Posted: May 24, 2001
he ghost of Justice Oliver Wendell Holmes, Jr. hovers—to borrow one of his own metaphors—like "a brooding omnipresence" over modern American law. Thanks to his influence we are all positivists now, and far worse for it. So argues Albert W. Alschuler of the University of Chicago Law School in Law Without Values: The Life, Work, and Legacy of Justice Holmes. In a devastating portrait of the jurist and his influence, Professor Alschuler argues that Holmes was almost brutishly indifferent to the welfare of others, that he celebrated the victory of the strong over the weak, and that his effort to denude law of its moral content left a poisonous legacy.
The thesis runs head-on against the flattering iconographies that bathe Holmes in adulation bordering on idolatry. "[T]he philosopher and seer, the greatest of our age in the domain of jurisprudence," "The philosopher become king," "[T]he most distinguished mind of its time," "[T]he great oracle of American legal thought," "[T]he most illustrious figure in the history of American law," "The only great American legal thinker"—such are the accolades routinely strewn at Holmes by leading academics and jurists.
No other figure in our legal annals, not even John Marshall, has prompted such sustained and extravagant praise. The great Chief Justice at least achieved fame through great public needs. His statesmanship may be said to have completed the founding. Marshall not only secured the place of the Supreme Court as the preeminent teacher of constitutional things, but by connecting its work to the principles of 1776 and 1789 he fostered the perpetuation of our political institutions. In his view, law was necessarily suffused with natural rights and duties that derived from a divinely ordained and rationally intelligible moral order. The common law incorporated that understanding, which found its architectonic expression in the Constitution.
Holmes's fame rests on a lower ground. Though he lectured and wrote on legal questions over many decades, and sat for nearly 50 years as a judge, he was uninterested in and had little to say about most of the grand questions of constitutional governance that concentrated Marshall's attention. His principal concern was the abstract logic of law and the development of private law in particular. About natural justice, the moral predicates of the American Founding, indeed morals generally, Holmes exuded barely concealed contempt. His teaching seems to be that law is merely an artifact of primal, amoral forces in our anthropological history. Though human nature remained irreducibly red in tooth and claw, mankind nevertheless managed to tame its excesses, that is to say, its bad men, through the artful use of force. As to what distinguishes good men from bad men, or how education or law might help to breed more of the former and fewer of the latter, Holmes was tellingly silent.
His was an oddly benevolent view of legal history. Odd, because if one takes seriously Holmes's dogmatic atheism and his equally dogmatic social Darwinism, it is hard to see how human nature could produce a relatively benevolent social order, much less so refined a creature as Oliver Wendell Holmes, Jr. This paradox was hardly unique to Holmes. An abiding prejudice of the late 19th century believed that History moved more or less inexorably onward and upward, even as its component parts seemed to suggest a darker reading of human potential. Fashionable thinkers of that day were free-riders on the intellectual capital and moral of forebears whose arguments they disdained. Like Condorcet at the beginning of the century, they had no need for "the hypothesis" of God or for the moral implications of that belief. Science had said good-bye to all that and would henceforth dispense its wonders to behold. Darwin was in his heaven, and natural selection ensured all was right with the world. Holmes shared this prejudice so deeply that he seems never to have questioned its premises. In this most fundamental feature of his though, from which all else radiated, he was but a child of his age, and not a particularly original or profound one at that.
Despite this, or, more likely because of it, Holmes's influence over contemporary law and law teaching has no rival. He has been claimed, to one degree or another and however implausibly, by virtually every important sect of modern jurisprudence. Thanks chiefly to the sycophantic propaganda of Felix Frankfurter and Harold Laski, he was even more implausibly claimed by the Progressives as a champion of social reform. In more recent times, he has been enthroned by theorists of Critical Legal Studies on the left, and by those of the Law and Economics movement on the right.
Holmes was all of these, and none. An almost reflexive moral skepticism undergirds his every thought like a basso continuo. One searches in vain for even the slightest trace of the compassionate liberal sentiment for which he is commonly praised. He was a borrower rather than a novel thinker, and his reputation rests more on the neatly turned epigram (of which he penned more than a few) than on carefully developed argument. Indeed, he relied for the most part on oracular pronouncements, laid down like so many ipse dixits without convincing supportive analysis. As Alschuler points out, these pithy declamations often disguise more than they reveal, and what they disguise is not always pretty to behold.
Further, many of Holmes's famous utterances—for example, "The life of the law has not been logic; it has been experience," or "General principles do not decide specific cases,"—are at best half-truths that are either indifferent to or ignorant of intelligent contrary arguments. His one book, the widely praised but little read The Common Law (1881) is notable chiefly for half-a-dozen widely quoted paragraphs in the first lecture. Alschuler notes that few have ever ventured into the dense, almost impenetrable wilds beyond. Much of it has the whiff of 19th century pseudo-science parading as history and appears in any event to have relied upon the unacknowledged work of others.
