“The Revival of Pragmatism,” by Morris Dickstein.
The Washington Post, Feb. 7, 1999: “CINCINNATI — An appeals court has overturned a rapist’s 51-year prison sentence because a judge turned to the Bible while deciding his punishment.”
THE REVIVAL OF PRAGMATISM, edited by Morris Dickstein, 1998, contains a section on “Pragmatism and Law.” The first essay in this section is an excellent one by Richard Posner discussing legal pragmatism and differences between American and European judiciaries, among other things.
The second essay is by Thomas Grey and argues that judicial decisions are in no way influenced by philosophy. Grey sees anti-philosophy of the Rortian sort as just as irrelevant as traditional philosophy. And he sees nothing wrong with philosophy departments continuing to teach traditional philosophy. Grey lumps philosophy together with poetry as irrelevant. Grey may be something of a traditionalist with regard to philosophy, professing to believe that “the internal logic” of science “is to seek an objective account of reality,” (though it’s not entirely clear whether Grey means by this brief remark anything that a pragmatist would dispute). Grey ends his article by claiming that a religious (unpragmatist) friend of his is “a pragmatist for legal purposes.” In a footnote Grey criticizes Rorty for oversensitivity to talk of “humanity” or “universality.” Why does Rorty see THIS talk as harmful but other philosophical talk as irrelevant?
The third essay is by David Luban and argues that legal thinking cannot be divorced from philosophical thinking. By this he seems to mean more than that legal thinking will be influenced by philosophical thinking as long as such thinking regrettably endures (which is my own belief). Luban is very much an anti-pragmatist. Much of his article is an assertion of traditional philosophy, thus presenting a broad target for Rorty’s reply which follows. But Luban cites a number of examples of how philosophy affects law on questions of: 1) responsibility, 2) paternalism, 3) retribution, 4) the right against self-incrimination, 5) the personhood of corporations, and 6) abortion, euthanasia, and gay marriage.
The fourth essay is Rorty’s response to the preceding ones. Rorty praises Posner, agrees with Grey, dismisses the metaphysical nonsense in Luban, and fails to reply to the significant arguments made in the latter part of Luban’s lengthy essay. Rorty speaks of “fondly imagining” that Posner agrees with his philosophical beliefs, but also fondly agrees with Posner that they are irrelevant to law. Rorty dismisses the idea that a religious belief could affect a ruling on gay marriage by saying that he’s run into very few consistent and convincing theologists who had arguments for adhering to certain verses of LEVITICUS and not others. Rorty describes our world as better than that of ancient Greece because of a decline in religion. He even says that America is the best society yet discovered as an alternative to either seeking wisdom for its own sake or seeking only what is useful.
I think that Grey is mistaken about the irrelevance of philosophy or anti-philosophy to law. Whether one believes in such things as “objective moral laws,” has an impact on one’s legal opinions whether or not one’s “grasp of” said laws constitutes a coherent or convincing whole. Banning gay marriage by appeal to tradition or dishonest sociology is not the work of a misguided pragmatist. It is something that, as Luban says, one will not be able to continue after becoming a philosophical pragmatist.
It is curious that Grey wants philosophy departments to go on teaching all the traditional epistemological crap and Rorty does not. It is curious that Grey lumps philosophy with poetry as irrelevant, whereas for Rorty poetry (unlike philosophy) is highly relevant. Rorty sees poets as having a great impact on societies. It does not occur to him that the same absurd dualism by which he sets his anti-dualistic pragmatism off from the rest of culture could as easily set poetry or anything else off from the rest of culture. We could chop things up into little cultural realms smaller than Kant could have ever dreamed of.
Where Grey and Rorty come closest to convincing me is on the question of scientific realism. It is only in so far as this tends to accompany ethical realism that I see it as influencing legal decisions. I also agree with Grey’s criticism of Rorty’s sensitivity to use of the term “humanity,” but this is something on which Rorty has already long-since admitted his error. Rorty sees such talk as largely irrelevant, and I agree. But I cannot agree with Grey and Rorty that belief in extra-human ethical truth is irrelevant.
I think that extra-human ethical truth is bunk, and I believe that if everyone stopped believing in it, then it would – obviously enough – play no part in legal matters. But I also believe that ceteris paribus legal decisions would, in such a world, be better than they are in ours. By “better” I mean, of course, more conducive to the well-being of a greater percentage of people.
