Inferentialist Pragmatism and Dworkin’s “Law as Integrity”

Abstract

The paper aims at justifying an interpretation of Dworkin’s theory of Law as Integrity that brings it closer to philosophical pragmatism despite his rejection of legal pragmatism. In order to achieve this aim, this work employs a classification of philosophical commitments that define pragmatism in a broad and in a narrow sense and shows that legal pragmatism follows the main thinkers of pragmatism in the narrow sense in committing to instrumentalism. The attribution of a pragmatist character to Dworkin’s theory of law rests on the idea that the adoption of a commitment to instrumentalism is not implicated by its adoption of other pragmatist commitments.

1. Introduction

The widely known and historical polysemy of the term ‘pragmatism’, in its philosophical theoretical use, finds a match in its use in the theory of law. Nevertheless, a conception in particular has been standing out and getting more space in discussions in the legal field, namely the one involved in the debates between Ronald Dworkin and self-titled pragmatist Richard Posner. Such a conception of decisionist nature seems to claim as its remote antecedent two tenets of Oliver Wendell Holmes’) philosophy of law: the rejection of abstract speculation, especially moral ones, as well as the conscious decision to refer the contents of judicial decisions to its predictable social consequences. Its present-day antecedent may be found in Richard Rorty’s version of pragmatism that sees anti-theoretical and anti-systematic commitments as necessary consequences of conferring primacy to practice (in the sense of social practices) and of anti-essentialist thought.

In an article called ‘The banality of pragmatism and the poetry of justice’, Rorty predictably restates the affinity between his version of neo-pragmatism and Posner’s philosophy of law. However, he surprises us by also enlisting Dworkin into the ranks of the legal (neo) pragmatism, despite his explicit rejection of what he conceives as legal pragmatism.

This paper intends to make a similar move bringing Dworkin closer to a non-rortyan version of contemporary philosophical pragmatism. The argument rests on the idea that Robert Brandom’s inferencialist reading of pragmatist theoretical commitments can serve as the basis for a conception of contemporary philosophical pragmatism which is, simultaneously, anti-essentialist and based on the primacy of practical, without being for this reason anti-theoretical and anti-systematic.

The reasonableness of this effort to bring them closer is justified, among other things, by the similarity between what Brandom calls historical-expressive rationality – a conception of rationality originally Hegelian but properly stripped of its metaphysical and teleological features by means of the resources of an inferencialist linguistic pragmatics – and the Dworkian demand for integrity that guides the decisions of judges as an independent ideal, according to an interpretation of legal social practices that shows them in their best light. The affinity between philosophical pragmatism and a rationalist, cognitivist, theory of law such as ‘Law as Integrity’ might perhaps allow the extension of the expression ‘legal pragmatism’ even beyond its already wide and vague limits.

2. Dworkin and Legal Pragmatism

The main difficulty in devising an argument that brings Dworkin’s law as Integrity closer to philosophical pragmatism, and consequently in developing a sense of legal pragmatism that both fits his theory of law and is conceivable as an extension or application of philosophical pragmatism to the legal field, is Dworkin’s explicit rejection of legal pragmatism. Even recognising that legal pragmatism shares the merit of being an interpretive theory of law with his own conception, and therefore is superior to semantic theories of law such as legal positivism, he claims that if legal pragmatism is right, his own theory of law is wrong and vice versa, that they are opposite theories.

The awkwardness of this situation is that, at the same time, it is easy to spot some theoretical commitments typical of philosophical pragmatism in his theory of law and hard to miss the aversion and critical stance adopted towards the instrumentalism characteristic of both legal pragmatism and classical American pragmatism.

The strategy – but in no way the arguments – adopted here is recognisably a Rortyan one: to broaden the scope of philosophical pragmatism in order to include the theoretical commitments of classical pragmatism as well as the accomplishment of other philosophers that share some of these commitments, but not necessarily all of them. It is also Rortyan the strategy of identifying Dworkin’s criticism of legal pragmatism with the criticism of its crass instrumentalism. As will be seen ahead, it is this theoretical commitment to instrumentalism that characterises the distinction between pragmatism in broad and narrow sense.

