The document discusses Richard Posner's views on legal pragmatism in the US. It argues that while American judges may claim to use legalism, they are ultimately pragmatists seeking practical consequences. Pragmatism is entrenched in American society and manifests in its experimental approach to problem-solving. This connects to federalism, with states acting as "social laboratories." The economic analysis of law also reflects pragmatism, as the law evolves based on consequences rather than inherent logic. While legalism persists, Posner believes pragmatism will remain dominant in American legal reasoning.

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LEGAL THEORY
ON LEGAL PRAGMATISM
Richard A. Posner (2010). ‘Is Pragmatic Adjudication Inescapable?’ How Judges Think
(Cambridge: Harvard University press), pp. 230-265.
INTRODUCTION
Why are so many American judges pragmatists?
While there are many schools of thought in American law, it appears that they all
partake directly or indirectly of forms of legal pragmatism. That is why, as Judge
Richard Posner points out in this essay, it is worth our while to find out what legal
pragmatism is and ask how it relates, if at all, to the philosophy of pragmatism that
is associated with Charles Pierce, William James, and John Dewey. Is legal
pragmatism a ‘derivative’ of the philosophy of pragmatism? Or is it rather the case
that both legal pragmatism and the philosophy of pragmatism are derivatives of
something much more fundamental in the American character? Given how
entrenched pragmatism is in American society, it should not be difficult to guess the
answer. But, nonetheless, it is worth asking how within academia these forms of
pragmatism – the legal and the philosophical – relate to each other. Judge Posner
argues that even when judges term their approach ‘legalism,’ they are only trying to
mask their pragmatism to some extent. So unless we take the genealogy of pragmatism
seriously as an object of critical inquiry, we will not be able to understand the
American approach to judging specific cases and controversies in the law. Perhaps
that is why American judges - unlike many others around the world - do not issue

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advisory opinions to their governments. They prefer to intervene only when the
litigants have ‘standing’ and try to avoid the forms of ‘abstraction’ that attend to
mere ‘advisory opinions.’ Many governments consult with their appellate judiciary
in a bid to avoid legislation which might be deemed as lacking a basis in the
constitution, but that is not permissible in American law. Furthermore, the American
judiciary try to avoid resolving cases in a broad-based way. They concentrate on
resolving actual cases and controversies in as narrow a way as possible in order to
minimize errors. This, needless to say, is within the pragmatist approach to judging.
As Judge Posner puts it, ‘the pragmatic vein in American judging is wide and deep.’
THE EXPERIMENTAL APPROACH
The main methodological preoccupation of pragmatism as an approach in law and
philosophy is known as ‘empiricism.’ The pragmatist likes to conduct experiments to
see what the ‘consequences’ will be for any given course of action. If the
consequences are favourable, he will proceed further. If not, he will rethink his
options. The large-scale preoccupation with tests and exams nowadays is actually a
form of experimentation though stakeholders who use the mass-media to do this
may not be aware that these activities have a basis in the history of pragmatism. The
American approach to problem-solving both in the law, and in many other areas, is
related to ongoing attempts to conduct experiments on a daily basis, sift through the
data to find out what has been learnt, and move on from there boldly to a
conclusion. It is however important to remember that there will be no end to
experiments. The pragmatist may start to experiment in order to analyse a situation
or resolve a problem, but will soon find that experimentation has become a way of life.

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THE ANALOGY TO FEDERALISM
In order to understand the forms of legal reasoning that constitute the pragmatist
approach to law and life, we must be willing to boldly take on board the obsession
with experiments in America and in societies that are trying to replicate features of
the American way of life in their part of the world. Those examinees who take these
experiments, tests, and exams personally overlook the fact that these forms of testing
are not aimed at anybody in particular. They are mor like laboratories for learning
what is happening in society at large. There is an interesting analogy between testing
programs based in the mass media in American society and the arguments that were
invoked in favour of federalism.
In the federalist model, the federal government shares powers with the states.
American states have much more leeway to try out whatever social experiments they
deem appropriate because a state corresponds to a lab in this model of social
organization. If all goes well, these experiments and what they teach us about society
can be replicated in other American states as well. This is a unique feature of
American life and is not commonly found in any other part of the world where
federal governments invariably tell the states what to do rather than treat them as
‘social laboratories.’ This division of powers between the federal government and
states is reflected in the structure of American law. American states even have their
own constitutions in addition to the federal constitution. The reader must keep these
facts in mind if he is to make sense of what role pragmatism plays in American law,
life, and society.

