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

The renaissance of American pragmatism continues in new quarters, now among legal scholars, philosophers of law, and legal practitioners. Although the "pragmatism" on offer varies among advocates, and debate is vigorous, the parties agree that pragmatism has something valuable to say about law.¹ In Legal Pragmatism, Michael Sullivan draws on Peirce, James, and Dewey for a compelling, pragmatic approach to legal rights, judicial review, and social conflict. Tying legal theory and practice to Emerson's expansive vision of democracy, Sullivan argues that pragmatism can help realize a more democratic society through the deliberate reconstruction of social practice and institutions. The book is well organized and focused, clear and concise, compelling and quite timely. It deserves close reading, preferably in conjunction with other recent contributions to legal pragmatism by Beth Singer, Susan Haack, and Vincent Colapietro that also draw on classical pragmatism for inspiration.²

According to Sullivan, three obstacles block development of his legal pragmatism. The first is the widespread communitarian critique of individual rights. Communitarians believe liberalism has gone overboard, that "rights talk" reinforces atomistic individuality, and that the constant and pervasive invocation of rights in our society destroys conditions needed for genuine community (8). To further emphasize rights, therefore, would only be deleterious. Sullivan's response is refreshing. Instead of adding an epicycle to old arguments, he insists on close observation of how individual rights have been historically understood and implemented by the American judiciary. Sullivan shows that although rights are often extolled by courts, rhetoric does not match reality. In case after case, judges solemnly extol individual rights, then summarily curtail them. In Whitney v. California, for example, Justice Brandeis famously and eloquently invoked the founding fathers' conception of democracy to underscore the importance of free speech and assembly to liberty, happiness, and the health of good government. Brandeis nevertheless joined the court's opinion, which deemed state interests more important than Ms. Whitney's right to free speech, assembly, and association (11–12).³

Sullivan shows that this result—courts lip-serving rights in the very act of curtailing them—is common occurrence. In school cases involving rights to assembly, speech, and expression, for example, courts frequently subordinate students' rights to state interests and harshly limit their freedom of speech and expression (14–18). Thus case review reveals irony: while "rights talk" may be prevalent in our society and judicial system, "one now finds in practice anything but the rampant proliferation of absolute rights forecast by communitarians" (14). Sullivan concludes that we need more protection of individual rights, not less, and he believes embracing Emerson's vision of democracy and implementing pragmatic adjudication will help. Emersonian democracy "involves a commitment to the idea that individuals should judge for themselves," and judges should therefore "privilege those causes that empower individuals to choose for themselves" (13). Pragmatic adjudication encourages judges to focus on the specific context and purposes involved in social conflicts, helps them identify important rights issues, and enjoins judges to decide cases in ways that contribute to a more democratic future (25, 30). Sullivan concedes that debate will remain over which decisions empower individuals, but insists that this principle should guide our discussions and judges' decisions (13).

In chapter two, Sullivan responds to Ronald Dworkin, whose handling of pragmatism recalls to mind Dewey's opening line in Human Nature and Conduct: "Give a dog a bad name and hang him."⁴ Dworkin mostly complains that pragmatism has no respect for consistency or history because a pragmatist judge should always do the best he can for the future—"unchecked by any need to respect or secure consistency in principle with what other officials have done."⁵ Sullivan expertly dismantles Dworkin's criticism and various misrepresentations of pragmatism, showing that pragmatist judges do (or should) (a) highly value consistency, predictability, etc. as a means to securing other ends and (b) take history very seriously as the source of emerging values in the light of which current cases should be decided to secure a better...