This essay builds on recent work by Susan Haack to suggest that Oliver Wendell Holmes Jr.’s conception of the common law was influenced by Darwinian evolution and classical pragmatism. This is no small claim: perceptions of what the common law is and does within the constitutional framework of the United States continue to be heavily debated. Holmes’s paradigm for the common law both revised and extended the models set forth by Sir Edward Coke, Thomas Hobbes, Sir (...) Matthew Hale, and Sir William Blackstone. Adding additional substance to Haack’s argument by pointing out passages in Holmes’s opinions and in his only book, The Common Law, that corroborate her claims about the particular features of Holmes’s pragmatism, this essay concludes by suggesting that, because of his connections with the classical pragmatists and his reverence for Emerson, Holmes is the best place to begin answering the famous question formulated by Stanley Cavell: “What’s the Use in Calling Emerson a Pragmatist?”. (shrink)

Oliver Wendell 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)

This book explores the cultures of philosophy and the law as they interact with neuroscience and biology, through the perspective of American jurist Oliver Wendell Holmes’ Jr., and the pragmatist tradition of John Dewey. Schulkin proposes that human problem solving and the law are tied to a naturalistic, realistic and an anthropological understanding of the human condition. The situated character of legal reasoning, given its complexity, like reasoning in neuroscience, can be notoriously fallible. Legal and scientific reasoning (...) is to be understood within a broader context in order to emphasize both the continuity and the porous relationship between the two. Some facts of neuroscience fit easily into discussions of human experience and the law. However, it is important not to oversell neuroscience: a meeting of law and neuroscience is unlikely to prove persuasive in the courtroom any time soon. Nevertheless, as knowledge of neuroscience becomes more reliable and more easily accepted by both the larger legislative community and in the wider public, through which neuroscience filters into epistemic and judicial reliability, the two will ultimately find themselves in front of a judge. A pragmatist view of neuroscience will aid and underlie these events. (shrink)

By any measure, Oliver Wendell 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 Oliver Wendell 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 Oliver Wendell Holmes, White has produced an equally serious and fascinating biography, one that again goes beyond the labels and gives us the man himself. (shrink)

In this unique book, Alexander Lian, a practicing commercial litigator, advances the thesis that the most famous article in American jurisprudence, Oliver Wendell Holmes's “The Path of the Law,” presents Holmes's leading ideas on legal education. Through meticulous analysis, Lian explores Holmes's fundamental ideas on law and its study. He puts “The Path of the Law” within the trajectory of Holmes's jurisprudence, from earliest scholarship to The Common Law to the occasional pieces Holmes (...) wrote or delivered after joining the U.S. Supreme Court. Lian takes a close look at the reactions “The Path of the Law” has evoked, both positive and negative, and restates the essay's core teachings for today's legal educators. Lian convincingly shows that Holmes's “theory of legal study” broke down artificial barriers between theory and practice. For contemporary legal educators, Stereoscopic Law reformulates Holmes's fundamental message that the law must been seen and taught three-dimensionally. (shrink)

Oliver Wendell 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)

The Pragmatism and Prejudice of Oliver Wendell Holmes, Jr. examines the varied categories scholars have used to describe the philosophy of Oliver Wendell Holmes, Jr. These include, “Jobbist,” Nihilist, Realist, Social Darwinist, Utilitarian, Positivist, Natural Law Theorist, and Pragmatist.

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, Oliver Wendell 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 Oliver Wendell 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)

Online encyclopedia. 2011, revised, 2014: http://plato.stanford.edu/entries/gasset/.

