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Washington Law Review

Abstract

While all of us are pragmatic in an informal or colloquial sense in many instances in daily life, pragmatism as applied to law has a deeper, jurisprudential sense The author suggests that modern legal pragmatism presents a model of law that avoids the serious philosophical errors of the traditional model of law, which is based upon assumptions that are untenable in light of fundamental developments in twentieth century thought. The traditional model justifies law by grounding law in eternal, immutable and transcendental foundations. All modern legal pragmatists reject the notion that transcendental foundations sustain law. Modern legal pragmatism arose in two stages. The first, largely negative phase, critical pragmatism, rejected foundationalism, thereby undermining the very legitimacy of law under the traditional model. Eventually, a second strand of legal pragmatism, prudentialism, emerged to construct an alternative model of law. The prudentialists attempt to restore legitimacy to law by appealing to tradition rather than to foundations. To a large extent, modern legal thought has finally reached the stage where most scholars and jurists now share common basic assumptions about the nature of legal knowledge and normative theory. Pragmatism thus potentially signals a new stage for modern legal thought. At the same time, however, legal pragmatism also contains some ominous prospects of a return to a sometimes oppressive past. Combining elements from both camps of pragmatism, the author then charts a middle course that attempts to accommodate the prudentialists' respect for tradition and the critical pragmatists' emphasis on diversity and pluralism.

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