Citation: 63 S. Cal. L. Rev. 1653 1989-1990
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WHAT HAS PRAGMATISM
TO OFFER LAW?
RIcHARD A. POSNER*
"[T]he great weakness of Pragmatism is that it ends by being ofno use
to anybody."
-T. S. Eliot'
I.
The pragmatic movement gave legal realism such intellectual shape
and content as it had. Then pragmatism died (or merged into other philosophical
movements and lost its separate identity), and legal realism
died (or was similarly absorbed and transcended). Lately pragmatism
has revived, and the question I address in this Article is whether this
revival has produced or is likely to produce a new jurisprudence that will
bear the same relation to the new pragmatism as legal realism bore to the
old. My answer is no on both counts. The new pragmatism, like the old,
is not a distinct philosophical movement but an umbrella term for diverse
tendencies in philosophical thought. What is more, it is a term for the
same tendencies; the new pragmatism is not new. Some ofthe tendencies
that go to make up the pragmatic tradition were fruitfully absorbed into
legal realism, particularly in the forms articulated by Holmes and Cardozo;
others led, and still lead, nowhere. The tendencies that many years
ago were fruitfully absorbed into legal realism can indeed help in the
formulation of a new jurisprudence, but it will be new largely in jettisoning
the naive politics and other immaturities and excesses of legal realism.2
This refurbished, modernized realism will owe little or nothing,
* Judge, United States Court of Appeals for the Seventh Circuit; Senior Lecturer, University
of Chicago Law School. This is the revised text of a paper presented at the Symposium on the
Renaissance ofPragmatism in American Legal Thought, held at the University of Southern California
Law Center on February 23 and 24, 1990. I thank Cass Sunstein for helpful comments on a
previous draft.
1. T.S. Eliot, FrancisHerbertBradley, in SELECTED PROSE OF T.S. ELIOT 196, 204 (F.
Kermode ed. 1975) (essay first published in 1927).
2. I present my full argument for this new jurisprudence in my book, THE PROBLEMS OF
JURISPRUDENCE @)1990.
1653
SOUTHERN CALIFORNIA LAW REVIEW [Vol. 63:1653
however, to the new pragmatism-if indeed there is such a thing, as I
doubt.
Histories of pragmatism 3 usually begin with Charles Sanders Peirce,
although he himself gave credit for the idea to a lawyer friend, Nicholas
St. John Green, and anticipations can be found much earlier-in Epicurus,
for example.' From Peirce the baton is (in conventional accounts)
handed to William James, then to John Dewey, George Mead, and (in
England) F.S.C. Schiller. Parallel to and influenced by the pragmatists,
legal realism comes on the scene, inspired by the work of Oliver Wendell
Holmes, John Chipman Grey, and Benjamin Cardozo and realized in the
work of the self-described realists, such as Jerome Frank, William Douglas,
Karl Llewellyn, Felix Cohen, and Max Radin. Pragmatism and legal
realism join in Dewey's essays on law.' But by the end ofWorld War II
both philosophical pragmatism and legal realism have expired, the first
superseded by logical positivism and other "hard" analytic philosophy,
the other absorbed into the legal mainstream and particularly into the
"legal process" school that reaches its apogee in 1958 with Hart and
Sacks's The LegalProcess. Then, beginning in the 1960s with the waning
of logical positivism, pragmatism comes charging back in the person of
Richard Rorty, followed in the 1970s by critical legal studies-the radical
son of legal realism-and in the 1980s by a school of legal
neopragmatists that includes Martha Minow, Thomas Grey, Daniel Farber,
Philip Frickey, and others. The others include myself, and perhaps
also, as suggested by Professor Rorty in his comment on this paper, Ronald
Dworkin-despite Dworkin's overt hostility to pragmatism6-- and
even Roberto Unger. The ideological diversity of this group is
noteworthy.
In the account I am offering (not endorsing), pragmatism, whether
of the paleo or neo varieties, stands for a progressively more emphatic
rejection of Enlightenment dualisms such as subject and object, mind and
body, perception and reality, form and substance; these dualisms being
regarded as the props of a conservative social, political, and legal order.
3. Illustrated by D. HOLLINGER, IN THE AMERICAN PROVINCE: STUDIES IN THE HISTORY
AND HISTORIOGRAPHY OF IDEAS 23-32 (1985); J. SMrrH, PURPOSE AND THOUGHT: THE MEANING
OF PRAGMATISM (1978); H.S. THAYER, MEANING AND ACTION: A CRITICAL HISTORY OF
PRAGMATISM (1968).
4. See Nussbaum, Therapeutic Arguments: Epicurus and Aristotle, in THE NORMS OF
NATURE 31 (M. Schofield & G. Striker eds. 1986); see also id. at 41, 71-72.
5. Notably his essay LogicalMethod and Law, 10 CORNELL L.Q. 17 (1924).
6. See infra note 23.
1654
WHAT HAS PRAGMA TISM TO OFFER LAW?
