This essay builds on recent work by Susan Haack to suggest that Oliver Wendell Holmes Jr.’s conception of the common law was influenced by Darwinian evolution and classical pragmatism. This is no small claim: perceptions of what the common law is and does within the constitutional framework of the United States continue to be heavily debated. Holmes’s paradigm for the common law both revised and extended the models set forth by Sir Edward Coke, Thomas Hobbes, Sir Matthew Hale, and Sir (...) William Blackstone. Adding additional substance to Haack’s argument by pointing out passages in Holmes’s opinions and in his only book, The Common Law, that corroborate her claims about the particular features of Holmes’s pragmatism, this essay concludes by suggesting that, because of his connections with the classical pragmatists and his reverence for Emerson, Holmes is the best place to begin answering the famous question formulated by Stanley Cavell: “What’s the Use in Calling Emerson a Pragmatist?”. (shrink)

After a brief sketch of the history of philosophical pragmatism generally, and of legal pragmatism specifically (section 1), this paper develops a new, neo-classical legal pragmatism: a theory of law drawing in part on Holmes, but also on ideas from the classical pragmatist tradition in philosophy. Main themes are the "pluralistic universe" of law (section 2); the evolution of legal systems (section 3); the place of logic in the law (section 4); and the relation of law and morality (section 5).

In 1880, when Oliver Wendell Holmes (later to be a Justice of the U.S. Supreme Court) criticized the logical theology of law articulated by Christopher Columbus Langdell (the first Dean of Harvard Law School), neither Holmes nor Langdell was aware of the revolution in logic that had begun, the year before, with Frege's Begriffsschrift. But there is an important element of truth in Holmes's insistence that a legal system cannot be adequately understood as a system of axioms and corollaries; and (...) this element of truth is not obviated by the more powerful logical techniques that are now available. (shrink)

The aim of the paper is to establish a relation between the cooperative principle formulated by H.P. Grice in pragmatics and the principle of sincere cooperation laid down in the founding Treaties on the European Union and interpretated by the Court of Justice of the European Union, intimately linked to the ethical imperative of cooperation, in a cultural framework shared by the Member States. The key concepts are ratio and value and the case-law analysed is provided by the recent cases (...) of the Romanian magistrates. The principle of cooperation reasserted also as the Cooperation and Verification Mechanism is the main obligation and it implies compliance with agreements and action to obtain certain effects. (shrink)

Almost twenty years ago, a genuinely new school of thought emerged in the field of jurisprudential methodology. It is a pragmatist school. Roughly, the pragmatists contend that, when inquiring about the nature of law, we should evaluate potential answers based on practical criteria. For many legal philosophers, this contention seems both unclear and unhinged. That appearance is lamentable. The pragmatist approach to jurisprudential methodology has received insufficient attention for at least two reasons. First, the pragmatists do not conceive of themselves (...) as comprising a school; in fact, these proponents have different names for their common position, which makes it hard to see the commonalities. Second, the most famous statement of the pragmatist view has received withering criticism, criticism that has not been sufficiently answered, a fact that may lead opponents of pragmatism, as well as potential supporters, to doubt that a viable view of this kind can be held. This Essay aims to serve as a corrective. (shrink)

Prof. Haack answers a series of questions on pragmatism, beginning with the origins of this tradition in the work of Peirce and James, its evolution in the work of Dewey and Mead, and its influence beyond the United States in, for example, the Italian pragmatists and the radical British pragmatist F. C. S. Schiller. Classical pragmatism, she observes, is a rich and varied tradition from which there is still much to be learned—as the many ways her own work in logic, (...) epistemology, metaphysics, philosophy of science, and philosophy of law has been informed by the old pragmatists testify. Of late, however, this tradition has been misunderstood, impoverished, and vulgarized by self-styled neo-pragmatists; here, Haack turns her attention specifically to the conception of pragmatism as essentially a political philosophy, and the near-vacuous equation of pragmatism with “problem-solving.”. (shrink)