FALLIBILISM IN LAW AND PHILOSOPHY: Regulative or Constitutive?
2009 SAAP paper submission
Joseph Margolis has recently compared the fallibilism of Peirce and Dewey, focusing on the questions of inquiry in its relation both to conduct and to ultimate conceptual objects, to its sharing both regulative and constitutive aspects. Oliver Wendell Holmes’s version of fallibilism combines an account of revision or “modification” of a general with the context of its origin and application. Like Dewey’s, it is not metaphysical, in the sense that the final rule will be nearer a “truth.” It is also patently related to the regulation of conduct or habit.
Like Peirce’s fallibilism, it is not entirely open-ended, as it does foresee the arrival at an “abstracted general rule.” The belief in, and implementation of, fundamental rights suggests a distinctly constitutive role of legal fallibilism, and it need not be alluded to in Kantian or Hegelian generalities. It is entirely empirical and naturalistic, and may be investigated in many and various specific legal decisions. Fallibilism in law is both regulative and constitutive, as a function of the beliefs and intentions of the community of inquirers.
FALLIBILISM IN LAW AND PHILOSOPHY: Regulative or Constitutive?
Joseph Margolis has argued, in Reinventing Pragmatism, that fallibilism is the central insight that characterizes the diverse pragmatic tradition and accounts for its expanding influence in contemporary American philosophy. In making that case, he distinguishes the fallibilism of C.S. Peirce from that of John Dewey, the former having given it a “metaphysical” element in his famous construct of the final opinion, the suggestion that truth can be found, indeed consists in, the infinite end of inquiry.
Common to both are the themes that (1) “with regard to any proposition, it is humanly possible to hold a mistaken belief” which is “tantamount to a denial of Cartesian indubitability,” and (2) “it is both possible and likely that, for any mistaken belief, a society of inquirers can, in a pertinently finite interval of time, discern its own mistakes and progress toward discovering the true state of affairs.” Yet, claims Margolis,
fallibilism takes two entirely different forms in Peirce and Dewey. In Peirce it signifies the perpetual postponement of inquiry’s ever arriving at the “truth about reality” . . . . In Dewey it signifies the restriction of all cognitive claims within a thoroughly fluxitive world, by means of practical skills (on which science depends) that first emerge from certain non-cognitive animal powers implicated in our survival and viability.
Favoring Dewey’s version, Margolis suggests that Peirce leads himself into a “paradox of the known object,” consisting of two incompatible claims, which Margolis summarizes as follows:
Claim 1: “the act of knowing a real object alters it” (5.555).
Claim 2: “the real thing is as it is, irrespectively of what any mind or any definitive collection of minds may represent it to be” (5.565).
Nathan Houser has recently defended Peirce by questioning whether Claim 1 is as central to Peirce as to Dewey, adding that Peirce never gave fallibilism a rigorous definition, and suggesting from other tolerant comments that he allowed it the broader view that both Dewey and Margolis favor. In any event, Houser commends Margolis for focusing on the variant implications of fallibilist theory and urges more attention to it. (2005) Both would appear to agree that, in Margolis’s words, discussion of Peirce’s fallibilism has been “remarkably slack.” (2007)
Surprisingly absent from contemporary discussion is extensive reference to specific cases and diverse types of actual inquiry. The nature of revision of cognitive claims would appear crucial, but how exactly does revision operate in diverse specific cases? What is the precise role of new experience, and what is its relation to the revision of signifying general propositions? More specifically, how is a general proposition reconstructed from new experience, and how do belief and habit interact in the process of continuing revision? And what, from case to case, is the nature of transformation of an object of knowledge? It is unlikely that such questions will be satisfactorily addressed in the absence of empirical inquiry, critical as fallibilism is for pragmatism’s future.
Some influence on Peirce’s fallibilism, as well as on his pragmatic maxim, must be attributed to Chauncey Wright, Peirce’s famous “boxing-master,” who in 1873 published his developmental study of human cognition, “The Evolution of Self-Consciousness,” written at the encouragement of Charles Darwin. Also in attendance at contemporaneous early meetings of the Metaphysical Club, besides Peirce and Wright, was Oliver Wendell Holmes Jr., who recorded individual meetings with Wright in his diary and later acknowledged his deep formative influence.
As early as 1870 we find in Holmes’s writings a distinctive understanding of graduated community inquiry in the approach to the formation and modification of legal rules and generalizations, which Holmes referred to as “successive approximation.” This is in fact an overlooked form of fallibilism, it was coherently and extensively developed by Holmes, and it illuminates the relation of thought, expression, and conduct in the process of inquiry among a community of inquirers.