This picture is too simple. The triumphs of science, particularly
Newtonian physics, in the seventeenth and eighteenth centuries persuaded
most thinking people that the physical universe had a uniform
structure accessible to human reason. It began to seem that human
nature and human social systems might have a similarly mechanical
structure. This emerging world view cast humankind in an observing
mold. Through perception, measurement, and mathematics, the human
mind would uncover the secrets of nature (including those of the mind
itself, a part ofnature) and the laws (natural, not positive) of social interaction-including
laws decreeing balanced government, economic behavior
in accordance with the principles of supply and demand, and moral
and legal principles based on immutable principles of psychology and
human behavior. The mind was a camera, recording activities both natural
and social and alike determined by natural laws, and an adding
machine.
This view, broadly scientific but flavored with a Platonic sense of a
world of order behind the chaos of sense impressions, was challenged by
the Romantic poets (such as Blake and Wordsworth) and Romantic philosophers.
They emphasized the plasticity of the world and especially
the esemplastic power of the human imagination. Institutional constraints
they despised along with all other limits on human aspiration, as
merely contingent; science they found dreary; they celebrated potency
and the sense ofcommunity-the sense of unlimited potential and of oneness
with humankind and with nature-that an infant feels. They were
Prometheans. The principal American representative of this school was
Emerson, and he left traces of his thought on Peirce and Holmes alike.
Emerson's European counterpart (and admirer) was Nietzsche. It is not
that Peirce or Holmes or Nietzsche was a "Romantic" in a precise sense,
if there is such a sense. It is that they wished to shift attention from a
passive, contemplative relation between an observing subject and an
objective reality, whether natural or social, to an active, creative relation
between striving human beings and the problems that beset them and
that they seek to overcome. For these thinkers, thought was an exertion
of will instrumental to some human desire (and we see here the link
between pragmatism and utilitarianism). Social institutions-whether
science, law, or religion-were the product of shifting human desires
rather than of a reality external to those desires. Human beings had not
only eyes but hands as well.
Without going any further, we can see that "truth" is going to be a
problematic concept for the pragmatist. The essential meaning of the
1990] 1655
SOUTHERN CALIFORNIA LAW REVIEW [Vol. 63:1653
word is observer independence, which is just what the pragmatist is
inclined to deny. It is no surprise, therefore, that the pragmatists' stabs
at defining truth-truth is what is fated to be believed in the long run
(Peirce), truth is what is good to believe (James), or truth is what survives
in the competition among ideas (Holmes)-are riven by paradox.
The pragmatist's real interest is not in truth at,all, but in belief justified
by social need.
This change in direction does not necessarily make the pragmatist
unfriendly to science (there is a deep division within pragmatism over
what attitude to take toward science).7 But it shifts the emphasis in philosophy
of science from the discovery of nature's laws by observation to
the formulation of theories about nature that are motivated by the desire
of human beings to predict and control their environment. The implication,
later made explicit by Thomas Kuhn, is that scientific theories are a
function of human need and desire rather than of the way things are in
nature, so that the succession of theories on a given topic need not bring
us closer to "ultimate reality" (which is not to deny that scientific knowledge
may be growing steadily). But this is to get ahead of the story,
because I want to pause in 1921 and examine the formulation of legal
pragmatism that Benjamin Cardozo offered in his book published that
year, The Natureof the JudicialProcess.' Most of what Cardozo has to
say in this book (and elsewhere) is latent in Holmes's voluminous but
scattered and often cryptic academic, judicial, and occasional writings.
But the book is worthwhile and important as a clear, concise, and sensible
manifesto oflegal pragmatism and harbinger ofthe realist movement.
"The final cause of law," writes Cardozo, "is the welfare of society."9
So much for the formalist idea, whose scientistic provenance and
pretensions are evident, of law as a body of immutable principles. Cardozo
does not mean, however, that judges "are free to substitute their
own ideas of reason and justice for those of the men and women whom
they serve. Their standard must be an objective, one"-but objective in a
pragmatic sense, which is not the sense of correspondence with an external
reality. "In such matters, the thing that counts is not what I believe
to be right. It is what I may reasonably believe that some other man of
normal intellect and conscience might reasonably look upon as right."10
7. See, eg., Levi, Escape From Boredom: Edification According to Rorty, 11 CAN. J. PHIL.
589 (1981).
8. B. CARDozo, THE NATURE OF THE JUDICIAL PROCESS (1921).
9. Id. at 66.
10. Id. at 88-89.
1656
WHAT HAS PRAGMATISM TO OFFER LAW?
The thing that counts the most is that legal rules be understood in
instrumental terms, implying contestability, revisability, and mutability.
Few rules in our time are so well established that they may not be
called upon any day to justify their existence as means adapted to an
end. If they do not function, they are diseased. If they are diseased,
they need not propagate their kind. Sometimes they are cut out and
extirpated altogether. Sometimes they are left with the shadow of continued
life, but sterilized, truncated, impotent for harm.1
A related point is that law is forward-looking. This point is implicit in
an instrumental concept of law-which is the pragmatic concept of law,
law as the servant of human needs, and is in sharp contrast to Aristotle's
influential theory of corrective justice. That theory is quintessentially
backward-looking. The function of law as corrective justice is to restore
a preexisting equilibrium of rights, while in Cardozo's account "[n]ot the
origin, but the goal, is the main thing. There can be no wisdom in the
choice of a path unless we know where it will lead .... The rule that
functions well produces a title deed to recognition ....[T]he final principle
of selection for judges ... is one of fitness to an end."' 2 The "title
deed" sentence is particularly noteworthy; it is a rebuke to formalist theories
that require that for a law to be valid it must be "pedigreed" by
being shown to derive from some authoritative source.
