This was my final for my seminar on William James. It’s pretty cut-and-dry.
In the annals of American jurisprudential history, few are regarded so highly as Oliver Wendell Holmes Jr. The Supreme Court justice, during his somewhat limited time on the court, has made an indelible mark on the day-to-day life of every American citizen, and has provided some of the most trenchant and biting critiques in the form of his dissents. He can be holistically viewed as a man of the law, but every man of the law—as they say—brings their entire life to the table when they rule on a case. This aphorism is largely attributable to the legal philosophy of Oliver Wendell Holmes Jr., and it is an important jumping-off point for discussion.
In having a philosophy oriented around the concept of individuals bringing their whole lives with them in to the court—as opposed to being sterile, standard, “philosophical zombies” that always act according to rationality and logic—Holmes became one of the first recognizable legal pragmatists. As a legal pragmatist, Holmes took what was previously a method and a philosophy, and transmuted it in to a normative, applicable arm of judicial action. In this light, Holmes becomes a fascinating example of a man—philosopher or not—who took a philosophy enclosed in ivory towers at old universities, or trapped in dusty manuscripts and cramped lecture halls, and gave it form—and more importantly, legal force. Holmes, can be taken, then, as a true pragmatic extension of pragmatism: an action or thought that has observable, positive effects.
Therefore, this paper shall argue that Holmes’ legal pragmatism is not only one of the most pragmatically-solvent branches or applications of pragmatism, and that Holmes’ departure from legal formalism was as radical of a paradigm shift as James’ radical empiricism, but that Holmes gave positive legal force to the implied ethics of James’ pluralistic epistemology.
In an attempt to understand Holmes in the context of James, then, some questions must be answered. What kind of man was he? What were his intellectual influences? Most importantly, how did his formative years affect his greater legal and philosophical worldview?
It is widely known that Holmes and James, when they were academia-brat youths in Massachusetts, ran in the same social circles. The two were members of “The Cambridge Metaphysical Club,” a group that included another famed American thinker: Charles Sanders Peirce. Within the Metaphysical Club, there was really only one goal: the continued discussion and debate of philosophical issues. While it may be obtuse to point it out so flatly: the very fact that James and Holmes were engaging in high-level theoretical discourse at a young, impressionable age certainly had an effect on codifying and making similar their worldviews.
Beyond their youth, the two men were measured admirers of the other’s intellect and this showed in their interactions with one another. James wrote to Holmes, whilst in Berlin, telling him that:
In spite of many friends I am almost alone in my thoughts and inner feelings. And whether I ever see you much or not, I think I can never fail to derive a secret comfort and companionship, from the thought of you. I believe I shall always respect and love you whether we see much or little of each other.[1]
Though their mutual admiration and kinship was obvious, the two had temperamental and methodological differences that developed and grew with age. These differences caused a rift for the two later in life that shall help to define them further within the context of this paper.
James was emotional, introspective, and focused on the feeling-oriented descriptive path. Holmes, on the other hand, was a jurist through and through: he was analytical, tough-minded, and—seemingly anathema to James—coldly rational. Their divide is best exhibited by a supposedly apocryphal exchange the two men shared: “’Feeling counts,’ declared James one evening, to which Holmes immediately shot back, ‘To know is not less than to feel’”[2]. This was not to say that James viewed Holmes and his career-oriented hard-mindedness with disdain or hate. Even through their base temperamental differences, James believed that Holmes was a true friend, stating that while he was “’the only fellow … I care anything about,’ adding that even if Holmes was perhaps too intellectual, ‘he sees things so easily and clearly and talks so admirably that it’s a treat to be with him.’”[3] This divide, while seemingly vast considering James’ aversion to the ideal or rational, is indicative of why one became a leader in philosophy and psychology, and why the other became a man of the harsh, concrete concept of the law—as opposed to an explanation of their comparatively acrimonious relationship later in life.
