Vol. 14 No. 2 (February 2004)

RENASCENT PRAGMATISM: STUDIES IN LAW AND SOCIAL SCIENCE by Alfonso Morales (editor). Burlington, Vermont: Ashgate Publishing Company 2003. 252pp.   Cloth $99.95 ISBN 0-7546-2180-4.

Reviewed by Ira L. Strauber, Department of Political Science, Grinnell College. Strauber@Grinnell.edu .

In 1935, John Dewey published an essay, "Renascent Liberalism," and one of its themes was that a primary educational task of a revitalized American pragmatism was to foster the social scientific method as a social asset to generate liberty and opportunities for personal development in society.  The Forward to RENASCENT PRAGMATISM, a volume of essays edited by Professor of Sociology and Anthropology Alfonso Morales for Austin Sarat's "Law, Justice, and Powers" series, assertively situates pragmatism in socio-legal studies in its 21st century moment of revitalization for the sake of ends comparable to Dewey's.

Morales' strongly written Forward to this volume associates this more recent renewed interest in pragmatism to scholarly worries about addressing public policies "that [actually would] work" and with scholarly discontent with academic socio-legal theorizing that has proved to be inadequate (or worse irrelevant to) advancing such policies (p.xvii).    Morales' volume should be welcomed because the authors of the essays directly engage these concerns and discontent by addressing various philosophical, epistemological, and methodical facets of a pragmatic, non-positivistic, and non-foundationalist behavioral social science.   This social science, as depicted by Morales, and represented by the essays of the volume, is avowedly instrumental, as it is uncompromisingly concerned with "active control of ourselves and our environment" (p.xii)-what a half-century or so ago was called "social engineering"-while it treats "intellectual problems…. [as] matters of personal perspective as well as aspects of public matters and activities" (p.xi).   

The Forward also foreshadows how and why most of the essays of the volume share a commitment to democracy, in and outside the academy.  Outside the academy, the commitment is to greater political participation, to a political process more open to competing and diverse perspectives, and to egalitarianism.   Inside the academy, as Morales portrays it, the commitment is to "profoundly democratic" scholarship (p.xxii) that invites broad and deep academic participation because it embraces skepticism, intellectual experimentalism, and openness to the contingent nature of social life.   Both outside and inside the academy, there is also a commitment to a "tough-minded optimism" (p.xx) which would shape pursuit of the elusive goal of "constructing social institutions that would allow people with interests and values in conflict to negotiate solutions from below rather than have them imposed from above" (p.xvi).   Morales represents this optimism as vital to challenging liberal democracy to fulfill its progressive aspirations (as much as that is possible) via progressive lawyering and social science (that breaks with ostensible narrow disciplinary and professional preoccupations) which seek to "bear fruit in social policy" (p.xiv).   

The essays in this volume are, in effect, "briefs" that counsel readers about what the authors believe should be pragmatism's path toward managing the scholarly worries and discontent indicated in the Forward.  As such, I found the volume to be a coherent, engaging, and thought provoking (implicit) sum of its parts.  All of the essays represent their counsel as part of an on-going debate about pragmatism and/or social science in some selected corner of the legal, philosophical, sociological, anthropological, or political science literatures.  Readers interested in pragmatism, law, social science, and public policy, but who are less familiar with debates in one or more of those corners, should have no problem understanding the whys and wherefores of the briefs.   Readers who are more familiar with those debates will find it worthwhile to reflect on how these briefs portray those debates.

As for the essays themselves, Part I attends to philosophical (primarily epistemological) arguments in defense of a pragmatic social science.  William G. Weaver grapples with what he finds to be an intellectual dilemma for pragmatists on the Left who are committed to an anti-foundationalism of the likes of Oliver Wendell Holmes and Richard Posner, but also to an instrumental role of progressive social theory.  Weaver contends that those on the Left find themselves confronting this dilemma because they make the mistake of associating Holmes' pragmatism with Posner's, rather than associating pragmatism with Darwin and John Dewey.  Weaver proposes that the re-association of Holmes, Darwin, and Dewey provides a way to layer Holmesian anti-foundationalism with a pragmatic notion of theory compatible with aspirations for progressive social policies (despite some of Holmes' own political views to the contrary). 

