The Rhetorical Roots of Legal Pragmatism

Abstract

This article argues that in Oliver Wendell Holmes Jr.’s “The Path of the Law”—a landmark work in legal pragmatism—the philosophical and rhetorical themes complement and reinforce each other. To do so it utilizes Robert Danisch’s (2007) Pragmatism, Democracy, and the Necessity of Rhetoric as a theoretical framework to demonstrate that as Holmes confronts major tensions in the law—legality and morality, past and future, theory and practice—he reveals the necessity of pragmatism in legal judgment and its unavoidable rhetorical character.

On January 8, 1897, Oliver Wendell Holmes Jr. delivered a speech commemorating a new addition to the Boston University School of Law. Already an eminent legal scholar owing to the publication of The Common Law in 1881 and his appointment to the Massachusetts Supreme Court in 1882, Holmes elevated the event beyond a mere dedication by his very presence. As the austere judge spoke in front of faculty and students, no one could have expected the significant nature of that moment. In his presentation (afterward published as “The Path of the Law”), Holmes offered his audience one of the most important and influential theories in the history of American jurisprudence.

Over a century later, one is hard-pressed to deny the significance of “The Path of the Law.” After its initial oral delivery, it was published in the Harvard Law Review (Holmes 1897), reprinted in the same journal on its hundredth anniversary, and included in several versions of his collected works (Holmes 1920, 1992c; Novick 1994). Described as a “revolution in legal thought” (Budiansky 2019, 247), the essay is considered to be the impetus for legal realism (Leiter 2000, 297), which over the course of thirty years grew to fruition and remains a formidable theory in jurisprudence. Also marking the speech’s hundredth anniversary, a collection of essays was published in which some of the most elite scholars in legal studies debate what Holmes was advocating in his grand yet enigmatic argument, which created a puzzlingly influential trail. As Catharine Pierce Wells notes: “Despite the seeming lucidity of his prose, scholars have been unable to agree even on a general description of his theoretical views: they have variously described him as a realist, a positivist, an instrumentalist, a utilitarian, a pragmatist, a liberal, a conservative, a fascist, a critical theorist, a cynic, an idealist, and even a nihilist” (2000, 211).¹ Needless to say, “The Path of the Law” continues to be an influential, if not opaque, text whose influence spans three centuries and continues to shape, either directly or indirectly, an array of contemporary scholarship.

Despite its significance, the text has received precious little attention from rhetoric scholars. Holmes is a key figure in First Amendment scholarship given his tenure on the Supreme Court, during which time he issued some of the most crucial early opinions and dissents on the topic (Cohen 1989; Danisch 2008; Dee 2009; Dewberry 2005; Russomanno 2000; Schroeder 2018; Smolla 2019), but scholars of rhetoric and communication tend to stop there. The few works that address the rhetoric in “The Path of the Law” come from legal studies rather than rhetoric and stress the stylistic dimensions of the text while ignoring the theoretical underpinnings (Goldberg 1997; Grey 1997; Schwarz 1985). Given its jurisprudential importance, Holmes’s important work is ripe for rhetorical examination. Furthermore, the last twenty years have seen a rising interest in the intersection of rhetoric and pragmatism, and of course Holmes was an early, if complicated, figure in the history of the latter. It is that intersection that this article will explore.

Situating Holmes’s theory in rhetoric, philosophy, and legal studies, I argue that “The Path of the Law” serves as a pivotal founding document of legal pragmatism. Moreover, the rhetorical themes woven throughout the text are inseparable from the overarching pragmatic theory Holmes advances. Decision-making amid uncertainty, the role of contingency, the importance of experience, the central commitment to democratic community, the inescapable pluralism and fallibilism of legal judgment, and the practical wisdom and creative intelligence that oversee these points exhibit a union of the rhetorical and pragmatic traditions and their place in the canon of jurisprudence. Thus, the reference to rhetorical roots in my title signals not only the significance of “The Path of the Law” in establishing a theoretical foundation for legal pragmatism but also how this foundation is inherently rhetorical.

To advance this argument, I will first articulate the connection between pragmatic philosophy and rhetoric. In so doing, I will not try to collapse the two. Instead, I will argue that they share essential themes and cultivate similar attitudes toward judgment. Next, I turn to Holmes’s essay to illustrate how they manifest in his argument. Utilizing Robert Danisch’s (2007) Pragmatism, Democracy, and the Necessity of Rhetoric as a theoretical framework for understanding the relationship between rhetoric and pragmatism, I focus on three distinct tensions at play throughout the work: the relationship between legality and morality, the role of theory and its influence on the practical act of judgment, and the use of past decisions to orient future legal standards. While attention is focused mainly on “The Path of the Law,” some other of Holmes’s works—essays, correspondence, legal decisions, etc.—will help complement and tease out the implications of the landmark essay as the ideas played out through the rest of his storied career. Finally, I argue that revisiting Holmes’s ideas provides an antidote to the detached, often antirhetorical models of judgment that proliferate in legal studies and the decisions that emanate from them.

The Thematic Intersections of Pragmatism and Rhetoric

The first challenge in characterizing pragmatism is determining its philosophical parameters. Much like rhetoric, pragmatism encompasses an array of competing, sometimes contradictory notions about what it means, which has been the case since its inception. For example, Charles Sanders Peirce (1905), often regarded as the founder of the philosophical tradition, was so incensed by William James’s characterization of pragmatism, which focused on a fluid notion of truth, that he renamed his own approach pragmaticism, finding the term “ugly enough to be safe from kidnappers” (166). Whereas Peirce focused on semiotics and the importance of scientific inquiry to understand the meaning and impact of our ideas, James was more concerned with psychology and religion as they orient our beliefs and our relationship with the idea of truth.² While John Dewey had a sympathy for the scientific method akin to that of Peirce, he was not beholden to it in the same way. Although he was a prolific author and covered a wide variety of philosophical issues, the two central themes of his work are democracy and education (and the relationship between them). The neopragmatists are no different in their competing notions of pragmatism and sharp criticism of fellow pragmatists. Richard Rorty’s (1979) attack in Philosophy and the Mirror of Nature on contemporary philosophy, particularly the analytic tradition and Cartesian epistemic legacy, rekindled an interest in pragmatism. His work is in sharp contrast to that of other neopragmatists, including Hilary Putnam, Richard Bernstein, Robert Brandom, Nicholas Rescher, Jürgen Habermas, and more, many of whom clash with each other over what constitutes the scope of pragmatism. The arguments cover an array of philosophical topics, from metaphysics and epistemology to ethics and political theory. Nonetheless, their work falls under the broad umbrella of pragmatism.

