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1881: The Year Oliver Wendell Holmes Jr. Adapted Emerson to the Post-War Intellectual Climate

In American History, American Literature, Arts & Letters, Emerson, History, Humanities, Jurisprudence, Law, Literature, Oliver Wendell Holmes Jr., Philosophy, Pragmatism, Western Philosophy on October 14, 2015 at 8:45 am

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Oliver Wendell Holmes Jr. turned forty in 1881. The publication of The Common Law that year gave him a chance to express his jurisprudence to a wide audience. This marked a turning point in his career. Over the next year, he would become a professor at Harvard Law School and then, a few months later, an associate justice of the Massachusetts Supreme Judicial Court.

The trauma of the Civil War affected his thinking and would eventually impact his jurisprudence. Leading up to the War, he had been an Emersonian idealist who associated with such abolitionists as Wendell Phillips. As a student at Harvard, he had served as Phillips’s bodyguard. He later enlisted in the infantry before joining the Twentieth Massachusetts, a regiment that lost five eighths of its men. He was wounded at the Battle of Ball’s Bluff in October of 1861, when he took a bullet to his chest; the bullet passed through his body without touching his heart or lungs. In September of 1862, he was wounded at the Battle of Antietam, a bullet having passed through his neck. In May of 1863, at Marye’s Hill, close to where the battle of Fredericksburg had taken place six months earlier, Holmes was shot and wounded a third time. This time the bullet struck him in the heel, splintered his bone, and tore his ligaments; his doctors were convinced that he would lose his leg. He did not, but he limped for the rest of his life.

He emerged from the War a different man. He was colder now, and more soberminded. “Holmes believed,” Louis Menand says, “that it was no longer possible to think the way he had as a young man before the war, that the world was more resistant than he had imagined. But he did not forget what it felt like to be a young man before the war.” And he learned that forms of resistance were necessary and natural in the constant struggle of humans to organize their societies and to discover what practices and activities ought to govern their conduct. The War, accordingly, made him both wiser and more disillusioned. In light of his disillusionment, he reflected the general attitudes of many men his age.

But not all men his age shared his penetrating intellect or his exhilarating facility with words; nor did they have his wartime experience, for most men who experienced what he had during the war did not live to tell about it. Certainly no one besides Holmes could claim to have enjoyed such intimate and privileged access to the Brahmin, Emersonian culture of New England before the War, and he more than anyone was equipped to see the continued relevance of that culture to the present. He knew there were things the War could not destroy and varieties of thought that could endure.

The above text is an excerpt from my essay “Pragmatism on the Shoulders of Emerson: Oliver Wendell Holmes Jr.’s Jurisprudence as a Synthesis of Emerson, Peirce, James, and Dewey,” published in The South Carolina Review, Vol. 48, No. 1 (2015). To view the full essay, you may download it here at SSRN or visit the website of The South Carolina Review.

 

“A Selected Bibliography on the Political and Legal Thought of Oliver Wendell Holmes, Jr.,” by Seth Vannatta

In Academia, American History, Arts & Letters, Books, Conservatism, History, Humanities, Jurisprudence, Law, Oliver Wendell Holmes Jr., Politics, Pragmatism, Scholarship on October 7, 2015 at 8:45 am

Seth Vannatta

Seth Vannatta is an Associate Professor and Interim Department Head in the Department of Philosophy and Religious Studies at Morgan State University. He earned a PhD in Philosophy at Southern Illinois University Carbondale (2010), where he lived from 2006-2010. Before attending SIUC, Seth taught grades 5 through 12 in the History, English, and Religion Departments at Casady School. He served as head varsity volleyball coach for ten years and head varsity soccer coach for three years. He also served as chair of the history department for two years. He has a BA from Colorado College in History (1995) and a Master’s in Liberal Arts from Oklahoma City University (2002). His wife, Rachel, has a BA from Northwestern University (2006), an Master’s in Counselor Education from Southern Illinois University (2010) and is a doctoral candidate in Counselor Education at George Washington University.

Alexander, Tom. “John Dewey and the Moral Imagination: Beyond Putnam and Rorty toward a Postmodern Ethics.” Transactions of the Charles Sanders Peirce Society. Vol. XXIX. No. 3. (Summer,1993), 369-400.

Alschuler, Albert. Law without Values. Chicago: University of Chicago Press, 2000.

Anderson, Douglas. “Peirce’s Agape and the Generality of Concern.” International Journal for the Philosophy of Religion. (Summer,1995), 103-112.

Anderson, Douglas. “Peirce and the Art of Reasoning.” Studies in Philosophy and Education.  No. 24. (2005), 277-289.

Austin, John. The Province of Jurisprudence Determined. New Dehli: Universal Law Publishing Printers, 2008.

Auxier, Randall. “Dewey on Religion and History.” Southwest Philosophy Review. Vo. 6. No. 1. January, (1990), 45-58.

_____________. “Religion and Theology.” for The Philosophy of Law: An Encyclopedia. Ed. Christopher B. Gray (Garland Publishing Co., 1999), 735-738.

_____________. “Foucault, Dewey, and the History of the Present.” Journal of Speculative Philosophy. Vol. 16. No. 2. (2002), 75-102.

_____________. “The Decline of Evolutionary Naturalism in Later Pragmatism,” Pragmatism: From Progressivism to Postmodernism. Ed. Hollinger, Robert. (Westport: Praeger, 1995), 135-150.

Baltimore and Ohio Railroad v. Goodman, 275 U.S. 66 (1927).

Burke, Edmund. Reflections on the Revolution in France. London: Penguin Books, 1986.

 The Commentaries of Sir William Blackstone, Knt. On the Laws and Constitution of England.  Ed. William Curry. London: Elibron Classics, Adamant Media Corporation, 2005.

Plato Complete Works. Edited by John Cooper. Indianapolis: Hackett Publishing, 1997.

Dailey, Anne C. “Holmes and the Romantic Mind.” Duke Law Journal. Vol. 48. No. 3 (Dec., 1998), 429-510.

Dewey, John. Human Nature and Conduct. Middle Works, Volume 14, 1922. Edited by Jo Ann Boydston. Carbondale: Southern Illinois University Press, 1967-1990.

____________. Experience and Nature. Later Works, Volume 1. Edited by Jo Ann Boydston.  Carbondale: Southern Illinois University Press, 1967-1990.

____________. “Justice Holmes and the Liberal Mind.” Later Works. Volume 3. Edited by Jo Ann Boydston. Carbondale: Southern Illinois University Press, 1967-1990.

____________. “Three Independent Factors in Morals.” Later Works. Volume 14. Edited by Jo Ann Boydston. Carbondale: Southern Illinois University Press, 1967-1990.

____________. “Qualitative Thought.” Later Works, Volume 5. Edited by Jo Ann Boydston.  Carbondale: Southern Illinois University Press, 1967-1990.

____________. Logic: The Theory of Inquiry. Later Works, Volume 12, 1938. Edited by Jo Ann     Boydston. Carbondale: Southern Illinois University Press, 1967-1990.

____________. “My Philosophy of Law.” Later Works. Volume 14. Edited by Jo Ann Boydston. Carbondale: Southern Illinois University Press, 1967-1990.

____________. “Time and Individuality.” Later Works, Volume 14. Edited by Jo Ann Boydston.   Carbondale: Southern Illinois University Press, 1967-1990.

Fisch, Max. “Justice Holmes, the Prediction Theory of Law, and Pragmatism.” The Journal of Philosophy. Vol. 34. No. 4. (February 12, 1942) 85-97.

Gadamer, Hans Georg. Truth and Method. London: Continuum, 2006.

Gouinlock, James. “Dewey,” in Ethics in the History of Western Philosophy. Edited by James  Gouinlock. New York: St. Martin’s Press, 1989.

­­­­­­­­­______________. John Dewey’s Philosophy of Value. New York: Humanities Press, 1972.

Grey, Thomas C. “Holmes and Legal Pragmatism.” 41 Stanford Law Review 787 (April 1989), 787-856.

_____________. “Freestanding Legal Pragmatism.”18 Cardozo Law Review 21. (September, 1996), 21-42.

Hantzis, Catharine Wells, “Legal Theory: Legal Innovation within the Wider Intellectual   Tradition: The Pragmatism of Oliver Wendell Holmes, Jr.” 82 Northwestern University Law Review. 541. (Spring, 1988), 543-587

Hickman, Larry A. Pragmatism as Post-postmodernism Lessons from John Dewey. New York:    Fordham University Press, 2007.

Hobbes, Thomas. Leviathan. Edited by C. B. Macpherson. London: Penguin Books, 1985.

Holmes-Einstein Letters. Edited by James Bishop Peabody. New York: St. Martin’s Press, 1964.

“Holmes, Peirce, and Legal Pragmatism.” The Yale Law Journal. Vol. 84. No. 5. (Apr. 1975), 1123-1140.

Holmes, Oliver Wendell. Dissent in ABRAMS ET AL. v. UNITED STATES. SUPREME COURT OF THE UNITED STATES 250 U.S. 616. November 10, 1919.

250 U.S. 616 (1919) Espionage Act (§ 3, Title I, of Act approved June 15, 1917, as amended May 16, 1918, 40 Stat. 553).

Hume, David. A Treatise Concerning Human Nature. NuVision Publications, 2007.

Kant, Immanuel. “What is Enlightenment?” in The Philosophy of Kant Immanuel Kant’s Moral    and Political Writings. Edited by Carl Friedrich. New York: The Modern Library, 1949.

_____________. “Of the Relation of Theory to Practice in Constitutional Law” in The Philosophy of Kant Immanuel Kant’s Moral and Political Writings. Edited by Carl Friedrich. New York: The Modern Library, 1949.

Kellogg, Frederic R. “Legal Scholarship in the Temple of Doom: Pragmatism’s Response to Critical Legal Studies.” 65 Tulane Law Review 15 (November, 1990), 16-56.

________________. “Holistic Pragmatism and Law: Morton White on Justice Oliver Wendell Holmes.” Transactions of the Charles Peirce Society. Vol. XL. No. 4. (Fall, 2004), 559-567.

________________. Oliver Wendell Holmes, Jr., Legal Theory, and Judicial Restraint, Cambridge: University Press, 2007.

Kronman, Anthony T. “Alexander Bickel’s Philosophy of Jurisprudence.” 94 Yale Law Journal.   (June, 1985), 1567-1616.

Locke, John. Second Treatise on Civil Government. Amherst: Prometheus Books, 1986.

Luban, David. “The Posner Variations (Twenty-Seven Variations on a Theme by Holmes).” Stanford Law Review. Vol. 48. No. 4 (Apr. 1996), 1001-1036.

___________. “Justice Holmes and the Metaphysics of Judicial Restraint. Duke Law Journal. Vol. 44. No. 3. (December, 1994), 449-523.

