This essay describes modern American legal pragmatism. Its origins in pragmatist philosophy are traced, and it is compared with the law and economics movement in American law and the formalist style of Continental legal theory. The essay argues that the inevitability of legal pragmatism in America, and its dispensability in Europe, reflect fundamental institutional and cultural differences rather than mere accidents of history or legal thought.

What is called legal pragmatism today is very different from the older style of legal pragmatism traditionally associated with Oliver Wendell Holmes; and there is much that is worthwhile on the conception of the law revealed by reading Holmes's The Path of the Law in the light of the classical pragmatist tradition of Peirce, James, and Dewey. Here, reflections on the varieties of pragmatism - philosophical and legal, old and new - will be wrapped (...) around an exploration of Holmes's legal philosophy and the strengths and weaknesses of his arguments. (shrink)

In Legal Pragmatism, Michael Sullivan looks closely at the place of the individual and community in democratic society. After mapping out a brief history of American legal thinking regarding rights, from communitarianism to liberalism, Sullivan gives a rich and nuanced account of how pragmatism worked to resolve conflicts of self-interest and community well-being. Sullivan’s view of pragmatism provides a comprehensive framework for understanding democracy, as well as issues such as health care, education, gay marriage, and (...) illegal immigration that will determine its character in the future. Legal Pragmatism is a bold, carefully argued book that presents a unique understanding of contemporary society, law, and politics. (shrink)

This chapter contains sections titled: What Is Pragmatism? Foundationalist versus Nonfoundationalist Views of the Law Pragmatism and Legitimacy Rejecting the Demand References.

This paper explores the possibility that Hobbesian jurisprudence is best understood as a ‘third way’ in legal theory, irreducible to classical natural law or legal positivism. I sketch two potential ‘third theories’ of law -- legal pragmatism and legal dualism -- and argue that, when considered in its broadest sense, Leviathan is best viewed as an example of legal pragmatism. I consider whether this legal pragmatist interpretation can be sustained in the examination (...) of Leviathan’s treatment of civil law, and argue that the pragmatic interpretation can only be successful if we can resolve two textual issues in that chapter. First, while Hobbes argues that law entails the existence of public (sharable) reasons, he does not adequately defend the view that the sovereign is the unique authority over such reasons in all cases, especially as far as they concern known collective emergencies. Second, Hobbes both affirms and denies that a sovereign can fail to do justice, which is paradoxical. Both problems are best resolved by legal pragmatism, though the second problem resists a fully satisfying resolution. The upshot is that, although Leviathan ought to be regarded as an episode of legal pragmatism, there are trade-offs on every reading. (shrink)

Dewey's most direct treatment of law and legal theory, "Logical Method and Law," presents a sketch of a pragmatic theory of law. Dewey claims the law needs "a logic relevant to consequences, not antecedents." This paper unpacks Dewey's pragmatic theory of law and outlines some criticisms of Dewey's legal views set forth by the American Legal Realist Karl Llewellyn in an unpublished manuscript titled "John Dewey and Our Law." This paper aims to identify where Dewey and Llewellyn (...) agree and where they, as representatives of major schools of thought, part company. (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). (shrink)

This paper offers an account of Susan Haack’s philosophy of law and points out several aspects within the legal pragmatist tradition that deserve further discussion. Firstly, a systematic presentation of legal pragmatism as it is defended by Haack, who follows Justice Oliver W. Holmes here, is given. Secondly, the limits of an evolutionary perspective of law recommended by legal pragmatism are considered. Finally, the paper discusses whether legal pragmatism is able to handle different (...) legal traditions, thereby focusing on Anglo-American common law and European civil law. (shrink)