Even the proponents of the subset of legal pragmatism battle over how best to characterize the discipline. The most prominent legal pragmatist is undoubtedly Richard Posner, who has authored a litany of books, articles, legal decisions, and op-eds in which he situates himself in the pragmatic tradition. He eschews academic philosophy, even pragmatism, in favor of “everyday” pragmatism. According to him, academic pragmatism is guided by abstract propositions that deal with weighty philosophical questions such as the nature of truth, whereas everyday pragmatism, at least in law, is what judges and lawyers do. One is theory, the other practice, and there is an enormous gulf between the two: “An everyday pragmatist in law, an everyday-pragmatist judge, for example, wants to know what is at stake in a practical sense in deciding a case one way or another” (Posner 2003, 12). For him, the real-time decision-making a judge must perform does not require and may even be hindered by philosophical pragmatism. Thomas Grey agrees that “legal theory can stand free of philosophical pragmatism” (1996, 21) and characterizes philosophical pragmatism’s current focus on “metaphysical antirealism” as inattentive to “real” problems (32). He even goes so far as to describe philosophical pragmatism as “banal” (Grey 1989, 814). While philosophy’s characterization of pragmatism draws from a technical philosophical discourse, Posner and Grey are more attuned to the common usage of the word pragmatic: “sensible,” “prudent,” “practical,” and “realistic.”

Importantly, Posner and Grey overlook significant similarities between legal pragmatism and philosophical pragmatism. Michael Sullivan (2007) argues that Posner ignores the crucial connection between law and democracy, especially Dewey’s conception of democratic participation, instead favoring a bleak view of human nature that caters to his economic disposition. Steven Smith (1990) criticizes Posner’s strategic use (and misuse) of terminology, particularly the idea of formalism, to differentiate himself from the philosophical tradition. David Luban (1998) calls attention to how legal adjudication and pragmatic philosophy have a shared mission: problem-solving, ordinary language arguments and concepts, and the importance of clarifying what is at stake. Furthermore, Michel Rosenfeld (1998) notes the vagueness and malleability of pragmatism, both legal and philosophical, which lends it to all manner of competing and conflicting characterizations, thus allowing Posner and others to cast themselves in a favorable light while earning points in the legal world for disparaging academic philosophy.

Perhaps Sidney Morgenbesser (1998) is correct in claiming: “There is no essence to pragmatism” (55). While some may view this as the ultimate criticism of pragmatism, I see it as one of its greatest strengths. How to settle the ongoing debate about defining pragmatism is beyond the scope of this article. More importantly, it is the wrong question to ask. What so many of these disparate thinkers share is not a singular definition but an array of themes that guide their inquiry and analysis despite differences in orientation. Notably, many of these themes are also shared with the rhetorical tradition, and, by viewing pragmatism through the lens of rhetoric, one is in a better position to explain, if not resolve, the tensions and incongruities connecting the two.

Much as philosophers have evinced a rekindled interest in pragmatism, so too has the rhetorical discipline seen growing attention to the philosophical worldview. Dewey continues to be a central focus among rhetoric scholars—particularly for his attention to the communicative elements of democracy and his conception of aesthetics, which intersect in meaningful ways—Scott Stroud (2010, 2011, 2012a, 2014, 2016, 2017), Nathan Crick (2004, 2009, 2010), and many others making compelling contributions (see also Asen 2003; Greene 2003; Johnstone 1983; and Stob 2005). While receiving less attention, William James remains a formative figure at the intersection of pragmatism and rhetoric (Brinton 1982; Stob 2008, 2011; Stroud 2012b). Surprisingly, other prominent pragmatists, especially neopragmatists, receive significantly less attention than do Dewey and James despite how their work intersects with the rhetorical tradition. Holmes occupies an interesting space in rhetoric and communication scholarship. While he continues to be a critical figure in First Amendment studies for his landmark decisions and dissents, his other work is overshadowed.

These analyses of rhetoric and pragmatism tend to leave the problem of definition aside, instead drawing on general themes or principles to guide their research. Mark Porrovecchio (2010) calls attention to this issue, arguing that the generalizations uniting rhetoric and pragmatism “[loosen] the borders between what is theorized or criticized and the object that is the subject of either of the two”: “When it comes to pragmatism, a worldview generally endorsed because it emphasizes practice over theory, this ambiguity becomes troubling” (64). Porrovecchio focuses on Stroud’s conception of pragmatic “meliorism” and its relationship to rhetoric, but his criticism could characterize much of the rhetorical work on pragmatism. However, as noted earlier, a focus on definition may miss out on the benefits of pragmatism and rhetoric, even if there remain lingering issues of vagueness. Instead, I argue that the general themes that unite pragmatism are more important and share a rich intellectual history with the rhetorical tradition.

Danisch’s Pragmatism, Democracy, and the Necessity of Rhetoric(2007) serves as an insightful framework when connecting pragmatism and rhetoric. Drawing on the first-generation pragmatists and classical rhetoric, Danisch argues that the two are inseparably linked: “[P]ragmatism can be defined by its search for rhetorical practices that use knowledge to guide deliberation and judgment” (2). Both are drawn to a philosophy of action, discovering practical methods geared toward responsible change and the role that community plays therein (3). Moreover, both are not so much guided by immutable definitions as they are oriented by an attitude, “an orientation to the world” (4), that strives to cultivate “practical wisdom” (10). Such an approach to pragmatism and rhetoric can help the two disciplines fill each other’s gaps. Pragmatism can decentralize rhetorical theory, while rhetoric can provide the discursive strategies necessary to fulfill the promises of pragmatism.

Danisch highlights five commitments that underscore the pragmatic tradition: (1) uncertainty and contingency, (2) epistemological anthropocentrism, (3) pluralism, (4) connection to community, and (5) practical methods and tools for solving real-life problems (2007, 6–7). These themes are, he argues, part and parcel of the rhetorical tradition, which has long acknowledged similar tenets as it had resisted some of the impulses that have guided philosophy. These commitments permeate the history of pragmatism and can be seen, in various degrees, throughout even the most seemingly conflicting works. Danisch argues: “[T]hese five characteristics [are] conditions for the development of multiple rhetorics. In other words, pragmatism provides the theoretical grounds that require the invention and use of a variety of rhetorics” (143). James Kloppenberg (1998) captures the sentiment well, arguing: “[T]he great strength of pragmatism . . . lay in its denial of absolutes, its admission of uncertainty, and its resolute commitment to the continuing vitality of the ideal of democracy as a way of life” (111). These strengths are not cultivated, maintained, and altered through the traditional tools of empiricism or analytic philosophy. Instead, they involve “the central themes of dialogue, conversation, undistorted communication, [and] communal judgment” (Bernstein 1983, 223). Instead of simplifying the many challenges posed by these commitments, pragmatism leans into their complexity. The rhetorical dimensions are both unavoidable and necessary to pragmatic philosophy and aid each other in responding to the complex problems of the day.

