Against Method
measured in American politics, at any rate) is represented by Richard Posner in many of his writings on legal pragmatism. See, e.g., The Problems of Jurisprudence(Cambridge : Harvard University Press , 1990), at 116-117: legal reasoning is“the‘art’ of social governance by rules,” “a craft,” or“a skill such as riding a bicycle or speaking a foreign language.”
116. I have no intention of offering a bibliography to this vast subject. I should mention, though, one famous survey of the intellectual history of this movement in the United States , with special reference to its relevance for legal studies: Morton White , Social Thought in America: The Revolt Against Formalism(New York : Viking Press, 1949). For the observations of leading pragmatists on law, see John Dewey ,“Logical Method and Law,” Cornell Law Quarterly 10(1924), 17-27, and Richard Rorty , note 108, above.
117. A Lexis-Nexis search of American law reviews from the years 1992-2002 produces 823 citations of“Wittgenstein .” Compare this to citations of thinkers more commonly associated with jurisprudence:“Savigny ”(327), and“Salmond”(131). See Dennis Patterson, ed., Wittgenstein and Legal Theory(Boulder: Westview Press, 1992), and Thomas Morawetz,“The Epistemology of Judging: Wittgenstein-and Deliberative Practices,” Canadian Journal of Law and Jurisprudence 3(1990), 35-59.
and Jiirgen Habermas, The Theory of Communicative Action (translated by Thomas McCarthy . Boston : Beacon Press , 1984). On the implications the thought of Gadamer and Habermas(and the controversy between them) for law, see David C. Hoy,“Interpreting the Law: Hermeneutical and Poststructuralist Perspectives,” Southern California Law Review 58(1985), 135-176.
119. I take the title from R. H. Roberts and J. M. M. Good, eds., The Recovery of Rhetoric: Persuasive Discourse and Disciplinarity in the Human Sciences(Charlottesville: University of Virginia Press , 1993). See also Herbert W. Simons, ed., The Rhetorical Turn: Invention and Persuasion in the Conduct of Inquiry(Chicago : University of Chicago Press , 1990), as well the volume by Nelson, Megill, and McCloskey(note 113, above). These studies seek to“recover” rhetoric from the anathema pronounced upon it by Plato and, to a lesser extent, by Aristotle , who contrasted it with dialectic as an approach to inquiry. The goal of this“movement” is to remind us that the forms of human inquiry are inescapably rhetorical(as opposed to methodological). Perhaps the most important contemporary work in the theory of rhetoric as a mode and structure of human knowledge is Chaim Perelman and L. Olbrechts-Tyteca , The New Rhetoric: A Treatise on Argumentation(J. Wilkinson and P. Weaver, translators. Notre Dame : Notre Dame University Press, 1969). See also Stephen Toulmin , The Uses of Argument (Cambridge : Cambridge University Press , 1958), 248: we should demand of arguments“not that they shall measure up against analytic standards but, more realistically, that they shall achieve whatever sort of cogency or well-foundedness can relevantly be asked for in that field.”