Holmes’s “legal fallibilism” is a form of response to the resolution of emergent disputes in the common law tradition--that is to say, arising in the day-to-day and case-by-case operation of English and American courts of law. In his first tentative statement, Holmes writes in 1870:
It is the merit of the common law that it decides the case first and determines the principle afterwards. . . . In cases of first impression Lord Mansfield’s often-quoted advice to the business man who was suddenly appointed judge, that he should state his conclusions and not give his reasons, as his judgment would probably be right and the reasons certainly wrong, is not without its application to more educated courts. It is only after a series of determinations on the same subject-matter, that it becomes necessary to “reconcile the cases,” as it is called, that is, by a true induction to state the principle which has until then been obscurely felt. And this statement is often modified more than once by new decisions before the abstracted general rule takes its final shape. A well settled legal doctrine embodies the work of many minds, and has been tested in form as well as substance by trained critics whose practical interest it is to resist it at every step.
Depicted here is a process parallel to that of Peirce’s community of scientists engaged in the exploration of a common and ongoing, but specific, problem. The “many minds” in the final sentence include trained judges, as well as lawyers on opposing sides of a succession of recurring disputes that, when arising at the first instance, is better resolved without prejudgment according to a preexisting principle. Hence the “business man suddenly appointed judge” should decide the case on its facts but refrain from explanation, and the same indeed goes for “more educated courts.” The caution against premature generalization applies to the experts as well as the laity.
The early decision in an emergent controversy operates akin to a scientific experiment; it opens inquiry with a potential precedent for future similar cases. Like the record of scientific inquiry, that of legal inquiry consists at first of carefully recorded observation of multiple concrete experiences. The business man to which Holmes alludes, in an apparent reference to the “special juries” used by Lord Mansfield, was actually a juror, not a judge, and the role of juries has, since their emergence as triers of fact, been to reach a decision without legal explanation from their findings on the evidence.
Multiple evidentiary findings can reveal similarities. After a certain accumulation of jury decisions discloses a pattern, according to Holmes’s text, judges may initiate the process of generalizing. In law as in science, it is only after sufficient experience establishes a clear pattern that trained observers may begin to “abstract” a “general rule.” And as in science, this is done by “reconciling the cases,” which refers to the distinguishing of relevant from irrelevant detail in the articulation of a common rule or standard.
This suggests a parallel between scientists and lawyers evaluating and generalizing within an established professional tradition from records of diverse but related data. The data itself, in science and law, would appear radically distinct, but there is a sense in which the two forms of inquiry are comparable. Both are prompted by practical problems confronting the community at large, reflecting Peirce’s doubt-belief model of inquiry. In both, informal and non-professional attempts to resolve such problems, akin at first to self-help, have been replaced by formal and professionalized ones. As Holmes would later elucidate, the social understanding of legal disputes has in the western world abandoned a primitive culture of revenge, and undergone a transformation from personification to objectification through abstraction and systematic classification, in the emergence and growth of modern law.
This parallel has, quite naturally, been obscured by the emphasis of contemporary jurisprudence on legislation. There exists among nonprofessionals a common presumption that law largely operates by fiat from sovereign institutions and, accordingly, that the general rule or statement may be made firm, unrevisable, and clear in application. But the degree and complexity of litigation, and the perennial problem of resolving conflicts among disparate rules and statutes, not to mention constitutions, undermines this presumption. Close examination reveals that interpretation of statutory and even constitutional language, constantly applied to new and unforeseen circumstances, proceeds on a case-by-case revisionary basis that can equally be understood as fallibilistic.
Objectification as Common to Science and Law
In both science and law we may find distinctive forms of objectification. The identification of definable material objects and entities engages much scientific research, even while the nature of emergent scientific objects, as in particle physics, is to some degree hypothetical, evolving, and contingent upon means of observation. Yet despite the evidence of some conceptual transformation while inquiry is particularly active, common understanding resists the conclusion that scientific entities are constructed--as Margolis suggests of Peirce in Claim 2.
An interesting variation on this pattern may be found in law, where conceived legal entities, such as rights and duties, are given static objectivity by a language suggesting discrete objects in space, even while specific disputed rights and duties are constantly undergoing emergence or revision. Here too the majority of legal “entities,” legislated or otherwise settled basic rights and duties, are not in constant dispute. This is reflected in the fact that judges and lawyers commonly speak of the law as an analytical practice, involving logical relationships between fixed rights and duties. The image of fixity is reinforced by the language of objects applied even to emergent and still fluid patterns of legal controversy, as in the nature and extent of a constitutional right to “privacy.” But the imagery has drawbacks for analysis.
