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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.


My Reading List for 2013

In Arts & Letters, Books, Creativity, Fiction, History, Humanities, Law, Literature, Novels, Philosophy, Politics, Western Civilization, Western Philosophy, Writing on December 12, 2012 at 8:45 am

Allen Mendenhall

Editorial Note (April 15, 2013):  At this point in the year, I have already discovered flaws in this list. For instance, I gave myself two weeks to read Augustine’s Confessions and one week to read Aquinas’s Summa Theologica.  I should have done the reverse.  Summa Theologica may have required more than two weeks to read, since I found myself rushing through it, and it is not a book through which one should rush.  My schedule has forced me to speed read some texts in order to avoid taking shortcuts.  Some of the texts on this list will therefore appear on my list for next year, so that they get the treatment and consideration they deserve.

2013 will be a good year for reading.  I’ve made a list of the books I’m going to undertake, and I hope you’ll consider reading along with me.  As you can see, I’ll be enjoying many canonical works of Western Civilization.  Some I’ve read before; some I haven’t.  My goal is to reacquaint myself with the great works I fell in love with years ago and to read some of the great works that I’ve always wanted to read but haven’t.  I wouldn’t go so far as to say that everybody ought to read these works, but I do think that by reading them, a person will gain a fundamental understanding of the essential questions and problems that have faced humans for generations.

Some works are conspicuous in their absence; the list betrays my preferences.  Notably missing are the works of Shakespeare and the canonical texts that make up the Old and New Testament.  There’s a reason for that.  I’ve developed a morning habit of reading the scriptures as well as Shakespeare before I go to work.  If I’m reading these already, there’s no need to add them to the list, which is designed to establish a healthy routine.  What’s more, the list comes with tight deadlines, and I’m inclined to relish rather than rush through the Bible or Shakespeare.

Lists provide order and clarity; we make them to reduce options or enumerate measurable, targeted goals.  Lists rescue us from what has been called the “tyranny of choice.”  Benjamin Franklin made a list of the 13 virtues he wished to live by.  What motivated him is perhaps what’s motivating me: a sense of purpose and direction and edification.

At first I wanted to assign myself a book a week, but realizing that some works are longer or more challenging than others, that as a matter of obligation I will have other books to read and review, that I have a doctoral dissertation to write, that the legal profession is time consuming, and that unforeseen circumstances could arise, I decided that I might need more time than a week per book depending on the complexity of the particular selection or the busyness of the season.  Although I hope to stick to schedule, I own that I might have to permit myself flexibility.  We’ll see.

For variety—and respite—I have chosen to alternate between a pre-20th century text and a 20th century text.  In other words, one week I might read Milton, the next Heidegger.  For the pre-20th century texts, I will advance more or less chronologically; there is no method or sequence for the 20th century texts, which I listed as they came to mind (“oh, I’ve always wanted to read more Oakeshott—I should add him.  And isn’t my knowledge of Proust severely limited?—I’ll add him as well.”).  It’s too early to say what lasting and significant effects these latter texts will have, so I hesitate to number them among the demonstrably great pre-20th century texts, but a general consensus has, I think, established these 20th century texts as at least among the candidates for canonicity.

I have dated some of the texts in the list below.  Not all dates are known with certainty, by me or anyone else.  Some texts were revised multiple times after their initial publication; others were written in installments.  Therefore, I have noted the time span for those works produced over the course of many years.

One would be justified in wondering why I’ve selected these texts over others.  The answer, I suppose, pertains to something Harold Bloom once said: that there are many books but only one lifetime, so why not read the best and most enduring?  I paraphrase because I can’t remember precisely what he said or where he said it, but the point is clear enough: read the most important books before you run out of time.

Making this list, I learned that one can read only so many great works by picking them off one week at a time.  The initial disheartenment I felt at this realization quickly gave way to motivation: if I want to understand the human condition as the most talented and creative of our predecessors understood it, I will have to make a new list every year, and I will have to squeeze in time for additional texts whenever possible.  I am shocked at the number of books that I wanted to include in this list, but that didn’t make it in.  I ran out of weeks.  What a shame.

