indeed, practical legal problems
29 As an example of "extreme circumstances," one could imagine a situation in which a
majority of the population is so inflamed against homosexuality that a mere extension of
rights to homosexuals is almost inevitably guaranteed to result in a campaign of terror and
violence against them. In that situation, it would seem plausible to argue that refusal to
extend rights to homosexuals is morally wrong, but pragmatically justified to avoid dire
consequences. It is important to note, however, that even in such an extreme situation,
pragmatism itself does not, strictly speaking, require bowing to the statusquo or giving in
to the threat of violence. Indeed, it is by no means logically inconsistent for a pragmatist to
argue that the practical consequences of a violent revolution are preferable to the practical
consequences of continuing to condone an intolerable status quo.
30 This does not mean, of course, that to be a competent judge one would have to be a
Lockean scholar. Rather, Lockean norms would be embedded in prevailing legal standards,
and Lockean reasoning would permeate legal arguments.
31 See RICHARD A. POSNER, OVERCOMING LAW 6 (1995) [hereinafter POSNER, OVERCOMING
LAW].
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LEGAL INTERPRETATION
confronting a judge may be so particularized as to defy any neat
classification in terms of any general philosophical conceptions. In
a complex situation, there may be a widely shared intuition on how
to reach a just result in a particular case. A systematic philosophical
justification of such an intuition may seem hopelessly elusive,
even as some plausible, albeit partial and incomplete, philosophical
justification serves to dispel the suspicion that the result is merely
arbitrary.
In certain other situations, there may be a clear link between a
particular legal solution and philosophically grounded support for
it, but two legal solutions widely believed to be just may lead to
competing and perhaps even inconsistent philosophical justifications.
For example, one can imagine that there is widespread consensus
that equality in relation to medical benefits should be
interpreted to mean equality based on need, whereas equality in
relation to employment should be construed as being limited to
formal equality of opportunity.32 Equality according to need
would be justified under an egalitarian but not a libertarian theory
of justice, while formal equality of opportunity would be called for
under a libertarian but not an egalitarian theory of justice.33 In
short, so long as law remains in the forefront and philosophy in the
background, and as philosophical pragmatism frees those who seek
to determine justice according to law from the need to be philosophically
comprehensive or consistent, legal pragmatism can apparently
flourish as a form of mere pragmatism. But the latter
mere pragmatism-to which we may refer to as "mere legal pragmatism"-differs
significantly from the mere pragmatism that was
discussed above-which we may refer to, by way of contrast, as
"mere philosophical pragmatism." Actually, mere legal pragmatism
stands mere philosophical pragmatism on its head. Under
mere philosophical pragmatism, pragmatism serves as a screen for
some non-pragmatic ultimate end or justification. Under mere
32 Formal equality of opportunity means that "X and Y have equal opportunity in regard
to A so long as neither faces a legal or quasi-legal barrier to achieving A the other
does not face." ROBERT K. FULLINWIDER, THE REVERSE DISCRIMINATION CONTROVERSY:
A MORAL AND LOGICAL ANALYSIS 101 (1980) (footnote omitted).
33 To be sure, equality according to need in one area and formal equality in another
could easily be made consistent by subsuming them under a suitable comprehensive theory
of justice, such as utilitarianism. Thus, it is plausible that the greatest good of the greatest
number would best be promoted by dispensing medical benefits according to need and
employment positions through competition equally open to all. Nevertheless, there appears
to be no inherent contradiction in adhering to egalitarianism regardless of utilities in
the context of medical benefits and at the same time to libertarianism, even in the face of
disutilities, in the realm of employment.
1996]
CARDOZO LAW REVIEW
legal pragmatism, philosophy furnishes an attractive wrapping for a
practical solution to a concrete problem that stubbornly refuses to
be neatly subsumed under any comprehensive theory.
The mere legal pragmatism that emerges in the second case
does not do away with philosophy in the way that legal pragmatism
under the first case does. Nevertheless, mere legal pragmatism deflates
and relativizes the role of philosophy; seemingly placing all
ethical norms on an equal footing regardless of the conception(s)
of the good which sustain(s) them; and thus reduces philosophy (in
relation to justice according to law) to a parasitic role.
Subordinating philosophy to law may seem more appealing
than altogether severing philosophy from law. But the question remains
whether making philosophy parasitic on law can ultimately
lead to a satisfactory solution to the problem of just interpretations.
As we shall now see, the answer must be in the negative.
This becomes obvious from consideration of situations in which
there is sharp disagreement concerning the ends to be served by a
particular law or legal interpretation.
Upon close examination, mere legal pragmatism only proves
attractive when set against a background of widespread consensus
on relevant values. Such consensus need not be philosophically
comprehensive or consistent. For instance, there is nothing anomalous
about a consensus based in part on libertarian ideas and in
part on egalitarian ones. Moreover, so long as the consensus holds,
there may be no awareness of prevailing philosophical inconsistencies
and no need to fill existing theoretical gaps. In short, broad
agreement on ends obviates the need to examine or justify them,
and allows for concentration on means, to wit, on legal solutions
that work.
Another possibility that has the effect of relegating philosophical
issues to the background, is that a practical legal solution to a
problem happens to be consistent with several otherwise inconsistent
philosophical positions. For example, the legitimacy of freedom
of expression can be predicated on different philosophical
justifications. Thus, in the United States, free speech rights have
been variously defended under a democratic self-government theory,34
a marketplace of ideas theory,35 and an individual self-ex-
34 The foremost proponent of this theory was Alexander Meiklejohn. See ALEXANDER
MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF GOVERNMENT (1948).
35 This theory, which will be discussed below, see infranote 140 and accompanying text,
has its judicial origins in Justice Holmes's famous dissent in Abrams v. United States, 250
U.S. 616 (1919), and its philosophical origins in John Stuart Mill's On Liberty.
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LEGAL INTERPRETATION
pression theory.36 Each of these theories justify protecting political
speech, although arguably only the latter two require protecting
artistic expression37 and only the self-expression theory may cogently
extend protection to pornography.38 Consistent with this,
proponents of all three theories can set their differences aside
when dealing with political speech. Under these circumstances,
pragmatism merely counsels not to jeopardize the pursuit of legal
objectives consonant with one's philosophy by engaging in unproductive
theoretical debates that might as well be postponed.39
Whether complacence, confusion, or overlap is responsible for
philosophy's low profile, it is not likely to last once background
consensus dissolves in the face of a sharply divisive issue, such as
abortion. Indeed, when dealing with an issue like abortion, the
luxury of relegating theoretical concerns to a secondary plane
quickly vanishes, conflict between proponents of different practical
ends seems bound to erupt, and the advocates of each contending
position are called upon to justify their preferences. Moreover, as
the debate sharpens, it becomes increasingly necessary to develop
a more consistent and comprehensive position to counter the attacks
of adversaries bent on exploiting every possible inconsistency
or weakness. Unless one concedes that selection among contending
legal avenues is merely a matter of politics, one must reach
back to find the best possible theoretical support for one's preference.
In sum, when dealing with genuinely divisive issues susceptible
of competing practical solutions, neither mere legal pragmatism
nor mere philosophical pragmatism holds up. Accordingly, legal
pragmatism can neither completely do away with philosophy nor
consistently confine itself to a purely parasitic relationship to
philosophy.
That leaves the third case in which legal and philosophical
pragmatism combine to yield an intermediate pragmatism. In this
36 According to this theory, the right to self-expression is essential in relation to individual
autonomy and dignity. See, e.g., RONALD DWORKIN, TAKING RIGHTS SERIOUSLY
(1977); David A.J. Richards, FreeSpeech and Obscenity Law: Toward a Moral Theory of
the FirstAmendment, 123 U. PA. L. REV. 45 (1975).
37 See Robert H. Bork, Neutral Principlesand Some FirstAmendment Problems, 47
IND. L.J. 1 (1971) (advancing a narrow view of the self-government theory that condones
refusing to protect works of fiction).
38 The marketplace of ideas theory rejects protecting pornography on the grounds that
it is unlikely to contribute anything to the discovery of the truth. See Cass R. Sunstein,
Pornographyand the First Amendment, 1986 DUKE L.J. 589, 616-17; Frederick Schauer,
Response: Pornographyand theFirstAmendment, 40 U. PITT. L. REV. 605, 608 n.14 (1979).
39 Unlike in the case of tacit consensus, in the latter case of philosophical overlap we
are dealing with mere philosophical pragmatism rather than with mere legal pragmatism.
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CARDOZO LAW REVIEW
last case, pragmatic philosophy's liberation of legal pragmatism
from the constraints of comprehensive theory does not mean liberation
from all philosophy or freedom to pick and choose among all
philosophies. It means, instead, freedom from all philosophies
other than pragmatism on the condition of submitting to the constraints
dictated by pragmatist philosophy. And if these constraints
are often hard to discern, it is because they seem to be primarily
negative ones. But we are getting ahead of our story. Before further
exploring the possibility of intermediate pragmatism, we must
take a closer look at the different versions of pragmatism advocated,
respectively, by Posner and Rorty.
III. RICHARD POSNER'S BLEND OF SCIENTIFIC PRAGMATISM,
LAW AND ECONOMICS, AND LIBERAL INDIVIDUALISM
A. Posnerand IntermediatePragmatism
Richard Posner's pragmatic jurisprudence emerges in the context
of his distinguished career as a legal academic and judge. He
is the preeminent exponent of the law and economics school, and is
one of the leading federal judges in the United States.4" His
unique blend of unusually broad theoretical interests4 ' and practical
experience as a judge have led him to acknowledge the limitations
of the economic approach to law,42 and to embrace
philosophical pragmatism.43 Moreover, Posner purports to blend
his philosophical pragmatism with his commitment to the economic
approach to law and to liberal individualism.44
Posner's pragmatism is particularly interesting for our purposes
in that it seems a good candidate for an intermediate pragmatism.
Indeed, Posner rejects the proposition that law is
autonomous, 45 and asserts that it is pragmatism that justifies the
40 See Stephen B. Presser, A Kinder Posner: The Masterof Legal Controversy Becomes
More Ecumenical,CHI. TRIE., April 23, 1995, at 2 (reviewing RICHARD A. POSNER, OVERCOMING
LAW (1995)); RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW (3d ed. 1986)
[hereinafter POSNER, ECONOMIC ANALYSIS OF LAW]; RICHARD A. POSNER, THE ECONOMICS
OF JUSTICE (1981).
41 In addition to his prolific contributions in law and economics, Richard Posner has
written on many diverse subjects. See, e.g., POSNER, OVERCOMING LAW, supra note 31;
RICHARD A. POSNER, SEX AND REASON (1992); RICHARD A. POSNER, LAW AND LITERATURE:
A MISUNDERSTOOD RELATION (1988).
42 See POSNER, OVERCOMING LAW, supra note 31, at 22-23.
43 See RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 454-69 (1990) [hereinafter
POSNER, THE PROBLEMS OF JURISPRUDENCE].
44 See POSNER, OVERCOMING LAW, supra note 31, at 22-29.
45 See POSNER, THE PROBLEMS OF JURISPRUDENCE, supranote 43, at 428-53.
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LEGAL INTERPRETATION
economic approach to law46 and adherence to liberal individualism.
47 Furthermore, since Posner maintains that neither the economic
approach to law nor individualistic liberalism is
comprehensive,48 his pragmatism requires some, but by no means
all, ends.49
Posner's brand of pragmatism is scientific in the tradition of
Peirce and Dewey. In his own words,
[p]ragmatism in the sense that I find congenial means looking at
problems concretely, experimentally, without illusions, with full
awareness of the limitations of human reason, with a sense of
the "localness" of human knowledge, the difficulty of translations
between cultures, the unattainability of "truth," the consequent
importance of keeping diverse paths of inquiry open, the
dependence of inquiry on culture and social institutions, and
above all, the insistence that social thought and action be evaluated
as instruments to valued human goals rather than ends in
themselves. These dispositions, which are more characteristic of
scientists than of lawyers (and in an important sense pragmatism
is the ethics of scientific inquiry), have no political valence.50
On its face, Posner's pragmatism is thus antifoundationalist and
anti-Cartesian, experimental and culturally relativistic, and open to
a seemingly unlimited array of ultimate value preferences and conceptions
of the good. Posner insists that his pragmatism is antidogmatic
and skeptical without being radically or dogmatically
so.51
Posner regards pragmatism as sufficiently skeptical to foreclose
the finality of any scientific insight or hypothesis, but not so
thoroughly skeptical as to raise serious doubts about the existence
of the outside world or the belief that some propositions are more
sound than others.52
46 See POSNER, OVERCOMING LAW, supra note 31, at 15-21.
47 See id. at 23.
48 Id. at 23-25.
49 What should count as means and what as ends is no simple matter, for certain ends
may properly be regarded as means towards other ends. Thus, political liberalism may be
regarded as a desirable political end, but consistent with the ideology of individualism, may
also be regarded as a means towards the ultimate end of allowing each individual the greatest
opportunity to pursue his or her own self-interest consistent with an equal opportunity
for all. Whereas the dialectics between means and ends will be further explored below, see
infra notes 53-55 and accompanying text, for now suffice it to say that liberalism can be
properly conceived as a political end and law as molded through the economic approach as
a practical means necessary to promote the end of maximizing the welfare of society.
50 POSNER, THE PROBLEMS OF JURISPRUDENCE, supra note 43, at 465.
51 See POSNER, OVERCOMINGLAw, supra note 31, at 6.
52 Id.
ill1996]l
CARDOZO LAW REVIEW
Upon more exacting scrutiny, however, Posner's pragmatism
does not prove as flexible, culturally relativistic, and antidogmatic
as he believes. Specifically, while Posner's pragmatism remains
open-ended regarding ultimate ends, it turns out to be much more
rigid than might be expected when it comes to means. To be sure,
rigidity concerning means may merely result from proper focus on
practical consequences. If, regardless of which of the many possible
ends is pursued, the same means are called for, then a singular
set of means is consistent with a plurality of ends, and conditions
are presumably propitious for intermediate pragmatism to thrive.
But rigidity concerning means may also result from dogmatism
concealed through a shift in focus from ends to means. In the latter
case, what appears to be intermediate pragmatism turns out to
be mere pragmatism in disguise. To determine where Posner's
pragmatism fits in the last analysis, it is therefore necessary to examine
its relation to the economic approach to law and to liberal
individualism, and to its handling of the nexus between means and
ends.
Because of his openness to a wide array of diverse value-preferences
and goals among members of the polity, Posner seems agnostic
concerning ultimate ends. Consistent with this, his economic
approach to law and his liberal individualism are but means in the
overall scheme of maximizing the opportunities for everyone to
pursue his or her conception of the good. And, since under pragmatism
particular means become justified upon proof that they afford
the best practical path to a desired end, commitment to the
economic approach to law and to liberal individualism implies that
no better practical alternative has been found.
It seems anomalous that agnosticism regarding ends should go
hand in hand with firmly entrenched means. Plausibly, in such a
case, what on the surface appears as a progression from means to
ends, is at bottom the product of a reversal between means and
ends concealed by the vicissitudes of the dialectic that connects sequences
of events into relationships of means to ends. In terms of
that dialectic what counts as means, and what as ends, depends on
the perspective from which a relevant sequence is approached.
Thus, for example, from the perspective of achieving justice according
to law, the economic approach to law emerges as a means
towards the end of achieving just interpretations. By contrast,
from the perspective that posits maximizing the welfare of society
as the targeted end, achieving justice according to law emerges as a
means. Accordingly, anything that is best characterized as an end
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LEGAL INTERPRETATION
under certain relevant perspectives, and as a means under others,
can at most be a relative or intermediate end. By the same token,
only something that counts as an end from the standpoint of every
relevant perspective can be genuinely considered as a final end. 3
Furthermore, under pragmatism, means and intermediate ends are
evaluated in terms of their practical contribution toward final ends.
Agnosticism concerning final ends, therefore, casts a serious doubt
on any preference among means or intermediate ends.
A reversal between means and ends, on the other hand, occurs
when a temporal means/end sequence is juxtaposed against a conceptual,
ideologically grounded means/end relationship pursuant to
which the temporally anterior event constitutes the end while the
temporally posterior one amounts to the means. As an illustration,
consider the following example involving a lottery to dispose of a
sum of money coveted by a large number of potential recipients.
An obvious interpretation would be to regard the lottery as the
(temporally anterior) means to a (subsequent) fair distribution of
the relevant sum of money to one of the equally deserving potential
recipients. But, in the context of an ideology that seeks to portray
allocations of wealth as arbitrary and uncertain, it seems quite
plausible to frame the lottery as a desirable or inevitable institution,
and to treat the actual distributions that it yields as a means to
reinforce a sense of arbitrariness and insecurity. 4 In the latter
case, moreover, by preaching indifference as to the actual distributions
resulting from the lottery, one can mask the overriding objective
of legitimating the lottery as an end in itself (at least in relation
to the distributions that it actually yields) by concealing the relevant
conceptual sequence under the more obvious and superficially
appealing chronological sequence.
To assess fairly whether Posner's pragmatism ultimately rests
on a reversal of means and ends, I shall first explore to what extent
his combination of agnosticism regarding ends, advocacy of the
economic approach to law, and embrace of liberal individualism
can be cogently defended as yielding intermediate pragmatism. To
this end, I should point out that agnosticism regarding ends can
mean two different things depending on whether it is the consequence
of dogmatic skepticism or of pragmatic skepticism. In the
53 "Final" should be understood here as implying that the end in question cannot assume
the role of a means pursuant to a shift in relevant perspective, but not as implying
that it may not be legitimately substituted by another (non-intermediate) end.
54 Strictly speaking, it is the recollection of past arbitrary distributions or the projection
of anticipated future ones that serves as means to cast the lottery as a desirable or inevitable
institution.
1996]
CARDOZO LAW REVIEW
first of these cases, all ends are literally equivalent. This means
that they all stand on the same plane and that adoption of any one
of them is no better or worse than adoption of any other, or of a
scheme that makes for the peaceful coexistence of as many diverse
ends as possible. In short, dogmatic skepticism renders all ends
equally contingent and arbitrary, thus making pragmatism practically
useless.
Under pragmatic skepticism, however, agnosticism regarding
ends may take on an altogether different meaning. Indeed, pragmatism's
antifoundationalism results not in the equivalence of all
conceivable ends, but rather in the belief that no conception of the
good could ever be definitively established as superior to its rivals.
Consistent with this, the pragmatist can justify putting one end on a
different plane than all the others, namely the end of maximizing
equal freedom to pursue other ends. This special end thus becomes
a second-order end while all other ends remain, in principle,
on the same plane as first-order ends. Under pragmatic skepticism,
therefore, agnosticism regarding ends should be understood as being
limited to first-order ends.
In a sense, the second-order end appears as merely a means
toward first-order ends, or in other words, merely an intermediate
end that must be reached to preserve the widest possible, choice of
final ends. But because the pragmatic skeptic can give no definitive
endorsement to any first-order (final) end, he or she must rely
on the second-order end as the only constant objective against
which the practicality of all available means must be eventually
tested. Furthermore, in as much as Posner views himself as a pragmatic
skeptic,55 his agnosticism implies commitment to the secondorder
end. Accordingly, Posner may well prove to be an intermediate
pragmatist in spite ofhis agnosticism. What remains to be seen,
however, is whether his economic approach to law and his liberal
individualism can be successfully defended as the best possible
practical means toward the achievement of the predominant second-order
end.
B. Pragmatismand Posner'sLaw and Economics
Even as tempered by his pragmatic skepticism, Posner's ambitions
for the economic approach to law cannot be characterized as
modest. In his own words:
55 See supra note 31.
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LEGAL INTERPRETATION
The most ambitious and probably the most influential effort in
recent years to elaborate an overarching concept of justice that
will both explain judicial decision making and place it on an objective
basis is that of scholars working in the interdisciplinary
field of 'law and economics,' as economic analysis of law is usually
called.56
Thus, if law and economics fulfills its promise, the problem of just
int*erpretations would largely disappear. Legal interpretation
would be taken out of the hands of limited, partisan, biased, and
self-interested interpretive subjects, and become entrusted to the
objectively grounded and empirically testable norms and instrumentalities
of economic science. In a nutshell, relying on the assumption
of instrumental rationality57 economics-in its two
dimensions as a positive science that purports to explain the behavior
of instrumentally rational self-interested human actors and as a
prescriptive science oriented towards wealth-maximization-furnishes
objective (in the sense of scientifically testable) criteria for
the evaluation and interpretation of laws. Thus, for example, assuming
that a particular law may be susceptible to a number of
different interpretations, law and economics prescribes that the interpretation
best suited to lead to wealth-maximization be adopted.
Moreover, the emphasis on wealth-maximization seems pragmatically
justified as consistent with agnosticism concerning first-order
ends. As Posner asserts, "wealth maximization may be the most
direct route to a variety of moral ends."'5 8 In other words, wealth
maximization may be best suited to lead to maximization of equal
freedom to pursue the widest possible range of first-order ends.
From the perspective of law and economics, justice according
to law is bounded by instrumental rationality and the scientific pursuit
of wealth-maximization. This allows for the elimination of formalistic
and subjective approaches to legal'interpretation. To use
an example furnished by Posner, suppose a common law judge
must decide whether the finder of a lost cat is entitled to a reward
upon its return to an owner under the following circumstances.
The owner had posted notices offering a reward for the return of
the cat, but the actual finder, being unaware of such notices, did
not expect any reward when he decided to bring the cat to its
owner.59 Pursuant to some formalistic conception of contract law,
56 POSNER, THE PROBLEMS OF JURISPRUDENCE, supra note 43, at 353 (footnote
omitted).
57 See id. at 367 (economics "assumes that human beings behave rationally ... .
58 Id. at 382.
59 POSNER, OVERCOMING LAW, supra note 31, at 423.
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CARDOZO LAW REVIEW
justice would not require the owner to pay the reward, for there
was no conceivable "meeting of the minds" between him and the
finder. Under law and economics, however, awarding the reward
to the finder would be just if enforcement of a legal rule extending
rewards in all similar cases would be wealth-maximizing.60
As law and economics becomes ever more pervasive in its
scope, it raises the question of whether in the end law might not
become completely subsumed under economics. If that were to occur,
then justice according to law would give way to economic justice.
More generally, law and politics would become increasingly
peripheral in a social world factually and normatively ruled implacably
by economics. In other words, in a world in which wealthmaximization
is perceived as a precondition to the achievement of
a plurality of ends, there is a serious danger that attention to
wealth-maximizing means would overshadow the pursuit of moral
ends. Accordingly, although in theory wealth-maximization would
only serve as means, in practice it would force all other ends to be
continuously postponed or relegated to a lesser plane.6'
One of the most vexing issues raised by law and economics is
not whether economics should figure in contemporary determinations
of justice according to law, but rather how much or how far it
should figure. It would be absurd to pretend that economics has
nothing to contribute to just interpretations. But in some areas of
law it is difficult to see what relevance, if any, economics might
have in the search for just interpretations. For example, economics
60 Id. at 423. Curiously, if the common law judge follows the prescriptions of law and
economics, he or she must decide each case in terms of future consequences that may have
no bearing on solving the dispute that brought the parties before the court. To return to
Posner's example, there is no issue concerning wealth-maximization as between the cat
owner and the finder who returned the cat. The only issue between them is one of just
distribution to be determined in relation to past conduct. In terms of distributive justice, it
may make a difference whether the owner or the finder ends up with the reward. From a
wealth-maximization standpoint, however, the outcome of the lawsuit is indifferent, forall
other things remaining equal-overall wealth is neither increased nor decreased by a
transfer of the reward from the owner to the finder. If it makes no difference, from the
standpoint of distributive justice, which way the case is decided, the common law judge can
both properly adjudicate the dispute at hand and further the aims of law and economics.
But if distributive justice in the present case and wealth-maximization in similar future
cases pull in opposite directions, then to remain true to law and economics, the common
law judge would, for all practical purposes, have to abdicate the role of adjudicator to
embrace that of purely future-oriented legislator.
61 Cf. 1 ADAM SMITH, AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH
OF NATIONS 477-78 (Edwin Cannan ed., The University of Chicago Press 1976) (1904)
("By pursuing his own interest [the individual] frequently promotes that of society more
effectually than when he really intends to promote it. I have never known much good done
by those who affected to trade for the public good.").
116 [Vol. 18:97
LEGAL INTERPRETATION
seems of little or no relevance in determining whether constitutional
liberty, equality, or privacy should be interpreted as justifying
a woman's right to an abortion.62 Actually, even if economics
could prove that a right to abortion would be wealth-maximizingwhich
as Posner indicates it cannot as there is no scientifically cogent
way to determine the "cost" of an abortion to the aborted
fetus63-that would hardly seem to be an important consideration
for adopting or rejecting a constitutional right to abortion.
To his credit, and true to his commitment to pragmatism, Posner
has acknowledged the limits of law and economics in his more
recent works.64 But once law and economics is no longer conceived
as potentially all pervasive, the question of limits becomes
highly unsettling. Does a chastened law and economics still replace
the interpretive subject in many, though not all, cases? Or does it
merely make a partial contribution to just interpretations that must
be further processed and incorporated with other partial insights
by an interpretive subject? To get a better handle on these questions,
it is first necessary to look closer at the nexus between economics
and law; to explore whether the usefulness of the economic
approach to law is confined to market situations, or whether it extends
to non-market activities; and to assess the limits of normative
economics as a prescriptive guide in the realm of legal
relationships.
Even under the most optimistic scenario, law as a distinct
practice would never completely give way to positive and normative
economics. Indeed, assuming all intersubjective dealings were
reducible to uninhibited, fully competitive market transactions, it
would still seem impossible to sustain a functioning market society
without a legal regime-albeit a limited one confined to the protection
of property and contract rights.65 Moreover, it also seems
highly unlikely that applications and interpretations of laws would
in each and every case boil down to a straight forward economic
assessment of the unmediated demands of wealth-maximization.
In other words, even in the best of law and economics worlds, it is
hard to imagine that at least some legal rules would better serve
the overall aim of wealth-maximization by refraining from seeking
62 See Roe v. Wade, 410 U.S. 113 (1973).
63 See POSNER, OVERCOMING LAW, supra note 31, at 22.
64 Compare POSNER, ECONOMIC ANALYSIS OF LAW, supranote 40, with POSNER, THE
PROBLEMS OF JURISPRUDENCE, supranote 43, andPOSNER, OVERCOMING LAW, supra note
31.
