Three Forms of Legal Pragmatism

33 Pages Posted: 17 May 2018  

Charles L. Barzun

University of Virginia School of Law

Date Written: May 2018

Abstract

The term “Legal Pragmatism” has been used so often for so long that it may now seem to lack any clear meaning at all. But that conclusion is too quick. Although there are diverse strands of legal pragmatism, there is also unity among them. This essay distinguishes among three such forms of legal pragmatism. It dubs them instrumentalist, quietist, and holist strands, and it offers, as representatives of each, the views of Richard Posner, Ronald Dworkin, and David Souter, respectively. Each of these forms of pragmatism has developed as a response to the same underlying philosophical problem, namely that of justifying moral and legal values within a naturalistic, nontheological worldview. That problem is an old one and a fundamental one. And it is one felt acutely by those judges and legal theorists over the last century or more who have sought to make sense of the judge’s task when deciding hard cases. The essay does not defend any one or more of these three understandings of law and adjudication against its critics. But it does suggest that the feature they share, in virtue of which they are all plausibly classed as “pragmatist,” may also be an important and distinctive feature of law as a discipline – that is, as a form of reasoning about matters practical and theoretical.

Keywords: Posner, Dworkin, Souter, Pragmatism, Jurisprudence, Legal Process, Realism, Critical Legal Studies

Suggested Citation

Barzun, Charles L., Three Forms of Legal Pragmatism (May 2018). Washington University Law Review, Vol. 95, No. 5, 2018; Virginia Public Law and Legal Theory Research Paper No. 2018-31. Available at SSRN: https://ssrn.com/abstract=3178155

Charles L. Barzun (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-924-6454 (Phone)

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