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The Province of Jurisprudence Democratized$

Allan C. Hutchinson

Print publication date: 2008

Print ISBN-13: 9780195343250

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780195343250.001.0001

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The Experimental Province of Democracy Determined

The Experimental Province of Democracy Determined

(p.197) Chapter Nine The Experimental Province of Democracy Determined
The Province of Jurisprudence Democratized

Allan C. Hutchinson

Oxford University Press

Abstract and Keywords

This chapter pulls together the main threads of the argument presented in the book and defends this proposed revitalization of legal theory as an adjunct location of democratic politics more generally. After tackling the contested relationship between philosophical pragmatism and political democracy, it defends strong democracy as an institutional complement to the experimentalist bent of pragmatic theorizing. It then rounds out the defense of the political province of democratic legal theory by brief reference to the literary insights of George Eliot's Middlemarch.

Keywords:   legal theory, analytical jurisprudence, political democracy, philosophical pragmatism, George Eliot, Middlemarch

Let democratic politics be what sets the goals of philosophy, rather than philosophy setting the goals of politics.

—Richard Rorty

My challenge in this book has been as much to the analytical tradition of philosophy generally as it has been to its dominant position in jurisprudence. As exemplified by the larger project outlined in John Austin’s The Province of Jurisprudence Determined (The Province) and refined by later generations of jurists, the problems of analytical jurisprudence—abstract conceptualism, theoretical universality, ahistorical essentialism, etc.—are very much part of the traditional philosophical methodology which privileges epistemological and ontological inquiries above others. Instead, I have suggested that there needs to be a shift away from the self-regarding agenda of analytical philosophy to the more practical concerns of democratic politics. Rather than exhaust itself in ever-more mannered analyses of what counts as the enduring nature of law, jurisprudence should take a broader and more useful approach to legal theory that emphasises a preference for the practical over the theoretical, the contingent over the certain, the experimental over the essential, the historicist over the enduring, the political over the philosophical, the instrumental over the intrinsic, the hermeneutical over the methodological, the evaluative over the descriptive, and the improvisational over the scripted. By reorienting the focus of jurisprudential study in this way, it might be possible for legal theory to reclaim its relevance and worth to both lawyers and citizens. Insofar as philosophy has a continuing role in democracy, it must earn its critical keep as part of, not apart from politics.

In this final chapter, therefore, I will pull together the main threads of my argument and seek to defend this proposed revitalization of legal theory as an adjunct location of democratic politics more generally. After tackling the (p.198) contested relationship between philosophical pragmatism and political democracy, I will defend strong democracy as an institutional complement to the experimentalist bent of pragmatic theorizing. Then, in a slight change of perspective, I will round out my defense of the political province of democratic legal theory by brief reference to the literary insights of George Eliot’s Middlemarch. Throughout, the goal will be to suggest a different role and set of responsibilities for legal theorists. Abandoning the hubris of much analytical jurisprudence, the legal theorist might adopt a more humble posture that attempts to serve, not master the needs of a democratic polity as determined by its members after a full and engaged exchange of views. So transformed, jurisprudence can become better placed to fulfill its supportive mission as an important, if modest resource in the expanded repertoire of democratic politics.

Democracy and Pragmatism

The basic thrust of my reliance on democracy is that it is the form and practice of government and social organization that best allows people to gain the most control over their own lives. In particular, at its most unconstrained and participatory, it permits all and not only some of the people to have a continuing say in as many aspects of their life as is practically possible. Of course, there will be issues of institutional scale in any shift to a strongly democratic society: There will need to be a much greater devolution and localization of power if a truly participatory system of governance is to take hold. For instance, it is estimated that, out of fifth-century Athens’ total population of about 250,000, there were some 30,000 adult males of Athenian birth who attained full citizenship and, at any one time, about 5,000 might regularly participate in legislative and other deliberative matters.1 Nevertheless, strong democracy clearly favors more centripetal initiatives over centrifugal tendencies. In taking seriously the notion that there should be both government by the people as well as government for the people, democracy offers itself as an extensive process through which people can not only participate in (p.199) governance, but also be active in the (re)formulation of substantive visions about what good lives might comprise.

