[H]ow quickly the visions of genius become the canned goods of intellectuals--Saul Bellow (1)
As you probably noticed, my title is ambiguous--deliberately so, because my purpose here is twofold: to teach legal theorists something of the pragmatist tradition in philosophy, its history, its character, and its content; and to suggest some of the ways in which the intellectual resources of that tradition can enhance our understanding of the law. And as you probably also noticed, my opening quotation is two-sided--again, deliberately so, because I hope to achieve two things: to convey some sense of the rich potential of classical pragmatism to illuminate issues in legal theory; and to reveal something of the poverty and crudeness of the caricatures of pragmatism that, sadly, seem to be as common in legal circles as they are in the philosophical mainstream.
Some of you may suspect that I've already set out on the wrong foot. Isn't pragmatism, after all, inherently anti-theoretical (2)--and doesn't that mean that both my title, and my project, must be misconceived? Not at all. Perhaps the misconception results from a confusion of the ordinary-language meaning of "pragmatism" ("a practical approach to problems," (3) "dealing with matters with respect to their practical consequences," (4) concern for political or practical expediency rather than principle) (5) with its specialized philosophical meaning; perhaps it results from a confusion of the regular use of "theory" with its recent specialized use by legal scholars to refer to systematic prescriptions about how the law should be interpreted. But whatever the reason, the idea that pragmatism (in the philosophical sense) is hostile to theory (in the regular sense of "explanatory account") is way off the mark. The philosophers of the classical pragmatist tradition were in no way anti-theoretical; neither was legal pragmatist Oliver Wendell Holmes--who believed, on the contrary, that "we have too little theory in the law rather than too much"; (6) and neither, of course, am I.
However, the usual fare of analytic legal theory--all too often preoccupied with its own internecine disputes, and operating at such a dizzyingly high level of generality and abstraction that it fails to engage with any actual legal system in its particularity--is, to my way of thinking, too thin, too bloodless, and too idealized; (7) and the usual fare of recent legal Theory-with-a-capital-T--focused in large part on the idea that law should be viewed through the lens of race, gender, etc.--too narrow, too parochial, and too politicized. Pragmatist legal theory offers us something better than either. Unlike analytic philosophy, pragmatism invites us to focus, not exclusively on our language or our concepts, but on the world; and so, in the legal sphere, not exclusively on the concept of law but on the phenomenon of law--law as embodied in real legal systems. And, unlike recent capital-T legal Theory, pragmatist legal theory aspires not to prescribe how the law should be interpreted, but to suggest how to understand the origin, the evolution, and the functions of the myriad legal systems of the world.
Of course, it's quite impossible, in one short paper, to give anything like a full account either of the history of the pragmatist tradition in philosophy, or of the insights the ideas of that tradition might offer to legal theory--let alone to do both. Here, the relatively modest goal is, first, to sketch the origins and evolution of pragmatism in enough detail to convey some sense both of the predilections and attitudes that the old pragmatists shared, and of the enormous variety of their ideas (Part I); then, to explore Oliver Wendell Holmes's and other legal thinkers' role in this story (Part II); next, to look briefly at how some influential forms of neo- or, more exactly, pseudo-pragmatism have distorted our understanding, and weakened our appreciation, of this tradition (Part III); and finally to articulate some of the lessons those old pragmatists might teach us about the scope and the growth of law (Part IV).
