Introducing “Legal Pragmatism”

My realistic perspective is informed by the classical pragmatism of William James, John Dewey, Charles Saunders Peirce, and George Herbert Mead. It builds on the notion that truths are established through the collective pursuits of projects in the world. Pragmatism is a method or orientation modeled on scientific inquiry, which is continuous with all human inquiry [as Hilary Putnam, after Dewey and others, well-argued]. — From the Introduction to Brian Z. Tamanaha’s A Realistic Theory of Law (Cambridge University Press, 2017).   

Apologia

I have a long-standing interest in the law, much of it dating back to attendance at night classes at a law school in Santa Barbara for one semester (I received passing grades) during a period in which I was also teaching at our local community college. I decided not to continue because I was soon offered another class to teach (‘critical thinking’) at the college, one which happened to involve, for my purposes at least, quite a bit of research and planning, largely because I believed it should not be organized on the order of philosophical course on formal logical reasoning “for dummies” or non-philosophy majors, as were many such courses in philosophy departments back when I was teaching (things have improved immeasurably since then). Perhaps needless to say, the role of psychology in thinking and reasoning was studiously ignored, and I was determined to discuss well-known cognitive biases and errors as well as deleterious psychological mechanisms and vices that appear to have become ubiquitous in our time (hence the locution, the ‘pathology of normalcy’). I was also asked to teach a night class, which further convinced me I could not devote the requisite energy to my legal studies (having a spouse and two children also influenced this decision!).

One beneficial by-product of this brief law school stint, however, was learning how to do legal research: looking up cases on point, using case-books, hornbooks and other legal texts which gave me sufficient confidence to read further in the law—for better and worse—on my own. I was temperamentally drawn toward philosophy of law and legal theory (hence this fairly comprehensive bibliography on same; I also have lists for several specific areas of the law, embedded links to which are found in that compilation). I also became acquainted with civil and common law legal systems, different domains of law, both domestic (‘municipal’) and international (sometimes ‘transnational’), as well as the various parts of law: torts, contracts, criminal law, property law, constitutional law, etc. Frequent commenting at law blogs I was routinely reading: Concurring Opinions, PrawfsBlawg, Opinio Juris, Dorf on Law, The Faculty Lounge, etc., led to invitations to blog at a couple of dedicated law blogs, like (at that time) Dean Jim Chen’s Ratio Juris and the Agricultural Law Blog (which were but two of the law blogs in his Jurisdynamics Network), as well as at Religious Left Law. I’m sharing this autobiographical snippet by way of background for what follows, thus acknowledging my lack of (sufficient) conventional legal training, expertise, and pedagogical experience.

Legal Pragmatism

While philosophical pragmatism represents a strong, enduring, and often quite sophisticated philosophical tradition of North American provenance, its beneficent influence, it can be safely said, has global reach. One example of this international extension takes the form of “legal pragmatism.” There are a handful of well-known “legal pragmatists,” but they are a mixed bunch insofar as they drawn on this or that pragmatist philosopher or pragmatist concepts and practices. One avowed legal pragmatist, the admittedly prolific and uncommonly smart Richard Posner, was for far too long enchanted by neoclassical “law and economics” literature (the latter trumping if not determining the former), and thus I’m inclined to view him as on the fringes of philosophical “pragmatism,” his “pragmatist” jurisprudence further distorted by “qualified moral relativism and moral skepticism” in ways that make it difficult to see just how, philosophically speaking, he can be readily identified as a “legal pragmatist.” In any case, “pragmatist” legal traditions or schools of thought exist, even if they are far from ruling the roost in legal theory or philosophy of law. While I am fond, in the first instance, of “ideal,” (secular) “natural law,” and “moral” theories and philosophies of law (e.g., Robert Alexy, Nigel Simmonds, Ernst Bloch, Philip Allott, Allen Buchanan, Larry May, among others, the last two with regard to international law), I think these can be compatible, complementary, or coexist coherently with, or even be intrinsically part of, full-bodied pragmatist theories and philosophies of law. One reason on behalf of this “picture” has to do with my belief that conceptions of human nature and agency as well as a strong notion of human dignity need be presupposed or assumed in any normative or realist understanding of the various values and sundry purposes we associate with the democratic rule of law, the pursuit of (several kinds of) justice, and the prospects for generalizable or “universal” welfare and well-being, as well as human fulfillment, happiness, or eudaimonia. I will be so bold to say that I think a utopian (or ‘eunomian’) ideal of law provides some of the necessary ends, standards, and criteria for the democratic rule of law in both a “perfectionist” or “perfectibilist” (William Godwin) and pragmatist sense, provided we have an open-ended model or conception of human nature within the conditions and constraints of pluralist and comparative international law and cosmopolitanism.

