The purpose of this paper is to offer some critical remarks on the so-called pragmatist approach to the regulation of robotics. To this end, the article mainly reviews the work of Jack Balkin and Joanna Bryson, who have taken up such ap- proach with interestingly similar outcomes. Moreover, special attention will be paid to the discussion concerning the legal fiction of ‘electronic personality’. This will help shed light on the opposition between essentialist and pragmatist methodologies. After a (...) brief introduction (1.), in 2. I introduce the main points of the methodological debate which opposes pragmatism and essentialism in the regulation of robotics and I examine how legal fictions are framed from a pragmatist, functional perspective. Since this approach entails a neat separation of ontological analysis and legal rea- soning, in 3. I discuss whether considerations on robots’ essence are actually put into brackets when the pragmatist approach is endorsed. Finally, in 4. I address the problem of the social valence of legal fictions in order to suggest a possible limit of the pragmatist approach. My conclusion (5.) is that in the specific case of regulating robotics it may be very difficult to separate ontological considerations from legal reasoning—and vice versa—both on an epistemological and social level. This calls for great caution in the recourse to anthropomorphic legal fictions. (shrink)

This is an article about Legal Pragmatism, studied under the prism of the Philosophy of Law. The pragmatist philosophical current, born in the United States, was responsible for consolidating the line of legal reasoning aimed at obtaining the results that best meet social desires and human hopes. Legal Pragmatism is not presented as a Theory of Law, consubstantiating itself, in reality, in a method based on argumentation, capable of substantiating decision making. Finally, an attempt was (...) made to ponder on Legal Pragmatism in the Brazilian legal system, as a guide for new perspectives on the application of Law, with emphasis on the recent changes in the Law of Introduction to the Rules of Brazilian Law (Lei de Introdução às Normas do Direito Brasileiro). (shrink)

This paper explores the possibility that Hobbesian jurisprudence is best understood as a ‘third way’ in legal theory, irreducible to classical natural law or legal positivism. I sketch two potential ‘third theories’ of law -- legal pragmatism and legal dualism -- and argue that, when considered in its broadest sense, Leviathan is best viewed as an example of legal pragmatism. I consider whether this legal pragmatist interpretation can be sustained in the examination of (...) Leviathan’s treatment of civil law, and argue that the pragmatic interpretation can only be successful if we can resolve two textual issues in that chapter. First, while Hobbes argues that law entails the existence of public (sharable) reasons, he does not adequately defend the view that the sovereign is the unique authority over such reasons in all cases, especially as far as they concern known collective emergencies. Second, Hobbes both affirms and denies that a sovereign can fail to do justice, which is paradoxical. Both problems are best resolved by legal pragmatism, though the second problem resists a fully satisfying resolution. The upshot is that, although Leviathan ought to be regarded as an episode of legal pragmatism, there are trade-offs on every reading. (shrink)

Almost twenty years ago, a genuinely new school of thought emerged in the field of jurisprudential methodology. It is a pragmatist school. Roughly, the pragmatists contend that, when inquiring about the nature of law, we should evaluate potential answers based on practical criteria. For many legal philosophers, this contention seems both unclear and unhinged. That appearance is lamentable. The pragmatist approach to jurisprudential methodology has received insufficient attention for at least two reasons. First, the pragmatists do not (...) conceive of themselves as comprising a school; in fact, these proponents have different names for their common position, which makes it hard to see the commonalities. Second, the most famous statement of the pragmatist view has received withering criticism, criticism that has not been sufficiently answered, a fact that may lead opponents of pragmatism, as well as potential supporters, to doubt that a viable view of this kind can be held. This Essay aims to serve as a corrective. (shrink)

The hermeneutic pragmatism explored in this article timely examines how “post-truth” claims over-estimate semantic freedoms while at the same time underestimating semantic and pre-semantic restraints. Such pragmatism also timely examines how formalists err by committing the reverse errors. Drawing on insights from James, Peirce, Putnam, Rorty, Gadamer, Derrida, and others, such hermeneutic pragmatism explores (1) the necessary role of both internal and objective experience in meaning, (2) the resulting instrumental nature of concepts required to deal with such experience, (3) the (...) related need for workability to apply to the “the collectivity of experience’s demands, nothing being omitted,” (4) the inherent role of morality and other norms in measuring such workability, (5) the semantic as well as experiential nature of our workable realities, (6) the semantic freedoms involved in constructing, framing, and retaining our workable realities and concepts, and (7) the semantic, pre-semantic, and other restraints on constructing, framing, and retaining our workable realities and concepts. -/- Such hermeneutic pragmatism also introduces Eunomia, a real-world alternative to Dworkin’s superhuman judge Hercules. Named after the Greek goddess of good order, the human Eunomia represents the reasonable judge excellently versed in (among other things) legal theory, legal practice, linguistics, and philosophy of language. Additionally, in its appendices, this article surveys the pragmatic restraints of “implementives” and provides a detailed overview of pragmatic “workability” restraints for both law and fact. -/- (By “sense” the title of this article means not only “meaning conveyed or intended” but also “capacity for effective application of the powers of the mind as a basis for action or response.” See Sense, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2014) “Workable” has the broad meaning discussed in Sections II, IV, and Appendix C of the Article, and "good" is further explored in the section on Eunomia, namesake of the Greek goddess of good order.) -/- Keywords: Pragmatism, Hermeneutic, Truth, Rule of Law, William James, C.S. Peirce, Hilary Putnam, Richard Rorty, Gadamer, Habermas, Derrida, Lon Fuller, H.L.A. Hart, Post-truth, Postmodernism, Trump, Rhetoric, Meaning, Interpretation, Metaphor, Category, Lifeworld, Formalism, Framing, Deconstruction. (shrink)

