OliverWendell Holmes, Jr. is, arguably, the most important American jurist of the twentieth century, and his essay The Path of the Law, first published in 1898, is the seminal work in American legal theory. In it, Holmes detailed his radical break with legal formalism and created the foundation for the leading contemporary schools of American legal thought. He was the dominant source of inspiration for the school of legal realism, and his insistence on a practical approach to (...) law and legal analysis laid the basis for the realists' later concentration upon the pragmatic and empirical aspects of law and legal procedures. This volume brings together some of the most distinguished legal scholars from the United States and Canada to examine competing understandings of The Path of the Law and its implications for contemporary American jurisprudence. For the reader's convenience, the essay is republished in an Appendix. (shrink)
OliverWendell Holmes, Jr, is considered by many to be the most influential American jurist. The voluminous literature devoted to his writings and legal thought, however, is diverse and inconsistent. In this study, Frederic R. Kellogg follows Holmes's intellectual path from his early writings through his judicial career. He offers a fresh perspective that addresses the views of Holmes's leading critics and explains his relevance to the controversy over judicial activism and restraint. Holmes is shown to be an (...) original legal theorist who reconceived common law as a theory of social inquiry and who applied his insights to constitutional law. From his empirical and naturalist perspective on law, with its roots in American pragmatism, emerged Holmes's distinctive judicial and constitutional restraint. Kellogg distinguishes Holmes from analytical legal positivism and contrasts him with a range of thinkers. (shrink)
The Pragmatism and Prejudice of OliverWendell Holmes, Jr. examines the varied categories scholars have used to describe the philosophy of OliverWendell Holmes, Jr. These include, “Jobbist,” Nihilist, Realist, Social Darwinist, Utilitarian, Positivist, Natural Law Theorist, and Pragmatist.
By any measure, OliverWendell Holmes, Jr., led a full and remarkable life. He was tall and exceptionally attractive, especially as he aged, with piercing eyes, a shock of white hair, and prominent moustache. He was the son of a famous father, a thrice-wounded veteran of the Civil War, a Harvard-educated member of Brahmin Boston, the acquaintance of Longfellow, Lowell, and Emerson, and for a time a close friend of William James. He wrote one of the classic works (...) of American legal scholarship, The Common Law, and he served with distinction on the Supreme Court of the United States. He was actively involved in the Court's work into his nineties. In Justice OliverWendell Holmes, G. Edward White, the acclaimed biographer of Earl Warren and one of America's most esteemed legal scholars, provides a rounded portrait of this remarkable jurist. We see Holmes's early life in Boston and at Harvard, his ambivalent relationship with his father, and his harrowing service during the Civil War. White examines Holmes's curious, childless marriage and he includes new information on Holmes's relationship with Clare Castletown. White not only provides a vivid portrait of Holmes's life, but examines in depth the inner life and thought of this preeminent legal figure. There is a full chapter devoted to The Common Law, for instance, and throughout the book, there is astute commentary on Holmes's legal writings. Indeed, White reveals that some of the themes that have dominated 20th-century American jurisprudence--including protection for free speech and the belief that "judges make the law"--originated in Holmes's work. Perhaps most important, White suggests that understanding Holmes's life is crucial to understanding his work, and he continually stresses the connections between Holmes's legal career and his personal life. For instance, his desire to distinguish himself from his father and from the "soft" literary culture of his father's generation drove him to legal scholarship of a particularly demanding kind. White's biography of Earl Warren was hailed by Anthony Lewis on the cover of The New York Times Book Review as "serious and fascinating," and The Los Angeles Times noted that "White has gone beyond the labels and given us the man." In Justice OliverWendell Holmes, White has produced an equally serious and fascinating biography, one that again goes beyond the labels and gives us the man himself. (shrink)
During the first few decades of the twentieth century, legal theory on both sides of the Atlantic was characterized by a tremendous amount of skepticism toward the private law concepts of property and contract. In the United States and France, OliverWendell Holmes and François Gény led the charge with withering critiques of the abuse of deduction, exposing their forebears' supposedly gapless system of private law rules for what it was, a house of cards built on the ideological (...) foundations of laissez faire capitalism. The goal was to make the United States Constitution and the French civil code more responsive to the realities of industrialization. Unlike the other participants in this transatlantic critique, François Gény simultaneously insisted on the immutability of justice and social utility. His “ineluctable minimum of natural law” would guide judges and jurists toward the proper social ends, replacing deduction with teleology. The problem was that nearly all of Gény's contemporaries were perplexed by his conception of natural law, which lacked the substance of the natural rights tradition of the eighteenth and nineteenth centuries and the historicist impulse of the early twentieth. No one was more perplexed than OliverWendell Holmes, whose more thorough going skepticism led him to see judicial restraint as the only solution to the abuse of deduction. The ultimate framework for this debate was World War I, in which both Holmes and Gény thought they had found vindication for their views. Events on the battlefield reaffirmed Gény's commitment to justice just as they reignited Holmes' existential embrace of the unknown. In a sense, the limits of their skepticism would be forged in the trenches of the Great War. (shrink)
