The term “Legal Pragmatism” has been used so often for so long that it may now seem to lack any clear meaning at all. But that conclusion is too quick. Although there are diverse strands of legal pragmatism, there is also unity among them. This essay distinguishes among three such forms of legal pragmatism. It dubs them instrumentalist, quietist, and holist strands, and it offers, as representatives of each, the views of Richard Posner, Ronald Dworkin, and David Souter, respectively. Each of these forms of pragmatism has developed as a response to the same underlying philosophical problem, namely that of justifying moral and legal values within a naturalistic, nontheological worldview. That problem is an old one and a fundamental one. And it is one felt acutely by those judges and legal theorists over the last century or more who have sought to make sense of the judge’s task when deciding hard cases. The essay does not defend any one or more of these three understandings of law and adjudication against its critics. But it does suggest that the feature they share, in virtue of which they are all plausibly classed as “pragmatist,” may also be an important and distinctive feature of law as a discipline – that is, as a form of reasoning about matters practical and theoretical.'Trust Me, I'm a Pragmatist: A Partially Pragmatic Critique of Pragmatic Activism' by Joshua Galperin in (2017) 42(2) Columbia Journal of Environmental Law comments
Pragmatism is a robust philosophy, vernacular hand waiving, a method of judicial and administrative decisionmaking, and, more recently, justification for a certain type of political activism. While philosophical, judicial, and administrative pragmatism have garnered substantial attention and analysis from scholars, we have been much stingier with pragmatic activism — that which, in the spirit of the 21st Century’s 140-character limit, I will call “pragtivism.” This Article is intended as an introduction to pragtivism, a critique of the practice, and a constructive framework for addressing some of my critiques.
To highlight the contours of pragtivism, this Article tells the story of the Dunes Sagebrush Lizard. In 2010 the United States Fish and Wildlife Service proposed to list the imperiled Lizard under the Endangered Species Act. In record time, the State of Texas, the Texas Oil and Gas Association, and other stakeholders developed a conservation plan for the lizard. FWS approved the plan and as a consequence agreed to withdraw its proposed listing. In March 2016 the Court of Appeals for the D.C. Circuit upheld the non-listing.
The Texas Plan and the D.C. Circuit decision are results of “innovative” environmentalism, which relies on “flexible,” “collaborative,” “cooperative,” “voluntary,” “pragmatic” “partnerships” to achieve “win-win solutions.” But does this pragtivist boasting undermine more critical dialogue and more effective environmental protection? Does it trample on an intentional and well-reasoned structure of traditional environmental law? Is it actually pragmatic in the philosophical sense? This Article is a first attempt to answer some of these questions and to generate more analysis of the influence of pragmatism on environmental activism. It begins with a taxonomy of pragmatism in law and policy, details the Lizard’s story as a case study, offers a critique of pragtivism as a method of environmental protection, and concludes by offering a framework that might improve the use of pragtivism if the practitioners are truly willing to be pragmatic.