In addition to the clear James-ian presence in his intellectual schema, Holmes was also incredibly influenced by the prevalent scientific advancements of the day especially Darwinian evolution. Holmes, himself, did not believe in natural law, and while this will be discussed later on in detail, his offering of the “ethic of struggle” in its place helps to create a more holistic understanding of Holmes. The ethic of struggle, in the words of James Springer, meant that
…the world and human existence have no discernable purpose; that human preferences and beliefs are arbitrary; that no matter how one advocates or fights for his preferences, he has no basis for them other than his own Can’t Helps; but that the advocacy and the fighting are the only worthwhile things that one can do.[4]
The ethic of struggle clearly outlines a belief in the lacking efficacy of ideal or rational-world reasoning when applied to spatio-temporal relations.
The dual revolutions of legal realism, and radical empiricism (and pragmatism), were not only cosmetically and fraternally bonded by their most public advocates, but the two movements were true and challenging paradigm shifts in their day. James, as is commonly known, was a man who believed his philosophical project to be one of a conciliatory nature. Radical empiricism, and to a lesser extent, pragmatism, were designed to bridge the gap between the too tough-minded empiricists and the too tender-minded rationalists. Defining each of the words in “radical empiricism,” James comes to the conclusion that his empiricism “is contented to regard its most assured conclusions concerning matters of fact as hypotheses liable to modification in the course of future experience.”[5] When defining radical: “it treats the doctrine of monism itself as an hypothesis, and, unlike so much of the half-way empiricism that is current under the name of positivism or agnosticism or scientific naturalism, it does not dogmatically affirm monism as something with which all experience has got to square.”[6]James, in this light, can be seen as attempting to completely change the discussion when approaching philosophical questions. He is attempting to wrest control of the rational ground from rationalists who refuse to acknowledge the importance of the material, “real” world.
The direct corollary of this, in the legal sphere, is the anti-formalism of Holmes. Legal formalism, in a simple explanation that keeps it within a philosophical context, can be seen as the normative, material arm of idealist or rational philosophical theories. To the legal formalist, the laws are of an immutable nature. Decisions regarding them are to be made in a logical vacuum—only the Aristotellian logic contained in deliberation enters account. Legal formalists do not believe in taking in to account any extraneous policy, political, or social factors: their focus is on the laws and precedents in-themselves and not the tangible effects or morality contained therein. Relating formalists back to their philosophical counterparts, the easiest comparison to lodge against them is that they viewed laws as Plato viewed the forms: independently existing, eternal, ideal, and perfect; it was the job of humans to square with the laws and the judge to interpret them—not to comment on the laws themselves. For this reason, formalists are commonly associated with constitutional originalists and textualism; this emphasis on the esoteric, untouchable ideal quality contained in the letter of law is exactly what Holmes intended to battle.
Holmes, as opposed to the legal formalists, had a radically different view of the law.
