A Different Legal Conservatism (original) (raw)
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Where do pragmatism and conservatism intersect? What does pragmatism offer conservatives? Seth Vannatta answers these questions in Conservativism and Pragmatism in Law, Politics, and Ethics. He argues that, as a methodology, pragmatism concerns itself with the situated, the embedded, the contextual, the experiential, the fallible, the social, and the customary. Chief among its concerns is lived experience. It recalls philosophical modes associated with Michael Oakeshott, Edmund Burke, F. A. Hayek, and Russell Kirk. This essay explains and evaluates Vannatta’s arguments about pragmatism and conservatism with an eye toward reanimating a pragmatic conservative tradition.
Contemporary Pragmatism, 2019
At a book-in-progress session of the 2013 Summer Institute in American Philosophy , in an effort to direct the focus of the question and answer session toward ways of improving the manuscript that became Conservatism and Pragma-tism in Law, Politics, and Ethics, I told the audience what conservatism, for my purposes, was not. It does not mean a neo-liberal fetish for markets and is not equivalent to libertarianism. It does not mean neo-conservatism or advocate for re-making the world in an American image. Further, it does not mean the social conservatism of the religious right wing. And it does not advocate for white nationalism alongside the Alt Right. In the book, I indicate that my conservatism is methodological, which it is. However, to indicate that my conservatism is methodological and not political, is to concede to the assumption that the contemporary political right wing in the United States is anything but a coalition of these ideological interests from which I attempt to de-couple my conservatism. I did, as Luke Plotica points out, define conservatism negatively as skepticism of rationalism in law, politics, and ethics. Such skepticism registers as suspicion of wholesale change and the a priori method and method of authority , as defined by C.S. Peirce. To cash out this negative description in law, politics , and ethics is to distance conservatism from other methodologies in these forms of culture. In law, this means distinguishing conservatism from three important legal traditions: the legal positivism of Jeremy Bentham, John Austin, H.L.A. Hart; the metaphysical conservatism of natural law theory in the medieval tradition but also in the Blackstonian equation of the common law and natural law, referred to by Allen Mendenhall in his review essay; and perhaps most importantly, from the formalism embraced by mainstream legal conser-vatives. Plotica has rightly directed his summary and critique to the embrace of formalism qua originalism by contemporary mainstream legal conservatives, and I will address the challenges his essay poses to my attempt to de-couple my understanding of conservatism from formalist versions of legal conservatism. In politics, this meant distancing conservatism from the a priori method of
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.
PRAGMATISM AND JUDICIAL RESTRAINT
This paper examines the tradition and influence of pragmatism and judicial restraint in American legal culture. In order to better understand the intellectual foundation of this tradition, I will examine the jurisprudence of James Bradley Thayer and Oliver Wendell Holmes. I will argue that this discourse has enriched debates about the constitutional relationship between the judiciary and the modern administrative state, and that a deeper understanding of this tradition can help to unravel thorny questions regarding the maintenance of constitutional values in a modern democracy committed to the rule of law.
Where’s Judge Posner’s Conservatism? On the Prospect of a Conservative and Pragmatic Judicial Theory
In this paper I will (1) distinguish methodological conservatism in judicial theory from political conservatism (2) I will examine the use of the term conservative to describe Richard Posner's judicial philosophy in order to determine if the designations of conservative, when applied to Posner, are of the methodological or political stripe. (3) I will suggest that pragmatic judicial theory is guided by a norm of methodological conservatism. This will allow me to outline the features of a pragmatic and conservative judicial theory. The possibility of pragmatic conservatism in judicial theory hinges on three fronts (a) a mistrust of pure formalism, (b) a pragmatic philosophy of history, which by constraining the use of history for service in the present, resists historical relativism, and (c) an attention to the customary and cultural features of the present situation or case.
Between Science and Fiction: Conservatism and Pragmatism in History and Law
European Journal of Pragmatism and American Philosophy, 2011
In this article I present two theories of historical inquiry, which I characterize as conservative and pragmatic. I argue that these two views of history, John Dewey's and Hans Georg Gadamer's, provide an excluded middle between the extremes of positivism and relativism. They are pragmatic insofar as they accept the anti-foundationalist critique of positivism; they are conservative insofar as they refuse to reduce historical inquiry to mere discourse or narrative. Both focus on the situatedness of historical inquiry, paying special attention to the culturally emergent conceptual schemes and prejudices of the historian, but they constrain historical inquiry by providing an improved understanding of the relationship between the problems which give rise to our inquiries and the tools which help resolve them. Dewey, in the key of naturalism, and Gadamer, in the key of phenomenology, provide conservative and pragmatic philosophies of historical inquiry, which refuse to pose as science, but do not fall into narrative fiction. Additionally, their approaches to historical inquiry share a concern for the practical application of the study of history. In this concern for application, both Dewey and Gadamer provide a theory of historical inquiry consonant with a conservative and pragmatic judicial theory, which rejects both the formalism of legal positivism and the model of unconstrained judicial radicalism. ISSN: 2036-4091 2012, IV, 1 160 nizable substructure-from -God‖ to -substance,‖-matter,‖-energy,‖ and -atoms‖-to secure its continuity and observability (Rorty 1985: 3).