“[P]ragmatist theory of law is, like much pragmatist theory, essentially banal.” So wrote Thomas Grey at the dawn of pragmatism’s renaissance in legal theory. Even Richard Rorty, the philosopher frequently credited with reviving pragmatism concurs. Richard Posner could not agree more. For well over a decade, Posner has been the leading proponent of legal pragmatism. He proclaims that “pragmatism is the best description of the American judicial ethos and also the best guide to the improvement of judicial performance—and thus the best normative as well as positive theory of the judicial role.” For Posner, pragmatic adjudication boils down to “reasonableness”; it is “[n]ebulous and banal, modest and perhaps even timorous — or maybe oscillating unpredictably between timorous and bold.”
Following the classical pragmatists, many contemporary pragmatists reject philosophy as a method for securing unshakeable foundations for knowledge. Yet these pragmatists part ways with classical pragmatism by rejecting the possibility of developing a thicker theory of the good and viewing pragmatism as a thin non-theoretical method of approaching issues. On this account, pragmatism is a relatively commonplace set of ideas and should hardly be shocking to the contemporary mind. According to Posner, “pragmatism is more a tradition, attitude, and outlook than a body of doctrine”; it is more of a “mood” than a substantive philosophy. Posner insists that pragmatism has “no inherent political valence.” Likewise, Rorty contends that pragmatism “is neutral between alternative prophecies, and thus neutral between democrats and fascists.” Under this view, pragmatism generally leads to cautious common-sense policies. It is far from radical and unsettling, for it is too grounded in practice and too lacking in substantive value commitments to be otherwise.
In this chapter, we contest this account of pragmatism held by many neo- pragmatists and articulated most directly by Posner. We offer a thicker account. Pragmatism does indeed have a political valence. It has substantive values. And, far from being banal, it is radical at its core.The authors go on to comment that
As developed by classical pragmatists like Dewey, pragmatism is not neutral. Of course, this account of pragmatism does not imply a specific theory of political philosophy. But it does have valences. In order to ask what political future does pragmatism recommend?, we must also ask in what political culture can pragmatic forms of inquiry about the political future best be carried out? The answer to this latter question leads us in the direction of what we call a “general democratic culture.” First, pragmatism subjects existing institutions and the status quo to ongoing critique, since it recommends that we critically examine our ends. When one commits oneself to a thoroughgoing use of pragmatic method, certain conclusions are ruled out in advance, such as a politics informed by supernatural or transcendental ideals, or a politics that arbitrarily excludes particular viewpoints. Supernaturalism and absolutism conflict with the general approach of the pragmatic method, which is to subject our ideals, ends, and conclusions to the test of experience. Indeed, it is this commitment that in part motivates Posner’s rejection of philosophical theory, for much philosophical theory has traditionally harbored ideological commitments that were then foisted upon the unaware from the altar of theory. But the fear of ideology can lead to cures that are worse than the disease. Although Posner claims to adhere to a neutral pragmatic method without political valences, the results of his application of this method are deeply ￼ensconced in ideology. Posner’s pragmatism does have a particular political valence, one that favors the dominant ends of the status quo. The result is that while Posnerian pragmatism rejects supernaturalism and absolutism, it starts with an unquestioning acceptance of current institutions. Ironically, it winds up in a similar posture to supernaturalism and absolutism, for in each of these instances certain issues are insulated from critical scrutiny.
Second, under Deweyan pragmatism, democracy depends upon deliberation. Democratic deliberation is the way we establish shared meanings and determine the ends of a community. It is important to distinguish between individual and community ends. Individuals can readily choose their own ends, but for communities, the task is more difficult. This is because a community’s ends depend on the identity of the community, which must be ascertained by examining the history of that community and soliciting input from across the community as a whole. Examining community identity leads us to ask: Who are we becoming? How are we growing? Do we want to continue in this fashion? Who do we want to become? There is no movement into the future that does not presuppose a judgment about the past and present. Pragmatists therefore need to encourage public deliberation about our identity since there is no way to determine what is better or worse without reference to that identity.
Since community rather than individual ends are at issue, dialogue becomes essential. Community ends are determined collectively, and doing so requires communication. This dialogue does not need to be an academically sophisticated discourse; rather, pragmatism merely requires that people participate in a discussion of the meaning of ends understood in the context of present circumstances. These are philosophical discussions not because they take place in universities, but because they ask about the good life under present social conditions. A pragmatic approach to democracy is one that understands itself as part of existing political conversations about the nature and ends of the community.
