Introduction: Some Varieties of Pragmatism. Graham Hubbs. Imagine a tyro scholar of jurisprudence who wants to get the lay of the field she is

Transcription

1 Introduction: Some Varieties of Pragmatism Graham Hubbs Imagine a tyro scholar of jurisprudence who wants to get the lay of the field she is entering. We should not be surprised if she begins by studying the views of Richard Posner, for Posner is arguably the most prominent Anglophone legal theorist of the late twentieth century. i To learn Posner s view she begins reading his Law, Pragmatism, and Democracy. ii She discovers that Posner characterizes his view as a sort of pragmatism and that he is eager to distinguish it from other approaches and views that present themselves as pragmatisms. He marks this difference by distinguishing the everyday pragmatism that he endorses from the orthodox pragmatism that he eschews. iii She senses that these titles are not intended to be merely descriptive. To call someone pragmatic is, often, to commend him for dealing well with everyday affairs; orthodoxies of various sorts can get in the way of such praiseworthy pragmatism. Considered in this light, orthodox pragmatism has the ring of an oxymoron: to stick a view with this label is, it would seem, to suggest that it is a pseudo-pragmatism. By contrast, a real pragmatism, one worthy of the name, would have to be an everyday pragmatism, focused on the practicalities of quotidian existence. The tyro gleans that pragmatism is a disputed term, and the disagreement over it appears to be two-fold: what the term means who has the right to claim it as a title both seem to be at issue. Posner s desire to have his view seen as a genuine sort of pragmatism captures the tyro s interest. She wonders why the label is worth fighting for and whether Posner is entitled to it. She begins to investigate the matter, and it is not long before her curiosity 1

2 gives way to confusion. She finds one writer who tepidly praises Posner but accuses him of advancing a contentious pragmatist program on the basis of an uncontentious pragmatist account; she finds another who does not consider legal pragmatism to be praiseworthy at all, dismissing it as either empty or innocuous ; she finds another who distinguishes a praiseworthy form of legal pragmatism from Posner s theory of pragmatic adjudication ; she finds another who advances a pro-pragmatist critique of Posner in a book chapter titled Posner s Unpragmatic Pragmatism. iv To make headway in her investigation, she could use some help in understanding what pragmatism and its cognates have meant and can mean, both narrowly in legal scholarship and in philosophical writing more broadly. One of the central goals of this volume is to offer that help. To be sure, it is not alone in aiming to clarify the various uses of pragmatism several books published in the past decade have also pursued this goal. v What may distinguish this volume from those books is its panoramic method: the essays here describe and demonstrate a wide vista of topics and views that can be brought under the head pragmatism. If the tyro wants to evaluate Posner s uses of the term, she will benefit from knowing what it has meant and can mean in other fields of study. These include Classical American Pragmatism and, pace Posner, the orthodox pragmatism that flourishes in contemporary analytic philosophy. Scholars and students of these other fields should benefit from the diversity of essays here as well. Those interested in Classical American Pragmatism will find examples of this tradition s development, both in the philosophy of language and in the philosophy of law. The orthodox pragmatist concerned with 2

3 philosophical semantics will find questions and issues other than those of theoretical semantics that can benefit from pragmatic semantic theorizing. At the end of this introduction I will explain how these essays belong to a single vista, one that ranges from metaethics to political philosophy, from a discussion of Hegelian recognition to an analysis of the Rwandan genocide. I will articulate this explanation in terms of a variety of pragmatisms. My discussion here will not cover all that one might legitimately put under the head pragmatism ; such a task may not be accomplishable with limitless space, and it certainly cannot be accomplished in a brief introduction. vi As my goal is simply to reveal the unity within this diversity of essays, I will develop a taxonomy of pragmatisms that aspires only to be adequate for this task. I. A Taxonomy of Pragmatisms Following Robert Brandom, the author of this volume s lead essay, let us take pragmatism, intended in its most general sense, to pick out a family of views asserting various senses in which practice and the practical may be taken to deserve explanatory pride of place. vii Should we want this characterization to encompass the full range of contemporary views that call themselves pragmatist, we will need to be liberal in our understanding here of explanatory, allowing it to cover what we might call normative explanations. To see why, consider the environmental pragmatism advocated by Andrew Light. viii There are many reasons that Light considers his approach to environmental ethics to be pragmatist, but perhaps the primary one is his goal to use ethical reflection and discussion to affect social change. To someone insisting on a sharp divide between the explanatory and the justificatory, it will seem that Light appeals to practical 3