Here is my list.  I hope you enjoy. Read the rest of this entry »

American Literary History and Pragmatism

In America, American History, Arts & Letters, Emerson, Fiction, History, Humanities, Literary Theory & Criticism, Literature, Nineteenth-Century America, Walt Whitman, Writing on August 29, 2012 at 8:45 am

Allen Mendenhall

American literary history, even before C.S. Peirce named “pragmatism” as a philosophy, validates much of what pragmatism has to offer.  Joan Richardson speaks of “frontier instances” whereby certain writers become aesthetic outposts from which we can trace continuities of thought and artistic representation.  She treats literature as a life form that must adapt to its environment; similarly, Richard Poirier looks to a tradition of linguistic skepticism in American literature to show the role that artistic influence and troping have had on American culture.  Long before Richardson and Poirier, George Santayana exercised his own literary flair in his celebratory, summative essays about American culture and experience.  If American literary history can undergo operations of tracing and mapping, it might be because—as Richardson, Poirier, and Santayana have suggested—the unfolding and development of an American literary canon have been processes of evolution.  Literary texts and movements have shown a tendency toward growth that is responsive to the natural and changing circumstances of the time.

Richardson begins A Natural History of Pragmatism with 17th century Puritan ministers and then quickly moves to Jonathan Edwards.  Edwards is representative of the Calvinist notion of limited disclosure, the idea, in other words, that God reveals his divinity to us through the shapes, forms, and outlines he provides to us in the phenomenal world.  From this idea (and others like it) began the uniquely American insistence on the value of nature and the physical universe to thought and the spiritual or psychological realm.  As Americans sought to make themselves culturally and intellectually independent from Europe, both in the eighteenth and nineteenth centuries, they used the New World landscapes and vastly unexplored (by Europeans at least) terrains as objects of their fascination and as sources of inspiration.  Even figures like Jefferson insisted upon the scientific study of the natural world in order to authorize theories about law and politics, which he wished to distinguish from European ways.  Jefferson, like William Bartram, another naturalist, lionized Natives as being more in tune with nature and hence more “lawful” in the sense that their communal governments were in keeping with the laws of nature.  However problematic we may consider these romanticized depictions today, we should at least say of them that they inspired further attention to sustained observation of nature as a critical component of what was intended to be a new way of thinking divorced from the Old World of Europe.

Santayana says that when orthodoxy recedes, speculation flourishes, and accordingly it is no surprise that as Puritanism solidified into an orthodoxy of the kind against which it once defined itself, there was a resistance among artists and writers and thinkers.  Emerson, for one, adapted the thinking of the Calvinists while maintaining their commitment to the natural world as a means for realizing higher truths.  Instead of God revealing himself to man through the forms of the natural world, God, according to Emerson, was realized within the person with a poetical sense, who was inspired by the natural world to discover the divinity within himself.  To become one and to see all—that is, to become a “transparent eyeball”—was something of a religious experience for Emerson.  Read the rest of this entry »

Sidney Morgenbesser on the American Pragmatists

In America, American History, Arts & Letters, History, Humanities, Literary Theory & Criticism, Nineteenth-Century America, Philosophy, Pragmatism, Rhetoric, Western Civilization, Western Philosophy on June 13, 2012 at 8:00 am

Sidney Morgenbesser was a philosophy professor at Columbia University.  Among his students were Jerry Fodor, Raymond Geuss, Robert Nozick, and Derek Parfit.  In the following videos, Professor Morgenbesser speaks to Bryan Magee about the American Pragmatists.

Section One

Section Two

Section Three

Section Four

Section Five

Emersonian Individualism

In America, American History, Art, Arts & Letters, Creativity, Emerson, Epistemology, Essays, Humanities, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Nineteenth-Century America, Philosophy, Poetry, Politics, Pragmatism, Rhetoric, Santayana, Western Civilization, Western Philosophy, Writing on April 4, 2012 at 6:48 am

Allen Mendenhall

The following essay originally appeared here at Mises Daily.

Ralph Waldo Emerson is politically elusive. He’s so elusive that thinkers from various schools and with various agendas have appropriated his ideas to validate some activity or another. Harold Bloom once wrote, “In the United States, we continue to have Emersonians of the Left (the post-Pragmatist Richard Rorty) and of the Right (a swarm of libertarian Republicans, who exalt President Bush the Second).”[1] We’ll have to excuse Bloom’s ignorance of political movements and signifiers — libertarians who exalt President Bush, really? — and focus instead on Bloom’s point that Emerson’s influence is evident in a wide array of contemporary thinkers and causes.

