When discussing O. W. Holmes’s answer to the question What constitutes the law? Morton White underlines the fact that Holmes’s inquiry didn’t focus on developing the concept of law. White states: ‘…Holmes said little in The Path of the Law about the notion of legal authority, perhaps because he was interested not in what he called a “useless quintessence of all legal systems” but in “an accurate anatomy of one”’. Such ambition (or lack of ambition) is characteristic of many pragmatic enterprises in the field of jurisprudence. However, sometimes the opposition between legal pragmatism and other legal theories is built upon a reference to the notion of the ‘nature’ or ‘essence’ of law.
Many legal philosophers who aim to reveal the very ‘nature of law’ (or ‘the concept of law’ as H. L. A. Hart did) try to interpret Holmes and other pragmatists as offering a competitive view to their own. I will follow White’s early intuition that such a construal of the controversy is simply wrong. Afterwards I will sketch a portrait of legal pragmatism in the context of White’s own inquiry and his version of ‘holistic pragmatism’; thirdly, I will present in brief the main reasons for exploring the concept of law in the contemporary analytic philosophy of law. Then I will show that traditionally ‘pragmatic’ and ‘analytic’ efforts in legal theory are situated on different levels of generality and conceptuality. However, these efforts can be, at least to some extent, reordered under the aegis of holistic pragmatism.
1. The Methodological Objection
One of the most important matters in science and philosophy is the way in which we formulate questions; hence, the object of inquiry is, at least to some extent, implicitly suggested in every preliminary question asked. Thus, probably one of the most important (and, equally, most commonplace) accusations against a certain legal theory is the ‘methodological objection’ (MO). In its general form, it is as follows:
(MO) The discussed theory fails because it uses the wrong methodology and asks the wrong questions, which precludes the theory from reaching the right (adequate) conclusions. Without putting our questions in the right way, we cannot grasp any substantial answers, i.e. such answers that (at least) could have a claim to adequacy.
It seems, then, that for researchers who use this argument against a particular theory T, the theory T fails on its own grounds because it asks the wrong questions and, thus, receives inadequate answers. However, it is important not to simply equate inadequate answers with false answers. It may well be that the explanations proposed by T are true, but nevertheless, these truths can be assessed as falling beyond the ‘real interest’ of the particular (legal) theory. Therefore, even true theoretical answers can be inadequate in the sense that they are answers to the ‘wrong questions’ (and thus irrelevant) or even that they are the answers to questions that have actually never been asked (or need not have been asked)! To say ‘Sorry, but you missed the important methodological point’ is to claim that the whole theoretical effort made in order to answer questions has been useless. For sure, there is nothing more frustrating for a theorist than to hear something like that!
In such circumstances, theory T may be true, but nevertheless, 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; therefore, after the successful conduct of the MO, theory T is compromised.
The methodological objection is a very popular critical move and probably the one that allows individuals to undermine a theory at the very beginning, without making any deeper research about its content. On the other hand, if the basic questions are, in the eyes of a critic, put rightly, she/he has to examine a substantial part of the theory more thoroughly. However, the answers giv en by a particular theory could not ever be conceived as irrevocable, solid, final answers. Any possibility of reaching Peirce’s “Final Opinion” shall be rather conceived as an ideal, and thus, we are allowed to give only preliminary answers, which surely would not be perfectly, ideally adequate, but may appear to be practically adequate in the sense that they would stand as sufficient reasons to formulate answers, despite the awareness of their potential incompleteness. And such answers would not only be of theoretical but also of practical importance.
Let us say that a ‘human’ theory should aim at giving answers in the most intuitive, practical sense (attempting to reach the possible, practical optimum) – answers that could be understood and rationally discussed by different parties. As C. S. Peirce stated, the main task of any inquiry or investigation is ‘the settlement of (true) opinion’ about reality, though humans might fail to reach the ultimate opinion on any question ‘as long as the human race should last’.2 A ‘true belief’ in such a scheme is a temporary, ‘calm and satisfactory state’ attained when the irritation and the doubt have been removed. The more practical a belief is, the more it becomes a longer and a more comfortable stop on our way to the ultimate true opinion (that would probably never be achieved).
