Back in the day (by which I mean the mid-70s through the mid-90s) big normative theories were all the rage in the legal academy. It's hard to be sure, but one suspects that it started with Rawls: when A Theory of Justice hit the legal academy, it produced a dramatic shift in the practice of normative legal argument in the academy (and even had ripples in legal practice). Rawls's big normative theory was "justice as fairness" with two famous principles, the liberty principle and the difference principle supported by a complex argument employing ideas like theoriginal position, the veil of ignorance, and reflective equilibrium. From Rawls, it was only a hop, skip, and jump to a variety of other theories drawn from moral and political philosophy--Kantian deontology, utilitarianism, welfarism, and other forms of consequentialism, Nozick's libertarainism, civic replublicanism, and on and on and on.
Ronald Dworkin played a key role in this movement with his famous distinction between the criteria of "fit" and "justification." When two or more views of the law have sufficient "fit" with the cases, statutes, and other legal materials, Dworkin argued, hard cases must be resolved by asking which view accords with the best justification for the law. So if there are two or more interpretations of the equal protection clause that fit the text and the cases, we should choose the interpretation that accords with our best theory of equality--and that is likely to be a big normative theory.
Indeed, there was a time when those in the know, the cognoscenti of the legal academy, subscribed to what was sometimes called the "theory of the month club." But something became quite clear as the years became decades: there were no winners in the debates between and among the advocates of big normative theories. Skirmishes and battles were won and lost, but there were no declarations of victory, surrenders, or peace treaties in the theory wars.
So it was probably inevitable that there should be some sort of reaction--an antitheoretical counterrevolution. And there was--or rather, there were several reactions. One move was away from the normative altogether and towards positive law and economics and empirical legal studies. Another move was away from abstract theories and towards contextual approaches to feminist legal theory and critical race theory. And yet another move was to pragmatism--a term that resonates with both the heritage of American philosophical pragmatism (Pierce, James, and Dewey) and the appeal of common sense in its particularly lawyerly form--the preoccupation with the practical.
This entry in the Legal Theory Lexicon provides an introduction to "legal pragmatism" for law students, especially first-year law students, with an interest in legal theory. As always, the Lexicon provides a "quick and dirty" introduction to a topic on which whole articles and books can and have been written.
Legal pragmatism is related to (but distinct from) philosophical pragmatism. Pragmatism is usually associated with three American philosophers--Charles Sanders Pierce (pronounced "purse"), William James, and John Dewey. Attempting to define a conceptual core of philosphical pragmatism is an enterprise fraught with peril--the major pragmatists disagreed among themselves and there never was a "pragmatism program" with a set of common tenets or principles. One idea that is associated with pragmatism is the notion that beliefs are neither true nor false, but instead are helpful or unhelpful for the accomplishment of goals or the success of actions. Another notion is the idea that "truth" is a function of practices of verification (the making and testing of predictions).
The following passage from William James's Pragmatism is both famous and gives the flavor (if not the philosophical substance) of philosophical pragmatism:
Pragmatism asks its usual question. "Grant an idea or belief to be true," it says, "what concrete difference will its being true make in anyone's actual life? How will the truth be realized? What experiences will be different from those which would obtain if the belief were false? What, in short, is the truth's cash-value in experiential terms?"
William James, Pragmatism (1907).
Legal Pragmatism: Three Ideas
As you might expect, legal pragmatism focuses on neither the theory of truth nor the theory of meaning and is instead directed at the normative and the role of normative theory in legal practice. There are many ways in which we might approach this relationship. Let's focus on three ideas that illuminate legal pragmatism: (1) the idea of practical judgment, (2) the idea of particularism, and (3) the notion of antitheory.
Practical Judgment One way to think about legal pragmatism begins with the distinction between "practical judgment" (and the allied notion of "practical wisdom") and "theoretical judgment." No one doubts that legal practice involves "practical judgment." Judges and lawyers cannot limit their activity to the theoretical realm. The decision of a case is always contextual--conditioned by a history of facts and by the concrete consequences that attend to a decision. Legal pragmatism emphasizes the idea that practical judgment is an ineliminable part of legal reasoning and may even make the stronger claim that the practical trumps the theoretical if the two are in conflict.
Paticularism Another way to approach legal pragmatism is via the an idea that is sometimes called "the priority of the particular." This phrase is shorthand for the assertion that judgments (or intuitions or considered judgments) about particular cases have priority over theoretical judgments about broad classes or categories of cases. What does "priority" mean in this context? One answer to this question is that the priority of the particular means that our judgments about particular cases are firmer, more grounded, and less subject to revision than are our beliefs about theory. In other words, when a theory collides with a firmly held belief about what is right or wrong in a particular case, it is the theory and not the judgment about the case that will have to give way.
