Pragmatism without the “Fighting Tag” Functional Realism in Holmes’s Jurisprudence and Moral Philosophy Seth Vannatta 14 INTRODUCTION In a response to Harold Laski’s noting of Oliver Wendell Holmes Jr.’s, “im- plicit pragmatism,” Holmes wrote, “I should drop pragmatic . . . because it diminishes the effect or checks the assent you seek from a reader, if you nec- essarily put a fighting tag on your thoughts.” 1 Dropping this “fighting tag” probably does have the rhetorical value Holmes attributed to it. Neverthe- less 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. Seeing the realism of C.S. Peirce at work in Holmes’s philosophy under- mines a view held by contemporary theorists Richard Posner and Thomas Grey, that legal pragmatism is independent of philosophical pragmatism. I argue that Holmes’s “implicit pragmatism” qua functional realism resides at the intersection of legal and philosophical pragmatism and provides us with the material to rethink Posner’s version of legal pragmatism. I. POSNER’S PRAGMATISM A brief look at Posner’s version of legal pragmatism will be helpful to set the stage for a rereading of Holmes’s legal philosophy. Posner begins his discussion of pragmatism by defining it as a mood, which “turns away from abstraction and insufficiency, from verbal solutions, from bad a priori rea- sons, from fixed principles, closed systems, and pretended absolutes and origins . . . towards concreteness and adequacy, towards facts, actions, and 6244-206-P2S4-014.indd 252 20-08-2013 4:30:07 PM