Legal Theory Blog

Legal Theory Lexicon: 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 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.

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 philosophical 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.

Particularism  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.

Pragmatism and Pluralism

Another strand of legal pragmatism is associated with pluralism in legal theory.  The most fully developed form of theoretical pluralism of which I am aware is constitutional pluralism: this approach is strongly associated with the work of Phillip Bobbitt, who argued that constitutional norms are made true or valid by the modalities of constitutional discourse, including text, history, structure, precedent, and so forth.  Not all pluralists are pragmatists, but some pragmatist seem to be pluralists.  The central idea of this version of legal pragmatism is that no single theory (e.g., textualism, purposivism, intentionalism in the statutory realm) should govern across the board.  Instead, judges should pick the theoretical perspective that will produce consequences for the issue at hand.  Thus, a judge might decide to adopt a textualist approach to some constitutional or statutory provisions, but adopt a purposivist or intentionalist approach to others.

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.

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

• Charles A. Barzun, Three Forms of Legal Pragmatism, 95 Wash. U. L. Rev. 1003 (2018).
• Philip Bobbitt, Constitutional Fate (1984).
• 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)
• 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 December 31, 2023.)

Legal Theory Bookworm: "Liberalism Against Itself" by Moyn

The Legal Theory Bookworm recommends Liberalism against Itself: Cold War Intellectuals and the Making of Our Times by Samuel Moyn.  Here is a description:

By the middle of the twentieth century, many liberals looked glumly at the world modernity had brought about, with its devastating wars, rising totalitarianism, and permanent nuclear terror. They concluded that, far from offering a solution to these problems, the ideals of the Enlightenment, including emancipation and equality, had instead created them. The historian of political thought Samuel Moyn argues that the liberal intellectuals of the Cold War era—among them Isaiah Berlin, Gertrude Himmelfarb, Karl Popper, Judith Shklar, and Lionel Trilling—transformed liberalism but left a disastrous legacy for our time.
 
In his iconoclastic style, Moyn outlines how Cold War liberals redefined the ideals of their movement and renounced the moral core of the Enlightenment for a more dangerous philosophy: preserving individual liberty at all costs. In denouncing this stance, as well as the recent nostalgia for Cold War liberalism as a means to counter illiberal values, Moyn presents a timely call for a new emancipatory and egalitarian liberal philosophy—a path to undoing the damage of the Cold War and to ensuring the survival of liberalism.

And from the reviews:

“[A] daring new book.”—Becca Rothfeld, Washington Post

“A fascinating and combative intellectual history of what Moyn calls ‘cold war liberalism.’”—Gideon Rachman, Financial Times

Listed in New Statesman’s Best Books of the Academic Presses, 2023

 “Liberalism Against Itself possesses the . . . zest that can fizz only when a gifted polemicist turns his pen against his own side.”—A. R. Hoffman, New York Sun

“Elegant and provocative.”—Mathis Bitton, City Journal

“Original. . . . Acute and judicious.”—George Scialabba, Democracy Journal

“Skeptical of received wisdom and over-burnished reputations, Liberalism against Itself is a continuously bracing and necessary exercise in intellectual iconoclasm. It not only rescues a distinguished Western tradition from its skittish cold-war exponents and bellicose neo-conservative exegetes; it also alerts us to the many political and intellectual possibilities still open to us.”—Pankaj Mishra, author of Age of Anger: A History of the Present

“In this compelling critique of Cold War liberalism, Samuel Moyn shows how, in the second half of the 20th century, liberalism lost its nerve, and its idealism. Today, with liberalism under siege, Moyn bids liberals to emerge from their blinkered, defensive crouch to reclaim a bold, progressive project of human agency and moral improvement. This is intellectual history at its best—by reminding us of wrong turns, it points us to new possibilities.”—Michael J. Sandel, author of Democracy’s Discontent: A New Edition for Our Perilous Times

“A striking, poignant account of how liberalism lost its way. Through a set of fascinating intellectual portraits, Samuel Moyn prompts us to confront liberalism’s Cold War capitulation to a reactionary pessimism, and invites us to imagine a liberalism oriented toward emancipation. Liberalism against Itself is vital reading for all those concerned with liberalism’s failures and possibilities.”—Amia Srinivasan, author of The Right to Sex

“Throughout my life, liberalism has been a politics of timidity and anxiety rather than freedom and equality. In his sterling reconstruction of recent history, Samuel Moyn shows that it was the Cold War that made liberalism what it is today. If there is to be a liberalism of tomorrow, liberals must leave the Cold War behind. If they do, Moyn claims in a brilliant provocation, there is an older idea of liberal perfection and progress to be recovered and a new world of freedom and equality to be won.”—Corey Robin, author of The Enigma of Clarence Thomas

Download of the Week: "Revisiting the Congressional Review Act" by Cross

The Download of the Week is Revisiting the Congressional Review Act by Jesse Cross.  Here is the abstract:

It now has been over 25 years since Congress first enacted the Congressional Review Act, an effort to reclaim congressional oversight of agency rulemaking in a post-Chadha world. For many years, the CRA remained a relatively obscure statute, but an explosion in use has now transformed it into an important component of our administrative state. This has made it imperative for those both within and without Congress to understand the law. Yet the real-world operation of the CRA remains little understood.