As regards legal theory and philosophy more generally, a thoroughgoing commitment to strong democracy suggests a range of recommendations. Most importantly, it accepts that, if people are to participate fully in the governance and ordering of their own lives, they must be emancipated from the many different and insidious modes of elitism that threaten such a personal and pubic ambition. As well as breaking the influential grip that wealth and heritage have upon society’s decision-making processes, this means that people must be disabused of the tendency to confer undue authority on all kinds of experts and self-styled sages, no matter how well intentioned or benign they might be. In particular, citizens must be encouraged to grasp that there is no philosophical or jurisprudential claque of scholars who know something about knowing that can claim priority over a democratic community of good-willed and active participants. In a vibrant democracy, it will not simply be a rote matter of counting people’s preferences, but about facilitating debate and engagement so that the resulting consensus has a distinctly qualitative as well as a quantitative dimension. Indeed, unlike what some contemporary philosophers maintain, democracy does not rely “for its legitimacy, on its ability to deliver sound decisions.”2 Democracy attains its legitimacy by ensuring that decision making results from as wide and as frequent participation as possible; decisions will be ‘sound’ by that fact alone and not by their approximation to some independent and/or external metewand as proposed by philosophers, jurists, or similar experts. Insofar as such theorists have any lingering role or authority, it will have to be earned by the local usefulness of their rhetorical interventions in continuing democratic conversations, not asserted as authoritative conversation stoppers.

Although I have placed strong democracy front and center in my critical account of analytical jurisprudence, there is a strictly philosophical tendency which assumes a similar deflationary posture towards inquiries into truth, knowledge, and meaning. This largely American-based tradition of pragmatism is commonly associated with the writings of John Dewey as well as William James and Charles Pierce. In more recent decades, Richard Rorty and Hilary Putnam have been its most vocal and consistent advocates in the philosophy community and Richard Posner has been its most important flag-bearer on (p.200) the jurisprudential front.3 As with most philosophical tendencies, it has taken a variety of different shapes and shades. However, most pragmatic philosophers share an anti-idealist and fallibilist notion of truth and knowledge that has little time for the claims and methods of traditional epistemology. Pragmatists tend to insist that truth, knowledge, meaning and even (scientific) inquiry itself are not validated by their correspondence to some ahistorical or asocial standard of verification, but by their usefulness and practicality in society. Even those beliefs that can claim to be the most longstanding and/or broadly accepted in society may turn out to be unreliable and revisable over time. As such, pragmatists and strong democrats seem united in their rejection of traditional analytical concerns and in their embrace of a more socially engaged way of proceeding.

That having been said, there is active resistance by some avowed pragmatists towards the idea that an attachment to a pragmatic philosophical stance has any political consequences at all, let alone democratic ones. For instance, Richard Posner is adamant that “pragmatic dispositions—[experimental openness, contextual sensitivity, instrumental application, etc.]—have no political salience.”4 He insists that any claims to establish links between philosophical pragmatism and political democracy (and any other favored political scheme) are unconvincing and without merit. This almost quietist and complacent approach is most puzzlingly championed by Richard Rorty. Although he often wrote with force and enthusiasm about democracy’s emancipatory potential, he advanced a decidedly liberal, if progressively so, vision of social justice. In what turned out to be his final published lecture, he concluded on a rather poignant note that:

I agree with Posner when he says that “the bridge [Dewey] tried to build between epistemic and political democracy is too flimsy to carry heavy traffic.” … One can agree wholeheartedly with Dewey about the nature of truth, knowledge, and inquiry, and nevertheless agree with Posner that what he calls ‘our present system of elective aristocracy’ is the best we can do.5

(p.201) If Rorty, Posner and other like-minded pragmatists are interpreted to be making an historical argument about whether existing democratic institutions are up to the pragmatic job, there is some merit to their observations—existing democratic arrangements need to be substantially extended and deepened if they are to have any chance of bridging the epistemic and political divide and carrying the ‘heavy traffic’ of social living. However, these quietists are clearly not making such a modest claim. They are rejecting the capacity of democracy tout court to serve such a bridging feat. This seems to be a self-defeating claim because, if pragmatism has no political consequences at all, then it is difficult to see why democracy would be any more or less suited to the task than any other mode of governmental organization or social ordering. Nevertheless, there are more important weaknesses in this quietist stance.

The denial that pragmatism has any political consequences is tantamount to stating that there is no connection between philosophy and politics. Yet this distinction seems to rely on the very kind of dichotomous thinking—theory/practice, fact/value, epistemic/moral, etc.—that a pragmatic approach seems dedicated to resist. A bifurcated stance only makes sense if it is still considered that philosophy is something separate from history and politics and that it is possible to adopt or pursue a philosophical stance that is not implicated in the social conditions in which it arises and to which it is addressed. But this is a very large and unexpected if. The insistence that philosophy can be appreciated as an independent and removed discipline that can interrogate and deliver judgments about extant political conditions from above or outside them smacks of exactly the kind of privileged theorizing that characterizes the analytical tradition itself. Indeed, this kind of philosophical posturing seems to represent the very kind of philosophical practice from which a pragmatic approach is intended to distinguish itself. It suggests the somewhat oxymoronic position that one can be pragmatic without also being engaged and situated. This is a faux pragmatism that adopts several pragmatic gestures and props, but remains very much part of the analytical (p.202) tradition in maintaining that philosophical analysis can be performed in a relatively detached, ahistorical, and apolitical manner.

