26 April 2019


In my doctoral dissertation I noted criticisms of legal pragmatism, variously damned as merely ‘freedom from theory-guilt’, ‘unprincipled opportunism’, an apology for the status quo, the sophistry of nihilists, ‘mushy’, a ‘dog’s dinner’, the legal equivalent of MacIntyre’s ‘general theory of holes’, ‘a series of slogans providing cover for a flourishing philosophy-made-easy school of legal theory’ or an ‘anti-theory’ that atomises legal constructs such as identity by emphasizing that each subject is unique and can only be understood in relation to that subject’s time and context.

The spirited but for me grossly unpersuasive 'Posner's Folly: The End of Legal Pragmatism and Coercion's Clarity' by Joseph D'Agostino in (2018) 7  British Journal of American Legal Studies 365 comments 
 Highly influential legal scholar and judge Richard Posner, newly retired from the bench, believes that law is irrelevant to most of his judicial decisions as well as to most constitutional decisions of the U.S. Supreme Court. His recent high-profile repudiation of the rule of law, made in statements for the general public, was consistent with what he and others have been saying to legal audiences for decades. Legal pragmatism has reached its end in abandoning all the restraints of law. Posner-endorsed “epistemological democracy” obscures a discretion that is much worse than the rule of law promoted by epistemological authoritarianism. I argue that a focus on conceptual essentialism and on the recognition of coercive intent as essential to the concept of law, both currently unpopular among legal theorists and many jurists, can clarify legal understandings and serve as starting points for the restoration of the rule of law. A much more precise, scientific approach to legal concepts is required in order to best ensure the rational and moral legitimacy of law and to combat eroding public confidence in political and legal institutions, especially in an increasingly diverse society. The rational regulation by some (lawmakers) of the real-world actions of others (ordinary citizens) requires that core or central instances of concepts have essential elements rather than be “democratic.” Although legal pragmatism has failed just as liberal theory generally has failed, the pragmatic value of different conceptual approaches is, in fact, the best measure of their worth. Without essentialism in concept formation and an emphasis on coercion, the abilities to understand and communicate effectively about the practical legal world are impaired. Non-essentialism grants too much unwarranted discretion to judges and other legal authorities, and thus undermines the rule of law. Non-essentialist or anti-essentialist conceptual approaches allow legal concepts to take on characteristics appropriate to religious and literary concepts, which leads to vague and self-contradictory legal concepts that incoherently and deceptively absorb disparate elements that are best kept independent in order to maximize law’s rationality and moral legitimacy. When made essentialist, the concept of political positive law shrinks, clarifies, and reveals its true features, including the physically-coercive nature of all laws and the valuable method of tracing the content of law by following its coercive intents and effects.