Stephen Gaynor

The Pursuit of Pragmatism

Pages 841-846

The Pursuit of Pragmatism

Ronald Dworkin’s criticism of legal pragmatism can be presented in the form of two
claims, one descriptive and the other normative. His descriptive claim is that pragmatism
as a theory of law holds that legal officials-in particular judges-do and should make
whatever decisions seem to them best for the community’s future, not counting any form
of consistency with the past as valuable for its own sake. Dworkin’s normative claim is
that judges should maintain continuity with the past at least to some extent.

Legal Pragmatism’s Attitude Toward the Past

Legal officials should choose and act to promote the greatest good. And since the only
good that they have any power to affect lies in the future, it follows that they should act
to promote good in the future. If it does not serve that purpose, then continuity with the
past is not valuable. This analysis suggests that legal pragmatism, as Dworkin defines it,
is, or at least is close to being, a kind of irresistible truth. The present analysis thus
suggests that everyone is virtually compelled to be, at some level, a pragmatist. The great
debates are debates within pragmatism, not about its relevance. If the truths offered in the
name of pragmatism can be uniformly accepted without disturbing any existing debates,
then it would seem that pragmatism is not useful in resolving legal problems. Indeed, if
everyone is necessarily a pragmatist, then it seems that pragmatism is not a distinct legal
theory at all.

Pragmatism in Terms of its Attitude Toward Theory

They believe that some kinds of factors are relevant to the judicial decision and that other
factors are irrelevant. They will try to make connections, offer explanations, and identify
valuable categories for understanding and using the raw material. Thus far, the search for
a distinct and potentially valuable pragmatic position has proven disappointing. At best, it
seems, pragmatist are telling us what we already take for granted; at worst, insofar as
pragmatist think they are saying something distinctive and useful, legal pragmatism is a
project in self-deception.

Different Function for Pragmatism

Perhaps the purpose of pragmatist writing is to exhort scholars and judges to avoid
intellectual vices that they already acknowledge as such but are nonetheless prone to
commit. The worshipper creates an image to help focus her thoughts and feelings on a
more ultimate reality; but she concludes by worshipping the image itself. Pragmatism
operates as a kind of exhortation, reminding the scholar of proper priories, calling him
back to experimental reality. Pragmatism is concerned with problems that occur in the
practice of theorizing. It does not supply distinctive standards for constructing or
evaluating theories, but instead admonishes thinkers to adhere to standards that they
already accept.

Resurgence of Pragmatism

The resurgence of pragmatism in legal thought reflects a widespread perception that in

recent years legal thinking has been unduly theoretical and abstract. One familiar
explanation-albeit only a partial one-for this tendency suggests that Brown v. Board of
Education and later Roe v. Wade prompted a crisis of constitutional legitimacy and
provoked constitutional scholars to ever loftier flights of theoretical abstraction in their
efforts to defend those decisions. In the long run, however, this project of theory-building
has proven unsatisfying. Each of the landmarks mentioned above has been severely
eroded, if not entirely overthrown. The movement toward grand theory, it may now seem,
represented a wrong turn; and it is time for retrenchment to the more solid ground of
experience, practice, and common sense. A counter diagnosis, however, deserves to be
considered. In a different sense, such theorizing does not appear grand at all, but rather
unusually and deliberately modest. Theories studiously avoided addressing the perennial
ethical, existential, or theological issues such as the nature of man or of the good, or the
meaning or purpose of life. On the contrary to their core, the theories suggested that
government and law must not take positions on questions such as these. Such theories did
not merely decline to address such questions, but devoted themselves to insulating the
law from moral and theological thinking that might arise in other disciplines or in the
culture generally.

Anti-Grand Theory

The theorizing has proven unsatisfying not because it was too ambitions, but rather
because it was so aggressively unambitious. Pragmatism tries for neutrality by avoiding
making difficult and controversial substantive judgments upon fundamental human
questions. The remedy, if there is one, for the failures of recent theorizing lies not in a
pragmatic flight from theory, but rather in better and more courageous theorizing. And
the more promising recent development in legal thought lies not in the revival of legal
pragmatism, but rather in the renewal of interest in what is awkwardly called natural law.

Notes

Pragmatism- a philosophical movement that includes those who claim that an ideology or
proposition is true if it works satisfactorily, that the meaning of a proposition is to be
found in the practical consequences of accepting it, and that unpractical ideas are to be
rejected.

Dworkin- Acting on the premise that law is a seamless web, one is required to construct
the theory that best fits and justifies the law as a whole in order to decide a particular
case. The person will always come to the right answer.