In lieu of an abstract, here is a brief excerpt of the content:Moving Literary Theory OnWendell V. HarrisParadox has long been especially seductive to literary critics and theorists. For the New Critics, the presence of paradox in a text served to vouch for the complexity and therefore value of the perspective on life the text offered. For poststructuralists it seems to be even more important: paradox is the hallmark of earnestness. And if paradox is good, self-contradiction is even better. That (...) at least would seem to be the reasoning that justifies the amount of internal contradiction to be encountered among the critical principles most in vogue these days. Let us note twelve of the most egregious of these contradictions.(1) New Criticism is dead. But the New Critics’ major activity, the pursuit of the author’s intended meaning through close reading, is still very much with us. However much poststructuralists have wished to deny the importance of or possibility of achieving understanding of authorially intended meaning, their own critical commentary necessarily begins with the meaning the author is assumed to have intended. For instance, that which Derrida seeks to deconstruct or undercut in Saussure, Rousseau, Austin, or Searle begins in what he thinks they intended to say. However, the New Critic sought to resolve apparent contradictions on the principle that the interpretation producing the greatest consistency would be nearest the author’s meaning (since the author was assumed to have assumed that the reader would assume that the author intended a non-contradictory statement). In contrast, the poststructuralist typically seeks to find and emphasize or, if necessary, induce contradiction—but only after having assumed that degree of consonance and unity in the text necessary to interpret the intended meaning within which can be sought the contradictions for the [End Page 428] discovery of which the reading was undertaken. The result is thus more often than not a New Critical reading into which contradictions have been injected. One is reminded of the old story of the student in a short story writing class who told his friend that he had the story all written—all he had to do was go back and put in the symbols. The typical poststructuralist begins with a reading much like what one would expect from a New Critic and then begins inducing contradictions.(2) Literature and language cannot really be about anything beyond themselves. At the same time literature and the language on which it is dependent are regarded as largely constituting that which we experience. If language cannot refer to non-linguistic things and events, either it cannot have the power to shape our classifications, descriptions, and evaluations of things and events experienced, or there exists nothing beyond language—in which case we can abolish poverty, racism, and sexism by denying that those words have any meaning. Moreover, if language is about nothing but itself, any formulation that uses language to make statements denying the relationship of language to anything outside itself must be meaningless.(3) All narratives, indeed all statements about the world, are fictional. Yet “fictional” would have no meaning if it did not stand in contrast to those things that are not fictional, while the distinctions made available by the contrast are ones we can hardly do without. There are narratives (1) that both tellers and their hearers/readers know to be not true (“not to be the case” is the evasive formulation popular with philosophers), (2) that tellers and/or hearers/readers think true though they prove not to be, and (3) that tellers think true and are in fact partially, perhaps largely true, but erroneous in some details and necessarily incomplete. These classifications require a modicum of explanation, but to lose one’s way among them would seem to require a wilful pursuit of confusion.Class 1. Oliver Twist is fictional even though there were workhouses, thieves, and such sites as The Angel and Newgate existing at the time at which the narrative is set. Of course, within a fictional narrative, there may be subnarratives the reader is to regard as true within the total fictional narrative and others that are to be regarded as false. To take a light-hearted example, within the narrative of Gilbert and... (shrink)

Oliver Wendell 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 Oliver Wendell 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)

Social Darwinism covers a set of particulars bearing a family resemblance including, but not limited to the extension of evolutionary biology to social phenomena, a biological explanation for the success of certain more biologically "fit" groups over others, an acceptance of the use of force by the "fit" to succeed over the "unfit" in the life struggle, and a preference for competition in the marketplace and a laissez-faire ideology. The serpent of Social Darwinism leaves a trail of the eugenics movement (...) in its wake. Evidence can be found that Oliver Wendell Holmes's judicial and non-judicial philosophy fits each of these instantiations.This paper first explains the origins of Social... (shrink)

Naturalistic understandings of the mind face certain hurdles. Many authors believe that some such hurdles are even insurmountable. A frequently used but rarely developed and tested argumentative move claims that, because they are made from the so-called observer perspective, naturalization efforts inevitably fail for reasons connected to our first-person perspective. We are not convinced. However, this article primarily attempts to gain a better understanding of the point and scope of this move by discussing an argument by Holm Tetens from which (...) the basic incompleteness of the observer perspective is supposed to follow. Depending on how one interprets the incompleteness in question, one gets different readings of the argument: ontological, semantic, epistemic, or explanatory. First, we will develop two ontological readings of this argument in more detail ‐ mainly because they are the most obvious challenges to naturalism. We will then systematically explore the prospects of the alternative readings. These considerations lead to a more fundamental discussion about the requirements for naturalistic explanations. As it turns out, to defend such an incompleteness argument, you face some inconvenient hurdles yourself. (shrink)

Im Zentrum des Werkes von Michael Oakeshott (1901-1990) steht die Frage nach der Vernunft der Praxis und der Praxis der Vernunft. Dieses klassische Thema der praktischen Philosophie, das heute im Hintergrund verschiedener Debatten in Philosophie und Politikwissenschaft steht, leitete Oakeshott in seiner Auseinandersetzung mit der modernen Politik. Die in dem Sammelband vereinigten Beitrage bieten einen Uberblick uber die internationale Forschungslage; ihr gemeinsamer Angelpunkt ist Oakeshotts Praxisbegriff: Diskutiert wird seine praktische Bedeutung im Durchgang durch die grundlegenden politischen und gesellschaftlichen Problemfragen der (...) Gegenwart, seine theoretische Leistungsfahigkeit ist Gegenstand vergleichender Perspektiven, die vor allem die deutschen Zeitgenossen wie H. Arendt, H.-G. Gadamer, G. Simmel oder L. Strauss einbeziehen. Der vorliegende Band unternimmt es, die seit mehr als zwei Jahrzehnten intensiv gefuhrte, vor allem angelsachsische Debatte um Oakeshotts Denken in die einschlagigen deutschen Diskussionen zu tragen und die Anknupfungspunkte sichtbar zu machen, die sein facettenreiches Werk fur die Verstandigung uber eine humane Praxis in den Konflikten des 21. Jahrhunderts bietet. Mit Beitragen von: Josiah Lee Auspitz, Michael Becker, Wendell John Coats Jr., Peter Finn, Jurgen Gebhardt, Steven A. Gerencser, Michael Grossheim, Michael Henkel, Hans Jorg Hennecke, Bart van Klink, Silviya Lechner, Oliver W. Lembcke, Kenneth B. McIntyre, Efraim Podoksik, Rainer Schmidt, Suvi Soininen, Judith A. Swanson, Martyn P. Thompson. (shrink)

Seth Vannatta identifies the common law as a central feature of the jurisprudence of former United States Supreme Court justice Oliver Wendell 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)

First Published in 1993. Routledge is an imprint of Taylor & Francis, an informa company.

