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LEGAL THEORY
ON PRAGMATISM & THE LAW
Richard A. Posner (1990). ‘What Has Pragmatism to Offer Law?’ Southern California
Law Review, Vol. 63, pp. 1653-1670.
INTRODUCTION
This essay reviews the main points raised by Judge Richard Posner of the U.S. Court
of Appeals, Seventh Circuit, Chicago and a Senior Lecturer in Law at the University
of Chicago. Judge Posner’s interest in legal pragmatism relates to the fact that he is
himself a pragmatist. Furthermore, given his interest in jurisprudence and legal
theory, Judge Posner finds it important to situate what pragmatism has to offer the
discourse of law. The importance of pragmatism in the law is related to the fact that
it is not only gave rise to legal pragmatism but also to legal realism. While both legal
pragmatism and legal realism subsequently went into decline, their preoccupation
with certain themes and methods of legal reasoning were absorbed into the different
schools of legal theory. Most schools of legal theory are not only affected by but also
relate themselves to each other in order to define the scope of their work. So it is not
easy to say what exactly pragmatism is. Judge Posner therefore prefers to work with
a model of legal pragmatism that includes an eclectic collection of approaches to
legal reasoning. Needless to say, what legal pragmatism is, or is not, depends on
which legal theorist we are talking to. That is the case for what we mean by
pragmatism in philosophy as well.

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PRAGMATIST THINKERS
So in order to work out the basic tendencies in legal pragmatism, we have to identify
the main thinkers in the pragmatist tradition and ask what each of them means by
pragmatism. If we do so, then, we realize that what pragmatists in philosophy and
the law have in common is a preoccupation with the ‘consequences’ of human
actions and decisions. This may not seem much to go by given that economists and
policy makers also believe in consequences – both intended and unintended. So what
does it really mean to take consequences seriously? That then is the problem that
confronts Judge Posner at the outset of his inquiry into the genealogy of pragmatism.
Furthermore, not all pragmatist thinkers are philosophers. Some are anthropologists,
educationalists, lawyers, judges, and literary critics. In other words, what Judge
Posner is confronted with is the need to sift through pragmatist approaches within
different areas of expertise. That makes it even more difficult to delineate the
contours of pragmatism. While we tend to think of pragmatism as necessarily
American in its orientation, Judge Posner traces it right back to the ancient
philosopher, Epicurus. American philosophers who are usually described as
pragmatists include Charles Pierce, William James, John Dewey, and George Mead.
Jurists influenced by pragmatists comprise Justice Holmes, Benjamin Cardozo,
Jerome Frank, William Douglas, Karl Llewellyn, and many others.
LEGAL PRAGMATISM
Both legal pragmatism and legal realism went into decline at the end of World War
II, but were revived by different schools of legal thought starting in the 1960s. What
came before WWII is the old school of pragmatism; what comes after is the new
school of pragmatism. After comparing these schools of legal theory, Judge Posner
will go on to list and analyse the eight points that will explain what pragmatism has
to offer to the law in the contexts affected and generated by the new school. While
pragmatists have got involved in a number of areas including law, science, and
philosophy, it would not be a stretch to say that if pragmatism is not successful in
the law it is less likely to be successful anywhere else. That is because legal discourse
has to necessarily think about consequences given that legal interpretations have the

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force of the law (unlike say literary interpretations) behind them. Legal pragmatists
therefore think not only about the consequences of interpretation, but also about
whether these interpretations will further the cause of social welfare. Judges always
come under pressure to fill in the gaps in the law in order to further social welfare;
that is however true not only of judges with a pragmatist orientation but all judges.
The main difference though is that legal pragmatists are more conscious of what
they are doing in such situations because their pragmatist orientation prepares them
to think in the idiom of consequences and social welfare.
THE PRAGMATIST ORIENTATION
The jurists whom Judge Posner lists as having a pragmatist orientation do not
necessarily partake of the same legal doctrines.
In terms of the actual content of the law, they differ. Nonetheless, what they have in
common is a preoccupation with some form of social welfare and whether specific
approaches to the law will make a difference. That is why these jurists are described
as pragmatists even though they subscribe to different ideologies. In addition to the
above mentioned attributes, pragmatists also try to subsume dualist approaches in
philosophy. They do not, for instance, use the subject-object dichotomy in their
epistemology. They argue instead that while the subject of knowledge and the object
of knowledge may be physically separated, they are not psychologically separated.
The observer can only describe the world from a particular point of view. What we
mean by objective reality is nothing more than our ability to manage in everyday life
with this partial representation. Our inability to understand the entirety of a
situation however does not mean that we cannot understand the world. What it

