| Can Pragmatism Be Radical? Richard Posner and Legal Pragmatism |
| Michael Sullivan and Daniel J. Solove [View as PDF] |
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113 Yale L.J. 687 (2003) In Part I, we put Posner's account to the pragmatic test by examining its implications. We argue that Posner's pragmatism offers little help when it comes to evaluating and selecting ends, which is crucial for resolving legal and policy disputes. We suggest that this failure results from Posner's attempt to excise pragmatism's theoretical dimension. In Posner's hands, pragmatism stands for hard-nosed "common sense" and "reasonableness," rejecting what he views as pie-in-the-sky abstract theories of reform. But what passes for legal pragmatism in this "revival" and "renaissance" is often a brand of commonplace reasoning that is more complacent than critical. Many neopragmatists are little more than realists who aim to account for current problems descriptively and empirically. Such accounts of pragmatism provide convenient straw men for critics to attack, while at the same time privileging entrenched institutions and the status quo. In contrast, we return to the thought of the classical pragmatists to offer an alternative vision of pragmatism built primarily upon the ideas of John Dewey.29 This account better integrates theory and practice and provides more meaningful guidance about the choice of ends. We contend that although Posner adopts many of the ideas of the classical pragmatists, he diverges in crucial ways that lead him to have internal inconsistencies with his own pragmatic commitments and to end up employing forms of reasoning against which the pragmatists strongly cautioned. 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. Posner begins on the pragmatic path, but he will not commit to it fully, perhaps because pragmatism is anything but banal. When seen in its full colors rather than faded Posnerian pastels, pragmatism is radical. Its ideas unsettle many of the institutions and "realities" that Posner takes as given. In Part II, we turn to Posner's theory of democracy. Surprisingly, in light of Posner's insistence that pragmatism has no political valence, Posner attempts to use pragmatism to reach his conclusion that Concept 2 democracy is normatively superior to Concept 1 democracy, a conclusion with deep political valences. We demonstrate that Posner's justification for Concept 2 democracy is not pragmatic, for it not only has inconsistencies with Posner's own version of pragmatism but also radically diverges from some of the most fundamental notions of the classical pragmatists. Having built his theory on pragmatic ideas, Posner must deal with their implications, which we argue undermine his theory of democracy. Additionally, we contend that pragmatism does have a political valence--one that links it more closely with Concept 1 democracy than Concept 2. |