65 Cf. Roberto M. Unger, The CriticalLegal Studies Movement, 96 HARV. L. REv. 563,
625 (1983) ("A regime of contract is just another legal name for a market.").
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CARDOZO LAW REVIEW
to promote wealth-maximization in the context of each individual
case.
66
In contemporary societies, the relationship between law and
economics is bound to be complex and multifaceted. With respect
to efficient markets, legal regulation should be limited to the minimum
required to prevent interference with uninhibited market
transactions. To the extent that markets prove inefficient, however,
positive legislation becomes indispensable to make up for the
imperfections of existing markets. In other words, in the context of
efficient markets, the law performs a facilitative role, whereas in
inefficient markets, the law must fulfill a regulative role to correct
market deficiencies.
In theory there should be no significant difference whether law
plays a facilitative or regulative role. In either case, the legitimacy
of a law or the justification of a particular legal interpretation
would be subject to the same test, namely whether the consequence
of the law or legal interpretation in question is to promote
wealth-maximization. In practice, however, one cannot remain
within the frictionless world of perfect markets in which law is
merely facilitative and where outcomes are automatically wealthmaximizing.
Instead, frictions are inevitable, littering the path to
wealth-maximization with serious obstacles, making it necessary to
appeal to regulative law, and raising for the first time significant
questions concerning distributive justice.
In the imaginary world of perfect markets, everyone enjoys
unlimited access to all relevant information so that freedom of contract
(relying on the modest facilitative legal regime on which it
depends) guarantees the proliferation of wealth-maximizing transactions
among individuals with a propensity to "truck, barter, and
66 See supra note 60 and accompanying text. Moreover, this argument is analogous to
that made in the context of utilitarianism, according to which overall utility may be better
achieved through application of a uniform rule to a whole range of cases rather than taking
each case individually and acting so as to maximize utilities in that case, or in other words,
that "rule-utilijarianism" is preferable at least in certain cases, to "act-utilitarianism." For
a discussion of the distinction between act-utilitarianism and rule-utilitarianism, see J.J.C.
SMART & BERNARD WILLIAMS, UTILITARIANISM: FOR AND AGAINST 9-12 (1973). As Posner
observes, there are striking similarities between normative economic's wealth-maximization
objective and that of utilitarianism. The two do not completely overlap,
however, to the extent that some utility maximizing outcomes may not be wealth-maximizing.
For example, if a thief enjoys a stolen object more than its rightful owner, then the
theft would be utility-maximizing assuming the added pleasure experienced by the thief
outweighs the added pain suffered by the owner as a consequence of the theft. Condoning
such theft, however, would not be wealth-maximizing as it would discourage productivity.
See POSNER, THE PROBLEMS OF JURISPRUDENCE, supra note 43, at 357, 390-91.
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LEGAL INTERPRETATION
exchange one thing for another. ' 67 If we imagine a lack of significant
material disparities among contractors in such a world of perfect
markets,68
distributive justice is not-likely to become a matter
of concern. But once the ideal of perfect markets is left behind,
distributive issues are bound to arise even if all intersubjective
transactions could be subsumed under a contract paradigm. This
can be illustrated by reference to the Coase Theorem69 that furnishes
some of the central ideas animating the economic analysis of
law.70
According to the Coase Theorem, in cases with zero transaction
CoStS,7 1
a wealth-maximizing or efficient outcome will be
reached regardless of the legal rule selected. If there are positive
transaction costs, on the other hand, not every rule is likely to be
efficient, thus calling for the adoption of a preferred legal rule capable
of minimizing the effects of transaction costs. 72 In either
case, the choice of a relevant legal rule has palpable and significant
distributive effects.
These distributive effects become clear when considering the
following example.73 Suppose a factory emits smoke that damages
the laundry hung outdoors to dry by five residents who have
properties adjacent to the factory. Suppose further, that if no action
is taken, each resident will suffer a loss of $100, for a total of
$500. To eliminate the smoke damage, two alternatives are available:
the factory can buy a smokescreen for $150, or each resident
can buy an electric dryer for $50. Obviously, the efficient solution
is obviously to buy the smokescreen because it eliminates damages
in the sum of $500 for $150 rather than for the $250 which the five
dryers would cost. Now, assuming zero transaction costs, the same
result would be reached regardless of whether there is a legal rule
making polluters responsible for the consequences of their polluting
activities or a legal rule granting factories a right to pollute, and
thus placing the burden of obtaining adequate protection on those
67 SMITH, supra note 61, at 17.
68 This last assumption is unnecessary from the standpoint of law and economics, in
view of its single-minded pursuit of wealth-maximization. Nevertheless, it may make the
perfect market construct more palatable to others, and may better approximate Adam
Smith's vision of an atomistic market society where no one is powerful enough to dominate
competition. See id. at 165, 382-83.
69 See Ronald H. Coase, The Problemof Social Cost, 3 J.L. & ECON. 1 (1960).
70 See A. MITCHELL POLINSKY, AN INTRODUCTION TO LAW AND ECONOMICS 11 (1983).
71 "In general, transaction costs include the costs of identifying the parties with whom
one has to bargain, the costs of getting together with them, the cost of the bargaining
process itself, and the cost of enforcing any bargain reached." Id. at 12.
72 Id. at 13.
73 This example is provided by Polinsky. See id. at 11-13.
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who are affected by the pollution. Under the first rule the factory
would have to spend the $150, whereas, under the second, each
resident would have to contribute $30 to buy the smokescreen.
Although both rules are equally efficient, their distributive effects
are clearly different. As a consequence of this, if a common law
judge were confronted with the need to adjudicate a suit by the five
residents against the factory, wealth-maximizing considerations
would be insufficient to suggest which of the two equally efficient
legal alternatives should be adopted. If justice according to law
should only be concerned with the size of the economic pie, this
indeterminacy would be of no concern. If it is also to deal with
how the economic pie ought to be divided, however, then even in
the idealized world of no transaction costs, law and economics
would fail to solve a large number of legal problems.
The distributive problem is likely to be compounded in cases
involving positive transaction costs, as the efficient legal options
are likely to dwindle. Returning to our example, suppose it would
cost $60 for each resident to get together to discuss the problem
and to decide on a common course of action ($60 representing the
costs of transportation and lost time). In that case, under a clean
air rule, the factory would still buy the smokescreen for $150, thus
producing the most efficient outcome. But under a right to pollute
rule, it would cost each resident $90 to obtain the smokescreen,
that would prompt each of them to act individually, and purchase a
$50 dryer. Accordingly, the right to pollute rule would be less efficient
than the clean air rule, thus requiring the conscientious common
law judge to apply the latter rule.
Because one may tend to regard factories as more economically
powerful than individuals, the more efficient clean air rule
may also seem better suited to satisfy the demands of distributive
justice. But by adding an additional transaction cost to our example,
we can readily see how the reduction of options when it comes
to adopting efficient legal rules is likely to exacerbate the tension
between wealth-maximization and distributive justice. Suppose
that installing the smokescreen would cost the factory an additional
$120 in lost productivity as the smokescreen would require the factory
to reduce somewhat its rate of production. In that case, the
*most efficient solution would be for each resident to purchase a
dryer (thus, spending $250 rather than $270 to prevent a loss of
$500), and for a common law judge to apply "a freedom to pollute"
rule. But what if the factory owner is more than twenty times
wealthier than each of the five residents, and if the price of the
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LEGAL INTERPRETATION
factory products to the consumer would be only negligibly increased
as a consequence of a reduction in productivity due to the
smokescreen? Would it then be fair to impose a $50 cost on each
resident to save the factory owner $270? Arguably, this places efficiency
and fairness on a collision course.
Posner envisages a division of labor designed to keep efficiency
issues by and large separate from issues of distribution. He
stresses that distributive issues are best handled by legislatures
which are well equipped to redistribute wealth through their taxing
and spending powers.74 He goes on to argue that "an efficient division
of labor between the legislative and judicial branches has the
legislative branch concentrate on catering to interest-group demands
for wealth distribution and the judicial branch on meeting
the broad-based social demand for efficient rules governing safety,
property, and transactions. '75
Given this framework, problems of distribution would be relegated
to the political realm, with interest groups competing for influence
over legislatures, and legislators competing to insure
sufficient interest group support to optimize their chances of reelection.76
Consistent with this, law, as opposed to politics, would
consist essentially in the interpretation and application of statutes
embodying politically mediated interest group deals concerning redistribution,77
and in the elaboration of means for efficient dispute
resolution in areas not covered by statutes. Within this perspective,
to use Posner's own words,
Many of the law's doctrines, procedures, and institutions can
usefully be viewed as responses to the problem of transaction
costs, being designed either to reduce those costs, or, if they are
incorrigibly prohibitive, to bring about the allocation of resources
that would exist if they were zero. The law tries to make
the market work and, failing that, tries to mimic the market.78
Even with the division between legislative and judicial function
and between politics and law suggested by Posner, the problem
of distributive justice is far from being satisfactorily handled.
The most persuasive pragmatic argument in favor of the marriage
between the politics of wealth-redistribution and the law of wealthmaximization
suggested by Posner seems to be that it is the best
that we can realistically hope for, given a lack of consensus on ends
74 See POSNER, THE PROBLEMS OF JURISPRUDENCE, supra note 43, at 360.
75 Id.
76 See id. at 354-55.
77 Id. at 355.
78 POSNER, OVERCOMING LAW, supra note 31, at 416.
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CARDOZO LAW REVIEW
in the context of the prevailing institutional framework and current
allocation of wealth in the United States.79 But that argument appears
circular in that it seems to assume the inevitability of the
statusquo, and the impracticality of any departure from it. Indeed,
on the assumption that it is the most powerful interest groups who
will be in the best position to influence legislatures, the combination
of legislative wealth redistribution and judicial wealth-maximization
would seem inevitably headed towards ever increasing
disparities in wealth.80 Posner seems mindful of the danger of giving
homo economicus unconstrained latitude in the realms of politics
and law, as he appeals to the United States Constitution to
curtail the most objectionable political redistributions and to rule
out the most ethically reprehensible uses of wealth-maximization
in common law adjudication.8'
Constitutional constraints may be envisioned as setting a floor
above which the economics of wealth redistribution and wealthmaximization
would be left alone to mold legislative and judicial
outcomes. For example, a constitutional prohibition against slavery
would preclude legislation imposing slavery or enforcement of
a contract of self-enslavement, but beyond that would allow economics
to shape legislation and adjudication in the field of labor
relations. Upon further consideration, however, the above picture
looms as overly mechanistic and static. Constitutional constraints
embedded in a long-standing historical tradition, such as those arising
under the United States Constitution, are likely to be evolving
ones with a propensity to permeate through the legislative and judicial
process rather than merely delimiting it through the deployment
of bright-line boundaries. One need only recall the broad
sweep of certain constitutional protections such as the Due Process
Clause or the Equal Protection Clause of the United States Constitution82
to realize that there is an evolving process of interpenetration
between constitutional norms and other legal norms.83
79 See POSNER, THE PROBLEMS OF JURISPRUDENCE, supra note 43, at 388.
80 In this respect, it is noteworthy that there is an increasing gap between rich and poor
in the United States. See Keith Bradsher, America's OpportunityGap, N.Y. TIMES, June 4,
1995, at D4; James K. Glassman, The Income Gap: Where's the Problem?, WASH. POST,
April 25, 1995, at A17.
81 See POSNER, THE PROBLEMS OF JURISPRUDENCE, supra note 43, at 387-88.
82 See U.S. CONST. amend. XIV, § 1.
83 Compare Lochner v. New York, 198 U.S. 45 (1905) (holding that the Due Process
Clause forbids states from limiting the number of hours that bakery employees may work)
with West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (holding that the minimum wage
law is not violative of the Due Process Clause); and Plessy v. Ferguson, 163 U.S. 537 (1896)
(concluding that racial apartheid in public accommodations is permissible under the Equal
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LEGAL INTERPRETATION
Moreover, once it is clear that constitutional norms are quite often
neither transparent nor merely external to the remainder of the
realm of legal relationships, then problems of constitutional interpretation
may not be neatly detachable from other problems concerning
legal interpretation. In other words, if constitutional
interpretation is not reducible to law and economics, neither is interpretation
of any law that might be subject to constitutional
challenge.
The problem posed to law and economics by the need to rely
on constitutional constraints is compounded upon rejection of the
adequacy of the economic approach when it comes to dealing with
non-market transactions. For Posner, all human activity can be
profitably understood in terms of the economic model which postulates
that all social actors are rational instrumentalists.84 There are
serious questions, however, as to whether analogous cost/benefit
considerations are equally likely to motivate a profit-seeking
merchant and a would-be adulterer or a religious zealot. And the
more non-market activities stray from the economic model, the
looser becomes the grip of law and economics over the optimization
of law and legal interpretation.
