Oliver Wendell Holmes Jr. is the use of calling Emerson a pragmatist: a brief and belated response to Stanley Cavell.

• Author: Mendenhall, Allen
• Position: Cardozo Law Review, vol. 18, p. 171, 1996

1. Emersonian Pragmatism II. Circles A. The Revisionary Relationship between Past and Present B. The Role of Individual Agency within the Ongoing Cultural Enterprise C. The Endlessness of Growth and Expansion III. Emerson's Influence on Holmes This essay investigates the relationship between Ralph Waldo Emerson and Oliver Wendell Holmes, Jr. in the context of the common law. Holmes's Emersonian writings, in particular his dissents, fall within the theoretical framework of agonism, which Harold Bloom refers to as a revisionary and Emersonian "program." (1) Agonism as a political and aesthetic theory maintains that sites of contestation can be productive rather than destructive; it suggests that confrontational relationships can be at once mutually offsetting and generative. Drawing from the Greek word for an athletic competition, agonism applied to rhetoric underscores the importance of mutuality to conflict. For example, writers struggling against other writers understand and admire, yet seek creatively to outdo and overcome, their competition. The common-law system substantiates this theory insofar as every case answers an anterior case and creates a succession of precedents marked by strong judges and justices struggling against their predecessors.

   Pluralism is an agonistic paradigm that enables a multiplicity of adversarial forces to interact and thereby to produce aesthetics through reciprocal opposition. Bloom uses the concept of agon to explain how and why strong writers and poets compete with their influential predecessors. Agonism, in Bloom's sense of the term, is an inventive, troping struggle and the source of emergent forms and orders. It is an ongoing, pragmatic, non-teleological struggle that does not culminate in an ideal end-state but that develops in relation and response to present settings and conditions. Furthermore, agonism passes down inherited forms, ideas, and language to subsequent generations much as the common law passes down inherited rules and practices. Thus, I submit that Emerson and Holmes were both pragmatic champions of descendent agonism, the former in the American literary tradition and the latter in the American common-law tradition that is distinct from its British precursor.

   To claim Emerson as the fountainhead for any form of pragmatism, let alone Holmes's, is divisive, so this essay begins in Part I by surveying the literature on the subject. In Part II, this essay follows James M. Albrecht's work on Emerson to suggest that Holmes's jurisprudence, as articulated in his vision of the common law, represents Emersonian pragmatics. Holmes accomplishes Emersonian pragmatics by employing and developing antagonisms, negotiating the competing dualities of monism and pluralism, and tapping into a literary and philosophical inheritance to creatively reenergize it. In so doing, this essay does not insist that Emerson is a pragmatist but that reading Emerson pragmatically helps to contextualize the jurisprudence of Holmes.

   Three features of Emerson's essay "Circles" correspond with Holmes's common-law jurisprudence: the belief in a revisionary relationship between the past and the present, the emphasis on individual agency shaped by ongoing cultural enterprises, and the speculations about the endlessness of growth and expansion. Finally, Part III describes the connection between Emerson and Holmes and proposes that Holmes instantiated an Emersonian agonism that reached out to future judicial audiences to advance the common-law system. This essay assumes that readers already possess a working familiarity with the distinctive features of

   Holmes's jurisprudence and of his general beliefs about the nature and function of the common law. (2) Nothing in this essay should be taken as agreement with Holmes's views.

   This essay also abides by Bloom's dictum that "[e]very word in a critic's vocabulary should swerve from inherited words." (3) Therefore, it expands upon a thesis already put forth by Francis J. Mellon, Jr.:

   [A] fundamental change in American aesthetic thought in the late 18th and early 19th centuries heralded a corresponding change in other intellectual disciplines, including law, in the late 19th and early 20th centuries; and ... Oliver Wendell Holmes, Jr., whose aesthetic beliefs had been strongly influenced by ... Emerson, was a leader in the change in the legal doctrine because he, sooner than most of his contemporaries, understood and accepted the aesthetic change. (4) I do not merely reformulate the established connection between Emerson and Holmes but instead revise it to adumbrate how Holmes is, to borrow a phrase from Bloom, one of the "pragmatists of agon [who] have been ... the Americans of Emerson's tradition," as well as how his dissents signal "the American religion of