Susan Haack (2019) argues that what unites pragmatists is, “not a body of doctrine, but a congeries of themes, attitudes, and predilections that, despite their great diversity and their many disagreements, they all shared” (169). Focusing on such themes highlights the meaningful connections shared by philosophical pragmatism and rhetorical pragmatism, but important differences remain. Borrowing from Aristotle, the two function as counterparts. If philosophical pragmatism is a process by which ideas come to fruition in the technical sphere of academic philosophy, then rhetorical pragmatism oversees the dissemination and implementation of those ideas. According to Danisch (2015), the mid-twentieth century saw “the pragmatist project tied explicitly to rhetoric” (xiv), but academic philosophy would relent and turn its attention away from fully realizing the philosophy in the public sphere. While philosophy has long been vulnerable to criticisms that it locks itself away in an ivory tower, such isolation is particularly problematic in light of pragmatism’s dedication to social democracy and the melioristic disposition shared by its earliest proponents. As a result, philosophical pragmatism (in its current state) is mostly focused on how it exists within the confines of academic philosophy, whereas rhetorical pragmatism is mostly focused on the public. “When philosophical pragmatism is severed from the social democratic project,” argues Danisch, “then something profound is lost from the tradition of pragmatism” (xviii). Following this characterization, philosophical pragmatism is not errant. It is just incomplete. When disconnected from its rhetorical counterpart, it remains inert. Like a great piece of engineering that goes unused, it offers an account of the world and the various problems therein but little in the way of ameliorating those problems in order to cultivate a healthier, more robust social democracy. What use are pragmatic ideas if they remain behind glass? Unlike contemporary pragmatic philosophy, rhetorical pragmatism is interested in where (and why and how) the rubber meets the road when it comes to putting ideas to work throughout the broader society.

Rather than focusing on pragmatism as a particular process or method, perhaps it is more useful to approach rhetorical pragmatism as an attitude. What does this attitude entail? As I approach it, rhetorical pragmatism remains attentive to the everyday lives and the lived experiences of those living in a shared society, which is especially important when rendering legal judgments. It shifts the focus toward the impact and consequences of ideas instead of merely describing them. It resists the demand for certainty and prioritizes useful, malleable ideas in order to confront novel situations as effectively as possible. It looks at the humanistic process of judgment and the function such judgment plays in a healthy social democracy. Perhaps most importantly, it is concerned, not just with what is, but with what can be.

Danisch (2015) offers another way of categorizing pragmatists that helps illustrate this view. He divides them into two broad groups: the secular and the orthodox: “Secular pragmatists are not wedded to philosophical questions and problems but instead seek to find ways of using philosophical insight in the service of building a social democracy. Orthodox pragmatists articulate and explain pragmatism within the confines of traditional Philosophy Departments and minimize or ignore questions about social democracy (or treat such questions with high degrees of abstraction)” (xxvi). The two groups may share an interest in organizing and articulating questions and providing robust responses, but secular pragmatists see this as a prelude to their real goal of implementing their ideas such that our social democracy improves. Thus, secular pragmatism requires rhetoric if it is to flourish. Danisch includes Holmes as a representative example of the secular position, and it is not difficult to see why. Not only did he generate novel responses to legal issues, but his judicial role necessitated him to put these ideas into action.

Notably, in Pragmatism, Democracy, and the Necessity of Rhetoric (2007), Danisch devotes an entire chapter to Holmes’s pragmatism. Examining what he describes as “the foundation for a sophistic legal philosophy” (92), he links Holmes to the “intellectual commitments of pragmatist thought” by focusing on the role that experience and power play in the act of interpretation and articulation of judgment (93). As with most rhetorical scholarship on Holmes, attention is given to his Supreme Court decisions, particularly those dealing with the First Amendment, while ignoring the vast corpus of his theoretical contributions. While rhetoric scholars tend to pay little heed to “The Path of the Law,” that is not to say that it has not received rhetorical treatment. Legal studies scholars have published a handful of works that focus on the rhetoric in the essay, but these works highlight the instrumental rhetorical choices in the work rather than their theoretical underpinnings. Schwarz (1985) offers a systematic analysis of the role of enthymeme in the text and draws on the stalwarts of rhetorical criticism, including Aristotle and Edwin Black. Others, including Grey (1997) and Goldberg (1997), eschew the scholarship on rhetorical method while still focusing on Holmes’s rhetorical style. Moreover, these rhetorical analyses ignore the role that pragmatism plays therein. To fill that void and complement these works, I turn to “The Path of the Law” as the theoretical groundwork that would come to guide Holmes’s future decisions. Following Danisch’s attention to dissoi logoi, especially in Holmes’s legal thinking (2007, 98), I focus on three primary tensions in jurisprudence—legality and morality, past and future, theory and practice—arguing that these tensions draw to the fore the pragmatic-rhetorical themes that underscore good judgment.

Legality and Morality

One of the most commented-on aspects of “The Path of the Law” is the wedge Holmes appears to drive between legality and morality. A skeptic through and through, he fears the metaphysical baggage that goes along with moral claims, especially when invoked in a legal context. According to him, morality reflects an agent’s internal consciousness, not necessarily his or her external actions (1992c, 165). If the law is simply a social construction embodying the power of the state, then its concern should be with the latter, not the former. At one point, Holmes remarks that he “[doubts] whether it would not be a gain if every word of moral significance could be banished from the law altogether” and that, while “we should lose the fossil records of a good deal of history and the majesty got from ethical associations, . . . by ridding ourselves of an unnecessary confusion we should gain very much in the clearness of thought” (166), suggesting that a legal theory absent moral claims is the best means to achieve the clarity he feels necessary for contemporary jurisprudence.

Consequently, Holmes proposes the “bad man theory” of law, which has become one of the more notorious and confusing aspects of “The Path of the Law.” He says of the bad man: “A man who cares nothing for an ethical rule which is believed and practiced by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can” (1992c, 161). Dominated by self-interest, yet possessing enough foresight and judgment to acknowledge the potential retributions his actions may elicit, the bad man seeks to maximize personal benefit within the confines of a legal system. It is from this perspective, Holmes argues, that law must be examined and created: “If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vague sanctions of conscience” (162).

Legal scholars have jumped on this approach, both defending it and deriding it. Luban (2000), for instance, laments the use of the bad man in “The Path of the Law,” claiming that it sets up a “rhetorical stick figure” (42) and creates more confusion than clarity (44). Others feel that the bad man was incorporated for rhetorical “shock value” (Perry 2000, 158) and is Hobbesian in nature. The apparent ambivalence to ethical theory in the essay is of particular concern for Martha Nussbaum (2000), who argues that an ethic should always be at the root of legal theory and practice. She claims: “[B]y turning to theory, which gives us the point and purpose of rules, we learn when we diverge from them. . . . [D]ivergence from a rule without point and purpose is itself obtuse” (50). She goes on to argue that having an abstract yet systematic theoretical moral grounding in law would offer a guiding light for society, fostering public debate and understanding and, thus, producing moral health and stability. Those critical of the bad man theory maintain that the approach inadequately reflects the nature of human societies and the basic aspirations of a just community, that Holmes has eliminated morality from the concept of justice in the law because it has baggage.

