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Posts Tagged ‘pluralism’

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

Allen 2

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.

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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.

Excerpt from “Transnational Law: An Essay in Definition with a Polemic Conclusion”

In Arts & Letters, Austrian Economics, Conservatism, Humane Economy, Jurisprudence, Law, Law-and-Literature, Liberalism, Libertarianism, Literary Theory & Criticism, Politics, Pragmatism, Transnational Law on August 3, 2011 at 11:18 am

Allen Mendenhall

A few months ago, the Libertarian Alliance, a London-based think tank, published my paper on transnational law.  Below is an excerpt from that paper.  The piece is available for download through SSRN by clicking here, or on the website of the Libertarian Alliance by clicking here.

In 1957, reviewing Philip Jessup’s Transnational Law, James N. Hyde wrote that “[t]ransnational law is not likely to become a term of art for a new body of law.”25  Mr. Hyde was wrong.  There has been a proliferation of relatively new law journals bearing “transnational law” in their titles: Transnational Law & Contemporary Problems: A Journal of the University of Iowa College of Law, Ashburn Institute Transnational Law Journal, Journal of Transnational Law & Policy, Vanderbilt Journal of Transnational Law, Transnational Law Review, and Columbia Journal of Transnational Law.  There are LLM programs in transnational law (such as the one I am in), and there are even institutes and think-tanks devoted to the study and development of transnational law.  Transnational law has in fact become the term of art for a new body of law, and here we will consider the nature and meaning of this term as well as the corpus of law it has created.  It is perhaps not coincidental that the emergence of transnational law coincided with transnational poetics26 and other transnational trends in literary criticism because the legal and literary fields always seem responsive to one another.

One of the earliest references, if not the earliest reference, to the concept of transnationalism comes from the pragmatist philosopher and student of John Dewey: Randolph Bourne.  Bourne’s use of the term “transnational” recalls William James’s notion of religious pluralism as non-absolute and non-monist.27  Bourne appears to have revised and extended James’s pragmatism to fit the political instead of the religious or philosophical context, although James himself came close to addressing the former context in “A Pluralistic Universe.”  Bourne’s essay “Trans-National America” regarded transnationalism as a cousin of cultural pluralism, the notion that differences in belief across cultures and communities may not be equally valid but can be at least equally practical.  Against essentialism, monism, and absolutism, Bourne posits a consequentialist system of polycentrism that regards multiplicity as positive and collectivism as dangerous.  Society can and should be multiple and heterogeneous, not single and homogeneous, for a one-size-fits-all polis can only materialize through the stamping out of minority views and through the erasing of distinct, regional cultures.  Put another way, Bourne transforms James’s varieties of religious experience28 into varieties of political experience.

Kenneth Burke, a literary critic, sometime student of pragmatism, and Marxist converted into a non-“ism” altogether, argued later in his life that ideology and fanaticism – by which he meant “the effort to impose one doctrine of motives abruptly upon a world composed of many different motivational situations”29 – were destructive missions incompatible with pluralism or democracy.  Burke, who remained naively critical of the free market, nevertheless refused ideologies as simplifying what cannot be simplified: human behavior.  What Burke did not realize is that free market theories, especially those of the Austrian variety, are not deterministic: they refuse to pigeonhole people or to reduce them to economic calculations; they treat humans as unpredictable and spontaneous and celebrate the sheer variety of human behavior.  My point in referencing Burke is not to systematically demolish his economic preferences but to suggest that his wide-ranging theories have positive implications for our understanding of transnationalism.  One could argue that Bourne and Burke were the earliest expositors of transnationalist theories tied to the practical world and that Jessup and others merely repackaged Bourne and Burke’s dicta.  Regardless of whether Jessup either read or credited Bourne and Burke, the theories emanating from these two literary critics would have been in circulation at Jessup’s moment in history.  Jessup, widely read as he was, probably would have encountered Bourne and Burke’s transnationalism directly or indirectly. Read the rest of this entry »

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