The pragmatist’s pragmatist: Oliver Wendell Holmes, Jr.

English: Justice Oliver Wendell Holmes

Justice Oliver Wendell Holmes (Photo credit: Wikipedia)

While he is not regarded as a philosopher in the traditional sense, Oliver Wendell Holmes, Jr. is perhaps the quintessential pragmatist. For those who wish to read the Great Dissenter there is a wealth of material available online:

He started his career as a legal theorist. His ideas formed the basis of legal realism, a dramatic change from classical legal theory which viewed the law as part of ethics. In The Common Law (1881) Holmes sought to bring the ideas and approach of the Harvard Pragmatists to jurisprudence. Transforming the practice of law from a set of rules and principles based on logic, to a tool for adapting in a changing world based on experience. The complete text of The Common Law is available online in text format or as a pdf. 

He further developed his pragmatist/realist approach in the essay “The Path of Law” from the Harvard Law Review (1897).

In Abrams v. United States he argued that political dissent did not interfere with the war effort and the dissidents should not be punished for their opinions rather than their acts. Holmes was influenced by Zechariah Chafee‘s 1919 article in the Harvard Law Review “Freedom of Speech in War Time” which is available online.

Perhaps his most controversial opinion came in the case of Buck v. Bell, 274 U.S. 200 (1927). In his majority opinion he crafts an interesting argument concerning the line between public and private welfare. Available online.

It’s a complex case with many subtle issues that are worth looking at in detail. Here is more info for anyone that wants to follow it closely:

What was the law?
What was the case?
What was the decision?
What was really going on?

There is also a very good article in Stephen Jay Gould’s “Carrie Bell’s Daughter” from his anthology The Flamingo Smiles.

Side note: I found it a bit creepy that I have been to three of the five buildings (pictured in the first link) that were “feeder institutions” for forced sterilization. One of them is now a museum.

There is also an excellent anthology edited by later day Pragmatist Richard Posner called The Essential Holmes available at Amazon.


~ by severalfourmany on March 7, 2013.

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