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WHY PRAGMATISM? THE PUZZLING
PLACE OF PRAGMATISM IN
CRITICAL THEORY
Richard Warner*
Criticaltheoristsoften adopt the languageand methods ofpragmatism
in criticizingthe legalsystem's claim to political legitimacy.
In this article, ProfessorRichard Warner challenges these theorists
and arguesthatpragmatismcannotbe used in such afashion. Pragmatism,
properly understood as the philosophicalmethod originating
with C.S. Peirce and exemplified in the modern thought of Richard
Rorty, does notpermit any particularconception ofjustice to be nonrelativelyprivileged
over any other. Those criticaltheorists who endorse
pragmatism can thus not appeal to any "true" conception of
justice in proposinga positivepoliticalconception of legitimacy which
challenges the assumptions of classical liberalism. Using Joseph
Singer's influential work as a focus, Professor Warner argues that
criticaltheorists who presentalternative visions of legal legitimacy do
so by referring to hidden truths about what is "really"justified. In
doing so, however, these theorists are applying pragmatism inconsistently
with theirprevious critiquesofprevailinglegalstandards. Professor
Warnerconcludesby urging thatcriticaltheoristsacknowledge
pragmatism'sinabilityto determine which ofcompeting (andconflicting)
norms ofjustification are non-relativelypreferable. In making
positive proposals for reordering society, critical theorists have
adopted, not pragmatism,but an older, Heracliteanapproach.
Pragmatism is popular among legal scholars.I Its most ardent advo*
Assistant Professor,Chicago-Kent College of Law, Illinois Institute of Technology. Ph.D.
(philosophy)1976, University of California,Berkeley; J.D. 1989, University of Southern California.
lam indebted to Catherine Wellsfor severalyearsofdiscussionsaboutpragmatism. I alsothank
Steven Burton, David Gerber, RichardMatasar,and MargaretStewart for comments on an earlier
draft. I delivered an earlierversion of this essay at the University of Illinois at Urbana-Champaign
College of Law and received many helpful comments. I also gratefully acknowledge the financial
support of the MarshallD. Ewell Research Fund.
1. Pragmatism's popularity in the legal academy is comparatively recent. See, e.g., Robin
West, Liberalism Rediscovered: A PragmaticDefinition of the Liberal Vision, 46 U. PITT. L. REV.
673, 736 (1985) (lamenting pragmatism's desuetude). Steven Smith has outlined the sudden resurgence
of pragmatism. Steven D. Smith, The Pursuitof Pragmatism, 100 YALE L.J. 409, 409-11
(1990). Smith cites the following articles as representative of pragmatism: Daniel A. Farber, Legal
Pragmatismand the Constitution, 72 MINN. L. REV. 1331 (1988); Thomas C. Grey, Holmes and
Legal Pragmatism, 41 STAN. L. REV. 787 (1989); Catherine W. Hantzis, LegalInnovation Within
the Wider Intellectual Tradition: The Pragmatism of Oliver Wendell Holmes, Jr., 82 Nw. U. L.
REV. 541 (1988); John Stick, Can Nihilism Be Pragmatic?, 100 HARV. L. REV. 332 (1986). Smith
UNIVERSITY OF ILLINOIS LAW REVIEW
cates are those "critical theorists"2 who see it as a much needed antidote
to prevailing modes of legal reasoning-modes of reasoning that, in their
view, contribute to the unjust oppression of society's marginalized and
disadvantaged. Although the place of pragmatism in critical theory is
my focus, it is worth noting that pragmatism's popularity extends to theorists
of various jurisprudential allegiances. Feminists, for example,
stress the connections between feminism and pragmatism,3 and those
who see law as a matter of "practical reason" explain that their position
is equivalent to pragmatism.4 Such widespread acceptance has prompted
leading scholars to proclaim a "renaissance" of pragmatism in American
legal thought.5 All of which, of course, led to the question of what exactly
pragmatism is, a question motivated by an "emerging suspicion that
if we look too closely for legal pragmatism, we might not find anythingor
at least not anything worth discussing."6 As Radin and Michelman
also cites the articles in Symposium, The Renaissanceof Pragmatismin American Legal Thought, 63
S. CAL. L. REV. 1569 (1990) [hereinafter Symposium]. These articles and others appear in PRAGMATISM
IN LAW & SocIETY (Michael Brint & William Weaver eds., 1991) [hereinafter PRAGMATISM
IN LAW].
2. My use of this term follows Joseph Singer's. Singer writes that "[b]y 'critical' theory, I
mean to include the most sophisticated proponents of law and society, critical legal studies, and
feminist legal theory." Joseph W. Singer, Legal Realism Now, 76 CAL. L. REV. 465, 536 (1988)
(book review). See also William G. Weaver, Note, RichardRorty and the RadicalLeft, 78 VA. L.
REV. 729, 729 n.5 (1992) (using "radical Left" to identify essentially the same group of scholars and
criticizing them for failing to understand the pragmatism they purport to endorse). As for a list of
critical theorists, Mark Kelman is surely correct when he observes, "I am quite sure it would not be
possible to label the most significant identifying works in these traditions without offending innumerable
authors who have made contributions at least as significant to their development as the authors
I might mention." Mark Kelman, Emerging Centrist Liberalism, 43 FLA. L. REV. 417, 433 n.62
(1991). "Thankfully," Kelman adds, "Professors Eskridge and Peller seemingly felt no such hesitations."
Id. See William N. Eskridge, Jr. & Gary Peller, The New Public Law Movement: Moderation
as a Postmodern CulturalForm, 89 MICH. L. REV. 707, 763 nn.182 & 184-85 (1991) (listing,
among others, Roberto Unger, Catharine MacKinnon, and Derrick Bell as foremost in the critical
legal studies canon).
3. See Hantzis, supranote 1,at 543; Margaret J. Radin, The Pragmatistand the Feminist, in
PRAGMATISM IN LAW, supra note 1, at 127, 127 [hereinafter Radin, Feminist];see also Margaret J.
Radin & Frank Michelman, Pragmatistand PoststructuralistCriticalLegalPractice, 139 U. PA. L.
REV. 1019, 1049-51 (1991) (discussing the complementary nature of pragmatism and feminism).
4. See William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretationas Practical
Reasoning, 42 STAN. L. REV. 321, 323 (1990) (arguing that pragmatism and practical reasoning both
emphasize "the concrete situatedness of the interpretative enterprise, which militates against overarching
theories"). Daniel Farber claims that the following are essentially synonymous with pragmatism:
intuitionism, prudence, institutionalism, and practicalreason. Daniel A. Farber, Legal
Pragmatismand the Constitution, 72 MINN. L. REV. 1331, 1334-35 (1988).
5. See Symposium, supra note 1; see also CORNEL WEST, THE AMERICAN EVASION OF PHILOSOPHY
3 (1989) ("A small scale intellectual renascence is occurring under the broad banner of
pragmatism."). Talk of a "renaissance" is of a piece with the idea that "[l]egal theory is currently in
a state of crisis." Robert J. Lipkin, Kibitzers, Fuzzies, and Apes Without Tails: Pragmatismand the
Art of Conversationin Legal Theory, 66 TUL. L. REV. 69, 71 (1991). Lipkin says that the "crisis in
legal theory reflects the crisis in academic philosophy. Metaphysics and epistemology... appear to
have led to a cultural dead-end.... [P]ost-philosophical 'philosophers' have taken the conversational
turn and have become kibitzers, fuzzies, or apes without tails-anti-foundationalist, anti-essentialist
conversationalists." Id. at 71 n.5. Lipkin's view of contemporary philosophy is decidedly one-sided.
Not all of us agree with the "dead-end" assessment. See Introduction to NATURALISM: A CRITICAL
APPRAISAL. 1 (Steven J. Wagner & Richard Warner eds., 1993).
6. Smith, supra note 1, at 410. As Smith notes, it is not easy to find a coherent account of
[Vol. 1993
PRAGMATISM IN CRITICAL THEORY
remark, "pragmatism... tends to get dismissed as a buzzword or a poor
excuse for thought. 'We are all poststructuralists now' may start a row.
'We are all pragmatists now' merely gets you a yawn." 7 After all, if
pragmatism were a substantive philosophical position with distinctive
claims and implications, how could so many, who otherwise agree on so
little, agree that pragmatism is true?
Suffice it for the moment to say that by pragmatism I mean the distinctly
American philosophical movement begun by C.S. Peirce and William
James, developed by John Dewey, and most recently espoused by
Richard Rorty.8 Pragmatism so conceived is a substantive position. But,
contrary to the claims of critical theorists, pragmatism yields no privileged
perspective from which we can discern the law's alleged complicity
in the oppression of the powerless; rather, pragmatism yields relativism
about truth and justice.9 Thus, one cannot consistently endorse pragmatism
in one breath, and in the next condemn prevailing modes of legal
reasoning for failing to live up to the true, non-relative conception of
justice. Yet this is precisely what contemporary legal pragmatists typipragmatism.
Such an account is difficult to discern even in work as careful and insightful as Thomas
Grey's. Grey endorses legal pragmatism as "not just one theory among others, but (for now, as far
as we can see) the right theory, the best theory." Thomas C. Grey, Hearthe Other Side: Wallace
Stevens and PragmatistLegal Theory, 63 S. CAL. L. REv. 1569, 1569 (1990). But Grey also remarks
that "much pragmatist theory [is] essentially banal." Grey, supranote 1, at 814. He also insists that
"[p]ragmatism in law is primarily a theory about how to use theory .... " Thomas C. Grey, What
Good Is Legal Pragmatism?,in PRAGMATISM IN LAW, supra note I, at 9, 25 [hereinafter Grey,
Pragmatism]. Evidently, pragmatism is not the correct theory. Ronald Dworkin interprets Grey's
thought about pragmatism as a realization that our convictions are contextual (a function of time,
place, and culture), and that the "soundness and importance of some idea consists.., in its usefulness
to the community .. " Ronald Dworkin, Pragmatism,Right Answers, and True Banality, in
PRAGMATISM IN LAW, supro note 1, at 359, 369. However, as Dworkin points out, no reasonable
person disputes the contextualism point, and the "usefulness" point is utterly empty until we are told
what counts as usefulness. Id. at 370.
Margaret Radin offers a more definite account. She says that pragmatism "is a commitment
against abstract idealism, transcendence, foundationalism, and atemporal universality; and in favor
of immanence, historicity, concreteness, situatedness, contextuality, embeddedness, narrativity of
meaning." Radin, Feminist,supra note 3, at 134. This definition is informative, but only to a limited
extent. Radin constructs her list by rejecting one side and endorsing the other of traditional philosophical
dualisms, yet she also--quite rightly-observes that "[a]nother pragmatist commitment...
is the dissolution of traditional dichotomies." Id. While her classification is very helpful, it ultimately
misses the pragmatist point to explain pragmatism as endorsing one or another side of traditional
dichotomies.
7. Radin & Michelman, supra note 3, at 1031.
8. As William Weaver notes, critical theorists are "working furiously to press Rorty's pragmatism
into the service of law." Weaver, supra note 2, at 729. Weaver notes that over 100 recent
law review articles cite Rorty's work. Id. To give just a few examples: Margaret Radin understands
pragmatism as a distinctive philosophical position (or set of positions) in the tradition of Peirce,
James, Dewey, and Rorty. Radin, Feminist, supra note 3, at 134-42. Catherine Hantzis shares this
understanding of pragmatism. Hantzis, supra note 1, at 544-61 (placing Oliver Wendell Holmes's
pragmatism in the broader Peircean tradition). John Stick interprets those critical legal scholars
interested in pragmatism as endorsing a Rortyan version of pragmatism. Stick, supranote 1,at 383-
85. A peculiar feature of Steven Smith's article, supra note i, is that he ignores the Peirce, James,
Dewey, and Rorty lineage. This may partially explain why he fails to find a distinctive philosophical
position within pragmatism.
