Legal Theory Blog

Legal Theory Lexicon: Legal Pragmatism

Introduction  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 the original 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 widely know as 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.

Philosophical Pragmatism 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 frauth with peril--the major pragamtists 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).

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 oppose 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 judgmetns 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 coneptual 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 contraditions or reconciles theoretical contraditions.  The best uses of legal pragmatism always ground specific pragmatic moves in some metatheoretical framework.

There is no official name for "sloppy pragmatistm," 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.

Conclusion  "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.

References

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.

Farber & 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).

Richard A. Posner, Law, Pragmatism, and Democracy (2003).

(This post was last revised on September 30, 2007.)

Legal Theory Bookworm

The Legal Theory Bookworm recommends The Morality of Happiness by Julia Annas.  Here is a description:

Ancient ethical theories, based on the notions of virtue and happiness, have struck many as an attractive alternative to modern theories. But we cannot find out whether this is true until we understand ancient ethics--and to do this we need to examine the basic structure of ancient ethical theory, not just the details of one or two theories. In this book, Annas brings together the results of a wide-ranging study of ancient ethical philosophy and presents it in a way that is easily accessible to anyone with an interest in ancient or modern ethics. She examines the fundamental notions of happiness and virtue, the role of nature in ethical justification and the relation between concern for self and concern for others. Her careful examination of the ancient debates and arguments shows that many widespread assumptions about ancient ethics are quite mistaken. Ancient ethical theories are not egoistic, and do not depend for their acceptance on metaphysical theories of a teleological kind. Most centrally, they are recognizably theories of morality, and the ancient disputes about the place of virtue in happiness can be seen as akin to modern disputes about the demands of morality.

And from the reviews:

"A richly nuanced and exceptionally clear historical study....A learned, provocative study that will redefine current debates about 'virtue-ethics' and its differences from moral theory. Strongly recommended for all college and university libraries."--Choice

"Annas presents both a brilliant analysis of ancient ethical theory and a powerfully argued defense of the priorities and approaches taken by ancient philosophers to ethical questions. Her mastery of a wide range of ancient (and modern) texts along with her skilled exposition of philosophical argument makes this an outstanding book...It will be required reading for any scholar of ancient ethical thought, and contemporary moral philosophers will find rich insights to bring back to their work as well....The Morality of Happiness will generously repay thoughtful reading. It is distinguished both by the comprehensive scope of its general thesis and by the subtlety of its details." --Bryn Mawr Classical Review

"[An] admirable book....This is an important book. Many of Annas's claims will provoke scholarly controversy for some time to come; in the meantime, the book will be a tremendous help to those who want to understand the development of ancient ethics as a whole."--Times Educational Supplement

"[An] extremely worthwhile book."--International Philosophical Quarterly

"This ambitious, detailed survey...is at once unusually broad in its treatment of the varieties of Greek ethics, satisfyingly deep in its analysis of individual theories, and appropriately systematic throughout."--Religious Studies Review

"This is a splendid and important book....Her discussions of particular issues are often novel and always stimulating....This is a most valuable contribution to the history of ancient ethics and, more generally, to the history of ancient philosophy. It will surely receive the close attention and discussion it deserves."--The Philosophical Review

"The pick of the bunch this year....What is interesting and refreshing about it is not so much what Annas says (important though that is) as the approach she adopts....Every classicist who believes that our subject is the study not of the dead past but of a living part of our culture needs to read this book."--Greece and Rome

Highly recommended.

Download of the Week

The Download of the Week is Of Sovereigns and Servants by Heather Gerken. Here is the abstract:

This essay offers a bit of shared terminology for capturing a set of distinctions that run through large portions of constitutional law. Legal scholars are often preoccupied with correcting power imbalances. Some of those power imbalances are vertical, such as the worry some local government law scholars have about weak cities in need of protection against an overweaning state. Other power imbalances are horizontal, such as the worry of some separation-of-powers scholars about an unduly powerful federal Executive. Despite these differences, scholars tend to propose quite similar correctives for fixing the imbalance in question.

The first and most familiar strategy depends on what one might call "the power of the sovereign." This strategy relies on sovereignty or its rough equivalent to mediate the relationship between two institutional actors. For scholars proposing a vertical fix for a perceived power imbalance, the power of the sovereign is a variant of federalism -- the creation of formally or informally delineated zones of autonomy in which a lower level institution can govern freely. For scholars proposing a horizontal fix, the power of the sovereign similarly relies on the preservation of zones of autonomy among nominally co-equal institutions. The power of the sovereign thus relies on autonomy and separation to ensure that ambition is able to counteract ambition.

