I wanted to briefly follow up on my post about the varieties of realism, just to expand on my comment about pragmatism.
Philosophical pragmatism is basically the idea that the concept of a thing is the concept of that thing’s effects (Peirce’s maxim), an idea more profound than it may seem. But I think the key insight of the pragmatists was to recognize the social basis of much of our thinking. Ideas are meaningful because they are part of our action plan in life. And much of what we do is organized in one way or another by relation to various social institutions, broadly construed. Economy, marriage, family, education, art, whatever. Our experience of the web of norms cast by these institutions is what we call, colloquially, “life.”
A pragmatist recognizes the import of socially constructed meaning, but without mistaking it for the straw man of anything-goes relativism. There is a reality independent of what we think about it, but what we think and do can play a major part in creating that reality.
All of which means that the law, a product of complex interactions of an array of human institutions, is neither totally dependent on what we, or our judges, think about it (simple legal realism), nor totally independent of what we think (natural law, philosophical realism). It is both, somewhat.
