Code: TP-24



††††††††††† Can politics, and the deep emotional responses to legal controversies engendered by political loyalties, be kept out of the law?† This question is uniquely highlighted by the decision of the Supreme Court in Bush v. Gore, a case that still engenders rare rancor in talk show discussions throughout the country.† I will discuss this issue in the context of a recent book by Judge Richard Posner, Breaking the Deadlock: the 2000 Election, the Constitution, and the Courts.† Posner defends the Supreme Courtís decision in ≠Bush v. Gore as an appropriate act of "constitutional pragmatism."†

††††††††††† I will correct Posnerís interpretation of pragmatism by comparison to the pragmatic legal philosophy reflected in the work of Justice Oliver Wendell Holmes.† The recent appearance of Louis Menandís book The Metaphysical Club, reaffirming the connection of Justice Holmes with the founders of American pragmatic philosophy, should help with the long-term project of correcting common misconceptions of legal pragmatism, such as are found in Posnerís misunderstanding of both the term pragmatism and the philoso≠phical movement it represents.

††††††††††† Holmesís version of pragmatism leads not to a license to resolve controversial constitutional questions according to a standard of efficiency, but in the extreme opposite direction, toward radical judicial restraint.† It is radical in the sense that it is potentially more restrained than even the most conservative version of judicial restraint put forward by Judge Robert Bork or any other contemporary writer.† The roots of this surprising claim are to be found in a careful analysis of Holmes and his contemporaries in the Metaphysical Club, in some respects a more careful analysis than Menandís.

††††††††††† At the core of the intellectual revolution engineered by Holmes, Charles Peirce, William James, and their comembers of the Metaphysical Club in the 1870s was the notion that thinking is a social endeavor, a process of problem-solving that is ultimately tested by its consequences.† So far, that may resemble a platform for Posnerian efficiency; but no, the early pragmatists were, as Menand rightly notes, struck by the massive uncertainty within which thinking must take place, as well as the critical effect of method.†

††††††††††† For them pragmatism was not a plan of action but a theory of meaning.† Its purpose was to understand the connection between a community and its ideas, beliefs, and conduct.† Constitu≠tional pragmatism, viewed as a plan of action for judges, could have precisely the opposite effect from the desired constitutional purposes.

††††††††††† For Holmes, law could be evaluated from the standpoint of efficiency, but not in isolation from its institu≠tional history.† His principal endeavor as a young scholar, recent≠ly returned from the Civil War, was to understand, and to reinter≠pret, Anglo-Amer≠ican common law as a process of inquiry.† Consti≠tu≠tional law was part of that tradition, embedded in the common law and not removable as a Posnerian matrix, or any separate academic or judicial formula at all.

††††††††††† Holmes saw that legal rules, and the law as a whole, is built up through an accretion of social responses to conflict.† The early trial by ordeal was hardly an efficient method of settling matters.† Jury trial and appeal on the law introduced the system of precedents, through which specificity and consistency grew.† Their development involved a multiplicity of circumstances, and was the work of many, a social endeavor: "A well settled legal doctrine embodies the work of many minds, and has been tested in form as well as substance by trained critics whose practical interest it is to resist it at every step." † Common law is the built-up experience of generations.† Part of that experience has been the emergence of constitutional stan≠dards of review, rooted in fundamental rights of the individual gradually established over time.† But while the fundamental conception of law guiding the framers of our constitution was rooted in common law, this tradition came under severe criticism during the 19th century, with the emergence of legal positivism. Its principal proponent was of course Jeremy Bentham, a reformer keenly sensitive to the failings of common law and committed to reform through legislation.† His guiding concept was the measure of utility.† But under the constitutional system, only the legislature is empowered to apply such a sweeping standard.

††††††††††† Posnerís error is to give the power to apply standards like utility or efficiency to the courts.† Holmes saw constitutional standards built up like those of the common law, a case at a time.† But his restraint lay in the realization that constitu≠tional language held the potential to overwhelm the rest of the law.† Its rights are broadly expressed: no state shall deny its citizens equal protection of the law.† Granting to the Supreme Court jurisdiction coequal with the breadth of this language would empower it to review the application of virtually every act in a state or federal code.

