Just My Opinion

Tarun told me that there will be a seminar at UCSD on legal pragamtism (or something). We then argued about whether the class should read some of Posner's opinions. Posner is a leading legal pragmatist, and I have to assume they will read some of his books, or at least passages. His opinions are a closer call. Anyway, I'll spell out my reasoning, and you be the judge.

So I should start with the root of my argument, which is that legal pragmatism is a "worldly philosophy." It's not meant to be merely metaphysical, it's to be judged by its outcomes. Moreover, the channel through which it's supposed to achieve those outcomes is judicial decisionmaking. Now, it's true that legal pragmatism is sort of a hybrid. To some extent it's simply a reformulation of pre-existing thought, more of a way of thinking than a guide to decisionmaking. Still, it's a hybrid, and it does have this aspiration to guide judges toward better decisions.

Posner is the most prolific judge in history, and during that time his pragmatism has evolved. Some of his opinions are strikingly original, and they are widely reprinted in casebooks. In a recent case we read, Posner's pragmatism (and particularly his adoption of the Holmesian view of contracts) was clearly on display.

Tarun argued along two lines (that I remember). First, there's no guarantee that Posner's opinions say anything about pragmatism. Pragmatism is a theory, and Posner might not be applying it. Furthermore, we wouldn't study Kantianism by observing the choices a Kantian makes. That is to say, practice and theory are distinct, and we're interested in theory.

The first objection is a good one, but I think it overstates the difficulty we face. Posner is heavily associated with legal pragmatism. If he's not practicing it, then it's not for lack of trying.

The second objection is simply wrong, I think. The whole point of pragmatism is that it's bound up in actual judicial decisionmaking. Pragmatism turns judges into policymakers much more openly than other legal theories. Because of this, it raises a bunch of questions about the coherence of pragmatism as a decisionmaking system, the competence of judges, the constraints of legal precedent, etc. It's true that you can ignore these things, but why would you want to?

The analogy I have in mind is Locke and the various constitutions he wrote. Certainly, when you're studying his political philosophy you can't leave out his theoretical works. Still, I imagine that reading his constitutions would be enlightening as well. After all, political philosophy is ultimately about governance, which is a very hands-on thing. To the extent that a major theorist rolled up his sleeves and applied his ideas, it's very interesting to see what compromises he had to make, what the results were, etc. With Posner we have an embarrassment of riches, and it seems to me that it ought to be put to use.