Frederic R Kellogg | Harvard University (original) (raw)

Papers by Frederic R Kellogg

European Journal of Pragmatism and American Philosophy

PRAGMATISM TODAY, 2023

The economist Kenneth Arrow, in Social Choice and Individual Values (1951), famously proved that ... more The economist Kenneth Arrow, in Social Choice and Individual Values (1951), famously proved that a society of diverse preferences can only be ordered by dictatorship. Unless diverse preferences can adjust, electoral democracy cannot govern. Philip Kitcher, in Moral Progress (2021), emphasizes the importance for moral progress of sympathetic understanding of others through "ideal" conversation. This paper contends that conversation alone is inadequate for resolution of conflicts in a democracy. Conflict is accompanied by discourse, but preferences are grounded in habits. Social habits, and shared patterns of conduct, resist adjustment in response to discourse alone. Yet habits and preferences demonstrably adjust in the process of conflict resolution, potentially resolving Arrow's impossibility problem. The paper advances a pragmatic theory of preference conflict distinct from the Marxist model of power-oriented class or group conflict. Pragmatic conflict is not strictly constituted of group power struggles, but of aggregated preferences, a more common, indeed endemic, formation and interaction of opposing opinions and beliefs in response to multiple shared problems. Preference conflict theory illuminates the boundary between inquiry and violence in the polarization of aggregated opposing interests. It is open to a fluid Deweyan transformation, in the continuum of inquiry, through which specific problems can be democratically recognized, defined, and resolved by incremental group preference adjustment, as discrete problems are identified and remedial practices are adopted through stakeholder input, enforceable through law.

John Marshall Law Review, 2002

Page 1. HOLMES, COMMON LAW THEORY, AND JUDICIAL RESTRAINT Frederic R. Kellogg* Introduction Judic... more Page 1. HOLMES, COMMON LAW THEORY, AND JUDICIAL RESTRAINT Frederic R. Kellogg* Introduction Judicial restraint is a subject properly bound with the interpretation, and hence the definition, of law. The nature and ...

University of Chicago Press, 2018

Using two examples of ethical choice, Philippa Foot's snake and the traffic roundabout, this pape... more Using two examples of ethical choice, Philippa Foot's snake and the traffic roundabout, this paper offers an account of normative induction that characterizes particularism and generalism as stages of normative inquiry, rather than rival accounts of moral knowledge and motivation. Ethical particularism holds that the evaluative cannot be " cashed out " in propositional form, and that it is descriptively " shapeless. " Drawing on examples from law, this paper claims that, while individual normative inquiry may be viewed as encountering a shapeless particularist context of seemingly unlimited non-moral properties, normativity is driven by repetition of similar situations toward shared practices and descriptive predication. Rather than retention of epistemic status by defeated reasons, this illustrates retirement of relevant properties and accompanying reasons, transformation of the reasons environment, and a pluralist normative ontology.

Page 1. Frederic R. Kellogg Holistic Pragmatism and Law: Morton White on Justice Oliver Wendell H... more Page 1. Frederic R. Kellogg Holistic Pragmatism and Law: Morton White on Justice Oliver Wendell Holmes Theory of law is a recalcitrant candidate for the philosophical canon. Legal problems are practical, messy, and often ...

Criminology, 1977

Does current disenchantment with rehabilitation and the movement toward determinate sentencing si... more Does current disenchantment with rehabilitation and the movement toward determinate sentencing signal a return to "retribution"? To the

