Critical Legal Theory and The Politics of Pragmatism (original) (raw)

Legal Philosophy in America (2008)

The Oxford Handbook of American Philosophy (Cheryl Misak, ed.), 2008

This article o ers an overview of the major areas and approaches where American theorists have o ered signi cant contributions to legal philosophy. The rst section discusses American legal realism; the second section looks brie y at the legal process school; the third section gives brief overviews of law and economics and the other post-realist critical theories; the fourth section summarizes the approach of Lon Fuller; the fth section examines the legal theory of Ronald Dworkin; and the fth section summarizes some signi cant American contributors to schools of thought that originated in Europe, as well as American contributions to the analysis of legal concepts and doctrinal areas. TO THE EXTENT that there is something distinctive about legal philosophy in America or by Americans (cf. Leiter 1997), it connects to a pragmatic or prescriptive focus, and a xation on judicial reasoning in general, and constitutional decision making in particular. However, American theorists have also made important contributions to analytical legal philosophy (if mostly thereby furthering projects begun in Britain or continental Europe). This chapter o ers an overview of the major areas and approaches where American theorists have o ered signi cant contributions to legal philosophy. Section I discusses American legal realism; section II looks brie y at the legal process school; section III gives brief overviews of law and economics and the other postrealist critical theories; section IV summarizes the approach of Lon Fuller; section V examines the legal theory of Ronald Dworkin; and section VI summarizes some signi cant American contributors to schools of thought that originated in Europe, as well as American contributions to the analysis of legal concepts and doctrinal areas.

Two Challenges to Normative Legal Scholarship

2012

1 The Internal and External Perspective on Law 178 2 Legal Science in Legal Discourse 181 3 Norms and Facts 186 4 What can Legal Science Learn from Social Science? 190 5 The Critic’s Narrative of Law and Legal Discourse 193 6 The Problem of Reductionism 196 References 201

Reconstructing the Legacy of Pragmatist Jurisprudence

Pragmatism Today, 2012

In Law, Pragmatism and Democracy, Richard Posner wrestles with the ghost of John Dewey for the mantle of pragmatist jurisprudence. Most commentators have seen this work as pitting Posner against Dewey in a contest of pragmatisms, the stakes for which are no less than their respective legacies for legal and democratic theory. Some have sided with Posner and others with Dewey. I contend that the commentators have misidentified the target of Posner’s critique. Posner had another legal theorist in mind and he was disingenuous in naming Dewey. A careful reconstruction of Posner’s argument shows that Dewey’s pragmatism provides a genuine middle way between Posner’s position and that of his intended rival.

The Political Content of Legal Theory

Philosophy of the Social Sciences, 1987

Reading Hans Kelsen in the light of modem social and political theory, one is struck by how strange some of his ambitions seem. There is an unworldly air about his quest for a pure theory of law, one which 'describes the law and attempts to eliminate from the objects of this description everything that is not strictly law' and which aims 'to free the science of law from alien elements' .1 He wants to end the 'adulteration' of legal science by the contaminants of ethics, psychology, sociology and political theory. Of course, it is the desire of many to elaborate a legal theory which has among its criteria for identifying law only social facts and no moral arguments; that much is common ground among all legal positivists and some others as well. The oddity lies not in this but in Kelsen's restricted notion of what sort of facts may count. Purged of all sociology, psychology and political theory we end up with the mysteries of the Grundnorm and the absurd denial that there can be any sociological concept of law or the state.

The Problems of Jurisprudence by Richard A. Posner

1990

Reviewed by Raymond B. Marcin* Dust off those old copies of William James.' Pragmatism is "in." 2 Richard A. Posner's newest book, THE PROBLEMS OF JURISPRUDENCE, may well signal the vocabulary of Pragmatism as the lingua franca of jurisprudence in the 1990's. Those who are looking for a "unified field theory" to encompass all of the insights of the great jurisprudential movements of today will find something to chew on in Posner's new book. He does not announce such a theory; in fact, he all but discounts it in his treatment of literary, feminist, and criticalist jurisprudence. In his endorsement of philosophical pragmatism, however, he provides a vocabulary and a set of concepts that render communication among the various contemporary schools, especially the law-and-economics and so-called new-legal-process schools, possible and even efficient. There is a surprise or two in the book for doctrinaire law-and-economics disciples. Posner actually modifies some of his previously published views on wealth maximization, which he now sees as playing only a "limited role" in his theory. 3 Indeed, he spends a goodly portion of the book recasting the wealth-maximization approach to law in pragmatic terms. 4 In reading the * Judge of the United States Court of Appeals for the Seventh Circuit; Senior Lecturer, University of Chicago Law School.

Legalism, Realism and Supreme Court Decision-making

2008

Political scientists have long debated the relationship between questions of fact and questions of value. Among the leading questions considered in this debate been: Can our political and moral beliefs be subject to empirical testing or are the grounds for our values entirely independent of the way the world is? Does empirical research in political science have implications for the content of our political and moral ideals? Or does this research speak only to the possibility of realizing these ideals? Is objective research possible in political science? Or is political science necessarily ideological in nature? These are interesting and fascinating questions. Yet our answers to these questions have little impact on the conduct of empirical research. The first two pairs of questions are more important to the political theorist than to the empirical political scientist. Whether our values are connected to or independent of the conclusions of empirical political scientists is certainly relevant to political theorists interested in justifying one set of political and moral beliefs or another. But whatever answer we give to these questions presupposes that rational and objective knowledge is possible in political science. The last pair of questions does raise an important question for those engaging in empirical research precisely because one of the questions denies the possibility of rational and object knowledge in our discipline. But that denial is simply not credible. Many political scientists choose research projects that are connected to their political and moral concerns. And occasionally a political scientist may neglect certain evidence that calls his values into question. But there is simply too much accumulated evidence of the possibility of objective and rational analysis to call our whole discipline into question. There are two many political scientists who have shown that it is possible for us to put aside our own ideals and follow the evidence where it leads.