___________. Legal Modernism. Ann Arbor: University of Michigan Press, 1997.

Maine, Sir Henry James. Ancient Law. London: J.M. Dent & Sons, Ltd.; New York: E.P. Dutton & Co., 1917.

McDermott, John. Society for the Advancement of American Philosophy. March 17, 2008, East Lansing, Michigan.

Menand, Louis. The Metaphysical Club: A Story of Ideas in America. New York: Farrar, Straus, and Giroux, 2001.

Pragmatism A Reader. Ed. Louis Menand. New York: Vintage Books, 1997.

Mill, John Stuart. Utilitarianism On Liberty Essay on Bentham together with selected writings of Jeremy Bentham and John Austin. Edited by Mary Warnock. New York: New American      Library, 1974. 

The Essential Writings of Charles S. Peirce. Ed. Edward Moore. New York: Prometheus Books, 1998.

Nietzsche, Friedrich . “On the Uses and Disadvantages of History for Life.” in Untimely Meditations. Translated by R. Hollingdale, 1983. 

The Collected Works of Justice Holmes. Vol. I. Edited by Sheldon Novick. Chicago: University of Chicago Press, 1995. 

The Collected Works of Justice Holmes, Vol. 3, ed. Sheldon M. Novick. Chicago: University of  Chicago Press, 1995.

Nussbaum, Martha. “The Use and Abuse of Philosophy in Legal Education.” 45 Stanford Law Review 1627 (1993), 1627-1645.

Peirce, Charles S. “The Fixation of Belief.” in The Essential Peirce. Edited by Edward C. Moore. Amherst: Prometheus Books, 1998.

­­­­­­­­­­­­­­­______________. “Questions Concerning Certain Capacities Claimed for Man.” in The Essential  Peirce. Edited by Edward C. Moore. Amherst: Prometheus Books, 1998.

______________. “Philosophy and the Conduct of Life.” in Reasoning and the Logic of   Things.  Edited by Kenneth Lane Ketner. Cambridge: Harvard University Press, 1992.

______________. “Evolutionary Love,” The Essential Peirce, Volume I (1867-1893). Ed.  Nathan Houser and Christian Kloesel. Bloomington: Indiana University Press, 1992.

Posner, Richard A. The Economics of Justice. Boston: Harvard University Press, 1981. 

_______________. Frontiers of Legal Theory. Cambridge: Harvard University Press, 2001.

_______________. The Problems of Jurisprudence. Cambridge: Harvard University Press, 1990.

_______________. Overcoming Law. Cambridge: Harvard University Press, 1995.

_______________. Law, Pragmatism, and Democracy. Cambridge: Harvard University Press, 2003.

_______________. The Problematics of Moral and Legal Theory. Cambridge: Harvard     University Press, 1999.

_______________. How Judges Think. Cambridge: Harvard University Press, 2008.

The Essential Holmes. ed. Richard Posner. Chicago: University of Chicago Press, 1992.

Rawls, John. A Theory of Justice. Revised Edition. Cambridge: Harvard University Press, 2003.

von Savigny, Fredrich Carl. Of the Vocation of Our Age for Legislation and Jurisprudence.  North Stratford: Ayer Company Publishers, 2000.

Schedler, George. “Hobbes on the Basis of Political Obligation.” Journal of the History of Philosophy. April (1977), 165-170.

Sullivan, Michael and Solove, Daniel J. “Can Pragmatism Be Radical? Richard Posner and Legal Pragmatism.” Yale Law Journal. Vol. 113. No. 3. (Dec. 2003), 687-741.

Sullivan, Michael. Legal Pragmatism Community, Rights, and Democracy. Bloomington: Indiana University Press, 2007.

______________. “Pragmatism and Precedent: A Response to Dworkin,” Transactions of the Charles S. Peirce Society: A Quarterly Journal in American Philosophy, Vol. 26. No. 2. (Spring 1990), 225-248.

Thomson, Judith Jarvis “A Defense of Abortion,” in Contemporary Moral Problems. Edited by James E. White. Eighth Edition. United States: Thomson Wadsworth, 2006.

Part II

Alexander, Tom. John Dewey’s Theory of Art, Experience, and Nature The Horizons of Feeling.   Albany: State University of New York Press, 1987.

Anderson, Douglas. Strands of System The Philosophy of Charles Peirce. Purdue University  Press, 1995.

Cardozo, Benjamin. The Nature of the Judicial Process. New Haven: Yale University Press, 1961.

Dworkin, Ronald. Law’s Empire. Cambridge: Harvard University Press, 1986.

Fisch, Max. “Was there a Metaphysical Club in Cambridge?—Postscript.” Transactions of the       Charles S. Peirce Society: A Quarterly Journal in American Philosophy. 17 (Spring    1981), 128-130.

Hart, H.L.A. The Concept of Law. Second Edition. Oxford: Oxford University Press, 2005.

 The Blackwell Guide to the Philosophy of Law and Legal Theory. Ed. Golding and Edmundson.   Oxford: Blackwell Publishing, 2005.

Black’s Law Dictionary. Ed. Bryan A. Garner. St. Paul: West Publishing Company, 1996.

The Holmes-Laski Letters. The Correspondence of Mr. Justice Holmes and Harold J. Laski. Ed.    Felix Frankfurter. Vol. I and II. Cambridge: Harvard University Press, 1953.

The Holmes-Pollock Letters The Correspondence of Mr. Justice Holmes and Sir Frederick Pollock 1874-1932. Ed. Mark DeWolfe Howe. Cambridge: Harvard University Press,  1942.

Howe, Mark DeWolfe. Justice Oliver Wendell Holmes II: The Proving Years, 1870-1882 (1963).

Johnson, Michael. “Posner on the Uses and Disadvantages of Precedents for Law.” 23 Review of Litigation. 144 (2003), 143-156.

Kant, Immanuel. Foundations of the Metaphysics of Morals. Trans. Lewis White Beck. New Jersey: Prentice Hall, 1997.

Kellogg, Frederic R. “Holmes, Common Law Theory, and Judicial Restraint.” 36 Marshal Law Review 457 (Winter, 2003).

Luban, David. “The Bad Man and the Good Lawyer: A Centennial Essay on Holmes’s The Path of the Law.” NYU Law Review. Vol. 72. No. 6, (1997), 1547-83.

___________. “What’s Pragmatic About Legal Pragmatism?” Cardozo Law Review. Vol. 18. No. 1 (1996), 43-73.

Modak-Truran, Mark C. “A Pragmatic Justification of the Judicial Hunch.” 35 University of Richmond Law Review 55 (March, 2001).

Murphey, Murray G. Philosophical Foundations of Historical Knowledge. Albany: SUNY Press, 1994.

My Philosophy of Law Sixteen Credos of American Scholars. Boston: Boston Law Book Co., 1941.

Parker, Kunal. “The History of Experience: On the Historical Imagination of Oliver Wendell Holmes, Jr.” PoLAR. Vol. 26. No 2.

Oakeshott, Michael. On History. Oxford: Liberty Fund, 1999.

________________. Rationalism in Politics and Other Essays. Oxford: Liberty Fund, 1991.

Posner, Richard A. Cardozo: a Study in Reputation. Chicago: University of Chicago Press, 1990.

_______________. The Economic Analysis of Law. Boston: Little Brown and Company, 1977.

_______________. “Symposium on the Renaissance of Pragmatism in American Legal Thought: What has Pragmatism to Offer Law?” 63 S. Cal. Law Review. 1653. September (1990).

Pound, Roscoe. An Introduction to the Philosophy of Law. New Haven: Yale University Press, 1982.

Rousseau, Jean-Jacques. The Social Contract. New York: Penguin Books, 2006.

Rorty, Richard, “Dewey and Posner on Pragmatism and Moral Progress.” 74 University of Chicago Law Review 915 (2007).

Tushnet, Mark. “The Logic of Experience: Oliver Wendell Holmes on the Supreme Court.” 63 Virginia Law Review 975 (1977).

Vetter, Jan. “The Evolution of Holmes, Holmes and Evolution.” 72 California Law Review 343  (May, 1984).

Wacks, Raymond. Philosophy of Law A Very Short Introduction. Oxford: Oxford University Press, 2006.

Wells, Catherine Pierce. “Symposium Oliver Wendell Holmes, Jr. The Judging Years: Holmes on Legal Method: The Predictive Theory of Law as an Instance of Scientific Method.” 18 S.M.U. Law Review 329 (Winter, 1994).

White, Edward G. Justice Oliver Wendell Holmes Law and the Inner Self. Oxford: Oxford University Press, 1993.

 

Holmes and the Pragmatic Common Law

In America, American History, Arts & Letters, History, Humanities, Jurisprudence, Law, Oliver Wendell Holmes Jr., Philosophy, Pragmatism, Scholarship, The Supreme Court on May 7, 2014 at 8:45 am

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No summary could do justice to the wealth of literature about Oliver Wendell Holmes Jr.’s relationship to C.S. Peirce, William James, and John Dewey, but a few points of commonality are worth mentioning. First, Holmes was akin to Peirce in the embrace of fallibilism and the scientific method. Holmes disliked natural law thinkers because they purported to know the truth about the law by way of reason or moral teaching. In contrast, Holmes believed that the common law gradually filtered out the most workable, although not necessarily the most moral, theories; in fact, he felt that it was not the province, expertise, or training of the judge to explore issues of morality. He also believed that truth was best determined by a community of inquiring minds rather than by a judge ruling in isolation or by a justice with only eight colleagues to help work through his or her analysis. Therefore, he adhered to the doctrine of judicial restraint and deferred to statutes enacted by legislatures, which consisted of representatives elected by and accountable to the people.

Second, his notion of truth was like James’s: fluid but ultimately associated with the conglomerate views of a majority that have been tested and corroborated by concrete evidence. Holmes did not share James’s optimism, but he did share his literary sparkle. He also shared James’s meliorism and pluralism. The Common Law is a testament to the melioristic nature of the common law system. Holmes’s judicial restraint and deference to local legislatures, moreover, attest to his recognition of diverse local communities and associations that enable social cooperation and legal growth.

Third, Holmes’s celebration of the instrumentalism of the common law smacks of Dewey’s instrumentalism and its Darwinian complements. Like Dewey, Holmes moved pragmatism away from the science, logic, and mathematics that intrigued Peirce, away from the moral psychology and religious vibrancy that intrigued James, and towards the social and political considerations that intrigued Dewey. Holmes and Dewey were, to some degree, consequentialists; they cannot be made out as pure utilitarians—far from it—but their analyses do tend to focus on the importance of outcomes to the evaluation of human action. Finally, Holmes and Dewey emphasized the value of experiment and were majoritarian in that they maintained faith in the ability of distinct communities to arrive at unique solutions to pressing social issues and to memorialize those solutions in official legislation.

