Pragmatism and the Illegal
Pragmatism can be characterized as both a descriptive and normative theory. As a description theory, it claims that the traditional view of jurisprudence is not true and that a legal pragmatics is a better option.
Legal pragmatism, specifically is opposed to the idea that correct decisions can simply be derived from a fundamental principle. Instead it promotes a pragmatic approach that is based on context and experimentation.
What is Pragmatism?
The pragmatism philosophy emerged in the latter part of the 19th and the early 20th centuries. It was the first fully North American philosophical movement (though it should be noted that there were followers of the contemporaneously developing existentialism who were also referred to as "pragmatists"). Like several other major movements in the history of philosophy, the pragmaticists were inspired by discontent with the state of things in the world and the past.
In terms of what pragmatism actually means, it is a challenge to establish a precise definition. Pragmatism is typically associated with its focus on outcomes and results. This is frequently contrasted with other philosophical traditions that take a more theoretic approach to truth and knowing.
Charles Sanders Peirce has been acknowledged as the father of the concept of pragmatism in philosophy. He believed that only what can be independently tested and proved by practical tests is real or true. Peirce also stated that the only real way to understand the truth of something was to study its effects on others.
Another founding pragmatist was John Dewey (1859-1952), who was an educator and a philosopher. He developed a more holistic approach to pragmatism. This included connections with society, education and art, as well as politics. He was influenced by Peirce, and the German idealists Wilhelm von Humboldt und Friedrich Hegel.
The pragmatics also had a more loosely defined approach to what constitutes truth. This was not meant to be a form of relativism however, but rather a way to gain clarity and firmly-justified settled beliefs. This was achieved through the combination of practical experience and sound reasoning.
Putnam extended this neopragmatic method to be more widely described as internal realism. This was a variant of the correspondence theory of truth that did not attempt to create an external God's eye perspective, but instead maintained the objectivity of truth within a theory or description. More methods was similar to the ideas of Peirce James, and Dewey however, it was more sophisticated formulation.
What is Pragmatism's Theory of Decision-Making?
A legal pragmatist views law as a resolving process, not a set of predetermined rules. Therefore, he dismisses the conventional notion of deductive certainty, and instead emphasizes context as a crucial element in the process of making a decision. Legal pragmatists also contend that the notion of fundamental principles is a misguided idea, because in general, these principles will be disproved by the actual application. A pragmatic view is superior to a classical view of legal decision-making.
The pragmatist viewpoint is broad and has spawned various theories that span ethics, science, philosophy sociology, political theory and even politics. Charles Sanders Peirce is credited with being the most pragmatist. His pragmatic maxim, a rule to clarify the meaning of hypotheses through their practical implications, is its core. However, the doctrine's scope has grown significantly over time, covering a wide variety of views. This includes the notion that the truth of a philosophical theory is if and only if it has useful effects, the notion that knowledge is primarily a process of transacting with rather than an expression of nature, and the notion that language is an underlying foundation of shared practices which cannot be fully made explicit.
While the pragmatics have contributed to a variety of areas of philosophy, they are not without their critics. The pragmatists' rejection of the concept of a priori propositional knowledge has resulted in a ferocious and influential critique of analytical philosophy. This critique has reverberated far beyond philosophy into diverse social disciplines, including the fields of jurisprudence, political science, and a number of other social sciences.
Despite this, it remains difficult to classify a pragmatist view of the law as a descriptive theory. Most judges make decisions based on a logical-empirical framework, which relies heavily on precedents and conventional legal materials. A legal pragmatist, may argue that this model doesn't reflect the real-time nature of the judicial process. It seems more appropriate to think of a pragmatist approach to law as a normative model that provides a guideline on how law should evolve and be applied.
What is Pragmatism's Theory of Conflict Resolution?
Pragmatism is a philosophical tradition that understands the knowledge of the world as inseparable from the agency within it. It has attracted a broad and often contradictory range of interpretations. It is often viewed as a reaction against analytic philosophy, while at other times, it is regarded as an alternative to continental thought. It is an emerging tradition that is and evolving.
The pragmatists were keen to emphasise the value of experience and the significance of the individual's own consciousness in the development of beliefs. They also sought to correct what they perceived as the flaws in a flawed philosophical tradition that had altered the work of earlier thinkers. These errors included Cartesianism as well as Nominalism, as well as an ignorance of the importance of human reasoning.
All pragmatists are skeptical of non-tested and untested images of reason. They will be suspicious of any argument which claims that "it works" or "we have always done things this way" are valid. These statements could be interpreted as being too legalistic, uninformed rationality and uncritical of the past practice by the legal pragmatic.
In contrast to the classical notion of law as a system of deductivist concepts, the pragmaticist will stress the importance of context in legal decision-making. It will also acknowledge that there are multiple ways to describe the law and that the diversity must be embraced. This approach, referred to as perspectivalism, could make the legal pragmatist appear less tolerant to precedent and previously accepted analogies.
The legal pragmatist's view recognizes that judges do not have access to a basic set of principles from which they can make well-considered decisions in all cases. The pragmatist will thus be keen to stress the importance of understanding the case before making a decision and to be open to changing or abandon a legal rule when it proves unworkable.
There is no universally agreed concept of a pragmatic lawyer however, certain traits are characteristic of the philosophical approach. They include a focus on context and a rejection of any attempt to derive law from abstract principles which cannot be tested in a specific case. Additionally, the pragmatic will realize that the law is continuously changing and there can be no one correct interpretation of it.
What is Pragmatism's Theory of Justice?
As a theory of judicial procedure, legal pragmatism has been lauded as a method to bring about social changes. However, it has also been criticized as an approach to avoiding legitimate moral and philosophical disputes and placing them in the realm of legal decision-making. The pragmatic is not interested in relegating philosophical debate to the law and instead takes a pragmatic approach to these disputes, which insists on contextual sensitivity, the importance of an open-ended approach to learning, and the acceptance that the existence of perspectives is inevitable.
Most legal pragmatists reject the foundationalist view of legal decision-making, and instead rely on the traditional legal material to judge current cases. They believe that the cases aren't up to the task of providing a firm enough foundation to draw properly-analyzed legal conclusions and therefore must be supplemented with other sources, like previously approved analogies or concepts from precedent.
The legal pragmatist denies the notion of a set of fundamental principles that could be used to determine correct decisions. She believes that this would make it easy for judges, who can base their decisions on rules that have been established, to make decisions.
In light of the skepticism and realism that characterizes the neo-pragmatists, many have taken an increasingly deflationist view of the concept of truth. By focusing on the way concepts are used, describing its function, and establishing criteria for recognizing the concept's purpose, they've been able to suggest that this may be the only thing philosophers can expect from a theory of truth.
Some pragmatists have adopted a broader view of truth, which they call an objective standard for establishing assertions and questions. This approach combines the characteristics of pragmatism with the features of the classical realist and idealist philosophical systems, and is in line with the broader pragmatic tradition that sees truth as a norm for assertion and inquiry, not an arbitrary standard for justification or justified assertibility (or any of its derivatives). This more holistic view of truth is called an "instrumental" theory of truth, because it is a search for truth to be defined by reference to the goals and values that govern the way a person interacts with the world.