The Yale Law Journal Company, Inc

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The Pursuit of Pragmatism

Author(s): Steven D. Smith
Source: The Yale Law Journal, Vol. 100, No. 2 (Nov., 1990), pp. 409-449
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The Pursuit of Pragmatism
Steven D. Smitht
Half a decadeago, pragmatistlegal scholarswerewontto regardthemselves

as voices crying in the wilderness.Robin Westlamentedthe "demiseof prag-
matic liberalism,"1which had been displacedby a more theoreticalversionof
liberalism founded on the ideal of neutrality.Anthony Kronman,writing in
supportof a "prudentialism" thatpartookof manyof the characteristicsassoci-
ated with pragmatism,2was similarlypessimistic about the "rationalistethos
of our times."3
At aboutthe same time,RonaldDworkinwas castigatinglegal pragmatism,
but he evidently believed that the objectof his criticismwas virtuallydefunct
already."Manyreadersmust have been shocked,"Dworkinspeculated,by the
very descriptionof legal pragmatism;andsuchreaderswould"besurprisedthat
anyone would proposepragmatismas an eligible interpretationof our present
[legal] practice."4Lest he be accusedof brutalizinga strawman, Dworkinsaw
fit to attempta modestrehabilitationof legal pragmatism5 beforehe proceeded
to demolish it.
But history,as we know, can take suddenand surprisingturns.Five years
afterWestand Kronmanofferedtheirdismaldiagnoses,leadinglegal thinkers
are celebratinga "Renaissanceof Pragmatismin AmericanLegal Thought."6
Numerouslegal scholarstoday are pleasedto claim the title of pragmatist.7If
t Professorof Law,Universityof Colorado.I thankPaul Campos,FredGedicks,ThomasGrey,Kerry

Macintosh,Chris Mueller,RobertNagel, and Art Traversfor readingand commentingon earlierdraftsof
this article, and Pierre Schlag for numeroushelpful conversationsaboutits subject.
1. West, LiberalismRediscovered:A PragmaticDefinitionof the Liberal Vision,46 U. PIrr. L. REV.
673, 736 (1985).
2. Kronman,AlexanderBickel'sPhilosophyof Prudence,94 YALEL.J. 1567 (1985).Kronmanasserted
that prudentialismis "pragmaticand contextual."Id. at 1571.
3. Id.
4. R. DWORKIN,LAW'S EMPIRE151-52 (1986).
5. Id. at 148-50.
6. Symposium:TheRenaissanceof Pragmatismin AmericanLegal Thought,63 S. CAL.L. REV.1569
(1990).
7. In additionto the West and Kronmanarticles and the Symposiumarticles noted above, a shortlist
of representativewritings of legal scholarsofferedunderthe bannerof "pragmatism"
would includeFarber,
Legal Pragmatismand the Constitution,72 MINN.L. REV.1331 (1988);Grey,Holmes and Legal Pragma-
tism, 41 STAN. L. REV.787 (1989);Hantzis,Legal Innovationwithinthe WiderIntellectualTradition:The
Pragmatismof Oliver WendellHolmes,Jr., 82 Nw. U.L. REV. 541 (1988);Stick, Can NihilismBe Pragmat-
ic?, 100 HARV. L. REV. 332 (1986).
409
410 The Yale Law Journal [Vol. 100: 409
to these are added scholarswho see law as a kind of "practicalreason"8and

feminist scholarswhose views overlapwith pragmatism,9 the pragmatistcamp
expandssignificantly.Indeed, even scholarswho label themselves as critics of
legal pragmatism,such as Dworkin,may in reality be unconfessedpragma-
tists.l0Thus it seems only a slight exaggerationto suggest that a movement
whichfive yearsago includedalmostno one todayappearsto embracevirtually
everyone.
This surprisingdevelopmentraises difficult questions.Whatexplains the
rush to legal pragmatism?And is the movementlikely to producebeneficial
resultsfor law and legal thinking?Those issues in turnprovokean even more
preliminaryquestion: What exactly is legal pragmatism?This preliminary
questionis particularlytroublesomebecausethereis an emergingsuspicionthat
if we look too closely for legal pragmatism,we mightnot find anything-or at
least not anythingworth discussing.1 Thus, ThomasGrey writes that "much
pragmatist theory . . . [is] essentially banal. At its most abstract level it con-
cludes in truisms .... "912 In a similar vein, RichardPosner begins a recent
essay on legal pragmatismwith a quotation from T.S. Eliot: "'The great
weakness of Pragmatismis thatit ends up by being of no use to anybody.'"'3
Thesesuspicionsareall the moretroublesomebecausethey come fromthought-
ful scholarswho proclaimthemselves, with evident pride, to be pragmatists;
indeed,Greygoes so far as to say thatlegal pragmatism"is notjust one theory
among others, but (for now, as far as we can see) the right theory, the best
theory."14
In dealing with such questions, the tasks of definition, explanation,and
evaluation cannot be nicely separated.It is difficult to discuss why legal
pragmatismhas suddenlybecome appealing,or whetherit has much of value
8. See, e.g., Eskridge& Frickey,StatutoryInterpretationas Practical Reasoning, 42 STAN.L. REV.

321, 323 (1990)(associating"practicalreason"with pragmatism).Daniel Farberassertsthat"pragmatism,"
"intuitionism,""prudence," "institutionalism,"and"practicalreason"areroughlysynonymousterms.Farber,
supra note 7, at 1334-35.
9. See Hantzis,supra note 7, at 543 (observingsignificantoverlapbetweenfeministjurisprudenceand
legal pragmatism);Radin, The Pragmatistand the Feminist,63 S. CAL.L. REV.1699 (1990) (discussing
relation between pragmatismand feministjurisprudence).
10. See Radin,supranote 9, at 1722 (assertingthat"itis clearthat [Dworkin]is a pragmatistof sorts").
For my own analysis of Dworkin'spragmatism,see infra Section I.B.
11. See Rorty,The Banalityof Pragmatismand the Poetry of Justice, 63 S. CAL.L. REV.1811, 1813
(1990)(suggestingthatlegal pragmatismis "banal"andthatdespitepolitical differencesthereare no "inter-
esting philosophical differences"dividing legal scholars as seemingly diverse as RobertoUnger,Ronald
Dworkin,and RichardPosner)(emphasisin original);see also Schlag,Contradictionand Denial, 87 MICH.
L. REV.1216, 1221 n.14 (1989) (noting "conceptualvacancy of the pragmaticapproach"and suggesting
thatcurrentlegal pragmatismis "justa glossy publicrelationscoverfor the promotionof the highly stylized
rhetoricof the lawyer's brief"). Schlag's criticism is directednot against"'true' pragmatism"but rather
against "the practice of pragmatismwithin the legal community."Schlag, Missing Pieces: A Cognitive
Approachto Law, 67 TEX.L. REV.1195, 1223 & n.110 (1989)(emphasisin original).
12. Grey, supra note 7, at 814.
13. Posner,WhatHas Pragmatismto OfferLaw?, 63 S. CAL.L. REV.1653, 1653 (1990).
14. Grey,Hear the Other Side: WallaceStevens and PragmatistLegal Theory,63 S. CAL.L. REV.
1569, 1569 (1990).
1990] Pursuitof Pragmatism 411
to offer, unless one has some notionof whatlegal pragmatismis. But confront-
ed with the variety of ideas and themes associatedwith pragmatism,15 one is
almost forced to create order by picking those ideas and themes that are
valuable; for that reason, it is difficult to say what pragmatismis without
considering what pragmatism'svalue might be. The present Article thus
attemptsto considerdescriptiveissues in conjunctionwith evaluative issues.
It returnsat the end to the questionof why legal pragmatismhas achievedsuch
suddenpopularity.
Sections I and II examine, respectively,two common understandingsof
legal pragmatism:pragmatismas forward-looking andpragma-
instrumentalism,
tism as a hostility to abstracttheory, formalism,and foundationalism.Each
section begins by focusing upon a prominentscholarwho either criticizes or
supportsthat version of legal pragmatism.The critic in Section I is Ronald
Dworkin,and the proponentin Section II is RichardPosner.Paradoxically,it
turns out that Dworkin is best interpretedas a disguised proponentof legal
pragmatism(at least as he understandsit), while Posnerroutinelydeviatesfrom
the prescriptionsof pragmatism(at least as he understandsit). Nor are these
turn-aboutsaberrational;each section argues that the problems apparentin
Dworkin's and Posner's positions are problemsfor legal scholarsin general.
Section III suggests a differentunderstandingof, and function for, legal
pragmatism.Legal pragmatism,I argue,is not in the end a theoryaboutlaw,
or a set of propositionsaboutlaw or legal theory.Nor is it merely a tempera-
ment or attitude toward law or legal theory, although it may well reflect
particulartemperamentsor attitudes.Legal pragmatismis best understoodas
a kind of exhortationabout theorizing;its function is not to say things that
lawyers and judges do not know, but ratherto remindlawyers and judges of
what they alreadybelieve but often fail to practice.The pragmatistis a kind
of preacher.This characterizationis not meant to disparage.Preachersserve
an essential function, and the recent rush to pragmatismsuggests that many
scholarsare finding the pragmatist'ssermontimely and appropriate.Whether
they are correctin their assessment,however,remainsan open questionthat
the Article's conclusion addressesbriefly.
15. As MargaretRadin notes, there is not a single unitary pragmatismbut rather "a number of
pragmatisms."Radin, supra note 9, at 1705; see also Posner, supra note 13, at 1653 (pragmatismis
"umbrellaterm for diverse tendencies").
I. PRAGMATISM AND THE USES OF THE PAST
Legal pragmatism is frequently depicted as an instrumental,forward-looking

approach to law.16 This is the aspect of pragmatism that Ronald Dworkin
assails.
A. Dworkin's Criticism
Dworkin's criticism of legal pragmatism can be presented in the form of

two claims, one descriptive and the other normative. His descriptive claim is
that pragmatism as a theory of law holds that legal officials-in particular,
judges-"do and should make whatever decisions seem to them best for the
community's future, not counting any form of consistency with the past as
valuable for its own sake."'7 Dworkin's normative claim is that judges should
maintain continuity with the past, at least to some extent.18 Taken together,
the descriptive and normative claims can form the premises of a loose syllo-
gism. If pragmatism values only future good but not continuity with the past,
and if continuity with the past is valuable, then pragmatism offers an inadequate
or undesirable theory of law.
The battle lines would be clearly drawn if the proponents of legal pragma-
tism would respond to this criticism by accepting Dworkin's description and
demurring to his normative claim. In fact, they appear to do just the opposite.
For example, in defending legal pragmatism against Dworkin's attack, Daniel
Farber agrees with Dworkin that continuity with the past is important in the
law. Dworkin's error, according to Farber, lies not in his normative position
but rather in his belief that pragmatists deny the value of continuity.19Other
pragmatists seem to agree with Farber. Robin West argues that the liberal
pragmatist "shares the conservative's respect for history."20In Thomas Grey's
thoughtful discussion, an awareness that thinking is inevitably historically
situated is not only consistent with pragmatism, but indeed is an essential
defining characteristic.21
At this point, it is tempting to conclude that there is no disagreement in
substance, and that only Dworkin's mistaken conception of pragmatism distin-
guishes him from the pragmatists.22 But this diagnosis gets things exactly
16. See, e.g., Grey, supra note 7, at 802-04 (describinginstrumentaltheme in pragmatism).For a

discussion of the relationbetween"pragmatism"and "instrumentalism" in legal theory,see R. SUMMERS,
INSTRUMENTALISM
AND AMERICANLEGALTHEORY20-22 (1982).
17. R. DWORKIN, supra note 4, at 95 (emphasis added). For a similar understanding,see Lipkin,
Conventionalism,Pragmatism,and ConstitutionalRevolutions,21 U.C. DAVISL. REV.645, 654 (1988).
18. Dworkin'sargumentsfor this claim are consideredin more detail in infra Section I.B.
19. Farber,supra note 7, at 1344-46.
20. West, supra note 1, at 680.
21. Grey, supra note 7, at 798-800.
22. In this vein, MargaretRadinarguesthatDworkinis a pragmatist(albeita complacent,objectionable
the word 'pragmatism'to mean
sort of pragmatist),and that he avoids the label only by "gerrymander[ing]
backwards.In reality,Dworkin'sdescriptionis plausibleas far as it goes; it is

Dworkin's normativeclaim that goes astray.Indeed,one has reason to doubt
that Dworkin himself can actually mean what his normativeclaim seems to
assert. Thus, if Dworkinis really an unconfessedpragmatist-andI thinkhe is
by his own definition-that is not becausehis descriptionof pragmatismdoes
not fit, butratherbecauseDworkinis best interpretedas acceptingthe view that
he purportsto criticize.
Startwith the descriptiveclaim:Pragmatismis a theoryof law thatasserts
that"judgesdo and shouldmake whateverdecisionsseem to them best for the
community'sfuture, not counting any form of consistency with the past as
valuable for its own sake."23The key words here are "valuablefor its own
sake."Pragmatistsknow thatjudges are in partproductsof their history;they
cannot, even if they would like, wholly escape the past.2 Pragmatistsalso
acknowledgethatjudges may find the past to be useful, as a source of guid-
ance, perhaps,or as a source of rhetoricalmaterial for rationalizingpresent
decisions. And Dworkinknows full well that pragmatistsrespect the past for
its present value; indeed, he discusses at some length the ways in which a
pragmatistjudge mightmakeuse of the past,or mighttalk as if she were bound
by the past.25
But this kind of pragmatic use of the past does not defeat Dworkin's
descriptiveclaim. The pragmatistjudge maintainscontinuitywith the past for
two reasons: first, because she cannot help it and, second, because she finds
the past instrumentallyuseful in promotingfuture goods. Neither of these
reasons leads the judge to respect the past as "valuablefor its own sake."26
In orderto show thatDworkin'sdescriptiondoes not fit, the pragmatistwould
have to demonstratethat he favorsmaintainingcontinuitywith the past even
when such continuityis avoidableand serves no presentor futureinterests.
It seems unlikelythat the pragmatistcan make such a showing, becausein
fact pragmatismdoes not value the past "forits own sake."An observationby
Holmes, whom currentlegal pragmatistscommonlyregardas a kind of patron
crass instrumentalism."Radin, supra note 9, at 1722. I agree with Radin's conclusion, but for different
reasons; Dworkin's definition of pragmatismis at least a plausible one, and he is best interpretedas a
pragmatistby his own definitionof pragmatism.See infra Section I.B.
23. R. DWORKIN, supra note 4, at 95.
24. See supra notes 19-21 and accompanyingtext.
25. R. DWORKIN, supra note 4, at 147-58.
26. Since the following discussion puts considerableweight on the idea expressed in these words, it
is worth noting that the phrase"valuablefor its own sake"is not merelyan inadvertentor unfortunateturn
of phrase,but ratheris essential to Dworkin'sargument.Because Dworkinagrees that pragmatistswould
use the past for instrumentalpurposes, it is only their refusal to regardthe past as "valuablefor its own
sake" that distinguishes them from the nonpragmaticposition that Dworkin advocates. Of course, the
particularwords are not critical; sometimesDworkinuses otherwordsto expressessentially the same idea.
See id. at 147 (pragmatismdenies thatpeople have legal rights"justin virtueof" past decisions);id. at 151
(pragmatism"deniesthat past political decisions in themselvesprovideany justification for eitherusing or
withholdingthe state's coercive power")(emphasis added).
saint for the movement,27is revealing:"[C]ontinuitywith the past is only a

necessity and not a duty."28As Holmes' statementsuggests, the pragmatist
recognizes that continuitywith the past is necessary,but he does not regard
such continuityas any kindof obligation,or as something"valuablefor its own
sake." Indeed, insofar as he can escape the past (and can benefit from the
escape), the pragmatistis ready and eager to do so.29Dworkin'sdescription
seems right on point.
This conclusion suggests that pragmatistslike Farberhave selected the
wrongstrategy.Ratherthanquarrelingwith Dworkin'sdescriptiveclaim, they
should challenge him to supporthis normativeclaim. Why, after all, should
anyonerespectthe pastexceptforinstrumentalpurposes?Thequestionrequires
a closer examinationof Dworkin'sposition.
B. Dworkin the Pragmatist?
Dworkindevelopshis argumentagainstlegal pragmatismin his examination

