Principled legal pragmatism: reconciling Posner and Dewey on law and democracy.

AuthorSorrell, Kory Spencer
PositionRichard A. Posner, John Dewey

Pragmatism helps us see that the dream of using theory to guide and constrain political, including juridical, action is just that--a dream. If political action is to be constrained, it must be by psychological, career, and institutional factors rather than by conversation leading to a moral or political consensus. We must accept the irreducible plurality of goals and preferences within a morally heterogeneous society such as that of the United States, and proceed from there. (1)

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  1. Introduction II. Posner's Pragmatic Liberalism III. The Logical Argument for "Deep" Democracy IV. A Critique of Putnam: Science, Rationality, and Moral Objectivity V. A Critique of Misak on Belief: Too Radical and Insufficiently Pragmatic VI. Dewey, Democracy and Institutional Reform VII. Conclusion I. INTRODUCTION

    In Law, Pragmatism and Democracy, Richard Posner defends a political theory that he calls "pragmatic liberalism." (2) Like all liberal theories, according to Posner, pragmatic liberalism rests on a particular understanding of both law and democracy: "representative democracy constrained by legality is what 'liberal state' means." (3) Posner opposes his conception of pragmatic liberalism to what he terms "deliberative liberalism," a form of liberalism sometimes associated with John Dewey. Deliberative liberalism, according to Posner, offers a view of judges as restrained by rules (its understanding of law) and elected officials as guided by reason (its understanding of democracy). (4) Deliberative liberalism is deeply aspirational, according to Posner; while it may be in some measure descriptively accurate, it is primarily a normative account, an argument for the kind of state we should have, and could have, under appropriate conditions (including suitable effort by citizens to meet their political responsibilities).

    Posner is deeply skeptical of this project because he has what he calls an "unillusioned understanding of human nature." (5) Invoking Darwin, Posner states that "human beings are merely clever animals," that "our intelligence is primarily instrumental rather than contemplative," and that "Darwin's picture of nature is bleak; it is dog eat dog in virtually a literal sense; the adaptionist process that produced us is genocidal." (6) "The problem of democracy," as Posner sees it, "is to manage conflict among persons who, often arguing from incompatible premises, cannot overcome their differences by discussion." (7) Pragmatic liberalism, therefore, sees voting and the action of elected officials as a matter of competitive interest. Skeptical of normative theory, particularly its ability to constrain elected officials through deliberation, it "emphasizes instead the institutional and material constraints on decisionmaking by officials in a democracy." (8)

    Both of these two pillars of Posner's liberal state--his view of legal pragmatism in law and his account of pragmatic liberalism--have been severely attacked. (9) Posner has made few converts and, if anything, has only further entrenched opposition to his "unillusioned" account. Unfortunately, Posner's style is often polemical, confrontational, and draws opponents away from appreciating his insights or incorporating his contribution into their accounts. Rather than opposing Posner in this article, I present both a thorough defense of his legal pragmatism against his strongest critics (who favor a more Deweyan approach) and seek to supplement it with principles drawn from the pragmatism of William James and John Dewey. To do so, I advance the following claims. First, Posner is correct to argue that there is no "logical argument" to support deliberative, or what is sometimes called deep, democracy insofar as this argument might apply to elected officials.

    One of Posner's central and most important insights is that American government, though perhaps (always) in need of adjustment, is a generally desirable and effective one. Arguments for what is often called, "epistemic democracy" are in some circumstances compelling--Posner accepts this view and argues for a diverse judiciary on its basis, for example--but there are limits imposed by institutional facts, that is, the cost of deep democracy in many contexts is too high, it is not feasible, or is simply undesirable (in light of other values). Defending Posner's claim requires taking on difficult philosophical arguments by leading contemporary pragmatists (including one of the preeminent philosophers of the 20th century, Hilary Putnam) and showing how these arguments fail. To accomplish this, I draw not only on resources in classical American pragmatism (on which Posner's opponents purport to rely), but also on very recent studies by Edward L. Glaeser and Cass R. Sunstein, thus providing Posner's position with both theoretical and empirical support.

