Diving into Legal Pragmatism

Michael Sullivan, Legal Pragmatism: Community, Rights, and Democracy (2007), introduction and chapter 4, https://www.worldcat.org/title/legal-pragmatism-community-rights-and-democracy/oclc/219688202&referer=brief_results

It is likely that we have arrived at my final blog entry for this year. I am travelling the next few weeks and cannot promise that I will read and blog something scholarly while I am away. I have not had a vacation in a very long time and hope to enjoy some downtime reading for fun.

I finished several research guides this past year, and I am especially pleased at how two of them in particular turned out:

These two guides were definitely a bit of a stretch for me. I do not have a lot of experience in the social sciences aside from my time in library school, and both of these guides turned out to be, by necessity, very multi-disciplinary.

The work I did to create these guides has greatly assisted me in research consults with some of the students I work with. I can speak with much more intelligence about multidisciplinary legal research topics in general, as well as critical race theory, the intersection of law and gender, and law as a sociological phenomenon in particular than I was able to in the past. I also really enjoy talking with people who are interested in analyzing law in a critical way. Law is a discipline that can, in my opinion, be quite rigid and conservative, so it is refreshing to think about it in new ways.

One of our doctoral candidates has been asking me to advise him on researching legal pragmatism recently. Of course, I know what those two words (legal and pragmatism) mean separately. However, as a scholarly term of art I was not really sure. I also knew that whatever knowledge I gained by learning about it could be used to enhance one or both of these research guides. I thought a good option would be to read a general treatise, and, after a quick library catalog search, I chose Michael Sullivan’s Legal Pragmatism, published by Indiana University Press in 2007. It was very helpful that this title was available electronically through Project Muse, as I am away from the library and working from home today.

Because the last time I tried to analyze just a book chapter I found the experience to be largely unsatisfactory, I decided to read the introduction and one of the chapters. According to the introduction, chapter 4 seemed like a good candidate, as in it Sullivan promised to “present (his) own critical account of pragmatism and explain the reconstruction that makes it possible.” What does this mean? Sullivan posits that, when exploring principles such as legal rights, “we must be willing to bring our ideals and values back down to earth, to recognize their origins in past experience, and to subject them to criticism and reconstruction as we employ them in the present under changed circumstances.” (p. 5)

Hmmm. This actually sounds pretty good to me. I don’t really buy all that originalism business I remember talking about in law school, in that the only way to construct rights is in a way that reflects the intent of the founders. To me, while thinking about that intent is important as part of the intellectually inquiry into constitutional rights, it just seems too limiting and does not do enough to honor how far human reason has come in its ability to determine what is just and fair in the last 200+ years. Legal rights, in my opinion, should evolve as society does, as long as they evolve in a way that reasonably reflects their roots and maximizes their benefit to both individuals and society.

Chapter 4 itself was really interesting, albeit a bit difficult for me as someone without a philosophy background. Sullivan characterizes his journey in this chapter as one that is moving “toward a reconstructive pragmatism.” (p. 79) In the chapter, he outlines three basic ideas that appear in the scholarly literature on this topic, and explains why idea #3 is closer to correct than the other two.

Idea #1 is something called “positivist epistemology.” (p. 82) Basically, this is the employment of logic and reason as a means of determining what is rational, concrete, and true in the most widely applicable sense. The idea of reconstructing a concept based on new information is not really encouraged under this system, according to Sullivan, who claims instead that this type of inquiry “reduces philosophers to the consistency police.” (p. 84) I have to admit that approach does not sound all that appealing to me, although I do understand that it has some value in creating consistency and predictability in legal principles.

Idea #2 involves employing the type of ironic analysis that is frequently seen in the law and literature movement. Sullivan outlined three developments in this academic discipline that are relevant for his inquiry:

  • The publication of “first-person narratives in law journals” as a means of “explor(ing) the ways law filters out individual experience and loses the particular before the universal.” (pp. 87-88)
  • A scholarly interest in “literature about law,” which explores how authors of fiction “are in touch with something central in the human condition … that can be brought back to inform our legal judgment.” (p. 88)
  • The “law as literature” movement, in which readers act as “interpreters” of the meaning of legal primary sources like statutes (pp. 88-89)

To be honest, this part was a bit of an unexpected turn to me, and I had a hard time bringing it all on board. I think what Sullivan was trying to say was that the movement suggests that literature can be a helpful means for viewing and determining the qualities of law, as they are and as they should be, in a world envisioned by creative people like poets and novelists. Maybe I have that wrong. But it just sounded weird to me. I guess I need to read more about the law and literature movement to figure out what was going on there.

Finally, idea #3 involves engaging in “reconstructive social criticism.” Sullivan makes it clear that a central component of this exercise is that “every employment of human reason is purposive — it presupposes something about the ends for which it is employed.” (pp. 94-95) This notion of “purpose” is key. Our purpose for conducting reasoned analysis of a situation or a phenomenon is to make it better. In other words, we create and develop “rationality or intelligence” in our “critical engagement with practices.” (p. 96)

How does reconstructive social criticism work in the context of law? According to Sullivan, it “requires a willingness to explore the genetic origins of legal principles.” This is a three-stage inquiry (p. 97):

(1) How and why did law’s “guiding principles” develop?

(2) How do “existing institutions and practices proport to, and fail to, embody and apply these principles?”

(3) Are there any “more satisfying alternatives” that we can think of?

This idea seems to be most in-line with my thinking on this topic, although I never really thought about it before today. I think it shows the most faith in the human ability to exercise intellectual reason to solve what are perceived as problems, or failures, or shortcomings. Furthermore, it’s hard to solve problems if you don’t have enough background information to know what would and would not work, given all of the variables, and why. It is the most respectful of the power and limits of human reason and intellect, in my opinion.

So, there it is. I wrote down a lot of vocabulary words while I was reading this article, and my plan is to incorporate that new vocabulary into the research guides I mentioned earlier. I like that about research guides — they are really living documents, which we can change and edit as our researchers teach us things. That is the best part about this work, in my opinion. I do not have to write a 300-page dissertation, but I still get to learn stuff.

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