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Pragmatism, Holism, and the Concept of Law

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Pragmatism, Holism, and the Concept of Law Pragmatism, Holism, and the Concept of Law Adam Michał Dyrda* equally, most commonplace) accusations against a cer- Abstract tain legal theory is the ‘methodological objection’ (MO). In its general form, it is as follows: When discussing O. W. Holmes’s answer to the question What constitutes the law? Morton White underlines the (MO) The discussed theory fails because it uses the fact that Holmes’s inquiry didn’t focus on developing the wrong methodology and asks the wrong questions, concept of law. White states: ‘…Holmes said little in The which precludes the theory from reaching the right Path of the Law about the notion of legal authority, perhaps (adequate) conclusions. Without putting our ques- because he was interested not in what he called a “useless tions in the right way, we cannot grasp any substan- quintessence of all legal systems” but in “an accurate anat- tial answers, i.e. such answers that (at least) could omy of one”’. Such ambition (or lack of ambition) is charac- have a claim to adequacy.1 teristic of many pragmatic enterprises in the field of jurispru- dence. However, sometimes the opposition between legal It seems, then, that for researchers who use this argu- pragmatism and other legal theories is built upon a refer- ment against a particular theory T, the theory T fails on ence to the notion of the ‘nature’ or ‘essence’ of law. Many its own grounds because it asks the wrong questions legal philosophers who aim to reveal the very ‘nature of and, thus, receives inadequate answers. However, it is law’ (or ‘the concept of law’ as H. L. A. Hart did) try to important not to simply equate inadequate answers with interpret Holmes and other pragmatists as offering a com- false answers. It may well be that the explanations pro- petitive view to their own. I will follow White’s early intu- posed by T are true, but nevertheless, these truths can ition that such a construal of the controversy is simply be assessed as falling beyond the ‘real interest’ of the wrong. Afterwards I will sketch a portrait of legal pragma- particular (legal) theory. Therefore, even true theoreti- tism in the context of White’s own inquiry and his version of cal answers can be inadequate in the sense that they are 2 ‘holistic pragmatism’; thirdly, I will present in brief the main answers to the ‘wrong questions’ (and thus irrelevant) or reasons for exploring the concept of law in the contempo- even that they are the answers to questions that have rary analytic philosophy of law. Then I will show that tradi- actually never been asked (or need not have been asked)! tionally ‘pragmatic’ and ‘analytic’ efforts in legal theory are To say ‘Sorry, but you missed the important methodo- situated on different levels of generality and conceptuality. logical point’ is to claim that the whole theoretical effort However, these efforts can be, at least to some extent, reor- made in order to answer questions has been useless. For dered under the aegis of holistic pragmatism. sure, there is nothing more frustrating for a theorist than to hear something like that! Keywords: legal pragmatism, holistic pragmatism, O.W. In such circumstances, theory T may be true, but never- Holmes, H.L.A. Hart, M.G. White theless, it would not be a theory of the right sort. To put it in another way, it would not be the theory of the thing that it pretends to be the theory of. The label is wrong; 1 The Methodological therefore, after the successful conduct of the MO, theo- ry T is compromised. Objection The methodological objection is a very popular critical move and probably the one that allows individuals to One of the most important matters in science and phi- undermine a theory at the very beginning, without mak- losophy is the way in which we formulate questions; ing any deeper research about its content. On the other hence, the object of inquiry is, at least to some extent, hand, if the basic questions are, in the eyes of a critic, implicitly suggested in every preliminary question put rightly, she/he has to examine a substantial part of asked. Thus, probably one of the most important (and, the theory more thoroughly. However, the answers giv- 1. Generally speaking, ‘adequate claims’ are ontic characteristics of things * Adjunct Professor, Department of Legal Theory, Faculty of Law, Jagiel- that are neither too narrow (and thus lacking some element or explana- lonian University, Cracow, Poland. Contact: [email protected]; tion) nor too vast (where characterisation is replete with elements that http://jagiellonian.academia.edu/AdamDyrda. I’m grateful to the are unnecessary to properly describe or explain a thing). According to organizers and the participants of the workshop on legal pragmatism at that definition, MO is primarily