An Inquiry On Holmesian Positivism

The well-known American Justice Oliver Wendell Holmes, is one of the most controversial and color legendary figures in the legal history of the United States history. Almost all generations of researchers who study Holmes'theories have argued with each other. His writings are so confusing that let a large number of people tell unclear. On the one hand, they have attrahed many theorists to study what on earth Holmes'main points are. On the other hand, they always make themselves lost. This paper is aslo a brave exploration which makes to dissect Holmes positivism legal thinking in the context of common law and clearly demonstrat its face.During the development of the theory, because Holmes has advocated that legal and moral distinction between theory, has been with the label of "positivism jurists". Different from the context of Positivism Law and Natural Law ,which they regard the Holmes'theory as same as the other positivism jurists, the paper is unique in performance in two aspects: First of all, focus on other commentators have discussed less law ontology, the methodology in the field of law. Secondly, based on the positivism's "The Ontology of law", questioning the underlying causes of dispute arose. In paper's opinion, the positivism philosophy of science and the pragmatism philosophy of science on the result of the enormous differences between the two in the "Experience" and "logic" two different understanding of the core concepts, applied in the field of law, the formation of two different styles legal concepts. Introduction and conclusion addition, the text is divided into four chapters.In the first part, this paper analyzes Holmes'positivism jurists thinking of the internal Way. Holmes and the Case law ideology rooted in the common law tradition of the United States, in the history of jurisprudence and critical analysis of the respective limits of the law on the basis of building up. During the focus of the problem is that Holmes and analysis of jurists between the legal concept of dispute. Based on the legal concept of the theory caused by the complicated proposition, as well as during the "legal order" and the "legal predicted that" the theory of conversion, in this part, the authors take a major study into the timing of the road, Holmes Positive thinking of the basic law of a general insight into the carding. At the same time, Holmes's main contribution to the theory there are two main aspects: First, in recognition of the "positive law" and "should be contingent" on the basis of separation theory, pointing out that "it is" not, as of Jurists by default a monolithic whole. There is considerable debate and the same. Second, through the actual exercise of the sovereignty of the questioning, "the Legislative Center," to "justice center", which in practice completely subvert the level of the concept of law system.In the second part, this paper analyzes Holmes positivism jurists thinking of the philosophical foundation. The author believes that positivism and pragmatism of the "experience", "logic" two different understanding of the core concept is both in the ontology of a debate on the issue of the root causes. In positivism, where "experience" means in accordance with the requirements of empirical science obtained, the phenomena associated with conventional external, but the objectivity of the negative phenomena of nature. Pragmatist "experience" concept contains two meanings: First, experience is the interaction of people and the environment; Second, the experience included a link. In the "logic" of the understanding, the fundamental differences between the two lies in the existence of causal relationship between universality. Interaction between the two core concepts in the law over the different styles style: Law of the characteristics of sensory experience is the basis of the operation of logic can be used to test the form of legal or derived concepts and propositions. Holmes thinking of the features can be observed and described by the fact that the legal test to summarize or proposition and concepts. Provide direct experience with all the legal scientific content, and logic provides links to language on the form of a description of experience to construct laws and theories.In the third part of this paper will focus on analyzing the law Holmes empirical scientific thinking behind the concept. The above discussion for us to explore a deeper level of the problem: Two of the same philosophical concept totally different understanding, interpretation of the reasons for that? In the eyes of this writer, is the root cause of most deep in the knowledge of both the differences. According to the focus of this paper, the study of knowledge of the major concerns in the knowledge base and structure as well as the attitude of the metaphysical aspects. In the "knowledge" in essence, positivism are determined pursuit of knowledge and the pragmatists are the predictability of the pursuit of knowledge, that is, people of action. In metaphysics, the subject and object positivism through diametrically two points, oppose metaphysics; pragmatist through the action, it will be transformed into metaphysical experience, not on whether the transformation will be abandoned. Metaphysics in the fight against this point, we may open a Critical Path: Popper's theory of the formation of school.In sum, positivism and pragmatism on the same philosophy in the origins of Hume in the contemporary experience of the new development. They therefore stressed that the experience of the role, oppose metaphysics. But in the specific theoretical construct, identified as a guide, abstract rules system will be a person of action into the discussion, which gives us access to open up the practice of the approach roads. From the empirical philosophy of pragmatism to the paradigm change, reflected in the doctrine, that is, Holmes passed to criticize the "legal order" to establish a "legal Prediction Theory" theory transformation process.It is necessary to point out that the author introduces a scientific concept in the last part. It is not only because it means a lot in both its epistemology and its methodology ,but also because it is also to provide for the legal study of China a reference to the legal scientific which have been flourishing since the 1980s.