The Possibility of Legal Change: Pragmatism and Legal Theory

JONATHAN STAINSBY

ABSTRACT

The pragmatic philosophy by Richard Rorty has been called on in support of the claims of various legal theorists. The author examines the ways in which Joseph Singer and John Stick have made use of pragmatism and contends that, because neither theorist remains faithful to pragmatism, each draws inappropriate inferences about its impact on law and legal theory. The author then argues that Ronald Dworkin's legal theory, as articulated in Law's Empire, is largely compatible with pragmatism, although it too makes claims that demonstrate a less than completely pragmatic vision.

Rorty's pragmatic philosophy is shown to be a powerful conceptual tool, able to shed much light on an understanding of law as a social practice and on the nature of critique and change within the law. The author argues that legal principles and criteria can be profitably understood as social constructs that are contingent and mutable. Thus, while legal change may often prove difficult to achieve, the author concludes that such change is nonetheless possible.

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Citation: (1988) 46(2) U.T. Fac. L. Rev. 456.
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