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41 Am. J. Juris. 315 (1996)
Pragmatism in U.S. Legal Theory: Its Application to Normative Jurisprudence, Sociolegal Studies, and the Fact-Value Distinction

handle is hein.journals/ajj41 and id is 319 raw text is: PRAGMATISM IN U.S. LEGAL THEORY: ITS APPLICATION TO NORMATIVE JURISPRUDENCE, SOCIOLEGAL STUDIES, AND THE FACT-VALUE DISTINCTION BRIAN Z. TAMANAHA* Philosophical pragmatism has enjoyed two distinct waves of influence in legal theory. The first and most profound wave came through the work of Oliver Wendell Holmes, combined with the later work of philosophically sophisticated members of Legal Realism, especially Felix Cohen. As has been well documented, Holmes was a member of the Metaphysical Club of Cambridge intellectuals, which included Charles Sanders Peirce and William James, two of the three (with John Dewey) foundational figures of philosophical pragmatism.' Thus Holmes actually participated in the early development of pragmatism and applied many of these ideas to law. Drawing upon philosophical pragmatism,2 Holmes irreverently pierced the prevailing mode of analyzing common law concepts as if they were essentialist notions of timeless provenance with a necessary internal structure and set of external relations. His favorite debunking technique was to employ historical analysis to demonstrate that these abstract concepts have a terrestrial origin in a specific context, derived from particular and contingent needs, and not infrequently based upon mistake.' Holmes argued that legal rules should serve human purposes and must therefore be shaped to meet these purposes. The monumental change wrought by Holmes, which was carried through by Roscoe Pound and the Legal Realists, was to render law and legal theory increasingly instrumental-oriented. With the exception of a handful of remaining classical natural law theorists, few legal theorists today discuss law exclusively in terms of abstract concepts. The focus is on whether law works the way we desire and, if not, how it can be made to do so. Many judicial decisions raise the same * I would like to thank Elizabeth van Schilfgaarde for her critical comments on an early draft of this piece. This article is a modified version of Chapter Two in my forthcoming book, Realistic Socio-Legal Theory: Pragmatism and a Social Theory of Law (Oxford 1997). 1. See J. Murphy, Pragmatism: From Peirce to Davidson (1990), pp. 13-21. 2. See T. Grey, Holmes and Legal Pragmatism, 41 Stanford L. Rev. (1989), p. 787. 3. Many of these themes are evident in Holmes' essay, Law in Science and Science in Law, reprinted in The Holmes Reader (J.J. Marke, ed. 1955), pp. 124- 47.

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