Tuesday, August 10, 2010

Kellogg on Hobbes, Holmes, and Dewey: Pragmatism and the Problem of Order

Hobbes, Holmes, and Dewey: Pragmatism and the Problem of Order has just been posted by Frederic R. Kellogg, The George Washington University. Here's the abstract:
Civil war was a catalyst in forming the jurisprudential views of Thomas Hobbes and Oliver Wendell Holmes Jr. In this paper I claim that Holmes's pragmatism advances a fundamentally distinct view of order from Hobbes, a dynamic rather than analytical and static conception, which can be seen by comparing their response to perennial conflict, which both made central in all its forms: military, political, moral, and intellectual. The difference is that Hobbes resolved the problem of conflict through authority, while Holmes does so through inquiry and the adjustment of practices.

I propose three dimensions in which to elucidate this: historical, ontological, and practical. By historical I mean Holmes's replacement of the Hobbesian analytical model of law, designed to address (and presumably suppress) conflict by state control, with an endogenous model that assimilates conflict in a process of formal but communal inquiry into discrete types of dispute. By ontological I mean Holmes's rejection of the analytical boundary around law, dating to Hobbes and still reflected in the contemporary separation of law and morals, in favor of a holistic fallibilism, which like Dewey's encompasses all inquiry - legal, scientific, ethical, aesthetic, philosophical - under one ontological roof. The third or practical dimension refers to Holmes's critique of ideology, best known from the words of his famous dissent in Lochner v. New York: "The fourteenth amendment does not enact Mr. Herbert Spencer's Social Statics"; or, more to the point, "general propositions do not decide concrete cases."
Images: Hobbes, Holmes.

4 comments:

Patrick S. O'Donnell said...

This paper should not have cited Hobbes in its title, as there is no real engagement with Hobbes's ideas on law apart from a couple of perfunctory references and gross generalizations, the dismissive and simplistic comment in the abstract about Hobbes holding an "analytical and static conception" of the law emblematic of the problem.

Mary L. Dudziak said...

Patrick, what do you think are the most helpful works on Hobbes and the law? And especially on the relationship between Hobbes and Grotius?

I’ve been reading Anders Stephanson on the Cold War, and he has this passage in an influential essay:

"Medieval peace, then, is understood as the ‘natural’ condition, marked by iustitia
(meaning both ‘right order and justice, caritas, tranquillitas, securitas. War is
disturbancetice, upsetting the right order of justice and hence ‘unnatural.’ Private feud
and public war are not clearly distinguished. The medieval order disintegrates in due course and
individual states begin to emerge, themselves eventually falling into confessional civil wars in
the early modern period. A situation of extreme insecurity ensues. These intra-Christian
conflicts actually included absolute negations along the lines of a cold war. Consider
Cromwell’s position on Spain in the 17th century: “With France one can make peace, not with
Spain because it is a papist state, and the pope maintains peace only as long as he wishes.”

"Hobbes, Cromwell’s contemporary, is the theorist who breaks most decisively with the medieval
conception by making war and insecurity the natural state, thus requiring all reasonable human
beings to create an unlimited, absolute sovereignty, an artificial man, so as to prevent nature
from having its way. Only thus could one make possible commodious living for everyone.
Legitimacy, then, is for him solely a matter of securitas pacis. Justice has disappeared, or,
rather, it is transformed into law and order. Authority makes peace, says Hobbes; Truth does
not. Truth, on the contrary, is associated with religious claims and so, in his view, with the very
fanaticism that had initiated the devastating civil wars.

"Yet the imposing word of Hobbes was not everywhere in the 17th century the word of polite
society. Theorists of ‘natural rights’ offered less radical alternatives, the most noteworthy here
being that of Grotius..."

I would be so interested in your take on this, and reading suggestions, which you are so good at. Stephanson only briefly invokes Hobbes, so perhaps you will find it subject to the same criticism as the Kellogg paper? But his focus, in this wide-ranging essay, is the Cold War after all, not Hobbes specifically. Many thanks for any thoughts!

Patrick S. O'Donnell said...

Mary,

Permit me to preface my recommendations by noting that I’m not at all an expert on Hobbes’s moral and political philosophy in general or his views on law in particular. That said, with regard to the quoted material from Stephanson, there’s much to quibble with in the statement about the “disappearance of Justice,” particularly if one, after Sharon Lloyd (a philosophy professor at USC), appreciates the operation of moral constraints on legitimate governmental law and policy that attend the imposition of the all-important “reciprocity principle” (or ‘theorem’) in Hobbes’s three major works on political theory or philosophy (De Cive, Leviathan, and Behemoth). I would also, again after Lloyd, vigorously disagree with the remark about truth, for Hobbes believed in the truth of Natural Law (and the principles derived therefrom) and the truth of his argument(s) concerning same, arguments in the service of Peace, and he took the truth claims of religion seriously enough to take up more than half of the Leviathan reinterpreting Scripture, and “redescribing and rationalizing his readers’ religious interests.” (I happen to think Hobbes was a Christian, but that fact may be, in the end, irrelevant with regard to the coherence and soundness of his arguments.) The relevance of truth is evident in the fact that Hobbes views the Laws of Nature to be simultaneously rules of prudence, morality and natural religion (what Lloyd describes as his ‘doctrine of the unity of practical wisdom’), in other words, “his moral philosophy of cases in the Law of Nature is connected to his characterization of Christian religion and his political philosophy of the rights and duties of sovereigns and subjects in a commonwealth,” thus truth ramifies throughout his political theory.

First, let me recommend a general introduction to Hobbes’s thought, one endorsed by Lloyd herself, namely, A.P. Martinich’s Hobbes (Routledge, 2005). After that, the SEP entry on Hobbes’s moral and political philosophy* co-written by Lloyd has an excellent and manageable bibliography. But I think everyone should read Lloyd’s first work, Hobbes: Ideals as Interests in Hobbes’s ‘Leviathan’: The Power of Mind over Matter (Cambridge University Press, 1992), a book that makes a decisive break with the views enshrined in the works of Gauthier, Kavka, Hampton and others, offering what I find to be a rather eloquent and persuasive overall re-interpretation of Hobbes’s moral and political philosophy.** Next, Lloyd’s latest work is also indispensable (I should have a review of it posted anon at Concurring Opinions): Morality in the Philosophy of Thomas Hobbes (CUP, 2009). Much of her argument is compatible with the late Perez Zagorin’s Hobbes and the Law of Nature (Princeton University Press, 2009) (I will post a short review of this book at Jotwell), another work I can recommend without reservation. By my lights, these books represent the crème de la crème in sensitive and sophisticated analyses of Hobbes’s moral and political philosophy (of course the Martinich book introduces the full range of Hobbes’s philosophical corpus). No doubt others will disagree with my assessment.

As to the relation between the thought of Grotius and Hobbes, this is discussed in the second chapter of the Zagorin book, with important references in his endnotes.

I hope this is helpful.

* http://plato.stanford.edu/entries/hobbes-moral/

** I discuss her first book at Ratio Juris here: http://ratiojuris.blogspot.com/2010/01/moral-political-philosophy-of-thomas.html

here: http://ratiojuris.blogspot.com/2010/01/moral-political-philosophy-of-thomas_28.html

and here: http://ratiojuris.blogspot.com/2010/01/moral-political-philosophy-of-thomas_29.html

Mary L. Dudziak said...

Thank you!