Where does the judge turn for the knowledge that is needed to weigh
the social interests that shape the law? "I can only answer that he must
get his knowledge.., from experience and study and reflection; in brief,
from life itself."' 3 The judge is not a finder, but a maker, of law. John
Marshall "gave to the constitution of the United States the impress of his
own mind; and the form ofour constitutional law is what it is, because he
moulded it while it was still plastic and malleable in the fire of his own
intense convictions.'1
4
The focus of The Nature of the JudicialProcess is on the common
law, but in the last quoted passage we can see that Cardozo did not think
the creative powers of the judicial imagination bound to wither when
confronted by the challenge of textual interpretation. Although the selfdescribed
legal realists (from whom Cardozo, conscious of their excesses,
11. Id. at 98-99.
12. Id. at 102-03.
13. Id. at 113.
14. Id. at 169-70.
16571990]
SOUTHERN CALIFORNIA LAW REVIEW [Vol. 63:1653
carefully distanced himself)15 added little to what had been said by Cardozo
and before him by Holmes, a notable essay by Max Radin 16 clarifies
and in so doing emphasizes the parity of statutes and the common law.
Judges, it is true, are not to revise a statute, as they are free to do with a
common law doctrine. But interpretation is a creative rather than contemplative
task-indeed judges have as much freedom in deciding diflicult
statutory (and of course constitutional) cases as they have in
deciding difficult common law cases.
Yet, despite Radin's notable essay and the realists' salutary effort to
refocus legal scholarship from the common law to the emergent world of
statute-dominated law, legislation proved a challenge to which the realist
tradition, from Holmes to the petering out of legal realism in the 1940s
and its replacement by the legal process school in the 1950s, was unable
to rise. The trouble started with Holmes's well-known description of the
judge as an interstitial legislator, a description that Cardozo echoes in
The Nature of the JudicialProcess. The inplication is that judges and
legislators are officials of the same stripe-guided and controlled by the
same goals, values, incentives, and constraints. Ifthis were true, the judicial
role would be greatly simplified; it would be primarily a matter of
helping the legislature forge sound policy. It is not true. The legislative
process is buffeted by interest-group pressures to an extent rare in the
judicial process. The result is a body of laws far less informed by sound
policy judgments than the realists in the heyday and aftermath of the
New Deal believed. It is no longer possible to imagine the good pragmatist
judge as one who acts merely as the faithful agent of the legislature.
Indeed, the faithful-agent conception has become a hallmark of modem
formalism-judges as faithful agents despite the perversity of so many of
the statutes that they are interpreting.
A closely related failing of legal realism was its naive enthusiasm for
government, an enthusiasm that marked legal realism as a "liberal"
movement (in the modem, not nineteenth-century, sense) and is part of
the legacy of legal realism to today's neopragmatism. As strikingly
shown by the other papers and the comments and floor discussion at the
Symposium for which this Article was prepared, today's legal pragmatism
is so dominated by persons of liberal or radical persuasion as to
make the movement itself seem (not least in their eyes) a school of leftwing
thought. Yet not only has pragmatism no inherent political
15. See B. CARDOZO, Jurisprudence,in SELECTED WRITINGS OF BENJAMIN NATHAN CARDOZO:
THE CHOICE OF TYCHO BRAHE 7 (M. Hall ed. 1947).
16. See Radin, StatutoryInterpretation,43 HARV. L. REv. 863, 884 (1930).
1658
WHAT HAS PRAGMA TISM TO OFFERLAW? 1
valence, but those pragmatists who attack the pieties of the Right while
exhibiting a wholly uncritical devotion to the pieties of the Left (such as
racial and sexual equality, the desirability of a more equal distribution of
income and wealth, and the pervasiveness of oppression and injustice in
modem Western society) are not genuine pragmatists; they are dogmatists
in pragmatists' clothing.
Another great weakness of legal realism was the lack of method.
The realists knew what to do-think things not words, trace the actual
consequences of legal doctrines, balance competing policies-but they
didn't have a clue as to how to do any of these things. It was not their
fault. The tools of economics, statistics, and other pertinent sciences
were insufficiently developed to enable a social-engineering approach to
be taken to law.
I want to go back and pick up the thread of philosophical pragmatism.
When The Nature of the JudicialProcess appeared, John Dewey
was the leading philosopher of pragmatism, and it is his version of pragmatism
that is most in evidence in Cardozo's book and other extrajudicial
writings.17 Dewey continued to be productive for many years, but
until the 1960s there was little that was new in pragmatism. Yet much
that was happening in philosophy during this interval supported the
pragmatic outlook. Logical positivism itself, with its emphasis on verifiability
and its consequent hostility to metaphysics, is pragmatic in
demanding that theory make a difference in the world offact, the empirical
world. Popper's falsificationist philosophy of science is close to
Peirce's philosophy of science; in both, doubt is the engine of progress
and truth an ever-receding goal, rather than an attainment. The antifoundationalism,
anti-metaphysicality, and rejection of certitude that are
leitmotifs of the later Wittgenstein and of Quine can be thought of as
extensions ofthe ideas of James and Dewey. By the 1970s and 1980s, the
streams have merged and we have a mature pragmatism represented by
such figures as Davidson, Putnam, and Rorty in analytical philosophy,
Habermas in political philosophy, Geertz in anthropology, Fish in literary
criticism, and the academic lawyers whom I mentioned at the
outset. 18
17. I discuss the matter of Cardozo's pragmatism at greater length in my Cooley Lectures,
CARDOZO: A STUDY IN REPUTATION, to be published in the fall of 11990 by the University of
Chicago Press.