Why is Rorty, who sees the reduction of human suffering as all-important, so “fond” of Posner’s possible adherence to a bunch of irrelevant verbiage? Why this schizophrenia? Why this absurd modesty, as if Rorty is unwilling to admit that his anti-philosophical work might do a lot of good for the world he so strongly cares about? Why does Rorty think a de-divinized world is a better one, if he also thinks that divinization makes no difference outside philosophy departments?
OF COURSE Rorty has not encountered any convincing theists: he’s an atheist. The fact that he and I cannot make any sense of selective adherence to LEVITICUS does not mean that this selective adherence does not go on and does not have serious effects.
Rorty’s praise of America strikes me as almost as strange as his dismissal of LEVITICUS, since at least some European countries seem to better fit the context of this praise, but this is a tangential question.
I believe that Rorty’s and similar work makes a great deal of difference. THE REVIVAL OF PRAGMATISM is full of examples of how pragmatism beneficially affects law and politics, for example Nancy Fraser’s article on Alain Locke (though she, too, underestimates the importance of Locke’s ideas). Or, see, for instance, Rorty’s own essay (not in this collection) on what pragmatism can do for feminism. I’d like to look briefly at Luban’s examples.
1) questions of responsibility: This is not an example, as Luban thinks, of how legal questions are inevitably philosophical, but of how the treatment of legal questions varies depending on whether they are treated by philosophical traditionalists or by philosophical pragmatists. Luban admits that judges are unable to decide who is “responsible” for what and so simply guess. This leads to widely varying and often harmful decisions. A pragmatist (and to my mind a pragmatist is ethically nothing other than a strict act-utilitarian with an open mind and a distaste for grand language) would punish not on the basis of “responsibility,” but on that of protecting the public, making restitution to victims, healing the breach of distrust created, rehabilitating the convict, and deterring future crime. I put deterrence last because there is so little evidence of how and if it can be done. But this evidence, when it is found, will not be philosophical or anti-philosophical.
2) paternalism: A strict libertarian is an example of someone following a single dogma regardless of results, a walking, parroting argument for Rorty’s secularized “polytheism” or eclecticism. Whether the question of when to be paternal is decided on the basis of adhering to a particular rule(s) or on the basis of promoting human happiness makes a difference in what is decided, and this quite regardless of the fact that the promotion of human happiness often requires rules. Adhering to rules even when harmful (the definition of rule utilitarianism) is – obviously enough – harmful. Harmfulness is hardly irrelevant to the all-important mission of reducing suffering.
3) retribution: For Luban this is an example of how the law needs philosophy. For me it is an example of how the law would change for the better by dropping philosophy and retributivism with it, in favor of anti-philosophy.
4) the right against self-incrimination: If this does depend, as Luban claims, on traditional philosophy, then it too should be dropped. Rorty does not comment on either this or #3 above.
5) the personhood of corporations: I think Luban (and Dewey, whom he quotes) make the case well that philosophy/anti-philosophy is relevant here.
6) abortion, euthanasia, and gay marriage: This is the strongest group of examples, and many more of this sort could be added, most importantly questions of wealth-distribution, taxation, healthcare, care of the environment, and national sovereignty in a shrinking world. On all of these questions people (whom I take to include judges) often make up their minds because of some rule which they take to derive from an extra-human source, and often these decisions are not what they would have been had these people been philosophical pragmatists. To take one example, “Right to Work” laws have never been defensible by results for economic standard of living. They aren’t even defensible on grounds of protecting individual freedom. The Libertarian party opposes them because they prevent employees and employers from freely making a particular type of agreement. Instead these harmful laws are defended on the grounds that they protect some “fundamental right,” i.e. something dictated by God or a God-surrogate.
Certainly philosphic pragmatists and theist foundationalists sometimes make the same decisions. Other times they do not. Surely Rorty and Grey do not believe that all judges act entirely as “legal pragmatists.” And if they do not, and philosophy is not the reason, what explanation do Rorty and Grey offer? They claim that a judge can be a legal pragmatist without any contact with philosophy, but can a judge be a legal non-pragmatist without any contact with philosophy? And why do we have so many legal non-pragmatist judges?
Rorty speaks out in support of labor, condemns English departments for their political irrelevance, engages in very relevant anti-philosophical work, and then vigorously campaigns on behalf of the belief that his work is irrelevant. This is strange, but need not be harmful. All we need do is to appreciate Rorty more than Rorty does.