AuthorNewton, Benjamin Patrick
PositionBook review

OLIVER WENDELL HOLMES JR. AND LEGAL LOGIC. Frederic R. Kellogg. (1) Chicago, IL: University of Chicago Press, 2018. Pp. 229. $45.00 (Hardcover).


    Skepticism is a defining characteristic of the jurisprudence of Oliver Wendell Holmes Jr.; but is it one born of deduction or induction? Induction, argues Frederic R. Kellogg, compelled Holmes to tentative legal generalities--specifically, moral generalities. Moreover, he maintains that Holmes did not advocate a legal realist position, that the law is what judges say it is, but rather that judges participate in an ongoing dialectical "social induction" to discover what the law is or ought to be. But Kellogg misunderstands that Holmes' skepticism arose from his early conclusion that natural right cannot be known and the law is what the whim of the shifting dominant faction of the community says it is. Holmes deduced that law rests on force. Kellogg's misunderstanding is owed to his omission of several of Holmes' most important jurisprudential writings.

    Kellogg's book, the third he has written on Holmes, (3) and one intended for a wider audience, is divided into an introduction, ten chapters, bibliography, and index (pp. 7, 20). Fhe introduction advances the plan of the book and its two main arguments, first, that Holmes' skepticism is the result of an inductive turn in his reasoning, influenced principally by his reading of John Stuart Mill's A System of Logic, (4) and, second, that Holmes' court decisions, especially his dissents, are the result of his stance that a judge's rulings participate in a dialectical "social induction." The first three chapters discuss Holmes' early thought, Mill's influence on it, and Holmes' own expansion on Mill's inductive reasoning toward "social induction." The fourth and fifth chapters critique past criticisms of Holmes' jurisprudence in light of the first three; most interestingly, in the fifth, Kellogg maintains that Holmes has been incorrectly labeled a legal realist. While the first half of the book focuses somewhat closely on Holmes and his writings, the second half focuses somewhat extensively on Holmesian scholars and their writings. Thus, the last five chapters do not have the coherence of the first five, as they seem to meander in analyzing further the book's two main contentions, especially in light of other scholars' own claims with regard to both. While Sheldon M. Novick's edition of Holmes' collected works (5) is listed in the bibliography, a number of Holmes' most important jurisprudential writings reproduced there are entirely omitted in Kellogg's text and notes, most notably, "The Gas-Stokers' Strike" and "Natural Law." (6)

    Kellogg portrays Holmes as a Baconian empiricist (pp. 8, 2122, 31, 89, 99), one chiefly influenced by first meeting Mill and then reading his Logic in 1866 (pp. 8, 9, 18, 20, 22, 26, 37, 89ff., 104, 169, 170). But whereas Mill emphasized the inductive reasoning which occurs within a single mind, Kellogg argues Holmes stressed the inductive reasoning which transpires among many minds. If induction is an epistemology of taking particular experiences and extracting from them provisional generalities, including legal generalities, "social induction" is an ongoing dialectic among many minds, contemplating and categorizing many experiences (pp. 21-22, 113). The benefits of such "social induction" are two. First, it indefinitely refines man's understanding of what is naturally good for him, and thus allows for moral progress. Second, it acknowledges changing circumstances, and so permits judges to rule in such a way that communal opinion and natural right roughly coincide to better ensure legal stability. It is in this way that Kellogg accounts for Holmes' continual emphasis on the growth of the law (pp. 24, 57, 66, 78, 86-87, 99, 106, 121, 142ff., 149, 179, 181).

    But while Holmes did indeed declare that law must reflect the opinion of the dominant faction of the community, insofar as a law contrary to it "would be empty words, not because it was wrong, but because it could not be enforced," he rejected the possibility of natural right. (7) The basis of this rejection was his conclusion that what cannot be quantified cannot be known. Holmes was certain only that man is selfish, all association is magnified selfishness, and the law conforms to the arbitrary opinion of the shifting dominant faction simply because it can be enforced. In short, the force of Holmes' logic rests on Holmes' logic of force:

    This mode of thinking [i.e., that the force...

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