'The Social Dimension of Legal Uncertainty: Reconciling Law and Science in the Formative Years of Pragmatism' by Frederic Kellogg in (2013) V(2)
European Journal of Pragmatism and European Philosphy comments that
Nineteenth-century references to the syllogism by J. S. Mill and Oliver
Wendell Holmes Jr. reveal a distinct approach to the logic of inference in the
formative years of pragmatism. In the latter may be found an element of the
emergence of generals from particulars. Fallibilism in law and science reflects their
social dimension as part of the communal ordering of experience. This implies
a distinct approach to uncertainty, as experience yet to be integrated within a
developing system of classification.
Kellogg states
Almost everyone knows Lord Mansfield’s advice to a man of practical good sense, who,
being appointed governor of a colony, has to preside in its courts of justice, without
previous judicial practice or legal education. The advice was to give his decision boldly,
for it would probably be right, but never to venture on assigning reasons, for they would
almost infallibly be wrong.
John Stuart Mill, A System of Logic, 1843
The above passage, from J. S. Mill’s A System of Logic, is part of Mill’s contribution
in the 19th century to a debate (with Bishop Whately) over whether the logical
syllogism “is, or is not, a process of inference; a progress from the known to the
unknown: a means of coming to a knowledge of something which we did not know
before”. Mill employs a familiar story about Lord Mansfield to support his contention
that reasoning is inaccurately depicted by the classic syllogistic form. Rather than
being informed by generals, “[a]ll inference is from particulars to particulars”. The
formal syllogism, says Mill, adds nothing to logical thought: “Not one iota is added
to the proof by interpolating a general proposition” (Mill, 1862: 232). Mill continues:
Since the individual cases are all the evidence we can possess, evidence which no
logical form into which we choose to throw it can make greater than it is; and since
that evidence is either sufficient in itself, or, if insufficient for the one purpose, can not
be sufficient for the other; I am unable to see why we should be forbidden to take the
shortest cut from these sufficient premises to the conclusion, and constrained to travel
the “high priori road”, by the arbitrary fiat of logicians. (Mill, 1862: 232-3)
The illustratory example chosen here is drawn from law – specifically from
judicial practice. This passage introduces my subject, the social dimension of thought:
in particular, with regard to the disparate fields of law and science, as conceived in
the formative years of pragmatism. The Lord Mansfield story suggests the difficulty
of applying syllogistic inference to unique disputes for the individual observer. The
young Oliver Wendell Holmes Jr, immersed in the records of actual cases, suggested
an explanation. The syllogism models how the mind operates to justify knowledge of
undisputedly similar facts; but judges are engaged in resolving disputed facts.
They are also part of a community of inquiry, consisting of other judges, lawyers,
and indeed the parties affected by the disputes in question. Influenced by peers in
Cambridge, perhaps also by his recent experience in the Civil War, Holmes looked to
the effects of society on thought, and the question of how a community resolves doubt
and reaches conclusions. In the period before the American Civil War, Mill was engaged in another celebrated
debate, with William Whewell, over the nature and grounds of scientific discovery.
The young post-war intellectuals in Cambridge, Massachusetts (the founders of
pragmatism, gathering in the so-called “Metaphysical Club”) were keenly aware of it.
Some were reading its main sources, including Mill’s Logic and Whewell’s Philosophy
of the Inductive Sciences, even as they designed their own radical naturalist approach
to knowledge that would later be called pragmatism.
The passage from Mill connects the pragmatist interest in the logic of science with
the logic of law, in a common vision of social inquiry. Max Fisch noted in 1942 (Fish,
1942) that half the membership of the early Metaphysical Club consisted of scientists
and half lawyers, and that the two perspectives informed each other. Some evidence of
this may be found in the diary of reading kept by the young Oliver Wendell Holmes,
Jr., recently returned from the battles of the Civil War. Even while immersing himself
in legal treatises and a daunting revision of the encyclopedic Kent’s Commentaries on
American Law, Holmes was discussing philosophy with William James and Chauncey
Wright, and, after attending a lecture on Mill by Charles Peirce, slogging through
Mill’s lengthy and dense System of Logic in 1866.
