Dissent as a Site of Aesthetic Adaptation in the Work of Oliver Wendell Holmes Jr.

Abstract

This article considers Oliver Wendell Holmes Jr. as a writer in the aesthetic,pragmatic tradition of Ralph Waldo Emerson and William James. Holmes, like Emerson, has been compared to Nietzsche, and may be said to have ushered in an era of postmodern jurisprudence in America. Holmes’s aesthetic pragmatism anticipates the antifoundationalism of Richard Rorty and lends itself to rhetorical superfluity, especially in the medium of dissent. Holmes turned the dissent into an aesthetic medium both pleasurable and memorable; in so doing, he ensured that future judges, practitioners, academics, and other commentators would revisit his dissents. By revisiting Holmes’s dissents, these individuals were revisiting legal reasoning, and judges in particular were vindicating that reasoning and perhaps even transforming that reasoning into law. Section one contextualizes Holmes’s ideas within the broader currents of American jurisprudence and postmodern philosophy in the nineteenth and twentieth centuries. This section shows that Holmes was a transitional and transformational force in American legal thought and that he ushered in an era of postmodern judging. Section two spells out the concept of pragmatist aesthetics as a judicial framework. It suggests that Holmes is an Emersonian who falls within the pragmatic-aesthetic tradition. This section builds on themes about postmodernism, but focuses above all on Holmes’s style and creativity. Although classical pragmatism is not postmodern, and although Holmes is not a postmodernist, Holmes’s pragmatism enabled the development of postmodern jurisprudence. Against entropy, Holmes stood for mobility and expediency, the implications of which were more postmodern than Holmesprobably intended. Section three considers this postmodern jurisprudence and synthesizes sections one and two while analyzing the dissent as a communicative and rhetorical medium. This final section is both biographical and theoretical; it brings together the three principal themes of this piece: pragmatism, aesthetics, and postmodernism.

Keywords: Oliver Wendell Holmes Jr., Emerson, Pragmatism, Dissent, Postmodernism, aesthetics, jurisprudence