In the following sections, I want to deal with particular, uncharitable criticisms of legal pragmatism. On that ground, there arises a question about the method of conceptual analysis applied by legal pragmatists. Having answered this question, I can focus on the holistic pragmatism understood as a general, philosophical background for differing and prima facie inconsistent conceptions of law.
2. How Does the Critique Usually Go?
The first thing I would like to focus on is the way the critique of non-pragmatist thinkers against legal pragmatism usually goes. There are actually a few ways to defy legal pragmatism. The first one is to undermine its philosophical background as, in the least, inaccurate. One must be perfectly acquainted with the philosophy of pragmatism to follow that line of thought. In fact, critics are often only generally aware of what such thinkers as W. James, C. S. Peirce, G. H. Mead, J. Dewey, and others have said on the matter. Such critics use maxims and epigrams rather than arguments and do not care whether their own interpretations fulfil the socalled charity principle. That is why the history of the critique of philosophical pragmatism (and its counterparts like legal pragmatism) is a story of misinterpretations. Significantly, W. James observed a long time ago that such situations were ‘nothing new’. This observation remains true
D. Lind has recently pointed out that some authors, like R. Dworkin, D. Luban, P. S. Atiyah, and B. Z. Tamanaha, attempt to undermine legal pragmatism by saying that it is ‘amorphous’, ‘antitheoretical’, and ‘skeptical jurisprudence’, one that ‘languishes in indeterminacy, depreciates the instinctive structure of legal reasoning and decision making, and commits a host of other jurisprudential sins’. Probably the most important reason for such a labeling of legal pragmatism is that it is viewed as ‘result oriented or instrumental’, where adherence to precedent and rules is only contingent and not based on principle, as far as making a decision is always ‘instrumentally important’ for a community. In a similar way, R. Dworkin argues that pragmatism supports an approach to adjudication that ‘holds that judges should always decide the cases before them in a forward-looking consequentialist style’, and thus, he ‘sees pragmatism as a worrisome interpretive conception of law that sacrifices principle and integrity for whatever outcomes would seem to be “best for the future without concern for the past”’.
I am not going to repeat Lind’s way of defending legal pragmatism against these accusations here. I will limit myself only to notice that his way of argument reinterprets the misunderstood claims of legal pragmatists like O. W. Holmes and B. Cardozo in the light of certain background philosophical assumptions. Thus, he simply shows that ‘result orientation’, ‘instrumentalism’, ‘antitheoretical character’, and so on are not exactly what these critics think them to be. Quite a similar strategy of defence was developed by S. Haack who presented the interpretation of Holmes’s position in the philosophico-historical context of its origin. In such cases as these, the conclusion of the whole analysis is that the critics have simply misunderstood what is at stake with pragmatism.
Unfortunately, the approach consisting of criticising philosophical pragmatism (both as a general movement and as a theory of a particular thinker) from an expert’s point of view, and subsequently falsifying claims of legal pragmatism on the basis of such a (‘charitable’) critique, is rather rare. Usually10 the objection takes the following direction. As indicated above (in the case of Dworkin and Luban), one says that legal pragmatism is simply wrong, as it misses the point of legal theorising, that is, a careful analysis of basic legal concepts (this is a version of the MO argument), which would eventually reveal the true ‘nature’ of law (a kind of ‘substantial argument’). By making such statements, critics try to present substantial arguments, as well as the MO against legal pragmatism, usually without any deeper knowledge of legal pragmatism’s rationale, namely, its philosophical foundations and its proper methodology.
In the above-mentioned critiques, especially of Luban and Dworkin, the MO argument and substantial arguments are mixed together (and they are surely linked: substantial claims are strictly related to the assumed methodological theses, because, I suppose, assumed methodology circumscribes the scope of possible questions and limits, or otherwise underdetermines, a possible understanding of a theory). Lind tries to defend legal pragmatism by showing that substantial points have been misunderstood by the critics, which eventually shows that the methodological stance of these thinkers towards legal pragmatism is wrong. Such a way of defending legal pragmatism is fair but, to my mind, also too extensive and wearisome. I think that it is much easier to formulate the argument against prejudiced critics the other way around, i.e. firstly, to describe the basic methodological stance of legal pragmatism and then, secondly, to compare it with the methodology assumed by critics.
