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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

Allen 2

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.



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.

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.

The Emersonian Oliver Wendell Holmes Jr.

In American History, Art, Arts & Letters, Emerson, History, Humanities, Jurisprudence, Law, Law-and-Literature, Literary Theory & Criticism, Literature, Nineteenth-Century America, Oliver Wendell Holmes Jr., Philosophy, Poetry, Pragmatism, Rhetoric, The Supreme Court, Western Civilization, Western Philosophy, Writing on October 26, 2011 at 9:16 am

Allen Mendenhall

Writers on Holmes have forgotten just how influential poetry and literature were to him, and how powerfully literary his Supreme Court dissents really are.  The son of the illustrious poet by the same name, young Holmes, or Wendell, fell in love with the heroic tales of Sir Walter Scott, and the “enthusiasm with which Holmes in boyhood lost himself in the world of Walter Scott did not diminish in maturity.”[1]  Wendell was able to marry his skepticism with his romanticism, and this marriage, however improbable, illuminated his appreciation for ideas past and present, old and new.  “His aesthetic judgment,” says Mark DeWolfe Howe, author of the most definitive biography of Holmes and one of Holmes’s former law clerks, “was responsive to older modes of expression and earlier moods of feeling than those which were dominant at the fin de siècle and later, yet his mind found its principle nourishment in the thought of his own times, and was generally impatient of those who believe that yesterday’s insight is adequate for the needs of today.”[2]  Holmes transformed and adapted the ideas of his predecessors while transforming and adapting—one might say troping—milestone antecedents of aestheticism, most notably the works of Emerson.  “[I]t is clear,” says Louis Menand, “that Holmes had adopted Emerson as his special inspiration.”[3]      

Classically educated at the best schools, Wendell was subject to his father’s elaborate discussions of aesthetics, which reinforced the “canons of taste with the heavier artillery of morals.”[4]  In addition to Scott, Wendell enjoyed reading Sylvanus Cobb, Charles Lamb’s Dramatic Poets, The Prometheus of Aeschylus,[5] and Plato’s Dialogues.[6]  Wendell expressed a lifelong interest in art, and his drawings as a young man exhibit a “considerable talent.”[7]  He declared in his Address to the Harvard Alumni Association Class of 1861 that life “is painting a picture, not doing a sum.”[8]  He would later use art to clarify his philosophy to a friend: “But all the use of life is in specific solutions—which cannot be reached through generalities any more than a picture can be painted by knowing some rules of method.  They are reached by insight, tact and specific knowledge.”[9]     

At Harvard College, Wendell began to apply his facility with language to oft-discussed publications in and around Cambridge.  In 1858, the same year that Dr. Oliver Wendell Holmes Sr. gifted five volumes of Emerson to Wendell,[10] Wendell published an essay called “Books” in the Harvard undergraduate literary journal.[11]  Wendell celebrated Emerson in the piece, saying that Emerson had “set him on fire.”  Menand calls this essay “an Emersonian tribute to Emerson.”[12] 

Holmes had always admired Emerson.  Legend has it that, when still a boy, Holmes ran into Emerson on the street and said, in no uncertain terms, “If I do anything, I shall owe a great deal to you.”  Holmes was more right than he probably knew. 

Holmes, who never gave himself over to ontological (or deontological) ideas about law as an existent, material, absolute, or discoverable phenomenon, bloomed and blossomed out of Emersonian thought, which sought to “unsettle all things”[13] and which offered a poetics of transition that was “not a set of ideas or concepts but rather a general attitude toward ideas and concepts.”[14]  Transition is not the same thing as transformation.  Transition signifies a move between two clear states whereas transformation covers a broader and more fluent way of thinking about change.  Holmes, although transitional, was also transformational.  He revised American jurisprudence until it became something it previously was not.  Feeding Holmes’s appetite for change was “dissatisfaction with all definite, definitive formulations, be they concepts, metaphors, or larger formal structures.”[15]  This dissatisfaction would seem to entail a rejection of truth, but Emerson and Holmes, unlike Rorty and the neopragmatists much later, did not explode “truth” as a meaningful category of discourse.  Read the rest of this entry »

The Problem with Legal Education; or, Another Piece About the Aimlessness, Pointlessness, and Groundlessness of Law School

In Arts & Letters, Humanities, Law, Legal Education & Pedagogy, Pedagogy, Teaching, Writing on July 27, 2011 at 2:23 pm

Allen Mendenhall

The latest issue of Academic Questions (Summer 2011: Vol. 24, No. 2) devotes most of its content to legal education.  Published by the National Association of Scholars, Academic Questions often features theme issues and invites scholars from across the disciplines to comment on particular concerns about the professoriate.  (Full disclosure: I am a member of the NAS.)  Carol Iannone, editor at large, titles her introduction to the issue “Law School and Other Tyrannies,” and writes that “[w]hat is happening in the law schools has everything to do with the damage and depredation that we see in the legal system at large.”  She adds that the contributors to this issue “may not agree on all particulars, but they tell us that all is not well, that law school education is outrageously expensive, heavily politicized, and utterly saturated with ‘diversity’ mania.”  What’s more, Iannone submits, law school “fails to provide any grounding in sound legal doctrine, or any moral or ethical basis from which to understand principles of law in debate today.”  These are strong words.  But are they accurate?  I would say yes and no.

Law school education is too expensive, but its costs seem to have risen alongside the costs of university education in general.  Whether any university or postgraduate education should cost what it costs today is another matter altogether.

There is little doubt that law schools are “heavily politicized,” as even a cursory glance at the articles in “specialized” law journals would suggest.  These journals address anything from gender and race to transnational law and human rights.

But how can law be taught without politicizing?  Unlike literature, which does not always immediately implicate politics, law bears a direct relation to politics, or at least to political choices.  The problem is not the political topics of legal scholarship and pedagogy so much as it is the lack of sophistication with which these topics are addressed.  The problem is that many law professors lack a broad historical perspective and are unable to contextualize their interests within the wider university curriculum or against the subtle trends of intellectual history.

In law journals devoted to gender and feminism, or law journals considered left-wing, you will rarely find articles written by individuals with the intelligence or learning of Judith Butler, Camille Paglia, or Eve Sedgwick.  Say what you will about them, these figures are well-read and historically informed.  Their writings and theories go far beyond infantile movement politics and everyday partisan advocacy.    Read the rest of this entry »

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