'Inferentialist Pragmatism and Dworkin’s ‘Law as Integrity' by Thiago Lopes Decat in (2015) 8(1)
Erasmus Law Review aims -
at justifying an interpretation of Dworkin’s theory of Law as Integrity that brings it closer to philosophical pragmatism despite his rejection of legal pragmatism. In order to achieve this aim, this work employs a classification of philosophical commitments that define pragmatism in a broad and in a narrow sense and shows that legal pragmatism follows the main thinkers of pragmatism in the narrow sense in committing to instrumentalism. The attribution of a pragmatist character to Dworkin’s theory of law rests on the idea that the adoption of a commitment to instrumentalism is not implicated by its adoption of other pragmatist commitments.
Decat comments
The widely known and historical polysemy of the term ‘pragmatism’, in its philosophical theoretical use, finds a match in its use in the theory of law. Nevertheless, a conception in particular has been standing out and getting more space in discussions in the legal field, namely the one involved in the debates between Ronald Dworkin and self-titled pragmatist Richard Posner. Such a conception of decisionist nature seems to claim as its remote antecedent two tenets of Oliver Wendell Holmes’) philosophy of law: the rejection of abstract speculation, especially moral ones, as well as the conscious decision to refer the contents of judicial decisions to its predictable social consequences. Its present-day antecedent may be found in Richard Rorty’s version of pragmatism that sees anti-theoretical and anti-systematic commitments as necessary consequences of conferring primacy to practice (in the sense of social practices) and of anti-essentialist thought.
In an article called ‘The banality of pragmatism and the poetry of justice’, Rorty predictably restates the affinity between his version of neo-pragmatism and Posner’s philosophy of law. However, he surprises us by also enlisting Dworkin into the ranks of the legal (neo) pragmatism, despite his explicit rejection of what he conceives as legal pragmatism.
This paper intends to make a similar move bringing Dworkin closer to a non-rortyan version of contemporary philosophical pragmatism. The argument rests on the idea that Robert Brandom’s inferencialist reading of pragmatist theoretical commitments can serve as the basis for a conception of contemporary philosophical pragmatism which is, simultaneously, anti-essentialist and based on the primacy of practical, without being for this reason anti-theoretical and anti-systematic.
The reasonableness of this effort to bring them closer is justified, among other things, by the similarity between what Brandom calls historical-expressive rationality – a conception of rationality originally Hegelian but properly stripped of its metaphysical and teleological features by means of the resources of an inferencialist linguistic pragmatics – and the Dworkian demand for integrity that guides the decisions of judges as an independent ideal, according to an interpretation of legal social practices that shows them in their best light. The affinity between philosophical pragmatism and a rationalist, cognitivist, theory of law such as ‘Law as Integrity’ might perhaps allow the extension of the expression ‘legal pragmatism’ even beyond its already wide and vague limits.
'Pragmatism, Holism, and the Concept of Law' by Adam Dyrda in the same issue of the
Erasmus Law Review comments
When discussing O. W. Holmes’s answer to the question ‘What constitutes the law?’ Morton White underlines the fact that Holmes’s inquiry didn’t focus on developing the concept of law. White states: ‘…Holmes said little in ‘The Path of the Law’ about the notion of legal authority, perhaps because he was interested not in what he called a “useless quintessence of all legal systems” but in “an accurate anatomy of one”’. Such ambition (or lack of ambition) is characteristic of many pragmatic enterprises in the field of jurisprudence. However, sometimes the opposition between legal pragmatism and other legal theories is built upon a reference to the notion of the ‘nature’ or ‘essence’ of law. Many legal philosophers who aim to reveal the very ‘nature of law’ (or ‘the concept of law’ as H. L. A. Hart did) try to interpret Holmes and other pragmatists as offering a competitive view to their own. I will follow White’s early intuition that such a construal of the controversy is simply wrong. Afterwards I will sketch a portrait of legal pragmatism in the context of White’s own inquiry and his version of ‘holistic pragmatism’; thirdly, I will present in brief the main reasons for exploring the concept of law in the contemporary analytic philosophy of law. Then I will show that traditionally ‘pragmatic’ and ‘analytic’ efforts in legal theory are situated on different levels of generality and conceptuality. However, these efforts can be, at least to some extent, reordered under the aegis of holistic pragmatism.