18. For good recent discussions of pragmatism from a variety of perspectives, see ANTiFOUNDATIONALISM
AND PRACTICAL REASONING: CONVERSATIONS BETWEEN HERMENEUTICS
AND ANALYSIS (E. Simpson ed. 1987); J. MARGOLIS, PRAGMATISM WrrHOUT FOUNDATIONS:
RECONCILING REALISM AND RELATIVISM, in 1 THE PERSISTENCE OF REALITY (1961); R. RORTY,
1990] 1659
SOUTHERN CALIFORNIA LAW REVIEW [Vol. 63:1653
There is little to be gained, however, from calling this recrudescence
of pragmatism the "new" pragmatism. That would imply that there
were (at least) two schools of pragmatism, each of which could be
described and then compared. Neither the old nor the new pragmatism
is a school. The differences between a Peirce and a James, or between a
James and a Dewey, are profound. The differences among current advocates
of pragmatism are even more profound, making it possible to find
greater affinities across than within the "schools"-Peirce has more in
common with Putnam than Putnam with Rorty, and I have more in
common (I think) with Peirce, James, and Dewey than I have with Cornel
West or Stanley Fish. What is more useful than to attempt to descry
and compare old and new schools of pragmatism is to observe simply
that the strengths of pragmatism are better appreciated today than they
were thirty years ago and that this is due in part to the apparent failure of
alternative philosophies such as logical positivism, but more to a growing
recognition that the strengths of such alternatives lie in features shared
with pragmatism, such as hostility to metaphysics and sympathy with
the methods of science as distinct from faith in the power of science to
deliver final truths.
If both the old and the new pragmatisms are as heterogeneous as I
have suggested, the question arises whether pragmatism has any common
core, and, ifnot, what use the term is. To speak in nonpragmatic terms,
pragmatism has three "essential" elements. (To speak in pragmatic,
nonessentialist terms, there is nothing practical to be gained from attaching
the pragmatist label to any philosophy that does not have all three
elements.) The first is a distrust of metaphysical entities ("reality,"
"truth," "nature," etc.) viewed as warrants for certitude whether in epistemology,
ethics, or politics. The second is an insistence that propositions
be tested by their consequences, by the difference they make-and
if they make none, set aside. The third is an insistence on judging our
projects, whether scientific, ethical, political, or legal, by their conformity
to social or other human needs rather than to "objective," "impersonal"
CONTINGENCY, IRONY, AND SOLIDARITY (1989); C. WEST, THE AMERICAN EVASION OF PHILOSOPHY:
A GENEALOGY OF PRAGMATISM (1989); Levi, supranote 7; PRAGMATISM: ITS SOURCES AND
PROSPECTS (R. Mulvaney & P. Zeltner eds. 1981); Putnam & Putnam, William James's Ideas, 8
RARITAN 27 (Winter 1989); RORTY, CONSEQUENCES OF PRAGMATISM (ESSAYS 1972-1980) 160-66
(1982); Rorty, The PriorityofDemocracy, in THE VIRGINIA STATUTE FOR RELIGIOUS FREEDOM:
ITS EVOLUTION AND CONSEQUENCES IN AMERICAN HISTORY 257 (M. Peterson &R. Vaughan eds.
1988). The work of the new legal pragmatists is illustrated by Farber, Legal Pragmatismand the
Constitution, 72 MiNN. L. REv. 1331 (1988); Grey, Holmes andLegal Pragmatism, 41 STAN. L.
REV. 787 (1989); Minow, The Supreme Court 1986 Term-Foreword: Justice Engendered, 101
HARv. L. REV. 10 (1987).
1660
WHAT HAS PRAGMATISM TO OFFERLAW?
criteria. These elements in turn imply an outlook that is progressive (in
the sense of forward-looking), secular, and experimental, and that is
commonsensical without making a fetish of common sense-for common
sense is a repository of prejudice and ignorance as well as a fount of
wisdom. R.W. Sleeper has helpfully summarized the pragmatic outlook
in describing Dewey's philosophy as "a philosophy rooted in common
sense and dedicated to the transformation of culture, to the resolution of
the conflicts that divide us."19 Also apt is Cornel West's description of
the "common denominator" of pragmatism as "a future-oriented instrumentalism
that tries to deploy thought as a weapon to enable more effective
action." 0
II.
