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Product Details
| ISBN-13: | 9780226523903 |
|---|---|
| Publisher: | University of Chicago Press |
| Publication date: | 03/16/2018 |
| Pages: | 224 |
| Product dimensions: | 6.10(w) x 9.20(h) x 0.80(d) |
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CHAPTER 1
Prologue
In January of 1860, a U.S. senator from Mississippi, Jefferson Davis, proposed that southern states should secede from the United States of America, and a committee of the Harvard Board of Overseers reported unfavorably on instruction in "intellectual and moral philosophy." An attack by Confederate troops on Fort Sumter would take place in the spring of 1861. Twenty-year-old abolitionist Harvard senior Oliver Wendell Holmes Jr. would enlist immediately in the Fourth Massachusetts Battalion of Infantry (he would soon receive a commission as lieutenant in the Twentieth Massachusetts Volunteer Regiment of Infantry). The cause of poor instruction in philosophy was attributed to overwork of a professor who had been teaching Holmes and other Harvard students: the influential but now almost forgotten Francis Bowen.
The returning thrice-wounded soldier, turned legal scholar and then judge, was elevated from the Massachusetts Supreme Judicial Court to the U.S. Supreme Court in 1902, lived just short of ninety-four years, and died between the two world conflicts in 1935. This book will explore his thought, with an emphasis on its genesis in the years after returning from the Civil War. Although immersed in its worst violence, he showed little posttraumatic stress in plunging into law and philosophy, living with his parents in Boston, visiting the woman whom he would marry at age thirty, regularly commuting to Cambridge, surrounded by and engaged with intellectually motivated friends.
Philosophy was not a rigorous academic discipline at Harvard as it is today, despite the best efforts of the overworked Bowen. Yet it was taken up with genuine commitment and surprising rigor by recent graduates, Holmes, William James, Charles S. Peirce, and others, in particular the solitary but welcoming bachelor Chauncey Wright. As did they, Holmes broke new ground in his chosen field, ground that has been obscured by subsequent commentary and criticism.
Almost from the moment of his death, another life for Holmes began. An often-disputed Holmes has been brought into contemporary debates over the nature and theory of law, even if later dismissed for misunderstood views. This is yet another extended conversation about the deceased, but with a closer look and a wider audience in mind, as it explores aspects of his thinking that have not been adequately recognized.
The reason for this has been failure to follow his early train of thought, and the context of concerns among his teacher Bowen, mentors, and friends, leading to misinterpretation of later writings and addresses. This has obscured the fact that his perspective stems from a surprising source, the reformism and logic that drove John Stuart Mill's empiricism, the view that human progress was contingent upon education and study of facts, and of logical induction from them to a correct understanding. Mill's hopeful meliorism would collide in Holmes with the experience of violent ideological conflict, leading to a profound appreciation for the precariousness of human hopes and accomplishments. Holmes would apply this attitude to the work of the courts. Yet his underlying insights grew from philosophical inquiry, and as such they carry wider implications.
How humans think, communicate ideas, form beliefs, and act upon them — these are critical questions. Answers have been posed, to be reconsidered in the face of new difficulties. They are never entirely settled, as the patterns of human thought and action are not rigid, but change with new problems, new habits and beliefs, and new generations. While my topic has a legal and historical reference, it concerns questions about logic and its relation to the formation of knowledge. Holmes contributed to a new perspective on these matters in the late nineteenth century. The influences on him ranged from Professor Bowen's Scottish realist empiricism and familiarity with British and German philosophy, to the community of recent Harvard graduates that populated Cambridge in the postwar years, informing his early theoretical essays on law and his eventual treatise, The Common Law, published in 1881. And, of course, the Civil War itself.
A famous Holmes refrain (especially in dissenting opinions) was "general propositions do not decide concrete cases." An aversion to deductive reasoning, and perhaps to ideology, is implied. Holmes would later resist a tendency among some members of the Massachusetts and U.S. Supreme Courts to ground decisions on sweeping constitutional propositions, potentially obscuring subjective bias. But where does the refrain, and his resistance, come from? When we see that it derives from a line of thought traceable in his reading back to the English scientific debates earlier in the nineteenth century, the line can be extended further back to the early seventeenth-century English lawyer-scientist and philosopher Francis Bacon (1561–1626), whose perspective on scientific discovery — and knowledge in general — illuminated for Holmes the growth of normative knowledge in the common law.
Bacon's own reformist empiricism guided English scientific progress in the period before the American Civil War, and Holmes and several Cambridge friends followed a renewed debate in England over the ground of knowledge and discovery, contextualized by what is now called "early modern philosophy" (seventeenth- to early nineteenth-century writers from Descartes and Hume to Kant and Hegel), debate engaged in by the scientists William Whewell, John Herschel, and Charles Darwin, encompassing a vigorous disagreement over scientific method between Whewell and John Stuart Mill.
