On Reuniting Legal Realism with Moral Pragmatism

This post is part of a symposium on Elizabeth Anderson’s Private Government: How Employers Rule Our Lives (and Why We Don’t Talk about It). Read the complete symposium here.

Luke Herrine 

anderson book cover

In 1987 Robert Gordon recounted finding among those “in the center or left of American liberalism…this paralysis, founded in their sense that legal and social realities are frozen, that we have reached the end of history and that the possibility of fundamental change is now forever closed to us.” Gordon’s experience is not unique, of course. The critical project of “unfreezing legal reality” to make it more pliable for egalitarian restructuring has had to confront not only the legal system’s own defense mechanisms but a set of discourses that make it hard to think outside the current system.

As many members of this blog have noted, neoclassical economics has been the most powerful such discourse, but moral philosophy—even that produced by egalitarians—has been similarly unforgiving. Most debates in Anglo-American moral and political philosophy have taken place in the realm of the ideal. Political morality amounts to articulating the constitution reasonable persons would agree to ideal conditions. Legal reasoning requires “rational reconstruction” of existing institutions to understand their moral structure. Egalitarianism is about figuring out how to set up idealized (read: using neoclassical assumptions) insurance markets to correct for inequalities of luck while maintaining room for agency. The idealizations of the debates tend to vacillate between being so unlike our actual world as to be difficult to make sense of or so like our actual world as to “freeze” it by moralizing existing institutions. They may help clear up some of our ideas, but they do not give us much to work with in the project of dismantling oppressive institutions and building democratic ones in their place.

Many critical legal theorists sought alternatives in deconstructive theories, which more often than not were so totalizing that they left little sense that one anybody (except perhaps judges) could do anything productive to reshape society.

Elizabeth Anderson has been the foremost advocate of a pragmatic alternative that treats moral theory like realists treat law: as a going concern. Following a venerable American tradition starting with Peirce, James, and Dewey, she understands moral debate as happening in media res, between socially and historically situated actors attempting to make sense of their attitudes about the world in the process of acting on it. Concepts like “freedom”, “equality”, and “exploitation” evolve out of historically embedded attempts to express attitudes about certain institutional arrangement; they necessarily evolve as arrangements change and as we reflect on what we really ought to care about regarding them. Moral philosophy is merely an extension of everyday reflective and discursive practices, and, if it strays too far from those practices, it results in concepts and arguments that have little or confused relevance to the real world. The process of deciding on ends is not separated from the evaluation of available means in any given context, and both are tied to our evolving understandings of how the world works. It is a process of ongoing recalibration.

This way of going about things gives moral inquiry a more democratic orientation without descending into mere majoritarianism. What is moral is not what some decontextualized agents would agree to, nor is it whatever the majority of people actually agree to: it is the best current way of making sense of “what we care about and what it makes sense to care about, in ways we can reflectively endorse and successfully adopt in practice.” Who counts as part of this “we”—who gets to raise objections and present new arguments—is inextricable from the substantive questions at issue. In an egalitarian account, there is a role for expertise in sussing out bad arguments and in investigating the empirical assumptions built into moral reasoning, but the process of moral reasoning must be open to all who are open to it. Moral philosophy opens space for critique, imagination, and experimentation without insisting that critique be totalizing or an articulation of moral obligations be grounded in a conceptual analysis of foundational moral concepts.

Building on previous work the role of feminism in scientific inquiry, on racial integration, on the meaning of equality, and related topics, Private Government illustrates the relevance of pragmatic moral theory for thinking about legal institutions.

Anderson starts by proposing we find government “wherever some have the authority to issue orders to others, backed by sanctions, in one or more domains of life.” Government is understood functionally, as a relationship between two or more people, not formally. As she notes, in complex societies, government in this sense is everywhere, inside and outside the state. It is not inherently good or bad (like Hale’s concept of “coercion”). And it exists in degrees: those with more coercive resources have more power to issue orders and more ability to sanction.

To help make moral sense of the omnipresence of government, Anderson argues that, given concerns about freedom and equality, where government is necessary, it must be public. What is a public government? Well, a “private government” is that which “treat[s] it as none of [the governed’s] business…what orders it issues”, and a “public government” is the inverse: a government accountable to the governed. Again, these are relational concepts (a government can be private to some and public to others) that are matters of degree. And they are flexible enough to allow for multiple institutional instantiations: publicity can be achieved through enabling easy exit from a government, through procedural rights, through substantive rights, through giving the governed a role (a “voice”) in their own government, or through some combination. And each of these concepts is flexible: there are many varieties of substantive rights and many ways to give the governed a way of participating in government. This flexibility allows the concepts to be applied across a variety of contexts that we care about without forcing those contexts into a formal framework. Instead, these concepts help to point to a moral problem and to channel collective deliberation about what to do about it.

In the context of the employment relationship, this becomes an argument for workplace democracy distinct from (but obviously related to) the question of distribution. Beyond the domain of the workplace, it becomes a way of insisting that we ask who is actually making the relevant decisions regardless of legal formalities and what are the mechanisms holding them accountable to those affected by them. Like Foucault, Anderson reads a political morality—a way of reasoning about power—all the way down into the interstices of society. Unlike Foucault, she provides tools to think morally about this power beyond fetishizing individual resistance. This way of framing the discussion is surely relevant to the rethinking of antitrust, of monetary policy, of immigration law, of (my own pet project) consumer protection, and much else besides.

Before concluding, though, I must sound a sour note. It is a bizarre and troubling experience to read a sophisticated egalitarian author like Anderson describe the power of capitalists over workers as “communist,” without even the least argument for the use of that term. There is nothing distinctively “communist” about authoritarianism, though communist regimes have, of course, turned brutally authoritarian. As Anderson surely knows, leftist thinkers, including communists, developed quite similar arguments for anti-formalism, egalitarianism, and democratic republicanism. I cannot help but suspect that Anderson uses “communist” as an epithet to distance herself from a tradition to which she is indebted, perhaps to avoid the redbaiting still with us in the long shadow of the Cold War. In this regard, it is notable that her historical narrative skips over the way socialists and communists developed republican ideas over the course of the 19th and 20th century.

This fault does not undermine the value of Anderson’s work, and we can draw from her and from labor radicals simultaneously in our own projects of unfreezing legal reality. Anderson’s updated version of pragmatism is a fitting complement to the updated versions of legal realism that LPE is in the process of working out.

Luke Herrine is a Ph.D Candidate at Yale Law School.