Radical Change, Legal Pragmatism, and Individual Paths to Progress

• Pages: 91-118
• Published date: 26 September 2006
• DOI: https://doi.org/10.1016/S1059-4337(06)39005-9
• Date: 26 September 2006
• Author: Michael Ilg

RADICAL CHANGE, LEGAL

PRAGMATISM, AND INDIVIDUAL

PATHS TO PROGRESS

Michael Ilg

ABSTRACT

This paper addresses the theory of legal pragmatism from the vantage of

evolutionary metaphor. Legal pragmatism tends to incorporate a progress

narrative with similarities to both evolutionary biology and classical eco-

nomics, in which social developments are thought to be determined by

competition among techniques and ideas. The difficulty with such com-

petitive views of social change is that they obscure the extent to which

successful solutions of the past – now the status quo – may be less adept at

meeting new and future problems. Drawing on the evolutionary and eco-

nomic variant theory of path dependence, it is argued that an assumption

that the best, most efficient technique always wins out unduly sanctifies

the present and inhibits awareness of unmet challenges. Ultimately, the

encouragement of social change and advancement would be more securely

located in the legal promotion of individual attempts at originality, rather

than an assumption that competition is constantly moving toward per-

fection.

The complexity of philosophy is not a complexity of its subject matter, but of our

knotted understanding.

– Ludwig Wittgenstein (1980)

Studies in Law, Politics, and Society, Volume 39, 91–118

Copyright r2006 by Elsevier Ltd.

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1016/S1059-4337(06)39005-9

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I

Arguably not since Newton’s Principa Mathematica has a scientific text

captured the imagination of social scientists to the extent of Darwin’s The

Origin of Species. Initially used to justify all manner of inequality and dep-

ravation with the hackneyed claim of ‘survival of the fittest,’ evolutionary

metaphors also came to symbolize a liberating receptiveness to change.

When taken up by the early pragmatists, evolution would inspire a uniquely

American philosophy, and an optimistic view to the open-ended social pos-

sibilities of American life. Under pragmatism, the practical expediencies

required in the here and now were to take priority over the ancient dilemmas

and fixed assumptions of the old world philosophies. The prospect of loos-

ening the hold of the past over the present provided by pragmatism has been

an appealing one for legal theorists.

In addressing a profession normally and willfully bound to the rule of the

past, or the government of the living by dead in Holmes famous words, legal

pragmatism has often contained an element of radicalism. Modern neo-

pragmatists who call for the approach to be used to challenge oppressive

legal institutions may be seen as continuing a radical strand that reaches

back through Critical Legal Studies (CLS) and legal realism to the early

legal pragmatists. This essay advises caution in these modern pragmatic

hopes. Legal pragmatism, though it may often glorify social change, can

never instigate it nor protect its possibility. In lacking a principled foun-

dation apart from what most people currently believe, legal pragmatism

tends to impose status quo beliefs in a Panglossian view that what exists

must be the best of all possibilities.

The latest legal reacquaitaince with pragmatism is limited in the same

fashion as Holmes early celebration of the ‘marketplace of ideas.’ As dem-

onstrated by an impasse in the work of Richard Rorty, who has arguably

done more than anyone to breath new life into pragmatism, (Williams, 1992)

the pragmatic vision of law as competing social beliefs endorses all change in

the past, while remaining silent on whether or how new change is to occur.

No matter how enlightened or well-meaning a pragmatist may be, and as

Rorty surely is, there is no independent key for triggering or encouraging

development. Of course, people may eventually believe differently, but until

that time the present is unduly sanctified by having won out over all that

came before. In drawing an analogy between legal pragmatism and eco-

nomic theory, perhaps the field most given to evolutionary metaphor, I wish

to accentuate the tendency of theories of competitive change to end up as an

MICHAEL ILG92