It should be apparent that what I am calling the core of pragmatism
or the pragmatic temper or outlook is vague enough to embrace a multitude
of philosophies that are profoundly inconsistent at the operating
level (anyone who still doubts this after the examples I gave earlier would
do well to recall that Sidney Hook and Jiirgen Habermas are both distinguished
figures in pragmatic philosophy), including a multitude of inconsistent
jurisprudences. Indeed there is a serious question-the question
raised by the quotation from T.S. Eliot that is the epigraph of this Article-whether
pragmatism is specific enough to have any use, specifically
in law. To that question I devote the balance of the Article. I shall be
brief and summary; the reader is referred to my forthcoming book2 for
elucidation of the points that follow and for necessary references.
1. There is at least one specific legal question to which pragmatism
is directly applicable and that is the question of the basis and extent of
the legal protection of free speech. If pragmatists are right and objective
truth is just not in the cards, this may seem to weaken the case for providing
special legal protections for free inquiry, viewed as the only
dependable path to truth. Actually the case is strengthened. If truth is
unattainable, the censor cannot appeal to a higher truth as the ground for
foreclosing further inquiry on a subject; but the libertarian, in resisting
censorship, can appeal to the demonstrated efficacy of free inquiry in
enlarging knowledge. One can doubt that we shall ever attain "truth,"
but not that our knowledge is growing steadily. Even if every scientific
19. P. SLEEPER, THE NECESSITY OF PRAGMATISM: JOHN DEWEY'S CONCEPTION OF PHILOSOPHY
8-9 (1986).
20. C. WEsT, supra note 18, at 5.
21. See supranote 2.
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SOUTHERN CALIFORNIA LAW REVIEW [Vol. 63:1653
truth that we accept today is destined someday to be overthrown, our
ability to cure tuberculosis and generate electrical power and build airplanes
that fly will be unimpaired. The succession of scientific theories
not only coexists with, but in fact contributes greatly to, the growth of
scientific knowledge.
The pragmatist is apt also to be sympathetic to the argument that
art and other nondiscursive modes of communication, and the "hot"
rhetoric of the demagogue, and even of the flag or draft-card burner,
ought to be protected. The pragmatist doubts that there are ascertainable,
"objective" standards for establishing the proprieties of expression
and therefore prefers to allow the market to be the arbiter. It is a plausible
extension of Holmes's marketplace-of-ideas approach-an approach
that rests on a pragmatist rejection of the proposition that there are
objective criteria of truth.
2. The pragmatic outlook can help us maintain a properly critical
stance toward mysterious entities that seem to play a large role in many
areas of law, particularly tort and criminal law. Such entities as mind,
intent, free will, and causation are constantly invoked in debates over
civil and criminal liability. Tested by the pragmatic criterion of practical
consequence, these entities are remarkably elusive. Even if they exist,
law has no practical means of locating them and in fact ignores them on
any but the most superficial verbal level. Judges and juries do not, as a
precondition to finding that a killing was intentional, peer into the
defendant's mind in quest of the required intent. They look at the evidence
of what the defendant did and try to infer from it whether the deed
involved advance planning or other indicia ofhigh probability of success,
whether there was concealment of evidence or other indicia of likely
escape, and whether the circumstances of the crime argue a likelihood of
repetition-all considerations that go to dangerousness rather than to
intent or free will. The legal factfinder follows this approach because the
social concern behind criminal punishment is a concern with dangerousness
rather than with mental states (evil or otherwise), and because the
methods of litigation do not enable the factfinder to probe beneath dangerousness
into mental or spiritual strata so elusive they may not even
exist.
Similarly, while interested in consequences and therefore implicitly
in causality, the law does not make a fetish of "causation." It does not
commit itself to any side of the age-old philosophical controversy over
causation, but instead elides the issue by basing judgments of liability on
social, rather than philosophical, considerations. People who have
1662
WHAT HAS PRAGMATISM TO OFFER LAW?
caused no harm at all because their plans were interrupted are regularly
punished for attempt and conspiracy; persons may be held liable in tort
law when their acts were neither a necessary nor a sufficient condition of
the harm that ensued (as where two defendants, acting independently,
simultaneously inflict the harm, and only one is sued); and persons whose
acts "caused" injury in an uncontroversial sense may be excused from
liability because the harm was an unforeseeable consequence of the act.
The principle of legal liability can be redescribed without reference to
metaphysical entities such as mind and causation. This redescription is
an important part of the project of a pragmatic jurisprudence, although it
will not please those for whom law's semantic level is its most interesting
and important.
There is nothing new about endeavoring to puncture the law's metaphysical
balloons. It was a favorite pursuit of the legal realists. But they
did it with a left-wing slant. They were derisive of the proposition that a
corporation had natural rights, since a corporation is just the name of a
set of contracts. But they were not derisive of the idea of corporate taxation,
though, since the corporation is not a person, it cannot bear the
burden of taxation. The ultimate payors ofthe corporate income tax are
flesh-and-blood persons, by no means all wealthy, for among them are
employees as well as shareholders.
3. Pragmatism remains a powerful antidote to formalism, which is
enjoying a resurgence in the Supreme Court. Legal formalism is the idea
that legal questions can be answered by inquiry into the relation between
concepts and hence without need for more than a superficial examination
of their relation to the world of fact. It is, therefore, anti-pragmatic as
well as anti-empirical. It asks not, What works?, but instead, What rules
and outcomes have a proper pedigree in the form of a chain of logical
links to an indisputably authoritative source of law, such as the text of
the United States Constitution? Those rules and outcomes are correct
and the rest incorrect. Formalism is the domain ofthe logician, the casuist,
the Thomist, the Talmudist.
