A Word about Pragmatism
I wanted to briefly follow up on my post about the varieties of realism, just to expand on my comment about pragmatism.
Philosophical pragmatism is basically the idea that the concept of a thing is the concept of that thing’s effects (Peirce’s maxim), an idea more profound than it may seem. But I think the key insight of the pragmatists was to recognize the social basis of much of our thinking. Ideas are meaningful because they are part of our action plan in life. And much of what we do is organized in one way or another by relation to various social institutions, broadly construed. Economy, marriage, family, education, art, whatever. Our experience of the web of norms cast by these institutions is what we call, colloquially, “life.”
A pragmatist recognizes the import of socially constructed meaning, but without mistaking it for the straw man of anything-goes relativism. There is a reality independent of what we think about it, but what we think and do can play a major part in creating that reality.
All of which means that the law, a product of complex interactions of an array of human institutions, is neither totally dependent on what we, or our judges, think about it (simple legal realism), nor totally independent of what we think (natural law, philosophical realism). It is both, somewhat.
Weekend Wordery: “Realism”
Matt Yglesias is right. Legal realism is pretty much the opposite of philosophical realism. In philosophy, realism is basically the position that the world is not mind-dependent. In legal theory, realism (usually qualified as “legal realism” for this reason, I think) means that the law is mind-dependent. So, legal realism is associated with the cynical view that the law is whatever the judge says it is.
Yglesias also notes that people who don’t go to law school are invariably legal realists, which I suppose is probably true. I’d also note that, apart from the theoretically minded, high-achieving law students who go on to become law professors, practically all law students are legal realists. Which means that almost all lawyers are, too.
I’ve worked around the terminological confusion by simply boycotting the term—which is hopelessly two-dimensional anyway. Pragmatism, in law and in philosophy, captures the helpful insights of realism within a framework that is grounded in constructive and socially aware thinking about three-dimensional problems in a three-dimensional world.
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