THE HARD CASE IN LAW: A PRAGMATIST READING OF LEGAL DECISION-MAKING

Abstract

This article proposes an interpretation of legal decision-making in hard cases based on pragmatist philosophy. Unlike approaches that emphasize judicial discretion, with greater or lesser argumentative control, it starts from the pragmatist path from doubt to belief, which is central to Charles S. Peirce’s theory of knowledge. In the legal field, where there is a legalized epistemology, in Susan Haack’s terms, it is argued, with Frederic Kellogg, that law learns through successive approximation, transforming hard cases into less hard cases over time. Finally, it is argued that this interpretation makes it possible to understand decision-making processes in plural and complex societies more adequately.