One cannot agree with Rorty, however, when he claims that:

Dworkin’s polemics against legal realism appear as no more than an attempt to sound a note of Kantian moral rigorism as he continues to do exactly the sort of thing the legal realists wanted done.

or when, in an attempt to make the interpretation above plausible, he claims that:

For myself, I find it hard to discern any interesting philosophical differences between Unger, Dworkin and Posner; their differences strike me as entirely political, as differences about how much change and what sort of change American institutions need.

Seeing Dworkin’s theory of law as an attenuated or disguised form of legal realism, is to ignore the authority of past over future applications of legal concepts, central to the idea of integrity.

Also, understanding the disagreement between Dworkin and self-titled legal pragmatists not as a philosophical difference concerning what the law is – understood as social practice – but as a disagreement about political preferences, however broadly one takes the meaning of the term ‘political’, amounts to acknowledge a radical separation between what the law is and what the law ought to be, something entirely incompatible with Dworkin’s criticism of legal positivism. In fact, it is the rejection of this separation what makes both Law as Integrity and legal pragmatism examples of interpretive theories of law, as opposed to legal positivism, understood as victim of the semantic sting.

If the mentioned strategy works, it will be allowed to say that, although Dworkin is not a legal pragmatist in the known and time-honored sense of Holmes (2013) or Posner (2010), he is in some sense also a legal pragmatist because his theory may also be seen as an application to law of pragmatist philosophical commitments.

3. Two Senses of Philosophical Pragmatism

The first step, then, is to discern the different philosophical commitments that shape pragmatism in its broader sense and in its narrower, classical American, sense.

Brandom’s analytic classification of pragmatist commitments is the point of departure. He distinguishes pragmatism, narrowly thought, ‘[…] as a philosophical school of thought centered at evaluating beliefs by their tendency to promote success at the satisfaction of wants’, whose emblematic adherents are Peirce, James, and Dewey, from pragmatism in a broader sense:

[…] a movement centered on the primacy of the practical, initiated already by Kant, whose twentieth century avatar include not only Peirce, James and Dewey, but also the early Heidegger, the latter Wittgenstein, and such figures as Quine, Sellars, Davidson, Rorty and Putnam.

He considers the narrow sense of Pragmatism, and its commitment to an instrumental order of explanation of belief and truth, to be a way of working out the commitments that constitute pragmatism in a broader sense.

Pragmatism, in the broadest possible sense, means to him giving general explanatory pride of place to practices and the practical. This idea unfolds, in a more determinate way, in a corresponding commitment to the explanatory priority of pragmatic theorising over semantic theorising. The idea that semantics must answer to pragmatics is a pragmatist one in a distinctive sense. The meaning Brandom attaches to these terms is broad:

[…] pragmatics is the systematic or theoretical study of the use of linguistic expressions, and semantics is the systematic or theoretical study of the contents they express or convey.

According to Brandom, this commitment implies, even for the philosophers that wrote before the linguistic turn, an understanding of language as a kind of doing, as a practice or activity. The primary focus on the order of linguistic explanation is on the activity of saying, as opposed to focusing on what is said, the meaning or content.

To Classical American Pragmatism, this theoretical move was also compatible with, if not required by, their resolute determination to accommodate the discoveries and contributions of Darwinian evolutionism in a naturalist philosophical conception of rational (linguistic) creatures as continuous with the rest of living nature (and even inorganic nature, as in the even more radical reconciliation sought by Peirce in his evolutionary cosmology).

Brandom attributes another pragmatist commitment, derived from the previous one, to the philosophers mentioned above: ‘the point of talking about the content expressed or the meaning possessed by linguistic expressions is to explain at least some features of their use’.

This is a commitment to a methodological Pragmatism: seeing semantic theorising as answering to pragmatics by taking pragmatic theory as it’s explanatory target. Taking the success of the theoretical semantic enterprise to be assessed according pragmatic criteria of adequacy allows the sorting out of genuine semantic theories from others on the basis of it explaining or not a central feature of linguistic practice.