of what he views as threecompetingtheoriesor generalinterpretationsof law,
which he calls conventionalism,pragmatism,and law as integrity. Of these
three, he argues, pragmatismstands alone in denying that judicial decisions
have any obligation to maintain continuity with the past.30It might seem,
therefore,that the pragmatistjudge or scholarwould be easy to spot; but the
matteris not so simple. As noted, Dworkinrecognizes that pragmatistsmay
makeinstrumentaluse of the pastin promotingfuturegood. In orderto promote
predictabilityand consistencyin the law, for example, they would likely tend
to follow precedentand to respect legislation.31The pragmatistmight also
recognizeandenforce"as-ifrights."32 Thus,the pragmatistjudge wouldusual-
ly behavemuch like judges committedto the "conventionalist"or "integrity"
theories of adjudication.
Indeed, the pragmatistjudge or scholar might even talk like his other-
mindedcounterparts.Dworkindescribesa "sophisticatedpragmatist"who, in
pursuinghis objective of promotingfuturegood, finds it useful to "disguise"
27. See Grey, supra note 7; Hantzis, supra note 7. Grey describes Holmes as "the first and most
importantlegal pragmatist."Grey,supra note 14, at 1571-72. But see Kelley, WasHolmes a Pragmatist?
Reflectionson a New Twistto an Old Argument,14 S. ILL.L.J. 427 (1990) (arguingthat Holmes' legal
philosophywas positivist but not pragmatist).
28. O.W.HOLMES, COLLECTED LEGAL PAPERS 211 (1920).The remarksthatfollow clarify the point:
As soon as a legislatureis able to imagine abolishingthe requirementof a considerationfor a simple
contract,it is at perfect liberty to abolish it, if it thinksit wise to do so, without the slightest regard
to continuitywith the past.Thatcontinuitysimply limitsthe possibilitiesof ourimagination,andsettles
the terms in which we shall be compelled to think.
Id.
29. Cf. West, supra note 1, at 680 (arguingthat "[t]hepragmaticliberal is critical, not accepting,of
historicaltraditionsand institutions").
31. Id. at 154-55.
32. Id. at 154.
1990] Pursuit of Pragmatism 415
his pragmatistphilosophy and to "pretend"to regard statutes and judicial

precedentsas legally binding.Called upon to decide a legal controversy,this
sophisticated pragmatist would "offer his decision as a surprising
'interpretation'of the statuteor precedentwhenit is really nothingof the kind."
He might do this if he believed that "this 'noble lie' will help him serve [the
community's]true interestsbetterin the long run."Dworkinhas empathyfor
this pragmatist-in-disguise,observingthatthe sophisticatedpragmatistacts"for
reasons he would believe fully respectable .. ." Moreover, the pragmatist is
as honest as he can be; he would "make his conception [of law] as openly
pragmaticas he dares,disguisingonly those elements... thatthe community
is not quite ready to accept."33
At this point, a wicked suspicion arises: how do we know that Dworkin
himself is not the "sophisticatedpragmatist"thathe describeswith such appar-
ent insight?Dworkinis renowned,afterall, for getting "good"resultsto legal
questions by advancing"surprising'interpretation[s]"'of statutesor prece-
dents.34Of course, Dworkin protests that he, unlike the pragmatist,"takes
rights seriously";he does not regardrights as mere "as if' constructionsfor
promotingthe publicgood. Thenagainthe sophisticatedpragmatist,as Dworkin
describes him, would offer the same protestation.
Moreover, Dworkin is hardly averse to "as if" thinking; indeed, such
thinkingpermeateshis own law as integritytheory.Law, he argues,shouldbe
regarded"as if" it were the work of a single authorand "as if" it reflected a
single coherentvision of justice.35The politicalcommunityshouldbe regarded
"as if" it were a person.36In view of Dworkin'spervasive use of simile in
his own analysis, it is difficult to take too seriously his concern about the
pragmatist's"asif' view of legal rights.Indeed,insofaras the pragmatistjudge
actually enforces the "as if" rights, it is difficult to discern the difference
between an "as if' right and a "real"right. In short,if the sophisticatedprag-
matistwere to write a book aboutlegal theory,makinghis position "asopenly
pragmaticas he dares, disguisingonly those elements ... thatthe community
is not quitereadyto accept,"the book mightlook very muchlike Law'sEmpire.
So far, however, the suggestion that Dworkin'sbook might be a study in
veiled pragmatismis only a suspicion, not a conclusion. How might we go
33. Id. at 154-55.

34. Daniel Farberlists Dworkinas a leadingexample of "brilliant"constitutionaltheorists,by which
he means theorists who, while purportingto do interpretation,generateinsights "thatwould not occur to
most people." Farber,The Case Against Brilliance, 70 MINN.L. REV.917, 924-25 (1986). For example,
Dworkin endorses the Supreme Court's decision upholding an affirmative action program in United
Steelworkersv. Weber,443 U.S. 193 (1979), and he purportsto endorse also the majorityopinion in the
case. R. DWORKIN, A MATTER OFPRINCIPLE 316-31 (1985). In doing so, however, Dworkin rejects the
opinion's "explicit"argument,which is "fallacious"and indeed commits the same error which Dworkin
exposes in JusticeRehnquist'sdissent,andinsteadendorsesa differentargument-onethatDworkinattributes
to the majoritybut that he himself must "reconstruct[ from independentremarks"in orderto make the
majority'sposition "moreexplicit." Id. at 326-27.
35. R. DWORKIN, supra note 4, at 219, 225.
36. See infra notes 51-52 and accompanyingtext.
aboutconfirmingor discreditingthatsuspicion?One approachwould look for

clues aboutDworkin'spersonalor subjectiveintentions.But that approachis
unpromising.Dworkin himself has persuasivelydescribedthe difficulties of
capturing,or even characterizing,the author'sintentbehinda text.37Moreover,
Dworkinsuggests that authorialintentwould not necessarilybe dispositiveof
textualmeaningeven if thatintentcould be ascertained.38 Indeed,the finitude
of an author's understandingand the possibility of self-deception39suggest
that an authormight have only an inadequateunderstandingof his own work.
Instead of focusing on Dworkin'ssubjectiveintent, therefore,we should
be charitable(as Dworkinhimselfinsists)andseek the interpretation thatmakes
the work"thebest it can be."40The criticalquestion,then,is whetherDworkin
offersconvincingjustificationsforthe propositionthatlegal pragmatismrejects,
namely that the law shouldregardcontinuitywith the past as "valuablefor its
own sake."If he does, then we would not be justified in interpretinghis book
as disguisedpragmatism,becausethatwouldnot makethe book the best it can
be.
Dworkin argues first that pragmatismdoes not adequatelydescribe our
existing legal practice with regard to statutes and judicial precedents.He
concedes that a pragmatistjudge would purportto follow statutesor judicial
precedentsin orderto protectexpectationsand to promotepredictabilityin the
law. But the judge would haveno reason,Dworkinargues,to pretendto derive
her decisions from statutesor precedentswhen these are not clear, and thus
have not given rise to expectations.In fact, however,ourjudges do try to get
answerseven from unclearstatutesand precedents.Thus, Dworkinconcludes
that pragmatismdoes not "fit"currentlegal practice.41
But this ostensible lack of "fit"seems negligible at best. To mentionjust
one obvious rejoinder:in a political culturesuspiciousof judicial lawmaking,
pragmatistjudges might sensibly try to achieve greaterrespect for their deci-
sions by disguisingthose decisionsas interpretationsof past enactments,even
when those enactmentsare unclear.It is interestingto compare Dworkin's
argumenthere with his responseto a muchmore seriouslack of "fit"between
existing legal practiceand his own law as integritytheory.Dworkin'stheory
assertsthatjudges shouldtreatthe law as expressing"a single andcomprehen-
sive vision of justice,"42or a "single, coherentset of principles."43Do our
judges in fact thinkof law in this way? It seems not; at least, Dworkinworries
37. See, e.g., R. DWORKIN, supra note 4, at 53-62.

38. Id.
39. Cf. id. at 258 ("Thereis, in this counsel, much room for deception,includingself-deception.").
40. Dworkinholds that interpretationshould always attemptto make its object "the best it can be."
Id. at 62, 77, 90, 255.
41. See id. at 158-60. But cf. Grey, supra note 14, at 1590 (arguing that pragmatismis "implicit
working theory of most good lawyers");Posner,supra note 13, at 1666 (assertingthat "most American
judges have been practicingpragmatists").
43. Id. at 166.
that the entrenchedpractice of dividing law into compartmentssuch as con-

tracts, torts, and property,with each compartmentgoverned by distinctive
doctrinesandprinciples,presentsa problemof "fit"for a theorywhichsuggests
that law should be regardedas expressinga single set of principles. But he
arguesthatsuchcompartmentalization is permissiblebecause"[t]heboundaries
between departments usually match popular opinion."44 Thus,
compartmentalization"promotesa deeper aim of law as integrity"by "al-
low[ing] ordinarypeople as well as hard-pressedjudges to interpretlaw within
practicalboundariesthat seem naturaland intuitive."45
But this argument is beside the point. The argument may justify
compartmentalization, butit does notjustify the law as integritytheory;indeed,
the justificationworks by showing that thereare good reasonsnot to treatlaw
as reflectinga single set of principles.Moreover,justified or not, ourpervasive
compartmentalizationshows that our practicedoes not in fact regardlaw as
expressinga single coherentset of principles.Dworkin'sargumentdoes nothing
to rescue the law as integrity theory from the chargethat the theory does not
fit existing legal practice.Thus,the problemsof "fit"confrontinga pragmatist
theoryof law seem negligiblein contrastto those thatafflict Dworkin's"integ-
rity" theory.
A second rationalethat attemptsto supporta deeperobligationto the past
than that recognized by pragmatismenlists the aid of Dworkin'swell-known
"chainnovel" analogy.The analogy likens the judge to a writerinvolved in a
multimemberprojectin which one authorwrites the first chapterof a novel,
then passes it on to anotherauthorwho will write the second chapter,and so
on. Althougheach successive authormustwrite herchapteras well as she can,
she must also be respectful of what previous authorshave done, striving to
maintaincontinuityin plot and characterization.46
The chainnovel analogyprovidesan intriguingillustrationof whatinterpre-
tation means in Dworkin'stheory.However,if the analogy is intendedas an
argumentthatjudges shouldcount continuitywith the past as "valuablefor its
own sake,"then the argumentfails for at least two reasons.In the first place,
the relevance of the "chainnovel" analogy to law is dubious;and Dworkin
could establish its relevance only by first proving the point for which the
analogyis offered.In essence, Dworkinhas simplyselectedan activity(writing
novels) in which an overarchingunity is assumedto be an accepted critical
criterion, and then transferredthe same evaluative criterion to a different
activity (law) in which the desirabilityof overarchingunityis at issue. But this
move merely begs the question:is this kind of unity desirablein law? If it is,
then law is like novel writing in this respect. But that is precisely what
Dworkin must show, and his position is not aided at all by proposing an
44. Id. at 252.

45. Id.
46. Id. at 228-32.
analogythatwill become apposite,if ever,only afterhe has alreadyprovenhis

case.
Morefundamentally,Dworkin'sanalogydoes not succeedin showingeven
that authorsin a chain novel have any obligationto respect the past "for its
own sake."The chainnovelistshouldmaintaincontinuitybecauseshe is writing
forfuture readerswho will read the book as a whole and will be disappointed
if the book is incoherent.Continuitywith the past is desirableonly to promote
a futuregood; and if continuityceases to serve thatfuturegood then the value
of continuitywill likewise disappear.Suppose,forexample,thatmaturereaders
actuallyprefera book with frequentrupturesof continuity;they find it more
interesting,or challenging,or realistic. The chain novelist would then be ill-
advised to strive for overall continuity;readerswill condemnsuch a book as
artificialor boring.Or supposethatthe authorcould be assuredthatreadersof
the other authors'chapterswill not read her chapter,and that readersof her
chapterwill not read other chapters.It would then be senseless to strive for
consistency of plot and characterizationif such consistency means that the
presentchapter-theonly chapterherreaderswill ever see-will be less interest-
ing. These supposed situationsmay seem far-fetched;47 but that observation
merely shows thatin novel writing,the futuregood probablyentailssome kind
of overall literarycoherence;it does not show that continuitywith the past is
obligatoryin any differentsense, or "valuablefor its own sake."
Dworkingroundshis more extensive argumentagainstpragmatismand in
favor of law as integrity in his views about community.He asserts that only
by regardinglaw as the expressionof a single, coherentset of principlescan
we achieve a "communityof principle"whose law will have legitimacy and
moral authority.48 Conversely,if one views law as serving conflicting princi-
ples andinterests-andthusas incorporatingcompromises,accommodationsof
competingmoralvisions, and"checkerboard" solutions- thenthe "community
of principle"will not be achieved,and law's authoritywill suffer.49This argu-
ment is controversial,of course;but the immediatelypertinentpoint is thatif
Dworkin'sargumentis sound, there is no obvious reason why a legal prag-
matist(in Dworkin'ssense of the term)could not embraceit and still maintain
herpragmaticbelief thatwe shouldrespectthe past only insofaras it is useful
for promotingfuturegood. The reasonwe shouldtry to treatlaw as the expres-
sion of a single, coherentset of principles,the pragmatistwould argue,is that
by doing so we promotethe best kindof community.Thus,ratherthanstanding
in oppositionto pragmatism,law as integritycouldbe subsumedwithinpragma-
tism (in much the same way thatDworkinshows thatconventionalismcan be
in large measuresubsumedwithin pragmatism50).
47. Although,as some modernliteraturedemonstrates,perhapsnotas far-fetchedas one mightsuppose.

48. R. DWORKIN, supra note 4, at 188, 211-16.
49. Id. at 178-79, 212-13.
50. Id. at 147-50.
This outcome is not affected by Dworkin's elaborate "personification"

argument,which contendsthatwe can-and often do-treat a groupor an entire
communityas if it were a "person,"and hence capableof holding principles
independentof those held by its members.51 In the first place, Dworkinmakes
it clear that he is not saying the communityis a person, but only that we can
treat a group or community as if it were a person.52This contention seems
plausibleenough; we can, at least for some purposes,think about a group as
if it were a person. But the critical questionremains:shouldwe? Personifying
a communitymight serve some valuablepurpose,53but that is just the point:
a proponentof personificationneeds to explainwhatpurposewould be served
by adoptingDworkin's"asif' view of the politicalcommunity.Hence,farfrom
defeating pragmatism,the possibility of personificationrequires pragmatic
justification.
Moreover,even if a convincingnonpragmaticjustificationfor personifica-
tion could be offered (or, even if a political communityactuallywere a "per-
son" in some ghostly sense), the controversyaboutpragmatismwould remain
as viable as ever.54After all, a "person"can adopt a pragmaticphilosophy
just as easily as a legal communitycan. I can decide, for example, to follow
my own past decisions and practices only insofar as this course serves to
promotemy presentand futuregood. Indeed,it would seem irrationalfor an
individual to choose to adhereto past practiceswhen striking a new course
would be more beneficial. Thus, analogizinga communityto a person offers
no reasonfor treatingthe past as "valuablefor its own sake,"butratherserves
only to underscorethe unattractivenessof that position.
In sum, the essential difference between legal pragmatismand law as
integrity, as Dworkin presents those positions, is that pragmatism,while
respecting the past for instrumentalpurposes,does not count continuitywith
the past as "valuablefor its own sake."But Dworkinprovidesno persuasive
reasonsthat show that the law shouldregardthe past as "valuablefor its own
sake."The failureof his argumentson this issue makes it temptingto interpret
his book as an exercise in veiled pragmatism.Needing to conceal its pragma-
tism from a community that is "not quite ready to accept" it, the book's
analysis purportsto assail pragmatism-butwith argumentsthat, upon close
51. Id. at 167-75.

