Rethinking legal pragmatism: A philosophical approach.

摘要

In "Rethinking Legal Pragmatism: A Philosophical Approach," I take issue with the position of Judge Richard A. Posner, a contemporary spokesperson for legal pragmatism and the law and economics movement. Posner holds that academic philosophy and philosophical pragmatism in particular has no role to play in legal pragmatism as it manifests itself in the process of adjudication and the process of legal scholarship. By redefining philosophy functionally, and not merely sociologically, I illustrate a threefold function of philosophy corresponding to the roles it plays in legal pragmatism. I show the methodological function of philosophy using C.S. Peirce's logic and epistemology, the critical function of philosophy using the insights of Oliver Wendell Holmes, Jr.'s legal theory, and the normative function of philosophy, using John Dewey's illustration of continuity among moral, aesthetic, practical, and intellectual inquiries. By illustrating the insights of classical American pragmatism to Judge Posner, I show the normative dimensions of the use of history in adjudication and legal scholarship, which prescribe that we narrow the gap between theory and practice in the way we use history. By undermining the strict dichotomy Posner has erected between philosophy and law and between theory and practice, I cultivate a more productive dialogue between law and philosophy, prescribing a broad vision of normativity, allowing for intelligent social growth, and the reconstruction of ends.