Note of CHAPTER 12: PRAGMATIST APPROACH TO LAW, from exam perspective (cursory notes).
CHAPTER 12: PRAGMATIST APPROACH TO LAW
Pragmatism:
- Pragmatism, which began in the United States in the 1800s as an attack on traditional formalism, is a philosophy based on the belief that the truth, meaning, or value of ideas must be judged by their practical consequences rather than by a set of formalized, rigid, and timeless standards.
- Emphasized testing ideas by acting on them
- Rejected universal and eternal truths
- Argued that philosophy should deal with real human problems rather than metaphysical speculations
- The major proponents of Pragmatism are John Dewy, Charles S. Pierce, William James and George H. Mead
- Taught that theory and practice, and thus, thinking and doing should be united.
- Proposed that scientific method should be used to solve human problems.
- Believed in democratic society
- Believed that change is the essence of reality.
- Pragmatism remains a powerful antidote to formalism
Pragmatism Approach in Law:
Pragmatist approach is practical and instrumental rather than essentialist interest in what works and what is useful rather than in what really is. It is therefore forwarded-looking, valuing continuity with the past only so far as such continuity can help to cope with the problems of the present.
The pragmatic attitude is activist progressive, ‘can do’ rejecting both the conservative councle that whatever is best and the councle that all consequences are unintended. The pragmatist believes in progress without pretending to be able to define it and believes that it can be affected by deliberate human action.
The pragmatist is interested in ‘the facts’ and thus wants to be well informed about the operation, properties and probable effects of alternative courses of action.
Legal pragmatism is a theory critical of more traditional pictures of law and, more specifically, judicial decision-making. The classical view of law offers a case-based theory of law that emphasizes the universal and foundational quality of specifically legal facts, the meticulous analysis of precedent and argument from analogy. Legal pragmatism, on the other hand, emphasizes the need to include a more diverse set of data and claims that law is best thought of as a practice that is rooted in the specific context at hand, without secure foundations, instrumental, and always attached to a perspective. A pragmatic stance towards jurisprudence offers many philosophical challenges to more traditional descriptions of the legal domain.
Legal pragmatism is an extension of philosophical pragmatism into the legal field. Legal pragmatism began with Oliver Wendell Holmes, who explored "the process of thinking and inquiry which terminates in a rule or principle of law and upon the social facts, ideas, and beliefs which are 'the life of the law’.
Roscoe Pound, the influential former dean of the Harvard Law School, also contributed greatly to the school of legal pragmatism.
- Laws should be pragmatic otherwise it will not be implemented.
Example: -
- Nepal enacted a Social Behavior Reform Act, 2033 aimed to control dowry (maximum 10 thousand) and limited the number of participants (50) during marriage. But it has been never implemented. The reason is that this law is not based on social reality pragmatically.
The constitution of Nepal provides equal women’s share in parental property following some landmark verdicts of Supreme Court. But this is not being observed in our society. The simple reason is it is just a radical theory, not a pragmatic or practical concept.
Hrithik Yadav.