Ronald Dworkin and Critical Legal Studies (CLS) both focus on what Jeremy Waldron terms the “back... more Ronald Dworkin and Critical Legal Studies (CLS) both focus on what Jeremy Waldron terms the “background elements” of the legal system—“the principles and policies that lie behind the rules and texts that positivists emphasize.” Dworkin has long claimed that recourse to the background affords a necessary and sufficient resource to support legal decisions in cases where the foreground is disputed or indeterminate. According to CLS (taken as a general approach), the background is so riven with contradiction as to be capable of supporting any result, and thus inadequate for definitive recourse.
In his essay “Did Dworkin Ever Answer the Crits?” Waldron questioned whether Dworkin’s vision of law as integrity in Law’s Empire can overcome the CLS argument that opposing principles suffuse community. Lately, Dworkin’s Justice for Hedgehogs advances a unitary view of interpretation against forms of skepticism that CLS writers vigorously defended.
Enlarging Waldron’s critique, this paper contends that the underlying issue is the nature of legal uncertainty itself. Both CLS and Dworkin have failed to appreciate that distinct forms of legal difficulty have varied theoretical implications for judicial recourse to general principles. Both privilege a
judge-oriented individualist epistemology of legal principles (as Dworkin’s mythical super-judge “Hercules” exemplifies).
The view offered here rejects the univocal conception of a “hard case” as outside a determinate foreground. Legal uncertainty may be related to developing but yet unresolved aspects of an underlying problem. This paper defends a restrained and participatory, or socialized, epistemology for legal principles, leaving space when appropriate for input from outside the adjudicatory system. This approach recognizes the need for adjustments of belief and conduct to resolve ongoing community conflicts. Rather than appealing to antecedent general principles in all hard cases, judges properly exercise minimalist restraint in the earlier stages of ongoing ontroversies.

After attending lectures on induction by C.S. Peirce in 1866 and reading J.S. Mill’s System of Lo... more After attending lectures on induction by C.S. Peirce in 1866 and
reading J.S. Mill’s System of Logic, O.W. Holmes Jr. echoed Mill’s critique of the syllogism and his notion of “reasoning from particulars to particulars.” But he added an element of the emergence of generals from particular judgments, in the social context of legal disputes. Here, the bearing of particular to general is one of consensual emergence, integration from repeated experience into a developing system of classification. This reflects the vision of the British scientist William Whewell, of the growth of knowledge through the tension between facts and ideas. Legal and scientific knowledge may be viewed as forms of community inquiry, focusing on the primacy of cases and exemplars in the process of intersubjective classification, and the role of concepts and theories in guiding the conduct of
professional inquirers, framing and maintaining the coherence of expert and general belief.

Contemporary analytical jurisprudence holds that the “doubtful” or “hard” case, not resolved by a... more Contemporary analytical jurisprudence holds that the
“doubtful” or “hard” case, not resolved by any clear legal authority, is either legally indeterminate or can be resolved only by judicial recourse to principles. There is an aspect of the “doubtful case” that militates against recourse to principle. When viewed as representative of an early stage of a continuing class of disputes, then (especially in controversial cases of broad import) judicial recourse to principles may lead to an improvident choice of reasons, and violates fundamental democratic values. This argues for early judicial minimalism or particularism, where judges resolve decisions narrowly, for two reasons: 1) principled resolution of all doubtful cases is inconsistent with the exploration and classification phase of
judicial inquiry, and 2) public debate among scholars and citizens should be permitted to play a role in the development of practical reasoning and the adjustment of practices surrounding broad controversies.

Max Scheler’s sociology of knowledge converges with nineteenth century American pragmatism in the... more Max Scheler’s sociology of knowledge converges with nineteenth century American pragmatism in the insight that knowledge neither precedes our experience of things (ideae ante res), as in Platonic idealism, nor follows from experience
in an empirical correspondence with an objective world (ideae post res). Scheler followed American pragmatism in viewing knowledge as residing in concrete human acts (ideae cum rebus), and both emphasized the role of social or community inquiry. How, given this insight, is knowledge to be understood? Much of the answer must be sought within specific realms of inquiry, like science, where a burgeoning but
controversial sociology of scientific knowledge has emerged in the wake of Kuhn’s Structure of Scientific Revolutions. What about law, if seen as another form of community inquiry? Given this convergence of American pragmatism and European social theory, it should not be surprising to find something similar to a sociology of legal knowledge implicit in the work of pragmatism’s classical legal theorist, Oliver Wendell Holmes Jr.
Holmes is conventionally interpreted as a forerunner of empirical legal realism, although the genealogy of his thought is distinct from that of the 20th century legal realists. Drawing on influences parallel to those of Peirce and James, he sketched the outline of a socialized epistemology of law, and an evolutionary formation and maintenance of legal rules and concepts. Conflict is assimilated in a process of formal but participatory inquiry into discrete types of dispute, through which conduct is adjusted even as legal knowledge is formulated in rules and concepts. Holmes’s pragmatic order is not grounded in an analytical or rationalist vision, nor in behaviorist mechanics, but is transitional, historical, and rooted in community. It is a prototypical example of ideae cum rebus.
In this paper I compare Holmes’s developmental theory, set forth in early essays and The Common Law, with Durkheim and Scheler. Unlike Durkheim, Holmes does not hold that categories of thought reflect features of group organization and social solidarity. The nature and modes of legal classification emerge against a historical background from resolution of conflicts among disparate interests. Holmes’s model is more skeptical of progress than Scheler’s, but accepts a role for meliorative intelligence in revising embedded habits and paradigms.

