Oliver Wendell Holmes, Jr. (1841-1935) holds a special place in American jurisprudence. [1] He taught law at Harvard Law School, and practiced law privately in the area of admiralty, among others. In 1881, Holmes published a series of lectures titled, The Common Law in which he announced his famous dictum: “The life of the law has not been logic; it has been experience.” [2] He served on the United States Supreme court from 1902 until 1932—the longest tenure of any justice to date.
Brief Biography
Holmes was born into a famous American intellectual family. His father, Oliver Wendall Holmes, Sr., was a noted poet. His family situation meant that he was introduced to all the best families in Boston. He graduated from Harvard as an undergraduate in 1861 and immediately enlisted as a soldier in the Massachusetts militia, where he served with distinction. Holmes saw action as an officer in the Peninsula Campaign, the Wilderness Campaign, and was wounded during the Battle of Ball’s Bluff, Antietam, and Chancellorsville. In the end, Holmes was breveted a Colonel in the Army, and returned home in 1864 weary and sick.
As a Bostonian from a prominent intellectual family, Holmes was well-acquainted with the early pragmatists. He was a close personal friend of William James. He attended a study group known as the “Metaphysical Club” with James, Charles Sanders Peirce another lawyer, Nicholas St. John Green, and Chauncy Wright. It is quite likely that Holmes was present when Peirce read his classic paper, “Fixation of Belief” in which he outlined his pragmatic theory of truth. Holmes attended some of Peirce’ s lectures, on science and inquiry, at the Lowell Institute in 1866.
It is my view that Holmes jurisprudence was substantially impacted by his experiences in the Civil War. His occasional ruthlessness and friendliness towards Social Darwinism evidence the impact of the “Great Crusade,” on his life and thought. A quote I ran across makes this point:
For the generation that lived through it, the Civil War was a terrible and traumatic experience. It tore a hole in their lives. To some of them, the war seemed not just a failure of democracy, but a failure of culture, a failure of ideas. As traumatic wars do—as the World War I would do for many Europeans 60 years later and as the Vietnam War would do for many Americans 100 years later—the Civil War discredited the beliefs and assumptions of the era that preceded it.[3]
The author of this quote was speaking about Holmes and the other members of the Metaphysical Club of which he was a member and Chauncy Wright the leader. Holmes came out of the suffering and tragedy of Civil War an ardent materialist, a Darwinian evolutionist, and a religious and moral skeptic. He took these views with him to the United States Supreme court. [4]
In 1864, Holmes entered Harvard Law School. In those days, a three-year law degree and admittance to the bar by testing was not the norm. Holmes attended lectures for a year, read theoretical works extensively, and then clerked for a year in his cousin’s law office. He was admitted to the Massachusetts Bar in 1866. After traveling to London to complete his education, he practiced law in Boston, where he was a commercial and admiralty lawyer. Holmes taught at Harvard Law School and was a member of the Massachusetts Supreme Court from 1899-1902, when he was appointed to the U.S. Supreme Court, where he served from 1902 until 1932.
Holmes as a Pragmatist
In 1881, Holmes published a series of lectures titled, The Common Law in which he announced an empirical theory of the law, saying:
The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. [5]
Law as Experience-Based. In the quote from The Common Law, we see the empirical, pragmatic basis of Holmes thinking. The law is something that results from human experience. That experience included the felt necessities (or political pressures) of the day and time in which law is made, prevalent moral theories, political theories and ideas of public policy, all the ideas and prejudices that a given society has internalized over centuries of time. The judge is a kind of “legal scientist” who along with all other members of the bar are in a common activity examining the facts of cases, looking at the results of prior similar cases, examining the legal and public policy ideas and prejudices attempting to create a coherent and practically effective set of laws to guide society.
Law as a Communal Task. As such, the law is a tradition of inquiry, a common undertaking of lawyers, judges, legislatures, and officials, all of whom participate in the development of the law. The law grows over time as the participants in the legal community work together to apply existing law and adapt it to the demands of the day and time within which they live. In other words, law is a communal undertaking, much like the communal undertaking of a community of scientists, an ideal that Holmes would have heard from Peirce.
