Beyond Common Sense: Philosophical Pragmatism's Relevance to Law
Tilburg University Legal Studies Working Paper No. 002/2006
Retfaerd: Nordisk Juridisk Tidsskrift, Vol. 29, No. 4, pp. 22-36, 2006
21 Pages Posted: 15 Apr 2007
Abstract
Philosophical pragmatism as a contextualist, consequentialist theory of inquiry should also be used for legal theory. Pragmatism should not be understood as either the common-sense view that we should not look for theory beyond what works for us, or as the view that law should be subjected to society's economic and political needs. Legal pragmatism that is based on a pragmatist philosophy can be more subtle. Its experimental and contextual theory of legal decision-making makes it adaptive and open to creative changes. Its broad view of considerations that are relevant for justifying decisions allows for a balanced view of law as means and ends. Its holistic outlook allows us to see law as an integral part of society without forgetting law's commitment to specific values. Legal pragmatism has a positive outlook on the possibility of solving legal problems, if the right method of inquiry - open, self-critical, intersubjective - is used.
Keywords: legal pragmatism, Dewey, legal values
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