The Return Of Pragmatism

Dewey believed we learn by doing and adapting; when we embalm knowledge in a textbook, we cut off thought from experience.

Cultural pluralism owes most, in the pragmatist tradition, to James’s A Pluralistic Universe (1909). One of the consequences of the pragmatic way of thinking, for James, was that the universe is better thought of as a “multi-verse,” something that is never completed, never synthesized into a stable whole. Things are strung together, James argued, but their differences are never completely transcended. “Monism thinks that the all-form or collective-unit is the only form that is rational,” said James. “Pluralism lets things really exist in the each-form or distributively.”

James drew no particular political conclusions from his pluralism (though it undoubtedly had some connection with his impassioned anti-imperialism). But Kallen, Locke, and Bourne saw that if the universe is multiple and unfinished, then society—particularly an ethnically heterogeneous society like the United States in 1915—might be understood as multiple too. Of the three, Locke’s argument involved the subtlest pragmatism: It was that although race has no real basis in biology, and although racial pride is in itself socially divisive, the only way to overcome social divisiveness was to foster racial pride—to encourage the different ethnic groups in American society to take satisfaction in their different cultural practices. This is, Locke said, “only apparently paradoxical. It is not paradoxical when it is worked out in practice, because … the very stimulation to collective activity which race pride or racial self-respect may give will issue into the qualification test and the aim to meet that qualification test, which, of course, must be in terms of the common standard.” In other words, the desire to be recognized as as good as everyone else—to pass the ethnicity-blind meritocratic test, what Locke called “the qualification test”—flows from the desire to be recognized as different from everyone else. You want to prove that your group is as good as every other group. Cultural pluralism is the recipe for civil cohesion, and the pragmatic beauty of the formulation is that neither human sameness nor human difference is made to seem essential.

A second consequence of turn-of-the-century pragmatism was the revolution in American law and legal thinking inspired by the writings, and to some extent the personality, of Holmes. In old age—he was sixty-one when he was appointed to the Supreme Court, in 1902, and he served until he was ninety—Holmes became a hero to progressive political writers. He was himself a progressive only in a neutral sense. He didn’t believe that social and economic reform could do more than shift a few burdens incrementally in one direction or another; he considered economic relations more or less fixed. But he saw no constitutional barrier to legislative attempts to move those burdens, by imposing taxes, passing health and safety regulations, or protecting unions, and this endeared him to progressives who did believe in the powers of reform.

Holmes’s belief in society’s right to try out new forms of self-regulation followed from his belief, shared by all pragmatists, in the virtues of experimentation. If we learn by doing, we have to keep doing new things, since that is how knowledge progresses or at least adapts. This was the rationale for Holmes’s most celebrated opinion as a judge, his dissent in Abrams v. U.S. (1919), in which he rejected state efforts to punish political opinion as a foreclosing of social possibilities. Even the Constitution, he said, “is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death.”

Holmes’s vibrant dissents in cases involving the regulation of business and the suppression of opinion bore fruit after his death in the judicial acceptance of New Deal economic policies and in the establishment of the constitutional law of free speech. The argument of his jurisprudential writings—that law is not merely a system of abstract doctrines but a response to changing conditions—helped give rise to a series of fresh approaches to the law. These include the legal pragmatism of Roscoe Pound and Benjamin Cardozo, which emphasized the social aspect of legal reasoning and the experimental nature of judicial decision making; the legal realism of Karl Llewellyn and Jerome Frank, which regarded law sociologically and as an instrument of reform; Critical Legal Studies, which considers law as both a form of rhetoric and a form of politics; and the “law and economics” jurisprudence of Richard Posner, which proposes cost-benefit analysis as a basis for judicial decision making. All these ways of thinking about the law can be said to have grown from seeds planted in Holmes’s 1897 essay “The Path of the Law.”