The purpose of this paper is to offer some critical remarks on the so-called pragmatist approach to the regulation of robotics. To this end, the article mainly reviews the work of Jack Balkin and Joanna Bryson, who have taken up such ap- proach with interestingly similar outcomes. Moreover, special attention will be paid to the discussion concerning the legal fiction of ‘electronic personality’. This will help shed light on the opposition between essentialist and pragmatist methodologies. After a brief introduction (...) (1.), in 2. I introduce the main points of the methodological debate which opposes pragmatism and essentialism in the regulation of robotics and I examine how legal fictions are framed from a pragmatist, functional perspective. Since this approach entails a neat separation of ontological analysis and legal rea- soning, in 3. I discuss whether considerations on robots’ essence are actually put into brackets when the pragmatist approach is endorsed. Finally, in 4. I address the problem of the social valence of legal fictions in order to suggest a possible limit of the pragmatist approach. My conclusion (5.) is that in the specific case of regulating robotics it may be very difficult to separate ontological considerations from legal reasoning—and vice versa—both on an epistemological and social level. This calls for great caution in the recourse to anthropomorphic legal fictions. (shrink)

How might the social sciences best be employed in the study of law, especially in light of today's legal climate of anti-foundationalism? Realistic Socio-Legal Theory addresses this question thoroughly and precisely. Drawing upon philosophical pragmatism to construct an epistemological and methodological foundation, this book formulates a framework for a realistic approach to socio-legal theory. Brian Z. Tamanaha contrasts the strengths of his realistic approach with those of the major schools of socio-legal theory through application to (...) many key issues in the field. He explores the problematic state of socio-legal studies, the relationship between behavior and meaning, the notion of legal ideology, the nature of the concept of law, the problem of indeterminacy in rule following and application, and the structure of judicial decision making. Tamanaha's discussion is always clear and concise as he articulates a social theory of law that draws equally from legal theory and socio-legal studies. His book has much to offer those interested in the gathering and organization of knowledge about law and legal phenomena. (shrink)

The paper identifies and assesses the implications of two approaches to the field of artificial intelligence and legal reasoning. The first — pragmatism — concentrates on the development of working systems to the exclusion of theoretical problems. The second — purism — focuses on the nature of the law and of intelligence with no regard for the delivery of commercially viable systems. Past work in AI and law is classified in terms of this division. By reference to The (...) Latent Damage System, an operational system, the paper articulates and responds to conceivable purist (jurisprudential and AI) objections to such a program. The methods of the pragmatist are also called into question and refined. The author concludes that pragmatism within a purist framework is the only sound approach to developing reliable AI systems in law. (shrink)

Jules Coleman, one of the world's leading philosophers of law, here presents his most mature work so far on substantive issues in legal theory and the appropriate methodology for legal theorizing. In doing so, he takes on the views of highly respected contemporaries such as Brian Leiter, Stephen Perry, and Ronald Dworkin.

Drawing on philosophical pragmatism, Tamanaha formulates a framework for a realistic approach to socio-legal theory. The strengths of this approach are contrasted with that of the major schools of socio-legal theory by application to core issues in this area. Thus Tamanaha explores the problematic state of socio-legal studies, the relationship between behaviour and meaning, the notion of legal ideology, the problem of indeterminacy in rule following and application, and the structure of judicial decision making. These (...) issues are tackled in a clear and concise fashion while articulating a social theory of law that draws equally from legal theory and socio-legal theory. `This book provides a useful, and at times provocative, review of recent developments in legal theory. Because it covers considerable territory, it should be a good addition to one's professional library... there is much to commend in this book. It is well written, ably argued, and generally knowledgeable. It treats controversial topics forthrightly...an excellent review of the legal theory literature.... It should provide a worthwhile venture into familiar debates rendered from a perspective that owes allegiance to no side.' Law and Politics Book Review `by any criterion and excellent book...Tamanaha has produced a work which should feature as a core text in jurisprudence courses' Oxford Journal of Legal Studies `This is the most significant piece of work for anybody in Jurisprudence, Socio-Legal Studies, or Legal Theory' Neil MacCormick `a rich insight into almost every question legal theory has vexed itself over the past twenty-five years' Stanley Fish. (shrink)

Jules Coleman, one of the world's most influential philosophers of law, here expounds his recent views on a range of important issues in legal theory. Coleman offers for the first time an explicit account of the pragmatist method that has long informed his work, and takes on the views of highly respected contemporaries such as Ronald Dworkin and Joseph Raz.