Another pragmatist commitment derived from the explanatory primacy of the practical, another way of making semantics answer to pragmatics, is semantic pragmatism: ‘[…] the view that it is the way practitioners use the expressions that makes them mean what they do’. This commitment imposes a methodological requirement on semantic theorising: when one

[…] associates with expressions some semantic relevant whatsis as its content and meaning, she undertakes an obligation to explain what it is about the use of that expression that establishes in practice the association between it and the semantically relevant whatsis.

Semantic pragmatism, although related to, is different from methodological pragmatism. But the difference is subtle. The methodological pragmatist

[…] looks at the explanation of the practice of using expressions, the subject of pragmatics, in terms of the contents associated with those expressions, the subject of semantics. The semantic pragmatist looks at the explanation of the association of contents with expressions in terms of the practice of using those expressions. While those explanations may be facets of the same story, they need not be.

A further way in which the primacy of the practical unfolds is the commitment to the explanatory priority of ‘Knowing how’ over ‘knowing that’ named fundamental pragmatism by Brandom. According to it, the intelligibility of explicit theoretical beliefs depends on the existence of a background of implicit practical abilities. It is the opposite of the platonic intellectualist strategy of explaining practical abilities in terms of the grasp of some principles, some privileged bits of ‘knowing that’. Brandom points out that taking the capacity to entertain beliefs and acquire knowledge as parasitic on capacities to do things more primitive than thinking, believing, and saying, in the sense that it is not yet one of these, is something we find even in the older members of the brief list of philosophers mentioned earlier. The fact that we can find it in the first Heidegger as well as in Dewey, for example, also supports the attribution of this commitment to philosophers on both sides of the analytic-continental gap, reinforcing the idea of a wider sense of pragmatism than the one defined by the theoretical commitments undertaken by the classical American triumvirate.

This fundamental pragmatism take its force, in part, from its ability to present itself simultaneously as a determination and clearer expression of the fundamental pragmatic insight according to which practice takes explanatory precedence.

But its force comes, in part, from its ability to solve the problem of infinite regress characteristic of the attempt to start to explain believing (a dimension of linguistic practice) in terms of explicit ‘know that’ instead of implicit ‘know how’.

Brandom shows that the heart of the problem is also the indication of its solution: the inferential nature of beliefs. According to him

Beliefs would be idle unless the believer could at least some times tell what followed from them (what else they committed the believer to) and what was incompatible with them.

However, sorting out among beliefs which ones are compatible or incompatible with some other belief, and which ones are consequences of it, is at the same time something that can be done right or wrong and something for which a finite explicit regulation cannot be given. For if there are explicit rules to follow in correctly sorting incompatibilities and inferential consequences, these last rules could be rightly or wrongly followed, demanding a new set of explicit rules located at a superior level, and so forth.

The solution to this problem is agreeing with Wittgenstein and the other pragmatists on the inevitable bending of the shovel: ‘[…] distinguishing the potential beliefs that are incompatible with a given belief, and those that are its inferential consequences is a practical skill or ability: a kind of know how’.

This commitment is worked out in different ways by different philosophers. Brandom’s strategy involves developing a neo-Hegelian account of the expressive function of logic, which encompasses acknowledging the existence of material inferences, transitions, and incompatibility relations between propositions and between assertions which are good not in virtue of its form, but of its content.

 These material inferences, a kind of content related inferential license, are in turn instituted by the activity of practically assessing the linguistic performances of others, the activity of treating a transition as good or bad, of taking a move in the language game to be good or bad (not of saying that it is).

The fourth and final commitment Brandom attributes to pragmatism in the broad sense is a commitment to specifying linguistic practices in terms of some sort of normative status, to employ normative vocabulary in pragmatic theory. Commitment to this normative pragmatics seems to him unavoidable, if one wants give an account of the practice of using linguistic expressions that

I) [is] to be explained by semantics, according to methodological pragmatism; II) establish the association of linguistic expressions with semantic interpretants, according to semantic pragmatism; and III) constitute the practical know how against the background of which alone the capacity to know believe or think that can be made intelligible, according to fundamental pragmatism.