4 considerations i.e., to what will affect social policy concerning the environment not to explain anything but rather to justify the positions for which he advocates. If we do not insist on a sharp divide here, however, we can understand Light as offering a pragmatic normative explanation: if we want to explain what makes a given environmental view good or a given debate about the environment fruitful, we must look at the practices provoked by the view or the debate. Taking this relaxed attitude towards explanatory would not only allow us to countenance the pragmatism in Light s approach to environmental ethics; it would also square our most general use of pragmatism with suspicions about the distinction between fact and value that run throughout the pragmatist tradition. ix We may presently set these points aside, for while several of the essays here are clearly intended to bear in an action-guiding way on our practices see, e.g., the contributions by Lynne Tirrell and Katherine Logan all of them are primarily explanatory in their orientation. The explananda of many of the essays are semantic behaviors, i.e., how we use certain sorts of language, and to characterize these behaviors it will be useful to follow Brandom in distinguishing between methodological pragmatism, semantic pragmatism, fundamental pragmatism, instrumental pragmatism, and vulgar pragmatism. x Methodological pragmatism is a meta-theoretical view about the goal or point of semantic theorizing. The methodological pragmatist claims that the value of semantic theorizing lies primarily in its promise to help us make sense of the ways we use language. The tyro s inquiry into the uses of pragmatism and its cognates is methodologically pragmatic she has discovered a range of uses of these terms, and she wants to know what the terms can mean in order to understand what speakers are doing 4

5 when they use them. Semantic pragmatism, by contrast, is the theoretical view that meaning is ultimately determined by the practices involving and surrounding the use of a chunk of language. In line with the tradition that stretches through Quine and Sellars back to Frege and Kant, we will take sentences to be the fundamental units of language; accordingly, we will understand semantic pragmatism as fundamentally a view about what determines the meanings of sentences. xi If the tyro takes a semantic-pragmatic approach to her inquiry, she will focus on the sentences in which her terms of interest feature, and she will seek to understand the meanings of these sentences in terms of the practices involving and surrounding their use. Because her ultimate goal is to understand what speakers are doing when they use these sentences, her inquiry is methodologically pragmatic; because she seeks to explicate the meanings of these sentences in terms of the practices involving and surrounding their use, her inquiry is semantically pragmatic. xii Were we to make these points to the tyro about her inquiry, she might sensibly reply, Of course! If I care at all about a chunk of language, how could I not care about how it is used what else is there to it? And if I seek to understand its meaning, what else could I turn to besides the practices involving and surrounding it? At present let us focus just on her second question. To respond to it, we must acknowledge that if we do not restrict the vocabulary we use in discussing the practices that give sentences their meanings, then almost any plausible semantic view can count as a sort of semantic pragmatism. What distinguishes semantic pragmatism from other semantic theories, and what in turn distinguishes the varieties of semantic pragmatism from each other, are the restrictions placed on the vocabularies that are permitted to articulate the meaning-giving practices. xiii Indeed, if we put no restrictions on our explanatory vocabularies, we open 5

6 the door to absurd theories of meaning. To see this, suppose that we claim that the meaning of every English sentence is determined by the rules of English. The rules of English does not pick out a practice to formulate our claim in a way that is explicitly in line with semantic pragmatism, suppose we go on to say that what really determines the meaning of English sentences is the practice of following the rules of English. If we accept that to follow a rule, as opposed merely to accord with it, one must understand the rule, then to follow any rule one must cognize its meaning. To cognize the meaning of the rule, however, one will have to follow the meta-rule that specifies the rule s meaning, which in turn requires cognizing the meta-rule. This, in turn, requires following the metameta-rule that determines the meta-rule s meaning, which in turn requires cognizing the meta-meta-rule. Our attempt to square our initial claim with semantic pragmatism has landed us in hopeless regress, which has generated an absurd theory of meaning. To avoid this, we will need at least to restrict the vocabulary of the explanantia so that it does not include following a rule or any similar regress-generating concept. xiv The fundamental pragmatist provides the necessary restriction by characterizing meanings in terms of know-how rather than know-that. Knowledge-that, Brandom says, belongs to the category of explicit, statable, theoretical attitudes ; a semantic theory specified exclusively in terms of such knowledge will fall into the regress just presented. xv Knowledge-how, on the other hand, belongs to the category of implicit, enactable, practical capacities ; a theory of meaning explicated in terms of this sort of knowledge can avoid the regress. xvi Return to our tyro and her quest to understand pragmatism ; if she wants to know what legal theorists mean by this term, then she must, the fundamental pragmatist claims, learn how they use it. Using it it must be understood 6