52. Id. at 168 (suggesting that we should think"as if a political communityreally were some special
kind of entity,"and disavowing the notion that personificationimplies "some spooky, all-embracingmind
that is more real than flesh-and-bloodpeople") (emphasisadded).
53. On the other hand,such personificationmight representan unfortunateconfusion of thought.Cf.
Cohen, TranscendentalNonsense and the Functional Approach, 35 COLUM.L. REV. 809, 811 (1935)
(ridiculingcourts that try to determinewhetherstate hasjurisdictionover corporationby "assum[ing]that
it travels aboutfrom State to State as mortalmen travel").Or grouppersonificationmight have pernicious
consequences, as when one memberof a nationalor ethnic communityis blamed or punished for actions
of other membersof that community.
54. Dworkin'sargumentappearsto assertthatthe possibilityof personificationis a necessarycondition
for law as integrity,not that personificationnecessarilyentails law as integrity.See R. DWORKIN, supra
note 4, at 187.
inspection,do not supportthe book's statedconclusion.Fromthis perspective,

Dworkinis notjust makingbadarguments;rather,he is droppinghintsthatwill
lead reflective readersto the correctinterpretation,albeit one that he must for
the present purportto disavow. Whetherthis reflects Dworkin's subjective
intent remains, of course, uncertain.55WhateverDworkin may have had in
mind,an interpretationpresentinghim as pragmatistis persuasivebecausethat
interpretationmakes Dworkinthe best he can be.
C. IrresistiblePragmatism?
The failure of Dworkin's argumentsagainst pragmatismplainly do not

reflect any lack of dialectical prowess on his part. It seems, rather,that
Dworkin'scriticismof pragmatismundertakesa laborfor whicheven herculean
powers are inadequate.If pragmatismis understoodas assertingthat we-or
judges-should do whatwill producethe most good in the future,using the past
but not countingit as valuablefor its own sake, then the case for pragmatism
seems almost overwhelming.
Let us begin with two propositionsthat,if they do not quite qualifyfor the
lofty statusof "self-evidenttruths,"at least come awfullyclose. First,a person
ought to choose and act so as to producemoreratherthan less good. Second,
any given choice or action can affect what happensin the futurebut cannot
alter what, at the time of the action or decision, has alreadyhappenedin the
past.
Althoughobjectorsmight find groundsto quarrelwith these propositions,
most objectionscan be deflectedby clarifyingwhatthe propositionsassert;and
any remainingobjections will probablyhave little appeal anyway.The first
proposition,which asserts that a person ought to choose and act so as to
promote more ratherthan less good, is little more than a corollaryto what
Aquinascalled the first principleof practicalreasoning:Do good, and avoid
evil.56If one should do good ratherthan evil, then it seems to follow thatone
shoulddo moreratherthan less good. If someonehas a choice betweenA and
B, and if A will producetwice as much good as B, will anyone deny that A
is the better choice?
One objectionto this reasoningmightbe thatpeople disagreefiercely over
whatis good. They also disagreeaboutthe best ways of pursuingthe good. But
the first propositionneitherdenies nor takes sides in such disputes.It does not
say, for example, whether goods are irreduciblyplural, as in John Finnis'
theory,57or reducible to a single scale of goodness, as in Bentham's
55. See supra notes 37-39 and accompanying text.

56. T. AQUINAS,SUMMATHEOLOGICA, IDEASOF ST. THOMAS
Q.94, A.2, reprinted in THE POLITICAL
45 (D. Bigongiari ed. 1953).
AQUINAS
57. J. FINNIS,NATURALLAW AND NATURALRIGHTS92-94 (1980).
thought.58Nor does it say whetherthe best way to promotegood is for indi-

viduals to make a fresh calculationin each case, as in act utilitarianism,or for
individuals to adopt and follow general rules, as in rule utilitarianism.59 A
critic mightconcludethatthe firstpropositiondoes notparticularlyhelpresolve
specific ethical or legal controversies.But that objection is beside the point,
since the first propositiondoes not purportto resolve such controversies.
A different and more directly challenging objection, arising out of a
deontologicalethical position, might assertthat"goods"or "thegood"should
not providethe criteriafor choice and action;instead,one shouldact in accor-
dance with principlesdeclaringwhatis "right."But this deontologicalconten-
tion may plausibly be construedin ways that make it unthreateningto the
propositionit purportsto challenge.For example,"right,"or "rights,"may be
understood as one species-perhaps an especially important species-of
"good."60Or principlesof "rightness"may be viewed as rules or generaliza-
tions designed to furtherthe realizationof "goods."61By either of these con-
structions,the deontologicalcontentionis fully consistentwith the proposition
that one should act to producemore ratherthan less good.
Of course, the deontologistmight refuse to accept these reconcilingcon-
structions;the "right"is not, he might insist, either a kind of good or a way
of promoting good.62But if the deontologist takes that position, then the
deontologicalposition loses muchof its appeal.If the "right"is neithera kind
of good nor a way of promotinggood, then why should anyone feel obliged
to respect it? The deontologistcan disconnectthe right from the good only at
the cost of underminingwhateverreasonslead us to feel a commitmentto the
right in the first place.63
A third objectionmight assert that individualsare entitled to pursuetheir
self-interest,even when doing so producesless overall good.64One kind of
response would simply reject this objectionoutright:One is never entitledto
pursueone's own intereststo the detrimentof the overallgood. A secondkind
of responsewould seek to reconcilethe objectionwith the initial proposition.
Individualsmay have a right to pursue their self-interest,but only because
encouragingindividualsto pursuetheir self-interestis generallythe best way
58. See J. BENTHAM,AN INTRODUCTION

TOTHEPRINCIPLES
OFMORALSANDLEGISLATION
1-23 (1948)
(reprintof 1823 ed.) (arguingthat happinessis fundamentalvalue underlyingall humangood and moral
systems).
59. See Rawls, Two Conceptsof Rules, 64 PHIL.REV.3, 18-29 (1955).
60. For an argumentto this effect, see Laycock, The UltimateUnity of Rights and Utilities, 64 TEX.
L. REV.407 (1985).
61. See G.E. MOORE, PRINCIPIA ETHICA 146-48 (1954) (1st ed. 1903) (arguingthat "'right' does and
can mean nothing but 'cause of a good result"').
62. See generally W.D. Ross, THERIGHTANDTHEGOOD(1930).
63. In a similar vein, J. D. Goldsworthyargues that"any adequateexplanationof moralitywill refer
to some good or set of goods which morallyvirtuousbehaviormight help an agent achieve."Goldsworthy,
God or Mackie? The Dilemma of Secular Moral Philosophy,30 AM. J. JURISPRUDENCE 43, 54 (1985).
64. For a useful discussion of the validity and limits of self-preference,see J. FINNIs,supra note 57,
at 107-09.
to promotethe overall good.65Or the propositionand the objectionmight be

reconciledin a differentway: one might admitthat a "right"to pursueone's
self-interest at the expense of the general good exists, but argue that one
nonetheless ought not to do so (just as one ought not to marketpornography
even though one may have the "right"to do so).
If these responsesfail to deflect the objection,I can only try to minimize
its force by observingthateven if one has a right to pursueone's self-interest
at the expense of the overall good, that right is not likely to pertainto those
personswith whomthe presentdiscussionis concerned,specifically,judgesand
public officials acting in their official roles.66In the end, therefore,the force
of the first propositionseems undeniable:Individuals,and especially public
officials, should choose and act in ways that producemore ratherthan less
good.
The secondproposition,which assertsthatourpresentchoices andacts can
affect the futurebut cannot alter what happenedin the past, seems even less
likely to provokegenuine controversy.Not only the economic wisdom about
"sunkcosts,"but also popularadagesabout,for example,spilt milk reflect the
proposition;andit is effectively expressedin the logically unassailablemaxim,
"what'spastis past."Of course,we can, andoften do, reinterpretthe past. And
if one wanted to be clever, one might arguethat since the past exists only in
our memory and our interpretationsof it, by reinterpretingthe past we do in
fact alter it.67Such an argumentplays on the paradoxesof tense inherentin
talkingaboutthepast as somethingthatexistsin the present.But the argument
does not really challengethe essentialproposition.Millions of people suffered
underHitler,and no amountof reinterpretationon our part can retroactively
relieve that suffering. "The Moving Finger writes; and, having writ\ Moves
on."68
In sum, the two propositionshave an obviousplausibilityand an abilityto
deflect or withstand apparentobjections. And if the two propositionsare
accepted,the logical conclusionwithrespectto law is-legal pragmatism.Legal
officials shouldchoose andact to promotethe greatestgood. And since the only
65. See 2 F. HAYEK, LAW,LEGISLATION, ANDLIBERTY 145 (1976)(arguingthat"in fact we generally

are doing most good by pursuinggain.... [The entrepreneur]is led to benefit more people by aiming for
the largest gain than he could if he concentratedon the satisfactionof the needs of known persons.").
66. Cf. R. DWORKIN, supra note 4, at 174 ("Weallow officials actingin theirofficial capacityno such
area [in which they may act for personaladvantage]at all. They must, we say, treat all membersof their
communityas equals, and the individual'snormallatitudefor self-preferenceis called corruptionin their
case.").
67. It would seem even more plausible to conclude, however, that if the only past that exists is the
one that exists in our memory and interpretations,then the past in the ordinarysense does not "exist"at
all. In that case, the second propositionwould be intact:If the past does not exist, then clearly ourpresent
acts cannot change it.
68. "[N]or all your Piety nor Wit\ Shall lure it back to cancel half a Line,\ Nor all your Tearswash
out a Wordof it."
THERUBAIYAT OFOMARKHAYYAM 170, verse 71 (E. Fitzgeraldtrans. 1952).
good thatthey have any power to affect lies in the future,69 it follows thatthey
should act to promote the future good. Continuitywith the past is valuable
insofar as it helps to promote good in the future. If it does not serve that
purpose, then continuitywith the past is not valuable.
This analysis suggests that legal pragmatism,as Dworkindefines it, is, or
at least is close to being, a kindof irresistibletruth.Of course,thattruthleaves
a great deal of room for various kinds of disagreements.All the standard
disputes about what things are good and how society should realize goods
remain intact; pragmatismdoes nothing to disturbthose disputes. Whether
judges can better promote the futuregood by following rules, by employing
"situationsense," or by recognizingand enforcing"rights,"remainsa viable
controversy.Diverse views about how to use the past will also continue to
flourish; both the Burkeanwho regards history as a distillation of human
wisdom and the cynic who follows Voltairein believingthathistoryis largely
a recordof humandepravitycan claim the label of pragmatist.But pragmatism
does expose one kind of debateas frivolous.Thatdebateasks whetherthe law
is obligated to count continuitywith the past as "valuablefor its own sake."
It is, in other words, the debate aboutpragmatismitself.70
The presentanalysis thus suggests thateveryoneis virtuallycompelledto
be, at some level, a pragmatist.Legal pragmatistslike to claim that their
movementis antifoundational,71 but pragmatismitself is in one sense a kind
of foundationfor political and legal discussion.Or, to paraphraseDworkin,72
69. It should be apparentthatI am treating"thepresent"as an infinitesimallythin line separatingpast

from future.If it seems more naturalto treat"the present"as a more extendedperiod, then referencesto
"the future"can be understoodto mean "presentand future."
70. As this essay was nearingcompletion,I came acrossAnthonyKronman'sthoughtfularticleentitled
Precedent and Tradition,99 YALEL.J. 1029 (1990). Kronmanis even more insistent than Dworkin in
pressing the claim that we should respect the past "for its own sake," or "merelybecause it is the past,"
or "simply in virtue of its pastness,"id. at 1036, 1039, 1042, and he is not satisfied even with utilitarian
anddeontologicalpositionsadvocatinga strongdoctrineof precedentbecausethese argumentsdo notrespect
the past "for its own sake." Id. at 1036-43. Kronman'sargumentis subtle and provocative, and any
peremptoryresponse seems inappropriate.Nonetheless, althoughmuch of what Kronmansays seems not
only correct but even wise, I remaintentativelyunconvincedthat his argumentprovides a good reason to
respect the past "forits own sake."Kronmanbuildson EdmundBurkein arguingthatthe preservationand
advance of humanculturedepend upon continuitywith the past. We should thereforerespect the past for
at least two reasons. First, the past is a source of accumulatedwisdom; the culturewhich it bequeathsto
us is thereforevaluable. ("A failure to honorthe past is ... foolish or imprudent-thestupidlyshortsighted
waste of its accumulatedwisdom ...." Id. at 1066.) This is an instrumentalistargument,and a pragmatist
could accept it without forsakinghis pragmatism.Second, and more essentially, Kronmanarguesthat it is
culturewhich makes us distinctively human,and which separatesus, as Aristotlesaid, from the beastsand
the gods. Thus, "[w]e must,if we are to be humanbeings at all, adopttowardthe past the custodialattitude
Burkerecommends."Id. But this contentionseems less plausible.Woulda society that in an instrumental
spirit chose to preserveonly as muchof the past as suited its presentpurposescease to be human?Kronman
argues that we in fact live in just such a society-that the traditionalismhe recommendsis not merely
unpopularbut virtually incomprehensible.Id. at 1043-47. Have we all then ceased to be human?And if
so, is it clear that "humanness"in the sense Kronmanintendsis somethingwe want or ought to recover?
71. See infra note 73.
72. See R. DwoRKIN,supra note 4, at 360: "Every conscientiousjudge, in either of the supposed
camps, is an interpretivistin the broadestsense ... The greatdebatesof constitutionalmethodare debates
within interpretation,not about its relevance."
every conscientious judge and scholar (including Dworkin) in any of the

supposedcamps, is a pragmatistin the broadestsense. The great debatesare
debates withinpragmatism,not aboutits relevance.
The conclusionthatlegal pragmatismis irresistiblemightseem, at least for
self-proclaimedpragmatists,too good to be true. In fact, the conclusionis too
trueto be good. Pragmatismin the sense discussedaboveis irresistiblebecause
it is platitudinous.If the truths offered in the name of pragmatismcan be
uniformly accepted without disturbingany existing debates (except for the
misconceiveddebateaboutpragmatismitself), thenit wouldseem thatpragma-
tism is not useful in resolving legal problems.Ironically,a position that has
insistedthatan idea is trueonly to the extentthatit is useful would be convict-
ed underits own standard.Indeed,if everyoneis necessarilya pragmatist,then
it seems thatpragmatismis not a distinctlegal theoryat all. Ratherthanaccept
this unhappyconclusion,we oughtto considera differentinterpretationof legal
pragmatism.
II. LEGAL PRAGMATISM AND THE USES OF THEORY
The previoussection considereda view thatfocuses on legal pragmatism's

attitudetowardthe past. But scholarsalso commonlydescribepragmatismin
terms of its attitudetowardtheory.This descriptionis apt for depictingmuch
contemporarylegal pragmatism,which expressesa deep distrustfor "abstract
theory,""grandtheory,""formalism,"or "foundationalism." 73The antiformal-
ist theme is conspicuousin a recent essay by JudgeRichardPosner.74
73. See, e.g., Farber,supra note 7, at 1342 (oppositionto "[f]oundationalgrandtheory");Grey,supra

note 14, at 1571 (describing"pragmatistsuspicionof foundationaltheorizing");Hantzis,supra note 7, at
588, 594 (distrustof "abstractdoctrine"and "abstracttheories");Kronman,supra note 2, at 1570, 1590,
1605 (hostilityto "[a]bstracttheories,""abstractedness,""abstracttheorizing");Radin,supranote 9, at 1707
(pragmatismis "a commitmentagainst abstractidealism, transcendence,foundationalism,and against
atemporaluniversality").
It would probablybe an exercise in false precisionto try to distinguishcarefullyamong these terms.
The philosophicalattackon "foundationalism"takes as its targetthe notion that there is some "theoryof
knowledge,"or Cartesian-typemethod,which will producecertainor reliableknowledge.See R. RORTY,
PHILOSOPHY ANDTHEMIRROR OFNATURE 132 (1979)[hereinafterR. RORTY, MIRROR]. In legal academic
writing, the targetis the notion that "theory"can provideus with knowledge of the law, or of what legal
texts mean, or of how cases should be decided. In this sense, terms such as "formalism,""grandtheory,"
and "foundationalism" seem to meanapproximatelythe same thing.One would like to say thatthe meaning
of these termswill become cleareras the discussionproceeds.But the realitymay be just the opposite:What
will become clear as the discussion proceeds is that it is not at all clear just what legal pragmatistsare
opposing when they inveigh against formalismor foundationalism.
74. Of course, Posnerranks among the most prolific legal scholarsof our time, and it would thus be
unfairto suggest thathis essay on pragmatism,see Posner,supranote 13, fully or finally representsPosner's
thinkingon the subject.It surelydoes not. Fora moredetailedpresentationof Posner'sjurisprudentialviews,
see R. POSNER, THEPROBLEMS OFJURISPRUDENCE (1990). The essay nonethelessmerits examinationin
its own right both becauseit constitutesa succinctexposition of pragmatismas Posnerunderstandsit, and
because it illustratesa common pitfall that, I will argue,pragmatistsinevitablyencounter.
A. Posner's Predicament
Posnerproclaimshimself a pragmatist,and while noting the difficultiesof

defining pragmatism in any precise way,75 he emphasizes antiformalism as
a centraland valuablefeatureof pragmaticthought.76This hostilityto formal-
ism gives legal pragmatismpracticalsignificance, in Posner's view, because
it provides grounds for criticizing and discardingsome kinds of solutions to
legal problems.In particular,Posnerattacksas formalistthose approachesto
constitutionalinterpretationor statutoryconstructionthatarecommonlycalled
"originalist."77
But, Posner'shostility to formalismseems less than devout. Perhapshe is,
in fact, not fond of the particularversion of formalism he criticizes-i.e.,
"originalist"construction78--but that is hardly decisive; formalismcomes in
a variety of shapes and sizes. Posner's efforts to make law more scientific79
and his well-known attemptsto resolve a multitudeof legal problemsand to
unify numerousanddiverseareasof law withinthe regimeof law andeconom-
ics80arearguablyinstances-indeed,extremeinstances-of formalistthinking.81
And although Posner emphasizes the pragmaticdistrust for "metaphysical
75. While noting thatpragmatismis "anumbrellatermfor diversetendencies,"Posner,supra note 13,

