Abstract
Michael Hoffheimer has argued that the prevailing scholarly assumption that Holmes did not believe in natural law in any form was misguided. He claims that Ralph Waldo Emerson’s transcendentalism encompassed a kind of natural law that influenced Holmes, and that Holmes rejected only specific strands—rather than the entire field—of natural law theory. “Notwithstanding his forceful criticism of natural law,” Hoffheimer submits, “Holmes retained an interest throughout his life in the champion of transcendentalism,” namely Emerson, whose exhilarating philosophy and lyrical prose anticipate elements of Holmes’s writing.
This chapter investigates Holmes’s skepticism of natural law and explores the kind of natural law that he represents: a curious form of Emersonian transcendentalism. Although there is no name for this type of natural law, which, because of its inherent flux and fluidity, defies classification, it might be described as pragmatic in the sense in which that term refers to seminal features of an American literary tradition that includes Emerson, William and Henry James, George Santayana, Wallace Stevens, Gertrude Stein, and Robert Frost. Its transcendentalist premises involve radical subjectivity and individuality as necessary conditions for the spontaneous order that emerges through the superintending forces of nature.
Figures as diverse as Harold Bloom, Richard Poirier, Louis Menand, Joan Richardson, and Jonathan Levin have examined this American literary tradition for its pragmatic qualities and effects. Situating Holmes’s transcendentalist rhetoric and affinities within this literary tradition illuminates the Emersonian characteristics of his oft-unnoticed natural law tendencies. Standing against the derivative “over-influence” of scholarly consensus, this chapter heeds Emerson’s rousing imperative “never imitate” by striving for originality in the marriage of literary and legal scholarship to explore Holmes’s overlooked but subtle support for a certain paradigm of natural law. It also corrects growing misconceptions about the purportedly absolute divide between natural law and positive law that are the result of tendentious twentieth-century theorizing. Studying Holmes’s relationship to Emersonian transcendentalism reveals the embeddedness of normative principles and natural law reasoning in the textual deposit of cases and customs.
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Notes
- 1.
Michael H. Hoffheimer, Justice Holmes and the Natural Law (New York: Garland, 1992), 15.
- 2.
See Allen Mendenhall, Oliver Wendell Holmes Jr., Pragmatism, and the Jurisprudence of Agon (Lewisburg, PA: Bucknell University Press, 2017), xvi, xx, 45.
- 3.
Ibid., xvi, 45–54.
- 4.
Ralph Waldo Emerson, “The American Scholar,” in The Essential Writings of Ralph Waldo Emerson, ed. Brooks Atkinson (New York: Modern Library, 2000), 47.
- 5.
Ralph Waldo Emerson, “Self-Reliance,” in Essential Writings, 150.
- 6.
“In my view, the stark jurisprudential dichotomy between natural law and positive law is itself a twentieth century positivist creation that has kept us from seeing the way in which all legal structures inevitably embody normative positions.” Morton J. Horowitz, “History and Theory,” Yale Law Journal 96 (1987): 1834.
- 7.
Hoffheimer, Justice Holmes and the Natural Law, 5.
- 8.
Ibid., 7. Holmes’s classmate at Harvard, William A. Holbrook, accused Holmes of airing “a dreamy, transcendental, artistic religion” in Holmes’s essay “Notes to Albert Dürer.” See Mark DeWolfe Howe, Justice Oliver Wendell Holmes: The Shaping Years, 1841–1870 (Cambridge, MA: Belknap, 1957), 59.
- 9.
Hoffheimer, Justice Holmes and the Natural Law, 7.
- 10.
Mendenhall, Oliver Wendell Holmes Jr., 115; see also Hoffheimer, Justice Holmes and the Natural Law, 29. Regarding transcendentalism’s influence on the young Holmes, see Hoffheimer, Justice Holmes and the Natural Law, 31–43.
- 11.
Quoted in Mendenhall, Oliver Wendell Holmes Jr., 14.
- 12.
Ibid.
- 13.
Emerson, “The American Scholar,” 49.
- 14.
Ibid., 47 (“The one thing in the world, of course, is the active soul. This every man is entitled to; this every man contains within him … The soul sees absolute truth and utters truth, or creates. In this action it is genius”).
- 15.
Oliver Wendell Holmes Jr., John G. Palfrey (1875–1945) Collection of Oliver Wendell Holmes Jr. Papers, 1715–1938, Family and Personal Material, Personal: Box 61, Folder 5, List of OWH’s books, 1935, seq. 11, seq. 13. Note: seq. 12 consists of a blank page.
