Within any discipline there are said to be lumpers and splitters, hedgehogs and foxes. (1) My inclinations run to lumping, but in this essay I aim to do some splitting. Specifically, I seek to distinguish among three distinct forms of legal pragmatism. Although my sympathy for one of the strands will likely become clear, my purpose is mainly to identify and distinguish them, not to assess their relative virtues and vices.
In embarking on such an effort, I join company not only with Professor Tamanaha, but also with another of my co-participants, Gerald Postema. Both Professor Tamanaha and Professor Postema have articulated approaches to, or theories of, Anglo-American law that they characterize as a "third way" or as an effort to reconcile competing traditions of legal thought. (2) In his latest book, Professor Tamanaha endorses what he calls "social legal theory" as a rival to the analytic and natural law traditions. (3) Similarly, Professor Postema has defended common law theory as an alternative to natural law and legal positivism. (4) Though not identical, both of these "third ways" look for intellectual inspiration to the common law tradition, to philosophical pragmatism, or to both. (5)
It would be possible to view my own account as a rival to those just mentioned because it shares their pragmatist and common law affinities but offers another interpretation of what fidelity to those traditions requires. Professor Tamanaha, for instance, characterizes social legal theory as "empirically oriented" (rather than "normative" or "analytic") and cites William James for support for his view. (6) In my view, though, James understood pragmatism as a means of reconciling empiricist, normative, and conceptual demands.
But it is equally plausible, and probably more useful, to see the following account as an effort to draw further distinctions within these other "third ways." That is, I aim to distinguish among three different ways in which one might seek--and judges and legal scholars in fact have sought--a reconciliation of, or alternative to, some of the traditional dichotomies in legal thought. That does not mean that my interpretation is perfectly consistent with the others I have mentioned. It is not. For instance, it produces different judgments about how to classify particular legal theorists, such as Lon Fuller, Hart and Sacks, and Ronald Dworkin. (7) And indeed, part of my purpose is to show that some legal thinkers not typically thought of as part of the pragmatist tradition in fact belong to it. Still, I seek to further refine some of the themes in common with these other accounts rather than offer an innovative account of their meaning or importance. I am following in their paths, substantively and methodologically.
Take, for instance, Professor Postema's work on the philosophy of the common law. Postema explains how common law theory differs from traditional positivism this way: "Common law conventionalism shifts theoretical attention from laws--the authoritative directives produced by lawmaking institutions--to the process of practical reasoning with and within law. Law, on this view, is a matter of convention, but it is a convention of a special sort, namely a practised discipline of practical reasoning." (8) That is just the shift I welcome. I am less interested in the question "what is law?" than in the question, "how do, and should, judges practically reason with and about legal materials?"
Those are not the only philosophical questions one might ask about law and legal practice. They may not even be the most important ones. But they are the ones I take up here, albeit at a very high level of generality. My central thesis is that there are three distinct ways of answering these questions and that each of them has its intellectual roots in an early twentieth-century understanding of the common law method that was informed by philosophical pragmatism. In other words, there are three distinct forms that third-way legal pragmatism can take. I dub them instrumentalist, quietisi, and holist versions of pragmatism.
The purpose of this essay is to explain what I mean by each of these labels and assign them to a few well-known figures in the Anglo-American legal tradition. The portrait drawn will necessarily be sketchy and its argument skeletal. But I hope to show how each type offers its own distinct solution to the same fundamental problem--one initially raised and confronted by early twentieth-century pragmatist philosophers, judges, and legal scholars and then again, in a slightly modified form, at mid-century. In this way, my approach may be seen as a version of the genealogical approach to studying law Professor Tamanaha endorses and practices in his recent book. (9)
Why bother with such an endeavor? Here is one answer. At the end of the last century, the modern philosopher perhaps most associated with philosophical pragmatism, Richard Rorty, suggested that legal pragmatism had become "banal" because virtually all legal theorists were some sort of pragmatist. (10) He recognized differences between, say, the views of Judge Posner and those of Ronald Dworkin. But he considered the differences to be mainly political. According to Rorty, there were no interesting philosophical differences between them. (11)
This essay is a response to Rorty on that question. In my view, Rorty is right to apply the label "pragmatist" widely to diverse legal scholars, but he is too quick to lump them all together. There remain interesting philosophical differences among those legal theorists who fit under the umbrella of pragmatist legal thought, even if--especially if--that umbrella is a large one, as I will argue. They are differences about the nature of practical reasoning--in particular, about how judges reason about facts and values.