These three pragmatist influences enabled Holmes to create a theory of the common law unique to him that both accounted for and distanced itself from the legal positivism of John Austin and Hobbes, who traditionally have been thought of as adversaries of common law theory.

Thoughts on ‘The Road to Serfdom’: Chapter 5, “Planning and Democracy”

In Arts & Letters, Austrian Economics, Book Reviews, Books, Economics, History, Humane Economy, Humanities, Liberalism, Libertarianism, Philosophy, Politics, Pragmatism, Western Civilization, Western Philosophy on September 20, 2013 at 7:45 am

Slade Mendenhall

Slade Mendenhall is an M.Sc. candidate in Comparative Politics at the London School of Economics, with specializations in conflict and Middle Eastern affairs. He holds degrees in Economics and Mass Media Arts from the University of Georgia and writes for The Objective Standard and themendenhall.com, where he is also editor.

This article is the sixth entry in a chapter-by-chapter analysis of Friedrich Hayek’s The Road to Serfdom. Previous chapter analyses can be found here: Introduction, Chapter 1, 2, 3, and 4.

The fifth chapter in Hayek’s The Road to Serfdom looks at the reciprocal relationship between economic planning and democracy, detailing the institutional and ideological interaction of the two, the ways in which democratic socialism leads to the further centralization of power in committees and dictators, and the ways in which even partial attempts at planning necessitate further and further interventions until, unless opposed, a totalitarian system arises. In the process, Hayek makes many worthwhile points about these institutional trends, describing and explaining their trajectory. He again offers the sort of brief and destructive detour into moral philosophy that we have learned to expect from the book thus far, but in this sense the author shows us nothing new. Finally, he addresses the subject of democracy itself and the misconceptions surrounding it, with observations that sound conspicuously familiar to today’s political and academic culture.

Hayek’s argument against planning is again an inadequate one that relies upon a functional, pragmatic approach. His case, however, still affords us some valuable insights—most notably regarding what can be referred to as the ‘knowledge problem’ of central planning. “It would be impossible,” he writes,

“for any mind to comprehend the infinite variety of different needs of different people which compete for the availability of resources and to attach a definite weight to each… it is impossible for any man to survey more than a limited field, to be aware of the urgency of more than a limited number of needs” (44).

Thus, he writes, efforts by central planners to coordinate the economic activity of a whole society are fundamentally flawed and doomed from the start. The limitations of planners’ knowledge and their inability to reconcile conflicting wants among different groups within society leads both to plans based on insufficient (and, furthermore, unattainable) knowledge of individuals’ and groups’ values and a system that necessitates the sacrifice of some parties to others. To this extent, Hayek notes the problem well.

In support of this, however, he offers an argument that both fails to challenge the collectivists’ ethical premise and reaffirms the skepticist moral approach observed in his earlier chapters. In reference to the collectivist moral premise, Hayek writes,

“The ‘social goal’ or ‘common purpose’ for which society is to be organised, is usually vaguely described as the ‘common good’, or the ‘general welfare’, or the ‘general interest’. It does not need much reflection to see that these terms have no sufficiently definite meaning to determine a particular course of action” (42).

Hayek is correct in acknowledging that the terms are non-objective. What he fails to do is to challenge their validity as ethical concepts, repudiating the very notion of a “common good” or of the “general interest.” An objective, rational defense of individualism is not made by simply proclaiming the functional superiority of individualism over collectivism, as that superiority has been made clear throughout history, and avowed collectivists have long-since proven themselves disinterested in actual consequences and results. The ultimate defense of individualism must challenge the very existence of any alleged collective good that is apart from and contrary to the good of the individuals who constitute it.

Hayek’s only moral challenge to collectivism, rather than refuting the notion of the “common good”, is to challenge the possibility of any complete system of values. To be clear: Hayek does not challenge the imposition by force of a complete system of values; he challenges instead that one can even exist:

“The conception of a complete ethical code is unfamiliar and it requires some effort of imagination to see what it involves. We are not in the habit of thinking of moral codes as more or less complete. The fact that we are constantly choosing between different values without a social code prescribing how we ought to choose, does not surprise us, and does not suggest to us that our moral code is incomplete… The essential point for us is that no such complete ethical code exists. The attempt to direct all economic activity according to a single plan would raise innumerable questions to which the answer could be provided only by a moral rule, but to which existing morals have no answer and where there exists no agreed view on what ought to be done” (43).

Thus, for Hayek, the problem with central planning is a problem of moral absolutism. Failing to condemn the collectivists’ reliance upon force to achieve their ends or their violations of individual rights (a concept he has yet to mention for five chapters and counting), he instead asserts that the fallacy of their schemes arises from the assumption that all people share the same hierarchy of values and a “complete ethical code in which all the different human values are allotted their due place” (43).

Hayek’s words can be taken either of two ways. In the first, he could be suggesting that collectivists are wrong for assuming unanimity in values throughout a society, that all individuals share the same ethics. Alternatively, he could mean that collectivist beliefs are misguided for normatively believing in a set hierarchy of values and ethical code that should be applied throughout a society. His meaning is unclear. What is clear, however, is that whichever way Hayek intends these words, they are a flawed explanation for the evils of collectivism.

As to the first meaning: one would be hard-pressed to find any collectivist, modern or historic, who asserts that all individuals in society share the same values and ethical code. For the amount of effort totalitarian regimes devote to suppressing resistance and dissent, it is impossible to believe otherwise. Collectivism does not rest on the assumption that all parties in a society share the same values, but that the individual minds that hold such values are inconsequential fodder in their grand design. It is not evil for assuming that a set of values is unanimously held throughout society, but rather for its utter disregard and disdain for the rights and freedoms of individuals to choose their own values.

The second interpretation of Hayek’s statement—that collectivism is wrong for maintaining a set hierarchy of beliefs that should be applied throughout society—goes beyond the historiographical error of the first interpretation. It suggests that the error of collectivism arises from its attempt to uphold a universal code incorporating and prioritizing man’s values. This interpretation is more in keeping with Hayek’s skeptical, subjectivist moral views (as well as those of other libertarians) explored in earlier chapters. It implies that the belief in an absolute morality leads directly to the forcible imposition of that morality on society in general and, conversely, that peace and freedom rest on a subjectivist morality of self-doubt and proclaiming the impossibility of acquiring absolute moral truth. In essence, it suggests that the natural consequence of upholding a set system of values is to forcibly impose it, and that the only means by which we restrain ourselves from such forcible imposition is through the belief that there are no certain moral truths.

That such a morally subjectivist view should precede a faulty defense of individualism is to be expected. The fact that, as Hayek wrote earlier, “it is impossible for any man to survey more than a limited field, to be aware of the urgency of more than a limited number of needs” establishes, according him,

the fundamental fact on which the whole philosophy of individualism is based. It does not assume, as is often asserted, that man is egoistic or selfish, or ought to be. It merely starts from the indisputable fact that the limits of our powers of imagination make it impossible to include in our scale of values more than a sector of the needs of the whole society, and that, since, strictly speaking, scales of value can exist only in individual minds, nothing but partial scales of value exist, scales which are inevitably different and often inconsistent with each other. From this the individualist concludes that the individuals should be allowed, within defined limits, to follow their own values and preferences rather than somebody else’s, that within these spheres the individual’s system of ends should be supreme and not subject to any dictation by others” (44) [Emphasis mine.]

Having established in the last chapter his flawed view that the basis for freedom arises from the need to leave room for unexpected growth, Hayek now states his defense for individualism as based on man’s non-omniscience. That is: individuals are the primary unit of political consideration not because they have any natural rights, but because the attempt suppress and control them is forever limited by the knowledge problem of their would-be masters.

Conversely, one can assume that if such masters were able to attain perfect knowledge, he would have no arguments with which to oppose their collectivist system. The battle between individualism and collectivism is thus, for Hayek, reduced to a pragmatic debate between those who doubt the efficacy of totalitarian systems and those who claim that, despite the history of failure in socialist systems, this time they have the right answers.

Certainly, parting words by Hayek to the effect that “[i]t is this recognition of the individual as the ultimate judge of his ends, the belief that as far as possible his own views ought to govern his actions, that forms the essence of the individualist position” (44) sound promising, and invite us to support and be inspired by his argument. However, when placed in the context of what he says elsewhere, such language is revealed to mean less than we would have hoped. Hayek is not defending individualism based on the right of man to judge his own values and ends, but rather on the basis that incomplete information as to individuals’ values and the inability of planners to reconcile conflicting values between individuals leads to a conflicted, inefficient system. Yet again, Hayek is passing off a pragmatic, unprincipled defense of freedom in bold, triumphant language.

Hayek is thus unable to offer us a sufficient defense against oppression. He might, however, provide us some valuable descriptive insights into how the process of establishing socialist systems is conducted and how socialist democracies drift toward dictatorship. “[P]lanning,” he writes, “leads to dictatorship because dictatorship is the most effective instrument of coercion and the enforcement of ideals” (52). The trend, as Hayek describes it, arises from the fact that once socialist policymakers presume to control a society, the profundity of that task is highlighted and exacerbated by democratic inefficiency. This spurs a drive toward consolidation of power into committees and, ultimately, into a single dictator capable of taking decisive action. He writes,

“The inability of democratic assemblies to carry out what seems to be a clear mandate of the people will inevitably cause dissatisfaction with democratic institutions. Parliaments come to be regarded as ineffective ‘talking shops’, unable or incompetent to carry out the tasks for which they have been chosen. The conviction grows that if efficient planning is to be done, the direction must be  ‘taken out of politics’ and placed in the hands of experts, permanent officials or independent autonomous bodies” (46).

Many democratic socialists would, no doubt, challenge the determinism of this trend by touting the goodwill of legislators and their commitment to enacting solutions. But “[t]he fault,” Hayek observes, “is neither with the individual representatives nor with parliamentary institutions as such, but with the contradictions inherent in the task with which they are charged” (47). The immensity of the task and its contradiction of man’s nature and means of acquiring and applying knowledge forbid such a system from ever successfully matching the successes of a capitalist system.

Certainly a belief to the contrary is not unique to Hayek’s time, but pervades modern political thought. When Hayek writes, “The belief is becoming more and more widespread that, if things are to get done, the responsible authorities must be freed from the fetters of democratic procedure” (50), any observer of modern American regulatory culture and the expansion of executive branch power will undoubtedly note some parallels.

Another parallel to be observed between Hayek’s portrayal of his time and today’s political environment is in his depiction of the cultural preoccupation with the idea of “democracy” and the popular tendency to attribute to it an intrinsicist admiration, as if the institution of democratic systems and procedures was, in and of itself, a guarantee or safeguard of freedom. Hayek is not susceptible to such illogical leaps, however.