Bloom is right that what “matters most about Emerson is that he is the theologian of the American religion of Self-Reliance.”[2] Indeed, the essay “Self-Reliance” remains the most cited of Emerson’s works, and American politicians and intellectuals selectively recycle ideas of self-reliance in the service of often disparate goals.

Emerson doesn’t use the term “individualism” in “Self-Reliance,” which was published in 1841, when the term “individualism” was just beginning to gain traction. Tocqueville unintentionally popularized the signifier “individualism” with the publication of Democracy in America. He used a French term that had no counterpart in English. Translators of Tocqueville labored over this French term because its signification wasn’t part of the English lexicon. Emerson’s first mention of “individualism” was not until 1843.

It is clear, though, that Emerson’s notion of self-reliance was tied to what later would be called “individualism.” Emerson’s individualism was so radical that it bordered on self-deification. Only through personal will could one realize the majesty of God. Nature for Emerson was like the handwriting of God, and individuals with a poetical sense — those who had the desire and capability to “read” nature — could understand nature’s universal, divine teachings.

Lakes, streams, meadows, forests — these and other phenomena were, according to Emerson, sources of mental and spiritual pleasure or unity. They were what allowed one to become “part and parcel with God,” if only one had or could become a “transparent eyeball.” “Nothing at last is sacred,” Emerson said, “but the integrity of your own mind.” That’s because a person’s intellect translates shapes and forms into spiritual insights.

We cannot judge Emerson exclusively on the basis of his actions. Emerson didn’t always seem self-reliant or individualistic. His politics, to the extent that they are knowable, could not be called libertarian. We’re better off judging Emerson on the basis of his words, which could be called libertarian, even if they endow individualism with a religiosity that would make some people uncomfortable.

Emerson suggests in “Self-Reliance” that the spontaneous expression of thought or feeling is more in keeping with personal will, and hence with the natural world as constituted by human faculties, than that which is passively assumed or accepted as right or good, or that which conforms to social norms. Emerson’s individualism or self-reliance exalted human intuition, which precedes reflection, and it privileged the will over the intellect. Feeling and sensation are antecedent to reason, and Emerson believed that they registered moral truths more important than anything cognition could summon forth.

Emerson’s transcendentalism was, as George Santayana pointed out in 1911, a method conducive to the 19-century American mindset.[3] As a relatively new nation seeking to define itself, America was split between two mentalities, or two sources of what Santayana called the “genteel tradition”: Calvinism and transcendentalism.

The American philosophical tradition somehow managed to reconcile these seeming dualities. On the one hand, Calvinism taught that the self was bad, that man was depraved by nature and saved only by the grace of God. On the other hand, transcendentalism taught that the self was good, that man was equipped with creative faculties that could divine the presence of God in the world. The Calvinist distrusted impulses and urges as sprung from an inner evil. The transcendentalist trusted impulses and urges as moral intuition preceding society’s baseless judgments and prevailing conventions.

What these two philosophies had in common was an abiding awareness of sensation and perception: a belief that the human mind registers external data in meaningful and potentially spiritual ways. The Calvinist notion of limited disclosure — that God reveals his glory through the natural world — played into the transcendentalists’ conviction that the natural world supplied instruments for piecing together divinity.

The problem for Santayana is that transcendentalism was just a method, a way of tapping into one’s poetical sense. What one did after that was unclear. Santayana thought that transcendentalism was the right method, but he felt that Emerson didn’t use that method to instruct us in practical living. Transcendentalism was a means to an end, but not an end itself.

According to Santayana, Emerson “had no system” because he merely “opened his eyes on the world every morning with a fresh sincerity, marking how things seemed to him then, or what they suggested to his spontaneous fancy.”[4] Emerson did not seek to group all senses and impressions into a synthetic whole. Nor did he suggest a politics toward which senses and impressions ought to lead. Santayana stops short of accusing Emerson of advancing an “anything-goes” metaphysics. But Santayana does suggest that Emerson failed to advance a set of principles; instead, Emerson gave us a technique for arriving at a set of principles. Emerson provided transportation, but gave no direction. This shortcoming — if it is a shortcoming — might explain why Bloom speaks of the “paradox of Emerson’s influence,” namely, that “Peace Marchers and Bushians alike are Emerson’s heirs in his dialectics of power.”[5]

For Emerson, human will is paramount. It moves the intellect to create. It is immediate, not mediate. In other words, it is the sense or subjectivity that is not yet processed by the human mind. We ought to trust the integrity of will and intuition and avoid the dictates and decorum of society.