- 16.
Mark DeWolfe Howe, Justice Oliver Wendell Holmes: The Shaping Years, 44, 54–55, 58–59, 203–4.
- 17.
Francis J. Mellen Jr., “Ralph Waldo Emerson, Mr. Justice Holmes and the Idea of Organic Form in American Law,” New England Law Review 14 (1978–79): 148.
- 18.
Hoffheimer, Justice Holmes and the Natural Law, 18.
- 19.
Ibid., 17.
- 20.
Ibid., 18; see also 19 (“Natural law judging did not offend him because of its results but rather because of its philosophical postulates”) and 21 (referring to Holmes’s “hostility to the creation of legal rights from claims of moral obligations”).
- 21.
Ibid., 8.
- 22.
Emerson, “Self-Reliance,” 138. “With consistency,” Emerson added, “a great soul has simply nothing to do.”
- 23.
Hoffheimer, Justice Holmes and the Natural Law, 25.
- 24.
Ibid.
- 25.
Ibid., 40 (Holmes “sought to harmonize aspects of idealism and empiricism by associating each with different intellectual activities”).
- 26.
Section 51 of Walt Whitman, “Song of Myself,” in The Portable Walt Whitman, ed. Mark Van Doren (New York: Penguin Books, 1973), 96.
- 27.
Hoffheimer, Justice Holmes and the Natural Law, 90–91.
- 28.
Ibid.
- 29.
Ibid., 91. Consider these famous lines from The Common Law : “The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development … In order to know what it is, we must know what it has been, and what it tends to become. We must alternatively consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every age.” Oliver Wendell Holmes Jr., The Common Law (Chicago: ABA Publishing, [1881] 2009), 1.
- 30.
Oliver Wendell Holmes Jr., “Natural Law,” Harvard Law Review 32 (1918–19): 40.
- 31.
Ibid.
- 32.
Ibid.
- 33.
Ibid.
- 34.
Ibid., 41.
- 35.
Ibid.
- 36.
Ibid.
- 37.
Ibid.
- 38.
“I see no a priori duty to live with others and in that way, but simply a statement of what I must do if I wish to remain alive. If I do live with others they tell me that I must do and abstain from doing various things or they will put the screws on to me. I believe that they will, and being of the same mind as to their conduct I not only accept the rules but come in time to accept them with sympathy and emotional affirmation and begin to talk about duties and rights.” Holmes, “Natural Law,” 42.
- 39.
Ibid.
- 40.
Ibid.
- 41.
Ibid.
- 42.
Ibid., 43.
- 43.
Ibid.
- 44.
Isaiah 55:9.
- 45.
Mendenhall, Oliver Wendell Holmes Jr., xxi, 83–84, 98–99, 111, 113–16, 126.
- 46.
Ralph Waldo Emerson, “Nature,” in The Essential Writings, 13. Holmes echoed Emerson before. His essay “Books” represents a copy of Emerson’s essay by the same title. See Allen Mendenhall, “Oliver Wendell Holmes Jr. Is the Use of Calling Emerson a Pragmatist: A Brief and Belated Response to Stanley Cavell,” Faulkner Law Review 6 (2014): 224–26.
- 47.
Emerson, “Nature,” 13.
- 48.
Ibid. (“Nothing is quite beautiful alone; nothing but is beautiful in the whole. A single object is only so far beautiful as it suggests this universal grace”).
- 49.
Oliver Wendell Holmes Jr., List of OWH’s Books, note 15.
- 50.
See Emerson’s discussion of language as signs of natural facts in Emerson, “Nature,” 13–19.
- 51.
Holmes, “Natural Law,” 43.
- 52.
Ibid.
- 53.
Ibid.
- 54.
Emerson, “Nature,” 13 (“No reason can be asked or given why the soul seeks beauty”).
- 55.
Ibid.
- 56.
Holmes, “Natural Law,” 43.
- 57.
Ibid.
- 58.
Ibid.
- 59.
Emerson, “Nature,” 14.
- 60.
Ibid.
- 61.
Holmes, “Natural Law,” 43–44.
- 62.
Emerson, “Nature,” 7.
- 63.
Holmes, “Natural Law,” 44.
- 64.
Emerson, “Nature,” 14.
- 65.
Ibid., 14–15.
- 66.
Holmes, “Natural Law,” 44.
- 67.
Ralph Waldo Emerson, “The Over-Soul,” in The Essential Writings, 237.
- 68.
Most scholars date the common law back to Henry II’s rule in the twelfth century.
- 69.
Emerson, “Nature,” 17.
- 70.
Ralph Waldo Emerson, “History,” in The Essential Writings, 130.
- 71.
Emerson, “Nature,” 17.
- 72.
Ibid., 23.
- 73.
Emerson, “History,” 119.
- 74.
Emerson, “Nature,” 16.
- 75.
Ralph Waldo Emerson, “An Address,” in The Essential Writings, 63.
- 76.
Ibid.
- 77.
Ibid.
- 78.
Emerson, “History,” 119.
- 79.
Emerson, “The American Scholar,” 45.
- 80.
Ibid.
- 81.
Ralph Waldo Emerson, “Compensation,” in The Essential Writings, 165.
- 82.
Ralph Waldo Emerson, “Intellectual,” in The Essential Writings, 266.
- 83.
Emerson, “Nature,” 17.
- 84.
Ibid., 18.
- 85.
Holmes, The Common Law, 33.
- 86.
Emerson, “Nature,” 21–22.
- 87.
Emerson, “An Address,” 63.
- 88.
Ibid., 63.
- 89.
Emerson, “Nature,” 25.
- 90.
Emerson, “Prudence,” in The Essential Writings, 215.
- 91.
Emerson insists that humans may learn this creative skill at a young age: “From the child’s successive possession of his several senses up to the hour when he saith, ‘Thy will be done!’ he is learning the secret that he can reduce under his will not only particular events but great classes, nay, the whole series of events, and so conform all facts to his character.” Emerson, “Nature,” 21.
- 92.
Emerson says, “Nature is a discipline of the understanding in intellectual truths. Our dealing in sensible objects is a constant exercise in the necessary lessons of difference, of likeness, of order, of being and seeming, of progressive attainment; of ascent from particular to general; of combination to one end of manifold forces.” Emerson, “Nature,” 19. Here the purposeful development of truth attained through classificatory methodology is evident.
- 93.
Emerson, “The American Scholar,” 45.
- 94.
Emerson, “Nature,” 19.
- 95.
“The understanding [of the solidity or resistance, inertia, extension, figure, and divisibility of matter] adds, divides, combines, measures, and finds nutriment and room for its activity in this worthy scene. Meantime, Reason transfers all these lessons into its own world of thought, by perceiving the analogy that marries Matter and Mind.” Emerson, “Nature,” 19.
- 96.
Hoffheimer was aware of this penchant for classification as an element of his transcendentalism as it pertains to the law. “There is,” he says, “the problem of the vision behind Natural Law—expressed, perhaps, in its style, too—that meaning derived from connection to a greater whole that was known to be, even if known to be unknowable in its details.” Hoffheimer, Justice Holmes and the Natural Law, 13.
- 97.
Holmes, The Common Law, 3.
- 98.
Ibid., 3–4.
- 99.
Ralph Waldo Emerson, “History,” 118 (“Genius studies the casual thought, and far back in the womb of things sees the rays parting from one orb, that diverge, ere they fall, by infinite diameters. Genius watches the monad through all his masks as he performs the metempsychosis of nature. Genius detects through the fly, through the caterpillar, through the grub, through the egg, the constant individual; through countless individuals the fixed species; through many species the genus; through all genera the steadfast type; through all the kingdoms of organized life the eternal unity”).
- 100.
Holmes, The Common Law, 4.
- 101.
Ibid., 5.
- 102.
“Generalization is always a new influx of the divinity into the mind.” Emerson, “Circles,” 256.
- 103.
See generally Allen Mendenhall, “Oliver Wendell Holmes Jr. and the Darwinian Common Law Paradigm,” European Journal of Pragmatism and American Philosophy 7, no. 2 (2015). See also Oliver Wendell Holmes Jr., “Law in Science and Science in Law,” Harvard Law Review 12 (1899): 447 (“We have evolution in this sphere of conscious thought and action no less than in lower organic stages, but an evolution which must be studied in its own field”).
- 104.
Holmes Jr., “Law in Science and Science in Law,” 449.
- 105.
Ibid., 450.
- 106.
Ibid.
- 107.
Holmes, The Common Law, 25.
- 108.
Ibid.
- 109.
Ibid.
- 110.
“History sets us free and enables us to make up our minds dispassionately whether the survival [of rules or traditions] which we [judges] are enforcing answers any new purpose when it has ceased to answer the old.” Holmes Jr., “Law in Science and Science in Law,” 452.
- 111.
Holmes, The Common Law , 25. He also claimed that “to understand their [the seemingly self-sufficient propositions of law] scope fully, to know how they will be dealt with by judges trained in the past which the law embodies, we must ourselves know something of that past.” Ibid.
- 112.
Mark DeWolfe Howe, Research Materials Relating to Life of Oliver Wendell Holmes Jr., 1858–1968, MDH Research Materials, Holmes—Uncollected Essays, Vol. IV, January 1873–January 1880: Box 32, Folder 31, [Book Notice] A Selection of Cases on the Law of Contracts, with a Summary of the Topics Covered by the Cases, American Law Review 14 (March 1880), 233, seq. 2–3, http://nrs.harvard.edu/urn-3:HLS.Libr:8527870.
- 113.
Ralph Waldo Emerson, “The Transcendentalist,” in The Essential Writings, 81.
- 114.
Ralph Waldo Emerson, “Intellect,” in The Essential Writings, 270.
- 115.
Emerson, “An Address,” 78.
- 116.
Ralph Waldo Emerson, “English Traits,” in The Essential Writings, 545.
- 117.
Ralph Waldo Emerson, “Art,” in The Essential Writings, 275.
- 118.
Ralph Waldo Emerson, “Circles,” in The Essential Writings, 261.
- 119.
Ibid., 253.
- 120.
See Allen Mendenhall, “Oliver Wendell Holmes Jr. Is the Use of Calling Emerson a Pragmatist: A Brief and Belated Response to Stanley Cavell,” Faulkner Law Review 6 (2014): 215–16.
- 121.
Joseph Schumpeter, Capitalism, Socialism and Democracy (London: Routledge, [1943] 1994), 83.
- 122.
F. A. Hayek, The Constitution of Liberty, ed. Ronald Hamowy (Chicago: University of Chicago Press, [1960] 2011), 47.
- 123.
Holmes Jr., “Law in Science and Science in Law,” 454. He says, for example: “At that time there were few rules of evidence. Later our laws of evidence were systematized and developed. But the authority of Lord Hale has caused his dictum to survive as law in the particular case, while the principle upon which it would have to be justified has been destroyed. The exception in other words is pure survival, having nothing or very little to back it except that the practice is established.” Holmes Jr., “Law in Science and Science in Law,” 453. Interestingly, Hoffheimer talks about transcendentalism in Holmes’s thought as if it were itself subject to the doctrine of survival, that is, as if it were a holdover or survival from Holmes’s early years. Hoffheimer, Justice Holmes and the Natural Law, 17.
- 124.
Ralph Waldo Emerson, “The Poet,” in The Essential Writings, 297.
- 125.
Holmes, The Common Law, 25.
- 126.
Ibid.
- 127.
Ibid., 167.
- 128.
Oliver Wendell Holmes Jr., “The Path of the Law,” Harvard Law Review 10 (1896–97): 468.
- 129.
Holmes Jr., “Law in Science and Science in Law,” 461.
- 130.
See also his concern about phrasing taking the place of real reasons. Ibid., 459.
- 131.
Jonathan Levin, The Poetics of Transition: Emerson, Pragmatism & American Literary Modernism (Duke University Press, 1999), ix.
- 132.
Emerson, “Circles,” 261.
- 133.
Holmes Jr., “Law in Science and Science in Law,” 455.
- 134.
Ibid.
- 135.
Ibid.
- 136.
Emerson, “Circles,” 261.
- 137.
Ibid.
- 138.
Ibid., 252–63: “There are no fixtures in nature. The universe is fluid and volatile. Permanence is but a word of degrees. Our globe seen by God is a transparent law, not a mass of facts. The law dissolves the fact and holds it fluid. Our culture is the predominance of an idea which draws after it this train of cities and institutions. Let us rise into another idea; they will disappear. The Greek sculpture is all melted away, as if it had been statues of ice; here and there a solitary figure or fragment remaining, as we see flecks and scraps of snow left in cold dells and mountain clefts in June and July. For the genius that created it creates now somewhat else. The Greek letters last a little longer, but are already passing under the same sentence and tumbling into the inevitable pit which the creation of new thought opens for all that is old. The new continents are built out of the ruins of an old planet; the new races fed out of the decomposition of the foregoing.”
- 139.
“I confess that such a development as that fills me with interest, not only for itself, but as an illustration of what you see all through the law—the paucity of original ideas in man, and the slow, coasting way in which he works along from rudimentary beginnings to the complex and artificial conceptions of civilized life. It is like the niggardly uninventiveness of nature in its other manifestations, with its few smells or colors or types, its short list of elements, working along in the same slow way from compound to compound until the dramatic impressiveness of the most intricate compositions, which we call organic life, makes them seem different in kind from the elements out of which they are made, when set opposite to them in direct contrast.” Holmes Jr., “Law in Science and Science in Law,” 446–47.
- 140.
Holmes, The Common Law, 4.
- 141.
Oliver Wendell Holmes Jr., “Learning and Science,” North Carolina Law Review 24 (1946): 103 (reprint of an 1895 address Holmes delivered for the Harvard Law School Association).
- 142.
Oliver Wendell Holmes Jr., “Learning and Science,” 103.
- 143.
Ibid.
- 144.
Emerson, “Self-Reliance,” 141.
- 145.
Ibid.
- 146.
Ibid., 135.
- 147.
Ralph Waldo Emerson, “Politics,” in The Essential Writings, 386.
- 148.
Emerson, “Self-Reliance,” 138.
- 149.
Ibid., 140.
- 150.
For a treatment of the Nietzschean elements of Holmes’s jurisprudence, see Seth Vannatta and Allen Mendenhall, “The American Nietzsche? Fate and Power in the Pragmatism of Justice Holmes,” UMKC Law Review 85 (2016). It is notable that Emerson is the one thinker who had a demonstrative influence on both Holmes and Nietzsche.
- 151.
A person’s “fidelity to new revelations of the incessant soul” and “faithfulness to his truth” make up the law that “writes the laws of cities and nations”—that is, the law which “it is in vain to build or plot or combine against.” Emerson, “Compensation,” 157–58. See also Emerson, “Prudence,” 218 (“Let a man keep the law—any law—and his way will be strown with satisfactions … If you think the senses final, obey their law. If you believe in the soul, do not clutch at sensual sweetness before it is ripe on the slow tree of cause and effect”).
- 152.
See Emerson, “Compensation,” 159 (“Crime and punishment grow out of one stem. Punishment is a fruit that unsuspected ripens within the flower of the pleasure which concealed it. Cause and effect, means and ends, seed and fruit, cannot be severed; for the effect already blooms in the cause, the end preexists in the means, the fruit in the seed”).
- 153.
See, for example, Emerson, “Politics,” 381–82 (“The law may do what it will with the owner of property; its just power will still attach to the cent. The law may in a mad freak say that all shall have power except the owners of property; they shall have no vote. Nevertheless, by a higher law, the property will, year after year, write every statute that respects property. The non-proprietor will be the scribe of the proprietor. What the owners wish to do, the whole power of the property will do, either through the law or else in defiance of it”).
- 154.
Ibid.
- 155.
See, for example, Emerson, “The Over-Soul,” 237.
- 156.
Emerson, “An Address,” 63.
- 157.
Holmes Jr., “Law in Science and Science in Law,” 462–63. This remark comes on the heels of Holmes’s brief aside about knowledge of generals depending upon understanding of the particulars of which they consist. See Holmes Jr., “Law in Science and Science in Law,” 461 (discussing “the danger of reasoning from generalizations unless you have the particulars which they embrace in mind”). Here Holmes states that a “generalization is empty so far as it is general. Its value depends on the number of particulars which it calls up to the speaker and the hearer.”
- 158.
Emerson, “Nature,” 38 (“The invariable mark of wisdom is to see the miraculous in the common. What is a day? What is a year? What is summer? What is woman? What is a child? What is sleep? To our blindness, these things seem unaffecting. We make fables to hide the baldness of the fact and conform it, as we say, to the higher law of the mind. But when the fact is seen under the light of an idea, the gaudy fable fades and shrivels. We behold a higher law. To the wise, therefore, a fact is true poetry, and the most beautiful of fables”).
- 159.
Emerson, “An Address,” 73–74.
- 160.
Ralph Waldo Emerson, “Conduct of Life,” in The Essential Writings, 631–32.
- 161.
Emerson, “Conduct of Life,” 631.
- 162.
Ibid.
- 163.
See, for example, F. A. Hayek, The Constitution of Liberty, 310–15 (on the rule of law working as a limitation on legislation).
- 164.
For the most profound expression, in my view, of the evolutionary nature and characteristics of the common-law system, see Allan C. Hutchinson, Evolution and the Common Law (Cambridge University Press, 2005).
- 165.
Hoffheimer, Justice Holmes and the Natural Law, 13.
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Mendenhall, A. (2020). The Emersonian Natural Law of Justice Holmes. In: The Three Ps of Liberty. Palgrave Studies in Classical Liberalism. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-39605-3_9
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