55 Pages Posted: 29 Jan 2004
Richard Posner's Law, Pragmatism, and Democracy (2003) is the most comprehensive account to date of his pragmatic vision of the law and democracy. For the most part, Posner's theory of pragmatism has been attacked externally, mainly by theorists unsympathetic to pragmatism. In contrast, in this Review, we contest Posner's account of pragmatism from within the pragmatic tradition. We contend that Posner's views are problematic not because they are pragmatic, but because they are often not pragmatic enough.
We put Posner's account of pragmatism to the pragmatic test by examining its implications. Posner views ideals as useless and philosophical theorizing as empty. Lacking any meaningful approach for scrutinizing social goals, however, pragmatism devolves into an efficiency exercise - finding the appropriate means to achieve our given ends. Posner's account has little to say about the selection of ends. Accordingly, his attack on abstract ideals becomes, in effect, an endorsement of such ideals, since it leaves unreconstructed the dominant moral ideals of present society.
In contrast, we return to the thought of the classical pragmatists (primarily John Dewey) to offer an alternative vision of pragmatism. This account better integrates theory and practice and provides more meaningful guidance about the choice of ends. Although Posner adopts many of the ideas of the classical pragmatists, he diverges in crucial ways that lead to internal inconsistencies with his own pragmatic commitments and to end up employing unpragmatic forms of reasoning. Posner finds himself in this position because the pragmatic ideas upon which he founds his theory have far more potent and revolutionary implications than Posner is willing to entertain.
After setting forth his account of pragmatism, Posner attacks theories of deliberative democracy as unpragmatic. According to Posner, the pragmatist recognizes that it is too unrealistic and idealistic to expect most Americans to engage in meaningful political dialogue. Instead, Posner advances a concept of democracy based on the ideas of Joseph Schumpeter: Democracy should consist of a set of elite managers whose goal is to find the most efficient means to achieve our inherited ends.
We argue that Posner's account of democracy is not pragmatic at all - even on his own terms. Under Posner's account, since people are not encouraged to make any effort to form a community on the basis of shared ideals, the dominant normative ideals of society are left to drift haphazardly. Posner views the equilibrium that emerges from individuals who pursue their own private interests as sufficient to generate the larger social ethos. We contend that this conclusion is deeply flawed. Additionally, we demonstrate that certain central features of deliberative democracy, far from being unpragmatic, are, in fact, deeply connected to pragmatic inquiry.
Keywords: Pragmatism, posner, dewey, democracy
JEL Classification: K00, K10, K40
Suggested Citation: Suggested Citation
Sullivan, Michael and Solove, Daniel J., Can Pragmatism Be Radical? Richard Posner and Legal Pragmatism. Yale Law Journal, Vol. 113, pp. 687-741, December 2003. Available at SSRN: https://ssrn.com/abstract=485218