Pragmatism and the Illegal
Pragmatism can be described as a normative and descriptive theory. As a description theory, it argues that the classical conception of jurisprudence isn't correct and that legal pragmatism is a better alternative.
In particular legal pragmatism eschews the idea that correct decisions can be determined from a core principle or set of principles. Instead it promotes a pragmatic approach that is based on context and the process of experimentation.
What is Pragmatism?
Pragmatism is a philosophical concept that developed during the late nineteenth and early 20th centuries. It was the first truly North American philosophical movement (though it is worth noting that there were a few followers of the contemporaneously developing existentialism who were also labeled "pragmatists"). The pragmaticists, like many other major philosophical movements throughout history were in part influenced by dissatisfaction over the state of the world and the past.
In terms of what pragmatism really means, it is a challenge to pinpoint a concrete definition. One of the major characteristics that is often identified with pragmatism is that it focuses on the results and consequences. This is sometimes contrasted with other philosophical traditions that have more of a theoretical approach to truth and knowledge.
Charles Sanders Peirce has been credited as the founder of pragmatism in philosophy. He believed that only what can be independently verified and proved by practical tests is real or true. Additionally, Peirce emphasized that the only way to comprehend the meaning of something was to find its effects on other things.
Another of the pragmatists who founded the movement was John Dewey (1859-1952), who was a teacher as well as a philosopher. He developed a more holistic method of pragmatism that included connections to education, society, art, and politics. He was greatly influenced by Peirce and also drew inspiration from the German idealist philosophers Wilhelm von Humboldt and Friedrich Hegel.
The pragmatics also had a loosely defined approach to what constitutes truth. This was not meant to be a realism position, but rather an attempt to attain a higher level of clarity and well-justified established beliefs. This was accomplished by combining practical knowledge with solid reasoning.
Putnam extended this neopragmatic method to be more broadly described as internal realists. This was a different approach to the correspondence theory of truth which did not aim to attain an external God's-eye viewpoint, but maintained truth's objectivity within a description or theory. It was an improved version of the theories of Peirce and James.
What is the Pragmatism Theory of Decision-Making?
A legal pragmatist sees law as a method to solve problems, not as a set rules. Therefore, he dismisses the conventional notion of deductive certainty, and instead emphasizes context as a crucial element in decision-making. Legal pragmatists also argue that the idea of foundational principles is not a good idea since generally the principles that are based on them will be outgrown by practice. Thus, a pragmatist approach is superior to a classical view of the process of legal decision-making.
The pragmatist perspective is extremely broad and has led to a variety of theories in philosophy, ethics as well as sociology, science and political theory. Although Charles Sanders Peirce deserves most of the credit for pragmatism, and his pragmatic principle - a rule for clarifying the meaning of hypotheses through the practical consequences they have - is its central core, the application of the doctrine has since expanded significantly to encompass a variety of views. This includes the notion that the philosophical theory is valid if and only if it can be used to benefit implications, the belief that knowledge is primarily a transacting with rather than an expression of nature, and the idea that language articulated is an underlying foundation of shared practices which cannot be fully formulated.
While the pragmatics have contributed to a variety of areas of philosophy, they're not without their critics. The pragmatists' rejection of the concept of a priori propositional knowledge has led to a powerful and influential critique of analytical philosophy. The critique has travelled far beyond philosophy to diverse social disciplines, including jurisprudence, political science and a number of other social sciences.
However, it is difficult to classify a pragmatist conception of law as a descriptive theory. Most judges act as if they're following a logical empiricist framework that is based on precedent and traditional legal materials for their decisions. However an attorney pragmatist could consider that this model does not accurately reflect the actual nature of judicial decision-making. It seems more appropriate to see a pragmatic approach to law as a normative model that provides guidelines on how law should develop and be applied.
What is Pragmatism's Theory of Conflict Resolution?
Pragmatism is a philosophical tradition that views the world's knowledge and agency as unassociable. It has drawn a wide and often contradictory range of interpretations. It is often seen as a response to analytic philosophy, while at other times it is considered an alternative to 프라그마틱 코리아 continental thought. It is an evolving tradition that is and developing.
The pragmatists wanted to stress the importance of individual consciousness in the formation of beliefs. They also wanted to overcome what they saw as the errors of a flawed philosophical heritage which had affected the work of earlier thinkers. These errors included Cartesianism, Nominalism, and a misunderstood of the importance of human reason.
All pragmatists are suspicious of unquestioned and non-experimental pictures of reasoning. They are therefore skeptical of any argument which claims that "it works" or "we have always done it this way' are legitimate. For the lawyer, these assertions can be interpreted as being too legalistic, uninformed and insensitive to the past practices.
Contrary to the conventional conception of law as a set of deductivist laws the pragmaticist emphasizes the importance of context when making legal decisions. It will also acknowledge the fact that there are a variety of ways to define law, and that the various interpretations should be embraced. This stance, called perspectivalism, may make the legal pragmatist appear less deferential toward precedent and prior endorsed analogies.
The view of the legal pragmatist acknowledges that judges don't have access to a basic set of principles from which they could make well-considered 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 prepared to alter a law in the event that it isn't working.
While there is no one agreed definition of what a pragmatist in the legal field should look like There are a few characteristics which tend to characterise this stance on philosophy. This includes an emphasis on the context, and a reluctance of any attempt to draw laws from abstract concepts that are not tested in specific situations. The pragmaticist also recognizes that the law is always changing and there isn't only one correct view.
What is Pragmatism's Theory of Justice?
As a theory of judicial procedure, legal pragmatics has been praised as a method of bringing about social change. It has also been criticized for relegating legitimate moral and philosophical disagreements to legal decision-making. The pragmatic is not interested in relegating philosophical debate to the realm of the law, but instead adopts an approach that is pragmatic in these disputes that stresses contextual sensitivity, the importance of an open-ended approach to learning, and the acceptance that perspectives are inevitable.
Most legal pragmatists oppose the idea of a foundationalist approach to legal decision-making, and instead rely on the traditional legal sources to decide current cases. They believe that cases are not necessarily sufficient for providing a solid enough basis for deducing properly analyzed legal conclusions. They therefore need to be supplemented with other sources, such as previously approved analogies or concepts from precedent.
The legal pragmatist also rejects the notion that right decisions can be derived from some overarching set of fundamental principles, arguing that such a picture could make it too easy for judges to rest their decisions on predetermined "rules." Instead she favors a method that recognizes the irresistible influence of the context.
Many legal pragmatists because of the skepticism that is characteristic of neopragmatism, and the anti-realism it represents they have adopted a more deflationist stance towards the concept of truth. They tend to argue, by focussing on the way in which concepts are applied in describing its meaning, and setting criteria to recognize that a particular concept has this function and that this is the only thing philosophers can reasonably be expecting from the truth theory.
Some pragmatists have taken an expansive view of truth, which they call an objective standard for assertions and inquiries. This perspective combines elements from pragmatism and classical realist and Idealist philosophical theories. It is also in line with the more pragmatic tradition, which regards truth as an objective standard for inquiry and assertion, not merely a standard for justification or warranted affirmability (or its derivatives). This more holistic conception of truth is referred to as an "instrumental" theory of truth, because it seeks to define truth purely by the goals and values that determine an individual's interaction with the world.