Pragmatism

Charles Saunders Peirce, William James, John Dewey, and George Herbert Mead were influenced by Darwinian evolutionary theory, probabilistic explanation, and the scientific model of inquiry and experimentation, which they saw as continuous with all human inquiry. Humans engage in actions within natural and social environments, following habits and customs, using tools, acting on concepts, beliefs, and theories, pursuing objectives, learning from failures and successes, adapting to changing circumstances, building a corpus of collective knowledge incorporated within language, ideas, concepts, theories, habits, social practices, norms, rules, principles, institutions, instruments, and technology. At any given time the overwhelming bulk of knowledge in society is the legacy of previous successful actions, with new discoveries adding to, modifying, or replacing what came before. James observed, “our fundamental ways of thinking about things are discoveries of exceedingly remote ancestors, which have been able to preserve themselves throughout the experience of all subsequent time.”Footnote ⁴

Humans, like all species, have natural traits and needs and engage in activities within natural and social environments aimed at surviving, procreating, and improving the conditions of their existence. “Man as a natural creature acts as masses and molecules act; he lives as animals live, eating, fighting, fearing, reproducing,” Dewey wrote. “As he lives, some of his actions yield understanding and things take on meaning, for they become signs of one another, means of expectation and of recall, preparations for what is to come and celebrations of what has gone.”Footnote ⁵ Reasoning, language, knowledge, values, social institutions, and everything else humans do and create are within nature, not outside or apart.Footnote ⁶ Pragmatism presents a processual vision of human social existence continuously evolving with the accumulation and deployment of knowledge obtained in the course of our actions pursuing objectives.

Pragmatism, in James’ account, involves a method and a theory of truth. The method tells us that the meaning of notions lies in their consequences for actions, and their consequences for theories, concepts and ideas that inform actions.Footnote ⁷ “To attain perfect clearness in our thoughts of an object, then, we need only consider what conceivable effects of a practical kind the object may involve,” James wrote. “Our conception of these effects, whether immediate or remote, is then for us the whole of our conception of the object, so far as that conception has positive significance at all.”Footnote ⁸ Or as Dewey put it, “a thing is—is defined as—what it does, ‘what-it-does’ being stated in terms of specific effects extrinsically wrought in other things.”Footnote ⁹

Truths consist of beliefs that prove reliable and successful when acted upon. “True ideas are those that we can assimilate, validate, corroborate and verify. False ideas are those that we cannot.”Footnote ¹⁰ Facts are framed by our concepts and theories, subject to and disciplined by an external reality. “Our ideas must agree with realities, be such realities concrete or abstract, be they facts or be they principles, under penalty of endless inconsistency and frustration,”Footnote ¹¹ James observed. Dewey elaborated: “If ideas, meanings, conceptions, notions, theories, systems are instrumental to an active reorganization of the given environment, to a removal of some specific trouble and perplexity, then the test of their validity and value lies in accomplishing this work. If they succeed in their office, they are reliable, sound, valid, good, true.”Footnote ¹² Truths are obtained within communities of inquirers acting on and testing propositions, discarding those that fail, retaining those that succeed. The pragmatic method and its conception of truth are empirically-oriented in that they are based on experience in trying out courses of actions aimed at objectives and the observation of consequences. This is the “empiricist temper regnant,” James remarked.Footnote ¹³

Philosophers continue to debate the nuances and competing versions of pragmatism’s theory of truth.Footnote ¹⁴ It is important to emphasize that this is not a subjectivist theory grounded in individual beliefs. Peirce, James, and Dewey accepted “that there is an objective real world ‘out there’ that is independent of us: that is, independent of our subjective opinions and prejudices.”Footnote ¹⁵ We acquire truths about the world through our social practices of justification within communities of inquirers involving experimentation, corroboration, verification, and attempts at falsification; truths found reliable for certain current purposes might later be superseded in the course of acting on new theories and projects.Footnote ¹⁶

Recent shifts in scientific paradigms taught the pragmatists that theories and laws previously thought to be absolutely true—like Newtonian mechanics and Euclidean geometry—are replaceable frameworks that partially construct the facts they find. New theories—like Einstein’s relativity and non-Euclidean geometry—give rise to different sets of facts, explanations, and predictions.Footnote ¹⁷ The value of a theory depends on the extent to which it advances interests and objectives. “Theories thus become instruments, not answers to enigmas, in which we can rest.”Footnote ¹⁸ Affairs are largely carried out through routinized habits and practices based on implicit theories and beliefs; questions arise when people are confronted with difficulties or novel situations or questions, prompting the formulation of new theories to help advance. Theories, notions, systems, beliefs, and ideas are tools that guide inquiry and action, always subject to revision or replacement based on overcoming limitations or producing fruitful consequences.Footnote ¹⁹ A plurality of perspectives exists, with a multitude of possible views, interests, and framings. Scientists “have become accustomed to the notion that no theory is absolutely a transcript of reality, but that any one of them may from some point of view be useful. Their great use is to summarize old facts and to lead to new ones.”Footnote ²⁰

The pragmatists articulated their position against philosophical approaches that sought to proclaim universal, necessary, absolute truths. The pragmatist, James explains, “turns away from abstractions and insufficiency, from verbal solutions, from bad a priori reasons, from fixed principles, closed systems, and pretended absolutes and origins. He turns towards concreteness and adequacy, towards facts, towards action, and towards power.”Footnote ²¹ In Reconstruction in Philosophy, Dewey characterized the prevailing orientation of Western philosophers:

Although these theories are offered “under the guise of dealing with ultimate reality,”Footnote ²³ he observed, what philosophers articulate in abstract form are selective generalizations drawn from prevailing beliefs and values at the time they are formulated.Footnote ²⁴ Moreover, philosophers often rationalize the status quo, serving as apologists for the existing order, standing in the way of reform necessary to meet changing interests, needs, and circumstances.Footnote ²⁵ To speak with authority, they couch their generalizations in “abstract definition and ultra-scientific argumentation;” and “tended to produce an overdeveloped attachment to system for its own sake, and over-pretentious claim to certainty.”Footnote ²⁶

Pragmatism, in contrast, emphasizes fallibility, pluralism, variety, contingency, continuous change, adaptation, and local circumstances. Against fixity and determinism, believing in an open horizon of possibilities, the pragmatists advocated meliorism—reform efforts aimed at social betterment. “The world in which philosophers put their trust was a closed world,” Dewey wrote, “a world consisting internally of a limited number of fixed forms, and having definite boundaries externally.”Footnote ²⁷ But we exist in an “infinitely variegated” world, “so multiplex and far-reaching that it cannot be summed up and grasped by any one formula.”Footnote ²⁸ This is a “conception of a universe whose evolution is not finished, of a universe which is still, in James’ term, in the process of becoming, of a universe up to a certain point still plastic.”Footnote ²⁹

Pragmatism has waxed and waned in influence since its initial articulation. And various strains of pragmatism exist, so different from one another that pragmatism(s) is a more accurate label.Footnote ³⁰ For the realistic theory of law, I build on core ideas and attitudes broadly shared by James, Dewey, and Mead, and on approaches within jurisprudence and social theory that comport with these views or follow from the application of these views.Footnote ³¹ The central pragmatic view of truth and knowledge set forth above provides the epistemological underpinnings of the theory. The pragmatic methodology entails a thoroughgoing infusion of empirical insights about law within society from across the sciences. Naturalism, historicism, holism, and social constructionism, described in the coming sections, are aspects of the social ontology of law that comport with pragmatic views of human behavior and society. The pragmatic orientation toward producing edification on matters of social and legal concern points attention to instrumentalism, power, and ideals, taken up last.

