Brian Tamanaha (law, St. John’s), has written a provocative article called The Perils of Pervasive Legal Instrumenalism. He observes that “[a]n instrumental view of law–the idea that law is an instrument to achieve ends–is taken for granted in the United States, almost a part of the air we breathe.” Such a view, however, creates a serious problem:
[I]n situations of sharp disagreement over the social good, if law is perceived as an instrument, individuals and groups within society will endeavor to seize the law, and fill in, interpret, and apply the law, to serve their own ends. What results is a contest over law itself, a contest in which all sides seek to enlist the power of law on their behalf, spawning a Hobbsean conflict of all against all carried on within and through the legal order.
Tamanaha observes that one of the dangers is “that a judge would cross over from abiding by the binding quality of law, sincerely trying to figure out what the law requires (however unclear), to instrumentally manipulating the legal rules to reach a personally desired end, much as a lawyer does in service of the client. . . Most every case they decide will be what they personally prefer, to further the aims of the groups that support them, notwithstanding what the law says. This is no longer a system in which the legal rules have any binding effect on judges. It would no longer be a system of law.”
Tamanaha notes that the Realists would be “aghast at the scene today. . . . The Realists understood that legal rules have a built in binding, non-instrumental aspect which defines them as law . . . Despite their intentions, the implications of the ideas they espoused may turn out to undermine the binding quality of law.”
Tamanaha raises some very provocative questions. He doesn’t purport to suggest the answers, but his questions are worth serious thought.
However, I do have some important disagreements with the paper. At the end, Tamanaha argues that “[t]he legal Realists were progressive law reformers who wanted to stop formalist judges from erecting barriers to the social welfare state. . . . The Warren Court tried to bring about greater social justice, but they generated a backlash both in the political and judicial arena in which the progressive values they supported are now threatened by a conservative judiciary.” Further, he contends: “If a mistake was made in the critical attacks of reformists, it was that, in the pursuit of victory, their attacks went too far. Their attacks were wholesale, taken to an extreme.”
This strikes me as a description that might fit the CLS movement, but it is hardly apt for the Legal Realists or Warren Court. Neither the Realists nor the Warren Court engaged in an “all-out destructive attack” and neither neglected to seek to “construct new foundations.”
Additionally, I take issue with his characterization of legal pragmatism.
Tamanaha notes the divergence of substantive viewpoints among legal pragmatists such as Richard Posner, Morton Horwitz, Martha Minow, Margaret Radin, and Mari Matsuda and contends that “[t]his convergence on pragmatism . . . did not reflect a sudden reconciliation among contesting views. They remained as far apart as ever in their substantive vision. The very fact of this convergence confirmed what had been a source of criticism early in the Century: pragmatism is empty with respect to ends, offering no particular guidance or values.” Tamanaha goes on to observe:
The popularity of pragmatism was short-lived, for it was not evident what insight, if any, pragmatism offered to law. Pragmatic philosophy was primarily a negative critique of absolutist theories of truth. When Pound, Dewey, and the Realists invoked pragmatist thought in the legal context in the early 20th Century they were combating prevailing non-instrumental views of the law as abstract principles that were applied in a logical fashion with no attention to social consequences. Pragmatism had real bite then. By the 1960’s and 1970’s, as indicated, a pragmatic approach to law reigned and legal instrumentalism was “the ordinary religion of the classroom.” It is routine for judges today to consider the social consequences of their decisions. Philosopher Richard Rorty concluded that pragmatism in law today is “banal,” as its insights have already been absorbed.
In Can Pragmatism Be Radical? Richard Posner and Legal Pragmatism, Prof. Michael Sullivan (philosophy, Emory) and I argue that Posner’s view of pragmatism does indeed fit Tamanaha’s description. But we also argue that Posnerian legal pragmatism diverges significantly from the views of the classical pragmatists, which we contend were hardly banal and went far beyond being merely a critique of absolutism:
Posner views ideals as useless and philosophical theorizing as empty. Lacking any meaningful approach for scrutinizing social goals, pragmatism thus devolves into an efficiency exercise. The task of the pragmatist becomes merely finding the appropriate means to achieve our given ends. While this search for means may take a critical form, Posner’s account has little to say about the selection of ends. Accordingly, his attack on abstract ideals becomes, in effect, an endorsement of such ideals, since it leaves unreconstructed the dominant moral ideals of present society.
It is not surprising, therefore, that in his theory of democracy, Posner is not interested in promoting methods for the community to develop shared ideals. Rather, the pressing need is for a set of elite managers to serve as efficiency experts, whose goal is to find the most efficient means to achieve our inherited ends. Posner’s view has significant consequences for thinking about the nature of democratic community. Since people are not encouraged to make any effort to form a community on the basis of shared ideals, the dominant normative ideals of society are left to drift haphazardly. Society becomes little more than the collective actions of atomistic individuals. Thus, as with the market, Posner views the equilibrium that emerges from individuals who pursue their own private interests as sufficient to generate the larger social ethos.