Even if one sees the law as “a self-contained system of legal reasoning” from which we deduce “neutral,” non-political conclusions from “general principles and analogies among cases and doctrines” (including formalist claims that judges simply call “balls and strikes” like umpires in a baseball game), one should still consider certain characteristics of the party making such deductions or calling such “balls and strikes.” [Relevant citations to quoted language are in the Article.] If such decision maker has questionable motivations, (...) lacks proper perspective, does not grasp the flexibility in the concepts in play, does not grasp the restraints on concepts in play, does not follow the proper processes involved, and lacks the detail, courage, and tenacity needed to reach the proper “deduction” or “call,” on the face of things the formalist, too, should have reason to re-examine any “deduction” or “call” by such party. Thus, even the formalist should not deny the critical role of virtue when examining legal analysis, a role belying the notion of law as a "self-contained system of legal reasoning." -/- This Article thus explores basic freedoms and restraints applicable to legal analysis and the role that virtue plays in balancing such freedoms and restraints. Such exploration covers: (i) the origin, nature, and purpose of concepts and categories used in legal analysis; (ii) the experiential nature of the meaning of such concepts and categories used in legal analysis; (iii) the freedoms and restraints applicable to such concepts and categories as a result of either experience or of the concepts or categories themselves; (iv) how workable notions of virtue rightly balance such freedoms and restraints in legal analysis; (v) the distinction between such virtue and skill; (vi) reconceiving the analytically virtuous mean as a proper balance between such applicable freedoms and restraints; and (vii) defining and surveying the particular virtues that lead us to such proper balance and thus to good legal analysis. My hope is that lawyers and law schools in their curricula will follow such explorations as well in a quest to better understand legal analysis and how to teach and perform it well. (shrink)

This chapter does not presume to outline a new economic theory, nor a novel perspective on Jewish approaches to economy. Rather, it suggests the concept of pragmatic interestedness (PI) as means for thinking on the search for conscious or moral forms of capitalism. In short, pragmatic interestedness means that having interests is basic to human nature, and that interestedness is or can be non-egoistic and pro-social. This chapter proposes that PI, which has a significant role in normative Jewish tradition, can (...) contribute to the articulation of conscious capitalism. The chapter first defines what pragmatic interestedness is, and its opposite, namely disinterestedness (DI), which demands total impartiality. The second section considers the influential Christian concept of Agape or universal and egalitarian love, which is arguably at tension with eros and particular commitments (and with PI in this regard). It is argued that prominent modern philosophies secularize the Agape, especially Karl Marx’s Communism and Peter Singer’s Sentientism, in a way that marginalizes PI. The third section explores the appearance of pragmatic interestedness within rabbinic Jewish tradition, by (i) presenting the complicated duality of the concept of interest, (ii) emphasizing the recognition of human needs and interests in Judaism and (iii) highlighting Jewish sensitivity to the differences between various spheres of human commitment, and (iv) the role of market and economic considerations in Jewish tradition. The fourth section reflects more broadly on how PI may contribute to the conception of conscious or humane capitalism. (shrink)

A legal fiction is a knowingly false assumption that is given effect in a legal proceeding and that participants are not permitted to disprove. I offer a semantic pretence theory that shows how fiction-involving legal reasoning works.

We argue that legal argumentation, as the subject matter as well as a special subfield of Argumentation Studies (AS), has to be examined by making skilled use of the full panoply of tools such as argumentation and story schemes which are at the forefront of current work in AS. In reviewing the literature, we make explicit our own methodological choices (particularly regarding the place of normative deliberation in practical reasoning) and then illustrate the implications of such an approach (...) through the analysis of a case study in the English law of evidence. We argue that a clear distinction must be drawn between practical argumentation and stories. Because of the institutional separation between legal judgment and fact-finding in common-law jury trials, we argue for the combination of argument and story-based analysis. (shrink)

Fifty years of effort in artificial intelligence (AI) and the formalization of legal reasoning have produced both successes and failures. Considerable success in organizing and displaying evidence and its interrelationships has been accompanied by failure to achieve the original ambition of AI as applied to law: fully automated legal decision-making. The obstacles to formalizing legal reasoning have proved to be the same ones that make the formalization of commonsense reasoning so difficult, and are most (...) evident where legal reasoning has to meld with the vast web of ordinary human knowledge of the world. Underlying many of the problems is the mismatch between the discreteness of symbol manipulation and the continuous nature of imprecise natural language, of degrees of similarity and analogy, and of probabilities. (shrink)

My analysis here is an attempt to bring out the main through-line in the development of Bulgarian philosophy of law today. A proper account of Bulgarian philosophy of law in the 20th century requires an attempt to find, on the one hand, a solution to epistemological and methodological problems in law and, on the other, a clear-cut influence of the Kantian critical tradition. Bulgarian philosophy of law follows a complicated path, ranging from acceptance and revision of Kantian philosophy to the (...) development of interesting theories on the logic of legal reasoning. (shrink)

Research using current literature on legal reasoning was conducted with the goals of (a) determining what skills are most important in good legal reasoning according to such literature, (b) determining the extent to which existing Law School Admission Test item types and subtypes are designed to assess those skills, and (c) suggesting test specifications or new or refined item types and formats that could be developed in the future to assess any important skills that appear [by (...) (a) and (b)] to be measured in a limited or minimal way by the current LSAT. So far as can be determined, such systematic research using legal reasoning literature has never been previously conducted. This report presents the findings of this research. (shrink)

In this article I examine the main conceptions of public reason in contemporary political philosophy in order to set the frame for appreciating the novelty of the pragmatist understanding of public reason as based upon the notion of consequences and upon a theory of rationality as inquiry. The approach is inspired by Dewey but is free from any concern with history of philosophy. The aim is to propose a different understanding of the nature of public reason aimed at overcoming (...) the limitations of the existing approaches. Public reason is presented as the proper basis for discussing contested issues in the broad frame of deep democracy. (shrink)

According to a common conception of legal proof, satisfying a legal burden requires establishing a claim to a numerical threshold. Beyond reasonable doubt, for example, is often glossed as 90% or 95% likelihood given the evidence. Preponderance of evidence is interpreted as meaning at least 50% likelihood given the evidence. In light of problems with the common conception, I propose a new ‘relevant alternatives’ framework for legal standards of proof. Relevant alternative accounts of knowledge state that a (...) person knows a proposition when their evidence rules out all relevant error possibilities. I adapt this framework to model three legal standards of proof—the preponderance of evidence, clear and convincing evidence, and beyond reasonable doubt standards. I describe virtues of this framework. I argue that, by eschewing numerical thresholds, the relevant alternatives framework avoids problems inherent to rival models. I conclude by articulating aspects of legal normativity and practice illuminated by the relevant alternatives framework. (shrink)

