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Published : April 21, 2016 | Author : Manmeet Singh
Category : Jurisprudence | Total Views : 832 | Unrated

  
Manmeet Singh
I am B.A.LL.B (Hon's) final year of LL.M at Himachal Pradesh University
 

Pragmatic Approach to Law

Pragmatism is a philosophical tradition that began in the United States around 1870. Pragmatism rejects the idea that the function of thought is to describe, represent, or mirror reality. Instead, pragmatists consider thought an instrument or tool for prediction, problem solving and action. Pragmatists contend that most philosophical topics—such as the nature of knowledge, language, concepts, meaning, belief, and science—are all best viewed in terms of their practical uses and successes.

Pragmatism is considered a process rather than a result, and the pragmatic approach attempts to validate all participatory variables in a solution to a moral problem. While those in line with Kant’s categorical imperative see these problems in terms of their dualism, or “is/ought” problems, the pragmatists in line with the philosopher Kierkegaard discard this view altogether for one that reveals how issues and problems and components thereof are related to each other. In effect, there are no hierarchies involved in the pragmatic approach, nor categories in the development of the problem.

Pragmatism is a philosophical tradition that began in the United States around 1870. Pragmatism rejects the idea that the function of thought is to describe, represent, or mirror reality. Instead, pragmatists consider thought an instrument or tool for prediction, problem solving and action. Pragmatists contend that most philosophical topics—such as the nature of knowledge, language, concepts, meaning, belief, and science—are all best viewed in terms of their practical uses and successes.

A few of the various but interrelated positions often characteristic of philosophers working from a pragmatist approach include:

· Epistemology (Justification): a coherentist theory of justification that rejects the claim that all knowledge and justified belief rest ultimately on a foundation of noninferential knowledge or justified belief. Coherentists hold that justification is solely a function of some relationship between beliefs, none of which are privileged beliefs in the way maintained by foundationalist theories of justification.

· Epistemology (Truth): a deflationary or pragmatist theory of truth; the former is the epistemological claim that assertions that predicate truth of a statement do not attribute a property called truth to such a statement while the latter is the epistemological claim that assertions that predicate truth of a statement attribute the property of useful-to-believe to such a statement.

· Metaphysics: a pluralist view that there is more than one sound way to conceptualize the world and its content.

· Philosophy of science: an instrumentalist and scientific anti-realist view that a scientific concept or theory should be evaluated by how effectively it explains and predicts phenomena, as opposed to how accurately it describes objective reality.

· Philosophy of language: an anti-representationalist view that rejects analyzing the semantic meaning of propositions, mental states, and statements in terms of a correspondence or representational relationship and instead analyzes semantic meaning in terms of notions like dispositions to action, inferential relationships, and/or functional roles (e.g. behaviorism and inferentialism). Not to be confused with pragmatics, a sub-field of linguistics with no relation to philosophical pragmatism.

· Additionally, forms of empiricism, fallibilism, verificationism, and a Quinean naturalist metaphilosophy are all commonly elements of pragmatist philosophies. Many pragmatists are epistemological relativists and see this to be an important facet of their pragmatism (e.g. Richard Rorty), but this is controversial and other pragmatists argue such relativism to be seriously misguided (e.g. Hilary Putnam, Susan Haack).

Charles Sanders Peirce (and his pragmatic maxim) deserves much of the credit for pragmatism, along with later twentieth century contributors, William James and John Dewey. Pragmatism enjoyed renewed attention after W. V. O. Quine and Wilfrid Sellars used a revised pragmatism to criticize logical positivism in the 1960s. Inspired by the work of Quine and Sellars, a brand of pragmatism known sometimes as neopragmatism gained influence through Richard Rorty, the most influential of the late twentieth century pragmatists along with Hilary Putnam and Robert Brandom. Contemporary pragmatism may be broadly divided into a strict analytic tradition and a "neo-classical" pragmatism (such as Susan Haack) that adheres to the work of Peirce, James, and Dewey.

The word pragmatism derives from Greek πρᾶγμα (pragma), "a thing, a fact", which comes from πράσσω (prassō), "to pass over, to practise, to achieve". The word "Pragmatism" as a piece of technical terminology in philosophy refers to a specific set of associated philosophical views originating in the late twentieth-century. However, the phrase is often confused with "pragmatism" in the context of politics (which refers to politics or diplomacy based primarily on practical considerations, rather than ideological notions) and with a non- technical use of "pragmatism" in ordinary contexts referring to dealing with matters in one's life realistically and in a way that is based on practical rather than abstract considerations.

Pragmatist or Pragmatism

The pragmatists are interested in transformation of ethical character based on moral action on a holistic level. Pragmatism is considered a process rather than a result, and the pragmatic approach attempts to validate all participatory variables in a solution to a moral problem. While those in line with Kant's categorical imperative see these problems in terms of their dualism, or "is/ought" problems, the pragmatists in line with the philosopher Kierkegaard discard this view altogether for one that reveals how issues and problems and components thereof are related to each other. In effect, there are no hierarchies involved in the pragmatic approach, nor categories in the development of the problem. There is only the approach itself, holistically aimed. The task, then, is to find solutions that make the most sense in the simplest way possible. It is assumed that a solution can be found because everyone can reason and most do reason to get to the actions that they do, thus absolving all sides of the the blame for a problem for the sake of reaching the solution. It is assumed that you can aim for the truth in a solution, but it is also assumed that an ultimate truth will never be reached, so that the ethic is centered in the aiming itself. In this view each node of the relationship between components of this approach is regarded on equal basis with any other, and so in the process of reconciling these components a series of benefits and problems in the pragmatic approach can be speculated.

Origin
Pragmatism as a philosophical movement began in the United States in the 1870s. Its direction was determined by The Metaphysical Club members Charles Sanders Peirce, William James, and Chauncey Wright, as well as John Dewey and George Herbert Mead.

The first use in print of the name pragmatism was in 1898 by James, who credited Peirce with coining the term during the early 1870s. James regarded Peirce's 1877–8 "Illustrations of the Logic of Science" series (including "The Fixation of Belief", 1877 and especially "How to Make Our Ideas Clear", 1878) as the foundation of pragmatism. Peirce in turn wrote in 1906 that Nicholas St. John Green had been instrumental by emphasizing the importance of applying Alexander Bain's definition of belief, which was "that upon which a man is prepared to act." Peirce wrote that "from this definition, pragmatism is scarce more than a corollary; so that I am disposed to think of him as the grandfather of pragmatism." John Shook has said, "Chauncey Wright also deserves considerable credit, for as both Peirce and James recall, it was Wright who demanded a phenomenalist and fallibilist empiricism as an alternative to rationalistic speculation.”

Benefits
William James wrote that "there is no such thing possible as an ethical philosophy dogmatically made up in advance." (1) Pragmatism dictates both that theory is necessary to any practice and that what we discover in practice must feed back into and modify our initial theories. An example if this construct in action would be when the concept of human rights has been modified in the process of resolving conflicts therein to include issues of animal rights and the rights of Earth herself. The pragmatic approach by its very nature allows for this dynamic interplay between theory and practice, since it is assumed that an ultimate truth cannot be reached in the first place and so the process is always "under construction." There are few philosophical forums today wherein this sort of dynamo can prosper, and so that benefit in itself forms the basis for all other benefits of a pragmatic approach.