This Article attempts to shed light on this opaque yet consequential statute. Drawing on interviews with governmental and private actors, it provides an inside look into the real-world operation of CRA review. In so doing, it discovers implementation practices that would surprise even those with detailed knowledge of the letter of the law.

These discoveries change our understanding of the CRA’s strengths, weaknesses, and possibilities—and the Article explores the lessons offered by these discoveries. These include lessons for statutory reform, with the Article identifying aspects of the law that should be addressed by Congress to promote good governance under the Act. They also include lessons for partisan actors, uncovering unknown opportunities for creative use of the CRA, often to offset manipulative uses that have emerged in recent years. Through this analysis, the Article provides insights into the CRA that will be necessary as the law continues to play an unexpectedly important role in congressional oversight of the administrative state.

Highly recommended.

Avi-Yonah & Kir on the Supreme Court of India's Decision in the Nestle Case

Reuven S. Avi-Yonah (University of Michigan Law School) & Ajitesh Kir (niversity of Michigan at Ann Arbor, University of Michigan Law School) has posted The Meaning of «IS»: Reflections on Nestle on SSRN.  Here is the abstract:

On October 19, 2023, the Supreme Court of India issued its decision in Nestle. This is a very important decision regarding two issues: Are Indian tax treaties self-executing, and what is the impact of a Most Favored Nation (MFN) clause in a tax treaty between India and a member of the OECD.

Hamburger on Supreme Court Doctrine and Censorship

Philip Hamburger (Columbia University - Law School) has posted Courting Censorship on SSRN.  Here is the abstract:

Has Supreme Court doctrine invited censorship? Not deliberately, of course. Still, it must be asked whether current doctrine has courted censorship—in the same way one might speak of it courting disaster.

The Court has repeatedly declared its devotion to the freedom of speech, so the suggestion that its doctrines have failed to block censorship may seem surprising. The Court’s precedents, however, have left room for government suppression, even to the point of seeming to legitimize it. Of greatest concern is judicial doctrine in five areas: the structural protections for speech, state action, the First Amendment, government speech, and qualified immunity. This Article focuses on how these doctrines have courted censorship.

Along the way, this Article more broadly must question some fundamentals of twentieth-century constitutional jurisprudence. The Article challenges the need for any state action doctrine—at least when considered as a generic doctrine independent of the particular rights at stake. It also contests the coercion model—the prototypical measure of forbidden government severity—that runs through Supreme Court doctrine on state action, constitutional rights, and even governmental structure. Under the influence of these misguided meta-doctrines on state action and coercion, judges and scholars have done much of the doctrinal damage. Most centrally, in embracing overarching generalities about state action and coercion, judicial doctrine has failed to recognize the First Amendment’s distinction between abridging and prohibiting. In such ways, doctrine has endangered freedom of speech and all that depends on it.

Recommended.

Sunstein on Liberalism

Cass R. Sunstein (Harvard Law School; Harvard University - Harvard Kennedy School (HKS)) has posted On Liberalism on SSRN.  Here is the abstract:

Liberals see human beings as subjects, not objects. They reject despotism in its many forms. With Justice Robert Jackson, liberals believe that “compulsory unification of opinion achieves only the unanimity of the graveyard.” Liberal authoritarianism is an oxymoron. Illiberal democracy is illiberal, and liberals oppose it for that reason. Liberals are puzzled by many of those, on the left and the right, who describe themselves as “antiliberal” or “postliberal.” With respect to some claims of “antiliberals” or “postliberals,” liberals agree with Amos Tversky and Daniel Kahneman: “The refutation of a caricature can be no more than a caricature of refutation.” With respect to those claims of “antiliberals” or “postliberals” that do not amount to a caricature, liberals insist on the importance of freedom of thought and action and deliberative democracy, and on the need to respect reasonable pluralism.

Highly recommended.

Dincecco on State Development in Western Europe

Mark Dincecco (University of Michigan at Ann Arbor) has posted State Development in Western Europe from 1500 Onwards (Institutional Dynamics and Organizational Complexity, Forthcoming) on SSRN.  Here is the abstract:

This chapter analyzes state development in Western Europe from 1500 onwards. To guide this inquiry, I first put forth a conceptual framework that highlights the government’s enduring challenge to exert proper authority over both the citizenry and itself. I next analyze historical state development in Western Europe in terms of this framework. My account draws heavily in both substance and style from the material in Dincecco (2017, 2015). I argue that the development of effective states in Western Europe by the latter half of the nineteenth century was the institutional bedrock upon which twentieth-century welfare states were constructed. The chapter concludes with historical lessons for state-making today.