First, Holmes believed that all legal systems were products of a specific civilization at a specific point in history; the idea that the laws have an intrinsic ideal character was false to him. As Holmes wrote, dissenting in Southern Pacific v. Jensen, “[t]he common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi-sovereign that can be identified… it is always the law of some state.”[7] In addition, in stark contrast to the legal formalists, Holmes implored judges to think about the potential material, political, social, or economic results of their rulings: “I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. … I cannot but believe that if the training of lawyers led them habitually to consider more definitely and explicitly the social advantage on which the law they lay down must be justified, they sometimes would hesitate where now they are confident, and see that really they were taking sides upon debatable … questions.”[8] In addition to this experientially-based critique of formalism, Holmes appears to critique the concept of logic as an independent arbiter: “The language of judicial decision is mainly the language of logic … [but] behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment.”[9] Displaying yet one more aspect of pragmatic thought, Holmes believed that laws were simply “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”[10] To Holmes, the laws were nothing more than moving-targets, and the job of the judge was to pin down the target in the best possible position for the most amount of people at the best possible time: a clear corollary of pragmatism. Finally, Holmes’ revolutionary breaking can be seen in his attempt to segregate the laws and morality. According to Susan Haack, Holmes believed that “Law… cannot be identified with Morality; does not transcend the specific practices of the many and various legal systems; and bears little resemblance to a set of first principles or axioms from which correct decisions may be deduced.”[11] Beyond his aversion to the absolutist legal argumentation that follows morality-laden laws, Holmes himself detested the tendency for laws to have moral components. As delineated in Path of the Law:
For my own part, I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law. We should lose the fossil records of a good deal of history and the majesty got from ethical associations, but by ridding ourselves of an unnecessary confusion we should gain very much in the clearness of our thought.[12]
Within that selection, two things become apparent: the first is Holmes’ aversion to the absolute rigidity of moral legislation and his focus on the historical aspect of laws. Holmes provides a clear break from prior legal philosophies which derived their legitimacy from some morality-laden or ideal source, and also leads in to the final way in which Holmes broke from the status quo of the judiciary: the denial of natural law though historical evolution.
Referring back to Holmes’ earlier described concept—the ethic of struggle—Holmes used this schema as a placeholder for natural law. According to Springer “Holmes’ omissions… are as important as the inclusions. There is no discussion or even citation of any actual natural law philosopher, even those of Holmes’ time. There is no discussion of any of the fundamental concepts of natural law, such as the distinction between natural law and positive law.”[13]Holmes did not take seriously the idea that men were imbued with certain absolute traits, and the logical basis for natural rights is laden in identity-essentialism. While it should be clear that this is a pragmatic-leaning philosophy, Holmes makes it clear with his historical analysis. Holmes hated the idea that, simply due to a perception of laws as absolutes or ideals, laws were colloquially viewed as absolutes. “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”[14] This quotation shows his aversion to the ideal law, as well as hinting at his belief in the ethic of struggle as a method to have the winners of history re-make the laws. For Holmes, laws and ideas are instruments that are to be discarded when their use has run its course within a society. In addition to the pragmatic bent of taking the use of the laws in to account, Holmes believed that the information that went in to the creating of the laws was an important aspect in determining their legitimacy. “I mentioned larceny as an example to show how the law suffered from not having embodied in a clear form a rule which will accomplish its manifest purpose. In that case the trouble was due to the survival of forms coming from a time when a more limited purpose was entertained.”[15]
In conflating the two thinkers—Holmes and James—as well as their philosophies and the intellectual pedigrees that spawned them, there is a clear tendency to the pragmatic. Both of the theorists place an inordinate amount of importance on experiential and evidential subjectivity. For James, all bits of pure experience were ontologically similar—on the same footing. For Holmes, all testimony and reasonable argumentation—whether strictly on the basis of precedent or whether including Holmes-ian ideals of outside influence—is acceptable in the realm of law; for the both, there is no prima facie reason to discount the testimony of one rational agent or another. In addition, the two men espoused theories that attempted to re-contextualize a dead idea in the live, material sphere. James sought to unshackle rationalism and empiricism from their dogged absolutist perches through radical absolutism and Holmes sought to re-define the law as a living organism and not an absolute ideal. Similarly, Holmes and James hated the esoteric ideal of rationalist thought and believed in the importance of the immanent world—as opposed to the transcendent world of legal formalists and rationalists.
The most important way in which they are similar, however, is also the way in which we can begin to see Holmes as being the most significant positive implementation of Jamesian thought. James, in the Meaning of Truth outlines his conception of truth’s role in human existence.