In a conflict resolution utilizing the pragmatic approach, it would not be assumed that a static result would be achieved, but that a dynamic understanding could be reached allowing for changes to occur naturally as they evolve. For example, in border disputes, it could be reasoned that instead of a static physical border being designated to separate groups and establish ownership, a dynamic non-physical border could be constructed on the basis of flux in the variables agreed by both parties to be in the interest of all. Variables may be determined by the changing demographics of a space. A minority population ruling a majority population can thus be avoided, with the supposition that if the population shifts the other direction, a new ruling body must be determined. This is, of course, a version of "majority rules" and is in effect how democracy is supposed to work, but as it is applied to, say, the United States today, other variables that are equally important are not taken into effect, such as the defining of territories and the migration of populations within the border of the U.S. itself. For instance, predominantly "white male legislators" as a group in Los Angeles County are of the racial minority group when all other racial groups now designated with the status of "minorities" are lumped together as one representational group. The changing dynamic of the demographics in that territory make conflict resolution based on a static ethic of right and wrong regardless of cultural differences contradictory at best. That may explain why conflict resolution between representational cultural groups in Los Angeles County fails more often than it succeeds.

Another benefit of a pragmatic approach to conflict resolution is that time is not wasted on designating blame for a problem. There is the assumption that the parties to a problem all share some relationship to the problem and to the solution, and so the issue of who is to blame is moot. It is obvious how this approach could help unclog the overloaded court systems nationwide. In fact, the process of restorative justice in the court systems is a step towards this pragmatic approach to conflict resolution. The restorative justice process allows victims and perpetrators to come together and agree on a solution to the mutual problem of compensating the victim and rehabilitating the perpetrator. Instead of spending time in the courts measuring blame and meting out punishment, restorative justice proceedings are about solutions, and that time is spent by mediators outside of the courtroom to negotiate restitution based on the outcome of a problem and not on who did what to whom. Restorative justice could be said to be a direct outcome of an applied pragmatic approach to conflict resolution. Though the process is still in its infancy and so therefore cannot be determined yet as a complete success or failure (as if such a static determination could be made), the results so far nationwide are hopeful. In Portland, at least, the process seems to be working not only for the good of the parties involved in a dispute or parties to a crime, but for the good of the community as well. The evidence of this success is in the continued establishment of community courts throughout the metro area and the (so far) good reviews of proceedings of these courts.

A Pragmatic Approach to Global Law
1. A Provocative Question
How should one think about global law? This is a provocative question because it presupposes an answer to another question, no lesser than the first one : does global law even exist? Nothing is less certain. One may certainly speak about a globalization movement, which is not always all that global; one can deal with global finance and global economy and bring up global issues, such as the struggle against global warming. But may one truly speak of a “global law”, when law remains, at least on the surface and in official addresses, the prerogative of the State or, in the case of international law, of the States ? Wouldn't it be wiser to talk about “the effects of globalization on the law” rather than to invoke a “global law”?

A provocative question also in the sense that it catalyses thought, reflection, inasmuch as by presupposing its object it allows one not only to consider – which is a prerequisite – the destructive effects of globalization on existing legal structures, both national and international, but also to discern and to conceptualise the new legal objects, often still unidentified or not properly identified, which emerge from transnational relations and the global society under construction.

These multiple and heterogeneous devices, that proliferate, often in anarchical ways, in the most globalized fields, challenge the understanding of lawyers by the extraordinary diversity of their origins, their shape or their effects and by the apparent randomness of their arrangement and their combinations. However, they account for the necessary horizon of the legal philosopher and of the legal theorist of the 21st century. We are compelled, and this is not the first time in our history, to rethink law at the scale of the whole world.

We are urged by the changes in the world, and in legal relations and regulations, to re-evaluate the principles, concepts and tools of modern law, which have been established for several centuries - firmly entrenched it was thought – but which reveal more and more clearly the limits of their relevance and their effectiveness to capture their objects and to put them across. We are forced to reconsider the classifications and categories in which the new objects that emerge every day, akin to platypuses of the normative bestiary, stubbornly refuse to be encapsulated. To tell the truth, these categories are so undermined that it might be necessary to rethink the legal norms anew, not to say law itself, and probably to resolve to invent a new logic of norms. It just so happens that these are the tasks of the legal philosopher and of the legal theorist, towards which – as always in periods of paradigm crisis - the law professors and often the practitioners themselves turn to, but also the philosophers and the whole of society in demand of law, and above all our students, particularly the most advanced ones.

As Claude Lévi-Strauss wrote, in a short commentary of 1968: “The essential task of the person who devotes his life to human sciences is to tackle that which seems the most arbitrary, the most anarchic, the most incoherent, and to attempt to discover an underlying order or at least to try to see whether such an order exists”.

Methodological Issues
2. Field Studies and UNOs
The “Global Law” program is the central research program of the Perelman Centre for Legal Philosophy. The Centre was named after one of its founders, Chaïm Perelman, leader of the Brussels School of Jurisprudence, and has developed and applied his pragmatic approach to the current transformations of law induced by globalization. The Global Law Program started some fifteen years ago with the study of the consequences of globalization on law and governance, and progressively focused on the emergence of new forms of regulation in different sectors. Our pragmatic approach of legal phenomena has led us to study the consequences of globalization on law, not grounded in an existing theory, but rather by starting empirically from case studies and field observations. We conducted several field studies in areas particularly affected by globalization, such as the regulation of the Internet and of virtual worlds, the fight against climate change, but also corporate social responsibility, human rights transnational litigation, financial and accounting regulation, technical standards and indicators, as well as the European Union as a laboratory of global law. In order to do that, we often started from specific cases (such as the Yahoo! case about the Internet, the Nike case about CSR, the Unocal-Total case about HR transnational litigation), which we studied in great depth, without limiting ourselves to a strict approach of positive law, but on the contrary by providing a 360-degree view on the case, and by taking into account data that are still too often considered irrelevant from a legal perspective: media reactions, strategies of actors, technical constraints, economical consequences, etc.

These case studies often put us on the track of what we call “UNOs” -which stands for Unidentified Normative Objects –whose legal character is uncertain or challenged, but which produce or aim to produce regulation effects. In these fields and in the case studies, perhaps unconsciously following Lévi-Strauss' invitation, we have often favoured quirky, strange, new and puzzling objects, betting that their strangeness itself was a sign of the value of what they could teach us. And we set off on the tracks of these strange creatures through the jungle of global relations, rather like the zoologist sets off to find new species, while comparing them to known animals and attempting to classify them into families. That is how, in each successfully explored area (naturally, we have also been confronted to deadlocks), we have been able to highlight some specific regulatory “dispositifs”, apparatus or normative devices. Then, still moving in the direction that leads from practice to theory, we compared these different sectorial apparatus and, on the basis of isomorphisms that we were able to observe, we developed a few general hypotheses and designed a few conceptual tools.

3. Conceptualizing Law without Legal system – The Micro – Legal approach
This pragmatic approach to global law implies some methodological choices. These choices must be explained for they have important consequences. Firstly, our study of global law is not a global study of law, at least not a priori. Economists usefully distinguish between two branches of their discipline, which also determine two points of view: macroeconomics and microeconomics. Such a distinction of level and of method also exists in other social sciences such as history and sociology. By analogy, we could also distinguish between a macro-legal and a micro-legal approach. The macro-legal approach gives priority to the study of the legal system of norms. The micro-legal approach determines how to decide cases and allocate rights. The concept of legal system, on the one hand, and the case method, on the other, are the two frames that history has given us to think about law. The case method was handed down to us by the Ancients, through Antiquity and the Middle Ages, while the concept of legal system was imposed by the Moderns, especially on the continent. In continental Europe, the “legal system” was imposed in such a way that when we study law, we almost always give priority to the macro-legal approach, as if there were no other, at least no other scientifically valid approach. It is of course through this form that we consider national legal systems. Moreover, we have extrapolated this concept by applying it to supra-State levels. As soon as 1963, the Court of Justice of the European Union asserted that “the Community constitutes a new legal order of international law.”

