32 Pages Posted: 9 Aug 2010 Last revised: 13 Oct 2010
Date Written: August 8, 2010
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.”
Keywords: jurisprudence, philosophy of law, pragmatism, law and morals, hard cases, principles, fallibilism, common law, moral sense theory, Scottish Enlightenment, Metaphysical Club, Hume, Holmes, Hobbes, Peirce, Dewey, Austin, Hart, Raz, Dworkin, Alexy, Kuhn
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