THE TRUE, to put it very briefly, IS ONLY THE EXPEDIENT IN THE WAY OF OUR THINKING, JUST AS THE RIGHT IS ONLY THE EXPEDIENT IN THE WAY OF OUR BEHAVING. Expedient in almost any fashion, and expedient in the long run and on the whole, of course; for what meets expediently all the experience in sight won’t necessarily meet all farther experiences equally satisfactorily. Experience, as we know, has ways of BOILING OVER, and making us correct our present formulas.[16]
The essential point of this passage’s inclusion is twofold: that James considered the pursuit of truth to be an ethical affair, and that the corroborative ability of truth is constantly subject to the changing whims of reality and pluralistic experience. If this view is taken, that the truth is merely the internal expedient for humans that justice (or “the right”) takes the place of on the societal level, then an application of pragmatism on a level that codified certain pragmatic principles would be paramount to a society-wide positive implementation of pure Jamesian thought.
With the view that James was inadvertently playing at creating a universal ethic with his pragmatism (at least providing the framework for a pluralistic ethics, even if he did not intend a full, maxim-having ethic to be developed from his epistemology), and with the view that Holmes was an American Pragmatist trapped in the body and mind of a jurist, the general crux of this argument is almost reached. In general, considering what we know now of the philosophy (legal and otherwise) of Holmes, and the (very nearly) codified ethics of James, the clear link of importance between the two can be drawn. Holmes, through his legal decision-making, solved for an unsolvable ethical framework that James alluded to.
An ethic, in general, requires two portions to be considered a live option: a normative justification and a positively-implementable plan. Jamesian ethics, due to the pluralistic and radically empirical characteristics that it possessed, had major problems in positive implementation. Even trying to conceive of what a set of rules for a universal Jamesian ethic would be a trial in futility; ethical maxims need universal applicability that is ontologically superior to personal experience to be effective at a societal level and James is unlikely to place rationalistic things like laws above pure human experience.
This is where the absolute genius Holmes in his relation to James can be seen: the law, as an objective-Truth-bearing concept, would not normally be thought of as the most efficient avenue for the promotion of pragmatic ethics. But, this is exactly the proposition of this paper: that Holmes’ decisions on the courth gave legal form and force to the amorphous Jamesian ethics of pluralism and truth-as-expedient.
Keeping the proposed perspective shift on Holmes and James, it shall now be proven that Oliver Wendell Holmes provides the most positively applicable—and therefore pragmatic—variant of pragmatism with his dual philosophies of legal pragmatism and legal realism. Pragmatism—at least concerning the active, material process of enacting pragmatic thought through a particular method—was designed to, according to James’ own definition in Lecture 2 of Pragmatism:
…to interpret each notion by tracing its respective practical consequences. What difference would it practically make to any one if this notion rather than that notion were true? If no practical difference whatever can be traced, then the alternatives mean practically the same thing, and all dispute is idle. Whenever a dispute is serious, we ought to be able to show some practical difference that must follow from one side or the other’s being right.[17]
Keeping in mind the criterion provided by James, it is important to remember that this particular definition covers pragmatism as a method of solving disputes, only. This particular definition appears through the context of following the famed “squirrel debate” heuristic[18], and is therefore confined to the settling of disputes, by James’ own admission.
This particular constraint on argument is important to note, and becomes all the more applicable to Holmes’ own pragmatic leanings, when one considers the nature of “judicial pragmatism.” Because judges typically do not make intensely metaphysical or ontological claims, their efforts are best confined to the realm of dispute and discourse. The nature of argumentative law, as Holmes participated in during his stint on the United States Supreme Court, is to argue and come to some degree of legally objective conclusion. A legal dispute on the Supreme Court, if stripped of material or personal importance, is simply a fact-based philosophical debate regarding an interpretation of a specific statute or law. Taking this perceived or assumed burden of the judge’s duty, the most applicable element of pragmatism for a jurist would be the method of settling philosophical disputes, itself.
Taking the requirements and goals of the method, now we must apply them to Holmes’ active precedence and lasting legal effects; the most “pragmatic” extension of a pragmatic philosophy, after all, is one that we can “[trace the] respective practical consequences [of].”[19]
An excellent case study or example demonstrating Holmes’ brand of judicial pragmatism, as well as a simple example of his positive legal application of Jamesian ethical considerations, is a comparison of two decisions that he issued as a Supreme Court justice: dissenting on Abrams v. United States and writing the unanimous decision of the court on Schenck v. United States.
