Abstract
This chapter identifies the pragmatic judge as the protagonist of Oliver Wendell Holmes, Jr.’s writings. At once an independent thinker and a figurehead of the legal institution, the pragmatic judge draws upon a series of archetypal characters assembled from American society (including “the bad man,” the soldier, and the socialist revolutionary) to sketch a picture of the battlegrounds and marketplaces where public opinions are contested. This characterization of the judge works in concert with Holmes’s militaristic and financial tropes, creating a picture of the frontlines where, for Holmes, the judicial decision-making process takes place. In Holmes’s narrative of legal pragmatism, the judge must enter the social melee and adjudicate the contentious habits, beliefs, and values of his culture.
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Notes
- 1.
Richard Posner famously calls Holmes the “American Nietzsche” (“Introduction” xix). Subsequent scholars have reinforced this connection. For instance, Brian Leiter places Holmes and Nietzsche in a classical realist tradition. Holmes’s validation of both Darwinian evolutionary theories and Malthus’s conception of population growth are well documented. See in particular James Springer’s “Natural Selection or Natural Law,” which traces Holmes’s application of nineteenth-century evolutionary theory to natural law. Michael Duggan compares Holmes to Hume as a way of explaining the duality of his “sunny disposition” and “bleak philosophy or outlook” (538). For the Hitler comparison, see Ben Palmer.
- 2.
Though one cannot ignore Holmes’s notorious declaration in favor of coercive sterilization in Buck vs. Bell (Essential 104).
- 3.
See Louis Weinberg and Albert Alschuler. Frederic Kellogg responds to Alschuler’s claim that Holmes was overly skeptical by arguing that he advocated a “value-transparent” (as opposed to value-less) legal theory (17).
- 4.
According to one story, Oliver Wendell Holmes, Sr. disparaged the idea that a lawyer could be a “great man,” fuelling his son’s ambitions to achieve a broader fame in American society. However, G. Edward White denies this story (Law and the Inner Self 465).
- 5.
Robert Ferguson also comments on Holmes’s place in the American ethos, particularly in relation to the persona of the judge: “Americans give unique weight to the sitting judge as a symbol of national identity, and yet the judicial figure is a curious anomaly in democratic culture. Judges, after all, pursue their assigned tasks in very undemocratic ways” (156).
- 6.
The four girls included: Katharine (Kitty), aged twenty-two; Mary (Minny), aged twenty; Ellen (Elly), aged fifteen; and Henrietta, aged twelve.
- 7.
There is some uncertainty regarding the identity of this great aunt, since James does not name her. Likely candidates include Ellen Gourlay and Charlotte Perkins. See Notes of a Son and Brother (361, n. 778).
- 8.
See Novick, The Young Master (110 and n. 48). Peter Collister responds to Novick’s revision of the account in Notes of a Son and Brother, arguing that Edel’s original analysis of the North Conway trip coheres more with the available information (and James’s autobiographical account) than Novick’s reading. See Notes (359, n. 776).
- 9.
Among his companions, Holmes had a reputation for being a bit of a Lothario. Both William and Henry teased Holmes about his flirtatiousness in their correspondence. As Alfred Habegger notes, Minny had her own brand of “teasing directness” (129), which could match Holmes’s approach.
- 10.
William’s changed opinion is best exemplified in a line he wrote to Henry about Holmes in 1876, five years after the Metaphysical Club: “He is a powerful battery, formed like a planing machine to gouge a deep self-beneficial groove through life” (Correspondence of William James: William and Henry, Vol. 1: 269).
- 11.
For contemporary overviews of legal pragmatism, see Michael Sullivan’s Legal Pragmatism: Community, Rights, and Democracy and Richard Posner’s chapter “Legal Pragmatism” in The Range of Pragmatism and the Limits of Philosophy.
- 12.
Though Catherine Peirce Wells works against the idea that the bad man personifies evil. For her, the bad man is simply a law-breaker: “Whoever the bad man is, his opposition to legal values and his consequent violations of law do not by themselves make him truly evil. He is a lawbreaker and nothing more” (225). I would argue, however, that this view supports the idea that the bad man theory avoids all considerations of subjectivity.
- 13.
Schoenbach also discusses the bad man as a character (96–7). She sees him as the hero of “The Path of the Law,” which is true insofar as he is the figure from the study that has lived for posterity.
- 14.
For one of the few discussions of the importance of emotion in Holmes’s construction of the law, see Anne Daley.
- 15.
A prominent diplomat and historian, and, along with Harold Laski, one of Holmes’s most frequent correspondents.
- 16.
In Oliver Wendell Holmes, Jr., G. Edward White provides a comprehensive account of Holmes’s trials as a young man in the army. White tracks a transformation in Holmes’s conception of loyalty as it shifted away from the abolitionist cause (66–8). Sheldon Novick also discusses Holmes’s experiences in the war, paying particular attention to his disillusionment with his parents’ patriotic fervors. See Honorable Justice (80).
- 17.
Other critics who have noted Holmes’s deliberate use of martial themes and his tendency to conflate soldiers and lawyers include G. Edward White (Law and the Inner Self 72), Robert Gordon (16), and Thomas Grey (144).
- 18.
He brings up this point in a letter to Frederick Pollock, where he speaks about struggling to read Thucydides’ History of the Peloponnesian War: “It isn’t the kind of thing I like to read—just as I hate to read of our Civil War—and apart from its being the first of its kind, a most important fact, no doubt, I think it is overvalued in England” (Essential 60).
- 19.
A Russian writer who wrote about conditions inside the Soviet Union in the 1920s and 1930s. Here Holmes is referring to his book Humanity Uprooted.
- 20.
Edmund Wilson remarks that Holmes’s concern with executing laws would have continued irrespective of any major alterations in the existing social order: “If the business men made the laws, he would have to accept their authority; if the people should decide to vote for socialism, he would have to accept that, too—and it was always from the point of view of assessing this latter possibility that he did his occasional reading in the literature of socialism” (794).
- 21.
A philosopher at City University of New York. He was known for merging pragmatism with logical positivism.
- 22.
At the Battle of Ball’s Bluff in October 1861. Catherine Bowen gives an account of the battle and Holmes’s wound in her biography, Yankee from Olympus.
- 23.
See for instance The Common Law (61).
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Phipps, G. (2016). “The Habit of the Public Mind” in the Battlefields and Marketplaces: Oliver Wendell Holmes, Jr.’s Pragmatic Judge and His Fellow Combatants. In: Henry James and the Philosophy of Literary Pragmatism. Palgrave Macmillan, New York. https://doi.org/10.1057/978-1-137-59023-7_6
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