Once the inevitable link between philosophy and politics is acknowledged, a disengaged and agnostic view of the connection between pragmatism and political arrangements is no longer sustainable. There is no one particular discourse, be it fact, theory, etc., that can claim any special or more compelling access to knowledge or meaning than an opposing discourse on values, practice, etc. In contrast, I insist that philosophical inquiry is a mode of political practice; there is no place from which to be philosophical and there is no way to act philosophically without already being part of some contested political terrain. As Derrida notes, “philosophical activity does not require a political practice; it is, in any case, a political practice.”6 That being so, there is no position of political innocence or indifference; all philosophizing is implicated in the contingent circumstances of its occurrence. In other words, philosophy implies and is already embedded in the extant protocols of interpretive practice. As such, the central issue is less whether a pragmatic stance has any political consequences (it does have) and more what concatenation of interests are served by any philosophical posture in particular historical circumstances and in particular social settings. It is entirely idealistic and analytical to insist that knowledge and meaning can be constituted or appreciated outside of power’s matrixes. Consequently, although philosophical theorising has no necessary or fixed practical consequences, it will always have some political effects and these will depend on the historical circumstance and social practices in play.

A Political Experiment

Though a pragmatic sensibility restricts the kind of arguments that can be utilized to make political proposals, it does not prevent or preclude political proposals from being made or defended. It is simply that there needs to be a certain caution about what is being proposed and how it is defended.7 I resist (p.203) the claim that, once we give up on the idea of Truth, it is no longer possible to engage in meaningful conversation about a variety of issues, like freedom or justice. It is not a straightforward Hobson’s choice between the truth-asserting claims of analytical philosophy and endless shouting matches. I do not reject the possibility of reasoned argument, but the possibility that it can be rational in the sense of Right or Final. As such, a better argument is not one that chimes more with an externally validated truth, but one that manages to persuade more people through extensive deliberation in line with available argumentative resources. Moreover, the pragmatic account of truth and knowledge, while deflationary and fallibilist, does not undercut the very real ethical demand that people be honest and truthful; its critical concern is with the epistemological, not ethical or sociological claims made on behalf of and in the name of truth.

Nor do I believe that, in a society that accepts the pragmatic insistence on the contingency of everything, a sense of political resignation or quietism is inevitable. Once purged of its metaphysical pretensions and more attuned to its own historicist insights, a pragmatic approach cannot avoid engaging with its political and social context. Having put the history back into philosophy, there is no warrant for a failure of critical nerve by failing to take the next step of putting the politics back into that history. Without an appreciation of the often grubby, materialistic, and collective conditions under which history is made and remade, a pragmatic tendency remains too cloistered and too precious for its own sake. Accordingly, in place of the quietist’s lightness of historical being, those pragmatists who are committed to democracy and social change will choose to appreciate the full political weight of their historical belonging; they will appreciate that philosophy is another way of being politically and historically engaged.

That being the case, there is a strong historical practical argument—not a traditional philosophical or analytical argument—to be made along Churchillian lines that “democracy is the worst form of government, except for all those other forms that have been tried from time to time.”8 Although a commitment to democracy is open to a variety of criticisms and cautions, it (p.204) remains the mode of governance that can lay contemporary claim to being the best presently available institutional complement to the pragmatic critique. This does not mean that it will always be best at all times and in all places or that one particular style of democracy is always superior to all others. After all, both democrats and pragmatists are united in their firm rejection of elitism whether it be in philosophy or society; the strength of a particular idea or decision is not measured by its approximation to some metaphysical and transcendental ideal, but by its acceptance by the widest and most inclusive consensus after the most vigorous of debates about it being the most useful and beneficial way to proceed. Both democratic and pragmatic sensibilities are suspicious of any general claim that there is one best or enduring way to apprehend and respond to a particular set of historical and social circumstances. As such, the emancipatory and anti-elitist tendencies of democracy make it into credible and recommended institutional option for the pragmatic critic to champion at the beginning of the twenty-first century.