Deep legal change occurs when, without legal justification, one legal rule is replaced by another. While often ignored in legal theory, these rule-breaking normative transformations are common and significant enough to warrant careful attention. In this thesis, I analyse the structure of deep legal change and discuss how a philosophically rigorous jurisprudence should approach a legal phenomenon that appears to be legally inexplicable. In particular, I focus on the implications of rule-breaking rule-changes for our (...) conception of courts and legal reasoning. To understand why deep legal change occurs, we need to provide a normative explanation that clarifies why courts, as courts, have reasons to break the law. My solution takes me to G. W. F. Hegel’s Philosophy of Right. Hegel invites us to think of the judicial process as being grounded in two institutional values: the establishment of legal security and the protection of the “universal interest” of the state. Sometimes, these two values come into conflict. In these moments, established legal rules give way to fundamental state-interests. With Hegel, we can say that it is inevitable that political reasons periodically override legal reasons. In deep legal change, the fundamentally political character of law becomes visible. While reminiscent of Carl Schmitt and the literature on emergency powers, this theory of law is much closer to the reason-of-state tradition. Against the background of several historical case studies and contemporary scholarship, I demonstrate the novelty, coherence, and explanatory power of a Hegelian account of deep legal change. (shrink)

This chapter considers whether legal requirements can constitute reasons for action independently of the merits of the requirement at hand. While jurisprudential opinion on this question is far from uniform, sceptical views are becoming increasingly dominant. Such views typically contend that, while the law can be indicative of pre-existing reasons, or can trigger pre-existing reasons into operation, it cannot constitute new reasons. This chapter offers support to a somewhat less sceptical position, according to which the fact that a (...) class='Hi'>legal requirement has been issued can be a reason for action, yet one that is underpinned by bedrock values which law is apt to serve. Notions discussed here include a value-based conception of reasons as facts ; a distinction between complete and incomplete reasons ; and David Enoch’s idea of triggering reason-giving. Following a discussion of criticism against the view adopted here, the chapter concludes by considering some more ‘robust’ conceptions of law’s reason-giving capacity. (shrink)

This book investigates law's interaction with practical reasons. What difference can legal requirements—e.g. traffic rules, tax laws, or work safety regulations—make to normative reasons relevant to our action? Do they give reasons for action that should be weighed among all other reasons? Or can they, instead, exclude and take the place of some other reasons? The book critically examines some of the existing answers and puts forward an alternative understanding of law's interaction with practical reasons. -/- At the outset, (...) two competing positions are pitted against each other: Joseph Raz's view that (legitimate) legal authorities have pre-emptive force, namely that they give reasons for action that exclude some other reasons; and an antithesis, according to which law-making institutions (even those that meet prerequisites of legitimacy) can at most provide us with reasons that compete in weight with opposing reasons for action. These two positions are examined from several perspectives, such as justified disobedience cases, law's conduct-guiding function in contexts of bounded rationality, and the phenomenology associated with authority. -/- It is found that, although each of the above positions offers insight into the conundrum at hand, both suffer from significant flaws. These observations form the basis on which an alternative position is put forward and defended. According to this position, the existence of a reasonably just and well-functioning legal system constitutes a reason that fits neither into a model of ordinary reasons for action nor into a pre-emptive paradigm—it constitutes a reason to adopt an (overridable) disposition that inclines its possessor towards compliance with the system's requirements. (shrink)

Abstract. In Dynamics of Reason Michael Friedman proposes a kind of synthesis between the neokantianism of Ernst Cassirer, the logical empiricism of Rudolf Carnap, and the historicism of Thomas Kuhn. Cassirer and Carnap are to take care of the Kantian legacy of modern philosophy of science, encapsulated in the concept of a relativized a priori and the globally rational or continuous evolution of scientific knowledge,while Kuhn´s role is to ensure that the historicist character of scientific knowledge is taken seriously. More (...) precisely, Carnapian linguistic frameworks, guarantee that the evolution of science procedes in a rational manner locally,while Cassirer’s concept of an internally defined conceptual convergence of empirical theories provides the means to maintain the global continuity of scientific reason. In this paper it is argued that Friedman’s neokantian account of scientific reason based on the concept of the relativized a priori underestimates the pragmatic aspects of the dynamics of scientific reason. To overcome this short-coming, I propose to reconsider C.I. Lewis’s account of a pragmatic the priori, recently modernized and elaborated by Hasok Chang. This may be<br><br><br><br><br><br><br><br><br><br&g t;<br><br><br><br><br><br>Keywords: Dynamics of reason, Paradigms, Logical Empiricism,Neokantianism, Pragmatism, Mathematics, Communicative Rationality. (shrink)

This is a genealogical study that traces a “broadly Cartesian” pattern of argumentation: from Augustine’s scriptural semiotic to the “narrowly Cartesian” practice of foundationalism to Charles Peirce’s pragmatic and reparative semiotic. The essay argues (1) that Augustine transformed Stoic logic into a scriptural semiotic; (2) that this semiotic breeds both Cartesian foundationalism and the pragmatic semiotic that repairs it; (3) that Peirce’s semiotic displays the latter. In sum, Augustine’s inquiry risks foundationalism but also breeds a self-corrective “reparative reasoning.” This (...) reasoning is at once scriptural and philosophic. (shrink)

Theoretical reasoning aims at true beliefs; however, it rarely can grasp it. So, it would be plausible to define rationality in beliefs by the property of being consistent and truth-conducive. The gap between our justifications and the truth has raised a seemingly irresolvable problem in analytic epistemology called Gettier’ problem. Similarly, it seems that practical reasoning aims at right actions, but it doesn't follow that the action which is based on our practical reasoning would always be the (...) right and the best one. The gap between our practical reasoning and the right actions has caused a huge debate between internalists and externalists about the criterion for rationality in normative reasoning (as opposed to motivating reasoning). (shrink)

Metaphilosophy, Volume 53, Issue 4, Page 431-445, July 2022.