Weaver's re-association frames Holmes' vision of the law as encouraging a wide-open  "conversation" about the past, present, and future that ought to be open to "multiplying distinctions and finding new ways of thinking and talking about our problems and dilemmas" (p.11).   Even then there is no guarantee of progressive results, and Weaver contends that, if those on the Left choose to engage in this conversation, then they will have to come to grips with the social fact that theory cannot be the handmaiden of progress-only the push and pull of conversations over the course of time will determine whether the law is progressive.   Despite this discouraging word for theory, Weaver does allow that theory, pragmatically practiced, can play a role in legal conversations by serving as a jumping off-point for reasoning about social change.  But theory can be no more than a jumping off point. "Progress," says Weaver, can be no more than doing what is required to "mak[e] sure that members of the community have access to the conversations of our culture" (p05).  From this point of view, Weaver seeks to rescue Holmes from the undue hostility of scholars on the Left and undo the association with scholars, lawyers, and judges on the Right.

Feminist philosopher Charlene Haddock Seigfried also addresses commitments to democratic processes, political participation, and the multiplication of diversity in dealing with social issues.  In this context, as Seigfried sees it, a primary problem in scholarship and in practice is that the expression of a multiplicity of multicultural voices threatens either to exacerbate differences and discord between people on the one hand, or, it threatens, on the other, to collapse into a false consensus that distorts or covers up diverse cultural and social identities.  To Seigfried, one of the main obstacles to responding effectively to this problem in the academy is "standpoint" epistemologies-policy paradigms for the causes of minorities or marginalized groups that (Seigfried says) self-righteously privilege  their own causes and reject possibilities for the reform and transformation of the polity via a respite with opponents and participation in conventional processes and institutions.

Accordingly, Seigfried recommends a paradigm shift (my term) on the part of advocates of multicultural causes.  This shift has its provenance in the ideas and politics of turn-of-the-century political thinker and activist Jane Addams.  One crucial lesson that Addams' ideas and politics is said to teach is about how people can convert their distinctive moral, social, and political experiences into policy positions that are "strong enough to overturn tradition instead of reflecting it" (p.44).   These policies are said to be attainable by working with apparent opponents and within existing processes and institutions without surrendering core values and aspirations.  Another lesson, especially for those on the Left, is that in order to be politically efficacious, advocates of (multicultural) causes need to be more skeptical about their own standpoints and more experimental in seeking ways to advance their own causes, while at the same time maintaining some considerable measure of confidence in others (p.46).  Both of these lessons reminded me of arguments by Louis M. Seidman and Mark Tushnet in REMNANTS OF BELIEF.

Law professor Brian Z. Tamanaha's interests focus on the more theoretical side of things.   Specifically, Tamanaha has a hearty interest in formulating an anti-foundationalist and pragmatic conception of science, philosophy, truth, and method.   His work on these topics resonates explicitly and tacitly throughout this volume, and he also functions as a stand-in for "Stanley Fish" on pragmatism.  Like Fish, Tamanaha insists that pragmatism is totally "neutral" in that it is devoid of ideals, values, or substantive concerns beyond making and investigating the strengths and weaknesses of natural and social knowledge.   Since many of the other contributors cite Tamanaha on issues of science, philosophy, truth, and method, but also try to hold to a tight connection between pragmatism, democracy, and egalitarianism, perhaps it is worth commenting that there is no essay directly confronting Tamanaha's views. (However, it should be said that Morales has done some of this work in his 1998 LAW & SOCIETY review of Tamanaha's REALISTIC SOCIAL-LEGAL THEORY, and several symposium papers on Tamanaha's work were published in a 2000 issue of the RUTGERS LAW JOURNAL).

