Pragmatism

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PRAGMATISM

Pragmatism, generally considered to be our only indigenous school of philosophic thought, has profoundly influenced the development of American jurisprudence in the twentieth century. This influence is evident in a variety of legal settings, including the field of constitutional law, where debates over the proper interpretive role of the courts continue to focus upon issues first raised in a systematic way by the early philosophers of pragmatism, notably John Dewey.

The school of philosophical pragmatism emerged only in the late nineteenth century, but it is more deeply rooted in the American past than that date implies. Thus, we see in alexis de tocqueville's description of the American philosophical method a preview of what later became, in the works of Charles Peirce, William James, Dewey, and others, a schematically developed general theory: "To evade the bondage of system and habit, of family-maxims, class opinions, and, in some degree, of national prejudices; to accept tradition only as a means of information, and existing facts only as a lesson to be used in doing otherwise and doing better; to seek the reason of things for oneself, and in oneself alone; to tend to results without being bound to means, and to strike through the form to the substance—such are the principal characteristics of what I shall call the philosophical method of the Americans." In this account of philosophical temperament are the core elements of the reconstruction in philosophy that came to dominate constitutional discourse in the twentieth century: an instrumental approach to knowledge based upon a rigorous empiricism, a demystification of the past as a predicate for facilitating change, and an ethical orientation that finds in the application of a norm or concept the criterion of its value.

The emergence of the pragmatic movement in philosophy occurred at a critical juncture in American constitutional history. At a time when constitutional orthodoxy was embodied in the person of Justice stephen j. field, the appeal of pragmatic ideas to critics of the dominant view lay in the promise it held for achieving a congruence between law and the needs of a society undergoing rapid flux and transition. In place of a formalistic approach characterized by the derivation of absolute principles that are grounded in nature and from which constitutional conclusions can be deduced with certainty in support of social inequality, the pragmatists offered the prospect of deriving relative principles that are grounded in experience and from which constitutional conclusions of a tentative nature can be inductively assembled in support of a more egalitarian society. The application of pragmatism to constitutional reasoning supported the claim that law should not be an impediment to progress, that the Constitution was not a document embodying immutable principles but one whose meaning depended upon the circumstances of time and place.

In developing their legal theory, the pragmatists both drew on and rejected existing jurisprudential schools of thought. They were critical of the syllogistic process of legal reasoning that they found common to both the philosophical and analytical schools. In the application of ethical considerations by the natural rights theorists and in the abandonment of such considerations by the analytical positivists, they also found a similar detachment from the realities of the social situation. In the first case ethics was not grounded in experience, and in the second, reality was disorted by the failure to understand the ethical imperitives implied in experience. The object of the pragmatists was thus to establish an empirical jurisprudence that included a consciousness of the moral basis of law. The attraction of pragmatic philosophy was its potential for steering a middle course between the positivistic seperation of law and morality, on the one hand, and, on the other, the natural-rights fusion law and morality according to the standards derived outside of experience. Both extremes led to judicial potection of the status quo, the first by accepting the legitimacy of any existing legal arrangments and the second by freezing the law into a mold formed by metaphysical abstractions. Justice, for the pragmatists, was not to be defined a priori; nor was it identifiable with the will of the sovereign. Rather, it was to be defined "transactionally," emerging out of social experience as an end to be juridically achieved. Acceptance of this view by jurists would make it unnecessary to appeal to noncontextual sources, such as an absolute standard of right conduct embodied in the text of the Constitution.

The principal theorists of legal pragmatism, benjamin n. cardozo and roscoe pound, wrote most often about private law, but both maintained that their prescriptions applied equally well to constitutional law. Cardozo's "method of sociology" and Pound's "theory of social interests" were intended in part to translate the precepts of Dewey and James into jurisprudential terms of potentially transformative significance for the Constitution. In the case of Dewey, who had addressed himself to legal questions, the translation was fairly straightforward. In his account of the law, legal rules and principles were viewed pragmatically as "working hypotheses" whose validity was to be ascertained by their application in concrete situations. Dewey also held the work of the Founding Fathers to be much less the object of reverence than had traditionally been the case: "The belief in political fixity, of the sanctity of some form of state consecrated by the efforts of our fathers and hallowed by tradition, is one of the stumbling-blocks in the way of orderly and directed change; it is an invitation to revolt and revolution." Just as the antifoundationalist emphasis in contemporary philosophy—the denial that knowledge must be based upon certain objective truths—owes much to the work of the early pragmatists, so too does the currently popular disparagement of the doctrine of original intent in constitutional interpretation. Therefore, the contention that the Constitution embodies foundational principles of justice that reflect the original intentions of its Framers, is doubly problematic, and it carries minimal weight in the pragmatic account of constitutional interpretation.

The judge most often associated with philosophical pragmatism is oliver wendell holmes. jr. Although he occasionally criticized some of the formulations of pragmatists, his work as a Supreme Court Justice (as well as his extrajudicial writings) often manifested a pragmatic approach to the Constitution. More important, his opinions inspired many others whose interest in pragmatism had less to do with the philosophical skepticism that appealed to Holmes than with the social reform possibilities implicit in its method. For example, Holmes's opinion in missouri v. holland (1920) suggested that the needs of the twentieth century need not be held hostage to the assumptions of the eighteenth or nineteenth centuries: "The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago." His famous dissenting opinion in abrams v. united states (1919) expressed in one short sentence the essence of the pragmatic conception of the Constitution. The theory of the Constitution, Holmes said, was that truth would emerge in the marketplace of ideas; the document "is an experiment, as all life is an experiment." This view often led Holmes to advocate judicial self-restraint; but in time it came to express a sentiment that provided jurisprudential support for a more activist, socially engaged judiciary. The work of the warren court exemplified an important legacy of the pragmatists (especially Dewey): the increasing reliance by the judiciary upon social science evidence. Holmes's role in this development is suggested in an observation of his that Dewey, in the elaboration of his pragmatic philosophy, saw fit to quote: "I have had in mind an ultimate dependence of law [upon science] because it is ultimately for science to determine, as far as it can, the relative worth of our different social ends."

The pragmatic conception of the Constitution has generated considerable controversy. Criticism centers on two distinct but related problems. The first is that the importation of pragmatic ideas into the arena of constitutional interpretation inevitably leads to the abandonment of any meaningful distinction between judicial and legislative modes of decision making. This has the effect, it is claimed, of undermining the legitimacy of the Supreme Court, an unfortunate outcome rendered no less unfortunate by assertions about the enhanced quality of the Court's output. The second is that a pragmatic jurisprudence provides inadequate protection for constitutional rights. By effectively reducing self-evident and immutable truths to the level of tentative rules, pragmatic judges risk sacrificing fundamental rights on the altar of social expedience. If the Constitution is a document lacking fixed points of reference and thus deprived of meanings that are not simply contextual (that is, situated in the experience of changing historical moments), can it serve as guarantor of rights that are in their ultimate sense expressive of an unchanging human nature?

Gary J. Jacobsohn
(1992)