Fallibilism, as a fundamental aspect of pragmatic epistemology, can be illuminated by a study of law. Before he became a famous American judge, Oliver Wendell Holmes, Jr., along with his friends William James and Charles Sanders Peirce, associated as presumptive members of the Metaphysical Club of Cambridge in the 1870s, recalled as the birthplace of pragmatism. As a young scholar, Holmes advanced a concept of legal fallibilism as incremental community inquiry. In this early work, I suggest that Holmes treats common (...) law cases more like scientific experiments than as deductive applications of already clear rules. Common law rules may be seen as a product of 1) the conflicts that occur in society, 2) the channeling of conflicts into legal disputes, 3) the gradual accumulation of judicial decisions classified into groups, and 4) the development of consensual understanding, expressed in rules and principles, as to how future cases should be classified and decided. This does not involve only lawyers and judges. Especially in controversial cases, it may indirectly involve an entire community. The legal process is seen as an extended intergenerational process of inquiry. It illuminates the relation of thought, expression, and conduct among a community of inquirers, applied to the problems of social ordering. (shrink)

This essay builds on recent work by Susan Haack to suggest that Oliver Wendell Holmes Jr.’s conception of the common law was influenced by Darwinian evolution and classical pragmatism. This is no small claim: perceptions of what the common law is and does within the constitutional framework of the United States continue to be heavily debated. Holmes’s paradigm for the common law both revised and extended the models set forth by Sir Edward Coke, Thomas Hobbes, Sir Matthew Hale, and Sir (...) William Blackstone. Adding additional substance to Haack’s argument by pointing out passages in Holmes’s opinions and in his only book, The Common Law, that corroborate her claims about the particular features of Holmes’s pragmatism, this essay concludes by suggesting that, because of his connections with the classical pragmatists and his reverence for Emerson, Holmes is the best place to begin answering the famous question formulated by Stanley Cavell: “What’s the Use in Calling Emerson a Pragmatist?”. (shrink)

Volume 19, Issue 1, February 2020, Page 78-88.

Prof. Haack answers a series of questions on pragmatism, beginning with the origins of this tradition in the work of Peirce and James, its evolution in the work of Dewey and Mead, and its influence beyond the United States in, for example, the Italian pragmatists and the radical British pragmatist F. C. S. Schiller. Classical pragmatism, she observes, is a rich and varied tradition from which there is still much to be learned—as the many ways her own work in logic, (...) epistemology, metaphysics, philosophy of science, and philosophy of law has been informed by the old pragmatists testify. Of late, however, this tradition has been misunderstood, impoverished, and vulgarized by self-styled neo-pragmatists; here, Haack turns her attention specifically to the conception of pragmatism as essentially a political philosophy, and the near-vacuous equation of pragmatism with “problem-solving.”. (shrink)