Pragmatism (law)
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In the context of American law, the terms pragmatism, legal pragmatism, and judicial pragmatism can refer to both a descriptive theory of law and how judicial decisions are made as well as a form of judicial philosophy and legal reasoning. Legal pragmatism, both as a descriptive theory and a normative philosophy, views law as produced by specific social contexts and focuses on the consequences of judicial decisions. The term pragmatist can be used to describe a proponent of some form of pragmatism.[1][2][3]
Judge and law school lecturer Richard Posner, law professor Edward Cantu, and politics professor Alan Ryan have contrasted pragmatism with formalism, which focuses on legal authority and determining what the law requires through rules and texts.[4][5][6]
Background
According to an article on legal pragmatism written by philosophy professor Brian Edgar Butler and published by the Internet Encyclopedia of Philosophy, "Legal pragmatism is a theory critical of more traditional pictures of law and, more specifically, judicial decision-making:"[1]
| “ | The classical view of law offers a case-based theory of law that emphasizes the universal and foundational quality of specifically legal facts, the meticulous analysis of precedent and argument from analogy. Legal pragmatism, on the other hand, emphasizes the need to include a more diverse set of data and claims that law is best thought of as a practice that is rooted in the specific context at hand, without secure foundations, instrumental, and always attached to a perspective. A pragmatic stance towards jurisprudence offers many philosophical challenges to more traditional descriptions of the legal domain.[7] | ” |
| —Brian Edgar Butler, "Legal Pragmatism"[1] | ||
Law professor Edward Cantu wrote in a 2012 journal article that pragmatic legal theory describes "American judging as more results-oriented and value-laden than either judicial opinions reveal, or than legal pedagogy is willing to recognize," while pragmatic legal philosophy aims "to refocus modern judging away from abstract, high-sounding 'distractions' such as 'fidelity' and 'judicial restraint,' and toward the concrete social consequences of adjudication.[5]
According to constitutional law professor Mark Kende, U.S. Supreme Court Justice Stephen Breyer is a legal pragmatist.[3] Richard Posner, a retired federal judge and a lecturer at the University of Chicago Law School, has written about and advocated for the theory and philosophy of legal pragmatism.[2][4][5] In a 2004 article in the University of Chicago Law Review, Posner wrote, "The ultimate criterion of pragmatic adjudication is reasonableness."[4] In a September 2017 statement announcing his retirement from the United States Court of Appeals for the 7th Circuit, Posner said that he was "proud to have promoted a pragmatic approach to judging during my time on the Court, and to have had the opportunity to apply my view that judicial opinions should be easy to understand and that judges should focus on the right and wrong in every case."[2]
See also
- Formalism (law)
- Functionalism (law)
- Judicial philosophy
- Federalism
- Separation of powers
- Richard Posner
- Stephen Breyer
External links
Footnotes
- ↑ 1.0 1.1 1.2 Internet Encyclopedia of Philosophy, "Legal Pragmatism," accessed October 5, 2017
- ↑ 2.0 2.1 2.2 The Washington Post, "Thoughts on Judge Richard Posner's legal pragmatism," September 2, 2017
- ↑ 3.0 3.1 JOTWELL, "Getting Theoretical About Judge Posner's Legal Pragmatism," February 24, 2015
- ↑ 4.0 4.1 4.2 University of Chicago Law Review, "Legal Pragmatism Defended," 2004
- ↑ 5.0 5.1 5.2 Lewis & Clark Law Review, "Posner's Pragmatism and the Turn Toward Fidelity," March 20, 2012
- ↑ The New York Times, "The Legal Theory of No Legal Theory," September 14, 2003
- ↑ Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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