The Social Dimension of Legal Induction: The Problem of Legal Similarity and the Process of Entrenchment
11 Pages Posted: 14 Apr 2014 Last revised: 24 Mar 2015
Date Written: April 13, 2014
After attending lectures on the logic of induction by C.S. Peirce in 1866 and reading J.S. Mill’s A System of Logic, O.W. Holmes Jr. echoed Mill’s critique of the syllogism and his notion of "reasoning from particulars to particulars." In an 1870 paper he adds an element of the emergence of generals from particulars, recognizing a social dimension of legal induction, wherein the bearing of particular to general is one of consensual integration from repeated experience into a developing system of classification.
Holmes’s rejection of the syllogism in The Common Law is well known, but not his attendance at Peirce’s 1866 Lowell Lectures, where Peirce addressed the improper use of the syllogism with respect to "occasions," as opposed to objects with extension. Peirce also criticized Mill’s assumption of a natural similarity among particulars, requiring no human selectivity. This paper suggests that Holmes applied these insights to law, analyzing how legal similarity is negotiated and eventually entrenched in the common law.
Keywords: Holmes, Peirce, Mill, Whewell, Goodman, logic, syllogism, induction, legal similarity, entrenchment
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