ORIGINS AND EVOLUTION
According to Charles Sanders Peirce's much later reminiscence, it all began in the early 1870s with "a knot of ... young men in Old Cambridge," in meetings of what they called, "half-ironically, half-defiantly, 'The Metaphysical Club.'" (8) It was a remarkable group, (9) and a very mixed one. Three of its members--Joseph Warner, who was still a student, and two attorneys, Nicholas St. John Green and Oliver Wendell Holmes--were involved in the law. Other members included Unitarian clergyman Francis Ellingwood Abbot; historian John Fiske; Chauncey Wright, who was working on the application of the theory of evolution to psychology; (10) William James, trained as a physician, but at this time "nursing his health and reading [Charles] Renouvier"; (11) and Peirce, trained in chemistry, who was working for the U.S. Coastal Survey and had lectured on logic at Harvard and the Lowell Institute. (12)
The Metaphysical Club was the birthplace of pragmatism. But pragmatism was nothing like an official ideology to which all the participants subscribed; rather, it was a distinctive way of tackling philosophical questions, a method that emerged from the discussions at meetings of the group, especially the discussions between Peirce and James. It was Peirce who articulated the key idea, the Pragmatic Maxim of meaning: empirical concepts, from the relatively familiar and simple, such as hardness, to the much more difficult, such as force, truth, and reality, need to be understood by reference to the experiential or "pragmatic" consequences of their applying. But when, several years later, Peirce first put these ideas in print, (13) he deliberately avoided using the word "pragmatism" (14)--as he later wrote, he dared not use it, because the specialized sense he gave the term was so far removed from its usual meaning at that time (15) (and also, no doubt, because that usual meaning, now obsolete, was distinctly pejorative: "officious meddlesomeness"). (16) It would be twenty years before James first used the word "pragmatism" in public in its specialized, philosophical sense; (17) and it would be James, not Peirce, who started the pragmatist movement in philosophy.
Peirce had emphasized, (18) and James agreed, (19) that pragmatism is not a body of doctrine, but a method: a distinctive way of doing philosophy rather than a philosophical creed or list of theses or theories to which every card-carrying pragmatist must subscribe. And this conception of pragmatism as method was also implicit in the work of John Dewey and George Herbert Mead, who would carry the tradition forward. "No particular result then ..., but only an attitude or orientation, is what the pragmatic method means," James wrote in 1907:
As the young Italian Papini has well said, [pragmatism] lies in the midst of our theories, like a corridor in a hotel. Innumerable chambers open out of it. In one you may find a man writing an atheist volume; in the next someone on his knees praying for strength and faith; in a third, a chemist investigating a body's properties. In a fourth a system of idealistic metaphysics is being excogitated; in a fifth the impossibility of metaphysics is being shown. But they all own the corridor; and all must pass through it if they want a practicable way of getting into or out of their respective rooms. (20) As this suggests, pragmatism was very various from the beginning. For one thing, Peirce came to pragmatism after an intensive study of Kant, (21) while James (whose attitude was that philosophy should go round Kant, not through him), (22) was much more attuned to the British empiricists, (23) and Dewey came to pragmatism via Hegel. (24) For another, the pragmatists were extraordinarily diverse in their interests: Peirce primarily concerned with logic, semiotics, theory of inquiry, metaphysics, and philosophy of science; James more focused on philosophy of religion, ethics, and philosophy of mind; Dewey tackling all of these and adding philosophy of education, political philosophy and, albeit relatively briefly, philosophy of law, (25) to the list; and Mead passing through the pragmatist corridor to open the door to a new discipline, social psychology, and make his important contributions to our understanding of our distinctive human mindedness. (26)
From the beginning, however, pragmatism was also divided in another and potentially more troubling way. As James acknowledged in his 1898 paper introducing pragmatism to the philosophical world, his and Peirce's understandings of the Pragmatic Maxim were somewhat different--his being, as he saw it, broader. (27) James stressed the consequences of belief for action; Peirce stressed the experiential consequences for possible conduct of a concept's truly applying. (28) And, as their thought matured, this divergence grew more marked. Recognizing that there are real "generals," i.e., real kinds and real laws of nature, Peirce came to describe himself as "a scholastic realist of a somewhat extreme stripe." (29) But James always remained staunchly nominalist, focused on the concrete, the particular, and thought of natural laws as human constructions that enable us "to summarize old facts and to lead to new ones," but essentially only "a manmade language" tolerating much choice of expression. (30) Pragmatism, he wrote, "turns away from abstraction ... towards facts, towards action, and towards power." (31) Dewey was in some respects closer to Peirce than to James; but more radical pragmatists, like the frankly relativist Ferdinand Schiller (32) and the wildly enthusiastic Papini, (33) were attracted by James's emphasis on facts, on action, on power, rather than by Peirce's deeper, but more difficult, ideas.
In short, those old pragmatists were a heterogeneous bunch, each pursuing his own distinctive path. Sometimes there were substantive...