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really means is that we understand through the epistemological equivalent of trial-
and-error and not in the form of pre-existing representations. That is why even
scientific theories are subject to constant revisions. Pragmatists philosophers believe
that all scientific theories are ‘underdetermined by data’ – that is there will never be
enough data to explain empirical phenomena as though that could give us a glimpse
of the mind of God. While toying with such scientific fantasies can be a spur to
intellectual growth, it is not actually possible to size up the mind of God or whoever
might have made the world. We are then at best condemned to an interactive model
of reality. So the function of scientific theory is not to bring us closer to ultimate
reality which, by definition, will remain beyond the reach of human understanding.
These then are broadly speaking the cognitive attributes of those who have a
pragmatist orientation.
CONSEQUENCES OF PRAGMATISM
This pragmatist orientation is reflected in the work of jurists like Benjamin Cardozo
on the judicial process in which the telos of the law is defined as ‘social welfare.’
The goal of the jurist was to further this to the extent possible. Legalist approaches to
the law were however preoccupied with the law as such rather than the ways in
which the law could be deployed to further social welfare. Legalist approaches were
acceptable as long as they could deliver justice. But, if the law was not designed to
further social welfare, or had become obsolete, then, it was necessary for the
legislature to either proactively reform the laws in order to keep them up-to-date or
let the judiciary interpret the laws in ways that would be in conformity with the felt
needs of the time. The pragmatist has use for objectivity, but the term ‘objectivity’ is

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defined as what ‘some other men of normal intellect and conscience might look upon
as right.’ In other words, legal rules were to be interpreted ‘in instrumental terms
implying contestability, revisability, and mutability.’ The objection to this approach
could be that pragmatists are conflating the difference between law and public
policy – that is the judicial function with the executive function or legislative
function. Why not let the courts focus on the judicial function and let the executive
and the legislature focus on public policy? That way the courts can look backward
and the executive and the legislature can look forward. There will be space for both
Aristotle’s corrective justice and the pragmatist’s need to further social welfare.
DIRECTIONS IN LAW & POLICY
There is no reason to believe that these approaches cannot co-exist; in fact, they
already do. It is more a case of our not being able to recognize that they do because of
the human propensity to play favourites. So while it is true, as the pragmatists insist,
that constitutional law is what it is because it was shaped in the mind of John
Marshall; it is also a fact that it survived as a discourse long after he had completed
his stint at the Supreme Court.
So while constitutional law was forged decisively by John Marshall, it is not reducible
to the career of John Marshall. Any theory of law must explain not only ‘origins’ but
also ‘goals’ and why it prefers to be backward looking or forward looking. It is also
important to emphasize as electorates do that we must know when to be forward
looking and when to be backward looking. Insofar as the Supreme Court follows (or
is thought to follow) the election returns, it is but acknowledging the need to invoke
the temporal dimension to resolve ideological quandaries at the level of public
policy. This problem is significant in legal theory because, as Judge Posner points

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out, pragmatism was more successful with the common law rather than in the area
of statutory interpretation. The judge has more leeway in the common law. Even
while jurists like Holmes and Cardozo thought that the judge is like an ‘interstitial
legislator,’ it overlooked an important difference between the judicial and legislative
functions. Legislators are subject to much more pressure from interest-groups than
judges who have the autonomy to get their jobs done. Furthermore, the legislative
function varies across historical periods. Not all legislatures were as ‘progressive’ as
those that tried to come up with the New Deal. So it is important that legalist judges
do not overemphasize the importance of ‘legislative intent’ or deferring to the
authority of the legislature as an end in itself. Judge Posner goes to the extent of
describing some statutes as ‘perverse’ in their intent. A pragmatist committed to
using the law as a tool of social welfare and justice has to ask himself whether the
danger of reading his personal preferences into the law outweighs the risk of
implementing legislation that he knows to be perverse. In other words, a judge can
exercise as much ‘restraint’ as he wants when the legislation is not perverse, but
must consider a more equitable approach when the needs of justice require an
intervention. That is why the analytic distinction between courts of chancery and
courts of equity in the quest for judicial remedies were made available in English
law in the first place.
COMPROMISES WITHIN LEGALISM & REALISM
If there was an absolute guarantee that the laws will always be just and that they will
never go obsolete, there would have been no need for equity in the history of the
law. In other words, legislators must do what legislators do – i.e. get it right every
now and then – and judges must do what judges do – ensure that when legislators
get it wrong, they will do what is within the scope of their authority to improve the
situation for litigants. So it appears to me that neither legalism nor realism will go
away once and for all as fundamental tendencies in the law. A pragmatist judge then
is somebody who knows when to invoke the rhetoric of legalism and when to deploy the
rhetoric of realism. Judges who lack this ‘flexibility’ however insist that they will
always have to be either legalistic or realistic in their approach to the law. But a close

