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…

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 the self-described realists, such as Jerome Frank, William Douglas, Karl Llewellyn, Felix Cohen, and Max Radin. Pragmatism and legal realism join in Dewey’s essays on law.

Evidence

The pragmatic approach reverses the sequence. It asks, What is the right rule-the sensible, the socially apt, the efficient, the fair rule-for oil and gas? In the course of investigating this question, the pragmatist will consult the wild animal law for what, (little) light it may throw on the question, but the emphasis will be empirical from the start. There will be no inclination to allow existing rules to expand to their semantic limits, engrossing ever greater areas of experience by a process of analogy or of verbal similitude. The tendency of formalism is to force the practices of business and lay persons into the mold of existing legal concepts, viewed as immutable, such as “contract.” The pragmatist thinks that concepts should be subservient to human need and therefore wants law to adjust its categories to fit the practices of the nonlegal community. — Richard A. Posner, What Has Pragmatism to Offer Law?, 96 (#expands, via linked claim)

Categorization

• XREF: connects to: 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 earlier-in Epicurus, for example. From Peirce the baton is (in conventional accounts) handed to William James, then to John Dewey, George Mead, and (in England) F.S.C. Schiller.; Pragmatism inverts formalism by deriving legal rules from social need rather than semantic extension — Richard A. Posner, What Has Pragmatism to Offer Law?, 96; 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. (+2 more)

Related

• Pragmatism inverts formalism by deriving legal rules from social need rather than semantic extension (similarity 0.91)
• 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 0.90)
• Pragmatism’s rejection of foundations licenses rhetoric’s role in legal change (similarity 0.83)
• 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… (similarity 0.83)
• Pragmatism has revived but produced no new jurisprudence. (similarity 0.83)
• Legal pragmatism values long-range and systemic consequences, not merely case outcomes. (similarity 0.82)
• Pragmatic law judges rules by their consequences, not their origins. (similarity 0.81)
• Pragmatism requires judges to adapt law to social change, not freeze it. (similarity 0.79)
• Pragmatism redefined thought as an active tool for solving problems rather than passive contemplation. (similarity 0.79)
• Realism survives only in a domesticated form, largely ignored in practice. (similarity 0.79)

Broader Connections

• 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… #responds-to (0.75)
• Pragmatism inverts formalism by deriving legal rules from social need rather than semantic extension #expands (0.70) — Richard A. Posner, What Has Pragmatism to Offer Law?, 96
• Pragmatism’s rejection of foundations licenses rhetoric’s role in legal change #expands (0.60) — Richard A. Posner, What Has Pragmatism to Offer Law?, 137
• These elements in turn imply an outlook that is progressive (in the sense of forward-looking), secular, and experimental, and that is commonsensical without making a fetish of common sense-for… #corroborates (0.60)