Legal theory therefore tackles the question of global law by looking for a global system and noticing that such a system does not exist, which is indeed the case. It follows, for a large number of law professors, that the concept of “global law” does not make any sense and does not deserve any further consideration. In the absence of a legal system on a world scale, there is not such thing as “global law”. At the most one can bemoan or denounce the disorder –or the chaos –that prevails at a world level in the area of law. A way of escaping this deadlock is to resort to the solution of pluralism, developed notably by Santi Romano. Romano contested monism (the approach centred exclusively on the state legal order) by showing that there are in our societies not one, but several legal orders, that coexist and have various relationships between themselves. Pluralism can therefore be called upon to think about global law, no longer as a unique order –that cannot be found in reality –but rather as an interrelated constellation of legal systems.

This option is favoured by numerous important studies on globalization, notably in France, by Mireille Delmas-Marty in her theory of the “pluralisme ordonné.” Our position is not about replacing monism by pluralism, replacing the legal order with a plurality of legal orders, but rather about simply doing without the concept of legal order to immediately consider norms and legal interactions between actors as such, independently of any legal order(s) into which they would fit. I understand that this choice will raise fundamental objections from the perspective of legal theory and that it will be considered by many as absurd. Indeed, it is generally taught that a norm cannot exist by itself, but that it only takes on meaning and takes effect within a set or system of norms, to which the norm necessarily belongs.

Why then give priority to this radical option? For a reason that is both simple and decisive in the eyes of a pragmatist: because the phenomena and objects that we observe in practice force us to do so. Most often the cases and normative devices that we examine on our various global field studies either cross the borders of established legal systems, or are located outside of these. Some even borrow their material from several legal systems. In sum, Occam's razor leads us to abstain from assuming the existence of a system where it is clear to everyone that there is none. In other words, the concept of the legal system, as it was created in the 17th century and that used to be so important, appeared to us as an obstacle, a screen, rather than a help or a tool to comprehend and understand the emergence of global norms. Accordingly, it seemed appropriate and urgent to break loose from it. This does not divert us from the objective mentioned by Lévi-Strauss to discover the “underlying order” in the infinitely diverse and quirky phenomena. Reality brings about this riddle but gives us doubts about finding the secret of the new order in the old one.

4. Methodological Nationalism
All the more so that the concept of legal system (or legal order) does not only have a logical aspect (an ordered and complete set of consistent rules), but also an important political aspect, whose relevance must be reassessed in a global perspective. The legal order is indeed very often understood and used as an instituted order established by an authority, better yet by a sovereign authority, typically a State. In this respect, the notion of “order” refers not only to a system, but also to a command imposed by the authority to its subjects under the treat of sanctions. Historically, the construction of a legal system and the assertion of a sovereign political order have been the two sides (knowledge and power) of the same royal coin.

The logical and political aspects of the legal order merge to form a simple and rather rigid equation: law = legal order = State. Thus for many philosophers, conceptualising global law (or “cosmopolitical law” to use another term) does not only imply thinking about a new world order, but also implies almost necessarily, even if aporetically, asking the question of the existence of a world State. Some, such as Hans Kelsen, regard the law and the State as synonyms and consider that there is no other law than the law created by the States, i.e. national legal orders and an international legal order, made up of the law that States create together. We believe, for our part, that we must break off from this expression of what the German sociologist Ulrich Beck calls (well beyond law and legal thinking) the “methodological nationalism”, while other speak of “statocentrism.”

To conceive law as a State order would only be accurate from the perspective of sovereignty. It just so happens that if the world in which we live is certainly not a world without States (the UN tallies almost 200), it is, today as in the past, a world without a Sovereign. Indeed, the world State is not likely to happen soon. This is probably a good thing according to Immanuel Kant, who taught that a world State would necessarily take the shape of a dictatorship. In a world without a Sovereign, the States are forced to behave as actors among others. The State, sovereign (up until a certain point) within its own territory, loses all sovereignty (despite what international public law says) as soon as it crosses frontiers and must compromise with other forces. These forces are those of other States of course, but also those of other kinds of actors of the world society, such as international organisations and non-governmental organisations, or transnational firms and their networks.

Realists are well aware that we live in a multi-polar world on a long term basis. Most of them divert their attention from the concept of a “world State” to the issue of “global governance”. This notion of « governance », borrowed from political scientists and managers, is worthwhile and could, in the fuzziness that is inherent to it, be useful to describe some co-regulatory devices. However « global governance » overly emphasizes the organs, institutional structures and decision-making procedures, to the detriment of norms, objects and devices themselves. Empirical observation teaches us that norms are not necessarily produced by the structures of inter-state or para-state governance that are most often pointed out (international organizations, G8, G20, etc.) so that we prefer to refrain from reducing a priori global normativities to by-products of more or less official institutions of global governance.

5. Ubi Societas Ibi Ius. –The Law of the Global Civil Society
We have thus got rid, quite expeditiously I am afraid, of the legal system and of legal sources in order to understand global law. But what should we replace them with? How should we characterise the global environment if not as a super-State nor as a legal system? If we refer to the prevailing tradition of modern political philosophy, we would be left to think of the global environment as a “state of nature”. Here we are, back to Hobbes, who once described the international society of his times as a state of nature inhabited by Leviathans actually or potentially at war with one another. No social contract links those Leviathans with one another. Hobbes thinks of the state of nature –to say it very briefly –as a lawless state where the right of each person knows no other limit than his power or the limit imposed by another's power. In Hobbes' state of nature, individuals are completely on their own and there is almost no society at all. However, some of his successors, especially in the jusnaturalist or liberal tradition, believed, as Locke did, that some kind of society might actually exist in the state of nature, in which individuals may claim and even enjoy natural rights, particularly the recognition of their property. As the Romans said long ago : ubi societas ibi ius. There is no human society without law (but there are human societies without a State). Moreover the great Hegel, who was neither liberal nor jusnaturalist and who thought of the State as the ultimate form of government, taught that a private law grounded in persons, ownership and contracts, necessarily precedes State’s Law, logically if not chronologically. And one may observe the emergence of pre-political institutions, such as corporations and guilds, within this sphere of private law (civil and commercial law), before the emergence of public law.

6. Transnational Human Rights Litigation
Cases such as Yahoo! and Nike show that forum shopping is not only used by private actors –especially firms –to escape duties, taking advantage of the favorable conditions created by globalisation. Indeed, the same technique is used by other players, notably NGOs, to subject those same firms to rules from which, it seemed, it was possible to escape, under the traditional rules of international private and in particular the territoriality of police laws.