designed against descriptive-explanato- the IVR World Congress in Belo Horizonte (July 2013, Brazil) for their ry theories. In case of normative-evaluative theories, MO can be used comments and discussion over the main ideas included in the very pre- only partially to discredit descriptive assumptions of such theory (on the liminary draft of this article. I owe special thanks to two anonymous ref- basis that these assumptions are not the assumptions of the right kind). erees who pointed out at least the most clamant shortcomings of this It is however hard to imagine how MO could be applied against purely article. normative theories (if there are any). ELR August 2015 | No. 1 - doi: 10.5553/ELR.000034 en by a particular theory could not ever be conceived as that such situations were ‘nothing new’.3 This observa- irrevocable, solid, final answers. Any possibility of tion remains true. reaching Peirce’s “Final Opinion” shall be rather con- D. Lind has recently pointed out that some authors, like ceived as an ideal, and thus, we are allowed to give only R. Dworkin, D. Luban, P. S. Atiyah, and B. Z. Tama- preliminary answers, which surely would not be perfect- naha, attempt to undermine legal pragmatism by saying ly, ideally adequate, but may appear to be practically that it is ‘amorphous’, ‘antitheoretical’, and ‘skeptical adequate in the sense that they would stand as sufficient jurisprudence’, one that ‘languishes in indeterminacy, reasons to formulate answers, despite the awareness of depreciates the instinctive structure of legal reasoning their potential incompleteness. And such answers would and decision making, and commits a host of other juris- not only be of theoretical but also of practical impor- prudential sins’.4 Probably the most important reason tance. for such a labeling of legal pragmatism is that it is Let us say that a ‘human’ theory should aim at giving viewed as ‘result oriented or instrumental’, where answers in the most intuitive, practical sense (attempt- adherence to precedent and rules is only contingent and ing to reach the possible, practical optimum) – answers not based on principle, as far as making a decision is that could be understood and rationally discussed by always ‘instrumentally important’ for a community.5 In different parties. As C. S. Peirce stated, the main task of a similar way, R. Dworkin argues that pragmatism sup- any inquiry or investigation is ‘the settlement of (true) ports an approach to adjudication that ‘holds that judges opinion’ about reality, though humans might fail to should always decide the cases before them in a for- reach the ultimate opinion on any question ‘as long as ward-looking consequentialist style’,6 and thus, he ‘sees the human race should last’.2 A ‘true belief’ in such a pragmatism as a worrisome interpretive conception of scheme is a temporary, ‘calm and satisfactory state’ law that sacrifices principle and integrity for whatever attained when the irritation and the doubt have been outcomes would seem to be “best for the future without removed. The more practical a belief is, the more it concern for the past”’.7 I am not going to repeat Lind’s becomes a longer and a more comfortable stop on our way of defending legal pragmatism against these accusa- way to the ultimate true opinion (that would probably tions here. I will limit myself only to notice that his way never be achieved). of argument reinterprets the misunderstood claims of In the following sections, I want to deal with particular, legal pragmatists like O. W. Holmes and B. Cardozo in uncharitable criticisms of legal pragmatism. On that the light of certain background philosophical assump- ground, there arises a question about the method of con- tions. Thus, he simply shows that ‘result orientation’, ceptual analysis applied by legal pragmatists. Having ‘instrumentalism’, ‘antitheoretical character’, and so on 3 answered this question, I can focus on the holistic prag- are not exactly what these critics think them to be.8 matism understood as a general, philosophical back- Quite a similar strategy of defence was developed by S. ground for differing and prima facie inconsistent con- Haack who presented the interpretation of Holmes’s ceptions of law. position in the philosophico-historical context of its ori- gin.9 In such cases as these, the conclusion of the whole analysis is that the critics have simply misunderstood 2 How Does the Critique what is at stake with pragmatism. Unfortunately, the approach consisting of criticising Usually Go? philosophical pragmatism (both as a general movement and as a theory of a particular thinker) from an expert’s The first thing I would like to focus on is the way the point of view, and subsequently falsifying claims of legal critique of non-pragmatist thinkers against legal prag- pragmatism on the basis of such a (‘charitable’) critique, matism usually goes.
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