The pragmatic movement gave legal realism such intellectual shape and content as it had. Then pragmatism died (or merged into other philosophical movements and lost its separate identity), and legal realism died (or was similarly absorbed and transcended). Lately pragmatism has revived, and the question I address in this Article is whether this revival has produced or is likely to produce a new jurisprudence that will bear the same relation to the new pragmatism as legal realism bore to the old. My answer is no on both counts.

QUESTION: Posner's argument here is intriguing — why would a revived pragmatism fail to generate a jurisprudence analogous to legal realism? This warrants following the reasoning. XREF: This connects to the relationship between intellectual movements and their institutional/disciplinary offspring in American legal thought.

In the account I am offering (not endorsing), pragmatism, whether of the paleo or neo varieties, stands for a progressively more emphatic rejection of Enlightenment dualisms such as subject and object, mind and body, perception and reality, form and substance; these dualisms being regarded as the props of a conservative social, political, and legal order.

DEFINE: Defines pragmatism as the rejection of dualisms like subject/object, mind/body — clearly flagging this is the author's offered account, not endorsed.

This picture is too simple. The triumphs of science, particularly Newtonian physics, in the seventeenth and eighteenth centuries persuaded most thinking people that the physical universe had a uniform structure accessible to human reason. It began to seem that human nature and human social systems might have a similarly mechanical structure. This emerging world view cast humankind in an observing mold. Through perception, measurement, and mathematics, the human mind would uncover the secrets of nature (including those of the mind itself, a part of nature) and the laws (natural, not positive) of social interaction-including laws decreeing balanced government, economic behavior in accordance with the principles of supply and demand, and moral and legal principles based on immutable principles of psychology and human behavior. The mind was a camera, recording activities both natural and social and alike determined by natural laws, and an adding machine.

This view, broadly scientific but flavored with a Platonic sense of a world of order behind the chaos of sense impressions, was challenged by the Romantic poets (such as Blake and Wordsworth) and Romantic philosophers. They emphasized the plasticity of the world and especially the esemplastic power of the human imagination. Institutional constraints they despised along with all other limits on human aspiration, as merely contingent; science they found dreary; they celebrated potency

It is not that Peirce or Holmes or Nietzsche was a "Romantic" in a precise sense, if there is such a sense. It is that they wished to shift attention from a passive, contemplative relation between an observing subject and an objective reality, whether natural or social, to an active, creative relation between striving human beings and the problems that beset them and that they seek to overcome. For these thinkers, thought was an exertion of will instrumental to some human desire (and we see here the link between pragmatism and utilitarianism). Social institutions-whether science, law, or religion-were the product of shifting human desires rather than of a reality external to those desires. Human beings had not only eyes but hands as well.

DEFINE: Clarifies the pragmatic/utilitarian conception of thought as instrumental will rather than passive contemplation. XREF: Connects to the pragmatism-utilitarianism lineage explicitly named, relevant to American philosophy readers.

A related point is that law is forward-looking. This point is implicit in an instrumental concept of law-which is the pragmatic concept of law, law as the servant of human needs, and is in sharp contrast to Aristotle's influential theory of corrective justice. That theory is quintessentially backward-looking. The function of law as corrective justice is to restore a preexisting equilibrium of rights, while in Cardozo's account "[n]ot the origin, but the goal, is the main thing. There can be no wisdom in the choice of a path unless we know where it will lead .... The rule that functions well produces a title deed to recognition .... [T]he final principle of selection for judges ... is one of fitness to an end." … The "title deed" sentence is particularly noteworthy; it is a rebuke to formalist theories that require that for a law to be valid it must be "pedigreed" by being shown to derive from some authoritative source.

XREF: Contrasts Cardozo's forward-looking pragmatism with Aristotle's backward-looking corrective justice and formalist 'pedigree' theories of validity.

The realists knew what to do-think things not words, trace the actual consequences of legal doctrines, balance competing policies-but they didn't have a clue as to how to do any of these things. It was not their fault. The tools of economics, statistics, and other pertinent sciences were insufficiently developed to enable a social-engineering approach to be taken to law.

XREF: Connects to the history of legal realism and its relationship to later movements like law-and-economics, which supplied the missing quantitative toolkit. Builds on: "Newtonian physics inspired a mechanical view of human nature."

The differences between a Peirce and a James, or between a James and a Dewey, are profound. The differences among current advocates of pragmatism are even more profound, making it possible to find greater affinities across than within the "schools"-Peirce has more in common with Putnam than Putnam with Rorty, and I have more in common (I think) with Peirce, James, and Dewey than I have with Cornel West or Stanley Fish.

If truth is unattainable, the censor cannot appeal to a higher truth as the ground for foreclosing further inquiry on a subject; but the libertarian, in resisting censorship, can appeal to the demonstrated efficacy of free inquiry in enlarging knowledge. One can doubt that we shall ever attain "truth," but not that our knowledge is growing steadily.

