Pragmatism, Law, and Morality: The Lessons of Buck v. Bell

European Journal of Pragmatism and American Philosophy, 2011 III 2

University of Miami Legal Studies Research Paper No. 2012-22

24 Pages Posted: 25 Jul 2012 Last revised: 31 Jul 2012

See all articles by Susan Haack

Susan Haack

University of Miami - School of Law; University of Miami - Department of Philosophy

Date Written: July 24, 2012

Abstract

Oliver Wendell Holmes, Jr. - a founding member of the Metaphysical Club, and traditionally regarded as the first legal pragmatist - would eventually become a Justice of the U.S. Supreme Court. In one of his best-known rulings for the Court, Buck v. Bell (1927), Holmes held that Carrie Buck's constitutional rights would not be violated by allowing the State of Virginia to sterilize her against her will. This disturbing ruling has sometimes been thought to confirm criticism's of Holmes' (alleged) moral skepticism. But this, I agrue, is a mistake: Holmes was no moral skeptic but, like James and Dewey, a moral fallibilist; and his ruling in Buck, misguided as it is, is nevertheless illustrative of his important theoretical point that judges are no less fallible about moral questions than the rest of us, and that it's dangerous for them to imagine otherwise.

Keywords: pragmatism, law and morality, law and science, eugenics laws, Oliver Wendell Holmes, Jr., Francis Galton, Henry Loughlin

Suggested Citation

Haack, Susan, Pragmatism, Law, and Morality: The Lessons of Buck v. Bell (July 24, 2012). European Journal of Pragmatism and American Philosophy, 2011 III 2; University of Miami Legal Studies Research Paper No. 2012-22. Available at SSRN: https://ssrn.com/abstract=2116371

Susan Haack (Contact Author)

University of Miami - School of Law ( email )

P.O. Box 248087
Coral Gables, FL 33146
United States
305-284-3541 (Phone)
305-284-6506 (Fax)

University of Miami - Department of Philosophy ( email )

P.O. Box 248054
Coral Gables, FL 33124-4670
United States

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