at 1653, he finds three elements to be characteristicof pragmatistthought:(1) "a distrustof metaphysical
entities";(2) "an insistence that propositionsbe tested by their consequences";and (3) "an insistence on
judging our projects, whether scientific, ethical, political, or legal, by their conformityto social or other
human needs ratherthan to 'objective,' impersonalcriteria."Id. at 1660-61.
76. Id. at 1656, 1663-64.
77. Id. at 1664-67.
78. Posnerhas at times soundedvery muchlike an originalistin his views on the interpretationof legal
texts. See, e.g., Posner, Legal Formalism, Legal Realism, and the Interpretationof Statutes and the
Constitution,37 CASEW. RES.L. REV. 179, 189-90 (1986-87);Posner, Law and Literature:A Relation
Reargued,72 VA. L. REV.1351, 1361-75 (1986) [hereinafterPosner,Literature].But he indicates thathis
adoption of a pragmaticapproachto interpretationis a recent development.Posner, Legislation and its
Interpretation:A Primer, 68 NEB.L. REV.431, 434 (1989) [hereinafterPosner,Legislation].
79. Posnerhas "encourage[d]the applicationof scientific methods to the study of the legal system."
Posner,An Afterward,1 J. LEGALSTUD.437, 437 (1972).
As biology is to living organisms,astronomyto the stars, or economics to the price system, so
shouldlegal studiesbe to the legal system:an endeavorto makeprecise,objective,andsystematic
observationsof how the legal system operatesin fact and to discover and explain the recurrent
patternsin the observations-the "laws"of the system.
Id.
80. R. POSNER, ECONOMIC ANALYSIS OFLAW(3d ed. 1986);R. POSNER, THEECONOMICS OFJUSTICE
(1981)[hereinafterR. POSNER, JUSTICE].
81. For an early criticismthatpersuasivelymade this basic point,see Leff, EconomicAnalysisof Law:
Some Realism about Nominalism,60 VA. L. REV.451 (1974). Leff describedthe first edition of Posner's
EconomicAnalysisof Law as "fourhundredpages of tunnelvision."Id. at 452. For a more recentand even
morescathingassessment,see M. KELMAN, A GUIDE TOCRITICAL LEGAL STUDIES 117-18(1987)(footnotes,
and more stinging passages, omitted):
Posner's ratherquirkyEconomicAnalysis of Law is ... imperialistic,complete, catechismic.It
may offer mind-numbinglyoff-target answers to many, many questions, but it does have an
answerfor everylegal issue, and,perhapsmoreimportant,the answerscan be derivedfrom a very
short list of normativeand descriptivepropositions.... Posner [is] obstinate in his drive for
completeness,in his powerfulurgeto flattenhumanexperienceanddenycomplexityin the service
of a desperatePanglossianoptimism about the "straight"world of middle-classbarter....
entities" such as "mind,""intent,""free will," and "causation,"82 he seems

not only comfortablewith, but addictedto the equally metaphysicalconcepts
of "preferences"(Is a "preference"moresolid or earthythan an "intention"?),
or the "hypotheticalmarket,"or the economic conception of "value."83In
short,if one were to nominatecandidatesfor the office of leadinglegal formal-
ist of our era, RichardPosnermight well be the frontrunner.
How then can Posner escape the charge of gross inconsistency? One
possibilityis thatPosnerwas a formalistoutthathe has repentedof his former
ways. To be sure, Posnerhas seemed more temperateof late in his advocacy
of law and economics,84and his interestshave turnedincreasinglyto literary
theory.85Nonetheless, Posner's penchantfor formalistthinking continuesto
show through.His essay on pragmatismexpresseshis aspirationto make law
more scientific as well as his continued support for economic analysis.86
Indeed,Posner has recently advocatedthe extension of economic analysis to
a realmof humanconcern-religiousfaith-thatseemsmostremotefromeconom-
ic calculations.87Moreover,Posner'sfondnessfor the more formaldisciplines
of science and economics is manifesteven in his discussionsof literatureand
rhetoric;he suggests that literaryinterpretationis a form of thoughtsuitable
primarilyfor less developed areas in which the social sciences have not yet
establishedthemselves.88
Hence, if Posner seems less confident of the adequacyof any particular
formalist approachto law, he continuesto view formalisttheory as an ideal
towardwhich law shouldaspire.Despite a temperingof views, he remainsthe
once and futureformalist.And his criticism of formalismin his pragmatism
essay accordinglyremainsproblematic.
The realexplanationfor thatcriticism,it seems, lies not in any renunciation
of Posner'sformalistyearnings,butratherin the loadeddefinitionof formalism
82. Posner,supra note 13, at 1660, 1662-63.

83. See, e.g., R. POSNER, JUSTICE supra note 80, at 60-62.
84. For example, in his 1983 Prefaceto THEECONOMICSOFJUSTICE,first publishedin 1981, Posner
cautions that his wealth maximizationtheory of ethics is offered "as a subject of speculationratherthan
a blueprintfor social action," and he adds: "I hope I have not 'oversold' this approachby insufficient
attentionto the ratherbizarreresults that its unflinchingapplicationcould produce."R. POSNER, JUSTICE,
id., at v-vi.
85. See, e.g., R. POSNER,LAWANDLITERATURE: A MISUNDERSTOOD RELATION (1988); Posner,
Literature,supra note 78.
86. Posner,supra note 13, at 1667-70.
87. McConnell& Posner,An EconomicApproachto Issues of ReligiousFreedom,56 U. CHI.L. REV.
1 (1989).
88. See Posner,Literature,supranote 78, at 1375-76.JamesBoyd WhitearguesthatPosner'sformalist
mode of thoughtis evident even in the literaryanalyses Posneroffers. Posner's"whole book is written,"
White contends:
on fundamentalunderstandings,about the natureof literatureand of law alike, that seem to me
deeply wrong .... [Posner]is committed to a mode of thoughtand expression,to a sense of
language and law-at its heartit is scientific and economic in character-thatpreventshim from
seeing in the texts he studies the most importantpart of their meaning.
White, WhatCan a LawyerLearn From Literature?(Book Review), 102 HARV.L. REV.2014, 2014-15
(1989).
that he offers. He refersdisparaginglyto "theformalistidea, whose scientistic

provenanceand pretensionsare evident,of law as a body of immutableprinci-
ples."89 Later in the essay he asserts that "[l]egal formalism is the idea that
legal questionscan be answeredby inquiryinto the relationbetweenconcepts
andhencewithoutneed formorethana superficialexaminationof theirrelation
to the world of fact."9 By offeringstarklypejorativedefinitionsof formalism,
Posnerprovides himself with a possible escape from the charge that his own
economic approachis formalist;he can assertthathis theories are foundedon
empiricalobservation-on"morethana superficialexaminationof theirrelation
to the world of fact"-and thus are not "formalist."
Unfortunately,by offeringpejorativedefinitionsof formalism,Posneralso
creates problems for his pragmatistposition. In the first place, he deprives
himself of the pleasureof havingrespectableopponents.91 Does anyone today
contend that law is "a body of immutableprinciples"?92Are there serious
contemporaryscholarswho maintainthat"legalquestionscan be answeredby
inquiry into the relation between concepts . . . without need for more than
superficial examinationof their relation to the world of fact"?Posner may
believe, of course,thatsome views or theoriesinfact have only a "superficial"
groundingin fact or experience,just as his criticsmakethe same chargeagainst
his theories.93And at that point, the relevantdisagreementsonce again occur
89. Posner,supra note 13, at 1656 (emphasisadded).

90. Id. at 1663.
91. See Rorty,supra note 11, at 1812 (arguingthat even undera broaddefinition of formalism,"it
is not so easy to find a good example of a formalistamonglegal theorists");cf. Posner,Law and Economics
Is Moral, 24 VAL.U.L. REV.163, 163 (1990) ("[I]tmakes[some people] feel good to denouncethe causes,
the organizations,the activities, and the ideologies of which there are, after all, no present-daydefenders
in respectablesociety. That to me is not a very interestingactivity.").
92. Perhaps Posner means to target that usual formalist villain-Christopher Columbus Langdell.
Langdellwas one of those figures who, if he had not existed, would have to be invented;and for all I know,
it is entirely possible that the Langdell we have been taughtto hold in contemptwas invented.See Wells,
SituatedDecisionmaking,63 S. CAL.L. REV.1727, 1729 (1990) (noting that "Langdell... has served as
a strawpersonand lightning rod for attacksagainst the possibility of rationalfoundations").In any event,
Langdell is long dead; a respectableand significant legal theory deserves a less musty opponent.
Or perhaps,as one of his commentsimplies, Posner means to go after the naturallaw thinkingof a
philosopherlike Thomas Aquinas. See Posner,supra note 13, at 1663 (asserting that formalism is "the
domainof the logician, the casuist,the Thomist,the Talmudist").If so, two observationsarepertinent.First,
one may fairly doubtthe significance of a theoreticalposition that has to go back to the thirteenthcentury
to find a suitable opponent.Second, Posnerdoes not actually find an opponenteven in Aquinas,since to
suggest that the Thomist naturallaw traditionregardslaw as "a body of immutableprinciples"would be
little more than a naive parody of a highly sophisticatedposition. For a useful discussion explaining the
naturallaw conceptof determinatioandthus showingthe errorof equatingThe nist naturallaw with a belief
that law is immutableand universal, see Finnis, On "TheCritical Legal Studies Movement",30 AM. J.
JURISPRUDENCE 21 (1985).
93. ArthurLeff argued:
[I]t must immediatelybe noted, and never forgotten,that [Posner's]basic propositionsarereally
not empiricalpropositionsat all. They are all generatedby "reflection"on an "assumption"about
choice underscarcity and rationalmaximization.... Nothing merely empirical could get in the
way of such a structurebecause it is definitional.That is why the assumptionscan predicthow
people behave:in these terms there is no other way they can behave.
Leff, supra note 81, at 457.
within pragmatism,not about it. In short, by defining his own pragmatic

positionby referenceto a strawman formalismthatno one actuallyadvocates,
Posnerrendershis prescriptionsindistinctand useless.
ButPosner'santiformalismis notmerelyuseless;it is potentiallypernicious.
His argumentsfacilitatean unfortunateequivocationupontwo differentsenses
of the term"formalism."One sense is descriptive:A "formalist"theoryor way
of thinkingis one thatattemptsto providea structuredway of answeringlegal
questions.A formalistmight, for example, spell out a procedureto be used in
answeringcertainquestions;or she mightoffera substantiverule,or "formula,"
that has the effect of requiring decisionmakersto act in accordancewith
specified criteriaandto disregardothercriteria.Pragmatistscan hardlyafford
to claim that views or theories that are formalistin this descriptivesense are
necessarily defective.94Indeed,structuredtheories-and it is hardto see how
any theorycan avoidbeingstructuredand still be a "theory"in any meaningful
sense-can be and typically are justified in pragmaticterms;particularrules,
formulas, or theories are defended on the ground that they are useful for
achievingdesiredobjectives.Forexample,FrederickSchauer'srecenttentative
defense of a rule-orientedformalismis not only consistentwith, but appears
to grow out of, a pragmaticperspective.95Schauerarguesthat a rule-focused
law may serve valuable objectives such as avoiding abuses of power and
promoting certaintyand predictabilityin human affairs.96Likewise, Posner
provideshighly formalisteconomic theories,at least in the descriptivesense.
However, "formalism"is also, and more commonly, used in a second,
pejorative sense to refer to thinking that is not only structured,but that is
undulyrigid or imperviousto experienceor new information.The pejorative
connotationthat the term "formalism"has acquired97permitsan unfortunate
equivocation.A critic of a particulartheory may characterizethe theory as
"formalist"in the descriptivesense-this is easy enoughto do, since all theories
areformalistin thatsense-and thenquicklyshiftto thepejorativesense. In this
way, the critic managesto dismissthe disfavoredtheorywithoutever doingthe
critical work that ought to be necessary to secure the desired conclusion.
Posner'sattackon originalistconstructionillustratesthis kindof equivoca-
tion. Posner attacks"originalism"on the groundthat it is "formalist."98 And
of course originalism is "formalist" the descriptive sense; provides a
in it
structurefor statutoryand constitutionalconstruction,and it attemptsto limit
the kinds of factorsthatjudges performingthose taskscould consider.But one
94. For an insightful essay by a pragmatistscholar showing that all decisionmakingis inevitably
structured,see Wells, supra note 92.
95. Schauer,Formalism, 97 YALEL.J. 509 (1988).
96. Id. at 539-44.
97. See, e.g., id. at 510-11, 547-48. Schauer'sessay is an effort to recoverthe descriptivesense of the
term, thus rescuing a potentially useful concept from the pejorativesense that currentlypreventsit from
being freely used.
98. Posner,supra note 13, at 1664-66.
can hardly conclude just from this structuredquality that the originalistap-
proachis not justified, or even thatit is not pragmatic.Whetheran originalist
approachto legal interpretationwill generatebetterlegal and political conse-
quences than a nonoriginalistapproachpresentsa controversialquestionthat
can hardlybe resolvedjust by observingthat the originalistapproachis "for-
malist."99
Indeed,Posnerhimself points out that a pragmaticor consequentialistlaw
would consider,among the relevantconsequences,systemic consequences;10?
and these might justify a "rule of law" approachto adjudicationwhich, by
preventingjudges from consideringparticularfactors,mightseem inconsistent
with a more naive pragmatism.Posner's correct observationabout systemic
consequences might well supporta similar, systemic defense of originalist
interpretation.Indeed,Posneris awareof, andelsewhereaddresses,thatpossi-
bility.101The critical point, therefore,is not that Posner believes he has dis-
posedof the questionof originalismby callingoriginalistinterpretation "formal-
ist." In fact, he has much more to say on the subject. The importantpoint,
rather,is thatcalling originalistinterpretation"formalist"does not advance,but
only confuses the discussion.The accusationis simply a rhetoricalpointwhich
properly understood,should not count either for or against the originalist
position.
In the end we are left with the Jekyll-and-Hydespectacleof Posnerassum-
ing the role of antiformalist,at least for rhetoricalpurposes,when he wants to
criticize a view thathe does not favorandthenreappearingas a formalistwhen
he wants to offer a constructiveproposalor theory of his own. But this depic-
tion is hardly applicableto Posner alone. Legal pragmatismin general faces
Posner's predicament.
B. The Pragmatist'sPredicament
The predicamentthatconfrontsaspiringpragmatistssuch as Posnercan be

describedsimply:Pragmatistsdislike and distrusttheory.Pragmatistsalso like
and need theory.Consequently,pragmatistswill always inveigh againsttheory,
and then they will go backto theorizing.Even worse,pragmatistscannotoffer
any methodor criterionfor theorizingdifferentfrom the methodsand criteria
alreadyemployed by nonpragmatists.
99. Cf. Alexander, Essay: Of Two Minds About Law and Minds, 88 MICH.L. REV.2444 (1990)
(arguingthat"[t]hepragmatistmay (pragmatically)opt for originalism");Stick,supranote 7, at 385 (arguing
that constitutionaloriginalists can be pragmatists).
100. Posner,supra note 13, at 1666.
101. Posner has suggested that pragmaticjudges should construe statutesso as to carry out the will
of the legislatureexcept in "the rarecase where the gains in substantivejustice from ignoring or denying
the will of the legislaturewill exceed the loss in impairinginterbranchrelationsand injecting uncertainty
into the legislative process."Posner,Legislation,supra note 78, at 449-50. This acknowledgementmakes
Posner's easy and apparentlybroadcondemnationof originalistinterpretationas "formalist"all the more
puzzling.
Pragmatistsknow thattheorycan impose,distort,or mislead.Theorylimits

