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Pragmatism's rejection of foundations licenses rhetoric's role in legal change

Properties2
tagsja-picks, seed, xref, causal_relationships, primary_study, singleton, category/causal-relationships
aliases@posner_what_1990, loc. 137

3 min read

Pragmatism’s rejection of foundations licenses rhetoric’s role in legal change

Evidence

By making the concept of “objective truth” problematic, the pragmatic distrust of foundations expands the range in which metaphor and other forms of emotive argument may legitimately upset belief. In Holmes’s pragmatic metaphor of the marketplace of ideas, competing theorists, ideologues, and reformers hawk their intellectual wares. Knowing how important persuasion is in the market for goods and services, we should not be surprised to find it playing a big role in the market in ideas as well. We should expect change in law to be related not only to politics and economics and not only to the correction of error, but also to new slogans, metaphors, imagery, and other means of bringing about changes in perspective. — Richard A. Posner, What Has Pragmatism to Offer Law?, 137

Categorization

  • SEED: Angle: theories of legal change that credit metaphor, slogan, and imagery rather than only politics, economics, and error-correction.
  • XREF: Echoes the law-and-literature / rhetoric-of-law movement, and Lakoff-style framing theory about metaphor changing belief. — connects to: 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.; Pragmatism inverts formalism by deriving legal rules from social need rather than semantic extension — Richard A. Posner, What Has Pragmatism to Offer Law?, 96; Formalism might be seen not as embodying an embarrassingly crude understanding of communication, but as a sensible and highly pragmatic response to institutional limits of generalist judges and institutional capacities of Congress. We believe that in considering these debates, an institutional focus is helpful, not because it always resolves them, but because it shows what many disputes are really about, and because it casts light on central questions that might otherwise be obscured. At a minimum, we urge that an appreciation of institutional capacities and dynamic effects is a necessary part of any theory of legal interpretation. A theory that neglects those issues is seriously incomplete. We also hope that future debates about interpretation will focus on institutional issues, where it remains possible to make a great deal of progress, not least by examining empirical issues, identified below, on which much remains to be learned. (+4 more)

Broader Connections

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