Seth Vannatta identifies the common law as a central feature of the jurisprudence of former United States Supreme Court justice OliverWendell Holmes, Jr. Holmes treated the common law as if it were an epistemology or a reliable mode for knowledge transmission over successive generations. Against the grand notion that the common law reflected a priori principles consistent with the natural law, Holmes detected that the common law was historical, aggregated, and evolutionary, the sum of the concrete facts (...) and operative principles of innumerable cases with reasonable solutions to complex problems. This view of the common law is both conservative and pragmatic. Vannatta’s analysis of Holmes opens new directions for the study of conservatism and pragmatism—and pragmatic conservatism—demonstrating that common-law processes and practices have much in common with the form of communal inquiry championed by C.S. Peirce. (shrink)
OliverWendell Holmes jr was a survivor of the Civil War. Wounded three times and left for dead once, he survived endless pain and death for a war for which he believed more in the beginning of the virtues of the war than he did at the end. But it was this important experience that pervades his long life. And we now know how to think about how trauma turns to memory sculptured onto the brain. Holmes’ emphasized experience (...) in adjudication and context dependent problem solving or inquiry. Yet while he championed freedom, he had a rather limited view towards those for which the war was fought. (shrink)
The Reputation of Justice OliverWendell Holmes, Jr., one of the chief architects of twentieth century American law, has gone through a number of phases, changing from being altogether praiseworthy in the last years of his life and the first years after his death in 1935 to that of more sober evaluations. Writing at mid-century Henry Steele Commager offered the judgment that Holmes had had about him “much of the Olympian [and] something of the Mephistophelean.” The most useful (...) account of how the winds of change swept along Holmes' reputation is an article by G. Edward White, “The Rise and Fall of Justice Holmes,” which appeared in the University of Chicago Law Review in 1971. White examined the myth of Justice Holmes as it obtained from 1932 to 1940 and then proceeded to describe the demythologizing of Holmes from 1941 through 1949. (shrink)
_Courting the Abyss_ updates the philosophy of free expression for a world that is very different from the one in which it originated. The notion that a free society should allow Klansmen, neo-Nazis, sundry extremists, and pornographers to spread their doctrines as freely as everyone else has come increasingly under fire. At the same time, in the wake of 9/11, the Right and the Left continue to wage war over the utility of an absolute vision of free speech in a (...) time of increased national security. _Courting the Abyss_ revisits the tangled history of free speech, finding resolutions to these debates hidden at the very roots of the liberal tradition. A mesmerizing account of the role of public communication in the Anglo-American world, _Courting the Abyss_ shows that liberty's earliest advocates recognized its fraternal relationship with wickedness and evil. While we understand freedom of expression to mean "anything goes," John Durham Peters asks why its advocates so often celebrate a sojourn in hell and the overcoming of suffering. He directs us to such well-known sources as the prose and poetry of John Milton and the political and philosophical theory of John Locke, Adam Smith, John Stuart Mill, and OliverWendell Holmes Jr., as well as lesser-known sources such as the theology of Paul of Tarsus. In various ways they all, he shows, envisioned an attitude of self-mastery or self-transcendence as a response to the inevitable dangers of free speech, a troubled legacy that continues to inform ruling norms about knowledge, ethical responsibility, and democracy today. A world of gigabytes, undiminished religious passion, and relentless scientific discovery calls for a fresh account of liberty that recognizes its risk and its splendor. Instead of celebrating noxious doctrine as proof of society's robustness, _Courting the Abyss_ invites us to rethink public communication today by looking more deeply into the unfathomable mystery of liberty and evil. (shrink)
Our world is full of fictional devices that let people feel better about their situation - through deception and self-deception. The legal realist, Felix Cohen, argued that law and legal reasoning is full of similarly dubious labels and bad reasoning, though of a special kind. He argued that judges, lawyers and legal commentators allow linguistic inventions and conventions to distort their thinking. Like the ancient peoples who built idols out of stone and wood and then asked them for assistance and (...) guidance, Cohen argued that within the legal world people tend to create legal concepts and then think that these concepts do or should determine how social disputes must be The philosopher Ludwig Wittgenstein similarly spoke of the way we fool ourselves, when we use a noun for some matter, and then assume that, because nouns usually name objects, here as well there must be some entity that exists out in the world, whose nature can be discovered. Our grammar misleads us. This article explores some of the ways, particularly in contract law and family law, that we have been led astray by our legal language. Because we only rarely have an OliverWendell Holmes, Jr., or a Felix Cohen to keep us in line, we need