There is nothing about this defence of a robustly democratic society which depends on any philosophical claim or epistemological back-up that such a society is more natural, more rational, more coherent, more pure or more anything else than any other society. And it is certainly not that it more closely approximates to some established notion of Truth. On the contrary, it is simply a practical argument that such a society is more useful in a world in which there are no philosophically mandated truths and in which people must be allowed to experiment for themselves with how they might best be organized and live their lives. Democracy’s appeal is that it establishes its own foundations and authority by making them the property of the community and by ensuring that they are always open to critical transformation. Because it is deliberative rather than programmatic, strong democracy reinforces and comes closest to actualising a social and institutional practice which keeps faith with the key pragmatic claim that there is no basis in ethics, epistemology, or politics, to rely on any source of authority other than that which arises in and from social practices. Even if critics cannot speak in the name of Reason or Humanity, they need not celebrate the status quo or some reformist understanding of it. The justice of any situation might be measured by the extent and depth of people’s participation in the formulation and reformulation of the terms and conditions of their own lives. In this way, people might become genuine citizens and resist the expedient temptation to mistake the contingent nostrums of analytical philosophers for enduring truths about social arrangements and the human condition. The status quo is owed no greater (or lesser) respect than any other set of institutional ordering; it is a place from which to begin and experiment.

(p.205) A politically sensitive pragmatic approach does not duck the realization that knowledge and objectivity are tied to ethical practices and political interests. Indeed, it incorporates that unassailable insight into its general stance by ensuring that the circumstances in which particular intersubjective agreements are made constantly being challenged and reassessed. For instance, although pragmatists insist that there is no escape from particular historical and social settings, it does not follow that morality is simply reducible to whatever passes for morality in a given society. A pragmatic commitment does not simply enable democracy to function as a facilitative process by which “what we do around here” is authorized by virtue of that fact alone to “what we should do around here.” In any democracy worth its name, there is space and even support for critical engagement: grounded and situated does not mean unreflective and uncritical. Though such reflection and criticism is dependent on the argumentative and intellectual resources of that society (and not some ahistorical or free-floating standards of truth validation), it is possible to generate a successful challenge to entrenched values. Even the prototypical and relatively conservative Dewey was adamant that “the attainment of settled beliefs is a progressive matter; there is no belief so settled as not to be exposed to further inquiry,” and that it was necessary to “use [these settled beliefs] as hypotheses to be tested instead of as dogmas to be asserted.”9 Consequently, although pragmatists must work with the justificatory tools of society, they are not condemned to work within its past decisions or to remain wedded to its present orientations: The past consensus is only a starting point and the present accord is only a temporary respite from continuing debate and engagement.

Democracy offers the least constrictive process through which more people can separately and jointly develop and apply their experimental intelligence. It complements a pragmatic approach as it has no set institutional format nor a predetermined formula for success. It places participation at its deliberative heart and privileges communal conversation over all other modes of discourse; (p.206) “particpatory democracy finds its egalitarian roots in the fact that experimental intelligence … is not the special possession of a particular class of people, and its participatory thrust in the promise that the development of [experimental intelligence] offers for the realization of individual potentialities, the pursuit of individual and collective goals, and the promotion of the general welfare.”10 Moreover, because it favors experimentalism over any kind of perfectionism, it has no preference for any specific substantive moral position or social policy. Provided particular moral recommendations or policy proposals are not set in stone or rendered immune from challenge, strong democracy is committed to facilitating each community of citizens in its continuing efforts to formulate and implement its own ideas and initiatives. Such a strongly democratic practice will not result in a final harmonization of conflicting ends, but will offer an institutional context within which debate and redebate can be beneficially and respectfully pursued. Indeed, it might be that the citizenry will impose limits on free and open discussion in the name of democracy itself as long as those limits are temporary and revisable.

Accordingly, for all Rorty’s encouragement to “let democratic politics be what sets the goals of philosophy, rather than philosophy setting the goals of politics,” he failed to pursue that admirable ambition. Indeed, he compromised his pragmatic initiative by relegating democratic politics to a supporting role in the service of a liberal vision of social justice in which private re-invention trumps public renovation.11 However, pursued more rigorously, this pragmatic recommendation to put philosophy in the service of democratic politics is a worthy and compatible goal. After all, the effort to isolate some eternal and phantom Truth and then to organize society in line with its fixed precepts is problematic on so many grounds—it is futile (because no such Truth exists); it is self-serving (because it tends to reproduce the theorist’s own preferred commitments); and it is dangerous (because it treats all other pursuits and concerns as being of secondary importance). In contrast, I have tried to hold firm to the idea that an unflagging commitment to strong democracy represents the least worst scheme of governmental organization (p.207) for managing political and social affairs as engaged exercises in experimental intelligence rather than as settled instantiations of some putative universal order. Theory is not an end in itself, but another practical means for improving the real-world conditions of people. As Roberto Unger puts it, under a pragmatic outlook, democratic experimentalism becomes “both a means and an end, a method and an outcome.”12

