Legal Pragmatism: Community, Rights, and Democracy

Three. Posner’s Unpragmatic Pragmatism

[ ∂∫ ] t h r e e Posner’s Unpragmatic Pragmatism I am not the only one who has sought to extricate pragmatism from Dworkin’s charges that it makes a virtue of ignoring history. Richard Posner, who has been developing an account of pragmatism for well over a decade, has also come to pragmatism’s defense. Unfortunately , despite Posner’s spirited e√ort, endorsing his a≈rmative view of pragmatism would probably be worse for pragmatism than allowing Dworkin’s characterization to go unchallenged.1 Posner’s most comprehensive e√ort to develop his version of pragmatism is in his recent book, titled Law, Pragmatism and Democracy.2 He has two goals in writing this book: to explore the implications of pragmatism in law and to discuss the relationship between legal pragmatism and democracy.3 The central thrust of pragmatism for Posner is the rejection of ‘‘pieties’’ and ‘‘conceptualisms’’; ‘‘the pragmatist’s conception of human nature is unillusioned. Among the conceptualisms rejected are moral, legal, and political theory when o√ered to guide legal and o≈cial decisionmaking.’’4 Although acknowledging roots in a lineage of classical pragmatists posner’s unpragmatic pragmatism [ ∂Ω ] and adopting many of the key ideas of these thinkers, Posner breaks ranks, advocating a brand of pragmatism he calls ‘‘everyday pragmatism .’’5 Posner labels the contemporary philosophical tradition that has grown out of pragmatism as ‘‘orthodox’’ and concludes that ‘‘orthodox pragmatism has little to contribute to law at the operational level. It has become part of technical philosophy, in which few judges or practicing lawyers take any interest.’’6 The problem with orthodox pragmatism stems from a problem with philosophy more generally. Philosophy, for Posner, has little of use to say about legal and political issues. Therefore , ‘‘appeals to pragmatism to guide adjudication and other governmental action should largely be cut loose from philosophy.’’7 Moreover, it is foolish to expect judges or politicians to be schooled in philosophy .8 Posner goes on to critique Richard Rorty, John Dewey, and other theorists he labels as ‘‘recusant’’ pragmatists who hope to ‘‘enable philosophers to make a constructive contribution to the solution of practical social problems, including legal problems.’’9 Posner doubts the ‘‘feasibility of this quest.’’10 The problem, in short, is philosophy, and Posner attempts to skim o√ the top of pragmatism several of its key ideas and discards the rest as philosophical fat. The end product is ‘‘everyday pragmatism,’’ a leaner, more useful, more practical pragmatism. As Posner describes it: Everyday pragmatism is the mindset denoted by the popular usage of the word ‘‘pragmatic,’’ meaning practical and business-like, ‘‘nononsense ,’’ disdainful of abstract theory and intellectual pretension, contemptuous of moralizers and utopian dreamers.11 According to Posner, ‘‘[e]veryday pragmatists tend to be ‘dry,’ nononsense types. Philosophical pragmatists tend to be ‘wets,’ and to believe that somehow their philosophy really can clear the decks for liberal social policies, though this is largely an accident of the fact that John Dewey was a prominent liberal.’’12 Pragmatism’s ‘‘core is merely a disposition to base action on facts and consequences rather than on conceptualisms, generalities, pieties, and slogans.’’13 Posner observes that pragmatism ‘‘is not hostile to all theory. . . . [just] to the idea of using abstract moral and political theory to guide judicial decisionmaking.’’14 The pragmatist ‘‘being unconcerned with maintaining law’s conceptual autonomy and formalist pretensions, is more open to invasions of law from other provinces of thought than a legal pragmatism [ ∑≠ ] more conventional legal thinker would be.’’15 Thus, ‘‘theories that seek to guide empirical inquiry are welcomed in pragmatic adjudication.’’16 Although the pragmatist is open-minded to insights from a variety of disciplines, she should be wary of philosophy, which for Posner is little more than ‘‘intellectual pretension’’ that isn’t helpful in grappling with legal and policy issues.17 Therefore, the Posnerian pragmatist should reject philosophical theory as having no role to play in the law. Posner argues that ‘‘academic philosophy’’ is ‘‘a field that has essentially no audience among judges and lawyers—let alone among politicians—even when philosophy is taken up by law professors . . . who think it should influence law.’’18 Legal pragmatists reject ‘‘abstract theorizing of which professors of constitutional law are enamored, in which decisions are evaluated by reference to abstractions common in law talk such as fairness, justice, autonomy, and equality.’’19 Further, Posner argues, when pragmatists examine a constitutional issue, such as ‘‘whether...