Third, since experience is social and meanings are constituted through communication, efforts to describe experience and formulate an account of social problems must seek contributions from a wide range of participants in social experience. Under Dewey’s theory, participation is a highly valued end. For Posner, in contrast, participation has no value unless it can achieve results that benefit one’s self-interest. Beyond being valuable in and of itself, participation is valuable instrumentally as well. According to Dewey, self-government “is educative,” for it “forces recognition that there are common interests.” Thus, the purpose of democracy is not to take the people as they are. The value of democratic participation is to educate people, to enable them to realize common interests and see themselves as part of a community. Dewey’s experimental method does not simply consist of presenting hypotheses; rather, it requires testing proposals to resolve present problems by seeing how they work in experience. Interpreting the social meaning of a particular set of experiments requires recourse to the larger community. We increase our chances of finding effective solutions to social problems by looking to a broad range of contributors. Therefore, in contrast to Posnerian pragmatism, the account of pragmatism we offer openly acknowledges that it is not completely neutral. Although pragmatism does not point to precise resolutions for our debates, it does send us in a particular direction based on the types of questions it recommends we investigate. It puts on the table for debate a wide range of issues, especially the identity of a community and its ends. It requires dialogue, for the task of determining a community’s ends cannot be achieved without communication. And it relies on the participation of the community, not merely upon a group of elites who impose their own ends upon the community.
Since democracy depends upon the widespread participation of a community in a dialogue over its ends, the pragmatist pays special attention to questions concerning the conditions for effective community discussion. Posner rejects such questions as hopeless and doomed because it is not realistic to achieve complete community engagement. But these are precisely the ways in which a community pragmatically resolves the more specific political arrangements it shall adopt. Because this account of pragmatism suggests that we engage in a critical examination of the dominant ends of society, and that we must do so through dialogue and through broad community participation, it points us more toward Concept 1 democracy than Concept 2. This does not foreclose us from embracing some features of Concept 2, but it certainly rejects the insular nature of Concept 2, which leaves too few avenues for dialogue and community engagement.
Pragmatic democratic inquiry would lead us to ask: What are the pressing problems of the day? What are the relevant community ends? What means can we use to achieve these ends? The inquiry would also go deeper to ask: To what extent are the community ends contested? What is the pedigree of the prevailing community ends? How did these ends become the prevailing ones? For what purposes were these ends originally adopted? Do the reasons these ends were adopted still have currency today? To the extent that there are competing accounts of a community’s ends, can common ground be discovered?
The pragmatist would also recognize that answering these questions pragmatically at the community level requires certain features of a democratic culture—ones that may need significant improvement. The quality of our pragmatic inquiry into the above questions depends upon the quality of our democratic culture. To improve our democratic culture, the pragmatist would explore ways to improve public deliberation and civic participation. For example, the pragmatist would look to improving education, which enables individuals to assess experience critically and share their assessments with others. The pragmatist might also examine how to promote new means of communication to enable democratic discussions to take place.
One might object that such projects are not pragmatic because they are often engineered by elites. Deweyan democracy, however, need not be antagonistic to ￼elites so long as elites see their role as guiding and advising the public rather than running the show with minimal public involvement.
Posner would also respond that these projects are too utopian because too many people do not want to participate and are not educated enough to do anything but vote. But the pragmatist does not simply accept human nature as given. Democracy, for Dewey, is about the “maturing and fruition of the potentialities of human nature.” Institutions must be changed; further experimentation is needed in order to help enable society to become more democratic. In this way, Dewey was idealistic about democracy. He believed that a commitment to democracy makes “claims upon our future conduct” and therefore it “is an ideal.” Dewey would not view the charge that Concept 1 is idealistic as troubling at all; he would say that this is precisely the point of democracy.
The normative goal of democracy for Dewey was the realization of people’s full capacities. For Dewey, then, unlike Posner, one cannot simply take human beings and social institutions as one finds them. In the end, Dewey was committed to using the power of intelligence to bring about a better society capable of facilitating the growth of individuals. He was convinced that the form and commitment to inquiry that had so decisively enabled us to increase our control over nature in the realm of science and technology might also be used to improve the political governance of society. But he knew that assessment of this claim would have to await the results of trying to put it into practice. From Dewey’s point of view, it was far too early to pronounce pragmatic attempts at reconstruction as failures or successes, because by and large they simply had not been tried. This remains true today. Even as Posner recommends our acquiescence to the status quo, his claims that aspirations for a more deliberative society are too utopian seem driven more by his affirmation of the present than by any demonstration that improvement is not possible.