††††††††††† The effect would be to substitute the best judgment of the courts, however wise they might be, for that of local, state, and federal legislatures.† Constitutional rulings, because of their finality, should be made only when the other branches of govern≠ment have patently failed to meet an established standard--not the demands of efficiency.† Equal protection had, until Bush v. Gore, been strictly confined to matters other than elections which the Constitution itself plainly delegates to the states.

††††††††††† My claim is that the loss of this perspective, and indeed the massive expansion of constitutional jurisdiction and the role of the courts in contemporary life, are connected to a theor≠etical issue that can best be recognized though an understanding of Holmesís connection to pragmatism.† My point might be summarized by the observation that emotional responses to a given problematic situation are endowed with varying degrees of latitude by alternative theoretical schemes.† The misconception of pragmatism as a prudentialistic plan of action stems from the supposed authority of pragmatism as a regnant American ideology.† It is not an ideology but a program against ideology.

††††††††††† What is the relation of emotion to theory?† Theory guides social action through the fixation of belief.† Insofar as pure emotion is also a ground for action, belief constitutes the conditions for emotional action.† Emotion as a response to a problematic situation is grounded in beliefs about the nature of the situation.† If pragmatism as a theory is conceived as mere prudentialism, the scope of emotional action is controlled only be the perception of possible consequences, arranged in a rough hierarchy of preference.† Emotional responses to a political question are uncontrolled by a sheer test of utility or efficiency.†

††††††††††† Ideology might be defined as diffuse belief settled in a general concept, whose broad and sweeping application is accepted as having been fully worked out without need for constant reference to the relevant authorities.† Control of emotional response is derived not from belief that is settled in a sweeping concept; it is derived rather from doubt.† Pragmatism is a program for the prevention of diffuse and unquestioning belief.† It is a program for the systematic application of doubt.

††††††††††† Nowhere is this relationship more readily observable than in recent discussions among legal philosophers.† The central question occupying modern liberal legal scholars has been the problem of accounting for so-called "legal indeter≠minacy," how theory addresses the manner in which judges decide cases that are not clearly covered by existing legal rules.† This was the principal concern of the debate among liberal theorists as to whether law and morals are separate, as well as of the CLS challenge to liberal thoery itself.† It happens also to have been a central concern of Holmesís early essays leading to The Common Law.††

††††††††††† For Holmes, writing over a century ago, indeterminacy was a presumed natural condition of the larger social context from which rules were abstracted by the common law.† The problem was finding a satisfactory explanation both for the conventions under which this had been done throughout the centuries, and for the role of legal concepts and classification.† The modern debate has inverted the matter, viewing indeterminacy not as external but as internal to the law, within the body of legal rules, whose function is roughly seen as molding conduct as a die.† Thus, indeterminacy is treated as a condition of law with disputed implications for theory.† Constitutional law, and its application to controversial cases, has provided the primary context.

††††††††††† Scholars have widely ignored the fact that legal inquiry was an important subject among the nineteenth-century pragmatists.† Max Fisch, in 1942, was the first to notice that Holmesís analysis of the common law had important features in common with Peirceís scientific methodology.† He pointed to the possibility that the discussions among nonscientific members of the Meta≠physical Club, half of whom were lawyers, had influenced Peirce.† We can find striking parallels between the contempor≠aneous writings of Holmes and Peirce.† Holmes published a paper entitled "Posession" in 1878, roughly when Popular Science Monthly published the well-known two-part Peirce paper "Fixation of Belief" and "How to Make Our Ideas Clear."† Peirce later described this paper as having been circulate earlier among the group.† Although Peirce records Holmes as an occasional member, there is no evidence that either read the otherís paper.† Comments by both suggest that their common influence was Chauncey Wright.

