pp.

787-803
Keri Premmer
Gracie Johnson

Dennis M. Patterson
Law’s Pragmatism: Law as practice and narrative

-Language is constitutive as the medium through which understanding occurs

-Understanding occurs in and through language, then only the study of language will bring us
closer to truth.

Ludwig Wittgenstein – all philosophical problems turn on language

“Follow the rule” approach- For example the rule of plus
75 is the answer to the question “what is 50 +25”, But how do we know this to be true?
A skeptic might say add means up to seventy, then after 70 always add an additional 5.
Therefore a skeptic answer to the question would be 80.
These are questions surrounding “the skeptical paradox” of the rule of following.

-Wittgenstein also presents a compelling account of a conventionalist conception of law practice.

Patterson’s theory builds upon this concept.
-Patterson theory that following a rule is a practice
-In short law is an activity and not a thing. Is being is in the doing of the participants in the
practice.

-The general philosophical claim is the meaning of a practice is an internal phenomenon. -It is
within the practice, that the practice has meaning. Without purposeful activity there would be no
practice.

-Practices are creatures of reason and functions of conventions.

One Possible Exception:

The fact that words can often be understood apart from context. Literal semantic meaning is a
feature of linguistic practice and thus of legal practice as well.
Words must be intelligible to question asked.

What is law?
Law is not merely law because we call it law, nor is it law because it comports with a priori idea
of law.
Law is law because it is an activity by which we institutionally organize collective argument.
Law is a medium of intelligibility; it is a way of making sense of our collective and individual
experience.

What are the implications for legal pragmatism?

Vocabulary must be the primary focus of attention.
One cannot the false dichotomy of objectivism and relativism yet retain the notion that the ways
in which we divide up the world can somehow be compared along a neutral continuum of
measurement.

Stanley Fish
Liberalism doesn’t Exist

-Liberalism depends on not inquiring into the status of reason, but depends on the assumption
that reasons status is obvious.

-Once opposition is in place, it produces an opposition between reason and belief.

But what if reason rest on belief.

-Fish holds that the ideology of reason must repress itself.

Where does reason come from?

Reason does not come from nowhere. It comes from somewhere and that somewhere is a realm
to which they are opposed. The realm of particular assumptions and agendas.

- What this means is that not all reasons are for everyone.
For example: a lawyer might give a reason for his client acquittal on the fact that his action was
not intentional. But the fact and the reason becomes perspicuous only because the boundaries
that have been drawn between intentional and unintentional.

- What is and is not a reason will always be a matter of faith, of the assumption that are bedrock
within a discursive system which because it rest upon them cannot call them into question.

Tolerance
Tolerance is what liberalism claims for itself in contradiction to other, but liberalism is tolerant
only within the space demarcated by the operations of reason

In this liberalism does not differ does not differ from fundamentalism or from any other system
of though, for any ideology must be founded on some basic conception of what the world is like.

A liberalism that did not “insist on reason as the only legitimate path to knowledge about the
world” would not be liberalism.

pp. 794-797
Culture and Certainty: Legal History & the Reconstructive Project
By: Joan C. Williams

- This essay examines two modernist approaches to argumentation: Traditionalist and

Pragmatist, and it advocates the Pragmatist approach.
 - The beginning of both approaches is the same: they start with an argument that, though
no absolute truth exists, this does not preclude the existence of particular truth.

Traditionalist:
 Abandon absolute truths but seek to preserve ready access to certainty.
 Argue that even without absolute truths, our certainties remain quite certain,
and our agreements, within a given culture, remain relatively objective.
 Assumes widespread consensus within society (attracts historians because it
easily categorizes history)

Pragmatist:
 There is only certainty within the sense of knowing what the moves are within a
particular language game, all the while recognizing that the governing rules are
subject to endless variation and adjustment.
 Abandons search for single viewpoint and searches for strategies through which
a population can seek a series of necessarily transient and provisional
understandings.
 “Particular truths” = a pragmatist looks to history as a guide for a pluralistic
society as it negotiates agreements that remain contested, situated, and
eternally unsettled.
o Example: Do not just look at judge-made law, but also law held by
peripheral groups.
 Pragmatic certainty: certainty in the absence of either consensus or absolutes.

Why does the author think Pragmatism will help the law?

It may help provide an alternative description of rationality that frees us from the
traditionalists’ terror that we will descend into irrationalism or absolute relativism if we
abandon our insistence that one simply arrives at true beliefs by obeying mechanical
procedures.

pp. 797-799
Identity Crisis: The Politics of Interpretation
By: Allan C. Hutchinson

This essay discusses Deconstruction in relation to its interpretive nature within the
postmodernist family.

- A few details about Postmodernism:

 A flat rejection of universal knowledge and denial of essential truths
 Questions the idea of autonomous subjectivity and abstract reason; places both
in a constant contingent condition of provisionality
  Holds that knowledge and truth are always fragmentary
 Its political hope is to destabilize power, displace domination, and dismantle
hierarchy

Deconstructionism – states that meaning does not lie within any linguistic structure; meaning is
always contestable. It is the interpretive branch of postmodernism.

- Deconstructionism disrupts false hermeneutical (explanatory) exercises that claim to

offer standards of decidability or disclosure.
- Deconstructionism relieves authors of burden of authority within discourse.
- Deconstruction does not deny the possibility of meaning, but merely defers meaning for
all time

Author suggests that by interpreting postmodernism through deconstructionism, writers,

writing and readers are nourished and come to life in the rich soil of social living.

pp. 799-803
In Context
By: Martha Minow & Elizabeth Spelman

This essay discusses the vital role “context” plays in society when it is used to study history,
politics, and law.

- Traditionally, “context” is used when there is a misunderstanding or a need for clarity. It

is used within legal theory by people arguing for its adoption within Pragmatism and
Feminism.
- What’s the author’s context?
 Context – a readiness to recognize patterns of differences that have been used
historically to distinguish among people, places, and problems.
- The authors emphasize context in order to expose how apparently neutral and universal
rules burden or exclude anyone who does not share the characteristics of privileged,
white, Christian, able-bodied, heterosexual adult men for whom those rules were
written.
- A call for “context” does not necessarily ruin objectivity, but in fact is needed to aid it.

Critics of “context” argue:

 Context blasts away foundations in reason for moral and political claims and leaves way
for brute political power
 Contextual analysis eliminates generalizations and; therefore, possibility of politics.
 Context will disable judgment and produce dangerous relativism.
 “Contextualists” cannot reasonably advocate contextualism if they reject all grounds for
preferring one way knowing and one set of judgments.
  Contextualists cannot meaningfully talk of context without using categories that simplify
the particularities under discussion.

Authors defend “context” by saying:

 The arguments against context are “consequentialist”: context will only have bad
consequences.
 However, the author accepts the last two critiques of contextualism, but only because it
helps point out their argument: a binary distinction does not exist between context and
abstraction. These are in fact, interdependent.

How context and abstraction work together:

 Abstract theories are in some sense rooted and operate within contexts with real and
particular effect that often benefit some people more than others.
 Contextual approaches use categories to select which particular details matter.
 Morality is not jeopardized by abstraction and context working together because both
force a call to focus on some previously neglected features. In other words, we begin to
look ask:
 Which context should matter?
 What traits of the particular should be addressed?
 How wide should the net be cast in collecting the details?
 What scale should be used to weigh them?
 By addressing the above, we apply both an abstract and contextual form of analysis that
provides morality the structure it needs to survive.