Pragmatism and the Illegal
Pragmatism is both a descriptive and normative theory. As a description theory, it asserts that the traditional view of jurisprudence is not correct and that legal pragmatics is a better option.
Legal pragmatism in particular it rejects the idea that correct decisions can be derived from a fundamental principle. It advocates a pragmatic and contextual approach.
What is Pragmatism?
The pragmatism philosophy emerged in the latter part of the 19th and the early 20th century. It was the first North American philosophical movement. (It is worth noting, however, that some followers of existentialism were also known as "pragmatists") Like many other major movements in the history of philosophy, the pragmaticists were inspired partly by dissatisfaction with the state of things in the world and the past.
In terms of what pragmatism really means, it is a challenge to establish a precise definition. One of the primary characteristics that are often associated with pragmatism is the fact that it is focused on results and their consequences. This is sometimes contrasted with other philosophical traditions that take a more theoretical approach to truth and knowledge.
Charles Sanders Peirce has been acknowledged as the father of pragmatism in philosophy. He believed that only what can be independently tested and proved by practical tests is true or real. Peirce also stated that the only true method to comprehend something was to examine the effects it had on other people.
Another founding pragmatist was John Dewey (1859-1952), who was both an educator as well as a philosopher. He developed a more comprehensive method of pragmatism that included connections to society, education, art, and politics. He was influenced by Peirce and by the German idealists Wilhelm von Humboldt und Friedrich Hegel.
The pragmatics also had a more loosely defined approach to what is the truth. This was not intended to be a relativist position, but rather an attempt to attain a higher degree of clarity and solidly settled beliefs. This was achieved by an amalgamation of practical experience and solid reasoning.
Putnam expanded this neopragmatic approach to be more broadly described as internal realism. This was an alternative to correspondence theories of truth, which dispensed with the intention of achieving an external God's eye point of view while retaining the objectivity of truth, but within the framework of a theory or description. It was a more sophisticated version of the theories of Peirce and James.
What is Pragmatism's Theory of Decision-Making?
A legal pragmatist sees law as a method to resolve problems, not as a set rules. He or she does not believe in a classical view of deductive certainty, and instead focuses on context in decision-making. Legal pragmatists also contend that the notion of foundational principles are misguided since, in general, these principles will be discarded in actual practice. A pragmatist view is superior to a traditional view of legal decision-making.
The pragmatist outlook is very broad and has led to a variety of theories in philosophy, ethics, science, sociology, and political theory. While Charles Sanders Peirce deserves most of the credit for pragmatism, and his pragmatic principle - a guideline for defining the meaning of hypotheses through exploring their practical implications is the core of the doctrine however, the scope of the doctrine has since been expanded to encompass a variety of perspectives. These include the view that the truth of a philosophical theory is if and only if it has practical implications, the belief that knowledge is primarily a process of transacting with rather than a representation of nature, and the idea that language articulated is a deep bed of shared practices that cannot be fully made explicit.
While pragmatickr have contributed to numerous areas of philosophy, they aren't without their critics. The pragmatists' rejection of the concept of a priori propositional knowledge has given rise to a powerful and influential critique of traditional analytical philosophy that has spread beyond philosophy into a myriad of social sciences, including the fields of jurisprudence and political science.
It is still difficult to classify the pragmatist approach to law as a description theory. Most judges make their decisions using a logical-empirical framework, which relies heavily on precedents and conventional legal materials. A legal pragmatist might claim that this model doesn't accurately reflect the real dynamics of judicial decisions. Therefore, it is more sensible to consider the law from a pragmatic perspective as a normative theory that offers a guideline for how law should be developed and interpreted.
What is the Pragmatism Theory of Conflict Resolution?
Pragmatism is a philosophic tradition that views knowledge of the world and agency as being integral. It has attracted a broad and often contrary range of interpretations. It is often seen as a reaction to analytic philosophy whereas at other times, it is seen as an alternative to continental thought. It is a rapidly evolving tradition.
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 rectify what they perceived as the flaws in a flawed philosophical tradition that had distorted the work of earlier thinkers. These errors included Cartesianism, Nominalism and a misunderstanding of the role of human reason.
All pragmatists are skeptical of non-tested and untested images of reason. They will be suspicious of any argument that claims that "it works" or "we have always done things this way" are valid. For the lawyer, these statements can be seen as being excessively legalistic, naively rationalist, and not critical of the previous practices.
Contrary to the traditional idea of law as a set of deductivist principles, a pragmatic will emphasize 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 is to be respected. This approach, referred to as perspectivalism, may make the legal pragmatist appear less respectful towards precedent and previously endorsed analogies.
The legal pragmatist's perspective acknowledges that judges don't have access to a fundamental set of fundamentals from which they could make well-thought-out decisions in all cases. The pragmatist will therefore be keen to emphasize the importance of understanding the case before deciding and to be willing to change or rescind a law when it is found to be ineffective.
There is no universally agreed definition of a legal pragmaticist, but certain characteristics tend to characterise the philosophical stance. This is a focus on context, and a denial of any attempt to draw laws from abstract concepts that are not testable in specific instances. The pragmatist also recognizes that the law is constantly evolving and there isn't one correct interpretation.
What is Pragmatism's Theory of Justice?
Legal Pragmatism as a philosophy of justice has been lauded for its ability to bring about social changes. It has been criticized for delegating legitimate moral and philosophical disagreements to the realm of legal decision-making. The pragmatic does not want to confine philosophical debate to the realm of the law and instead takes an approach that is pragmatic to these disagreements, which emphasizes the importance of contextual sensitivity, of an open-ended approach to learning, and the acceptance that the existence of perspectives is inevitable.
The majority of legal pragmatists don't believe in the foundationalist view of legal decision-making and rely upon traditional legal sources to provide the basis for judging present cases. They believe that the case law alone are not enough to provide a solid base for properly analyzing legal conclusions. Therefore, they must add additional sources like analogies or the principles drawn from precedent.
The legal pragmatist also disapproves of the idea that correct decisions can be derived from an overarching set of fundamental principles, arguing that such a view makes judges too easy to rest their decisions on predetermined "rules." Instead she advocates a system that recognizes the inexorable influence of context.
In light of the doubt and realism that characterizes neo-pragmatism, many legal pragmatists have taken a more deflationist approach to the concept of truth. They have tended to argue that by looking at the way in which concepts are applied and describing its function and creating criteria to establish that a certain concept serves this purpose and that this is all philosophers should reasonably be expecting from the truth theory.
Some pragmatists have taken a broader view of truth, which they refer to as an objective norm for inquiries and assertions. This approach combines elements of the pragmatist tradition with classical realist and Idealist philosophies. It is also in line with the larger pragmatic tradition, which views truth as an objective standard of inquiry and assertion, not merely a standard for 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 in terms of the purposes and values that guide an individual's interaction with the world.