Such an argument would be more beneficial and universal, since it could be used not only against certain methods of critiquing (that are based, amongst others, on substantial arguments) but against all theories that seem to reach different substantial claims by assuming (at least prima facie) quite different methodologies. This way of arguing is, to some extent, implicit in what S. Haack or B. Leiter has been writing recently on legal pragmatism (realism). This would also allow us to show, by detailed analysis of theories compared, that a clarification of present misunderstandings can also lead to reconcile them (which were at first glance so different).
The pivotal problem is as follows: what is the meaning of conceptual analysis or concept explanation in legal pragmatism and other theories of law? Moreover, does legal pragmatism seek what all the apostles of general jurisprudence try to find: the ‘essence’, the ‘nature’, and the ‘concept of law’? The answer is surely negative, but critics (usually, but not always, apostles of analytical, general jurisprudence) wrongly assume that legal pragmatism attempts to answer such questions, and much of their writings (Hart’s argument against legal realism is a prime example here) are devoted to showing that legal pragmatism is an inadequate theory of law just because it cannot solve definitely general, conceptual questions which would eventually trigger essentialist answers (although I think that the general ‘essentialist objection’ against all general-jurisprudential efforts is not valid in each and every case).
The situation in which legal pragmatism, notably represented by Holmes or Cardozo, is placed by uncharitable critics resembles the way in which the philosophical pragmatism of James, for instance, was criticised by G. E. Moore and B. Russell, who actually thought that James had been trying to elaborate on ‘truth’ as a concept (and was willing to propose a synonym for the word ‘truth’), whereas, on the contrary, James ‘saw himself as an inquirer into the motives of […] truth-claimers, an inquirer into the causes of beliefs, just as he saw himself as an inquirer into the sources or causes of religious feelings in the Varieties’.
The assumption that Holmes and other legal pragmatists tried to answer the same questions about law that analytic legal philosophers habitually ask has led critics like Hart or Dworkin completely astray. Just as James was not concerned with finding a synonym for ‘truth’, Holmes was not interested in presenting the analysis of the concept of law (the ‘nature’ of law, as J. Raz would put it), with all the abstract and general characteristics it was supposed to have. I think that many of the contemporary analyses of legal pragmatism, including comparisons with other theories, are inquisitive enough to see what is at stake with such critics. However, this case is not new. In fact, one of the most influential thinkers who put forward that legal pragmatism is not the kind of ‘conceptual theory’ the critics expect it to be was M. G. White.
In the subsequent parts of the paper, I will discern the general view which encompasses the important philosophical background for pragmatism as a whole, namely, White’s ‘holistic pragmatism’. Then, by application of this philosophical stance to legal theory (by a quick analysis of an interesting example of O. W. Holmes’s approach), I will present in a nutshell the difference between the pragmatic concept explanation and the methodology of concept analysis assumed by major figures of general (conceptual) jurisprudence. In effect, the thesis that the ‘cynical’ but poetical answers that Holmes and his pragmatist followers give to important jurisprudential questions are to some extent ‘independent’ from any metaphysical or essentialist conceptions of law (like legal positivism, law as integrity, etc.) nevertheless does not mean that they are not (or could not be) eventually underdetermined by some general jurisprudential conceptions.
This will show that the MO argument against legal pragmatism from the generaljurisprudence position (that sometimes reminds a ‘trench warfare’) is not a valid one. Unless a critic embraces strong metaphysical assumptions about law, her analysis of the concept of law would be coherent with holistically underdetermined general theory of law (like legal positivism). In other words, if a legal theorist at least remains skeptical in connection with basic metaphysical assumptions about reality, including ‘the nature of law’, legal pragmatism and some particular types of conceptual, general theory of law can simply coexist. In this sense, these two differing positions can be reconciled.
