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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
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.
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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