Abstract
Philosophical pragmatism defines the truth of a belief or an assertion in terms of its warranted assertability, empirical testability, or practical utility in the service of any human endeavour: truth is what works. In the context of law, however, the instrumentalist criteria of what(ever) works are far from self-evident, due to the essentially contested character of the law and the variety of values to be pursued by means of it. Still, William James’ masterly definition of truth may well be extended to the domain of law, too: “Grant an idea or belief to be true, what concrete difference will its being true make in any one’s actual life?”. In the field of law, the gist of pragmatism is at the strongest in social consequentialism, where the external effects of law in society are taken as decisive in how to construct and read the law. The economic consequences of law, in specific, have loomed large under such pragmatist premises, as defined by the economic analysis of law. In the branches of law that regulate the production of goods and services, financing, insurance, marketing, and trade and commerce in general, the utility of the economic analysis of law is obvious. In other branches of law, however, the situation is very different. Therefore, the two questions voiced by Ronald Dworkin, i.e. “Why Efficiency?” and “Is Wealth a Value?”, gain more importance there.
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Notes
- 1.
Scheffler, Four Pragmatists. A Critical Introduction to Peirce , James, Mead, and Dewey, p. 149 et seq.
- 2.
Holmes’ oracle-like assertions on the law bear the impact of pragmatism. Cf.: “The life of the law has not been logic: it has been experience.” Holmes, “The Common Law”, p. 237; “General propositions do not decide concrete cases.” Holmes, in Lochner v. New York, 198 U.S. 45 (1905), in Posner, ed., The Essential Holmes, p. 306; “The common law is not a brooding omnipresence in the sky but the articulate voice of some sovereign or quasi-sovereign that can be identified…”, Holmes, “Southern Pacific Co. v. Jensen”, 244 U.S. 205 (1917), as cited in Posner, ed., The Essential Holmes, p. 230.
- 3.
As Nicholas Rescher put it: “Peirce’s pragmatism is scientifically élitist, James’ is psychologically personalistic, Dewey’s is democratically populist.” Rescher, “Pragmatism”, p. 712.
- 4.
Lind, “Pragmatist Philosophy of Law”, pp. 678–679: fallibilism and the growth of knowledge, contextualism, instrumentalism, workability.
- 5.
Cf. James, “Pragmatism’s Conception of Truth”, p. 148: “We must find a theory that will work; and that means something extremely difficult; for our theory must mediate between all previous truths and certain new experiences. It must derange common sense and previous belief as little as possible, and it must lead to some sensible terminus or other that can be verified exactly. To “work” means both these things; and the squeeze is so tight that there is little loose play for any theory.” (Italics in original.)
- 6.
Rescher, “Pragmatism”, p. 710.
- 7.
James, “Pragmatism’s Conception of Truth”, p. 142. (Italics in original.)
- 8.
James, “Pragmatism’s Conception of Truth”, p. 143.
- 9.
Rescher, “Pragmatism”, p. 710.
- 10.
Peirce, Pragmatism and Pragmaticism, pp. 233–242.
- 11.
Peirce, Pragmatism and Pragmaticism, pp. 242–244; Niiniluoto, Johdatus tieteenfilosofiaan. Käsitteen- ja teorianmuodostus, p. 83.
- 12.
Niiniluoto, Johdatus tieteenfilosofiaan. Käsitteen- ja teorianmuodostus, pp. 83–84.
- 13.
As cited in Mendell, “Dewey, John (1859–1952)”, p. 204.
- 14.
“The truth of an idea is not a stagnant property inherent in it. Truth happens to an idea. It becomes true, is made true by events. Its verity is in fact an event, a process, the process, namely, of its verifying itself, its veri-fication. Its validity is the process of its valid-ation.” James, “Pragmatism’s Conception of Truth”, p. 142 (all italics and formattings in original). – Cf. Dickstein, “Introduction: Pragmatism Then and Now”, p. 7: “James insists that truth or meaning is a process, an action leading to a pay-off, a verb rather than a noun.”
- 15.
Kuhn, The Structure of Scientific Revolutions.
- 16.
The Catholic Church had such a privileged position as a kind of court of last instance concerning scientific truth at the beginning of the modern era. Giordano Bruno was burnt as a heretic on the square of the Campo dei Fieri in Rome in 1600. Galileo Galilei (1564–1642), after having been threatened with the instruments of the Inquisition, had to deny his heretical doctrine to the effect that that the earth revolves around its axis and around the sun, while allegedly muttering to himself: “E pur si muove.” (And yet it [the earth] moves, i.e. revolves around the sun.) – In the Soviet Union of the Stalinist era, even scientific truths were approved or disapproved by the Communist Party. Any scientific theories that were deemed ideologically suspect were declared false. On the other hand, the biologist Lysenko’s erroneous doctrine concerning the inheritance of some acquired properties was declared to be valid science by the Communist Party because of ideological reasons.
