Pragmatism and LawChapter One, Justice in Robes

36t7. “We should now set aside, as a waste of important energy and resource, grand debates about whether law is all power or illusion or constraint, or whether texts interpret only other texts, or whether there are right or best or true or soundest answers or only useful or powerful or popular ones.” Keep in mind RD’s sweeping dismissal of recent intellectual trends in jurisprudence (postmodernism, critical legal studies, etc.). You might or might not want to sign off on this dismissal.

Pragmatism and LawThe New Pragmatism

37b5. “It would be an understatement to say that this distinction -- between what the law really is or what justice really requires and what it would be useful in some way to say or think -- is important. It is crucial: We could not `get on’ at all, let alone well, without it.” RD is mounting his attack on the kind of pragmatism associated with Richard Rorty, which denies that there is a vocabulary which “cuts reality at its joints”. RD rejects the meta-perspective (external level) from which this judgment issues.

Pragmatism and Law(continued)

39t6. “Language can only take its sense from the social events, expectations, and forms in which it figures, a fact summarized in the rough but familiar slogan that the key to meaning is use.” This is familiar from Ludwig Wittgenstein’s later philosophy. See 36b1. RD is saying in effect that LW is on his side, not RR’s. RD is drawing on his “Objectivity and truth” essay in this section. If Rorty is your research interest, you should read this essay.

Pragmatism and LawThe Right Answer Ferrago

42t16. “Now it’s your turn. Have you yourself found any ordinary legal argument on balance the soundest, in any kind of hard case? Then you, too, have rejected the no-right-answer thesis that I take to be the target of my own claim.” RD thinks that one who is skeptical about his right-answer thesis is probably under the influence of Rorty’s view.

Pragmatism and LawFish and the Subtlety of Practice

44t3. According to Fish, “There must be a second, external level to interpretation, because nothing of any interest can possibly be said from within an intellectual practice about it.” But this is a serious mistake, according to RD, “because anyone who is blind to the critically argumentative and reflexive character of intellectual practices will understand almost nothing else about them.” RD holds that interpretation can and must occur within the practice, not in a separate external level.