The Rhetorical Roots of Legal Pragmatism

Abstract

AbstractThis article argues that in Oliver Wendell Holmes Jr.’s “The Path of the Law”—a landmark work in legal pragmatism—the philosophical and rhetorical themes complement and reinforce each other. To do so it utilizes Robert Danisch’s (2007)Pragmatism, Democracy, and the Necessity of Rhetoric as a theoretical framework to demonstrate that as Holmes confronts major tensions in the law—legality and morality, past and future, theory and practice—he reveals the necessity of pragmatism in legal judgment and its unavoidable rhetorical character.