7 here as something other than following the rule for using sentences containing pragmatism and its cognates, for that requires knowledge-that. Having excluded rulefollowing and related concepts from the explanantia, what practices will the fundamental pragmatist allow to characterize the legal theorist s meaning of sentences containing pragmatism and its cognates? Here the varieties of pragmatism abound. Brandom s own view which is developed, in part, from Wilfrid Sellars s version of this sort of view is inferentialist fundamental pragmatism. The inferences that the legal pragmatists draw with sentences containing pragmatism and its cognates determine the meaning of the term. If the tyro wants to understand the underlying concept, she should turn her attention to these inferential practices. Put a bit more carefully, if, as a methodological pragmatist, she wants to understand what the legal pragmatist is doing when he makes various assertions about pragmatism, she should, as an inferential semantic theorist, think of these assertions as fodder for inferences. xvii This inferentialism is a sort of fundamental pragmatism because the inferences for which assertions are fodder must be understood socially, specifically in terms of the practices of asking for and giving reasons. Sellars has this in mind when he claims that assertions belong to the logical space of reasons, of justifying and being able to justify what one says. xviii If the tyro wants to compare the concept to concepts involved with other meanings of pragmatism, she should compare the legal theorist s pattern of pragmatism -involving inferences to the pattern of pragmatism -involving inferences of some other group (e.g., orthodox semantic pragmatists). 7

8 The Classical American Pragmatists, by contrast, are not inferentialists in this sense. xix Dewey and Peirce offer an alternative version of fundamental pragmatism, viz., instrumental fundamental pragmatism. Whereas the inferentialist explicates semantic content in terms of the inferences that a given proposition licenses and that license it, the instrumentalist explicates this content in terms of the consequences of asserting and accepting propositions. Suppose, for example, we want to understand propositions that contain the term force and its cognates. Peirce tells us if we know what the effects of force are, we are acquainted with every fact which is implied in saying that a force exists, and there is nothing more to know. xx It the tyro takes this sort of approach to investigating what the legal pragmatists mean by pragmatism, she will focus her attention on the consequences of describing lawmaking, legal reasoning, judicial deciding, and the like as pragmatist. I just characterized Dewey and Peirce as instrumental fundamental pragmatists what about the third Classical American Pragmatist, William James? Although James certainly holds an instrumentalist semantic view, it is arguably not one that would count on the present taxonomy as a sort of semantic pragmatism. Seeing why will help clarify the taxonomy. James does not agree with Peirce and Dewey on which consequences are relevant for determining the contents of beliefs. Whereas Peirce, for example, holds that meaning-conferring consequences have to be tangible and conceivably practical, James allows that a broader array of psychological effects can contribute to determining the meaning of a belief. xxi Put in terms of restrictions on vocabularies, whereas Peirce restricts the vocabulary of the explanantia to descriptions of observable practices, James allows this vocabulary also to include descriptions of psychological episodes. Because 8

9 James does not limit the vocabulary of the explanantia to practices, it seems wrong, on the present taxonomy, to apply the label semantic pragmatist to him. xxii While James is at odds with Peirce about which consequences of belief confer meaning, he is in tandem with Dewey in presenting his semantic view as an instrumentalist account of truth. The willingness to characterize their understandings of truth as instrumentalist has landed these two, James in particular, in a great deal of hot philosophical water over the years. xxiii It is easy to see why. If you think that the meaning of true and its cognates is determined by the consequences of sentences that use them, and if you allow these consequences to include psychological states, including feelings, you open the door to defining truth as what feels right. It would be wrong to ascribe the it-feels-right view of truth incautiously either to James or to Dewey; James suggests that such a characterization of his own position is an impudent slander. xxiv Even so or perhaps especially so it is a view that deserves a place in our taxonomy: call it vulgar pragmatism. xxv This last pragmatism completes our taxonomy. Before applying it to this volume s essays, let us take two paragraphs to summarize this taxonomy, remarking as we go on some of the ways that jurisprudential views may fit within it. An account or approach counts as pragmatist just in case it gives explanatory pride of place to practices and the practical. A semantic view is methodologically practical if it treats the explanation of language use as the point of any semantic theorizing. Inasmuch as legal pragmatism aims to explain legal language use e.g., the meanings of the speech acts of lawmakers, lawyers, juries, and judges it is thereby methodologically pragmatic. A semantic view is semantically pragmatic if it explains the meanings of propositions in terms of practices 9