This commitment was already undertaken by Kant. Brandom sees as one of the most fundamental Kantian insights the idea that what distinguishes the activities of rational beings, judgments, and actions, from the behaviour of non-rational creatures is that judgments and actions are things one is responsible for. They involve, in an essential way, the undertaking of commitments. 

According to this interpretation, Kant takes judging and acting as discursive activities, since it consists in the applications of concepts and sees concepts as rules that define to what one has committed oneself in judging and acting the way he did. These rules make possible to assess the correction of judgments and actions in terms of facts and intentions, respectively.

Hence, Brandom takes Kant’s account of conceptual contents as aimed at establishing conditions of correctness to our practical performances of acting and asserting. That makes him a methodological pragmatism whose account of discursive practices employs normative vocabulary.

A contemporary version of that commitment to normative pragmatics can be seen in Frege’s distinction between force and content. As Brandom reads him, for the young Frege, claiming is associating a pragmatic assertional force with a sentence. He also takes assertional force as a kind normative assessment, since he sees asserting a sentence as taking it to be true, and truth to be a form of correctness.

Something along the same lines can be said of the latter Wittgenstein on Brandom’s account. One of the central subjects of Philosophical Investigations is the existence of norms implicit in practices. That is why, for Wittgenstein as well, to take a linguistic performance to have certain meaning is committing oneself to the correctness and incorrectness of some uses of the expression. To grasp a concept or intention is to commit to norms implicit in practice that define the correct use of the first and the fulfillment of the second.

Brandom sees the later Wittgenstein’s version of the regress argument as qualifying him as a fundamental pragmatism, as well as a normative pragmatism. His argument about the necessary end of interpretations (the name he gives to a rule to apply or follow a rule) concludes with the acknowledgement that norms explicit in the form of rules can only be understood against a background of norms implicit in practices.

While the first three commitments that define the three more specific notions of pragmatism above may be easily applied to Classical American Pragmatism, it seems that normative pragmatism cannot be reconciled with their naturalistic approach to semantic and pragmatic theorising. This apparent impossibility emerges, at first sight, from the difficulty of naturalistic theoretical enterprises in reconciling the existence of a normative dimension implicit in linguistic social practices with the idea that this same practices are in continuity with the doings of other creatures in nature. At a first glance, it may appear hard to run this normative dimension together with the notion that the difference between sapient creatures and sentient ones is a matter of degree, not of their nature. For, how would it be possible to recognise the doings of sentient creatures as normatively structured and responsive to norms?

But this is not the case. In fact, as Brandom reads the classical American pragmatist movement, this reconciliation is precisely the enterprise in which they were involved. They showed it is possible to acknowledge that the specification of social practices needed to work out the commitments to methodological, semantic, and fundamental pragmatism requires the employment of normative vocabularies – talk about commitments and about correctness and incorrectness of performance – while searching for a naturalist strategy to understand the working of normative assessments.

 Brandom understands classical pragmatists as pragmatists in all the senses discerned above. The explanatory priority they give to habits, practical skills, and abilities qualifies them as fundamental pragmatists. Their methodological pragmatism is manifest in their taking the point of talking about what we mean or believe – namely, semantic talk about meaning and content – to be the clarification of what we do, of our habits, of our practices of solving problems, and seeking goals. They are also semantic pragmatists since they explain the meaning of utterances and the content of beliefs in terms of the roles of those utterances and beliefs play in social practices. Brandom aligns them alongside Kant, Frege, and Wittgenstein as endorsing a normative pragmatics, what in conjunction with their fundamental pragmatism implies their being also normative pragmatists.

What makes it sometimes hard to see is the exclusively instrumental account they give of the norms that structure our cognitive practices. According to Brandom, classical pragmatism acknowledges only instrumental norms structuring human cognitive practices.38 Instrumental norms, in this sense, are assessments of performances as correct or incorrect in terms of their contribution to the successful achievement of goals.

