April 18, 2007
In his Oliver Wendell Holmes, Jr., Legal Theory, and Judicial Restraint, Frederic R. Kellogg gives an account of Holmes's theory of common law interpretation and showing its parallels to the pragmatic view of knowledge development. Again, that is the strength of the book. Kellogg summarized Holmes's view:
Holmes called this process "successive approximation." Legal rules are viewed historically, and Holmes here proposes that they be understood as emerging from classes of activity, or more precisely from classes of disputes within discrete activities. As new cases arise within a given class, for example, vehicular accidents or communications among people forming contractual arrangements, they are initially decided on their facts, a case at a time. Eventually, a body of decided cases can be "reconciled," with the laying down of a general rule, after time has permitted sufficient case-specific analysis, probing the relevant varieties and conditions of accidents or contractual communications. (p.28)
Through this gradual process of the accretion of a multitude of decisions, by juries and judges (Holmes's emphasis over time shifted from the former to the latter), rules begin to emerge, rules which reflect community values and practices. This description matches the pragmatist account of knowledge as the product of a community of inquirers pursuing projects in the world, refining what they know and do in accordance with successes and failures.
what drive this process is dealing with common problems thrown up by society, which is in a constant state of change.
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