The lesson of the The Common Law, however, lies not in the arcane minutiae of English and American common law that dominate the text, but in Holmes's larger purpose. That purpose was to sever law from morals, and toward that end Holmes read the history of common law in Procrustean fashion, removing so far as he could anything that smacked of moral judgment. As he put it in his celebrated 1897 article, "The Path of the Law,"
For my own part, I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether…We should lose the fossil records of a good deal of history and the majesty got from ethical associations, but by ridding ourselves of an unnecessary confusion we should gain very much in the clearness of our thought.
In this enterprise, Holmes was, again, hardly unique among his peers; but his longevity (who else had known both John Quincy Adams and Alger Hiss?), his bully-pulpit on the Supreme Court, his penchant for the well-turned phrase, and the adulation of his admirers conjoined to ensure the success of his central mission. Historicism and relativism in variant forms are the only game in town these days at America's law schools. The natural law tradition, without which the development of common law, much less constitutional law, cannot be intelligently understood, is treated at best as so much quaint antiquarianism, or at worst as punishable heresy.
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Professor Alschuler's work is, as far as I can discern, the first candid book-length treatment of the nature and consequences of Holmes's nihilism. Holmes and his disciples, he says, "did not bring something bold or new by proclaiming that [law] is evolutionary and adaptive and can further human needs…[T]hose ideas were a source of pride for Americans from the beginning." Rather, they took something away—"the sense that law can further objectives beyond internal coherency, personal tastes and selfish interests." Although Holmes's analysis of law is frequently described as a "revolt against formalism," it was at its core "a revolt against objective concepts of right and wrong—a revolt against natural law."
The ultimate roots of Holmes's radical skepticism remain obscure, but his combat experience in the Civil War seemed to seal him forever in the view that all life, including discussion about good and evil, was nothing more than a struggle for power. Any hope he might have previously entertained about the possibilities of virtue appear to have been buried with his comrades at Ball's Bluff, Antietam, and Chancellorsville. It was a hard and gloomy man that emerged from 18 years of private law practice to deliver the lecture on which The Common Law was based, and, if anything, his pessimism grew darker in his subsequent service on that state and federal bench.
Alschuler deftly traces the course of Holmes's thought throughout his career, finding a remarkable consistency in his judicial opinions, articles, and correspondence. The man who thrilled Progressives with his insistence that the Constitution did not enact Herbert Spencer's Social Statics had more in common with Spencer than with social reformers whose tenets he despised. His letters and speeches are filled with allusions to the eternal struggle for existence and the triumph of the strong. Though dour about the prospects for humanity generally, Holmes again and again expressed extraordinary enthusiasm for those who (like himself) triumphed by superior wit, courage, or sheer force of will. He was, not surprisingly, a passionate believer in eugenics. His opinions on that subject, as even a sympathetic biographer felt compelled to say, "went beyond the conventional views on eugenics of his day." They were, not to put too fine a point on it, barbaric.
Perhaps the most astounding feature of the Holmes hagiography is his continuing reputation as a liberal reformer. Holmes must have laughed himself silly at the thought. He believed the Progressives to be fools, thought socialism was unbridled nonsense, and expressed contempt for what he called "the thick-fingered clowns" of the underclass. His much-heralded dissent in the bakery-hours case (Lochner v. New York) endeared him to the Progressives, who read his opinion as an endorsement of their agenda. But, as Alschuler points out, Holmes was merely applying to the legislative process the same principle he saw at work everywhere else. If the legislature of New York sought to fix hours of employment in what it deemed to be dangerous trades, far be it for the Supreme Court to countermand the victory of the dominant political force in the state.
The same holds true for the most part (there seems to have been some mellowing over time) for his celebrated views on freedom of speech: The marketplace theory of ideas, which Holmes read into America constitutional law was, again, but an application of the principle of endless competition. It mattered not to Holmes, however, whether the idea that triumphed in the market enhanced freedom or tyranny. Truth had nothing to do with the right ordering of being; it was simply a word to describe the winner of ideological contests. The Court had nothing to teach about the moral efficacy of ideas; its sole function was to insist that the rules of competitive struggle prevailed. While Holmes insisted that the Constitution did not enact Spencer's Social Statics, he labored mightily to ensure that it incorporated his own view of the cosmos.
It would be unjust to say that Holmes was a monstrous man, although on Alschuler's evidence one could be forgiven such a judgment. It is not unjust, however, to say that he lent his considerable intellectual talent and enthusiasm to monstrous ideas. Grant Gilmore, who struggled for 15 years at a Holmes biography before giving up, had it right: "Put out of your mind," he said,
the picture of the tolerant aristocrat, the great liberal, the eloquent defender of our liberties, the Yankee from Olympus. All that was savage, harsh, and cruel, a bitter and lifelong pessimist who saw in the course of human life nothing but a continuing struggle in which the rich and powerful impose their will on the poor and weak.
Professor Alschuler would agree. He is to be congratulated for bringing together in one place, fairly and courageously, evidence sufficient unto the indictment.