“Society,” Emerson says, “everywhere is in conspiracy against the manhood of every one of its members.” Society corrupts the purity of the will by forcing individuals to second-guess their impulses and to look to others for moral guidance. Against this socialization, Emerson declares, “Whoso would be a man, must be a nonconformist.”

Emerson’s nonconformist ethic opposed habits of thinking, which society influenced but did not determine. Emerson famously stated that a foolish consistency is the hobgoblin of little minds. What he meant, I think, is that humans ought to improve themselves by tapping into intuitive truths. Nature, with her figures, forms, and outlines, provides images that the individual can harness to create beauty and energize the self. Beauty therefore does not exist in the world; rather, the human mind makes beauty out of the externalities it has internalized. Beauty, accordingly, resides within us, but only after we create it.

Here we see something similar to Ayn Rand’s Objectivism stripped of its appeals to divinity. Rand believed that reality existed apart from the thinking subject, that the thinking subject employs reason and logic to make sense of experience and perception, and that the self or will is instrumental in generating meaning from the phenomenal world. Read the rest of this entry »

Henry Hazlitt, Literary Critic

In American History, Arts & Letters, Austrian Economics, Book Reviews, Creative Writing, Creativity, Economics, Essays, Ethics, Fiction, History, Humane Economy, Humanities, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Philosophy, Politics, Western Civilization, Western Philosophy, Writing on March 20, 2012 at 9:05 am

Allen Mendenhall

The following appeared here at Prometheus Unbound and here at

Remembered mostly for his contributions to economics, including his pithy and still-timely classic Economics in One Lesson (1946), Henry Hazlitt was a man who wore many hats. He was a public intellectual and the author or editor of some 28 books, one of which was a novel, The Great Idea (1961) — published in Britain and later republished in the United States as Time Will Run Back (1966) — and another of which, The Anatomy of Criticism (1933), was a trialogue on literary criticism. (Hazlitt’s book came out 24 years before Northrop Frye published a book of criticism under the same title.) Great-great-grandnephew to British essayist William Hazlitt, the boy Henry wanted to become like the eminent pragmatist and philosopher-psychologist William James, who was known for his charming turns of phrase and literary sparkle. Relative poverty would prevent Hazlitt’s becoming the next James. But the man Hazlitt forged his own path, one that established his reputation as an influential man of letters.

In part because of his longstanding support for free-market economics, scholars of literature have overlooked Hazlitt’s literary criticism; and Austrian economists — perhaps for lack of interest, perhaps for other reasons — have done little to restore Hazlitt’s place among the pantheon of 20th century literary critics. Yet Hazlitt deserves that honor.

He may not have been a Viktor Shklovsky, Roman Jakobson, Cleanth Brooks, William K. Wimsatt, John Crowe Ransom, Allen Tate, Lionel Trilling, Dwight Macdonald, or Kenneth Burke, but Hazlitt’s criticism is valuable in negative terms: he offers a corrective to much that is wrong with literary criticism, both then and now. His positive contributions to literary criticism seem slight when compared to those of the figures named in the previous sentence. But Hazlitt is striking in his ability to anticipate problems with contemporary criticism, especially the tendency to judge authors by their identity. Hazlitt’s contributions to literary criticism were not many, but they were entertaining and erudite, rivaling as they did the literary fashions of the day and packing as much material into a few works as other critics packed into their entire oeuvres. Read the rest of this entry »

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 »

Thoughts on an Essay about Pragmatism

In American History, Arts & Letters, Communication, Essays, Ethics, Humanities, Literary Theory & Criticism, Literature, Nineteenth-Century America, Pragmatism, The Literary Table, Western Civilization on August 20, 2011 at 8:42 pm

Allen Mendenhall

The following post appeared here at The Literary Table.