The background of the two cases is similar in nature: they are free speech cases relating to political or protected speech. Both decided in 1919, the two cases were only separated by eight months in the span between their final decisions. Framed in the context of protest speech during WWI, the two cases dealt with a hot-button issue of political and legal import, both being forced to consider the recent amendment to the Espionage Act of 1917 (Sedition Act of 1918)—specifically pertaining to the persecution of “Red Scare” victims such as Socialists and Russian immigrants. The closeness in time, as well as the content of the cases allows for the two to be compared, with the material differences in the cases that exist pointing to the differing pragmatic outcomes that Holmes was led to.
Schenck was chronologically prior to Abrams, and dealt with the case of Charles Schenck, the Secretary of the Socialist Party of America. Schenck, acting on behalf of the SPA, sent out leaflets to potential draftees, encouraging them to eschew their obligations; the SPA’s leaflets held that the draft was a form of involuntary servitude in violation of the Thirteenth Amendment, forcing citizens to act on behalf of a government that was fighting a political war with an opposing ideology. For detracting from the wartime effort, Schenck was convicted under the Espionage Act, this conviction becoming the eventual case that the Supreme Court had to decide on.
Abrams, on the other hand dealt with the case of two activists who dropped anti-war leaflets from the window of a New York City skyscraper. The leaflets denounced potential US military action against Soviet Russia and the practice of producing arms for use against the Soviets.
Background on the two cases having been established, in order to demonstrate Holmes’ enacted judicial pragmatism his unanimous opinion and dissent must be analyzed as compared to one-another. In Schenck, Holmes found against the defendant, upholding the rulings of the lower courts. It was in this case that Holmes wrote two of the more famous phrases to ever come out of the Supreme Court. Applying the Espionage Act to the leaflets, Holmes believed that a material harm was being done to the US war effort. Holmes wrote, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.”[20] In addition to the famous “fire in a theater” metaphor, Holmes coined a phrase that, until the 1960’s, was a barometer for protected speech. Stating that, “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”[21] Holmes was clearly wary of curtailing free speech, but it was his pragmatic philosophy—taking in to account the observable effect of a detracted war effort—that led him to decide against the defendant. To Holmes, the observable effect, in this case, outweighed the right to speech: “When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.”[22] Finally, eschewing the effects themselves, Holmes name-checks another aspect of pragmatic thought: the constantly-changing nature of legal concerns—divorcing oneself from the “ideal” nature of First Amendment rights: “We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done.”[23]
Referring now to the case of comparison, Abrams v. United States, Holmes’ judicial pragmatism is on full display. Despite very similar circumstances and very similar cases, Holmes (and Justice Brandeis) provided the dissenting votes on a 7-2 decision in favor of upholding the prior conviction. The other justices, in their capacity as jurists, found the case to be similar and imposed similar judgments and penalties on the two defendants, in comparison to Schenck. Holmes, on the other hand, has been seen to be wary of infringing on free speech, as well as being keen to apply his criterion of “clear and present danger” to a case. In his dissent, Holmes took special care to continually refer to the statute in question (the Espionage Act), as well as the nature of the leaflets’ intent (as proponents of dissent, not proponents of action-in-itself). Holmes found that the two men were innocent as “…to make the conduct criminal, (the Espionage Act) requires that it should be ‘with intent by such curtailment to cripple or hinder the United States in the prosecution of the war.’ It seems to me that no such intent is proved.”[24] Holmes held that the two men had not actively harmed the nation, and, rather, were guilty of espousing an unpopular political ideology. Holmes found this very recent and current bias to be absolutely countervalent to the spirit of common law:
“…when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment.”[25]
It is almost obtuse to point out the ways in which Holmes was applying aspects of pragmatism to his understanding of the Constitution in the prior quotation, but the selection does lead in to the main crux of Holmes’ opinion on the case—the “clear and present” danger stress test. Holmes ruled that “… against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned.”[26]
These two cases, when viewed in tandem, demonstrate two legally-codified, practically-observable effects of an applied pragmatic philosophy, and do so on two levels. The first aspect of pragmatic philosophy that these two cases demonstrate is the anti legal formalist tending of their support of the Espionage Act. Though Holmes repeatedly stated that he stood firmly on the side of a less-burdened First Amendment, his belief that the circumstances of war can change the nature of necessity of a law took precedence in his rulings:
I do not doubt for a moment that, by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent. The power undoubtedly is[p628] greater in time of war than in time of peace, because war opens dangers that do not exist at other times.[27]
Acknowledging that his interpretation of the First Amendment—as sacrosanct and holy—was subject to the necessities of politics and wartime maneuvering, Holmes enacted and codified at least one pragmatic axiom in American legal theory: the un-shackled, experientially-derived, “non-rational” law.