    Second, Dewey's own view of political democracy (as opposed to "everyday" democracy) is much closer to Posner's account than Posner--and many self-described "Deweyans"--suppose. At the level that concerns Posner, (i.e. elected officials of large government) Dewey's view is hardly distinguishable from Posner's. The difference between Posner and Dewey is that Dewey used the term "democracy" to also propose social reform that goes well beyond government functions to a "way of life," one substantially described by his "renascent liberalism." (10) This is a moral account drawn from William James's pragmatic, pluralistic proposal for associated living that not only recognizes deep pluralism, but seeks to support it. "Democracy," in Dewey's view, is the striving collective struggle to realize as many personal and variously shared ideals as possible. (11) Dewey saw this ideal as reciprocally related with a democratically functioning state. Such liberalism requires government committed to the freedom and empowerment of individuals, and in turn depends on a liberal society to restrain and guide it by their demands. Dewey's proposal, far more modest than deliberative democrats propose, is both useful for purposes of encouraging pluralism and consistent with Posner's view of democracy as a political institution.

    Retaining a modest form of Dewey's view of everyday democracy allows one to see Posner's account and Dewey's as complementary, rather than incommensurable. (12) Posner provides precisely the kind of institutional insight needed to revise and refine a Deweyan understanding of Democracy as a way of life and as a criticism of current forms of democracy. Failure to incorporate Posner's insights, however, leaves a

    Deweyan account vulnerable to a danger Dewey railed against: fashioning ideals unconnected with the realities of existent conditions. Conversely, Dewey's account tempers Posner's view by providing a broader, more sanguine account of democratic participants. The reconstruction of personal habits and social customs through institutional reform suggest possibilities for improving everyday life in a pluralistic society.

    The pressing practical question is how to cultivate democratic reconstruction? And here again, Posner's insights are both helpful and continuous with the pragmatism of James and Dewey. Both James and Dewey sought reform not primarily through deliberation, but through institutional reform. As Posner insists, "[w]e must accept the irreducible plurality of goals and preferences within a morally heterogeneous society such as that of the United States, and proceed from there." (13) And proceeding from there--successfully, not just aspirationally--means discarding idealistic notions of democracy in favor of institutional and social arrangements that support a morally diverse community, the members of which are free (and empowered) to pursue their various forms of preferred living. James and Dewey were perhaps more sanguine about the potential of such reform than is Posner, and here perhaps James and Dewey provide a needed correction to Posner's excessive pessimism.

  2. POSNER'S PRAGMATIC LIBERALISM

    Posner identifies law and democracy as the "twin pillars" of any theory of the liberal state, but the bulk of his attention is devoted to criticism of deliberative liberalism and defense of his own pragmatic version of the liberal state (both theories are theories of democracy). (14) Posner argues that the relationship between "pragmatism" understood as a set of philosophical arguments about the nature of truth, knowledge, and abstract theory, on one hand, and as a left-leaning political vision associated with John Dewey, is merely an historical artifact of coincidence. (15) Posner provocatively states that pragmatism no more stands for a particular politics than the fact that Charles Lindberg, who came to stand for the "American First" movement, implies "there is something in flying a plane well that makes a person an isolationist." (16) And while Posner endorses a view that he describes as "everyday pragmatism," he dismisses the notion of deliberative liberalism ("political democracy conceived of as the pooling of different ideas and approaches and the selection of the best through debate and discussion") as hopelessly and perniciously utopian. (17) According to Posner:

    With half the population having an IQ below 100 ... with the issues confronting modern government highly complex, with ordinary people having as little interest in complex policy issues as they have aptitude for them, and with ... the pressures of competitive elections, it would be unrealistic to expect good ideas and sensible policies to emerge from the intellectual disorder that is democratic politics by a process aptly termed deliberative. (18) Posner therefore advocates a form of "elite" or "competitive" democracy, which he describes as "a method by which members of a self-interested political elite compete for the votes of a basically ignorant and apathetic, as well as determinedly self-interested, electorate." (19) The virtue of this method is that it is realistic. It...

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