This is the kind of norms they see as implicit in discursive (conceptual) practice and, because of this, they are also the norms their semantic pragmatism treats as the ultimate source of specific semantic explicit normative assessments such as truth assessments. The result is a conception of truth in terms of usefulness and a corresponding understanding of the contents of utterances and intentional states in terms of their contribution in getting what one wants. This line of thought allows Brandom to describe Peirce, Dewey, and James as instrumental normative pragmatists.

This description, however, is far from consensual among contemporary pragmatists. Some of them, like Haack and Putnam, reject Brandom and Rorty’s attribution of instrumentalism to classical American pragmatism as an error of interpretation. It must be acknowledged that they are right concerning Peirce. Although his pragmatic maxim is formulated in a way that, if considered apart from his other theoretical concerns, allows an instrumentalist reading, the association of Peirce’s conception of truth as idealised justification with his recognition of truth as a goal of inquiry certainly ends the dispute.

Attempts to eschew attributions of instrumentalism to James and Dewey, however, are not so successful. Some specialists in the classical American pragmatism have been going to some pains to reject the attribution of instrumentalism to James and Dewey. Regarding Rorty’s and Brandom’s instrumentalist reading of the classical pragmatists’ account of norms structuring linguistic social practices – and therefore the correction of performances – Putnam, in his response to an earlier version of Brandom’s paper discussed here, says that:

[…] the fact remains that serious students of pragmatism have spent almost a century rebutting the sort of travesty of what the classical pragmatists thought that Brandom relies on, and it must not be allowed to go unrebutted now.

He then argues that, since the beginning of his philosophical theorising,

Peirce insisted that the interest that drives pure scientific inquiry is utterly different from the interests that drive ordinary practical inquiry. […] Moreover, as early as Peirce’s famous ‘The Fixation of Belief ’, the interest that drives scientific inquiry is identified with the interest in having one’s beliefs fixed by ‘an external permanency’, by ‘nothing human’. In short, it is the aims of pure science (which are sui generis, in referring to the indefinitely long run) that Peirce has in mind here (as elsewhere), and not the wants of the agent (unless what the agent wants is truth).

Concerning Peirce, these considerations are hard to reject. The arguments he raises against instrumentalist central features in James’ pragmatism, however, are less convincing. The alluded fact that James speaks of ‘agreement with reality’ and ‘correspondence’ throughout his work loses much of its force when supplemented, as it were, by the consideration that this notion is in itself in need of explanation, and by the kind of explanations he provided. Putnam, himself, implicitly recognises this when he says that ‘James also thinks that what kinds of contact with realities will count as “fruitful” depends on our “aesthetic and practical nature”’.

Putnam’s way to deflate the instrumentalist aura of these considerations is to run it together with realismoriented quotations such as these:

Reality is in general what truths have to take account of; and the first part of reality from this point of view is the flux of our sensations. Sensations are forced upon us, coming we know not whence. Over their nature, order and quantity we have as good as no control.

But then, again, the ‘cash value’ of James’ use of the realist vocabulary of correspondence to address the correction and validity of social practices of enquiry betrays Putnam’s aim of avoiding attributions of instrumentalism to James’ pragmatism. The use of criteria such as ‘interests’ in the selection of the sensations makes it clear:

[…] we have a certain freedom in our dealings with these elements of reality, and that in particular which [of our sensations] we attend to, note, and make emphatic in our conclusions depends on our interests; and according as we lay the emphasis here or there, quite different formulations of truth result. We read the same facts differently.

This swinging back and forth, between apparent realist remarks and its instrumentalist specification, is interpreted by Putnam as proof that ‘[…] James rejects both the view that agreement with reality isn’t required at all for truth (or isn’t a meaningful notion) and the Peircean view that our convergence to certain beliefs will be forced on us “by nothing human”.’ The neopragmatist, then, expects the rejection of Brandom’s instrumentalism depiction of the norms implicit in practices, in James’ Pragmatism, to follow from the conclusion above.

