'Reinventing Brandeis: Legal Pragmatism for the
Twenty-First Century' by Daniel Farber in (1995)
University of Illinois Law Review 163-190 comments
If
Brandeis
is
the
answer,
what
was
the
question?
No
doubt
many
different
responses
are
possible.
My
purpose
is
to
consider
whether
Brandeis.can
help
resolve
the
postmodernist
crisis
in
constitutional
law.
Many
scholars
have
now
lost
faith
in
the
possibility
of
providing
constitutional
law
with
a
firm
theoretical
foundation.
One
response
would
be
to
give
up
on
the
entire
constitutional
enterprise,
but
another
is
to
abandon
the
need
for
a
foundational
theory.
Legal
pragmatists,
looking
for
inspiration
to
pragmatist
philosophers,
such
as
William
James
and
John
Dewey,
favor
this
nonfoundationalist
approach.
But,
if
we
are
to
proceed
without
a
foundation,
is
anything
left
for
us
but
a
rudderless
journey
of
ad
hoc
decision
making?
Critics
on
both
the
Left
and
the
Right
argue
that
pragmatism
is
bankrupt
as
a
source
of
legal
theory.
Opponents
on
the
Left
consider it
a
complacent
ideology
based
on
facile
acceptance
of
the
status
quo. Those
on
the
Right
scorn
legal
pragmatism
as
unprincipled
and
incompatible
with
the
rule
of
law.
Thus,
legal
pragmatism
stands
accused
of
being
on
the
one
hand
tradition-bound
and
on
the
other
a
source
of
unrestrained
judicial
activism.
As
a
legal
pragmatist,
I
consider
these
to
be
serious
criticisms
which
implicate
important
legal
values.
It
is
certainly
possible
to
fight
out
this
dispute
purely
on
the
level
of
theory,
but
that
strategy
itself
seems
decidedly
unpragmatic,
for
pragmatism
is,
in
part,
a
call
for
less
obsession
with
theory
and
more
attention
to
concrete
practice.
Taking
a
more
concrete
approach,
I
will
argue
that
Justice
Brandeis
provides
a
strong
counterexample
to
these
criticisms.
While
a
notable
practitioner
of
pragmatism,
he
also
was
known
for
his
crusades
for
social
change,
his
deep
adherence
to
moral
principle,
and
his
legal
craftsmanship.
His
example
can
teach
much
about
how
legal
pragmatism
can
be
translated
from
jurisprudence
to
practice.
In
part
I
of
this
essay,
I
will
explain
the
genesis
of
legal
pragmatism
and
explore
the
arguments
of
its
critics.
Part
II
then
presents
Brandeis
as
a
counterexample
to
these
criticisms.
Critics
might
well
respond
that
Brandeis
did
have
various
admirable
qualities,
but
that
those
qualities
were
independent
of - or
even
inconsistent
with - his
pragmatism.
In
part
III,
I
will
argue
that
the
various
themes
in
Brandeis's
thought
are
coherent.
In
his
judicial
opinions,
we
can
discern
a
basis
for
a
coherent
pragmatist
vision
of
law
and
community. Consideration
of
this
vision
also
highlights
connections
between
Brandeis
and
another
current
school
of
constitutional
theory
known
as
republicanism.
The
Brandeisian
vision
combines
the
claims
of
individuality
with
those
of
community.
In
the
course
of
this
essay,
I
hope
to
dispel
the
view - common
among
both
its
critics
and
supporters - that
legal
pragmatism
is
essentially
banal.
On
the
contrary,
it
can
offer
passion
and
principle
as
well
as
prudence.
