law and, more specifically, judicial decision-making. The classical
view of law offers a case-based theory of law that emphasizes the
universal and foundational quality of specifically legal facts, the
meticulous analysis of precedent and argument from analogy. Legal
pragmatism, on the other hand, emphasizes the need to include a more
diverse set of data and claims that law is best thought of as a
practice that is rooted in the specific context at hand, without
secure foundations, instrumental, and always attached to a
perspective. A pragmatic stance towards jurisprudence offers many
philosophical challenges to more traditional descriptions of the legal
domain.
1. The Classical Picture of Judicial Decision-Making
The "classical picture" of legal argumentation and analysis dominates
theoretical descriptions of judicial decision-making. It also is the
dominant picture among legal practitioners. The classical model of
legal argumentation is based upon the casebook method, the use of
precedent and rigorous arguments from analogy. The casebook method
assumes that the essential and exhaustive materials for a legal
decision are summed up in the published opinions that accompany the
conclusion of controversies in court. What an attorney or, more
importantly, a judge is supposed to look to so as to render the proper
verdict are reasons offered and situations analyzed in previous
decisions that seem relevantly similar. The data for the decision is
therefore the casebook. From a set of precedents, of written court
opinions, is distilled a general set of rules and a specific verdict
in the controversy before the court. Given a legal controversy, the
practitioner (judge, attorney or the like) looks at previous cases for
similar situations and then tries to distill the reasons that have
been accepted as legally relevant for his or her client's position.
From these sources a legal conclusion should be drawn.
This classical picture of legal argumentation is historically
attributed to former Harvard Law School Dean Christopher Columbus
Langdell. Langdell put the first case book together as a educational
tool, and bundled this type of book with a Socratic style of teaching
that reigns supreme in legal practice and education today. Both the
use of the casebook and the Socratic method presuppose a somewhat
insular and rationalistic view of legal institutions. One of the most
influential sources of the classical model of more recent vintage is
offered by Edward Levi in An Introduction to Legal Reasoning. As he
describes it legal reasoning is a "three-step process" where a
"similarity is seen between cases; next the rule of law inherent in
the first case is announced; then the rule of law is made applicable
to the second case (Levi 1949, p. 2)." The implicit assumption is that
once the similarity between cases is recognized, legal reasoning is
simply a matter of making a logically valid deduction of a holding
from a statement of the law (major premise) and a statement of the
facts (minor premise). But by far the most influential current
advocate of the main elements of the classical view is Ronald Dworkin.
Dworkin's theory functions as a normative theory as well as a
descriptive one. Taken as a descriptive claim the theory offers a
portrait of what judges actually do when arriving at a legal
conclusion. Dworkin's own version of legal decision-making is entitled
"law as integrity" (Dworkin, 1986). According to this theory,
consistency with past judicial decisions should be emphasized as one
of the most important legal virtues. He offers the picture of an
imaginary creation, the "chain-novel," to argue for the centrality of
precedent in law. A chain-novel is a novel that is written one chapter
at a time. After the creation of each new chapter, the novel is passed
to a new author for further elaboration. Dworkin argues that in this
enterprise we surely would want the new author to find as supremely
important the need to cohere with and respect the content of the
chapters already completed. An author that didn't follow this rule
would be not properly fulfilling his or her role. Dworkin then argues
the same assumptions should rule the legal world and, therefore, the
judge's activity. That is, each case is directly analogous to a new
chapter in the chain-novel. If one accepts the analogy, and there
seems to be much too little analysis critiquing the acceptability of
such an analogy, one gets a picture of a somewhat insulated legal
system running upon a deep need for internal coherence. While Dworkin
disavows the deductivist picture offered by Langdell, and allows in a
moral dimension, in his attachment to traditional legal materials and
practices he is clearly a proponent of the classical view. The legal
pragmatist finds much to argue with in this picture of jurisprudence.
2. The Pragmatist's Picture of Judicial Decision-Making
Legal pragmatists such as Daniel Farber, Thomas Grey, Margaret Radin
and Richard Posner think that such a picture of jurisprudence is
severely flawed. The legal pragmatist thinks that the classical view
is overly legalistic, naively rationalistic and based upon
misunderstandings of legal institutions. As opposed to the
self-imposed limitations entailed by the classical view of judicial
decision-making, legal pragmatists emphasize the eclectic nature and
the diverse aims of the law. More specifically, legal pragmatists
largely agree upon four main aspects of a pragmatist version of
jurisprudence: (1) the important of context; (2) the lack of
foundations; (3) the instrumental nature of law; and (4) the
unavoidable presence of alternate perspectives.
