Abstract
In the second session, Giovanni Tuzet (Bocconi University, Milan) examined the relationship between pragmatism and normativity. James's The Will to Believe is based on the idea that we can and should make practical decisions, including legal ones, even when we lack conclusive data or evidence. Today, this perspective is shared by authors such as Richard Posner, for whom the purpose of legal deliberation is first and foremost to reach a decision, even at the expense of the quality of the arguments that support it. Following Dewey, legal pragmatism has also been associated with criticism of the idea of the judicial syllogism. A logic and metaphysics of legal relations along the lines of Peirce's Logic of Relatives should result from a posteriori observation of the social and inferential practice of law. How can Peirce's pragmatist maxim form the basis of legal pragmatism? In O.W. Holmes's predictive theory of law, to say that an individual has a legal obligation to do A is to say that he would probably be punished by a court if he did not do A. It is doubtful whether this conception can account for the normativity of the concept of obligation. More generally, just as we cannot reduce norms to facts, we cannot reduce obligations to the foreseeable consequences of their breach. Legal pragmatism today finds itself faced with an alternative: either, following Brian Leiter (and in an approach close to Holmes'), it leans towards a form of "legal naturalism", the difficulties of which are obvious; or, following the work of Jules Coleman in particular, it leans towards a "conceptual legal pragmatism" attentive to the irreducible normativity of legal concepts.