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reading of their judicial opinions will show that is in fact not the case. If the judiciary were
as inflexible as all that, we will have as many seriatim opinions as there are judges in
a given bench. But we know that is not the case anymore in the American federal
judiciary.
We also know that unanimous opinions increase the authority of the courts as an
institution that is competing for mind space with other branches of government. In
actual practice, we find that judicial benches compromise between too many seriatim
opinions and too few unanimous opinions. Judicial opinions then are usually
‘compromise-formations’ in which judges try to find common ground. That is why
there is an important difference between law faculty seeking to ‘purify’ their
commitments to specific schools of legal thought and judges who try to practice the
art of compromise in order to find a place for themselves within the majority opinion. Judges
who do this every day write the majority opinions and shape the law going forward.
What is really important for the pragmatist then is not to worry about what judges
‘say’ they are doing, but examine what they are actually ‘doing.’ That is why
pragmatists try to be ‘progressive, secular, and experimental’ in their approach to
the law and use common sense whenever it is appropriate to do so.
Judge Posner then summarizes the eight things that pragmatism has to offer the law.
They comprise the following:
1. Pragmatism makes it possible to make a strong case for the ‘marketplace of
ideas’ as the locus in which the truth about any given situation can be
hammered out in societies that take capitalism and democracy seriously. In
order for such a market to function, the courts must provide the protection
necessary to further the cause of free speech as enshrined in first amendment
jurisprudence.

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2. Pragmatism is less invested in metaphysical entities like ‘mind, intent, free
will and causation’ whose existence cannot be proved scientifically. Instead
while resolving cases in both civil and criminal law, jurists should infer the
defendant’s mind in terms of everyday terms like ‘dangerousness’ rather than
abstruse terms like ‘intent.’ In other words, it is not necessary to look into the
defendant’s mind in criminal trials or even within the law of torts to prove
negligence. In determining questions of liability, it might be therefore easier
to resolve cases if judges and lawyers work with ‘social’ criteria rather than
with abstract ‘mental’ criteria.
3. Pragmatism can moderate the excesses of legalism which retreats every now
and then into the law as such rather than relate the law to the world. While
legalism has its uses, it should not make a fetish of the law. Instead, it should
use the law to further the cause of justice and social welfare. In other words,
the rule of law will prevail only if the law is a means to an end rather than an
end in itself.
4. Pragmatism differentiates between literary and legal forms of interpretation.
The former has fewer or no consequences at all. It is therefore acceptable to be
a ‘textualist’ in the strong sense within literary criticism. Judges however will
have to be on the lookout for both intended and unintended consequences of
their decisions. So while dwelling within legal texts is a necessary
precondition for acts of legal interpretation, it is not sufficient. Otherwise,
judges will find themselves doing a form of textual hermeticism and loose
contact with reality. The risk factors in doing so should be obvious since the
law can be a matter of life and death for litigants seeking justice in the courts.
5. Pragmatism provides judges with a sense of instrumentalism so that they are
able to relate the law’s need for stability and continuity with society’s need for
change.
6. Pragmatism relates the law to economics more successfully than any other
approach without worrying about the problem of theoretical foundations. But
that is not to say that it is indifferent to questions posed by Kantian and
utilitarian philosophers. On the contrary, the law and economics movement
has engaged with questions of both markets and social welfare by using ideas
from both these approaches – the Kantian and the utilitarian.
7. The law and economics movement is not reducible to a form of ‘scientism.’ It
is therefore important to differentiate between scientistic philosophy which is
preoccupied with ‘natural science’ as a model for human and social action
with law and economics which tried to apply scientific methods in the ‘social
sciences’ to model social behaviour given a particular set of costs, benefits,
and incentives in the context of any given transaction.

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8. Pragmatism calls attention to the importance of rhetoric and persuasion as the
sources of effective communication to survive in the marketplace of ideas.
The function of change relates not only to the level of policy, but also to how
we use language to communicate theories, ideologies, and other ‘intellectual
wares.’
CONCLUSION
These eight attributes then are what legal pragmatism has to offer the law. The goal
of the pragmatist is not to have the last word on the subject, but to emphasize the
contingent dimension in any attempt at solving the problems of law, economy, and
society. The economic analysis of law is a specific instance then of addressing legal
problems by using the tools of economics without making a fetish of these tools.
These tools matter only until better tools become available. Likewise, the legal
pragmatist is keen to emphasize that while the law is necessary, it is not sufficient; it
requires a supplement from the external world.
It therefore prizes interdisciplinary approaches as a form of supplementing the law
but it does so without the fantasy that the supplement implies absolute forms of
epistemological closure in the law, economics, or anywhere else. Legal pragmatism,
to conclude, ‘signals an attitude, an orientation’ and ‘at times a change in direction.’
SHIVA KUMAR SRINIVASAN