Although pragmatic jurisprudence embraces a richer set of ideas than can be found in The Nature of the Judicial Process or ‘The Path of the Law,’ one can hardly say that there has been much progress, and perhaps in the nature of pragmatism there cannot be.
Evidence
The pragmatic movement gave legal realism such intellectual shape and content as it had. Then pragmatism died (or merged into other philosophical movements and lost its separate identity), and legal realism died (or was similarly absorbed and transcended). Lately pragmatism has revived, and the question I address in this Article is whether this revival has produced or is likely to produce a new jurisprudence that will bear the same relation to the new pragmatism as legal realism bore to the old. My answer is no on both counts. — Richard A. Posner, What Has Pragmatism to Offer Law?, 6 (
#corroborates, via linked claim)
Reviewing my eight items, we can see that Cardozo had a solid pragmatic grasp of the weakness of formalism (point 3) and a good pragmatic theory of adjudication (point 6), but free speech was not an issue about which he was much concerned (point 1); the critique of intention and causation (point 2) was less developed than it is today and certainly less salient in Cardozo’s thinking; he was uninterested in interpretation and unrealistic about the legislative process (point 3); and he was innocent of the economic approach to law as a self-conscious methodology (point 6)-it did not exist in 1921, or indeed until half a century later-but like most good common law judges he had intuitions of it. — Richard A. Posner, What Has Pragmatism to Offer Law?, 138 (
#qualifies, via linked claim)
Categorization
- corroborated: 2 independent passages support this claim
- XREF: connects to: Pragmatism has revived but produced no new jurisprudence. — Richard A. Posner, What Has Pragmatism to Offer Law?, 6; The tendencies that many years ago were fruitfully absorbed into legal realism can indeed help in the formulation of a new jurisprudence, but it will be new largely in jettisoning the naive politics and other immaturities and excesses of legal realism. This refurbished, modernized realism will owe little or nothing, however, to the new pragmatism-if indeed there is such a thing, as I doubt.; Pragmatic jurisprudence has advanced beyond Cardozo mainly in economics and free speech — Richard A. Posner, What Has Pragmatism to Offer Law?, 138 (+1 more)
Related
- Pragmatic jurisprudence has advanced beyond Cardozo mainly in economics and free speech (similarity 0.92)
- Pragmatism has revived but produced no new jurisprudence. (similarity 0.91)
- Reviewing my eight items, we can see that Cardozo had a solid pragmatic grasp of the weakness of formalism (point 3) and a good pragmatic theory of adjudication (point 6), but free speech was not… (similarity 0.90)
- A closely related point is that the application of scientific method to law lay in the future (point 7). Cardozo in his judicial opinions was very much the rhetorician (point 8), but his essay on… (similarity 0.90)
- Parallel to and influenced by the pragmatists, legal realism comes on the scene, inspired by the work of Oliver Wendell Holmes, John Chipman Grey, and Benjamin Cardozo and realized in the work of… (similarity 0.83)
- Legal pragmatism values long-range and systemic consequences, not merely case outcomes. (similarity 0.81)
- Richard A. Posner — What Has Pragmatism to Offer Law? (similarity 0.81)
- Pragmatic law judges rules by their consequences, not their origins. (similarity 0.80)
- Histories of pragmatism usually begin with Charles Sanders Peirce, although he himself gave credit for the idea to a lawyer friend, Nicholas St. John Green, and anticipations can be found much… (similarity 0.80)
- Pragmatism requires judges to adapt law to social change, not freeze it. (similarity 0.80)
- Most American judges have been practicing pragmatists despite formalist discourse. (similarity 0.79)
- Pragmatism’s rejection of foundations licenses rhetoric’s role in legal change (similarity 0.79)
- Pragmatism inverts formalism by deriving legal rules from social need rather than semantic extension (similarity 0.78)
Broader Connections
- Pragmatism has revived but produced no new jurisprudence.
#corroborates(0.85) — Richard A. Posner, What Has Pragmatism to Offer Law?, 6 - Pragmatic jurisprudence has advanced beyond Cardozo mainly in economics and free speech
#qualifies(0.70) — Richard A. Posner, What Has Pragmatism to Offer Law?, 138 - The tendencies that many years ago were fruitfully absorbed into legal realism can indeed help in the formulation of a new jurisprudence, but it will be new largely in jettisoning the naive…
#complicates(0.60) - Pragmatism is not a school but a label spanning deeply divergent thinkers.
#qualifies(0.55) — Richard A. Posner, What Has Pragmatism to Offer Law?, 67