††††††††††† In an example of the pragmatic maxim, applied to the concept of force in physics, Peirce writes: "if we know what the effects of force are, we are acquainted with every fact which is implied in saying that a force exists, and there is nothing more to know."† His purpose was to challenge the notion that there is an entity, a structure, a "metaphysics" if you will, belonging to the concept of force.† Similarly, Holmesís purpose in "Posses≠sion" was to demonstrate that there is a tendency toward endowing legal concepts with an inherent content.† This commonly takes the form of importing one or another of the prevailing doctrinal systems.† Holmes showed how the Kantian bias in favor of free will had infected analysis of possession with the notion that it contained an element of intent to use the object in question for oneís own benefit.† Such a bias, he noted, could and did quickly assume an authoritative place in legal treatises and opinions.

††††††††††† But Holmes showed that this was a compounded error.† If we look at the derivation of the concept of possession as a legal classification, tracing its history as a cause of action, we find that a "self-regarding" intent was hardly necessary.† The earliest possessory actions grew out of the need for a remedy against the stealing of cattle.† These actions reflected the facts that cattle were generally not watched by their owners and that others were in the best position to fulfill the requirements of primitive legal proceedings: to follow the trail, to make the seizure, and to initiate a claim with the making of an oath.

††††††††††† We can find an expression of the pragmatic maxim for law in Holmesís 1878 article, published contemporaneously with Peirceís more conspicuous pronouncement.† Holmesís maxim, like that of Peirce, is that we must consider the consequences that the object of our conception--the legal concept--has for the particular form of legal inquiry.† Our conception of these effects is the whole of our conception of that object.† It directly challenged the idea that the "law," or some logical or decalogical quality inhering in legal concepts such as possession, operates like a die controlling conduct, or like a force creating rights or duties.† As Holmes says in the 1878 article, "the law does not enable me to use or abuse this book which lies before me.† That is a physical power which I have without the aid of the law."

††††††††††† Antoher parallel to Peirce can be found between the Peircean notion that all inquiry proceeds not by strict induction or deduction but by "abduction," and Holmesís observation that the law proceeds from particular cases to rules by means of what he, in an article in 1870, called "successive approximation."† This demonstrates te essence of early pragmatismís external view of indeterminacy as inhering not in law but in the generality of experience.

††††††††††† The common law begins, just like scientific inquiry, with an external problem--say, the invention of the wheel leads to the invention of the carriage and thence, to the emergence of traffic, traffic accidents, and the problem of resolving claims of people injured in traffic accidents.† Traffic cases, although long familiar and settled by rules, were once original matters and intially resulted in little more than a bunch of decisions, tentatively offered as a set of hypotheses as to how like situations should be resolved.† As with all emerging areas of controversy, eventually these hypotheses are sifted by a community of observers in a process that Holmes described in 1870:

It is only after a series of determinations on the same subject-matter, that it becomes necessary to "reconcile the cases," as it is called, that is, by a true induction to state the principle which haas until then been obscurely felt.† And this statement is often modified more than once by new decisions before the abstracted general rule takes its final shape.† A well settled legal doctrine embodies the work of many minds, and has been tested in form as well as substance by trained critics whose pracical interest it is to resist it at every step.

††††††††††† Difficult cases are not the ones from which "determinacy" is derived.† As Holmes described it in his 1870 passage, common law rules are themselves developed from repeated experience with particular disputes.† Far from being legislated by judges, they reflect developments external to the law: the emergence of patterns, and eventually standards, of conduct.† Only after becoming implicated in standards established through practical exdperience, reflected in (and to some extent affected by) multiple fact-based judicial determinations, are rules abstracted from experience.† Thereafter, rules may come into conflict in a process that Holmes described as follows:

†† The growth of the law is very apt to take place in this way: Two widely different cases suggest a general distinction, which is a clear one when statede broadly.† But as new cases cluster around the opposite poles, and begin to approach each other, the distinction becomes more difficult to trace; the determinations are made one way or the other on a very slight preponderance of feeling, rather than articulate reasonw; and at last a mathematical line is arrived at by the contact of contrary decisions, which is so far arbitrary that it might equally well have been drawn a little further to the one side or to the other.† The distinction between the groups, however, is philosophical, and it is better to have a line drawn somewhere in the penumbra between darkness and light, than to remain in uncertainty.