This article aims to interpret the Althusserian critique of ideology in order to put forth the mechanisms at work within the relation of belief that constitutes every ideology and to insist on its practical consequences on the relation between the intellectual and the masses. To do so, we will draw upon Althusser’s review of humanism, upon his commentaries of the work of Montesquieu and Rousseau, and upon his conception of ideology in the article from 1970 on ‘Ideology and Ideological State (...) Apparatuses’ and in other texts of the same period. By focusing on an analysis of the functioning of belief within the three cardinal forms of ideology, we will highlight the importance of putting into place a social critique attentive to the repetition of the relations of belief with regard to enabling truly transformative actions. (shrink)

This paper argues for the adoption of pluralist pragmatism about concepts of law. The first part of the paper introduces the argument by reference to the debate over conceptual prescriptivism in the contemporary literature on the methodology of legal theory. The second part of the paper offers a method for recognising pluralism in traditions of jurisprudential inquiry: it does so on the basis of the use of modes of objectification that can be said to underwrite the construction of (...) concepts of law. A number of examples of such modes are offered, with the focus thereafter being on two such modes: on the one hand, the explanatory paradigm of reason; and on the other hand, the explanatory paradigm of cause. A map of traditions of jurisprudential inquiry is sketched on the basis of these two modes. The third part of the paper goes on to show how combining the prescriptive resources that follow from the two traditions of jurisprudential inquiry classified in such a manner makes our response to certain practical context more robust. The four practical contexts are: the exercise of judicial behaviour; the structure of international law; legal education; and, legal scholarship. It is only by adopting the pluralist pragmatism espoused by the ethics of legal theory that we can avoid theoretical insularity (the belief that any one theoretical picture is capable of corresponding truthfully to the world) and theoretical imperialism (the belief that any one theoretical picture can be used as a foundation for a prescriptive agenda). (shrink)

This paper represents the first installment of alarger project devoted to the relevance of pragmatism forbioethics. One self-consciously pragmatist move would be toreturn to the classical pragmatist canon of Peirce, James andDewey in search of substantive doctrines or methodologicalapproaches that might be applied to current bioethicalcontroversies. Another pragmatist (or neopragmatist) move wouldbe to subject the regnant principlist paradigm to Richard Rorty'ssubversive assaults on foundationalism in epistemology andethics. A third pragmatist method, dubbed ``freestandingpragmatism'' by its proponents, embraces a ``pragmatist'' approachto (...) practical reasoning without discernable moorings either to theclassical canon or to Rorty's neopragmatism. This thirdpragmatist approach to method in practical ethics is the subjectof this article. I begin with an examination of freestandingpragmatism in the theory of judicial decision making. I arguethat this version of legal pragmatism – so described on account ofits commitments to contextualism, instrumentalism, eclecticism,and freedom from grand theory – bears a striking resemblance tomuch self-described pragmatist work in bioethics today. Ifurther argue that if this is what we mean by ``pragmatism,'' thenin a certain sense ``we are all pragmatists now.''. (shrink)

Pragmatism, Logic and Law traces legal pragmatism as a distinct logical theory originated in late 19th century America, covering various issues, cases, personalities, and relevant intellectual movements within and outside law. It addresses pragmatism’s relation to legal liberalism, natural law, critical legal studies (CLS), and neopragmatism.