9. See infra part Ill.
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UNIVERSITY OF ILLINOIS LAW REVIEW
cally do.1 ° The puzzle is why. Why do highly intelligent and sophisticated
legal thinkers eagerly embrace a philosophical position so flatlyand
obviously-inconsistent with the social critique to which they are
committed?
A concern with political legitimacy is the answer. Critical theory
has always emphasized legitimacy as a central issue. 1 Its leitmotif has
been its attack on the liberal view of legitimacy. One locus classicus of
this attack is Joseph Singer's article, The Playerand the Cards: Nihilism
and Legal Theory, 2 in which Singer appeals to pragmatism to support
his argument that liberal modes of legal reasoning lack legitimacy. 3 Recently,
however, critical theorists have turned from the negative task of
attacking liberal conceptions of legitimacy to the positive goal of providing
an alternative vision of their own. Cornel West, for example, endorses
an Emersonian conception of a "modern world [of] self-sustaining
and self-overcoming individuals who .. .flex their intellectual, social,
political, and economic muscles in order to gain wisdom .... ",14 West
sees pragmatism as "a rich and revisable tradition that serves as the occasion
for cultural criticism and political engagement in the service of an
Emersonian culture of creative democracy.""
The negative critique and the positive project are my targets.' 6 Both
founder on the same rock: pragmatism's relativism. Just as the pragmatist
cannot consistently condemn prevailing modes of legal reasoning for
failing to live up to the "true" conception of justice, he or she cannot
consistently appeal to such a conception of justice in developing a positive
political theory of legitimacy. Yet legal pragmatists typically make
such an appeal.
Part I explains what pragmatism is. Part II explains pragmatism's
place in the critical theorists' attack on the theory and practice of liberal
legitimacy. I defer discussion of the positive project to part IV. Part III
argues that pragmatism actually leads to a relativism about moral justification
that is entirely inconsistent with the use critical theorists make of
pragmatism. Part IV examines Joseph Singer's excellent and insightful
10. See infra parts II, III.
11. MARK KELMAN, A GUIDE To CRITICAL LEGAL STUDIES (1987) is the classic attempt to
provide a unified, sympathetic statement and defense of the central themes of critical theory. ANDREW
ALTMAN, CRITICAL LEGAL STUDIES: A LIBERAL CRITIQUE (1990) is a comprehensive
book-length critique of critical legal studies. See also Stick, supra note I; John Stick, Charting the
Development of CriticalLegal Studies, 88 COLUM. L. REV. 407, 417, 424 (1988) (book review) [hereinafter
Stick, Development].
12. Joseph W. Singer, The Playerand the Cards: Nihilismand Legal Theory, 94 YALE L.J. 1
(1984).
13. Although Singer does not specifically use the term pragmatism,much of his article is based
upon the philosophy of Richard Rorty, the pre-eminent modern pragmatist. Id. at 7 n. 13; see also
Stick, supra note 1,at 336. I differ from Stick in my focus on the affirmative goals of critical theory.
In addition, I also propose substantially different criticisms of the negative critique. See infra text
accompanying notes 97-99.
14. WEST, supra note 5, at 16.
15. Id. at 239 (emphasis added).
16. See infra part IV.
[Vol. 1993
PRAGMATISM IN CRITICAL THEORY
work to diagnose why critical theorists/"pragmatists" overlook the relativism
that comes with pragmatism when using pragmatism in their positive
account of political legitimacy. Part V concludes that the critical
theorists/"pragmatists" are not really pragmatists at all. Their philosophical
vision is a much older-and non-relativistic--one.
I. WHAT IS PRAGMATISM?
To adequately assess the uses made of pragmatism by critical theorists,
we first need to see what pragmatism is. A number of different
philosophical views may with equal merit claim the title "pragmatism."
Sometimes the label connotes little more than taking a serious interest in
practical politics and the realities of human well-being and suffering; at
other times it seems to mean simply being practical, "pragmatic" in the
colloquial, nonphilosophical sense.' 7 Sometimes-indeed, this is one of
the most salient themes in legal pragmatism-pragmatism means paying
special attention to context.' 8
For example, Joseph Singer argues that
one crucially important point about pragmatism is that it shows us that
the categories and forms of discourse we use, the assumptions with
which we approach the world, and the modes of analysis we employ
have important consequences in channeling our attention in particular
directions. The paradigms we adopt affect what we see and how
we interpret it. They determine, to a large extent, who we listen to
and what we make of what we hear. They determine what questions
we ask and the kinds of answers we seek. 19
This is good advice. But that is all it is; it defines no distinctive philosophical
position. One would hope any intellectually mature, self-reflective,
and self-critical thinker accepts this advice.2 ° The only intellectual
17. See, e.g., Grey, Pragmatism, supra note 6, at 10 ("[T]he issue of... practicality hovers
over the whole enterprise of pragmatist theorizing.").
18. See Smith, supra note I, at 430 ("Pragmatists recurringly emphasize themes such as 'experience,'
'avoidance of abstraction,' 'intuition,' 'dialogue,' and 'contextualism.' "). Smith further
notes that "upon inspection, none of these themes supplies any distinctively pragmatic way of constructing
or evaluating theories." Id.; see also Martha Minow & Elizabeth V. Spelman, In Context,
in PRAGMATISM IN LAW, supra note 1, at 247, 247.
19. Joseph W. Singer, Should Lawyers Care About Philosophy?, 1989 DUKE L.J. 1752, 1771
(book review).
20. Not that it is easy advice to follow. One can only have sympathy with Singer's repeated
pleas that we should pay more attention to context, for as Wallace Stevens puts it:
Rationalists, wearing square hats,
Think, in square rooms,
Looking at the floor,
Looking at the ceiling.
They confine themselves
To right-angled triangles.
If they tried rhomboids,
Cones, waving lines, ellipsesAs,
for example, the ellipse of the half-moonRationalists
would wear sombreros.
Wallace Stevens, Six SignificantLandscapes,in THE COLLECTED POEMS OF WALLACE STEVENS 75
(1954). The metaphor of square hats and sombreros does not merely make a point about "rationalNo.
3]
UNIVERSITY OF ILLINOIS LAW REVIEW
commitment necessary to make this advice relevant is an individual commitment
to understanding one's self and others. Such reflections have
led Steven Smith to suggest that pragmatists have "nothing of significance
to say--or, at least, with nothing significant... that is characteristically
pragmatic. And the question that emerges ...is why pragmatists
keep on talking. Or, more precisely, why do they keep talking about
pragmatism?"2
A. Pragmatismas Anti-Foundationalism
The answer is that legal pragmatists generally see themselves as having
a distinctive philosophical position. And, of course, pragmatism in
the Peirce, James, Dewey, and Rorty tradition is a distinctive philosophical
orientation, as well as being the orientation most legal pragmatists
have in mind.22 As a philosophicalposition, pragmatism makes characteristic
claims about linguistic meaning, truth, and justification. The
claim about justification is the one relevant here.23 The pragmatic view
ists"; it also illustrates how, to use Singer's language, "contexts" (our "hats") condition our view of
things.
21. Smith, supranote 1,at 440.
22. Pragmatism as a philosophical movement originated in America in the first quarter of the
20th century. The movement influenced not only academic philosophy, but also law, education,
political and social theory, religion, and art. The leading pragmatist philosophers in this early period
were C.S. Peirce, William James, John Dewey, George Herbert Mead, and C.I. Lewis. As developed
by these individuals, pragmatism evolved into "a general philosophy of psychology and logic, a
philosophy of the operation of thought in controlling future experience with knowledge qualified by
values, and an empirical methodology of the use of language and the nature of inquiry and judgment."
H.S. Thayer, Introduction to PRAGMATISM: THE CLASSIC WRITINGS 21 (H.S. Thayer ed.,
1982). As a "philosophy of the operation of thought," pragmatism rejected a sharp dichotomy between
theory and action, emphasizing instead the inextricable intertwining of action, value, and
knowledge in guiding our response to the present and our plans for the future. In Dewey's words,
"[p]ragmatism... presents itself as an extension ofhistorical empiricism, but with this fundamental
difference, that it does not insist upon antecedent phenomena but upon consequent phenomena; not
upon the precedents but upon the possibilities of action. And this change in point of view is almost
revolutionary in its consequences." John Dewey, The Development of American Pragmatism, in
PRAGMATISM: THE CLASSIC WRITINGS, supra, at 23, 32-33. Until recently, this revolution seemed
to have seen its day. Pragmatism, as a significant movement, had disappeared from the philosophical
stage. Its resurgence in the last 15 years is due largely to Richard Rorty.
23. When Rorty explains pragmatism, he emphasizes pragmatic treatments of truth and justification.
Rorty emphasizes that pragmatism rejects the idea that there is anything "out there" in the
world that makes our claims true. As to justification, Rorty holds that "there is nothing to be said
about either truth or rationality apart from descriptions of the familiar procedures of justification
which a given society-ours-uses in one or another area of inquiry." RICHARD RORTY, Solidarity
or Objectivity?, in OBJECTIVITY, RELATIVISM, AND TRUTH 21, 23 (1991) [hereinafter RORTY, Solidarity].
He notes that pragmatists abandon "the urge to answer questions like 'Why believe what I
take to be true?' 'Why do what I take to be right?' by appealing to something more than the ordinary,
retail, detailed, concrete reasons which have brought one to one's present view." RICHARD
RORTY, Pragmatism,Relativism, and Irrationalism,in CONSEQUENCES OF PRAGMATISM 160, 165
(1982) [hereinafter RORTY, Relativism]. In a passage designed to set Platonistic teeth on edge, Rorty
characterizes pragmatism as "the doctrine that there are no constraints on inquiry save conversational
ones-no wholesale constraints derived from the nature of the objects, or of the mind, or of
language, but only those retail constraints provided by the remarks of our fellow-inquirers." Id.
The "constraints" are-or at least include-what we are calling norms of justification; the "remarks
of our fellow inquirers" appeal to these norms. Rorty's emphasis on conversational constraints reflects
American pragmatism's traditional focus on the intertwining of action, value, and knowledge.
[Vol. 1993
PRAGMATISM IN CRITICAL THEORY
of justification is anti-foundational, and it is just this aspect that most
legal pragmatists find especially appealing. If there is any consistent refrain
in modem legal pragmatism, it is wrong to think ofjustification as
resting on a secure foundation.24 But what exactly is anti-foundationalist
about justification?
We can begin by noting the obvious, but important, fact that we all
accept and employ various normsofjustification in deciding what beliefs
to assert and how to act, and in evaluating the assertions and actions of
others. We may, of course, employsuch norms unreflectively and unconsciously.
Such norms delineate what counts as a justification and when
one justification is better than another. Cohen v. California25 illustrates
what I mean by a norm of justification. Cohen was arrested when he
appeared in the corridors of the Los Angeles County Courthouse wearing
a jacket with the words "Fuck the Draft" clearly visible on the
back.26 The Cohen Court held that "[t]he ability of government, consonant
with the Constitution, to shut off discourse solely to protect others
from hearing it is... dependent upon a showing that substantial privacy
interests are being invaded in an essentially intolerable manner."27 This
is a norm of justification: it tells us what counts as justifying an official
usurpation of the right to free speech, and also tells us how to rank that
justification against the interest in privacy: the more substantial the privacy
interest and the more intolerable the invasion, the less the invasion
is justified.
