The Natural Law Theorist

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.

Keywords: Oliver Wendell Holmes Jr., Pragmatism, Natural Law, Ralph Waldo Emerson