Author:Gary J. Jacobsohn

Page 1982

Pragmatism, generally considered to be our only indigenous school of philosophic thought, has profoundly influenced the development of American jurisprudence in the twentieth century. This influence is evident in a variety of legal settings, including the field of constitutional law, where debates over the proper interpretive role of the courts continue to focus upon issues first raised in a systematic way by the early philosophers of pragmatism, notably John Dewey.

The school of philosophical pragmatism emerged only in the late nineteenth century, but it is more deeply rooted in the American past than that date implies. Thus, we see in ALEXIS DE TOCQUEVILLE'S description of the American philosophical method a preview of what later became, in the works of Charles Peirce, William James, Dewey, and others, a schematically developed general theory: "To evade the bondage of system and habit, of family-maxims, class opinions, and, in some degree, of national prejudices; to accept tradition only as a means of information, and existing facts only as a lesson to be used in doing otherwise and doing better; to seek the reason of things for oneself, and in oneself alone; to tend to results without being bound to means, and to strike through the form to the substance?such are the principal characteristics of what I shall call the philosophical method of the Americans." In this account of philosophical temperament are the core elements of the reconstruction in philosophy that came to dominate constitutional discourse in the twentieth century: an instrumental approach to knowledge based upon a rigorous empiricism, a demystification of the past as a predicate for facilitating change, and an ethical orientation that finds in the application of a norm or concept the criterion of its value.

The emergence of the pragmatic movement in philosophy occurred at a critical juncture in American constitutional history. At a time when constitutional orthodoxy was embodied in the person of Justice STEPHEN J. FIELD, the appeal of pragmatic ideas to critics of the dominant view lay in the promise it held for achieving a congruence between law and the needs of a society undergoing rapid flux and transition. In place of a formalistic approach characterized by the derivation of absolute principles that are grounded in nature and from which constitutional conclusions can be deduced with certainty in support of social inequality, the pragmatists...

To continue reading