Legacies of Pragmatism
49 Pages Posted: 8 Jun 2021
Date Written: June 4, 2021
Pragmatism has triumphed in the law by becoming all things to all people—or has it? This essay, prepared for a symposium at Drake University Law School's Constitutional Law Center, examines the future of pragmatism in constitutional thought. First, I revisit the work of William James to recover the ideal disposition of a pragmatist decision maker. Second, I analyze pragmatism's impact on constitutional theory from Richard Posner to Cass Sunstein, from Philip Bobbitt to Willy Forbath and Joey Fishkin. I contend that pragmatism takes different forms in their theories: disciplinary substitution, decisional allocation, managed consequentialism, and materialist purposivism. Together, these represent the legacies of pragmatism. Third, after considering the views of Robin West and Roberto Unger, I offer some thoughts about what it will take to construct a form of pragmatism that restores the tradition's emphasis on humanistic governance.
Keywords: pragmatism, philosophy, legal philosophy, constitutionalism, judging, William James, minimalism, jurisprudence, institutionalism, constitutional theory
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