After Casaubon

One particular corollary of a democratic approach is that philosophical method does not recommend itself as the only or best genre of inquiry through which to learn about or appreciate the social possibilities of human living. Indeed, as I have been at pains to establish, certain analytical forms of philosophical study can be positively misleading in their claims to identify certain foundational truths or traits about social life. Accordingly, it seems useful to conclude my jurisprudential project with a different mode of analysis and instruction that might be better suited to the democratic task at hand. From literature’s vast resources, George Eliot’s Middlemarch is a celebrated work that captures many of the central themes of my democratic critique of analytical jurisprudence. Situated at exactly the time that John Austin was writing his own magnum opus, The Province of Jurisprudence Determined, Eliot’s sprawling novel is a sophisticated comedy of manners about English provincial life around the tumultuous years of the Reform Bill in 1832. It was a time when the old English order was forced to confront the precious privilege of its established ways and to come to terms with the bracing challenge of democracy’s fledgling forces.

At the thematic heart of Middlemarch is the short-lived and ill-fated marriage between the young reformer, Dorothea Brooke, and the aging scholar, Edward Casaubon. In an early exchange between the two, Dorothea enthuses about one of her most cherished projects to alleviate the condition of the poor by building cottages for those who worked on her uncle’s estate: “I think we deserve to be beaten out of our beautiful houses with a scourge of small cords—all of us who let tenants live in such sties as we see round us. Life in cottages might be happier than ours, if they were real houses fit for human beings from whom we expect duties and affections.” Mr. Casaubon’s only response is to declare that he “did not care about building cottages, and (p.208) diverted the talk to the extremely narrow accommodation which was to be had in the dwellings of the ancient Egyptians as if to check a too high standard.”13 There is much in this brief exchange (and in Dorothea and Casaubon’s unhappy relation generally) that resonates with the contemporary engagement in contemporary jurisprudential debate. Reduced to its basic essentials, the point of disagreement between the reigning philosopher-kings of the legal establishment and their democratic critics is quite simple—Is it to be the actual construction of cottages for the poor or detached ruminations on abstract points of ancient architecture?

Mr. Casaubon is a contender for one of literature’s great misanthropic characters. He was “noted in the county as a man of profound learning” and whose “very name carried an impressiveness hardly to be measured without a precise chronology of scholarship.” Piously devoted to researching and writing his life’s work, A Key To All Mythologies, he was fond of telling people “how he had undertaken to show (what indeed had been attempted before, but not with that thoroughness, justice of comparison, and effectiveness of arrangement at which Mr. Casaubon aimed) that all the mythical systems or erratic mythical fragments in the world were corruptions of a tradition originally revealed.” Moreover, although occasionally anguished by deep inward doubts, Casaubon was outwardly confident that, “having once mastered the true position and taken a firm footing there, the vast field of mythical constructions [would become] intelligible, nay, luminous with the reflected light of correspondences.” In completing this monumental project, he was intent on not pandering to “the facile conjectures of ignorant onlookers” nor gaining “a temporary effect by a mirage of baseless opinion.” For Casaubon and other keepers of scholarship’s true flame, “it is ever the trial of the scrupulous explorer to be saluted with the impatient scorn of chatterers who attempt only the smallest achievements, being indeed equipped for no other.”14

Although Casaubon died before completing his pantologic study (but not before he realized its futility), his scholarly mien remains strong in the jurisprudential community. Although often less pretentious or precious, analytical (p.209) jurists still cling to the belief that it is possible to locate or fashion a conceptual key that will unlock the universal mysteries of law’s historical existence. In Casaubonic style, analytical jurists strive to illuminate law’s essential nature with the intellectual lightning of jurisprudential insight. It is not so much that they dismiss other types of jurisprudential study, but that they claim that they are of a secondary and derivative character to their own epistemological and ontological focus. The cool detachment of philosophical reflection is thought to be a necessary prelude to the contestability of political or even democratic critique. As Casaubon might put it, “having once mastered the true position and taken a firm footing there, the vast field of [law] became intelligible, nay, luminous with the reflected light of correspondences.”15 Matters of material or substantive justice are treated as distinctly secondary—the actual construction of cottages for the poor or detached ruminations on abstract points of ancient architecture?

Of course, Mr. Casaubon’s approach to life and philosophy did not and has not gone unchallenged. The careers of many such critics resemble George Eliot’s feisty, but impressionable Dorothea Brooke. Initially infatuated by “the set of [Casaubon’s] iron-gray hair and his deep eye-sockets [that] made him resemble the portrait of Locke” and awed by “a modern Augustine whose work would reconcile complete knowledge with devoted piety,” she saw Casaubon as “a guide who would take her along the grandest path.” Furthermore, the thought that he might consent to be her husband filled her with “a sort of reverential gratitude”—“Here was a man who could understand the higher inward life, with whom there could be some spiritual communion; nay, who could illuminate principle with the widest knowledge: a man whose learning almost amounted to a proof of whatever he believed!” In that first flush of romance, she spent her days content “to imagine how she would devote herself to Mr. Casaubon, and become wise and strong in his strength and wisdom.” There is much in Dorothea’s condition that resembles the experience of young lawyers and jurists. Though Dorothea came across her devotion through acculturation and inclination, law students are encouraged by institutional training and collective self-interest to cultivate such an awed and respectful posture towards the law and its intellectual, practicing, and judicial elite. Indeed, under the spell of a Casaubonic mind-set, the life of a neophyte lawyers is “the mixed result of a young and noble impulse struggling amidst the conditions of an imperfect social state, in which great feelings will often take the aspect of error, and great faith the aspect of illusion.”16