The issues were related to Aristotle's distinction between deduction and induction. The former is characterized by the syllogism, the various forms in which conclusions may be drawn from general premises. Content is less important than form. For induction, content is the focus, how particular experience may be transformed into the general statements from which deductions may usefully be made.
Deduction:
* All men are mortal
* Socrates is a man
* Socrates is mortal
Induction:
* The ball drawn from this bag is red
* This ball also drawn is also red; as is this ball, this ball, etc.
* All balls in the bag are red
Law, of course, engages both. Deduction from existing rules is essential to the application of law, while induction from novel facts aids in establishing new or revised rules and principles. Meanwhile, law influences human action, and provides a forum for resolving conflict. Deduction and induction offer different approaches to conflict. The former privileges logical form, the latter emphasizes specific circumstances.
How best, then, to resolve complex and controversial cases? Addressing the relation of the two methods came fortuitously, from British philosophy and science, tinctured with German idealism, into the life of the young Holmes after his return from the Union Army. It was fortuitous because of the inquiring spirit of his time, his intense early engagement with philosophical peers, and his ambition to understand and excel; and likely also, his experience as a soldier, bringing intimacy with conflict to bear on the nature and growth of normative knowledge.
In the wake of Bacon and the British empiricists, and particularly influenced by Mill's criticism of the syllogism in his 1843 System of Logic, Holmes's preference for induction is suggested by his remark (at the beginning of The Common Law), "The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed." What is the background to this remark, and what did he mean by "experience"? And how might this connect with broader currents of thought?
Another Holmes phrase was "Great cases, like hard cases, make bad law." Today's Supreme Court has occasionally been (as have previous courts) accused of ignoring or discarding settled lines of precedent to decide controversial matters like presidential elections and campaign financing. This comment comes from a further extension of the same thinking, its conception of the process of inquiry as it draws on prior experience.
Still another locution of his was the necessity of judicial "line drawing," as in, "[A]ll legal lines are more or less arbitrary as to the precise place of their incidence, although the distinctions of which they are the inevitable outcome are plain and undeniable." When this comment is placed in the context of Holmes's overall thought, it expresses a theory of social (and consensual) resolution of uncertainty, maintaining behavioral as well as cognitive order by managing the extension of statutes, precedents, and constitutional rights as they oppose one another in litigation. Line drawing was his logical mechanism, and I examine in detail how he got there.
Holmes's contribution to legal logic is manifest but not explicit in his writings, which lack the transparency of contemporary academic practice. Remarkably little mention of his early reading and research is found in his voluminous later correspondence. It is necessary to seek out the origins of his thought and connect his judicial writing with the early research. His achievement is worth recovering, as it connects the disparate fields of law and natural science. The track of his thought, evident in the early essays from 1870 to 1880, reveals a pronounced inductive turn guiding his analysis of legal doctrine. It is focused on the method of induction as retrospective translation of clusters of judgments into precedent and legal doctrine. In accounting for this process, Holmes adds a uniquely social element to contemporary understanding of the logic of induction.
The tension between deduction and induction is present in natural science, if under different conditions than law — and, indeed, recent scholarship has increasingly explored the social dimension of scientific inquiry. Do separate domains of knowledge have methods in common? This has been at least an open question, and stimulated Francis Bacon in the seventeenth century, David Hume (and others) in the eighteenth, Mill, Whewell, and their colleagues in the early nineteenth, and the young members of the Cambridge, Massachusetts, "Metaphysical Club" in the later nineteenth century.
It is the social component that connects Holmes's view of logic with legal and social order. I will claim that Holmes came to interpret the Aristotelean logical forms with a recognition that the social context surrounding both the "particular" and the "general" can be in flux in controversial matters. Belief in certain legal "generals" may be emergent or flexible. Judicial response to a changing situation implicates the maintenance of social cohesion. Holmes addressed how the particular relates to the general in an unsettled, dynamic context, and how abstraction amidst conflict works to generate belief and inform conduct. As will be seen, it offers a theory of the stabilization and entrenchment of ideas.
Entrenchment, a term of increasing currency in philosophy since Nelson Goodman's "new riddle of induction," concerns the phenomenon of a conception gaining not just tentative belief but broad, undisputed, even intuitive, acceptance. The term implies both an end state and a spectrum. To become "entrenched" is to reach a final condition, implying that conceptions may be only partially so. Use of the term implicates a move away from fixed and necessary conceptual categories. It opens up questions missing from the analysis of fixed concepts: how they acquire firmness and stability, and how they might be susceptible to modification or change.
