Cardozo Not Holmes, Fallibilism Not Skepticism, Pragmatism Not Legal Realism

Abstract

Philosophical pragmatism, like American Legal Realism, has various strains but the most characteristic ones are motivated by philosophical concerns different from the intellectual concerns that motivated Legal Realism. Legal Realism reacted to classical legal thought, pragmatism reacted to Cartesianism. While there may be some parallels between classical legal thought and Cartesianism – and hence possibly some between schools of thought reacting to each – classical legal thought and Cartesianism occupy two different planes. The battle between classical legal thought and American Legal Realism is internecine. Philosophical pragmatism bears on that fight more globally. If pragmatist philosophical methods and tenets bear on law, legal theory, and legal practice, it will bear on both classical legal thought and American Legal Realism, the objects of both those schools of thought. Philosophical pragmatism draws our attention to the significance of social practices of all kinds. It does not advocate any one way of construing a social practice; indeed, that sort of methodological unitarianism would be inconsistent with the pragmatist approach to understanding. What pragmatism teaches those interested in law and legal practice is that legal theory is not prior to legal practice; and that legal practices themselves should be the point of departure for giving any more generalized account of how the practice works.Most previous legal scholarship on law and pragmatism misses the point about philosophical pragmatism's commitment to fallibilism rather than skepticism, and therefore fails to consider the significance of this shift for using pragmatism to understand legal practices, especially adjudication. This is highly evident in the conventional treatment of Oliver Wendell Holmes Jr and Benjamin Cardozo as both pragmatists. Using a representative decision of each, I argue that Holmes is more a radical skeptic than a pragmatist, while Cardozo works in true pragmatist fashion.