3. Holistic Pragmatism and Law
M. G. White indicates that ‘holistic pragmatism’ is the view developed in W. V. Quine’s masterpiece Two Dogmas of Empiricism, where he wrote: ‘Each man is given a scientific heritage plus a continuing barrage of sensory stimulation; and the considerations which guide him in warping his scientific heritage to fit his continuing sensory prompting are, where rational, pragmatic’. Four elements are characteristic of that view: (1) this view is about the behaviour of human beings and their heritage (some cultural phenomena); (2) a scientific heritage is understood as a conjunction of many beliefs rather than as one non-conjunctive belief, what eventually leads to the claim that that our beliefs (or sentences) are not tested individually but ‘face the tribunal of experience’ in corporate bodies (‘holism’); (3) there is the reference to a barrage or sensory stimulation or a flux of experience (‘empiricism’); and (4) there is the reference to the pragmatic warping of a scientific heritage that has to fit sensory promptings (‘pragmatism’).
As White writes: ‘According to holistic pragmatism, scientists’ warpings are carried out with concern for the elegance or simplicity of the theory they adopt and with the intention to warp the heritage conservatively’, thus engaging ‘minimum modification’ (James) or ‘minimum mutilation’ (W. V. Quine) of it. Being as it is, the holistic pragmatism is primarily opposed to classical rationalism (the view that we can have knowledge that is not tested by experience; in its contemporary form espoused by Descartes). Moreover, in pure versions of holistic pragmatism, the dualism between ‘the analytic’ and ‘the synthetic’, to some extent accepted by some pre-pragmatist thinkers (like Hume’s distinction between ‘experimental thinking’ and ‘abstract thinking’), as well as some classical pragmatists (according to White, neither W. James nor J. Dewey fully escaped from this dichotomy), is abandoned.
The theory, being a conjunction of different kinds of statements (logical, empirical), must fit the sensory promptings, and if we want to make this relation of ‘fitting of belief’ work, sometimes even some logical statements – or according to legal positivists ‘analytic truths’ – should be rejected. That stays in close connection with an abandoning of ‘the spectator’s view’ in all fields of inquiry – scientific, moral, legal, and artistic, which are all equal subfields of cultural philosophy (being actually a metaphilosophical position). However, the difference between statements characteristic of each subdiscipline is not, as Quine ultimately thought, different in kind, but only, according to White, different in degree.
M. G. White, inspired not only by Quine but also by J. Dewey (‘epistemological gradualism’) and A. Tarski (‘epistemological holism’), extended the restrictive view that Quine held himself, namely, the view that ‘the philosophy of science is philosophy enough’. Quine’s line of argument was strictly connected with his idea of ‘naturalised epistemology’. Such a remnant of logical positivism as ‘rationalism’, against which Quine argued in his article, should be replaced by the fully fledged holistic pragmatism, according to which ‘the philosophy of culture is philosophy enough’. In this view, science is only one of many cultural institutions that are interesting for philosophers (once Quine himself compared science to the Wittgenstein’s language game: ‘the game of science’). And these institutions should be described, analysed, or explored on equal rights.
According to White, ‘we may distinguish different disciplines associated with various elements of culture on the basis of their different vocabularies and substantive statements, but not by saying that we use fundamentally different methods in supporting those statements’. All of these disciplines – ethics, law, art, and science – are ‘anchored in experience’, and all of them are corrigible but cognitive enterprises, which eventually form altogether a ‘holistic totality’ instead of ‘any compartmentalised group of distinct areas with definite boundaries’. To put it in a slightly different manner, in science, morality, art, and law, we use the same empirical method requiring ‘an examination of how we do and should use language’. That is not an effort characteristic of rationalists or certain significant twentieth-century thinkers (B. Russell, G. E. Moore, C. I. Lewis, R. Carnap) for decomposing concepts.