ourperspective,promptsus to ask some questionsbutto overlookothers;it can
serve as a tool of suppressionand oppression.Perceivingthese dangers,the
pragmatistwantsto flee fromtheory,or, in Grey'sphrase,to achieve"freedom
from theory-guilt";102he wantsto returnto the innocenceof "experience"and
"context."At the same time, pragmatistsknow thattheoryis bothvaluableand
necessary.We cannotsimply receive raw datafrom experienceand leave that
dataunprocessed;we inevitablycategorize,classify, and explain. In short,we
theorize. Moreover,even if we could somehow avoid theorizing, we surely
would not want to, becausewithoutthe structureand orderprovidedby theory
our lives would be frighteninglychaotic and meaningless.
This dilemmaconfoundsin law as in otherareasof life. Legal theorycan
mislead and distort. But legal theory is also necessary and valuable.103 For
example, pragmatistssurely do not believe thatjudges should simply decide
each case on the basis of an unguidedgestalt;like everyoneelse, they believe
that some kinds of factorsare relevantto the judicial decision and that other
factorsareirrelevant,or thatsomeways of decidingcases shouldbe encouraged
while other ways of deciding cases should be discouraged.Similarly, the
pragmatistdoes not favor leaving commonlaw or constitutionaldecisions as
a mass of particular,unprocessedcontroversiesandresults;he wants "asmuch
system as possible"104 and hence will try to make connections,offer explana-
tions, and identify valuable categories for understandingand using the raw
material.And as soon as the pragmatistbeginsto talkabouthow judges should
decide cases or abouthow commonlaw or constitutionaldecisions shouldbe
understood,he will have embarkedon a new projectof theory-building.
Faced with this theorizing imperative,pragmatistsmay claim that they
propounda distinctivelypragmaticway of doing theory.The claim, however,
cannot be made good. Pragmatistsrecurringlyemphasize themes such as
"experience," avoidance of abstraction, "intuition," "dialogue," and
"contextualism."But upon inspection, none of these themes supplies any
distinctivelypragmaticway of constructingor evaluatingtheories.
1. The Priority of Experience
Pragmatistscommonly insist that theories must be groundedin experi-

ence.105Taken at face value, this counsel seems unexceptionable.It is so
102. Grey, supra note 14, at 1569; cf. Hantzis, supra note 7, at 564 (using language reminiscentof
Lord's Prayerto describe Holmes' pragmaticapproachas one that will "guardus from the temptationto
resolve legal questions by means of speculative philosophy").
103. See, e.g., Farber,supranote 7, at 1349;Radin,supranote 9, at 1701 (recognizingfrompragmatist-
feminist perspective, that "ideal theory is also necessary").
104. Farber,supra note 7, at 1349.
105. E.g., Farber,supra note 7, at 1341 ("Theheartof pragmatistthoughtis the view thatthe ultimate
test is always experience.");Radin,supranote 9, at 1707 ("Pragmatismandfeminismlargelyshare,I think,
unexceptionable,in fact, that one must wonderwhetheranyone disagreesor,

assumingsomeone wanted to disagree,whetheranyone could devise a theory
thatis not groundedin experience.Tryit for yourself:inventa theorythatdoes
not arise from or relate to anythingin your experience. What would such a
theory even address?Distributivejustice in the Martian economy? Sexual
relationsin the sixth dimension?Surelythis is not the kind of theorizingthat
pragmatistsare criticizingwhenthey solemnlyinsist thattheoriesaredefective
if they are not groundedin experience. But then what are they criticizing?
Some pragmatistsseem to understandtheirpointas one aboutchronological
priority:ratherthan imposing our preestablishedtheoreticalcategories upon
experience, we should start with experience, and only afterwardsconstruct
categories to fit experience.JudgePosnerassertsthat for the pragmatist,"the
emphasiswill be empiricalfrom the start,"and thatthe pragmatist,in contrast
to the formalist,will not try to force experienceinto preexistingcategories.106
In the same vein, Daniel Farberexplains that "[t]he difference between the
pragmatistand the foundationalistis not that the pragmatistdisavows legal
theory,but ratherthat the pragmatisttakes no position in advance abouthow
broadin scope such theory should be."107
Butthe "experiencefirst-conceptualizelater"positionreflectsan unrealistic
view of how experiencerelatesto theorizing.This view implies a sortof tabula
rasa notion of knowledge construction:the theorist first collects, in neutral
fashion,a mass of theory-innocentdata,andthenconstructscategoriesto make
use of such data. But the reality is clearly more complex. We are always
alreadyendowedwith categoriesand ideas given to us by our culture.And we
can never gatherdata or consult experience in an atheoreticalway.'08Conse-
the commitmentto finding knowledge in the particularsof experience.").

106. Posner,supra note 13, at 1664 (emphasisadded).
107. Farber, supra note 7, at 1349 (emphasis added). Despite (or perhaps because of) their
commonsensicalquality,statementslike this one leave it far from clearjust whom or what the pragmatists
thinkthey are criticizing. Whatexactly does Farberhave in mindwhen he suggests thatone shouldnot take
a theoreticalposition "in advance"?He explains that with respect to contractlaw or promissoryestoppel
doctrineone mustfirst becomeacquaintedwith the cases, andonly thereafterconstructtheorieson the "level
of generality[that]worksbest." Id. Such a course seems sensible enough;indeed, it seems inevitable.How
could anyone constructa theoryof contractlaw or promissoryestoppel"in advance"of encounteringsome
contractor promissoryestoppel cases? Does anyone arrive at law school innocentof contractor estoppel
cases, but with a theory, worked out "in advance,"of contractor promissoryestoppel?
108. William James understoodand expressed this point clearly and repeatedly:
Experiencemerely as such doesn't come ticketed and labelled, we have first to discover what it
is. ... What we usually do is first to frame some system of concepts mentally classified,
serialized, or connected in some intellectualway, and then to use this as a tally by which we
"keep tab"on the impressionsthat presentthemselves. When each is referredto some possible
place in the conceptualsystem, it is thereby"understood."
W. JAMES,Pragmatism,in PRAGMATISM ANDOTHER ESSAYS 76 (1963). ElsewhereJames arguedthat:
Every hour brings its new percepts, its own facts of sensation and relation, to be truly taken
accountof; but the whole of ourpast dealings with such facts is alreadyfoundedin the previous
truths.It is thereforeonly the smallest and recentestfractionof the first two parts of reality that
comes to us without the humantouch, and that fraction has immediatelyto become humanized
in the sense of being squared,assimilated,or in some way adapted,to the humanizedmass already
there. As a matterof fact we can hardlytake in an impressionat all, in the absence of a precon-
quently,the processof constructing,criticizing,andrevisingtheoriesinevitably

involves a back-and-forthmotionin whichexperience-basedtheoryis adjusted
in light of theory-ladenexperience. The world cannot be divided into two
camps of theorists, one of which starts with experience and then constructs
theory,while the other camp constructstheory and then imposes the theory
upon experience.109 Instead,we have a chicken-and-eggsituation,but one in
which the chicken is never clearly distinguishablefrom the egg.11
Ironically, pragmatistphilosophershave taken the lead in arguing that
experienceis never concept-free,and that thinkingis always historicallyand
culturallysituated.11Thus, if legal pragmatistssuch as Posner and Farber
actuallymean to advocatea chronologicalpriorityof experience,they betray
a central pragmatist insight. Their view in fact seems more like the
"foundationalist" view thatknowledgeshouldmirrornature,a view thatprag-
matist philosopherssuch as Rorty have tellingly criticized.112
Alternatively,legal pragmatistsmayview theirargumentsaboutthe priority
of experienceas a pointaboutlevels of abstraction.The argumentmightgo like
this: althoughevery theory arises from and relates to experience, it also ab-
stractsfromexperience.Weconstructa category-say,"contractlaw"or "prom-
issory estoppel"-afterexaminingcases, butwe then use thatcategoryto orga-
nize and understandnew cases. Insteadof examiningthe materialfresh, we
come to it with preestablishedcategorieswhich cause us to see some features
but to overlook others. In this way, the theoreticalcategory producesan ab-
stractedimage of the material.Andalthoughsuchabstractionis bothinevitable
ception of what impressionsthere may possibly be.

When we talk of reality"independent"of humanthinking,then, it seems a thing very hard
to find. It reducesto the notion of what is just enteringinto experience and yet to be named,or
else to some imagined aboriginalpresencein experience, before any belief about the presence
had arisen, before any humanconceptionhad been applied. It is what is absolutely dumb and
evanescent,the merely ideal limit of our minds. We may glimpse it, but we never grasp it; what
we grasp is always some substitutefor it which previous humanthinkinghas peptonized and
cooked for our consumption.If so vulgar an expression were allowed us, we might say that
whereverwe find it, it has alreadybeenfaked.
Id. at 109. Otherpragmatistphilosophershave insisted on the same point. See, e.g., R. RORTY, MIRROR,
supra note 73, at 154 (observing that "we are never conscious of unsynthesizedintuitions [i.e., sense
impressions],nor of concepts apartfrom their applicationto intuitions");R. RORTY, CONSEQUENCES OF
PRAGMATISM xxxix (1982) [hereinafterR. RORTY, PRAGMATISM] (suggesting that we "neverencounter[]
reality except undera chosen description")(emphasisin original)."JohnDewey likewise insisted, 'I know
nothing of a perceptualorderapartfrom a conceptual.'"Id. at 79 (quotingDewey).
109. Of course,one can alwaysdepicta particulartheoristas imposingtheoryuponpracticeby focusing
upon a point in the theorizingprocess when the theoristis doing that. But choosing a particularpoint to
focus upon is arbitraryor tendentious;it is never a complete depiction.
110. For an illuminatingdiscussion by a legal pragmatist,see Wells, supra note 92. After identifying
two competingmodelsof legal decisionmaking,whichshe calls "structured decisionmaking"and"contextual
decisionmaking,"Wells persuasivelyarguesthat every legal decision necessarilyinvolves both processes.
Id. at 1737. Thus, attemptsto distinguishbetweendecisionmakingprocessesusing termssuch as "abstract,"
"rational,""universal,"and "rule-bound"on the one hand, and "concrete,""intuitive,""particular,"or
"case-specific"on the other are, Wells argues, misleading.Id. at 1737-39.
111. John Stick asserts that "the whole point of pragmatismand Rorty's argumentis that we cannot
start over, and we cannot see things fresh."Stick, supra note 7, at 396.
112. See generally R. RORTY, MIRROR, supra note 73.
anduseful, it also has its costs-i.e., the costs of overlookingpotentiallysignifi-

cant featuresof experience.At some point,those costs will exceed the benefits
of abstraction,and our theories will then become more harmfulthan helpful.
Such a view seems to inform the pragmatists'frequent condemnationof
"abstraction"or "abstracttheory."
Unlike the argumentabout the chronologicalpriority of experience, this
point aboutthe risks of excessive abstractionseems to be correct.Since every
theory abstractsto some degree, however, the pragmatistcannot afford to
condemnabstractionper se.'l3 She can only condemntheories that are exces-
sively or unhelpfullyabstract.But once the pragmatistadds this qualification,
a familiardifficultyreappears:everyonepresumablyagreesthattheoriesshould
not be excessively or unhelpfullyabstract.The real disputesthat arise do not
challenge this standard,but ratherdisagreeaboutwhetherparticulartheories
actually are unhelpfullyabstract.And on this question, althoughpragmatists
will of course have their individualopinions in particularcases, they have no
general guidance to give.
Indeed,it seems unlikely thatpragmatistsever could say much in general
abouthow to determinethe properlevel of theoreticalabstraction.In the first
place, there is no scale for measuringa theory's abstractness.Even if such a
scale existed, moreover,one probablycannotspecify any generalstandardfor
deciding how much abstractionis too much. ("Ackerman'stheory of social
justice measures6.5 on the PierceanScale, thus exceeding the optimal level
of 5.3 for constitutionaltheories.")Consequently,legal pragmatistsareconfined
to assertingthattheoriesshouldbe constructedon the "levelof generality[that]
works best."114 That contentionis surely compelling,and it will become sig-
nificantjust as soon as seriousscholarsbeginto urgethattheoriesbe construct-
ed on levels of generalitythat do not work best.
In sum, pragmatistpropositionsabout the priority of experience do not
helpfullydistinguishbetweenthe kindof theorizingwe shoulddo and the kind
we should not do. One might as well say, paraphrasingFarber,that "the
differencebetweenthe pragmatistand the foundationalistis not thatthe prag-
matistdisavowslegal theory,butratherthatthe pragmatistfavorsgood theories
while the foundationalistfavorsbad theories."Such a distinctionis not exactly
meaningless;it is merelyuseless. Some theoriesare bad,perhapsbecausethey
are excessively abstractor insufficientlygroundedin experience.Forexample,
some pragmatistsevidentlybelieve thatscholarslike Bruce Ackermanare led
astrayby ambitioustheoreticalaspirations.115 They may be right. But so long
as Ackermanand the pragmatistsagree (as they presumablydo) that theories
shouldbe adequatelygroundedin experience,a positionthatmerelycondemns
113. See Wells, supra note 92, at 1738; see also Minow & Spelman,In Context,63 S. CAL.L. REV.
1597, 1624-25, 1628 (1990).
114. Farber,supra note 7, at 1349.
115. See, e.g., id. at 1331 n.4 (by implication);Kronman,supra note 2, at 1607.
excessive abstractionandfavorsexperientialgroundingfails to delineateamong

competingtheories in a useful way.
2. Pragmatist "Method"
The pragmatists' recurring invocation of "intuition,""dialogue,"and

"contextualism" may suggestthatpragmatistsapplya distinctivemethodof-or,
if "method"soundstoo regimentedandprecise,"approach" to-theorizing. For
example,pragmatists sometimes talk aboutthe importance using "intuition"
of
in solving problems.116 But "intuition"hardlyconstitutesa "method"of, or
even an "approach"to, theorizing.117 The hard questions, after all, are not
whether to use "intuition,"but ratherwhat "intuition"means, which "intu-
itions"to accept,how much weight to give them, and how to put "intuitions"
to constructiveuse. Pragmatismprovidesno methodof answeringthese ques-
tions. Indeed,pragmatistshaveno special claim to "intuition";on the contrary,
they are ratherambivalentaboutthe usefulnessof intuition.The perspectivist
theme in pragmaticthoughtemphasizesthat all thinking,and presumablyall
This empha-
feelings and intuitions,are culturallyand historicallysituated.118
sis on the historicaland culturaldeterminantsof belief underminesany view
that treats"intuition"as a special facultythat can providecorrectanswersto
legal questions.19For all these reasons, pragmatistscannot hold out "intu-
ition" as a distinctivelypragmaticapproachto theorizing.120
Pragmatistsalso stress the importanceof "dialogue"in evaluatingexperi-
ence and in constructingand criticizing theories.'21But the appeal to "dia-
logue" encountersthe same difficulties as the appealto "intuition."First,the
recommendationof dialogue hardlyconstitutesa "method"or "approach"for
theorizing.The hardquestionis not whetherpeople shouldtalk,butratherwhat
they shouldsay andwhat(amongthe variousideascommunicated)they should
116. See, e.g., Farber,supranote 7, at 1334-35(listing "intuitionism"amonggroupof roughsynonyms

for legal pragmatism);Rubin, The Practice and Discourse of Legal Scholarship,86 MICH.L. REV.1835,
1878 (1988) (associatinglegal pragmatismwith reliance on intuition).
117. Alasdair MacIntyrecomments that "one of the things that we ought to have learned from the
historyof moralphilosophyis thatthe introductionof the word 'intuition'by a moralphilosopheris always
a signal thatsomethinghas gone badly wrongwith an argument."A. MACINTYRE, AFTER VIRTUE 69 (rev.
ed. 1984).
118. See Grey,supra note 7, at 798-801.
119. Thus,RobinWestobservesthatalthoughthe pragmatistshouldtakeintuitionsseriously,including
the "conservative"intuitionof the moral worth of the fetus, "[n]othingfollows from the conservative's
intuitionthat humanlife in all its forms, includingfetal, is sacredother than the fact that he has it...."
West, supra note 1, at 735 (emphasisin original).
120. Cf. R. RORTY,PRAGMATISM, supra note 109, at xxix-xxx ("Of course we have such [realist]
intuitions.How could we escape havingthem?We have beeneducatedwithin an intellectualtraditionbuilt
aroundsuch claims .... The pragmatistis urgingthatwe do our best to stop having such intuitions....")
(emphasisin original).
121. See, e.g., Farber,supra note 7, at 1343; Radin,supra note 9, at 1725; cf. Grey,supra note 14,
at 1591 (asserting that "the first pragmatistprecept ... is one familiar to every lawyer: 'hear the other
side"').
believe. Prescribing"dialogue"fails to answerthese hardquestions. Second,

pragmatistshave no special claim to "dialogue."Not just pragmatists,butalso
radical critics,122civic republicans,123ethical naturalists,124feminists,125
legal process theorists (both old and new),126liberal neutralitytheorists,127
and professed antipragmatists28favor "dialogue."Indeed, "dialogue"seems
to have become the all-purposeelixir of ourtime. Such agreementonly shows,
the pragmatistmight contend, that everyone is in fact a pragmatist.That
observationmay be correct,but it also leaves us with the same old problem:
the counsels of pragmatismturn out to be merely platitudinous,and hence
unhelpfulin resolving live legal controversies.
Pragmatistsalso commonlyemphasizethe theme of "contextualism";we
should consider and resolve legal problems "in context."129 Such a course
seems sensible and, indeed, inescapable.Is there any other way to consider
problems-anyway to considera problemoutsideof any context?Contextualists
assure us that there is not-that all thinking and argumentationis contextu-
al130-andthey seem to be right. We often charge an opponentwith taking a
statementor question"outof context,"butwe clearlydo not mean "outof any
context." Rather, we mean that someone has not viewed the statementor
question in what we regardas the proper context. The real question is never
"contextor no context?"but rather"whichcontext?"31
But if we inevitablyconsiderquestionsandproblemsin a context,then the
counsel to "be contextual"merely urges us to do what we cannot help doing
anyway.Pragmatismwould nonethelessbe useful if it could provideguidance
about how to select the propercontext for controversialissues; but on that
question, unfortunately,pragmatistsoffer little help. Their failure to provide
enlightenmenton this issue does not reflect any lack either of charity or of
reflection; rather,there are at least two reasonswhy nothing very useful can
be said on that question. First, generalizationsexplaining how to choose the
122. See, e.g., Hutchinson,Talkingthe GoodLife:FromFree Speech to DemocraticDialogue, 1 YALE

