Legal Pragmatism: Community, Rights, and Democracy

Introduction

[ ∞ ] Introduction In this book, I develop and set forth a pragmatic theory of rights in the context of a larger account of American law, judicial review, and democracy . My theory of rights is pragmatic in two important senses. First, it draws deeply on the pragmatism of classical American philosophers such as Charles Peirce, William James, and, above all, John Dewey. Second, it seeks to reconstruct the critical resources of this pragmatic philosophy to improve not just our legal theories but, above all, our legal practices—especially those which concern the scope of legal rights, the process of judicial review, and conflicts between individual and community interests. This is a large, important, and timely issue because of deep disagreements about these matters in American society coupled with intellectual paralysis about how to resolve these disagreements in intelligent ways. We are, for example, awash in the rhetoric of rights and in particular a≈rmations and denials of rights—from the right to health care or prescription drugs to the right to choice in public schooling; from the right to marriage and civil union to the right to a living wage; legal pragmatism [ ≤ ] from the rights of citizenship to the rights of illegal immigrants; and from the rights of our government in times of war and terror to the rights of prisoners. These issues are crucial, but we do not have a clear, critical, e√ective way to think about and respond to them. These same problems mark judicial review, the authority of the Supreme Court (or other courts) to review duly enacted laws and to strike them down when they violate provisions of the Constitution, such as the Bill of Rights. In the United States, courts may have this authority or power, but when is it legitimate or warranted to exercise this power? This question arises across a wide range of cases from a≈rmative action to the USA Patriot Act and from eminent domain to assisted suicide. Here too we lack a coherent, useful philosophical account of our practices and their alternatives. Finally, disagreements and disputes between individual interests and community interests are at a fever pitch. Battles over gun ownership and its restrictions, campus speech codes, zoning and property use laws, the privacy of communications, tax breaks for private corporations and companies, and the role of religion in politics and the public sphere are just a few of the many examples. In these cases, how are we to understand community, individualism, and the value and place of each within democracy? Any attempt to set forth a pragmatic theory of rights must begin with the roadblocks that obviously confront it. The first of these is the philosophy of communitarianism, a philosophy that in its several forms insists that any central focus on individualism and individual rights is a vestige of an outdated liberalism that now only undermines community interest and the real development of democracy in the United States. Communitarians ask a compelling question: Why should the rights of a lone individual trump the interests of the state or larger community? The communitarians claim that this focus on rights inevitably favors the individual over the community and allows able or lucky individuals to pursue their own private ends at the expense of the good of the community. This criticism has had a significant impact on rights far beyond the realm of those who identify themselves as communitarian. After setting forth the communitarian view, I demonstrate in chapter 1 how it depends upon an untenable dichotomy between the individual and the community. It turns out upon closer scrutiny that concern with community not only is compatible with concern for introduction [ ≥ ] individual rights, but also that concern with community actually requires concern for individual rights and development of a theory of rights. Pragmatism, since its inception, has undermined this community /individual dichotomy, along with many other dichotomies and dualisms. The results of chapter 1 immediately bring into focus a second major roadblock that confronts any pragmatic account of rights and law—the commonplace but mistaken view that pragmatism is inconsistent with rights. Many liberal theorists—most notably and most influentially legal theorist and philosopher Ronald Dworkin—have sought to answer the communitarian challenge and explain why an individual should prevail on claims of right against the state. They’ve focused especially on cases involving rights of free speech, free assembly , freedom of religion, privacy, and other cases which...