Review of Frederic R. Kellogg, Oliver Wendell Holmes, Jr., _Legal Theory And Judicial Restraint_ (Cambridge University Press 2007).

In 1880, when Oliver Wendell Holmes (later to be a Justice of the U.S. Supreme Court) criticized the logical theology of law articulated by Christopher Columbus Langdell (the first Dean of Harvard Law School), neither Holmes nor Langdell was aware of the revolution in logic that had begun, the year before, with Frege's Begriffsschrift. But there is an important element of truth in Holmes's insistence that a legal system cannot be adequately understood as a system (...) of axioms and corollaries; and this element of truth is not obviated by the more powerful logical techniques that are now available. (shrink)

The Metaphysical Club, a gathering of intellectuals in the 1870s associated with Harvard, is widely recognized as the crucible where pragmatism, America's distinctively original philosophy, was refined and proclaimed. Louis Menand's bestseller about the group was a dramatic publishing success. However, only three actual members - Oliver Wendell Holmes Jr., Charles S. Peirce, and William James - appear in this book, alongside other thinkers such as John Dewey who were never in the Club. The Real Metaphysical Club (...) tells the full story of how this influential group shifted the course of philosophy in America. In addition to pioneering pragmatism, the group explored radical empiricism and idealism, and formulated personalism and process philosophy, equally important developments. This volume contains thirty-seven important writings dating from 1870 to 1885 by the real members of the Metaphysical Club. The first section centers on pragmatism and science; the second part collects writings of the lawyers; and the third part covers idealist and personalist philosophers. Many of these writings have never been reprinted before, and nothing like this impressive collection has ever been attempted. A general introduction provides a narrative history, and the editors' three introductions to the volume's sections vividly bring to life the intense meetings, sustained debates, and pioneering thought from the Metaphysical Club. (shrink)

Ranging from Joseph Bellamy to Hilary Putnam, and from early New England Divinity Schools to contemporary university philosophy departments, historian Bruce Kuklick recounts the story of the growth of philosophical thinking in the United States. Readers will explore the thought of early American philosphers such as Jonathan Edwards and John Witherspoon and will see how the political ideas of Benjamin Franklin, Thomas Paine and Thomas Jefferson influenced philosophy in colonial America. Kuklick discusses The Transcendental Club (members Henry David Thoreau, Ralph (...) Waldo Emerson) and describes the rise of pragmatism centered on Metaphysical Club of Cambridge (and members William James, Oliver Wendell Holmes, and Charles Peirce). He examines the profound impact Darwinism had on American philosophy and looks at Idealists such as the Kantian Josiah Royce and the Hegelian John Dewey. The book shows how, in the twentieth century, the Nazi conquest of Europe unleashed a flood of European intellectuals onto these shores, including such major thinkers as Theodore Adorno, Erich Fromm, Rudolph Carnap, and Alfred Tarski. Finally, Kuklick examines the contributions of such contemporary philosophers as Sidney Hook and Willard Quine and such books as John Rawl's A Theory of Justice and Herbert Marcuse's One Dimensional Man. Kuklick pulls no punches in portraying the state of American philosophy today and its contested role in the intellectual life of the nation and the world. The range of philosophical thought in our nation's history has been great, from Edwards's Religious Affections to Kuhn's The Structure of Scientific Revolutions, and Bruce Kuklick has captured it all in a book that blends intricate details with sweeping vision. (shrink)

Scattered skeptical remarks and a general austerity that infused his writings have given Justice Oliver Wendell Holmes a reputation as some type of nihilist. Noted commentators such as Richard Posner and Albert Alschuler have claimed as much. This article seeks to correct this misunderstanding. Holmes was not a nihilist in the sense of being melancholy due to a belief that the world has no absolute moral values or gods. Instead, Holmes was a pragmatist in the (...) spirit of William James and John Dewey. While Holmes had doubts about moral truth and deities, he ultimately thought that their existence (or non-existence) should have no bearing on our behavior or the law. We must, through our collective efforts, find values that work for us. (shrink)

This paper looks at standard arguments for freedom in the academy that go back to John Stuart Mill and Oliver Wendell Holmes and finds them to be poor arguments for their conclusion. It then elaborates what are the most subtle and the most entrenched forms of threat to freedom in the academy, and concludes with an argument for imbalance rather than balance in the extra-mural sphere.

What is called legal pragmatism today is very different from the older style of legal pragmatism traditionally associated with Oliver Wendell Holmes; and there is much that is worthwhile on the conception of the law revealed by reading Holmes's The Path of the Law in the light of the classical pragmatist tradition of Peirce, James, and Dewey. Here, reflections on the varieties of pragmatism - philosophical and legal, old and new - will be wrapped around an (...) exploration of Holmes's legal philosophy and the strengths and weaknesses of his arguments. (shrink)