Many others, however, have supported Holmes’s argument, claiming that those opposed to it have misconstrued the fundamental tenets it proposes. For example, responding to Nussbaum, Dan Kahan (2000) argues that basic intuition is a better guide for moral action than theory. He claims that an ethical theory can lead to destructive moral norms just as much as an amoral legal approach can. Just because a theory, moral or legal, prescribes specific actions and attitudes because of an ethical rooting does not mean people will conform (90). Consider the popular moral theories of Kant and Mill. Even those who subscribe to them do not follow them absolutely. Wells (2000) elaborates on this notion: “And, if we cannot count all good things on a single casuistic scale, then determining right conduct cannot be a question of maximization. The irreducible fact is that each person has her own ideals and her own feelings about what constitutes an ethical life. And, since these feelings are part of the empirical world, they are entitled to respect; they cannot be trumped by the philosopher’s own feelings about what is worth doing and what is not” (216). As a hard-hearted skeptic, Holmes is unwilling to subscribe fully to one moral paradigm over another.

However, Holmes’s approach never negates the presence or role of morality in legal practice and theory. As the legal scholar Mark DeWolfe Howe (1951) notes, his skepticism led him to believe that the law is derived from “the moral judgment of the community” (541). Frederic Kellogg argues that those claiming Holmes had strictly separated law and morals are ignoring his earlier writings (Kellogg 2004, 562), suggesting, instead, that his goal was to ensure that there was not any confusion between law and morals, not to prove that the latter did not exist or were not necessary (Kellogg 1987, 100). In “The Path of the Law,” and in his thoughts on jurisprudence in general, Holmes begins with the belief that law and justice are quite different. However, in the realm of law, he asks how we can create a better society and, at the very least, foster a place for justice to exist, if not flourish. Describing the relationship between law and morals, he fears an a priori approach to morality that dictates judgments rather than serving as one contributing factor, among many, in the legal decision-making process. Such wariness is echoed by William James in “The Moral Philosopher and the Moral Life” (1891): “The main purpose of this paper is to show that there is no such thing possible as an ethical philosophy dogmatically made up in advance” (330). Like so many other pragmatists, Holmes wants to know the usefulness of morality in responding to legal problems.

Holmes articulates the presence of morality in law after previously deriding it: “The law is the witness and external deposit of our moral life. Its history is the history of moral development of the race. The practice of it, in spite of popular jests, tends to make good citizens and good men. When I emphasize the difference between law and morals I do so with reference to a single end, that of learning and understanding the law” (1992c, 161). Thus, law treads the line between the moral and the amoral realms. Because of his skepticism and adherence to a quasi-harm principle, Holmes would instead construct a legal theory that did not assume an absolutist position as a way for society to evolve yet still retained the instantiated moral norms of his general legal theory. In essence, he provides a place for the debate among community members to thrive without forcing his personal moral perspective on others.

A focus on community and its relationship to experience in crafting judgment is a significant pragmatic thread running through “The Path of the Law” and guiding Holmes’s judicial career. For example, Louis Menand (2001) describes his conception of experience as “not individual and internal but collective and consensual . . . social, not psychological” (343). While judges may be the tip of the pen in that they represent the culmination of legal judgment at the moment a decision is rendered, their judgments are not the product of jurisprudence in a vacuum. Good judgment acknowledges that there may be tension between the moral worldview of the judge and that of the broader community he or she is serving. Moral experience and legal experience are the purview not only of the reigning judge but also of “a person who is neither particularly prudent nor particularly imprudent, an ‘average member of the community’—in other words, a jury” (Menand 2001, 345). Holmes recognizes that morality is an unavoidable component of law and calls on judges to temper their positions in public argument.

In this way, Holmes closely aligns with one of the dominant themes of pragmatisms old and new: community. Characterizing the role of community in legal pragmatism, Sullivan (2007) stresses the “community of inquiry” surrounding law and posits it as a construction of the community, not an abstract, detached force external to human norms. The attention to community and the role of collective experience in direct legal judgment balances the moral and legal impulses acting on judicial decisions and illustrates the connection to the sophistic tradition Danisch outlines, namely, Protagoras’s claim that “man is the measure of all things” (2007, 9). Because a community is not a monolithic body and tensions are omnipresent, one must navigate a pluralistic community with rhetorical sensitivity (Craig 2016).

Addressing the community of experience that shapes legal culture makes room for public opinion to affect the law, as Holmes readily acknowledges: “We do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind” (1992c, 167). He believes strongly in the open marketplace, and that open marketplace goes well beyond the free marketplace of ideas that so many scholars analyze. He assumes that the “public good” will control others adequately enough. In addition, he held for the possibility of habituation in moral action, as did both Aristotle and Dewey. In an 1885 speech delivered to the Suffolk Bar Association titled “The Law,” Holmes (1992a) praised the moral dimension of legal education, stating: “I have said that the best part of our education is moral. It is the crowning glory of this Law School that it has kindled in many a heart an inextinguishable fire” (224).

Ultimately, Holmes was not advocating for the complete removal of morality from the law, nor was he suggesting a universal theory. Instead, he utilized the bad man theory to illustrate the need for the law to outline what can and cannot be done in a particular society, a prescription that will be enforced through the power of the state. This perspective is deeply vested in pragmatic thought and allows for ethical debates in the community. Commenting on “The Path of the Law,” Wells (2000) makes this distinction evident: “Law is distinct from morality in two ways: first, it can be forcibly brought to bear on individual conduct; second, it flows not from private feeling but from public debate and community experience” (221). Many of the most prominent public controversies concerning the law—abortion and contraception, same-sex marriage, the scope of religious liberty, the Voting Rights Act, immigration, and many more—contain a moral core that cannot be ignored or abandoned, especially as citizens, lobbyists, and judges sitting at all levels of the court attempt to inject moral opinions into the law.

Holmes’s treatment of morality speaks to the concepts of pluralism and fallibilism prominent in pragmatic philosophy. Pluralism and fallibilism are distinct philosophical perspectives, but they share a meaningful connection with pragmatism. Pluralists eschew the desire for a single, unified theory, instead favoring a position that acknowledges the usefulness of a multitude of perspectives. Rorty often chastises analytic philosophy for requiring everything to “hang together,” a position akin to that of proponents of the unified theory in physics. William James’s notion of the “cash value” of an idea illustrates pluralism well: what matters is the usefulness and impact of an idea, not its intellectual heritage or alliance. Cass Sunstein’s jurisprudence serves as an apt example of contemporary pluralism. In A Constitution of Many Minds (2009), he argues for the importance of deliberation among the broad array of legal philosophies if we are to come to the healthiest constitutional interpretation rather than following a single perspective all the way. Through the clash of ideas, moral or otherwise, the better idea emerges, exhibiting what Danisch describes as Holmes’s “commitment to the inevitability of conflict” (2007, 92).