In the last analysis, Posner's law and economics fails the pragmatist
test as it cannot secure achievement of the second-order end
that emerges as the necessary correlate of agnosticism regarding
first-order ends. Moreover, law and economics does not merely
fall short of its intended target, but squarely proves inadequate to
assume a leading role in the delimitation of pragmatically justifiable
legal relationships to the extent that it cannot carve out a domain
free of constitutional or other non-market reducible
constraints. Furthermore, it is possible to launch an even more
radical critique of law and economics from the standpoint of intermediate
pragmatism. Indeed, it is by no means self-evident that
law and economics provides the best practical means-or even
good practical means-towards the second-order end associated
with intermediate pragmatism. For example, it is certainly not obvious
that wealth-maximization is more likely than utilitarianism 85
to bring us closer to the desired end. As a matter of fact, if a
wealth-maximizing policy leads to greater overall unhappiness than
some other policy, it is difficult to imagine why the latter policy
Protection Clause) with Brown v. Board of Educ., 347 U.S. 483 (1954) (finding that mandated
racial segregation in public schools is violative of the Equal Protection Clause).
84 See POSNER, OVERCOMING LAW, supra note 31, at 15-16.
85 For a statement of the principal difference between the two, see supra note 66.
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CARDOZO LAW REVIEW
would not be clearly preferable from a pragmatist standpoint. In
short, from a pragmatist perspective, there seems to be no ex ante
justification for embracing wealth-maximization as an intermediate
end. Even if in some-cases it proved optimal based on an evaluation
of its consequences, that would still not justify singling out
wealth-maximization for privileged status. Finally, a similar argument
can be launched against privileging liberal individualism.
Again, nothing inherent in liberal individualism makes it more suitable
to bring about intermediate pragmatism's second-order end
than, for example, participatory democracy, civic republicanism, or
welfare liberalism. Also, in view that wealth-maximization is not
automatically desirable, even proof that liberal individualism best
promotes economic efficiency would not justify placing it above all
other political alternatives.
Given its limitations when it comes to initial rights allocations
or to non-market activities, the usefulness of positive economics in
guiding our understanding of legal relationships is, at best, limited.
Moreover, given that wealth-maximization is far from pragmatically
justified, the legitimate reach of normative economics is even
more limited. Because of this, Posner's pragmatism is perhaps best
understood as an adjunct to his commitment to the principle of
wealth-maximization rather than the other way around. From this
latter perspective, wealth-maximization is not primarily a neutral
engine designed to optimize choices for everyone. Instead, wealthmaximization
is part of a way of life that encompasses a value-system
and a conception of the good that competes with several
others. What is deceiving about wealth-maximization is that it
does not foreclose the pursuit of certain first-order ends, and is
thus easily confused as being part and parcel of a second-order
end. For example, wealth-maximization privileges individualism
and competition over communitarianism and solidarity, and accordingly
is much more amenable to conceptions of the good predicated
on the former than on those dependent on the latter. It does
not follow, however, that wealth-maximization completely precludes
the pursuit of preferences based on solidarity, or that it must
necessarily take sides among competing conceptions of the good
rooted in individualism. Nevertheless, the essential point remains
that wealth-maximization is not neutral and that the fate of other
conceptions of the good are subordinated to it rather than the
other way around.
Once wealth-maximization is posited as the predominant pursuit,
agnosticism regarding other conceptions of the good can be
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LEGAL INTERPRETATION
mobilized to thwart the thrust of attacks launched from ideological
standpoints inimical to the law and economics ethos. Similarly,
under those circumstances, constitutional constraints supply useful
means to appease potential opponents of wealth-maximization by
tempering its harshest tendencies. Most importantly for our purposes,
pragmatism can be invoked to deflect the sting of revelations
concerning wealth-maximization's limitations and
contradictions. Accordingly, not only would Posner's pragmatism
prove to be mere pragmatism rather than intermediate pragmatism,
but also its principal usefulness would derive from its ability
to deflect attention from dogmatic idealization of wealth-maximization.
Consistent with this, pragmatism as a vehicle for the justification
of wealth-maximization is at best merely parasitic and at
worst pernicious.
The preceding analysis reveals that Posner's commitment to
wealth-maximization and liberal individualism is difficult to reconcile
with intermediate pragmatism. That does not, however, preclude
Posner from entering into the ranks of intermediate
pragmatism through his defense of freedom of speech. But before
tackling that issue, it is time to examine Richard Rorty's brand of
pragmatism.
IV. RICHARD RORTY'S NEOPRAGMATISM: USING THE
LINGUISTIC TURN TO REINVIGORATE IRONY,
LIBERALISM, AND SOLIDARITY
The philosopher Richard Rorty is the preeminent proponent
of neopragmatism, a postmodern reformulation of the pragmatist
project that shifts the focus from experience to language.8 6 Rorty's
pragmatism is shaped by his radical reinterpretation of the meaning
and implications of the rejection of foundationalism. For
Rorty, antifoundationalism not only requires rejection of Cartesianism
and Kantian moral theory;87 but also demands that we refrain
from according science and 'the scientific method' any special
deference,88 and that we abandon viewing language as a medium of
expression or of representation.89 In other words, according to
Rorty, it is not useful to regard language as referring to, or corresponding
to, a reality beyond it, or as connecting a subject to an
86 See supra note 8 and accompanying text.
87 See RORTY, CONSEQUENCES OF PRAGMATISM, supra note 18, at xxxvii.
88 See id. at 52.
89 Id. at 9-10.
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object.90 Rather, language is most profitably conceived in Wittgensteinian
terms, as a game making possible the use of alternative
vocabularies relating to one another "more like alternative tools
than like bits of a jigsaw puzzle."91 Rorty warns us, however, that
language tools are in one important respect unlike other tools. For
example, the tools of a craftsman are made or chosen with knowledge
of the particular task for which they are intended., Language
tools, by contrast, must be chosen or developed before that for
which they will be used is fully known, for its very definition is
dependent on the actual language tools being put into use.92 In a
nutshell, Rorty invites us to turn away from the interpretive subject
and its elusive objects, and to accept that the human self makes its
mark by the use of a vocabulary. 93 Moreover, choices among alternative
vocabularies are supposed to be evaluated in terms of their
practical consequences-that is, in terms of whether they are likely
to lead to a greater and more fruitful consensus among members of
the polity.
Consistent with the place of language games in Rorty's vision,
justice is more likely to emerge out of the poet's imagination than
out of the philosopher's search for normative coherence. 94 Thus, as
Rorty emphasizes, there is a prophetic side to justice.9 5 But it is an
open question whether the prophetic quality of justice has anything
to do with pragmatism other than that pragmatism's removal of
foundations may do away with cumbersome constraints on the uses
of imagination and prophecy. Arguably, there is no intrinsic connection
between Rorty's prophetic strand and his pragmatism.96
Furthermore, Rorty himself has not been consistent in his own pronouncements
on the relationship between pragmatism and recourse
to prophecy.97
On the assumption that there is no. intrinsic connection between
prophecy and pragmatism, the poetry of justice would belie
90 Id. at 7, 10-11.
91 Id. at 11.
92 Id. at 12-13.
93 Id. at 7.
94 See Rorty, The Banality of Pragmatismand the Poetry of Justice, supra note 8.
95 Id. at 92-93.
96 See Lynn A. Baker, "Just Do It": Pragmatism and Progressive Social Change, in
PRAGMATISM IN LAW & SOCIETY, supranote 8, at 99 (arguing that Rorty's utopianism and
call for social change bears no intrinsic connection to his pragmatism).
97 CompareRichard Rorty, Afterword to Symposium, The Renaissanceof Pragmatism
in American Legal Thought, 63 S.CAL. L. REV. 1911, 1917 (1990) ("[I]f you had the prophecy,
you could skip the pragmatism.") with Richard Rorty, Feminism and Pragmatism,30
MICH. Q. REV. 237 (1990) (Feminist prophets "might profit from thinking with the
pragmatists").
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LEGAL INTERPRETATION
any nexus between justice according to law and justice beyond law,
and would confine the former to the realm of aesthetics. Legal
interpretations could only be meaningfully evaluated in terms of
their appeal, and judges would have to rely on their imaginations
with the hope that their opinions will be able to kindle a favorable
and -uplifting response. In this scenario, justice would be entirely
liberated from philosophy, and the legitimacy of legal interpretations
could only be measured by the lasting power of their aesthetic
appeal.
There is another plausible reading of the link between pragmatism
and prophecy that allows bringing Rorty's contribution
closer to intermediate pragmatism. Under this alternative reading,
antifoundationalist philosophy and the turn to language do not
merely play a negative role, but also bestow legitimacy on certain
particular positive undertakings. In other words, pragmatism not
only clears away obstacles that stand in the way of prophecy, but
also furnishes positive backing for certain crucial elements in the
prophetic vision. With this in mind, let us now focus on the potential
of Rorty's pragmatism for forging plausible links between the
critical work stemming from antifoundationalism and the constructive
task of the prophetic poet.
Rorty's antifoundationalism is closely connected to an inevitaoble
existential confrontation with contingency. If we focus on the
starting points of our reflection, we notice that it is contingent, that
we find ourselves where we are as a consequence of chance rather
than necessity.9" Confronted with our contingency, we can either
seek to escape from it, or to accept it and cope with it as best we
can.99 Those who seek to escape are likely to turn to the philosophical
tradition rooted in Kant that conceives of truth as a vertical
relationship between representations and what is
represented.100 To overcome the contingency of their existential
predicament, they will accordingly seek to approach the latter from
the vantage point of a truth anchored somewhere high above.
Those willing to accept contingency, on the other hand, are likely
to link up with a philosophical tradition issued from Hegel which
regards truth as a horizontal process consisting in the "reinterpretation
of our predecessors' reinterpretation of their predecessors'
reinterpretation. '" 10 1 Unlike their Hegelian predecessors, however,
98 See RORTY, CONSEQUENCES OF PRAGMATISM, supra note 18, at 166.
99 Id.
100 Id. at 92.
101 Id.
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CARDOZO LAW REVIEW
those who are prepared to confront contingency do not believe that
successive reinterpretations will progressively approximate any
comprehensive truth, albeit an immanent one. The point of reinterpretation
is not discovery or realization of any transcendent or
immanent truth, but redescription in the hope of finding better
suited ways to handle our contingency upon the realization that it
is fruitless to attempt to escape from it.
The justification for choosing redescription as opposed to an
appeal to vertical truth is pragmatic. Indeed, to be concerned with
vertical truth is unproductive in a similar way as it is not helpful to
become bogged down with questions about the existence or the
nature of God. Just as the secularist maintains that we should not
dwell upon questions beyond our capacities to resolve, so too the
pragmatist insists that we should not waste our time worrying
about the truth, since we are not in a position to ascertain its existence
or precise nature.10 2
By refusing to look beneath or beyond language, Rorty comes
close to Derrida's insistence that we regard all texts-written or
unwritten-as writings referring to other writings.10 3 Moreover,
whereas Rorty admires Derrida-and in particular later Derrida'
0 4-he has certain reservations about the Derridean enterprise.10
5 Without delving further into Rorty's assessment of
Derrida, it suffices for our purposes to emphasize that the principal
difference between the two is that Rorty is more directly concerned
with practical consequences and is more squarely future oriented
than is Derrida.10 6 Indeed, whereas Rorty embraces the Heideggerian
notion that 'language speaks man,' and acknowledges that
"human beings cannot escape their historicity,' 10 7 he nevertheless
stresses that they can "manipulate the tensions within their own
epoch in order to produce the beginnings of the next epoch.' 10 8
Not only does Rorty have important affinities to Derrida, but
his pragmatism also relies on a dialogical proceduralism reminiscent
of Habermas. Indeed, for Rorty, the legitimate resolution of
conflicts among competing redescriptions vying for general accept-
102 See id. at xiv.
103 See id. at 94.
104 See id. at 124 n.6.
105 See id. at 99 (warning against Derrida's tendency to succumb to nostalgia and to
engage in system building).
106 For a discussion of Derrida's theory in the context of legal interpretation, see Rosenfeld,
Deconstructionand Legal Interpretation,supra note 1.
107 RORTY, CONTINGENCY, IRONY AND SOLIDARITY, supra note 13, at 50.
108 Id.
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LEGAL INTERPRETATION
ability is by means of an undistorted dialogue.1 0 9 Like
Habermas,110 Rorty maintains that contested alternatives be submitted
to others to consider and discuss, and that the normative
validity of an alternative derives from its ability to generate a consensus
among all those who engage in the relevant dialogue. Significantly,
however, Rorty parts company with Habermas when it
comes to defining "undistorted" dialogue. In explaining what
should count as "undistorted," Habermas, according to Rorty,
"goes transcendental and offers principles. The pragmatist, however,
must remain ethnocentrist and offer examples."'1 In other
words, Rorty's version of undistorted dialogue contrasts with
Habermas's Kantian dialogical procedural because the participants
are aware of their contingent starting points, conscious that they
cannot transcend the imprints of their own culture, and mindful of
the fortuity and fragility of any consensus which they might happen
to reach. 12
The critical side of Rorty's antifoundationalism leads to the
same conclusion as does Posner's: no one can prove that his or her
conception of the good-or in Rorty's characterization, his or her
"final vocabulary" 1 3
-is superior to any other. Moreover, agnosticism
concerning final vocabularies calls for a split between firstorder
ends and the second-order end of maximizing freedom to
develop, and choosing among final vocabularies. 14 Consistent
with this, within the confines of an intermediate pragmatist framework,
Rorty's prophetic vision seems a good candidate to complement
critical antifoundationalism, and furnishes the requisite
positive component needed to elaborate a coherent practical approach
for dealing with the contingency, diversity, and volatility of
first-order ends. It remains to be seen whether Rorty's prophetic
vision can be integrated into, a workable conception of intermediate
pragmatism. As we will now see, however, it is clear that the
positive side of Rorty's theory differs rather significantly from that
of Posner.
