Characterisations of contemporary legal pragmatism are quoted in ‘On Legal Pragmatism: Where Does ‘The Path of the Law’ Lead Us?' by Susan Haack in 3(1)
Pragmatism Today (2012) 8-31. It is an
updating of her 2005 article in 50
American Journal of Jurisprudence 71-105 ...
Of late, the word "pragmatism" appears in the titles of books, chapters, and articles on legal philosophy often enough to convey the impression that there must be some kind of renaissance of pragmatism going on among legal scholars. When you look at the contents of those books and articles, though, you are likely to find yourself more than a little confused about just what this apparent renaissance is a renaissance of.
Pragmatism, you will read, is -
- simply a "general aversion to theory" (Atiyah, 1987);
- it is "solving legal problems using every tool that comes to hand, including precedent, tradition, legal text, and social policy [and) renounc[ing] the entire procect of providing a theoretical foundation for constitutional law" (Farber, 1988);
- an "understand[ing] that what we see always depends upon our viewpoint, and that understanding others is frequently a matter of attempting to recreate the standpoint from which they view events" (Hantzis, 1988);
- "a realistic expression of the recognition that metatheoretical claims to truth are philosophically indefensible" (Patterson, 1990);
- "freedom from theory-guilt" (Grey, 1990);
- "a kind of exhortation about theorizing ... not say[ing] things that lawyers and judges do not know, but rather remind[ing] lawyers and judges of what they already believe but often fall to practice" (Smith, 1990);
- "looking at problems concretely, without illusions, with a full awareness of the limitations of human reason, with a sense of the 'localness' of human knowledge, the difficulty of translations between cultures, the unattanability of 'truth'" (Posner, 1990);
- the view that "practice is not undergirded by an overarching set or immutable principles, or by an infallible or impersonal method" (Fish, 1990);
- "a synthesis of contextualism and instrumentalism" (Grey, 1991);
- "antifoundationalism and social optimism" (Hoy, l991);
- the distinctly American philosophical movement begun by C. S. Peirce and William James, developed by John Dewey, and recently espoused by Richard Rorty ... a substantive position ... [which] yields relativism about truth and justice" (Warner, 1993);
- "an eclectic, result-oriented historically-minded antiformalism" (Luban, 1996);
- "a critique of essentialist/conceptualist formalism, and an admonition to avoid excessive theorizing or abstractions," urging "more dialogue, traditionalism, attention to context, and the middle way" (Tamanaha, 1997);
- the idea that "a satisfactory theory of adjudication for lawyers must enable lawyers to predict what courts will do" (Leiter, 1997·8);
- "a philosophical discourse that is general, hysteric, external, practical and progressive and beside it a legal antecedent discourse [that of Holmes] that is professional, obsessive, internal, theoretical, and conservative" (Alberstein, 2002);
- "a disposition to base action on facts and consequences rather than on conceptualisms, generalities, pieties, and slogans ... rejecting moral, legal and political theory when offered to guide legal ... decisionmaking" (Posner, 2003);
- "an extension of skepticism, ultimately rooted in Greek sophism" (Leaf, 2003);
- an acknowledgement that "devotion to theory may be just as damaging and unfruitful as devotion to traditional legal formalism" (Weaver, 2003);
- "an eclectic and self-reflective stance about both theory and methods; a recognition of a plurality of contingent ‘truths’ and 'meanings' that are grounded in concrete experience rather than absolute or fundamental truths; and avoidance of dichotomies and unidimensional approaches and an explicit incorporation of democratic ideals in both the outcomes (goals) of public policy and in the way that policy analysis is itself conducted" (Schneider & Ingram, 2003);
- the view that "the validity of consensus building depends not on its theoretical possibility of achieving 'win-win' solutions, but on the efficacy of consensus building in its application" (Coglianese, 2003).
