Pragmatism and the Rule of Law

Catholic legal theory needs to account for the rule of law and the extent to which extralegal values have a role to play in adjudication.  Over at Balkinization, Brian Tamanaha dissects Judge Posner's vision of "pragmatic adjudication," as outlined in a recent debate with Brian Leiter, as a threat to the rule of law.  In his writing, Judge Posner has argued that the duty of judges is "always [to] try to do the best they can do for the present and the future, unchecked by any felt duty to secure consistency in principle with what other officials have done in the past."  Here's an excerpt from Tamanaha's critique:

My argument is that Posner’s descriptive claim is wrong: most judges strive to come up with the best—the strongest—legal outcome as dictated by the applicable rules. They do this whether the legal rules are clear or complicated and uncertain. When no strongest legal answer exists, which does happen, they may well try to figure out the most reasonable result in the manner that Posner suggests (what else can they do?). Of course, rule-bound judges still pay attention to results and consequences. When the outcome dictated by the rules is extremely unpalatable, they will struggle with the law to avoid this result. This does not change the fact that their overarching orientation is to try to figure out what the law requires, and to duly comply. This orientation is essential to a rule of law system.

This, too, is a realistic view of judging. Like Posner, I am a pragmatist. And my argument is that, for pragmatic reasons, owing to the harmful consequences to the rule of law that will follow from adopting Posner’s approach, judges should reject his pragmatic adjudication. . . .

The danger is this: if people within and outside the legal culture succumb to his view that judges already in fact decide cases in this manner, and should decide cases in this manner, more and more judges will begin to reason in this fashion. Then his descriptive claim will be correct, and, I fear, we will discover the untoward consequences of his prescriptive claim.

On this final point, the dialogue between Judge Posner and Professor Leiter was worrisome for another reason. It was an event sponsored by the Federalist Society at the University of Chicago Law School. Yet this group, explicitly dedicated to promoting the appointment of judges who commit themselves to follow the law, hardly challenged his ideas, which are fundamentally antithetical to this objective.