Posner’s Pragmatism and the Turn Toward Fidelity

Abstract

It is no secret that formalist methodologies like originalism are not nearly as scientific as they pretend to be. Banking on this fact, pragmatism offers a prescriptive alternative: instead of expending intellectual energy attempting “fidelity” to antecedent “authority” (precedent, Framers’ intent, etc.) judges should embrace their inevitable roles as de facto policy makers, and focus on producing the best social results they can through the cases they decide. This article discusses the current state of legal pragmatism, with a focus on the archetypal species espoused by Judge Richard Posner, and asks whether it has proven itself capable of contributing anything useful to modern adjudication. Through a dissection of the essentials of Posner's pragmatism, the article demonstrates that pragmatism serves only as a method of justifying outcomes that comport with the personal temperament and intuitions of those applying it. The article then explores how the increasing obviousness of pragmatism's failings has renewed interest in a concept central to formalist approaches: "fidelity" to exalted principles of political theory. Thus, the article concludes that a primary legacy of pragmatism will be its contribution to the advent of "soft formalism," characterized by an insistence that indeterminacy and subjectivity in law does not excuse the abandonment of fidelity as a central hallmark of legitimate adjudication.

Keywords: pragmatism, Posner, realism, jurisprudence