PRAGMATISM, SOCIOLOGICAL JURISPRUDENCE, AND REALISM
Before we can distinguish among the three branches of pragmatist legal theory, we must locate their common origin. Two of the best known early twentieth-century jurists, Roscoe Pound and Benjamin Cardozo, both described the view of law they endorsed as "pragmatist," and, in the same works, each cited William James's Pragmatism, (12) There James offered a resolution to a dilemma analogous to one Pound and Cardozo sought to resolve in the context of adjudication. The ambiguities latent in both the philosophical and jurisprudential versions of these solutions help explain the first major divide within legal pragmatism--one we will see accentuated by two well-known legal realists.
William James's Pragmatism
James frames his Pragmatism lectures as an effort of reconciliation. Specifically, he aims to reconcile two broad philosophical traditions, empiricism and rationalism. James famously characterizes these two competing traditions in psychological terms, as representing two sorts of intellectual temperaments. Empiricism is the philosophy of the "toughminded," who are skeptical and materialistic and focus on facts. "Tenderminded" philosophers, on the other hand, are optimistic and intellectualistic and are devoted to the discovery of principles. (13) James's point is that most people "have a hankering for the good things on both sides of the line"--they care about facts and principles. (14) The modern person lives in the age of science and admires its achievements. But the view of the world--and of man's place within it--is "materialistic and depressing." (15) Many of us do not want to abandon "the old confidence in human values and the resultant spontaneity, whether of the religious or of the romantic type." (16) So the question is, how can we hang on to both?
James offers pragmatism as a method for providing answers to that question. (17) It is capable of identifying genuine metaphysical disputes and then resolving them in a manner congenial to both philosophical traditions. Or, more precisely, it offers a way of justifying traditional rationalist doctrines on empiricist grounds. The pragmatist asks, of any given metaphysical controversy, "What difference would it practically make to any one if this notion rather than that notion were true?" (18) If it makes no difference in the world, then the dispute is senseless; but if it does make a difference, then there is a genuine question as to its existence. Citing the work of Charles Peirce, James insists that in order to get clear about some concept, we must ask "what sensations we are to expect from it, and what reactions we must prepare." (19) As any good empiricist would demand, experience provides the ultimate test.
James then takes the further step of suggesting that pragmatism offers a way of determining whether a belief in some idea, concept, or doctrine is true. The test again is one of concrete experience. The pragmatist asks whether a given doctrine or idea is "good in the way of belief," (20) where "good" means that believing in it enables us to experience life in a better way. So, for instance, if believing in God "prove[s] to have a value for concrete life," then such a belief qualifies as true. (21) In this way, the approach represents the "empiricist attitude," but it does so, according to James in "a more radical and in a less objectionable form," because it harbors no "materialistic bias." (22) Thus does pragmatism reconcile the two competing traditions in philosophy: "Rationalism sticks to logic and the empyrean. Empiricism sticks to the external senses. Pragmatism is willing to take anything, to follow either logic or the senses and to count the humblest and most personal experiences." (23)
James acknowledges the obvious objection to this view. If the test is merely whether a belief is "good" for us, then pragmatism seems to authorize belief in all sorts of "sentimental superstitions." (24) The response to this worry is that the test of experience applies to all our beliefs as well, so if adopting a new belief would clash with our other, previously held...