S894 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [56:S855 Richard Posner’s discussion of legal pragmatism is relevant here. Legal pragmatism, a results-oriented method for navigating law and legal argumentation, provides that the law should advance just, practical outcomes, to the extent possible. Scholars, advocates, and judges should consider not only traditional sources of law but also the human and moral ramifications of law. They must strike the appropriate balance between these considerations, mindful that an articulation of law that is too unmoored from the traditional sources jeopardizes institutional legitimacy: The pragmatic judge must bear in mind at all times that he is a judge and that this means he must consider all the legal materials and arguments that can be brought to bear upon the case. If legal reasoning is modestly defined as reasoning with reference to distinctive legal materials such as statutes and legal doctrines and to the law’s traditional preoccupations, for example with stability, the right to be heard, and the other “rule of law” virtues, then it ought to be an ingredient of every legal decision, though not necessarily the decision’s be-all and end-all. 255 Failure to consider the institutional or long-term ramifications of a particular judgment or articulation of law is “myopic pragmatism,” at best. 256 This is to say, the legitimacy of international law, or any legal system, cannot be derived exclusively from positive sources of law, notwithstanding the principle of voluntarism. 257 Overstatements of law, when measured and principled, can be legitimate themselves and can lead to a more legitimate legal regime. (“When we were invited to contribute a positivist perspective to the present symposium, we did not know whether to regard this invitation as flattering or as an insult: does positivism not represent . . . naive ideas of dead white males on the possibility of objectivity in law and morals? . . . [W]e have certainly not seen ourselves as positivists of that kind.”). 255. Richard Posner, Pragmatic Adjudication, 18 CARDOZO L. REV. 1, 16 (1996). 256. Id. at 17. 257. A commonly used illustration: Does customary international law prohibit torture, even though States frequently engage in torture, fail to criminalize torture, or fail to enforce municipal laws prohibiting torture? Scholars have argued that statements by State representatives and the widespread adoption of the Convention Against Torture reflect sufficient State practice to identify a customary rule, indeed a peremptory norm. Perhaps. Consider, however, the legitimacy of the international human rights regime if there were no prohibition on torture. It is immediately apparent that the human rights regime must prohibit torture, irrespective of inconsistent State practice, if any number of other rights should exist. Electronic copy available at: https://ssrn.com/abstract=2954729