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18 Cardozo L. Rev. 43 (1996 - 1997)
What's Pragmatic about Legal Pragmatism

handle is hein.journals/cdozo18 and id is 61 raw text is: WHAT'S PRAGMATIC ABOUT LEGAL PRAGMATISM?* David Luban** Does legal pragmatism have anything at all to do with pragma- tism? Both Thomas Grey and Richard Posner seem to suggest that in important respects the answer is no. Grey tells us that even a devout anti-pragmatist in matters ontological can endorse legal pragmatism, while Posner adds the converse, that pragmatic philos- ophy may at times impel a judge to decide cases like a formalist. These conclusions suggest that talk of legal pragmatism may simply be a pun on what philosophers take pragmatism to be. Lest this appear a far-fetched suggestion, remember that in philosophy the word realism often refers to the belief that abstract entities such as laws really exist, while in law realism refers to the opposite, to the belief that abstract entities such as laws don't exist. I'm not suggesting that legal pragmatism is the opposite of philosophical pragmatism, as legal realism is the opposite of philosophical real- ism; but if Grey is right, legal and philosophical pragmatism need have nothing whatever to do with each other. I Grey and Posner agree to a considerable extent on what legal pragmatism is. It is, first of all, eclecticism. The pragmatist mis- trusts the pretensions of totalizing Big Think theories to capture all that is important in law. The pragmatist is willing to give every theory a hearing, however, and to appropriate insights from any source if they seem useful. Second, legal pragmatism is result oriented or instrumental. Its focus is the well-being of the community, not the purity or integrity of legal doctrine. Pragmatists nevertheless recognize that con- forming to inherited legal doctrine and attending to history may be good for the community, so doctrinal integrity remains instrumen- tally important. Pursuing the good of this community requires us to know and respect its unique history. Thus a pragmatist is histori- cally minded though, oddly enough, this is for entirely future-di- * I have been greatly assisted in thinking through this paper by Tom Grey, Deborah Hellman, Peter Levine, Judy Lichtenberg, and Robert Wachbroit. ** Martin and Sophia Macht Professor of Law, University of Maryland; Research Scholar, Institute for Philosophy and Public Policy.

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