White assesses the rational methods of analysis, due to the failure of the analyticsynthetic distinction and the paradox of analysis, as unfruitful. On the contrary, the holistic program is a struggle against apriorism connected with various forms of rationalism, and, for sure, holistic pragmatists appreciate the strength of their rationalistic foes. In 1877, C. S. Peirce wrote that the rationalistic, a priori method was the most intellectual and respectable of all the old methods. He also pointed out: ‘its failure has been the most manifest’. Holistic pragmatism elaborates against any ultimate rationalisation, or what Dewey once called ‘the quest for certainty’, that reminds us of the most important point: both in science par excellence and in ‘soft sciences’ (law, art, ethics), there are no ready-made solutions in advance of particular problems.
It is, however, important to stress that holistic pragmatism ought to be conceived as a rule (a normative stance) rather than a descriptive statement. It is the method of testing our beliefs, being, in fact, a normative method of how one should philosophise (metaphilosophy), being neither analytic, a priori, necessary, nor self-evident. It is rather ‘our best guess so far’ that should be followed ‘in a fallibilist spirit’.
In the field of law, holistic pragmatism can be found in W. James’s Pragmatism, where he wrote ‘given previous law and a novel case…the judge will twist them into fresh law’ which – as White notices – reflects the demeanor of a scientist who ‘begins with a conjunction of previous truths, encounters fresh facts, and incorporates fresh truths or revises the old’. It is quite interesting that just a decade before James wrote this, O. W. Holmes had delivered his famous speech ‘The Path of the Law’. This speech is a great source of immortal epigrams, either expressing his antirationalist position (‘The life of the law has not been logic, it has been experience’) or his, as simple as it is controversial, answer to the question: What consitutes the law? (‘The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law’).
Holmes’s lecture, as we know, focused on the approach of an operative lawyer who is bound to present to a billpaying client the best possible prediction of the judicial decision. As a heuristic position, using some kind of binoculars through which the lawyer tries to formulate a prediction of the decision (like an analyst who tries to forecast weather), Holmes presents the ‘bad man’s point of view’, who does not care ‘a straw’ about rules and precedents, but simply wants to be kept out of jail (and thus he must anticipate the future judicial decree). Many objections have been raised against this conception. One of the most influential was the critique developed by H. L. A. Hart, who noticed that, firstly, law cannot be perceived as consisting only of predictions, and secondly, we should not always regard the lawyer’s client as a bad man only.
Hart’s effort in a few passages in The Concept of Law was to show that Holmes’s legal realism is wrong due to the fact that there really exists something that falls under the concept of ‘legal obligation’ (or, more generally, the concept of ‘legality’). Hart wrote: ‘that a person has a legal obligation to do something does not mean the same as saying that he will be punished if he does not perform that act’; or ‘the statement that a rule is [legally] valid is an internal statement recognising that the rule satisfies the test for identifying what is to count as law […], and constitutes not a prophecy of but a part of the reason for the decision’. These citations are only two excerpts from the long and still strong methodological objection made by Hart against different forms of legal pragmatism (realism) generally. As B. Leiter recognises, Hart criticises legal pragmatists by attaching to them a label of ‘conceptual rule skepticism’, namely, an account according to which ‘it is impossible to articulate a simple idea that the law is one thing, and a particular court’s decision another’.
It seems that all we have here is the popular and controversial theory of ‘a bad man’ here. But it would be a mistake to equate this theory, actually a very parochial (local) one, with the kind of overall philosophical view about law that Holmes held. I think that we can distinguish at least two other, but somehow interconnected, parochial theories in Holmes’s thinking and also one more general conception under which, to some extent, all the three parochial theories fall together. And that general approach would have much to do with holistic pragmatism; being the methodological stance, he embraced to propose any, either local or more general, claims about law (although Holmes himself did not use the term ‘pragmatism’ to describe his own philosophy, and, moreover, he was quite critical of pragmatic philosophy in general, apart from some works of J. Dewey).
Nowadays, it is quite clear that the ‘predictive theory’ is not a descriptive theory of judicial behaviour, i.e. a naturalistic theory of adjudication, just because it refers to the reasons and facts upon which an operative lawyer builds his prediction. The descriptive theory of adjudication rather should refer to the facts, rules, reasons, and motivations that an official actually has whilst composing a decree, which are not necessarily exhaustive and exactly the same elements that are taken into account by the predicting lawyer. The lawyer and the official have two different vantage points (the lawyer’s point of view, who is trying to account for all factors relevant to present a successful prediction, may not account for all the factors that really determine judicial reasoning but only for those that are directly affecting the final opinion; on the other hand, a descriptive theory of adjudication should account for all factors that really influence judicial reasoning, even if they do not determine the final decree, and present the role they play, as well as some explanation of their irrelevance/relevance to the final decree).