Another way in which Holmes demonstrated his usage of the pragmatic method comes within a comparison of the cases against one-another. In Schenck, Holmes found that the potential observable consequences of wide-scale draft-dodging presented a clear and present danger of doing harm to the war effort of the nation. In Abrams, on the other hand, Holmes found that the “clear and present danger” test was not sufficient to uphold the convictions, as the two men were simply sharing their political beliefs; punishing them for spreading their beliefs, despite their harsh dissenting nature and subversive content, is tantamount to political repression. He ruled this way, justifying it with an assertion that their speech was not leading to an observable effect of a legitimate material or moral harm to the nation. Clearly, Holmes’ dual 1919 written decisions, dissent and majority, help to paint a picture of the Justice as a pragmatic extension of pragmatism: one who through use of the pragmatic method created a legal philosophy with observable effects today: the litmus test of a live hypothesis—a pragmatic solution.
Oliver Wendell Holmes Jr. was one of the most groundbreaking and forward thinking judicial theorists in American history, and a majority of his theory around the Common Law and harm are based in experiential emphasis. As well, due to his pragmatic methodology in his decision-making, he can be viewed as the most significant and important positive accounting of the implied Jamesian ethics in his writings on truth and pluralism. Holmes’ too-coincidental links to James provide a compelling look in to the most cut-and-dried example of James-ian thought in the public sphere, and therefore the numerous reactions to, and invaluable legal precedence from Holmes’ own writings can help us to better understand how James’ philosophies can physically, tangibly, and most importantly, legally effect us every day.
Works Cited
Abrams v. United States. United States Supreme Court. 10 Nov. 1919. Print.
Haack, Susan. “On Legal Pragmatism: Where Does “The Path of the Law” Lead Us?“ American Journal of Jurisprudence 50.71 (2005): n. pag. Web.
Holmes, Oliver Wendell, Jr. The Path of the Law. Bedford, MA: Applewood, 1996. Print.
James, William. Meaning of Truth. N.p.: n.p., n.d. Gutenberg.org. Web.
James, William. Pragmatism. Mineola, NY: Dover Publications, 1995. Print.
James, William. The Will to Believe. N.p.: n.p., n.d. Gutenberg.org. Web.
Schenck v. United States. United States Supreme Court. 2 Mar. 1919. Print.
Southern Pacific Company v. Jensen. United States Supreme Court. 21 May 1917. Print.
Speziale, Marcia J. “Oliver Wendell Holmes, Jr., William James, Theodore Roosevelt, and the Strenuous Life.” Connecticut Law Review 13.5 (1981): n. pag. Web.
Springer, James W. “Natural Selection or Natural Law: A Reconsideration of the Jurisprudence of Oliver Wendell Holmes.” Justice, Law, and Public Policy 53.3 (2005): n. pag. Print.