Title: John Dewey and the Democratic Life of the Law
Description: The animating goal of this dissertation is to reclaim John Dewey’s philosophy to present a case against the minimalist and elite assumptions that I identify in both legal theory and democratic theories today. The aim is to present a framework for rethinking the relationship between the normative value of legal processes and the nature of law itself, and to defend Dewey’s turn to a robust participatory democracy as a moral ideal and “a way of life.” The specific goals are twofold. Firstly, I offer a critical reading of core concepts in jurisprudence on the concept of law and the source of law’s normativity, especially in the works of John Austin and H.L.A. Hart. I argue that a basic thread links the works of John Austin and H.L. A Hart, as well as Richard Posner today, and champions of elite democracy generally: a descriptive and normative claim that the general public does not have the capacity to understand and actively participate in complex legal processes. As these accounts argue, our general treatment of laws – and, for Austin and Posner, our commitment to democracy and popular sovereignty – should not assume a constitutive role for the public.

I present this reading by reconstructing and expanding on arguments from Dewey’s critique of Austin and the prevailing legal theories in his day, in Chapter 1, and through a pragmatic reading of Lon Fuller’s critique of Hart, in Chapter 4. I argue that Austin and Hart’s theories have themselves been buttressed by anti-democratic claims about the epistemic competence of the public and their (lack of) ability and desire to engage in the complex processes of will formation. These understandings of law have, in turn, led to the mainstreaming of critiques – like that of Henry Maine – that robust participatory democracies are modern chimeras. The best we can hope for in a democracy is a check on the activities of officials. In short, the cycle is vicious: conceptions of law and critiques of democracy have been developed in lockstep based on a basic questioning of the public’s willingness and ability to shape and understand legal and political processes. The aim of this dissertation is to suggest, with a re-reading of Dewey’s philosophy, how we may begin to break this cycle, by rethinking core concepts of law, and of democracy’s relationship to law.

To that end, I offer a reconstruction of a Deweyan philosophy of law to reconsider questions of the social sources of law and its relationship to robust participatory democracy. The second overarching aim of the dissertation is a reading and defense of Dewey’s ethical conception of democracy. This reading of Dewey is grounded in Dewey’s commitment to providing the framework for securing values and “the full development of human beings as individuals” on equal and collaborative terms. Dewey developed his account in part against critics of participatory democracy, like Henry Maine and Walter Lippmann, who sought to deflate the definition of democracy as one form of government among others, differentiated only by the majoritarian principle in determining who rules. As I will demonstrate, Posner’s selective reading of features of Dewey’s theory of knowledge and inquiry, and his pragmatic philosophy more generally, allows him to see epistemological justifications of democracy as indefensible against empirical findings of low IQs and the demands and dreariness of political participation.

Dewey’s experimentalism and ‘methods of intelligence’, which I discuss in Chapter 2 and 3 of this dissertation, provided philosophical warrant for a much more robust defense of democracy than Posner acknowledges.