Reconstruction in Jurisprudence

Analytical jurisprudence today consists of legal positivists and natural law theorists (numerically dominated by the former) who view themselves as avowedly philosophical in method and orientation. Their objectives and methods strongly echo the orientation of turn of the twentieth century philosophy that the pragmatists targeted for reconstruction. “A theory consists of necessary truths,” Joseph Raz asserts, “for only necessary truths about the law reveal the nature of law. We talk of the ‘nature of law,’ or the nature of anything else, to refer to those of the law’s characteristics which are of the essence of law, which make law what it is.”Footnote ³² Jules Coleman claims, “The descriptive project of jurisprudence is to identify the essential or necessary features of our concept of law.”Footnote ³³ A theory of law must “consist of propositions about the law which are necessarily true, as opposed to merely contingently true,” writes Julie Dickson, because “only necessarily true propositions about law will be capable of explaining the nature of law.”Footnote ³⁴ “To discover the law’s nature,” says Scott Shapiro, “would be in part to discover its necessary properties, that is, those properties that law could not fail to have.”Footnote ³⁵

Essential and necessary features, according to analytical jurisprudents, are universally true for all societies. Natural law theorist John Finnis asserts, “A theory of natural law claims to be able to identify conditions and principles of practical right-mindedness, of good and proper order among men and in individual conduct.”Footnote ³⁶ Absent this universality, he laments, there are only “various concepts peculiar to particular peoples.”Footnote ³⁷ Green asserts, “the features necessary to law are those found not only in all existing and historical legal systems, but in all possible ones—or all humanly possible ones—and those are numberless and unobservable.”Footnote ³⁸ Universal truth is meant literally by some. In Shapiro’s words: “Social science cannot tell us what the law is because it studies human society. Its deliverances have no relevance for the legal philosopher because it is a truism that nonhumans could have law. Science fiction, for example, is replete with stories involving alien civilizations with some form of legal system.”Footnote ³⁹

Universal truths are timeless, they assert, holding in the past, present, and future. “It is easy to explain in what sense legal philosophy is universal,” according to Raz. “Its theses, if true, apply universally, that is they speak of all law, of all legal systems, of those that exist, or that will exist, and even of those that can exist though they never will. Moreover, its theses are advanced as necessarily universal.”Footnote ⁴⁰ The principles Finnis identifies exist wholly outside of time, claiming “principles of natural law … have no history.”Footnote ⁴¹ He repeats, “of natural law itself there could, strictly speaking, be no history. Natural law could not rise, decline, be revived, or stage ‘eternal returns.’ It could not have historical achievements to its credit.”Footnote ⁴²

In other work, I have critically analyzed assertions by analytical jurisprudents of necessary, universal truths across all societies and times, detailing why they do not hold up.Footnote ⁴³ A quick example will demonstrate an insurmountable flaw in Raz’s position. He states that, “While the general theory of law is universal, it is also parochial.”Footnote ⁴⁴ What he means is that his universally true features are derived by abstracting from “our” parochial concept of law. However, Raz also recognizes that the concept of law changes over time, so “our concept [of law] is liable to be forever in flux.”Footnote ⁴⁵ The problem is that universal truth claims that hold across all places and times cannot be derived from culturally and historically contingent concepts of law that vary and change over time. To see why, let us grant that Raz I (today) correctly identifies the universally true essential features of law as A, B, and C; whereas Raz II (a millennium hence) correctly identifies the universally true essential features of law as A, B, C, and D. (The concept of law evolves in the interim to add a fourth feature.) Per Raz’s own argument, each theory is universally true of law in all places and times. According to the criteria of each true account, however, the other account is false. Consequently, the respective theories of law produced by Raz I and II are universally true and yet false.

This paradox bears out Dewey’s observation about the inevitable fate of philosophical efforts to identify essential, universal truths: “The attempt to include all that is doubtful within the fixed grasp of that which is theoretically certain is committed to insincerity and evasion, and in consequence will have the stigmata of internal contradiction.”Footnote ⁴⁶ The fundamental flaw in this mode of reasoning was identified by James. “Concepts are only man-made extracts from the temporal flux,” which philosophers distort “by treating them as a superior type of being, bright, changeless, true, divine, and utterly opposed in nature to the turbid, restless lower world,” he wrote.Footnote ⁴⁷ Pragmatism “abandoned the eternal as an absolute frame of reference for thought, and emphasized the ineluctable pervasiveness of temporal change in the natures of things.”Footnote ⁴⁸

Pragmatism, furthermore, questions the methods utilized by analytical jurisprudents. Shapiro engages in “conceptual analysis [that] proceeds on the basis of our intuitions”Footnote ⁴⁹ to identify the essential features of law.Footnote ⁵⁰ For Raz, “The conditions fixing the identity of particular concepts are idealizations constructed out of our conceptual practices, i. e. out of the use of those concepts in general.”Footnote ⁵¹ While concepts are essential, for pragmatists the key to understanding lies not in the concept of law or intuitions about law, but in actions done in connection with law and their consequences. Law is what law does: what people do with and through law and what results from those actions. To know this requires empirical information about law.

Reliance on self-evidence is also objectionable from a pragmatist standpoint. Finnis contends that the basic goods are desirable for their own sake (are “intrinsic” goods), not for any instrumental value; they are “self-evident,” that is, each basic good “cannot be demonstrated, but equally it needs no demonstration.”Footnote ⁵² “They are obvious—obviously valid—to anyone who has experience of inquiry into matters of fact or of theoretical (including historical and philosophical) judgment; they do not stand in need of demonstration. They are objective; their validity is not a matter of convention, nor is it relative to anybody’s individual purposes.”Footnote ⁵³ Pragmatism rejects the notion of intrinsic goods that need no demonstration, for knowledge is based on what works, and what is obvious to certain thoughtful theorists is not obvious to others.

Shapiro grounds his analysis of law’s essential features in “self-evident truisms,” which “are not merely true, but self-evidently so.”Footnote ⁵⁴ “Conceptual analysis, as we have seen, depends on our ability to assemble a list of obvious truths;”Footnote ⁵⁵ “truisms, statements so unobjectionable that they hardly need mentioning.”Footnote ⁵⁶ The self-evident truisms Shapiro identifies, he says, are those people educated in law would find obvious.Footnote ⁵⁷ “All legal systems have judges.” “Every legal system has institutions for changing the law.” “Laws are always members of legal systems.” The list goes on. Shapiro overlooks that his postulated truisms may be obvious to lawyers trained in highly developed legal systems today but would not be obvious to people in all societies past and present. Forms of customary law, for instance, have existed without the trappings of a system and were not considered changeable.Footnote ⁵⁸ “Today we might take it for granted that law is something created and can be changed,” legal historian Tamar Herzog observes, but “this vision is a relatively recent invention. For many centuries [in Europe], law was said to exist because it simply did, because it was spontaneously created by the community, or because God had handed it down.”Footnote ⁵⁹ Shapiro privileges his own familiar legal institutions as the foundation for essential truths about law, notwithstanding different legal arrangements and understandings in other places and times.