(p.210) Yet Dorothea’s selfless besottedness was unrealistic: No one could live up to such callow adulation, let alone the blighted Casaubon. Not surprisingly, Dorothea’s admiration soon turned to disillusionment, which quickly hardened to contempt, even though it later mellowed to pity. On her return from an ill-fated Italian honeymoon with Casaubon, she realized that even in her earliest and most scholarly devotions she had been “visited with conscientious questionings whether she were not exalting these poor doings above measure and contemplating them with that self-satisfaction which was the last doom of ignorance and folly.” As these questionings received ever more assured answers, she accepted that a life with Casaubon did not lead to “large vistas and wide fresh air,” but to “ante-rooms and winding passages which seem to lead nowhither” and that “her blooming full-pulsed youth stood there in moral imprisonment which made itself one with the chill, colourless, narrowed landscape.” Once Dorothea’s anger and resentment had run their course, she looked upon Casaubon with a genuine mixture of sadness and compassion:

For my part, I am very sorry for him. It is an uneasy lot at best, to be what we call highly taught and yet not to enjoy: to be present at this great spectacle of life and never to be liberated from a small hungry shivering self—never to be fully possessed by the glory we behold, never to have our consciousness rapturously transformed into the vividness of a thought, the ardour of a passion, the energy of an action, but always to be scholarly and uninspired, ambitious and timid, scrupulous and dim-sighted.17

There is much in Dorothea’s predicament that can be profitably related to the critics’ reaction to contemporary mainstream jurisprudence. Instead of revelling in the full amplitude and unbuttoned possibilities of human existence, analytical jurists bring to it a narrow and smothering perspective. Wanting to bring everything down to a dry and bloodless endeavor, they resemble taxidermists rather than naturalists; they want to capture and display legal wildlife in museums rather than marvel at their living color and glorious vitality. Under their tutelage, jurisprudence is less about rapture and glory and more about rigor and scrupulousness. Although they present their work in grand and confident terms, contemporary jurists are fearful and desperate—they are fearful that, if the world of law and lawyers is not held in check, it will decline into a chaotic and arbitrary exercise, and they are (p.211) desperate because their efforts to establish such a checking device are increasingly less convincing. Rather than celebrate society’s diversity and energy, they wish to leash and corral them. Accordingly in its efforts to rescue law and lawyers from themselves, jurisprudence craves greater theoretical authority not only to bolster individual contributions, but also to salvage its own waning prestige. This characteristic Casaubonic mix of conceit and timidity is held together by an attachment to the idea that there are certain conceptual truths about the legal facts-of-the-matter that can be identified and isolated by rigorous reliance on an uncompromising philosophical analysis.

Yet, on closer inspection, these extravagant claims of analytical jurists are less the imprimaturs of a supra-historical and superior methodology, but more the earnest ways of simply getting by. This is no bad thing. Stripped of their philosophical paraphernalia, these jurisprudential accounts might still have something to offer to law and its task of being substantively just in a world that is constantly shifting and changing. But it is this analytical paraphernalia that must go. The insistence that the theoretical effort to distinguish between law’s contingent practices and its essential nature will pay practical dividends must be abandoned. The tendency to abstract theorizing has become a way to remain a spectator rather than a player at Dorothea’s “great spectacle of life.” Contemporary analytical jurisprudence remains in the scholastic shadow of a Casaubonic need for scientific rigor and abstract detachment as if this was the key to unlock the normative secrets of the universe. Jurists waste valuable energies in this hapless pursuit of some elusive universal and objective truths about the legal and human condition. Elegance, coherence, and simplicity are valued attributes of any theory, but they are hollow and hopeless as ends in themselves; they must be subordinated to a more modest and, therefore, more useful project of inquiry and criticism that can lead to “large vistas and wide fresh air” rather than “ante-rooms and winding passages which seem to lead nowhither.”18

