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Can Pragmatism Be Radical? Richard Posner and Legal Pragmatism |
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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.
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