Law as Fallible. There is also in Holmes an element of Peirce’s fallibilism, for the law grows also by a process of trial and error, in which there can be doubt, conflict, and missteps that must be corrected over time. [6] Judges and courts can and do make mistakes, as do legislatures, administrations, and permanent bureaucracies. It is the willingness to hold one’s ideas firmly, but with a willingness to learn, change them, and adapt to new information and ideas that is the mark of a fallibilist. Only if courts and legislatures are aware of their limitations and tendency to err can a government be truly pragmatic.
Legal Realism
In a famous essay entitled, “The Path of the Law,” Holmes more clearly set out his notion of legal realism. [7] In this essay, which was originally a lecture, Holmes set out three views that characterize much of the legal realistism movement of his day:
- A “Predictive Theory” of justice;
- A “Bad Man” theory of law.
- An opposition to the conflation of law and morality; and
A Predictive Notion of Justice. Holmes begins his analysis by defining a legal duty as nothing but “a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court; and so of a legal right.” [8] In other words, law is a kind of prophetic activity by which lawyers advise clients as to what may or may not be the consequences of a particular course of action. Notice that ideas of natural law and justice disappear from view in this analysis. What is left is reflection on the power of the law as administered by the courts.
A “Bad Man” Theory of Law. Homes then goes on to introduce his Bad Man theory of law, which will be used to distinguish law and morality:
You can see very plainly that a bad man has as much reason as a good one for wishing to avoid an encounter with the public force, and therefore you can see the practical importance of the distinction between morality and law. A man who cares nothing for an ethical rule which is believed and practised by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can. [9]
Here we see set out the basis of a distinction between morality and law. While good people want to abide by the law and act with justice towards others, bad people have no such moral impulse to be law abiding citizens. They do, however, want to avoid punishment and the expense of litigation and the payment of damages. Therefore, the law is of interest to all people, good and bad, but for different reasons. So far as it goes, both Christian and a natural law thinker can agree with Holmes on this point. The law is different from morality. Not everything that is moral is legal, and not everything that is immoral is illegal.
The law, as a practical occupation, must take the human race as it finds it. The law has to be constructed so that good people and bad people are both alike instructed in the behaviors that are permitted and for bidden by a society. Thus, Holmes notes:
I have just shown the practical reason for saying so. 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. [10]
Note Holmes’ distinction: If what you want to know is the law and nothing else, look to that person who is unconstrained by morality. Good men act properly from broader motives than law, and have reasons for good conduct that the bad person does not have.
Opposition to Conflation of Law and Morality. Having begun by distinguishing law and morality, in hopes to avoid confusion in matters of law, Holmes then attacks misguided attempts to confuse law and morality. In my view, it is this portion of homes argument that is both often misunderstood and partially ill-advised. Holmes begins his analysis with the following disclaimer:
I take it for granted that no hearer of mine will misinterpret what I have to say as the language of cynicism. The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race. The practice of it, in spite of popular jests, tends to make good citizens and good men. When I emphasize the difference between law and morals I do so with reference to a single end, that of learning and understanding the law. [11]
Commentators often miss this limitation on what Holmes is saying. He begins by stating clearly that he does not want to be seen as a defender of moral cynicism. Law is connected to morality, because it is the “witness an external deposit of our moral life”. In fact the law contains (or should contain) within it a history of human moral progress. In addition, as a practical matter, law tends to make people better human beings as well as better citizens. However, morality is not law, and in order to understand the law and apply it, it is necessary to hold the two ideas separate for purposes of analysis. This separation is pragmatic and theoretical not as a matter of life in its wholeness. Thus, Holmes goes on to say:
I do not say that there is not a wider point of view from which the distinction between law and morals becomes of secondary or no importance, as all mathematical distinctions vanish in presence of the infinite. But I do say that that distinction is of the first importance for the object which we are here to consider—a right study and mastery of the law as a business with well understood limits, a body of dogma enclosed within definite lines. [12]
The distinction between law and morality is a practical one as it enables us to focus on law and to create a coherent body of law within defined limits, being the limits of what the state is and is not willingness to enforce. It is also a theoretical distinction because it enables an analysis of law as law. [13] What Holmes is not saying (or at least in my view should not be saying) is that morality is irrelevant to the actors, legislators, administrators, bureaucrats, and judges who administer the law. It is the law that is different from morality, not people who should be bound by some moral vision. In fact, Holmes seems to be aware that “from a broader point of view” the distinction between morality and law might disappear.
