Document
Historical Context Normative Theories Era
Timeframe: Dominant from the mid-1970s to the mid-1990s.
John Rawls' Influence
A Theory of Justice: Published in 1971, it shifted the landscape of normative legal arguments by introducing principles grounded in fairness.
Two Principles of Justice:
Liberty Principle: Each person has an equal right to basic liberties, which are compatible with similar liberties for others.
Difference Principle: Social and economic inequalities should be arranged to benefit the least advantaged members of society.
Key Concepts Introduced:
Original Position: A hypothetical scenario where individuals choose principles of justice without knowledge of their own social status.
Veil of Ignorance: A method of determining the morality of issues by considering them from an unbiased standpoint, free from personal interests.
Reflective Equilibrium: The process of adjusting beliefs about justice and ethical values through careful reflection and examination of principles.
Ethical Theories Developed
During this era, various ethical theories gained prominence:
Kantian Deontology: Emphasized duty and moral principles.
Utilitarianism: Suggested that the best action is the one that maximizes overall happiness.
Welfarism: Focused on maximizing individual well-being and welfare.
Nozick's Libertarianism: Argued for minimal state intervention and protection of individual rights.
Civic Republicanism: Stressed the importance of civic virtue and active participation in governance.
Ronald Dworkin's Contribution
Law as Integrity: Dworkin introduced the notion that law should be interpreted based on principles of morality and fairness rather than solely on rules.
Concepts of "Fit" and "Justification":
Fit: Legal interpretations should align with established legal practices and precedents.
Justification: Advocated for the best moral justification when multiple interpretations could fit the law, emphasizing that law should reflect community values.
Reaction Against Normative Theories
Lack of Resolution: Theoretical debates during this period yielded no clear victors, leading to fragmentation within the field.
Emergence of Antitheoretical Movements:
Shift from normative to positive law, focusing on empirical studies and economic analysis.
Rise of contextual approaches including feminist legal theory and critical race theory, emphasizing the social contexts of law and its effects on marginalized groups.
Pragmatism's Rise: Legal pragmatism emerged, prioritizing the practical application of laws over theoretical abstraction.
Introduction to Legal Pragmatism
Purpose: Aimed at first-year law students to help them understand legal pragmatism and its significance within legal theory.
Philosophical Pragmatism vs. Legal Pragmatism
Philosophical Pragmatism: Associated with philosophers such as Charles Sanders Pierce, William James, and John Dewey, emphasizing practical rather than absolute notions of truth.
William James's Perspective: Truth is not static but is seen as helpful/unhelpful based on its practical applications.
Key Ideas in Legal Pragmatism
Practical Judgment: Stresses that legal reasoning should consider practical implications rather than solely relying on theoretical ideals.
Particularism: Advocates for specific judgments about individual cases to take precedence over general theories; emphasizes the importance of real-world contexts.
Antitheory: Rejects overly simplistic 'top-down' legal theories, focusing instead on concrete, contextual judgments that take into account the nuances of each situation.
Pragmatism and Pluralism
Legal Pluralism: Argues that no single legal theory should dominate; judges should draw from multiple perspectives based on the specific legal issues they encounter.
Constitutional Pluralism: Introduced by Robert Bobbitt, where norms are validated through a variety of legal discursive modalities, allowing for diverse interpretations.
Ad Hoc Legal Pragmatism
Caution Against Inconsistency: Highlights potential misuse where pragmatism could be leveraged to sidestep substantive objections (termed "sloppy pragmatism").
True Pragmatism: Should connect to broader metatheoretical frameworks rather than permitting inconsistency in legal reasoning.
Conclusion
Ambiguity of Pragmatism: Both philosophical and legal pragmatism represent various related ideas and approaches rather than being strictly defined positions, reflecting the complexity of legal thought and practical application.