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)

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)

This review essay evaluates The Dialectics of Liberty, a recent collection, edited by Roger E. Bissell, Chris Matthew Sciabarra, and Edward W. Younkins. It describes the dialectical turn in libertarian political and economic theory and analyzes the diverse contributions to dialectics by the various authors in this volume.

E.M. Forster’s A Passage to India presents Brahman Hindu jurisprudence as an alternative to British rule of law, a utilitarian jurisprudence that hinges on mercantilism, central planning, and imperialism. Building on John Hasnas’s critiques of rule of law and Murray Rothbard’s critiques of Benthamite utilitarianism, this essay argues that Forster’s depictions of Brahman Hindu in the novel endorse polycentric legal systems. Mr. Turton is the local district collector whose job is to pander to both British and Indian interests; positioned as (...) such, Turton is a site for critique and comparison. Forster uses Turton to show that Brahman Hindu jurisprudence is fair and more effective than British bureaucratic administration. Forster’s depictions of Brahman Hindu are not verisimilar, and Brahman Hindu does not recommend a particular jurisprudence. But Forster appropriates Brahman Hindu for aesthetic and political purposes and in so doing advocates a jurisprudence that does not reduce all experience to mathematical calculation. Forster writes against the Benthamite utilitarianism adopted by most colonial administrators in India. A tough figure to pin down politically, Forster celebrates the individual and personal relations: things that British rule of law seeks to suppress. (shrink)