“Democracy is essentially a means, a utilitarian device for safeguarding internal peace and individual freedom. As such it is by no means infallible or certain… and it is at least conceivable that under the government of a very homogeneous and doctrinaire majority democratic government might be as oppressive as the worst dictatorship” (52).

Hayek is not without his own misconceptions as to the true nature of democracy, though, nor the relationship between democracy and capitalism: “If ‘capitalism’ means here a competitive system based on free disposal over private property, it is far more important to realise that only within this system is democracy possible. When it becomes dominated by a collectivist creed, democracy will inevitably destroy itself” (52).

To say that democracy is possible only within “a competitive system based on free disposal over private property” ignores the fundamental nature of democracy. Despite the typical usage of the term today, democracy in its pure sense entails no protection or recognition of rights whatsoever. As it was designed, democracy is a system of unlimited majority rule.

Capitalism does rely upon certain legal and political necessities such as individual rights and objective law. What is perceived as the hallmark of democracy—the ability to vote—is not, however, sufficient to secure democracy and may, in the absence of the other two features, destroy it. True, there exist milder democracies throughout the world today that do recognize rights, but their regard for rights does not derive from their nature as democracies. The recognition of rights is only an adjunct to—and, furthermore, a limitation on—the democratic system. The more that alleged “democracies” alter their nature to accommodate individual rights, objective law, and the principles of capitalism, the more they shed their democratic nature and acquire the qualities of a representative system suited to capitalism: a republic.

Though he fails to properly define and conceive of democracy, Hayek does acknowledge the rampant, dangerous popular preoccupation with it and the propensity for those consumed with the idea to invite a tyranny of the majority clothed in democratic language and ideas.

 “It may well be true that our generation talks and thinks too much of democracy and too little of the values which it serves… The fashionable concentration on democracy as the main value threatened is not without danger. It is largely responsible for the misleading and unfounded belief that so long as the ultimate source of power is the will of the majority, the power cannot be arbitrary. The false assurance which many people derive from this belief is an important cause of the general unawareness of the dangers which we face” (52).

Hayek’s “Planning and Democracy” is thus an average of what we have seen thus far from him: poor ethics and incomplete defenses of liberty mixed with some valuable insights as to changing political processes and the reciprocal relationship between a socialist state and society as the state seeks to deliberately mold the activities of its population, but finds itself transformed in the process. As much can be expected in our next analysis as Hayek addresses the subject of “Planning and the Rule of Law” in Chapter VI.

Thoughts on ‘The Road to Serfdom’: Chapter 1, “The Abandoned Road

In Arts & Letters, Austrian Economics, Book Reviews, Books, Britain, Economics, Epistemology, Essays, Ethics, Historicism, History, Humane Economy, Humanities, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Modernism, Philosophy, Politics, Pragmatism, Western Civilization, Western Philosophy on September 11, 2013 at 7:45 am

Slade Mendenhall

Slade Mendenhall is an M.Sc. candidate in Comparative Politics at the London School of Economics, with specializations in conflict and Middle Eastern affairs. He holds degrees in Economics and Mass Media Arts from the University of Georgia and writes for The Objective Standard and themendenhall.com, where he is also editor.

This analysis is the second installment in a series of chapter analyses of Friedrich Hayek’s The Road to Serfdom. The previous analysis of Hayek’s introduction can be found here.

If Hayek’s introduction gave us a brief summary of the ideas and practices he is setting out to oppose and contextualized the progression toward a socialist political culture in the last half century of Europe’s history, his first chapter, “The Abandoned Road”, firmly roots his grievances in the present and the problems facing England at the time of his writing and seeks to explain how England (and the West more generally) arrived there. He describes the intellectual evasions, distortions, and faulted epistemology—often consisting of poorly defined key concepts —that led to and are, in his time, perpetuating the state of affairs he observes. He then proceeds to address the subject of liberalism and how socialists who misconceive of their own system do so at least as much with its antithesis. In the process, Hayek makes many excellent observations, but also succumbs to several dangerous philosophical errors and unsubstantiated claims against laissez-faire capitalism that tarnish what might otherwise be an outstanding defense against government controls.

Hayek begins the chapter with one of the most argumentatively powerful, poignant approaches that one can take in opposing socialist ideas: illustrating to those who support more moderate, tempered versions of statist controls that though they may differ in degree from those statists they oppose, the philosophical fundamentals they advocate are the same. “We all are, or at least were until recently, certain of one thing,” he writes,

“that the leading ideas which during the last generation have become common to most people of goodwill and have determined the major changes in our social life cannot have been wrong. We are ready to accept almost any explanation of the present crisis of our civilisation except one:  that the present state of the world may be the result of genuine error on our own part, and that the pursuit of some of our most cherished ideals have apparently produced utterly different results from those which we expected” (8).

Hayek’s point is well made and much needed at a time when such widespread, utter contradictions were even more severe than they are today. Writing to Britons in the 1940s, but with as much truth to offer Americans who stumbled over the same contradictions in the 1960s and 1970s, as the platitude “we are all socialists now” manifested on Nixon’s lips as “we are all Keynesians now” (and with less fundamental difference between them than Keynesians would have you believe), he asks us to recognize that “the tendencies which have culminated in the creation of the totalitarian systems were not confined to the countries which have succumbed to them” (8-9). Nor, for that matter, are they confined to those times, and Hayek’s message to this effect—the importance of recognizing the same fundamental ideas across contexts—is as much needed today as it was then.

He goes on to recognize that the conflict between the Axis and Allied powers in World War II is fundamentally a conflict of ideas: “The external conflict is a result of a transformation of European thought in which others have moved so much faster as to bring them into irreconcilable conflict with our ideals, but which has not left us unaffected.” He is quick to point out, though, that “the history of these countries in the years before the rise of the totalitarian system showed few features with which we are not familiar” (9).

Such an appreciation for the motive power of ideas in human conflict was not so unique in Hayek’s time. In fact, the Allied leaders superlatively acknowledged the enemy they faced as “fascism” and condemned it explicitly (though the economic and social policies of FDR, along with his earlier overt flirtations with such ideas, may have made the condemnation somewhat ironic). If Hayek has a lesson to teach to this effect, it is most needed in today’s world, when the significance of philosophy is so frequently cast aside by the influences of multiculturalist nihilism and the failure, even in academia, to appreciate the role of broadly held cultural ideas in deciding man’s fate. At a time when the mention of a “clash of civilizations” invites accusations of oppressive Western chauvinism, Hayek’s acknowledgement that conflicting fundamental ideas may lead to actual conflict is a welcome reminder.

Much of the chapter appropriately looks to fundamental ideology as the cause for the rise of Nazism, seeing the rejection of individualism in favor of collectivism as a necessary prerequisite to the “National-Socialist revolution” and a “decisive step in the destruction of that civilisation which modern man had built up from the age of the Renaissance.” The spirit of this argument is undoubtedly sound. However, the method by which he proceeds to argue it leaves much to be desired. Hayek proceeds down a path of questionable historical interpretations, a half-cocked swipe at moral philosophy (that, as we shall see, is flawed but not unfamiliar to readers of this site), and ultimately an incomplete defense of the liberal policies he hopes to defend—showing the consequences of that brief glimpse of skepticism we witnessed in the introduction.

In his historical contextualization of the trends he observes, Hayek writes,

“How sharp a break not only with the recent past but with the whole evolution of Western civilisation the modern trend towards socialism means, becomes clear if we consider it not merely against the background of the nineteenth century, but in a longer historical perspective. We are rapidly abandoning not the views merely of Cobden and Bright, of Adam Smith and Hume, or even of Locke and Milton… Not merely the nineteenth- and eighteenth-century liberalism, but the basic individualism inherited by us from Erasmus and Montaigne, from Cicero and Tacitus, Pericles and Thucydides is progressively relinquished” (10).

Hayek’s invocation of these great names in the history of liberal thought is, in most instances, not misplaced. It is true that all emerged from Western civilization and that to varying extents they all fit well into the liberal, individualist tradition he means to illustrate. One would be wise to regard the inclusion of Hume and Montaigne, paragons of skepticism, as only conditional points on such a list, though Hayek’s own skepticism and that of many libertarians in his tradition would certainly allow them.

More broadly, however, it must be said that the individuals mentioned, no matter how great their contributions to political and social thought, were not often the rule in their place and time, but the exception. One can admire the works of Pericles, but should bear in mind the fickle reception he received among the Athenians. Likewise, Cicero may deserve praise above any in his time, but for those virtues we might praise he was slaughtered without trial by a dictator who faced no consequences.

Thus, as admirable as Hayek’s examples may be, to suggest that they were the norm throughout most of Western civilization is unsubstantiated. They may have embodied those qualities that most distinguished Western civilization and have been most responsible for its progress, but it was a progress often achieved by much-abused minorities. The Renaissance, Enlightenment, and nineteenth century were the high-points of individualism and Western ideals, and Hayek is right in singling them out. However, he also runs the risk of obscuring the philosophical roots of National Socialism, itself the product of contrary trends in Western thought, by engaging in careless generalization from those high-points and distinguished individuals to Western history in general.

Departing from this somewhat problematic historical interpretation, Hayek moves through a favorable discussion of the benefits of economic and political freedom on scientific innovation. His recognition and argument that “[w]herever the barriers to the free exercise of human ingenuity were removed man became rapidly able to satisfy ever-widening ranges of desire” is incontestable (12). He also anticipates the common objections by socialist apologists today who characterize the Industrial Revolution as a period of oppression by citing the difficult living conditions of the urban poor. He rightly rejects this by contextualizing the period in the experiences and expectations of those who lived through it, writing that

“[w]e cannot do justice to this astonishing growth if we measure it by our present standards, which themselves result from this growth and now make many defects obvious. To appreciate what it meant to those who took part in it we must measure it by the hopes and wishes men held when it began… that by the beginning of the twentieth century the working man in the Western world had reached a degree of material comfort, security, and personal independence which a hundred years before had seemed scarcely possible” (12-13).

What proceeds from there is where Hayek seems on unsteady footing, as he briefly undertakes the task of trying to explain what ideas diverted man from the individualist course set from the Renaissance to the nineteenth century. Inexplicably, Hayek credits an excess of ambition as responsible for the turn toward socialism. He writes,

“What in the future will probably appear the most significant and far-reaching effect of this success is the new sense of power over their own fate, the belief in the unbounded possibilities of improving their own lot, which the success already achieved created among men. With success grew ambition—and man had every right to be ambitious” (13).

