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LEGAL THEORY
Richard A. Posner (1996). ‘Pragmatic Adjudication,’ Cardozo Law Review, Vol. 18, pp.
1-20.
INTRODUCTION
What is pragmatic adjudication? How does it differ from the philosophy of
pragmatism? Should the appellate courts adopt a pragmatist orientation to
adjudication? These are the three important questions that Judge Richard Posner of
the U.S. Court of Appeals, Seventh Circuit and Senior Lecturer in Law at the
University of Chicago addresses in this paper from 1996. This essay will summarize
the main points raised by Judge Posner because in addition to the three questions
raised above, he also tries to delineate the scope of pragmatist adjudication both in the
United States and elsewhere. That is why this paper will be of interest to students of
law and members of the judiciary in both the United States and in those countries
which follow the British model. Let me note at the outset that Judge Posner does not
claim that pragmatist adjudication will travel everywhere. In other words, there are
legal systems where it is easier for judges to follow rules rather than standards.
Furthermore in countries that use a parliamentary model based on a unicameral
legislature, or where parliament is supreme, the judiciary does not have to subject
legislation to judicial review but can just go ahead and apply the existing provisions
within statutes. It is therefore important for readers of this essay to situate whether
they are reading it from an American point of view or whether they are wondering
to what extent pragmatist approaches to adjudication is useful in their part of the
world. Much of the misunderstanding that plagues legal theory is based on readers
assuming that legal theorists expect any given approach to be applicable everywhere
in the world. That is why Judge Posner makes it clear that he is speaking mainly

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about an American approach to adjudication that may or not be relevant elsewhere.
Any attempt to apply the insights in this essay and the paper on which it is based
should therefore be cognizant of the socio-cultural differences between legal
systems. Having said that, the audience for this essay is most likely to be those
readers who are pondering on the relationship between theory and practice within
the ambit of comparative law in the Anglo-American world and in those countries
which have modelled their legal systems in part or in full on the precepts and
precedents of the Anglo-American approach to common law, legal theory, and
jurisprudence.
PRAGMATISM & THE HUMANITIES
It is also important to note that Judge Posner’s paper was first delivered in a
humanities symposium in 1995 keeping in mind the needs of those in areas like
English studies, history, and philosophy. These humanists were mainly concerned
with the ‘revival of pragmatism’ as a theoretical orientation in American law and in
American approaches to humanities. It is important to keep this in mind since most
critiques of pragmatism proceed on the assumption that American pragmatists are
making universal claims about the nature of language, meaning, science, and truth.
Judge Posner assures his reader that it is not his intention to make universal claims.
This is all the more important because pragmatism has an American flavour and the
Americans have not tried to export pragmatist approaches in the law to the extent
that we might think to be the case. An important point that comes up in Judge
Posner’s paper is precisely the question of whether pragmatist adjudication should
be derived from the philosophy of pragmatism. In other words, he wonders whether
it is necessarily the case that pragmatist adjudication should be based on a formal
philosophical stance. Judge Posner prefers to see pragmatist adjudication as a
collection of approaches in the law based on whether an approach works in practice
and whether the judiciary can anticipate and ameliorate the consequences of its
decisions rather than on whether it is consistent with previous approaches from a
legalistic point of view. In other words, the main difference between legalism and
pragmatism is that legalists look backwards and pragmatists look forwards.

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Legalists tend to be positivists; they believe that ‘the meaning of law is exhausted in
positive law.’ In other words, judges do not have to worry too much about the
contexts and consequences of their judicial actions and remedies. Pragmatists
however are more concerned with the gaps in the law. They know that in practice
the law cannot be exhausted in the legal materials that constitute the case; it is
therefore important for judges to be sensitive to the contexts and consequences of
what they do. Furthermore, it is not possible to draft statutes such that it is
completely devoid of all gaps and in a way that anticipates all possible contingencies.
The transaction cost of such a statute would be extremely high even if such a thing
were possible in principle. But in so far as statutes are linguistic constructs put
together in a hurry by imperfect legislatures, judges have to reconcile themselves to
the fact that there will always be endemic gaps in the law which they will have to
take care of when they resolve specific cases. Legal pragmatists – unlike legal
positivists – have a greater tolerance for the inevitability of this process of judges
filling in the gaps within statutes or the case law in any given area. There may also
be instances in which statutes simply have nothing to say that can serve as a rule to
resolve a case; this might force judges to improvise as they go along. These then are
some of the reasons why a pragmatic orientation is useful in adjudication. Pragmatic
judges are more willing to make the trade-off between the past and the future in
specific acts of adjudication.
TEXTS & CONTEXTS IN ADJUDICATION
Judge Posner then goes on to explain what judges do with legal materials
comprising texts like constitutions, statutes, and precedents. Judges who are legalists
stick to the texts of the law; pragmatists try to interpret the legal materials within the
contexts that would be relevant in ascertaining the intended and the unintended
consequences of their decisions. The main drawback with the legalistic approach is
that it cannot cater to contingencies that are not mentioned or listed in the relevant
statute. Sometimes statutes are written in a way that presupposes or specifically
mandates that judges will fill in the details in order to generate the case law that will
govern the interpretation of particular provisions and sections of a statute. The