a. Contextual
For the legal pragmatist all legal controversies are essentially
attached to a specific and unique context. As Posner describes it,
emphasizing the unavoidable presence of a specific context
"disconnects the whirring machinery of philosophical abstraction from
the practical business of governing our lives and our societies
(Posner 1995, p. 463)." While there is some irony in a foremost
proponent of neo-classical economics critiquing "philosophical
abstractions," Posner here correctly highlights the contextualist's
slogan of "return from abstractions to the concrete." Certainly
Dworkin and Langdell can be seen as overly fond of abstractions. In
this case they mirror the actual practitioners. Tamanaha argues that
the contrasting contextualism of legal pragmatism is best shown in
Justice Holmes' strategy whereby he used historical analysis to expose
such seemingly timeless abstract legal concepts as being actually
derived from contingent and context-specific needs (Tamanaha 1996, p.
315). Through this strategy the illusion of an eternal set of
essential legal concepts is exposed as actually being a contingent
creation of specific conflicts. While even legal formalists expect to
apply concepts to a context, the legal pragmatist differs in seeing
the concepts themselves as products of context. Because of this, the
assumption that the legal concepts are applicable beyond their
originating controversy is questioned.
The basic claim offered by the contextualist critique is that all
legal decision-making, as well as any legal controversy, takes place
in a specific and unique context that is so constitutive of the issues
and the ultimate decision that the decision is distorted if seen from
a non-contextual perspective. More importantly, the concepts used are
questionable when applied between different controversies. Because of
this, the abstractionist tendencies of the classical view of legal
decision-making is thought undesirable and a view that emphasizes
context, such as the legal pragmatist's, to be superior.
b. Antifoundational
In addition to the need to emphasize context, the legal pragmatist
also argues that the lack of foundations in legal decision-making must
be recognized. Foundationalists hold that there is some core principle
or principles that all legal decisions can be deduced from. While
today very few will admit to an extreme view of such foundationalism,
most legal theorizing assumes a more moderate foundationalist view.
This moderate view argues that the judge has a sufficient set of tools
from within the traditional materials of the classical view of legal
decision-making (the case method) to make properly informed decisions
in present cases. In other words, the moderate view sees cases as the
necessary and sufficient foundation from which to deduce sufficiently
analyzed legal conclusions.
A legal pragmatist sees this as descriptively wrong. First, "the idea
that correct outcomes can be deduced from some overarching principle –
or set of principles" is rejected (Cotter 1996, p. 2085). In place of
deductive certainty is offered a picture of induction and an emphasis
upon the creative problem-solving act of jurisprudence. Second,
pragmatism in general stands for a rejection of the metaphysical
picture of knowledge or decision-making that sees either as needing
(or indeed having) a foundation. Knowledge and reason in law, as in
any other domain, are seen as essentially open-ended concepts in need
of continual testing and revision, and therefore law is an activity
that would outgrow any purported foundations. So, if cases are thought
to provide a foundation to legal decisions the legal pragmatist argues
that they will not be inevitably up to the challenge of the next case,
and therefore the foundationalist picture is at the very least
incomplete.
c. Instrumental
While the classical view of legal decision-making emphasizes
consistency with past decisions (the high value of respect for
precedent), the instrumentalist advocates an investigation of the
effects a decision might have and the capabilities of the legal
institution. An instrumental view is therefore less interested in
precedent and more based upon a "orientation towards the future
(Rosenfeld 1996, p. 98)." That is, instead of an emphasis upon
consistency with the essence of past decisions the pragmatist judge
looks to the worldly implications of his or her decision. For
instance, in a contract dispute a judge following the classical model
of legal reasoning would look to antecedently held rights and
obligations as shown in earlier cases in order to decide. A pragmatist
judge, on the other hand, would see those issues as important but
would also look at the greater implications for contract disputes in
the future. This prospective attitude would bring in data as to the
effects of the contract decision upon third parties, how a ruling
would affect daily life, etc.
This orientation towards the future, and towards the empirical, means
that for the legal pragmatist judge a whole new set of reasons become
applicable and legally relevant when making a decision. While the
advocate of the classical view can limit the reasons and facts to
those allowed in the analogous cases, the cases accepted as
precedents, the pragmatist judge must allow in other sorts of data,
for instance sociological or economic data, in order to properly
access the individual case at hand. Therefore, instead of emphasizing
the primacy of consistency with precedent, a pragmatist of a legal
bent emphasizes "the primacy of consequences in interpretation (Posner
1995, p. 252)."
d. Perspectival
Finally, the legal pragmatist adopts a stance that embraces the
problem of perspective. Perspectivalism entails a suspicion of broad
generalities and an acknowledgment of eclectic manners of description.