He returns to the idea again later, writing that,

“Because of the growing impatience with the slow advance of liberal policy, the just irritation with those who used liberal phraseology in defence of anti-social privileges, and the boundless ambition seemingly justified by the material improvements already achieved, it came to pass that toward the turn of the century the belief in the basic tenets of liberalism was more and more relinquished” (14-15).

It is here that Hayek’s inadequacy in analyzing philosophical ideas, and perhaps an economic bias toward looking at matters purely as a function of supply and demand, begins to show. The notion that an inadequate or insufficiently rapid provision of living standards by capitalism is to blame for the introduction and spread of socialism is baseless, as it not only commits the philosophical error of attributing a total change in fundamental beliefs to external conditions, but also ignores the fact that the introduction of socialist policies preceded the slowdown in quality of living improvements in the Western world—and, furthermore, that the slowdown still wasn’t all that slow, as anyone who looks at world history from 1870 to 1928 will readily observe.

Thus, Hayek’s notion that “ambition” is somehow to blame is irrational. If we accept the notion that capitalism was responsible for man’s improved quality of living, then the only function that ambition should serve in this context is to drive men back toward capitalism and its fundamental values—not toward socialism. To the contrary, it is not an excess of ambition that drove men away from capitalism, but the fact that the philosophical principles that underlie and empower capitalism were not consistently established in the minds of its practitioners in the first place. That is: those who lived under capitalism had not explicitly embraced reason as man’s means of acquiring knowledge, nor rational egoism as his proper ethical system, and thus lacked the fundamentals on which individualism rests. Thus, ultimately, the individualism that Hayek admires was present in the West, but not firmly rooted enough to survive the philosophical revival of Plato in the forms of Kant and Hegel. Undercut by their philosophies, in the face of Marx and Engels the West was a pushover.

Hayek’s invocation of excess ambition as an explanation for socialism shows that though he understands the role of political ideology in man’s fate, his ability to explain how that ideology stems from deeper levels of philosophy is severely lacking. Unfortunately, he does not allow this lack of expertise to stop him from making such baseless speculations as to the roots of socialism being in man’s ambition, nor from making a similarly arbitrary and more dangerous conjecture: that the essential quality that animated the Renaissance and Western civilization’s embrace of individual man was “tolerance.”

“Tolerance,” he writes, “is, perhaps, the only word which still preserves the full meaning of the principle which during the whole of this period was in the ascendant and which only in recent times has again been in decline, to disappear completely with the rise of the totalitarian state” (3). Hayek offers no further explanation to support this statement or the implication that tolerance was the animating virtue of these times, or at the very least played some crucial role in it. Nor does he illustrate the point with citations or examples. The claim stands alone.

We are thus left to speculate as to his actual beliefs on this point. However, a look at a somewhat younger contemporary libertarian economist who dabbled in political writings such as this and who shares certain philosophical fundamentals—namely a skepticist epistemology—may shed some light on the claim. Milton Friedman similarly cited ‘tolerance’ and, more specific to Friedman’s case, “tolerance based on humility” as the fundamental basis of his libertarianism. That is: the rejection of statism based not on the rights of individuals but based on the fact that no one can rightly initiate force against another since the initiator has no basis by which to know whether the cause in whose name he would initiate that force is right or wrong. Put simply, it establishes a social system in which peaceable relations between men depend upon the impossibility of establishing objective principles. In which ignorance, not knowledge, is man’s saving grace. In which moral certainty is perceived to be the root of all tyranny.

(I will not go further into Friedman’s confused moral philosophy here, though it is encouraged that the reader reference my article “The Failures of Milton Friedman” for a fuller explanation his views and the dangers they entail.)

Whether Hayek’s implication in citing “tolerance” as the great virtue lost by the rise of collectivism is in line with Milton Friedman’s connections of “tolerance” and libertarianism is unknown, but the fact that the two men share a skepticist epistemology and both ultimately land at the same word to describe the virtue that they see to be animating their ideals cannot be ignored and provides a possible explanation for Hayek’s unsupported statement.

Where skepticist epistemology and haphazard forays into moral philosophy are found, an incomplete defense of freedom usually follows. So it is here with Hayek, who shows us precisely his conception of freedom and how it should be fought for, writing, “There is nothing in the basic principles of liberalism to make it a stationary creed, there are no hard and fast rules fixed once and for all. The fundamental principle that in the ordering of our affairs we should make as much use as possible of the spontaneous forces of society, and resort as little as possible to coercion, is capable of an infinite variety of applications” (13).

I will not engage with this statement directly, as it has been soundly argued elsewhere in other essays from this publication such as “The Philosophy of Capitalism” and Brian Underwood’s “Political Capitalism”, as well as in Ayn Rand’s essays “Man’s Rights”, “The Objectivist Ethics”, and “The Nature of Government.” I will observe simply that for a man accepted by many to be symbolic of twentieth century liberalism to take such a pragmatic, unprincipled approach to the defense of freedom stands as much as a symbol of the unsteadiness and lack of a moral basis in that movement as it does a condemnation of the man himself. What’s more, it shows that no sound defense of liberty can be based on a skepticist epistemology. A defense of man begins with an admiration for man and his nature as a rational, efficacious being. Whoever hopes to undertake a task so daunting and so crucial as a defense of man’s rights against oppression cannot enter the fray with a puttering “Who knows?!” as his battle cry.

It is the inevitable fate of such pragmatists that they should ultimately abandon a strict conception of liberty and that they should shrink principles down to the level of momentarily expedient guidelines to be cast aside at the first sign of opposition. We must be immensely grateful that the Founding Fathers of the United States had the moral basis to recognize and firmly assert the rights of “life, liberty, and the pursuit of happiness”, yoking future statesmen to these principles rather than settling for such a shrugging recommendation that they “make as much use as possible of the spontaneous forces of society.” We must be proud that Jefferson swore “an oath upon the altar of God eternal hostility against every form of tyranny over the mind of man”, and not merely an oath to “resort as little as possible to coercion.”

The distortions, sadly, do not end there. Hayek confounds our expectations further by seeking to balance his critique of socialism with a contrary charge against advocates of full individual rights, writing that “[p]robably nothing has done so much harm to the liberal cause as the wooden insistence of some liberals on certain rough rules of thumb, above all the principle of laissez faire” [emphasis mine] (13).

Hayek’s ambiguous accusation against advocates of laissez-faire, that they are somehow partly responsible for the rise of socialist policies, apparently rests on the capitalists having viewed the principle as a “hard and fast… rule which knew no exceptions” (13).  He goes on to explain that the downfall of liberalism is explainable by reference to the liberal’s strict adherence to the laissez-faire principle, finding it “inevitable that, once their position was penetrated at some points, it should soon collapse as a whole” (13).

At this point, Hayek quickly reveals several key implications: that advocates of laissez-faire are partly responsible for the rise of socialism, that laissez-faire is a flawed system, and that its legitimacy has indeed “collapse[d]” through being disproven. He continues, “No sensible person should have doubted that the crude rules in which the principles of economic policy of the nineteenth century were expressed were only a beginning, that we had yet much to learn, and that there were still immense possibilities of advancement on the lines on which we had moved” (14).

To be clear: Hayek is not referring to changes in application or translation of the existing principles, but a shift in principles as such. ‘What’, one must ask, ‘could have fundamentally changed so drastically in the period in question, to make the basic principles of economic freedom no longer relevant or applicable in one period as they had been in the previous one?’ According to Hayek, it was the inevitable result of having

“gained increasing intellectual mastery of the forces of which we had to make use. There were many obvious tasks, such as our handling of the monetary system, and the prevention or control of monopoly, and an even greater number of less obvious but hardly less important tasks to be undertaken in other fields, where there could be no doubt that the governments possessed enormous powers for good and evil;” (14)

Thus, Hayek posits that our “increasing intellectual mastery” (though I can think of a century of economic instability primarily brought by government controls that would refute this alleged “mastery”) is to credit for government intervention in the economy. He implies that the belief that governments could regulate the economy by force somehow translates to the presumption that they should do so—a significant leap that Hayek does not and cannot, without reference to philosophy, explain. Not only does this misconceive of the problem; it carelessly implies that those statesmen of earlier times did not intervene in the economy because they could not conceive of how to do so. To the contrary: earlier liberal thinkers did not plead ignorance in the face of proposed interventionism—they opposed it on principle, and suggesting otherwise is a discredit to their defenses of liberty.

Hayek’s passing statements apparently endorsing the “control of monopoly” and his suggestion that “the governments possessed enormous powers for good and evil”—that is, that good could be achieved by force just as surely as evil—only add layers to the disappointing picture established thus far. He goes on to make an unconvincing argument that the slow pace of economic progress under liberalism was to blame for people having turned away from it—a confounding claim to make about a century that witnessed the most rapid and dramatic rise in quality of life in the history of humankind, and one that even Marx himself would likely have disputed as unsubstantiated.

Finally, he ends the chapter on an agreeable note with a brief description of how the geographical flow of ideas—from Britain and the US east to continental Europe—reversed at this period in history and the prevailing current turned westward, exporting German socialist ideas to the Atlantic. He astutely summarizes how the ideas of Marx, Hegel, List, Schmoller, Sombart, and Mannheim overtook the intellectual tone set by the English after 1870. He ends on the essential point that it was ultimately the lack of confidence in their own convictions by Western thinkers that made this shift possible. In this effort—narrating the history of philosophical and cultural trade balances—Hayek is excellent and displays the power of which he is capable when he remains in his purview, capitalizing on his unique perspective.

After a promising introduction, the first chapter of Hayek’s book has proven shaky at best. The flaws are numerous and fatal: a questionable interpretation of the histories of both liberalism’s origins and socialism’s ascendance, a dangerously inadequate grasp of the role of moral philosophy in the histories he details, a desire to blame liberalism for its own destruction with insufficient substantiation, a skepticist rejection of principles that leads to a pragmatist’s approach to policy, and, finally, a rejection of laissez-faire capitalism.

To his credit, Hayek is overall favorable on matters of economic history, arguing effectively for the role of capitalism in promoting scientific progress and advances in standards of living. However, his suggestion that advancement in the nineteenth and early twentieth centuries was slow, and that this slowness of progress is to blame for the West’s acceptance of socialism, is largely without a supporting argument, is contrary to the unrivaled history of economic progress that we know to have characterized that period, and, incidentally, indulges a determinist philosophy that we saw him as likely to avoid in the introduction—a serious point of inconsistency.

Overall, Hayek’s first chapter is a dramatic step down from the introduction and a disappointment considering the reputation of the book. It is, in its own way, an abandonment of the road, if in a slightly different direction than those whom Hayek criticizes. Though future chapters may redeem the work to some extent, the fact that so much ground is lost in the first few pages is a severe blow, but one that is in keeping with the suspicions which we noted in assessing the introduction and which we warned to be on the lookout for. It illustrates well the consequences of even small cracks in one’s intellectual foundation and confirms the value of critically applying careful philosophical detective work in reading works such as this, no matter their reputation.

