Regels als handelingsinstrument: het rechtsbegrip van Dewey en Van Loon

textabstractIn this paper, I construct a pragmatist theory of legal dynamics. John Dewey’s pragmatism is the starting point for my theory of law. Central to that theory is that law is to be regarded as an interactional practice oriented towards legal values. The core meaning of the concept of law therefore focusses on people’s activities, not on a system of rules. The dynamics of law are influenced by at least two factors often neglected by mainstream legal philosophy: pluralism of norms and practices, and pluralism of lawmakers. By explaining how different legal practices bring about their own norms and how conflicts between these norms are negotiated, I will argue that the dynamics of law are not so much a result of conscious lawmaking but of changing practices. Conscious lawmaking (legislation, regulation) is an important legal practice, but I will argue that the process includes a host of different actors both on a (sub)national and transnational level, such as non-state institutions and groups of citizens, so that it is not only legal officials who make the law. Pragmatist ideas such as the primacy of practice and problem-solving, the continuity of fact and value, and the importance of individual creativity, can thus be used to generate an account of law as a pluralist, problem-solving, value-oriented practice. This pragmatist account can be used to underpin the pluralism of legal orders that is central to the rule of law programme. It can therefore be regarded as a contribution to the conceptual development of the rule of law idea