Law, Pragmatism, and Democracy.

• Author: Sullivan, Michael
• Position: Book Review

Law, Pragmatism, and Democracy. By Richard A. Posner. * Cambridge: Harvard University Press, 2003. Pp. 398. $35.00.

INTRODUCTION

"[P]ragmatist theory of law is, like much pragmatist theory, essentially banal." (1) So wrote Thomas Grey at the dawn of pragmatism's renaissance in legal theory. (2) Even Richard Rorty, the philosopher frequently credited with reviving pragmatism more generally, concurs) For Grey and Rorty, pragmatism is banal because it "is the implicit working theory of most good lawyers." (4) As Rorty writes, "Pragmatism was reasonably shocking seventy years ago, but in the ensuing decades it has gradually been absorbed into American common sense." (5)

Richard Posner could not agree more. For well over a decade, Posner has been the leading proponent of legal pragmatism. His latest book, Law, Pragmatism, and Democraey, is the most comprehensive account to date of his pragmatic vision of the law and democracy. Posner proclaims that "pragmatism is the best description of the American judicial ethos and also the best guide to the improvement of judicial performance--and thus the best normative as well as positive theory of the judicial role." (6) For Posner, pragmatic adjudication boils down to "reasonableness";(7) it is "[n]ebulous and banal, modest and perhaps even timorous--or maybe oscillating unpredictably between timorous and bold."(8)

Pragmatism could not ask for a more influential spokesperson. As Ronald Dworkin has noted, "Richard Posner is the wonder of the legal world." (9) Not only has he been the chief judge of the Seventh Circuit Court of Appeals, but he is also one of the most prolific and frequently cited legal scholars of our age. (10) Thus, Posner naturally occupies a position at the forefront of legal debates, and he has rapidly become the steward of pragmatism in the law.

A distinctly American brand of philosophy, pragmatism emerged at the turn of the twentieth century from thinkers such as Charles Peirce, William James, and John Dewey. Although they differed in many respects, classical pragmatists generally viewed philosophy as a tool to grapple with life's problems. (11) Pragmatists assessed the success of a philosophy not in terms of its correspondence to ultimate eternal truths, but based upon its usefulness as a practical tool to yield better, more satisfying experiences.

Following the classical pragmatists, Posner's account of pragmatism rejects philosophy as a method for securing unshakeable foundations for knowledge. Pragmatism, according to Posner, rejects the agenda for philosophy beginning with Plato, which is "the task of discovering by speculative reasoning the truths that would provide secure foundations for scientific knowledge and moral, political, and aesthetic beliefs."(12) Pragmatists recognize that knowledge is "local" and "perspectival" and is "shaped by the historical and other conditions in which it is produced." (13) Posner's pragmatism also evaluates proposals "by the criterion of what works," seeking "to judge issues on the basis of their concrete consequences for a person's happiness and prosperity." (14)

Yet beyond sharing these basic positions, Posner parts ways with the classical pragmatists. Posner concludes that he has "found little in classical American pragmatism or in either the orthodox or the recusant versions of modern pragmatic philosophy that law can use." (15) Therefore, Posner introduces what he calls "everyday pragmatism," which he contends "has much to contribute to law." (16) Everyday pragmatism is a "pragmatic mood," (17) in which "[t]he everyday pragmatist uses common sense to resolve problems." (18) As Posner understands it, pragmatism is a form of antifoundationalism that rejects formalism. In his book Overcoming Law, Posner writes that

[a]ll that a pragmatic jurisprudence really connotes--and it connoted it in 1897 or 1921 as much as it does today--is a rejection of the idea that law is something grounded in permanent principles and realized in logical manipulations of those principles, and a determination to use law as an instrument for social ends.(19) On this account, pragmatism is a relatively commonplace set of ideas and should hardly be shocking to the contemporary mind. Heavily influenced by pragmatism, legal realism largely succeeded in dispelling the formalist vision of the law as resting upon fixed and immutable principles. (20) Brian Leiter sums it up: "[A]s the clich6 has it ... 'we are all [legal] realists now...."' (21) Although pragmatism shares legal realism's antifoundationalism, pragmatism differs from realism, Posner argues, because it "lacks the political commitments of the realists and the crits." (22) Rather, "pragmatism is more a tradition, attitude, and outlook than a body of doctrine"; it is more of a mood than a substantive philosophy. (23) Posner insists that pragmatism has "no inherent political valence." (24)