In controversial cases, where opposing rights are found to conflict, it is common to find legal language turning to the task of “balancing” the rights themselves. By that term another characteristic of concrete objectification, weight, is attributed to legal concepts. Such consideration, from a purely analytical perspective, distracts attention from the meandering path of judgments out of which particular rights have arisen. Here Holmes’s caution against premature rationalizing comes into play. A balancing analysis in a fresh situation may prompt a decision upon broader policy considerations than is warranted by the novelty of a particular case.
Conflict and the Modification of Conduct
If the fallibilist account of the emergence of legal concepts as entities is even roughly accurate, it should illuminate the challenge of resolving conflicts among them. Emergent rights are rooted in individual judgments, by jurors and others like the “business man,” made by comparing injurious with prudent conduct. The grounds on which such judgments are made is familiarity of juries and judges with prevailing standards of conduct in the community at large, with respect to the activity engaged in when an injury has occurred.
This progression is important. Standards of conduct are preceded by, and drawn from, patterns of activity; the standards of prudence are inferred from familiarity with the ways that things are done, with particular concern to base judgments on what is found to be the prudent or “correct” way. Failure to display a certain kind of light on a ship at night, which has become a common practice to decrease the likelihood of collision, becomes through common law judgments a reason for strict liability for collisions whenever the light was absent. Thus does common practice lead to a legal duty.
In effect, then, legal concepts demarcating rights and duties are cognitive products of prevailing patterns of conduct as gathered and interpreted by courts of law. This has special relevance for the methodology of resolving conflicts. When legal rights are seen to conflict in the abstract, the fallibilist recognizes that they represent findings drawn gradually from underlying patterns of conduct. A similar fallibilist methodology may be applied to their resolution. As Holmes writes in 1873,
The growth of the law is very apt to take place in this way: Two widely different cases suggest a general distinction, which is a clear one when stated broadly. But as new cases cluster around the opposite poles, and begin to approach each other, the distinction becomes more difficult to trace; the determinations are made one way or the other on a very slight preponderance of feeling, rather than articulate reason; and at last a mathematical line is arrived at by the contact of contrary decisions, which is so far arbitrary that it might equally well have been drawn a little further to the one side or to the other.[i]
In this account, as in the 1870 text, resolutions among existing rights are not resolved at once, through interpretation and application of an antecedent underlying set of legal principles. Instead they are gradually explored, first by gathering new experience, and then by appropriately timed retrospective examinations of an array of specific prior decisions. Holmes describes a process whereby the new cases are seen as gradually filling a metaphorical space between the two rules (“cluster[ing] around the opposite poles”). Judges eventually resolve the conflict by recognizing and describing a “line” between the opposing poles or principles.
Despite the emphasis on specific judgments, there is no attempt here to avoid language of objectification; instead Holmes deploys a new concrete metaphor (one that has not entered common usage) to emphasize the primary role of particular decisions. Each new decision is recorded in his account as a point on an actual line defining the boundary between still-evolving separate categories.
In one sense the line may be described as “arbitrary” in that it “might equally well have been drawn a little further to the one side or to the other.” In another sense, the account describes a process in which conceptual products are constructed not unlike physical products. A legal right is a tool for the future as well as a judgment from and upon the past. A physical tool like a shovel or a computer may be put together in multiple ways and dimensions--with the “delete” button “a little further to the one side or the other.” There is no perfect or ideal shape to law, even as it is repeatedly modified to adapt to new conditions, shaping conduct as it forms and reforms legal concepts.
Margolis (2007, 232) quotes Peirce with what I suggest is a parallel cautionary observation in 1890:
Try [Peirce says] to verify any law of nature, and you will find that the more precise your observations, the more certain they will be to show irregular departures from the law (6.46)
Although Holmes may not have had precisely the same intent, I suggest that he too, like Peirce, means (as Margolis says) “to disallow attributing such irregularities to error alone; he thinks they signify a deeper source in reality itself.” I suggest that Holmes and Peirce saw reality as including contours of their concepts of law, if not their core, that come, somewhat randomly, or as Holmes says arbitrarily, from human nature and its cultural choices.
The Source of Structure and Consistency
From these and other texts it appears that the body of Holmes’s law is built up from legal categories and concepts formed by a process akin to negotiation, albeit an attenuated one. The whole enterprise must be woven together while being negotiated to accommodate shifting standards of conduct. Different cases, situations, parties, judges and lawyers are all involved over a continuum, as diverse judgments are analyzed to forge eventual settlements of multiple controversies. Overall consistency is a dominant goal, but conceptual analysis is only partly an exercise in logical reconciliation. It is also one of negotiating each new requirement for conduct through the clash of conflicting patterns already prevalent.