This opportunistic use of forum shopping for the purpose of implementing international standards of justice or to penalize the violation of fundamental rights is a very distinct hallmark of transnational human rights litigation. This type of litigation was highlighted in Europe with the Pinochet case. Pinochet was blocked in England at the request of Spanish and Belgian investigating judges, who were acting on the appeal of Chilean victims of the dictator, even though an amnesty law protected him in that country. That type of legal action is more and more frequently used to take proceedings against firms that are allegedly guilty of violations of human rights or of humanitarian law. For example, two large petrol companies –the French “Total” and the American “Unocal” –were successively confronted with proceedings in the US, in France and in Belgium. Those firms were charged for aiding and abetting crimes allegedly committed by the Burmese army (which was, on the other hand, immunised from proceedings on account of the absolute immunity of jurisdiction of States), as part of the exploitation of a gigantic gas field in Burma. In that case, the NGOs representing the victims used every procedural means available, notably active and passive personal jurisdiction, but also awaking an old law of 1789 in the US (the Alien Tort Claim Act), or even the universal jurisdiction statute enacted in Belgium (who for a while thought it good to offer in this global context “judicial hospitality” to the whole world, before having to back down, under the pressure of the US). The case was in part political. It aimed to denounce to the tribunal of public opinion the crimes of the Burmese regime and to blame the western gas companies for their shameful complicity. At the same time, the case aimed to get a court declaring Unocal or Total legally responsible for their behaviour to the victims. Although the case collapsed in Belgium after an epic battle that pitted the two highest courts of the country against each other, it resulted, in the US and in France, in a compromise allocating significant compensation to the victims.

Thus, some national judges become the disputed agents of a de-localised global justice. Indeed, victims (or the organisations representing them), deprived of the possibility to lodge an appeal before the internal judge and often also before the international judge, use all procedural means to make those agents the oracles of a budding global justice.

A Pragmatic Approach to Legal Regulation
The Legal Profession Act (2004) (the Act) regulates the legal profession in Victoria, Australia. Regulation of the legal profession is integral to the promotion of appropriate standards of conduct and the protection of the interests of consumers of legal services. In the current climate of rights-oriented consumerism, regulation must also continue to evolve to reflect the changing expectations of consumers and culture in the legal profession. It also needs the application of the kind of practical wisdom Aristotle and Barry Schwartz refer to that involves improvising to achieve the right aims.

There are many competing demands in the task of legal regulation. Lawyers expect regulation to be reasonable and sensible in light of what is required to maintain the high standards they expect of their own profession. Consumers of legal services expect from the profession a high level of trustworthiness and competent, valuable service, and they want their grievances redressed where they believe these standards have not been met. Society as a whole recognises the importance of the integrity of the legal profession, and expects the regulator to maintain the standards. Regulation of the profession is therefore a complex task; a living and dynamic activity.

2009: A Regulatory In Crisis
Towards the end of 2009, the Legal Services Commissioner (LSC) was a regulator in crisis. Since the commencement of the Act in December 2005, the LSC had been the body primarily responsible for handling complaints about the legal profession. The crisis at hand was focussed on this important task.

After receiving a number of complaints from lawyers and complainants and conducting follow up investigations, the Victorian Ombudsman conducted a review of the complaint handling processes and procedures of the LSC. The review identified a number of systemic problems arising from the management of complaints, which included

· delay in investigating and finalising complaints,

· poor practice in dealing with minor service-related complaints,

· poor investigatory techniques, including failure to use investigation plans, poor evidence gathering, and failure to substantiate and verify lawyers’ explanations,

· denial of procedural fairness to parties, through an opaque and poorly explained process; and

· inadequate documentation and explanation of decisions.

The Ombudsman expressed concern at the low number of substantive prosecutions of lawyers for serious misconduct, commenting that “The lack of results suggests that the current practices of the LSC are inadequate in order for it to fulfil its statutory obligations. The LSC is at risk (if the view is not already held) of being seen as a ‘toothless tiger’ by both the legal profession and complainants alike. The end result is that the legal profession is under regulated and consumer confidence in the legal profession undermined.”

The Ombudsman made several recommendations to the LSC for improving complaint handling processes and procedures to ensure that complaints and disputes were dealt with in a timely and effective manner. Recommendations, which were subsequently implemented, included the thoughtful use of investigation plans; ensuring staff undertake relevant training; and considering more appropriate response to what were essentially not disciplinary matters but customer service complaints.

A narrow, legalistic interpretation, of the legislative framework
We saw that we were looking at the Act in a narrow, legalistic way in the development of the complaints handling process then employed by the office.

Under the Act, complaints regarding lawyers are categorised as a civil complaint, a disciplinary complaint or both. Civil complaints are primarily disputes between lawyers and their clients, which are further categorised into costs disputes,pecuniary loss claims or any other genuine disputes. Disciplinary complaints are defined as complaints about a lawyer’s conduct that would, if proved, amount to ‘unsatisfactory professional conduct’ or ‘professional misconduct’, and disciplinary complaints must be investigated.

It should also be noted that the Commissioner may summarily dismiss complaints on certain grounds.

While the Act is quite prescriptive about what constitutes a civil complaint and what constitutes a disciplinary complaint, many complaints received by the office do not fall strictly within either category. Our statistics indicate that in any given period, about 35% of the complaints received fall into the Act’s category of a civil dispute and about 15% would amount to a disciplinary complaint. It is quite rare to receive a complaint about dishonesty, theft, fraud or other serious misconduct that would ordinarily attract a prosecution, although complaints that may warrant some kind of lower level disciplinary action are relatively common.

About 50% of complaints received however, fall into neither category. In fact, the vast majority of complaints are largely about a universal consumer issue: the breakdown of the adviser-client relationship. They usually relate to a failure to communicate, uncertainty or inadequacy relating to costs disclosure, issues of timeliness, unclear advice and lack of attentiveness, or lack of value for money. So this leaves a question – what should the regulator do with these ‘none of the above’ complaints?

A narrow, legalistic conception of the task of regulation
Anecdotally, a narrow, legalistic outlook is common in regulators of the legal profession. It is a traditional notion of regulation described as command and control. Under this model, the regulator enforces rules and laws created by government to the exclusion of the many other ways in which regulation can be carried out. The model has also been described as the policing model of regulation. The Hon Wayne Martin, Chief Justice of Western Australia, in his presentation paper to the Conference of Regulatory Officers in 2009 noted that

‘one of the assumptions which is inherent in that model is the imposition of a punishment that fits the crime. So, if the practitioner’s transgression was not particularly serious, ineffective sanctions like admonition or a fine were generally utilised, even though the nature of the transgression might have demonstrated a basic lack of aptitude or character necessary for the practice of law.’

The task of the regulator in handling complaints is conceived as being similar to that of the police, looking for crimes to prosecute, in relation to which the complainants are not parties but merely witnesses. Larger systemic issues, such as the suitability of the person to be a lawyer, or a consistent failure to provide appropriate customer service, are ignored by this model. In a number of cases, despite the regulator being aware of systemic problems in the way a practice is being run, the lawyer may continue to practice without pointed and appropriate intervention, until significant problems occur. As Martin CJ succinctly described it, ‘often it was a bit like watching a train wreck in slow motion, powerless to do anything to stop it’.

Pragmatism and Indian Experience
Ground Water Management
India is the largest groundwater user in the world, with an estimated usage of around 230 cubic kilometres per year, more than a quarter of the global total. With more than 60 percent of irrigated agriculture and 85 percent of drinking water supplies dependent on it, groundwater is a vital resource for rural areas in India. Reliance of urban and industrial waste supplies on groundwater is also becoming increasingly significant in India. Through the construction of millions of private wells, there has been a phenomenal growth in the exploitation of groundwater in the last five decades.

A number of factors have encouraged the remarkable expansion of groundwater use:

· Poor service delivery from public water supply systems has prompted many farmers, and rural and urban households, to turn to their own private supply for irrigation and for drinking water.

· New pump technologies meant that even farmers and households with very modest incomes could afford to sink and operate their own tubewell.

· The flexibility and timeliness of groundwater supply presented an attractive alternative to the technically and institutionally less responsive provision of surface water through public systems.