10 and the practical. The vocabulary of the explanantia must be limited in some way, lest it open the door to a pernicious regress; to accept this point is to endorse fundamental pragmatism. The way that one elects to limit one s explanatory vocabulary determines the variety of fundamental pragmatism one espouses. If one restricts this vocabulary to descriptions of the inferences that license and are licensed by a given proposition, one is an inferential pragmatist. If, alternatively, one restricts this vocabulary to descriptions of the practical consequences of asserting or accepting a proposition, one is an instrumentalist pragmatist. On the latter: if one thinks the meaning of a legal statute is determined by the practical consequences of adopting that statute (as opposed, e.g., to being determined by the original intent of the statute s authors), then one holds an instrumental pragmatic semantic view about the meaning of legal statutes. Some selfdescribed pragmatists most notably, James include non-practical vocabulary in their explanantia and thus, arguably, do not count as semantic pragmatists. A caricature of James s view is vulgar pragmatism: according to this view, a belief that has no basis in fact may nevertheless be true if it is useful, even if its usefulness is just that it causes those who adopt it to feel good. The vulgarity of the view lies in its radical subjectivism. At present, we need not provide strict criteria for counting a view as vulgar; indeed, we may even allow the notion to be vague. For our purposes, it will suffice to say any concept or view whose intelligibility presupposes objectivity and/or intersubjectivity is vulgar to the extent that it is radically subjective. II. The Taxonomy Applied 10

11 The essays in this volume s first section are instances of both methodological and semantic pragmatism. They all address the ways in which the meaning of legal discourse is determined, and they do so in order to illuminate the uses of legal discourse. Because of this, they are instances of methodological pragmatism. They are instances of semantic pragmatism because they discuss and analyze these meanings in terms of the practices involved with and surrounding the uses of this discourse. In the lead essay, Brandom addresses a problem concerning the indeterminacy of legal discourse. For an example of this indeterminacy, consider the case of Smith v. United States. xxvi Federal law in the United States requires that a person who, during and in relation to [a] drug trafficking crime[,] uses a firearm be punished more harshly than a person who traffics drugs without using a firearm. xxvii Smith questioned the application of this law to cases in which firearms are traded for drugs and are not used for protection or aggression. The question here arises because of the indeterminacy of the phrase uses a firearm in the context of the law: does the phrase apply to any possible use, including barter, or does it only apply to standard uses like protecting and threatening? Brandom argues that questions of legal indeterminacy such as this are settled by facts, though not by the sort of fact that settles, e.g., whether a given amount of cocaine is less than, equal to, or more than fourteen grams. The latter sort of fact is empirical, a fact that is known by employing empirical methods. The sort of fact that settles indeterminacies in legal discourse is, by contrast, a social-recognitive fact. This fact is a fact of authority: the person or group who has authority (e.g., the judge or court) resolves indeterminacies by saying whether or not a law applies to a given case. This authority is a matter of social recognition: one has it because and only because one is recognized as 11

