Tamanaha on John Dewey on Law

Brian Z. Tamanaha, Washington University, St. Louis, School of Law, is publishing John Dewey on Law in the Encyclopeida of the Philosophy of Law and Social Philosophy (forthcoming). Here is the abstract.

John Dewey wrote a handful of essays on various legal topics, and he made sprinkled references to law in his voluminous body of work. He did not elaborate a special theory of law, but rather analyzed legal matters from a pragmatic standpoint, treating law like other social institutions. This entry therefore begins with a summary of pragmatism. Then it addresses, in order, three topics Dewey covered with enduring significance: his critique of natural law, his account of judicial decision making, and his social theory of law. Beyond the specific insights conveyed in this essay, the enduring significance of Dewey’s work lies in his overall mindset—his belief in empirically informed intelligent inquiry and in the human capacity to engage in actions that bring improvements to the lives of individuals and society, through the courage to act and make empirical and value judgments in the face of disagreement, uncertainties, and the absence of absolute truths or universal standards.

Download the essay from SSRN at the link.

Kellogg on the Trolley Problem, Pragmatism, Moral Particularism, and the Continuum of Normative Inquiry

Frederic R. Kellogg, Universidade Federal de Pernambuco, has published Take the Trolley Problem . . . Please! Pragmatism, Moral Particularism, and the Continuum of Normative Inquiry. Here is the abstract.

Departing from hypothetical dilemmas and drawing on examples from law, this paper offers a pragmatist account of normative induction that characterizes moral particularism and generalism as stages of inquiry into ethical problems, rather than rival accounts of moral knowledge and motivation. Ethical particularism holds that the evaluative cannot be “cashed out” propositionally, that it is descriptively “shapeless.” Real moral problems occur in a continuum, and at first encounter a shapeless particularist context of seemingly unlimited non-moral properties. But normativity is driven by repetition of similar situations toward shared practices and descriptive predication. Rather than a Dancian retention of epistemic status by defeated reasons, this illustrates retirement of relevant properties and accompanying reasons, transformation of the reasons environment, and a pluralist normative ontology. This paper contends that pragmatism’s response to analytical moral theory lies in understanding the transformative nature of John Dewey’s social continuum of inquiry. The actual continuum is unrecognized in the analysis of hypothetical dilemmas, like the trolley problem, but can clearly be seen in studies of law. Real moral dilemmas represent actual conflicts, the solution of which cannot be addressed through the analysis of cleverly balanced moral puzzles. Repeated over time, real problems drive the consensual formation and revision of social practices and the predication of general moral rules and principles.

Download the article from SSRN at the link.

Oliver Wendell Holmes and Pragmatism

Allen Mendenhall, Auburn University, is publishing Pragmatism on the Shoulders of Emerson: Oliver Wendell Holmes Jr.'s Jurisprudence as a Synthesis of Emerson, Peirce, James, and Dewey in volume 48 of the South Carolina Review (2015). Here is the abstract.

Oliver Wendell Holmes Jr. turned forty in 1881. The publication of The Common Law that year afforded him the opportunity to express his jurisprudence to a wide audience. Over the next year, he would become a professor at Harvard Law School and then, a few months later, an associate justice of the Massachusetts Supreme Judicial Court. Emerson died in 1882, and Holmes began to articulate Emersonian pragmatism in new ways more suited for the industrial, post-Civil War environment in which transcendentalism no longer held credence. This essay examines Holmes's adaptation of Emersonian pragmatism as a synthesis of some pragmatic theories of C.S. Peirce, William James, and John Dewey.

Download the article from SSRN at the link.