Pragmatism and the Illegal
Pragmatism can be described as a descriptive and normative theory. As a descriptive theory it claims that the classical image of jurisprudence is not reflect reality, and that legal pragmatism offers a better alternative.
Legal pragmatism, specifically is opposed to the idea that correct decisions can simply be determined by a core principle. It advocates a pragmatic, context-based approach.
What is Pragmatism?
The pragmatism philosophy emerged in the late 19th and the early 20th centuries. It was the first fully North American philosophical movement (though it is worth noting that there were followers of the contemporaneously developing existentialism who were also labeled "pragmatists"). Like several other major movements in the history of philosophy, the pragmaticists were inspired partly by dissatisfaction with the state of things in the present and the past.
It is difficult to give an exact definition of pragmatism. Pragmatism is typically associated with its focus on outcomes and results. This is sometimes contrasted with other philosophical traditions that have a more theoretical approach to truth and knowledge.
Charles Sanders Peirce is credited as the inventor of pragmatic thinking in the context of philosophy. He believed that only what can be independently tested and proved through practical experiments is real or true. Furthermore, Peirce emphasized that the only way to comprehend the meaning of something was to determine its effects on other things.
Another founding pragmatist was John Dewey (1859-1952), who was an educator as well as a philosopher. He created a more comprehensive approach to pragmatism that included connections to society, education, art, and politics. He was influenced by Peirce, and the German idealists Wilhelm von Humboldt und Friedrich Hegel.
The pragmatics also had a loosely defined view of what constitutes the truth. It was not intended to be a relativist position however, rather a way to attain a higher degree of clarity and solidly settled beliefs. This was achieved through an amalgamation of practical experience and solid reasoning.
Putnam developed this neopragmatic view to be more broadly described as internal Realism. This was a variant of correspondence theory of truth, which did not aim to achieve an external God's-eye point of view but retained the objectivity of truth within a theory or description. It was a similar approach to the ideas of Peirce James, and Dewey however with more sophisticated formulation.
What is the Pragmatism Theory of Decision-Making?
A pragmatist in the field of law views law as a resolving process and not a set of predetermined rules. They reject a classical view of deductive certainty and instead, focuses on the importance of context when making decisions. Legal pragmatists also argue that the idea of foundational principles is misguided since, as a general rule the principles that are based on them will be outgrown by practical experience. Therefore, a pragmatic approach is superior to the classical approach to legal decision-making.
The pragmatist view is broad and has inspired many different theories that include those of ethics, science, philosophy, sociology, political theory, and even politics. However, Charles Sanders Peirce deserves most of the credit for pragmatism, and his pragmatic principle - a guideline for defining the meaning of hypotheses by exploring their practical implications - is the foundation of the doctrine, the concept has since been expanded to cover a broad range of perspectives. The doctrine has expanded to encompass a broad range of opinions and beliefs, including the notion that a philosophy theory is only true if it is useful and that knowledge is more than a representation of the world.
The pragmatists do not go unnoticed by critics even though they have contributed to a variety of areas of philosophy. The pragmatists' rejection of the notion of a priori knowledge has given rise to an influential and effective critique of traditional analytical philosophy, which has spread beyond philosophy to a variety of social disciplines, such as the study of jurisprudence as well as political science.
However, it's difficult to categorize a pragmatist view of the law as a descriptive theory. Most judges act as if they follow an empiricist logic that is based on precedent and traditional legal materials for their decisions. However an attorney pragmatist could be able to argue that this model doesn't adequately reflect the real-time nature of judicial decision-making. Therefore, it is more appropriate to view a pragmatist view of law as an normative theory that can provide guidelines for how law should be developed and interpreted.
What is Pragmatism's Theory of Conflict Resolution?
Pragmatism is a philosophy that views knowledge of the world as inseparable from the agency within it. It has attracted a broad and often contrary range of interpretations. It is often viewed as a response to analytic philosophy, but at other times it is seen as an alternative to continental thinking. It is an evolving tradition that is and growing.
The pragmatists sought to stress the importance of personal experience and consciousness in the formation of beliefs. They also wanted to correct what they believed to be the mistakes of a philosophical tradition that was outdated that had altered the work of earlier thinkers. These errors included Cartesianism, Nominalism, and a misunderstood of the importance of human reason.
All pragmatists reject untested and non-experimental images of reason. They are skeptical of any argument which claims that "it works" or "we have always done things this way" are valid. For the legal pragmatist these assertions can be interpreted as being overly legalistic, naively rationalist and not critical of the previous practices.
Contrary to the classical view of law as a set of deductivist rules, the pragmatist stresses the importance of context when making legal decisions. It will also recognize the fact that there are many ways to define law, and that these variations should be embraced. The perspective of perspectivalism, can make the legal pragmatic appear less deferential to precedents and accepted analogies.
The legal pragmatist's view acknowledges that judges don't have access to a fundamental set of principles from which they could make well-reasoned decisions in all instances. The pragmatist therefore wants to emphasize the importance of knowing the facts before making a final decision, and will be willing to alter a law when it isn't working.
While there is no one agreed picture of what a legal pragmatist should be There are some characteristics that tend to define this stance of philosophy. This includes a focus on context and the rejection of any attempt to draw law from abstract principles which are not directly tested in a specific instance. Furthermore, the pragmatist will realize that the law is continuously changing and there can be no one right picture of it.
What is Pragmatism's Theory of Justice?
Legal pragmatism as a judicial philosophy has been praised for its ability to bring about social change. However, it is also criticized as an approach to avoiding legitimate philosophical and moral disputes, by relegating them to the arena of legal decision-making. The pragmatic is not interested in relegating philosophical debate to the realm of the law and instead takes an approach that is pragmatic to these disputes, which emphasizes contextual sensitivity, the importance of an open-ended approach to knowledge, and a willingness to acknowledge that the existence of perspectives is inevitable.
The majority of legal pragmatists don't believe in an idea of a foundationalist model of legal decision-making and rely on traditional legal materials to serve as the basis for judging current cases. They believe that the case law aren't enough to provide a solid basis for properly analyzing legal conclusions. Therefore, they need to supplement the case with other sources such as analogies or the principles drawn from precedent.
The legal pragmatist denies the notion of a set of fundamental principles that could be used to determine correct decisions. She argues that this would make it easy for judges, who could then base their decisions on predetermined rules in order to make their decisions.
In light of the doubt and realism that characterize neo-pragmatism, many legal pragmatists have adopted an increasingly deflationist view of the concept of truth. By focusing on the way a concept is used in its context, describing its function and establishing criteria for recognizing that a concept performs that function, they have tended to argue that this is all philosophers could reasonably expect from a theory of truth.
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