Navigating the tensions between morality and legality, Holmes stresses the importance of communal experience even as he understands that it will never be unanimous. With a fallibilist’s skepticism of the “right” answer and a pluralist’s appreciation of diverse, even contrary arguments so long as they prove useful, he does not neglect moral concerns when they intersect with legal concerns, nor does he accede to them. Rather, his legal philosophy negotiates the moral and legal impulses in legal issues by treating them as “tools used to respond to specific situations” (Danisch 2007, 4). In this way, his jurisprudence is guided by a rhetorical mindfulness that closely aligns with sophistic practical wisdom. Such wisdom must, however, also recognize the common law tradition’s investment in past legal decisions while also acknowledging how legal decisions, especially those issued by the Supreme Court, direct future action.

Past and Future

One of the necessary tenets of a legal system is that it provide a structure defining what is illegal and merits punishment. Unlike abstract notions of justice, which may act as a guide for legal and political theorists but are difficult to put into practice, the law should, Holmes believed, create knowable expectations of potential government reactions. Early in his essay, he explicitly defines law as such: “People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.” Just as the legislature produces laws restricting citizens’ actions or places various obligations on them, so must lawyers and judges interpret how these laws will be enacted in the courtroom: “Far the most important and pretty nearly the whole meaning of every new effort of legal thought is to make these prophecies more precise, and to generalize them into a thoroughly connected system” (1992c, 160). While legal doctrine cannot cover everything as novel cases frequently arise, nonetheless, there should be a strong sense of what to expect from the legal system, or it could fall prey to capricious judgments made on a whim. Holmes further elaborates on the court’s role: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law” (163). Interestingly, he uses the word prophecy to describe what he sees as the focus of law, suggesting a concern for the future. His belief in law as prophecy is not an ephemeral idea for the momentary inspiration of his Boston audience. In a letter to Frederick Pollock several years later, he restates the connection, suggesting he is just “systematizing some of [his] old chestnuts” (Holmes 1992d, 21).

Holmes’s reliance on prediction and prophecy is in stark contrast to the influence of history’s role in the law. A legal historian himself, in “The Path of the Law” (and elsewhere) Holmes readily acknowledges the influence historic events and legal precedents have had on contemporary law: “The rational study of law is still to a large extent the study of history. History must be a part of the study, because without it we cannot know the precise scope of rules which it is our business to know. It is a part of the rational study, because it is the first step toward an enlightened skepticism, that is, toward a deliberate reconsideration of the worth of those rules” (1992c, 170). The past, then, acts as a guiding light for present and future decisions. It does not and should not dictate what is to happen in any particular case, but it can explain why the law is the way that it is.

Holmes’s ideas also have historical and contemporary links. For instance, in the Rhetoric, Aristotle (1991) discusses the need to stray from written law when it is inadequate for the situation since what was dictated in the past is not necessarily what is appropriate for the future (1375a–1375b). Calling the jury the “umpire of justice,” he acknowledges the possibility that the law may be unsuited to the context of the situation at hand and the ability of a decision to extend, if not change, precedent (1376b). Similarly, in Heracles’ Bow (1985), James Boyd White argues that rules are not law (53). He suggests that, as compelling and important as it may be, simply knowing the historical trajectory of law does not constitute what the law means and how it applies to the current situation.

In the juxtaposition of the vital role that past decisions play in the common law tradition and the prophetic view of what judges will make of a particular case (and how that decision will carry forward), two themes emerge. The first is the epistemic anthropocentrism undergirding legal judgment, an important, shared touchstone for pragmatism and rhetoric. Danisch asserts: “Human interests (taken either collectively or individually) become the measure of what constitutes knowledge” (2007, 6). Akin to Protagoras’s famous creed, “Man is the measure of all things,” pragmatists and rhetoricians alike view knowledge, not as a thing to be found, but as something that is deemed so by a community of people and is inseparably linked to the complexity and fallibility of human experience. Rorty (1979) reinforces this idea in the tradition of philosophical pragmatism throughout Philosophy and the Mirror of Nature, arguing that philosophy has been consumed, misguidedly, with the pursuit of objective truth, striving for a language to reflect the thing-in-itself. Drawing on Stanley Fish, Danisch argues that the denial of first principles embodies the antifoundationalism that resonates throughout pragmatism, especially legal pragmatism, which Fish describes as inherently rhetorical: “We come to beliefs by virtue of our situations and our histories in relation to which certain routes of evidence and persuasion are already part of the structure of our understandings” (2007, 148). And, while we utilize past experience and the contemporary rhetorical situation to guide judgment, that judgment is always oriented toward the impact it will carry forward in perpetuity.

This point is especially salient throughout “The Path of the Law.” Past decisions—particularly those issued by the Supreme Court—reflect the legal system’s prevailing will at the time. It is easy to look back and critique past judgments, not only because current norms might have shifted significantly, but also because the legal system has long been (and continues to be) exclusionary. Nevertheless, these are also products of their time. Rather than following them absolutely or disregarding them entirely, Holmes encourages the judiciary to mine the past for its usefulness. Laws are made by people to be used by people, not ordained in a preestablished order, as natural law theorists hold. If a lawyer acknowledges this point, he or she is more likely to be an effective advocate. Holmes’s idea of prophecy is simply the prediction of what the courts will do. It is not, however, an “anything goes” relativism, which Danisch derides as a “straw-man argument that ignores the actual operations of rhetoric that ground our beliefs on local and provisionary truths” (2007, 148). Legal decisions are tethered to a number of rhetorical constraints—including the Constitution, statutes, precedent, and public opinion—that restrain relativistic impulses. Advocates use these to construct their arguments, but there is no guarantee that a particular prophecy will come to pass. Following the pragmatism of Peirce, the goal is a more refined probability.

Prophecy also speaks to the rhetorical potential of the possible, a central concept in John Poulakos’s (1983) characterization of sophistic rhetoric. Understood through the lens of Holmes’s legal pragmatism in “The Path of the Law,” the possible manifests in two key ways. First, it helps refine the advocate’s scope of arguments. Consider the Supreme Court. The composition of the Court matters greatly, even if the justices profess to be objective. Knowing that he or she can expect a range of positions that will be accepted or rejected, the advocate is better positioned to read the prophecy of the justices’ judgment more accurately. In many ways, Holmes articulates what Black (1970) would later describe as the “second persona,” the audience implied by an argument: “It is through moral judgments that we sort out our past, that we coax the networks and the continuities out of what has come before, that we disclose the precursive patterns that may in turn present themselves to us as potentialities, and thus extend our very freedom” (109). This is what Holmes has in mind with his idea of prophecy and how one can predict the probability of what a judge or a judicial panel will decide. Certainty is never a guarantee, but one is more likely to be effective when considering the patterns that have led up to the current moment.

