Title

Legal Pragmatism, an Ideal Speech Situation, and the Fully Embodied Democratic Process

Document Type

Article

Abstract

Few philosophies can rival pragmatism in its influence on American popular culture. Pundits routinely invoke this down-to-earth creed to label certain twentieth century intellectual currents, although they disagree on whether pragmatism bears good tidings. A pragmatic attitude comes in handy, many feel, when we confront a problem that defies easy solutions and calls for a novel, experimental approach. Others see pragmatism as a slippery slope that will lead astray undisciplined minds unwilling to fortify their judgment with firm principles. Which position one takes depends in part on one’s political leanings.

This paper is about jurists’ encounter with pragmatism and pragmatist philosophers’ grappling with law. It reviews the range of discursive and nondiscursive practices associated with the pragmatic perspective on law and democracy. Section II begins with Kant’s legal philosophy and its peculiar relevance for pragmatism as a negative reference frame. Section III shows how philosophers responded to Kant. Section IV tracks the jurists’ reaction to pragmatism. Section V analyzes recent trends in legal pragmatism. Section VI discusses the place of principles in pragmatic jurisprudence. Section VII focuses on attempts to reclaim the Kantian insights in the discourse theory of law and democracy. And Section VIII joins issues with the process theorists of democracy and appeals to the legacy of John Dewey and George Herbert Mead as theoreticians of the fully embodied democratic process.

Keywords

Jurisprudence--Philosophy; Law and socialism; Legal ethics--Philosophy; Pragmatism

Disciplines

Ethics and Political Philosophy | Jurisprudence | Law and Society | Legal History | Social Control, Law, Crime, and Deviance | Theory, Knowledge and Science

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