While Holmes did not use the term, I will suggest that his model of legal knowledge reflects an overriding concern with this phenomenon. Much of the obscurity surrounding his thought derives from a failure to recognize his transformative conception of legal inquiry, even while the culture surrounding legal language, to which he was naturally committed as a lawyer and judge, demands that its concepts not appear to be in transition. Law is more readily analyzed, from law school on, as a fixed system. I will sharply distinguish Holmes's position from an influential conceptual view of law, and of legal logic, associated with now-dominant analytical and conceptual philosophies of law.
Holmes took few pains to formalize his philosophical perspective, which has left others to select among his writings and speeches for its essence. Many have focused on a provocative 1897 address to Boston University law students, "The Path of the Law." The next chapter focuses instead on much earlier texts of 1870 and 1873, in which is found a distinctive move, radical for both legal and logical theory, that I refer to as a socially informed "inductive turn." The inductive turn was tentative at first, but would be elaborated in the context of his theory of legal history set forth in The Common Law. The turn brought him to address the social dimension of logical induction, connecting conflict with the finding of legal similarity and the entrenchment of legal concepts.
Evidence of his concern with entrenchment can be found in his 1899 address to the New York State Bar Association, by then Chief Justice Holmes of the Massachusetts Supreme Judicial Court. The title of this talk, notably, was "Law in Science and Science in Law."
It is perfectly proper to regard and study the law as a great anthropological document. It is proper to resort to it to discover what ideals of society have been strong enough to reach that final form of expression, or what have been the changes in dominant ideals from century to century. It is proper to study it as an exercise in the morphology and transformation of human ideas. The study pursued for such ends becomes science in the strictest sense.
Here Holmes suggests a broad view of entrenchment, applicable to both ideas and "ideals." Holmes's inductive turn, in looking at the "morphology and transformation of ideas," was unlike every canonical exposition of later legal realism. The legal realists of the twentieth century, energized by Holmes, also favored empirical and inductive methods, but their choices of what to adopt as the empirical base of law were different. The legal realists focused on the particular judicial decision, and the influences immediately surrounding it. Holmes focused on the relation of court decisions to the problems underlying them, and thence to the process by which, in addressing those problems, general legal knowledge grows and becomes stable through a process that will be called convergence.
His approach may be compared to Mill's reformism, as it is generically related to the latter's zealous opposition to thinking from general axioms. Holmes accepted Mill's idea that concepts are grounded in particular experience, and amended it with an admonition drawn from dispute, conflict, and warfare. Louis Menand has written that Holmes "had gone off to fight because of his moral beliefs, which he held with singular fervor. The war did more than make him lose those beliefs. It made him lose his belief in beliefs. It impressed on his mind, in the most graphic and indelible way, a certain idea about the limits of ideas." This is true, as far as it goes; but Holmes went further than mere skepticism, grounded in "limits." The war motivated him to reconsider authoritative texts on logic, and to reexamine the operation of ideas. Menand has this to say about the Civil War:
[T]he outcome of the Civil War was a validation, as Lincoln had hoped it would be, of the American experiment. Except for one thing, which is that people who live in a democracy are not supposed to settle their disagreements by killing one another. For the generation that lived through it, the Civil War was a terrible and traumatic experience. It tore a hole through their lives. To some of them, the war seemed not just a failure of democracy, but a failure of culture, a failure of ideas.
This is also accurate, and it applies, as Menand writes, also to Wright, Peirce, James, and Dewey. They sought a reconstruction of human thought in the wake of a terrific conflict, but Holmes was the one who took the fact of perennial conflict seriously, and brought it into a theory of knowledge. He looked at legal (and by inference also human) development with an eye for the mechanism of success and failure: the process, which I will analyze in detail, of conflict and "convergence," the nature of resolution by practical adaptation as well as cognitive resolution. His view of law was not of an autonomous force, but as a field of inquiry. Into it came critical non-legal input, through the network of social practices.
Ironically, Holmes's severest academic critic, Harvard law professor Lon L. Fuller, unknowingly shared his view of the role of the network of informal customs and practices in defining law and obligating citizens, but mistook his position mainly from remarks made in 1897 in "The Path of the Law." Largely through this misreading, Holmes was roundly criticized, first by Fuller in 1940, and lately in a 1999 monograph by Professor Albert W. Alschuler of the University of Chicago Law School. Fuller's criticism in 1940 set a negative tone that has never been entirely redressed. The error lay in mistaking a caution against confusing moral terms as an ontological rather than a methodological claim.
(Continues…)
Excerpted from "Oliver Wendell Holmes Jr. and Legal Logic"
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