Brian E. Butler

_A full account of the Metaphysical Club, featuring the members' philosophical writings and four critical essays._ The Metaphysical Club, a gathering of intellectuals in the 1870s, is widely recognized as the crucible where pragmatism, America's distinctively original philosophy, was refined and proclaimed. Louis Menand's bestseller about the group was a dramatic publishing success. However, only three actual members-Oliver Wendell Holmes Jr., Charles S. Peirce, and William James-appear in the book, alongside other thinkers who were never in the Club. _The Real Metaphysical Club_ tells the full story of how this influential group shifted the course of philosophy in America. In addition to pioneering pragmatism, the group explored radical empiricism and idealism, and formulated personalism and process philosophy, equally important developments. This volume contains the important writings dating from 1870 to 1885 by the real members of the Metaphysical Club. The first section centers on pragmatism and science; the second part collects writings of the lawyers; and the third part covers idealist and personalist philosophers. Many of these writings have never been reprinted before, and nothing like this impressive collection has ever been attempted. A general introduction provides a narrative history, and the editors' three introductions to the volume's sections vividly bring to life the intense meetings, sustained debates, and pioneering thought of the Metaphysical Club.

In this paper I argue that John Dewey developed a philosophy of law that follows directly from his conception of democracy. Indeed, under Dewey’s theory an understanding of law can only follow from an accurate understanding of the social and political context within which it functions. This has important implications for the form law takes within democratic society. The paper will explore these implications through a comparison of Dewey’s claims with those of Richard Posner and Ronald Dworkin; two other theorists that intimately link law and democracy. After outlining their theories I will use the recent United States Supreme Court case, Citizens United, to discuss how practitioners of the three theories would decide a case that implicates both the rule of law and democratic procedures. In order to do this judges following each theory, “Dews, Dworks and Poses,” are imagined. Ultimately this paper will show that drastically different results to Citizens United would follow. The conclusion of the paper is that Dewey’s conception of the relationship between democracy and law is a superior option to either that of Dworkin or Posner.

In this volume, Alessandro Capone and Antonino Bucca’s essay makes a case, based upon the theory of pragmemes and socio-pragmatics, for taking Donald Trump’s statement to Comey, “I hope you will let Flynn go,” as an attempt of the President to get the then Federal Bureau of Investigation Director Comey to illegitimately drop the Russian probe, therefore being an illegal act of obstruction of justice. Their argument rests upon the claim that in this specific case, deniers of obstruction of justice claims, when faced with Trump’s statements, must adopt a false theory of language in order to justify their conclusions. In his response, Richard Warner argues that though much of Capone and Bucca’s claims are convincing, and that much of the analysis of language in their article is accurate, even accepting their pragmeme and socio-pragmatic driven analysis, the content of Trump’s statement to Comey is not unequivocal enough to warrant certainty as to the obstruction claim. In this chapter one conclusion will be that Capone, Bucca and Warner all offer very important arguments useful in the accurate interpretation of Trump’s statement, and for interpretation in law generally. This conclusion will be supported and made more explicit by reading the essays in relation to Karl Llewellyn’s own constitutional theory, a theory that sees the constitution as an institution just partially, even minimally, based upon a purportedly “literal” reading of text. A further conclusion will be that theories of language, implicit or explicit, do indeed inevitably influence the analysis of statements like Trump’s at a very deep and profound level. Yet, thought this is all correct, I will argue that Trump’s statement, in context, cannot be read with such specificity so, in itself, it is sufficient evidence of obstruction of justice.

The Metaphysical Club, a gathering of intellectuals in the 1870s associated with Harvard, is widely recognized as the crucible where pragmatism, America's distinctively original philosophy, was refined and proclaimed. Louis Menand's bestseller about the group was a dramatic publishing success. However, only three actual members - Oliver Wendell Holmes Jr., Charles S. Peirce, and William James - appear in this book, alongside other thinkers such as John Dewey who were never in the Club. The Real Metaphysical Club tells the full story of how this influential group shifted the course of philosophy in America. In addition to pioneering pragmatism, the group explored radical empiricism and idealism, and formulated personalism and process philosophy, equally important developments. This volume contains thirty-seven important writings dating from 1870 to 1885 by the real members of the Metaphysical Club. The first section centers on pragmatism and science; the second part collects writings of the lawyers; and the third part covers idealist and personalist philosophers. Many of these writings have never been reprinted before, and nothing like this impressive collection has ever been attempted. A general introduction provides a narrative history, and the editors' three introductions to the volume's sections vividly bring to life the intense meetings, sustained debates, and pioneering thought from the Metaphysical Club.

In this chapter Alessandro Capone’s claim as the intimate relationship between legal reasoning and indirect reports is investigated through looking at legal citation practices, use of case law, and statutory and constitutional interpretation. Capone’s thought is informed in the chapter through a reference to the work of Ronald Dworkin and Edward H. Levi. The conclusion of the chapter is that Capone is correct that use of indirect reporting in law is ubiquitous and therefore warrants careful study. Further, and opposite of Dworkin’s hope for a univocal use of indirect reports, Levi’s analysis emphasizes the bottom-up, conversational and polyvocal aspects of legal reasoning as is noted by Capone. This in turn requires eliminating the hope for finding or imposing a determinate and univocal meaning on legal citation, case law, and statutory and constitutional interpretation. Instead, continuing dialogue is required. Indeed, legal process should try to include as many voices in the construction of meaning as possible.

Ronald Dworkin in Law’s Empire famously utilized what he described as the “semantic sting” to explain both why the concept of “law” is an essentially contestable concept and because of this why the concept of law is also essentially interpretive. Ultimately Dworkin’s theory makes law and legal practice on all levels turn on, in his terms, an essentially semantic dispute over what the best conception of law is. That is, law is in all its worldly glory ultimately an interpretive concept based upon a conception of meaning centered upon semantics. I argue that law is better analyzed as a set of embodied and socially embedded practices and that emphasis upon the interpretive or “semantic” aspects of law crowds out the more important behavioral and concrete aspects of legal practice. The claim in this chapter is simply that even the most sophisticated conceptual or semantic analysis of law in terms of a core set of concepts is indefensibly reductionist. If semantic theories of law have a tendency to crowd out the recognition of practices, of embodied social ways of life, then the real “semantic sting” is in accepting the semantic move, and not in any disagreement over how semantic content is to be identified.

48 pages | 6 x 9 | © 2017 The Supreme Court is seen today as the ultimate arbiter of the Constitution. Once the Court has spoken, it is the duty of the citizens and their elected officials to abide by its decisions. But the conception of the Supreme Court as the final interpreter of constitutional law took hold only relatively recently. Drawing on the pragmatic ideals characterized by Charles Sanders Peirce, John Dewey, Charles Sabel, and Richard Posner. Brian E. Butler shows how this conception is inherently problematic for a healthy democracy. Butler offers an alternative democratic conception of constitutional law, “democratic experimentalism,” and applies it in a thorough reconstruction of Supreme Court cases across the centuries, such as Brown v. Board of Education, Citizens United v. Federal Election Commission, Lucas v. South Carolina Coastal Council, and Lochner v. New York. In contrast to the traditional tools and conceptions of legal analysis that see the law as a formally unique and separate type of practice, democratic experimentalism combines democratic aims and experimental practice. Butler also suggests other directions jurisprudential roles could take: for example, adjudication could be performed by primary stakeholders with better information. Ultimately, Butler argues persuasively for a move away from the current absolute centrality of courts toward a system of justice that emphasizes local rule and democratic choice.