The main objection to pragmatism about knowledge is that it entails that truth-irrelevant factors can make a difference to knowledge. Blake Roeber [2018. “Anti-Intellectualism.” Mind: A Quarterly Review of Philosophy 127: 437–466] has recently argued that this objection fails. I agree with Roeber. But in this paper, I present another way of thinking about the dispute between purists and pragmatists about knowledge. I do so by formulating a new objection to pragmatism about knowledge. This is that pragmatism about knowledge entails (...) that factors irrelevant to both truth and ‘cognitive agency’ can make a difference to knowledge. An interesting additional upshot of my argument is the connection revealed between the debate between pragmatists and purists about knowledge, and the debate between ‘alethists’ and pragmatists about reasons for belief. (shrink)

Despite pervasive variation in the content of laws, legal theorists and anthropologists have argued that laws share certain abstract features and even speculated that law may be a human universal. In the present report, we evaluate this thesis through an experiment administered in 11 different countries. Are there cross‐cultural principles of law? In a between‐subjects design, participants (N = 3,054) were asked whether there could be laws that violate certain procedural principles (e.g., laws applied retrospectively or unintelligible laws), and (...) also whether there are any such laws. Confirming our preregistered prediction, people reported that such laws cannot exist, but also (paradoxically) that there are such laws. These results document cross‐culturally and –linguistically robust beliefs about the concept of law which defy people's grasp of how legal systems function in practice. (shrink)

Pragmatism is resurging, especially among embodied cognitive scientists. The growing appreciation of the body accompanying this fits with increasing recognition that cognition and perception are valuative, which is to say, emotional, interested and aesthetic. In what follows, I detail how classical pragmatic thinking—specifically that of William James and John Dewey—anticipates recent valuative theories of mind and how it can be used to develop them further.I begin by discussing James's concept of selective interests, how it meshes with contemporary research and how (...) the two together suggest not only that cognition is valuative, but that emotions bring us rationally into touch with our worlds. Recent advocates cite... (shrink)

How do we ensure agents formulating legal statements are not systematically in error? In this paper I assume that the success of legal statements follows from the fact that propositions expressed by legal statements adequately represent legal reality. I argue that the content of legal statements hinges implicetly on the sources of law and methods in which we attribute meaning to these sources. In this regard, I identify the primary obstacle to the success of actions (...) that consist of asserting legal statements as a systematic failure to refer to the proper method of interpretation by the agents formulating these statements. The paper explores several solutions to this challenge, focusing on the solution explaining the success in referring to the proper method of interpretation in virtue of meta-interpretive considerations. Subsequently, the paper discusses a challenge to this solution following from the claim that there are many different theories of meta-interpretation, and there is no fact (neither natural, nor conventional or intentional, anchored in the collective consciousness of society), determining that one of them is more accurate than the other ones. Given all the intricacies, this study focuses on exploring a coherent framework for understanding how different interpretive methods and meta-interpretative theories can be evaluated and applied in legal practice. It seeks to articulate a model that accommodates the diversity of interpretations while striving for a reasoned consensus on how legal texts should be understood and applied. (shrink)

Pragmatism is typically understood as a philosophy embedded in scientific inquiry. Thinkers, like Charles Peirce (1877), C.I. Lewis (1923) and Susan Haack (1998) envisioned pragmatism and its scientific inquiry as a method of systematizing our beliefs and acquiring knowledge. They thought that scientific practice and its implied standards, techniques, and values is the only source of hope for scientific and philosophical progress. In this dissertation, I construct a pragmatic approach to the meta-ethical questions of our moral truths, beliefs and principles (...) that proposes a normative systematization of ethics grounded in moral practice, development and experimentation. I argue that maintaining a pragmatic faith in the origination and formation of our moral constitutions will provide us with a realist, cognitivist and objective view of reality subject to the capacities of our human cognition and empirical evidence and not subject to metaphysical and universal methods of reasoning. (shrink)

In 2001, three non-Aboriginal men in their twenties were charged with the sexual assault of a twelve year old Aboriginal girl in rural Saskatchewan. Legal proceedings lasted almost seven years and included two preliminary hearings, two jury trials, two retrials with juries, and appeals to the provincial appeal court and the Supreme Court of Canada. One accused was convicted. The case raises questions about the administration of justice in sexual assault cases in Saskatchewan. Based on observation and analysis of (...) the record, this paper: (1) examines relationships between legal errors dealing with availability of the defence of “belief in consent” and interpretation of the “all reasonable steps” provision, the need for retrials, and apprehended race-gender-age bias and discrimination; and 2) proposes incremental and systemic remedies to address the weaknesses in police, prosecutorial and judicial policy and practice highlighted by this case. (shrink)

In order to perform certain actions – such as incarcerating a person or revoking parental rights – the state must establish certain facts to a particular standard of proof. These standards – such as preponderance of evidence and beyond reasonable doubt – are often interpreted as likelihoods or epistemic confidences. Many theorists construe them numerically; beyond reasonable doubt, for example, is often construed as 90 to 95% confidence in the guilt of the defendant. -/- A family of influential cases suggests (...) standards of proof should not be interpreted numerically. These ‘proof paradoxes’ illustrate that purely statistical evidence can warrant high credence in a disputed fact without satisfying the relevant legal standard. In this essay I evaluate three influential attempts to explain why merely statistical evidence cannot satisfy legal standards. (shrink)

