Legal Pragmatism: Community, Rights, and Democracy

Six. Pragmatism, Genealogy, and Democracy

[ ∞∞∏ ] s i x Pragmatism, Genealogy, and Democracy A pragmatic approach to philosophy of law is one that understands itself as part and parcel of existing political conversations about the nature and ends of the polis. Whereas Dewey would talk about ‘‘the public and its problems,’’ I have suggested, given a pragmatic reading of Ackerman, that one should view the addressee of much contemporary legal theory in terms of what I call American democratic subjectivity. As we saw in chapter 5, a more nuanced understanding of our American democratic subjectivity provides an escape to the countermajoritarian di≈culty classically conceived. It denies what the countermajoritarian di≈culty presupposes, namely that remaining true to democracy is simply a matter of remaining faithful to majorities. Rather, our American democratic subjectivity embodies the aims of citizens expressed across a historically extended period. It understands the population of democratic citizens not with reference to a count of citizens at a single point in time, but with reference to how that popula- pragmatism, genealogy, and democracy [ ∞∞π ] tion has expressed itself through popular votes and the actions of its representatives and institutions across a significant stretch of time. The import of this analysis, however, is not simply that it avoids the counter-majoritarian di≈culty and the related problems of paternalism in a pragmatic defense of rights. More importantly, it underscores how legal philosophy participates in democratic decisionmaking writ large. Dewey writes in The Public and Its Problems: The strongest point to be made in behalf of even such rudimentary political forms as democracy has already attained, popular voting, majority rule and so on, is that to some extent they involve a consultation and discussion which uncover social needs and troubles.1 Through its genealogical expositions of American democratic subjectivity , a pragmatist philosophy of law renders explicit social needs and the various legal remedies designed to meet them, thereby enabling the democratic public to systematically confront and reflect upon who it has become through the recent past. Such practices of social memory are not merely nostalgic, however. Rather they enable the democratic public to self-consciously decide whether or not to continue with its prevailing trajectory or whether a new course of action is required. Just because a pragmatic philosophy of law facilitates public inquiry and debate, one should not think that it remains disinterested. Its genealogies always proceed with an eye oriented toward realizing particular futures, thus closing the gap between legal theory and practice that so often plagues the philosophy of law. Pragmatist arguments about legal theory are forms of practice that participate within the larger dialogue about our present American democratic subjectivity. Historically self-conscious and politically engaged, the pragmatist insists that legal theory needs to understand itself as a participant in democratic dialogue about who we have been, who we are, and who we should become. On the one hand, the legal pragmatist does not make authoritative announcements concerning her vision of the good life, then seek to enforce that account through legislation. On the contrary, she understands herself as trying to empower intelligent decisionmaking within the present community by rendering the legal past explicit while laying out possible futures. In contrast to Kronman’s account of legal pragmatism [ ∞∞∫ ] philosophizing as his engagement with the eternal, when the pragmatist thinks about what she is doing as a legal philosopher, she recognizes that she is participating in dialogue about how we should deploy legal concepts in the context of our American democratic subjectivity. She realizes her activity is part and parcel of a democratic process and not outside of it. She can contribute to that process by o√ering a richer understanding of the present democracy to the interlocutors and by helping facilitate intelligent formation of the community will. Viewed generally then, this book has been concerned with developing a pragmatic orientation to law in general. For the pragmatist, however, general orientations are always informed by particular engagements . I attempted to exemplify this reflective approach to inquiry in chapter 1 by intervening in the current communitarian debate over rights. If one looks at that engagement, one can see why it is pragmatic. First, it responds to existing conversations and the needs of the present that emerge therein. It does not begin with an inquiry into the nature of rights per se in order to deduce the policies that should follow logically from that concept. Instead, my inquiry commenced with...