††††††††††† I cite these passages to illustrate a prominent feature of the pragmatism of Holmes that can be found in the later work of John Dewey.† We find here a depiction of law as a process of inquiry, in which both rules and classifications--and indeed legal concepts themselves--are generated over time.† There is in these passages the suggestion that this process goes through periods or cycles of alternatively searching and finding, stability and conflict, relative certainty and relative doubt.† Pragmatism does not present a formula for a judge enmeshed in the process to use in resolving difficulty.† Rather it provides a background theory for locating the difficulty itself, and for better understanding the language in which that difficulty must be addressed.†

††††††††††† It might be said that pragmatism is a prescription for intellectual genealogy--the historical and emergent meaning of conceptual language--and the location of doubt in the process of human experimentation.† Ralph Sleeper called it a "ground-map for the province of criticism."† It provides a check on the emotions by fixing a controversy in the continuum within which it has derived.† It does not presribe what is to be done about the overall controversy, though in many instances it may help to dictate the most appropriate legal response.† The coordinates that it provides may dictate that the problem is not ripe for resolution as a matter of law--hence the radical restraint that I alluded to earlier.

††††††††††† Posner misconceives pragmatism by failing to see that the critical matrix that it provides, such as the famous pragmatic maxim of Peirce, opens the door to the identification or location of uncertainty within the ongoing process of inquiry.† The importance of practice is not set up as the immediate outcome of the given problematic situation, but as the overall context within which final results can be assessed for the overall development of a consistent scheme of approach.† The inquirer must be concerned to place the particular situation, and her role in it, in the overall context.† Posner, in suggesting that the decision for the Court in Bush v. Gore should be subject to an individualized test for practicality, ignores the fact that the more important project is the maintenance of an ongoing scheme of constitutional ordering.

††††††††††† Propoerly construed, constitutional pragmatism is focused on the optimal development and future success of constitutional rules, and their all-important conceptual components.† This requires placement of the particular situation in an ongoing context of development, and recognition of the importance of chronic uncertainty and doubt.† The great controversy over Bush v. Gore would never have emerged had there been a clear line of precedent applying to the case.† Instead the overwheming precedent regarding application of the equal protection doctrine lay in the opposing direction.† Indeed, the conservative political balance on the Court subscribed whoeheartedly to the notion that state law, and by necessity state courts, was to be considered final in similar matters involving contested elections.†

††††††††††† Holmes is just now coming to be recognized as the last of the grand common law theorists, as legal theory is gradually loosened from the chains of legal positivism that were wrought by Jeremy Bentham.† Professor Catherine Kemp of the University of Denver, a scholar of David Hume, has announced the arrival of New Common Law theory, as an alternative to positivism.† A prominent member of this movement is Professor David Strauss of the University of Chicago Law School, who argues that constitutional methodology can be fully understood only as rooted in common law.

††††††††††† The controversy over the decision in Bush v. Gore may prove Strauss right.† At the heart of it is whether the law embodied within the United States Constitution is to be found simply in the text, a positivist precept, or within its common law context, the context of ongoing inqujiry.† As scholars have observed, the Courtís unprecedented intrusion into state election law rested on the Constitutionís "equal protection" language, even while reaching well beyond the Courtís own previous equal protection doctrine.† The justices pronounced that this was a "one time" deal, warning the election bar not to flood the courts with new equal protection claims based on Bush v. Gore.

††††††††††† If the positivists are right and law is rooted in its authoritative texts, the Court is the final arbiter and decides what they mean.† If Kemp, Strauss, and the common law theorists are right, the controversy will not go away.


Holmes, Oliver Wendell

††††††††††† 1870 "Codes, and the Arrangement of the Law," American Law †††††††† Review 5 p.1.

††††††††††† 1873 "The Theory of Torts," American Law Review, vol. 7, p. †††††††††† 654.

Strauss, David A.

††††††††††† 1996, "Common Law Constitutional Interpretation," University †††††††††† of Chicago Law Review 63, pp. 877-935.