ABSTRACT: In this chapter I argue that Sellars’s philosophy was deeply pragmatist both in its motivation and in its content, whether considered conceptually, historically, or in his own estimation, and that this is the case even in the important respects in which his views differ from most pragmatists. However, this assessment has been rejected by many recent pragmatists, with “classicalist” pragmatists frequently objecting to Sellars’s analytic-pragmatist privileging of language at the alleged expense of experience, while many analytic pragmatists (...) themselves emphasize that Sellars’s philosophy arguably runs against the grain of pragmatism in central respects, with Brandom for instance recently remarking that “Sellars never explicitly identified himself with pragmatism.” Part I explores the classical pragmatist influences on the development of Sellars’s philosophy, with reference to aspects of the intellectual background in which those views formed. Part II then outlines more abstractly some of the enduring pragmatist themes in Sellars’s philosophy, including his conceptions of the myth of the given, the space of reasons, and his normative-inferentialist theory of meaning. I conclude in Part III with Sellars’s views on truth and “picturing,” which present a complex case for the question of “how pragmatist” Sellars’s views both were and ought to be. (shrink)

Beginning with a thought experiment about a mysterious Delphic oracle, this article motivates, explains, and attempts to defend a view it calls Ethical Pragmatism. Ethical Pragmatism is the view that we can and should carry on our practice of moral deliberation without reference to moral truths, or more broadly, without reference to metaethics. The defense the article mounts tries to show that neither suspicions about the tenability of fact-value distinctions, nor doubts about the viability of global pragmatism, nor worries about (...) the “force” of ethical injunctions without reference to moral truths constitute good reason to reject Ethical Pragmatism. (shrink)

Critics and defenders of William James both acknowledge serious tensions in his thought, tensions perhaps nowhere more vexing to readers than in regard to his claim about an individual’s intellectual right to their “faith ventures.” Focusing especially on “Pragmatism and Religion,” the final lecture in Pragmatism, this chapter will explore certain problems James’ pragmatic pluralism. Some of these problems are theoretical, but others concern the real-world upshot of adopting James permissive ethics of belief. Although Jamesian permissivism is qualified in certain (...) ways in this paper, I largely defend James in showing how permissivism has philosophical advantages over the non-permissivist position associated with evidentialism. These advantages include not having to treat disagreement as a sign of error or irrationality, and mutual support relations between permissivism and what John Rawls calls the "reasonable pluralism" at the heart of political liberalism. (shrink)

I argue that the problem of responsibility for attitudes is best understood as a puzzle about how we are responsible for responding to our object-given reasons for attitudes – i.e., how we are responsible for being (ir)rational. The problem can be solved, I propose, by understanding the normative force of reasons for attitudes in terms of blameworthiness. I present a puzzle about the existence of epistemic and mental blame which poses a challenge for the very idea of reasons for attitudes. (...) We are left with three options: denying that there are any reasons for attitudes, opting for pragmatism about reasons for attitudes, or arguing that the challenge rests on a misunderstanding of the normative force of reasons for attitudes. I finally suggest a version of the last strategy. We can understand the normative force of reasons for attitudes, and thereby solve the problem of mental responsibility, by acknowledging that the way we blame each other for failing to respond correctly to our reasons for attitudes is different from the way we blame each other when one failed to respond correctly to reasons for action. (shrink)

An annotated bibliography of legal epistemology.

William Whewell’s philosophy of science is often overlooked as a relic of 19th century Whiggism. I argue however that his view – suitably modified – can contribute to contemporary philosophy of science, particularly to debates around scientific progress. The reason Whewell’s view needs modification is that he makes the following problematic claim: as science progresses, it reveals necessarily truths and thereby grants a glimpse of the mind of God. Modifying Whewell’s view will involve reinventing his notion of necessary truth as (...) the pragmatist notion of superassertibility. And, if scientific progress does not uncover necessary truths, then it does not reveal the mind of God. The result is an outline of an account of scientific progress that is piecemeal and fallibilist in nature, yet at the same time maintains key Whewellian themes of consilience and the unity of science. (shrink)

A popular evidentialist argument against pragmatism is based on reason internalism: the view that a normative reason for one to φ must be able to guide one in normative deliberation whether to φ. In the case of belief, this argument maintains that, when deliberating whether to believe p, one must deliberate whether p is true. Since pragmatic considerations cannot weigh in our deliberation whether p, the argument concludes that pragmatism is false. I argue that evidentialists fail to recognize that the (...) question whether to φ is essentially the question whether one should φ. Furthermore, the question of whether one should believe p can be answered on pragmatic grounds. The internalist argument turns out to favor pragmatism. (shrink)

Richard Rorty is well known as a propagandist of pragmatism and of a "post-philosophical" culture in which many traditional philosophical debates are dismissed as outrightly fruitless. The paper is mainly concerned with Rorty's dismissal of the realism-antirealism debate. The shift from argument to propaganda which is typical of much of Rorty's reasoning is critically investigated from different perspectives. In particular, it is argued that Rorty cannot convincingly establish a pragmatist position beyond realism and antirealism, and that pragmatism seems (...) to be inadequate with respect to scientific practice. Finally, the fruitfulness of the realism-antirealism debate is defended. (shrink)

A question, long discussed by legal scholars, has recently provoked a considerable amount of philosophical attention: ‘Is it ever appropriate to base a legal verdict on statistical evidence alone?’ Many philosophers who have considered this question reject legal reliance on bare statistics, even when the odds of error are extremely low. This paper develops a puzzle for the dominant theories concerning why we should eschew bare statistics. Namely, there seem to be compelling scenarios in which there are (...) multiple sources of incriminating statistical evidence. As we conjoin together different types of statistical evidence, it becomes increasingly incredible to suppose that a positive verdict would be impermissible. I suggest that none of the dominant views in the literature can easily accommodate such cases, and close by offering a diagnosis of my own. (shrink)

Some prominent evidentialists argue that practical considerations cannot be normative reasons for belief because they can’t be motivating reasons for belief. Existing pragmatist responses turn out to depend on the assumption that it’s possible to believe in the absence of evidence. The evidentialist may deny this, at which point the debate ends in an impasse. I propose a new strategy for the pragmatist. This involves conceding that belief in the absence of evidence is impossible. We then argue that (...) evidence can play a role in bringing about belief without being a motivating reason for belief, thereby leaving room for practical considerations to serve as motivating reasons. I present two ways in which this can happen. First, agents can use evidence as a mere means by which to believe, with practical considerations serving as motivating reasons for belief, just as we use tools (e.g. a brake pedal) as mere means by which to do something (e.g. slow down) which we are motivated to do for practical reasons. Second, evidence can make it possible for one to choose whether or not to believe – a choice one can then make for practical reasons. These arguments push the debate between the evidentialist and the pragmatist into new territory. It is no longer enough for an evidentialist to insist that belief is impossible without evidence. Even if this is right, the outcome of the debate remains unsettled. It will hang on the ability of the evidentialist to respond to the new pragmatist strategy presented here. (shrink)