12 having it. The authority over legal discourse has an explicitly historical structure, for it is conferred not just by one s peers but also by future judges and courts through their decisions to treat one s rulings as precedent. By attending to these normative and historical aspects of legal discourse which, Brandom argues, are brought into focus by viewing them through a Hegelian lens we uncover the sort of determinacy that undergirds our laws. This is a paradigmatic example of fundamental semantic pragmatism: legal discourse means what it does because of the authority-recognition practices of judges. The next two essays, by Barbara Baum Levenbook and by David Plunkett and Tim Sundell, are also concerned with the practices that determine the content of legal discourse. Levenbook shares Brandom s interest in the ways in which the law can change over time, but instead of focusing on the practices of judges, she discusses the relation between the legislators who make laws and the legal laymen, i.e., the people, who are bound by these laws. She argues against Scott Soames s originalist view of legal meaning; contra Stone, she claims that laws acquire their meanings in the context of what she calls social practices of salient-array identification, which, she notes, can change over time. Plunkett and Sundell share Brandom s interest in the actions that can render indeterminate legal content more determinate, but instead of focusing on single-party acts of judicial decision-making, they examine the acts that resolve multi-party disagreements over a law s meaning. Plunkett and Sundell claim that the best way to characterize the relevant practice of disagreement-resolution is to understand it as a metalinguistic negotiation. Both essays are examples of semantic pragmatism, for both seek to 12

13 illuminate the meaning of legal discourse by describing the practices that determine this meaning. Heidi Li Feldman s contribution can be seen as a case study in semantic pragmatism. Along with Brandom and Levenbook, she too is interested in the ways in which the meaning of the law can change over time. Feldman is particularly interested in the role in the United States played by appellate courts in reshaping the meaning of a law. She focuses on what she calls entangled legal concepts, in which the descriptive and the evaluative are fundamentally intermeshed through judicial engineering. To demonstrate the importance of these concepts, she gives a detailed account of MacPherson v. Buick Motor Company, which was ultimately resolved by Judge Benjamin Cardozo engineering the concept negligence. Cardozo needed to engineer the concept to replace imminent danger, which was too indeterminate to apply cleanly to the case. Here we have an example in which an exercise of judicial authority is required to resolve a semantic indeterminacy one of Brandom s topics in which a law must be recharacterized to fit a new array of social practices one of Levenbook s topics and in which the recharacterization can be understood as resolving a metalinguistic dispute one of Plunkett and Sundell s topics. Daniele Santoro s essay rounds out the first section with a discussion of the relation between causation and responsibility in legal discourse. He argues that standard counterfactual analyses of this relation are inadequate, and in their stead he recommends a pragmatist alternative. Drawing directly on Brandom s work, Santoro s view is an inferentialist fundamental pragmatist account. The next section of the volume investigates the semantics of some non-legal yet nevertheless normative forms of discourse. Matthew Chrisman and Karl Schafer both 13

14 address the semantics of ethical discourse, and both raise worries about recent expressivist accounts of these semantics. Like many forms of fundamental pragmatism including, importantly, inferentialist fundamental pragmatism expressivism is hostile to representationalist semantics. It is motivated by concerns about what normative terms such as good can mean given that there do not seem to be natural properties for them to represent; the expressivist responds by rejecting the claim that the meaningfulness of such terms depends on their representing properties. This much the expressivist shares with the inferentialist pragmatist. The two differ, however, on the extent to which they are anti-representational: while the expressivist is an anti-representationalist only about specific problematic vocabularies e.g., and at present centrally, moral vocabulary the inferentialist pragmatist is a global anti-representationalist. xxviii Chrisman carefully separates out two different sorts of expressivism and finds both wanting. In their stead, he sketches what he calls a logical pragmatism of moral vocabulary, which builds on the inferentialist pragmatism of Sellars and Brandom. xxix Schafer also raises problems for expressivism, though he does not do so to advance a pragmatist project like Brandom s or Chrisman s. Even so, an inferentialist pragmatist might adopt Schafer s arguments to show the inadequacy of expressivism as a viable response to the rejection of representationalism. Lynne Tirrell s pragmatic semantic analysis focuses on the hate speech employed prior to and during the Rwandan genocide. Her analytic framework is explicitly inferentialist, and she highlights the action-engendering aspects of ethnic slurs, aspects that, she argues, are fruitfully illuminated by treating them as what Sellars called language-exit transitions in language games. She offers her discussion in the spirit of the 14

