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Pragmatism v. Originalism: A Mistrial?

Pragmatism v. Originalism: A Mistrial? Contemporary Pragmatism Vol. 10, No. 2 (December 2013), 79­96 Editions Rodopi ©2013 Judicial interpretation is fundamental to the nature and working of law. The doctrine of originalism holds that judicial interpretation is best informed by adhering to the original intent or understanding of the framers of the law. Legal pragmatism holds that judicial interpretation is future-oriented, with ineliminable normative (goaldirected) features that extend beyond past and present interpretations. They do rely on different conceptions of the nature of language, including legal language. However, although there are strong pragmatist arguments against originalism, the two are not necessarily at odds. Both can accommodate past understandings and semantic fluidity, preserving the predictability and plasticity valued in legal interpretation. Originalism is not necessarily antithetical to pragmatism. In 2007, Shirley Katz, a high school teacher in southern Oregon, went to court to challenge her school's policy that prevented her from bringing her legally owned pistol to her workplace. She had a concealed weapons permit and claimed that she needed to bring her weapon to school because she feared for her personal safety; she had taken out several restraining orders against her former husband and she feared that he might appear at her workplace http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Contemporary Pragmatism Brill

Pragmatism v. Originalism: A Mistrial?

Contemporary Pragmatism , Volume 10 (2): 79 – Apr 21, 2013

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Publisher
Brill
Copyright
© Copyright 2013 by Koninklijke Brill NV, Leiden, The Netherlands
ISSN
1572-3429
eISSN
1875-8185
DOI
10.1163/18758185-90000260
Publisher site
See Article on Publisher Site

Abstract

Contemporary Pragmatism Vol. 10, No. 2 (December 2013), 79­96 Editions Rodopi ©2013 Judicial interpretation is fundamental to the nature and working of law. The doctrine of originalism holds that judicial interpretation is best informed by adhering to the original intent or understanding of the framers of the law. Legal pragmatism holds that judicial interpretation is future-oriented, with ineliminable normative (goaldirected) features that extend beyond past and present interpretations. They do rely on different conceptions of the nature of language, including legal language. However, although there are strong pragmatist arguments against originalism, the two are not necessarily at odds. Both can accommodate past understandings and semantic fluidity, preserving the predictability and plasticity valued in legal interpretation. Originalism is not necessarily antithetical to pragmatism. In 2007, Shirley Katz, a high school teacher in southern Oregon, went to court to challenge her school's policy that prevented her from bringing her legally owned pistol to her workplace. She had a concealed weapons permit and claimed that she needed to bring her weapon to school because she feared for her personal safety; she had taken out several restraining orders against her former husband and she feared that he might appear at her workplace

Journal

Contemporary PragmatismBrill

Published: Apr 21, 2013

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