Intellectual and cultural history is, in part, the history of the rejection
of old norms for new ones, so the question inevitably arises, "What
makes the prevailing norms the right ones?" Put another way, how do
we know that the assertions and actions justified by prevailing societal
norms are reallyjustified? Pragmatism does, in a sense, provide a means
to answer this question: we can turn our norms ofjustification on themselves.28
Of course, we cannot evaluate all our norms at once. At least
some norms must remain unchallenged: some have to serve as the standard
against which to assess the others. The important point is that such
assessment is always internal to the norms in question. We assess how
But Rorty reaches beyond American pragmatism for the roots of his views. He notes that Hegel's
historicization of rationality paved the way for pragmatism. RICHARD RORTY, CONSEQUENCES OF
PRAGMATISM, supra, at xiii, xv-xvi. The "historicization of rationality" involves both a rejection of
the a priori (the "wholesale constraint" derived from language or the mind) and a rejection of any
special epistemic status for observation (the wholesale constraint derived from the nature ofobjects).
24. See, e.g., Cornel West, The Limits ofNeopragmatism, in PRAGMATISM IN LAW, supra note
1,at 121, 121 ("[A]ll neopragmatists are antifoundationalists .... ); Joan Williams, Rorty,Radicalism,
Romanticism: The Politicsof the Gaze, in PRAGMATISM IN LAW, supra note 1,at 155 (arguing
that anti-foundationalism is the central core of pragmatism); Singer, supra note 19, at 1757 (pragmatism
means that "there can be no neutral, non-contingent bases for our most fundamental facts or
values.").
25. 403 U.S. 15 (1971).
26. Id. at 16.
27. Id. at 21.
28. Robert Lipkin overlooks this point when he remarks that "[w]hat normal conversation will
not countenance is an attempt to justify itself." Lipkin, supra note 5, at 90.
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UNIVERSITY OF ILLINOIS LAW REVIEW
well our norms work by using those very norms. The distinctively pragmatic
claim about justification is that there can be no external standard
of evaluation: our norms ofjustification neither have nor need a ground
outside themselves.2 9 An essential point: The norms I mean are the
norms we actually use day in and day out. Only these norms neither
have nor need a ground outside themselves. The focus on norms actually
used in the day-to-day functioning of society is characteristic of a
Deweyan/Rortyan version of pragmatism. Not all pragmatists agree.
Some, most notably C.S. Peirce, permit evaluation of everyday norms in
light of a standard that we do not use, an ideal norm that society does
not have but could in principle construct."a
Which pragmatism is the one legal pragmatists endorse? Some
favor---or at least refrain from rejecting-Peircean pragmatism.3" This is
a mistake-as is clear as soon as we realize what Peircean pragmatism
involves. Peircean pragmatism makes sense against the background of
Peirce's views about rational inquiry. 2 Peirce envisions a multitude of
different inquirers beginning their respective investigations with different
and conflicting views. He contends that if all inquirers follow correct
methods of rational inquiry, their views will-in the infinite long runconverge
on a single theory. According to Peirce, this theory will completely
express all that we are ideally justified in believing. After all, how
could it not? It is the unique result of the correct application of rational
methods of inquiry over the infinite long run; everything reason ulti-
29. Rorty regards as "dubious and self-deceptive" the notion that we have "access to something
which 'grounds' current practices ofjustification in something else." RICHARD RORTY, PHILOSOPHY
AND THE MIRROR OF NATURE 361 (1979). The lack of any ground for current
justificatory practices is part of Rorty's point when he denies the existence of constraints stemming
from an innate nature or ideal form or object, mind, or language.
30. Peirce argues:
[H]uman opinion universally tends in the long run to a definite form, which is the truth. Let
any human being have enough information and exert enough thought upon any question, and
the result will be that he will arrive at a certain definite conclusion, which is the same that any
other mind will reach under sufficiently favorable circumstances .... There is, then, to every
question a true answer, a final conclusion, to which the opinion of every man is constantly
gravitating.... This final opinion, then, is independent, not indeed of thought in general, but of
all that is arbitrary and individual in thought; [it] is quite independent of how you, or I, or any
number of men think. Everything, therefore, which will be thought to exist in the final opinion
is real, and nothing else.
8 CHARLES PEIRCE, COLLECTED PAPERS OF CHARLES SANDERS PEIRCE § 8.12, at 16-17 (Arthur
W. Burks ed., 1958). The "final opinion" to which Peirce refers is the ideal norm, which exists
independent of how an individual or any number of people think. Rorty, initially attracted to
Peircean pragmatism, now rejects it. RORTY, CONSEQUENCES OF PRAGMATISM, supra note 23, at
xxv.
31. See Margaret J. Radin, Market-Inalienability,100 HARV. L. REV. 1849, 1904 n.207 (1987)
(distinguishing Deweyan from Peircean pragmatism and saying that she "remains uncommitted between
the two"); Stick, supra note 1, at 341 n.27 (distinguishing the two kinds of pragmatism and
endorsing Peircean pragmatism); West, supra note 24, at 122 (distinguishing Deweyan and Peircean
pragmatism and suggesting that to forsake Peircean pragmatism is to "slide down the slippery slope
of sophomoric relativism"). But cf Singer, supra note 19, at 1754 (endorsing a specifically Rortyan
conception of pragmatism). Puzzlingly, Singer also subsequently endorses a more Peircean conception.
Id. at 1757. For a more in-depth look at Singer's views, see infra part IV.
32. See supra note 30 and accompanying text.
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PRAGMATISM IN CRITICAL THEORY
mately validates is in the theory, and everything reason ultimately rejects
is not. Peirce holds that what is ultimately justified in this way is true;
this is how Peirce defines truth. To be true just is to be included in the
ultimate theory.33
The views of legal pragmatists are generally inconsistent with
Peircean pragmatism. Most legal pragmatists would deny the existence
of methods of rational inquiry which, if consistently applied, would ensure
that initially disagreeing inquirers ultimately concur on a single theory.
Divergence, not convergence, is the theme. Legal pragmatists
emphasize diversity; they appreciate the divergent viewpoints and methods
of different cultures, social classes, races, and genders. Martha Minow
and Elizabeth Spelman, for example, state that pragmatists "assault
each of [the following] conceptions[:] ' 34
particular conceptions of the sovereign rational subject, the distinction
between objectivity and subjectivity, the source of knowledge
and morality in either natural order or natural languages and cultural
development, and the possibility and verifiability of human
progress .... A [pragmatist] casts doubts on the possibility of sovereign
reason, removed from historical situations .... 35
But if we deny that rational inquiry converges on a single theory, we tear
the heart out of Peircean pragmatism, for such convergence is what defines
the ultimately justified theory.36 Thus, most legal pragmatists cannot
consistently be Peircean pragmatists.
33. One would have thought that Quine disposed of Peircean pragmatism over 30 years ago:
Peirce was tempted to define truth outright in terms of scientific method, as the ideal theory
which is approached as a limit when the (supposed) canons of scientific method are used unceasingly
on continuing experience. But there is a lot wrong with Peirce's notion, besides its
assumption of a final organon of scientific method and its appeal to an infinite process. There is
a faulty use of numerical analogy in speaking of a limit of theories, since the notion of limit
depends on that of "nearer than," which is defined for numbers and not for theories. And even
if we by-pass such troubles by identifying truth somewhat fancifully with the ideal result of
applying scientific method outright to the whole future totality of [experience], still there is the
trouble in the imputation of uniqueness ("the ideal result"). For ... we have no reason to
suppose that [experiences] even unto eternity admit of any one systematization that is scientifically
better or simpler than all [the rest]. It seems likelier.., that countless alternative theories
would be tied for first place. Scientific method ... affords ... no unique definition of truth.
Any so-called pragmatic definition of truth is doomed to failure ....
WILLARD VAN ORMAN QUINE, WORD AND OBJEcT 23 (1960) (footnotes omitted).
34. Minow & Spelman, supra note 18, at 251.
35. Id.
36. A comparison with Habermas is instructive. For Habermas, to say that a statement is true
is to say that a "consensus on the validity [truth] of the statement... is to be reached everywhere
and always, whenever we enter into discourse." JORGEN HABERMAS, VORSTUDIEN UND ERGANZUGEN
ZUR THEORIE DES KOMMUNIKATIVEN HANDELNS 60 (1984) (translated by author).
Essentially, his idea is that truth is a matter of intersubjective consensus. Of course, not just any
consensus will do. Truth requires a consensus offully informed communicators freely communicating
in an ideal speech situation, one in which communication occurs without distorting influences.
This is the sort of consensus that under the right conditions would ultimately be "reached everywhere
and always." But how can we tell when a living, breathing consensus is one that would be
reached "everywhere and always"? Habermas has no answer to this question. See JANE BRAATEN,
HABERMAS'S CRITICAL THEORY OF SoCIETY 24-27 (1991) (arguing that Habermas makes truth an
unspecifiable ideal). Habermas responds by conceding that the ideal is not fully specifiable, but he
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UNIVERSITY OF ILLINOIS LAW REVIEW
From this point on, I mean by pragmatism the Dewey/Rorty variety;
a version that is, at least for our purposes here, characterized by the assertion
that the norms of justification actually used in society neither
have nor need a ground outside themselves. I will-despite some indications
to the contrary-assume that legal pragmatists espouse this form of
pragmatism.
B. Is PragmatismPlausible?
Any exposition of pragmatism would be incomplete without giving
at least some attention to pragmatism's plausibility. Pragmatism is, after
all, controversial. I quote Ronald Dworkin quoting Bernard Williams's
summary of Hilary Putnam's critique of Rorty:
[Rorty's views] simply tear themselves apart. If, as Rorty is fond of
putting it, the correct description of the world (for us) is a matter of
what we find it convenient to say, and if, as Rorty admits, we find it
convenient to say that science discovers a world that is already
there, there is simply no perspective from which Rorty can say, as
he also does, that science does not really discover a world that is
already there, but (more or less) invents it."
Our formulation of pragmatism simply sidesteps this particular criticism.
We have taken no position about what counts as a "correct description of
the world" except to assert that justification is anti-foundational; moreover,
we can acknowledge that the pragmatist cannot assert anti-foundationalism
in an absolute, non-relative Way. It is only relative to the
pragmatist's norms of justification that all justification is relative.
But there are other problems. Some, and I am among them, reject
pragmatism for other reasons. Some reject pragmatism because they
think that there are some truths that any person must accept if that person
is to qualify as rational.38 These truths provide an external standard
argues that we should adopt the ideal nonetheless. Id. at 26; see also Jirgen Habermas, A Reply to
My Critics,in HABERMAS: CRITICAL DEBATES 219 (John B. Thompson & David Held eds., 1982).
Peirce does not face such difficulties, for he assumes that actual communication Among rational
inquirers in fact converges on the final consensus. We identify that consensus as the end result of
inquiry. Habermas shows what happens when we eliminate this Peircean assumption. It is worth
remarking that Habermasian-like themes have surfaced in Rorty's work. Rorty remarks that "[a]
liberal society is one which is content to call 'true' whatever the upshot of [free and open] encounters
turns out to be." RICHARD RORTY, CONTINGENCY, IRONY, AND SOLIDARITY 52 (1989) (emphasis
omitted). I call Rorty's position Habermasian-like because Rorty counts the upshot of an actual
consensus as true; for Habermas, in contrast, truth requires an ideal consensus. For Rorty's views
on Habermas, see RICHARD RORTY, Habermas and Lyotard on Postmodernity, in ESSAYS ON
HEIDEGGER AND OTHERS 164 (1991).
37. Dworkin, supranote 6, at 360-61 (quoting Bernard Williams, TerrestrialThoughts, ExtraterrestrialScience,
LONDON REV. BOOKS, Feb. 7, 1991, at 12, 12 (book review)).
38. I do not want to overemphasize my disagreement with Rorty on this point. My conception
of the "rationally unrevisable" is much like Stuart Hampshire's. See STUART HAMPSHIRE,
THOUGHT AND ACTION 11-25 (1959). Hampshire's views are far removed from traditional views of
the a priori. Another reason I have for rejecting an unqualified pragmatism is that I have reservations
about denying a special epistemic status to observation. See supra note 23.
