Pragmatism inverts formalism by deriving legal rules from social need rather than semantic extension

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

Categorization

• DEFINE: Shows the concrete difference between formalist and pragmatic approaches to legal reasoning.
• SEED: The oil-and-gas versus wild-animal example could anchor an essay contrasting formalist and pragmatist reasoning in property law.
• XREF: connects to: Formalism is a central and distinctive feature of law — Frederick Schauer, Thinking Like a Lawyer, 54; 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.; 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. (+8 more)

Broader Connections

• Formalism disguises the need for judicial choice by freezing rule meaning #corroborates (0.70) — HLA Hart, The Concept of Law (Clarendon Law…, 370
• Common law rules arise from comparing cases, not from tracing prior logic #corroborates (0.60) — Burton, Steven J, An Introduction to Law and Legal…, 222
• Pragmatism relates to ancient skepticism via valuing opinions by utility #expands (0.55) — Bertrand Russell, History of Western Philosophy, 399