As my last column closed, I asked whether we wish to leave the effort to reconcile the various jurisprudential philosophies to economists, who evaluate legal outcomes solely by their degree of conformity to economic theory. My answer is NO. Instead, we will turn to the Legal and Jurisprudential Philosophy of Pragmatism.
Pragmatism is the theory, or as Judge Richard A. Posner suggests the “anti-theory,” which debunks all pretenses that judges are able to construct a pipeline to the truth. In doing so, Pragmatism implicitly acknowledges the validity of the critiques of the law expressed in the writings of the Legal Realists, the Critical Studies and Critical Race Theorists, and the “Radical Feminists.” It does so, however, without subscribing to these theories themselves. In fact, the judicial philosophy of Pragmatism rejects both legal conceptualism and economic conceptualism. Instead, Pragmatism is interested, as Judge Posner points out, in “what works and what is useful rather than in what really is.”
The Pragmatist Judge is interested in “the facts” of the case. Therefore, he wants to be informed as much as possible about the operation, properties, and probable effects of alternative courses of action. At the same time, the Pragmatist Judge is skeptical about any claims that in resolving a particular case, the Court will arrive at the “final truth” about anything.
Judicial Pragmatism is the antithesis of legal certainty. The Pragmatist recognizes, however, as Posner points out that “society’s most tenaciously held ‘truths’ are not those that can be proved, probed, discussed, or investigated.” Nevertheless, they are “so integral to our frame of reference that to doubt them would, by undermining our deeply held beliefs, throw us into a state of hopeless disorientation.”
These beliefs are what lay people and the popular media call “common sense” and what lawyers, judges and social scientists refer to as “frame of reference.” The Pragmatists, as Posner and other legal writers of similar philosophical persuasion write, recognize that the frame of reference in which certain lay opinions are granted the elevated status of “common sense” can change, sometimes rapidly. This is illustrated dramatically in recent decades with regard to views on women’s preferences and capabilities. Many conservatives overlook this point.
At the same time the Pragmatist understands what many liberals, who want to change or reconstruct society do not wish to acknowledge, which is that just because an opinion cannot be proven does not mean it can be easily removed from society’s frame of reference, particularly if it has been given the status of “common sense.”
With these caveats in mind, and further recognizing that Americans do not share an overarching frame of reference even with these canards of common sense embedded in our culture, Pragmatism rejects both the skepticism of the Legal Realists, Critical Legal Studies adherents, Critical Race Theorists, and the “Radical Feminists,” as well as the “relativism,” which forms the basis for the criticism of Formalism and Originalism. In their place, Pragmatism values freedom of inquiry, a diversity of inquirers and experimentation. Specifically, the Pragmatist sees the judicial process not as a means to discover the ultimate truth, which once discovered should be forced on all of us, but rather as an exposer of falsehoods, which narrows, but does not eliminate, the area of uncertainty in the case and makes it more likely that the decision in the case, based on its unique facts will not be wrong, while at the same time will not be universally applicable.
Pragmatism in this way rejects the tenets of Formalism, i.e., the modern “Legal Process School,” as well as “Originalism,” by recognizing as Judge Posner elucidates that “the multi-layered character of American Law (legislation superimposed on common law, federal law superimposed on state law, and federal constitutional law superimposed on state and federal statutory and common law), the undisciplined character of our legislatures, the intricacy and complexity of our society and the moral heterogeneity of our population combine to thrust on the courts a responsibility for creative lawmaking that cannot be discharged either by applying existing rules to the letter or by reasoning by analogy the standard judicial technique for dealing with novelty – from existing cases.” This is illustrated by our acknowledged inability to find a single, pure and consistent judicial exemplar of either Formalism or Originalism on the Supreme Court or even on our Maryland Courts past or present.
In its place is the clear and precise manifest of legal pragmatism by Benjamin Cardozo published in his book THE NATURE OF THE JUDICIAL PROCESS. “The final cause of law is the welfare of society.”
Cardozo does not mean by this that judges “are free to substitute their own ideas of reason and justice for those of the men and women who they serve. Their standard must be an objective one” – but objective in a “pragmatic sense,” which as Posner points out, “is not the sense of correspondence with an external reality.” As Cardozo says, “In such matters, the thing that counts is not what I believe to be right. It is what I may reasonably believe that some other man of normal intellect and conscience might reasonably look upon as right.”