· Government electricity subsidies have shielded farmers from the full cost of pumping, creating a modality of groundwater use that has proved very difficult to change.

This era of seemingly endless reliance on groundwater for both drinking water and irrigation purposes is now approaching its limit as an increasing number of aquifers reach unsustainable levels of exploitation, and a 2004 nationwide assessment found 29 percent of groundwater blocks to be in the semi-critical, critical, or overexploited categories, with the situation deteriorating rapidly.

The potential social and economic consequences of continued weak or nonexistent groundwater management are serious, as aquifer depletion is concentrated in many of the most populated and economically productive areas. The implications are disturbing for attainment of the Millennium Development Goals, for sustaining economic growth and local livelihoods, and for environmental and fiscal sustainability. The consequences will be most severe for the poor. Furthermore, climate change will put additional stress on groundwater resources, while at the same time will have an unpredictable impact on groundwater recharge and availability.

World Bank Study and Technical Assistance Initiative on Groundwater Management in India

Concern at this growing prompted the Planning Commission of India to constitute an expert group to review the issue of groundwater management and suggest appropriate policy directions. The issue also featured prominently in the World Bank Resources Assistance Strategy for India. Accordingly, the World Bank Study and Technical Assistance Initiative on Groundwater Management in India was conceived with two main objectives:

· To identify management strategies for promoting sustainable groundwater use in India, within a systematic, economically sound, and politically feasible framework.

· To provide focused technical support for enhancing the outcomes of ground management interventions under the World Bank – Financed projects in participating states.

At an early stage it was recognized that the sheer scale of the problem, and the political sensitive’s attached to it, meant that conventional command – and – control approaches as well as the classically prescribed economic approaches were impracticable. Attention was therefore focused on developing a “Plan B”, involving pursuit of pragmatic approaches that could make incremental improvements largely within the existing institutional framework, building political support for gradual and realistic institutional improvements at higher levels by first demonstrating successful interventions at local level.

Under the initiative a number of analytical studies, field surveys, and assessments were undertaken, and technical assistance provided for groundwater components in World Bank-supported projects in the heavily groundwater dependent states of Andhra Pradesh, Maharashtra, and Uttar Pradesh, with an assessment also carried out in Punjab. Lessons were also compiled from experience in groundwater management gained in other Indian states and elsewhere in the world.

Understanding Realities and above the ground
Determinants of Groundwater use
While groundwater resource availability is determined by the physical environment, the dynamics of groundwater use are determined by the socio economic environment (nature of economic activity, patterns of population density, societal norms) and the institutional environment (legal, administrative, macroeconomic, and political). It is this range of factors that will ultimately determine the sustainability of the resource (Figure 1).

The physical characteristics of the groundwater resources can vary considerably. Within India there are two broad types of hydro-geological settings: the shallow, low-storage hard-rock aquifers occurring in the basaltic and granitic systems of peninsular India; and the large, high-storage aquifers underlying the Indo-Gangetic floodplains of northern India.

Superimposed on those below-ground features is a complex web of above-ground socioeconomic and institutional factors that determine the dynamics of groundwater extraction, including the distinction between rural and urban use; the relative inadequacy and unreliability of public water supply systems; the size of landholdings and the related density of water wells; the political ramifications of subsidized power for irrigation pumping; and the institutional capacity to monitor and regulate the millions of wells found across the face of India.

Typology of aquifers and users
Based on the aquifer characteristics (below ground) and resource use patterns (above ground), a typology of intensively exploited groundwater settings is proposed (Table 1). This typology forms the basis of the analysis undertaken in the present study.

Table 1. Typology of Intensively exploited aquifers in India

 

Land Use

General and specific hydrodeological environment

Resource use

Focus states in this Study

 

 

 

 

 

 

 

 

Rural

Hard – rock terrains of peninsular India

Widespread weathered hard-rock (basalt or granite) aquifers with shallow, lowstorage patchy groundwater bodies

Subsistence and commercial agricultural exploitation, drinking water supply, some industries

Andhra Pradesh, Maharashtra

Occasional but important groundwater bodies in coastal or graben fill sedimentary aquifers

Maharashtra

Major alluvial formations of rural Indo – Gangetic plains

Alluvial aquifers, in plains largely within major irrigation canal commands with naturally shallow water table

Mainly subsistence and commercial agricultural exploitation

Uttar Pradesh

Alluvial aquifers in the older elevated alluvial plains, with more limited irrigation canals and deeper water table

Punjab

 

Urban

Urban environment

Weathered hard-rock aquifers with shallow, low-storage patchy groundwater bodies

Individual urban households, water utilities, industries, tourism

Maharashtra

Major alluvial aquifers in alluvial plains

Uttar Pradesh


Overexploitation of groundwater and management approaches

“Overexploitation” of an aquifer is a term applied to a physically unsustainable situation in which the extraction of groundwater exceeds replenishment (recharge) within a given area over a given period of time. Such a situation is now occurring in many aquifers throughout India. While the definition of overexploitation may appear simple, the sheer complexity of physical, environmental, socioeconomic, and other factors related to groundwater abstraction makes it notoriously difficult to understand the nature of the problem and devise effective solutions. Given that proviso, some broad categories of interventions can be identified:

· Demand-side measures, which aim to reduce consumptive groundwater use, for example through an increase in water tariffs in urban settings, or reducing crop water requirements and non beneficial evapotranspiration from fields in agricultural settings

· Conjunctive use, where savings are made through better alignment of surface water and groundwater resources in a specific area

· Groundwater recharge enhancement, whereby physical structures are built to retain runoff and encourage infiltration to groundwater

The hard-rock and alluvial aquifers differ considerably in their physical and socioeconomic profiles, and require very different sets of management solutions, at both macro and micro levels.

Hard-rock terrains of rural peninsular India: Characteristics and management options

In a sustainable scenario, dry season depletion of these low-storage aquifers, mainly for irrigation, is adequate compensated by recharge during the monsoonal rains. However, a rapid growth in the number of borewells since 1980 has led to a steady decline in water tables, resulting in a large increase in the cost of pumping a given volume of water, from which farmers have largely been shielded by flat rate, subsidized electricity tariffs.

Groundwater recharge enhancement has been promoted as a means of aiding recovery of water tables. The largest potential for recharge exists in alluvial settings, where there is abundant excess runoff as well groundwater storage capacity required for recharge. Most of the country’s overexploited groundwater blocks lie in hard-rock settings, where recharge can provide only limited relief, and may be best employed as a valuable adjunct to other measures, such as rainwater harvesting.

Demand-side measures may offer more hope for controlling overexploitation. With over 13 million wells in the hard-rock areas, bottom-up, community-based approaches are more likely to be effective than top-down, broad-based attempts at regulation.

Pragmatism and Indian Educational Curriculum Construction
Education as such had been always the dynamic shade of a chosen philosophy. It creates an avenue passing through which one can clearly distinguish between the existing values and those surmised to be universal. With education to backup, one gains the freedom to modify the curriculum in vogue so as to suit to the extant environmental influences. Through Idealism nonetheless we can look at the reflective side of the education and grasp only some shades of Truth depending on one's own level of comprehension. On the other hand with Pragmatism one can make out what is real or merely idealistic. To enter into the arena of Universal Truths we must sportively permit a revision or decade wise an overhauling or sincere re-evaluation. Pragmatic approach in building a curriculum relies on the human capacity for discovering and recognizing variety Truths and later classifying them for the sake of utility or application. It also lays an emphasis on the fact that there are no fixed or eternal truths, a viewpoint which can be reckoned as purely scientific. Therefore expecting a uniform curriculum throughout a Nation may sound impressive in print but could end up in vain efforts. Urban to Rural areas ratio in majority countries had been absolutely disproportionate. Therefore, it would be wise to adopt a three tier system to deal effectively with the present situation in India. The paper envisages a survey taking stock of the existing conditions and would propose remedies. Obviously different rungs of the society have their own exclusive needs. Therefore, so far primary education is concerned it has to be regarded as the first tier or essential class of education. It is only at the secondary and lastly tertiary level that the requisition of technical knowledge or specialized field study is without dispute, necessary from all aspects.

