Pragmatism and the Illegal
Pragmatism is both a normative and descriptive theory. As a descriptive theory, it claims that the classical picture of jurisprudence does not correspond to reality, and that legal pragmatism offers a better alternative.
In particular, legal pragmatism rejects the notion that right decisions can be derived from a core principle or set of principles. Instead it advocates a practical approach based on context and trial and error.
What is Pragmatism?
Pragmatism is a philosophical concept that was developed in the latter part of the nineteenth and early 20th centuries. It was the first North American philosophical movement. (It must be noted however that some followers of existentialism were also referred to as "pragmatists") The pragmaticists, like many other major philosophical movements throughout time were in part influenced by discontent with the conditions of the world as well as the past.
In terms of what pragmatism really is, it's difficult to pinpoint a concrete definition. One of the main features that is often identified with pragmatism is the fact that it focuses on results and consequences. This is often contrasted to other philosophical traditions that have more of a theoretic view of truth and knowledge.
Charles Sanders Peirce is credited as the spokesman for the concept of pragmatism in relation to philosophy. He believed that only things that can be independently tested and proved through practical experiments is true or authentic. Peirce also emphasized that the only true method to comprehend something was to look at its effects on others.
Another of the pragmatists who founded the movement was John Dewey (1859-1952), who was an educator and a philosopher. He developed a more holistic approach to pragmatism that included connections to education, society, and art as well as politics. He was influenced both by Peirce, and the German idealists Wilhelm von Humboldt und Friedrich Hegel.
The pragmatists had a looser definition of what was truth. This was not intended to be a form of relativism but rather an attempt to attain greater clarity and firmly-justified settled beliefs. This was accomplished by combining practical knowledge with solid reasoning.
Putnam expanded this neopragmatic approach to be more broadly described as internal realists. This was a possible alternative to correspondence theories of truth that did away with the aim of attaining an external God's eye viewpoint while retaining the objectivity of truth, but within a description or theory. It was a more sophisticated version of the theories of Peirce and James.
What is the Pragmatism Theory of Decision-Making?
A legal pragmatist regards law as a method to resolve problems and not as a set of rules. He or she does not believe in the classical notion of deductive certainty and instead, focuses on context in decision-making. Legal pragmatists argue that the notion of foundational principles is misguided, because in general, these principles will be discarded by the actual application. A pragmatist view is superior to a classical conception of legal decision-making.
The pragmatist perspective is broad and has led to the development of many different theories that include those of ethics, science, philosophy and sociology, political theory, and even politics. However, Charles Sanders Peirce deserves most of the credit for pragmatism, and his pragmatic principle - a guideline for defining the meaning of hypotheses through tracing their practical consequences is the core of the doctrine however, the application of the doctrine has since expanded significantly to cover a broad range of perspectives. The doctrine has expanded to encompass a broad range of views, including the belief that a philosophy theory only valid if it is useful and that knowledge is more than an abstract representation of the world.
The pragmatists do not go unnoticed by critics, despite their contributions to many areas of philosophy. The pragmatists rejecting the concept of a priori propositional knowledge has resulted in a powerful and influential critique of analytical philosophy. This critique has spread far beyond philosophy to various social disciplines like jurisprudence, political science and a variety of other social sciences.
However, it's difficult to classify a pragmatist conception of law as a descriptive theory. The majority of judges behave as if they follow a logical empiricist framework that relies on precedent and traditional legal materials to make their decisions. However an expert in the field of law may well argue that this model doesn't adequately capture the real nature of judicial decision-making. Therefore, it is more sensible to consider the law from a pragmatic perspective as a normative theory that provides a guideline for how law should be interpreted and developed.
What is Pragmatism's Theory of Conflict Resolution?
Pragmatism is a philosophical tradition that understands the world's knowledge as inseparable from agency within it. It has drawn a wide and often contradictory range of interpretations. It is often seen as a response to analytic philosophy, while at other times, it is considered an alternative to continental thinking. It is a rapidly developing tradition.
The pragmatists sought to stress the importance of individual consciousness in forming beliefs. They were also concerned to overcome what they saw as the errors of a flawed philosophical tradition that had affected the work of earlier philosophers. These mistakes included Cartesianism and Nominalism, and a misunderstanding of the role of human reasoning.
All pragmatists are skeptical of non-experimental and unquestioned images of reason. They will be suspicious of any argument which claims that "it works" or "we have always done things this way" are true. For the lawyer, these assertions can be interpreted as being excessively legalistic, naively rationalist, and insensitive to the past practices.
In contrast to the classical picture of law as a set of deductivist principles, a pragmaticist will stress the importance of context in legal decision-making. It will also acknowledge the possibility of a variety of ways to describe law and that these different interpretations must be embraced. The perspective of perspectivalism may make the legal pragmatic appear less deferential to precedents and accepted analogies.
A key feature of the legal pragmatist view is that it recognizes that judges are not privy to a set of fundamental principles from which they can make logically argued decisions in every case. The pragmatist will therefore be keen to emphasize the importance of understanding a case before making a final decision, and is prepared to change a legal rule in the event that it isn't working.
There is no universally agreed-upon picture of a legal pragmaticist however, certain traits are common to the philosophical position. This is a focus on context, and a rejection to any attempt to derive laws from abstract principles that are not tested in specific cases. Additionally, the pragmatic will recognise that the law is continuously changing and there will be no single correct picture of it.
What is Pragmatism's Theory of Justice?
As a judicial theory legal pragmatism has been lauded as a method to effect social changes. It has also been criticized for relegating legitimate philosophical and moral disagreements to legal decision-making. The pragmatist, however, does not want to confine philosophical debate to the realm of the law. Instead, they take an approach that is pragmatic to these disagreements, which emphasizes the importance of contextual sensitivity, of an open-ended approach to knowledge and a willingness to acknowledge that perspectives are inevitable.
The majority of legal pragmatists don't believe in the foundationalist view of legal decision-making, and rely on traditional legal sources to serve as the basis for judging current cases. They believe that the case law aren't enough to provide a solid base for properly analyzing legal conclusions. Therefore, they have to add other sources like analogies or the principles drawn from precedent.
The legal pragmatist is against the idea of a set of fundamental principles that can be used to make the right decisions. She claims that this would make it simpler for judges, who could then base their decisions on rules that have been established and make decisions.
In light of the skepticism and anti-realism that characterize Neo-pragmatism, a lot of legal pragmatists have taken a more deflationist approach to the notion of truth. They have tended to argue that by focusing on the way the concept is used and describing its function, and establishing criteria to establish pragmatic that a certain concept serves this purpose, that this could be all philosophers should reasonably be expecting from the truth theory.
Some pragmatists have taken more expansive views of truth, which they refer to as an objective standard for assertions and inquiries. This view combines elements of the pragmatist tradition with classical realist and Idealist philosophical theories. It is also in line with the wider pragmatic tradition, which regards truth as an objective standard of assertion and inquiry, and not just a standard of justification or warranted affirmability (or its derivatives). This holistic conception of truth has been described as an "instrumental theory of truth" because it aims to define truth by the goals and values that guide an individual's engagement with the world.