Cover

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Title Page, Copyright

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C O N T E N TS

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p. vii

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Acknowledgments

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pp. ix-x

The list of intellectual debts I’ve incurred in writing this book is long and I am sure there are many who deserve mention that will slip through this final accounting. Without the criticism, advice, and encouragement of many colleagues, teachers, mentors, friends, and students, this book would not have come into being. I am confident the ...

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Introduction

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pp. 1-5

In this book, I develop and set forth a pragmatic theory of rights in the context of a larger account of American law, judicial review, and democracy. My theory of rights is pragmatic in two important senses. First, it draws deeply on the pragmatism of classical American philosophers such as Charles Peirce, William James, and, above all, John ...

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One. What’s Right with Rights and Wrong with Communitarianism

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pp. 6-31

Seventeen-year-old Erin Wiser belonged to the ‘‘Gay/Straight Alliance,’’ a club started at her high school by a fellow student so that students could talk to each other about sexual identity. This innovative club was not well-received, however, by the Salt Lake City Board of Education. They voted to ban the club.1 In fact, the board voted to ban ...

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Two. Taking Rights and Pragmatism Seriously

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pp. 32-47

Dworkin’s resistance to pragmatism is not limited to pragmatic accounts of rights. More generally, he believes that pragmatism cannot provide a coherent answer to the question, ‘‘What is law?’’ His attack on the pragmatist theory of jurisprudence is built around his claim that a pragmatic judge would be indifferent to past political decisions ...

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Three. Posner’s Unpragmatic Pragmatism

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pp. 48-78

I am not the only one who has sought to extricate pragmatism from Dworkin’s charges that it makes a virtue of ignoring history. Richard Posner, who has been developing an account of pragmatism for well over a decade, has also come to pragmatism’s defense. Unfortunately, despite Posner’s spirited effort, endorsing his affirmative view of ...

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Four. Toward a Reconstructive Pragmatism

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pp. 79-97

In defending a pragmatic approach to rights against the charges of Dworkin (for example, that pragmatists ignore precedent), and in seeking to distinguish Dewey’s pragmatic reconstruction of values from Posner’s abdication of criticism, we also began to consider more general themes of a pragmatist jurisprudence. Building on the work of ...

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Five. Reconstructing Judicial Review

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pp. 98-115

We began by considering and rejecting a descriptive claim commonly made by communitarians. According to authors such as Glendon and Sandel, contemporary political and legal discourse is dominated and impoverished by concerns over the rights of individuals. As we saw in chapter 1, however, while there is a great deal of talk about rights, case ...

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Six. Pragmatism, Genealogy, and Democracy

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pp. 116-120

A pragmatic approach to philosophy of law is one that understands itself as part and parcel of existing political conversations about the nature and ends of the polis. Whereas Dewey would talk about ‘‘the public and its problems,’’ I have suggested, given a pragmatic reading of Ackerman, that one should view the addressee of much contemporary ...

Notes

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pp. 121-146

Selected Bibliography

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pp. 147-152

Index

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pp. 153-159