The desire to sever knowledge from observation is persistent and, to
some extent, fruitful. Armed with the rules of arithmetic, one can drop a
succession ofballs into an urn and, if one has counted carefully, one will
know how many balls there are in the urn without looking into it. Similarly,
if the rule of the common law that there are no nonpossessory
rights in wild animals can be thought somehow to generalize automatically
to the rule that there are no such rights in any fugitive natural
resource, then we can obtain the "correct" rule for property rights in oil
1990] 1663
SOUTHERN CALIFORNIA LAW REVIEW [Vol. 63:1653
and gas without having to delve into the economics of developing these
resources. The pragmatic approach reverses the sequence. It asks, What
is the right rule-the sensible, the socially apt, the efficient, the fair
rule-for oil and gas? In the course of investigating this question, the
pragmatist will consult the wild animal law for what,(little) light it may
throw on the question, but the emphasis will be empirical from the start.
There will be no inclination to allow existing rules to expand to their
semantic limits, engrossing ever greater areas of experience by a process
of analogy or of verbal similitude. The tendency of formalism is to force
the practices of business and lay persons into the mold of existing legal
concepts, viewed as immutable, such as "contract." The pragmatist
thinks that concepts should be subservient to human need and therefore
wants law to adjust its categories to fit the practices of the nonlegal
community.
4. The current bulwark oflegal formalism, however, is not the common
law, but statutory and constitutional interpretation. It is here that
we find the most influential modem attempts to derive legal outcomes by
methods superficially akin to deduction. The attempts are unlikely to
succeed. The interpretation of texts is not a logical exercise and the
bounds of "interpretation" are so expansive (when we consider that
among the verbal and other objects that are interpreted are dreams, texts
in foreign languages, and musical compositions) as to cast the utility of
the concept into doubt. Pragmatists will emphasize the role of consequences
in "interpretation," viewed humbly as the use of a text in aid of
an outcome. They will point out, for example, that one reason we interpret
the sentence "I'll eat my hat" as facetious is that the consequences of
attempting to eat one's hat are so untoward.
In approaching an issue that has been posed as one of statutory
"interpretation," pragmatists will ask which of the possible resolutions
has the best consequences, all things (that lawyers are or should be interested
in) considered, including the importance of preserving language as
a medium of effective communication and ofpreserving the separation of
powers. Except as may be implied by the last clause, pragmatists are not
interested in the authenticity of a suggested interpretation as an expression
of the intent of legislators or of the framers of constitutions. They
are interested in using the legislative or constitutional text as a resource
in the fashioning of a pragmatically attractive result. They agree with
Cardozo that what works carries with it the best of title deeds; they prefer
the sturdy mongrel to the sickly pedigreed purebred.
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Take the old jurisprudential chestnut, discussed briefly in The
Nature of the JudicialProcess,22
whether a "murdering heir" shall be
allowed to inherit. The wills statute allows testators who comply with
certain formalities to leave their property to whomever they please.
There is no exception for the eventuality in which the beneficiary named
in the will murders the testator. Should such an exception be interpolated
by the courts? The answer, to the pragmatist, depends on the consequences.
On the one hand, it can be objected that by interpolating an
exception the courts will relax the pressure on legislators to draft statutes
carefully and will violate the principle that legislatures rather than courts
prescribe the penalties for criminal behavior. On the other hand, there is
a natural concern that allowing the murderer to inherit will encourage
murder; a reluctance to pile more work on already overburdened legislatures;
and recognition that disinheriting the murderer is apt to fulfill,
rather than to defeat, the testator's intentions, which is the ultimate purpose
of the wills statute. A testator who foresaw the murder would not
have made the murderer a beneficiary under the will; so if no exception
to the wills statute is recognized, farseeing testators may decide to insert
express provisions in their wills disinheriting murdering beneficiaries.
The courts can save them the trouble by interpolating such a provision
by interpretation. All these consequences have somehow to be analyzed
and compared if the courts are to interpret the wills statute
pragmatically.
Further complicating the interpretive picture in general is our current
understanding of the legislative process, a more critical understanding
than reigned when Cardozo, the legal realists, and the realists'
successors in the legal process school wrote. We no longer think of statutes
as typically, let alone invariably, the product of well-meaning efforts
to maximize the public interest by legislators who are devoted to the public
interest and who are the faithful representatives of constituents who
share the same devotion. The wills statute can probably be viewed in
faithful-agent terms, but many other statutes cannot be. The theory of
social choice has instructed us about the difficulties ofaggregating preferences
by the method ofvoting, while the interest-group theory of politics
in the version revived by economists has taught us that the legislative
process often caters to the redistributive desires of narrow coalitions and,
in so doing, disserves the public interest, plausibly construed. Under
pressure of the insights of both theories it becomes unclear where to
22. The case is Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 (1889), and the discussion is in B.
CARrDozo, supranote 8, at 41-43.