- 17.
Dickstein, ed., The Revival of Pragmatism. Cf. Rorty, Consequences of Pragmatism. (Essays: 1972–1980); Fish, Doing What Comes Naturally. Change, Rhetorics, and the Practice of Theory in Literary and Legal Studies.
- 18.
Llewellyn, The Bramble Bush, pp. 3, 5. (Italics in original.) – Later on, Llewellyn tried to distance himself from the sternness of that stance, now claiming that: “They are, however, unhappy words when not more fully developed, and they are plainly at best a very partial statement of the whole truth.” Llewellyn, The Bramble Bush, p. X.
- 19.
Holmes, “The Path of the Law”, pp. 460–461. (Italics added.)
- 20.
“The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts. – The means of the study are a body of reports, of treatises, and of statutes, in this country and in England, extending back for 600 years, and now increasing annually by hundreds. In these sibyllian leaves are gathered the scattered prophesies of the past upon which the axe will fall. These are what properly have been called the oracles of the law.” Holmes, “The Path of the Law”, p. 457.
- 21.
Aarnio, The Rational as Reasonable, pp. 89–90; Aarnio, Laintulkinnan teoria, p. 220; Peczenik, Vad är rätt? p. 214. – As to the binding character of customary law, there is even a statutory stipulation to that effect in the Finnish Act of Judicial Procedure.
- 22.
The prominent role of legal sanctions is of course one of the key characteristics in John Austin’s and Hans Kelsen’s analytical legal positivism, as well.
- 23.
Cook, “Scientific Method and the Law”, p. 249. (Italics added.) – Cook emphasizes how it is not a judge’s task to find some pre-existing, concealed meanings in the legal rules in force but, instead, to give them a meaning content for the case at hand. Cook, “Scientific Method and the Law”, pp. 248–249: “His [the judge’s] task is not to find the preexisting but previously hidden meanings of the terms in these rules; it is to give them a meaning.” Cf. similarly in Makkonen, Zur Problematik der juridischen Entscheidung, pp. 111, 118.
- 24.
Holmes, “The Path of the Law”, pp. 469, 474. (Italics added.)
- 25.
Naturally, the emergence of the empirical social sciences in the field of law did not take place overnight or without dead ends in search for a working conception of enquiry. Cf. Schlegel, American Legal Realism and Empirical Social Science, where an account is given of the early pathfinders of modern empiricist social sciences.
- 26.
Here, I will not wish to enter the discussion on whether the human and social sciences count as “genuine” science in the strict sense of the term. Certainly they do not, if by “science” is meant a commitment to an empiricist and/or experiential methodology and a research interest aligned with the explanation and prediction of the phenomena. The human and social sciences have a different agenda, and they, too, qualify as scientific inquiry, if – and only if – the commitments that constitute the matrix of scientific research, i.e. the ontological, epistemological, methodological, logico-conceptual and axiological premises of inquiry, are duly satisfied in them. Cf. Siltala, Oikeustieteen tieteenteoria, passim.
- 27.
On legal formalism, see e.g. Summers, “Form and Substance in Legal Reasoning”; Summers, “The Formal Character of Law”; Summers, “Theory, Formality and Practical Legal Criticism”; Summers, “How Law is Formal and Why it Matters”; Cf. Siltala, A Theory of Precedent, pp. 41–63, where a parallel reading is given of Robert S. Summers’ idea of legal formalism and Ronald Dworkin’s idea of legal principles, and the claim of the affinity of the two doctrines is argued for.
- 28.
Tamanaha, Beyond the Formalist-Realist Divide, p. 107: “Viewed in this longer frame, it appears more accurate to situate the “legal realist” at the tail end of about a half-century of a continuous steam of candid realism about law and judging. (…) What especially stands out about expressions of skeptical realism is the similarity of the arguments across time. Rantoul in 1836, Hammond in 1881, the legal realists in the 1920s and 1930s, and Critical Legal Studies in the 1970s and 1980s (and others along the way) all argued in interchangeable terms that judges have the freedom to decide cases in accordance with their political views and to cover these decisions with legal justifications.”
- 29.
Coase, “The Problem of Social Cost”.
- 30.
Calabresi, “Some Thoughts on Risk Distribution and the Law of Torts”. – On the birth of the economic analysis of law, Posner, Economic Analysis of Law, pp. 23–24.
- 31.
Cooter, “Prices and Sanctions”.