After attending lectures on the logic of induction by C.S. Peirce in 1866 and reading J.S. Mill’s... more After attending lectures on the logic of induction by C.S. Peirce in 1866 and reading J.S. Mill’s A System of Logic, O.W. Holmes Jr. echoed Mill’s critique of the syllogism and his notion of “reasoning from particulars to particulars.” In an 1870 paper he adds an element of the emergence of generals from particulars, recognizing a social dimension of legal induction, wherein the bearing of particular to general is one of
consensual integration from repeated experience into a developing system of classification. Holmes’s rejection of the syllogism in The Common Law is well known, but not his attendance at Peirce’s 1866 Lowell Lectures, where
Peirce addressed the improper use of the syllogism with respect to “occasions,” as opposed to objects with extension. Peirce also criticized Mill’s assumption of a natural similarity among particulars, requiring no human selectivity. This paper suggests that Holmes applied these insights to law, analyzing how legal similarity is negotiated and eventually entrenched
in the common law.

Unedited drafts by Frederic R Kellogg

Departing from hypothetical dilemmas and drawing on examples from law, this paper offers a pra... more Departing from hypothetical dilemmas and drawing on examples from law, this paper offers a pragmatist account of normative induction that characterizes moral particularism and generalism as stages of inquiry into ethical problems, rather than rival accounts of moral knowledge and motivation. Ethical particularism holds that the evaluative cannot be " cashed out " propositionally, that it is descriptively " shapeless. " Real moral problems occur in a continuum, and at first encounter a shapeless particularist context of seemingly unlimited non-moral properties. But normativity is driven by repetition of similar situations toward shared practices and descriptive predication. Rather than a Dancian retention of epistemic status by defeated reasons, this illustrates retirement of relevant properties and accompanying reasons, transformation of the reasons environment, and a pluralist normative ontology.
This paper contends that pragmatism’s response to analytical moral theory lies in understanding the transformative nature of John Dewey’s social continuum of inquiry. The actual continuum is unrecognized in the analysis of hypothetical dilemmas, like the trolley problem, but can clearly be seen in studies of law. Real moral dilemmas represent actual conflicts, the solution of which cannot be addressed through the analysis of cleverly balanced moral puzzles. Repeated over time, real problems drive the consensual formation and revision of social practices and the predication of general moral rules and principles.

Drafts by Frederic R Kellogg

This paper addresses the failure of analytical moral theory to recognize social conflict as drivi... more This paper addresses the failure of analytical moral theory to recognize social conflict as driving perceptions of utility, the necessity of convergence of opposing positions to produce a consensual viewpoint, and of the transformation of moral reasoning for successful resolutions. Law provides an empirical context for understanding normative inquiry as an extended, dispute-driven inductive process. Leading utilitarian conceptions view the calculus of normative reasons as static, picturing all expected consequences as if visible at once, through a lens displaying prospective utility. Utilitarianism is blind to the revision of reasons that must take place if opposing positions are to converge. Pragmatism stresses the necessity of retirement of incommensurable reasons for success in conflict resolution. Derek Parfit has argued that all three "secular moral traditions" of mainstream philosophy (consequentialism, Kantianism, and contractualism) are "climbing the same mountain." If so, all three are situated on a momentary, stationary conceptual landscape, attempting to perform what Parfit calls "moral mathematics" from a synchronic viewpoint. The analytical lens is blind to the often precarious world of engagement with specific moral problems, from which public acceptance and compliance must constantly be wrought, and on a piecemeal basis, not through a static global analytical rationale.