Pragmatists Versus Agrarians?

In America, American History, Arts & Letters, Book Reviews, Books, Conservatism, Emerson, History, Humanities, Liberalism, Literary Theory & Criticism, Literature, Nineteenth-Century America, Philosophy, Politics, Pragmatism, Southern History, Southern Literature, Western Civilization, Western Philosophy, Writing on June 19, 2013 at 8:45 am

Allen Mendenhall

This review originally appeared here at The University Bookman.

John J. Langdale’s Superfluous Southerners paints a magnificent portrait of Southern conservatism and the Southern Agrarians, and it will become recognized as an outstanding contribution to the field of Southern Studies. It charts an accurate and compelling narrative regarding Southern, Agrarian conservatism during the twentieth century, but it erroneously conflates Northern liberalism with pragmatism, muddying an otherwise immaculate study.

Langdale sets up a false dichotomy as his foundational premise: progressive, Northern pragmatists versus traditionalist, Southern conservatives. From this premise, he draws several conclusions: that Southern conservatism offers a revealing context for examining the gradual demise of traditional humanism in America; that Northern pragmatism, which ushered in modernity in America, was an impediment to traditional humanism; that “pragmatic liberalism” (his term) was Gnostic insofar as it viewed humanity as perfectible; that the man of letters archetype finds support in Southern conservatism; that Southern conservatives eschewed ideology while Northern liberals used it to present society as constantly ameliorating; that Southern conservatives celebrated “superfluity” in order to preserve canons and traditions; that allegedly superfluous ways of living were, in the minds of Southern conservatives, essential to cultural stability; that Agrarianism arose as a response to the New Humanism; and that superfluous Southerners, so deemed, refined and revised established values for new generations.

In short, his argument is that Southern conservatives believed their errand was to defend and reanimate a disintegrating past. This belief is expressed in discussion of the work of six prominent Southern men of letters spanning two generations: John Crowe Ransom, Donald Davidson, Allen Tate, Cleanth Brooks, Richard Weaver, and M. E. Bradford.

Langdale ably demonstrates how the Southern Agrarians mounted an effective and tireless rhetorical battle against organized counterforces, worried that scientific and industrial progress would replace traditional faith in the unknown and mysterious, and fused poetry and politics to summon forth an ethos of Romanticism and chivalry. He sketches the lines of thought connecting the earliest Agrarians to such later Southerners as Weaver and Bradford. He is so meticulous in his treatment of Southern conservatives that it is surprising the degree to which he neglects the constructive and decent aspects of pragmatism.

Careful to show that “Agrarianism, far from a monolithic movement, had always been as varied as the men who devised it,” he does not exercise the same fastidiousness and impartiality towards the pragmatists, who are branded with derogatory labels throughout the book even though their ideas are never explained in detail. The result is a series of avoidable errors.

First, what Langdale treats as a monolithic antithesis to Southern conservatism is actually a multifaceted philosophy marked by only occasional agreement among its practitioners. C. S. Peirce was the founder of pragmatism, followed by William James, yet Peirce considered James’s pragmatism so distinct from his own that he renamed his philosophy “pragmaticism.” John Dewey reworked James’s pragmatism until his own version retained few similarities with James’s or Peirce’s. Oliver Wendell Holmes Jr. never identified himself as a pragmatist, and his jurisprudence is readily distinguishable from the philosophy of Peirce, James, and Dewey. Each of these men had nuanced interpretations of pragmatism that are difficult to harmonize with each other, let alone view as a bloc against Southern, traditionalist conservatism.

Second, the Southern Agrarians espoused ideas that were generally widespread among Southerners, embedded in Southern culture, and reflective of Southern attitudes. By contrast, pragmatism was an academic enterprise rejected by most Northern intellectuals and completely out of the purview of the average Northern citizen. Pragmatism was nowhere near representative of Northern thinking, especially not in the political or economic realm, and it is hyperbolic to suggest, as Langdale does, that pragmatism influenced the intellectual climate in the North to the extent that traditionalist conservatism influenced the intellectual climate in the South.

Third, the pragmatism of Peirce and James is not about sociopolitical or socioeconomic advancement. It is a methodology, a process of scientific inquiry. It does not address conservatism per se or liberalism per se. It can lead one to either conservative or liberal outcomes, although the earliest pragmatists rarely applied it to politics as such. It is, accordingly, a vehicle to an end, not an end itself. Peirce and James viewed it as a technique to ferret out the truth of an idea by subjecting concrete data to rigorous analysis based on statistical probability, sustained experimentation, and trial and error. Although James occasionally undertook to discuss political subjects, he did not treat pragmatism as the realization of political fantasy. Pragmatism, properly understood, can be used to validate a political idea, but does not comprise one.

The Southern Agrarians may have privileged poetic supernaturalism over scientific inquiry; it does not follow, however, that pragmatists like Peirce and James evinced theories with overt or intended political consequences aimed at Southerners or traditionalists or, for that matter, Northern liberals. Rather than regional conflict or identity, the pragmatists were concerned with fine-tuning what they believed to be loose methods of science and epistemology and metaphysics. They identified with epistemic traditions of Western philosophy but wanted to distill them to their core, knowing full well that humans could not perfect philosophy, only tweak it to become comprehensible and meaningful for a given moment. On the other hand, the Southern Agrarians were also concerned with epistemology and metaphysics, but their concern was invariably colored by regional associations, their rhetoric inflected with political overtones. Both Southern Agrarians and pragmatists attempted to conserve the most profitable and essential elements of Western philosophy; opinions about what those elements were differed from thinker to thinker.

Fourth, Langdale’s caricature (for that is what it is) of pragmatism at times resembles a mode of thought that is alien to pragmatism. For instance, he claims that “pragmatism is a distinctly American incarnation of the historical compulsion to the utopian and of what philosopher Eric Voegelin described as the ancient tradition of ‘gnosticism.’” Nothing, however, is more fundamental to pragmatism than the rejection of utopianism or Gnosticism. That rejection is so widely recognized that even Merriam-Webster lists “pragmatism” as an antonym for “utopian.”

Pragmatism is against teleology and dogma; it takes as its starting point observable realities rather than intangible, impractical abstractions and ideals. What Langdale describes is more like Marxism: a messianic ideology with a sprawling, utopian teleology regarding the supposedly inevitable progress of humankind.

Given that pragmatism is central to his thesis, it is telling that Langdale never takes the time to define it, explain the numerous differences between leading pragmatists, or analyze any landmark pragmatist texts. The effect is disappointing.

Landgale’s approach to “superfluity” makes Superfluous Southerners the inverse of Richard Poirier’s 1992 Poetry and Pragmatism: whereas Langdale relates “superfluity” to Southern men of letters who conserve what the modern era has ticketed as superfluous, Poirier relates “superfluity” to Emerson and his literary posterity in Robert Frost, Gertrude Stein, Wallace Stevens, T. S. Eliot, William Carlos Williams, and Ezra Pound. Both notions of superfluity contemplate the preservation of perennial virtues and literary forms; one, however, condemns pragmatism while the other applauds it.

For both Langdale and Poirier, “superfluity” is good. It is not a term of denunciation as it is usually taken to be. Langdale cites Hungarian sociologist Karl Mannheim to link “superfluity” to traditionalists who transform and adapt ideas to “the new stage of social and mental development,” thus keeping “alive a ‘strand’ of social development which would otherwise have become extinct.”

Poirier also links superfluity to an effort to maintain past ideas. His notion of “superfluity,” though, refers to the rhetorical excesses and exaggerated style that Emerson flaunted to draw attention to precedents that have proven wise and important. By reenergizing old ideas with creative and exhilarating language, Emerson secured their significance for a new era. In this respect, Emerson is, in Poirier’s words, “radically conservative.”

Who is right? Langdale or Poirier? Langdale seeks to reserve superfluity for the province of Southern, traditionalist conservatives. Does this mean that Poirier is wrong? And if Poirier is right, does not Langdale’s binary opposition collapse into itself?

These questions notwithstanding, it is strange that Langdale would accuse the Emersonian pragmatic tradition of opposing that which, according to Poirier, it represents. Although it would be wrong to call Emerson a political conservative, he cannot be said to lack a reverence for history. A better, more conservative criticism of Emerson—which Langdale mentions in his introduction—would involve Emerson’s transcendentalism that promoted a belief in innate human goodness. Such idealism flies in the face of Southern traditionalism, which generally abides by the Augustinian doctrine of innate human depravity and the political postures appertaining thereto.

What Langdale attributes to pragmatism is in fact a bane to most pragmatists. A basic tenet of pragmatism, for instance, is human fallibilism, which is in keeping with the doctrine of innate human depravity and which Peirce numbers as among his reasons for supporting the scientific method. Peirce’s position is that one human mind is imperfect and cannot by itself reach trustworthy conclusions; therefore, all ideas must be filtered through the logic and experimentation of a community of thinkers; a lasting and uniform consensus is necessary to verify the validity of any given hypothesis. This is, of course, anathema to the transcendentalist’s conviction that society corrupts the inherent power and goodness of the individual genius.

Langdale’s restricted view of pragmatism might have to do with unreliable secondary sources. He cites, of all people, Herbert Croly for the proposition that, in Croly’s words, “democracy cannot be disentangled from an aspiration toward human perfectibility.” The connection between Croly and pragmatism seems to be that Croly was a student of James, but so was the politically and methodologically conservative C. I. Lewis. And let us not forget that the inimitable Jacques Barzun, who excoriated James’s disciples for exploiting and misreading pragmatism, wrote an entire book—A Stroll with William James—which he tagged as “the record of an intellectual debt.”

Pragmatism is a chronic target for conservatives who haven’t read much pragmatism. Frank Purcell has written in Taki’s Magazine about “conservatives who break into hives at the mere mention of pragmatism.” Classical pragmatists are denominated as forerunners of progressivism despite having little in common with progressives. The chief reason for this is the legacy of John Dewey and Richard Rorty, both proud progressives and, nominally at least, pragmatists.

Dewey, behind James, is arguably the most recognizable pragmatist, and it is his reputation, as championed by Rorty, that has done the most to generate negative stereotypes and misplaced generalizations about pragmatism. Conservatives are right to disapprove of Dewey’s theories of educational reform and social democracy, yet he is just one pragmatist among many, and there are important differences between his ideas and the ideas of other pragmatists.

In fact, the classical pragmatists have much to offer conservatives, and conservatives—even the Southern Agrarians—have supported ideas that are compatible with pragmatism, if not outright pragmatic. Burkean instrumentalism, committed to gradualism and wary of ideological extremes, is itself a precursor to social forms of pragmatism, although it bears repeating that social theories do not necessarily entail political action.