15 Classical American Pragmatists, who sought to put philosophy to use in contending with non-academic social and political problems. Her hope is that an inferentialist semantic understanding of hate speech can help prevent the negative social consequences that can result from the use of such speech. The essays in the volume s third section extend Tirrell s interest in bringing Classical American Pragmatism to bear on contemporary social and political issues. According to Robert Talisse and F. Thomas Burke, Dewey and Peirce have much to teach us about the nature of democracy and justice. Talisse focuses on Dewey s discussion of democracy, which is instructive, Talisse claims, in part for what it lacks: an explicit account of justice. Talisse argues that a champion of democracy should embrace Dewey s views on the subject, but she should also be willing, as few contemporary proponents of Dewey are, to embrace a Rawlsian view of justice. Burke takes Talisse s line of thought in an overtly semantic direction by giving what he calls an operationalist account of the meanings of democracy and justice. Drawing on Peirce, Burke gives an instrumentalist fundamental pragmatist explication of these terms; in doing so, he shows some of the ways in which contemporary democratic governments fall short of deserving the title democracy. A central feature of Peirce s operationalism is its commitment to the experimental method: definitions may shift over time if the results of experimentation demand that they do so. Brian Butler finds experimentalism at the heart not just of definitions of democracy but also of the very practice of democracy. Butler argues that to embrace the fundamental pragmatism one finds in, e.g., Dewey, democracy must be understood as an experimental enterprise. He thinks that a similar lesson holds in the philosophy of law: a 15

16 philosophy of law worthy of the title pragmatism must articulate and embrace the sort of experimentalism on display in Feldman s discussion of MacPherson v. Buick Motor Company. Dewey emerges again as a hero in Logan s discussion, which focuses on the recent work of Joan Williams. Logan s specific topic is Williams s reconceptualization of the work-family conflict, a methodologically pragmatist investigation into the ways in which uses of the phrase work-family conflict can, in Logan s view, hide forms of economic injustice. Logan argues that the connection of Williams s views to Dewey s conception of democracy make it proper for Williams to consider herself a feminist pragmatist legal theorist. The final section of the volume takes the lessons from the previous three and applies them directly to an analysis of contemporary views of legal pragmatism. The section begins with Benjamin Zipursky s defense of a rejuvenated legal pragmatism that, drawing on Peirce, he calls legal pragmaticism. Peirce coined and self-applied the term pragmaticism to distinguish his view from a motley of alternatives that had helped themselves to pragmatism ; similarly, Zipursky adopts legal pragmaticism to distinguish his position from the (sometimes vulgarly) instrumentalist views that present themselves under legal pragmatism. In opposition to these views, Zipursky denies that the judge s core mission is to be pragmatic, for he insists that we cannot dispense with the ideal of a judge s fidelity to the law. To embrace this ideal, however, we need not accept an antiquated positivist legal philosophy; instead, Zipursky argues, we should understand the ideal as a commitment to a system of legal discourse and argumentation, a system of asking for and giving legal reasons, a system of moves in a specifically legal language game. On this view, the meaning of a given law is fully articulated by the 16

17 inferences that it licenses and that license it; because this is so, Zipursky s view counts as an inferentialist pragmatist semantic account of legal discourse. Seth Vannatta s essay compares the work of the central figure in Classical American Pragmatist jurisprudence, Oliver Wendell Holmes, Jr., to Posner s brand of legal pragmatism. Vannatta argues that in spite of Holmes s desire to avoid being characterized by the fighting tag of pragmatism, Holmes s functionalist realist approach to the law belongs in the same camp as Dewey s and Peirce s pragmatic views. As such, he rejects Posner s assertion that legal pragmatism is independent of philosophical pragmatism. Vannatta s goal here is not merely to correct Posner on this point; he also hopes to bring overtly philosophical theorizing about both pragmatism and the law into critical relation with Posner s view. Whereas Zipursky and Vannatta criticize some sorts of legal pragmatism in order to advocate for others (even if in Zipursky s case this comes under the head pragmaticism ), Sari Kisilevsky and Martin Stone offer no defense of anything that might bear the name legal pragmatism. Their essays come last so that they may have the last word: keeping with the pragmatist s understanding of knowledge as something that unfolds through our practices, these essays challenge pragmatists to take new steps in this unfolding. Kisilevsky s critique is aimed at Mark Greenberg s view, which, she claims, shares several key features with familiar legal pragmatist accounts, including its antifoundationalist explanation of legal authority. She argues that in spite of its apparent virtues, Greenberg s view ought to be rejected due to its inability to account for the systematicity characteristic of the law. Kisilevsky does not intend her argument as a 17

18 decisive objection to any conceivable version of legal pragmatism, but it does establish a criterion of adequacy against which to evaluate any such view. Stone goes further, inviting us to wonder whether pragmatism and its cognates have any constructive use in our reflections on the law. He begins by dismissing transparently vapid uses of the terms, after which he attacks vulgar instrumental pragmatic views that most if not all of the self-described pragmatists in this volume would likewise reject. He continues by questioning the inferentialist pragmatic semantic views of Zipursky and Brandom, wondering whether their praise of practices over, e.g., essences merely recapitulates the metaphysical problems that their pragmatic approach intends to resolve. Taking his cue from Wittgenstein, Stone argues that reflections on legal discourse should not begin from metaphysical worries about, e.g., whether the skeptic is right that nothing grounds our use of legal language. Answering this sort of worry will simply produce a new metaphysical view, according to Stone, even if the new view is couched in a vocabulary that self-consciously attempts to be anti-metaphysical. If we want to avoid misguided metaphysics and, instead, actually to understand legal discourse, Stone claims that we should ignore the skeptic and instead begin our investigation from the lawyer s perspective as she practically engages with the law. *** If the tyro has followed this all the way through, is she not back where she began? Even if she, like Stone, ends up finding that the use of pragmatism and its cognates makes her cringe, she will have learned a great deal about these terms and the views with which they are associated. She will have a clearer sense of what these views have in 18

19 common and what distinguishes them from one another. She will have a grasp of some of the criticisms levied against these views, and she will know why criticisms against some forms of pragmatism do not carry over to others. She will be aware of some of the fundamental worries surrounding the meaningfulness of normative discourse, including legal discourse, and of pragmatist responses that can be given to these worries. Finally, she will appreciate how pragmatist approaches to the law fit within a broader, historical pragmatist orientation to fundamental issues in democracy. She may not know all that can be said about pragmatism, nor all that can be said in favor of views that fit the label, nor all that can be said against them, but she will be prepared for the varieties of pragmatism she might encounter in a volume called Pragmatism, Law, and Language. i If prominence is determined by journal citations, then Posner is inarguably the most prominent, and by a wide margin. According to Fred Shapiro, Posner was cited 7,981 times between 1956 and Ronald Dworkin comes in second on Shapiro s list with 4,488 citations; Oliver Wendell Holmes, Jr. is third with 3,665 citations. See F. Shapiro, The Most-Cited Legal Scholars, The Journal of Legal Studies 29 (2000), , 424. ii R. Posner, Law, Pragmatism, and Democracy (Harvard UP, 2005). iii For the promotion of the former, see ibid., 4; for the dismissal of the latter, see ibid., 41. iv These views are expressed, in order in S. Fish, Almost Pragmatism: Richard Posner s Jurisprudence, University of Chicago Law Review 57 (1990), , 1468; S. Smith, The Pursuit of Pragmatism, Yale Law Journal 100 (1990), , 444 (Smith discusses Posner specifically at ); D. Lind, The Mismeasurement of Legal Pragmatism, Washington University Jurisprudence Review 4 (2012), ; M. 19

20 Sullivan, Legal Pragmatism: Community, Rights, and Democracy (Indiana UP, 2007), chapter 3. v See, e.g., M. Bacon, Pragmatism: An Introduction (Polity, 2012); R. Brandom, Perspectives on Pragmatism (Harvard UP, 2011); C. Koopman, Pragmatism as Transition: Historicity and Hope in James, Dewey, and Rorty (Columbia UP, 2009); A. Malachowski, ed., The Cambridge Companion to Pragmatism (Cambridge UP, 2013); C. Misak, The American Pragmatists (Oxford UP, 2013); H. Price, S. Blackburn, R. Brandom, P. Horwich, and M. Williams, Expressivism, Pragmatism, and Representationalism (Cambridge UP, 2013); Sullivan, Legal Pragmatism; and R. Talisse and S. Aiken, Pragmatism: A Guide for the Perplexed (Continuum, 2008). Matthias Klatt s Making the Law Explicit: The Normativity of Legal Argumentation (Hart: 2008) should also be mentioned here, for it involves an application of Brandom s brand of pragmatism to an analysis of legal argumentation. vi In 1908 A. O. Lovejoy marked the tenth anniversary of William James s Philosophical Conceptions and Practical Results by attempting to discriminate all the more important doctrines going under the name of pragmatism (A. O. Lovejoy, The Thirteen Pragmatisms, in his The Thirteen Pragmatisms (Johns Hopkins UP, 1908), 13). He ended up distinguishing thirteen views. In their discussion of Lovejoy s analysis, Robert Talisse and Scott Aiken surmise that the number of pragmatisms in currency today far exceeds 13 (Pragmatism: A Guide for the Perplexed, 8). I share this supposition. Talisse and Aiken also decline to give a complete account of all existent pragmatisms. vii Perspectives on Pragmatism, 58. As will become clear, the taxonomy I present here draws heavily on the introduction and early chapters of Perspectives on Pragmatism. 20

