Philosophical Pragmatism: Law, Judged in Light of Its Social Effects

Abstract

Philosophical pragmatism defines the truth of a belief or an assertion in terms of its warranted assertability, empirical testability, or practical utility in the service of any human endeavour: truth is what works. In the context of law, however, the instrumentalist criteria of what(ever) works are far from self-evident, due to the essentially contested character of the law and the variety of values to be pursued by means of it. Still, William James’ masterly definition of truth may well be extended to the domain of law, too: “Grant an idea or belief to be true, what concrete difference will its being true make in any one’s actual life?”. In the field of law, the gist of pragmatism is at the strongest in social consequentialism, where the external effects of law in society are taken as decisive in how to construct and read the law. The economic consequences of law, in specific, have loomed large under such pragmatist premises, as defined by the economic analysis of law. In the branches of law that regulate the production of goods and services, financing, insurance, marketing, and trade and commerce in general, the utility of the economic analysis of law is obvious. In other branches of law, however, the situation is very different. Therefore, the two questions voiced by Ronald Dworkin, i.e. “Why Efficiency?” and “Is Wealth a Value?”, gain more importance there.