Claims about self-evidence, Dewey skeptically noted, give rise to a multitude of different accounts. “The diversity and contradictions give ground for a suspicion that in no case is the ‘knowledge’ in question as self-evident as it is asserted to be.”Footnote ⁶⁰ Resort to self-evidence is an attempt to ground a truth as directly known without reference to something else. This is “ipse dixitism,” Dewey charged. “What is it but arbitrary dogmatism?”Footnote ⁶¹ What is purportedly self-evident is merely a theorist’s entrenched assumptions ratcheted up to count for something more, with different theorists positing different assumptions. Aquinas, whose natural law theory Finnis develops, declared, “it is self-evident that an angel is not circumscriptively in a place.”Footnote ⁶²

Moreover, Dewey observed, all philosophies of law reflect surrounding social circumstances and views—which arguments from self-evidence misleadingly claim to rise above.Footnote ⁶³ “When it is acknowledged that under disguise of dealing with ultimate reality, philosophy has been occupied with the precious values associated in social traditions, that it has sprung from a clash of social ends and from a conflict of inherited institutions with incompatible tendencies, it will be seen that the task of future philosophy is to clarify men’s ideas as to the social and moral strife of their own day.”Footnote ⁶⁴ “[W]e also find that one of the chief offices of the idea of nature in political and judicial practice has been to consecrate the existent state of affairs, whatever its distribution of advantages and disadvantages, of benefits and losses; and to idealize, rationalize, moralize, the physically given,” Dewey noted.Footnote ⁶⁵

Analytical jurisprudence, as we have seen, revolves around conceptual analysis built on intuitions, with limited attention to the actual workings and consequences of legal systems, relying instead on thought experiments and other empirically detached philosophical methods constructed to produce the outcomes desired by the theorists. Shapiro’s theory of law is a type of planning system; in support of his account, he imagines a cooking club dropped in a state of nature on an isolated island that—unsurprisingly—creates a legal system as a planning system to deal with hard problems.Footnote ⁶⁶ Leslie Green relies on societies of angels to argue that coercive force is not a necessary feature of law. “We all know that even a ‘society of angels’ would need rules, if only to help them coordinate their altruistic activities,” he asserts.Footnote ⁶⁷ Angels will have rational conflicts, he tells us. “Angels may reasonably hold different views about what is appropriate in certain circumstances, and a reasonable view is one in which there is a reason, pro tanto, to act.”Footnote ⁶⁸ Green continues, “Although duty-imposing rules are necessary even among a society of angels, coercive sanctions are not. Angels need no further motivation to comply with their duties.”Footnote ⁶⁹ His analysis thereby “shows that there are conceptually possible legal systems that do not deploy any coercion.”Footnote ⁷⁰

Green’s argument is empty because what results from his analysis is predetermined by the assumptions he posits at the outset of what angels and their societies are like (which he oddly claims “we all know”). If one does not assume that angels would need rules or would have differing views—why would they?—then the analysis fails because they would not have law. Or if one posits that angels believe in the ultimate correctness of their decisions, notwithstanding contrary legal rules (which inevitably suffer from over-inclusiveness), then coercion would be necessary to secure compliance with legal decisions with which they disagree. To answer objections of this sort, the discussion must shift to debates over what angel societies really are like—which is absurd. Finally, it must be said, if legal philosophers conclude that legal systems of imaginary angelic societies with a particular set of stipulated characteristics (human-like but bearing wings and nicer in certain ways) do not require coercion, have we learned anything about our legal systems? A serious theoretical argument would cite actual examples of recognizable legal systems in the past or present that function without coercion.

Unverifiable and unfalsifiable philosophical musings devoid of real world circumstances and consequences are precisely what the pragmatists objected to. Conceptual analysis based on intuitions, claims of necessary features and universal truths for all places and times, talk of aliens and societies of angels—are antithetical to pragmatism. The pragmatic method entails “the attitude of looking away from first things, principles, ‘categories,’ supposed necessities; and of looking towards last things, fruits, consequences, facts.”Footnote ⁷¹

To avoid a potential misimpression, it must be emphasized that pragmatists were not against theories, abstractions, or generalizations—which are “indispensable” to knowledge.Footnote ⁷² Theories help us frame and grasp situations and deal with complications standing in the way of objectives. They are formulated at various degrees of abstraction and the appropriate extent is whatever facilitates a given project. Generalizations, including broadly applicable propositions about law, are illuminating and warranted when empirically supported. The problem with contemporary analytical jurisprudence is that the theoretical pursuit of universal, necessary features of law involves abstractions so untethered from the reality of law within society that scant light is shed on actual social and legal concerns. The empirically informed theoretical perspective elucidated in this essay offers a lens on the social reality of law that can help identify empirically grounded (contingent, fallible) truths and insights about law, enhancing our understanding of legal phenomena.

Analytical jurisprudents are free to reject pragmatism, and to continue their favored modes and methods of conceptual analysis. The problem is that these philosophical approaches dominate contemporary jurisprudence to the substantial exclusion of realistic theories of law. To explain its approach and demonstrate its value, I now elaborate on core features of a pragmatism-informed realistic theory of law and provide a sampling of insights it enables by contrast to analytical approaches.

Naturalism

Naturalism has multiple meanings.Footnote ⁷³ The realistic theory of law incorporates the core sense that only natural phenomena exist (no supernatural) and everything occurs within natural processes. From a biological standpoint, naturalism situates human social animals within evolutionary processes common to all species, distinguished mainly by our advanced intellectual and sophisticated language and tool-making capabilities, which have given rise to cultures, technology, social institutions, and vastly more.Footnote ⁷⁴ Reflective thought, Dewey wrote, “has its origin in biological adaptive behavior and the ultimate function of its cognitive aspect is a prospective control of the conditions of the environment.”Footnote ⁷⁵ We need food, clothing, and shelter, and we reproduce. We are physically vulnerable, roughly equal in our abilities, and live in potentially dangerous environments with limited resources. We are self-interested, and we are altruistic toward others. We both compete and cooperate with each other. We create shared meaning and act to achieve a myriad of objectives to meet our needs and desires.

The human capacity for experience-based knowledge and inventiveness leads to improvements that modify the present and future by changing the circumstances of our collective existence. “This ideal element,” Dewey added, “is more and more accentuated by the inclusion progressively of social factors in human environment over and above natural factors; so that the needs which are fulfilled, the ends which are attained are no longer of a biological or particular character, but include also the ends and activities of other members of society.”Footnote ⁷⁶ Natural processes encompass both biological needs and traits as well as social requirements like coordination, coexistence, and functional arrangements within groups.

Naturalism has manifold implications for a theory of law. Only a brief sampling of its potential relevance can be offered here.Footnote ⁷⁷ The key methodological implication is that natural and social scientific studies must be utilized to discern the range and influence of natural traits and social imperatives in connection with law.

There is ample support, for example, for the proposition that law manages the basic conditions of human social relations. Anthropological and psychological research has confirmed a number of human universals, albeit with a great deal of cultural variation in their expressions.Footnote ⁷⁸ Among these common traits (group living, shelter, tools, music, aesthetic standards, reciprocal gift giving, cosmology, etc.), those specifically related to law include property rights, prohibitions against murder, redress for violent injuries, marriage, inheritance, sexual restrictions, debt obligations, rights and obligations related to statuses, binding decisions, and punishments for infractions.Footnote ⁷⁹ The universality of these basic rules of social intercourse is evidence of their naturalistic roots in human traits and the requirements of social cohesion.Footnote ⁸⁰

Studies suggest, furthermore, that rules on these matters are undergirded by natural factors. A leading theory proposes that humans have evolved subject to natural selection to possess moral intuitions—immediate, automatic, and often emotional reactions to situations. These intuitive moral judgments enhance group cohesion and survival.Footnote ⁸¹ Another theory proposes that cognitive systems are structured in ways that generate mental representations and moral reactions involving rules, concepts, and principles.Footnote ⁸² The existence of this moral faculty is evidenced by studies showing that young children exhibit an “intuitive jurisprudence” when they distinguish intentional from non-intentional acts, use proportionality to determine punishment, and make other sorts of legal distinctions; every language contains deontic concepts like “obligatory, permissible, and forbidden;” and there are universal prohibitions of murder, rape, and other injurious actions, along with concepts of causation and intention.Footnote ⁸³