The second, more counterintuitive institutional fix relies on what I call "the power of the servant" to check a power imbalance. This fix depends on the ability of an institutional actor placed somewhere down in the chain of command to influence the person who is nominally his boss. Unlike the sovereign, the servant lacks autonomy and, if push comes to shove, must cede to the higher authority. The power of the servant thus stems mainly from reliance; the fact that the higher authority needs the servant to administer a program or carry out a duty creates space for bureaucratic pushback (and, as I argue, community standing). Put differently, the power of the servant depends on administrative overlap, not division; on integration, not isolation. The essay concludes by offering a few preliminary reflections on the utility of this terminology.

Virtue Jurisprudence at the University of Arizona

I'm in the Denver airport, changing planes on my way back from Tucson to Washington, DC (where I'm visiting at Georgetown this semester).  I just wanted to say thank you to my hosts at the University of Arizona, where I presented "Virtue Jurisprudence: An Aretaic Theory of Law," at the law schools colloquium series.  I owe special thanks to Darian Ibrahim & David Marcus for their assistance during the visit.

In addition to a fine law school, the University of Arizona is the home of one of the world's great philosophy departments.  It was particularly thrilling to have Julia Annas in the audience.  It was also great to meet Rachana Kamtekar.

The paper I gave at Arizona is not yet available on the web, but you can download Natural Justice for a sense of the most recent directions this project is taking.  Here is the abstract:

Justice is a natural virtue. Well-functioning humans are just, as are well-ordered human societies. Roughly, this means that in a well-ordered society, just humans internalize the laws and social norms (the nomoi) - they internalize lawfulness as a disposition that guides the way they relate to other humans. In societies that are mostly well-ordered, with isolated zones of substantial dysfunction, the nomoi are limited to those norms that are not clearly inconsistent with the function of law - to create the conditions for human flourishing. In a radically dysfunctional society, humans are thrown back on their own resources - doing the best they can in circumstances that may require great practical wisdom to avoid evil and achieve good. Justice is naturally good for humans - it is part and partial of human flourishing. All of these are natural ethical facts.

"Natural Justice" develops these claims in four stages. Part I contextualizes the claim that justice is a natural virtue in relationship to Hume's famous argument about deriving ought from is, Moore's open-question argument, and the so-called fact-value distinction. The upshot of the discussion in Part I is the claim that there are no clearly decisive objections to existence of natural ethical facts.

Part II traces the movement from neo-Aristotelian virtue ethics to virtue jurisprudence by articulating a theory of the judicial virtues. Among these are the virtues of practical wisdom and of justice. Practical wisdom or phronesis is best understood on the model of moral vision, which in the context of law is legal vision or situation sense. The virtue of justice is best understood as lawfulness. Just humans are law-abiding or nomimos - in that they internalize the widely shared and deeply held social norms of their social groups. This part concludes with the claim that a legally correct decision is the decision that characteristically would be rendered by a fully virtuous judge under the circumstances of the case.

Part III argues that natural justice can be understood on the model of natural goodness as articulated in the work of Philippa Foot and Michael Thompson. The intuitive idea is that justice as lawfulness is naturally good for reason - using social creatures in human circumstances. This part also articulates and responds to a variety of objections.

Part IV concludes by articulating the sense in which an aretaic theory of law that incorporates a natural virtue of justice as lawfulness can be viewed as an expression of the natural law tradition. The natural law idea that an unjust enactment is not a true law corresponds to two senses in which positive laws can fail to be nomoi (in the technical sense specified by virtue jurisprudence). First, a given enactment may contravene deeply held and widely shared social norms. Second, such enactments may be fundamentally inconsistent with the purpose of law - the promotion of human flourishing.

Leib on Interpreting Referenda

Ethan J. Leib (University of California - Hastings College of the Law) has posted Interpreting Statutes Passed Through Referendums (Election Law Journal, Vol. 7, 2008) on SSRN. Here is the abstract:

Those focused on the questions surrounding how courts ought to interpret the statutory products of direct democracy pay relatively little attention to the variety of processes that could give rise to such laws. There are two core processes of direct democracy that produce statutes, though the specific mechanics vary in the many states that employ them: the referendum and the initiative. Generally speaking, the referendum enables citizens to ratify or reject statutes passed by a legislature, while the initiative enables citizens to draft laws themselves and put them before the populace for a vote. My focus here is the question of the appropriate interpretive approach for statutes subject to the popular vote.