- 32.
Posner, Economic Analysis of Law, pp. 249–250. (Italics added.)
- 33.
Posner, Economic Analysis of Law, pp. 249–250.
- 34.
On a similarly descriptive/prescriptive reading of Posner’s pragmatism, cf. Tamanaha, Law as a Means to an End, pp. 118–119.
- 35.
On the notion of legisprudentia, or jurisprudential analysis of the process of legislation, cf. Wintgens, “Creation and Application of Law from A Legisprudential Perspective. Some Observations on the Point of View of the Judge and the Legislator”.
- 36.
Posner, Economic Analysis of Law, pp. 252–253: “Despite all of the above, not every common law doctrine has an economic rationale. (…) Some of the discrepancies between law and economics may be the result of simply of lags explicable in economic terms, the phenomenon economists call “path dependence”. Because the law for good economic reasons places heavy weight on continuity, law tends to lag behind changing social and economic conditions. Nevertheless, economic efficiency does not provide a complete positive theory of the common law. But it does provide a uniform vocabulary and conceptual scheme to aid in making the common law understandable as a coherent whole, and thus to balance the heavily particularistic emphasis of traditional legal education and reasoning.” – The term “logico-conceptual toolbox” is mine, but the idea is Posner’s.
- 37.
A notable exception to the absence of a judicial perspective within the law and economics movement is of course Justice Richard Posner whose argumentation is deeply rooted in the soil of the judge-made common law tradition in the United States. Posner, Economic Analysis of Law, pp. 249–250.
- 38.
Mattei, Comparative Law and Economics, pp. 69–146 and esp. pp. 101–121, where the author deals with the sources of law of legislation under the subtitle The Competitive Relationship among Sources of Law and makes use of the seminal texts of such heavy-weight American legal realists as Jerome Frank and John Chipman Gray but, at the same time, ignores the judge’s or other official’s view as to the law. In addition, with the term “sources of law” Mattei refers to the source material that is available to the legislator, while established linguistic usage relates the said notion rather to a judge’s or other legal official’s view as to the constitutive premises of law.
- 39.
On the forces and relations of production in society and on the capital as the “transcendental-logical” subject in society, endowed with an inherent capacity of autonomous self-production, cf. Hänninen, Aika, paikka, politiikka. – Hänninen’s Marxist reading of Georg Lukács’ theory of society, to the effect of discerning the three levels of society, each with a distinctive kind of subjects in it: (a) individual subjects with individually ascribable intentions, (b) collective subjects with a distinct class-consciousness, and (c) the capital as the “transcendental-logical” subject that observes the laws of its own self-reproduction in society, provided the original inspiration for Kaarlo Tuori’s three-layered model of law and society. In Tuori’s Critical Legal Positivism, the Marxist frame of analysis is to some extent downgraded, making room to a more openly positivist account to the law, now outlined with reference to Hans Kelsen’s and H. L. A. Hart’s theories of law. Yet, contrary to what the author argues, Tuori’s idea of the multi-levelled structure of law, where the deeper levels of law are able to resist any abrupt efforts towards legal change on part of the legislator and the courts of justice, cannot be reconciled with a truly positivist notion of law, as advocated by Kelsen, Hart, and the other main representatives of analytical legal positivism. – I will consider the issue at more depth in Section 6.5. The Unresolvable Dilemma of Kaarlo Tuori’s Critical Legal Positivism.
- 40.
Dworkin, “Is Wealth a Value?”; Dworkin, “Why Efficiency?”. – Both articles are reprinted in Dworkin’s A Matter of Principle. In the former, Dworkin evaluates Richard Posner’s classic account of the issue in Economic Analysis of Law; and in the latter, he estimates Guido Calabresi’s similarly influential work The Costs of Accidents.
- 41.
Dworkin, “Hard Cases”, pp. 82–84; Dworkin, “A Reply to Critics”, pp. 364–366; Dworkin, Law’s Empire, passim.
- 42.
Dworkin, “Why Efficiency?”, p 279. – On Rawls’ methodology as a model for Dworkin, cf. Dworkin, Justice in Robes, pp. 241–261. When visiting my post-graduate seminar (in Finland) in May 2008 and asked about the relation of his theory of law vis-à-vis John Rawls’ theory of social justice, Dworkin admitted that there are no doubt similarities in the methodology, though not in content, in Rawls’ seminal idea of a deliberative equilibrium and his own idea of legal deliberation in terms of the law as integrity.
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Siltala, R. (2011). Philosophical Pragmatism: Law, Judged in Light of Its Social Effects. In: Law, Truth, and Reason. Law and Philosophy Library, vol 97. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-1872-2_5
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