The Return Of Pragmatism


After his return Holmes attended Harvard Law School and then went into practice with a Boston firm. He also developed an intimate friendship with William James. Their letters were unusually warm and spirited, but their personal relations eventually became strained, and Holmes was always unsympathetic to James’s philosophical writings. They seemed to promote, in their spiritual hopefulness, just the sort of sentimental idealism he had rejected. “His wishes led him to turn down the lights so as to give miracle a chance,” he complained to a friend after James’s death in 1910. Holmes had no high regard for Peirce either; he thought his genius “overrated.” But although Holmes would never have referred to himself as a pragmatist, his twentieth-century disciples have not been wrong to understand his jurisprudence as a form of pragmatism.

In 1870, when he was twenty-nine, Holmes became co-editor of the American Law Review , and the first paragraph of the first article he published there gives, in a very early nutshell, the pragmatist premise of his jurisprudence: “It is the merit of the common law that it decides the case first and determines the principle afterwards. Looking at the forms of logic it might be inferred that when you have a minor premise and a conclusion, there must be a major, which you are also prepared then and there to assert. But in fact lawyers, like other men, frequently see well enough how they ought to decide on a given state of facts without being very clear as to the ratio decidendi [the ground of the decision]. Lord Mansfield’s often-quoted advice to the business man who was suddenly appointed judge, that he should state his conclusions and not give his reasons, as his judgment would probably be right and the reasons wrong, is not without application to more educated courts.”

Holmes’s target in these sentences was legal formalism, the theory that the law has an internal logical consistency and consists of general doctrines—such as “a person shall not use his property in a way that injures the property of another”—that guide the outcomes of particular cases. Holmes devoted his career as a judge and a jurisprudential thinker to demolishing this view of the law, pointing out, for example, that people use their property legally to injure the property of others all the time, as when they set up a shop with the intention of putting the shop owner down the street out of business.

Holmes’s insight into the insufficiency of general principles left him with an obvious question, which is, If general principles don’t decide cases, what does? His answer was unveiled in the opening paragraph of The Common Law (1881), in what is possibly the most famous sentence in American legal thought: “The life of the law has not been logic; it has been experience.” Holmes did not mean that there is no logic in the law. He meant that what guides the direction of the law, from case to case over time, is not immutable reason but changing experience. This assertion has sometimes been misinterpreted to mean that what ultimately determines a judge’s decision is his personal background and taste—what he ate for breakfast. But that is not what Holmes meant by experience. He was not referring to the life history of the individual lawmaker or judge; he was referring to the life history of society. Experience, for him, was the name for everything that arises out of the interaction of the human organism with its environment: beliefs, values, intuitions, customs, prejudices—what he called “the felt necessities of the time.” Our word for it is culture .

For when we think judicially—when we try to determine what would be the just outcome in a legal dispute—Holmes believed that we think the same way we do when we have to make a practical decision of any sort. We don’t do whatever feels pleasant or convenient to us at the moment (since experience teaches that this is rarely a wise basis for making a decision). But we don’t reason logically from abstract principles either. Still, our decision, when we are happy with it, never feels subjective or irrational: How could we be pleased if we knew it to be arbitrary? It just feels like the decision we had to reach, and this is because its Tightness is a function of its “fit” with the whole inchoate set of cultural assumptions of our world, the assumptions that give the moral weight—much greater moral weight than logic or taste could ever give—to every judgment we make. This is why so often we know we’re right before we know why we’re right. We decide, then we deduce.

Holmes sought to demolish the view that the law has internal logical consistency and is guided by general doctrines.

Philosophies and theories and formal methodologies are part of our culture, but they are, in Holmes’s view, the dinner jacket and bow tie we instinctively take off when it is time to change the tires. “All the pleasure of life is in general ideas,” he wrote to a correspondent in 1899. “But all the use of life is in specific solutions—which cannot be reached through generalities any more than a picture can be painted by knowing some rules of method. They are reached by insight, tact and specific knowledge.”