J. L. & LIBERATION 17, 18 (1989)(advocating"Democraticdialogism"as means of social transformation).
123. See, e.g., Michelman,Law's Republic,97 YALEL.J. 1493, 1503-05, 1524-32 (1988)(advocating
republicanvision of "dialogic constitutionalism").
124. See M. PERRY, MORALITY, POLITICS, ANDLAW51-54, 152-58 (1988).
125. See Colker, Feminism, Theology, and Abortion: TowardLove, Compassion, and Wisdom,77
CALIF.L. REV.1011, 1074 (1989) (advocating"feminist-theologicaldialogue").
126. For a useful discussion,see Weisberg,TheCalabresianJudicialArtist:Statutesand theNew Legal
Process, 35 STAN.L. REV.213, 241-48 (1983).
127. See B. ACKERMAN, RECONSTRUCTING AMERICAN LAW96-104 (1983)(emphasizingcentralityof
"liberaldialogue"in constructionof legal values); B. ACKERMAN, SOCIAL JUSTICE INTHELIBERAL STATE
4-5 (1980)(proposing"comprehensiveinsistenceon dialogue"as basicmethodfor resolvingissues of politics
and justice).
128. See R. DWORKIN, supra note 34, at 70-71 (advocatingactive use of judicial review as way of
generatingpublic debate on mattersof principle).
129. See, e.g., Kronman,supra note 2, at 1571; Minow & Spelman,supra note 113;Wells, supra note
92, at 1734-36, 1745-46.
130. See Minow & Spelman, supra note 113, at 1627, 1651.
131. See id. at 1629 (assertingthat "once the pretendeddistinctionbetween context and abstraction
is discarded,the importantquestion becomes which context should matter").
propercontextmightthemselves,preciselyby virtueof theirgenerality,deviate

from the contextualistprescription.Second, the question "which context?"
presumablymust itself be addressedin a context, thus forcing us to ask what
is the propercontext for addressingthat question;and one quickly confronts
Consequently,althoughproponentsof contextualismcan
an infinite regress.132
and do express their views about the most helpful contexts for considering
particularproblems,they can say little of a generalnatureabouthow to select
propercontexts. For example,Minow and Spelmanare interestedin a kind of
contextual analysis that underscores"legacies of power and oppression."133
If they are right that every contextual analysis reflects backgroundmoral,
political, and epistemological theories,134 then Minow's and Spelman's em-
phasismustreflectbackgroundtheoriesthatspecify the importanceof "power"
and "oppression"in legal and social phenomena.And if their background
theoriesaresound,thentheirparticularemphasison thesefactorsis appropriate
as well. But thereis nothingin a concernfor contextualismitself thatproduces
an emphasis on "legacies of power and oppression."
In short, the pragmatistsuggests that in dealing with the practical and
theoreticalproblemsof law, we should use "intuition,"which seems, at least
from a pragmatistperspective,muchakinto "goodjudgment."We shouldtalk
things over, and we should look at problems in context. All of this seems
eminentlysensible.Who does-who could-disagree?135 But such counselhard-
ly constitutes a method or approachto theorizing,much less a distinctively
pragmaticmethod or approach.'36 It is as if a philosophergrandlyannounced
thathe haddiscovereda methodforresolvingall of the conceptualconundrums
132. In their essay In Context,Minow and Spelmanallude to this possibilitywhen they note, "[a]s we
turn to addressthe meaning of 'context' in these contexts, we are pointedly awareof a plausiblequestion
likely to occur to a sensitive reader:what is the context of our inquiry?"Minow & Spelman, supra note
113, at 1597. It seems correct, as they imply, that questions such as "which context?"cannot themselves
be acontextual.But if every first-orderquestion requiresconsiderationof the propercontext, and if the
second-orderquestion (i.e., what is the propercontext for addressingthe first-orderquestion?)requires
considerationof the context for addressingthe second-orderquestion,no apparentreasonexists to stop at
two removesfrom the first-orderquestion;the question"Andwhatis the propercontext for addressingthat
question?"leads on forever.
133. Id. at 1601.
134. Id. at 1626.
135. A pragmatistmight point out, of course, that even if nearly all lawyers and scholarspurportto
acceptpragmatistcounsels aboutexperience,dialogue,andcontext,they do not all articulateandtalk about
these concerns. Although that observation may turn out to be significant, see infra Section III, the
nonpragmatistmight respondthat he does not often talk explicitly about the need to use experience and
to think in context for the same reason that he does not go aroundpointing out that the sky is overhead
ratherthan underfootor that in North America July tends to be warmerthan January.Such observations
would be correct,and they registersignificant facts. But since everyone is fully awareof these facts, there
seems little reason to point them out. Indeed,the person who does suddenlydeclare that "the sky is over
us" will likely be regardedas (to put it charitably)a latecomer,not a source of wisdom or insight.
136. In a similarvein, althoughRichardRortyplainly admiresand agrees with muchin JohnDewey's
criticism of the philosophicaltradition,he also observesthatDewey had a "habitof announcinga bold new
positive program"but in fact could offer only "a series of resoundingbut empty slogans." R. RORTY,
PRAGMATISM, supra note 108, at 78.
that have plaguedhumansfor centuriesand, when askedto describethe meth-

od, explained gravely: "Careful,correctthinking."Well, yes-but ....137
C. The Pragmatic Temperament
The discussionthus far suggests that althoughlegal pragmatistsexpress a

distrustof theory,they can neitheravoid theorizingnor articulateany distinc-
tively pragmaticmethodor set of criteriafor theorizing.Nonetheless,it seems
undeniablethatpragmatistsat leastfeel differentlyabouttheory.This attitudinal
difference may indicate a real distinction between the pragmatistand the
nonpragmatist.Thomas Grey has recently emphasized the importance of
learning "what it feels like" to be a pragmatist.138In a similar vein, Judge
Posnerdescribes pragmatismas "an attitude,or orientation,"'39 and Anthony
Kronmanhas indicatedthe importanceof "attitude"or "temperamental disposi-
tion"140 in the Burkean version of pragmatism that he calls
"prudentialism."141And hostility to abstracttheory is a centralfeaturein the
pragmatictemperament.Likethe "grandtheorist,"the pragmatisttheorizes.He
does not theorize joyously, however, but ratherout of necessity, and with
constant misgivings.142Forced to articulatewhat makes a theory adequate,
the pragmatistand the grandtheoristmay say similarthings. But they harbor
radicallydifferentattitudes.The grandtheorist,butnot the pragmatist,has faith
in and love for theory. The grand theorist takes delight when an ambitious
theory succeeds; the pragmatistrejoices to see a pretentioustheory hum-
bled.143
These contrastingattitudesmightbe viewedin referenceto a temperamental
need for order.We theorize, afterall, in large measureto satisfy our own need
to understandlife and experienceas somehoworderlyand coherent.However,
as an inspectionof the offices of a handfulof randomlyselectedlaw professors
shoulddemonstrate,individualsdifferdramaticallyin theirneed for order.The
grandtheoristharborsa deep need for coherence.The pragmatist,by contrast,
137. All of this brings to mind the nurseryrhyme:

Which is the way to LondonTown?
Which is the way to LondonTown?
One foot up, the other foot down.
That is the way to LondonTown.
138. Grey, supra note 14, at 1570.
139. Posner,supra note 13, at 1670.
140. Kronman,supra note 2, at 1569, 1598.
141. This emphasison attitudeas an importantdistinguishingfeatureis characteristicof pragmatists.
WilliamJamesbegan his lectureson pragmatismby arguingthatthe competingpositions takenon a variety
of longstandingphilosophicalissues could usefullybe understoodas expressionsof contrastingphilosophical
temperaments.W. JAMES,supra note 108, at 6-9.
142. See Grey,supranote 7, at 815 (describingpragmatistsas "theoreticiansarmedwith a presumptive
suspicion of neat theories").
143. This diagnosis no doubtoversimplifiesa more complex psychological reality.In some cases, the
pragmatistscholarmay be particularlysusceptibleto the attractionsof grandtheory,and may consciously
embracepragmatismin an effort to resist the temptationsof theory.
is content with a lower degree of order."4Thus, in the abstract,both may

agree thattheoriesshouldbe constructedon "thelevel of generalitythatworks
best."But for the grandtheorist,this standarddictatesa relativelyencompass-
ing theory, because a more modest theory will fail to satisfy the theorist's
appetite for coherence, and thus will not "work best." The pragmatist,by
contrast, is not as hungry for overarchingorder; she may even relish the
freedomof a world in flux, and thus nurturean ingrainedresentmenttoward
theories which offer too much order.145 For her, therefore,a more localized,
less pretentioustheory will "workbest."'46
This interpretationwould explain not only the pragmatists'hostility to
"grandtheory,"but also their complacentreactionto the revelationthatlaw is
to some degree disorderly,internally contradictory,or indeterminate.For
nonpragmatists,such disordermay be deeply troubling;it means that the law
is unworthyof respect, and thus bereftof moralauthorityor legitimacy.This
conclusionmay drive the nonpragmatistto strategiesof desperation.He may
enlist the aid of a mythical demigodin the struggleto show that the law can
be viewed as the expressionof a single, comprehensivevision of justice, and
that it does yield a correctanswerto every legal question.'47Or, finding such
visions of order to be an unsustainableillusion, he may denounce the legal
144. By this standard,it seems that RonaldDworkinis correctin claiming thathe is not a pragmatist;
his desire for overallcoherenceis a recurringtheme in his work.Similarly,despite his avowedpragmatism,
it seems that Judge Posneris not of a pragmaticdisposition;his economic analysis, in particular,evinces
a powerful need to reduce the disparatematerialsof law to a coherentsystem.
145. Such an attitudeis conspicuousin the writing of William James, who recoiled from the notion
of a "universe[that]is absolutelysecure,"preferringa "loose universe"that"is still pursuingits adventures"
andthatis "unfinished,growingin all sorts of places."W. JAMES, supranote 108, at 113-14.Jamesascribed
this preferenceto temperament,observingthat the pragmatistis averse to too much orderbecause he is a
"happy-go-luckyanarchisticsort of creature."Id. at 114.
146. Of course, most real human beings will have both pragmaticand nonpragmaticmoods and
moments.Holmes is a primeexample.Currentpragmatistscholarsfind in Holmes a primarysourceof legal
pragmatism.See, e.g., supra note 7. At the same time, a good deal in Holmes' thinkingand practiceseems
antitheticalto the preceptsof pragmatism.Thus,while strugglingto distinguishHolmes' use of theoryfrom
Langdell's, Grey concedes that both men were conceptualistsand formalists,Grey, supra note 7, at 822,
and that Holmes "loved the logical manipulationof doctrinefor its own sake nearlyas much as Langdell
did, and this could lead him astrayin practice."Id. at 819. By his own admission,Holmes "hate[d]facts"
andexalted "generalpropositions."Id. at 842. He reconciledhimselfto the studyof law becausehe believed
it might "open[] a way to philosophy."Id. at 840. He admittedthat in judgingcases he worriedlittle about
"the practicaleffect of the decision,"concentratinginstead on the decision's "relationto the theory and
philosophyof the law."Id. at 848. There is no reason to suppose that Holmes' vacillationsand deviations
were uniqueto himself. Insofaras such inconsistenciesreflect a humanneed both for orderand for freedom,
it seems likely that everyone will be both pragmaticand nonpragmaticin varying degrees.
As William James pointed out:
Most of us have a hankeringfor the good things on both sides of the line. Facts are good, of
course-give us lots of facts. Principles are good-give us plenty of principles. .. . And so
forth-your ordinaryphilosophiclaymanneverbeing a radical,neverstraighteningout his system,
but living vaguely in one plausible compartmentof it or another to suit the temptationsof
successive hours.
W. JAMES,supra note 108, at 9-10.
147. See R. DWORKIN, TAKING RIGHTS SERIOUSLY 81-130 (1977).
system as deeply illegitimate.148 To the more pragmaticlawyer or scholar,

on the other hand, a certain degree of indeterminacydoes not necessarily
threaten the basic legitimacy of the legal system; indeed, it may provide
desirable flexibility within which a fact-responsiveequity has room to oper-
ate.149
Similarly, if the issue concerns the legitimacy of nonoriginalistjudicial
review,some theoristswill feel drivento developelaboratetheoriesof creative
interpretationor "representationreinforcement."150 They may even resort to
assigning a "prophetic"calling to federaljudges.151A pragmatist,by contrast,
will find these theories exotic and unnecessary;he will be contentto defend
nonoriginalistjudicial review on the less pretentiousgroundsof prudenceand
historicalpractice.152
Despite its explanatorypower, however, an interpretationwhich depicts
legal pragmatismas an "attitude"or "temperament" leaves pragmatistswith
a serious problem:the interpretationunderminesthe pragmaticcriticism of
"grand theory."The pragmatist'ssignificant point, it turns out, is not that
theory should be groundedin experience,or that theory should be contextual
and shouldavoid excessive abstraction.On those points,everyoneagrees.The
pragmatistcould betterexpresshis real concernby saying:"I feel no need for,
nor do I take any joy in, elegant or comprehensivetheories."To which the
grand theoristcan easily respond:"I do." And once one understandspragma-
tism as an expression of temperament,the legal pragmatisthas no effective
rebuttalto the grandtheorist'sposition. Mattersof temperament,afterall, are
typicallynot promisingmaterialforintellectualdebate.Ambitioustheories,like
stormy evenings, Super Bowls, or presidentialcampaigns, will leave some
people excited andothersdepressed;butthereis little in suchreactionsthatone
can usefully argue about.'53
Indeed,legal pragmatismactuallylegitimatesthe grandtheorist'sposition.
A nonpragmatistmightarguethatthe law (or the universe)just does not exhibit
or supportthe kind of comprehensiveorderthatthe grandtheoristpurportsto
148. Foran illuminatingdiscussionof the associationof indeterminacyandillegitimacyby criticallegal

scholars, see Kress, Legal Indeterminacy,77 CALIF.L. REV.283, 285-95 (1989). Cf. H.L.A. HART,THE
CONCEPT OFLAW135 (1961)(speculatingthat legal skeptics of his day were often "disappointedabsolut-
ist[s]").
149. See Kress, supra note 148, at 294. See generallyK. LLEWELLYN, THECOMMON LAWTRADITION
(1960).
150. The references are to theorists such as Dworkin and to John Ely. J. ELY,DEMOCRACY AND
DISTRUST (1980).
151. See M. PERRY, THECONSTrTUTION, THECOURTS, ANDHUMANRIGHTS (1982).
152. See Grey, The Constitutionas Scripture,37 STAN.L. REV.1, 20 (1984).
153. One can believe thatcertainkinds of attitudesare admirableor appropriate(reverenceon sacred
occasions, perhaps)or inappropriate(levity at a funeral).Such appropriatenessor inappropriateness
seems
to rest more on ethical or even aesthetic than on epistemological grounds.Thus, legal pragmatistsmight
be better advised to develop a pragmaticaestheticinstead of treatingpragmatismas a theory of law with
propositionalcontent. Though he asserts that legal pragmatismis a theory,and indeed the truestand best
theory, Thomas Grey's recent turn to poetry as a vehicle for expressingthe meaning of pragmatismmay
representa step in this direction. See Grey, supra note 14.
describe. But pragmatism,having insisted that the test of a theory is not its
correspondenceto any objectiverealitybutratherits capacityto fulfill "human
needs,"154cannot so readily offer this objection. On the contrary,if grand
theoryeffectively satisfies a humanneedfor orderandmeaning,the pragmatist
ought to applaudthe accomplishment.155 He can observe, of course, that he
personally feels no such need. But that is hardlya criticism at all, any more
than it is a criticism of diabetesresearchto say that I personallydon't have
diabetes.
Thus,interpretinglegal pragmatismas an expressionof temperamentleaves
pragmatistswith nothing of significance to say-or, at least, with nothing
significant of a propositionalnaturethat is characteristicallypragmatic.And
the questionthat emergesfrom this interpretationis why pragmatistskeep on
talking. Or, more precisely,why do they keep talkingaboutpragmatism?'56
D. Legal Pragmatismas Self-Deception?
One possible answerto the questionmight suggest that legal pragmatists

