Herman Oliphant, stare decisis and the primacy of pragmatics in legal reasoning (with a brief excursion into neuropragmatics)
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Brian E. Butler
Brian E. Butler is Professor of Philosophy at the University of North Carolina, Asheville. He has a PhD in philosophy from Claremont and a J.D. from the University of Chicago. He does work on law, pragmatism and pragmatics, as well as democratic theory and political philosophy. He is the author of The Democratic Constitution (2017) published by the University of Chicago Press. Butler also does work in aesthetics and is currently co-chair of the Black Mountain College Museum + Arts Center.
Abstract
Capone and Bucca argue that legal interpretation can go significantly wrong when founded upon a false conception of language and linguistic practices. This claim is correct. Specifically, semantic-based theories of linguistic meaning that are based upon the idea that a “core” semantic meaning can be identified outside of context and then needs to be “pragmatically enriched” for specific applications get the project of understanding language use in the legal context profoundly backwards. This paper emphasizes the primacy of an embedded pragmatics over other conceptions of linguistic meaning and practice in law. Herman Oliphant, in “A Return to Stare Decisis” offers an argument that helps strengthen the claim for the “primacy of pragmatics” in law. His work also shows that if the primacy of pragmatics is accepted, not only does this have significant impact upon actual legal practice, but it also highlights worrisome blind spots in currently dominant philosophical theories of law. His argument is that a conception of law that is centered upon such an appeal to principle, stare dictis, leads to a legal practice based upon distorting abstractions and a false conception of language use in law pulled out of its worldly roots. Because of this, he argues that stare dictis is detrimental to a living and empirically effective and informed legal system. Hence the need for a return of stare decisis properly understood. His article gives some grounds for critiquing many dominant philosophical theories of law. Oliphant’s theory is, importantly, compatible with, and supported by, a picture of language use offered by Jaszczolt and recent work in neuropragmatism. This, in turn, can be thought as further verification of Capone and Buccas’ assertion that the adoption of a false theory of language can have far ranging and detrimental effects upon legal practice and legal theory.
About the author
Brian E. Butler is Professor of Philosophy at the University of North Carolina, Asheville. He has a PhD in philosophy from Claremont and a J.D. from the University of Chicago. He does work on law, pragmatism and pragmatics, as well as democratic theory and political philosophy. He is the author of The Democratic Constitution (2017) published by the University of Chicago Press. Butler also does work in aesthetics and is currently co-chair of the Black Mountain College Museum + Arts Center.
References
Burke, F. Thomas. 2014. Extended mind and representation. In John R. Shook & Tibor Solymosi (eds.), Pragmatist neurophilosophy: American philosophy and the brain, 177–201. London: Bloomsbury.Suche in Google Scholar
Butler, Brian E. 2016. Law and the primacy of pragmatics. In Alessandro Capone & F. Poggi (eds.), Pragmatics and law: Philosophical perspectives, 1–13. Dordrecht: Springer.10.1007/978-3-319-30385-7_1Suche in Google Scholar
Capone, Allesandro & Antonino Bucca. 2018. Why did Trump say “I hope you will let Flynn go” to Comey? Pragmemes and socio-pragmatics (A Strawsonian analysis). Pragmatics and Society 9 (2): 208–231.10.1075/ps.17024.capSuche in Google Scholar
Charles, Eric P., Sabrina Golanka & Andrew D. Wilson. 2014. The most important thing neuropragmatism can do: Providing an alternative to “cognitive” Neuroscience. In John R. Shook & Tibor Solymosi (eds.), Pragmatist neurophilosophy: American philosophy and the brain, 127–149. London: Bloomsbury.Suche in Google Scholar
Jaszczolt, Kasia M. 2018. Pragmatics and philosophy: In search of a paradigm. Intercultural Pragmatics 15. 131–159.10.1515/ip-2018-0002Suche in Google Scholar
Johnson, Mark. 2014. Keeping the pragmatism in neuropragmatism. In John R. Shook & Tibor Solymosi (eds.), Neuroscience, neurophilosophy and pragmatism: Brains at work with the world, 37–56. London: Palgrave Macmillan.10.1057/9781137376077_2Suche in Google Scholar
Kopytko, Roman. 1995. Against rationalist pragmatics. Journal of Pragmatics 23. 475–491.10.1016/0378-2166(94)00004-XSuche in Google Scholar
Marmor, Andrei. 2008. The pragmatics of legal language. Ratio Juris 21. 423–452.10.1111/j.1467-9337.2008.00400.xSuche in Google Scholar
Oliphant, Herman. 1928. A return to stare decisis. American Bar Association Journal 14. 1–76. 107, 159–162.Suche in Google Scholar
Peirce, Charles S. 1992. The essential peirce: Selected philosophical writings. Bloomington: Indiana University Press.Suche in Google Scholar
Pressman., John F. 1994. Sociocultural pragmatics origin in the late twentieth century: Countering historiographic neglect. Pragmatics 4. 461–489.10.1075/prag.4.4.06preSuche in Google Scholar
Sheets-Johnstone, Maxine. 2014. The legacy of William James: Lessons for today’s twenty-first century neuroscience. In J.R. Shook, R. John & Tibor Solymosi (eds.), Pragmatist neurophilosophy: American philosophy and the brain, 29–49. London: Bloomsbury.Suche in Google Scholar
Shook, John R. & Tibor, Solymosi. 2014. Neuropragmatism and the reconstruction of scientific and humanistic worldviews. In John R. Shook & Tibor Solymosi (eds.), Neuroscience, neurophilosophy and pragmatism: Brains at work with the world, 3–36. London: Palgrave Macmillan.10.1057/9781137376077_1Suche in Google Scholar
Wagman, Jeffrey B. & Anthony Chemero. 2014. The end of the debate over extended cognition. In John R. Shook & Tibor Solymosi (eds.), Neuroscience, neurophilosophy and pragmatism: Brains at work with the world, 105–124. London: Palgrave Macmillan.10.1057/9781137376077_5Suche in Google Scholar
© 2019 Walter de Gruyter GmbH, Berlin/Boston
Artikel in diesem Heft
- Frontmatter
- research-article
- First things first: The pragmatics of “natural order”
- Meaning, reasoning, and common knowledge
- The language game of lost meaning: Using literal meaning as a metalinguistic resource
- Herman Oliphant, stare decisis and the primacy of pragmatics in legal reasoning (with a brief excursion into neuropragmatics)
- On the syntax/pragmatics interface: Expressing surprise and disapproval
Artikel in diesem Heft
- Frontmatter
- research-article
- First things first: The pragmatics of “natural order”
- Meaning, reasoning, and common knowledge
- The language game of lost meaning: Using literal meaning as a metalinguistic resource
- Herman Oliphant, stare decisis and the primacy of pragmatics in legal reasoning (with a brief excursion into neuropragmatics)
- On the syntax/pragmatics interface: Expressing surprise and disapproval
