Abstract

My general purpose is to take cautious yet firm steps towards advancing a distinctively pragmatic theory of law. I trace its emergence within the context of American legal theory between about the time of the Civil War and World War II and philosophy in America during the same period. Legal pragmatism is viewed as an alternative to the reigning theories of law of the day, the varieties of legal positivism and natural law theory. The pragmatic theory of law shares some of the characteristics of these other theories while avoiding some of the common pitfalls. In suggesting how the pragmatic theory of law stacks up against its rivals, some of the work of Austin, Hart, and Fuller is considered. ;For legal philosophers and jurists, the problem of method is the problem of determining the meaning of legal concepts and the ascription of liability. The bulk of this study thus is preoccupied with the problem of determination of method. It is by no means transparent what the legal pragmatists meant by method. How many methods did they each endorse? Did they invoke one supervenient method grounded in experience, or two or more methods? Each legal pragmatist , I argue, deployed two methods, logic or the analytical and experience or the historical. Yet, in the end, they viewed the twin methods of logic and experience as two prongs of the same method or argument. ;In exploring the philosophical and historical currents that bound the two pragmatisms together, I explode some common misconceptions. For instance, legal pragmatists owe only part of their inheritance to the ideas developed during the heyday of the Metaphysical Club. Their philosophical diet consisted as much of distinctive legal sources as evolutionary theory in its biological aspect or philosophy and psychology in their empirical and rationalist molds. Other misconceptions center around the subtle relationship between legal meaning, language, and value, such as the typical identification of Holmes' predictive theory of law with the bad man argument, and the conflation of pragmatism and positivism in their philosophical and jurisprudential forms. I also flesh out what I take to be some revealing suggestions made by several of the legal pragmatists, who associated, in tantalizing ways, their theories of law with the probabalistic logic of actuarial science