Legal Pragmatism and Judicial Decision-Making
Legal pragmatists think that traditional models of judicial decision-making
are severely flawed. The legal pragmatist thinks that traditional models are
overly legalistic, naively rationalistic and based upon misunderstandings of
legal institutions. As opposed to the self-imposed limitations entailed by
traditional models of judicial decision-making, legal pragmatists emphasize the
eclectic nature and the diverse aims of the law. More specifically, legal
pragmatists largely agree upon four main aspects of a pragmatist version of
jurisprudence: (1) the important of context; (2) the lack of foundations; (3)
the instrumental nature of law; and (4) the unavoidable presence of alternate
For the legal pragmatist all legal controversies are essentially attached to a specific and unique context. As Judge Richard Posner puts it, emphasizing the unavoidable presence of a specific context "disconnects the whirring machinery of philosophical abstraction from the practical business of governing our lives and our societies." While there is some irony in a foremost proponent of neo-classical economics critiquing "philosophical abstractions," Posner here correctly highlights the contextualist's slogan of "return from abstractions to the concrete." The contextualism of legal pragmatism is best shown in Justice Holmes' strategy whereby he used historical analysis to expose such seemingly timeless abstract legal concepts as being actually derived from contingent and context-specific needs. Through this strategy the illusion of an eternal set of essential legal concepts is exposed as actually being a contingent creation of specific conflicts. While even legal formalists expect to apply concepts to a context, the legal pragmatist differs in seeing the concepts themselves as products of context. Because of this, the assumption that the legal concepts are applicable beyond their originating controversy is questioned.
The basic claim offered by the contextualist critique is that all legal
decision-making, as well as any legal controversy, takes place in a specific and
unique context that is so constitutive of the issues and the ultimate decision
that the decision is distorted if seen from a non-contextual perspective. More
importantly, the concepts used are questionable when applied between different
controversies. Because of this, the abstractionist tendencies of the classical
view of legal decision-making is thought undesirable and a view that emphasizes
context, such as the legal pragmatist's, to be superior.
In addition to the need to emphasize context, the legal pragmatist also argues that the lack of foundations in legal decision-making must be recognized. Foundationalists hold that there is some core principle or principles that all legal decisions can be deduced from. While today very few will admit to an extreme view of such foundationalism, most legal theorizing assumes a more moderate foundationalist view. This moderate view argues that the judge has a sufficient set of tools from within the traditional materials of the classical view of legal decision-making (the case method) to make properly informed decisions in present cases. In other words, the moderate view sees cases as the necessary and sufficient foundation from which to deduce sufficiently analyzed legal conclusions.
A legal pragmatist sees this as descriptively wrong. First, "the idea that
correct outcomes can be deduced from some overarching principle - or set of
principles" is rejected. In place of deductive certainty
is offered a picture of induction and an emphasis upon the creative
problem-solving act of jurisprudence. Second, pragmatism in general stands for a
rejection of the metaphysical picture of knowledge or decision-making that sees
either as needing (or indeed having) a foundation. Knowledge and reason in law,
as in any other domain, are seen as essentially open-ended concepts in need of
continual testing and revision, and therefore law is an activity that would
outgrow any purported foundations. So, if cases are thought to provide a
foundation to legal decisions the legal pragmatist argues that they will not be
inevitably up to the challenge of the next case, and therefore the foundationalist picture is at the very least incomplete.
While the classical view of legal decision-making emphasizes consistency with past decisions (the high value of respect for precedent), the instrumentalist advocates an investigation of the effects a decision might have and the capabilities of the legal institution. An instrumental view is therefore less interested in precedent and more based upon a "orientation towards the future." That is, instead of an emphasis upon consistency with the essence of past decisions the pragmatist judge looks to the worldly implications of his or her decision. For instance, in a contract dispute a judge following the classical model of legal reasoning would look to antecedently held rights and obligations as shown in earlier cases in order to decide. A pragmatist judge, on the other hand, would see those issues as important but would also look at the greater implications for contract disputes in the future. This prospective attitude would bring in data as to the effects of the contract decision upon third parties, how a ruling would affect daily life, etc.
