The pragmatic approach reverses the sequence. It asks, What is the right rule-the sensible, the socially apt, the efficient, the fair rule-for oil and gas? In the course of investigating this question, the pragmatist will consult the wild animal law for what, (little) light it may throw on the question, but the emphasis will be empirical from the start. There will be no inclination to allow existing rules to expand to their semantic limits, engrossing ever greater areas of experience by a process of analogy or of verbal similitude. The tendency of formalism is to force the practices of business and lay persons into the mold of existing legal concepts, viewed as immutable, such as "contract." The pragmatist thinks that concepts should be subservient to human need and therefore wants law to adjust its categories to fit the practices of the nonlegal community.

XREF: Echoes the pragmatism of Dewey and Peirce and the legal realism of Holmes, contrasting sharply with formalism in legal theory. DEFINE: Distinguishes the pragmatic legal method from formalist analogue-driven expansion of existing concepts. Builds on: "Formalism answers legal questions through conceptual relations, not facts."

Richard A. Posner, Richard A. Posner - What Ha…, loc. 96