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Kellogg on Hobbes, Holmes, & Dewey

By Lawrence Solum

Frederic R. Kellogg (The George Washington University) has posted Hobbes, Holmes, and Dewey: Pragmatism and the Problem of Order on SSRN. Here is the abstract:

Civil war was a catalyst in forming the jurisprudential views of Thomas Hobbes and Oliver Wendell Holmes Jr. In this paper I claim that Holmes?s pragmatism advances a fundamentally distinct view of order from Hobbes, a dynamic rather than analytical and static conception, which can be seen by comparing their response to perennial conflict, which both made central in all its forms: military, political, moral, and intellectual. The difference is that Hobbes resolved the problem of conflict through authority, while Holmes does so through inquiry and the adjustment of practices.

I propose three dimensions in which to elucidate this: historical, ontological, and practical. By historical I mean Holmes?s replacement of the Hobbesian analytical model of law, designed to address (and presumably suppress) conflict by state control, with an endogenous model that assimilates conflict in a process of formal but communal inquiry into discrete types of dispute. By ontological I mean Holmes?s rejection of the analytical boundary around law, dating to Hobbes and still reflected in the contemporary separation of law and morals, in favor of a holistic fallibilism, which like Dewey?s encompasses all inquiry - legal, scientific, ethical, aesthetic, philosophical - under one ontological roof. The third or practical dimension refers to Holmes?s critique of ideology, best known from the words of his famous dissent in Lochner v. New York: ?The fourteenth amendment does not enact Mr. Herbert Spencer?s Social Statics?; or, more to the point, ?general propositions do not decide concrete cases.?

Full post as published by Legal Theory Blog on August 10, 2010 (boomark / email).