This orientation towards the future, and towards the empirical, means that
for the legal pragmatist judge a whole new set of reasons become applicable and
legally relevant when making a decision. While the advocate of the classical
view can limit the reasons and facts to those allowed in the analogous cases,
the cases accepted as precedents, the pragmatist judge must allow in other sorts
of data, for instance sociological or economic data, in order to properly access
the individual case at hand. Therefore, instead of emphasizing the primacy of
consistency with precedent, a pragmatist of a legal bent emphasizes "the primacy
of consequences in interpretation."
Finally, the legal pragmatist adopts a stance that embraces the problem of perspective. Perspectivalism entails a suspicion of broad generalities and an acknowledgment of eclectic manners of description. As opposed to legal formalism, which "holds that determinate meanings exist in legal texts which may be discerned by reason and that objective, immutable principles simultaneously inform and transcend the practice of applying rules," perspectivism emphasizes that all is messy, open-ended, and subject to revision in light of another perspective or further information. The acknowledgment of perspective entails that an overly deferential stance towards precedent and previously endorsed analogies could be unfairly restrictive towards new and possibly more inclusive descriptions.
As can be seen from the above, legal pragmatism offers a significant alternative to more traditional views of the legal domain. In fact, Stuart Scheingold argues that this lack of awareness of conflicting perspectives is a pervasive quality of traditional legal thought. As he puts it "Law professors and lawyers do not believe that they are either encumbered or enlightened by a special view of the world. They simply feel that their legal training has taught them to think logically. In a complex world, they have the intellectual tools to strip a problem, any problem, down to its essentials (Scheingold 1974, p. 161)." But if such an assumption is itself just one perspective, and one that obviously would distort any appreciation of other alternative perspectives, such ignorance of their own perspective would be an important vice to identify.
But important issues remain even if one finds such a description of legal
pragmatism attractive. First, is legal pragmatism offered as a descriptive or a
normative picture of jurisprudence? Second, does such a stance really offer any
desirable features that the more classical picture of law cannot deliver or does
it suffer from more intractable flaws?
Pragmatism as a Normative Theory
Because neither option seems to accurately fit what really goes on in the jurisprudential domain, perhaps legal pragmatism should be better thought of as a normative theory. That is, perhaps it is a conceptual stance offered as a picture of what judicial decision-making should be.
In its normative mode legal pragmatism treats law and the legal realm as a tool useful for social purposes. The legal pragmatist opposes the a priori and rationalistic style of argumentation traditionally applied in legal argumentation by arguing that such methods have no valid claim to authority and, indeed, lack the tools necessary to justify their own adoption. The more traditional style of legal reasoning, that which keeps its attention upon cases, excludes broader and more scientifically warranted data. Therefore the user of the classical theory can offer not much more than a heart-felt and resounding exclamation - "it works" - when confronted with the question of the empirical effectiveness of a decision. All pragmatist thought brings with it a suspicion of unquestioned and non-experimental pictures of reason. Indeed the pragmatist is liable to see in such a claim something akin to the statement "because God commanded it." This "it works" exclamation is an example of just such an a priori, rationalist and non-experimental claim. What exactly does it work in comparison to? For the pragmatist such statements only have meaning if they can be tested, and the classical picture of jurisprudence doesn't have the tools with which to test such claims in each case or on a more global level.
On the other hand, adoption of a pragmatist theory offers the ideal of a
system rooted in experience and the experimental method. As opposed to the
overly rationalistic and insular picture of legal decision-making offered by the
classical legal theorist, the legal pragmatist argues for a more empirical
jurisprudence. The normative argument, in outline, is that a jurisprudential
theory rooted in sensitivity to context, a theory that functions without a
belief in false foundations, one that is judged along explicitly instrumental
criteria and that also acknowledges the inevitability of perspective, is better
suited to bring about justice in a complex and unpredictable world than a theory
that rests upon untested essentialistic assumptions and a non-experimental and
universalistic view of reason.