What drives Rorty's positive contribution is the redescription
of the liberal project consistent with the practical implications of
109 See id. at 164-65, 173-74.
110 See HABERMAS, BETWEEN FACTS AND NORMS, supra note 27.
111 RORTY, CONSEQUENCES OF PRAGMATISM, supra note 18, at 173.
112 See id. at 173-75.
113 See RORTY, CONTINGENCY, IRONY AND SOLIDARITY, supra note 13, at 73 ("All
human beings carry about a set of words which they employ to justify their actions, their
beliefs, and their lives.... I shall call these words a person's 'final vocabulary."').
114 See supra notes 53-54 and accompanying text.
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his critical analysis. The protagonist of Rorty's prophetic journey is
the "liberal ironist." To be "liberal," in Rorty's redescription, is to
think that "cruelty is the worst thing we do";115 to be an "ironist" is
to recognize the contingency of one's innermost beliefs and
desires.116 Accordingly, the liberal ironist seems bound by the pursuit
of two distinct ends: eradicating cruelty and combatting against
the forceful imposition of any final vocabulary. Moreover, both
these ends appear consistent with the concept of intermediate
pragmatism in that they can be plausibly integrated into a project
to secure a second-order end to allow for maximization of equal
opportunities to pursue first-order ends.
Rorty's prophetic agenda combines an individualistic objective
with a collective one, namely self-creation with solidarity.117 On
the one hand, everyone should be given as much room as possible
to use his or her imagination to devise a final vocabulary better
suited to his or her needs and desires. Moreover, from a political
standpoint, all that opportunity for self-creation requires, according
to Rorty, is peace, wealth and the standard "bourgeois freedoms."
'118 On the other hand, the collective pursuit of solidarity
also involves reliance on imagination, in this case to foster an ever
more broadly encompassing mutual perception as fellow sufferers
who are vulnerable to humiliation. 119
Given the predominant role Rorty envisions for imagination
with respect to both the individualistic and the collective component
of his prophetic conception, it is not surprising that he advocates
shifting the emphasis from science and rationality to poetry,
literary criticism, and utopian politics.' 20
Indeed, it is the strong
evocative powers of the poet and the literary critic that can foster
greater awareness of, and greater sensitivity towards, the suffering
and the vulnerability to humiliation of fellow humans whom we
may have thus far approached as outsiders, strangers, or even outcasts.
Similarly, an imaginative utopian politics may be useful to
unfasten entrenched prejudices, to expose settled political institutions
and practices inimical to self-creation and solidarity, and to
suggest new ways of incorporating the marginalized. The pursuit of
poetic imagination and the evocation of utopian politics may thus
115 RORTY, CONTINGENCY, IRONY AND SOLIDARITY, supra note 13, at xv.
116 Id.
117 Id.
118 Id. at 84.
119 Id. at xvi, 91. As Rorty emphasizes, the liberal ironist "thinks that recognition of a
common susceptibility to humiliation is the only social bond that is needed." Id. at 91.
120 Id. at 52-53.
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LEGAL INTERPRETATION
unite to further two interrelated practical objectives: to enlarge as
much as possible the space for idiosyncratic individual self-creation
and to narrow as much as possible the (perceived) differences that
stand as obstacles to achieving greater solidarity.'21
The two objectives of making more room for individual idiosyncracy
and of fomenting greater solidarity may well appear to
be at loggerheads. Arguably, following the threads of one's idiosyncratic
imagination is a rather solipsistic endeavor, whereas deyeloping
sufficient empathy towards other human beings to
perceive them as fellow sufferers, on the contrary, requires a certain
measure of self-abnegation and an altruistic gesture of openness
towards the other. Within the confines of Rorty's prophetic
vision, the tension between the individualist and the collective objective
can be productively harnessed to further the agenda of the
liberal ironist. From a less utopian standpoint, however, this tension
raises serious questions concerning whether Rorty's positive
conception can be ultimately reconciled with intermediate pragmatism.
This last question is best postponed untilafter completion of
our examination of the promise of Rorty's prophetic vision. For
the moment, suffice it to note that the difficulties in the case of
Rorty concern means and intermediate ends rather than final ends.
From within Rorty's own perspective, what binds individualism
and solidarity closer together is not logic, but the consequences
of contingency. Because of the precariousness and vulnerability of
the individual who cannot ground any final vocabulary on a solid
foundation, everyone is relegated to projecting into the future a
plausible hope of redemption that will make up for the painful limitations
inherent in his or her present predicament.1 22
Rorty emphasizes
that this hope is a common one. He writes that "[w]hat
binds societies together are common vocabularies and common
hopes. The vocabularies are, typically, parasitic on the hopes-in
the sense that the principal function of the vocabularies is to tell
stories about future outcomes which compensate for present sacrifices."
123 We should not infer from this passage, however, that
Rorty preaches subordinating individualist aspirations to collective
undertakings. Indeed, as he emphatically indicates, for the liberal
ironist, "human solidarity is not a matter of sharing a common
121 See id. at 192 (moral progress toward greater solidarity depends on "the ability to see
more and more traditional differences (of tribe, religion, race, customs, and the like) as
unimportant when compared with similarities with respect to pain and humiliation.
122 Id. at 86.
123 Id.
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CARDOZO LAW REVIEW
truth or a common goal but of sharing a common selfish hope, the
hope that one's world-the little things around which one has woven
into one's final vocabulary-will not be destroyed.' 1 24 In sum,
the nexus between individualism and solidarity depicted by Rorty
appears to be a pragmatic one based on recognition of the inevitability
of contingency. Accordingly, solidarity may be imaginatively
promoted through poetic narrative, but what predisposes the individual
to remain open to it is fear of being trivialized and humiliated
and the desire to give free rein to his or her own idiosyncratic
imagination in order to develop future hopes that might be usefully
pitted against present insufficiencies.
Rorty's focus on future hopes admittedly bears a parallel to
religious promises of redemption in the afterworld as compensation
for the inevitability of present sacrifices.'2 5 Rorty's promise of
redemption differs in a crucial respect, however, from its religious
counterpart. Redemption in a secular society, according to Rorty,
depends "on the existence of reasonably concrete, optimistic, and
1lausible political scenarios, as opposed to scenarios about redemption
beyond the grave.'126
Inother words, what Rorty the
prophet offers is political redemption that somehow weaves together
overlapping individualistic and collective concerns.127 To be
sure, how the requisite blend between individualism and solidarity
is to be achieved is never clearly spelled out. Nevertheless, Rorty's
prophetic vision seems quite amenable to being incorporated into a
framework comprised of a second-order (primarily) collective objective
allowing for the maximization of opportunities to pursue
the widest possible array of (primarily) individually grounded firstorder
preferences.
The political means Rorty considers necessary to render his
hopes for redemption in this world realistic are startlingly simple
and familiar. He states:
I think that contemporary liberal society already contains the
institutions for its own improvement .... Indeed, my hunch is
that Western social and political thought may have had the last
conceptual revolution it needs. J.S. Mill's suggestion that governments
devote themselves to optimizing the balance between
leaving people's private lives alone and preventing suffering
seems to me pretty much the last word.'12
124 Id. at 92.
125 See id. at 86.
126 Id.
127 Id. at 92-93.
128 Id. at 63 (footnote omitted).
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LEGAL INTERPRETATION
Moreover, the principal difference between Rorty's postmodern
liberal ideal and its Millian counterpart stems from Rorty's insistence
on privileging the role of language and narrative to the exclusion
of anything which may lie behind or beyond language. In
Rorty's ideal liberal society, change is the result of persuasion
rather than force, reform rather than revolution.129 Also, since the
best hope for liberal society is that it will foster useful redescriptions,
uninhibited freedom of expression ranks among its paramount
objectives.
It is true that freedom of expression already occupied a similar
prominence in Mill's vision. But Mill, who unearthed the philosophical
roots of the marketplace of ideas justification for freedom
of speech, 130
was convinced that uninhibited discussion afforded
the best possible means to discover the truth.131
Rorty, by contrast,
values discussion for its own sake, and preaches freedom of expression
as the best hope to lead to more speech, instead of the use of
force. 32 In short, the paramountcy of freedom of expression is
doubly justified in Rorty's prophetic vision. On the one hand, it
enlarges the horizon for redescription; on the other hand, it serves
to channel conflicts towards resolution by means of discussion as
opposed to force. It is Rorty's hope that in a liberal society that is
committed to freedom of expression the poet and the innovator
will prevail. And if that makes life harder for others, Rorty reassures
us that we need not worry, for it will be harder "only by
words, and not deeds."'1 33
In the last analysis, Rorty's critical analysis and his prophetic
vision can be plausibly combined to yield a seemingly coherent version
of intermediate pragmatism. Moreover, since Rorty's philosophy
is driven by at least one constant objective, namely the hope
for more useful redescription, the intermediate pragmatism to
which it apparently leads would qualify as a pragmatism of ends, at
least with respect to one end. That (second-order) end is the maximization
of opportunities for imaginative redescriptions, and it
calls for at least one legal norm, namely affording the greatest possible
protection to freedom of expression. Accordingly, in spite of
their otherwise significant differences, Posner and Rorty both concur
that pragmatist philosophy lends support to freedom of expres-
129 Id. at 60.
130 See supra note 35 and accompanying text.
131 See JOHN STUART MILL, ON LIBERTY 15-52 (Elizabeth Rapaport ed., 1978) (1859)
[hereinafter MILL, ON LIBERTY].
132 See RORTY, CONTINGENCY, IRONY AND SOLIDARITY, supra note 13, at 52.
133 Id. at 61.
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CARDOZO LAW REVIEW
sion.134 It is now time to take a closer critical look at this common
conclusion, by inquiring whether the pragmatist defense of freedom
of expression can overcome the challenge posed by extremist
and hate speech. Also, after this inquiry, we will be in a better
position to answer the question raised but left open above; that is,
whether Rorty's prophetic vision is ultimately unpragmatic because
of its shortcomings regarding means rather than ends.135
V. PHILOSOPHIC PRAGMATISM, FREEDOM OF EXPRESSION, AND
THE PARADOXES OF EXTREMIST AND HATE SPEECH
A. Pragmatismand the Free Marketplace of Ideas
There is a strong affinity between the pragmatist justifications
for freedom of speech propounded respectively by United States
Supreme Court Justice Oliver Wendell Holmes, Posner, Rorty, and
the utilitarian justification elaborated by John Stuart Mill. Significantly,
the philosophers Mill and Rorty display a much more optimistic
outlook concerning the virtues of freedom of expression
than do judges Holmes and Posner. Nevertheless, the views of all
four converge when it comes to the question of truth in that they
all reject the Kantian conception of truth as a vertical relationship.'36
Accordingly, all four of them advance a justification for
freedom of expression predicated on the impossibility of complete
or immutable truth.
Mill's strong defense of freedom of expression is rooted in his
individualism and in his optimism concerning the possibility of social
progress. Operating within a utilitarian framework, Mill embraces
the general principle that society can limit the individual's
freedom to promote the common good whenever an individual's
action is not purely self-regarding-that is, when it is likely to have
a direct impact on the well-being of others.137 That general principle
is largely inapplicable, however, in the context of expression.
Indeed, in Mill's view, even an expression that is directly harmful
to others should remain beyond regulation unless it amounts to an
incitement to violence. 38 Moreover, underlying Mill's opposition
to regulating harmful speech is his firm belief that free discussion is
134 See supra note 18 and accompanying text.
135 See supra notes 121-22 and accompanying text.
136 See supra note 100 and accompanying text.
137 See MILL, ON LIBERTY, supra note 131, at 73-74.
138 See id. at 53 (opinions lose their immunity when their expression amounts to "a
positive instigation to some mischieyous act"). Cf. Brandenburg v. Ohio, 395 U.S. 444
(1969) (holding that speech that "incites" to violence rather than merely "advocating" violence
is not constitutionally protected).
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LEGAL INTERPRETATION
indispensable to the discovery of incremental truth and to social
progress. 139 Thus, stripped to its utilitarian essentials, Mill's broad
justification for freedom of expression boils down to the following:
the long term benefits (in relation to truth and social progress) of
uninhibited discussion are bound to outweigh the sum of harms
attributable to non-inciting expression.
Holmes imported Mill's broad justification for freedom of expression
into constitutional jurisprudence, and gave birth to the
marketplace of ideas justification of speech'40 that has been influential
in the United States ever since.'4 1 Although Holmes's justification
of free expression is very similar to Mill's, the respective
reasonsthat led the two men to embrace the same principle sharply
contrast. Indeed, whereas Mill is led by optimism and belief in
progress, Holmes is driven by skepticism and pessimism. In particular,
Holmes is quite skeptical about the possibility of truth. In
one of his letters, Holmes writes:
When I say a thing is true I mean that I can't help believing itand
nothing more. But as I observe that the Cosmos is not always
limited by my Cant Helps I don't bother about absolute
truth or even inquire whether there is such a thing, but define
the Truth as the system of my limitations.'42
Consistent with this view, Holmes endorses a free marketplace of
ideas on pragmatic grounds. Because most wrongly held views
eventually prove false, any limitation on speech is most likely to be
grounded on a false idea. Accordingly, a free marketplace of ideas
is likely to reduce harm in two distinct ways: It lowers the
probability that expression will be needlessly suppressed on account
of falsehoods; and it encourages most of us, who are prone to
stubbornly hold on to worthless or harmful ideas on the belief that
they are true, to develop a healthy measure of self-doubt. 143
What unites Mill and Holmes in spite of their differencesand
what links Posner to both of them-is the belief that constraining
the marketplace of ideas would do more harm than good.
