Legal Pragmatism: Community, Rights, and Democracy (review)

American pragmatism has had considerable influence on philosophical thought over the course of the past century. Although pragmatism’s focus, in the hands of those following in the tradition of William James and John Dewey, has been on solving social problems by concentrating on the practical consequences of knowledge, belief, and action, pragmatism has had only a limited impact in one important domain of social practice—the law. Legal realism, as a distinctive and dominant American jurisprudence developed during the first half of the twentieth century, shares affinities with pragmatism. Legal realism, like pragmatism, eschews natural or transcendent notions of law and focuses instead on the practical elements of actual legal and judicial practice as they are embedded in social institutions, ideologies, beliefs, and practices. As Justice Oliver Wendell Holmes noted, the fallacy is to think “that the only force at work in the development of the law is logic” (“The Path of the Law,” Harvard Law Review 10 [March 1897]: 465). Even though in an important sense we are all legal realists now, legal realism, having unmasked myriad ways in which legal practice functions in everyday experience, has not offered positive grounds for the critical reconstruction of law. Michael Sullivan’s book brilliantly fills this gap by demonstrating how pragmatism helps us understand and solve practical problems in law and legal theory. Moreover, Sullivan offers a robust account of legal pragmatism that avoids both the banal commonsense version of pragmatism offered by Judge Richard Posner and the chastened vision of pragmatism offered by Richard Rorty.

Sullivan’s book provides a pragmatic defense of rights that focuses on how we “understand community, individualism, and the value and place of each within democracy” (2). Because rights understood pragmatically are “self-conscious, social efforts to foster individual growth” (98), law itself becomes a social tool that can enable individuals to realize their capacity to participate in the construction of shared community structures. In American legal practice, we often turn to judges and courts to vindicate rights claims against overreaching majorities. This practice, however, creates an apparent paradox. Although we prize democratic decision making, we employ rights claims before unelected federal judges in order to override decisions made by majorities, creating what Alexander Bickel first identified as the “counter-majoritarian difficulty.” This nettlesome “difficulty” requires an account of the role of judicial review in a democratic society.

Amplifying a solution articulated by Bruce Ackerman, Sullivan develops an account of “American democratic subjectivity” (105) to argue that once we recognize that the present is always historically and contextually situated, we expect judicial practice to do more than fulfill the wishes of present democratic majorities. The “we” constituted as “We the People” must continually engage in the process of “working out the question of our own self-constituting and becoming” (108). As the ultimate legal authority on matters of constitutional self-description, the Supreme Court regularly confronts contrasting narratives and histories about our democratic subjectivity. When the Court provides a particular account of this subjectivity, “we” can always mobilize as disaffected communities to challenge the description of who we are or have become. Thus, when the Court overrides a piece of majoritarian legislation, it does not do so on the basis of some narrow ideal of who a present majority happens to be; rather, as Sullivan argues, the Court engages in an intertemporal conversation that asks each participant to reflect on the values and identities at stake and to offer historically situated alternatives to what constitutes this broader democratic subjectivity. Within this conversation, the central questions are those at the heart of any pragmatist project addressing, in Dewey’s terms, “the public and its problems”: how to “facilitate ever-greater self-expression and self-actualization of individuals” (28) by empowering “intelligent decisionmaking within the present community by rendering the . . . past explicit while laying out possible futures” (117).

Sullivan’s pragmatic solution is both simple and elegant. Recognizing that...