Much recent work in epistemology has concerned the relationship between the epistemic and the practical, with a particular focus on the question of how, if at all, practical considerations affect what we ought to believe. Two main positive accounts have been proposed: reasons pragmatism and pragmatic encroachment. According to reasons pragmatism, practical (including moral) considerations can affect what we ought to believe by constituting distinctively practical (i.e., non‐epistemic) reasons for or against belief. According to pragmatic encroachment, practical considerations bear on (...) what we ought to believe by affecting epistemic justification (e.g. how much justification is required to justifiably believe). Both debates center around intuitive judgments about cases together with various principles involving reasons (or justification) and belief, with many contributors in the pragmatism and—to a lesser extent—encroachment debates helping themselves to talk of belief without saying much about what exactly they have in mind. There has also been a tendency to overlook potentially relevant distinctions among different kinds of reasons that have been drawn elsewhere. The goal of this paper is to argue that greater clarity and care concerning both reasons and belief is called for. Increased sensitivity to various subtleties will not only minimize the chances of unwittingly engaging in merely verbal disputes but also allow us to better navigate the pragmatism and encroachment debates. (shrink)

This book presents the author’s many and varied contributions to the revival and re-evaluation of American pragmatism. The assembled critical perspective on contemporary pragmatism in philosophy emphasizes the American tradition of cultural pluralism and the requirements of American democracy. Based partly on a survey of the literature on interest-group pluralism and critical perspectives on the politics of globalization, the monograph argues for reasoned caution concerning the practical effects of the revival. Undercurrents of “vulgar pragmatism” including both moral and epistemic relativism (...) threaten the intellectual and moral integrity of American thought – and have contributed to the present sense of political crisis. -/- The text chiefly contributes to the evaluation of the contemporary influence of the philosophy of John Dewey (1859–1952) and his late development of the classical pragmatist tradition. In comparison to Ralph Waldo Emerson (1803–1882), William James (1842–1910), and earlier currents of American thought, Dewey’s philosophy, dominated by its overall emphasis on unification, is weaker in its support for the pluralism of cultural and religious contributions which have lent moral self-restraint to American policy and politics, both foreign and domestic. With all due homage to Dewey’s conception of philosophy, centered on human problems and the need for our ameliorative efforts, the argument is that in the contemporary revival, Dewey’s thought has been too often captured by “post-modernist” bandwagons of self-promotion and institutional control. -/- This work defends democratic individualism against more collectivist and corporatist tendencies in contemporary neo-pragmatism, and it draws upon up-to-date political analysis in defense of America’s long republican tradition. Pragmatism will not and cannot be removed from, or ignored, in American intellectual and moral history; and its influence on disciplines from law to politics, sociology and literary criticism has been immense. However, pragmatism has often been weak in commitment to cultural pluralism and in its accounts of truth. (shrink)

Photomechanical reprint of papers from 1970 to 1992 mostly in English, some in German or French: Foreword 1–4; LAW AS PRACTICE ‘La formation des concepts en sciences juridiques’ 7–33, ‘Geltung des Rechts – Wirksamkeit des Rechts’ 35–42, ‘Macrosociological Theories of Law’ 43–76, ‘Law & its Inner Morality’ 77–89, ‘The Law & its Limits’ 91–96; LAW AS TECHNIQUE ‘Domaine »externe« & domaine »interne« en droit’ 99–117, ‘Die ministerielle Begründung’ 119–139, ‘The Preamble’ 141–167, ‘Presumption & Fiction’ 169–185, ‘Legal Technique’187–198; LAW AS (...) LOGIC ‘Moderne Staatlichkeit und modernes formales Recht’ 201–207, ‘Heterogeneity & Validity of Law’ 209–218, ‘Leibniz & die Frage der rechtlichen Systembildung’ 219–232, ‘Law & its Approach as a System’ 233–255, ‘Logic of Law & Judicial Activity’ 258–288, ‘Kelsen’s Pure Theory of Law’ 289–293, ‘The Nature of the Judicial Application of Norms’ 295–314; LAW AS EXPERIENCE ‘The Socially Determined Nature of Legal Reasoning’317–374, ‘The Ontological Foundation of Law’ 375–390, ‘Is Law a System of Enactments?’ 391–398, ‘The Uniqueness of National Legal Cultures’ 399–411, ‘Institutions as Systems’ 413–424; LAW AS HISTORY ‘From Legal Customs to Legal Folkways’ 427–436, ‘Anthropological Jurisprudence?’ 437–457, ‘Law as a Social Issue’ 459–475, ‘Law as History?’477–484, ‘Rechtskultur – Denkkultur’ 485–489; w/ Curriculum Vitae & Bibliography, as well as Index & Indexes of normative materials & of names. (shrink)

This paper connects two ideas. The first is that some common responses to ethical views are responses to their degrees of pragmatism, where a view’s degree of pragmatism is its sensitivity to ethically relevant changes in the actor’s circumstances. I claim that we feel the pull of opposing pro-pragmatic and antipragmatic intuitions in certain cases. This suggests a project, of searching for an ethical view capable of doing justice to these opposing intuitions in some way. The second central idea is (...) that a theory of pattern-based reasons looks more promising than the obvious alternatives to fulfil this role, amongst Teleological theories at least. Pattern-based reasons are reasons to perform some action because of the goodness or rightness of a larger pattern of action—such as a pattern that a group could perform or that the actor could perform over an extended period—of which the immediate action is a mere part. Existing theories of such reasons share two features that prevent them explaining the intuitions we wish to explain: they consider only one pattern at a time (they are monist), and they treat patterns as eligible only if the agents concerned are willing to realise them (they accept the Willingness Requirement). But we need not accept these doctrines. Moreover, a theory of patternbased reasons without them is able to explain the pro- and anti-pragmatic intuitions in an elegant way, and has other attractive features. (shrink)