As opposed to legal formalism, which "holds that determinate meanings
exist in legal texts which may be discerned by reason and that
objective, immutable principles simultaneously inform and transcend
the practice of applying rules," perspectivism emphasizes that all is
messy, open-ended, and subject to revision in light of another
perspective or further information (Shutkin 1993, p. 66). The
acknowledgment of perspective entails that an overly deferential
stance towards precedent and previously endorsed analogies could be
unfairly restrictive towards new and possibly more inclusive
descriptions.
As can be seen from the above, legal pragmatism offers a significant
alternative to more traditional views of the legal domain. In fact,
Stuart Scheingold argues that this lack of awareness of conflicting
perspectives is a pervasive quality of traditional legal thought. As
he puts it "Law professors and lawyers do not believe that they are
either encumbered or enlightened by a special view of the world. They
simply feel that their legal training has taught them to think
logically. In a complex world, they have the intellectual tools to
strip a problem, any problem, down to its essentials (Scheingold 1974,
p. 161)." But if such an assumption is itself just one perspective,
and one that obviously would distort any appreciation of other
alternative perspectives, such ignorance of their own perspective
would be an important vice to identify.
But important issues remain even if one finds such a description of
legal pragmatism attractive. First, is legal pragmatism offered as a
descriptive or a normative picture of jurisprudence? Second, does such
a stance really offer any desirable features that the more classical
picture of law cannot deliver or does it suffer from more intractable
flaws?
3. Legal Pragmatism as a Descriptive Theory
Legal pragmatism can be characterized as a theory with descriptive
pretensions. That is, as a theory as to what really happens in law,
despite the ideological prevalence of the classical model. The
descriptive legal pragmatist thinks that the classical picture of
jurisprudence does not fit the facts of law, and that a pragmatist
picture offers a better alternative. A legal pragmatism of this type
looks to the legal realists as historical precursor. The legal
realists claimed that law was a much sloppier and more political, as
well as less reasonable, institution than those following the Langdell
model admitted. In other words, that the reasons and data offered by
the classical model of legal decision-making do not properly explain
the actions of legal institutions. The legal pragmatist, therefore,
looks for empirical evidence that argues against such a constrained
view of decision-making.
Such evidence is not too hard to come by. First, it is clear that
political actors do not treat the court system as neutral and
functioning only upon respect for precedent. The full-blown fights
over judicial appointments shows that actors outside of the court
system view judges as politically important. Second, there is much
empirical research that questions the assumption that precedent
actually has the authority claimed for it. Some studies have claimed
that decisions are more influenced by the political beliefs of the
judge than by precedent (Goldman 1979, p. 208). Another study claimed
an 85% success rate in prediction of future case decisions based upon
a study of the judge's "values" (Rohde/Spaeth 1976, p. 157). A further
study concluded, "Supreme Court justices are not influenced by
landmark precedents with which they disagree (Segal/Spaeth 1996, p.
971)." What the empirical data tends to show, then, is that the
classical model does not explain the way actual judges decide cases
very well.
On the other hand, the legal pragmatist model has difficulties as a
descriptive theory as well. First, judges for the most part certainly
act and write as if they are following precedent and the traditional
legal materials. Second, it seems as if judges that were really
pragmatic would have to be more rigorous in the following out of
empirical implications of their decisions.
But this possibility raises many questions. For instance, would the
current fear of statistics and sociological data that lawyers have as
an rule have to be overcome in order for law to be actually and
accurately described as pragmatic? Furthermore, there is the question
of institutional competence. Does the legal system really have the
resources to gather and digest all the data necessary to make an
informed pragmatic decision? Does a judge have the capacity to digest
all the relevant material in order to have any competent idea as to
the real-world ramifications of any non-clerical decision? Would not a
judge that described him or herself as a pragmatist judge be just as
deluded as the judge that adopts the more traditional description?
4. Legal Pragmatism as a Normative Theory
Because neither option seems to accurately fit what really goes on in
the jurisprudential domain, perhaps legal pragmatism should be better
thought of as a normative theory. That is, perhaps it is a conceptual
stance offered as a picture of what judicial decision-making should
be.