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PRAGMATISM IN CRITICAL THEORY
of evaluation for norms of justification.39 But this controversy does not
really matter for our purposes, because even those who argue for a rationally
unrejectable framework of truths must still admit that the framework
leaves a vast array of questions unanswered. Consider again, for
example, the norm from Cohen v. California: "The ability of government,
consonant with the Constitution, to shut off discourse solely to
protect others from hearing it is . . dependent upon a showing that
substantial privacy interests are being invaded in an essentially intolerable
manner."' Reasonable minds can differ here. One can easily imagine
a society less tolerant of offensive speech, but such a society would
not thereby convict itself of irrationality. Mari Matsuda, for example,
argues that our society should be less tolerant than it is of at least some
forms of offensive speech.4" While I disagree, I certainly' do not think
that Matsuda's position shows her to be irrational. Any framework of
rationally unrejectable truths leaves open the question raised by Cohen as
well as innumerable other situations.42
The vast majority of legal decisions involve these questions about
which reasonable minds may differ. In answering such questions we (at
least try to) conform to norms of justification we have previously accepted.
Typically, as in Cohen, reasonable minds may differ as to the
acceptability and applicability of those norms. Pragmatism is very plausible
as a view of the status of such norms: they neither have nor need a
ground outside themselves. This is one good reason pragmatism should
appeal to lawyers, and I think it is also one reason it does appealalthough
one rarely finds any philosophical argument for pragmatism in
the writings of the legal pragmatists. They seem to take it for granted
that pragmatism is capable of withstanding vigorous objections. For
present purposes, I will too, or at least I Will assume that the limited
form of pragmatism just sketched is both plausible and widely held. Not
that I think it is unimportant to present arguments for or against pragmatism.
Quite the contrary; we should not embrace philosophical fashions
without considering the actual arguments. The arguments reveal
whether the fashions will last, or quickly turn threadbare. The task of
arguing for pragmatism, however, is beyond the scope of this essay. Our
focus instead is on the role of pragmatism in critical theory.
39. Ironically, Steven Smith accepts the idea of rationally unrejectable truths, and then proceeds
to use certain purported truths of this sort as a foundation to argue for pragmatism. Smith,
supra note 1, at 420. Smith argues for "pragmatism ...understood as asserting that we-or
judges--should do what will produce the most good in the future, using the past but not counting it
as valuable for its own sake ...." Id. As Smith rightly points out, it is very hard to disagree with
this. Then again, this conception is not pragmatism, at least not understood as the distinctive philosophical
position of the Peirce, James, Dewey, and Rorty tradition.
40. Cohen v. California, 403 U.S. 15, 21 (1971).
41. Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87
MICH. L. REV. 2320, 2380 (1989).
42. See generally STUART HAMPSHIRE, MORALITY AND CONFLICT (1983).
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UNIVERSITY OF ILLINOIS LAW REVIEW
II. THE PLACE OF PRAGMATISM IN THE CRITIQUE OF LIBERAL
LEGITIMACY
The critical theorists' positive conception of legitimacy has its roots
in their negative critique of liberalism's conception of legitimacy, so we
should begin by analyzing their attack on the liberal conception. Pragmatism
figures prominently in this attack. I will first sketch the general
outlines of the attack and next explain the pre-eminent place of pragmatism
in the critical theorist's arsenal.
A. Two Concepts ofLegitimacy
Two distinct (but related) concepts go by the name legitimacy. One
concept figures prominently in classical liberalism; the other, in the writings
of the critical theorists. I will explain the classical liberal notion
first; doing so provides background essential to understanding the critical
theorists' discussion of legitimacy. In classical liberal political philosophy,
a government is legitimate when (and only when) citizens, or at
least most of them,43 have a general primafacie obligation to obey the
government's commands." Judicial legitimacy-the legitimacy of the
adjudicative process-is a special case of overall governmental legitimacy:
judicial decisions are legitimate when (and only when) most citizens
have a general primafacie obligation to obey those decisions.45
The critical theorists' conception of legitimacy differs from that of
classical liberal theory. The notion that figures most prominently in critical
theory has its roots in Weberian sociology.46 Legitimacy for Weber
is a matter of having a particular type of reason to conform: a social
order is legitimate if most citizens believe that conforming to that order
is obligatory, where this belief is a reason for their so conforming.4
43. The qualification is necessary; otherwise, legitimacy becomes an ideal with little practical
application. See WILLIAM GALSTON, LIBERAL PURPOSES: GOODS, VIRTUES, AND DIVERSITY IN
THE LIBERAL STATE 298 (1991) ("Legitimate authority does not entail an obligation to obey on the
part of all individuals .... A society can be legitimate if the preponderance of its members conscientiously
subscribe to it .... ").
44. See, e.g., JOSEPH RAz, THE MORALITY OF FREEDOM 23-25, 100-01 (1986); A. JOHN SIMMONS,
MORAL PRINCIPLES AND POLITICAL OBLIGATIONS 6-7, 12, 195-96 (1979); RONALD DWORKIN,
LAW'S EMPIRE 191 (1986); Ken Kress, LegalIndeterminacy, 77 CAL. L. REV. 283, 285 (1989);
cf Rolf Sartorius, PoliticalAuthorityand PoliticalObligation,67 VA. L. REV. 3 (1981) (arguing that
a government's moral authority to rule does not obligate citizens to obey the government's commands).
Raz decisively criticizes Sartorius in RAz, supra, at 23-24.
45. See Steven J. Burton, Judgingin Good Faith (1992) (specifically discussing the legitimacy
of adjudication); Kress, supra note 45, at 285 (same).
46. See generally Alan Hyde, The Concept ofLegitimacy in the Sociology of Law, 1983 WIS. L.
REV. 379, 380-86 (discussing the use of Weberian notions of legitimacy by critical theorists).
47. See MAX WEBER, THE THEORY OF SOCIAL AND ECONOMIC ORGANIZATION (A.M. Henderson
& Talcott Parsons trans., 1947). According to Weber, an order's validity "means more than
the mere existence of a uniformity of social action determined by custom or self-interest .... [An
order will only be called 'valid' if [conformity to it is] binding on the actor or the corresponding
action constitutes a desirable model for him to imitate." Id. at 124. This Weberian notion may at
first seem a less-than-perfect fit with what critical theorists say about legitimacy. Mark Kelman, for
example, says that legitimacy means "at a minimum that members of the population almost invariably
acquiesce in the existing distribution of perquisites and power, even when the distribution doesn't
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PRAGMATISM IN CRITICAL THEORY
When critical theorists speak of legitimacy, they generally have some version
of the Weberian notion in mind.48
In order to maintain consistent terminology, and avoid undue confusion,
let us stipulate that by legitimacy we shall mean the classical liberal
notion: legitimacy is a matter of most citizens having a general
obligation to obey judicial decisions. This is not to brush aside the critical
theorists' concerns about legitimacy; it is simply to rename them.
Renaming is easy, for, in fact, the conceptual framework of the critical
theorists and that of classical liberalism are not all that different. From
the point of view of classical liberalism, the critical theorists use legitimacy
for what it would be natural to call perceived (classicalliberal)legitimacy.49
Liberals can and do recognize that citizens may perceive that
decisions are legitimate and conform for that reason. 0 This empirical
claim about perceived legitimacy is typically combined with a moral
claim about legitimacy proper. The moral claim is that judicial decisions
are not just perceived to be legitimate but really are legitimate-that citizens
really are obligated to obey judicial decisions.5" The empirical claim
is controversial,52 but it is a controversy we can put to one side. Our
focus is the moral claim.
Critical theorists attack the moral claim.53 Their attack construes
seem inevitably to redound to each obedient person's benefit." KELMAN, supra note I1, at 263.
There is no mention of an obligation to conform, and Weber's concept is built around the notion of
obligation. But as Kelman notes, "[aicquiesenceis contrasted sharply with obedience, which could
presumably be grounded in a purely self-interested fear of the force of those who both control and
get the benefits of the state's exercise of power." Id. What then is acquiescence? Kelman does not
say, but the natural implication is that to acquiesce is to comply because one believes that one has a
reason, other than fear of force, to do so. Of course, this is only to characterize the reason negatively
as "other than the fear of force." What is the positive characterization? Here the obvious and
natural answer is that citizens believe they have a reason because they believe they are obligated.
And this brings us back to Weber.
48. See Hyde, supra note 46, at 380-86 (interpreting critical theorists as endorsing the Weberian
notion).
49. It is so natural to talk this way that it is easy to slip from the Weberian concept to the
classical one without noticing it. David Kairys, for example, writes:
[IThe legitimation function [in the sense of Weberian legitimacy] is crucial to an understanding
of its doctrines, rationalizations, results, and social role .... The law is a major vehicle for the
maintenance of existing social and power relations by the consent or acquiescence of the lower
and middle classes. The law's perceived [classicalliberal]legitimacy confers a broader legitimacy
[i.e., perceived legitimacy] on a social system and ideology ... most fairly characterized
by domination by a very small, mainly corportized elite.
Introduction to THE POLITICS Of LAW 7 (David Kairys ed., 1990) (emphasis added).
50. Hyde makes this point. Hyde, supra note 46, at 383.
51. Id.
52. Alan Hyde sharply criticizes the empirical claim. See Hyde, supra note 46. However,
empirical studies suggest Hyde may be wrong. See TOM R. TYLER, WHY PEOPLE OBEY THE LAW
64 (1990), where Tyler argues that the results of his study strongly support what we have called the
"empirical claim." See also KELMAN, supra note 11, at 263-68 (criticizing Hyde).
53. Andrew Altman interprets the critical legal studies movement as attacking the liberal
claims that courts impose a rule of law. See generallyALTMAN, supra note 11. While it is certainly
true that the Critical Legal Studies (CLS) literature attacks liberal claims about the rule of law, for
reasons that will emerge shortly (see infra note 57), I prefer my interpretation which sees the attack
as on legitimacy generally. This is not to ignore the attack on the rule of law, for that attack is
essential to critical theorists' attack on judicial legitimacy, a point Altman makes clear. Id. at 9-13,
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UNIVERSITY OF ILLINOIS LAW REVIEW
liberalism broadly, not just as a political philosophy, but also as a related
practical political orientation which actually guides legal reasoning.54
They point out that liberalism defines its own standards for legitimacy,
and argue that the judicial system systematically violates and undermines
the very standards liberalism has established. The point is to show that,
even on liberalism's own terms, the system lacks legitimacy. " For example,
Joseph Singer holds that liberals "claim that law is, or should be
neutral[,] . . . [that] the legal system should be based on independent
principles of justice that do not themselves presuppose any particular
conception of the good."5' 6 Singer next argues that liberalism undermines
neutrality by continually appealing to particular conceptions of the good.
He also contends that liberalism not only systematically conceals this
fact, but also that such concealment is one, albeit perhaps not fully conscious,
goal of the theory.57 As Mark Kelman remarks in the same vein,
98-101. Altman's narrow focus on the rule of law forces him to relegate the critical theorists' concern
with legitimacy to the back burner; legitimacy does not even make it into the index. John Stick
shares my view of the importance of legitimacy in critical theory; he remarks that Weberian legitimation
theory "is central to the dominant tradition in CLS," and he notes that "Kelman, in discussing
legitimation [in KELMAN, supra note 11], properly brings together a group of seemingly
unrelated topics in CLS writing." Stick, Development, supra note 11, at 417.
54. Altman interprets the critical legal studies movement as attacking "[I]iberal law-and not
merely liberal theorizing about law .... " ALTMAN, supra note 11, at 104.
55. See, e.g., KELMAN, supra note 11, at 242-68; Singer, supra note 12, at 6 ("By its own
criteria, legal reasoning cannot resolve legal questions in an 'objective' manner .... ") (emphasis
added); see also Robert W. Gordon, Unfreezing Legal Reality: Critical Approaches to Law, 15 FLA.
