The controversy over judicial activism is as old as the question whether law is “made” or “found” by the courts, and is die quintessential living question for legal philosophers. Here the practical meets the abstract, as Supreme Court justices must, explicitly or not, adopt some philosophical viewpoint in deciding how general constitutional propositions do, or do not, decide current concress te controversies.

This book develops John Dewey's broad conception of social conflict as a natural process of discovery and preference adjustment, resolving Kenneth Arrow's famous theorem of the impossibility of ordering diverse preferences through voting. It addresses the nature and resolution of today's urgent problems and political polarization.

Departing from hypothetical dilemmas and drawing on examples from law, this paper offers a pragmatist account of normative induction that characterizes moral particularism and generalism as stages of inquiry into ethical problems, rather than rival accounts of moral knowledge and motivation. Pragmatism’s response to analytical moral theory lies in understanding the transformative nature of John Dewey’s social continuum of inquiry. The continuum is unrecognized in the analysis of hypothetical dilemmas, like the trolley problem, but can clearly be seen in studies (...) of law. Real moral dilemmas represent actual conflicts, of which the dimensions emerge through experience and the solution cannot be addressed through the analysis of cleverly balanced moral puzzles. Repeated over time, real problems drive the consensual formation and revision of social practices and the predication of general moral rules and principles. Ethical particularism holds that the evaluative cannot be “cashed out” propositionally, and that it is descriptively “shapeless.” It fails to recognize that real moral problems occur in a continuum, and at first encounter a shapeless particularist context of seemingly unlimited non-moral properties. Normativity is driven by repetition of similar situations toward shared practices and descriptive predication. Rather than a Dancian retention of epistemic status by defeated reasons, this illustrates retirement of relevant properties and accompanying reasons, transformation of the reasons environment, and a pluralist normative ontology. (shrink)

Oliver Wendell Holmes, Jr, is considered by many to be the most influential American jurist. The voluminous literature devoted to his writings and legal thought, however, is diverse and inconsistent. In this study, Frederic R. Kellogg follows Holmes's intellectual path from his early writings through his judicial career. He offers a fresh perspective that addresses the views of Holmes's leading critics and explains his relevance to the controversy over judicial activism and restraint. Holmes is shown to be an original legal (...) theorist who reconceived common law as a theory of social inquiry and who applied his insights to constitutional law. From his empirical and naturalist perspective on law, with its roots in American pragmatism, emerged Holmes's distinctive judicial and constitutional restraint. Kellogg distinguishes Holmes from analytical legal positivism and contrasts him with a range of thinkers. (shrink)

This book presents the work of Polish and American philosophers about Poland's transition from Communist domination to democracy. Among their topics are nationalism, liberalism, law and justice, academic freedom, religion, fascism, and anti-Semitism. Beyond their insights into the ongoing situation in Poland, these essays have broader implications, inspiring reflection on dealing with needed social changes.