Antitheory (or Antifoundationalism) And a final way to approach legal pragmatism is based on the notion that legal pragmatism is anitheoretical (or antifoundational). Let me back up a bit to explain this point. Some philosophers are suspicious of "big" "top down" normative theories generally, and there are "antitheoretical" positions in moral and political philosophy. What does it mean to be antitheoretical? One formulation expresses opposition to deductive systems--to be antitheoretical is to be opposed to a method that begins with axioms and then proceeds to deduce the theorems and corollaries that guide normative practice. Another formulation uses "top down" and "bottom up" as metaphors. Being antitheoretical is being against "top down" construction of legal arguments that move from abstract and general propositions to conclusions about particular cases. The alternative approach is "bottom up," starting with judgments about particular cases and ending with "low level" principles that are more concrete and contextual than abstract and general.
Ad Hoc Legal Pragmatism
So far, I've tried to get at what I think is the core conceptual content of legal pragmatism--in its best and most intellectually defensible forms. But there is another version of "legal pragmatism" that deserves some discussion. Sometimes, the phrase "legal pragmatism" is used in a very casual way as a kind of evasion or escape from serious objections. For example, someone might make a series of normative arguments that rest on inconsistent theoretical premises--affirming some form of consequentialism at one point and then relying on strong deontological premises at another. When confronted with inconsistency, they might say, "Oh, I'm a pragmatist." And they might be, but "pragmatism" is not a "Get Out of Jail Free" card that somehow magically nullifies contradictions or reconciles inconsistent theoretical premises. The best uses of legal pragmatism always ground specific pragmatic moves in some metatheoretical framework.
There is no official name for "sloppy pragmatism," but I use the label "ad hoc pragmatism" as a short-hand label for the attempt to use "pragmatism" as an excuse for theoretical inconsistency or for gaps in a theoretical argument. "Pragmatism" should be the term we use to describe a family of metatheoretical arguments; it is not an excuse for avoiding such arguments.
"Pragmatism" is tricky. In philosophy, the term "pragmatism" is both vague and ambiguous referring to a family of related but distinct philosophical positions, some of which are inconsistent and most of which are highly general and abstract. Similarly "legal pragmatism" is not really a single well-defined metatheoretical position, but is, instead, a label that is applied to a number of different moves in general legal theory.
- Jules Coleman, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory (2003)
- Daniel Farber, Legal Pragmatism and the Constitution, 72 Minn. L. Rev. 1331 (1988). Highly recommended as an exemplar of legal pragmatism.
- Daniel Farber & Philip Frickey, Practical Reason and the First Amendment, 34 UCLA L. REV. 1615, 1639-56 (1987).
- Thomas C. Grey, Judicial Review and Legal Pragmatism, 38 WAKE FOREST L. REV. 473, 497-507 (2003).
- David Luban, What's Pragmatic about Legal Pragmatism?, 18 Cardozo L. Rev. 43 (1996 - 1997) .
- Richard A. Posner, Law, Pragmatism, and Democracy (2003).
- Richard A. Posner, Legal Pragmatism, 35 Metaphilosophy 147 (2004).
- Richard A. Posner, Pragmatic Adjudication, 18 Cardozo Law Review 1 (1996).
- Richard A. Posner, Legal Pragmatism Defended, 71 University of Chicago Law Review 683 (2004).
- Brian Z. Tamanaha, Pragmatism in U.S. Legal Theory: Its Application to Normative Jurisprudence, Sociolegal Studies, and the Fact-Value Distinction, 41 American Journal of Jurisprudence 315 (1996)
Resources on the Internet
- Brain Edgar Butler, Legal Pragmatism, Internet Encyclopedia of Philosophy (2005)
- Lawrence Hinman, Anti-Theory, Ethics Update
- Jonathan Dancy, Moral Particularism, Stanford Encyclopedia of Philosophy
- Christopher Hookway, Pragmatism, Stanford Encyclopedia of Philosophy
Related Lexicon Entries
- Legal Theory Lexicon 006: The Veil of Ignorance
- Legal Theory Lexicon 008: Utilitarianism
- Legal Theory Lexicon 010: Deontology
- Legal Theory Lexicon 012: Virtue Ethics
- Legal Theory Lexicon 032: Fit and Justification
- Legal Theory Lexicon 037: Overlapping Consensus & Incompletely Theorized Agreements
- Legal Theory Lexicon 043: Formalism and Instrumentalism
(This post was last revised on July 29, 2018.)