Confessions of a News Junkie

"The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, institutions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics."

Oliver Wendell Holmes, Jr. of course...

"I hardly agree, therefore, with the opinion of that man who tried to curb the authority of his judges by a multitude of laws, thus cutting their meat up for them. He did not understand that there is as much liberty and latitude in the interpretation as in the making of them. And those men who think they can lessen and check our disputes by referring us to the actual words of the Bible are deluding themselves, since our mind finds just as wide a field for controverting other men's meanings as for delivering its own. Could there be less spite and bitterness in comment than in invention?

We can see how mistaken he (Justinian) was. For we have in France more laws than the rest of the world put together, and more than would be necessary for all the worlds of Epicurus. 'As we once suffered from crimes, so now we suffer from laws' (Tacitus); and yet we have left so much for judges to consider and decide, that there has never been such complete and uncontrolled freedom. What have our legislators gained by picking out a hundred thousand particular cases and deeds, and attaching to them a hundred thousand laws? This number bears no relation to the infinite diversity of human actions. The multiplication of our imaginary cases will never equal the variety of actual examples. Add to these a hundred times as many, and yet no future event will ever be found so to tally, so exactly to fit and match with one out of the many thousand selected and recorded, that there will not remain some circumstance or variation which requires separate consideration and judgment. There is little relation between our actions, which are perpetually changing, and fixed, immutable laws. The most desirable laws are those that are the fewest, simplest, and most general; and I even think that it would be better to be without them altogether than to have them in such numbers as we have them at present."

Michel de Montaigne "On Experience," Essays

I found it interesting that Montaigne took an extended essay on "experience" to discuss the relationship between a legislature and a judiciary. The term "experience" is one with a rich and particular philosophical history. Men like Dewey and James were aware that they were speaking from this tradition when they gave "experience" its prominent role in their Pragmatic philosophy. Emerson wrote an extended, and wonderful, essay entitled "Experience" in 1842. Holmes was well-acquainted with the Pragmatists, so I wonder if he meant something more specific in the above mentioned quote. A little hermeneutical exercise I guess. Dewey used "experience" as the basis for a suggested reform of education, and for all the pragmatists it bore a strong relation to "truth." The fact that Holmes places "experience" as the counterpoint to "logic" or the "syllogism" suggests that he was firmly placed in this tradition that was attacking the ideal or syllogistic nature of truth (the Pragmatic conception of "truth" is considered among the most radical in the history of philosophy).

One may struggle for a long time with Emerson's essay "Fate," until until it is suggested to him/her that Emerson was heavily involved in American Hegelianism, and the German word for fate, Schicksal, especially as used by Hegel, conceptually contains a compatible notion of freedom and necessity. Absolute or "immediate" freedom, in the Hegelian sense, has to be mediated dialectically by determinism before it becomes a useful concept. One is not free unless one is "freed up for their destiny" (if you look back to Kant you see the most developed notion of the tension between freedom and determinism, freedom means nothing unless it means obeying a law you give to yourself, etc..).

Experience was a big catch-phrase in post-Kantian German thought. Erlebnis or erleben (experience or to experience) had become cache, extending on the "aesthetic experience" to suggest that life itself was to be considered as merely the lived-experience (the root Leben is "life" of course...er-leben is like "living-through"). I wonder what it would be like to do a thorough and hermeneutical reading of Holmes' The Common Law. It would be interesting to place it in the context of American Pragmatism, and its given place in a dialogue with European, and particularly German, thought (because I think German thought, with a touch of British Empiricism, was the most important source for American Pragmatism, but also because German thought is what I know). I think Holmes was involved in a much richer philosophical consideration of jurisprudence and judgment than that for which he is given credit.

Historically the rise of the "life-experience" (Erlebnis) philosophies grew out of an extension of Kant's 3rd Critique, or the Critique of Judgment (Kritik der Urteilskraft). Kant had inadvertently subjectivized the aesthetic experience. When later Romantic thought extended the idea of the aesthetic to encompass the whole of experience, and removed the transcendental-ideal underpinnings of Kant's work, the relationship between judgment and experience was sewn even tighter. Later, thinkers like Heidegger and Gadamer attacked these radically subjective notions of experience and judgment (Heidegger altogether replaced the "experience" of the individual in his later work with the "event of Being," Ereignis). In this later work the so-called faculties; knowing, thinking, judging and experience are all tied together and de-centered.

We never "know," rather we recognize (to know-erkennen, and to recognize-weidererkennen--"Rather when we say 'to know' [erkennen] we mean "to recognize" [ weidererkennen], that is, to pick something out [herauserkennen] of the stream of images flowing past as being identical). Knowing, being the result of thinking (denken), which is always actually a remembering (andenken), or a thinking backward that projects itself forward so that we can have that moment of identity that happens in recognition (weidererkennen) that we call "knowing" (erkennen ). Aristotle called this moment the epagoge where the universal is formed. The formation of the universal or concept has been problematic to epistemology from day one. What I am suggesting, following Heidegger and Gadamer, is that it is a circular process so it is not amenable to the linear "rational" process that the Tradition has tried to squeeze it into, both formally and substantially (see above Holmes inveighing against axiomatic conceptions of judgment).