Posner’s pragmatism, having eschewed attempts to evaluate ends critically and having effectively pronounced its agnosticism about community ends, leads naturally to a vision of democracy as principally an efficient mechanism for dispute resolution. This vision of democracy is conservative not only because it privileges the inherited demands of the present, but even more because it rules out as misguided the projects of reconstructing community identity through public deliberation. In contrast, the pragmatism of the early pragmatists, especially Dewey, encourages us to approach our present problems more radically. We should subject both means and ends to critical inquiry and empower communities to engage in self-formation by reconstructing the settled habits and ideals that constitute the status quo. For Dewey, “The end of democracy is a radical end. For it is an end that has not been adequately realized in any country at any time. It is radical because it requires great change in existing social institutions, economic, legal and cultural.”
Posner is right in his general view that pragmatism has much to offer to law, as well as to democracy. Its contribution, however, is not a rejection of philosophical theory but a transformation of how we relate theory to practice. Far from being banal or timorous, far from accepting our current practices and institutions as given realities, pragmatism subjects them to criticism and reconstruction. . . .
Sullivan and I argue that pragmatism need not be a neutral method, empty as to ends:
Pragmatism refuses to accept on face value claims about methods being “neutral.” Rather, pragmatism recognizes that our critical investigations are infused with value commitments. No neutral determination is possible. Under this account, the point of philosophy is less a matter of securing objective truth and more a matter of facilitating effective growth in the face of particular problems. Pragmatism is not a method purified of experience. Pragmatism does not start out from some Archimedean point; it begins with commitments, which have certain valences. Pragmatism asks particular kinds of questions and suggests we abandon other types of questions. . . .
While Posner’s thin account of pragmatism seems insufficient for generating substantive ends, a thicker account of pragmatism recommends that a community pragmatically reconstruct its ends. On this thicker account, democracy and pragmatism go hand in hand. As Hilary Putnam observes, for Dewey democracy was “not just a form of social life among other workable forms of social life; it is the precondition for the full application of intelligence to the solution of social problems.” Certain characteristics of democracy facilitate the community’s engaging in pragmatic inquiry about the future shape of its democracy. Pragmatic inquiry enables a community to make itself more democratic. Pragmatism and democracy are thus mutually reinforcing. . . .
Pragmatism is not neutral, and although pragmatism does not strongly lead to a specific and detailed set of ends, it does have valences. We contend:
In order to ask what political future does pragmatism recommend?, we must also ask in what political culture can pragmatic forms of inquiry about the political future best be carried out? The answer to this latter question leads us in the direction of what we call a “general democratic culture.”
First, . . . pragmatism subjects existing institutions and the status quo to ongoing critique, since it recommends that we critically examine our ends. When one commits oneself to a thoroughgoing use of pragmatic method, certain conclusions are ruled out in advance, such as a politics informed by supernatural or transcendental ideals, or a politics that arbitrarily excludes particular viewpoints. Supernaturalism and absolutism conflict with the general approach of the pragmatic method, which is to subject our ideals, ends, and conclusions to the test of experience. Indeed, it is this commitment that in part motivates Posner’s rejection of philosophical theory, for much philosophical theory has traditionally harbored ideological commitments that were then foisted upon the unaware from the altar of theory. But the fear of ideology can lead to cures that are worse than the disease. Although Posner claims to adhere to a neutral pragmatic method without political valences, the results of his application of this method are deeply ensconced in ideology. Posner’s pragmatism does have a particular political valence, one that favors the dominant ends of the status quo. The result is that while Posnerian pragmatism rejects supernaturalism and absolutism, it starts with an unquestioning acceptance of current institutions. Ironically, it winds up in a similar posture to supernaturalism and absolutism, for in each of these instances certain issues are insulated from critical scrutiny. . . .
. . . [I]n contrast to Posnerian pragmatism, the account of pragmatism we offer openly acknowledges that it is not completely neutral. Although pragmatism does not point to precise resolutions for our debates, it does send us in a particular direction based on the types of questions it recommends we investigate. It puts on the table for debate a wide range of issues, especially the identity of a community and its ends. It requires dialogue, for the task of determining a community’s ends cannot be achieved without communication. And it relies on the participation of the community, not merely upon a group of elites who impose their own ends upon the community. . . .
Therefore, while Tamanaha has diagnosed a significant problem with many current instrumentalist views of the law, the problem is created by certain kinds of instrumentalist theories of law, not by instrumentalism in general. This might appear to some to be a subtle distinction, but I believe that it makes all the difference in the world.
Far from abandoning an instrumentalist view of the law, the answer lies in a richer understanding of legal instrumentalism beyond the simplistic and dead-end accounts that are currently pervasive. The answer, I believe, is to return to the project begun by the philosophical pragmatists (such as John Dewey and William James) and the Legal Realists (who were heavily influenced by the pragmatists). Their project ought to be revisited, as it need not necessarily lead to Tamanaha’s stark vision of legal instrumentalism today. In fact, a return to exploring the ideas of the pragmatists and Realists might show us the different paths instrumentalist theories of law can lead to, and how we might move from the path we’re on to a better more productive path.
Disagreements aside, Tamanaha’s article is quite thought-provoking, and he is asking essential questions about the future of legal theory and of law in general.
Thanks to Larry Solum for the pointer.
Originally posted at PrawfsBlawg
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.