ST. U. L. REv. 195, 214-17 (1987); Duncan Kennedy, The Political Significance of the Structure of
the Law School Curriculum, 14 SETON HALL L. REV. 1, 14 (1983); Joseph W. Singer, The Reliance
Interest in Property, 40 STAN. L. REV. 611, 711-32 (1988).
56. Singer, supra note 12, at 40; but cf Steven Shiffrin, Liberal Theory and the Needfor Politics,
89 MICH. L. REV. 1281 (1991) (arguing that liberals generally do not insist on neutrality). The
accuracy of Singer's characterization of liberalism is not at issue. Mark Tushnet has recently noted
the liberalism that critical theorists focus on is really "amateur political theory." MARK TUSHNET,
RED, WHITE, AND BLUE: A CRITICAL ANALYSIS OF CONSTITUTIONAL LAW 4 n.9 (1988). He
remarks that "[m]ost systematic political thinkers have had a more subtle understanding of the
problems than those [problems] I will describe as inherent in the tradition." Id. This seems odd.
Why bludgeon the amateurs? Why not play with the pros?
57. See Singer, supra note 12, at 6 (critical theorists propose that "legal reasoning is a way of
simultaneously articulating and masking political and moral commitment."). Such analysis has, at
least since Marx, been directed toward society as a whole. Marx's labor theory ofvalue is supposed
to reveal that capital is reified labor, a fact that, according to Marx, capitalist ideology conceals.
Stuart Hampshire sees such criticism as inherent in practical reason itself. He argues:
The function of social myth has always been to restrict the area in which practical reasoning can
operate for human improvement, by representing the particular social arrangements of particular
societies as unalterable parts of the natural or divine order of things. Practical reason becomes
innovative in human affairs when it demands reasons for practices which have been so
represented, such as poverty or the subordination of women. In previous ages of which we have
record the fallacy of false fixity, as it may be called, is almost always at work, disguising the
injustices attached to particular ways of life. It should now be possible to assess the particular
costs in injustice of present ways of life . . . without self-protecting blinkers.
STUART HAMPSHIRE, INNOCENCE AND EXPERIENCE 57 (1989). I think Hampshire is clearly right
about the role of practical reason. This is why I think Altman's focus on the critical theorists' attack
on the rule of law is too narrow. See ALTMAN, Supra note 11. That attack is instead part of a
broader attempt, to use Hampshire's language, to make "practical reason ... innovative in human
affairs" so that we can see injustice "without self-protecting blinkers." The critical theorists attack
the rule of law as one of many instances of the "fallacy of false fixity."
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PRAGMATISM IN CRITICAL THEORY
liberalism "creates and reinforces ideology that makes it difficult, in a
cognitive sense, to perceive both [law's] injustices and its mutability.""8
In brief, the ideology of liberalism creates the illusion of justice.
B. Pragmatismas Illusion-Dispelling
Many critical theorists tout pragmatism as the antidote to illusion;59
pragmatism is supposed to help us see how the law conceals the way in
which it undermines its own legitimacy. Rorty has aptly characterized
the attitude of many critical theorists/pragmatists:
[they] think that there is a basic mistake being made, a mistake deep
down at the roots. They think that deep thinking is required to get
down to this deep level, and that only there, when all the superstructural
appearances have been undercut, can things be seen as they
really are.60
Many critical theorists believe that pragmatism will help cut through the
appearances and reveal reality. This is precisely how Minow and Spelman
wish to use pragmatism. 61
They emphasize that pragmatism requires
careful attention to the details of the particular contexts in which
we find ourselves, and they argue:
[T]he emphasis on context often means identifying structures that
extend far beyond the particular circumstance. But perhaps it is not
so surprising that this should be named a contextual move against
the backdrop-the context by default-created by Western liberal
legal and political traditions that emphasize as ideals individual free-
58. See KELMAN, supra note 11, at 263. Kelman makes this remark about "law," but in the
context the "law" he has in mind is law influenced by liberal politics.
59. Critical theorists have long sought ways of breaking through the illusions they think are
created or supported by standard legal reasoning. Pragmatism is merely the currently fashionable
tool. Among those who think pragmatism offers a way to break through the illusion are Mari J.
Matsuda, PragmatismModified and the False Consciousness Problem, 63 S. CAL. L. REV. 1763,
1763-64 (1990); Minow & Spelman, supra note 18, at 256-58; Radin, Feminist,supra note 3, at 140-
44; Joseph W. Singer, Propertyand Coercionin FederalIndian Law: The Conflict Between Critical
and Complacent Pragmatism, 63 S. CAL. L. REV. 1821, 1821-22; West, supra note 24, at 123-25;
Allan C. Hutchinson, The Three 'Rs" Reading/Rorty/Radically, 103 HARV. L. REV. 555, 563-66
(1989) (book review); Singer, supra note 19, at 1765-66. For a more balanced view of pragmatism's
significance to law, see Williams, supra note 24. See also Lynn A. Baker, "JustDo It": Pragmatism
andProgressiveSocial Change, 78 VA. L. REV. 697 (1992). Rorty replies to Baker in Richard Rorty,
What Can You Expectfrom Anti-FoundationalistPhilosophers?:A Reply to Lynn Baker, 78 VA. L.
REV. 719 (1992).
60. Richard Rorty, Feminism and Pragmatism, 30 MIcH. Q. REV. 231, 239-40 (1991). Smith
makes a similar point.
Perhaps pragmatism [is attractive] because it is one version of the old dream that the questions
which plague and divide us might somehow be banished if we could just get answers directlywithout
distorting conceptual mediation-from nature itself.... [Llegal pragmatists... act as
if through the incantatory repetition of sacred words-'experience,' 'context,' 'perspective,' 'dialogue'-self-validating
answers would finally, somehow, just spring forth.
Smith, supra note I, at 440.
61. Minow & Spelman, supra note 18, at 250-51. Although they call their view "contextualism,"
Minow and Spelman are better characterized as pragmatists. See Michael Brint & William
Weaver, Introduction to PRAGMATISM IN LAW, supra note 1, at 5. Singer also takes "contextualism"
to be a version of pragmatism. Singer, supra note 19, at 1770.
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UNIVERSITY OF ILLINOIS LAW REVIEW
dom, equality, universal reason, and abstract principles. Because
persistent patterns of power, based on lines of gender, racial, class,
and age differences, have remained resilient and at the same time
elusive under traditional political and legal ideas, arguments for
looking to context carry critical power.62
Pragmatism is supposed to break down the resilience and trap the elusive
reality masking the abuse of power.
Cornel West expresses similar ambitions for pragmatism. To West,
pragmatism "consists of an emancipatory experimentalism that promotes
permanent social transformation and perennial self-development for the
purposes of ever-increasing democracy and individual freedom."63 Pragmatism
"analyzes the social causes of unnecessary forms of social misery,
promotes moral outrage against them, organizes different constituencies
to alleviate them . . . ." As Minow and Spelman remark approvingly,
Cornel West "is interested in pragmatism as a philosophic method that
... will enable forms of cultural criticism that can challenge hierarchical
political arrangements that have harmed people of color, women of all
races, and poor and working class peoples."65
This attempt to use pragmatism as a "philosophic method" revealing
the hidden truth about injustice shows that critical theorists/pragmatists
still have at least one foot lingering near the camp of
classical liberal political philosophy. The liberal ideal of legitimacy represents
the state as speaking (when legitimate) with a special authority to
its citizens: they are under a special political obligation to obey its commands.
The critical theorists wish to speak, and, more importantly, wish
the state to speak, with a special authority, the authority of the True
Moral Vision. Mari Matsuda entertains such hopes for pragmatism as a
"philosophic method"; she writes that "[a]ll is not well; there is pain at
so many levels of our lives-personal and political, individual and collective.
We can save ourselves and each other by listening to the pain and
to the dream of human dignity we have sustained alongside it."6 6
Pragmatism
is supposed to help us listen "to the pain and to the dream."
When we listen, the truth is revealed. We learn, for example, that "[w]e
can attack racist speech-not because it isn't really speech, not because it
falls within some hoped-for neutral exception [to the First Amendment],
but because it is wrong."67 Matsuda would even consider restricting
school curriculums to eliminate Mark Twain on the ground that the
"[t]here is a danger of some students missing.., the ironic message and
simply enjoying a racist dialogue on its face."68
We should, however,
62. Minow & Spelman, supra note 18, at 269-70.
63. WEsT, supra note 5, at 214.
64. West, supra note 24, at 124.
65. Minow & Spelman, supra note 18, at 257 (emphasis added).
66. Matsuda, supra note 59, at 1782.
67. Matsuda, supra note 41, at 2380.
68. Id. at 2369.
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PRAGMATISM IN CRITICAL THEORY
allow Spike Lee to use racist epithets in his film Do The Right Thing 69
because such language is an "incisive anti-racist critique of racist
speech."7 How do we know that we should censor Twain but allow
Lee? "[T]he experience of victim-group members is a guide."'" When
we learn to listen to the stories and voices of the traditionally oppressed,
"all the superstructural appearances [are] undercut, [and] things [can] be
seen as they really are."72 Matsuda envisions the privileging of certain
types of speech based not on content, but on the identity of the speaker.
This is what she has in mind when she says she wants to "bend pragmatism
toward liberation."73
To bend pragmatism in this way is to break it. Pragmatism is not,
and cannot be, such a "philosophic method." Indeed, the moral of pragmatism
is that no such method can exist.74 Pragmatism leads to relativism
about justification. This relativism destroys any hope of finding in
pragmatism a philosophic method that reveals "The Truth."
III. PRAGMATISM'S INEVITABLE RELATIVISM
Pragmatism leads to relativism because norms of justification can,
and do, conflict. The following example illustrates the relevant sort of
conflict. In Moore v. Regents of the University of California," a UCLA
medical center doctor removed John Moore's spleen in the course of
treating Moore's leukemia. The spleen contained abnormal genetic material
of great commercial value. Without obtaining Moore's consent,
the doctor and medical center marketed the material for a considerable
profit.7 6 Moore sued, claiming (among other things) that he had a property
right in the marketed material. In dissent, Justice Mosk agreed with
Moore's position on the ground that marketing the genetic material
(without Moore's consent) was inconsistent with a basic, widely recognized
value-the dignity and sanctity of human beings.77 The majority,
however, denied Moore's claim to a property right.7" The majority acknowledged
the importance of the dignity and sanctity of human beings,
69. Do THE RIGHT THING (Universal Pictures 1989).
70. Matsuda, supra note 41, at 2369.
71. Id.
72. As Charles Collier remarks, "Matsuda speaks with the sovereign confidence and authority
of one who knows which ideas are worthy of being thought and which are unthinkable, which words
may be spoken and which are unspeakable." Charles Collier, Cultural Critique and Legal Change,
43 FLA. L. REV. 463, 468 (1991).
73. Matsuda, supra note 59, at 1764.
74. Rorty has repeatedly made the point that pragmatism provides no special insight into a
purported moral or political reality. A typical Rortyean remark: "6On my view, pragmatism bites
other philosophies, but not social problems as such-and so is as useful to fascists like Mussolini ...
as it is to liberals like Dewey." Rorty, supra note 60, at 255 n.23.
75. 793 P.2d 479 (Cal. 1990).
76. In exchange for this material, the doctor was given 75,000 shares of stock in the private
company that bought the material and became a paid consultant for the company. In addition, the
doctor and UCLA together were given more than $1,000,000 over a three-year period. Id. at 482.
77. Id. at 515-16.
78. Id. at 488-89.
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UNIVERSITY OF ILLINOIS LAW REVIEW
but did not find this to be a ground for recognizing the property right.7 9
Mosk and the majority differ on what counts as a justification-which is
just to say that they subscribe to different norms. Mosk thinks that
human dignity justifies recognizing the right; the majority does not.