139 See MILL, ON LIBERTY, supranote 131, at 50-52. Suppressing expression that incites
to violence is consistent with Mill's view that the broadest possible uninhibited discussion
offers the best means towards truth and progress. Indeed, inciting speech by its very nature
seems more likely to lead to violence than to more speech. See MARTIN H. REDISH,
FREEDOM OF ExPREssION: A CRITICAL ANALYSIS 191 (1984).
140 See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
141 See FREDERICK SCHAUER, FREE SPEECH: A PHILOSOPHICAL ENQUIRY 15-16 (1982).
142 Letter from Oliver Wendell Holmes to Learned Hand (June 24, 1918) in Gerald
Gunther, LearnedHand andthe Originsof Modern FirstAmendment Doctrine:Some Fragments
of History,27 STAN. L. REv. 719, 757 (1975).
143 See Abrams, 250 U.S. at 630.
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CARDOZO LAW REVIEW
Posner's pragmatic rationale in favor of the marketplace of ideas
actually straddles a middle course between Mill and Holmes. Like
Holmes, Posner iswary of objective truth, but coming closer to Mill
he is rather optimistic about the possibility of scientific progress. 144
Moreover, having had the benefit of the extensive American debate
on freedom of speech since the days of Holmes, Posner adopts
a broader, more encompassing view of the marketplace of ideas
than his two illustrious predecessors. Unlike them, Posner is not
constrained by the model of scientific discussion, and thus refuses
to draw any sharp boundaries between rational and emotive expression,
such as artistic expression, or symbolic action with a predominant
expressive content-such as burning a draft card or
flag.145 In short, Posner maintains that any expression, whether rational
or emotive, factual or fictional, that may lead to consequences
in the world of facts should be protected within the
framework of the marketplace of ideas.146 Also, by emphasizing
the importance of emotive expression and fiction, Posner's justification
of freedom of expression displays an important affinity to
that of Rorty.
Posner's endorsement of his expanded version of the marketplace
of ideas is not unlimited, however. In what appears to be a
departure from the Millian ideal, Posner indicates that certain restrictions
on the marketplace of ideas may be warranted when the
failure to impose them is likely to impose too high a cost on society.147
In his most recent writings, Posner seems to retreat even
further from an unqualified endorsement of the free marketplace
of ideas. He writes: "Nothing in pragmatism teaches that the
harms caused by speech should be ignored; nothing justifies the
privileging of freedom of speech over other social interests.''148
Whether Posner's apparent retreat from the Millian ideal is
ultimately attributable to his pragmatism or to his commitment to
wealth-maximization is a question that is best deferred until after
consideration of the case of extremist and hate speech. In the
meantime, suffice it to reiterate that whereas their respective reasons
may differ somewhat; and whereas their respective attitudes
to the relation between freedom of expression and discovery of the
truth vary significantly in scope and emphasis; Holmes, Posner, and
144 See Posner, What Has Pragmatismto Offer Law?, supra note 5, at 36-37.
145 See POSNER, THE PROBLEMS OF JURISPRUDENCE, supra note 43, at 467.
146 Id.
147 Id.
148 POSNER, OVERCOMING LAW, supra note 31, at 396.
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LEGAL INTERPRETATION
Rorty all strongly embrace the Millian ideal of a free marketplace
of ideas because of their conviction that it comports with the practical
dictates of pragmatism. Accordingly, it is time to turn to the
problems raised by extremist and hate speech in order to evaluate
the pragmatist justification of freedom of expression, and to be in a
better position to offer a cogent critical assessment of the viability
of the-concept of intermediate pragmatism.
B. Theoreticaland PracticalProblems Raised By Extremist and
Hate Speech
Constitutional provisions affording protection to speech and
expression tend to be uniformly sweeping and indeterminate. 149
Since these free speech provisions give rise to widely diverging interpretations,
5 ° they squarely raise questions concerning the criteria
of legitimacy in constitutional interpretation. Perhaps nowhere
are these questions more acute than in the context of extremist and
hate speech, in which American jurisprudence stands in sharp contrast
to that of many other Western democracies.' 51
Extremist speech, as already mentioned, gives rise to what
Karl Popper has called the "paradox of tolerance.' 1 52 The paradox
arises as a consequence of tolerating the intolerant. In a tolerant
society, the intolerant can take advantage of the broad protection
of speech to disseminate extremist views. And if these views prove
persuasive to a large enough audience, the intolerant may well be
in a position to ascend to power and to eradicate tolerance. Hence
the quandary: to remain tolerant, must a society be consistently
tolerant towards all? Or must it, to protect itself, be intolerant of
the intolerant?
The paradox raised by hate speech is analogous to that triggered
by extremist speech.' 53 Indeed, just as a tolerant society de-
149 See Frederick Schauer, Free Speech and the Cultural Contingency of Constitutional
Categories,in CONSTITUTIONALISM, IDENTITY, DIFFERENCE, AND LEGITIMACY: THEORETICAL
PERSPECTIVES 353, 356-57 (Michel Rosenfeld ed., 1994).
150 Id.
151 See,e.g.,3 R.S.C. ch. 46, § 319 (1985) (Canada); Public Order Act 1986, ch. 64, §§ 17-
29 (United Kingdom); and International Convention on the Elimination of All Forms of
Racial Discrimination G.A. Res. 2106, U.N. GAOR, 20th Sess., Supp. No. 14, at 47, U.N.
Doc. A/6014 (1966) (United Nations).
152 See supra note 20 and accompanying text. For a more extended analysis of the constitutional
implications of this paradox, see Michel Rosenfeld, Extremist Speech and The
Paradox of Tolerance, 100 HARV. L. REv. 1457 (1987) (reviewing LEE C. BOLLINGER, THE
TOLERANT SOCIETY: FREEDOM OF SPEECH AND EXTREMIST SPEECH IN AMERICA (1986)).
153 Extremist and hate speech are distinguishable even though they often go hand in
hand, such as in the case of Nazism where political totalitarianism was combined with
systematic hate propaganda against Jews. It is possible, however, to embrace totalitarian
19961 137
CARDOZO LAW REVIEW
pends on the willingness to live in peace with those who do not
share one's outlook and views, a free marketplace of ideas seems
viable only if it affords a fair forum for the uninhibited examination
and free discussion of all ideas and viewpoints. To be sure, not
all ideas or viewpoints that reach the marketplace are likely to fare
equally well. Undoubtedly, at any time, some ideas will be widely
embraced while others will be roundly rejected. But there is a crucial
difference between rejecting an idea based on an assessmenteven
an erroneous one-of its merits, or based on prejudice or hatred
against its proponent. Thus, if hate propaganda succeeds in
vilifying its target group by fomenting contempt among non-victims
coupled with self-doubt and withdrawal among victims, the
marketplace is in grave danger of becoming thoroughly corrupted.
At first, it seems that recourse to pragmatism affords the best
means to deal with the paradoxes raised by extremist and hate
speech. Indeed, no systematic solution looms as wholly satisfactory
because no solution can solve numerous theoretical and practical
problems posed by extremist or hate speech. For example, a complete
ban would sweep much too broadly, equate hatred of the oppressor
and the oppressed,5 blur the distinction between
endorsement of, and satirical reference to, reprehensible views, 55
and generate difficult line drawing problems.156 The complete absence
of any ban, on the other hand, would facilitate the imposition
of oppression. Additionally, its perpetuation would encourage violence
in certain circumstances, and would stand in the way of implementing
a policy of equal dignity and equal respect for every
political extremism without harboring any hatred on the basis of race, sex, ethnic origin,
religion, or sexual orientation. Thus, for example, one could conceivably adhere to a radical,
antidemocratic, communist vision predicated on rigid forced egalitarianism. By the
same token, it is possible to reject political extremism in favor of a certain conception of
democracy and yet hate, vilify, and demean the members of certain racial, ethnic, or religious
groups.
154 See, e.g., Anthony Skillen, Freedom of Speech, in CONTEMPORARY POLITICAL PHILOSOPHY:
RADICAL STUDIES 139, 142 (Keith Graham ed., 1982) (noting the irony that the
first person convicted under the British 1965 Race Relations Act, for uttering a racially
derogatory expression, was black).
155 For example, in the late sixties, an American fictional television series was based on
a satire meant to ridicule Archie Bunker, an unenlightened racial bigot. Significantly, however,
public surveys indicated that a sizeable portion of the viewers identified with, not
against, Archie Bunker. See WILSON KEY, SUBLIMINAL SEDUCTION 159 (1973).
156 For example, should the ban encompass advocacy but not a sympathetic depiction of
an extremist position of a classroom discussion? Should the ban extend to a true statement
exploited for purposes of propagating racial hatred? Cf 3 R.S.C. ch. 46, § 319(3) (1985)
(Canadian Criminal Code) (truth is a defense to criminal charges for propagating hatred
against an identifiable group).
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LEGAL INTERPRETATION
member of society.157 By contrast, a pragmatic approach focusing
on likely consequences might seem best suited to avoid undesirable
extremes without having to be sacrificed to satisfy impractical demands
of theoretical coherence. 158 Thus, for example, American
legal commentators have argued that tolerance of extremist speech
is justified in the United States although it may not be in Germany,
because the respective historical experiences of both countries
make the United States much less vulnerable than Germany to the
perils of Nazism.1 59
Upon further reflection, however, the pragmatist approach to
extremist and hate speech proves to be seriously deficient. Beyond
requiring the obvious caveat that theoretical coherence does not
justify accepting practical consequences contrary to those sought to
be achieved, pragmatism's contribution regarding extremist and
hate speech looms as largely circular. Because of the complexities
inherent in the dialectic between tolerance and intolerance, 6 ° the
practical consequences of different approaches to extremist and
hate speech are likely to be varied and nuanced rather than clearcut.
Accordingly, focus on practical consequences would at best be
inconclusive, and thus trigger the need to choose among different
sets of similarly plausible practical consequences. To a significant
degree, moreover, the practical consequences of tolerance or intolerance
towards certain views may be simply unpredictable. However,
it does not follow that choosing between tolerance and
intolerance should no longer be considered a matter of concern.
But it may well follow that the choice in question, while normatively
important, does not necessarily depend on practical
consequences.
To illustrate these last points, one need only consider briefly
certain aspects of the dialectic between tolerance and intolerance.
There is a significant asymmetry between tolerance and intolerance.161
Intolerance implies disapproval, but tolerance, depending
157 See Regina v. Keegstra, 3 S.C.R. 697 (1990) (majority opinion of the Supreme Court
of Canada upholding constitutionality of statute criminalizing hate propaganda).
158 See, e.g., Grey, What Good is Legal Pragmatism?,supranote 25, at 22-26 (advocating
a pragmatic solution to the problem of hate speech on university campuses by borrowing
from different theories that respectively buttress constitutional liberty and constitutional
equality without attempting to reconcile the two).
159 See LEE C. BOLLINGER, THE TOLERANT SOCIETY: FREEDOM OF SPEECH AND ExTREMIST
SPEECH INAMERICA 198-99 (1986) [hereinafter BOLLINGER, THE TOLERANT SOCIETY];
Schauer, supra note 149, at 365-67.
160 For a more extended examination of this dialectic, see Rosenfeld, Extremist Speech
and the Paradoxof Tolerance,supra note 152, at 1460-66.
161 See id. at 1461-67.
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CARDOZO LAW REVIEW
on the circumstances, may communicate approval or disapproval.
Thus, a religious person with a profound aversion to abortion may
nonetheless consistently maintain that he feels politically obligated
to tolerate abortion, but cannot endorse it, and is prepared to argue
against it in front of anyone who still has an open mind on the
issue. On the other hand, whereas tolerance implies disagreement,
it does not necessarily require disapproval. For example, a scientist
may disagree with the theories of a colleague and yet recognize
that this same colleague is a worthy member of the scientific community.
Furthermore, there are cases where a plea for tolerance
not only involves approval but also an intent to mask agreement.
For example, white students who defend the right of a Ku Klux
Klan member to be a featured speaker at their university in the
name of tolerance may be motivated by tacit agreement with the
proposed speaker's racist message. 162 Finally, tolerance bears a different
connotation whether it results from a genuine act of selfrestraint-such
as when someone powerful refrains from taking
available measures against less powerful people whose conduct he
strongly disapproves-or from conditioning by more powerful
outside forces. In the latter case, tolerance corresponds to what
Herbert Marcuse labelled "passive toleration" 163 -such as when a
benefit to a much victimized group is conditioned on the exercise
of stoic self-restraint in the face of demeaning treatment by members
of other groups.