The lack of certainty also speaks to the second way in which Holmes’s prophecy intersects with Poulakos’s (1983) conception of the possible. Namely, the rhetor can create the possible, thus shaping the prophecy he or she hopes to see fulfilled. “By exploiting people’s proclivity to perceive themselves in the future and their readiness to thrust themselves into unknown regions,” writes Poulakos, “the rhetorician tells them what they could be, brings out in them futuristic versions of themselves, and sets before them goals and the directions which lead to those goals. All this he does by creating and presenting to them that which has the potential to be, but is not” (43). Here is one of the ways in which law changes and evolves. Neither the law nor the society it regulates is static. The two are in a symbiotic relationship of change and evolution, affecting and reacting to one another. One can see this in Justice Anthony Kennedy’s Supreme Court opinions on LGBTQ rights. While his decisions illustrate the pronouncement of various protections, culminating in Obergefell v. Hodges (2015) and the federal legalization of same-sex marriage, activists’ and advocates’ decades-long work made that possibility a reality.

In addition to the central role of community, the tension between past and present in “The Path of the Law” also underscores the pragmatic notion of meliorism. An important part of James’s and Dewey’s philosophical worldviews, meliorism is the belief in progress, the idea that knowledge can build on itself and, as a result, society can improve. Addressing meliorism in the work of Dewey, Stroud (2011) argues that it involves attention to the “ends, means, and specifics of change” (140). In pragmatism, meliorism stresses the practical application of ideas and knowledge to increase their added value in resolving practical issues and concerns. In the scope of legal studies, this is reflected in the common law tradition, which, unlike a civil law system, continually builds on itself through the process of judicial review. Holmes acknowledges the power and impact that past decisions must have while simultaneously accepting that we cannot be guided by the dead hand of the past. As novel cases reach the court, the judiciary is responsible for remaining tethered to precedent while still moving toward a better, more just legal system.

Contemporary critics decry this as “judicial activism”—judges breaking from the confines of their judicial role in order to “legislate from the bench.” Holmes, however, views this as a necessary component of the legal system, stressing how judges cannot pretend they are doing otherwise. “Law is the business to which my life is devoted,” he writes, “and I should show less than devotion if I did not do what in me lies to improve it, and, when I perceive what seems to me the ideal of its future, if I hesitated to point it out and press toward it with all my heart” (1992b, 194). Jurists are not atemporal figures set on discovering and articulating the Platonic ideal of justice. They are influenced by and embedded in the history and culture of the society they are judging, which is not stagnant but, rather, a vibrant, ever-changing set of relations that is never final. Their goal is to improve and refine the legal system, akin to that of Peirce’s pragmatic conception of science. As the law continuously re-creates itself in the face of unexpected issues, changing sociopolitical dynamics, the evolution of cultural norms, and the expanding scope of legal knowledge, it must remain tethered to the past while always keeping an eye toward the future it is creating.

If we are to accept Holmes’s claims regarding the role of the past in relation to present decisions and future ramifications, rhetoric, in its most general sense, has a vast space in which to flourish on all levels of law. Clearly, lawyers will always be engaged in rhetoric as they advocate for a client. In addition, the pragmatic approach advanced by Holmes points to judicial decisions and jurisprudence as vibrant rhetorical sites. If judges are not merely interpreting precedent, statutes, and other legal documents systematically, then they are engaged in meaning making, a process based on an amalgamation of said documents and the contemporary contextual intricacies surrounding a case, all of which need keen arguments to gain judicial support.

Theory and Practice

As we see Holmes’s ideas develop throughout “The Path of the Law” and his long career studying, analyzing, interpreting, and creating jurisprudence, an interesting juxtaposition of the practice of law and theoretical approaches to law emerges. Holmes famously begins “The Path of the Law” with a call to the practical dimension as the main focus of legal analysis: “When we study law we are not studying a mystery but a well known profession. We are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court” (1992c, 160). He attempts to avoid the law-justice binary by purporting that his concern is solely with the former. Law is, in this context, focused on an individual and his or her representation at trial. At one point in his speech, Holmes claims that law is, not simply the realm of theory, “but a part of the lives of men” (173). Again, he is referencing the practical importance of law, that it should be concerned with how it affects citizens’ lives and functions as a regulated machine.

Such an interpretation appears to be the beginning of Posner’s “law and economics” movement. As a longtime admirer of Holmes, Posner derives some of his legal calculus from “The Path of the Law,” considering Holmes references law as “business with well understood limits, a body of dogma enclosed within definite lines” (1992c, 161). One can see this practical demand at its most analytic when Holmes states: “The training of lawyers is a training in logic. The processes of analogy, discrimination, and deduction are those in which they are most at home. The language of judicial decisions is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose which is in every human mind” (167). Posner’s systematic, economic approach to law has its roots in interpreting the law as an atheoretical profession, the simple addition and subtraction of concrete legal objects.

However, to view Holmes in the same light ignores the philosopher in him. As he nears the end of his speech, he reflects on his role in and passion for law, noting: “Theory is my subject, not practical details. . . . Theory is the most important part of the dogma of the law, as the architect is the most important man who takes part in the building of the house” (1992c, 176). Juxtaposing his remarks against his earlier statements on the practicality and systematic teaching of law, he stresses the importance of legal theory as the guiding light in the practice of law. At one point, he calls the approach to law as logic a “fallacy” (166), echoing the famous line from The Common Law in which he claims: “The life of the law has not been logic: it has been experience” (Holmes 1881, 1). Furthermore, he implores his audience to read the great works of jurisprudence and philosophy both to know and to understand the law better, which he suggests ought to be their ultimate goal (1992c, 177).

Focusing on “the command of ideas” required by legal practitioners, Holmes ends his speech with a quixotic conclusion: “An intellect great enough to win the prize needs other food beside success. The remoter and more general aspects of the law are those which give it universal interest. It is through them that you not only become a great master of your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law” (1992c, 170). This often-cited passage, displaying as it does the typical Holmes flair, may be due to the audience of law students in attendance. Yet, in a letter to Patrick Sheehan, he uses similar language, saying how he wants to put a “touch of the infinite into law” (Holmes 1992f, 29).

How is one to reconcile such contradictions? Does Holmes stress practice or theory as more important? Legal theorists have attempted to place him entirely in one camp or the other, failing to recognize the dialogue and negotiation that takes place between the two. Considering his pragmatic approach to law, Holmes wants to strike a balance between these two impulses by extrapolating theory from the practice and practicalities of law. His view of theory urges legal scholars and philosophers to construct theory with an eye to the banal and everyday instances of law as it affects people’s lives. After his famous statement regarding the importance of training lawyers in logic, he goes on to argue: “[C]ertainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding” (1992c, 167). This is precisely the domain of rhetoric, as he blends the abstract qualities of theory with the realistic qualities of practice. Because there is a “judgment,” there is also an inherent interpretation of meaning. Because the law is neither a mathematical absolute nor a compilation of concrete maxims, judges like Holmes are constructing and proclaiming meaning, allowing rhetoric a place to thrive as advocates attempt to sway their interpretations and they themselves must justify their decisions. The legacy of such decisions is intimately connected to the rhetorical qualities and salience of the arguments used to defend them.