Pragmatist George Herbert Mead identified criminal punishment with a “hostile” instinct manifested in primitive impulses, which reinforce group bonds and compliance with norms. “The revulsions against criminality reveal themselves in a sense of solidarity with the group, a sense of being a citizen on the one hand excludes those who have transgressed the laws of the group and on the other inhibits tendencies to criminal acts in the citizen himself.”Footnote ⁸⁴ Oliver Wendell Holmes identified the origins of law in natural feelings of “vengeance,” “a feeling of blame,” “an opinion … that a wrong has been done.”Footnote ⁸⁵ Adam Smith likewise identified law with natural reactions to injustice.Footnote ⁸⁶ “Fraud, falsehood, brutality, and violence” excite reactions of “scorn and abhorrence,” Smith observed, and murder, theft and robbery “call loudest for vengeance and punishment.”Footnote ⁸⁷ This innate sense of justice is the “main pillar that upholds” society, without which it would “crumble into atoms.”Footnote ⁸⁸ “Nature has implanted in the human breast that consciousness of ill desert, those terrors of merited punishment which attend upon its violation, as the great safeguards of the association of mankind, to protect the weak, to curb the violent, and to chastise the guilty.”Footnote ⁸⁹

Recent neurological studies lend support to these early speculations. Humans manifest brain states that provoke punishment at perceived injustice. “The decision to punish, the passionate motivation to do so, is a frothy limbic state.”Footnote ⁹⁰ One study found that when citizens administer punishments to norm violators parts of their brain linked to pain, anger, and disgust are activated.Footnote ⁹¹ “It turns out that people not only passionately wish to see wrongdoers and layabouts punished; they are also willing to take part in administering justice—even at a cost to themselves.”Footnote ⁹²

The emergence of legal systems as organized complexes enforcing legal rules can also be understood in evolutionary, naturalistic terms. H.L.A. Hart suggested that societies purposely created legal systems because, in the absence of organized systems, primitive law was too static, uncertain, and difficult to create and enforce.Footnote ⁹³ But naturalism suggests legal systems emerged gradually in less rationalistic ways. As populations increase in size, activities involving the coordination of social action within large groups gives rise to social institutions created in the course of collective projects. Natural human traits—like the drawing of in-group/out-group distinctions, acquisitiveness, hierarchy, and others—give texture to these social institutions, including law, influencing how they operate, and their consequences.

Studies suggest that polities like complex chiefdoms and early states emerged supported by legal coercion, coordinating major tasks like food cultivation and defense from outsiders, maintaining political domination and internal order, and enforcing social and economic hierarchy.Footnote ⁹⁴ Legal systems provide the enforcement muscle that backs ruling polities as they entrench their control within the social group, while also enforcing the basic rules of social intercourse. Rulers, priests, administrators, and judges were drawn from a hereditary aristocracy that controlled landed wealth, using commoners, serfs, and slaves to work the land under property and labor arrangements enforced by law.Footnote ⁹⁵ This account of law emerging in the coercive application of force to coordinate actions and maintain rule, which has abundant support from anthropologists and historians,Footnote ⁹⁶ is a very different explanation from Hart’s suggestion that legal systems are intentionally created to remedy inefficiencies in the creation and enforcement of primitive law.Footnote ⁹⁷

The legal construction and maintenance of hierarchy in human societies perhaps also has naturalistic sources. Humans are “just like numerous other social species in terms of having marked status differences among individuals and hierarchies that emerge from those differences,”Footnote ⁹⁸ although humans belong to multiple hierarchies attached to different criteria (wealth, gender, religion, caste, race or ethnicity, etc.).Footnote ⁹⁹

Naturalism also offers potential insights on concrete issues within law. Genetic research and neurological studies, for example, have uncovered evidence that certain individuals may for biological reasons be prone to violence, to pedophilia, or other anti-social acts, findings which bear on issues of criminal punishment.Footnote ¹⁰⁰ Studies of brain development suggest that teenagers should be treated differently from adults for the purposes of civil and criminal responsibility.Footnote ¹⁰¹ Neurological studies have begun to uncover the basis for subconscious biases linked to in-group versus out-group judgments, relevant to legal responses to discrimination.Footnote ¹⁰² Studies have revealed evidence of biases in the perception of facts, motivated reasoning, ideological influences, groupthink, and other factors that affect decision-making by police, prosecutors, juries, and judges.Footnote ¹⁰³

The suggestion that natural traits and requirements play out in various respects within and through law does not mean society and law are wholly determined by natural factors. Naturalistic influences are not fixed in their extent and expression and are not all-encompassing. Social, cultural, economic, political, and legal institutions vary greatly across societies and have changed enormously over time. Contingency, moreover, is a fundamental trait of nature.Footnote ¹⁰⁴ Dewey scorned Herbert Spencer’s (laissez-faire) notion that natural laws govern human social and economic affairs. Humans are participants in nature, engaging in activities that profoundly affect the conditions of our existence, he argued in response.Footnote ¹⁰⁵ Human-generated meaning and instrumental actions aimed at achieving purposes inform and give shape and texture to, and go beyond, naturalistic influences. The pragmatists saw both naturalism and plasticity at play, and both aspects must be considered in theoretical and practical understandings and applications of law.

Historicism and Holism

Law exists temporally, extending from the past to the continually constructed present, projecting toward the future. This is true in the narrow sense that laws that come into existence at a given point in time apply to conduct at each ensuing moment as long as they remain in place. It is also true in the broad sense that law is a historical product—an inherited traditionFootnote ¹⁰⁶—that changes over time in relation to surrounding factors, shaping and conditioning (via constituting existing structures of action, and path dependence) future developments within society and law. That society and law exist within and across time is a fundamental aspect of the social ontology of law.

Elaborating on the influence of evolutionism on the pragmatists, Philip Wiener remarked, “The historical or genetic, temporal aspect of all observable phenomena and ideas dominated the foreground of the whole evolutionary and early pragmatic approach to nature and to man.”Footnote ¹⁰⁷ Nicholas St. John Green, a lawyer member of the Metaphysical Club in which pragmatism gestated,Footnote ¹⁰⁸ portrayed law as a slow growth over centuries that bears contingent marks of past developments. Law, therefore, must be understood historically: “in the same way we account for the distorted shape of a tree—by looking for the special circumstances under which it has grown, and the forces to which it has been exposed.”Footnote ¹⁰⁹ “Green conceived that the function of the philosophy of law is to give careful logical analysis of concepts and rules proceeding from slowly changing social, historical conditions.”Footnote ¹¹⁰ Espousing a similar view, Oliver Wendell Holmes, a brief participant in the Metaphysical Club and widely seen as a pragmatist (though he never explicitly endorsed it),Footnote ¹¹¹ wrote, “The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become.”Footnote ¹¹²

Along with temporal extension, law extends spatially throughout society. Law is interconnected with culture, the economy, the polity, social structures, technology, the ecosystem—indeed all aspects of society are inextricably intertwined. This ontological proposition is built on the heuristic notion of societies as (porous) totalities nested within broader networks of interaction. A holistic historicist understanding requires attention to how law relates to and interacts with other aspects of society—as well as other societies—in a continuous temporal process of development. A crucial aspect of law highlighted by the combination of historicism and holism, which analytical jurisprudents say little about, is the unceasing tension between maintaining legal stability and certainty while accommodating ongoing social change.