1. Philosophy and the Curriculum
There had been a meaningful and functional relationship between Philosophy and Education. In fact education may be looked upon as the dynamic side of a chosen philosophy. For that matter, any philosophy which has no practical applications in the mart of the world would remain confined within the boundaries of theoretical scholarship. If at all any fancied derivations are drawn no worthy purpose can be served. Therefore at the very inception care should be taken so that while structuring educational curriculum the ideals set have a proper context and workability. Many times it so happens that with initial enthusiasm clubbing of ideals takes place but during execution the main contention of the same gets abruptly aborted. Since philosophy offers a purpose and suggests a thorough orientation to the endeavours of individuals, no curriculum should be run without a proper base of philosophy. It goes without dispute that every educational philosophy supports values in the choice of studies and discipline, for which methods and means of instruction are clearly put forth. Ultimately it is the values which constitute the genre of a true philosophy of education. Much owing to this approach the values when subjected to practical analysis might indicate the reflective side of philosophy of life. Furthermore it is the philosophy which takes into account the pertinent issues of all subjects which help in constituting the curriculum. This is because each subject has its own well defined domain which may not be suitable to other subjects equally. It is unlikely that there has been a pure and consistent philosophy of education. However we do refer to different issues or philosophies for bringing about a change in the existing pattern of the curriculum.

2. Pragmatism in Education
It is quite natural that different schools of philosophy pursue and nurture own notions as exclusive ones. A Naturalist may concentrate on the present experiences, interests and activities of the child, so as to use the same as guidance for future curriculum. An Idealist may stick on to a particular axis brought forward from the domain of ideas rather than looking seriously at the child’s activities. A Realist may even condemn the curriculum which is filled with bookish ideas or derived from abstract ideas. Therefore there would be scores of opinions.

Pragmatism may be considered as a typical American school of philosophy although in the modern age it has invariably caught the attention of all. It can be viewed as roughly equivalent or pretty close to Praxeology, ‘A branch of sociology that studies methods of considering various actions or aggregates of actions from the standpoint of their effectiveness’.Therefore Praxeology is considered as one of the methods of sociological investigations in modern times. With a little deviation Pragmatism happens to be an idealistic trend in modern bourgeois philosophy. Pragmatism needless to say lays emphasis on the determination of the value of knowledge by its practical application or utility. Therefore there is always an insistence on the empirical knowledge, or one may call it ‘Radical empiricism’ or even ‘Experimental naturalism’. That is why this philosophical approach can always deny the existence of any eternal values and refuse to be guided by any established theory. One may say that it arises out of actual experience. Every decade poses different problems and challenges to our idealism. That is why an impartial renewal in policy is required. The main tenet of this philosophy is that man creates his own values and there are no fixed or external truths. Truths as cognized are man-made products. Reality on the other hand is always changing and has many shades.

A pragmatist may not prefer the popular a priori system of values. He expects learning while experiencing. Rather he would prefer to have de-learning, followed by re-learning by choice to gain practical wisdom. In a nutshell, he expects every student to develop by way of voluntarily creating values on examination only. Although there isn’t any ulterior motive yet it expects the students to grow independently and evade the ready-made values. Therefore even the pragmatist expects a dynamic adaptable mind which can function on own and bring about the necessary changes in the extant values to face the unknown future.

3. Pragmatism and Curriculum Construction
There are many criteria suggested by Pragmatism for Curriculum Construction. The criterion of utmost importance is utility. In schools the child must get an environment which would provide worthy experience suitable to the age and the level of comprehension. Therefore the curriculum must be comprised of subjects that can not only impart knowledge but various types of skills which could find applications for the present as well as future course of life. Therefore subjects such as languages, physical training, sciences and elementary mathematics should definitely be included but introducing Home science and Agricultural science would prove to be of immense use in life both for girls and boys. Utility as a principle must be adopted in a clear and broad sense.

Every child has instinctive choices. Therefore the inborn tendencies and inclinations must be judged and monitored during the stages of development. There need not be a fixed curriculum for a given age-group. Instead division/admission is to be made on the basis of psychological leanings. The curriculum ought to be based on occupations and activities with own experiences. The principle of integration must be taken as a true guide for building the curriculum because it integrates knowledge and skill. In brief pragmatism expects integration of variety subjects which is popularly known as interdisciplinary study because isolating subjects with the knowledge would hamper development at every stage.

4. The Indian Scene and Suggestive measures
The history of the evaluation of the modern system of education in India has a background of social, political and constitutional history of India. Therefore, needless to say, many Indian institutions were inspired by the institutions in England which already had established an envious repute. Probably that had been the reason as to why, ‘Often controversies in Indian education arose from contemporary controversies in English Education.’.

It is an undeniable fact that there had been varied influences on the Indian educational system. Some of them were indeed of great utility and guidance, while a few could not serve any purpose in worthy sense. However it is wrong to lament upon the past and claim complacency by placing the blame on one particular school of thought or agency as such. Whatever may be the cause but it is a fact that the present situation indicates an absolute imbalance. Just as there are different rungs in the society ladder, institutions with enormous funding are mushrooming. Under the disguise of social service and spread of education particularly for the poor class a well manipulated business is going on. The mercantile attitude is the only true but hidden base of all these institutions. At the most, they may vary in percentage but their ultimate aim is same. The underprivileged find solace only on paper but in reality the policy which claims for a total justification, has to prove in execution.

Recently the government of India has taken up the challenge and to quite a good extent shown its commitment in pursuing Grade I to VIII as compulsory education. However there isn’t a proper response from the society either. Crores of children haven’t bothered to even get enrolled. Those who got enrolled have dropped out in the mid-stream and it has gone to an appalling percentage of more than 50. This shows that there is no monitoring. The reason had been and continues to be the lack of proper planning and apathy towards the lower class.

There is a need of a gradual development of Public Education in India by way of philanthropy in education. For a thorough progress introduction of charity schools in an official manner has become the need of the day. In past, ‘As a reform of the moral, religious and economic conditions of the masses in the eighteenth century, philanthropic training served a great purpose but its real mission would now seem to have been to pave the way to the common schools’,

Quality of education is another major problem faced by the children in rural areas and in the government aided institutions. Private schools mostly have English as the medium of instruction. They are affiliated to the Central Boards which are autonomous. They have the freedom to introduce or terminate any course when they wish. Students do get proper exposure but the fee charged is extremely heavy. Therefore only affluent class children can seek admission. State boards are merely revamping their syllabi to stand parallel but conveniences are far away. This gap is widening every year and there seems to be no remedy at least in near future.

In order to overcome these problems some of the suggestive remedial measures could be as following :

a) Curriculum planning has to be handed over to the teachers who are actually involved in teaching the primary and High school sections. Later it may go for a perusal to be done by the educationists.

b) The planning to be run for a duration of at least three years and then should go for revision.

c) Reservation for the underprivileged in admission to the private institution be made mandatory. Presently it is only on paper.

d) Importance to be given to subjects like Agriculture science, Home Science and psychology.

e) The government must invest a certain amount per child for its development.

