Justice Holmes at the Intersection of Philosophical and Legal Pragmatism
Posted: 3 Jan 2012
Date Written: January 2, 2012
Because of the prolific scholarship on legal theory by Judge Richard Posner, especially since his turn away from law and economics toward “pragmatism,” legal scholars began reading “legal pragmatism” as references to Posner’s thought alone. My present task is part of a larger process of rethinking Posner’s version of legal pragmatism. Posner’s inspiration for his turn toward pragmatism can be attributed, in large measure, to Oliver Wendell Holmes, Jr. Posner buys into three central insights of legal pragmatism, whose origins lie in the work of Holmes, anti-formalism, the prediction theory of the law, and a modicum of indeterminacy in judicial decision making. Further, Posner is a methodological pluralist, refusing to reduce the process of adjudication to any one method or approach, such as textual literalism or originalism. He takes the mask off of these judicial theories and claims that underneath each is a pragmatist.
But Posner’s central position, to which the present article is a propadeutic to a more substantial criticism, is that academic philosophy and philosophical pragmatism in particular have no role to play in legal pragmatism as it manifests itself in the process of adjudication or in the process of legal scholarship. Since the legal theory Posner thinks useless is so infected by philosophy, legal theory, according to Posner is not relevant to the law either. If legal theory is not relevant to the law, legal institutions seem intellectually impoverished, ignoring the storehouse of wisdom in philosophy and depriving law of the intelligence necessary for social growth. Posner’s polemical stance has not gone unnoticed in the world of jurisprudence and legal theory. But the result has been that legal scholars have now begun to associate legal pragmatism with Posner’s seeming anti-theory. Thus, an important element in rethinking Posner’s version of legal pragmatism is presenting a defense of Holmes as a philosophical pragmatist and a pragmatist in the tradition of his contemporary, Charles Sanders Peirce. Such is my present task. Holmes’s scholarship resides at the intersection of philosophical and legal pragmatism, where Posner imagines that these roads run parallel to each other and therefore do not intersect.
The central position I advance here is that Holmes’s historical legal scholarship and several of his judicial arguments evince the pragmatic sensibility of C.S. Peirce. Holmes puts to work several elements of Peirce’s pragmatism: (1) that we must infer knowledge internal to the mind by external signs; (2) that the best method to fix our beliefs and settle our doubts relies on a communal inquiry as opposed to authoritarian dictates; (3) that the meaning of a concept, such as law, is found in the effects of its enactment; (4) that falliblism, liberalism, and skepticism of absolute truth are the proper norms to deter dogmatism and authoritarianism; (5) that the reality of values and ideals are found in their functional effects; and (6) that the norms, principles, standards, and rules, which guide the process of judicial inquiry, are generated by the facts of the case, as opposed to being a priori principles (versus natural law theory) and as opposed to lacking any reality at all, (versus nominalism). Peirce offered us the idea that to understand the meaning of a concept, we must look to its practical effects. I offer the idea that if we want to know the meaning of pragmatism itself, we should look to its practical effects in the scholarship and judicial decisions of Oliver Wendell Holmes, Jr.
Keywords: legal pragmatism, Holmes, Peirce, judicial theory
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