George Herbert Mead observed, “The mere recitation of these essential social institutions [schools, churches, social control institutions, economic processes, means of communication] exhibits their vital relationship with one another …. No one institution could stand by itself, and the development of each one of them has been the outcome of the processes of all of them.”Footnote ¹¹³ Dewey likewise exhibited a holistic view, writing, “We have imported our language, our laws, our institutions, our morals, and our religion from Europe, and we have adapted them to the new conditions of our life.”Footnote ¹¹⁴ He identified the sources of law in “customs,” “social forces,” and “social interests;”Footnote ¹¹⁵ and emphasized that “social facts are going concerns and that all legal matters have their place within these ongoing concerns.”Footnote ¹¹⁶ As Holmes remarked, “The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have a good deal more to do than the syllogism in determining the rules by which men should be governed.”Footnote ¹¹⁷ The interconnections of law within society are mutually constitutive: social influences affect law in a multitude of ways, while law gives rise to or stands behind a multitude of social arrangements. Law is integrated within the social whole, constituting as well as shaped by surrounding factors.

Historicism and holism espouse the same core view of law integrated within society—the former emphasizing the temporal and the latter the spatial dimension. Mead combined the two in a 1915 essay on the meaning of natural rights, which he traces from the seventeenth century through the present. His historical analysis shows that each formulation of rights—Hobbes, Locke, Declaration of Independence, French Declaration of the Rights of Man, etc.—is made with specific “dangers and hindrances” and particular objectives in mind.Footnote ¹¹⁸ Thereafter, the rights become abstract, deprived of their original meaning, whereupon further contexts of application arise that produce new meanings. “We started with life, liberty, security, equality, pursuit of happiness, as natural rights,” Mead observed, but they were “incapable of definition as to their content.”Footnote ¹¹⁹ As social, political, and economic views change and new clashes between interests arise, the meaning of rights are filled in differently. “It is evident that categories which are to serve all these purposes must be abstract and empty of content and that they should get their content through the struggle which arises on the bare floor and between their distant walls.”Footnote ¹²⁰ A searing struggle of his day was between laborers and employers playing out in legislatures and courts, manifested as a clash between social welfare legislation versus liberty and property rights enforced by courts.Footnote ¹²¹ His analysis seamlessly engages historicism and holism to demonstrate that rights are not immutable, but change in connection with ongoing social factors.

At the time the pragmatists wrote, historical jurisprudence fastened on the historicist dimension while sociological jurisprudence, developed by Roscoe Pound under the influence of pragmatism, emphasized the holistic as well as historicist dimension.Footnote ¹²² Although both provide essential insights on law, they are virtually ignored in jurisprudence today. Brian Bix’s exhaustive Jurisprudence text, for instance, mentions sociological jurisprudence just once in passing, and asserts that “historical jurisprudence has largely disappeared.”Footnote ¹²³ A realistic theory of law is consummately historicist and holist. Again, I will offer a brief sampling of insights revealed through attention to historicism and holism.

Theorists engaged in historical jurisprudence traced changes in law on a grand scale—like Henry Maine’s account of the evolution of law from status to contract—as well as at the level of legal concepts and doctrines—like Holmes’ argument that the common law has progressed from subjective to objective standards. The historicist methodology is genealogical and comparative, observing continuities as well as changes law has undergone over time in different settings.

A historical lens can be applied to law for various purposes. In contrast to claims by analytical jurisprudents of timeless, necessary features of law, I used a genealogical lens to show that law has undergone fundamental changes in form and function in the course of history.Footnote ¹²⁴ It can be used to trace the social factors that influence the development of law as a way to help explain and understand current law. A historical lens can be used for legitimation purposes, for example, by arguing that the longevity of a given legal regime reflects its beneficial effects for society; or to undermine the legitimacy of law, for example, by demonstrating that its origins were arbitrary or discreditable, while the law has been kept in place through inertia, blind traditionalism, or fictional post hoc rationalizations. It can be used to show that, although in an earlier period a given law was beneficial, surrounding circumstances have changed substantially, while law remained fixed or lagged behind, such that it no longer meets existing needs.

Dewey applied historicist analysis to criticize existing liberal doctrines of freedom of contract and property rights. When these principles were initially introduced into law in the eighteenth century, he explained, they served to “emancipate” industry, trade, and people from a “multitude of restrictions” held over from feudal times.Footnote ¹²⁵ At the turn of the twentieth century, however, the most pressing problems were generated by the newly emerging circumstances of mass urban societies, which legislatures were trying to ameliorate through social welfare and pro-labor legislation. By invoking legal doctrines of freedom of contract and property rights entrenched in the law, however, judges impeded these efforts. “Thus these principles became in turn so rigid as to be almost as socially obstructive as ‘immutable’ feudal laws had been in their day.”Footnote ¹²⁶

Sociological jurisprudence was prominently promoted by Roscoe Pound—who explicitly invoked pragmatism—to combat excessive abstractions and conceptualism in analytical jurisprudence and natural law theory of the day.Footnote ¹²⁷ The sociological perspective emphasizes that social influences—surrounding moral, cultural, and religious views, economic interests, political forces, clashes among competing groups, technological advances, and everything else—seep into and shape law through every pore, including legislative actions, executive actions, judicial decisions, regulatory actions, lawyers pursuing the interests of clients, and how people think about and act in relation to law. At the same time, law constructs and undergirds corporations, economic transactions, the structure of government, property rights, remedies for injuries, rights of employees, obligations within families, and a multitude of other aspects of society. The interconnections between law and society are manifold and dynamic with many variations: sometimes legal officials disregard or undermine declared law for cultural, political, or economic reasons; sometimes people are ignorant of, ignore, or work around law to pursue their desires; sometimes law has unintended consequences (detrimental or beneficial); among other possibilities. Law is an “ongoing” aspect of social activities, Dewey emphasized, and “must be viewed as both intervening in the complex of other activities, and as itself a social process.”Footnote ¹²⁸

Owing to these interconnections, viewing law in isolation of surrounding social forces is flawed. “The modern teacher of law should be a student of sociology, economics, and politics as well,” Pound argued. “He should know not only what the courts decide and the principles by which they decide, but quite as much the circumstances and conditions, social and economic, to which these principles are to be applied; he should know the state of popular thought and feeling which makes the environment in which the principles must operate in practice.”Footnote ¹²⁹ The methodological implication of this position is that understanding the reality of law requires the social scientific study of law in action and its social consequences.

Analytical jurisprudents, in contrast, abstract law away from social context. “Since a legal theory must be true of all legal systems the identifying features by which it characterizes them must of necessity be very general and abstract,” Raz asserted. “It must disregard those functions which some legal systems fulfill in some societies because of the special social, economic, or cultural conditions of those societies.”Footnote ¹³⁰ Reductionism of this sort inevitably results in exceedingly narrow accounts of law. Shapiro, for example, concludes that “law is a self-certifying compulsory planning organization whose aim is to solve those moral problems that cannot be solved, or solved as well, through alternative forms of social ordering.”Footnote ¹³¹ But law is and does vastly more than a planning organization that solves moral problems. Reducing multi-sided, varied, and complex legal phenomena down to highly idealized one-dimensional terms obscures more than it illuminates.