Sometimes such disagreements are resolvable. If the opposing parties
agree sufficiently on norms of justification, one side may produce arguments
for its position that the other side finds compelling. But
differences in norms may not be resolvable in this way. As the philosopher
Stuart Hampshire emphasizes, conflicts cannot always be resolved
by the "judicious balancing of competing moral claims."80 As Hampshire
notes, we do not live "within morality, and within the moral conventions
of a particular society, as within a stable building with secure
foundations. In this century it is impossible to preserve this picture of
stability.'"81
79. The majority denied the claim primarily on the ground that thousands of researchers use
human cell lines stored in tissue repositories; to recognize Moore's claim as valid would expose these
researchers to similar legal claims. The resulting liability explosion would greatly hinder research.
Id. at 495-96.
80. HAMPSHIRE, supranote 42, at 168. Many take it for granted that disagreement on norms
of justification is pervasive. See, e.g., Singer, supra note 19, at 1764 (alleging that Rorty fails "to
recognize the existence of conflicts of values and perspectives within society"). We should distinguish
the empirical claim that people have unresolvable disagreements over norms of justification
from the philosophical thesis that morality presents us with conflicting and unresolvable moral
claims. The empirical claim is about a clash between two or more opposing points of view about
norms of justification. The philosophical claim isthat even within a single point of view unresolvable
conflict may be unavoidable. There is a considerable philosophical literature on both claims.
See, e.g., ALASDAIR MACINTYRE, AFTER VIRTUE (1981); RAz, supra note 44, at 357-66; Stuart
Hampshire, PublicandPrivateMorality, in PUBLIC AND PRIVATE MORALITY 55-73 (Stuart Hampshire
ed., 1978); Michael Walzer, PoliticalAction: The Problem of Dirty Hands, 2 PHIL. & PUB.
AFF. 160 (1973); Bernard Williams, Conflicts of Value, in THE IDEA OF FREEDOM 221-32 (Alan
Ryan ed., 1979).
81. HAMPSHIRE, supra note 42, at 168. Some will object that we are not deeply divided over
norms of justification. This is not to deny that we disagree, nor is it to deny that disagreement is
widespread. All the objection denies is that unresolvable disagreement iswidespread. The objection
contends that most of us agree sufficiently on norms of justification that one side can produce arguments
for its position that the other side finds compelling. In this way our disagreements would be
resolvable in light of shared norms of justification.
The problem with these reassuring reflections is that they are false. Unresolvable disagreement
is widespread. The extent of unresolvable disagreement is, of course an empirical issue. But it is an
empirical issue for which ample evidence confronts us in our daily lives and in the record of history.
In our daily lives, we disagree about the distribution of scarce resources, about the punishment of
criminals, about how to deal with environmental problems, about how to structure public education,
in short, about virtually every substantive aspect of public policy. Often, we disagree as much as we
agree on norms of justification, on what counts as a justification and what makes one justification
preferable to another. I see no reason to assume that we share a sufficient number of norms of
justification such that disagreements are always or even typically capable of resolution. Broadening
the perspective from daily life to history confirms this conclusion. The intellectual history of the last
three centuries is in part the history of the breakdown of any consensus about what justifies a moral
or political judgment. Rawls has emphasized these same points:
[Llong historical experience suggests, and many plausible reflections confirm, that ... reasoned
and uncoerced agreement is not to be expected [concerning moral and political issues.] ... Our
individual and associative points of view, intellectual affinities and affective attachments, are too
diverse, especially in a free democratic society, to allow of lasting and reasoned agreement.
Many conceptions of the world can plausibly be constructed from different standpoints. Diversity
naturally arises from our limited powers and distinct perspectives; it is unrealistic to sup[Vol.
1993
PRAGMATISM IN CRITICAL THEORY
How does pragmatism handle such conflicts? Pragmatism's antifoundationalism
towards justification denies a neutral perspective independent
of either set of norms from which both sets can be evaluated.
Confronted with conflict, all that pragmatists can say is that the assertions
and actions our norms validate are justified relative to those norms.
Those on the other side, intellectually speaking, can make the same claim
with respect to their norms. We are forced to a relativism about justification.8
2 There is no way to reject this relativistconclusion and remaina
pragmatist. Nonetheless, many-indeed, perhaps most-legal pragmatists
deny that pragmatism leads to relativism. Joan Williams is one
of the few who do not, and as she remarks, "[i]n roughly half of my
conversations about Rorty, someone ultimately dismisses his 'radical relativism.'
'Ofcourse,' I've been told innumerable times, after a long discussion
ofethics or epistemology, 'I don't go as fat as Rorty.' "83 Being a
(Dewey/Rorty) pragmatist and not going as far as Rorty is a peculiar
attitude. A decision to avoid the consequences of Rorty's thought is not
really a matter of choice, for Dewey/Rorty pragmatism entails relativism;
one cannot exist without the other.
A better reaction is to try to defuse relativism. One popular way is
to point out that a pragmatist cannot consistently assert relativism; that
is, he or she cannot assert as non -relatively justified, "All justification is
relative." 4 But pragmatism does not lead to relativism in this sense; it
does not and cannot lead to the position that all justification is relative.
The point is not that a pragmatist might carelessly slip into contradiction,
the point instead is to reject the traditional philosophical dualism of
relative versus absolute. There simply is no neutral perspective from
which we can say that one view is "really, non-relatively" justified. The
accusation, "You are a relativist" is no accusation at all because there is
no other option. It is nothing but illusion to think otherwise.
pose that all our differences are rooted solely in ignorance and perversity, or else in the rivalries
that result from scarcity. [The appropriate view of social organization] takes deep and unresolvable
differences on matters of fundamental significance as a permanent condition of
human life.
John Rawls, Kantian Constructivism in Moral Theory: Rationaland FullAutonomy, 77 J. PHIL. 515,
542 (1980); see also Lipkin, supra note 5, at 87-88 (arguing that a "consensus theory of truth" fails
for lack of sufficient consensus).
82. Some of Rorty's explicit commentary on relativism is very puzzling. He says that relativism
"is the view that every belief on a certain topic, or perhaps about any topic, is as good as every
other." RORTY, Relativism, supra note 23, at 166. Rorty rightly notes that no one will even say they
hold this position, except for the "occasional cooperative freshman." Id. Rorty then continues by
stating that the "philosophers who get called 'relativists' are those who say that the grounds for
choosing between such opinions are less algorithmic than had been thought." Id. What is so odd is
that Rorty's position in the passage quoted in the text is clearly a version of relativism about justification,
an obvious and well-known form of relativism. See, e.g., HAMPSHIRE, supra note 42, at 36.
Rorty corrects this misstep in RORTY, Solidarity,supra note 23, at 21. He notes that relativism is
often used for the thesis that "there is nothing to be said about either truth or rationality apart from
descriptions of the familiar procedures ofjustification which a given society---ours-uses in one or
another area of inquiry." Id. at 23. Rorty prefers to call this ethnocentrism, not relativism. Id.
83. Williams, supra note 24, at 155 (emphasis omitted).
84. Rorty makes this point in RORTY, Solidarity,supra note 23, at 23-24.
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UNIVERSITY OF ILLINOIS LAW REVIEW
Still, this conclusion does not do much to defuse relativism. A pragmatist
must admit that, relative to his or her norms ofjustification, there
simply is no neutral perspective from which we can say that one view is
"really, non-relatively" better justified. So how, under a pragmatist theory,
do we adjudicate between conflicting norms of justification? The
only possible response is that our assertions and actions are justified relative
to our norms. Those on the other side can say the same thing. Rorty
has acknowledged, indeed, emphasized, this point. Consider his advice
to politically active pragmatists:
[D]o not charge a current social practice or a currently spoken language
with being unfaithful to reality, with getting things wrong.
Do not criticize it as a result of ideology or prejudice, where these
are tacitly contrasted with your own employment of a truth-tracking
faculty called "reason" or a neutral method called "disinterested observation."
Do not even criticize it as "unjust" if "unjust" is supposed
to mean more than "sometimes incoherent even on its own
terms."
8 5
The consistent pragmatist cannot do more, for, to make the point again,
no neutral perspective exists from which to evaluate conflicts between
norms of justification.86 This has seemed to many to be enough of a
relativism to worry about.
It should worry critical theorists, however, for it is the death knell
for their hopes to use pragmatism as a teleological tool. Pragmatism's
relativism ensures that pragmatism cannot serve as the philosophical
method in the manner envisioned for it by most critical theorists. Pragmatism
cannot reveal the real, hidden truth about injustice, for there is
no such "truth" to reveal. There are simply differing norms of justification,
and no neutral perspective from which one can say whether conduct
that is seemingly justified by a given set of norms is "really" justified.
Nevertheless, to lose pragmatism as a philosophic method of revealing
reality is not really so much ofa loss. Why expect a philosophical theory
about justification to reveal that, or why, the world is full of suffering and
injustice? To see that suffering exists, one hardly needs philosophy; open
eyes (or an open heart) will do. As to why, surely-to take just a few
examples-lust for power and domination, cruelty, lack of imaginative
projection into the suffering of others, and sheer stupidity-contribute
far more to injustice than any philosophical conviction that one's norms
of justification are grounded outside themselves.
85. Rorty, supra note 60, at 242.
86. Some have found this lack of a neutral perspective one of the chief virtues of pragmatism.
See Lipkin, supra note 5, at 71-72 ("From diverse quarters comes a call to abandon the dogma of
legal reasoning and to replace it with . . . 'conversationalism' . . .[which] is reputed to be vastly
superior to reason because it does not rely on the quixotic attempt to formulate a neutral perspective
from which to evaluate competing legal theories.").
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PRAGMATISM IN CRITICAL THEORY
IV. NEGATIVE TO POSITIVE: THE PLACE OF PRAGMATISM IN
CRITICAL THEORY'S POSITIVE CONCEPTION OF
LEGITIMACY
It is obvious that pragmatism leads to relativism, and it is equally
clear that, given relativism, pragmatism cannot reveal any hidden truth
about injustice. Why, then, have extremely intelligent legal theorists
overlooked such an obvious point? What intellectual motive makes them
blind? A concern with legitimacy is the answer. Pragmatism--or more
accurately, pragmatism misconceived as a guiding light to The Truthplays
a crucial role in the positive conception of legitimacy critical theorists
offer. This use (although misuse may perhaps be a better term) of
pragmatism is typical of critical theory. 7 Joseph Singer's work provides
an excellent example. Singer has recently argued that critical theorists
must attempt to provide a positive conception of what counts as legitimate
political action.88 In the remainder of this part I will focus exclusively
on his views. Singer's views have the merit of being clear, well
argued, and representative.89 Moreover, his position also merits serious
consideration in its own right, and I present my discussion of Singer as a
case study of a particularly thoughtful and concise critical theorist.' °
A. Singer on Conflict and Legitimacy
Singer's positive conception of political legitimacy rests on the idea
that pragmatism is a vehicle to The Truth. To see how and why, we first
need to see how Singer's positive conception of legitimacy arises out of
87. West, for example, thinks of pragmatism as providing a method that ultimately reveals The
Truth. He contends that to think otherwise is "[to] slide down the slippery slope of sophomoric
relativism." See West, supra note 24, at 122; see also supra notes 59-65 and accompanying text.