Lately I’ve been reading a subject of interest to the lawyers, theologians, writers, and philosophers at the table: pragmatism.  (Pragmatism finds a way of encompassing any interest whatsoever.)  The following discussion is brief and does not do justice to the nuances of my subject: Ruth Anna Putnam’s essay “The Moral Impulse” (in The Revival of Pragmatism, Morris Dickstein, ed., Duke University Press, 1999).  Nevertheless, I proceed with eyes wide open. 

Putnam opens by referencing William James’s pragmatist metaphysics and its reliance upon feelings and the sensorial to get at the religious or moral.  This reference provides Putnam wide latitude to articulate her arresting point that people participate in moral value systems because they always retain agency even if their actions seem like products of habit.  People do not act in putatively moral ways simply because they are conditioned or determined to do so; they act in those ways because they want to do so.  The want is the moral impulse.  That one should act or think on an impulse does not evacuate that action or thought of all intelligence.  “It is not,” Putnam assures us, “to say that one does not have or has not given intellectually compelling reasons for that position” (63).  In fact, as James himself suggests, we may—notice he does not say ought to or must—entertain any moral impulses so long as they lead us toward critical currents of thought that have not been invalidated even if they have not been validated.  Using such Jamesian refrains as her starting-point and hesitating over the usefulness of a now catch-all signifier like “pragmatism,”[1] Putnam announces her intention to explore moral beliefs in the work of James and Dewey.  Her focus is on those moments of convergence and departure, with slightly more emphasis on the departure.  Without touching on all Putnam’s arguments about James and Dewey and their agreements and disagreements, I will here note one of Putnam’s more sustained and striking observations, which addresses the difference between James’s and Dewey’s moral values: the difference which, it turns out, is at the heart of her essay.

Having shown that James sees the question of free will in terms of determinacy and indeterminacy without essentializing that binary opposition, and having shown that Dewey rejects James’s position as a dualism that is fundamentally flawed, Putnam resorts to James’s position to lump Dewey into a determinist camp and James into a free will camp (which does not seem the same as an indeterminacy camp, but I will not get into that).  Putnam then resorts to Dewey’s position by implicitly allowing that these polarized categories will not do; for she suggests that Dewey questioned the amount of personal agency a person could achieve in a world that, in light of quantum physics, does not seem deterministic (64).  At any rate, her point in playfully adopting both a Jamesian and Deweyian perspective at once seems to be that despite the seeming differences between them, James and Dewey both “understand that morally significant choices express who we are and shape who we will be,” and that “this relation between character and conduct leaves room for choice, for moral growth or deterioration, even for dramatic reversals” (64).  The human mind makes deliberate choices based on evaluative criteria gained by experience in the tangible world.  That, I suspect, is a statement with which James and Dewey and I daresay even Putnam would agree. 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 »

Wallace Stevens and Imagination

In Arts & Letters, Communication, Communism, Conservatism, Creative Writing, History, Imagination, John William Corrington, Literary Theory & Criticism, Pragmatism, Rhetoric, Santayana, Wallace Stevens, Western Civilization, Writing on May 4, 2011 at 10:54 pm

Allen Mendenhall

This post first appeared here at themendenhall.


It would seem at first blush that American modernism is incompatible with American conservatism.  But this impression pivots on a too-narrow conception of both “modernism” and “conservatism.”  The aesthetes who animated modern American poetry were, many of them, social and political conservatives.  This fact has been lost on those intellectuals who do not admit or acknowledge alternative and complicating visions of the world in general and of modernism in particular.  In the wake of the radical 1960s, many intellectuals simply ignored the contributions of the conservative imagination to literature, preferring to will away such unpalatable phenomena by pretending they do not exist.  However well-meaning, these intellectuals either assume without much hesitation or qualification that all modernist theories and practices were progressive, or they brush under the rug any conservative tendencies among writers they admire.  American modernism was progressive in its adaptation of forms, but it does not follow that avant-garde aesthetics necessarily entails progressive political programs.  Nevertheless, under Frankfurt School and Marxist auspices, among other things, the literati and others in the academy have rewritten the history and thought of modernist American poetry to purge it of all conservative influence.  George Santayana, Allen Tate, T.S. Eliot, Yvor Winters, Marianne Moore—these individuals, according to progressive mantras, were intellectually challenging and therefore, the argument goes, politically leftist.  Such revisionism will not do. Read the rest of this entry »

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