Holmes goes on to state that there are no self-evident truths in law, thus previewing some of his later First Amendment cases. In his dissent in Abrams v. United States (1919), he challenges originalist approaches to jurisprudence: “[Our Constitution] is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge” (630). Viewing the Constitution as a living document reflects his approach to legal theory and links it to Kenneth Burke’s ideas surrounding situations and strategies. In The Philosophy of Literary Form, Burke (1973) reflects on the specific, contextual intricacies of situations juxtaposed against the more transcendental, eternal strategies (109). And he discusses the US Constitution as such a historic document, but, rather than viewing it as the standard by which everything must be judged, he sees it as a general guide for future action. Strategies, much like the theoretical distinction for Holmes, possess “universal relevance” but are not themselves concrete. Thus, one cannot neglect the uniqueness of the situation to focus solely on abstract strategies. Likewise, general strategies need to be in place in order to assess and interact with situations.

Perhaps the clearest reflection of this idea comes from a letter Holmes wrote to his friend Lewis Einstein. In it, he mentions having recently read Aristotle’s Nicomachean Ethics, praising Aristotle as the “eternal, universal, wise, good man.” He continues: “He has the ideals of altruism, and yet understands that life is painting a picture not doing a sum, that specific cases can’t be decided by general rules, and that everything is a question of degree” (1992e, 58). If rhetoric is required when absolute certainty is unavailable, Holmes’s pragmatism, balancing theory and practice, appears quite similar. Rather than solely embodying a theorist’s role, musing about an idealized world, or lacking direction by being concerned only with the present context, we must, Holmes argues, incorporate both.

Holmes’s negotiation between theory and practice underscores two interconnected ideas that connect pragmatism and rhetoric as articulated by Danisch. The first is the role that uncertainty and contingency play in judgment. Most directly connected with Holmes’s attention to the practice of law, uncertainty and contingency highlight the various ways in which cases reflect a unique set of circumstances. Indeed, they may share many similarities when it comes to the law, but each brings with it a set of persons and contextual nuances that introduce distinct problems and possibilities. This is most evident in the cases that make their way to the Supreme Court, which must decide novel cases when the lower courts do not have a definite sense of where the law stands. Supreme Court jurists, a group Holmes would join soon after “The Path of the Law” appeared, must navigate through the vague language of the Constitution as it applies to contemporary cases from a world the authors of the Constitution could not predict in order to issue a judgment that will carry forward indefinitely. In its capacity to work through such moments, this endeavor is, Danisch argues, essentially rhetorical: “Multiple, idiosyncratic perspectives derived from human experience and the particularities of new situations create contingent circumstances subject to change. Thus, rhetoric is formed in response to uncertainty and ambiguity” (2007, 12). The practice of law attempts to work through the uncertainties and ambiguities that plague difficult cases, situations in which the Constitution gives little direction as to how cases should be decided and judges must use their resources, however incomplete, to issue a sound judgment.

The second pragmatic-rhetorical idea present in the tension between legal theory and practice that Holmes addresses attempts to give some direction when traditional resources like the Constitution leave a judge wanting—namely, the ability of legal theory to provide “a set of methods or tools for use by individuals and communities” (Danisch 2007, 7). At its best, legal theory offers a grounding and a sense of direction that can help mitigate the uncertainties and ambiguities present in difficult cases. Each distinct theory will focus on the set of criteria it deems important while downplaying the significance of others, such as textual originalism’s attention to history and an understanding of the text when it was written, whereas critical legal studies focuses on the power imbalances built into the legal system and the need to extricate them from legal judgment. Despite the many differences between legal theories, they all provide a set of grounding principles to which the judge returns when confronted with a challenging case that contains uncertainties to which the unique contingencies of the situation give rise. While this does not (or, rather, should not) lead to absolute certainty when it comes to a legal decision, it nonetheless serves as a “method or tool” for grounding judgment that can apply to any case. It also affords critics a useful tool with which to assess the felicity of a judgment: to what extent do judges hold to their guiding legal philosophy when applying it to concrete cases? When fissures emerge between the two, one may inquire as to the reason why.

Throughout “The Path of the Law,” and later in his role as a Supreme Court justice, Holmes consistently balances the practical nuances of individual cases and the theoretical worldview rooting his decisions. In many ways, he reflects a sophistic legal theory in that he is attuned to both. Defining rhetoric as “the art which seeks to capture in opportune moments that which is appropriate and attempts to suggest that which is possible,” Poulakos (1983) stresses the sophistic concern with “probability” and the necessity of “flexibility” when dealing with contingent issues (36–37). He notes: “Aware of the human limitations in the acquisition of knowledge, [the sophists] sought to ground the abstract notions of their predecessors in the actuality of everydayness” (36). Much like the sophists, Holmes is mindful of the uncertainties that are an unavoidable aspect of legal adjudication and the pragmatic importance of the contingency that influences both the situations that brought a case to the court and the legal decision issued in response.

Conclusion: Phronesis as Creative Intelligence in Pragmatic Jurisprudence

Holmes’s speech-turned-essay should not occupy the dustbin of history as a relic of a bygone era of legal theory. The same forces Holmes resisted are present today, although under a different guise. Whereas “The Path of the Law” responds to legal positivism, which no longer holds the esteemed position in legal theory it once did, contemporary jurisprudence remains highly influenced by similar aspirations toward a seemingly neutral, objective interpretation of the law. Two particular approaches dominate the legal landscape: textual originalism and law and economics. The former, championed by Justice Antonin Scalia and many other judges and legal thinkers, argues that the key to judgment lies in the language of law at the time a bill or statute was passed. To understand the Second Amendment, we must first understand what phrases like keep and bear arms and well-regulated militia meant when they were written. In so doing, the judge remains a detached historian, decoding the linguistic clues that will inevitably unlock the correct decision. The latter, law and economics, attempts detachment but employs economic formulas rather than historic objectivity. Although Posner positions himself as a modern-day legal pragmatist and cites Holmes as his intellectual hero, the economic approach to adjudication that he espouses fails to capture the various pragmatic themes Holmes outlines in “The Path of the Law.” These theories strive for objectivity but, in doing so, sacrifice some of the aspects of law and its pragmatic orientation Holmes found invaluable. In “The Path of the Law,” Holmes unites philosophical pragmatism and the rhetorical tradition, a union that comes to fruition when considering the relationship between creative intelligence and practical wisdom.