HUME. LOGICAL INDUCTION, AND LEGAL REASONING, 2019

“When we have found a resemblance among several objects, we apply the same name to all of them, w... more “When we have found a resemblance among several objects, we apply the same name to all of them, whatever differences we may observe in the degrees of their quantity and quality, and whatever other differences may appear among them.” (David Hume, A Treatise on Human Understanding , Book 1 Part 1 Sec VII para. 7)
David Hume's expository use of “we” is a commonly accepted discursive practice. But its use can leave out the possibility of disagreement over the purpose and consequences of a disputed resemblance. The expository “we” deploys an ideal observer of a paradigmatic situation; it obscures whether, in actual life, the
general statement of resemblance applies to all possible communities of speakers. It obscures the social dimension of establishing similarity. The issue of similarity doesn’t arise unless there is a practical uncertainty regarding the resemblance in question. Such practical uncertainty arises constantly in the operation of legal adjudication.
Naming is another crucial constitutive element in logical theory. What if the reach of application by a particular “name” is disputed by opposing interests within the same linguistic community? Parties to legal disputes may seek to gain coverage of a legal term (“liberty,” “equality,” even “murder”) for their own interests, and to exclude other interests. This can be seen in minor disputes, or in
major ones like the extension of the constitutional right of free expression to political campaign donations (hence the extension of “liberty”), of murder or homicide to doctor-assisted suicide, or of marriage to same-gender partners (implicating the extension of “equality”). Precisely what induction means in legal reasoning is the subject of this paper.

The question stated in this title does not arise in contemporary western legal philosophy. Why no... more The question stated in this title does not arise in contemporary western legal philosophy. Why not? Law is generally viewed as autonomous and deductive, a static body of rules and principles. Conflict is viewed as a problem that must be settled by law. This view reflects the social contract theory of Thomas Hobbes, where an omnipotent state is ceded authority to resolve or remove conflict inherent in the state of nature.

The American Civil War, itself a failure of law, gave rise to an alternative theory of law as an inductive system of inquiry, implying a threshhold of failure. Conflicts are viewed as endemic in society and the growth of knowledge and morals, and are either resolved through legal convergence of opposing practices and precedents, or lead to non-legal resolution, including violence. This pragmatist view, advanced following the Civil War by the young (later Supreme Court Justice) Oliver Wendell Holmes, emphasized law’s social and historical grounding, conceiving conflict resolution as an adaptive process of knowledge development and social order. Influenced by the experimentalism of natural science, it implies an extended continuum of inquiry, and the pragmatist logic articulated in 1938 by John Dewey in Logic: The Theory of Inquiry.

Books by Frederic R Kellogg

PRAGMATISM, LOGIC, AND LAW, 2020

This book frames a view of legal pragmatism designed to be consistent with pragmatism writ large,... more This book frames a view of legal pragmatism designed to be consistent with pragmatism writ large, tracing it from origins in late 19th century America to the present, covering various issues, legal cases, personalities, and relevant intellectual movements within and outside law. What is its overriding contribution? I will try to sketch an answer in this brief introduction, and outline the book. My challenge is to inform not just readers interested in legal pragmatism, but also those concerned with pragmatism in general, still taking shape as an intellectual movement.
While I will address pragmatism’s relation to legal liberalism, legal positivism, natural law, critical legal studies (CLS), and post-Rorty “neopragmatism,” my overall insight lies in viewing legal pragmatism as an exemplar of pragmatism’s general contribution to logical theory. In this regard it bears two connections to fundamental aspects of the western philosophical tradition: first, it extends Francis Bacon’s empiricism into contemporary aspects of scientific and legal experience, and second, it is an explicitly social reconstruction of logical induction. Both notions were articulated by John Dewey in Logic: The Theory of Inquiry in 1938, and both emphasize the social or corporate element of human inquiry. What this means is: viewing Baconian empiricism as informed by social as well as individual experience (which includes the problems of conflict and consensus), and seeing beyond the Aristotelian model of induction as immediate inference from particulars to generals, a model that assumes a consensual objective viewpoint. Pragmatism explores the actual, and extended, process of corporate inference from particular experience to generalization, in law as in science. This includes the necessary process of resolving disagreement and finding (not assuming or positing) similarity among relevant particulars. How this applies to legal interpretation and decision is the subject of this book.

European Journal of Pragmatism and American Philosophy

PRAGMATISM TODAY, 2023

John Marshall Law Review, 2002

University of Chicago Press, 2018

Criminology, 1977

HUME. LOGICAL INDUCTION, AND LEGAL REASONING, 2019

PRAGMATISM, LOGIC, AND LAW, 2020