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.Images: Hobbes, Holmes.
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."
Tuesday, August 10, 2010
Kellogg on Hobbes, Holmes, and Dewey: Pragmatism and the Problem of Order
Posted by Mary L. Dudziak
Hobbes, Holmes, and Dewey: Pragmatism and the Problem of Order has just been posted by Frederic R. Kellogg, The George Washington University. Here's the abstract: