9Holmes` pragmatism is well established. Susan Haack announced that „jurists and historians of philosophy recognize Holmes as the first legal pragmatist; and for good reason, because many subjects known to philosophers of the classical pragmatic tradition are also found in Holmes` legal thought“ (Haack 2011: 67-8). Haack describes the most important connections between Holmes and classical pragmatists; Instead of rehashing this sketch, I assume that my readers are familiar with it and will deal only with areas that concern common law theories and Holmes` pragmatism. Since Holmes` guilt toward pragmatism is no longer disputed, it should be noted that Emerson`s still controversial pragmatism has not been evaluated in relation to Holmes, especially since Holmes himself, in a letter to Emerson, articulated the „sign of gratitude and respect I feel for you.“ who, more than anyone else, began the philosophical ferment in my mind“ (Novick 1989:149). Legend has it that at the age of fourteen, Holmes told Emerson, „If I ever do anything, I will owe you much“ (Baker 1991: 85; Menand, 2001: 25). Holmes is said to have asked for Emerson`s autograph in 1862 (Baker 1991: 125), and on his seventeenth birthday, his parents gave him two volumes of Emerson`s essays (Menand 2001: 22). What elements of Emerson`s thought might have guided Holmes` common law approach? How could Emerson`s willingness to renew past paradigms match the judge`s treatment of precedents in matters of immediate urgency? Holmes was born in Boston, Massachusetts, into a large and steadfast abolitionist family. After graduating from Harvard in 1861, he served in the 20th Massachusetts Volunteers during the American Civil War. He graduated from Harvard Law School in 1866. After a brief period of private practice in partnership with his brother, he returned to Harvard to teach legal history, constitutional law, and jurisprudence. A compilation of Holmes` lectures at Harvard was published in 1881 under the title The Common Law. The common law, considered by many scholars to be the best book on the American legal system, explains Holmes` philosophy of law, which he bases on the idea that law is derived from human experience rather than logic.
His service on the Supreme Court gave Holmes the opportunity to apply his philosophy. Holmes did not abandon his research into the nature of law. He was invited to Boston to give a series of lectures on law, published in 1881 under the title The Common Law. This volume is the most prestigious work of legal philosophy in the history of the United States. It allowed Holmes to systematically analyze, classify and explain various aspects of American common law, ranging from breaches and contracts to crime and punishment. This view, which conservatives today denounce as sociological jurisprudence, led Holmes to a constitutional philosophy not of legal activism, but of radical legal restraint. In his two decades as a judge in Massachusetts, he voted only once to strike down a law as unconstitutional. A constitution, he wrote, „is a framework of government for those with opposing views and for the future, and therefore we should not hastily import into it our own views or tacit limitations arising solely from past practices.“ Following the same philosophy at the U.S. Supreme Court, he did not ask whether the Constitution explicitly empowers federal or state governments to act, but whether it explicitly prohibits them from doing so. He rejected the idea of conservative textualists and originalists of his day, who argued that the constitution should be applied strictly according to its original public meaning.
In his view, they simply replaced their own political preferences and attributed them to the framers of the constitution. The most inspiring sign of Holmes` intellectual humility is that throughout his long life, from his 20s to 90 years, he never ceased to cultivate his faculties of reason and to take the time to study every day. At the age of 21, he began keeping a list of all the books he read for pleasure and self-improvement. At the time of his death, the range was inspiring – more than 4,000 books, from philosophy, sociology, religion, economics and science to detective novels. While reading more than one book a week, he had a rule that a book had to be finished once, no matter how tedious it was. Holmes experienced some turmoil in law school and found the tradition of law, as presented in an uninspired, stagnant, and barely focused program on precedents. Science, philosophy, or the history of law were neglected, and it was they themselves, and not what he would later call „the small change in legal thought,“ that captivated Holmes` mind and drew him into the depths of a profession for which he had initially felt no strong motivation. The theory of prediction of law was an integral part of Oliver Wendell Holmes` philosophy of jurisprudence. Basically, the theory is an attempt to refute most of the previous definitions of the law. Holmes believed that the law should be defined as a prediction, especially a prediction of how the courts will behave. His reasoning was based on an argument concerning the opinion of an „evil man“. Holmes argued in his speech „The Way of Law,[1] care little about ethics or the high notions of natural law; Instead, they are simply concerned with getting out of jail and avoiding paying damages.
