Legal Pragmatism: Community, Rights, and Democracy

Four. Toward a Reconstructive Pragmatism

[ πΩ ] f o u r Toward a Reconstructive Pragmatism In defending a pragmatic approach to rights against the charges of Dworkin (for example, that pragmatists ignore precedent), and in seeking to distinguish Dewey’s pragmatic reconstruction of values from Posner’s abdication of criticism, we also began to consider more general themes of a pragmatist jurisprudence. Building on the work of John Dewey, I argued that like rights, the law itself needs to be understood as a social tool oriented toward the cultivation of conditions conducive to individual growth. In this chapter, I would like to continue to develop that jurisprudence, but in dialogue with less obvious enemies. Many regard Richard Rorty and Stanley Fish as contemporary proponents of a pragmatist philosophy of law. As we shall see, however, they deprive pragmatism of its critical edge and therefore rob jurisprudence of pragmatism’s greatest potential contribution, namely, a reconstructive approach to philosophy of law. In place of their deflationary positions, I o√er a more Deweyan approach to questions concerning the nature of law, rights, and judicial review. Richard Rorty famously employed pragmatism to undermine tra- legal pragmatism [ ∫≠ ] ditional philosophical projects of epistemology. Instead of focusing on our needs for certainty and truth, Rorty encouraged us to focus on the edifying e√ects of expanding the ‘‘conversation of mankind.’’ In his more recent work, he has gone further, suggesting that the focus on justification also shares many of the vices revealed in our obsession with certainty and truth. In light of this, he has recommended shifting focus from inquiry and reconstruction to poetic inspiration. This move comes in concert with increasing interest in developing the connection between law and literature. It might be thought, in light of Dworkin and Posner, that the pragmatic approach to theory and practice was so radical that it no longer makes sense to consider pragmatism a theory. Rather than look to theoretical engagement as a means for provoking improved practice , perhaps we should seek our inspiration elsewhere—such as in the visions of strong poets. The problem with this approach, which eschews critical reconstruction for redescription, is that it capitulates too quickly when the going gets tough. There’s no reason to think that the projects of strong poets, however inspiring they are for projects of private self-creation, can be successful absent work on strengthening communities. The origin of Dewey’s philosophy can be found in the rejection of the conception of philosophy that does not take the situation of philosophical inquiry seriously. Anthony Kronman holds a view of philosophy of the sort Dewey rejects. Kronman, in his 1990 article titled ‘‘Precedent and Tradition,’’ claims that genuine philosophy must transcend temporal boundaries and approach problems from a timeless point of view: When I am engaged in philosophical thought about a problem in metaphysics or epistemology, I am thinking about the problem from a timeless point of view, from the standpoint, so to speak, of eternity. This point of view is the same tenseless ‘‘now’’ from which Plato and every other philosopher who has ever lived conducted their inquiries as well—at least when they were engaged in philosophy and not the ordinary business of living.1 The aim of Dewey’s reconstructive critical philosophy could not be more at odds with this view. For Dewey, the problems we encounter are tied up with meanings that have developed over time. When we toward a reconstructive pragmatism [ ∫∞ ] worry about justice, beauty, and the good, we engage in a dialogue that is rich with historical contributions and provoked by the challenges of contemporary experience. These problems appear to us the way they do not because they are eternally the same, but because we encounter them in di√erent forms in our day-to-day experience, turning to reflection to help us sort matters out. And not only are the problems mediated through time, but the methods of approaching them are equally time bound. There is no stepping out of the ordinary to some special philosophical realm. By contrast, Kronman views philosophy as a special discourse that exists outside of the ordinary business of living. When we philosophize , we rise above the details of the ordinary. Dewey insists, on the contrary, that the true test of a philosophy is its very ability to contribute to the improvement of ordinary experience out of which the problems properly arise.2 One explanation Dewey o√ers for...