Holmes stressed that the process appears more analytical than it is, in the sense that consistency always seems to have been discovered, not made. In an essay written in 187_, Holmes wrote that consistency is by nature elusive:
The truth is, that law hitherto has been, and it would seem by the necessity of its being is always approaching and never reaching consistency. It is for ever adopting new principles from life at one end, and it always retains old ones from history at the other which have not yet been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow.[ii]
Many years later, Holmes compared his jurisprudential theory to anthropology:
It is perfectly proper to regard and study the law simply as a great anthropological document. It is proper to resort to it to discover what ideals of society have been strong enough to reach that final form of expression, or what have been the changes in dominant ideals from century to century. It is proper to study it as an exercise in the morphology and transformation of human ideas.[iii]
Here we find fallibilism as a recognizable part of a rough theory of knowledge, however inchoate and offhandedly put. Where does it stand in the comparison between the visions of Peirce and Dewey?
We began with Joseph Margolis’s comparison of the fallibilism of Peirce and Dewey, focusing on the questions of inquiry in its relation both to conduct and to ultimate conceptual objects, to its sharing both regulative and constitutive aspects. Holmes’s version of fallibilism combines an account of revision or “modification” of a general with the context of its origin and application. Like Dewey’s, it is not metaphysical, in the sense that the final rule will be nearer a “truth.” It is also patently related to the regulation of conduct or habit. The abstracted general rule is in fact more a regulative than a constitutive proposition. Or is it?
Like Peirce’s fallibilism, it is not entirely open-ended, as it does foresee the arrival at an “abstracted general rule.” We may “resort to it to discover what ideals of society have been strong enough to reach that final form of expression, or what have been the changes in dominant ideals from century to century.” The belief in, and implementation of, fundamental rights suggests a distinctly constitutive role of legal fallibilism, and it need not be alluded to in Kantian or Hegelian generalities. It is entirely empirical and naturalistic, and may be investigated in the many and various “points on the line.” Fallibilism is both regulative and constitutive, as a function of the beliefs and intentions of the community of inquirers.
There is more to be explored of this topic, especially for its relation to contemporary moral theory. As an alternative to the long reign of analytical approaches, it reinforces a return to more naturalist and empirical views like moral sense theory. The reaction of Holmes’s decider to the individual claim of wrongful conduct, to which the decider brings an assessment rooted in a sense of the accepted standards of conduct, is remarkably like Adam Smith’s construct of the objective or detached observer, and raises anew issues that once sprouted throughout the Scottish Enlightenment. Legal fallibilism is applied moral sense theory, with an extensive empirical record: the record of actual legal decisions.
But a significant caveat is encountered when this proposition is advanced to scholars for whom other explanations are preferable. Especially in the analytical tradition--and this is true in law and philosophy--fallibilism is neither regulative nor constitutive. The historical record of both law and philosophy is replete with highly un-fallibilist theories, constructs and methods. In the world of law, such alternatives are themselves both regulative and constitutive insofar as they are believed and implemented. We are reminded here of Peirce’s early essay, “How to Make Our Ideas Clear,” in which pragmatism is just one approach to knowledge among others. But Peirce’s drift is, I take it, that fallibilism has the advantage of self-awareness over the alternatives.
That very fact should give us pause regarding the question with which I began, of fallibilism’s fundamental nature. The history of legal inquiry reveals a hodgepodge of methods and constructs. The same might be said of science and philosophy. Fallibilism is only a critical template which can now be laid over the whole mess, for whatever help it affords in our efforts at resolving the problems that bother us the most. Insofar as it is either regulative or constitutive, it is only optionally so. Fallibilism itself reveals this--indeed it reveals itself as an alternative, not a universal. It suggests that the entire body of known reality, considered as it must be as a historical entity, is variable and discontinuous like the body of legal knowledge, and hence is most in need of a critical template.
Houser, Nathan. 2005. “Peirce in the twentieth Century.” Transactions of the Charles S. Peirce Society 41, no. 4: 729-39.
Margolis Joseph. 2007. “Rethinking Peirce’s Fallibilism.” Transactions of the Charles S. Peirce Society 43, no. 2: 229-249.
2002. Reinventing Pragmatism.
[i] Holmes, Oliver Wendell, Jr., “The Theory of Torts,” Collected Works, 327.
[ii] Holmes, “Common Carriers and the Common Law,” Collected Works, 60, 75-6.
[iii] Holmes, Collected Legal Papers at 212.