A Research On Posner’s Theory About Pragmatic Legal Reasoning

Ever since born in the nineteenth century in United States, Pragmatism has beenregarded as philosophy which can represent the spirit of United States. Pragmatismwas created by Charles Peirce, and developed by William James, After the SecondWorld War, due to the rise of analytical philosophy, the pragmatism declined.However, it began to revive with the postmodern philosophy movement in the1960s.Pragmatism also experienced its development, depression and recovery in our country.Therefore, pragmatism wasn’t always popular with the people. Fortunately,pragmatism has been gradually improved after its long journey of frustration.In fact, whether in United States or in China, pragmatism is considered to be ofhigh practical value, especially in the field of law. Posner believed that pragmatism’scontributions to the law embodied mainly in two aspects: For one thing, pragmatismrejects certain legal theory, and disagrees with certain opinion of law, such as theopinion that the law is completely self-sufficient. Under the guidance of pragmatism,the judges can completely search the resources beyond the limitation of the law. Forquiet another, pragmatism allows the judges to be more flexible in his work. Althoughthe legal formalism does have some advantages, the legal pragmatism has certainvalue in the process of legal application, which could make the judges more and moreconsiderate.The author subscribes to Posner’s theories on two main contributions ofpragmatism to the law. The author also finds a crucial thing for the judge from hisjudicial idea，the pragmatic legal reasoning, which can’t be underestimated for a goodjudge. With the aim of providing some methods to judges, the author trys to tap andapply the reasonable content of Posner’s theory about pragmatic legal reasoning to thesome specific and practical cases to better defend the social justice.Apart from the “introduction” part, this paper is divided into three chapters:ChapterⅠis the exploration origin of Posner’s theory about pragmatic legal reasoning.This part focally states the theoretical and realistic basis of Posner’s pragmatic legalreasoning theory, which lays the foundation for applying Posner’s pragmatic legalreasoning in the specific judicial practice. ChapterⅡis the main content of Posner’s pragmatic legal reasoning theory. In this chapter, the related content of pragmaticlegal reasoning is analyzed and discussed, in which the scope of the application ofpragmatic legal reasoning is emphasized to avoid the bind applying of judges. ChapterⅢ focuses on the inspiration from the theory of Posner’s pragmatic legal reasoning.In this part, the advantages and limitations of pragmatic legal reasoning is analyzed.Meanwhile, based on analyzing the specific cases, some methods are put forward forthe judges. It is hoped that the judge can reasonably and rationally apply thesemethods to defend and realize the justice of the society.