In the volume under review, Tamanaha speaks to his (on-going) skepticism about conceptions of "ideology" in socio-legal studies.  Tamanaha distinguishes three different versions of ideology: a basically neutral one that brings into play ideas related to theories about the social construction of reality; a basically pejorative one that brings into play ideas related to theories about forces that create distortions in perceptions of reality or false-consciousness; and a modified version that recognizes that world views are socially constructed and distort reality to the extent they occlude alternative social constructions.  He specifies the strengths and weaknesses of each, and he defends a fourth, pragmatic, use of ideology that, he contends, best compensates for the weakness of the others while capitalizing on their respective strengths.

Tamanaha's pragmatic version of ideology is drawn from a reading of Dewey, William James, as well as his own anti-foundationalist conception of the norms of natural and social science.  The two central premises here are that "knowledge and truths . . . [are] social achievements" but it is also necessary to take into account that there is a "world out there [that] has its own facticity" (p.60). Consequently, Tamanaha endorses a so-called socially realistic and "restricted" version of ideology.  It requires that social scientists establish, by observation and empirical analysis, what constitutes human conduct and its auxiliary consequences; then analysts should, by observations and empirical analysis, determine the extent to which that conduct and its consequences are consistent with stated intentions of the actors.  Then, and only then, Tamanaha insists, are social scientists justified in explaining behavior in terms of false consciousness or distorted conceptions of reality; and even so, such explanations are to be treated as one of other possible explanations for gaps between intentions and conduct (pp.66-70).  This approach, Tamanaha argues, is compatible with "the historical identity of the social sciences as an enterprise concerned with gathering and conveying reliable knowledge about the reality of social life" (p00).

Murray J. Leaf, a scholar of anthropology and political economy, tries his hand at a pragmatic analysis of relationships between the functions of legal institutions and legal reasoning in hard cases.   One backdrop for this analysis is Leaf's disagreement with Tamanaha about the absence of pragmatic ideals, values, and substantive concerns.  Another backdrop is Leaf's disagreement with Posner who is cast as linking Holmes and Roscoe Pound to the idea that judicial decisions ultimately must be personal and subjective.  It is Leaf's alternative position that the norms of legal institutions-"each individual system defines interests and the means of attaining them within the framework of that system, and such definitions provide standards for rational action in the sense of ways to relate means and ends" (p.82)-and the law's "normative content" (p.88) embed values that constrain judging and thereby provide a basis for evaluating the correctness of legal decisions.   The groundwork for this evaluation embedded in the law is instrumental and historical: legal "solutions work in fact, [and] that it is on that account that they eventually become accepted, and that they change the law itself" (p.85).

I assume that political scientists familiar with the new institutionalism and a constitutive approach to the law will find themselves on well-trod ground.  Leaf describes this ground in his own terms that revolve around how the law provides a multiplicity of ways for judges to frame a case, and how legal decision-making,   although it is, in many respects, no different from ordinary decision-making (p.83), is special because it is perceived to adhere to the institutional norm and public expectation that like cases be treated alike.  Also involved here is the perception on the part of citizens that the law has satisfied the interests of the ordinary lives of citizens (pp.85-88).  This perception, along with the norms, expectations, and interests of citizens associated with them, are said to constrain judicial subjectivity and to be the source of criteria for evaluating judicial decision-making.

The authors of Part II of this volume give their attention to methodological issues related to pragmatic social scientific inquiry. Leaf reappears, this time to present a philosophical defense of scientific and pragmatic legal ethnography-i.e., relationships among data, method, and theory for observing and analyzing the appearance of law in society.   According to Leaf, ethnography is process-oriented, primarily concerned with integrating the experimental method and testing of natural science with social scientific investigations of "conceptual structure of symbolic interaction in which ideas are used and through which purposes are pursued" (p.96).  Since conceptualization of this structure is essentially contestable, Leaf defends the dictum that concepts be tested against field evidence in legal ethnography; a field which he contends is distinguishable from ethnographic studies generally, that are dominated by "positivist" and Marxist approaches.  Leaf also briefly touches upon why his version of legal ethnography is consistent with surveys, cross-cultural comparisons, and conventional issues of validity.

