Tuesday, July 20, 2010

Legal Pragmatism and the Individual

I'm in the midst of reading a book by Michael Sullivan called Legal Pragmatism.  It seems a good analysis of the proper application of Pragmatism to the Philosophy of Law.  I'm pleased by his criticism of Rorty, Dworkin and the sometimes amusing, sometimes interesting, sometimes bewildering Richard Posner, who graces the Seventh Circuit Court of Appeals.  His opinions can be fascinating, if not very useful.

I have to admit I didn't know that Rorty dabbled in the Philosophy of Law, but should not be surprised as he seemed to enjoy dabbling in most everything.  The fact that Rorty apparently felt that the techniques literary criticism should be applied to the law, and that the poets have much to teach legal thinkers, is rather disturbing, though.  Well, it's actually rather laughable, I think.  I contemplate citing the great poets to the courts I practice in front of and must smile.  But, no doubt he wasn't addressing anything so mundane as the actual practice of law.  No doubt we all gain from reading great poetry, but I doubt it has any particular application to the law.

What I find particularly interesting is his discussion of individual rights.  Legal pragmatists have apparently been subject to criticism because they do not ascribe any inherent value to rights, but think of them only as factors to be taken into account in coming to an appropriate decision.  The same argument seems to be made regarding their view of precedent--pragmatists are said to lack respect for precedent.

Sullivan explains, appropriately I think, that the fact that pragmatists may not think of individual rights (or precedent, or anything for that matter) as having an inherent value--in and of themselves, without reference to their consequences--doesn't mean that pragmatists maintain (or must maintain to be consistent) they are not to be valued, enforced, applied and protected.  Pragmatism in general has been unfairly criticized due to its denial of absolutes, I think; such a denial doesn't cast thought adrift and without guidance in pragmatism, I believe, because of its concern for the application of intelligence in all circumstances.  Pragmatism urges the application of a method, based largely on the scientific method, which has been shown to be a reliable guide to experience, and this prevents it from descending into mere relativism or subjectivism.

But, I think there is a legitimate concern here, and that is how one can go about applying pragmatism (or any guiding philosophy) in the law without unduly infringing individual rights.  It is undeniable that certain people will want to conduct themselves in certain ways regardless of what the law may proscribe, regardless of the fact that the law may be perfectly reasonable, and clearly so to most.  Under what circumstances is the law properly applied regardless of the desires of individuals and what they consider to be their rights?  When the exercise of those rights cause harm is a sensible and time-honored response.  Is it possible that inherent rights may be a useful fiction (like other things in the law) to prevent the unnecessary exercise of the power of the law or, at least, that they be accorded a priority among competing demands?  The pragmatist may say that such decisions must be made on a case-by-case basis, but I think it is possible to maintain that certain of what we call rights are to be presumptively granted special value without being absolutist.

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