Pragmatism without the “Fighting Tag”

In a response to Harold Laski's noting of Oliver Wendell Holmes Jr.’s, “implicit pragmatism,” Holmes wrote, “I should drop pragmatic … because it diminishes the effect or checks the assent you seek from a reader, if you necessarily put a fighting tag on your thoughts.” ¹ Dropping this “fighting tag” probably does have the rhetorical value Holmes attributed to it. Nevertheless I argue that Holmes's philosophy concerning values, ideals, norms, and legal principles can be characterized as evincing the pragmatism whose tag he rejected. But in adopting Holmes's rhetorical advice, I suggest we refer to Holmes's philosophical position as “functional realism,” a view in common with both Charles Sanders Peirce and John Dewey. Holmes held that the reality and meaning of values and ideals are found in their functional effects. He held that the norms, principles, standards, and rules, which guide the process of judicial inquiry, are generated by the facts of the case, as opposed to being a priori principles and as opposed to being nominalistic fictions, lacking any reality at all.