William P. Fisher, Jr., an education scholar with a specialty in statistical measurement and analysis, is also concerned with issues of validity.  He provides a philosophical and historical context for understanding the evolving science of measurement (metrology).  From that frame of reference he advances a five-fold agenda for quantification in psychosocial studies.   If I have it right (the ideas and concepts of this topic are unfamiliar to me), the agenda is as follows: to develop an appreciation of the role and necessity of uniform data standards, taking advantage of business and industry innovations; to develop shared and continuous re-evaluations of standards for measurement instruments; to encourage  research into measurement ranges and the theory of the variable;  to concentrate efforts to create a shared common metric; and to develop procedures for monitoring this standard metric.  Dramatically, the conclusion of this essay calls for a community of scholars who seek a renascence for quantification in pursuit of "a new scientific and cultural revolution" for the human studies, likened to the natural scientific revolution of 1250-1600 (p.140).

Part III explores methodological issues associated with pragmatic inquiry predicated on democratic values, skepticism, experimentalism, and an appreciation of the contingent nature of knowledge about policy and politics.  In this context, political scientists Anne Larason Schneider and Helen Ingram argue that theoretical links between public policy analysis and concerns such as increasing participation and decreasing injustices (p.158) should be based upon skepticism over dominant interpretations of policies and a corresponding mix of multiple methods of analysis (p.159).  This skepticism is endorsed for the sake of a more balanced understanding of the widest possible range of alternative policy scenarios.  Like Tamanaha, these political scientists are advocates of "realism" in policy analysis, and they provide short descriptions of policies regarding water resources and criminal justice to demonstrate how balancing scenarios provides a way of ferreting out social fact considerations often occluded in policy analysis.

Cary Coglianese, also a political scientist, is skeptical as well.  His skepticism concerns the value of consensus as a component of democratic deliberation and public participation in policy formation.  Based on his analysis of EPA litigation rates, Coglianese defends the thesis that whatever theoretical attractions consensus might have, in practice "consensus is decidedly ineffectual for making sound, legitimate regulatory policy" (pp.181-82).  Coglianese catalogs a number of disappointments or unintended negative consequences-e.g., consensus does not decrease litigation, but it tends to push policy formation to a lower common denominator.   These results are sufficient for Coglianese to reject consensus as a goal because it "offers little by way of countervailing benefits that cannot already be achieved by other processes of public participation" (p.182).  This rejectionist conclusion is an interesting contrapuntal to Schneider's and Ingram's recommendation that policy analysis should seek a balance between various and competing analyses.

Part IV presents two case studies that speak to theoretical skepticism and an appreciation of the contingent nature of knowledge about policy and politics.  Editor Morales and doctoral student Robert R. Jimenez analyze interview data of social movement leaders to test a dominant idea in the literature about leadership.  The idea tested is that leaders practice either "professional" or "entrepreneurial" strategies exclusively in advancing social causes.  In the search for "behavioral regularities" (p.199) that will explain leadership actions within the context of specific circumstances, the authors report that social movement leaders mix and match strategies to coincide with contingent social fact considerations and policy exigencies.  On that basis the authors recommend that analysis be better framed by categorizations, that correspond to the perspectives of social actors rather than merely to the theoretical constructs of analysts.  This correspondence between categories and the perspectives of social actors, they argue, is more likely to encompass the contingent nature of social action.  Of course, this argument, and the social science it recommends and challenges, will not be unfamiliar to political scientists or law and society scholars.