In its normative mode legal pragmatism treats law and the legal realm
as a tool useful for social purposes. The legal pragmatist opposes the
a priori and rationalistic style of argumentation traditionally
applied in legal argumentation by arguing that such methods have no
valid claim to authority and, indeed, lack the tools necessary to
justify their own adoption. The more traditional style of legal
reasoning, that which keeps its attention upon cases, excludes broader
and more scientifically warranted data. Therefore the user of the
classical theory can offer not much more than a heart-felt and
resounding exclamation – "it works" – when confronted with the
question of the empirical effectiveness of a decision. All pragmatist
thought brings with it a suspicion of unquestioned and
non-experimental pictures of reason. Indeed the pragmatist is liable
to see in such a claim something akin to the statement "because God
commanded it." This "it works" exclamation is an example of just such
an a priori, rationalist and non-experimental claim. What exactly does
it work in comparison to? For the pragmatist such statements only have
meaning if they can be tested, and the classical picture of
jurisprudence doesn't have the tools with which to test such claims in
each case or on a more global level.
On the other hand, adoption of a pragmatist theory offers the ideal of
a system rooted in experience and the experimental method. As opposed
to the overly rationalistic and insular picture of legal
decision-making offered by the classical legal theorist, the legal
pragmatist argues for a more empirical jurisprudence. The normative
argument, in outline, is that a jurisprudential theory rooted in
sensitivity to context, a theory that functions without a belief in
false foundations, one that is judged along explicitly instrumental
criteria and that also acknowledges the inevitability of perspective,
is better suited to bring about justice in a complex and unpredictable
world than a theory that rests upon untested essentialistic
assumptions and a non-experimental and universalistic view of reason.
5. Selected Bibliography
Brint, Micheal and William Weaver, Pragmatism in Law and Society
(Boulder: Westview Press, 1991)
Cotter, Thomas F., "Legal Pragmatism and the Law and Economics
Movement," 84 Georgetown Law Journal 2071 (1996)
Dickstein, Morris, The Revival of Pragmatism: New Essays on Social
Thought, Law, and Culture (Durham: Duke University Press, 1998).
Dworkin, Ronald M., Law's Empire (Cambridge: Harvard University Press, 1986)
Farber, Daniel, "Reinventing Brandeis: Legal Pragmatism for the
Twenty-First Century," 1995 University of Illinois Law Review 163
(1995)
Goldman, Sheldon, "The Effect of Past Judicial Behavior on Subsequent
Decision-Making," 19 Jurimetrics Journal 208 (1979)
Grey, Thomas G., "Freestanding Legal Pragmatism," 18 Cardozo Law
Review 21 (1996)
——"Holmes and Legal Pragmatism," 41 Stanford Law Review 787 (1989)
Levi, Edward, H., An Introduction To Legal Reasoning (Chicago:
University of Chicago Press, 1949)
MacCormick, Neil, Legal Reasoning and Legal Theory (Oxford: Clarendon
Press, 1978)
Posner, Richard, Overcoming Law (Cambridge: Harvard University Press, 1995)
——"Pragmatic Adjudication," 18 Cardozo Law Review 1 (1996)
Radin, Margaret Jane, "The Pragmatist and the Feminist," 63 Southern
California Law Review 1699 (1990)
Rohde, David W., and Harold J. Spaeth, Supreme Court Decision Making
(San Francisco: W.H. Freeman, 1976)
Rorty, Richard, "The Banality of Pragmatism and the Poetry of
Justice," in Pragmatism in Law and Society
Rosenberg, Gerald D., The Hollow Hope: Can Courts Bring About Social
Change? (Chicago: The University of Chicago Press, 1991).
Rosenfeld, Michel, "Pragmatism, Pulralism and Legal Interpretation:
Posner's and Rorty's Justice Without Metaphysics Metts Hate Speech,"
18 Cardozo Law Review 97 (1996)
Segal, Jeffrey A., and Horold J. Spaeth, "The Influence of Stare
Decisis on the Votes of Supreme Court Justices," 40 American Journal
of Political Science 971 (1996)
Scheingold, Stuart A., The Politics of Rights (New Haven: Yale
University Press, 1974)
Shutkin, William Andrew, "Pragmatism and the Promise of Adjudication,"
18 Vermont Law Review 57 (1993)
Smith, Steven D., "The Pursuit of Pragmatism," 100 Yale Law Journal 409 (1990)
Tamanaha, Brian Z., "Pragmatism in U.S. Legal Theory: Its Application
to Normative Jurisprudence, Sociolegal Studies, and the Fact-Value
Distinction, 41 American Journal of Jurisprudence 315 (1996)
Wells, Catharine P. "Improving One's Situation: Some Pragmatic
Reflections on the Art of Judging," 49 Washington and Lee Law Review
323 (1992)
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