Pragmatism and Consequentialism

Abstract

Legal Pragmatism is the view that judges should decide cases in a way that is, all things considered, in the best interests of the community. It is a forward-looking theory that rejects inviolable constraints by past judicial decisions. A pragmatist judge believes that the future should not be the slave of the past. In this paper, I argue that pragmatism is an attractive view because it is an idealized form of consequentialism: pragmatism captures the most desirable features of consequentialism while avoiding consequentialism's most powerful objections. I will also argue that rule pragmatism -- a version of pragmatism that is able to respect legal rules, just as rule consequentialism is able to respect moral rules -- is a viable theory of adjudication that is consistent with traditional legal values and the rule of law.