continueto talk aboutpragmatismbecausethey are deceived;they thinkthat
pragmatismhas something distinctive and valuable to say even though it
actuallydoes not. Perhapspragmatismattractsthem becauseit is one version
of the old dreamthatthe questionswhichplagueanddivideus mightsomehow
be banishedif we couldjust get answersdirectly-withoutdistortingconceptual
mediation-fromnatureitself. Thoughtfulpragmatistswould disavowany such
notion,of course;indeed,they may regardthe impossibilityof any unmediated
apprehensionof natureas a special pragmatistinsight.'57But having an in-
sight is one thing; faithfully acting on that insight is another.Reading the
discussionsof legal pragmatists,one sometimeshas the sense thateven though
the pragmatistssay they accept the inevitabilityof mediating theory, they
cannot quite bring themselves to believe it. They act as if through the
incantatoryrepetitionof sacredwords-"experience,""context,""perspective,"
"dialogue"-self-validatinganswerswould finally,somehow,just springforth.
If pragmatistspracticeself-deceptionin this way, they would hardlybe the
first to do so. In Carl Becker's classic depiction, the philosophersof the
154. See, e.g., Posner,supra note 13, at 1660; Stick, supra note 7, at 393.
155. See Grey,supra note 7, at 804 (observingthat "a wise pragmatistwill also accept as legitimate
the 'philosophical'humanneed to generatesuch [all-encompassingmeta-accounts]").
156. Of course, legal pragmatistsmay have all sorts of interestingand valuable things to say on
particularsubjects;the question is whetherthese more particularinsights and ideas are productsof legal
pragmatism.ThomasGrey,in suggestingthatlegal pragmatismis "banal"and"truistic"on an abstractlevel,
see supra note 12 and accompanyingtext, implies that legal pragmatismis not banal on a more concrete
level. And it is certainlytrue that persons who call themselves legal pragmatists-Greyis an outstanding
example-offer valuableinsights on a variety of issues. But if the generalpropositionsof legal pragmatism
are mere truisms that virtually everyone accepts (including people who might not share Grey's more
particularviews), thenthe connectionbetweenGrey'sparticularviews andthe utterablepropositionalcontent
of his pragmatismis at least problematic.
157. See supra notes 102-07 and accompanyingtext.
Enlightenmentperiod beara strikingresemblanceto some modernlegal prag-

matists. The philosophes were of a reformingbent; they were driven by "the
humanitarianimpulse to set things right."158They wanted to make use of the
past but also to free themselvesfromthe traditionsand superstitions-fromen-
trenchedconceptionsand institutions-thatthe past hadbequeathedto them.159
And the way to achieve this freedom, they believed, was to turn directlyto
humannatureand experience.'60Thus, the philosophesstudiedhistoryso that
they could "establishthe rights suitableto man's natureon the facts of human
experience."161
In searching history and human experience for answers to political and
ethicalquestions,however,thephilosophesencounteredan obstacle.Experience
and history form a capacious net that gathers in facts, ideas, lessons, and
observationsof all kinds. The philosophes"wishedto get rid of the bad ideas
and customs inheritedfrom the past; quite as obviously they wished to hold
fast to the good ones, if any good ones there were."'62 But how could they
make this distinction?The barefacts of historydid not distinguishbetweenthe
"naturallygood" and the "naturallybad"in experience. 63But if historycould
not itself provide the standardfor making the requisitedistinction,only one
alternative remained available: the philosopherswould have to supply the
standardthemselves. Paradoxically,they could learnfrom humanexperience
the distinction between the good and the bad only by bringing to human
experience a standardfor making that distinction.Thus, "the principlesthey
are bound to find are the very ones they start out with."'64
Becker relishes the irony:
Is it, then, possible that the Philosopherswere not really interestedin

establishingthe rights suitableto man's natureon the facts of human
experience? Is it possible that they were engaged in that nefarious
medieval enterpriseof reconcilingthe facts of humanexperiencewith
truths already,in some fashion, revealed to them?
Alas yes, that is, indeed, the fact! The eighteenth-centuryPhiloso-

phers, like the medieval scholastics, held fast to a revealed body of
knowledge, and they were unwillingor unableto learn anythingfrom
158. C. BECKER,THE HEAVENLYCITY OF THEEIGHTEENTH

CENTURYPHILOSOPHERS
41 (1932).
159. See id. at 93.
160. Even when the philosophes continuedto use the languageof "naturallaw," Becker argues,their
usage was vastly differentthan Aquinas'. EnlightenmentphilosophersassociatedNaturenot with a priori
or theological first principles, but ratherwith "the actual behaviorof nature";they sought "not a logical
concept, but a substantialreality."Id. at 56-57.
161. Id. at 101.
162. Id. at 95.
163. Id. at 86.
164. Id. at 104.
history which could not, by some ingenious trick played on the dead,
be reconciledwith their faith.'65
But Beckeris charitablein his final judgment."Itis apparentthat... they are

deceiving us, these philosopher-historians. But we can easily forgivethem for
that, since they are, even more effectively, deceiving themselves."'66
One can easily discern a close parallel between the eighteenth-century
philosophersand, for example,Posner'sargumentthata more sureknowledge
is availableif we will juststartwithempiricalobservationratherthanimposing
our categorieson experience.167The parallelbecomeseven tighterin the case
of Robin West'sargumentfor "pragmaticliberalism."Westfavors"pragmatic
experientialism."'68 She arguesthat "the good life is a functionof our inher-
ent nature."'69 And, like the philosophes, West urges us to "seek[] an under-
standingof the good from an empiricalunderstandingof whatit has meantto
be human"'70by, for example, studyinghistory;we must not try to "deduce
[the natureof the good] from arbitrarilyadoptedpremises."171 And how will
history and empirical study reveal to us the "good" or the good life? West
argues that "we learn from experience that some past preferencesand the
choices basedupon them are moreconduciveto happinessand to the good life
than others."'72
At this point West's position risks appearinglike a historically oriented
version of utilitarianism;the task is to figure out from historicalstudy which
policies will make people feel happy,and then to promotesuch policies. But
West quickly fends off any vulgarutilitarianinterpretationby distinguishing
between "apparenthappiness"and "true happiness."'73To the pragmatist,
liberalismseeks "the liberationof humanpotential for the good life, not the
maximizationof individualpreferences."'74 "Humannature"evinces tenden-
cies conducive to this kind of life, but it also harborsdestructivetendencies
such as lust, greed, and envy.175Hence, not all "natural,historical human
inclinations"areto be respected-onlythosenaturalinclinationsthatleadto "the
165. Id. at 101-02.

166. Id. at 103. For a parallel interpretation,see A. MACINTYRE, supra note 117, at 47-49.
167. See supra note 107 and accompanyingtext.
169. Id. at 696. Apparently,however,our natureis not so "inherent"as this languagemight suggest,
since in the same sentence West asserts that our "natureis subject to change."
170. Id. at 724 (emphasisadded).See also id. at 736 (arguingthatwe must "investigatehumannature
empirically");cf. C. BECKER, supranote 158, at 101-03 (discussingeighteenth-centuryambitionto discover
"humannature"empirically,and futility of that ambition).
172. Id. at 680.
173. Id. at 689, 718.
174. Id. at 717.
175. See id. at 718.
good life." And only "humannature,properly understood,""76 can lead us

to discern "the good life."
How then are we to decide which partsof humannatureto exalt and which
partsto rebukeand restrain?How are we to decide which empiricalreportsof
happinessto accept and which to reject as merely reporting"apparenthappi-
ness"?Westarguesthatwe mustmakea "discriminatingassessmentof experi-
ence."'77We cannot take people's choices or preferencesat face value; rather,
we must makejudgmentsaboutthose choices, recognizingthat some choices,
such as "the 'choice' of a purchaseor of a religious denominationor of a line
of work may be partof a processof addictionand self-annihilationratherthan
self-definition and self-enhancement."'78 We do not just take historyor expe-
rience raw, but instead season, sift, and refine it using the "methodof intelli-
gence."179
This discussion contains two prescriptionsin obvious tension. First, the
"empirical"strain in West's discussion tells us to get our values and our
understandingof the good life from experience and to refrainfrom imposing
ourideas or values on experience.Second,the "intelligence"partof the discus-
sion suggests that we cannot take experience at face value, but instead must
evaluate experience with the use of judgmentand discrimination.But evalua-
tion,judgment,andintelligencemeanreflectivelyapplyingourideasandvalues
to experience.Thus,the secondprescriptioncannotbe fully reconciledwith the
first. West's position resembles that of the philosophes in suggesting that
conclusionsreachedon the basis of judgment,intelligence,and discrimination
can still be viewed as "empirical,"free from the taint of values imposed on
experience.'80West's liberalpragmatistechoes the "objective"journalistwho
insists, "I don't let my own views or values influencemy reportingin any way;
I only reportthe facts ... (as seen, selected, and interpretedby me)."'18
176. Id. at 736 (emphasis added).

177. Id. at 681.
178. Id. at 711.
179. Id. at 694. Although the "methodof intelligence"remainsobscure in its operationaldetails, it
evidently involves reflection, experimentation,and broadsocial discussion.See id. at 694-96.
180. For an account of John Dewey's similar misadventuresin his quest for a "metaphysicsof
experience,"see R. RORTY, PRAGMATISM, supra note 108, at 72-85. Rorty arguesthat Dewey "was never
able to escape the notionthatwhat he himself said aboutexperiencedescribedwhatexperienceitself looked
like, whereas what others said of experience was a confusion between the data and the productsof their
analyses."Id. at 79-80.
181. Of course, West's pragmatismessay may not representher moredeveloped views. Indeed,while
West once endorsedpragmatismbut doubtedthat the legal communitywould adopt a pragmaticview of
law, it is even possible that during the interveninghalf-decadethe roles have been reversed:The legal
communitynow regardspragmatismwith favor,butWest has moved beyondpragmatism.In a recentarticle
Westdescribespragmatismor instrumentalismas one of threeimportantstrandsin Americanjurisprudence,
but she does not appearto endorsepragmatismas the preferredand superiorview. See West, Progressive
and ConservativeConstitutionalism,88 MICH.L. REV.641, 659 (1990).She does, however,continueto cite
her pragmatismessay with apparentapproval.Id. at 670 n.75. More importantly,her recent article seems
suspiciously heavy on abstractcategorization.Constitutionalscholarsare divided into two camps:progres-
sives and conservatives.Each camp neatly subdividesinto three smallergroups, and each of these smaller
groups has a characteristicposition on threeissues:politics,jurisprudence,andconstitutionalinterpretation.
Throughoutthis discussion I have tried to use the conditional mood in

suggestingthatpragmatismmightbe a form of deception.Pragmatistsmay be
engaged in deception, or self-deception, but they need not be. When one
encounterspragmatistsmakingambitiousclaims for theirposition,by suggest-
ing, for example, that pragmatismcan actually provide solutions to legal
problems,one should be wary. But pragmatistsare not requiredto make this
claim. In that case, however,the old, pesky questionreturns:if legal pragma-
tism cannot providesolutions to legal questions,and if it has only innocuous
things to say about how solutions should be found, then why do pragmatists
continue to talk aboutpragmatism?
III. PRAGMATISM
AS EXHORTATION
Thus far, the search for a distinct and potentially valuable pragmatic
positionhasprovendisappointing.Theremay well be a pragmatictemperament
or attitude,but this attitudedoes not issue in useful propositionsor criticisms;
indeed, it underminesthe pragmatistcriticism of "grandtheory."Pragmatists
also providerecurringthemes: forward-lookinginstrumentalism,the priority
of experience,contextualism,andperspectivism.Butthesethemesturnoutupon
inspection to be either empty or innocuous.At best, it seems, pragmatistsare
telling us what we alreadytake for granted;at worst, insofar as pragmatists
thinkthey are saying somethingdistinctiveand useful, legal pragmatismis a
projectin self-deception.
Before dismissingpragmatismon these grounds,however,we should ask:
what is so bad about being platitudinous?If a theorist or scholar purportsto
offer some new revelationor novel insight but then proceeds to recite pious
generalitiesthat everyone alreadyacknowledges,we will naturallybe disap-
pointed. Similarly, insofar as legal pragmatismclaims to be a distinctive,
valuable position or theory about law, but in fact offers only platitudes,then
it has failed to deliver on its promises. On the other hand, platitudes are
eminently suited to performcertainfunctions such as exhortation.
A morefamiliarexampleillustratesthe natureof this exhortatoryfunction.
Startwith some quality-let us say,"cowardice"-thatvirtuallyeveryoneregards
as a vice. Even the universalcondemnationof this qualitywould hardlymean
that cowardicepresentshumanbeings with no problems.On the contrary,the
concept of "cowardice"raises at least two differentkinds of problems.The
intellectualprobleminvolves decidingwhatkindsof conductor attitudeconsti-
tute "cowardice."Afterall, while condemningthis vice, mostpeople also allow
that a healthyregardfor one's safety is not only permissiblebut praiseworthy.
The overall structure,abstractand internallycoherent,is presentedin a series of 2 x 3 and 3 x 3 grids. For

myself, I find West's schemas at least interesting, often plausible and illuminating, and aesthetically
appealing.(I've always been partial to tripartitecategorizationschemes.) But I'm not sure that a devout
pragmatistwould have much patience for all this abstractcategorizationand conceptual symmetry.
How then do we distinguishbetween a contemptible"cowardice"on the one

hand and an appropriate"caution"on the other?How do we decide whether
Rambobehavioris inspirationalor ridiculous?Whatseparates"courage"from
"cowardice"at one end of the boldness continuum,and from "recklessness"
or "foolhardiness"at the other?
The vice of cowardicealso generatesa less intellectual,morepracticalkind
of problem.Even if one is certainthat it would be cowardlyto shrinkfrom a
particulardanger,one may neverthelessshrinkfrom it-because one lacks the
courage to confront it. Most vices-cowardice, gluttony, greed, selfishness,
dishonesty-areunfortunatelyall too pervasive;andthe principalreasonfor this
problemis not that we do not realize that such things are wrong, but that we
find it hardto live up to ourmoralideals. To be sure,this kind of moralfailure
has a cognitive element.Not likingto thinkof ourselvesas cowardlyor wicked,
we are prone to excuse, rationalize,or simply refuse to think aboutour moral
failings.Nonetheless,the rootproblemstemsfromweaknessof will anddeviant
practice,not inability to comprehendthe vice.
Because the intellectualand practicalproblemsdiffer in nature,they call
for differentkinds of remedies.The first kind of problemmay be amenableto
theoreticaltreatment;an ethical philosophermightgive us, if not a formulafor
distinguishing"cowardice"from propercaution,at least criteria or guidance
to help make thatdistinction.Conversely,exhortation-acoach'spre-gamepep
talk, for example, or a poem urging the reader to "Be a hero in the
strife"-would offer little help with respect to the intellectual problem. We
alreadyknow,afterall, thatwe shouldnot be cowardly;the intellectualquestion
is what constitutescowardice.
On the other hand, exhortationmay be helpful to soldiers who know that
they must go into battle and are strugglingto musterup the courageto do so.
Moralexhortationis directedto problemsof practice;it seeks to strengthenthe
will to live up to ideals, or it preventspeople from convenientlyexcusing or
forgettingto thinkabouttheir shortcomings.And with respectto this function,
one can hardlyobject that the exhorter'smessage is platitudinous,or that the
listenersalreadybelieve thatcowardiceor greedor gluttonyshouldbe avoided.
On the contrary,exhortationis by its very natureplatitudinousin that sense;
its purpose is to sharpen people's sense of and commitmentto ideals they
alreadyhold. Conversely,a theoreticaldiscussionof ethical philosophywould
be ill-suited for that function. Generalstypically do not preparean army for
battle by assigning the troops to study Book III of the NichomacheanEthics.
Recognizingthe functionof exhortationsuggeststhatthe criticismsof legal
pragmatistthemes offered earlier in this article may be misdirected. Such
criticismsassertthatmanyof the thingsthatlegal pragmatiststypicallysay are
propositionswhich everyone alreadytakes for granted.Insofaras pragmatists
are trying to offer criteria or principles for evaluating legal theories, that
conclusion suggests that pragmatismoffers little of value. But imagine a
differentfunction for pragmatism;perhapsthe purposeof pragmatistwriting

