In recent years the school of philosophy known as pragmatism has enjoyed a renaissance in legal thought. This renewal of interest can be traced to several factors, including the critical legal studies movement's radical critique of the notion that legal rules are neutral and apolitical; the work of feminists and postmodernists who stress the importance of situated experience in influencing our perceptions of reality; and interdisciplinary approaches to law such as law and economics theory, which contest the traditional view of law as an autonomous discipline. Though they differ in many particulars, these various movements within contemporary jurisprudence lead to an important question: If law does not consist of a set of immutable principles waiting to be discovered, and if our notions of truth are (to some degree) socially constructed, then how should judges and other decisionmakers choose among various competing alternatives? In the view of some scholars, pragmatism provides a coherent response to this question, as well as a method for charting a middle course between the traditional model of law as a neutral, self-contained enterprise and the nihilistic view of law as nothing more than politics by other means.
Although contemporary legal pragmatists comprise a diverse group of scholars, falling along all segments of the political spectrum, most share a few core beliefs. First, most pragmatists agree that human knowledge is contextual, meaning that each of us views the world in light of the constraints imposed upon us by such factors as prior experience, culture, and language. The premise that knowledge is contextual in turn suggests, as Richard Warner writes in his description of legal pragmatism, that there is no external standard for evaluating our norms, but rather that "our norms of justification neither have nor need a ground outside themselves." Pragmatists therefore reject the concept known as "foundationalism," what Thomas Grey refers to as "the age-old philosopher's dream that knowledge might be grounded in a set of fundamental and indubitable beliefs." Viewing knowledge as antifoundational suggests, as Richard Rorty notes in discussing the thought of John Dewey, that law and other human institutions are best viewed not as "attempts to embody or formulate truth or goodness or beauty, but rather as instruments for solving problems." Thoughtful pragmatists, however, are careful to avoid equating pragmatic instrumentalism with utilitarianism. As Grey observes, pragmatists in the tradition of Dewey reject a sharp distinction between ends and means, claiming instead that the means we choose to implement our goals are never completely instrumental, but rather must be judged "by their intrinsic satisfactions or frustrations as well as by their consequences."
Adherence to these principles compels most legal pragmatists to reject attempts to ground the law in comprehensive "grand theories" and to reject the formalist ideal that correct outcomes can always be logically deduced from some overarching set of principles. Many pragmatists instead advocate the use of "practical reason," which Richard Bernstein describes as a way of mediating "between general principles and a concrete particular situation" through choice and deliberation. The term "practical reason" is not easily defined but, according to various formulations, denotes methods for reaching decisions based on, inter alia, an appreciation of consequences; a commitment to dialogue among competing views; and a grudging respect for "common sense" coupled with skepticism over what Joseph William Singer refers to as "unreflective reliance on commonsense intuitions."
The specific policy recommendations of legal pragmatists vary depending on their perception of the outcomes suggested by practical reason. More conservative pragmatists tend to stress the instrumental value of adherence to such socially constructed norms as fidelity to text, history, and judicial deference to other branches of government. Others take a more radical approach, arguing that a commitment to human flourishing (itself a norm that we are free to accept or reject) counsels in favor of paying closer attention to the voices of the marginalized and oppressed, whose perspectives often go unnoticed by more traditional approaches. Some pragmatists argue in favor of a greater reliance on the insights provided by the sciences, including the social sciences, while others remain skeptical.
Critiques of legal pragmatism come from many quarters. Those who find natural law or rights-based approaches to jurisprudence compelling take issue with the pragmatists' view of rights as a contingent (albeit useful) human construct. Stanley Fish argues that once pragmatists claim that specific policies "[follow] from the pragmatist account" they betray their "own first principle (which is to have none)." Still others argue that, at a general level, pragmatism consists of nothing but platitudes; and that, at the particular level, the wide divergence of opinion among pragmatist scholars suggests that pragmatism ultimately has nothing distinctive to say about law. From the pragmatic perspective, the response to these critiques is that the proof is in the pudding. If, as William James observed, the truth of a proposition resides in its consequences, then the "truth" of the pragmatic approach to law depends on its effects. Put another way, pragmatists ask that their methodology be judged by this simple standard: Does it work?
Thomas F. Cotter
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