Much like the pragmatic themes addressed throughout this article, the idea of creative intelligence undergirds pragmatism, particularly the secular variety. Briefly, creative intelligence concerns the importance of a critical methodology set to solve problems rather than simply describe and categorize. In “The Need for a Recovery of Philosophy,” Dewey (1981) warns that “philosophy in America will be lost between chewing a historic cud long since reduced to woody fiber, or an apologetics for lost causes (lost to natural science), or a scholastic, schematic formalism, unless it can somehow bring to consciousness America’s own needs and its own implicit principle of successful action” (96). He saw philosophy becoming increasingly estranged from lived experience and weakened by self-imposed orthodoxy. Too much attention is paid to creating a philosophical system rather than to how that system could confront society’s real problems. In response, Dewey argued that philosophy offers “vision, imagination, [and] reflection” as a way to confront “a complicated and perverse world” (95): “Intelligence as intelligence is inherently forward-looking; only by ignoring its primary function does it become a mere means for an end already given. . . . A pragmatic intelligence is a creative intelligence, not a routine mechanic” (94). The last sentence is particularly insightful when reflecting on Holmes’s essay. When confronting difficult cases, a mechanical approach will not suffice, whether that approach is legal positivism, legal formalism, textual originalism, or law and economics. These approaches produce conclusions, to be sure, but they often fail to recognize and address the many tensions at play. Rather than ignoring them, we must, Holmes argued, confront them. Morality cannot be written out of the law, nor should it control all decisions. Precedent must not be ignored, but it cannot be heeded indefinitely, and theory must help guide practice yet not exclude contextual nuances and the contingencies that give each case its unique character.

Like the many themes addressed throughout this article, the creative intelligence of pragmatism shares an intimate connection with the rhetorical tradition, particularly the idea of practical wisdom (or phronesis). A key element of sophistic rhetoric, practical wisdom acknowledges the need to pass judgment even when knowledge is incomplete and imperfect. However, such judgments are not inherently wrong or weak as necessity demands they must be made in a timely fashion. Instead, practical wisdom in legal judgment utilizes creative intelligence to resolve the case at hand. One is not beholden to a strict methodology because it cannot foresee the unique challenges that inevitably emerge. Pragmatic judges draw from whatever resources will help them work through the legal problems they confront, never forgetting the scope of their power to affect the lives of those involved in each case and the broader community. Despite the title, “The Path of the Law” does not offer the reader specific directions. The path is not one with a preordained route or destination. Good judgment shifts and evolves over time, and the pragmatic judge must adjust accordingly. At its best, a pragmatic-rhetorical jurisprudence acknowledges and gives voice to the tensions present in a case and how a decision hopes to resolve that tension, something reinforced by White in Heracles’ Bow (1985). Law is not just a response to particular situations but a creative force in society. If we abandon the expectation of complete objectivity, what remains is the “living material” that shapes and is shaped by the community law is meant to help regulate (126, 225). Following Rorty (1989), we should consider how “speaking differently” can usher in new ideas and cultural change rather than remaining beholden to theories and methodologies that reproduce the same problems they are meant to resolve (7).

But why return to Holmes, of all figures, and “The Path of the Law,” of all works? Why now? With public trust in the judiciary continuing to decline and ideological divides permeating the legal system, Holmes offers an alternative perspective that encourages creative intelligence in the face of novel issues. Rather than advancing a model of judgment that offers a method of getting to the right decision—which he would consider to be a fool’s errand when it comes to complex, nuanced cases—he accepts the fallibility of the system and, instead, focuses on making the better decision. Critics may decry this position, calling on the well-worn adage, “We are a government of laws and not of men,” but the pragmatic adjudication of Holmes would make one small but all-important adjustment: “We are a government of laws and of men.” Laws cannot be detached from the people who create them, enforce them, interpret them, and change them. Such detached, objective reasoning sounds lovely in theory, but it is impossible in practice. Holmes’s jurisprudence acknowledges the messiness of legal judgment and does not pretend that decisions come down to an archaic definition or economic calculation. In Gompers v. United States (1914), he argues: “But the provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic, living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth” (605). He warns of the dangers of rigidity in a jurisprudence that is dictated by process but unconcerned with the resulting consequences. Not only does he subscribe to many of the traditional pragmatic tenets articulated throughout this article, but he also puts them into practice so as to maintain and improve our social democracy. His jurisprudence embraces the secular aspect of pragmatism, which is inescapably rhetorical.

If, following White (1983), we are constituted as a public by our arguments over the law, then we require a jurisprudence that is oriented toward cultivating and maintaining a robust social democracy. While competing legal theories may have this as a secondary issue (if that), a rhetorically minded legal pragmatism places it front and center. Throughout “The Path of the Law,” Holmes illustrates the complexity of our legal culture and the various competing, sometimes contradictory demands it places before the courts. Instead of flattening complex legal issues, reshaping them to fit a formulaic jurisprudence, he encourages us to explore them and work toward a resolution that works through the various tensions at play rather than dismissing them. It is important to note that this approach does not foreclose the arguments from textual originalism, law and economics, or any other perspective. They are all part of the ongoing legal discourse, just not the whole of it. If these arguments have a “cash value,” to borrow from William James, then let them into the conversation, but they are not the only way of looking at things. Holmes realizes the imperative to make a timely decision, but such a decision is always a work in progress, just as the judiciary is a work in progress. His brand of legal pragmatism not only confronts what is but also tends to what can be.

More immediately, Holmes’s pragmatic jurisprudence offers a palliative for some of the ongoing controversies in legal theory, redirecting attention toward the impact of legal judgment and its role in shaping our democracy. For example, the idea of judicial activism has long plagued arguments about legal judgment. It suggests that some judges are purely political agents set on using their powerful positions to force their ideologies on the communities they serve. Conservatives cite Roe v. Wade (1973) and Obergefell v. Hodges (2015) as evidence of liberal judicial activism, whereas liberals cite Bush v. Gore (2000) and Citizens United v. FEC (2010) as evidence of conservative activism. These arguments center on the idea that one side abides by the law and the other runs roughshod over it. Rather than resolving the dispute, the rhetorical pragmatist asks, To what end? After all, Brown v. Board of Education (1954), arguably the most esteemed decision in the Supreme Court’s storied history, is the product of judicial activism, and precious few in legal studies would claim it to be wrong. As Holmes illustrates throughout “The Path of the Law,” there are always tensions at play, and the role of the judge or justice is to navigate those tensions with the hope of finding a meaningful resolution, not to pretend that they are irrelevant or do not exist. Moreover, law need not be a zero-sum game, and such resolutions are best guided by a shared commitment to a vibrant social democracy and imbued with creative intelligence.

In this article, I have argued that “The Path of the Law” serves as a critical point of origin for legal pragmatism. By confronting some of the most prominent tensions present in jurisprudence—morality and legality, past- and future-oriented judgment, and the relationship between theory and practice—Holmes exhibits the themes that continue to characterize philosophical pragmatism as they manifest in the unique world of law. Examining his essay through the lens of Danisch’s interpretation of pragmatism, I have also articulated the inseparable link between his jurisprudence and the rhetorical components that undergird it. Given the increased prominence of pseudo-objective legal theories, a return to Holmes’s ideas serves as a critical antidote.

Notes

Works Cited