to learn to do the important work ourselves. The great danger is the way that inaccurate language can so easily change our substantive views about what is natural or what is right. If transparency is difficult in legal language, much of the fault may lie with lawyers and judges who want to make their conclusions sound more reasonable, less controversial, and more appealing: so we call it "consent" and "waiver" and "meeting of the minds" and "best interests of the child," when it is in fact something quite different. And at least in the common law systems the process of reasoning and law-making is tied strongly to the past. The new case has to fit into the categories and concepts that we created for a prior case - fitting cases that came up hundreds of years before, in a different society, with different technology, facing a different set of problems. So judges often end up stretching the meaning of concepts, or using legal fictions to bridge the old rule with the new equities. We may never entirely escape the tendency of our own language to mislead us, but clarity in thought and analysis is something towards which we should struggle constantly, and with determination. (shrink)
Chauncey Wright (1830–1874) was one of the first American philosophers to explore the implications of Charles Darwin's work in evolutionary biology. Wright became a strong supporter of the idea of natural selection and a strong critic of the anti-selectionist and teleological arguments of St. George Jackson Mivart and Herbert Spencer, and he laid the groundwork for the field that is today called evolutionary epistemology. As the mentor of the original Cambridge "Metaphysical Club" (William James, Charles Sanders Peirce, and Oliver (...)Wendell Holmes, Jr.), Wright was also instrumental in the development of the American school of Pragmatism. Although his analytical brilliance was widely acknowledged, he never became professionally successful, and he died in 1874 in his 45th year. (shrink)
Although the treatment of history in late nineteenth-century American legal scholarship remains largely unexplored, two recent areas of research have discussed this subject tangentially. Historiographical critiques of the emphasis on doctrine by American legal historians typically maintain that late nineteenth-century legal scholars viewed history as disclosing an inevitable evolutionary progression from primitive to civilized forms. This "whiggish" approach, the critiques add, ignored the context and function of past law while apologetically justifying conservative existing law as autonomous scientific truth. Without addressing (...) the historiographical critiques, scholarship about late nineteenth-century legal thinkers has touched on their historical research and assumptions, mostly in passing as part of inquiries about other subjects. Designed primarily to convey how both areas of research have contributed to the historiography of late nineteenth-century American legal history, this article concludes by drawing on my own extensive reading of the original sources. Sometimes in support but often in refutation of the existing secondary literature, my findings reveal that the late nineteenth-century scholars formed a distinctive and sophisticated American school of historical jurisprudence that merits further study. Often warning against the very faults ascribed to them by dismissive subsequent scholars, many viewed legal evolution as a contingent response to social change and urged substantial reform of existing law. The American school of historical jurisprudence, moreover, provides an important intellectual context for new insights into two giants of American legal thought, OliverWendell Holmes, Jr. and Roscoe Pound. (shrink)
OliverWendell Holmes, Jr. – a founding member of the Metaphysical Club, and traditionally regarded as the first legal pragmatist – would eventually become a Justice of the U.S. Supreme Court. In one of his best-known rulings for the Court, Buck v. Bell , Holmes held that Carrie Buck’s constitutional rights would not be violated by al-lowing the State of Virginia to sterilize her against her will. This disturbing ruling has sometimes been thought to confirm criticisms of Holmes’s (...) moral skepticism. But this, I argue, is a mistake: Holmes was no moral skeptic but, like James and Dewey, a moral fallibilist; and his ruling in Buck, misguided as it is, is nevertheless illustrative of his important theoretical point that judges are no less fallible about moral questions than the rest of us, and that it’s dangerous for them to imagine otherwise. (shrink)
Reviews the book, The Metaphysical Club: A story of ideas in America by Louis Menand . In this highly entertaining and readable history, Menand examines the lives and thinking of OliverWendell Holmes, Jr., William James, Charles Sanders Peirce, and John Dewey, members of an informal discussion group that met in Cambridge, Massachusetts in 1872 that called itself the Metaphysical Club. Beginning with the Civil War and ending in 1919 with the Supreme Court decision in U.S. v. Abrams, (...) this insightful and thought-provoking book tells a story of the creation of the ideas and values that have shaped how Americans think and how we live. 2012 APA, all rights reserved). (shrink)
Includes writings on pragmatism by Ralph Waldo Emerson, OliverWendell Holmes, Jr., George Herbert Mead, Percy W. Bridgman, C. I. Lewis, Horace M. Kallen, Sidney Hook, and, especially, William James, Charles S. Peirce, and John Dewey.
Pragmatic Modernism traces an alternative strain of modernism influenced by pragmatist philosophy and characterized by its commitment to gradualism, continuity, and habit rather than spectacular events and radical rupture. Through original readings of Gertrude Stein, Henry James, Marcel Proust, and OliverWendell Holmes, Jr., this study rediscovers an overlooked cultural and social matrix and suggests an expanded range of responses to modernity.