88. Singer, supra note 2, at 539-44. Singer explicitly rejects as "contradictory" the "critique of
legal studies... as nihilistic." Id. at 539. Singer cites several authors as offering positive pictures of
legitimate political organization and action, including Mari J. Matsuda, Looking to the Bottom: CriticalLegal
Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323, 324-25 (1987); Martha Minow,
The Supreme Court, 1986 Term-Foreword: Justice Engendered, 101 HARV. L. REV. 10
(1987); Patricia J. Williams, Alchemical Notes: Reconstructed Idealsfrom DeconstructedRights, 22
HARV. C.R.-C.L. L. REV. 401, 406, 429 (1987). Singer, supra note 2, at 544 n.263. Other work
along these lines includes: Milton Fisk, Punishment and Legitimacy, in PRAGMATISM IN LAW,
supra note i, at 197 (considering the role of pragmatism in the legitimation of punishment); Hillary
Putnam, A Reconsiderationof Deweyan Democracy, in PRAGMATISM IN LAW, supra note 1, at 217
(espousing a justification of democracy that arises out of a consideration of Dewey's pragmatism);
Margaret J. Radin, The LiberalConception of Property: Cross Currentsin the Jurisprudenceof Takings,
88 COLUM. L. REV. 1667, 1680-85 (1988) (arguing that pragmatism is consistent with rule of
law values); Catherine P. Wells, ImprovingOne'sSituation: Some PragmaticReflections on the Art of
Judging, 49 WASH. & LEE L. REV. 323 (1992) (arguing that pragmatism places substantive constraints
on legitimate judicial decision making); Williams, supra note 24, at 174 ("[O]ne key attraction
[of pragmatism] is its implication that intellectual life holds the potential for inspiring political
action.").
89. Singer himself has offered a summary of the views of the critical theorists, and the views I
attribute to Singer are views he attributes to critical theorists generally. See generally Singer, supra
note 2. Since I will be rather critical of Singer's work, let me acknowledge here the considerable debt
I owe to Singer's insightful writings. I have learned a great deal from them.
90. Singer seems fated for this treatment. John Stick casts him in the same role in Stick, supra
note 1.Such is the price of clarity.
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UNIVERSITY OF ILLINOIS LAW REVIEW
his negative critique of modem liberalism's treatment of legitimacy. This
negative critique is rooted in Singer's conviction that conflict among
norms of justification is pervasive and substantial.
Singer says:
The critical theorists' goal is to understand legal reasoning as incorporating
within itself all the competing political perspectives that
find expression in the political system .... Judges, therefore, act
unjustly if they decide cases without coming to terms with the fact
that they have to exercise judgment with the contours of a given
legal tradition and that such judgment requires hard choices in the
face of contradictory moral impulses.9"
Singer talks about "contradictory moral impulses," not about conflict of
justificatory norms, but the point is the same: Our views about justification
inevitably conflict. Indeed, Singer emphasizes that modem political
culture is a battleground of conflicting ideologies; he argues that these
same controversies figure centrally, if often in a disguised form, in legal
decision making.92 His conviction that ideological conflict pervades society
leads Singer to deny that it is even "theoretically possible to achieve a
rational consensus among interlocutors that will tell us, once and for all,
how we should go about deciding moral and legal questions."93
This critique of "rational consensus" lies at the heart of Singer's
critical approach to liberal views about legitimacy. Singer labels these
views "traditional sources and methods of legal reasoning,"94 and claims
that assuming the theoretical possibility of a rational consensus is the
fundamental premise underlying these traditional sources of legal doctrine.
Singer further argues that this premise "must be taken apart because
it is at once the heart of traditional legal theory and its Achilles'
heel."9 The dart Singer aims at liberalism's Achilles' heel is the observation
that
[there is] substantial political and moral controversy about what we
should allow people to do with themselves and each other. Since
legal reasoning includes and systematizes all of the conflicting arguments
that people find plausible, there is no reason to expect it to
provide a basis for decisionmaking that transcends these ordinary
value conflicts.96
He insists that "it is not possible to identify a 'common point of view' to
answer normative questions that can be based on shared values and also
be sufficiently definite to generate answers in particular cases.""
91. Singer, supra note 2, at 536-37.
92. See supra notes 57-58 and accompanying text.
93. Singer, supra note 12, at 28. Singer regards the rejection of the possibility of a rational
consensus as characteristic of critical theorists. Singer, supra note 2, at 536.
94. Singer, supra note 12, at 28.
95. Id.
96. Id. at 39.
97. Singer, supra note 2, at 536. John Stick does not sufficiently emphasize this point in his
otherwise excellent discussion of Critical Legal Studies in Stick, supra note 1. He accuses Singer of
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PRAGMATISM IN CRITICAL THEORY
My aim is to expound, not defend, Singer, but it aids exposition to
defend Singer against the following objection. One criticism of Singer's
denial of rational consensus is that the relevant "common point of view"
is in fact easy to identify. It is the point of view of lawyersandjudges.98
The bench and bar often agree on what a statute or precedent dictates in
the case at hand, and such an agreement surely shows that lawyers and
judges do not disagree to any great extent about the norms ofjustification
relevant to deciding any legal case. This objection, however, misses
Singer's point. Singer can grant the point about shared norms because it
still does not follow that those norms are widely endorsed in society as a
whole. The norms used in the discourse of lawyers and judges are a
product of law school and professional legal culture. There is no reason
to think these norms are widely shared by a general public whose
"knowledge" of law and legal culture is largely the product of dubiously
accurate television portrayals. There is no reason to single out the norms
possessed by lawyers and judges as having a privileged status unless those
norms have some special claim to be the right norms. And that, under a
pragmatic position, is precisely what they cannot have.99
To return to the exposition of Singer's views, he acknowledges that
thinking that traditional liberal approaches to legal reasoning presuppose a deductive model ofjustification.
Stick says, "Singer appears to believe that legal reasoning, to be rational, must operate by
means ofdeductive proof and agreed-upon first principles, which function like the axioms of Euclidean
geometry." Stick, supra note 1,at 346. The passages Stick points to in support of this claim are
better explained, however, by Singer's concern with, and rejection of, rational consensui.
Stick points to Singer's assumption that "any contradiction in the premises infects and invalidates
the entire argument flowing from those premises." Id. at 347. Stick argues that this is characteristic
only of deductive systems, so Singer must therefore be advocating a deductive model of legal
reasoning. An initial difficulty with Stick's criticism is that the feature he singles out is not a characteristic
unique to deductive logic; rather, it is a feature inherent in any model of reasoning. If one's
"justification" for a conclusion relies on the truth or acceptability of two contradictory claims, one
has provided no justification at all. Stick's main point, however, is more subtle. Suppose one's
justification relies on only one of two contradictory legal precedents. Then-under a coherence
theory, for example-the existence of the other contradictory precedent does not necessarily invalidate
the conclusion. Stick argues that because Singer thinks invalidation necessarily arises from the
presence of contradictory norms, Singer must therefore be thinking of legal justification as deduction
from a consistent set of axioms. But this is a non sequitur. There is another plausible explanation.
Suppose our aim is to achieve "rational consensus among interlocutors that will tell us, once and for
all, how we should go about deciding moral and legal questions." Singer, supra note 12, at 28. To
achieve this goal, we will want to resolve any contradiction, not because we are addicted to deductive
reasoning, but because our aim is a rational consensus.
Stick's other reason for believing that Singer assumes a deductive model is Singer's assumption
that "complete rules ... can easily be picked out from among legal arguments. A complete rule...
has two pans: the first describes the factual situations in which it applies; the second describes the
legal consequences to be drawn from such a situation." Stick, supra note 1, at 347 (footnotes omitted).
Stick notes that while the idea of complete rules is "consistent with" (but certainly not required
by) a deductive system, many models of legal rules are inconsistent with the idea that rules are
complete rules. But again, suppose our aim is to achieve rational consensus. If so, we will need to
have complete rules. Singer rejects the possibility of complete rules as part of his critique of the idea
that rational consensus is possible. Singer, supra note 12, at 59.
Despite my criticisms, I owe a great debt to John Stick's very fine work.
98. See Stick, supra note 1, at 371.
99. John Stick overlooks this point when he remarks that lawyers and judges are "the group
that sets the standards for objectivity in the law." Id.
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UNIVERSITY OF ILLINOIS LAW REVIEW
it is worrisome to deny even the theoretical possibility of a rational consensus.
As he explains the potential difficulty: "[i]f law organizes all the
conflicting values and social visions that exist in our political system,
power holders can impose any vision they like and run with the wind."'"
Singer's response is to insist that "legitimate normative argument about
justice [is] both possible and desirable."' 1 Of course, those in power
could "run with the wind" even in the face of a "legitimate normative
argument." Mere arguments cannot restrain those bent, come what may,
on the naked exercise of power. But some of those in power will listen,
and these individuals will restrain their otherwise self-interested behavior
when presented with convincing justifications for doing so. In the case of
those who will not listen, we could take appropriate steps against them
on the ground that their harmful conduct is not adequately justified.
This is, I take it, what Singer has in mind when he says that "legitimate
normative argument is... desirable." What is striking is not that Singer
thinks that it is desirable; what is striking is that he thinks it is possible.
To assert the possibility of fruitful normative debate is to take a step
away from the negative critique of liberal legitimacy toward the constructive
task of showing how legitimacy can be attained.
This is where pragmatism comes in. Pragmatism--or, better, pragmatism
misconceived-is essential to the constructive task, for it provides
the solution to an otherwise difficult puzzle. The puzzle is simply:
What can Singer mean by legitimacy when he says that legitimate normative
argument is possible? He cannot (consistently) mean liberal legitimacy.
According to Singer, legitimacy in that sense requires the
possibility of a rational consensus, a possibility that he thinks is an illusion.
1
0
2
Moreover, Singer cannot be appealing to the Weberian notion of
legitimacy as the result of the citizenry's perceived obligation to obey
governments. Singer cannot merely mean that this is possible and desirable.
He thinks liberalism has been by and large successful in making
100. Singer, supra note 2, at 540. It is instructive to compare Singer and Karl Llewellyn. Llewellyn
remarks:
[The law] presents over most, if not all of its bulk, the phenomenon of clashing interests, of
antagonistic persons or groups, with officials stepping in to favor some as against some
others.... Hence the eternal fight for control of the machinery of law... whereby the highly
interested As can hope partially to force their will upon the equally but adversely interested Bs,
and to put behind that control the passive approval and support of the great body of Cs-who
happen to be disinterested, or, what is equally to the point, uninterested.
Karl N. Llewellyn, A RealisticJurisprudence-TheNext Step, 30 COLUM. L. REV. 431, 461 (1930).
Llewellyn notes that the "law purports peculiarly among our institutions to 'represent' the whole.
There is, amid the welter of self-serving groups, . . . some sense of responsibility which outruns
enlightened self-interest, and results in action apparently headed (often purposefully) for the common
good." Id. This vision of law and society does not particularly disturb Llewellyn, but it does
disturb Singer. Part of the explanation of the difference is that Singer, unlike Llewellyn, does not
have faith in the possibility of the common good being served by some amorphous and altruistic
"sense of responsibility" immanent in law.
101. Singer, supra note 2, at 536 (emphasis added). Singer also takes this claim to characterize
critical theorists generally. Id.
102. See supra notes 53-57 and accompanying text.
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PRAGMATISM IN CRITICAL THEORY
itself appear legitimate, and he is at pains to explode the illusion. It is
not merely "perceived" legitimacy that Singer is after.
But what is Singer's positive conception of legitimacy? The following
passage provides Singer's most explicit answer:
Law is based, to some substantial extent, on our intuitive judgments
of right and wrong, fairness and unfairness, justice and tyranny. Yet
it is inaccurate to describe intuitive judgments as "just your opinion."
They are inevitably the opinion of someone situated in our
society, with experiences shared with others. The reasons we can
give for our moral intuitions will also be based on a shared cultural
heritage of what constitutes a good argument for a proposition....
[We need] a language that allows us both to understand alternative
social visions and to judge them. There is no single best way to do
this. Our goal should be to generate competing visions of social justice....
We must talk to each other about our competing visions of
the good society if we want to achieve justice. 10 3
Singer intends the passage to explain, or at least to suggest, how legal
decisions need not, as he says, be "just your opinion" but can instead be
"legitimate." The passage, however, raises more puzzles than it solves.
