Pragmatism and the law

I was planning on writing something about pragmatism and the Suncor case here. 

But I won't.  I'll start my inquiries further back. 

Let us begin with a notorious comment by Oliver Wendell Holmes Jr., in "The Path of the Law" (1897). Holmes and the guiding spirit of this blog, William James, certainly knew each other well, in part because their fathers were friends. James and Holmes Jr. seem to me to have been frenemies.  Still....

The comment I have in mind is a definition of law from the lawbreaker's point of view. Law is "the prophecies of what the courts will do in fact, and nothing more pretentious." That is, indeed, what one usually means when asking a lawyer" what is the law about X?"  One means "I have done X, or I am asking for a friend -- what will happen to me/my friend?"

What does James say?  Look to Lecture VI of Pragmatism and you find this:

 Common-Law judges sometimes talk about the law, and schoolmasters talk about the Latin tongue, in a way to make their hearers think they mean entities pre-existent to the decisions or the words and syntax, determining them unequivocally and requiring them to obey. But the slightest exercise of reflection makes us see that, instead of being principles of this kind, both law and Latin are results.

James is here using "the law" as an example of excessive intellectualization -- a tendency to which pragmatism is of course definitionally opposed. 

But James in that passage couples law with Latin -- a dead language, one that is no longer subject to the change constantly present in languages of millions of speakers using them in their daily lives. 

A more interesting coupling would be of law with English.  With English, we in our usages today are helping to determine what the 22d century shall see as proper English. 

With the law, I submit, a pragmatist can rightly see the same. I'm afraid that Holmes' formulation above is more forward-looking than James.  Between the two of them, though, they may induce us to wonder about this judge whom the lawyer (consulted by a lawbreaker) may be trying to predict.

What does the judge think the law is?  A prediction of what the appellate judges might say?  To some extent at least, law must also be an effort to grasp and to some extent to determine what the judges of the future shall be in a position to do. This is so if they live and work within a continuing jurisprudential tradition and not just something ossified into history books.  Once we are out of the realm of Latin into that of English, we can see I submit that we are not just trying to prophecy the future but to make it. 

I still do hope to get back to Suncor in this spirit.