XREF: Connects to Popperian fallibilism and pragmatic defenses of free speech; echoes Mill's argument for open inquiry in On Liberty.

Tested by the pragmatic criterion of practical consequence, these entities are remarkably elusive. Even if they exist, law has no practical means of locating them and in fact ignores them on any but the most superficial verbal level. Judges and juries do not, as a precondition to finding that a killing was intentional, peer into the defendant's mind in quest of the required intent. They look at the evidence of what the defendant did and try to infer from it whether the deed involved advance planning or other indicia of high probability of success, whether there was concealment of evidence or other indicia of likely escape, and whether the circumstances of the crime argue a likelihood of repetition-all considerations that go to dangerousness rather than to intent or free will. The legal factfinder follows this approach because the social concern behind criminal punishment is a concern with dangerousness rather than with mental states (evil or otherwise), and because the methods of litigation do not enable the factfinder to probe beneath dangerousness into mental or spiritual strata so elusive they may not even exist.

XREF: Connects to the legal realism tradition and pragmatic jurisprudence (Holmes, Pound), where law is judged by practical consequences rather than abstract doctrine.

The principle of legal liability can be redescribed without reference to metaphysical entities such as mind and causation. This redescription is an important part of the project of a pragmatic jurisprudence, although it will not please those for whom law's semantic level is its most interesting and important.

DEFINE: Defines the pragmatic jurisprudence project as redescribing legal liability without reference to metaphysical entities like mind and causation.

Pragmatism remains a powerful antidote to formalism, which is enjoying a resurgence in the Supreme Court. Legal formalism is the idea that legal questions can be answered by inquiry into the relation between concepts and hence without need for more than a superficial examination of their relation to the world of fact. It is, therefore, anti-pragmatic as well as anti-empirical. It asks not, What works?, but instead, What rules and outcomes have a proper pedigree in the form of a chain of logical links to an indisputably authoritative source of law, such as the text of the United States Constitution? Those rules and outcomes are correct and the rest incorrect. Formalism is the domain of the logician, the casuist, the Thomist, the Talmudist.

XREF: Connects to legal theory debates between pragmatism, empiricism, and textualism in constitutional interpretation.

The pragmatic approach reverses the sequence. It asks, What is the right rule-the sensible, the socially apt, the efficient, the fair rule-for oil and gas? In the course of investigating this question, the pragmatist will consult the wild animal law for what, (little) light it may throw on the question, but the emphasis will be empirical from the start. There will be no inclination to allow existing rules to expand to their semantic limits, engrossing ever greater areas of experience by a process of analogy or of verbal similitude. The tendency of formalism is to force the practices of business and lay persons into the mold of existing legal concepts, viewed as immutable, such as "contract." The pragmatist thinks that concepts should be subservient to human need and therefore wants law to adjust its categories to fit the practices of the nonlegal community.

XREF: Echoes the pragmatism of Dewey and Peirce and the legal realism of Holmes, contrasting sharply with formalism in legal theory. DEFINE: Distinguishes the pragmatic legal method from formalist analogue-driven expansion of existing concepts. Builds on: "Formalism answers legal questions through conceptual relations, not facts."

The interpretation of texts is not a logical exercise and the bounds of "interpretation" are so expansive (when we consider that among the verbal and other objects that are interpreted are dreams, texts in foreign languages, and musical compositions) as to cast the utility of the concept into doubt. Pragmatists will emphasize the role of consequences in "interpretation," viewed humbly as the use of a text in aid of an outcome. They will point out, for example, that one reason we interpret the sentence "I'll eat my hat" as facetious is that the consequences of attempting to eat one's hat are so untoward.

DEFINE: Frames 'interpretation' as an overly broad concept whose scope (dreams, foreign texts, music) undermines its usefulness.

We no longer think of statutes as typically, let alone invariably, the product of well-meaning efforts to maximize the public interest by legislators who are devoted to the public interest and who are the faithful representatives of constituents who share the same devotion. … The theory of social choice has instructed us about the difficulties of aggregating preferences by the method of voting, while the interest-group theory of politics in the version revived by economists has taught us that the legislative process often caters to the redistributive desires of narrow coalitions and, in so doing, disserves the public interest, plausibly construed.

XREF: Connects to interest-group/public choice theory rooted in economics (Stigler, etc.) and Arrow's social choice work on voting aggregation.

The main choices in "interpretive" theory that the new learning allows are either some version of strict construction or a pragmatic approach in which, recognizing the difficult and problematic nature of statutory interpretation, judges use consequences to guide their decisions, always bearing in mind that the relevant consequences include systemic ones such as debasing the currency of statutory language by straying too far from it.

DEFINE: Distinguishes two main interpretive theories in statutory interpretation: strict construction and pragmatic/consequentialist approaches.