Holmes’s principal work, The Common Law (1881), notably begins with the
famous passage, “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.”(1881: 1) This community-conscious
comment warrants a look at the early period of Holmes’s writing to explore his
thought about the syllogism.
In 1870 we find Holmes, in a formative essay on law, repeating Mill’s story of
Lord Mansfield’s comment, in a text which addresses the relationship of particulars
and generals in the law:
It is the merit of the common law that it decides the case first and determines the
principle afterwards… In cases of first impression Lord Mansfield’s often-quoted
advice to the business man who was suddenly appointed judge, that he should state his
conclusions and not give his reasons, as his judgment would probably be right and the
reasons certainly wrong, is not without its application to more educated courts. It is only
after a series of determinations on the same subject-matter, that it becomes necessary
to ‘reconcile the cases’, as it is called, that is, by a true induction to state the principle which has until then been obscurely felt. And this statement is often modified more than once by new decisions before the abstracted general rule takes its final shape. A well
settled legal doctrine embodies the work of many minds, and has been tested in form
as well as substance by trained critics whose practical interest it is to resist it at every
step. (Holmes, 1870: 1)
Here, Holmes appears to have absorbed Mill’s rejection of the syllogism and his
vision of “reasoning from particulars to particulars”. But the relation of particulars
to generals is different. Holmes adds an element of the emergence of generals from
particulars, entirely missing from Mill’s account. Whereas Mill had set forth his
argument as a rejection of classical logical form, Holmes goes on to address how, in
an historical simulation, general rules are attained in a progression from particular
judgments to consensually negotiated generals. It would occupy a key place in his
thought and career, a vision that he would much later characterize as showing the
“morphology of human ideas” – or how the common law might be viewed as an
historical study in the way society thinks.
What Holmes adds is an addendum to Mill’s “Not one iota is added to the proof
by interpolating a general proposition” (1862: 232). Where Mill simply dismisses that
assumption, Holmes seeks a deeper explanation of the relation of particular judgments
to general propositions. Focusing on the nature and origin of the general itself, Holmes
attributes its emergence to a “series of determinations on the same subject”. These are
not already given, as they arguably are in the classic example “all men are mortal”, but
represent separate judgments in varying circumstances by a community of inquirers,
viz., the disparate courts of law.
The topic of interest to Mill was a simple confusion over logical form; the general
proposition “all men are mortal” is but a set of unquestionably comparable particulars.
But what if the particulars are not patently comparable, as in a set of novel situations or
judgments? Then it is certainly not appropriate to “take the shortest cut from premises
to conclusion”, as Mill puts it (1862: 233). Holmes has highlighted a distinct problem,
that of social classification and the emergence of consensus. If the very “general” in
question is yet unestablished, a new realm of issues is opened up. Instead of how the
individual thinks, it is how society thinks, how new generalized beliefs are formed
despite the inevitable conflict of perceptions and views.
The great debate between Mill and Whewell is nearly forgotten today, even though
recently analyzed in detail by Snyder (2010). It was fresh in the minds of the early
Metaphysical Club, and it is a necessary resource to put the origins of pragmatism in
full perspective. Recovering this perspective now is difficult, especially given the recent
transformation of pragmatist philosophy by a dominant analytical attitude, flourishing
(even while diverse) with W. V. O. Quine, R. Rorty, R. Brandom and others.