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locate statutory meaning, problematic to speak ofjudges discerning legislative
intent, and uncertain why judges should seek to perfect through
interpretation the decrees of the special-interest state. The main choices
in "interpretive" theory that the new learning allows are either some version
of strict construction or a pragmatic approach in which, recognizing
the difficult and problematic nature of statutory interpretation, judges
use consequences to guide their decisions, always bearing in mind that
the relevant consequences include systemic ones such as debasing the
currency of statutory language by straying too far from it.
Mention of systemic concerns should help demolish the canard that
legal pragmatism implies the suppression of such concerns in favor of
doing shortsighted substantive justice between the parties to the particular
case.13
The relevant consequences to the pragmatist are long run as
well as short run, systemic as well as individual, the importance of stability
and predictability as well as the importance ofjustice to the individual
parties, and the importance of maintaining language as a reliable method
of communication as well as the importance of interpreting statutes and
constitutional provisions freely in order to make them speak intelligently
to circumstances not envisaged by their drafters.
5. Pragmatism has implications, some already sketched under the
rubrics of formalism and interpretation, for the theory of adjudicationof
what judges do and should do. Although professional discourse has
always been predominantly formalist, most American judges have been
practicing pragmatists, in part because the materials for decision in
American law have always been so various and conflicting that formalism
was an unworkable ideal.24 But after a bout of conspicuous judicial
23. An implication readers might draw from Dworkin's statement in Law's Empire that "the
pragmatist thinks judges should always do the best they can for the future, in the circumstances,
unchecked by any need to respect or secure consistency in principle with what other officials have
done or will do." R. DwoRKrN, LAW'S EMPIRE 161 (1986). This is an impoverished conception of
pragmatism, one that merges pragmatism with act utilitarianism.
24. Against the suggestion that "pragmatism provides the best explanations of how judges
actually decide cases," Dworkin argues that it "leaves unexplained one prominent feature ofjudicial
practice-the attitude judges take toward statutes and precedents in hard cases-except on the awkward
hypothesis that this practice is designed to deceive the public, in which case the public has not
consented to it." Id. Dworkin is inferring judges' attitude from the rhetoric ofjudicial opinions, and
this is perilous, because judges are not always candid and also because they often are not self-aware.
Even ifjudges are consistently and deliberately deceptive, this would not impair the soundness of the
pragmatic explanation ofjudicial behavior. Similarly, a lack of public consent would have nothing
to do with the explanatory power of the pragmatic explanation. The issue of consent is in any event
artificial, since judicial opinions are with rare exceptions written to be read by lawyers, not by lay
people, and have in fact virtually no lay readership. Since Dworkin knows all these things as well as
I do, I infer that his discussion ofjudicial behavior and legitimacy, like so much discussion in law, is
itself highly rhetorical.
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activism that lasted several decades, there is renewed interest in
approaches that favor continuity with the past over social engineering of
the future-approaches embraced by many quondam judicial activists
eager to conserve the work of the past decades against inroads by conservative
judges, and by many conservatives who believe that the judiciary
remains committed to liberal policies. There is renewed talk of
tradition, of embodied but inarticulate wisdom (embodied in precedent,
in professional training, in law's customary language), of the limitedness
of individual reason and the danger of precipitate social change. The
cautionary stance implicit in these approaches is congenial to the pragmatist,
for whom the historical record of reform efforts is full of sobering
lessons. But pragmatists are not content with a vague neotraditionalism.
They know it will not do to tell judges to resolve all doubts against
change and freeze law as it is, let alone to return to some past epoch in
legal revolution (1950? 1850?). As society changes, judges, within the
broad limits set by the legislators and by the makers of the Constitution,
must adapt the law to its altered environment. No version oftraditionalism
will tell them how to do this. For this they need ends and an awareness
of how social change affects the appropriate means-how, for
example, the coming of the telegraph and the telephone altered the conditions
for regulating contracts. They need, in short, the instrumental
sense that is basic to pragmatism.
6. This brings me to the question of the relation between pragmatism
and our most highly developed instrumental concept of law, the
economic. Among the recurrent criticisms of efforts to defend the economic
approach as a worthwhile guide for legal reform is that the
defenders have failed to ground the approach securely in one of the great
traditions of ethical insight, such as the Kantian or the utilitarian. The
criticism is sound as observation, but not as criticism. The economic
approach to law that I defend-the idea that law should strive to support
competitive markets and to simulate their results in situations in which
market-transaction costs are prohibitive-has affinities with both Kantian
and utilitarian ethics: with the former, because the approach protects
the autonomy of people who are productive or at least potentially so
(granted, this isn't everyone); with the latter, because of the empirical
relation between free markets and human welfare. Although it is easily
shown that the economic approach is neither deducible from nor completely
consistent with either system of ethics, this is not a decisive objection
from a pragmatic standpoint. Pragmatists are unperturbed by a lack
of foundations. We ask not whether the economic approach to law is
adequately grounded in the ethics of Kant or Rawls or Bentham or Mill
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or Hayek or Nozick-and not whether any of those ethics is adequately
grounded-but whether it is the best approach for the contemporary
American legal system to follow, given what we know about markets
(and we are learning more about them every day from the economic and
political changes in Communist and Third World countries), about
American legislatures, about American judges, and about the values of
the American people.
The economic approach cannot be the whole content of legal pragmatism.