Diversity is both an unavoidable aspect of twenty-first century living and a powerful challenge to older philosophical traditions that still assume as normatively universal a set of values, ways of thinking, institutions, and habits of living that emerged within earlier eras of more homogeneous cultures, less developed technologies, and more accepted forms of linguistic, legal, religious, economic, political, and military domination. Within recent years, new styles of philosophical discourse, including deconstruction, postmodernism, feminism, post-colonialism, and critical race theory, have persuasively (...) challenged these universalistic assumptions to reveal the important human differences they marginalize. Experience-based appreciation of the mutually educative potential of diverse standpoints as well as sober concern about the perils of our present times have led many thinkers to look for contemporary forms of pragmatism and cosmopolitanism as hospitable intellectual gathering places for urgently needed cross-difference conversations that may reflect and give substance to shared visions of democratic diversity. The eight authors in this volume engage in cross-difference conversations with other thinkers from earlier periods and other philosophical traditions, as well as with each other, in order to reconstruct pragmatism and cosmopolitanism in ways that are more attuned to our lived experience of diversity as well as our hopes for a diversity-appreciating democratic future. (shrink)

1. Pragmatism: Philosophical versus everyday. 2. Legal pragmatism. 3. John Dewey on Democracy and law. 4. Two concepts of democracy. 5. Democracy defended. 6. The concepts applied.

In the contemporary domain of American legal thought there is a dominant way in which lawyers and judges craft their argumentative practice. More colloquially, this is a dominant conception of what it means to 'think like a lawyer'. Despite the widespread popularity of this conception, it is rarely described in detail or given a name. Justin Desautels-Stein tells the story of how and why this happened, and why it matters. Drawing upon and updating the work of Harvard Law School's (...) first generation of critical legal studies, Desautels-Stein develops what he calls a jurisprudence of style. In doing so, he uncovers the intellectual alliance, first emerging at the end of the nineteenth century and maturing in the last third of the twentieth century, between American pragmatism and liberal legal thought. Applying the tools of legal structuralism and phenomenology to real-world cases in areas of contemporary legal debate, this book develops a practice-oriented understanding of legal thought. (shrink)

In this article I will show that ‘best interests’ is a concept that fits nicely with many of the features of pragmatism—Holm and Edgar’s rejection of the principle in favour of pragmatism it will be suggested is misplaced. ‘Best interests’ as a principle may be considered an embodiment of the ideals of pragmatic adjudication. The paper starts by briefly introducing the concept of ‘best interests’ and theories of judicial and legal ‘pragmatism’. This article will examine the (...) role of the rational decision-maker in medical law and argue that this role is limited. The paper concludes by suggesting how we view the relationship between ‘best interests’ and ‘pragmatism’. (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)

This book uses literary examples makes the case for understanding law and the legal system through the lens of philosophical pragmatism. For pragmatists, experience is everything; and they argue against understanding the world through any abstraction, maintaining that it is simply too complicated to fit into categories or theories. Legal pragmatism is the application of this philosophy to the making of law, the practice of law, and the practice of judging. This book maintains that the best (...) way to understand legal pragmatism is not through bare theoretical exegesis but through literature; that is, through stories that cast light on various pragmatic aspects of law. Engaging a range of literary sources, including works by Seamus Heaney, Hilary Mantel, Harper Lee and Ian McEwan, the book makes a compelling case for the contemporary relevance of pragmatism. This book will appeal to legal theorists, law and literature/humanities scholars; readers of literary criticism; and those with interests in pragmatist philosophy. (shrink)

A common objection to a pragmatist perspective on scientific expertise is that, while there is a well-known pragmatist theory of inquiry, which was formulated first by Peirce, then refined by Dewey and others, this theory cannot provide a clear-cut account of scientific expertise. In this paper, after addressing this objection in the second section, I claim that, on the contrary, pragmatism offers robust tools to think scientific expertise. In Sections 3 to 7, I present five important insights that one (...) can derive from a pragmatist epistemology when responding to contemporary problems posed by expertise: about science and scientific expertise in a legal context (sections 3 and 4), about collective expertise (sections 5 and 6), and even about expertise on ignorance (section 7). (shrink)