Russell Kirk’s The Conservative Mind traces philosophical continuities and thus provides clarifying substance to the pragmatist notion that ideas evolve over time and in response to changing technologies and social circumstances, while always retaining what is focal or fundamental to their composition. The original subtitle of that book was “From Burke to Santayana,” and it is remarkable, is it not, that both Burke and Santayana are pragmatists in their own way? Santayana was plugged into the pragmatist network, having worked alongside James and Josiah Royce, and he authored one of the liveliest expressions of pragmatism ever written: The Life of Reason. Although Santayana snubbed the label, general consensus maintains that he was a pragmatist. It is also striking that Kirk places John Randolph of Roanoke and John C. Calhoun, both Southern conservatives, between these pragmatists on his map of conservative thought. There is, in that respect, an implication that pragmatism complements traditionalism.

Langdale relies on Menand’s outline of pragmatism and appears to mimic Menand’s approach to intellectual history. It is as though Langdale had hoped to write the conservative, Southern companion to The Metaphysical Club. He does not succeed because his representation of pragmatism is indelibly stamped by the ideas of Rorty, who repackaged pragmatism in postmodern lexica. Moreover, Langdale’s failure or refusal to describe standing differences between the classical pragmatists and neo-pragmatists means that his book is subject to the same critique that Susan Haack brought against Menand.

Haack lambasted Menand for sullying the reputation of the classical pragmatists by associating pragmatism with nascent Rortyianism—“vulgar Rortyianism,” in her words. Langdale seems guilty of this same supposition. By pitting pragmatism against Southern conservatism, he implies that Southern conservatism rejects, among other features, the application of mathematics to the scientific method, the analysis of probabilities derived from data sampling and experimentation, and the prediction of outcomes in light of statistical inferences. The problem is that the Agrarians did not oppose these things, although their focus on preserving the literary and cultural traditions of the South led them to express their views through poetry and story rather than as philosophy. But there is nothing in these methods of pragmatism (as opposed to the uses some later pragmatists may have put to them) that is antithetical to Southern Agrarianism.

Superfluous Southerners is at its best when it sticks to its Southern subjects and does not undertake comparative analyses of intellectual schools. It is at its worst when it resorts to incorrect and provocative phrases about “the gnostic hubris of pragmatists” or “the gnostic spirit of American pragmatic liberalism.” Most of its chapters do a remarkable job teasing out distinctions between its Southern conservative subjects and narrating history about the Southern Agrarians’ relationship to modernity, commitment to language and literature, and role as custodians of a fading heritage. Unfortunately, his book confounds the already ramified philosophy known as pragmatism, and at the expense of the Southern traditionalism that he and I admire.

Bloom, Poirier, Holmes: What’s the Link?

In American History, Arts & Letters, Creativity, Emerson, History, Humanities, Literary Theory & Criticism, Literature, Oliver Wendell Holmes Jr., Pragmatism, Western Philosophy on December 26, 2012 at 8:45 am

Allen Mendenhall

Harold Bloom’s Anxiety of Influence is of a piece with pragmatism as it is manifested in Richard Poirier’s account of poetic influence whereby a poet or writer struggles to overcome the powerful precedent of his or her forerunners.  Poirier goes to great lengths to demonstrate how Emerson’s “superfluity” has to do with Emerson’s anxiety about articulating the phenomenal world in ways that are new.  Like Emerson, Holmes distorts and recasts precedents.  Holmes uses the common law canon much as Emerson uses the literary canon, and vice versa.

Bloom and Poirier are Darwinians, as were most of the classical pragmatists, on the issue of revision and adaptation of forms to fit new social and cultural environments.  Bloom seems to suggest that there are perennial themes and tropes in the work of great poets over time, but that it is the new and creative ways in which these existing categories are expressed that make them great.  The anxiety is in finding new articulation for previously established content and methods.  The poet, then, is like the judge according Holmes: someone who must rely on precedent even as he carves out new spaces for critical inquiry.

Emerson is a milestone figure for Poirier because Emerson struggles with “linguistic skepticism.”  Emerson’s anxiety about expressing new ideas in old forms led him to embrace rhetorical superfluity as a means of compensating for the limitations of his own mind and historical moment.  Emerson was skeptical about the ability of the word or language to summon forth the meanings in his head or the sensations that he felt.  For Poirier, Emerson established what Joan Richardson calls an “aesthetic outpost” against which later writers like Robert Frost or Wallace Stevens wrote.  Emerson facilitated continuity with the past while generating his own tropes on which later American writers would themselves trope.  All of this revision and adaptation had to do with a distinctly American tradition of writing that attempted to break free of the confines of European traditions and express the attitudes and possibilities created by the New World.  Holmes himself turned away from European jurisprudence and embraced philosophical pragmatism, which led to such interpretive tendencies as judicial restraint, deference to state legislatures, rejection of abstractions, and analysis of actual experiences tested and tried in both the economic marketplace and the marketplace of ideas.

What links Bloom, Poirier, and Holmes is Emerson.

The Enduring Importance of Justice Holmes: A Brief Note

In America, American History, Arts & Letters, Conservatism, History, Humanities, Jurisprudence, Law, Liberalism, Oliver Wendell Holmes Jr., Philosophy, Politics, Pragmatism on December 19, 2012 at 9:00 am

Allen Mendenhall

There is an argument to be made that Oliver Wendell Holmes Jr. matters more today than he did in his own lifetime, even if he is, with a few exceptions, less understood.  He continues to be the most cited Supreme Court justice in United States history, and his pithy phrases, hard-hitting prose, and axiomatic opinions and dissents continue to obtain as law; even when they do not obtain as law, they almost always remain valid candidates for becoming law.

Holmes wrote his ambitious tome The Common Law to outline the history of the development of Anglo-American jurisprudence as it played out in the complex interactions among people down through the centuries.  In so doing, he showed that law is a meliorative process of applying and organizing—with mixed purposes and results—general principles in different ages.  Holmes’s attention to precedent as both a corrective heuristic and a systematic hermeneutic grounded in case patterns and practices demonstrates how common law systems work.  In recent Supreme Court cases, justices on both the putative “left” and “right” wing of the court have cited Holmes to authorize certain viewpoints, and Holmes’s writings are recycled so often by judges that they appear to have been central to ensuring the validity and viability of the very organism—the common law—that they sought to improve and describe.

Holmes was, and is, known for his deference to local legislatures; he did not think that unelected judges should be able to impose their viewpoints upon distinct, regional cultures and communities.  He resisted sprawling interpretations of words and principles, even if his hermeneutics brought about consequences he did not like.  He was open about his willingness to decide cases against his own interests.  As he wrote to his cousin John T. Morse, “It has given me great pleasure to sustain the Constitutionality of laws that I believe to be as bad as possible, because I thereby helped to mark the difference between what I would forbid and what the Constitution permits.”

Louis Menand, in The Metaphysical Club, asserts that “one thing that can be said with certainty about Holmes as a judge is that he almost never cared, in the cases he decided, about outcomes,” because he was “utterly, sometimes fantastically, indifferent to the real-world effects of his decisions.”  In other words, Holmes did not reach his decisions because they would produce results that he could applaud; he reached them because he thought they were conclusions he had to arrive at in light of facts, circumstances, precedents, and rules.  A common mistake is to take Holmes’s deference to the mores and traditions of states and localities as evidence of his shared belief in those mores and traditions.  For instance, David Bernstein’s Rehabilitating Lochner (University of Chicago Press, 2011) tickets Holmes’s dissent in Lochner v. New York as a denunciation of business interests, but that was not the case.  Holmes did not have to agree with states and localities to say that federal judges and Supreme Court justices should not inject their worldview (economic or otherwise) into the life of a community with an opposing worldview.  As Frankfurter said of Holmes, “He has ever been keenly conscious of the delicacy involved in reviewing other men’s judgment not as to its wisdom but as to their right to entertain the reasonableness of its wisdom.”

In this respect, Holmes is a pragmatic pluralist in the manner of William James, and his judicial outlook seems to enact a more political version of James’s religious masterpiece “Varieties of Religious Experience.”  Holmes’s jurisprudence might even be dubbed “Varieties of Political Experience.”  Holmes’s position on judging is analogous to James’s suggestion in “Varieties of Religious Experience” that a person is entitled to believe what he wants so long as the practice of his religious belief is verifiable in experience and does not infringe upon the opportunity of others to exercise their own legitimate religious practices.  James put forth the idea of a “pluralistic universe,” which he envisioned to be, in his words, “more like a federal republic than an empire or a kingdom.”  Holmes likewise contemplated the notion of a federal republic in his opinions and dissents, especially in his deference to the states and their legislatures.  Although countless biographers and historians have noted the relationship between Holmes and James, I have yet to see an article-length treatment of this federalist aspect of their commonalities.

Holmes is often harnessed in the service of some conservative or liberal position—the most polemical on this score is Albert W. Alschuler’s Law Without Values: The Life, Work, and Legacy of Justice Holmes (University of Chicago Press, 2001)—but it is a mistake to treat his writings as an endorsement of the politics they enabled.  The most recent article published on Holmes, “The House that Built Holmes” by Brad Snyder (Vol. 30 of the Law & History Review, 2012), argues that Holmes’s reputation is largely a product of the iconic status to which young progressives elevated him, even though, ironically, Holmes disagreed with their politics.  In fact, Holmes did not support many of the projects that his decisions made possible; nor did he consider his own views unconditionally right; he therefore refused to insert his ideas into places where a faraway, federal judge’s opinion did not belong.  Menand seems to suggest that Holmes’s experiences as a soldier in the 20th Massachusetts, during the Civil War, shaped Holmes’s views about law, particularly with regard to regional particularities and idiosyncrasies.  His entire life, Holmes would couch his catchy rhetoric in the vocabularies of war, and he insisted that certitude, such as it was, could lead only to violence.

Absolute, uncompromising certitude is precisely what Holmes had against natural law jurisprudence.  Holmes saw natural law as an excuse for those who thought their worldview was correct to impose their politics onto others with different ideas.  Holmes defined truth as the system of his own limitations and as whatever it was that he could not help but believe.  Truth, for him, was no grounds for policy; it was simply what one does with what one knows.

In “The Path of the Law,” Holmes put forth the bad man theory or prediction theory of law, which holds that we should not view the law as an abstract statement about morals, but as those consequences which a bad man predicts will obtain if he chooses one course of action instead of another.  The law is, accordingly, a prediction about what will happen if one performs certain acts.  Such informed, calculated guessing—a habit acquired and refined by experience—is the way most of us decide to do one thing or another.  Most of us do not, when we stop at a traffic light, for example, consider the morality of the action we are performing, but instead consider the ramifications of our potential act should we actually carry it out.

