The great Justice Oliver Wendell Holmes, Jr. penned a host of memorable aphorisms that summarize his legal philosophy: “The life of the law has not been logic, it has been experience”; “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law”; “The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it—and nothing else”; “I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law.” Most memorably of all, “If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.”
Albert Alschuler shows that those sentiments add up to a cold nihilism which Holmes’ many admirers have tried to soften by imagining that he was merely being provocative when he repeatedly stated his firm conviction that life is a struggle in which might makes right. The pious legend of Holmes as the progressive “Yankee from Olympus” whose jurisprudence prefigured the New Deal is a hoax perpetrated by a clique led by Felix Frankfurter and Harold Laski. Holmes’ equally talented father, an innovating physician and essayist, portrayed his son as The Young Astronomer, brilliant but aloof from the lives of others. The young Holmes was a zealous abolitionist, but he lost enthusiasm for this and all other causes during the Civil War, where he was wounded three times and saw comrades slain in the bloodiest battles. In maturity, Holmes was a consistent social Darwinist who glorified struggle regardless of the cause, and who could be brutally indifferent to suffering. Holmes’ official biographers have not been able to complete their task, at least partly because those who look too closely at the man feel more repugnance for their subject than official biographers are allowed to feel.
For all his brilliance, Alschuler argues, Holmes’ legal scholarship often wasn’t too sound either. He cultivated the myth that he had overcome a dry conceptual formalism in the law and replaced it with a realistic jurisprudence attuned to the needs of the day. However, no one has been able to find any specimens of the stereotypical conceptualizers whom Holmes supposedly vanquished. Certainly William Blackstone and Christopher Columbus Langdell, often cited as Holmes’ targets, were as alert to the value of experience as Holmes was; it ought to be clear to any practicing lawyer that the life of the law requires both experience and logic. Despite his reputation, there were occasions when Holmes himself could be accused of formalism, of being blind to the lessons of experience. For example, his torts scholarship failed to confront the reality of rampant industrial accidents in an age before government regulation of capitalism. He thought that the liability of an employer for the torts of his employees should be construed narrowly as a relic of the Roman law of master and slave, and he was in general content to leave without remedy employees injured by unsafe working conditions.
What Holmes was fighting was not formalism but the natural law tradition, the philosophy that there is an objective moral order ascertainable by reason. Taking the Darwinian revolution into the law, Holmes rejected the antebellum idea of natural justice in favor of a supposedly scientific legal positivism that identified law only with power. But any legal order must make some attempt to link the concept of law with the concept of justice.
Alschuler points out that the “bad man” whose perspective was decisive for Holmes does not really care about predicting judicial decisions as much as he cares about what the law enforcement agencies will do if he tries to get away with a crime. From the bad man’s standpoint, obligations imposed by legislation or court decisions are no more deserving of respect than those imposed by a robber at gunpoint. Yet, as Alschuler argues, any jurisprudence worthy of the name has to be able to distinguish the rule of law from the rule of the gunman writ large, but Holmes scarcely made the attempt. It would make considerably more sense to define “law” as the set of obligations that a good man will find presumptively authoritative, bearing in mind that there are undeniably occasions in which a higher morality permits or even requires disobedience to positive law. Alschuler illustrates the complexity of the relationship be tween law and morality with thought-provoking discussions of applications of the fugitive slave laws (possibly binding on Northern judges but certainly not on escaping slaves) and the 1944 plot against Hitler (even assassination can be justifiable under extreme circumstances).
If Alschuler’s analysis is accurate, how did Holmes attain such a misleading reputation? To begin with, he really was an intellectual giant, with a gift for crafting memorable sentences, and some of his positions happened to mesh with progressive objectives that he did not actually share. Holmes dissented when the Supreme Court overturned economic regulations as violating substantive due process or freedom of contract not because he favored the regulations, but because he thought that the forces which dominated the political branches should be allowed to govern in their own way. He voted for results that favored labor unions even though he thought that union successes tended mainly to impoverish other workers, because his philosophy of struggle implied that unions should be allowed to employ their most powerful weapons. He was originally unsympathetic to freedom of speech claims, going so far as to hold that a municipality was not required to allow free speech in a park since it had no obligation to establish the park in the first place. Much later, under the influence of the liberal Justice Louis Brandeis, he wrote a dissent that laid the cornerstone for modern free speech doctrine, and thus came down to history as a champion of First Amendment freedoms. By the end of his long life in 1935, Holmes was virtually a national monument, and liberal intellectuals found it convenient to portray him positively as a forerunner of the new governing philosophy.
Religious considerations may also have played a role. David Hollinger, professor of American intellectual history at Berkeley, suggests in Science, Jews, and Secular Culture that secularized Jews wanted to promote the reputation of a Yankee aristocrat who was so emphatically non-Christian. “Holmes’ influence promised, then, to help release American culture from a Christian bias that most Jewish intellectuals found provincial at best and that at worst provided a basis for continued prejudice against Jews and other non-Christians.”
I have taught Holmes’ seminal lecture on “The Path of the Law” to law students for many years, and have noted that it “has been so influential in shaping the thinking of American lawyers that it might be described as almost part of the Constitution.” As a thinker Holmes was a great destroyer in the mold of Hume or Nietzsche, a tradition that continued in debased form in the century of Russell, Foucault, and Derrida. The destroyers are skeptics who scoff at any morality that requires reference to a creator, since such ideas have supposedly been discredited by the advance of knowledge. Yet in doing so they are left with no foundation for moral knowledge, and must get by with notions of liberation, struggle, and propaganda. As I ask my students, “Where did Holmes go wrong—or was he right after all?”
Alschuler thinks that the grand old man went wrong because of the disillusioning effect of his traumatic Civil War experience, and because his scientific positivist epistemology denied that such things as moral principles could be discerned by reason. A better modernist epistemology teaches that we can have knowledge of right and wrong even where we cannot have proof, applying concepts like coherency, reflective equilibrium, and inference to the best explanation. Experience with modern totalitarians has been as effective a teacher for us as the Civil War was for Holmes. Although we recognize the shaky foundations of moral philosophy in a post-Darwinian culture, we are as certain that Hitler and Stalin were morally wrong as we are of the simple truths of arithmetic or scientific observation. The skeptical position that there is no moral knowledge is untenable.
As I finished this very readable and illuminating book, I found that I was at a familiar starting point. It is the intuitive truth that C. S. Lewis begins with in Mere Christianity. We live in a world where evil exists in plenty, and often prospers. Moral skeptics have the best superficial arguments. But the life of the mind is a combination of logic and also experience, rightly interpreted. A mind in good condition knows that a philosophy that does not provide a foundation for moral knowledge is inadequate. If you want to know about the law, and everything else, you must think as a good person (because we know that there really is such a thing), and affirm what every good person knows, and what every bad person also knows but suppresses. There is a real good and a real evil, and the rule of law is a mechanism for maximizing the former and minimizing the latter.
Phillip E. Johnson teaches law at the University of California at Berkeley.