An aid to recovering the earlier perspective is Whewell’s own preface to the
second edition of his Philosophy of the Inductive Sciences (1840), a passage in a book
that Holmes appears to have listed in the diary of his reading in 1866-7:
On the subject of this doctrine of a Fundamental Analysis, which our knowledge
always involves, I will venture here to add a remark, which looks beyond the domain
of the physical sciences. This doctrine is suited to throw light upon Moral and Political
Philosophy, no less than upon Physical. In Morality, in Legislation, in National Polity,
we have still to do with the opposition and combination of two Elements; of Facts and
Ideas; of History, and an Ideal Standard of Action; of actual character and position,
and of the aims which are placed above the Actual. Each of these is in conflict with the
other; each modifies and moulds the other. We can never escape the control of the first;
we must ever cease to strive to extend the sway of the second. In these cases, indeed,
the Ideal Element assumes a new form. It includes the Idea of Duty. The opposition,
the action and re-action, the harmony at which we must ever aim, and can never reach,
are between what is and what ought to be; between the past or present Fact, and the
Supreme Idea. The Idea can never be independent of the Fact, but the Fact must ever be
drawn towards the Idea. - The History of Human Societies, and of each Individual, is
by the moral philosopher, regarded in reference to this Antithesis; and thus both Public
and Private Morality becomes an actual progress towards an Ideal Form; or ceases to
be a moral reality. (1840: x-xi)
The passage summarizes a thesis regarding the relation of the particular to the
general in the historical progress of science, Whewell’s “doctrine of a Fundamental
Analysis”, and claims that it should “throw light upon Moral and Political Philosophy,
no less than upon Physical”. As such it might be seen as a call to joining the two
disparate areas of inquiry that the club, and in particular Holmes, would follow.
What was Whewell’s thesis? Without getting deeply into the body of his work,
it is the idea of a reciprocal and research-centered growth of knowledge created by
a tension between the particular and the general: the opposition, interaction, and
eventual “colligation” (a form of combination or negotiation) of the two critical
elements, “facts and ideas”. These, he says, tend to be seen as in “conflict” with each
other, but over time “modify and mould” each other. Moreover, the tension between
them is itself transformative; as inquiry progresses, “the Ideal Element assumes a new
form”. Further, they progress toward a “harmony at which we must ever aim, and can
never reach… The Idea can never be independent of the Fact, but the Fact must ever
be drawn towards the Idea” (1840: xi).
The epistemic context implied by this is social, rather than strictly individual.
Whewell implies a process engaging an extended community of inquirers, both
physically and chronologically. Moreover, he insists that it is applicable not just to
natural science but to moral and political philosophy. Given that Whewell’s work was
read and discussed in the semi-organized meetings of Metaphysical Club members,
and clearly influenced Peirce’s notion of abduction and fallibilism, it may also have
supported Holmes’s 1870 idea of “successive approximation”. The precise genealogy
of a common perspective among the Cambridge intellectuals is elusive, but my
purpose here is to highlight a common thread: understanding the social dimensions of
knowledge, and the relation of intersubjective classification to the resolution of doubt
and uncertainty.
The epistemic context of social classification is diachronic and transitional,
whereas the syllogism is synchronic and analytical. For the latter, doubt is largely
a failure of fit. For the former, it is a matter of provisional responsive adjustment
to the arrangement of a changing order. For Mill, the reason why Lord Mansfield’s
hypothetical decision-maker should “never venture on assigning reasons” is his
intuitive sense of similarity; but for Holmes, it is the distinctive future significance of
a novel problem. The situation itself is new, a “case of first impression”, having key
aspects yet to be classified. The bearing of particular to general for Holmes is not one
of logical relation but consensual emergence, integration from repeated experience
into a dynamic and always emergent system of order. This attitude implies a distinct
approach to uncertainty, as experience yet to be integrated within a moving system of
classification.
'Hermeneutics and Law' by Francis Joseph Mootz III in (forthcoming)
The Blackwell Companion to Hermeneutics states that
After providing a hermeneutical phenomenology of legal practice that locates legal interpretation at the center of the rule of law, the chapter considers three important hermeneutical themes:
(1) the critical distinction between a legal historian writing aboout a law in the past and a judge deciding a case according to the law;
(2) the reinvigoration of the natural law tradition against the reductive characteristics of legal positivism by consturing human nature as hermeneutical; and
(3) the role of philosophical hermeneutics in grounding critical legal theory rather than serving as a quiescent acceptance of the status quo, as elaborated by reconsidering the famous exchanges between Gadamer, Ricoeur and Habermas.