Mention of systemic concerns should help demolish the canard that legal pragmatism implies the suppression of such concerns in favor of doing shortsighted substantive justice between the parties to the particular case. The relevant consequences to the pragmatist are long run as well as short run, systemic as well as individual, the importance of stability and predictability as well as the importance of justice to the individual parties, and the importance of maintaining language as a reliable method of communication as well as the importance of interpreting statutes and constitutional provisions freely in order to make them speak intelligently to circumstances not envisaged by their drafters.

Although professional discourse has always been predominantly formalist, most American judges have been practicing pragmatists, in part because the materials for decision in American law have always been so various and conflicting that formalism was an unworkable ideal.

An implication readers might draw from Dworkin's statement in Law's Empire that "the pragmatist thinks judges should always do the best they can for the future, in the circumstances, unchecked by any need to respect or secure consistency in principle with what other officials have done or will do." … This is an impoverished conception of pragmatism, one that merges pragmatism with act utilitarianism.

DEFINE: Distinguishes an 'impoverished' pragmatism—merged with act utilitarianism, lacking consistency-in-principle constraints—from a fuller pragmatist conception.

Dworkin is inferring judges' attitude from the rhetoric ofjudicial opinions, and this is perilous, because judges are not always candid and also because they often are not self-aware. Even if judges are consistently and deliberately deceptive, this would not impair the soundness of the pragmatic explanation of judicial behavior.

XREF: Connects to the distinction between judicial rhetoric and actual behavioral explanation, echoing Posner's pragmatism versus Dworkin's interpretive theory of law.

Dworkin is inferring judges' attitude from the rhetoric ofjudicial opinions, and this is perilous, because judges are not always candid and also because they often are not self-aware. Even if judges are consistently and deliberately deceptive, this would not impair the soundness of the pragmatic explanation of judicial behavior. Similarly, a lack of public consent would have nothing to do with the explanatory power of the pragmatic explanation. The issue of consent is in any event artificial, since judicial opinions are with rare exceptions written to be read by lawyers, not by lay people, and have in fact virtually no lay readership.

But pragmatists are not content with a vague neotraditionalism. They know it will not do to tell judges to resolve all doubts against change and freeze law as it is, let alone to return to some past epoch in legal revolution (1950? 1850?). As society changes, judges, within the broad limits set by the legislators and by the makers of the Constitution, must adapt the law to its altered environment. No version of traditionalism will tell them how to do this. For this they need ends and an awareness of how social change affects the appropriate means-how, for example, the coming of the telegraph and the telephone altered the conditions for regulating contracts. They need, in short, the instrumental sense that is basic to pragmatism.

DEFINE: Clarifies pragmatism's legal doctrine: instrumental adaptation rather than freezing law against change.

Although it is easily shown that the economic approach is neither deducible from nor completely consistent with either system of ethics, this is not a decisive objection from a pragmatic standpoint. Pragmatists are unperturbed by a lack of foundations.

DEFINE: Clarifies the pragmatist stance: they dismiss foundational incoherence as irrelevant, focusing on practical outcomes instead.

But scientistic philosophy-the attempt to construct a metaphysics, a theory of action, an ethical theory, a political theory or what have you that has the rigor and generality that we associate with the natural sciences-is not at all the same thing as social science, which is the application of scientific method to social behavior. Most pragmatists have not disbelieved in the utility of scientific method. Quite the contrary, pragmatism in the style of Peirce and Dewey can be viewed as a generalization of the ethic of scientific inquiry--open-minded, forward-looking, respectful of fact, willing to experiment, disrespectful of sacred cows, anti-metaphysical. And this is an ethic of which law needs more.

DEFINE: Distinguishes scientistic philosophy (metaphysics mimicking natural science rigor) from social science proper (applying scientific method to social behavior).

By making the concept of "objective truth" problematic, the pragmatic distrust of foundations expands the range in which metaphor and other forms of emotive argument may legitimately upset belief. In Holmes's pragmatic metaphor of the marketplace of ideas, competing theorists, ideologues, and reformers hawk their intellectual wares. Knowing how important persuasion is in the market for goods and services, we should not be surprised to find it playing a big role in the market in ideas as well. We should expect change in law to be related not only to politics and economics and not only to the correction of error, but also to new slogans, metaphors, imagery, and other means of bringing about changes in perspective.

XREF: Connects to Holmes's marketplace of ideas and broader pragmatic traditions in American legal thought.

Reviewing my eight items, we can see that Cardozo had a solid pragmatic grasp of the weakness of formalism (point 3) and a good pragmatic theory of adjudication (point 6), but free speech was not an issue about which he was much concerned (point 1); the critique of intention and causation (point 2) was less developed than it is today and certainly less salient in Cardozo's thinking; he was uninterested in interpretation and unrealistic about the legislative process (point 3); and he was innocent of the economic approach to law as a self-conscious methodology (point 6)-it did not exist in 1921, or indeed until half a century later-but like most good common law judges he had intuitions of it.