   competitiveness." (5) What Emerson did for aesthetics and philosophy (and the philosophy of aesthetics) Holmes did for common-law theory and practice, which can be aesthetic and philosophical. Emerson's essay "Circles" exemplifies the agonistic model Holmes used for the common law; curious readers can find in Emerson's oeuvre similar parallels with common-law theory that would be repetitive to analyze when "Circles" alone is representative. Agonism explains Holmes's Emersonian dissents as vehicles for enacting a pragmatist variety of common-law theory and for facilitating growth in the legal system. By focusing on agonism in the context of Holmes's common-law theory, this essay answers a question formulated by Stanley Cavell: "What's the use of calling Emerson a pragmatist?" (6) One such use for those who are aware of the connection between Holmes and Emerson is a better understanding of Holmes's theories of the common law and an explanation for why Holmes dissented with memorable style.

1. EMERSONIAN PRAGMATISM

   Cavell's question has been recycled again and again with different answers, most recently in Albrecht's Reconstructing Individualism: The Pragmatic Tradition from Emerson to Ellison, the first chapter to which is titled, "What's the Use of Reading Emerson Pragmatically?" The question suggests there is something to gain or lose by labeling Emerson a pragmatist; the various answers to the question seem to be couched not in terms of what is to be gained or lost but in terms of whether it is fair or accurate to number Emerson among the pragmatists.

   To examine this question in light of Holmes is to learn to some degree what is to be gained or lost; for in Holmes the question becomes less a detached and theoretical academic exercise and more an engaged interaction with the binding legal precedents and governmental developments that have a felt and quantifiable impact on society. "Academic life is but half life," Holmes wrote to Justice Felix Frankfurter about his decision to leave Harvard to pursue the life of a jurist, "a withdrawal from the fight in order to utter smart things that cost you nothing except the thinking them from a cloister." (7) To apply these "smart things" to what he called the "[b]usiness in the world" was to put them to the test of practicality and to have at stake not only his personal reputation but also the beliefs on which his personal reputation was built. (8) Holmes's pragmatism stands, at least in part, for the proposition that the quotidian operations and interactions of the working public demonstrate in practice what use it is to choose to believe one theory rather than another. (9)

   Holmes, like Emerson, who was banned from speaking at Harvard for more than 20 years after delivering his Divinity School Address, fled orthodox religion and university life. Holmes claimed to have left his academic post because "the choice seemed to be between applying one's theories to practice and details or going into another field." (10) To ask what use it is to call Emerson a pragmatist in light of Holmes's emphasis on applied theory is all the more meaningful and important once it is shown that Emerson's influence on Holmes, and the law, is not limited to abstract cultural tendencies, about which we must speculate, but embedded in the complex regulatory apparatuses of the law that can be measured empirically. If Holmes is an Emersonian and his jurisprudence obtained to society through definite laws that controlled everyday human relations, then Holmes, more than anyone, reveals the practical answer to the vexed question of what use it is to call Emerson a pragmatist. Inasmuch as Hilary Putnam is correct that the central tenet of pragmatism has been the primacy of practice, (11) Holmes's judicial opinions and dissents, with their Emersonian aesthetics and ideas, are the most promising place to begin testing the thesis that Emerson was a pragmatist.

   At first blush it seems odd to call Emerson a pragmatist. His notion of self-reliance and faith in the integrity of personal impressions flies in the face of Peirce's consensus based methodology for ferretting out truth. Unlike Peirce, who thought knowledge was produced by interacting communities of scientific inquirers, (12) Emerson viewed society as having a corrupting and not a clarifying influence on individual thought. (13) Truth, for Emerson, preceded the social unit, whereas for Peirce it depended on the social unit.

   Moreover, Emerson's transcendentalism does not easily align with pragmatist methods of empiricism, fallibilism, instrumentalism, or verificationism. It appears monistic in its purported universalism, exaggerated idealism, and diverse tropes of unification and harmony. Nevertheless, his ideas and language resonated with pragmatists and can and ought to be pragmatically interpreted. This essay has not set out to prove that Emerson was the fountainhead of American pragmatism because he was a forerunner to many schools of American thought, and his disparate ideas gave purchase to a number of budding philosophies that are incompatible with pragmatism. Holmes more than anyone reveals the Emersonian qualities of...