Judging by the People

• In Event: Constitutionalism in Comparative Context: Germany, Latin America, and the U.S.

Abstract

Judging by the People: Democratic Pragmatism and Theories of Judicial Decision Making from Legal Realism to the Legal Process School

I argue that the visions of judicial decision making put forth by the central exponents of Legal Realism and Legal Process Theory developed in connection with the growth of modern American pragmatism, and in particular, with the growth of a pragmatist perspective committed to the generativity of popular experience. I refer to this as democratic pragmatism, a philosophy that reached its fullest expression in the thought of John Dewey. On my account, it reached its fullest jurisprudential expression in the mid-century Legal Process thinkers whom I show that Dewey inspired. Yet, I also recognize the Legal Realists, whose critique in significant ways catalyzed Legal Process Theory, as powerful prognosticators of a democratic pragmatist orientation toward law and judging. Taking up the pragmatist torch in the early 20th century – and indeed, helping to light it in the preceding decades – the Legal Realists exposed the social contingency of legal reasoning and sought to make the people’s experiences the basis of judicial decisions. Drawing on Dewey, their successors in the Legal Process School sought to enhance judicial responsiveness to the people by enjoining judges to reason from widely shared values, while leaving space for those values to develop through processes of popular experimentation.

My account begins by tracing the cross-pollination between the earliest articulations of Legal Realism and philosophic pragmatism in the late 19th century. I then map this cross-pollination onto the most celebrated Legal Realist movement of the 1920s-1930s. Exposing vast judicial discretion behind a veneer of supposedly objective legal logic, the Legal Realists called on judges to justify their decisions not in terms of abstract legal rules, but as sound social policy. Making popular needs and experiences the touchstones of judicial decision making, the Legal Realists championed the people’s representation in the law in a way that was both democratic and pragmatist. Yet there were opposing Realist schools of thought on how judges should represent the people, and neither was wholly satisfying. Thus, while Oliver Wendell Holmes, Jr.’s watchword was deference to popular majorities, the later Realist standard-bearer Karl Llewellyn envisioned judges as wise policymakers tasked with discerning and advancing the common good. This bold judicial policymaking was particularly troubling as totalitarianism advanced on the world stage. Alongside raising questions about the fit between judicial- and democratic-decision making, it fanned fears about moral and legal relativism. For at the same time as the Realists called on judges to take responsibility for crafting good law, they were also part of an empirical turn in the American academy that called into question overarching standards for what was right or good.

I argue that the foundational Legal Process thinker Lon Fuller responded to these dilemmas by transposing Dewey’s democratic moral fallibilist framework to the American legal register. For earlier pragmatist thinkers, fallibilism was a mode of knowledge production reserved for rarefied scientific research; for Dewey, it was a democratic method of finding moral common ground premised on the entanglement of facts and values and of means and ends. I show that Dewey’s unique approach to fallibilism is reprised in Fuller’s conception of law as an experience-based process of cumulatively realizing governing norms that both shape social life and are shaped by social living. Fuller insisted that law could neither be deduced from supreme command nor reduced to arbitrary fact. It could only be apprehended as an unending process tracking the results and conclusions of the people’s ongoing experiments in social living. By rooting law in these durable but dynamic findings, Fuller resisted the realists’ slide toward moral and legal relativism and unfettered judicial discretion, on the one hand, without reverting, on the other hand, to the moral and legal rigidity that the realists stood against. In turn, Fuller’s jurisprudence orients judges to the results and conclusions of a people empowered to determine their common good. Yet it also holds out a modest but meaningful role for judges to play in ensuring that the law adequately comprehends the people’s disputes. I demonstrate that this democratic pragmatist approach to judicial decision making is powerfully expressed in what is widely recognized as the canonical expression of Legal Process Theory, Henry Hart and Albert Sacks’ 1958 law school text, The Legal Process.

Author

• Emily F Regier, University of Missouri, Columbia