What is the basis of the formation of this identity, traditionally it is called "judgment" (Urteilskraft), the process by which the particular is subsumed by the universal, or the universal is built up from a series of particulars (according to Kant, the first is the judgment of logic and the second is the aesthetic judgment...both are problematic). Judgment and understanding ( Verstand or verstehen as either the noun or verb) are traditionally linked, and this is especially drawn out in the work of Heidegger and Gadamer considering the "hermeneutic circle." According to Heidegger, our understanding is fore-structured. This means, for instance, that when we enter a room we do not get hit with a mass of sensations (say a series of odors) that calls up a concept, Cake, that we then apply to the series of odors and say, "we have apprehended a particular cake in this room." (See above, the up and down judgment of aesthetics and then logic). Heidegger suggests that our understanding goes before us, and this fore-structuring is a basic characteristic of our Being as the "being that understands." Gadamer follows this with his rehabilitation of the term "pre-judice" ( Vorurteil--fore-judgment). Our judgments always relate back to a prior judgment that is made in order to apprehend the thing. It is the understanding that goes before us in order to facilitate recognition or knowing in any meaningful sense (the words for under-standing...that which stands under, verstehen or förstå...to stand before..these words hold a clue to this be-fore or grounding nature of the concept of understanding).

As an aside, this is groundless...of course, its the searching for a "ground" that is cast aside in taking up a circular or "experiential" conception of judgment, over a syllogistic one (which is also groundless despite requiring a ground). This is dealt with, but outside the scope of this brief outline. Early on, Heidegger just suggests that our kind of being, Dasein, is itself groundless. Its not a mere postulate, but requires quite a bit of understanding. Briefly though, if you consider these "faculties" to bear a very intimate relationship to language, then you can see that we are never able to get behind or above language in order to find its proper source or ground. We are always in it if we are exercising knowing, understanding and judging in any human sense. This provides us with an irreducible perspective, the corner we stand in to ascertain the other three corners. This is also why the origin of language has always been explained with a series of myths, "In the beginning there was the Word," man is naturally " zoon ekon logon" (forgive my bad romanized Greek) or the animal with language...on the way to language we are truly dealing with an a-poros, or "no way." The point is that the groundlessness is essential to the whole project and not a defect.

Finally, and tying up this long musing on Holmes, judgment and experience. What is it that grounds our fore-understanding or pre-judices that make understanding and judgment possible? It is the much vaunted experience (in later Heidegger it is the "event of being" or Ereignis that sends our delivers a destined "understanding of being"...interesting, but a little too mystical and, as I have argued before, authoritarian). But it is no longer the life-experience of the solipsistic Romantic subject, rather it is the common understanding that comes from being finite and placed historical beings...it is our "destiny" by being in a particular (specifically linguistic) history (interestingly, history, Geschichte, and destiny, Geschick, are easy to play on poetically in German).

So we are back toward the beginning...The life of the law has not been logic; it has been experience. It is the dialogue that we are that provides the basis for this experience. I used to be asked whether or not I had problems with the undemocratic undertones of judicial Realism. I always said no, though I could not quite say why. I said that it had a kind of aesthetic or charismatic beauty to it that had a tendency to draw me in. That which is beautiful is per se communicable in the tradition of thought I come from. It is beautiful because a community of people agree from some "sense of community" (sensus communis) that the thing is beautiful. Here we have the aesthetic judgment, which I have always been guilty of Romanticizing. I think I was intuitively on to something then though, I simply did not have the conceptual framework for it.

The role of the judge, the pragmatic and to a lesser extent Realist judge, is not undemocratic because the life of the law has been experience . Our experience is the from-where that we cast forward when knowing, understanding and judging. This common understanding is free and democratic as a matter of semantics because it is the historical sending of a real and situated set of peoples. Finally, to quote Gadamer at length:

"I am trying to call attention here to a common experience. We say, for instance, that understanding and misunderstanding take place between I and thou. But the formation 'I an thou' already betrays an enormous alienation. There is nothing like an 'I and a thou' at all--there is neither the I nor the thou as isolated, substantial realities. I may say 'thou' and I may refer to myself over and against a thou, but a common understanding [ Verständigung] always precedes these situations. We all know that to say 'thou' to someone presupposes a deep common accord [ tiefes Einverständnis]. Something enduring is already present when this word is spoken. When we try to reach agreement on a matter on which we have different opinions, this deeper factor always comes into play, even if we are seldom aware of it."

The experiential approach to jurisprudence pre-empts the breaking up of common experience into ideal analytic units and then applying them to an alienated Object, he who stands before the Law. So, after that lengthy comment, I would like to know if a full theory of jurisprudence might lie in embryonic form in Holmes' writings that can take account of the tradition and development of Western philosophy, which Holmes was embedded in and aware of. Whether or not it might be more "democratic" and in touch with liberty than the 18th century formal notions we deploy these days. Finally, whether or not it might undercut the radical sidetrack of postmodernism (the logical conclusion of Romantic 19th century aestheticizes and subjectivizing of all things).