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Michael Sullivan Legal Pragmatism: Community, Rights, and Democracy Bloomington: Indiana University Press, 2007. 15 9 pp.
The renaissance of American pragmatism continues in new quarters, now among legal scholars, philosophers of law, and legal practitioners. Although the "pragmatism" on offer varies among advocates, and debate is vigorous, the parties agree that pragmatism has something valuable to say about law.1 In Legal Pragmatism, Michael Sullivan draws on Peirce, James, and Dewey for a compelling, pragmatic approach to legal rights, judicial review, and social conflict. Tying legal theory and practice to Emerson's expansive vision of democracy, Sullivan argues that pragmatism can help realize a more democratic society through the deliberate reconstruction of social practice and institutions. The book is well organized and focused, clear and concise, compelling and quite timely. It deserves close reading, preferably in conjunction with other recent contributions to legal pragmatism by Beth Singer, Susan Haack, and Vincent Colapietro that also draw on classical pragmatism for inspiration.2
According to Sullivan, three obstacles block development of his legal pragmatism. The first is the widespread communitarian critique of individual rights. Communitarians believe liberalism has gone overboard, that "rights talk" reinforces atomistic individuality, and that the constant and pervasive invocation of rights in our society destroys conditions needed for genuine community (8). To further emphasize rights, therefore, would only be deleterious. Sullivan's response is refreshing. Instead of adding an epicycle to old arguments, he insists on close observation of how individual rights have been historically understood and implemented by the American judiciary. Sullivan shows that although rights are often extolled by courts, rhetoric does not match reality. In case after case, judges solemnly extol individual rights, then summarily curtail them. In Whitney v. California, for example, Justice Brandeis famously and eloquently invoked the founding fathers' conception of democracy to underscore the importance of free speech and assembly to liberty, happiness, and the health of good government. Brandeis nevertheless joined the court's opinion, which deemed state interests more important than Ms. Whitney's right to free speech, assembly, and association (11 -12).3
Sullivan shows that this result-courts lip-serving rights in the very act of curtailing them-is common occurrence. In school cases involving rights to assembly, speech, and expression, for example, courts frequently subordinate students' rights to state interests...