I argue that these three important themes are sufficient to underwrite Gadamer's famous assertion that legal practice has exemplary status for hermeneutical theory.
Mootz begins ...
Legal hermeneutics serves to remind us what the real procedure of
the human sciences is. Here we have the model for the
relationship between past and present that we are seeking.
. . . .
In reality . . . legal hermeneutics is no special case but is, on the
contrary, capable of restoring the hermeneutical problem to its full
breadth and so re-establishing the former unity of hermeneutics, in
which jurist and theologian meet the philologist.
. . . .
We can, then, distinguish what is truly common to all forms
of hermeneutics: the meaning to be understood is concretized and
fully realized only in interpretation, but the interpretive activity
considers itself wholly bound by the meaning of the text. Neither
jurist nor theologian regards the work of application as making free
with the text.
– Hans-Georg Gadamer (1989a; 327-28, 332)
Legal practice exemplifies the activity of hermeneutical understanding. The judge
deciding a case by interpreting a law in the rich factual context before her provides a particularly
vivid touchstone for philosophical reflection on the nature of understanding generally. Hans-
Georg Gadamer and Paul Ricoeur – the two leading post-Heideggerian hermeneutical
philosophers – both regarded law as a central focus for developing their wide-ranging and
differing approaches to philosophical hermeneutics (Gadamer 1989, 324-41; Ricoeur 2000). The
deep connections between law and hermeneutical philosophy are longstanding, running parallel
to the tradition of religious hermeneutics from the time that religion and law were first
distinguished from each other.
The quintessential hermeneutical task – discerning the meaning of a text from the past to
provide guidance in the present – has long defined both theology and jurisprudence. Legal
hermeneutics is now preeminent because law provides the institutionalized bedrock of social
cohesion in a multi-cultural environment within which multiple religious traditions co-exist.
Contemporary legal hermeneutics in the West operates within constitutional democracies, which
are devoted to ensuring due process and consistent treatment of similar cases by reference to
preexisting norms. This core value in modern legal systems often is summarized as governments
“of law and not of men,” (see Dallmayr 1990, 1452) and “that government in all its actions is
bound by rules fixed and announced beforehand – rules which make it possible to foresee with
fair certainty how the authority will use its coercive powers in given circumstances” (von Hayek
1945, 54). The rule of law appears to be premised on legal texts that have a single, persistent
meaning through time, but it is precisely this assumption that philosophical hermeneutics puts
into question.
Legal texts are now central to the operation of the rule of law, but this is an historical
development rather than a necessary feature of legality. The broad institutionalization of written
sources of law in the Roman Empire – culminating in the Code of Justinian in the sixth century to serve as a basis for governing a geographically dispersed and diverse set of situations and people – set the course for law in the Western world. Before the advent of codified law that required interpretation by later actors, law was more commonly identified with rhetorical performances. Greek laws were deeply rooted in custom and tradition, and cases were pleaded orally before large groups of citizens. This rhetorical tradition gave way to a textual focus.
It is not so surprising that, in the shift to a more literate culture, rhetoric was more or less replaced by hermeneutics, that is, by an interest in interpreting texts. . . . The role of hermeneutics in jurisprudence was based on the realization that no general rule could ever cover all the particularities of legal experience and practice. Fitting a particular case under a general law is always an act of interpretation (Gadamer 1984, 56).
Notwithstanding this shift in emphasis, Gadamer recognizes the persistence of the rhetorical foundation of legal practice. He emphasizes that “the rhetorical and hermeneutical aspects of human linguisticality completely interpenetrate each other” (Gadamer 1976, 25), and concludes that “there is a deep inner convergence with rhetoric and hermeneutics” (Gadamer 1984, 54-55). Legal practice is a dialectic of hermeneutics and rhetoric, and so in this setting hermeneutical philosophy is inextricably yoked to rhetorical theory (see Jost and Hyde, 1997). Recovering this more expansive understanding of legal practice girds the insights of philosophical hermeneutics in criticizing the simplistic approaches to legal interpretation.
