Our author reasonably considers legal pragmatism to be “shocking.” A pragmatic-minded judge “denies that past political decisions in themselves provide any justification for either using or withholding the state’s coercive power. He finds the necessary justification for coercion in the justice or efficiency or some other contemporary virtue of the coercive decision itself, as and when it is made by judges, and he adds that consistency with any past legislative or judicial decision does not in principle contribute to the justice or virtue of any present one. If judges are guided by this advice, he believes, then unless they make great mistakes, the coercion they direct will make the community’s future brighter, liberated from the dead hand of the past and the fetish of consistency for its own sake.” (151)

It is obvious that pragmatism grants an enormous amount of power to judges vis-à-vis the legislative branch of the government, power that they cannot handle responsibly, and to such an extent that the legislature is rendered almost entirely ineffectual.

Again, a judge is wise (the 7th virtue) but his understanding (the 6th virtue) of society is woefully deficient when compared to that of a deliberative lawmaking body. As a result, judges are not qualified to “invent new rules for the future in accordance with their convictions about what is best for society as a whole.” (159-60)

Of course, if we take a rather extreme anarcho-capitalist position that no positive law is just and that there should be no such thing as public legislatures at all, then judicial pragmatism becomes a natural fallback alternative.

Otherwise, pragmatism turns judges into veritable tyrants. And this is unfitting and indeed, shocking.


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