A New Name for Old Ways of Thinking

A path across the grass

Many parks have a strip of bare earth worn across the lawn, running from one gate to another at an angle the paved walks do not follow. Nobody designed it. People took the shortest route, one after another, until the grass gave up. Suppose a visitor asks which is the proper way across the park. You could point to the planner’s map, or you could point to the path. The map shows what someone decided in advance. The path shows what people actually do and why it suits them.

Plenty of rules in ordinary life are more like the worn path than the map. In many households the person who cooks does not wash up. Nobody derived this from a theory of fairness. It settled after enough evenings of bickering, and it stays because it works well enough. Ask where the rule came from and the honest answer is a history.

Now ask the same thing about the law. Is it a set of principles from which correct answers follow, the way a geometry proof follows from its axioms? Or is it more like the path across the grass, shaped by use and changed when use changes? One of the sharpest answers to that question came from a lawyer who, as a young man, sat in on the conversations where American pragmatism began.

Who Holmes was

Oliver Wendell Holmes Jr. was born in Boston in 1841 and died in 1935. He fought for the Union in the Civil War and was wounded more than once. He then studied law at Harvard and spent decades as a judge, first on the Supreme Judicial Court of Massachusetts and then, from 1902 to 1932, on the United States Supreme Court. His dissents, the opinions he wrote when he disagreed with the majority, are still widely read.

In the early 1870s Holmes was one of a group of young men in Cambridge, Massachusetts, who met to argue about philosophy. Charles Sanders Peirce, one of the members, later recalled that they called themselves the ‘Metaphysical Club’. William James was another. The club left no minutes, and most of what we know comes from Peirce’s recollections, written decades afterward. How often Holmes attended, and how much the club shaped him, is uncertain. He never called himself a pragmatist, and he was sometimes cool toward James’s version of the idea. Scholars disagree about how far to count him as one. I include him here because his view of law is one of the clearest examples of the kind of thinking the club was working out.

Law grown from experience

Pragmatism is the view that ideas should be judged by what they do in practice: by the consequences of holding them and acting on them. A belief, on this view, is something like a habit of action, and its worth shows up in how well that habit serves us.

Holmes applied something like this to law. His book The Common Law opens with a sentence that has become famous: “The life of the law has not been logic: it has been experience” (Holmes, The Common Law, 1881, Lecture I). By ‘logic’ he meant chiefly the syllogism, a form of reasoning in which a conclusion follows necessarily from general premises. Holmes argued that judges do not really reach decisions that way. Their rulings are shaped by the needs of their time, by the moral and political views around them, and even by their own prejudices. The logical form of a written opinion often comes afterward, as a way of presenting a decision reached on other grounds.

Much of The Common Law is history. Holmes traced modern rules back to much older practices and argued that a rule often outlives the reason it was made for. Once that happens, judges supply a new reason to fit it. The rule stays and its justification changes. In short, Holmes says: if you want to know what a rule is, look at where it came from and what it does now.

Sixteen years later, in an address to law students, he offered a definition of law suited to this outlook: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law” (Holmes, “The Path of the Law,” Harvard Law Review, 1897, p. 461). A client does not want a lecture on the nature of justice. She wants to know what will happen to her if she signs this contract or breaks that one. On Holmes’s account, knowing the law means being able to predict that outcome.

The household washing-up rule works the same way. If you want to know what the rule in a house really is, you learn more from watching who actually ends up at the sink than from asking anyone to state the principle behind it.

Why call the name new

In 1907 James published a book of lectures titled Pragmatism. Its subtitle was A New Name for Some Old Ways of Thinking. James argued that the method itself was nothing new. He suggested that Socrates and Aristotle had used it, and that the British empiricists, philosophers such as Locke and Hume who held that knowledge comes from experience, had used it too. What was new, he thought, was stating it openly and applying it consistently.

Holmes’s subject shows how much of the old is in the new. English and American common law is law built up from the decisions of judges in particular cases rather than set down in advance by a legislature. Each decision becomes a precedent, an example later courts are expected to follow or explain their departure from. That system had been growing for centuries before anyone in Cambridge used the word ‘pragmatism’. Holmes described it candidly. As a Supreme Court justice he put the point in six words: “General propositions do not decide concrete cases” (Holmes, dissenting, Lochner v. New York, 1905).

Whether the Metaphysical Club invented anything, or only named what careful practitioners already did, is a fair question. James seems to have leaned toward the second answer, and I think the example of the common law supports him.

If ideas are judged by their consequences, we need a way to tell when two ideas really differ. Tomorrow we turn to Peirce’s test for that, which asks of any idea: what difference does it make?