Formalism, pragmatism, and nihilism in legal thought

This dissertation analyzes how legal theorists use the concept of "nihilism," and why it preoccupies American legal theory. Nihilism signifies a belief that "anything goes" in legal interpretation; judges may enact any subjective preference into law. Nihilism warns theorists against pushing traditional constraints too far, but also highlights persistent problems in legal theory. The most commonly noted issue is the inability of judges and scholars to achieve stable, certain, and "neutral" answers to questions of law. A range of issues arises once we recognize that formalist presuppositions that gave legal theory coherence have become untenable. By ignoring the way such problems affect their own work, mainstream theorists avoid a set of questions and investigations which could enrich and challenge public law. The first chapter concludes by introducing these questions.;The final chapters address three alternative approaches to legal theory in the period after realism. The first approach, labelled "mainstream" because it has been most frequent in the period since 1950, attempts to reconstruct formalism so that law is properly distinguished from politics and other disciplines. The second approach, called pragmatism, offers a middle position between formalism and nihilism by developing insights from Wittgenstein's later philosophy. The final approach focuses on authors considered "nihilist" by mainstream theorists. While agreeing with the pragmatic criticism of formalism, these authors draw out the implications of the infection of law by politics to show new possibilities inherent in our legal system and society.;The second chapter explores the origins of this debate in legal realism, a movement that changed legal thought by intensifying the critique of formalism. The realists successfully challenged the coherence of conventional formalist distinctions, substituting contextual reasoning for the formalists' more classificatory reasoning. The realists complicated the terrain of legal thought but also deepened our understanding of law and its relationship to society and the social sciences. To confront the implications of "nihilism," legal theorists must address the realists in a more satisfactory way.