The following is a strongly edited version of Brian Edgar Butler’s helpful entry on “Legal Pragmatism” for the Internet Encyclopedia of Philosophy. The bracketed additions and comments are mine.

“Legal pragmatism is a theory critical of more traditional pictures of 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. [….]

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 [of judicial decision-making] 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. [….]

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.

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 [emphasis added]. 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 [emphasis added].

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. 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.

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 an ‘orientation towards the future.’ [I would add that this need not—indeed should not—involve a rejection of precedent or stare decisis as one constraint on judicial discretion or judgment.] 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. [….]

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 [or pluralist] 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. 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.’ 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. [I would add that a philosophical pragmatist must conjoin ‘thinking like a lawyer’ with ‘thinking like an ethical human being,’ the assumption being that ‘legal ethics’ as professional ethics is woefully inadequate or at least pales in comparison to ethics proper or more widely and deeply.]

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?

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 [or ideological], 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 [justified or warranted?] actions of legal institutions. The legal pragmatist, therefore, looks for empirical evidence that argues against such a [strongly] constrained view of decision-making. Such evidence is not too hard to come by. [….]

But this possibility raises many questions. For instance, would the current fear of statistics and sociological data [or simply findings or conclusions from the both the natural and social sciences] 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 be just as deluded as the judge that adopts the more traditional description? 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 [emphasis added]. That is, perhaps it is a conceptual stance offered as a picture of what judicial decision-making [can and thus] 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 [or possible and probable social and political consequences] 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 [I would supplement these with moral and other philosophical and psychological 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 essentialist assumptions and a non-experimental and universalistic view of reason.”

Suggested Reading (part of this list is beholden to the ‘references and further reading’ appended to Professor Butler’s IEP entry). This is neither comprehensive nor even “representative” of the possible literature. It is limited to what I’m idiosyncratically familiar with as an ardent autodidact on this subject (I welcome suggestions for additional material). Nonetheless, it should allow one not well-acquainted with legal pragmatism to initiate their own and more systematic or far-reaching explorations of this subject.   