Since law is intertwined within and functions in relation to continuously changing surrounding conditions, removing law from history and society results in a distorted understanding of what law is and what law does. “Law’ cannot be set up as if it were a separate entity,” Dewey wrote, “but can be discussed only in terms of the social conditions in which it arises and of what it concretely does there.”Footnote ¹³² “The fundamental nature of law is revealed not when all possible associations have been stripped away,” Sean Coyle observed in his critique of analytical jurisprudents, “but when one is able to contemplate law in the widest and most systematic context: law in its most concrete sense.”Footnote ¹³³

The significance of historicism and holism can be illustrated in connection with the rule of law. Analytical jurisprudents (as well as other theorists) have abstracted the elements of the rule of law, but they cannot explain how the rule of law developed over time within certain societies but not others, nor tell us how to develop the rule of law where it is lacking. Nor can they account for the reality that rule of law societies (US, France, Japan, Singapore, etc.) consist of very different complexes of legal institutions. There is no single rule of law institutional arrangement. When legal institutions from a rule of law society are transplanted elsewhere, furthermore, frequently they do not result in the rule of law in the receiving society, for it is holistically produced and depends on supportive surrounding conditions. Absent historicism and holism, jurisprudence is silent on pressing theoretical matters with real world significance.

Law as a Social Construction

The classical pragmatists held that theories, concepts, and beliefs shape the facts observed in the natural world by framing material reality through particular lenses for given interests and purposes. The social world is the product of our meaningful actions and their intended and unintended consequences. While it is created by us collectively, it preexists individuals and survives their expiration. People are born into, assume a place in, partake of, and modify existing language, knowledge, conventions, social practices and institutions, generated on an ongoing basis by the community of actors—collectively giving rise to a common social world made up of hospitals, schools, petrol stations, office buildings, factories, government offices, courts, grocery stores, movie theaters, and everything else in society. These are the ubiquitous social phenomena in which we are daily immersed and take for granted. Viewing law as a social construction involves focusing on the ontology of legal institutions as social institutions,Footnote ¹³⁴ observing how they are constructed and operate.Footnote ¹³⁵

To know what law is, one must attend to the meaningful actions of people who exercise legal powers, to how people in society understand law and interact with law, and to the consequences that follow. Mead applies this perspective to show how property rights exist via collective recognition:

Mead’s point was that society is filled with a multitude of organizations carrying out functions or pursuing objectives—schools, stores, banks, churches, criminal gangs, etc.—that operate through shared expectations that link up.Footnote ¹³⁷ People work within organizations built on conventionally recognized roles, responsibilities, routines, practices, and rules, engaging in activities that connect to what others are doing, though often they do not know everything others in the organization are doing or how it all hangs together; people who interact with an organization from the outside may have a basic idea of what it does while remaining ignorant about its internal operation.

Mead did not claim that people’s actions are determined by their institutional roles and responsibilities. Like all pragmatists, he recognized that a pluralism of perspectives exists amongst individuals, and that these general patterns afford “plenty of scope for originality, flexibility, and a variety of such conduct.”Footnote ¹³⁸ For all social institutions, including legal, people operate in relation to rules and practices that can be creatively modified, extended, or breached and ignored, as well as followed, and which have degrees of indeterminacy and contingency. Moreover, surrounding informal norms can be as influential as formal norms in shaping actions. Nor did Mead believe social organizations operate smoothly together. Conflicts within society are ubiquitous. “Each social institution with the good that it subtends asserts and maintains itself but finds itself in that assertion in conflict with other institutions and their goods.”Footnote ¹³⁹

Focusing on collective recognition provides a ground up perspective that generates insights overlooked by analytical jurisprudents who base their analysis on intuitions and idealized assumptions. The crucial factor in the social construction of law—as with all social institutions—is conventional recognition within a given group. Conventional recognition determines who counts as legal officials, which specified legal powers they exercise—as legislators, judges, prosecutors, police, etc.—and what they must do for their actions to count as legal. For example, when a quorum of duly elected and sworn in legislators satisfy voting requirements on a proposed bill, which is thereafter signed by the executive and assigned an official number—it is law. Judges create valid law in their judicial decisions following a different set of procedures. Law literally is whatever legal officials say is law through collectively recognized legal conventions and rules. From a social construction perspective, legal officials create institutionally recognized facts that are law.Footnote ¹⁴⁰

Analytical jurisprudents tend to propound general statements about law based on their assumptions without examining how law is socially constructed on a daily basis through meaningful social actions. This is the source of a large blind spot in Hart’s influential account of law as a union of primary rules of obligation that apply to social behavior, and secondary rules for recognizing, changing, and applying the primary rules;Footnote ¹⁴¹ along with his assertion that the “principal functions of the law as a means of social control”—are “to control, guide, and to plan life out of court.”Footnote ¹⁴² Secondary rules, Hart declared, “may all be said to be on a different level from the primary rules, for they are all about such rules; in the sense that while primary rules are concerned with the actions that individuals must or must not do, these secondary rules are all concerned with the primary rules themselves.”Footnote ¹⁴³

The problem with these assertions is that significant aspects of contemporary state law are not primary or secondary rules—indeed are not rules at all—and are not about social control. Law today, declared at will by conventionally recognized legal officials through internally maintained rules of validity, is a multifunctional tool that can take any form and be used for any purpose whatsoever. Enabling acts, for example, are not rules but rather are performative devices that accomplish things by declaration, usually marked by words like “hereby establish,” “hereby create,” “hereby abolish,” and the like.Footnote ¹⁴⁴ Incorporation laws are enabling acts that bring corporations into existence, creating entities that act and exert consequences in the world. Enabling acts create government agencies, reorganization acts alter government structures, and termination acts wipe entities out of existenceFootnote ¹⁴⁵—all accomplished upon declaration, none of which is about rules or social ordering, but about immediately bringing about changes in the world. A great deal of law does not involve rules or social order: declaring a holiday, setting a budget, naming an official building, and so forth. Hart’s reductionist concept of law as a social ordering system comprised of rules about rules washes out the unlimited variety of law and legal facts actually produced by legal actors through collective recognition.Footnote ¹⁴⁶

Attention to the social construction of law produces additional insights that run contrary to common theoretical assumptions. The social construction of state law most immediately involves recognition and actions within the community of legal officials themselves.Footnote ¹⁴⁷ Collective recognition of law by legal officials occurs within a body of shared meaning maintained as a professional legal culture—common law, civil law, and others—comprised of specialized legal language, knowledge, institutions, and practices, which have secured monopoly positions in the operation of state legal systems. This highly technical system through which legal actors construct law is largely opaque to people without legal training.

A crucial implication of the construction of law by legal specialists is to render dubious Hart’s claim that the “principal functions” of law are “to control, guide, and plan life out of court.” Many legal theorists assert that the function of law is to guide conduct and coordinate behavior in the community. However, law can serve these functions only if people know what the law is. Numerous studies have found that large percentages of people (including professionals) have erroneous understandings of the law on matters important to their lives, including employment, crimes, family matters, and more;Footnote ¹⁴⁸ and people often do not retain attorneys to advise them of the law before engaging in actions with legal implications (only wealthy individuals and businesses have the financial wherewithal to do so routinely). People in the community, it turns out, have their own views of law that may or may not comport with official state law, a potential mismatch that has a variety of consequences for the operation and efficacy of law.

In Mead’s account of property, what he calls the “common response” portrays conventional recognition as an integrated whole: legislators enact laws against theft; people in the community call out for legal protection of their property; and police, prosecutors, and courts respond to enforce and apply the law prohibiting theft. Property in his scenario is socially constructed through the aggregate actions by the public and by legal officials. However, in reality, law can be much less unified than this picture portrays. What legal officials collectively recognize and enforce as law is not necessarily consistent with what people in the community socially construct as law. A recent World Bank report found: “In many developing countries, customary systems operating outside of the state regime are often the dominant form of regulation and dispute resolution, covering up to 90% of the population in parts of Africa …. In many of these countries, systems of justice seem to operate almost completely independently of the official state system.”Footnote ¹⁴⁹ This pluralistic coexistence of legal systems, common in large parts of Africa, the Middle East, Asia, and the Pacific, is a legacy of the colonial imposition of state legal systems to maintain the political and economic affairs of colonizing powers and expatriates, while indigenous forms of customary and religious law on property, family law, remedies for injuries, and other matters, continued to govern the daily affairs of the bulk of the populace, particularly in rural areas.Footnote ¹⁵⁰ The unified common response Mead depicts breaks down into separate common responses, one shared by the legal actors of the state legal system in relation to the legal rules they create, and a second shared by members of the community who collectively recognize and socially construct their own forms of law (though they also recognize that the state legal system exists).