Paulsen on a "Dead Framers Society"

Michael Stokes Paulsen (University of St. Thomas School of Law) has posted Dead Framers Society (St. Thomas Journal of Law & Public Policy) on SSRN.  Here is the abstract:

“Constitutionalism” is all about the “Dead Hand of the Past” –- constraining the actions of present-day officials and policymakers by rules adopted at some time in the past. Written constitutionalism is all about the “Dead Handwriting of the Past” – constraining the actions of present-day officials and policymakers by the original, objective public meaning of an authoritative, binding, written legal text. The task of faithful constitutional interpretation of the U.S. Constitution is thus to seek to ascertain and faithfully apply the objective meaning that the words, phrases, and structures of the text would have had to ordinary, reasonable speakers and readers of the English language, reading a document of this sort, at or about the time of its adoption. If one were to make a Hollywood movie about proper principles governing the interpretation of the United States Constitution, one might call it Dead Framers Society. (With all appropriate apologies to the actual film "Dead Poets Society"!) But who should star in the role of the irrepressible, exuberant (not-so) young originalist constitutional law professor, teaching at a humble midwestern law school and inspiring his students to create a club dedicated to the study of originalist sources and methods for discovering constitutional meaning?!

Highly recommended.

Zwickel & Tenenbaum on Congressional Abrogation of Eleventh Amendment Immunity

Howard Zwickel (Albany Law School) & Evelyn M. Tenenbaum (Albany Law School) have posted Restoring Congress’s Authority Under Article I to Abrogate the States' Eleventh Amendment Immunity: A Remedy that is Long Overdue (University of Pittsburgh Law Review, Vol. 84, No. 3, 2023) on SSRN.  Here is the abstract:

For over two centuries, Congress had the authority to enact laws that provided meaningful monetary relief for individuals who were injured by states due to discrimination, violations of intellectual property rights, and other state actions that were within Congress's power to legislate. That authority did not change until 1996, when the Supreme Court held in Seminole Tribe of Florida v. Florida that the Eleventh Amendment established a constitutional right to state sovereign immunity that trumped Congress's authority under Article I of the Constitution.

The Eleventh Amendment was ratified in 1795 to protect states' common-law immunity from suit and, in numerous decisions over the next two hundred years, the Supreme Court recognized sovereign immunity as a common-law privilege. This recognition was based on the intent of Hamilton-Madison-Marshall and several other key supporters of the Constitution as well as the Framers of the Eleventh Amendment. Not until the Supreme Court's decision in Seminole Tribe did the Court hold that the Eleventh Amendment established an immutable constitutional right to state sovereign immunity that overrode Congress's authority under Article I. As this Article will show, Seminole Tribe rested on a flawed interpretation not only of the history of the Eleventh Amendment and the sovereign immunity principle, but also the text of both Article III of the Constitution and the Eleventh Amendment itself.

While Congress still has the authority under the post-Civil War Amendments to protect injured parties from state action through "appropriate legislation," the Court has placed restrictions on laws passed under the authority of these Amendments if they abrogate state immunity from suit. These restrictions have caused landmark legislation, including the Americans with Disabilities Act and the Age Discrimination in Employment Act, to be struck down. As a result, injured parties must seek recourse under state laws that often fail to provide adequate relief. These major federal laws would likely have been sustained if sovereign immunity were recognized as a common-law principle, rather than a constitutional limit on Congress's authority.

In the past two years, the Supreme Court has retreated from Seminole Tribe by creating exceptions to the limitations on the federal government's power to abrogate state immunity. Those rulings raise serious doubt about the Court's willingness to adhere to the reasoning in Seminole Tribe. We advocate overruling Seminole Tribe with some workable safeguards on Congress's Article I authority to protect the federal-state balance of power.

Recommended.

Bernick on the Law of Settler Violence

Evan D. Bernick (Northern Illinois University - College of Law) has posted We the Killers: The Law of Settler Violence and Native Persistence Beyond 'Flower Moon' (34 Pages Posted: 27 Dec 2023) on SSRN.  Here is the abstract:

"Killers of the Flower Moon" will not soon be forgotten by anyone who encounters it. David Grann’s book and Martin Scorsese’s film tell a story of horrific anti-Indigenous violence with which Americans must reckon. This Essay is about what both Killers leave out about anti-Indigenous violence, the persistence of Native nations and peoples, and American law—and why the omissions matter.

Few directors put more physical violence on screen than Scorsese, and his Killers is characteristically brutal. In this it is faithful to Grann’s essential history of the Osage Reign of Terror—a mass-murder conspiracy that claimed the lives of countless citizens of the Osage Nation during the 1920s. This is a story of shooting, bombing, beating, and poisoning, by people who looked at the Osage and their land as obstacles to be eliminated and resources to be extracted.

But there is more to the story. More and different kinds of violence, more killers, more Native resistance. And a great deal of this violence, killing, and resistance was and is enacted and structured through and by law. American law follows and facilitates settler colonialism, consisting in the removal, dispossession, and political domination of Native peoples, to the end of their elimination as peoples. It has also been shaped, resisted, and evaded in ways that make apparent that Native peoples are not helpless victims of settler-colonial violence. And non-Native readers and viewers of Killers have more to do by way of solidarity in the face of this ongoing violence than to acknowledge their settler privilege.