Finally, Law Professor Peter Margulies confronts what he calls the "pragmatist dilemma" (p020) in social scientific inquiry-that is, the challenge of developing stable theories about social action and behavior, which are contingent and unstable phenomena. Margulies associates this dilemma with practical theorizing in public interest lawyering, which has to crisscross between rank instrumentalism on the one hand and concerns about "authenticity" (human needs and values) of clients on the other.  He also associates this dilemma with a renascent pragmatism that represents reaction to Holmes and Louis Brandeis.   The former, in his support for WWI and condemnation of pacifists, and the latter, in his supposed disdain for his own clients' point of view, are indicated as examples for how susceptible pragmatism is to coming down too heavily and too often on the instrumental side of things.  Margulies' case study of domestic violence advocacy is intended to demonstrate the virtues of practical theory that is less susceptible to rank instrumentalism, by mixing and matching retrospective and prospective legal strategies in order to achieve something of a balance between instrumental goals and attention to clients' interests and concerns (p020).  Even so, Margulies points out that the very nature of legal advocacy should limit a lawyer's expectations for success.  I take this to mean that, in response to the dilemma, theory is stable if it takes into account the contingencies of social fact considerations, but analysts must be keenly aware of the inevitable gaps that arise between theory and real world occurrences.

To focus particularly on the fact that this volume closes squarely on issues of the construction of practical linkages between theory and actual policies and practices, I want to bring to readers' attention an essay in THE REVIVAL OF PRAGMATISM (Dickstein, ed.).  In that volume, Alan Wolfe attributes the "relative lack of interest in pragmatism among social scientists" (p000), in great part, to the failure of pragmatists to move beyond Dewey and to deliver the goods with regard to demonstrating methodological linkages between pragmatism and social science.  As indicated at the top, this volume presents attempts to forge such linkages as an overarching goal of a renascent pragmatism.  Consequently, I think that it is fitting (and I also predict that it will be rewarding) for social scientifically-minded readers to focus on the strengths and weaknesses of these essays with regard to how well they meet the test of relating their claims to a non-positivistic, and non-foundationalist social science.  (But readers will probably be using a library copy for this undertaking because this volume is available only in an expensive hardback binding.)

Because this is a multi-disciplinary volume, readers who put these essays to the test should be prepared to make judgments about what is relevant across disciplines. "Coreligionists" will have to determine the extent to which specific disciplines do indeed advance the conduct of social scientific inquiry.  Fortunately, virtually all of the essays are readily accessible, so that social scientists interested in the promise of a pragmatic social science will find much here worth serious consideration.

REFERENCES:

Dewey, John. 1935. LIBERALISM AND SOCIAL ACTION. New York.  G.P. Putnam and Sons.

Dickstein, Morris (ed.). 1998. THE REVIVAL OF PRAGMATISM: NEW ESSAYS ON SOCIAL THOUGHT, LAW AND CULTURE. Durham, NC: Duke University Press.

Livingston, Michael A.  2000.  "Symposium: Law, Social Science, and Pragmatism: Insiders, Outsiders, And The Power Of Institutional Loyalties: Thoughts On "Realistic Socio-Legal Theory."  32 RUTGERS LAW JOURNAL 271.

Morales, Alfonso. 1998. "Pragmatism's Mundanity: Epistemic Foundations For Practicing Sociological Science." 32 LAW & SOCIETY REVIEW 493.

Patterson, Dennis. 2000.  "Symposium: Law, Social Science, and Pragmatism."  32 RUTGERS LAW JOURNAL 225.

Rubin, Edward L. 2000.  "Symposium: Law, Social Science, and Pragmatism:  Scholars, Judges and Phenomenology: Comments On Tamanaha's Realistic Socio-Legal Theory." 32 RUTGERS LAW JOURNAL 241.

Seidman, Louis Michael and Mark V. Tushnet. 1996. REMNANTS OF BELIEF, CONTEMPORARY CONSTITUTIONAL ISSUES.  New York and Oxford:  Oxford University Press.

Tamanaha, Brian Z.  2000.  "Symposium: Law, Social Science, and Pragmatism: Conceptual Analysis, Continental Social Theory, and CLS: A Response to Bix, Rubin, and Livingston."  32 RUTGERS LAW JOURNAL 281.

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Copyright 2004 by the author,
Ira L. Strauber.