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Sherman Act of 1890 is a good instance of this. So taking too legalistic an approach to
Sherman may not be possible in principle or in practice. In these instances, where
statutes are not fully written out, judges serve as co-legislators. This is not the same
as judge-made law in which gaps remain in the statute despite the best efforts of the
legislators to draft statutes without gaps. In the Sherman Act, gaps were a part of the
legislative intent rather than a failure on the part of the legislature to anticipate the
future contexts in which the act would be applied. That is why pragmatists consider
the legal materials in a case to be necessary but not always sufficient. That however
does not mean that judges are always good at supplementing what is missing since
they are not trained as social scientists to deal with huge amounts of data. Having
said that, however, Judge Posner points out that legalists like to start with the law
while pragmatists start out with the facts. In other words, the difficulties involved in
dealing with the facts will not make the facts go away. A number of landmark cases
have deployed ‘the Brandeis brief’ (i.e. the marshalling of social facts) to change the
law or overturn a precedent including Brown v Board of Education (1953/54). Judge
Posner also gives a few examples of the differences between legalistic and
pragmatist approaches to adjudication. His main takeaway is that pragmatists are
more likely to have a ‘sense of proportion’ or use methods like cost-benefit analyses
in their attempts to resolve cases. Legalists however prefer a ‘rule of law’ approach
no matter what the cost factors might be in specific instances of adjudication. That
does not mean that pragmatists think only of consequences – that is a wide spread
misunderstanding of pragmatism since completely disregarding the legal materials
in a case will only lead to ‘judicial tyranny.’
CONCLUSION
Why is the American judiciary preoccupied with pragmatism?
This is an important question given that most legal systems in Britain and Europe
follow a rules-based system. The most important reason for this is that these non-
American systems cannot subject laws made by their legislatures to judicial review.
Even when the mechanism of judicial review exists, it is limited in scope unlike in
American law. Furthermore, constitutional courts in many parts of the world follow

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a form of ‘anticipatory adjudication’ (in the absence of judicial review) by giving
their governments ‘advisory opinions’ when required. The American judiciary
however is not allowed to give advisory opinions and must intervene only in actual
cases and controversies. These are a few important points in comparative
constitutional law that must be kept in mind before assessing the usefulness of
pragmatist approaches to adjudication. Since English law has neither a federal
structure nor the possibility of judicial review, it is a different animal altogether from
American law. The main difficulty in American law is that American judges have to
contend with not only a ‘tricameral federal structure,’ but also with ‘three-headed
state legislatures.’ Furthermore, each American state has its own state constitution in
addition to the federal constitution and a state court system in addition to the federal
court system. An important responsibility for the federal judiciary is to resolve
conflicts in the law since state and federal law may not be in harmony with each
other. These complexities however are not the case in all legal systems. A rule-based
system then, by definition, which many American judges are nostalgic for is only
possible in the absence of these variables. That is why American judges are less
modest than English judges who find it easier to just find and apply the law. That is
why the American judiciary is dominated by pragmatist judges.
It is incorrect therefore to apply the ongoing conflicts between rationalism and
pragmatism within departments of philosophy to make sense of American law.
Judge Posner therefore concludes that the pragmatist approach to adjudication is not
meant to be dependent on any form of philosophical thinking including pragmatism.

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As Judge Posner puts it, ‘philosophical pragmatism does not dictate legal
pragmatism or any other jurisprudential stance.’ But what it can do is to ‘play a
paternal and enabling role in relation to pragmatic theories of law.’ That is what
Judge Posner himself has tried to do by invoking both the philosophy of pragmatism
and the pragmatist approach to adjudication in this paper.
SHIVA KUMAR SRINIVASAN