What Holmes means is difficult to grasp, but I think this may be a point at which he was influenced by Peirce and his version of pragmatism. For Peirce and Royce, while within the boundaries of history there is little prospect of human agreement on certain points of law or other communal activities, the goal of any community of inquirers is to seek that point of agreement that they have discovered the truth about a matter under investigation. This, at the end of history, one can hope that any disagreements between law and morality would disappear. In the meantime, on many points further inquiry and careful experiment may result in such agreement.
Conclusion
Holmes was a complex thinker and not systematic in his approach to legal or philosophical issues. As a materialist, he lacked Peirce’s faith in the reality of such abstract universal notions as “Justice.” As a committed evolutionist, he saw the law as a constantly evolving body of rules for human behavior. As a Social Darwinist, he was inclined towards support of the powerful and socially successful as against the weak, poor, and powerless. [14]. Consistent with this overall view of law, he attempted to keep that search within the boundaries of the law as enacted by the people, the legislatures, and courts.
His attempt is to build a coherent body of law without reference to natural law and some ideal of human flourishing is, in my view, useful theoretically but dangerous practically. It is a short step from Holmes to the kind of legal nihilism common today in which law is “nothing but what the judges say it is.” A better jurisprudence is one constrained by notions of law and justice developed over centuries, and in the case of American Constitutional Law, over the history of the United States of America. The ideal of justice is a universal ideal that continually reveals itself as the members of the legal community embark on a shared journey seeking justice and the common good in the practice and theory of law.
Such an undertaking is not a journey of certainty but of measured attempts to achieve public wisdom and the public good under the constraints of human fallibility The courts are but one link in the chain of reasoning toward the public good. Legislative bodies, administrative bodies, and others have a role to play along with the judicial system. I would argue that the notion of Natural Law and ideals of justice and common good are more important for legislative bodies for they are the groups who in the first instance are to make laws and embody notions of morality and justice in their decisions.
Copyright 2022, G. Christopher Scruggs, All Rights Reserved
[1] For those who wish a longer and very favorable treatment of Holmes’ life, I can only recommend Catherine Drinker Bowen’s work, Yank from Olympus, which has been the most popular of his biographies. I have relied on Wikipedia for some of the details of this introduction. See, Oliver Wendall Holmes, Jr. at https://en.wikipedia.org/wiki/Oliver_Wendell_Holmes_Jr. (downloaded April 12, 2022).
[2] Oliver Wendall Holmes, The Common Law Mark D. Howe, ed (Boston, MA: Little Brown & Co., 1881, reprinted 1963).
[3] Thomas B. Silver quoting “Pragmatism’s Four Horsemen” in Clairmont Review of Books, Volume 1, Number 4 (Summer 2001)at https://claremontreviewofbooks.com/pragmatisms-four-horsemen/ (downloaded April 12, 2022).
[4] See, Sheldon M. Novick, Justice Holmes’s Philosophy 40 Washington University Law Review No. 3 (1992) for a very fine analysis of the philosophical interests and commitments of Justice Holmes.
[5] Common Law, previously cited.
[6] This was suggested to me by a paper by Cheryl Misak, “A Pragmatist Account of Legitimacy and Authority” at https://static1.squarespace.com/static/5a47c831be42d6e6324a04f5/t/5a48fb758165f54918c12f2e/1514732410344/PRAGMATISM-AND-AUTHORITY-FINAL.pdf (downloaded April 12, 2022).
[7] Oliver Wendell Holmes, Jr, The Path of the Law 10 Harvard Law Review 457 (1897), reprinted in Milton R. Konvitz, ed, The American Pragmatists (Cleveland, OH, Meridian Books, 1970).
[8] Id, at 145.
[9] Id, at 146.
[10] Id.
[11] Id.
[12] Id at 146.
[13] . Holmes goes on to note “The theoretical importance of the distinction is no less, if you would reason on your subject aright.” Id, at 147.
[14] See, Seth Vannatta, Justice Holmes the Social Darwinist 14 The Pluralist 1 (Spring 2019). This aspect of Holmes philosophy is by far the most often critiqued.