We are at a point in time so replete with neuroscientific breakthroughs that one might say we live in an age of neuroscience. This book seeks to provide perspective in the way neuroscience is considered by placing it in the context of the law and more specifically, a setting in which pragmatism, the law and Oliver Wendell Holmes Jr. interface.
Oliver Wendell Holmes Jr., a well-known Supreme Court Jurist, understood, espoused and breathed the intellectual oxygen of his age. He embraced the continuous flow of science into the larger body politic and cultural evolution, including the law. Although today Holmes is considered to be part of the American school of philosophical pragmatism along with well-known American pragmatists C. S. Peirce and William James, his relationship to pragmatism is not often clear. He revered the new sciences of biology, anthropology, and statistical inference, and he repeatedly commented on the integration of these sciences with judicial reasoning.
Even though Holmes’s link to pragmatism continues to be a subject for debate among many pragmatists, I suggest that he is very much linked. And that a fruitful link is from the “Common Law” of Holmes to the “Common Faith” of Dewey for a naturalized epistemic engine ready to engage and incorporate a neuroscience perspective within the law and the larger culture. The importance of neuroscience and the limitations of the law is grounded in this pragmatic excursion. The pragmatic view of the law is an evolving one, not frozen in geometrical first principles, something that Holmes well understood and contributed and warned against, but an experimentalist logic of discovery and argument and correction. While the path is indirect, high ideals for what counts in human life is something Dewey provided insight into. Neuroscience anchored to the law needs to capture this pragmatist sensibility. Holmes naturalistic orientation to the law, while historic is an important road in this conversation.
But Why Holmes? Who Was He?
He was born in 1841 and died in 1935. During his lifetime, he witnessed an explosion in science and law and a changing relationship between science and culture. For a period of time, Holmes was actually at the heart of the law as an important contributor to what became the most original part of American legal reasoning, i.e., legal pragmatism (e.g., Grey 1989; Posner 1992). “Laws greatest pragmatist remains Holmes”, one noted legal scholar would assert (Posner 1995, p. 13).
After the war, Holmes married Fanny Dixwell, the granddaughter of an esteemed Massachusetts lawyer who was part of the moderate wing of religion and the larger sense of epistemic pursuits, religious tolerance and cultural evolution. While they had no children, the couple were together until the end of her life (she died in 1929, and he in 1935). Holmes’s correspondence revealed that while his life was with others, he would say of his wife that “for sixty years she made life poetry for me” (letter to Frederick and Lady Pollock, May 24, 1929). Oliver Wendell Holmes Jr. led a very long and rich life.
Nonetheless, Holmes, known for his flirtatiousness, carried on with the Lady Castletown over a thirty-year period, to whom he expressed a wide range of emotions (1896–1929, White 1993; Baker 1991). Indeed, in one of his letters to Lady Castletown (August 19, 1897), he would write, “putting to death the inadequate to get the world to limit procreation…” He would say, “existing society is founded on the death of men.” Eugenics, unwisely, was real for Holmes.
Holmes was curious and intellectual, but he was also elitist, with little real sympathy for the downtrodden and the diverse minorities swelling the American population (Hollinger 2005). One modern American historian commented that Holmes was “cynical-anti-democratic” (Kloppenberg 2010, p. 19).
Importantly, Oliver Wendell Holmes Sr., a physician, Dean of the medical school at Harvard, and a writer, penned a biography of Ralph Waldo Emerson that displayed a life of thought, scholarship, and spirituality. He also wrote poetry and studied medicine. Holmes’s world was quite rich. In a letter to Morris Cohen (August 5, 1919), the philosopher, Holmes Jr. wrote, “my father was brought up scientifically – i.e. he studied medicine in France – and I was not. Yet there was with him, as with the rest of his generation, a certain softness of attitude toward the interstitial miracle – the phenomenon without phenomenal antecedents that I do not feel.” Two sentences later Holmes wrote, “The Origin of the Species I think came out while I was in college.” That work made a great difference to the way in which Holmes viewed the world; he understood the continuity of science with the larger body politic, and more specifically, with the law.
Understanding Holmes means placing him in the larger culture of ideas, the larger culture in which he breathed intellectual oxygen. Pragmatism is a recurrent theme in placing Holmes. But it is not so transparent. His philosophical roots are largely in the Anglo-American traditions of which pragmatism and positivisim are two features.
Holmes Jr. grew up with respect for biology. Holmes Sr., the physician, theorized about human health and discerned something about crib death. Holmes Jr. sat early in a context of conversation. Moreover, Holmes Sr. participated in the invention and use of instruments in medicine and science (Holmes Sr., see Gibian 2001). The fluidity of biology and the larger sense of inquiry perhaps ran through his intellectual veins, a key metaphor in the expansion and continuity of our sense of being in the world (Johnson 2007; Winter 2001). Certainly, both Holmes Sr. and Jr. participated in the wider intellectual milieu. Holmes’s father was a well-known literary physician (Gibian 2001). Holmes Jr. was born to explore all fields of human inquiry, but he would be less interested in grounding something on subjective reports and more about grounding law and life in things outside the subject. The new world of statistical inference that his colleague C. S. Peirce understood would be the future grounding of human judgment.
Holmes grew up with a poetic flair for language. He was a literate person who became an editor of the Harvard paper and, during the war, a daily witness to human slaughter. His rejection of the traditional religions was not unusual in his circles, especially among war veterans. His major intellectual influence on the biological sciences was Chauncey Wright, a staunch defender of Darwin in this newly freed colony (Wright 1877). In his article on “The Evolution of Self-Consciousness,” Wright called attention to the evolution of the courts, judges, legislation and decision-making as well as to the practical consequences of our laws.
The New England mindset that Holmes inherited was part wilderness and part salvation. It placed a particular emphasis on piety, stoicism, plain talk, and a sense of nature (Miller 1939/1982) as well as on an experimental sensibility. This is not surprising since experimentalism is at the heart of our cultural scientific ascent and hypothesis formation underlies both the instruments we build and the ideas that we have (Peirce 1868, 1877/1992, 1878a, b).
What had begun to emerge in the colonies was a transition from common to statutory law and a larger sense of instrumentalism in the transactions that dominate human interaction. Commerce and property were key legal features in a growing economy with an entrepreneurial spirit. Contract and commercial law also blossomed through this period (Horwitz 1992). For Holmes, it was naturalism, influenced by utilitarianism, positivism and eventually a variant of pragmatism that led him to reject the seventeenth century New England ethos (cf. Grey 1989; Kelley 1989–1990). Indeed, when pragmatism was later criticized for its lack of depth, an argument was made that the depth might be found in the social policy and progressivism of Joh...