However, there is a strong incentive to build a complex argument by referring to certain interconnections between these two viewpoints (I suppose that is actually what B. Leiter does). M.G. White notices that the crucial difference relates to the type of theoretical statements (and their justifications) that are produced by each parochial theory. A lawyer simply defends his prediction by relying on descriptive premises, and thus the prediction is actually an empirical statement (or a conjunction of empirical statements); on the contrary, a judge defends his decree by assuming some legal rules that are not, or at least not exhaustively, empirical statements, and thus, his decree is not generally an empirical statement, but a normative decision, having a ‘normative component’. Whether in the second case judges use normative elements (norms, rules, etc.) to create the decree, or only to justify it afterwards, it is of a minor importance, since both mechanisms fall under the overall description made by the empirical, descriptive theory of adjudication. However, the important general point is that none of those mentioned theories is conceptual and makes general claims about ‘what is distinctive of any society’s legal norms’. They simply state what lawyers and judges do when they either make predictions or decide cases; that is all.
Holmes’s pragmatic stance towards the second type of theory can be seen clearly in his works. There are both the descriptive and the normative elements (or both the descriptive and the normative theories of adjudication). On the purely descriptive level, such a theory simply states that there are no essential elements that fall under the description of how judges really think, and that is why the only possible way is to – by the use of the more modern language of Quine – analyse the actual causalnomological connections between underlying situation types and actual judicial decisions (that is what B. Leiter calls ‘naturalised jurisprudence’). By being such a descriptive theory of adjudication, it could probably be classed as scientific and pragmatic but in a very banal sense.
Fortunately, Holmes’s theory of adjudication also stays in close connection with his thoroughly pragmatic and anti-formalistic attitude towards judicial dissenting opinions and the general role of the judge in the judicial process (and this element contains both simple descriptions of causal connections and much of the elements characteristic of holistic pragmatism program). M. Tushnet calls Holmes a ‘great dissenter’, meaning that he was not only a great rhetorician but, more importantly, that he had dissented by having such a forward-looking style that was vindicated by history. As A. Mendenhall describes Holmes’s approach: ‘The language of Holmes’s dissents were acrobatic. It acted and reacted and called attention to itself. The more provocative and aesthetic the language, the more likely it was for future judges and commentators to return to the dissent to reconsider Holmes’s argument – the more likely that non-law might become law’.
The aesthetics in judicial work, as was also clearly seen by Holmes’s successor, B. Cardozo, is a great tool for helping to influence reality in connection with what J. Dewey once called ‘intelligence’. The main elements of judicial tasks are thus twofold: to make an intelligent study of law’s history that will illuminate the forces that make the present law thus and so (historical element; the reference to the cultural heritage) and of ‘the ends which rules seek to accomplish, the reasons why those ends are desired, what is given up to gain them, and whether those ends are worth the price’. Both these aspects together lead to the typically liberal and pragmatist conclusion that a judge, whilst deciding the case, should weigh ‘considerations of social advantage’ whilst paying attention to statistics and economics in particular circumstances, amongst other important social factors (facts). The philosophical background of Holmes and his pragmatist followers can be described as antidogmatic, with an aversion to absolutes and foundationalism, fascinated by contingency and process, putting great focus on different perspectives (perspectivism) and the necessity to relativise each phenomenon to the particular context of analysis and respecting the ‘ordinary’, common-sensual ordering of things. As such, the local considerations of Holmes, either made from the bad man’s/good man’s perspective or the descriptive/normative analysis of the way judges think, fall under the holistic program that aims to build an opinion by reference to a cultural/contextual heritage, contemporary beliefs, and scientific and empirical evidence, with a forward-looking perspective towards social change (the latter element is a kind of