After Casaubon’s demise, Dorothea struggled to come to terms with the meaning of his death for her life. Not helped by Casaubon’s vengeful will (which made her inheritance conditional on not marrying Will Ladislaw, a young, if headstrong admirer), it took her a long time to break free of his chilling influence. Moreover, it took even longer for her to confound people’s opinion that, despite her reputed cleverness, she had thrown herself “at Mr. Casaubon’s feet and kissing his unfashionable shoe-ties as if he were a Protestant Pope.” Although she never subscribed to the uncharitable view (p.212) that he was “a cursed white-blooded pedantic coxcomb,” she did recognize the false allure of Casaubon’s scholarly pretension: “And Dorothea had so often had to check her weariness and impatience over this questionable riddle-guessing, as it revealed itself to her instead of the fellowship in high knowledge which was to make life worthier.” Dorothea intuited that intelligible and responsible action was not a gift from the gods or a result of allegiance to a priori truths about fixed principles; it was to be achieved in and through a social practice that interrogates standards of action as it formulates them. Moving from the parochial Middlemarch to a cosmopolitan London and marrying the free-spirited Will, she ended her days in “a life filled with beneficent activity.” Although she did not engage in grand projects, “the effect of her being on those around her was incalculably diffuse; for the growing good of the world is partly dependent on unhistoric acts; and that things are not so ill with you and me as they might have been, is half owing to the number who lived faithfully a hidden life, and rest in unvisited tombs.”19

Legal theorists would do well to imitate Dorothea’s humility: the self-image of legal theorists as privileged purveyors of special knowledge and as peripatetic traders in universal verities must be abandoned. As practiced in the analytical tradition, jurisprudence ought to have no particular authority or priority over democratic deliberation. In place of Casaubonic conceit, there is a definite need to give a more sympathetic account of Dorothea’s complaint and its implications for the practice of legal theorizing. Though most legal theorists are still prepared, through a combination of intellectual naivety, institutional allegiance, and political advantage, to buy into the possible realization of analytical jurisprudence’s philosophical project or, at least, to tolerate it as a noble undertaking, a number of pragmatic critics refuse to accept such a pretence. True to the Dorothean spirit of progressive transformation through more humble doings, they realize that traditional philosophical peregrinations not only lead ‘nowhither’, but that more is to be achieved by practical and unpretentious interventions than by grand and arcane gestures. Indeed, rather than perpetuate popular enthraldom to the cause of philosophical enlightenment, they insist upon the need for there to be critical disenchantment in the name of democratic empowerment. So understood, the pressing question of how people should live or think about law becomes not a methodological puzzle of abstract dimensions, but a substantive challenge of historical proportions. A juristic account or proposal is mistaken not because it is philosophically wrong, but because it is not practically useful. (p.213) So, what is it to be?—Dorothea or Casaubon? The actual construction of cottages for the poor or detached ruminations on abstract points of ancient architecture?


In its rejection of analytical jurisprudence, this book is intended as a jurisprudential call to democratic arms. Because jurisprudence took a wrong turn in 1832 by allying itself with analytical philosophy, this is no longer a reason, if ever it was, for legal theory to be perceived and practiced as such a narrow pursuit that lacks any real usefulness or practicality. Legal theory tends to serve its own scholarly interests more than anything else. Although democracy is in need of much further study and attention, it does at least offer itself as a viable institutional and substantive way of life through which to give people the genuine prospect of achieving some participatory control over their lives and the values that inform them. In particular, it works as a very real standard against which jurisprudence can most usefully measure its own exertions and attainments. In committing themselves to a strongly democratic cause, legal theorists can make a clean break from the sterile philosophical pre-occupations of Austin’s The Province of Jurisprudence Determined and other such abstract tomes. Instead, they might place jurisprudence in the service of a more vibrant political ambition. Of course, the realization of an unbuttoned democracy most probably will be at bottom a dream. But, like the best of dreams, it might work as a useful awakening to life’s fuller and more rewarding possibilities.

Not in Utopia, - subterranean fields, -

Or some secreted island, Heaven knows where!

But in the very world, which is the world

Of all of us, - the place where, in the end,

We find our happiness, or not at all.20



1 Of course, the implementation of social and institutional schemes by which such exuberant goals might be reached will demand an immense amount of effort and imagination. However, this is well beyond the mandate of this book. For an opening gambit, see ALLAN HUTCHINSON, THE COMPANIES WE KEEP: CORPORATE GOVERNANCE FOR A DEMOCRATIC SOCIETY (2006).



4 RICHARD POSNER, THE PROBLEMS OF JURISPRUDENCE 465 (1990). One critic opines that “no pragmatist has worked harder to break the link between pragmatism and deliberative democracy than Richard Posner.” ROBERT WESTBROOK, DEMOCRATIC HOPE: PRAGMATISM AND THE POLITICS OF TRUTH 197 (2005).