However, even if one considers the quotations Putnam selected as highly representative of James’ position, and supportive of this last remark, she or he can still disagree with the conclusion he draws: the norms implicit structuring linguistic social practices and the correction of performances in James thought cannot be instrumental in nature. These quotations may as well support the idea that, for James, although sensory experience, broadly construed, institute certain limits to inquiry, the bits of experience that become candidates to selection are made so guided by practical and aesthetic considerations. How one cuts reality in its joints, then, would be guided by human interests, and true knowledge resulting from inquiry could only be so if, at least holistically, directed at these practical goals.

Suzan Haack, in her paper Pragmatism, Old & New, also intends to mitigate the instrumentalist aspects of James’ pragmatism. Her conclusions, however, are much more ambiguous and nuanced than Putnam’s. Haack interprets James as taking Peirce’s pragmatic maxim as the center of his own version of pragmatism. However, the idea of identifying the meaning of a concept with the consequences for conduct of the affirmation or denial of the concept led them to different paths:

[…] while Peirce’s philosophy matured in a logical and realist style, James’s evolved in a more psychological and nominalist vein. Moreover, unlike Peirce, James thought philosophy would do well to go round Kant, rather than through him; he was more influenced by the British empiricists, and dedicated his Pragmatism to John Stuart Mill.

She points out that this becomes progressively clear as the mature and realist Peirce starts to get uneasy with the encouragement the formulation of the maxim gives to completely subordinating knowing to doing. It contrasts with

James’s readiness to construe ‘the consequences of a belief’ in a way that includes not only the consequences of the truth of the proposition believed, but also the consequences of the person’s believing it.

Haack sees James’ interpretation of the pragmatic maxim as influencing the subsequent development of his defense of the will to believe, with its corollary that beliefs that cannot in principle be verified or falsified – like religious ones – may be validated by its effect in one’s life. Although it might be the case that James insistence on the separation of his pragmatism from the will to believe – on the basis that the former concerns the policy of believing while the latter concerns the character of truth – points to his rejection of a strong instrumentalism, Haack thinks he was not able to keep them apart:

“For if it [the pragmatic maxim] is construed as tying meaning to the pragmatic consequences of a proposition’s being true, the pragmatic maxim would undermine the doctrine of the Will to Believe; while if it is construed as tying meaning to the pragmatic consequences of a proposition’s being believed, the pragmatic maxim and the Will to Believe really do blur into each another”.

This blurring can be seen as a strong reason in favour of the attribution of instrumentalism to his philosophy, and it emerges frequently when the pragmatist addresses the concept of truth in Pragmatism:

Theories thus become instruments, not answers to enigmas, in which we can rest (p. 53); The practical value of true ideas is thus primarily derived from the practical importance of their objects to us (p. 203); […] ideas […] become true just in so far as they help us to get into satisfactory relation with other parts of our experience (p. 58); The true is the name of whatever proves itself to be good in the way of belief, and good, too, for definite, assignable reasons. Surely you must admit this, that if there were no good for life in true ideas, or if the knowledge of them were positively disadvantageous and false ideas the only useful ones, then the current notion that truth is divine and precious, and its pursuit a duty, could never have grown up or become a dogma (p. 76) [..] truth becomes a habit of certain of our ideas and beliefs in their intervals of rest from their verifying activities (p. 222); ‘The true,’ to put it very briefly, is only the expedient in the way of our thinking, just as ‘the right’ is only the expedient in the way of our behaving. Expedient in almost any fashion; and expedient in the long run and on the whole of course; for what meets expediently all the experience in sight won’t necessarily meet all farther experiences equally satisfactorily.

Haack considers that the only available resource for weakening the impression of strong instrumentalism emanating from James definitions of theory and of truth rests in his radical empiricism. In addition, she sees it as the result of a holistic turn in the concept of experience that accommodates both the notion of ‘ideas’ as a part of experience, and experience as a continuous, endless, self-correcting enterprise: ‘Experience has ways of boiling over, and making us correct our present formulas’. She thinks that ‘The robustness of James’s response crucially depends on his keeping his account firmly anchored in the long run of experience’. However, James’ nominalist and verificationist preference limits the success of this interpretative strategy:

[…] his success in this is at best limite