With these suggestions if put in practice there may not be a miraculous change but at least the efforts will find a direction and new planning will have proper path for treading and marching with sizeable success.

Indian Foreign Policy: A Pragmatic Makeover?
PRESIDENT OBAMA’S visit to New Delhi as guest of honour for the Republic Day celebrations on 26 January 2015 has been notable beyond its significant symbolism. It was marked by the issuing of a joint statement entitled the “India-US Joint Strategic Vision for the Asia-Pacific and Indian Ocean Region”. That document was the focus of the Chinese media’s coverage of the visit.

Among other things it spoke about the need to ensure “freedom of navigation and over flight … especially in the South China Sea”. The inclusion of this issue in the document was a bold departure from India’s past reticence to name names and take a stand on critical international issues.

Significant Shifted to Foreign Policy?
It is slowly becoming apparent that Indian foreign policy is turning towards a pragmatic direction under the leadership of Prime Minister Modi who possesses a charismatic pull and a slick public relations machinery. The new government is actively working to build good relations not just with the US but also its immediate neighbour China. The ‘Act East’ policy does not just involve building maritime cooperation with Southeast Asian countries but also, to a significant extent, the cultivation of China.

Towards this end, Indian foreign minister Sushma Swaraj embarked on a visit to Beijing. While addressing the Second India-China Media Forum in Beijing on February 1 2015 she spoke of the current century being an Asian one. At the same forum Chinese Minister of the State Council Information office, Jiang Jianguo, stated that Indian and Chinese peoples shared common dreams of growth, development and economic success.

After the 13th Trilateral meeting between the foreign ministers of India, Russia and China on 1 February 2015, India also attempted to assure Russia and China that it was still very much in favour of a multipolar world. China declared that it was supportive of India’s desires to play a greater role in the United Nations. Back in 1971 India had been a vocal advocate of China’s taking over Taiwan’s membership in the UN and a permanent seat in Security Council.

Thus, even though China’s statement is not an endorsement of India’s bid for a permanent seat on the Security Council, it holds symbolic importance and can be interpreted as a positive beginning to a closer relationship between the two countries on the international stage.

Shifted Towards the Pragmatism
It is slowly becoming apparent that Indian foreign policy is turning towards a pragmatic direction under the leadership of Prime Minister Modi who possesses a charismatic pull and a slick public relations machinery. The new government is actively working to build good relations not just with the US but also its immediate neighbour China. The ‘Act East’ policy does not just involve building maritime cooperation with Southeast Asian countries but also, to a significant extent, the cultivation of China.

Towards this end, Indian foreign minister Sushma Swaraj embarked on a visit to Beijing. While addressing the Second India-China Media Forum in Beijing on February 1 2015 she spoke of the current century being an Asian one. At the same forum Chinese Minister of the State Council Information office, Jiang Jianguo, stated that Indian and Chinese peoples shared common dreams of growth, development and economic success.

After the 13th Trilateral meeting between the foreign ministers of India, Russia and China on 1 February 2015, India also attempted to assure Russia and China that it was still very much in favour of a multipolar world. China declared that it was supportive of India’s desires to play a greater role in the United Nations. Back in 1971 India had been a vocal advocate of China’s taking over Taiwan’s membership in the UN and a permanent seat in Security Council.

Thus, even though China’s statement is not an endorsement of India’s bid for a permanent seat on the Security Council, it holds symbolic importance and can be interpreted as a positive beginning to a closer relationship between the two countries on the international stage.

Conclusion
The norms and surveillance apparatus that arise resemble legal instruments by the regulatory function they are assigned to and which they perform more or less effectively, but radically differ from those instruments by the forms and means used. Those norms and devices are still very little known and very poorly understood. There is no doubt that the work and research that I have attempted to summarize here are still in their early stages. For a long time, we will stay confined to feeling our way along the various field studies of global law before being able to understand its meaning and to control its mechanisms.

Nevertheless, these prolegomena are encouraging. Indeed, in this paper we have only managed to give a slight idea of the apparatus emerging in areas of all sorts. Yet their similarity allows some hope to find the common pattern to which those various instruments belong. One may start to discern the still vague prospect of an elementary theory of global law. That theory will not rest upon an exhaustive inventory of its sources, nor on the construction of a coherent and complete system of rules. Rather, it will rest on the description of a finite number of simple elements, the combination of which would enable us to account for the large number of seemingly anarchic, incoherent and arbitrary arrangements that reality confronts us with.

endnotes
# William James (1909). The Meaning of Truth. Retrieved 5 March 2015.

# http://www.Pragmatism - Wikipedia, the free encyclopedia.html

# http://www.A Pragmatic Approach to Conflict Resolution_ Benefits and Problems by Terri L. Kelly.html

# William James (1909). The Meaning of Truth. Retrieved 5 March 2015.

# Susan Haack; Robert Edwin Lane (11 April 2006). Pragmatism, old & new: selected writings. Prometheus Books. pp. 18–67. ISBN 978-1-59102-359-3.

# Biesta, G.J.J. & Burbules, N. (2003). Pragmatism and educational research. Lanham, MD: Rowman and Littlefield.

# Henry George Liddell, Robert Scott, A Greek-English Lexicon, on Perseus

# http://www.A Pragmatic Approach to Conflict Resolution_ Benefits and Problems by Terri L. Kelly.html

# James, William (1898), "Philosophical Conceptions and Practical Results", delivered before the Philosophical Union of the University of California at Berkeley, August 26, 1898, and first printed in the University Chronicle # 1, September 1898, pp. 287–310. Internet Archive Eprint on p 290;

# I refer to Mr. Charles S. Peirce, with whose very existence as a philosopher I dare say many of you are unacquainted. He is one of the most original of contemporary thinkers; and the principle of practicalism or pragmatism, as he called it, when I first heard him enunciate it at Cambridge in the early [1870s] is the clue or compass by following which I find myself more and more confirmed in believing we may keep our feet upon the proper trail.

# James credited Peirce again in 1906 lectures published in 1907 as Pragmatism: A New Name for Some Old Ways of Thinking, see Lecture 2, fourth paragraph.

# See James (1897), Will to Believe (which James dedicated to Peirce), see p. 124 and footnote via Google Books

# Peirce, C. S., "The Founding of Pragmatism", manuscript written 1906, published in The Hound & Horn: A Harvard Miscellany v. II, n. 3, April–June 1929, pp. 282–5, see 283–4, reprinted 1934 as "Historical Affinities and Genesis" in Collected Papers v. 5, paragraphs 11–13, see 12.

# Shook, John (undated), "The Metaphysical Club", the Pragmatism Cybrary.

# http://www.A Pragmatic Approach to Conflict Resolution_ Benefits and Problems by Terri L. Kelly.html

# Benoit Frydman [Professor at the Université Libre de Bruxelles (ULB) and at Sciences Po (Paris), President of the Perelman Centre for Philosophy of Law [Professor at the Université Libre de Bruxelles (ULB) and at Sciences Po (Paris), President of the Perelman Centre for Philosophy of Law.], A Pragmatic Approach to Global Law – Working Paper Nov. 2012, p 1

# Cl. Lévi-Strauss, « L’ethnologue est un bricoleur » (commentaries given in January 1968 for a program of the research service of the ORTF devoted to the great adventure of ethnology), in « Lévi-Strauss par Lévi-Strauss », Le Nouvel Observateur, numéro spécial, nov.-déc. 2009, p. 22.