5 Richard Rorty, Dewey and Posner on Pragmatism and Moral Progress, 74 U. CHI. L. REV. 915 at 918 (2007) (quoting RICHARD POSNER, LAW, PRAGMATISM, AND DEMOCRACY 113 (2003)). Rorty conceded that he was a “quietist” and that “with respect to almost any kind of pure theorising, there are no practical consequences.” RICHARD RORTY AND PASCAL ENGEL, WHAT’S THE USE OF TRUTH? 33 and 52 (2007). For accounts of how democracy has been considered both uniquely consistent with pragmatism as well as being inconsistent with it, see Matthew Festenstein, Inquiry and Democracy in Contemporary Pragmatism in PRAGMATISM AND EUROPEAN SOCIAL THEORY (P. Baert and Bryan Turner eds 2007) and James Kloppenberg, Pragmatism: An Old Name for Some New Ways of Thinking, 83 J. OF AM. HIST 100 (1996).

6 JACQUES DERRIDA, POINTS …, INTERVIEWS 1974–94 69–70 (P. Kamuf trans. 1995). See also J. DERRIDA, LIMITED INC. 146–47 (1989). For a fuller consideration of the power/knowledge connection, see supra ch.7.

7 For other criticisms of pragmatism’s unnecessary quietism, see Stephen White, The Very Idea of A Critical Social Science: A Pragmatist Turn in THE CAMBRIDGE COMPANION TO CRITICAL THEORY 314 (Fred Rush ed. 2004). For provocative engagements with this aspect of Rorty’s work, see R. KUIPERS, SOLIDARITY AND THE STRANGER: THEMES IN THE SOCIAL PHILOSOPHY OF RICHARD RORTY (1997); RORTY AND HIS CRITICS (R. Brandom ed. 2000); G. ELIJAH DANN, AFTER RORTY: THE POSSIBILITIES FOR ETHICS AND RELIGIOUS BELIEF (2006); ALISON KADLEC, DEWEY’S CRITICAL PRAGMATISM (2007); and THE NEW PRAGMATISTS (C. Misak ed. 2007).

8 It is worth noting that Churchill said this in a House of Commons speech on November 11, 1947. This was not the convenient opinion of a sitting Prime Minister as he had already lost the post-War election and was, therefore, speaking in opposition after he had been democratically ousted.

9 JOHN DEWEY: THE LATER WORKS, 1925–53 vol. 12, 16 and vol. 13, 166 (Jo Ann Boydston ed. 1981–1990). This is not the place to highlight the shortcomings of Dewey’s detailed vision of democracy. Suffice it to say that he held a very moralistic account of democracy and its possibilities. He seemed almost wilfully naive about the potential for substantive oppression in his rather uniform depiction of democracy as a way of life and, as such, offered a democratic account that is ill-suited to modern pluralist society. Dewey tends to close down, not open up the moral options for citizens. See HILARY PUTNAM, PRAGMATISM: AN OPEN QUESTION (1995) and C. MISAK, TRUTH, POLITICS, MORALITY: PRAGMATISM AND DELIBERATION (2000).


11 TAKE CARE OF FREEDOM AND TRUTH WILL TAKE CARE OF ITSELF: INTERVIEWS WITH RICHARD RORTY 47 (Eduardo Mendieta ed. 2006). See generally RICHARD RORTY, CONTINGENCY, IRONY AND SOLIDARITY (1989). For a full-blown, if slightly dated critique of Rorty’s liberalism, see Allan acprof, The Three R’s: Reading/Rorty/Radically, 103 HARV. L. REV. 555 (1989).


13 GEORGE ELIOT, MIDDLEMARCH: A STUDY OF PROVINCIAL LIFE 26–27 (M. Drabble ed. 1985). Originally published in 1871 by Mary Ann Evans, it is described by Virginia Woolf as “one of the few English novels written for grown-up people.” Woolf, George Eliot in THE COMMON READER 166–76 (1925).

14 Id. at 7, 19 and 184. Casaubon is also the hero of Umberto Eco’s FOUCAULT’S PENDULUM (W. Weaver trans. 1989) who is involved in the search for the One True Meaning of Things. Eco insists that his Casaubon is not named after Eliot’s clergyman, but after the great philologist Isaac Casaubon. See U. Eco, The Text and Author in INTERPRETATION AND OVER-INTERPRETATION 81–82 (S. Collini ed. 1992).

15 Id. at 19.

16 Id. at 12, 19, 23, 22, 17 and 765.

17 Id. at 28, 179, 250 and 255.

18 Id. at 179.

19 Id. at 44, 199, 436 and 766.

20 WILLIAM WORDSWORTH, THE PRELUDE bk. XI, ll. 140–44 (1850).