Pragmatism and the Illegal
Pragmatism can be described as a normative and descriptive theory. As a descriptive theory it asserts that the traditional model of jurisprudence doesn't correspond to reality, and that legal pragmatism provides a more realistic alternative.
In particular legal pragmatism eschews the notion that good decisions can be determined from some core principle or set of principles. Instead it promotes a pragmatic approach that is based on context and trial and error.
What is Pragmatism?
Pragmatism is a philosophy that emerged during the latter part of the nineteenth and early 20th centuries. It was the first truly 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 influenced by a discontent with the state of things in the present and the past.
In terms of what pragmatism really is, it's difficult to establish a precise definition. Pragmatism is usually associated with its focus on outcomes and results. This is often in contrast with other philosophical traditions that take a more theoretical approach to truth and knowledge.
Charles Sanders Peirce is credited with being the founder of pragmatism as it applies to philosophy. He believed that only what could be independently verified and proven through practical tests was believed to be real. Peirce also stated that the only true way to understand the truth of something was to study the effects it had on other people.
John Dewey, an educator and philosopher who lived from 1859 to 1952, was a second founder pragmatist. He developed an approach that was more holistic to pragmatism. This included connections with education, society, and art as well as politics. He was influenced by Peirce and also drew inspiration from the German idealist philosophers Wilhelm von Humboldt and Friedrich Hegel.
The pragmatists had a looser definition of what was truth. 프라그마틱 was not intended to be a realism position however, rather a way to attain a higher level of clarity and well-justified established beliefs. This was achieved by combining practical experience with logical reasoning.
Putnam expanded this neopragmatic approach to be more broadly described as internal realists. This was a variant of the correspondence theory of truth that did not attempt to achieve an external God's-eye viewpoint, but maintained truth's objectivity within a theory or description. It was a similar approach to the theories of Peirce, James, and Dewey, but with a more sophisticated formulation.
What is the Pragmatism Theory of Decision-Making?
A legal pragmatist views the law as a means to solve problems rather than a set of rules. Thus, he or she dismisses the conventional notion of deductive certainty and focuses on the importance of context in making decisions. Moreover, legal pragmatists argue that the idea of foundational principles is not a good idea because generally the principles that are based on them will be outgrown by application. So, a pragmatic approach is superior to the classical approach to legal decision-making.
The pragmatist view is broad and has led to the development of various theories, including those in philosophy, science, ethics and political theory, sociology and even politics. Charles Sanders Peirce is credited with being the most pragmatist. His pragmatic principle is a principle that clarifies the meaning of hypotheses through their practical implications, is the foundation of the. However the doctrine's scope has expanded considerably over time, covering various perspectives. This includes the notion that the truth of a philosophical theory is if and 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 that can't be fully expressed.
While the pragmatics have contributed to a variety of areas of philosophy, they're not without critics. The pragmatists' rejection of the notion of a priori knowledge has led to an influential and effective critique of traditional analytical philosophy that has extended beyond philosophy into a myriad of social sciences, including the study of jurisprudence as well as political science.
It is still difficult to classify the pragmatist approach to law as a description theory. Judges tend to act as if they're following a logical empiricist framework that is based on precedent as well as traditional legal materials to make their decisions. A legal pragmatist might argue that this model doesn't reflect the real-time nature of the judicial process. It seems more appropriate to see a pragmatic approach to law as an normative model that serves as guidelines on how law should develop and be taken into account.
What is the Pragmatism Theory of Conflict Resolution?
Pragmatism is a philosophical tradition that understands the world's knowledge as inseparable from agency within it. It has attracted a broad and sometimes contradictory variety of interpretations. It is sometimes viewed as a reaction to analytic philosophy, while at other times, it is seen as an alternative to continental thinking. It is a growing and evolving tradition.
The pragmatists were keen to emphasise the value of experiences and the importance of the individual's own mind in the formation of beliefs. They also sought to correct what they believed as the flaws of a dated philosophical tradition that had affected the work of earlier thinkers. These errors included Cartesianism and Nominalism, and an ignorance of the importance of human reasoning.
All pragmatists are skeptical of the unquestioned and non-experimental representations of reasoning. They are therefore wary of any argument which 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 conventional idea of law as a system of deductivist principles, the pragmaticist will stress the importance of context in legal decision-making. They will also recognize the fact that there are a variety of ways to define law, and that the various interpretations should be embraced. This perspective, called perspectivalism, may make the legal pragmatic appear less reliant to precedents and accepted analogies.
The view of the legal pragmatist recognizes that judges do not have access to a fundamental set of principles from which they could make well-reasoned decisions in all cases. The pragmatist will thus be keen to emphasize the importance of understanding the case before deciding and to be open to changing or even omit a rule of law when it proves unworkable.
Although there isn't an accepted definition of what a pragmatist in the legal field should look like, there are certain features that define this stance on philosophy. These include an emphasis on context, and a rejection of any attempt to draw laws from abstract concepts that cannot be tested in a particular case. Furthermore, the pragmatist will recognise that the law is always changing and there will be no one right picture of it.
What is Pragmatism's Theory of Justice?
As a judicial theory, legal pragmatics has been praised as a method of bringing about social changes. But it has also been criticized as a way of sidestepping legitimate moral and philosophical disputes by placing them in the realm of legal decision-making. The pragmatic is not interested in relegating philosophical debates to the realm of law. Instead, he prefers an open and pragmatic approach, and recognizes that the existence of perspectives is inevitable.
The majority of legal pragmatists do not accept the idea of a foundationalist approach to legal decision-making, and instead, rely on conventional legal sources to decide current cases. They take the view that the cases aren't up to the task of providing a firm enough foundation for analyzing properly legal conclusions and therefore must be supplemented by other sources, such as previously approved analogies or concepts from precedent.
The legal pragmatist likewise rejects the idea that correct decisions can be determined from some overarching set of fundamental principles, arguing that such a scenario could make it too easy for judges to rest their decisions on predetermined "rules." Instead, she advocates an approach that recognizes the irresistible influence of the context.
Many legal pragmatists, due to the skepticism typical of neopragmatism, and the anti-realism it embodies and has taken a more deflationist stance towards the notion of truth. They have tended to argue that by looking at the way in which the concept is used in describing its meaning, and setting standards that can be used to establish that a certain concept has this function and that this is all philosophers should reasonably expect from a truth theory.
Some pragmatists have adopted an expansive view of truth, which they refer to as an objective norm for inquiries and assertions. This view combines features of pragmatism with the features of the classical realist and idealist philosophy, and is in line with the broader pragmatic tradition that views truth as a standard for assertion and inquiry, not merely a standard for justification or justified assertibility (or any of its derivatives). This more holistic view of truth is called an "instrumental" theory of truth, because it seeks to define truth purely in terms of the aims and values that guide a person's engagement with the world.