Building upon his account of pragmatism, Posner goes on to discuss democracy. He rejects models of deliberative democracy that emphasize encouraging citizens to become involved in political life and engaged in discourse about the issues of the day. According to Posner, deliberative democracy, which he terms "Concept 1 democracy," is unrealistic because people will never display the civic-mindedness and interest necessary to engage in fruitful political discourse.(25) In contrast, he embraces the theory of democracy advanced by Joseph Schumpeter, which he terms "Concept 2 democracy," where elite leaders represent the people, who in turn remain largely disengaged from political life and function only as a check on egregious abuses of power. (26) According to Posner, Concept 2 democracy should be preferred to Concept 1 democracy on pragmatic grounds.

For the most part, Posner's theory of pragmatism has been attacked externally, mainly by theorists unsympathetic to pragmatism, such as Ronald Dworkin, David Luban, and many others. (27) While these critics staunchly disagree with his policy conclusions, and some criticize his account of pragmatism as overly vague or unclear, (28) Posner's theory remains largely unchallenged from within the pragmatic tradition. In this Review, we part company with those critics of Posner who attack his views from a philosophical position external to pragmatism. Instead, we contest Posner's account of pragmatism--and its relationship to elitist democracy--from within the pragmatic tradition. We contend that Posner's views are problematic not because they are pragmatic, but because they are often not pragmatic enough.

In Part I, we put Posner's account to the pragmatic test by examining its implications. We argue that Posner's pragmatism offers little help when it comes to evaluating and selecting ends, which is crucial for resolving legal and policy disputes. We suggest that this failure results from Posner's attempt to excise pragmatism's theoretical dimension. In Posner's hands, pragmatism stands for hard-nosed "common sense" and "reasonableness," rejecting what he views as pie-in-the-sky abstract theories of reform. But what passes for legal pragmatism in this "revival" and "renaissance" is often a brand of commonplace reasoning that is more complacent than critical. Many neopragrnatists are little more than realists who aim to account for current problems descriptively and empirically. Such accounts of pragmatism provide convenient straw men for critics to attack, while at the same time privileging entrenched institutions and the status quo.

In contrast, we return to the thought of the classical pragmatists to offer an alternative vision of pragmatism built primarily upon the ideas of John Dewey.(29) This account better integrates theory and practice and provides more meaningful guidance about the choice of ends. We contend that although Posner adopts many of the ideas of the classical pragmatists, he diverges in crucial ways that lead him to have internal inconsistencies with his own pragmatic commitments and to end up employing forms of reasoning against which the pragmatists strongly cautioned. Posner finds himself in this position because the pragmatic ideas upon which he founds his theory have far more potent and revolutionary implications than Posner is willing to entertain. Posner begins on the pragmatic path, but he will not commit to it fully, perhaps because pragmatism is anything but banal. When seen in its full colors rather than faded Posnerian pastels, pragmatism is radical. Its ideas unsettle many of the institutions and "realities" that Posner takes as given.

In Part II, we turn to Posner's theory of democracy. Surprisingly, in light of Posner's insistence that pragmatism has no political valence, Posner attempts to use pragmatism to reach his conclusion that Concept 2 democracy is normatively superior to Concept 1 democracy, a conclusion with deep political valences. We demonstrate that Posner's justification for Concept 2 democracy is not pragmatic, for it not only has inconsistencies with Posner's own version of pragmatism but also radically diverges from some of the most fundamental notions of the classical pragmatists. Having built his theory on pragmatic ideas, Posner must deal with their implications, which we argue undermine his theory of democracy. Additionally, we contend that pragmatism does have a political valence--one that links it more closely with Concept 1 democracy than Concept 2.

1. PRAGMATISM

   Posner has two goals in writing his book. He aims to explore the implications of pragmatism in law and to discuss the relationship between legal pragmatism and democracy. (30) The central thrust of pragmatism for Posner is the rejection of "pieties" and "conceptualisms." "Among the conceptualisms rejected are moral, legal, and political theory when offered to guide legal and other official decisionmaking." (31)

   Although acknowledging roots in a lineage of classical pragmatists and adopting many of the key ideas of these thinkers...