Paper by Frederic R. Kellogg
Critical legal scholarship has adopted many of the arguments and points of view prominent in the writings of current pragmatic philosophers like Richard Rorty. While Rorty's thought converges with some important aspects of pragmatic philosophy, other aspects of his work are influenced by writers for whom the pragmatic label does not easily fit. Moreover, Rorty himself would insist that there is no orthodox perspective on legal theory to be derived from his view of pragmatism. We may find a sharp divergence between positions taken in critical legal studies (CLS) and those found in the work of Oliver Wendell Holmes, Jr. Holmes's views can be associated with the pragmatic writings of Charles S. Peirce, and have at least an equal claim to an identification with pragmatic methodology.
Perhaps the most outstanding contrast between Holmes and CLS is that between Holmes's juridical conception of judicial restraint and the CLS opposition to limiting the scope of legal argument to traditional legal doctrine. The CLS position follows from its denial of the distinction between law and politics. This CLS contention also leads to the notion that jurisprudence cannot be separated from sociology, economics, and other disciplines concerned with human affairs. Despite its difference with mainstream legal theory over many fundamental points, CLS and the mainstream agree that no such clear separation can be drawn. Pragmatism, meanwhile, insists on our awareness of the intimate connection between thought and practice. Thus, it would invite the question whether we accept the current broad conception of jurisprudence because the regime of law has become so pervasive, or whether the broad reach of law simply follows our expansive conception of it.
What is the proper scope of jurisprudence? Certainly we can argue that it should be as broad as we like. Law in our era seems to pervade every salient aspect of social life. It has had the capacity for adaptation by those in power as a blanket capable even of controlling philosophical discourse. Attempts to limit the discussion are drawn into controversy over who is limiting it and for what purposes. Meanwhile, resistance to limits protects the outer perimeters of law's empire from attack.
Peirce's maxim for pragmatic philosophy enjoins that premises are to be tested by their practical consequences. What are the consequences of unlimited discussion in jurisprudence? The premise that jurisprudence must be unlimited in scope contributes to accepting that law, if not litigation, has a rightful place in any aspect of human affairs. This result is considerably advanced by the main premise of CLS, that there is no practical dividing line between law and politics. Thereafter, unless law is abandoned altogether, the consequence is to subscribe to unlimited jurisdiction for courts and lawyers. The question CLS needs to confront clearly is whether this is desirable, and whether there is any alternative.
Of all CLS writers, perhaps Allan Hutchinson comes closest to doing so:
Nowhere is antipathy for popular participation more evident than in the modern entrenchment of law and courts at the heart of American politics. No longer acting as a Tocquevillean check on legislative enthusiasms, the judges have taken over the major responsibility for the nation's policymaking. Moreover, instead of chastising courts for their imperial presumption, commentators celebrate them as the preferred forum for democratic deliberation. The cool detachment of philosophical reflection is thought more conducive to democratic wisdom than the heated contestability of popular debate. As such, legal philosophy has been trafficked as the opium of the democratic masses. In a telling metaphor, a leading theorist of judicial legitimacy lionizes judges as princes of law's empire and philosophers (like himself) as its seers and prophets. This is a debasement of the democratic ideal, not its apotheosis. Attempts to pass rule by judicial aristocracy off as a philosophical act of noblesse oblige exacerbates rather than ameliorates the affront.
Hutchinson aligns himself with CLS and, in the paper from which the foregoing passage is taken, challenges Rorty for not being radical enough in his views on law and justice. Rorty has led a revival of interest in pragmatism with sharply critical observations about foundationalist tendencies in modern philosophy, which CLS has enlisted in support of its attacks on liberal jurisprudence. But Rorty's failure to adopt an equally critical political philosophy is not, suggests Hutchinson, critical enough to qualify as legal pragmatism.
Hutchinson is willing to join the CLS chorus decrying the legal priesthood, but he abstains from breaking with CLS for preferring, as a forum for democratic deliberation, philosophical reflection by legal scholars. CLS cannot escape the charge that it wants to replace the existing legal establishment with another one. It is one thing to sack the temple; it is another to don the stolen robes. Is there no alternative to submission to a political judiciary?
In the passage just quoted, Hutchinson echoes sentiments that were prominent in the writings of James Bradley Thayer, Oliver Wendell Holmes, Learned Hand, and Felix Frankfurter. All four urged that to permit broad constitutional jurisdiction under the Bill of Rights would remove responsibility for overseeing the democratic values therein guaranteed from the public to the legal profession. Frankfurter would have preferred to let controversies over civil liberties flare and fester without judicial intervention as long as necessary for resolution in the court of public opinion. He said:
The reason why from the beginning even the narrow judicial authority to nullify legislation has been viewed with a jealous eye is that it serves to prevent the full play of the democratic process.
Learned Hand had the following observation:
I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.
Moreover, Hutchinson ends his paper demanding essentially the same result that Hand and Frankfurter sought through radical judicial restraint: less reliance on law and more on democracy. But surely Hutchinson cannot claim that this result would be the logical consequence of throwing the doors of legal theory wide open and equating law with politics.
Hutchinson can be counted among a relatively few voices within CLS that display less interest than most in courts as a location for political discourse. They are not without influence, especially if we include the more recent writings of Roberto Unger. But what has not been of much interest is whether and how courts and legal discourse, as these have emerged in the late-twentieth-century United States, can be reconstituted (not replaced, as some CLS writers have implied) to enhance, instead of debase, the democratic ideal. In addressing this question I will make two points, which I will also associate with the growth of pragmatism and its application to legal theory. The first point is that the notion of legal indeterminacy, upon which so much of twentieth-century jurisprudence is founded, is a false one. The roots of indeterminacy lie not in law but in social life, and the real issue is how legal institutions respond to it. The second point has to do with how this condition can more accurately be reflected in legal proceedings and discourse, and hence in legal decisions.
About the Author
Frederic R. Kellogg. LL.B. 1968, Harvard University Law School; LL.M. 1978, S.J.D. 1983, George Washington University National Law Center.
Citation
65 Tul. L. Rev. 15 (1990)