is to exhort scholars and judges to avoid intellectualvices that they already
acknowledgeas such but are nonethelessprone to commit.
For example,everyonemay agree thattheoriesshouldbe firmly grounded
in experience.Theoristsgenerallystartwith experience,not only becausethey
believe they should but because that is the only place they can start. Once
conceived, however, a theory may acquirea vitality of its own. Ratherthan
helping the scholarto understandor deal with experientialreality,the theory
becomes the scholar's reality.This sort of theorizingresembles the religious
vice of idolatry.The worshippercreates an image to help focus her thoughts
and feelings on a more ultimatereality;but she concludesby worshippingthe
image itself. In the same way, a legal scholarmay come to regardhis theory
as, like Dworkin'spast, "valuablefor its own sake";he therebysuccumbsto
"apiece of perverseabstractionworship."182 Andpragmatismoperatesas a kind
of exhortation,remindingthe scholarof properpriorities,calling him backto
experientialreality.183
One can easily misperceivethe exhortatoryfunctionof legal pragmatism
because the vices againstwhich it admonishes-excessive abstraction,unwar-
ranted generalization,formalistic rigidity, insensitivity to context-occur in
theorizing (or, more loosely, in thinking).If theories remedy intellectualor
theoreticalproblems and exhortationremedies problemsof practice, then it
might seem that pragmatism,which addressesintellectualproblems,must be
a kind of theory ratherthan a form of exhortation.In this instance,however,
the distinctionbetweentheoreticalproblemsandproblemsof practiceis likely
to confuse. Pragmatismis concernedwith problemsthat occur in the practice
of theorizing. It does not supply distinctive standardsfor constructingor
evaluatingtheories,butinsteadadmonishesthinkersto adhereto standardsthat
they alreadyaccept.And it is preciselythe oft-notedplatitudinouscharacterof
the pragmatists'counsels that reveals the essentially exhortatoryfunction of
legal pragmatism.
Pragmatistsmay not rejoice in a view that depicts them primarily as
exhorters.Butexhortationperformsa potentiallyusefulfunction;"bad"theoriz-
ing-theorizing thatdeviatesfromthe theorist'sown standards-mightbe just as
pervasive as otherkinds of immoralpractice,andjust as deservingof rebuke.
Indeed, insofar as we will always be engaged in theorizing,we will always
potentiallyrequireremindingof the vices associatedwith that activity.
Nonetheless,a messagewhichis urgentlyneededon one occasionor by one
audience may be less useful in other situations.The value of preaching,as
pragmatistsshould be pleased to acknowledge,depends upon context. For
182. W. JAMES, supra note 108, at 115.

183. Whether intended or not, Grey's suggestion that pragmatismis "freedom from theory-guilt"
expresses this sense of pragmatismas a way of avoidingthe vices associatedwith theorizing.We generally
feel guilt, after all, when we do what we alreadyknow to be wrong.
example,we view "frugality"as a venerablevirtue,and one may appropriately

preach it to one's teenage son or daughter.But it would be pointless, and
perhapsinjurious,to direct the same sermon on frugality to a pre-visitation
Ebenezer Scrooge. In the same way, pragmaticadmonishmentis a proper
prescriptionfor an era that has been overindulgenttowards the theorizing
impulse.But pragmatismmay be just the wrongremedyfor a legal andjudicial
style that already suffers from theoretical timidity. The critical question,
therefore,focuses on the diagnosis applicableto legal thinkingtoday.
IV. CONCLUSION: IS THE PRAGMATIST SERMON THE ONE WE NEED NOW?
The resurgence of pragmatismin legal thought reflects a widespread

perceptionthat in recentyears legal thinkinghas been undulytheoreticaland
abstract.One familiarexplanation-albeitonly a partialone-for this tendency
suggests that Brown v. Board of Education84 and later Roe v. Wade'85
prompted a crisis of constitutionallegitimacy and provoked constitutional
scholarsto ever loftierflightsof theoreticalabstractionin theireffortsto defend
those decisions.'86A whole generationof theoristswas born out of the strug-
gle over what AlexanderBickel called "thecountermajoritarian difficulty."'87
The ambitious theories of scholarssuch as Ely, Dworkin,Rawls, Ackerman,
and Perry stand as the landmarkachievementsof that generation.
In the long run, however, this project of theory-buildinghas proven
unsatisfying.Eachof the landmarksmentionedabovehas been severelyeroded,
if not entirely overthrown.The movementtoward"grandtheory,"it may now
seem, representeda wrong turn;and it is time for retrenchmentto the more
solid groundof experience,practice,andcommonsense. This diagnosis,which
views legal thoughtas emergingfrom (or perhapsstill entangledin) a period
of "grandtheory,"helps to account for the revival of legal pragmatism.It
suggests that the pragmatists'message is not only timeless, but also timely.
A counter diagnosis, however, deserves to be considered.Note first the
insecure statusof the theories of Ely, Dworkin,Rawls, and Ackermanwithin
the realmof "grandtheory."Suchtheorieswere indeedelaborate,lengthy,and
sweeping in scope; by those criteriathey would qualify as "grandtheory."In
a differentsense, however,such theorizingdoes not appear"grand"at all, but
ratherpeculiarlyand deliberatelymodest. John Ely's position, emphasizinga
"concernwith process in a broadersense,"188attemptedto spare the judge,
and the theorist,the difficulttaskof addressingquestionsof substantivejustice
184. 347 U.S. 483 (1954).

185. 410 U.S. 113 (1973).
186. For two expressionsof this interpretationof the proliferationof constitutionaltheorizing,see M.
TUSHNET,RED, WHITE,AND BLUE vii (1988); Bobbitt, Is Law Politics? (Book Review), 41 STAN. L. REV.
1233, 1237 (1989) (reviewing M. TUSHNET,RED, WHITE, AND BLUE (1988)).
187. A. BICKEL,THE LEAST DANGEROUSBRANCH 16-23 (1962).
188. J. ELY,supra note 150, at 74.
or morality.The theoriesof Rawls, Ackerman,and Dworkin,while seemingly

more"substantive," studiouslyavoidedaddressingthe perennialethical,existen-
or
tial, theological issues such as "thenatureof man,"or of "thegood,"or the
meaningor purposeof life. Onthe contrary,at theircore,the theoriessuggested
that governmentand law (and hence legal theory) must not take positions on
questions such as these.189Such theories did not merely decline to address
such questions,but devoted themselvesto insulatingthe law from moral and
theological thinking that might arise in other disciplines or in the culture
generally.Hence, by contrastwith the true "grandtheories"in the classical
sense-i.e., to philosophiessuchas thoseof Plato,Aristotle,andAquinas-recent
legal thought has been decidedly timid; it may plausibly be viewed not as
"grandtheory,"but ratheras a kind of anti-"grandtheory."
This alternative characterizationof recent theorizing suggests several
conclusionsthatclashwith those of the pragmatistdiagnosis.First,the theoriz-
ing of Ely, Rawls, Dworkin,and Ackermanarguablyhas provenunsatisfying
not because it was too ambitious,but ratherbecause it was so aggressively
unambitious.Suchtheorizingwas precludedin advancefromprovidingsatisfy-
ing answers to legal and political questions precisely because it refused to
confrontessential issues such as the natureof the good life, hiding instead
behind an illusory "neutrality."190 Second, legal pragmatismmay plausibly
be viewed not as challengingorreplacingthis theoreticalquestfor "neutrality,"
but ratheras carryingon thatquest in a slightly alteredguise. The underlying
instinct-one that avoids makingdifficult and controversialsubstantivejudg-
ments upon fundamentalhuman questions-seems very much the same.191
After all, what could be safer and less likely to give offense than a legal
philosophythat principallyoffers innocuousadvice such as "Respecthuman
experience,""Listento all sides," and "Be sensitive to context"?
Finally, if this analysis is accurate, then the pragmatistdiagnosis and
prescriptionare misconceived.The remedy,if thereis one, for the failuresof
recenttheorizinglies not in a pragmaticflight fromtheory,butratherin better
and more courageoustheorizing.And the morepromisingrecentdevelopment
189. See B. ACKERMAN, SOCIAL JUSTICE INTHELIBERAL STATE11 (1980);R. DWORKIN, supra note
34, at 191-92, 222 (1985); R. DWORKIN, supra note 147, at 266, 273 (1977); J. RAWLS,A THEORY OF
JUSTICE 212 (1971).
190. The neutralitynotion centralto such theories has been widely criticized.For my own discussion
of some of these criticisms,see Smith,TheRestorationof Tolerance,63 CALIF.L. REV.305, 313-29 (1990).
191. Indeed,from this perspective,currentlegal pragmatismseems much closer to the grandtheory
it purportsto oppose than to the thinkingof a pragmatistlike WilliamJames.James began his lectureson
pragmatismby declaring that "the most practicaland importantthing about a man is still his view of the
universe.... [T]he question is not whetherthe theory of the cosmos affects matters,but whetherin the
long run anythingelse affects them."W. JAMES, supra note 108, at 5. And throughoutthese lectures,James
did not avoid addressingcosmic questions, but enthusiasticallyconfrontedthem.
in legal thoughtlies not in the revival of legal pragmatism,but ratherin the

renewal of interestin what is awkwardlycalled "naturallaw."'92
We have, then, two diagnoses of what ails our currentlegal culture.One
diagnosispoints to theoreticalcockiness and prescribespragmatichumilityas
the remedy. A counter-diagnosiswould attributeour ills to theoreticaldiffi-
dence; we have feared to confrontthe hard,elusive, but nonethelessessential
humanquestions.This diagnosissuggeststhatthe pragmatistsermonis not the
message we need to hear now.
However,these competingprescriptionsmay,at least over time, converge.
The second diagnosis, by calling for more fearless theorizing, implies that
pragmatistexhortationwill be urgentlyneeded. To be sure, it is difficult to
predict what direction naturallaw thinkingmight take. Even a proponentof
naturallaw must admitthat at presentthe propositionsgeneratedby naturalist
approachesoften seem at least as platitudinousand practicallyunhelpfulas
those issued by legal pragmatism;'93 and it may be that we simply lack the
moral and metaphysicalresourcesto get beyond such banalities.But if legal
theorists ever begin to offer-or, what is more likely, incorporate-significant
answersto fundamentalethical andexistentialquestions,thenone thingseems
certain:Thepragmaticadmonitionsto be cautiousandhumblein ourtheorizing,
to keep in close touch with experience, to appreciatethe richness of human
contexts, and to exercise toleranceand empathytowardopposing viewpoints
will be more imperativethan ever.
In the end, therefore,the verdicton legal pragmatismremainsan ambivalent
one. We can benefit frompragmatism-butonly if we do not expect muchfrom
it. The pragmatistsermonis one that we need to hear,or that we will need to
hear,or both. On the other hand,it is a mistaketo expect legal pragmatismto
take us very far; it cannot solve our problems,nor even provide us with a
method for solving our problems.Legal pragmatismis valuableprimarilyas
an admonishmentto avoid theoreticalpretentiousness;and it should heed its
own counsels.
192. See, e.g., J. FINNIS,supra note 57; Perry, supra note 124; L. WEINREB, NATURAL LAWAND
JUSTICE (1987); Johnson, Some ThoughtsAbout Natural Law, 75 CALIF.L. REV.217 (1987); Moore, A
Natural Law Theoryof Interpretation,58 S. CAL.L. REV.279 (1985).
193. See, e.g., M. PERRY, supra note 124, at 11-23 (advocatingcommitmentto "flourishing");id. at
52 (concluding after considerableanalysis that "moraldiscourseought to be tried");Johnson,supra note
192, at 224 (proposing"some unoriginaland possibly platitudinouspropositionsabout the rationallife").
For my own offering in this vein, see Smith, WhyShould Courts Obey the Law?, 77 GEO.L.J. 113, 131
(1988)(proposingnaturalistview of law whose centralcontentionis that"social problemsand controversies
need not be resolved only throughnaked power in the service of purely subjective preferences,but that
humanreason can be applied in resolving such matters").

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The Pursuit of Pragmatism

Half a decadeago, pragmatistlegal scholarswerewontto regardthemselves

t Professorof Law,Universityof Colorado.I thankPaul Campos,FredGedicks,ThomasGrey,Kerry

to these are added scholarswho see law as a kind of "practicalreason"8and

8. See, e.g., Eskridge& Frickey,StatutoryInterpretationas Practical Reasoning, 42 STAN.L. REV.

I. PRAGMATISM AND THE USES OF THE PAST

Legal pragmatism is frequently depicted as an instrumental,forward-looking

Dworkin's criticism of legal pragmatism can be presented in the form of

16. See, e.g., Grey, supra note 7, at 802-04 (describinginstrumentaltheme in pragmatism).For a

backwards.In reality,Dworkin'sdescriptionis plausibleas far as it goes; it is

saint for the movement,27is revealing:"[C]ontinuitywith the past is only a

B. Dworkin the Pragmatist?

Dworkindevelopshis argumentagainstlegal pragmatismin his examination

his pragmatistphilosophy and to "pretend"to regard statutes and judicial

33. Id. at 154-55.

aboutconfirmingor discreditingthatsuspicion?One approachwould look for

37. See, e.g., R. DWORKIN, supra note 4, at 53-62.

that the entrenchedpractice of dividing law into compartmentssuch as con-

44. Id. at 252.

analogythatwill become apposite,if ever,only afterhe has alreadyprovenhis

47. Although,as some modernliteraturedemonstrates,perhapsnotas far-fetchedas one mightsuppose.

This outcome is not affected by Dworkin's elaborate "personification"

51. Id. at 167-75.

inspection,do not supportthe book's statedconclusion.Fromthis perspective,

The failure of Dworkin's argumentsagainst pragmatismplainly do not

55. See supra notes 37-39 and accompanying text.

thought.58Nor does it say whetherthe best way to promotegood is for indi-

58. See J. BENTHAM,AN INTRODUCTION

to promotethe overall good.65Or the propositionand the objectionmight be

65. See 2 F. HAYEK, LAW,LEGISLATION, ANDLIBERTY 145 (1976)(arguingthat"in fact we generally

69. It should be apparentthatI am treating"thepresent"as an infinitesimallythin line separatingpast

every conscientious judge and scholar (including Dworkin) in any of the

II. LEGAL PRAGMATISM AND THE USES OF THEORY

The previoussection considereda view thatfocuses on legal pragmatism's

73. See, e.g., Farber,supra note 7, at 1342 (oppositionto "[f]oundationalgrandtheory");Grey,supra

Posnerproclaimshimself a pragmatist,and while noting the difficultiesof

75. While noting thatpragmatismis "anumbrellatermfor diversetendencies,"Posner,supra note 13,

entities" such as "mind,""intent,""free will," and "causation,"82 he seems

82. Posner,supra note 13, at 1660, 1662-63.

that he offers. He refersdisparaginglyto "theformalistidea, whose scientistic

89. Posner,supra note 13, at 1656 (emphasisadded).

within pragmatism,not about it. In short, by defining his own pragmatic

The predicamentthatconfrontsaspiringpragmatistssuch as Posnercan be

Pragmatistsknow thattheorycan impose,distort,or mislead.Theorylimits

1. The Priority of Experience

Pragmatistscommonly insist that theories must be groundedin experi-

unexceptionable,in fact, that one must wonderwhetheranyone disagreesor,

the commitmentto finding knowledge in the particularsof experience.").

quently,the processof constructing,criticizing,andrevisingtheoriesinevitably

ception of what impressionsthere may possibly be.

anduseful, it also has its costs-i.e., the costs of overlookingpotentiallysignifi-

excessive abstractionandfavorsexperientialgroundingfails to delineateamong

The pragmatists' recurring invocation of "intuition,""dialogue,"and

116. See, e.g., Farber,supranote 7, at 1334-35(listing "intuitionism"amonggroupof roughsynonyms

believe. Prescribing"dialogue"fails to answerthese hardquestions. Second,

122. See, e.g., Hutchinson,Talkingthe GoodLife:FromFree Speech to DemocraticDialogue, 1 YALE

propercontextmightthemselves,preciselyby virtueof theirgenerality,deviate

that have plaguedhumansfor centuriesand, when askedto describethe meth-

C. The Pragmatic Temperament

The discussionthus far suggests that althoughlegal pragmatistsexpress a

137. All of this brings to mind the nurseryrhyme:

is content with a lower degree of order."4Thus, in the abstract,both may