To begin, Singer appeals to "a shared cultural heritage of what constitutes
a good argument for a proposition" as a way ofshowing that "intuitive
judgments" are more than just someone's "opinion." But it is just
this appeal that Singer earlier criticizes in his discussion of what he calls
liberal theories: liberals "[b]y appealing to existing community practice
...are in fact conservative. They make it easier to identify the status
quo-a contingent form of social life-with reason itself."" Indeed, it
is puzzling why Singer thinks we have any shared cultural heritage that
would yield uncontroversial decisions in legal cases. After all, he argues
that "it is not possible to identify a 'common point of view' to answer
normative questions that can be both based on shared values and sufficiently
definite to generate answers in particular cases."' 0 5 He makes a
similar point when he says that "there is no single best way" to understand
and judge competing visions of social justice.
B. Pragmatismas the Apparent Solution
We still do not know exactly what Singer means by legitimate, and
we will not find any more explicit answer in his work.' °6 But we can find
an implicit answer in Singer's views about pragmatism. In fact, part of
the appeal of pragmatism to Singer is surely that it appears to provide an
103. Singer, supra note 2, at 542-43 (footnote omitted). This passage begins a section of
Singer's article entitled "Where Do We Go From Here?," a question Singer raises only after having
endorsed the Conflict Thesis and rejected the possibility of an ideally best justification.
104. Id. at 540.
105. Id at 536.
106. Lipkin notes essentially this problem. Commenting on Singer, supra note 12, Lipkin remarks
that "while I agree with much of Singer's article, I do not see that he has offered anything to
replace the traditional legal epistemological notions." Lipkin, supra note 5, at 104.
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answer. Pragmatism seems tailor-made for the situation in which Singer
thinks we find ourselves, for pragmatism provides "a language that allows
us both to understand alternative social visions and to judge
them.'" 7 Of course, it is not literally a "language"; it is a philosophical
framework, but I assume pragmatism is what Singer means by "language"
in this context.
Pragmatism does plausibly provide the desired "language." Pragmatism
emphasizes that we engage daily in justificatory practices that
routinely invoke norms ofjustification, and it permits us to acknowledge
that these norms can be vague, indeterminate, and conflicting. It does
not make these norms into more than they are. Pragmatism can also
readily acknowledge that there is no single best way to judge competing
social visions, and accepts that our goal instead should be to create competing
visions of social justice and to adequately discuss among ourselves
the implications of those potential outcomes.
But, like most critical theorists/pragmatists, Singer thinks that
pragmatism does more, that it provides a philosophic method that will
reveal the hidden truth about what is "really" justified. He believes pragmatism
aids us in our quest to "affirmatively ...think about justice and
to establish it in the world-to elaborate the democratic values embedded
in our culture[.]"' ° We can accomplish this by attaining the
pragmatic goal of understanding the effects of our ways of thinking
about the world, and to accept responsibility for the consequences of
what we do ....We need to focus on the ways in which our categories,
discourse, and modes of analysis reinforce illegitimate power
relationships by embodying the perspectives and concerns of those
who are powerful and suppressing members of oppressed groups."0 9
The "language" is supposed to accomplish this by allowing us to understand
visions of social justice and profitably compare them. As Singer
says, "Truth and justice are both partly a matter of experimentation, of
finding out what works and trying out different forms of life. The process
of discerningthe truth is not passive.....""o Singer thinks of pragmatism
as a process of discovering "the truth."
This is the key to understanding Singer's discussion of legitimacy. If
we were to actively engage in "conversation," carefully observing the appropriate
pragmatic strictures such as paying attention to context, we
would ultimately be led to a vision of the "truth," in which we see what
is and is not really justified. This idea allows us to explain what Singer
most likely means by legitimate: legitimate normative argument aims at
knowing what is really justified, and carries out this aim by engaging in
107. Singer, supra note 2, at 543.
108. Singer, supra note 19, at 1757. Note the similarity to West's Emersonian vision of a "modem
world [of] self-sustaining and self-overcoming individuals who.., flex their intellectual, social,
political, and economic muscles in order to gain wisdom." WEST, supra note 5, at 16.
109. Singer, supra note 19, at 1769.
110. Id. at 1757 (emphasis added).
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PRAGMATISM IN CRITICAL THEORY
the conversation under the appropriatepragmatic constraints. To obey
and acknowledge these limitations is to participate in good faith in the
"process of discerning the truth." Singer never explicitly expresses himself
in this way; nonetheless, this is the best interpretation of what he
does say."1' It removes the puzzle about what he means by "legitimate"
and fits in perfectly with his views about pragmatism. Some may object
that this interpretation is inconsistent with his insistence that the "pragmatic
attitude toward truth asks us to accept the fact that there can be no
final answers to our most important questions." I 2 But I take this simply
to mean that we never really reach the "final truth"; we pursue it as an
ideal."13
Many critical theorists-not just Singer-implicitly endorse such a
conception oflegitimacy,"' so it is worth being fully explicit. Thus,judicial
decisions are legitimate provided that the courts making those decisions
are attempting in good faith to know what is really justified, and
furthermore are carrying out this aim by engaging in the relevant "conversation"-the
process of legal argument and decision making-under
the appropriate pragmatic constraints (such as paying careful attention
11I. Singer sometimes comes close to explicitly stating the position I attribute to him. He says:
Legal reasoning... consists of conversation. Legal reasoning is not an accurate representation
of natural rights or sovereign commands. . . . Traditional legal theorists assume that if legal
reasoning is neither accurate representation nor an intersubjective decision procedure, then we
are left intolerably free to say anything.
Singer, supranote 12, at 51. Singer rejects the assumption of "traditional legal theory." He does not
believe we are "intolerably free," but rather thinks that the conversation is constrained-pragmatically-in
ways that show that legitimate normative argument is possible.
112. Singer, supra note 19, at 1757.
113. Unless we interpret Singer this way, his references to truth are difficult to understand.
Singer clearly has abandoned his early claim that "morality is not a matter of tiuth .... It is a
matter of conviction based on experience, emotion and conversation." Singer, supra note 12, at 39.
Singer, supra note 2, and Singer, supranote 19, are replete with references to truth and justice-i.e.,
to what is really true and really just.
114. See, e.g., Radin, Feminist,supranote 3, at 146-50 (arguing that the law must make a good
faith effort to take multiple perspectives into account if the law is to achieve justice). Michelman
discusses Radin's views in Frank Michelman, PriWte PersonalBut Not Split: Radin VersusRorty, 63
S. CAL. L. REV. 1783 (1990). He says that feminist/pragmatists like Radin imagine that by
"[c]onfronting each other politically, we contend over the idioms through which our diverse understandings
of world and self, of need and possibility, are refracted into common, public discourse."
Id. at 1788. The politics of confrontation "always involvea perspectival conflicts among apprehensions
of the world, society, and self." Id. at 1789. The result is that "epistemic democracy," id. at
1790, seeks a legitimate basis for law by ameliorating "the repressive and discriminatory effects of
the bias of idioms." Id. The conception is the same as Singer's: legitimate government requires
engaging in political dialogue under the proper constraints. See also Scott Brewer, Pragmatism,
Oppression, and the Flight to Substance, 63 S. CAL. L. REV. 1753 (1990) (raising the question of
what weight the different voices carry in the political dialogue); and the exchange between Scott
Brewer and Mari Matsuda in Afterword, 63 S. CAL. L. REV. 1911, 1911-12 (1990) (Brewer questions
the weight Matsuda gives to the voices of the oppressed in Matsuda, supra note 59). Note that the
underlying assumption throughout these articles is that an appropriately constrained political dialogue
arrives at a true sense ofjustice. For a well worked-out "conversational" conception of legitimacy
that avoids assuming the existence of an absolute conception ofjustice, see JAMES S. FISHKIN,
THE DIALOGUE OF JUSTICE (1992). Fishkin's work may not appeal to critical theorists, however,
since he does not focus on how our present society might be transformed into a legitimate one, but
instead focuses on "ideal theory, on the question whether a theoretical solution satisfying all of our
criteria is possible, at least under favorable conditions." Id. at 117.
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UNIVERSITY OF ILLINOIS LAW REVIEW
to context)." 5 As forpoliticallegitimacy in general: governmental decisions
are legitimate if decision-makers are making a good faith effort to
discover principles and precepts that can be non-relatively justified, and
in doing so are engaging in "the conversation"-the decision processunder
the analogous pragmatic constraints.
Of course, this conception of legitimacy is flatly inconsistent with
Dewey/Rorty pragmatism. For a Dewey/Rorty pragmatist, our norms
of justification neither have nor need any ground outside themselves;
there is no "truth" to discern. But then, Singer is not really a
Dewey/Rorty pragmatist. His position is much closer to Peircean pragmatism;
the leading idea behind the positions of both Singer and Peirce is
that by following the right investigative methods, we reach that which is
"really" justifiable. This is just the position that a Dewey/Rorty pragmatist,
correctly, rejects. From that point of view, the pursuit of what is
"really" justified is the pursuit of a chimera. Critical theorists in general
have pursued this mythic beast and in doing so, have failed to give a
genuinely pragmatic picture of the law.
V. THE PRICE OF PRAGMATISM
Why have critical theorists pursued the illusion of the "really" justifiable?
The answer, I suggest, is that they do not think that it is an illusion.
From a pragmaticpoint of view, it is an illusion, but the critical
theorists' philosophical vision is not really the vision of Dewey/Rorty
pragmatism; it is a much older-and still respectable-vision. It is the
Heraclitean vision Stuart Hampshire describes when he urges that
[w]e should look in society not for consensus, but for ineliminable
and acceptable conflicts, and for rationally controlled hostilities, as
the normal condition of mankind; not only normal, but also the best
condition of mankind from the moral point of view, both between
states and within states. This was Heraclitus's vision: that life...
consists in perpetual conflicts between rival impulses and ideals, and
that justice presides over the hostilities and finds sufficient compromises
to prevent madness in the soul, and civil war or war between
peoples. Harmony and inner consensus come with death,
when human faces no longer express conflicts but are immobile,
composed, and at rest. 6
115. Of course, determining the content of the right constraints applicable to judicial decision
making is unclear and controversial. Some commentators want to give special weight to the views of
society's marginalized and oppressed. See, e.g., Matsuda, supra note 59. Such views reach a dangerous
extreme when they accord a special weight to the views of the marginalized and oppressed and
deny any significant weight to opposing views. An opponent, or at least a person disagreeing with
these newly privileged views is counted out as mistaken, confused, self-deceived, or worse. This is a
prescription for intolerance: those who disagree with "us"-whomever the relevant "us" happens to
be---can be denied a significant role in political decision making. Historically, such views have lead
to the worst horrors of totalitarianism-as Isaiah Berlin points out in his classic essay, Two Concepts
ofLiberty. See ISAIAH BERLIN, Two Conceptsof Liberty, in FOUR ESSAYS ON LIBERTY 118 (1969).
116. HAMPSHIRE, supra note 57, at 189.
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No. 3] PRAGMATISM IN CRITICAL THEORY 563
It is the Heraclitean vision, not the pragmatic one, that truly underlies
Singer's work, and the work of many critical theorists/"pragmatists."
They see a world of conflict and urge us to make it instead into a practical
political reality where "justice presides over the hostilities."
Dewey/Rorty pragmatism, of course, denies any perspective-neutral
position from which "justice" can preside. This is the price of pragmatism,
a price most critical theorists/"pragmatists" have not been willing
to pay. Nonetheless, the price must be paid. If we are to give a truly
pragmatic account, we must acknowledge the pervasiveness of conflict in
norms of justification, and we must do so without seeking comfort in
the-illusory-vision of an eventual resolution of conflict in some
longed-for conversational apotheosis.