The above examples make it clear that, depending on the circumstances,
tolerance and intolerance are likely to have very different
practical consequences. Whether tolerance is inclusionary
or exclusionary depends on the relevant context, and whether a
policy of inclusion or exclusion is more desirable under given circumstances
seems more a matter of substantive value-preferences
than one of predominantly pragmatic considerations.
That no single pragmatic course of action emerges in the context
of extremist and hate speech is illustrated by the contrast between
the constitutional jurisprudence of Canada and the United
States. Although neither Canada nor the United States afford unqualified
protection to speech, 164 the constitutional jurisprudence
162 As noted by one commentator, the appeal to tolerance in this last case may amount
to a "form of vicarious aggression." BOLLINGER, THE TOLERANT SOCIETY, supranote 159,
at 233.
163 See Herbert Marcuse, Repressive Tolerance,in A CRITIQUE OF PURE TOLERANCE 81,
85 (Robert Wolff et al. eds., 1970).
164 In the case of Canada, see, e.g., Regina v. Keegstra, 3 S.C.R. 697 (1990) (criminalization
of hate speech held constitutional); in that of the United States, see, e.g., Chaplinsky v.
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LEGAL INTERPRETATION
of the United States has displayed much greater tolerance towards
extremist and hate speech than that of Canada. Indeed, toleration
of hate speech is a divisive issue on both sides of the border,165 but
in more recent times, American courts have come down on the side
of toleration of hate speech, 66 and Canadian courts on the opposite
side. 67 The dominant position in the United States, consistent
with a marketplace of ideas approach, is that content-based regulations
of speech pose a serious threat to the ideal of an "uninhibited,
robust, and wide-open" debate on public issues168 which lies at the
core of the American commitment to free speech. Accordingly,
extremist or hate speech that falls short of "fighting words" or of
triggering an incitement to violence ought to be tolerated and
fought with more speech rather than with censorship. By contrast,
the position adopted by a majority on the Supreme Court in Canada
is that some sacrifice in the scope of public debate is warranted
in order to deal with the serious harm threatened by hate speech.169
Stressing Canada's commitment to equality and to multiculturalism,
the Supreme Court upheld the ban on hate speech because of
its serious potential for humiliating and degrading those whom it
targets, and for gradually prejudicing the remainder of society
against members of the targeted group.170
Once one realizes that the United States and Canada have certain
different priorities, it becomes obvious that nothing inherent in
either approach makes it more pragmatic than the other. If one is
New Hampshire, 315 U.S. 568 (1942) (finding that "fighting words" are not protected
speech).
165 The Supreme Court of Canada decided Keegstraby a four to three majority. Meanwhile,
the refusal of American courts to exclude hate speech from constitutional protection
has been surrounded by an often strident and bitter polemic. See, e.g., BOLLINGER, THE
TOLERANT SOCIETY, supra note 159, at 14-15 (discussing upheaval and dissent within the
American Civil Liberties Union (ACLU) pursuant to its decision to represent Neo-Nazis
bent on marching in full uniform, including swastika, in a suburban area heavily populated
by Jewish survivors of Nazi concentration camps); Mari J. Matsuda, Public Response to
Racist Speech: ConsideringThe Victim's Story, 87 MICH. L. REv. 2320 (1989) (arguing that
the severe impact of hate speech on its victims justifies criminalization).
166 See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (holding that a statute
criminalizing hate speech was unconstitutional as applied to Ku Klux Klan style cross burnings);
Brandenburg v. Ohio, 395 U.S. 444 (1969) (finding that Ku Klux Klan "advocacy" of
(as opposed to "incitement" to) violence against Jews and Blacks is constitutionally protected);
and Collin v. Smith, 578 F.2d 1197 (7th Cir.), cert. denied., 439 U.S. 916 (1978)
(concluding that a Neo-Nazi march in a Jewish neighborhood is constitutionally protected).
167 See Regina v. Keegstra, 3 S.C.R. 697 (1990) (upholding constitutionality of criminalization
of anti-semitic hate propaganda).
168 New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
169 See Keegstra, 3 S.C.R. at 795.
170 Id. at 746-48.
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CARDOZO LAW REVIEW
concerned with the gradual yet potentially devastating effect of
hate speech on self-esteem and on respect for others, then the Canadian
approach looms as more pragmatic than the American one.
Indeed, by allowing restrictions on speech only if it poses a "clear
and present danger" to society,' 7' or if it amounts to an incitement
to violence,172 American constitutional jurisprudence is poorly
adapted, from a practical standpoint, to deal with speech that produces
humiliation instead of provoking Violence, and that gradually
undermines the very fabric of social cohesion instead of immediately
threatening to tear it to shreds. Conversely, of course, if the
object is to foster the greatest dissemination of available views, limited
only by avoidance of imminent danger and violence, then the
American approach clearly seems more pragmatically suited than
its Canadian counterpart.
It may also be that the Canadian approach exaggerates the
harms of hate -speech while the American one underestimates
them.173 More generally, it seems quite plausible that there is no
reliable way to predict the practical consequences of tolerating extremist
and hate speech, as the number and complexity of relevant
factors and as the full gamut of contextual variations may far exceed
our grasp. In the latter case, pragmatism would be of little
help in selecting a constitutional approach to extremist and hate
speech, but that would by no means obviate the need for one. Accordingly,
the choice would have to depend on conceptions of the
good and value-preferences rather than on practical considerations.
Consistent with this, the Canadian approach would be better
suited for those with a more egalitarian and multicultural outlook,
while the American approach would seem preferable for those
with a libertarian bent. In sum, there is no pragmatist solution to
the paradoxes of extremist and hate speech. At best, there are different
pragmatist means suited to different non-pragmatist ends.
At worst, the role of pragmatism is reduced to the negative task of
preventing non-pragmatic designs from leading to consequences
that are diametrically opposed to those which were originally
intended.
171 See Schenck v. United States, 249 U.S. 47 (1919).
172 See Brandenburg v. Ohio, 395 U.S. 444 (1969).
173 In this connection, it seems quite remarkable that in the United States, with its long
history of slavery, racial segregation, and ruthless violence against African-Americans, the
criminalization of Ku Klux Klan cross burnings should not survive a constitutional challenge
on free speech grounds. See id.
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LEGAL INTERPRETATION
C. Critiqueof the PragmatistJustificationof Freedom of
Expression
The preceding observations concerning extremist and hate
speech suggest that the pragmatists' trust in the Millian ideal is misplaced.
As the Supreme Court of Canada has stated:
The successes of modem advertising, the triumphs of impudent
propaganda such as Hitler's, have qualified sharply our belief in
the rationality of man. We know that under the strain and pressure
in times of irritation and frustration, the individual is
swayed and even swept away by hysterical emotional appeals.
We act irresponsibly if we ignore the way in which emotion can
drive reason from the field.'74
Thus, assuming that uninhibited discussion is insufficient to ward
off the evils threatened by hate speech, and that hate speech can
cause serious incremental harm, leaving the marketplace of ideas
open to hate speech would most likely lead to more harm than
good.
Rejection of the Millian ideal seems most damaging to Rorty's
prophetic vision of a society devoted to persuasion and redescription.
To be sure, Rorty, unlike Mill, is not concerned with advancing
the cause of truth.175 Nevertheless, in the tradition of Mill,
Rorty assumes that harms perpetrated by words are less serious
than those perpetrated by deeds.17 6 To the extent that extremist
and hate speech belie that assumption, however, persuasion and
redescription may inflict harms that are comparable to those flowing
from evil deeds. Indeed, it would not be surprising if a protracted
verbal hate campaign proved more painful, more
demeaning, and more humiliating than an occasional physical
drubbing. Moreover, precisely because Rorty admonishes us that
there is not much value in being overly concerned with the truth, as
a logical consequence, there should be virtually no constraint
against using one's creative power of imagination to generate
redescriptions that are more humiliating and demeaning than uplifting.177
Consistent with this, pragmatism can offer no assurance
174 Regina v. Keegstra, 3 S.C.R. 744 (1990).
175 See supra note 102 and accompanying text.
176 See supra note 133 and accompanying text.
177 Rorty could argue that this pessimistic scenario is unrealistic in view of the liberal
ironist's aversion to cruelty. See supra notes 115-16 and accompanying text. To the extent
that Rorty would open the Millian marketplace of ideas to everyone, however, the selfimposed
constraints of the liberal ironist would be plainly insufficient to turn away harmful
rediscriptions. Thus, even if the liberal ironist is legitimated by intermediate pragmatism,
the Millian marketplace of ideas need not be.
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that Rorty's prophetic utopian dream of solidarity among poets
will not turn into a harrowing nightmare of hate propaganda and
humiliation. In short, even if Rorty's objective of making room for
more useful redescription can be fully justified under pragmatism,
the Millian marketplace of ideas fails the pragmatist test for qualifying
as a suitable means towards that end.
On the surface, it may seem that rejection of the Millian ideal
does not deal as severe a blow to the pragmatic defense of the marketplace
of ideas advanced by Holmes. Holmes harbors no prophetic
dreams or misplaced optimism. He resorts to the
marketplace of ideas because of his distrust of the state's ability to
distinguish between useful and harmful speech, and because of his
distastes for the unwarranted hubris of those who stubbornly hold
on to their erroneous ideas. Accordingly, even if hate speech is
harmful, trusting the state to decide when speech should be protected
might in the end prove worse.
Upon further consideration, however, Holmes's argument for
the marketplace of ideas may be more persuasive than Rorty's, but
it is hardly convincing or compelling from the standpoint of pragmatism.
On the one hand, if it is much more likely that any given
idea will prove false rather than true, then it is by no means obvious
that a certain measure of unwarranted state suppression of
views would be worse than an unimpeded flow of extremist views
and hate propaganda. Moreover, it is not clear that misplaced confidence
in one's most likely erroneous views will lead to more
harmful consequences than constant insecurity and self-doubt. Indeed,
intolerance may well be caused more often by self-doubt and
insecurity than by overconfidence.
178
On the other hand, even if we were to agree that the benefits
to be gained from the unimpeded flow of all ideas (except those
that provoke an imminent danger of violence) far outweighed the
harms of extremist or hate speech, it still would not be obvious that
the American approach to hate speech would be superior, from a
practicalstandpoint, to the alternative adopted in Canada. There
can be no absolute protection of the flow of ideas so long as judges
are required to uphold constraints on "fighting words" and on
communications that pose a "clear and present danger" because of
their message. And without absolute protection, there can be no
guarantee of absolute neutrality. Consequently, the unconscious,
implicit, or hidden biases in an approach predicated on the Ameri-
178 See BOLLINGER, THE TOLERANT SOCIETY, supra note 159, at 86.
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can model may ultimately prove more harmful than the publicly
acknowledged and openly discussed restrictions adopted in an approach
based on the Canadian model. In this connection, it is particularly
noteworthy that, while arguably consistent on a doctrinal
level, American First Amendment jurisprudence has fairly consistently
resulted in suppression of extremist speech coming from the
left and in toleration of hate propaganda perpetrated by the extreme
right.179 Thus, in the end, skeptical and pessimistic premises
fail to afford a convincing pragmatic justification for a marketplace
of ideas approach. But even if they did furnish such a justification,
the American approach to hate speech would not necessarily
emerge as pragmatically superior to plausible alternatives.
Inasmuch as Posner's reasons for supporting the marketplace
of ideas fall somewhere between Mill's and Holmes's180 his most
recent retreat seems consistent with the conclusion reached herenamely,
that neither pragmatist ends nor pragmatist means necessarily
calls for approaches to free speech spanning the spectrum
bounded by the respective theories of Mill and Holmes. As Posner
emphasizes, the harms of hate speech impose costs that must be
empirically ascertained. And it is only on the basis of those costs,
and of other relevant costs and benefits, that a legitimate decision
can be made on whether hate speech should be tolerated or prohibited.181Moreover,
the "costs" and "benefits" in question may be
determined in terms of a wealth maximization criterion or some
179 Compare Debs v. United States, 249 U.S. 211 (1919) (Holmes, J.) (upholding the
conviction of a long-time leader and presidential candidate of the Socialist Party for speech
opposing World War I); Gitlow v. New York, 268 U.S. 652 (1925) (upholding the criminal
conviction of a member of the Socialist Party for advocating, in general terms, the violent
overthrow of the government on the grounds that such advocacy is sufficient by itself to
meet the "clear and present danger" requirement.) (Justice Holmes dissented. See id. at
672.); Whitney v. California, 274 U.S. 357 (1927) (Justice Holmes concurred. See id. at
372.), overruled by, 395 U.S. 444 (1969) (conviction similar to that in Gitlow upheld); Dennis
v. United States, 341 U.S. 494 (1951) (upholding criminal conviction for organizing the
Communist Party and advocating the violent overthrow of the government); Communist
Party v. Subversive Activities Control Bd., 367 U.S. 1 (1961) (upholding the requirement
that the Communist party register with the Attorney General and furnish membership lists
based on a legislative finding that the communist movement presents a "clear and present"
danger over objection on freedom of association grounds) with Brandenburg v. Ohio, 395
U.S. 444 (1969) (holding that Ku Klux Klan advocacy of violence against Jews and Blacks
was constitutionally protected); Collin v. Smith, 578 F.2d 1197 (7th Cir.), cert. denied., 439
U.S. 916 (1978) (concluding that a march in Nazi uniforms, including swastikas and advocacy
of Nazism, was protected); and R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (statute
making cross burning in the manner of the Ku Klux Klan criminally punishable expression
held unconstitutional).
