Law, Pragmatism, and Democracy

Law, Pragmatism, and Democracy

Law, Pragmatism, and Democracy

Law, Pragmatism, and Democracy

Excerpt

Pragmatic Liberalism and
the Plan of the Book

First there was the investigation and impeachment of President Clinton, and people said, yes, he's a crook but he's been an effective President and we should be pragmatic and offset his effectiveness against his misbehavior. Then came Bush v. Gore, where the Supreme Court handed George W. Bush the Presidency, and people said—or at least the critics of the decision, who were many, said—that the Court had acted out of an excess of pragmatism, wishing to spare the country the spectacle of a botched Presidential succession. Finally there were the September 11, 2001 terrorist attacks and in their wake people began to say that civil liberties would have to bend to pragmatic concerns about public safety. These disparate episodes (all discussed in this book) focus sharply the question of the proper role of pragmatism in law, and in government generally.

For some years now—since well before the three episodes noted in the preceding paragraph—I have been arguing that pragmatism is the best description of the American judicial ethos and also the best guide to the improvement of judicial performance—and thus the best normative as well as positive theory of the judicial role. I think I've made some good points

1. See the following books of mine: The Problems of Jurisprudence (1990); Cardozo: A Study
in Reputation
(1990); Overcoming Law (1995); The Problematics of Moral and Legal Theory, ch. 4
(1999); Frontiers of Legal Theory, chs. 2–4 (2001); Breaking the Deadlock: The 2000 Election, the
Constitution, and the Courts
, ch. 4 (2001). I am not alone in urging a pragmatic approach to

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