Analytical jurisprudents commonly project a top-down unified monopoly view of law. “In a nutshell,” Raz concluded, a legal system is “a system of guidance and adjudication claiming supreme authority within a certain society and therefore, where efficacious, also enjoying such authority.”Footnote ¹⁵¹ Not only is this unable to account for legal pluralism that prevails in many societies today, but it also cannot account for the medieval period, when no single form of law claimed supreme comprehensive authority.Footnote ¹⁵² Raz misses all this because his idealized account is based on jurists and legal officials running a state legal system, ignoring that law is socially constructed not only by legal officials but can also be constructed by members of the community.

Instrumentalism, Power, and Ideals

Pragmatism proffers an instrumental view of all social institutions. “They are the tools and implements of the community,” Mead emphasized.Footnote ¹⁵³ “Now it is true that social arrangements, laws, institutions, are made for man, rather than that man is made for them; that they are means and agencies of human welfare and progress,”Footnote ¹⁵⁴ Dewey observed. “Law is through and through a social phenomenon; social in origin, in purpose or end, and in application.”Footnote ¹⁵⁵ “A given legal arrangement is what it does, and what it does lies in the field of modifying and/or maintaining human activities as going concerns.”Footnote ¹⁵⁶

It follows from seeing law as an instrument that one must know the actual consequences of law,Footnote ¹⁵⁷ and law must be evaluated in terms of whether it successfully achieves desired ends, as well as whether these ends are socially beneficial.Footnote ¹⁵⁸ “For it demands that intelligence, employing the best scientific methods and material available, be used, to investigate, in terms of the context of actual situations, the consequences of legal rules and of proposed legal decisions and acts of legislation,”Footnote ¹⁵⁹ Dewey wrote. Pound’s sociological jurisprudence, conveyed above, embodies this view in his account of law as a mechanism of social engineering and his advocacy of the social scientific study of law in action.

Rudolph von Jhering’s instrumental view of law, articulated in the second half of the nineteenth century (preceded early in the century by Jeremy Bentham), presaged the pragmatists, and was endorsed by Pound. To counter prevailing accounts of law as an effusion of the customs of the people or the product of reason, Jhering asserted that law is an instrument utilized for individual and social ends. “In the course of time,” he wrote,

Legal change is propelled by this perpetual struggle over and through law in connection with competing individual and social interests in the context of ongoing social, cultural, economic, political, technological, and ecological developments.

Seeing law as an instrument prompts questions about who controls and wields law and to what ends. In the ideal account, often espoused by legal officials as well as theorists, law is an instrument to advance the public welfare and common good, an instrument that maintains a just social order—helping coordinate behavior and resolve disputes, bringing order, stability, certainty, and predictability, and limiting the arbitrary exercise of governmental power. Legal theorists frequently identify these as the core functions of law.Footnote ¹⁶¹ The critical view, in contrast, attuned to power and the unequal distribution of wealth and resources, holds that law operates as a means of domination that entrenches and enforces social, economic, and political hierarchies along various lines: caste, race, wealth and class, gender, religious, and others. This function of law often is unexpressed, or latent, though manifested in operation. Theories of law tend to emphasize one perspective over the other. A realistic theory that law is what law does incorporates the ideal account as well as the critical account.

Most theories of law center on the ideal function (i.e. law coordinates social behavior, law is a planning system to solve moral problems, etc.), situating domination, if it is mentioned at all, as a side effect or abuse of law. Domination, however, is a constant aspect of law. A leading scholar of state development remarked, “there is always found great inequality in (early) states. Some people, the happy few, are rich and powerful and all others, the great majority, are poor and powerless.”Footnote ¹⁶² Law enforced this arrangement. “The state serves, thus, to maintain the privileged position of a ruling class that is largely based on the exploitation and economic degradation of the masses.”Footnote ¹⁶³ There are many historical examples of legal enforcement of hierarchy: Hammurabi’s Code is replete with legal protections for higher status people; Roman law had the freeborn adult male citizen at the pinnacle, with everyone else legally inferior; slave laws in the United States subjugated slaves and their offspring as property of their owners; many legal systems past and present situate wives in various ways inferior to their husbands.Footnote ¹⁶⁴ Law in modern liberal societies continues to reflect elite and group interests, albeit via wealth and property rights rather than legally enforced status distinctions. Holmes declared, “[W]hatever body may possess the supreme power for the moment is certain to have interests inconsistent with others which have competed unsuccessfully. The more powerful interests must be more or less reflected in legislation; which, like every other device of man or beast, must tend in the long run to aid the survival of the fittest.”Footnote ¹⁶⁵ Legislation “is necessarily made a means by which a body, having the power, puts burdens which are disagreeable to them on the shoulders of everyone else.”Footnote ¹⁶⁶

The influence of wealth on law is plainly evident in the United States today, where billions of dollars in lobbying and campaign contributions flow through the political system, sent by corporations and rich individuals seeking favorable legislative and regulatory actions; representatives of corporate interests cycle through top positions in the government and administrative agencies to implement desired legal initiatives.Footnote ¹⁶⁷ Money also influences judicial appointments. At the federal level, the conservative Federalist Society, which recently received $250 million dollars in just four years from undisclosed donors, has created an influential network of lawyers with economically and socially conservative views who have been appointed to the federal bench in significant numbers by Republican Administrations, including the current conservative majority on the Supreme Court.Footnote ¹⁶⁸ At the state level, millions of dollars are now spent on judicial elections, the bulk of it by corporations seeking friendly rulings from state supreme courts.Footnote ¹⁶⁹

The pragmatists did not extensively address exercises of power,Footnote ¹⁷⁰ though they clearly recognized its significance. The pragmatist, James explained, “turns towards concreteness and adequacy, towards facts, towards actions, and towards power.”Footnote ¹⁷¹ Dewey, who lamented that US industry emphasized economic returns above all other values,Footnote ¹⁷² warned about the “genuine and extremely serious problem,” which “concerns the economic and legal organization of society in consequence of which the knowledge which regulates activity is so much the monopoly of the few, and is used by them in behalf of private and class interests and not for general and shared use.”Footnote ¹⁷³

“Law is essentially a formulation of the use of force” for instrumental purposes,Footnote ¹⁷⁴ Dewey stated, and he urged critical scrutiny to discern whether legal force is applied in ways that advance (or harm) social interests.Footnote ¹⁷⁵ He was critical of assertions that “force is hallowed by the mere fact that it is the state which employs it, or by the fact that it is exercised in the interests of ‘justice’—retribution in the abstract, or what is politely called ‘vindicating the law.’”Footnote ¹⁷⁶ “If one stops to consider the matter, is there not something strange in the fact that men should consider loyalty to ‘law,’ principles, standards, ideals to be an inherent virtue, accounted unto them for righteousness.”Footnote ¹⁷⁷

In addition to recognizing that law is a form of coercive power, and that law is substantially influenced by as well as maintains powerful elements within society, a realistic theory also recognizes that ideals espoused by legal officials and by the public have a major impact on law. Ideals about law, particularly claims that law represents justice and the common good, as well as ideals like liberty, equality, due process, and fairness, provide standards to evaluate, criticize, and reform law. Resort to ideals helps bring about a better state of society and law.Footnote ¹⁷⁸ Emphasizing their melioristic potential, Dewey observed, “The ideal is realized through its own use as a tool or method of inspection, experimentation, selection and combination of concrete natural operations.”Footnote ¹⁷⁹ Laws “are means and agencies of human welfare and progress.”Footnote ¹⁸⁰

The ideal that law serves the common good, social welfare, and justice raises perennial questions about how to fill in and evaluate the content and implications of ideals, particularly in the face of sustained, sharp disagreement. The pragmatists, as indicated at the outset, were critical of claims about universal, absolute, immutable principles of right or morality—a denial which appears to deprive people of objective standards to evaluate and guide law.