21 viii For examples of Light s views, see A. Light, Methodological Pragmatism, Pluralism, and Environmental Ethics, in Environmental Ethics: The Big Questions, D. Keller ed. (Wiley-Blackwell, 2010), ; and A. Light and A. de-shalit, Environmental Ethics Whose Philosophy? Which Practice? in Moral and Political Reasoning in Environmental Practice, A. Light and A. de-shalit eds. (MIT Press, 2003), ix For two canonical expressions of this suspicion, see W. James, The Will to Believe, The New World: A Quarterly Review of Religion, Ethics, and Theology, volume 5 (Houghton Mifflin), and H. Putnam, Fact and Value, in his Reason, Truth, and History (Cambridge UP, 1981), x These are not the only sorts of pragmatism that Brandom distinguishes in Perspectives on Pragmatism there is also reductive fundamental pragmatism (67) and linguistic pragmatism (67) but they are the only ones immediately relevant to present discussion. xi Brandom describes this as the priority of the propositional on this see his Making it Explicit (Harvard UP, 1994), xii On methodological pragmatism, see Brandom, Perspectives on Pragmatism, 58-63; on semantic pragmatism, see ibid., 24 and xiii On this, see ibid., 64, and R. Brandom, Between Saying and Doing: Towards an Analytic Pragmatism (Harvard UP, 2008), chapter 1. xiv Brandom presents this argument in Perspectives on Pragmatism at 13-14; he provides a more extensive treatment of it in Making it Explicit at While the argument is familiar from the later Wittgenstein, Brandom tells us that the point can also be found in Kant (see Perspectives on Pragmatism, 13-14). xv Ibid.,

22 xvi Ibid., xvii This phrase is Brandom s: see Making it Explicit, 168. xviii EPM sec 36 xix I add in this sense, for there are senses in which at least James s semantic view can be considered inferentialist on this, see F. Thomas Burke s contribution to this volume. It is not clear that this sort of inferentialism involves anything like the socially articulated moves in space of reasons discussed by Sellars. xx C.S. Peirce, The Essential Peirce: Selected Philosophical Writings, Volume 1 ( ), N. Houser and C. Kloesel eds. (Indiana UP, 1992), 136. For more on this, see M. Bacon, Pragmatism, xxi On this, see Talisse and Aiken, Pragmatism: A Guide for the Perplexed, The Peirce quote is from Collected Papers of C.S. Peirce (Harvard UP, , 1958), vol. 5, 400; Talisse and Aiken present it at ibid., 11. xxii Brandom appears sensitive to this when he notes that [o]ne may question whether or not James is a linguistic pragmatist (Perspectives on Pragmatism, 70, fn 25). Brandom surely means to say semantic and not linguistic here. xxiii For a summary of some of the more famous criticisms of James on this point, see Bacon, Pragmatism: An Introduction, 35. xxiv W. James, Pragmatism: A New Name for some Old Ways of Thinking (Longman Green and Co., 1907), 90, quoted by Bacon in Pragmatism: An Introduction at 35. xxv For Brandom s discussion of this view, see Perspectives on Pragmatism, xxvi Smith v. United States, 508 U.S. 223 (1993). xxvii Title 18 U.S.C. 924(c)(1). 22

23 xxviii For a fine discussion of these matters, see M. Williams, Pragmatism, Minimalism, Expressivism, International Journal of Philosophical Studies 18 (2010), xxix The sketch he offers might be considered a prolegomena to his forthcoming Beyond Descriptivism and Expressivism: The Case of the Meaning of Ought. 23