Legal Fallibilism: Law (like Science) as a Form of Community Inquiry

Discipline Filosofiche, Vol. 19, No. 2

18 Pages Posted: 8 Oct 2009

See all articles by Frederic R. Kellogg

Frederic R. Kellogg

Universidade Federal de Pernambuco (UFPE); Universidade Federal de Pernambuco; George Washington University

Date Written: October 7, 2009

Abstract

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.

Keywords: fallibilism, pragmatism, philosophy of law, philosophy of science, jurisprudence

Suggested Citation

Kellogg, Frederic R., Legal Fallibilism: Law (like Science) as a Form of Community Inquiry (October 7, 2009). Discipline Filosofiche, Vol. 19, No. 2, Available at SSRN: https://ssrn.com/abstract=1484623

Frederic R. Kellogg (Contact Author)

Universidade Federal de Pernambuco (UFPE) ( email )

Cidade Universitária
Cidade Universitária, Pernambuco 50670-901
Brazil

Universidade Federal de Pernambuco ( email )

2027 Q Street NW
Washington, DC 20009
United States
2022344620 (Phone)

George Washington University ( email )

2121 I Street NW
Washington, DC 20052
United States

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