One set of values derivable from pragmatism relates to norms of effective scientific inquiry: challenging existing positions, evaluating supportive and contrary evidence, airing rival hypotheses, answering questions and considering criticisms, listening to criticism and considering opposing views.Footnote ¹⁸¹ About these norms of inquiry philosopher Hilary Putnam observed, “good science requires respect for autonomy, symmetric reciprocity, and discourse ethics,” which “requires the democratization of inquiry.”Footnote ¹⁸² Facilitating the acquisition of knowledge in all domains of inquiry, including ethics, these epistemic values overlap with moral values,Footnote ¹⁸³ and arguably they can be extended to support broader values like freedom of speech.Footnote ¹⁸⁴ The further one extrapolates beyond norms directly involved in scientific inquiry, however, the more tenuous the connection with pragmatism becomes. More to the point, these epistemic values have a limited scope and cannot produce a substantive set of universal moral principles or vision of the good.Footnote ¹⁸⁵ For Dewey, philosopher Axel Honneth explains, the conception of the good as a “final or absolute end in life” in the classical tradition, “which presupposes an objective hierarchy of values, is not permissible under the conditions of reflective morality for the simple reason that criteria with a priori plausibility for evaluating forms of life are no longer available.”Footnote ¹⁸⁶

Pound asserted that law should find a balance among competing social interests, “to order the activities of men in their endeavor to satisfy their demands so as to enable satisfaction of as much of the whole scheme of demands with the least friction and waste.”Footnote ¹⁸⁷ The flaws in his proposal are obvious. Not all demands are normatively admirable or deserving of being met. “The fact that something is desired only raises the question of its desirability; it does not settle it,”Footnote ¹⁸⁸ Dewey remarked. And there is no evident way to quantify or attach relative weights to demands or interests, so it is unclear how to make trade-offs among competing demands in order to maximize aggregate satisfaction. These flaws, again, indicate a need for substantive standards.

The pragmatists answered this apparent need with a method and process: “experimental instrumentalism.”Footnote ¹⁸⁹ Dewey proposes intelligent, experimental, piecemeal reformism believing that we have the capacity to evaluate whether the results are socially desirable notwithstanding inevitable disagreement. Reformist actions—whether reforming law or using law to reform society—must be based on empirically informed, thoughtful debates over existing social and legal conditions, desired social goals, and the likely consequences of various proposed courses of action. Engaging in reforms, then observing their consequences, provides additional concrete information that helps evaluate their desirability: Was there a decrease (or an increase) in the extent of human suffering? Are people better off, and if so, in what specific ways? Are people worse off? Do we like the results all things considered? And so forth. A rich pool of existing and proposed standards of value for people to draw on for these discussions is always available. This involves a continuous process of intelligent inquiry, instrumental actions to achieve purposes, attention to consequences, evaluation of results, means, and ideals, adjustments in actions and purposes, and repeat. “Ends grow, standards of judgment are improved,” Dewey wrote. “Man is under just as much obligation to develop his most advanced standards and ideals as to use conscientiously those which he already possesses.”Footnote ¹⁹⁰ Immense complexities involving social interconnectedness, opaque multiple causation, contingency and randomness, and information limits, among other unknowns, on top of genuine disagreements over justice and the common good, entail that uncertainties cannot be eliminated. We must make a good faith effort to get it right, then get on with it. When evaluating law, “the standard is found in consequences, in the function of what goes on socially.”Footnote ¹⁹¹

A recent example of this process is the Affordable Care Act, vehemently opposed by the Republican Party for being unnecessary, too costly, and eliminating individual choice, among other objections. Studies of the consequences of the Act have shown that the rate of uninsured people dropped to the lowest levels in history, health treatment has improved, difficulty with paying medical bills has declined, and the per capita annual increase in medical costs is lower than it was before the Act was passed.Footnote ¹⁹² Certain provisions have proven so popular with the public—particularly the prohibition of denial of coverage or premium increases for pre-existing conditions—that Republicans promise to preserve them even as they pursue repeal in the name of replacing it with something better.Footnote ¹⁹³ The political back and forth will no doubt continue. Dewey understood that conflict is inevitable and he was not naïve about the failures of democracy. “The key point is how one responds to conflict. And this requires imagination, intelligence, and a commitment to solve concrete problems.”Footnote ¹⁹⁴

Experimental instrumentalism is superior to rigid adherence to fixed principles or ends, which do not easily accommodate variations and changes in circumstances over time. And the grounding, content, interpretation, and application of purported natural law principles, justice, and the common good are incessantly disputed anyway. The criticism that pragmatism disables moral authority by eliminating objective values is mistaken. That timeless, universal absolutes do not obtain is due not to pragmatism but to the limitations and boundedness of our existence—the absence of an Archimedean standpoint. Pragmatism merely recognizes this and moves forward with moral discourse as before, shorn of chimerical resort to unavailable universal propositions. Rather than engage in once-removed debates over which principles (or self-evident propositions, etc.) are the objectively correct ones, pragmatism focuses the discussion directly on the desirability of given ideals and laws and their actual social consequences.

A committed humanist, Dewey offers one substantive end that he believed would make people and society better off: “The ‘meaning’ and ‘purpose’” for all social institutions, including law, “is to set free and to develop the capacities of human individuals without respect to race, sex, class or economic status.”Footnote ¹⁹⁵ This is Dewey’s personal commitment (embraced by many in liberal societies), consistent with though not strictly derived from the epistemic values emphasized by pragmatism.Footnote ¹⁹⁶ But is not a timeless, universal value—which by pragmatist lights does not exist. Against a white supremacist, Dewey cannot invoke a natural law of human equality or universal principle of respect for all human beings.Footnote ¹⁹⁷ Instead, backed by supportive empirical data and moral arguments, he can argue that whites are not in fact superior, that racism is irrational, that one should respect other races as much as one’s own, that racism inflicts unwarranted pain on others and is socially detrimental, and so forth—engaging in a discussion with the white supremacist in hope of finding common ground on which to convince him of his error.

A realistic theory of law does not incorporate any particular vision of the good or set of moral principles. Values come into play in the realistic theory in four ways. First, it adopts the epistemic values espoused by pragmatism for acquiring truths—collective inquiry, openness to criticism and alternative views, scrutiny of supportive and contrary evidence, experimentation and attention to consequences, etc. Second, since values (like power) are central to society and law, theorists must attend to the naturalistic influences on, various uses of, and empirical consequences of values (and power) as a descriptive or positive matter—observing the facts of the matter about values. Third, theorists, social scientists, and others who utilize the theory will be guided by normative commitments about what problems to investigate and what solutions might be desirable, so values affect the application of the theory and its results have value implications. Finally, the pragmatic view that theories should be constructed in ways that enable people to deal with existing problems is itself a value orientation adopted by the realistic theory. A realistic theory of law meets this by enhancing understandings of what law is and does.