Pragmatism and the Illegal
Pragmatism is both a normative and descriptive theory. As a descriptive theory it affirms that the conventional picture of jurisprudence does not reflect reality and that pragmatism in law provides a more realistic alternative.
Legal pragmatism, specifically it rejects the idea that the right decision can be determined by a core principle. It advocates a pragmatic, context-based approach.
What is Pragmatism?
Pragmatism is a philosophical concept that emerged during the late nineteenth and early twentieth centuries. It was the first fully North American philosophical movement (though it is worth noting that there were followers of the existentialism movement that was developing at the time who were also referred to as "pragmatists"). Like many other major movements in the history of philosophy the pragmaticists were motivated partly by dissatisfaction with the state of things in the world and the past.
It is difficult to provide an exact definition of pragmatism. One of the main features that are often associated with pragmatism is that it focuses on the results and the consequences. This is often in contrast to other philosophical traditions that take more of a theoretic view of truth and knowledge.
Charles Sanders Peirce is credited as the inventor of the concept of pragmatism in relation to philosophy. He believed that only things that can be independently tested and proved through practical experiments is real or true. Additionally, Peirce emphasized that the only way to make sense of something was to determine its impact on other things.
John Dewey, an educator and philosopher who lived from 1859 until 1952, was another founder pragmatist. He developed a more holistic approach to pragmatism, which included connections with society, education and art and politics. He was inspired by Peirce and also drew inspiration from the German idealist philosophers Wilhelm von Humboldt and Friedrich Hegel.
The pragmatics also had a flexible view of what constitutes truth. This was not intended to be a realism however, but rather a way to gain clarity and firmly-justified settled beliefs. This was achieved by combining experience with sound reasoning.
This neo-pragmatic approach was later expanded by Putnam to be defined as internal realists. This was a different approach to the theory of correspondence, which did not seek to create an external God's eye perspective, but instead maintained truth's objectivity within a description or theory. It was similar to the ideas of Peirce James and Dewey, but with a more sophisticated formulation.
What is the Pragmatism Theory of Decision-Making?
A legal pragmatist views law as a method to solve problems and not as a set of rules. Therefore, he does not believe in the traditional notion of deductive certainty, and instead emphasizes context as a crucial element in decision-making. Legal pragmatists also contend that the idea of foundational principles is misguided, because in general, such principles will be outgrown by the actual application. A pragmatic approach is superior to a classical view of legal decision-making.
The pragmatist view is broad and has spawned many different theories, including those in philosophy, science, ethics, sociology, political theory and even politics. Although Charles Sanders Peirce deserves most of the credit for pragmatism, and his pragmatic maxim that clarifies the meaning of hypotheses through the practical consequences they have is the core of the doctrine however, the application of the doctrine has since expanded significantly to encompass a wide range of views. This includes the belief that the truth of a philosophical theory is only if it can be used to benefit consequences, the view that knowledge is primarily a transacting with, not the representation of nature and the notion that articulate language rests on an underlying foundation of shared practices which cannot be fully made explicit.
Although the pragmatists have contributed to numerous areas of philosophy, they are not without critics. The pragmatists' rejection of the concept of a priori propositional knowledge has led to a powerful critical and influential critique of analytical philosophy. This critique has spread far beyond philosophy into various social disciplines like jurisprudence, political science and a host of other social sciences.
It isn't easy to categorize the pragmatist approach to law as a description theory. Judges tend to make decisions using a logical-empirical framework, which is heavily based on precedents and traditional legal materials. A legal pragmatist, however, may claim that this model does not reflect the real-time dynamic of judicial decisions. It seems more appropriate to view a pragmatist approach to law as an normative model that serves as guidelines on how law should evolve and be interpreted.
What is the Pragmatism Theory of Conflict Resolution?
Pragmatism is a philosophical tradition that sees knowledge of the world as inseparable from agency within it. It has been interpreted in many different ways, usually at odds with each other. It is often seen as a reaction against analytic philosophy, whereas at other times, it is considered an alternative to continental thought. It is an evolving tradition that is and growing.
The pragmatists wanted to emphasize the importance of personal experience and consciousness in the formation of beliefs. They were also concerned to correct what they perceived as the flaws of a flawed philosophical tradition that had affected the work of earlier thinkers. These mistakes included Cartesianism Nominalism and a misunderstanding of the importance of human reason.
All pragmatists distrust untested and non-experimental representations of reasoning. They are therefore cautious of any argument that claims that 'it works' or 'we have always done it this way' is legitimate. For the lawyer, these assertions can be interpreted as being overly legalistic, naively rationalist and uncritical of previous practice.
In contrast to the classical picture of law as a system of deductivist concepts, the pragmatic will emphasize the importance of the context of legal decision-making. They will also recognize the possibility of a variety of ways to define law, and that these different interpretations must be embraced. This approach, referred to as perspectivalism, may make the legal pragmatist appear less tolerant to precedent and previously accepted analogies.
The view of the legal pragmatist recognizes that judges do not have access to a fundamental set of fundamentals from which they could make well-thought-out decisions in all instances. The pragmatist will therefore be keen to emphasize the importance of understanding a case before making a final decision, and is willing to alter a law if it is not working.
There is no universally agreed definition of a legal pragmaticist, but certain characteristics tend to characterise the philosophical stance. This includes a focus on context, and a rejection to any attempt to create laws from abstract principles that aren't tested in specific cases. Additionally, the pragmatic will recognize that the law is continuously changing and there will be no single correct picture of it.
What is the Pragmatism Theory of Justice?
As a judicial theory, legal pragmatism has been lauded as a method of bringing about social changes. It has been criticized for relegating legitimate philosophical and moral disagreements to legal decision-making. The pragmatic is not interested in relegating philosophical debates to the legal realm. Instead, he takes an open and pragmatic approach, and acknowledges that the existence of perspectives is inevitable.
Most legal pragmatists oppose the foundationalist view of legal decision-making and instead, rely on conventional legal sources to decide current cases. They believe that the cases aren't up to the task of providing a solid foundation for analyzing properly legal conclusions. They therefore need to be supplemented with other sources, such as previously approved analogies or concepts from precedent.
The legal pragmatist also disapproves of the notion that right decisions can be derived from an overarching set of fundamental principles, arguing that such a view would make it too easy for judges to base their decisions on predetermined "rules." Instead she advocates a system that recognizes the omnipotent influence of the context.
In light of the doubt and realism that characterize neo-pragmatism, many legal pragmatists have taken an increasingly deflationist view of the notion of truth. They have tended to argue, focusing on the way a concept is applied and describing its function and setting criteria to establish that a certain concept is useful, that this could be all philosophers should reasonably expect from the truth theory.
프라그마틱 슬롯 have taken on a broader view of truth, which they call an objective standard for assertions and inquiries. This approach combines elements of the pragmatist tradition with classical realist and Idealist philosophical theories. It is also in line with the more pragmatic tradition, which regards truth as an objective standard of inquiry and assertion, not just a standard of justification or warranted affirmability (or its derivatives). This holistic perspective of truth is described as an "instrumental theory of truth" because it aims to define truth in terms of the goals and values that guide our involvement with the world.
