Oliver Wendell Holmes Jr., Pragmatism, and the Jurisprudence of Agon: Aesthetic Dissent and the Common Law

by Allen Mendenhall

This book argues that Oliver Wendell Holmes Jr., helps us see the law through an Emersonian lens by the way in which he wrote his judicial dissents. Holmes’s literary style mimics and enacts two characteristics of Ralph Waldo Emerson’s “superfluity” and the “poetics of transition,” concepts ascribed to Emerson and developed by literary critic Richard Poirier. Using this aesthetic style borrowed from Emerson and carried out by later pragmatists, Holmes not only made it more likely that his dissents would remain alive for future judges or justices (because how they were written was itself memorable, whatever the value of their content), but also shaped our understanding of dissents and, in this, our understanding of law. By opening constitutional precedent to potential change, Holmes’s dissents made room for future thought, moving our understanding of legal concepts in a more pragmatic direction and away from formalistic understandings of law. Included in this new understanding is the idea that the “canon” of judicial cases involves oppositional positions that must be sustained if the law is to serve pragmatic purposes. This process of precedent-making in a common-law system resembles the construction of the literary canon as it is conceived by Harold Bloom and Richard Posner.

202 pages, Hardcover

Published December 14, 2016

Reviews

[Seth · Rating 5 out of 5]

Mendenhall's book is an original contribution to many fields, including legal theory, American pragmatism, literary aesthetics, and more. He convincingly illustrates that dissenting in Supreme Court cases provides the evolutionary Common Law, especially when written in a poetic prose capturing Emersonian themes of superfluity, with material for its organic adaptation over time. Holmes illustrates this aesthetic dissent, and his dedication to the craft both evinces the pragmatism of the classical philosophers, Peirce, James, and Dewey, but is also in service of preventing the bloodshed that Holmes experienced first hand in the Civil War. The book is exceedingly well researched and written in prose that does not perform a contradiction to the aesthetics he highlights as most valuable.

I have written that law is a conservative form of culture, and that art and science are progressive forms of culture. If this is close to correct, Mendenhall has shown us that the artistic elements of law, as dissent, provide the potential for its transformation over time, often to attend to the progress of the arts and sciences.