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PRAGMATISM IN THE LAW
The pragmatist approach to the law is broadly associated with Justice Holmes’
studies on the common law where he declared categorically that the ‘history of the
law has not been logic but experience.’ This is just another way of saying that
whether a jurist is a legalist who believes in the primacy of logic or a pragmatist who
believes in the primacy of experience, he will not be able to predict the future path of
the law, life, or society. Pragmatists are therefore modest in the assumptions that
they make about their own levels of understanding and stand ready to correct course
whenever required. The 'path of the law’ is not historically pre-determined, or a
logical unfolding of what is inherent to the law. It has to be shaped actively by the
participants in a legal system. The pragmatist approach, in other words, is not
teleological; it does not take the idea of ‘natural law’ seriously. There is necessarily
something ‘artificial’ in the law; the main gain in studying the common law is to come to
terms with these artificial forms of legal reasoning.
AMERICAN EXCEPTIONALISM
While there is something inherently pragmatic in the American character, this
approach contradicts other aspects of the American belief system. So, for instance,
the American model of ‘exceptionalism’ and ‘manifest destiny’ which are integral to
the belief system of the Puritans in particular and Americans in general presupposes
that the discovery and peopling of the American continent was guided by an ‘all-
knowing Providence.’ The task of the American citizen then is to make himself
receptive to the mind of Providence rather than take a pragmatist approach to
problem solving. Most Americans do not realize in everyday life that ‘American
exceptionalism’ and ‘manifest destiny’ are based on metaphysical assumptions that
are not compatible with American pragmatism. But, nonetheless, these beliefs co-
exist in American society. How do we explain this contradiction? I think that
American exceptionalism and the belief of the average American in God and
Providence are ways of overcoming the ‘fear of retribution’ that Americans
experienced when they tried to break away from Europe and came up with, as Ralph

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Waldo Emerson did, ‘the intellectual declaration of independence’ in his Divinity
School address at Harvard University in the 19th century.
What Emerson did was to urge Americans to look to the future rather than dwell
endlessly on the past. This approach found favour with the pragmatists who thought
a rule based approach in legal analysis was to think back to the inherent logic of the
law. Instead, they favoured a model of legal reasoning that would think forward into
the ‘consequences’ of different forms of legal adjudication as a way of choosing
between options because it was not obvious to them that the law had an inherent
logic that could be objectively discovered rather than pragmatically shaped into
being.
ECONOMIC ANALYSIS OF THE LAW
In other words, pragmatist thinkers like John Dewey who were influenced by Justice
Holmes’ were urging their fellow Americans to think in the law like they would in
life. What was to be gained by thinking forward in life but thinking backward in the law? So
while pragmatism runs deep in American law and life, it was not subject to formal
representations either within the law or in philosophy. Judge Posner points out that
‘only recently…has it become self-conscious,’ prompting legal pragmatists to define
clearly what they are up to both in law and philosophy. While these movements in
law and philosophy ‘co-evolved’ in American history, it is by no means clear that
they are identical as forms of reasoning. The origins of legal pragmatism may have
less to do with the history of pragmatist philosophy and more to do with the loss of
faith in natural law in the wake of evolutionary theory. That is why pragmatist
approaches to the law do not work on the assumption that the common law is

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nothing more than a translation of natural law into positive law. William Blackstone had
argued for instance that English common law is the same as natural law. That
argument had however become increasingly untenable because of developments in
natural philosophy – i.e. science. Furthermore different aspects of the law seek their
legitimacy in terms of the economic system in place. Many aspects of business,
commercial, and contract law are taken for granted in America because they serve
the needs of a capitalist society and not because they are off-shoots of natural law.
That is why an acquaintance with economics is useful for an American judge. In
Judge Posner’s formulation, ’the economic study of the common law, and other
bodies of American law as well, has found considerable isomorphism between legal
and economic analysis.’ The fact that judges may not invoke that many terms in
economics like economists do does not mean that the economic analysis of the law is
not relevant or that judges do not understand economics at all. To think that is
necessarily the case is to conflate ‘semantics with substance.’ So though there is a
role for both legalism and the economic analysis of the law in pragmatist approaches
to adjudication, Judge Posner thinks that the latter will eventually prove to be more
useful for judges. Legalism, however, assumes that the law is both necessary and
sufficient unto itself and will not require any supplement.
CONCLUSION
For Judge Posner, pragmatism does not differentiate between legal analysis and
practical reasoning – so a tool like cost-benefit analysis can be used to determine the
costs involved in any decision be it in economics, public choice theory, or the law.
The main difficulty in integrating economics into legal analysis was in getting
lawyers to incorporate the tools of economic analysis into the protocols of legal
analysis since not all cases are subject to economic analysis and there is still room for
considerations of equity in common law adjudication. Judge Posner then gives
further examples of the economic analysis of law from a pragmatist perspective in
cases involving both political and economic content where judges have to weigh the
alternatives carefully before deciding which way they will lean. Despite the legalism
of the American system, Judge Posner points out that American law is fluid and is

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not compartmentalized. Lateral movements are possible into the judiciary and there
is no specific career judiciary unlike other parts of the world. This openness to
laternal movements is a characteristic feature of both theory and practice in
American law schools and the legal system. The economic analysis of law is itself
then a beneficiary of this generalist approach to the law in the United States.
It would therefore be safe to conclude, as Judge Posner does, that despite the
ideological persistence of legalism and legal process approaches to adjudication,
pragmatism will remain the mainstay of American law, life, and society in the years
to come.
SHIVA KUMAR SRINIVASAN