Muhammad Ali: A Holmesian Bad Man

We're in the midst of discussing legal realism in Section 3, so Oliver Wendell Holmes has been coming up a lot.  Here's a slightly edited version of a post that I wrote for a discussion board of my Legal Justice Seminar linking Ali with Holmes's ideas, among other things.

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Every time I read the term “bad man,” my thoughts turn to Muhammad Ali (then Cassius Clay) declaring himself a “bad man” after defeating Sonny Liston in their 1964 fight.  In the past, I have agreed with Ali’s self-characterization when considering his career and history: “bad” as a slang term for “incredibly talented,” “bad” as a moral descriptor for the intensely personal and hurtful trash talk he directed at his opponents, “bad” in the context in which he used the term in 1964.  However, it took until today, after having read Holmes’s “The Path of the Law” and having reflected further, that I can now view Ali as a “bad man” in the Holmesian sense.

 

“What does (legal duty) mean to a bad man?” Holmes asks.  “Mainly, and in the first place, a prophecy that if he does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment of money” (62). To borrow from Legal Practice, the elements of Holmes’ primary definition of the bad man are present in Ali’s refusal to enter the military during the war in Vietnam.  By refusing to report after being drafted (doing a certain thing), Ali was subjected to disagreeable consequences by way of a five-year prison sentence, the revocation of his boxing licenses, and the deprivation of his primary source of income (a tax, of sorts).  Yet from Ali’s point of view, theses were merely the legal consequences of fulfilling his moral duty to resist joining the Army; through his story emerges a clear example of the challenges of separating legal and moral duties (62).

 

 

Now, I do not wish to credit Holmes with the prophetic powers required to create a generic foil for his lecture around the emergence, in 60 years time, of a boxer from Louisville, KY who resisted military service, but like Prof. Luban, I noted with interest Holmes’s prediction regarding the future importance of statistics and economics to the study and application of the law (67).  Indeed, reading this intimation about the importance of statistics brings his fact-oriented dissent in Lochner into greater context; he seems to have a proclivity for a statistical approach to deciding cases. 

 

Focusing on the “statistical” element of this claim, the intellectual context in which Holmes is writing—the era of pragmatism—makes this line of thought even clearer.  As described in Louis Menand’s The Metaphysical Club, the late 19^th and early 20^th century gave rise not only to the Progressive Era of politics, whose ends the Realists aim to further through their critique of classical legal thought, but also philosophical pragmatists such as Holmes and William James.  I’d have to re-read the chapters on Holmes to check to see what direct connection there was between Legal Realists and pragmatists, but it stands to reason that there would be a theoretical kinship of sorts between the two groups.

 

This pragmatic influence finds its way, as best as I can tell, into “The Path of the Law”—in particular in a line that seems to at once critique the hegemony of classical legal thought and to safeguard against future adoptions of overarching legal theories.  “We do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind,” writes Holmes.  Quite true—after all, as Holmesian Bad Man Ali can attest to, his conviction was overturned years later, after public opinion on the war in Vietnam had turned.

 

 

Background on Ali:

http://www.thenation.com/doc/20070129/southpaw

http://www.time.com/time/time100/heroes/profile/ali01.html

http://www.ali.com/legend_boxer_controversy.aspx (the official website of Muhammad Ali Enterprises®)

Banal Articles about Lunch and Oliver Wendell Holmes

Example: this article about lunch in the Washington Post.

Bemoaning his lunchtime doldrums, the author writes: 

Far too often, the most uninspired meal of the day is the one I eat sitting at my desk, juggling a Cosi sandwich, napkin and computer mouse as I try to eat while writing or editing.

 I'll tell you what's uninspiring: the quality of this article.  I'm pretty sure he wrote it while juggling a Cosi sandwich, napkin, and computer mouse.I sincerely doubt that this has been edited, what with its four rhetorical questions, disjointed topics, and lack of description regarding the taste of the recipes.   

I understand that different sections of the newspaper employ different voices to tell their stories. Yes, the article speaks to a daily question that many of us face: "What's for lunch?"Who knows, maybe the author is tyring to be a New Journalist, putting himself at the center of the story, helping us understand our own quiet culinary desperation through his own stream-of-consciousness search to answer that existential noontime question.

But clear communication skills don't become less important when talking about lunchtime or when they're on page F01.  In class today, my property professor read a passage from Oliver Wendell Holmes's concurring opinion in International New Service v. Associated Press, where Holmes's language is impenetrable.  After letting the fog of the passage envelop us, my prof yelled, "Holmes! A verb!"  

After reading this, I wanted to yell, "Post! Some structure!"  In that sense, the author here is keeping good company; I doubt he intended this article to draw him a comparison to Oliver Wendell Holmes, but here it is, out there on the intertubes, ready for someone to do a "Google" and repeat it.  

But the point is this: it doesn't matter if you're writing a Supreme Court decision or a food column: the ways in which, and the ability with which, we communicate with one another dictates how we fare, both individually, and as a society.  Write a mediocre, mid-week column on homemade lunches, you'll get by well enough, but don't expect to become the next Anton Ego.  Write poorly in a judicial opinion, and expect attorneys, state agencies, law students and faculty for the next century to be debating your meaning.  Tell the nation that "the fundamentals of our economy are strong" the day that two Wall Street giants bite the dust, and you'll lose your campaign for the presidency.*

* I hope.