Oliver Wendell Holmes Jr. and the Darwinian Common Law Paradigm

European Journal of Pragmatism and American Philosophy, Vol. 7, No. 2 (2015)

23 Pages Posted: 28 Dec 2015

Date Written: 2015

Abstract

This essay builds on recent work by Susan Haack to suggest that Oliver Wendell Holmes Jr.’s conception of the common law was influenced by Darwinian evolution and classical pragmatism. This is no small claim: perceptions of what the common law is and does within the constitutional framework of the United States continue to be heavily debated. Holmes’s paradigm for the common law both revised and extended the models set forth by Sir Edward Coke, Thomas Hobbes, Sir Matthew Hale, and Sir William Blackstone. Adding additional substance to Haack’s argument by pointing out passages in Holmes’s opinions and in his only book, The Common Law, that corroborate her claims about the particular features of Holmes’s pragmatism, this essay concludes by suggesting that, because of his connections with the classical pragmatists and his reverence for Emerson, Holmes is the best place to begin answering the famous question formulated by Stanley Cavell: “What’s the Use in Calling Emerson a Pragmatist?”

Suggested Citation

Mendenhall, Allen, Oliver Wendell Holmes Jr. and the Darwinian Common Law Paradigm (2015). European Journal of Pragmatism and American Philosophy, Vol. 7, No. 2 (2015), Available at SSRN: https://ssrn.com/abstract=2708610

Allen Mendenhall (Contact Author)

Troy University ( email )

Troy, AL
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
152
Abstract Views
969
Rank
352,109
PlumX Metrics