Problem: Although Oliver Wendell Holmes Jr. transformed American jurisprudence into critical
self-awareness, there is no consensus on the nature of his legal theory. Holmes imperfectly
represents each of several incompatible approaches. Commentators presume Holmes lacked any
original or coherent theory of justice.
Friedrich Nietzsche is likewise presumed a critical philosopher without a coherent theory
of justice. Nietzsche wrote esoterically, but there is no consensus on the content of his esoteric
agenda. Nietzsche's attitudes toward women appear misogynistic, but his philosophy paradoxically
appeals to many feminists.
Method: By re-conceptualizing Holmes and Nietzsche in terms of the principles of self-organized
criticality, their understandings of causation and developmental dynamics become coherent. This
thesis re-conceptualizes common-law legal reasoning as exploiting principles of self-organized
criticality to build knowledge inductively. This reveals that Holmes and Nietzsche's genealogical
critique of idealism rests on the computational implausibility of assuming there always exist microlevel
rules to achieve desired macro-level goals. The legal-reasoning model shows that justice
entails an inexhaustible open-system dynamic of applying limited resources to accommodate better
an ever-broadening matrix of conflicting values. Nietzsche assesses psychological and social
conditions that foster this collective creativity and decadent conditions that inhibit the growth of
justice. Nietzsche identifies problems specific to institutions that require special safeguards that he
esoterically conceals. Using Nietzsche's exoteric accounts of psychology and rhetoric based on
principles of self-organized criticality, Nietzsche's esoteric techniques can be inferred, including
his syncretism of pagan myths, which reveals his esoteric content.
Conclusion: Holmes and Nietzsche applied a coherent theory of justice based on principles of
causation and dynamics not widely accepted until the late twentieth century but having roots in
ancient myths and isolated prior thinkers. Nietzsche defines justice as pursuing robust community
growth without sacrificing the future for the present. Both Holmes and Nietzsche accord pursuit of
justice with the good life whereby individuals promote their own development for greater sacrifice
for the community. Nietzsche's esoteric solution to his problem of institutions was matriarchy.
Nietzsche's matriarchy follows from his identification of the root of the institutional problem as
male windfall opportunism, an evolved unconscious male tendency resulting from uncertainty over
genetic parentage. / Law, Peter A. Allard School of / Graduate
| Identifer | oai:union.ndltd.org:UBC/oai:circle.library.ubc.ca:2429/11384 |
| Date | 05 1900 |
| Creators | Braithwaite, Murray James |
| Source Sets | University of British Columbia |
| Language | English |
| Detected Language | English |
| Type | Text, Thesis/Dissertation |
| Format | 32425006 bytes, application/pdf |
| Rights | For non-commercial purposes only, such as research, private study and education. Additional conditions apply, see Terms of Use https://open.library.ubc.ca/terms_of_use. |
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