The article opens with the analysis of a 2013 legal memorandum of the U.S. Department of Justice that sanctions state ordered killings of citizens on foreign soil, as well as the violation of foreign sovereignty that may have to accompany such killings. This document, together with arguments of contemporary juridical pragmatist like M. Ignatieff, functions in the article as a prototype of the kind of juridical thinking that has been explicitly countered in classical philosophies of right. Section I outlines (...) Kant’s theory of the common ethical ground of morals and politics, his criticism of Christian Garve, and his distinction of politics from pseudopolitics. Section II presents Hegel’s scrutiny of the central role of public hypocrisy and its casuistry, especially with regards to the concealment of crimes against humanity under the philanthropic veil. (shrink)

Frederic Kellogg has already published several works on legal pragmatism and on Oliver Wendell Holmes in particular.1 In this volume, he focuses on the early history of Holmes' views, on his readings in law and philosophy, and his interests in science in the years of the Metaphysical Club. Drawing on sources like Francis Bacon, John Stuart Mill and Chauncey Wright, Holmes developed an inductive approach to common law reasoning; eventually, as I discuss below, this approach needed refinement when (...) he engaged with constitutional interpretation. Other parts of the book focus on contemporary issues like legal indeterminacy, hard cases, the role of politics in legal interpretation, Rorty's neopragmatism, liberalism and... (shrink)

Jürgen Habermas is one of the most important thinkers of this century. His work has been highly influential not only in philosophy, but particularly in the fields of politics, sociology and law. This is the first collection that explores the connections between his body of work and North America's biggest philosophical movement, pragmatism. Habermas and Pragmatism investigates the influences of pragmatism on Habermas' thought in a collection of stellar essays with contributions by Habermas himself, leading representatives of (...) pragmatism, as well as critical and legal theorists. The essays cover a range of subjects including philosophy of language, democracy, nature of rationality and social theory as well as the relation of major figures such as Hegel, Pierce, Mead and Dewey to Habermas and pragmatism. (shrink)

An extensive literature on pragmatism and compromise, as well as their relationship to civic and political leadership, can be found in the field of Public Administration (hereafter PA). PA is broadly defined as that discipline of study addressing the development, institutionalization and reconstruction of bureaucratic-governmental organizations as well as the policies they are tasked to implement—or more “[s]imply stated . . . the management of government agencies." However, the literature is not limited to the works of PA scholars and (...) practitioners. It also encompass the writings of philosophers, and specifically philosophical pragmatists, who can contribute “a kind of methodological sophistication that either sharpens the issues at point in public controversy or discloses the absence of real or genuine issues, thus clarifying the options open for decision." In this literature, questions arise as to how unelected leaders in governmental bureaucracies are guided by pragmatism or pragmatic ideas to (i) negotiate with stakeholders to fashion appropriate compromise agreements, (ii) solve policy problems within a zone of legally mandated authority, (iii) clearly articulate the scope and content of that body of knowledge considered PA scholarship, (iv) understand the origins of PA as a distinct discipline and (v) bridge between the abstract principles offered by PA theorists and the concrete practices of bureaucratic-governmental organizations and public administrators. Classified thematically, these issues fit into four areas: first, controversy over whether administrative action is legitimate (i and ii); second, the PA’s identity crisis as a discipline (iii and iv); third, the gap between theory and practice (v); and fourth, the difficulty of integrating pragmatism and PA (i through v). (shrink)

Through an analysis of the US Supreme Court's case Heller this paper argues that legal process can be pragmatically reconceptualized so as to create information necessary to decide complex social issues. This is in contrast to other more standard conceptions of law as more emphasizing what information ought to be excluded.

Referring to foreign legal systems for the sake of producing a convincing judicial argument has been a custom in judicial decision-making for more than a century. However, a generally accepted theoretical framework for this kind of reasoning is yet to be established. The article suggests that such a framework must answer at least the following three fundamental questions: first, what is the normative relationship, as a matter of principle, between domestic and foreign law?; second, what is the primary motive (...) and functioning of comparative legal reasoning?; and third, what methodological approach enables such reasoning to work in practice? Drawing in particular on linguistic philosophy, as well as recent work on the theory of argumentation, the article outlines a theoretical framework that addresses these questions in order to understand, evaluate and rationalise the use of comparative arguments in legal practice. (shrink)