A common objection to a pragmatist perspective on scientific expertise is that, while there is a well-known pragmatist theory of inquiry, which was formulated first by Peirce, then refined by Dewey and others, this theory cannot provide a clear-cut account of scientific expertise. In this paper, after addressing this objection in the second section, I claim that, on the contrary, pragmatism offers robust tools to think scientific expertise. In Sections 3 to 7, I present five important insights that (...) one can derive from a pragmatist epistemology when responding to contemporary problems posed by expertise: about science and scientific expertise in a legal context (sections 3 and 4), about collective expertise (sections 5 and 6), and even about expertise on ignorance (section 7). (shrink)

The epistemic regress problem targets our ability to provide reasons for our beliefs. If we need reasons for our beliefs, then we may also need to provide reasons for those reasons, and so on into regress. Because the epistemic regress problem is often cast as an attack on our ability to achieve justification, it is often thought that epistemic positions which do not rely on notions like justification escape without difficulty. The first goal of this dissertation is to establish the (...) generality of the epistemic regress problem, beyond all technicalities regarding the nature of justification. To do this, I propose a new minimal epistemic standard, that we should hold no bald assertions to be epistemically acceptable. I then use this epistemic standard to construct two new forms of the epistemic regress problem. The first version of the problem is reminiscent of the classical problem in that it attacks our ability to locate any such reason. The second version of the problem attacks our ability to unite any such reason to a particular claim that it is supposed to support. The second goal of this dissertation is to argue that pragmatism fails as a solution to the epistemic regress problem. The pragmatist seeks to avoid the regress by provisionally accepting their beliefs to be evaluated later. In so doing, the pragmatist seeks to have reasonable beliefs, but only after having accepted them provisionally. After eliminating other theoretical alternatives that the pragmatist may use to bolster their position, I argue that the pragmatic solution is not successful because (1) it is committed to some foundational beliefs that are necessary to facilitate the evaluation of their provisional beliefs which fall prey to the regress, and (2) the employment of these criteria of evaluation encounters the regress in its second form. I conclude by advocating for an understanding of Pyrrhonian skepticism under which we are not required to eschew our everyday beliefs that is nevertheless commensurate with the epistemic regress. (shrink)

An extensive literature on pragmatism and compromise, as well as their relationship to civic and political leadership, can be found in the field of Public Administration (hereafter PA). PA is broadly defined as that discipline of study addressing the development, institutionalization and reconstruction of bureaucratic-governmental organizations as well as the policies they are tasked to implement—or more “[s]imply stated . . . the management of government agencies." However, the literature is not limited to the works of PA scholars and practitioners. (...) It also encompass the writings of philosophers, and specifically philosophical pragmatists, who can contribute “a kind of methodological sophistication that either sharpens the issues at point in public controversy or discloses the absence of real or genuine issues, thus clarifying the options open for decision." In this literature, questions arise as to how unelected leaders in governmental bureaucracies are guided by pragmatism or pragmatic ideas to (i) negotiate with stakeholders to fashion appropriate compromise agreements, (ii) solve policy problems within a zone of legally mandated authority, (iii) clearly articulate the scope and content of that body of knowledge considered PA scholarship, (iv) understand the origins of PA as a distinct discipline and (v) bridge between the abstract principles offered by PA theorists and the concrete practices of bureaucratic-governmental organizations and public administrators. Classified thematically, these issues fit into four areas: first, controversy over whether administrative action is legitimate (i and ii); second, the PA’s identity crisis as a discipline (iii and iv); third, the gap between theory and practice (v); and fourth, the difficulty of integrating pragmatism and PA (i through v). (shrink)

