Instrumentalism versus Interactionism: The tensions in a pragmatist conception of law

Activity: Talk or presentationOral presentationAcademic

Description

In pragmatist legal theory that takes its inspiration from Dewey’s philosophy, there has always been attention to the relationship between law and society. Diverse views, ranging from Richard Posner to Philip Selznick, have given accounts of how law should be seen in a wider social context. One of the pragmatist tenets that have become more widely accepted than in the circles of pragmatist philosophy, is that of an instrumental view of law: that we can see law as an instrument to realize political and social goals, often narrowed down to policy goals. This view of law has been sharply criticized (see e.g. Brian Tamanaha, Law as a Means to an End, 2006), but it is doubtful that it is the best interpretation of the meaning of Deweyan pragmatism for legal theory. In this paper, I will argue that the instrumentalist side of pragmatism is only one of two basic strands in pragmatist legal philosophy and that interactionism deserves equal attention as the second basic idea. An interactionist interpretation of pragmatism highlights the basis of law in social interactions, which generate legal expectations. Seeing law as an interactional practice is part of the work of Fuller and Selznick, whose pragmatist leanings may not be so well-known. The argument of the paper will focus on how the instrumentalist and interactionist sides of pragmatism can be combined in a conception of law as a practice.
Period23 Jul 2013
Event titleIVR World Congress of philosophy of law and social philosophy
Event typeOther
LocationBelo Horizonte, BrasilShow on map