Professor Frederick Kellogg's recent book, Pragmatism, Logic and Law, is hard to describe. It lacks a clear over-arching argument or narrative account, consisting instead of a series of disparate insights and observations. Nevertheless, a theme emerges from it that is both real and important.
The book may be best described as an interpretation and endorsement of a particular version of legal pragmatism, one attributed to Oliver Wendell Holmes, Jr. Professor Kellogg has written four other books on Holmes, and this book continues the theme. He argues that early in his career Holmes drew on his knowledge of the common law in wrestling with fundamental philosophical issues, such as the problem of induction and the nature of scientific inquiry more broadly. According to Professor Kellogg, Holmes's chief insight was to see that scientific inquiry is a social process, which involves many minds and takes place over time—just like the common law (pp. 5–6, 41–42). In this way, Holmes gave a pragmatist gloss to the common-law tradition going back to Sir Edward Coke and Matthew Hale (p. 77). Like the common law, truth itself is in part “made,” rather than discovered, and is the product of a “diachronic” process, rather than a “synchronic” one (p. 31). The bulk of the book consists of various efforts either to show the intellectual antecedents to, and influences upon, Holmes's views on these matters (e.g., John Stuart Mill or Charles Sanders Pierce) or to prove their value for subsequent theoretical debates about law (e.g., the problem of legal “indeterminacy”).
The problem is that these efforts do not hang together in a coherent argument or narrative thread. The book is structured around three parts whose titles give the appearance of a chronological organization: “Part I: Origins of a Logical Reconstruction,” “Part II: Pragmatism and Twentieth-Century Legal Theory,” “Part III: The Crisis of Contemporary Law,” and “Part IV: The Future of Legal Pragmatism.” But appearances are misleading. The very long chapter that begins Part III returns to the same terrain (Pierce's early lectures and their possible influence on Holmes's thought) that was covered in Part I. And even the very last chapter, the only one in “Part IV: The Future of Legal Pragmatism,” returns to Holmes's experience in the Civil War, which is where the book begins. In between, many of the chapters explore the same themes, even drawing the same points from the same sources (see, e.g., pp. 59, 163). The problem of induction is taken up in several chapters in Part I (Ch. 1, 2, and 4), and the issue of legal indeterminacy is discussed at various places in Parts II and III (Ch. 5, 7, 8, and 9). All of this makes the book feel more like a collection of essays than a single book. Indeed, the author notes in the Introduction that some of the chapters are based on previous papers. It reads as such.
Even within the various chapters it is not easy (at least for this reader) to follow the thread of Professor Kellogg's arguments. Chapter 1 (“The Early History”), for instance, begins with Holmes's sometime-interlocutor and fellow Metaphysical-Club member, Chauncey Wright, then takes the reader back to Lord Bacon's 1620 Novum Organum, then analyzes the meaning of “pragmatism,” then returns to Bacon, before going looking at Holmes's diary in the 1860s, which takes us again to Wright and onto William James and, eventually, to Charles Pierce's 1966 Lowell Lectures (pp. 11–18). The difficulty is aggravated by poor copy-editing. At one point, a block quote includes material clearly not intended to be included in the quote (p. 30). At another point, a section with the header “Dworkin and Natural Law” mentions neither Dworkin, nor natural law (pp. 56–58).
In fairness, though, Professor Kellogg has set himself an extremely difficult task. He is simultaneously attempting to make historical claims about the intellectual influence of particular people on other people while at the same time making philosophical claims about the nature of law, adjudication, and science. Any such effort risks not only confusing the two sorts of claims but failing to adequately establish either independently. Thus, Professor Kellogg does not engage with much of the historical work on Holmes (Catherine Wells's work is a particularly glaring omission), nor do his jurisprudential claims recognize various distinctions legal philosophers have drawn (e.g., between the “separability” and “social-fact” theses) in order to get clear what it means for law to be “separate” from morality.
All that said, there is something oddly refreshing about the slightly slap-dash, almost frenetic quality to this book. One gets the sense that the essays—I mean chapters—that constitute it are the product of genuine intellectual passion and curiosity. When Professor Kellogg leaps around from Karl Mannheim to Holmes to Emile Durkheim to 20th-century sociologists of knowledge (as he does in Ch. 11, “American Pragmatism and European Social Theory”), it is hard not to feel that one is being taken on an intellectual adventure of sorts. And that adventure contains unexpected insights and surprising observations along the way, such as the suggestion that Holmes understood the common law's “reasonably prudent person” as an historicized version of Adam Smith's “Impartial Spectator.” He is a spectator (and actor) who has had the benefit of learning from previous cases and conflicts (p. 53).
Moreover, even if the reader is not quite sure precisely which course is being charted on this adventure, or whether the chart is being followed, its guiding orientation is clear. Professor Kellogg's North Star is the idea that law, like science, is founded on human experience. That does not mean that it provides knowledge as certain as the laws of physics (if indeed those are certain). But it does mean that when we attend to the way in which judges and lawyers develop legal rules over time through the process of conflict-and-resolution that common-law decisionmaking has long entailed, we may not only be learning something about law; we may also be learning something about the nature of human inquiry itself.