By and large, scholars have focused almost exclusively on the direct initiative when they discuss how courts should interpret the products of direct democracy. But courts are saddled with the task of interpreting a broader array of statutory enactments subject to direct democracy. A uniform method of interpretation – one that finds support in many judicial pronouncements - might be defended on the ground that it makes no difference which directly democratic process leads to a law under consideration; irrespective of process, the interpretive inquiry should remain constant. That uniform method could be supported by an assumption that the processes of direct democracy are similar enough to warrant similar treatment for purposes of interpretation. Or it could be supported by an assumption that all forms of direct democracy are underwritten by a political theory that counsels for similar statutory interpretation. I argue here that the uniform method, whatever support it might find in caselaw, is flawed.

Hovenkamp on the Dominant Firm, Attempts to Monopolize, and Leveraging

Herbert J. Hovenkamp (University of Iowa - College of Law) has posted The Legal Periphery of Dominant Firm Conduct on SSRN.  Here is the abstract:

This essay explores two different but related problems and how U.S. antitrust law and EU competition law approach them. The first is the offense of attempt to monopolize, which concerns the acts that a firm that is not yet dominant might undertake in order to become dominant. The second is the offense of monopoly or dominant firm leveraging, which occurs when a firm uses its dominant position in one market to cause some kind of harm in a different market where it also does business.

Sterk on Uncertainty About Property Rights

Stewart E. Sterk (Cardozo Law School) has posted Property Rules, Liability Rules, and Uncertainty About Property Rights (Michigan Law Review, Vol. 106, 2008) on SSRN. Here is the abstract:

Clarity can be a considerable virtue in property rights. But even when property rights are defined clearly in the abstract, ascertaining the scope of those rights in concrete situations often entails significant cost. In some instances, the cost of acquiring information about the scope of property rights will exceed the social value of that information. In those circumstances, further search for information about the scope of rights is inefficient; the social harm avoided by further search does not justify the costs of the search.

Potential resource users, however, make decisions based on private costs and benefits, not social costs and benefits. Legal rules can create incentives to search for information even when the search would be inefficient. In particular, “property rule” protection often gives leverage to right holders disproportionate to the harm those right holders would suffer from intrusion on their rights. That leverage, in turn, gives potential resource users private incentives to expend time and money on search even when search will generate minimal social benefit. “Liability rule” protection, by contrast, limits incentives to conduct inefficient search for the scope of property rights.

Property doctrine reflects this insight in a number of contexts. Thus, high search costs can explain the unwillingness of courts to award injunctive relief in cases of “innocent” boundary encroachments, as well as the Supreme Court's recent limitations on the routine award of injunctive relief in patent and copyright cases.

Prempeh on Widner on Judicial Independence in Africa

H. Kwasi Prempeh (Seton Hall University School of Law) has posted African Judges, in Their Own Cause: Reconstituting Independent Courts in Contemporary Africa (International Journal of Constitutional Law, Vol. 4, No. 592, 2006) on SSRN.  Here is the abstract:

This essay reviews Princeton political scientist Jennifer A. Widner's book, "Building the Rule of Law: Francis Nyalali and the Road to Judicial Independence in Africa" (2001).

Morton, Shipan, and Springer on Separation of Powers & Turnout

Rebecca Morton , Charles R. Shipan and Melanie Springer (New York University - Department of Politics , University of Michigan at Ann Arbor - Department of Political Science and Washington University, St. Louis - Department of Political Science) has posted Separation of Powers and Turnout on SSRN.  Here is the abstract:

Do separation of powers systems produce lower levels of voter turnout? We analyze this question by taking advantage of institutional variation across U.S. states. In some states, governors and legislatures share power roughly evenly, which creates a sharing of powers that approximates a classic separation of powers system. In other states, power is unequally distributed, thereby approximating a system in which powers are not shared. We find that turnout is lower in systems in which power is shared equally, indicating that separation of powers does indeed decrease turnout.

Davis on Products Liability & Preemption

Mary J. Davis (University of Kentucky - College of Law) has posted The Battle for Implied Preemption: Products Liability and the FDA (Boston College Law Review, Vol. 48, No. 5, 2007) on SSRN. Here is the abstract:

A mere five years ago, the FDA began, for the first time in its 100 year history, to take the position that its prescription drug labeling regulations defeated the ability of injured plaintiffs to pursue common law tort claims based on the adequacy of the labeling. This position, radical to many and rational to others, places federal preemption of prescription drug labeling actions directly in the center of the debate over the proper roles of federal regulation and state tort laws in promoting product safety. The Supreme Court has added to that debate with a number of product liability preemption decisions in the past two decades. Seeking to promote both understanding and balance regarding the operation of preemption doctrine within products liability, this Article provides a comprehensive explanation of the applicability of preemption doctrine to prescription drug product liability actions. It explores the history of preemption doctrine as it relates to the food and drug laws, evaluates the arguments posited in favor of and against preemption, assesses the FDA's position on the application of that doctrine to current litigation, and provides direction to courts in defining the boundaries of implied preemption.