180 See supra note 140 and accompanying text.
181 See POSNER, OVERCOMING LAw, supra note 31, at 396.
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other substantive, normative criterion such as libertarianism or
egalitarianism. In any event, consistent with Posner's own recent
remarks, pragmatism itself can offer no justification for or against
tolerating extremist or hate speech.
VI. CONCLUDING REMARKS: THE LIMITS AND DANGERS OF
PRAGMATISM IN LEGAL INTERPRETATION
The last conclusion concerning hate speech can be extended to
cover freedom of speech generally. Indeed, whether we tackle
freedom of speech at the core, or at the margins, any cogent justifiZ
cation for it ultimately depends on linkage to ends that are not
reducible to pragmatism. This may be less apparent at the core
than at the margins, because of the availability of a large number of
overlapping normative justifications. For example, at its core, free
speech may be justified from democracy, truth, self-expression,
equal dignity, solidarity, etc., but at the margins many, if not most,
of these justifications would in all probability be unavailable. Also,
where a large number of overlapping ends affords justifications to
freedom of expression, there may be no practical need to focus on
ends. But that should not be mistakenly interpreted to imply that
ends do not matter. Thus, it may be possible sometimes to pick
and choose among suitable ends, but inescapably all purportedly
pragmatic justifications of free speech will ultimately prove to be
parasitic on some non-pragmatic end. In short, to the extent that it
makes sense to speak of pragmatist justifications of free speech,
such justifications would fall under the rubric of mere pragmatism
rather than under that of intermediate pragmatism.
Given the high hopes that the pragmatic justification of freedom
of expression would bolster the case for intermediate pragmatism,
its failure to do so calls into question whether the very notion
of intermediate pragmatism is devoid of any practical consequences.
To resolve this question, it is necessary to focus briefly on
the distinction between critical and constructive pragmatism. Critical
pragmatism refers to antifoundationalism, skepticism, and contingency,
whereas constructive pragmatism designates whatever
positive aims or programs may derive their justification from pragmatism.
Assuming for the moment that critical pragmatism is generally
uiproblematic, the question boils down to whether anything
remains to constructive pragmatism after the conclusion that there
is no cogent purely pragmatic justification for freedom of
expression.
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LEGAL INTERPRETATION
Arguably, the only constructive prescription to which critical
pragmatism leads is the necessity to embrace as a second-order end
the maximization of equal freedom to pursue first-order ends. At
first, it appeared that the promotion of freedom of speech could be
subsumed under this second-order end. That did not prove to be
the case, but is not necessarily dispositive of the question. Under
further consideration, however, it becomes apparent that while
critical pragmatism does not foreclose pursuing the above mentioned
second-order end, it by no means requires it. After accepting
that antifoundationalism, skepticism, and contingency lead
to the conclusion that no conception of the good can be convincingly
established as superior to others, the pragmatist must confront
the need to determine the best practical course to follow
under the circumstances. With this in mind, suppose that embracing
the conception of the good shared by a majority would lead to
greater peace and stability whereas adopting the second-order end
would lead to greater freedom and sense of fairness. In that case,
is either of the two options preferable to the other from a pragmatist
standpoint? The answer is clearly no, as the first option offers
the best practical means towards the (non-pragmatic) end of stability,
whereas the same is true for the second option with respect to
the non-pragmatic objective of greater freedom. At least when it
comes to constructive pragmatism, therefore, the concept of intermediate
pragmatism ultimately proves empty.
What about critical pragmatism? Can it escape the fate of being
ultimately relegated to mere pragmatism? In other words, do
antifoundationalism, contingency, or moderate skepticism have
anything peculiarly pragmatic about them? Here again, the answer
seems to be clearly in the negative. Antifoundationalism is typical
of the postmetaphysical era, and even more of the postmodern era,
and it counts among its many advocates the deconstructionists, for
example, who are not necessarily pragmatists. 182 The same can be
said of contingency, that is by no means within the exclusive preserve
of the pragmatists. Indeed, the notion of contingency has
been invoked and extensively used by others, such as the existentialists.
183 Finally, skepticism is hardly an invention of
pragmatists, 84 and "moderate skepticism," to the extent that it is a
182 See Rosenfeld, Deconstructionand Legal Interpretation,supra note 1.
183 See, e.g., JEAN-PAUL SARTRE, BEING AND NOTHINGNESS: AN ESSAY ON'PHENOMENOLOGICAL
ONTOLOGY (Hazel E. Barnes trans., 1956) (providing an extended existentialist
treatment of the notion that the individual's existence is contingent).
184 Skeptical thinking has historical roots going as far back as the pre-Socratic philosophers.
See Richard H. Popkin, Skepticism, in 7 THE ENCYCLOPEDIA OF PHILOSOPHY 449
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feature of pragmatism, 85 seems far from coherent. Specifically,
once the hope of constructive pragmatism is cast aside, what is
there to constrain skepticism? If the answer is "what we cannot
help but believe in," it is purely circular. In that case, "moderate
skepticism" either dissolves into a mere tautology: "I believe in
what I believe in and I doubt what I cannot believe"; or it ends up
amounting to an arbitrary refusal to ride skepticism to its logical
conclusion.
Critical pragmatism thus seems as parasitic as constructive
pragmatism. Nevertheless, it may still be preferable to alternatives
to the extent that it is biased towards practical concerns, makes
room for theoretical inconsistencies and is oriented toward the future.
To determine whether that can be borne out, we must ask
ourselves whether legal interpretation ultimately stands to gain or
lose from adherence to critical pragmatism.
Critical pragmatism's orientation towards practical concerns
can make a positive, though limited contribution, to legal interpretation.
At the legislative level, it can help weed out unworkable or
counter-productive legislation. This help, however, is likely to remain
relatively modest, to the extent that pieces of legislation have
multiple purposes, and that the practical implications of legislation
are often not clear cut. Similarly, at the judicial level, critical pragmatism
may help judges recognize and reject legal interpretations
that are practically unworkable, or that would clearly lead to practical
consequences inconsistent with what was intended. But in the
great many cases in which different judicial interpretations would
lead to different practical results, critical pragmatism can only play
a minor role. As already mentioned, in those cases, judicial interpretation
must rely on non-pragmatic normative considerations,
with the consequence that critical pragmatism cannot be relied
upon to furnish a just interpretation.
The much touted room for theoretical inconsistency, which
philosophical critical pragmatism affords to legal pragmatism,
proves in the end to be as dangerous as it isconvenient. In cases in
which there is a consensus concerning legal interpretation, but the
theoretical reasons for agreement vary among various parties to
the consensus, as already pointed out, convenience clearly outweighs
any plausible danger. Indeed, because of inherent differ(Paul
Edwards ed., 1967). Also, among twentieth-century skeptics must be included such
diverse philosophers as Albert Camus and George Santayana. See id. at 458.
185 See supra notes 51-52 and accompanying text (discussing moderate skepticism in the
context of Posner's pragmatism).
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LEGAL INTERPRETATION
ences between philosophy and law as distinct practices; and
because everyone who gives his or her assent to the legal interpretation
which is the subject of the relevant consensus does so because
the interpretation in question is consistent with his or her
own theoretical outlook; putting theoretical differences aside
looms as both practical and harmless.
In cases in which there are genuine theoretical inconsistencies,
however, critical pragmatism may often do more harm than good,
by masking conflicts and tensions that would benefit from being
tackled in the open. Thus, for example, along the lines suggested
by Thomas Grey,186 one may attempt to solve the thorny legal
problem raised by hate speech by devising an approach that borrows
from both libertarianism and egalitarianism without being
consistent with either of the two. Accordingly, let us assume that
to placate egalitarian concerns regarding the harms of hate speech,
a libertarian marketplace approach is somewhat modified through
criminalization of hate propaganda that falls within the definition
of "fighting words.' 1 87 From a libertarian standpoint, this solution
might be dangerous in that it undermines (what the libertarian considers)
"content-neutrality" and opens the door to a nearly imperceptible
and gradual, but nonetheless ultimately potentially
devastating, corruption of the free marketplace. From the egalitarian
standpoint, on the other hand, this compromise is also dangerous,
for "fighting words" hate speech may only represent the tip of
the iceberg, and it may actually be less harmful than less strident
alternatives which are likely to cause more profound and more permanent
injuries. The compromise solution may not only conceal
the relative potential for harm of different kinds of hate speech,
but also, by conveying the impression that it imposes a balanced
and reasoned standard, it may make it more difficult to combat the
evils of hate speech than if the clash between libertarians and egalitarians
were fully spelled out in the open. Finally, enthusiastic endorsement
of theoretical inconsistencies would seem to make it
easier for greater judicial manipulation. In other words, concerns
of theoretical consistency are likely to impose some constraints
186 See Grey, What Good is Legal Pragmatism?,supra note 25.
187 This solution comes close to that advocated by Grey. See id at 25. Moreover, while
this solution may seem consistent with the libertarian approach, it is actually not, to the
extent that it only criminalizes "fighting words" that also qualify as hate speech and thus
engages in content discrimination. See R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)
(criminalization of racist and gender-based "fighting words" but not other kinds, such as
those based on hatred of homosexuals, held constitutionally impermissible content
discrimination).
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that make for greater judicial integrity than if theoretical inconsistency
could be exploited to shield judicial biases. Accordingly, for
all these reasons, the likely consequences of theoretical inconsistency
do not appear to enhance the cause of critical pragmatism.
Critical pragmatism's orientation towards the future is linked
both to its antifoundationalism and to its concern with practical
consequences. Stated in conventional terms, pragmatism is
designed to allow us to rid ourselves of cumbersome historical baggage
and to concentrate on what works as measured by actual future
consequences. On the level of common sense, this certainly
sounds like a useful and practical approach, even if very banal.
From a more critical theoretical perspective, however, combining
pragmatism's antifoundationalism with its future orientation leads
to a vexing contradiction. Consistent with this latter perspective, it
is pragmatism's orientation towards the future that shapes and sustains
its antifoundationalism. This is most obvious with respect to
metaphysics. Indeed, in the postmetaphysical age, there is no practical
future oriented use for metaphysics in the sense that metaphysics
does nothing to help us solve the problems which we must
confront in the course of shaping our future. Furthermore, the
case of metaphysics is easy because in the postmetaphysical age
most of us believe that, and behave as if, science rather than metaphysics
helps solve practical problems. But from the standpoint of
pragmatism, the proof of any theory or hypothesis lies in its consequences,
and since the future cannot ever be known ex ante, strictly
speaking no action could ever be pragmatically justified before, or
at the time of, its occurrence without recourse to some unwarranted
foundation. Consequently, the old pragmatists were
foundationalists who relied on science and experience to justify
their future oriented actions. Neopragmatists like Rorty, on the
other hand, reject empirical science as incompatible with pragmatism's
antifoundationalism, but replace it with arbitrary foundations
of their own. Thus, to the extent that Rorty goes beyond
claiming that use of language and redescription are inevitable facts
of our past and present lives, and prophesies about future self-creation
and solidarity,188 he falls into the foundationalist trap. Indeed,
without any foundations, there is no reason to believe that any particular
future consequence, as opposed to any other consequence,
would follow from any present use of language, or from any past or
present effort at redescription. In sum, if pragmatism's antifoundationalism
and its orientation towards the future are taken together
188 See supra note 117 and accompanying text.
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and are taken seriously they logically lead to only one outcomenamely,
complete paralysis. Therefore, not only does pragmatism's
failure to deal with ends condemn it to a purely parasitic existence,
but also, when logically interpreted, its antifoundationalism combined
with its future orientation deprive it of any legitimate basis
for dealing with means.
Based on the preceding analysis, pragmatism cannot solve the
problem of just interpretations or eliminate the need for the interpretive
subject. Whereas the intellectual journey of pragmatism
has left us with useful lessons and modest gains, pragmatism offers
no viable solution to the crisis concerning legal interpretation in a
pluralist society. Because of the failure of the promise of pragmatism,
the split between justice according to law and justice beyond
law cannot be overcome through a mere rejection of foundations
or through exclusive focus on means to the exclusion of ends. As a
matter of fact, pragmatism's propensity to draw attention to means
is not only inadequate but can also be downright harmful. Submersion
or concealment of ends most often boosts the status quo, and
thus exacerbates the obstacles encountered by those who are disfavored
by prevailing institutional arrangements. On the other hand,
pragmatism's antifoundationalism is so paralyzing in its logical implications
that pragmatists have been prone to preach it more than
to practice it. There is, however, a useful lesson to be drawn from
pragmatism's attacks on foundations. Foundations are necessary
and unavoidable, but in this postmodern age, they cannot be drawn
from metaphysics, the enlightenment's conception of scientific reason
or Kantian morals. The challenge posed by the intellectual
journey of pragmatism, therefore, is to discover foundations consistent
with contingency and a plurality of conceptions of the good,
and, at the same time, capable of reconciling justice according to
law with justice beyond law in a way that provides a satisfactory
handle on the problem of legal interpretation. That is obviously a
rather formidable challenge, well beyond the scope of this Article.
But hopefully, the preceding discussion has contributed to
"clear[ing] the underbrush"' 89 and to encouraging efforts to meet
the challenge in novel and creative ways.
189 See supra note 24 and accompanying text.
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