The project of “public reason” claims to offer an epistemological resolution to the civic dilemma created by the clash of incompatible options for the rational exercise of freedom adopted by citizens in a diverse community. The present Article proposes, via consideration of a contrast between two classical accounts of dialectical reasoning, that the employment of “public reason,” in substantive due process analysis, is unworkable in theory and contrary to more reflective Supreme Court precedent. Although logical commonalities might be available (...) to pick out from the multitude of particularized accounts of what constitutes “civic order,” no “public reason” so derived could adequately capture - and thus be able to secure in a practical sense - any single determinate civic order, much less one that would be consistent with all citizens' conceptions of public order. Part I of this Article raises a number of issues for consideration relating to the epistemology of law and focuses especially on the concept of public reason and its critique. Part II addresses alternative approaches to legal reasoning suggested by classical accounts of practical reasoning and virtue theory and considers the operation of such legal analysis outside the area of substantive due process; Part III analyzes post-Lawrence case law confirming the dilemma created by the Supreme Court's ambiguous approaches to substantive due process and concludes that only one interpretation - that articulated fully in Washington v. Glucksberg and given lip service in Lawrence v. Texas - provides a method for resolving novel substantive due process challenges that is philosophically sound as well as historically coherent. Rather than perpetuating a fiction that denies the propriety of lawmaking unless based on principles that all citizens can rationally agree upon, an appropriate model of substantive due process analysis recognizes that law must inevitably be based upon principles that cannot be agreed upon by all citizens in virtue of rationality alone. -/- Abstract Footnotes (291) Beta -/- Revise My Submission -/- -/- One-Click Download | Share | Email | Add to Briefcase -/- Facebook | Twitter | Digg | Del.icio.us | CiteULike | Permalink Using the URL or DOI link below will ensure access to this page indefinitely -/- Based on your IP address, your paper is being delivered by: New York, USA Processing request. [Processing request.] Illinois, USA Processing request. [Processing request.] Brussels, Belgium Processing request. [Processing request.] Seoul, Korea Processing request. [Processing request.] California, USA Processing request. [Processing request.] -/- If you have any problems downloading this paper, please click on another Download Location above, or view our FAQ File name: SSRN-id1004757. ; Size: 424K -/- Sample Cover You will receive a black and white printed and perfect bound version of this document in 8 1/2 x 11 inch format, with glossy color front and back covers. Currently shipping to the US addresses only. Your order will be shipped within three business days. Quantity: Total Price = $0.50 plus shipping (U.S. Only) -/- If you have any problems with this purchase, please email [email protected] or call 1-585-442-8170. Reason's Freedom and the Dialectic of Ordered Liberty -/- Edward C. Lyons University of Notre Dame Law School -/- Cleveland State Law Review, Vol. 55, p. 157, 2007 -/- Abstract: The project of "public reason" claims to offer an epistemological resolution to the civic dilemma created by the clash of incompatible options for the rational exercise of freedom adopted by citizens in a diverse community. The present Article proposes, via consideration of a contrast between two classical accounts of dialectical reasoning, that the employment of "public reason," in substantive due process analysis, is unworkable in theory and contrary to more reflective Supreme Court precedent. Although logical commonalities might be available to pick out from the multitude of particularized accounts of what constitutes "civic order," no "public reason" so derived could adequately capture - and thus be able to secure in a practical sense - any single determinate civic order, much less one that would be consistent with all citizens' conceptions of public order. -/- Part I of this Article raises a number of issues for consideration relating to the epistemology of law and focuses especially on the concept of public reason and its critique. Part II addresses alternative approaches to legal reasoning suggested by classical accounts of practical reasoning and virtue theory and considers the operation of such legal analysis outside the area of substantive due process; Part III analyzes post-Lawrence case law confirming the dilemma created by the Supreme Court's ambiguous approaches to substantive due process and concludes that only one interpretation - that articulated fully in Washington v. Glucksberg and given lip service in Lawrence v. Texas - provides a method for resolving novel substantive due process challenges that is philosophically sound as well as historically coherent. -/- Rather than perpetuating a fiction that denies the propriety of lawmaking unless based on principles that all citizens can rationally agree upon, an appropriate model of substantive due process analysis recognizes that law must inevitably be based upon principles that cannot be agreed upon by all citizens in virtue of rationality alone. -/- Keywords: substantive due process, practical reason, public reason, Rawls, Casey, Lawrence, Glucksberg, Plato, Aristotle, Kant, Hegel, dialectic, autonomy, freedom -/- . (shrink)

Legal positivists maintain that the legality of a rule is fundamentally determined by social facts. Yet for much of legal history, ordinary officials used legal terminology in ways that seem inconsistent with positivism. Judges regularly cited, analyzed, and predicated their decisions on the ‘laws of justice’ which they claimed had universal legal import. This practice, though well-documented by historians, has received surprisingly little philosophical attention; I argue that it invites explanation from positivists. After taxonomizing the positivist’s (...) explanatory options, I suggest that the most viable option appeals to conceptual change: classical Romans, early modern Europeans, founding-era Americans were not using ‘law’ (or ‘lex’ or ‘jus’) to refer to the subject matter of contemporary legal philosophy. But the strategy is costly. It renders positivism’s truth surprisingly parochial. And it supplies new reasons for doubting positivist accounts of contemporary practices, including the treatment of moral principles in modern adjudication. (shrink)

Fallibilism, as a fundamental aspect of pragmatic epistemology, can be illuminated by a study of law. Before he became a famous American judge, Oliver Wendell Holmes, Jr., along with his friends William James and Charles Sanders Peirce, associated as presumptive members of the Metaphysical Club of Cambridge in the 1870s, recalled as the birthplace of pragmatism. As a young scholar, Holmes advanced a concept of legal fallibilism as incremental community inquiry. In this early work, I suggest that Holmes treats (...) common law cases more like scientific experiments than as deductive applications of already clear rules. Common law rules may be seen as a product of 1) the conflicts that occur in society, 2) the channeling of conflicts into legal disputes, 3) the gradual accumulation of judicial decisions classified into groups, and 4) the development of consensual understanding, expressed in rules and principles, as to how future cases should be classified and decided. This does not involve only lawyers and judges. Especially in controversial cases, it may indirectly involve an entire community. The legal process is seen as an extended intergenerational process of inquiry. It illuminates the relation of thought, expression, and conduct among a community of inquirers, applied to the problems of social ordering. (shrink)

In this paper, I evaluate three views of philosophical pragmatism’s practical implications for academic and non-academic or public discourses, as well as offer my own view of those implications. The first view is that of George Novack. In an underappreciated tract, Pragmatism versus Marxism, the American Trotskyite and union organizer launched a vicious attack on John Dewey’s career as a professional philosopher. He alleged that Dewey’s ideas were inaccessible to all but a small community of fellow academicians. While Novack conceded (...) that Dewey’s philosophical inquiries had a cross-pollinating influence on other academic fields, he doubted that the beneficial products of those inquiries traveled far beyond the walls of the so-called ‘ivory tower.’ Larry Hickman offers a second view. He understands Dewey’s claim in Experience and Nature that philosophy serves as a “liaison officer” to mean that philosophers should provide a common lexicon that translates between the languages of distinct disciplines. In other words, for Dewey, the role of philosophy, including philosophical pragmatism, is to facilitate interdisciplinarity. Since interdisciplinary sharing is usually confined to academic discourse, Novack’s challenge is perfectly compatible with Hickman’s interpretation of Dewey’s ‘liaison officer’ claim. Both Novack and Hickman are mistaken, though in different degrees and for different reasons. The third, and more promising, view is advanced by Robert Talisse. He cites the life and works of Sidney Hook, one of Dewey’s better-known students, as an exemplary case of a pragmatist who consistently realized his pragmatic commitments in public discourse. The most important reason for qualifying Hickman’s interpretation of Dewey’s ‘liaison officer’ claim is that the measure of pragmatism’s value is not solely the ability of pragmatists to facilitate interdisciplinary collaboration, but their ability to also insert their ideas into public discourse. In my view, philosophical pragmatists, and philosophers generally, should both facilitate interdisciplinarity in academic discourse and introduce philosophical notions into public discourse—that is, serving in the dual capacity of interdisciplinary scholar and public intellectual. (shrink)