• Brint, Michael and William Weaver. Pragmatism in Law and Society (Westview Press, 1991).
• Breyer, Stephen. Reading the Constitution: Why I Chose Pragmatism, Not Textualism (Simon & Schuster, 2024).
• Butler, Brian E. The Democratic Constitution: Experimentalism and Interpretation (University of Chicago Press, 2017).
• Coleman, Jules. The Practice of Principle: In Defense of a Pragmatist Approach to Legal Theory (Oxford University Press, 2000).
• 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 (Duke University Press, 1998).
• Farber, Daniel. “Reinventing Brandeis: Legal Pragmatism for the Twenty-First Century,” University of Illinois Law Review 163 (1995).
• Grey, Thomas G. “Holmes and Legal Pragmatism,” 41 Stanford Law Review 787 (1989).
• Grey, Thomas G. “Freestanding Legal Pragmatism,” 18 Cardozo Law Review 21 (1996).
• Haack, Susan. “On Legal Pragmatism: Where does the ‘Path of the Law’ Lead Us?,” The American Journal of Jurisprudence, Vol. 50 (2005): 71-105.
• Haack, Susan. Evidence and Inquiry: A Pragmatist Reconstruction of Epistemology (Prometheus Press, 2^nd ed., 2009).
• Haack, Susan. Putting Philosophy to Work: Inquiry and Its Place in Culture—Essays on Science, Religion, Law, Literature, and Life (Prometheus Books, expanded ed., 2013).
• Haack, Susan. Evidence Matters: Science, Proof, and Truth In The Law (Cambridge University Press, 2014). 
• Hubbs, Graham and Douglas Lind, eds. Pragmatism, Law, and Language (Routledge, 2014).
• Kellogg, Frederic R. Oliver Wendell Holmes Jr. and Legal Logic (University of Chicago Press, 2018).
• Lian, Alexander. Stereoscopic Law: Oliver Wendell Holmes and Legal Education (Cambridge University Press, 2020).
• Luban, David. “What’s Pragmatic about Legal Pragmatism?,” Cardozo Law Review 18, No. 1 (September 1996): 43-74.
• Patterson, Dennis. “Law’s Pragmatism: Law as Practice & Narrative,” Virginia Law Review, Vol. 76, 1990. Available at SSRN: https://ssrn.com/abstract=950107.
• Radin, Margaret Jane. “The Pragmatist and the Feminist,” 63 Southern California Law Review 1699 (1990).
• 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).
• Solum, Lawrence B. Legal Theory Blog—Legal Theory Lexicon: Pragmatism (December 31, 2023).
• Tamanaha, Brian Z. Legal Pluralism Explained: History, Theory, Consequences (Oxford University Press, 2021).
• Tamanaha, Brian Z. A Realistic Theory of Law (Cambridge University Press, 2018).
• Tamanaha, Brian Z. Beyond the Formalist-Realist Divide (Princeton University Press, 2010).
• Tamanaha, Brian Z. Law as a Means to an End (Cambridge University Press, 2006).
• Tamanaha, Brian Z. On the Rule of Law (Cambridge University Press, 2004).
• Tamanaha, Brian Z. A General Jurisprudence of Law and Society (Oxford University Press, 2001).
• Tamanaha, Brian Z. Realistic Socio-Legal Theory (Oxford University Press, 1997).
• 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).
• Thomas, E.W. The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles (Cambridge University Press, 2005).
• Vannatta, Seth, ed. The Pragmatism and Prejudice of Oliver Wendell Holmes Jr. (Lexington Books, 2019).
• Wells, Catharine P. “Legal Innovation within the Wider Intellectual Tradition: The Pragmatism of Oliver Wendell Holmes, Jr.” Northwestern University Law Review, Vol. 82 (1988). SSRN: https://ssrn.com/abstract=2213326.
• Wells, Catharine P. “Improving One’s Situation: Some Pragmatic Reflections on the Art of Judging,” 49 Washington and Lee Law Review 323 (1992).
• Wells, Catharine P. “Holmes on Legal Method: The Predictive Theory of Law as an Instance of Scientific Method.” Southern Illinois Law Review, Vol. 18: 329-345 (1994). SSRN: https://ssrn.com/abstract=2213290 .
• Wells, Catharine P. “Old Fashioned Postmodernism and the Legal Theories of Oliver Wendell Holmes, Jr.” Brooklyn Law Review, Vol. 63 (1997). SSRN: https://ssrn.com/abstract=2213328.  

Addendum

In a comment to this post at the FB page for the Society for the Advancement of American Philosophy, Alexander Lian, a “practicing commercial litigator,” stated that

“Any discussion of legal pragmatism [apparently including my quite cursory introduction] should begin with Max Fisch’s observation that the origins of pragmatism in Peirce’s thought owed as much to the methods of practicing lawyers as experimental scientists. In my book on Justice Holmes (Stereoscopic Law: Oliver Wendell Holmes and Legal Education), I discuss the reception and extension of Holmes’ thought by four contemporary thinkers who have helped further legal pragmatism: Frederic Kellogg, Thomas Grey, Catherine Wells, and Susan Haack. Dewey called Holmes one of America’s greatest philosophers in Experience and Nature [1925] an observation that really has not been unpacked to this day.”

I would only add that it is not clear that there is—or should be—but one canonical or narrative beginning of what makes for (especially an introduction to) “legal pragmatism,” however much I appreciate Lian’s comment and notice of his book. With regard to Justice Holmes, I decided to add several more articles (available online through SSRN) by Catharine P. Wells which I learned of from The Legal History Blog (there you can also find a couple of biographies of Holmes as well as titles on his legal and judicial philosophy and practice).