Because it works well only where there is at least moderate
agreement on ends, it cannot answer the question whether abortion
should be restricted, although it can tell us something, maybe much,
about the efficacy and consequences of the restrictions. One value of
pragmatism is its recognition that there are areas of discourse where lack
of common ends precludes rational resolution; and here the pragmatic
counsel (or one pragmatic counsel) to the legal system is to muddle
through, preserve avenues of change, do not roil needlessly the political
waters. On a pragmatic view, the error of Roe v. Wade25 is not that it
read the Constitution wrong-for there are plenty of well-regarded decisions
that reflect an equally freewheeling approach to constitutional
interpretation-but that it prematurely nationalized an issue best left to
simmer longer at the state and local level until a consensus based on
experience with a variety of approaches to abortion emerged.
7. To those who equate economics with scientism and who consider
pragmatism the rejection of the scientistic approach to philosophy,2 6 my
attempt to relate the economic approach to pragmatism will seem perverse.
But scientistic philosophy-the attempt to construct a metaphysics,
a theory of action, an ethical theory, a political theory or what have
you that has the rigor and generality that we associate with the natural
sciences-is not at all the same thing as social science, which is the application
of scientific method to social behavior. Most pragmatists have not
disbelieved in the utility of scientific method. Quite the contrary, pragmatism
in the style of Peirce and Dewey can be viewed as a generalization
of the ethic of scientific inquiry--open-minded, forward-looking,
respectful of fact, willing to experiment, disrespectful of sacred cows,
anti-metaphysical. And this is an ethic of which law needs more. I am
not saying that the economic approach to law is rooted in or inspired by
25. 410 U.S. 113 (1973).
26. For a clear statement of this rejection, see Rorty, PhilosophyasScience, as Metaphor,and
as Politics,in THE INSTITUTION OF PHILOSOPHY: A DISCIPLINE IN CRISIS? 13 (A. Cohen & M.
Dascal eds. 1989).
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pragmatism, for in truth it is rooted in and inspired by a belief in the
intellectual power and pertinence of economics. But economic analysis
and pragmatism are thoroughly, and I think fruitfully, compatible.
8. There is renewed interest in the rhetoric of law.27 This may
appear to have nothing to do with pragmatism, but the appearance is
misleading. By making the concept of "objective truth" problematic, the
pragmatic distrust of foundations expands the range in which metaphor
and other forms of emotive argument may legitimately upset belief. In
Holmes's pragmatic metaphor of the marketplace of ideas, competing
theorists, ideologues, and reformers hawk their intellectual wares.
Knowing how important persuasion is in the market for goods and services,
we should not be surprised to find it playing a big role in the market
in ideas as well. We should expect change in law to be related not only to
politics and economics and not only to the correction of error, but also to
new slogans, metaphors, imagery, and other means of bringing about
changes in perspective.
III.
With muddling through offered as one method of pragmatic jurisprudence
(see point 6), one may wonder whether that jurisprudence has
progressed an inch beyond The Natureofthe JudicialProcess. Certainly
the essence of that jurisprudence is in Cardozo's book and indeed can be
found much earlier, though in a more elliptical form, in Holmes's writings,
especially "The Path of the Law."2 But there has been some progress
since 1921. Reviewing my eight items, we can see that Cardozo
had a solid pragmatic grasp of the weakness of formalism (point 3) and a
good pragmatic theory of adjudication (point 6), but free speech was not
an issue about which he was much concerned (point 1); the critique of
intention and causation (point 2) was less developed than it is today and
certainly less salient in Cardozo's thinking; he was uninterested in interpretation
and unrealistic about the legislative process (point 3); and he
was innocent of the economic approach to law as a self-conscious methodology
(point 6)-it did not exist in 1921, or indeed until half a century
later-but like most good common law judges he had intuitions of it.29
A closely related point is that the application of scientific method to law
27. See ILPOSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION 269-316 (1988),
and references therein.
28. Holmes, The Pathof the Law, 10 HARv.L. REv. 457 (1897).
29. Professor Landes and I discuss an example-Cardozo's decision in Adams v. Bullock, 227
N.Y. 208, 125 N.E. 93 (1919)--in W. LANDES & R. POSNER, THE ECONOMIC STRUCTURE OF TORT
LAW 97-98 (1987).
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lay in the future (point 7). Cardozo in his judicial opinions was very
much the rhetorician (point 8), but his essay on judicial rhetoric30 is a
disappointment--cute, civilized, but unanalytic.
Although pragmatic jurisprudence embraces a richer set of ideas
than can be found in The Nature ofthe JudicialProcessor "The Path of
the Law," one can hardly say that there has been much progress, and
perhaps in the nature of pragmatism there cannot be. All that a pragmatic
jurisprudence really connotes-and it connoted it in 1897 or 1921
as much as it does today-is a rejection of a concept of law as grounded
in permanent principles and realized in logical manipulations of those
principles, and a determination to use law as an instrument for social
ends. It signals an attitude, an orientation, at times a change in direction.
It clears the underbrush; it does not plant the forest.
30. B. CARDozo, Law andLiterature, in SELECTED WRITINGS OF BENJAMIN NATHAN CARDOZO:
THE CHOICE OF TYCHO BRAHE 339 (M. Hall ed. 1947).
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