JURISPRUDENCE II

April 5, 2010
Mary Heil
CHAPTER 10: POSTMODERN LEGAL THEORY:
PRAGMATISM AND POST-STRUCTURALISM (pp. 758-763)

Pragmatism and Neopragmatism - their relationship is complex and for some problematic
• One of the earliest sources is Aristotle’s concept of practical wisdom (phronesis); an
understanding that comes from the concrete or practical application of concepts.
• As American philosophical pragmatism developed in the early 19th and 20th centuries, it
turned away from settled theoretical beliefs and axioms toward testing the consequences
of ideas.
• Charles Peirce, founder of American pragmatism, dealt centrally with the problem of
meaning – terms mean what their consequences are. This began a movement toward
contextualism (a doctrine emphasizing the importance of the context surrounding a
question).
• William James coined the term “pragmatism” and joined the attack on metaphysics and
foundationalism. His understanding of truth was rooted in experience. In other words,
there is no final truth in either the area of ethics or physics until one has had an
experience and from this determines its meaning. Pragmatism insists that truth comes
from our perceptual experience.
• John Dewey elaborated on the contextualism of Peirce and espoused a pragmatism that
was experimentalist in nature. He embraced the scientific method of inquiry and
verification believing that these methods could be applied to any endeavor - education,
political philosophy, or law. He turned reason toward the end of social reconstruction –
toward liberal reform.
• W.V. Quine, an antifoundationalist and antiessentialist drew on both James and Dewey
to construct a version of neopragmatism, pragmatism in the postmodern era. His
naturalism locates meaning in the cognition of the individual; epistemology becomes a
branch of psychology.
• Donald Davidson follows his mentor, Quine, in problematizing the distinction between a
material reality and the language which conceives it. However he rejects Quine’s
relativism and behaviorism in favor of a “truth” theory of meaning grounded in a scheme
of rationality.
• Hilary Putnam’s “internal realist” concept is an attempt at middle ground between the
uncritical deference of relativism and the aggressive assaults of rationality.
• Martha Nussbaum’s practical reasoning embraces both rationality and compassion in
pursuit of systematic thought about human well-being based on experience of concrete
particular cases.
• Richard Rorty’s pragmatism is not concerned with true beliefs but with successful rules
of action. He maintains that life is a discursive activity, and that language is both
reflective and constructive of communities – language is “a reality in which we live and
move”. The better world occurs through the solidarity of community constituted by its
agreement on social, moral, and political issues.
A large number of contemporary legal theorists lay claim to the pragmatic tradition and can be
found in nearly all jurisprudential writing. Legal pragmatism as a distinct attitude, if not a
discrete theory, may well dominate the legal academy.

Postmodern Legal Theory

It is very difficult to define this legal theory. However, there are observable commonalities and
areas of divergence between post-structuralist and neo-pragmatist legal thought.
• Central common feature – anti-foundationalism that extends to both the premises and
methods of legal problem-solving.
• Other common themes: an emphasis on language as the key to meaning and truth; a
skepticism toward the possibility of single, fixed, “true” meaning for texts; and a focus on
the relationship between truth and power.
• Significant differences between poststructuralists (“ps”) and neopragmatists (“np”): (1)
their conceptions of the human subject (where the ps is more apt to emphasize the
inescapable cultural constraint, and the np is more apt to retain a commitment to human
agency and the possibility of willful change. (2) their attitudes toward normative
discourse (where the ps is skeptical of the value of “values”talk, the np believes that a
community through elevated discourse of aspirations will be urged to social change. (3)
their orientation (ps is largely aesthetic, though undeniable political consequence flows
from the destabilizing play of words by deconstruction.

Three warnings
• Reading postmodern writing is like getting an invitation to think real hard about thinking
real hard – layers of scrutiny and infinite regress.
• Rhetoric of postmodernism is sometimes simply incomprehensible.
• Postmodern thought remains a very loose borrowed ideas – the discourse is multi-
dimensional, multi-directional, and largely unbounded.

Postmodernism’s seeming incoherence is a reflection of its still-evolving (anti-)form, a function

of its inner (anti-)logic. The rest of the chapter offers a collage of postmodern expressions that
offer descriptions and possibilities of meaningful legal discourse in a postmodern age.