That Holmes continues to be such a hotly contested figure, that his writings continue to be cited by judges at all levels, state and federal, suggests that his legacy remains important and that his ideas, however misunderstood, continue to figure the direction of American law and government.

Selected Bibliography for Scholarship on Oliver Wendell Holmes, Jr.

In America, American History, Arts & Letters, Historicism, History, Humanities, Jurisprudence, Law, Oliver Wendell Holmes Jr., Pragmatism on November 8, 2012 at 8:20 am

Allen Mendenhall

The following bibliography is far from exhaustive; it consists of the works that I’ve found most helpful in my own research.  This list was created in November 0f 2012.

Books:

Aichele, Gary J.  Oliver Wendell Holmes Jr.: Soldier, Scholar, Judge (Boston: Twayne, 1989).

Alschuler, Albert W. Law Without Values: The Life, Work, and Legacy of Justice Holmes (Chicago, Illinois: University of Chicago Press, 2001).

Baker, Liva.  The Justice from Beacon Hill: The Life and Times of Oliver Wendell Holmes (New York: HarperCollins, 1991).

Bent, Silas.  Justice Oliver Wendell Holmes (New York: Vanguard Press, 1932).

Biddle, Francis.  Mr. Justice Holmes (New York: Scribner, 1942).

Bowen, Catherine Drinker.  Yankee from Olympus: Justice Holmes and His Family (Boston: Little, Brown & Co., 1944).

Burton, David H.  Taft, Holmes, and the 1920s Court: An Appraisal (Madison, New Jersey: Fairleigh Dickinson University Press, 1998).

______________.  Political Ideas of Justice Holmes.  Madison, New Jersey: Fairleigh Dickinson University Press, 1992). 

______________.  Oliver Wendell Holmes Jr. (Boston: Twayne Publishers, 1980).

Cohen, Jeremy.  Congress Shall Make No Law: Oliver Wendell Holmes, the First Amendment, and Judicial Decision Making (Ames: Iowa State University Press, 1989).

Collins, Ronald K. L. and David M. Skover.  On Dissent: Its Meaning in America (New York: Cambridge University Press, forthcoming 2013).

Gibian, Peter.  Oliver Wendell Holmes and the Culture of Conversation (New York: Cambridge University Press, 2001).  [This book focuses on Oliver Wendell Holmes Sr. but reveals much about the environment in which Holmes Jr. grew up.  It also uses Harold Bloom to make sense of Emersonian communication and rhetoric.]

Hoffheimer, Michael H.  Justice Holmes and the Natural Law (New York: Taylor & Francis, 1992).

Howe, Mark DeWolfe.  Justice Oliver Wendell Holmes, Vol. One: The Shaping Years, 1841-1870 (Belknap Press of Harvard University, 1957).

______________.  Justice Oliver Wendell Holmes, Vol. Two: The Proving Years, 1870-1882 (Belknap Press of Harvard University, 1963). 

Kellogg, Frederic R. Oliver Wendell Holmes, Jr.: Legal Theory and Judicial Restraint (New York: Cambridge University Press, 2007).

Menand, Louis.  The Metaphysical Club (New York: Farrar, Straus and Giroux, 2001).  [This book situates Holmes alongside other classical pragmatists such as C.S. Peirce, William James, and John Dewey.]

Novick, Sheldon M.  Honorable Justice: The Life of Oliver Wendell Holmes (New York: Little, Brown & Co., 1989).

Pohlman, H. L.  Justice Oliver Wendell Holmes and Utilitarian Jurisprudence (Harvard University Press, 1984).

______________.  Free Speech and the Living Constitution (New York: New York University Press, 1991).

Rosenberg, David.  The Hidden Holmes: His Theory of Torts in History (Harvard University Press, 1995).

White, G. Edward.  Justice Oliver Wendell Holmes: Law & the Inner Self (New York: Oxford University Press, 1993).

Editions of Holmes’s Writings and Letters:

Burton, David H., Editor.  Progressive Masks: Letters of Oliver Wendell Holmes, Jr., and Franklin Ford (Newark: University of Delaware Press, 1982).

______________.  Holmes-Sheehan Correspondence (New York: Fordham University Press, 1993).

Gordon, Robert W., Editor.  The Legacy of Oliver Wendell Holmes, Jr. (Stanford University Press, 1992).

Howe, Mark Dewolfe, Editor.  Holmes-Pollock Letters: The Correspondence of Mr. Justice Holmes and Sir Frederick Pollock, 1874-1932, Vol. 1 and 2 (Cambridge, Massachusetts: Belknap Press of Harvard University, 1941).

______________.  Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski, 1916-1935 (Harvard University Press, 1953).

Lerner, Max, Editor.  The Mind and Faith of Justice Holmes: His Speeches, Essays, Letters & Judicial Opinions (Boston: Little, Brown & Co., 1943).

Mennel, Robert M. and Christine L. Compston, Editors.  Holmes & Frankfurter: Their Correspondence, 1912-1934 (Hanover, New Hampshire: University Press of New England, 1996).

Peabody, James Bishop, Editor.  The Holmes-Einstein Letters: Correspondence of Mr. Justice Holmes and Lewis Einstein, 1903-1935 (New York: St. Martin’s Press, 1964).

Posner, Richard.  The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings (Chicago: University of Chicago Press, 1992).

Articles:

Alschuler, Albert W.  “The Descending Trail: Holmes’ Path of the Law One Hundred Years Later.”  Florida Law Review, Vol. 49 (1997).

Bernstein, Irving.  “The Conservative Mr. Justice Holmes.”  New England Quarterly, Vol. 23 (1950).

Blasi, Vincent.  “Reading Holmes Through the Lens of Schauer: The Abrams Dissent.”  Notre Dame Law Review, Vol. 72 (1997).

Bogen, David S.  “The Free Speech Metamorphosis of Mr. Justice Holmes.”  Hofstra Law Review, Vol. 11 (1982).

Caplan, Gerald.  “Searching for Holmes Among the Biographers.”  George Washington Law Review.  Vol. 70 (2002).

Cate, Irene M. Ten.  “Speech, Truth, and Freedom: An Examination of John Stuart Mill’s and Justice Oliver Wendell Holmes’s Free Speech Defenses.”  Yale Journal of Law and the Humanities, Vol. 22 (2010).

Feldman, Stephen M.  “Free Speech, World War I, and Republican Democracy: The Internal and External Holmes.”  First Amendment Law Review, Vol. 6 (2008).

Ferguson, Robert A.  “Holmes and the Judicial Figure.”  Chicago Law Review, Vol. 55 (1988).

Frankfurter, Felix.  “The Constitutional Opinions of Justice Holmes.”  Harvard Law Review.  Vol. 29 (1916).

Grey, Thomas C.  “Plotting the Path of the Law.”  Brooklyn Law Review, Vol. 63 (1997).

Haack, Susan.  “On Legal Pragmatism: Where Does ‘The Path of the Law’ Lead Us?”  American Journal Jurisprudence, Vol. 50 (2005).

Leonard, Gerald.  “Holmes on the Lochner Court.”  Boston University Law Review, Vol. 85 (2001).

Luban, David.  “Justice Holmes and the Metaphysics of Judicial Restraint.”  Duke Law Journal, Vol. 44 (1994).

Mendenhall, Allen.  “Holmes and Dissent.”  The Journal Jurisprudence, Vol.12 (2011).

______________.  “Dissent as a Site of Aesthetic Adaptation in the Work of Oliver Wendell Holmes Jr.”  British Journal of American Legal Studies, Vol. 1 (2012).

Ragan, Fred D.  “Justice Oliver Wendell Holmes, Jr., Zechariah Chafee, Jr., and The Clear and Present Danger Test for Free Speech: The First Year, 1919.”  Journal of American History, Vol. 58 (1971).

Rosenblatt, Rand.  “Holmes, Peirce, and Legal Pragmatism.”  Yale Law Journal, Vol. 84 (1975).

Shea, Thomas F.  “Great Dissenters: Parallel Currents In Holmes and Scalia.”  Mississippi Law Journal, Vol. 67 (1997).

Snyder, Brad.  “The House that Built Holmes.”  Law & History Review.  Vol. 30, No. 3 (2012).

Wells, Catherine Peirce.  “Old-Fashioned Postmodernism and the Legal Theories of Oliver Wendell Holmes, Jr.”  Brooklyn Law Review, Vol. 63 (1997).

______________ [published under the name Catherine Wells Hantzis].  “Legal Innovation Within the Wider Intellectual Tradition: The Pragmatism of Oliver Wendell Holmes, Jr.” Northwestern University Law Review, Vol. 82 (1988).

 

Book Note: Machinic Modernism, by Beatrice Monaco

In Arts & Letters, Book Reviews, Fiction, Humanities, Literary Theory & Criticism, Literature, Modernism, Philosophy, Pragmatism, Rhetoric, Rhetoric & Communication, Western Philosophy, Writing on September 20, 2012 at 8:45 am

Allen Mendenhall

The following excerpt first appeared as part of the Routledge Annotated Bibliography of English Studies series.

Machinic Modernism: The Deleuzian Literary Machines of Woolf, Lawrence and Joyce

This book investigates several modernist novels in light of the theories of Gilles Deleuze and, to a slightly lesser degree, Felix Guattari.  The author is interested in how the “machine-like” work and style of Deleuze and Guattari facilitate pragmatic readings of texts.  These pragmatic readings suggest that textual activity in several modernist novels reflects broader cultural activities, that the metaphysical movement of text corresponds to various social movements, and that text reproduces historical circumstances in signs and syntax.

The book seeks to depart from conventional forms of scholarship and to resist Deleuze-Guattarian paradigms that overemphasize pragmatism and empiricism at the expense of radical innovation.  In a way this book is a Deleuze-Guattarian treatment of Deleuze and Guattarian with a focus on key modernist novels such as Virginia Woolf’s To the Lighthouse, D.H. Lawrence’s The Rainbow, and James Joyce’s Ulysses.  Just as Deleuze and Guattari reframe seminal issues of philosophy in terms of pragmatism, so these modernist novels negotiate cultural and discursive phenomena with a bearing on then-current philosophy.

This book seeks to build a critical “machine” with which to interpret the machine in texts as well as to negotiate the so-called machine age; it also interrogates the organic-mechanic duality already interrogated by Deleuze.  In so doing, it considers differences in literature in light of Deleuzian pragmatics to show that the philosophical moves taking place in Deleuze reflect similar moves taking place in modernist literature generally.  The book argues that To the Lighthouse and The Rainbow implicate metaphysical structures in interesting ways but also in ways that are not entirely satisfactory without an understanding of Ulysses.  In Ulysses the theories and mechanic imperatives of Deleuzian modernism find their fullest expression.