# B. Frydman and M. Meyer (ed.), Chaïm Perelman 1912-2012 : De la nouvelle rhétorique à la logique juridique, Presses Universitaires de France, 2012, esp. B. Frydman, « Perelman et les juristes de l’Ecole de Bruxelles », pp. 229-246.

# B. Frydman and I. Rorive, « Regulating Internet Content Through Intermediaries in Europe and in the U.S.A. », Zeitschrift für Rechtssoziologie 23 (2002), Heft 1, pp. 41-59. – B. Frydman, L. Hennebel and G. Lewkowicz, “Coregulation and the Rule of Law”, in E. Brousseau, M. Marzouki., C. Meadel, (ed.), Governance, Regulation and Powers on the Internet, Cambridge University Press, 2012

# B. Frydman, « Coregulation : a Possible Model for Global Governance », in B. De Schutter and J. Pas eds., About Globalisation, Views on the Trajectory of Mondialisation, Brussels, VUB Brussels University Press, 2004, pp. 227-242.

# Th. Berns, P.F. Docquir, B. Frydman, L. Hennebel and G. Lewkowicz, Responsabilités des entreprises et corégulation, Bruylant, col. ‘Penser le droit’, 2007.

# B. Frydman and L. Hennebel, “Le contentieux transnational des droits de l’homme”, Revue Trimestrielle des droits de l’homme, 2009, pp. 73-136.

# B. Frydman and A. Van Waeyenberge (ed.), Gouverner par les normes : de Hume aux rankings et aux indicateurs, Bruylant, col. ‘Penser le droit’, 2013 (forthcoming).

# D. Dogot and A. Van Waeyenberge, “L’Union européenne, laboratoire du droit global” in J.-Y. Cherot et B Frydman, La science du droit dans la globalisation, Bruylant, 2011, pp. 251-273. – A. Van Waeyenberge, Les nouveaux instruments juridiques de la gouvernance communautaire, 2013 (forthcoming).

# The concept of “dispositif” or “apparatus” was originally proposed by M. Foucault in his studies of norms and “disciplines”. It was later developed by some commentators and followers such as G. Deleuze and G. Agamden, who gives this definition : “I shall call an apparatus literally anything that has in some way the capacity to capture, orient, determine, intercept, model, control, or secure the gestures, behaviors, opinions, or discourses of living beings (…)” ("What is an Apparatus?" in What is an Apparatus? And Other Essays. Stanford University Press, 2009, p. 14.

# Concerning this question, I refer the reader to B. Frydman, Le sens des lois. Histoire de l’interprétation et de la raison juridique, Paris-Bruxelles, LGDJ-Bruylant, 3rd edition, 2011.

# CJEC 5 feb. 1963, van Gend & Loos (case 26/62). See also the classical and already critical paper of J. Combacau, « Le droit international : bric-à-brac ou système ? », in Le système juridique, Archives de Philosophie du Droit, t. 31 (1986), pp. 85-105.

# S. Romano, L’ordinamento giuridico, Pisa, Spoerri, 1918.

# M. Delmas-Marty, Le pluralisme ordonné (les forces imaginantes du droit, t. 2), Paris, Seuil, 2006.

# We use the terms of Pierre Livet in his book Les normes, Paris, Armand Colin, 2006, notably p. 3 and p. 74, who gives them a completely general scope, which includes a lot more than only legal norms. In legal theory, this idea was promoted mainly by normativists, like Kelsen and Hart.

# H Kelsen, Pure Theory of Law, Berkeley, 1967.

# U. Beck, Power in the Global Age, Cambridge: Polity Press, 2005.

# G. Timsit, Thèmes et systèmes de droit, Paris, P.U.F., 1986, p. 34. - W.J. ACEVES, "Liberalism and International Legal Scholarship: The Pinochet Case and the Move Toward a Universal System of Transnational Law Litigation", 41 Harv. Int’L.J., 129 (2000).

# I. Kant, Perpetual Peace. A Philosophical Essay (1795).

# B. Frydman, « Coregulation : a Possible Model for Global Governance », in B. De Schutter and J. Pas eds., About Globalisation, Views on the Trajectory of Mondialisation, Brussels, VUB Brussels University Press, 2004, pp. 227-242.

# Th. Hobbes, Leviathan or The Matter, Form and Power of a Common Wealth Ecclesiastical and Civil (1651).

# J. Locke, Second Treatise of Government (1690).

# G.W.F. Hegel, Elements of the Philosophy of Right (1820).

# For a more complete discussion of the questions summarized in this paragraph and the precise references it contains, reference may be made to our article : B. Frydman et L. Hennebel, « Le contentieux transnational des droits de l’homme : une perspective stratégique », Revue trimestrielle des droits de l’homme, 2009, pp. 73-136.

B. Frydman, « L’affaire Total et ses enjeux », in Liber amicorum Paul Martens. L’humanisme dans la résolution des conflits. Utopie ou réalité ?, Larcier, 2007, pp. 301-321.

B. Frydman, « L’hospitalité judiciaire » in Justice et cosmopolitisme, proceedings of the international conference of the Institut des Hautes Etudes sur la Justice, published on the website of the Institut des Hautes Etudes sur la Justice (www.ihej.org/ressources).

# Legal Profession Act (2004) (Vic).

# David Edmonds, Chair of the Legal Services Board UK, Training the lawyers of the future – a regulator’s view (speech delivered at The Lord Upjohn Lecture 2010, Inner Temple, 19 November 2010).

# Ombudsman Victoria Annual Report 2009.

# Ombudsman Victoria Investigation Report into Legal Services Commissioner’s Complaint Handling Processes (2008), p54

# Ombudsman Victoria Annual Report 2009, p, 23.

# Ibid

# Costs disputes that can be handled within the scope of the Act are matter where the total costs do not exceed $25,000; where the bills are no more than six months old; and where the lawyer has not already sued the consumer to recover outstanding costs.

# Supranote 44

# unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

# Supranote 44 (1) For the purposes of this Act—

professional misconduct includes—
(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

(b) conduct of an Australian legal practitioner, whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law, that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

# Ibid

# Ibid Here, the Act states the complaints may be dismissed on the grounds that adequate details of the complaint have been requested but not provided; the complaint is vexatious, frivolous or misconceived; it has been previously investigated; it is outside the power of the Commissioner to handle; and, in the case of a disciplinary complaint, it becomes evident that no further investigation is warranted

# Arie Freiberg, The Tools of Regulation, (Sydney: The Federation Press, 2010), p 83

# The Hon Wayne Martin, Chief Justice of Western Australia, The Future of Regulating the Legal Profession: Is the Profession Over Regulated? (Paper presented at the Conference of Regulatory Officers, Kings Park Function Centre, Perth, Western Australia, 16 September 2009) 15, as cited in the paper by John Briton and Scott McLean, Lawyer Regulation, Consciousness-Raising and Social Science.

# Ibid

# Deep Wells and Prudence: Towards Pragmatic Action for Addressing Ground water Overexploitation in India, The World Bank, p ix

# ibid

# Id, at p x

# Id , at pp x - xi

# Dr. Gopinath Sharma, Institute of Career Development, Aurangabad – India, Proceedings of SOCIOINT14- International Conference on Social Sciences and Humanities.

# ibid

# Dictionary of Philosophy, 1984, p.334

# Nurullah and Naik (1951), A History of Education in India during the British period, Macmillan & Co. Ltd.,Bombay, p 334

# Graves Frank (1996), A History of Education, Akashdeep Publishing House, New Delhi, p 78




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