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interpretation of legislation, and (as will become evident) in his con-
stitutional restraint. This background underlies what Richard A. Posner
has identi¬ed as a tension between ¬‚exibility and strictness in Holmes™s
approach to interpretation as a judge.39


February 5, 1919, in F. S. Cohen, ed., “The Holmes-Cohen Correspondence,” 10 Journal
of the History of Ideas 14“15 (1948).
36 See Holmes to Pollock, March 4, 1888, in vol. 1, Holmes-Pollock Letters, 30“31.
37 Holmes, “Common Carriers and the Common Law,” in Formative Essays, 222“23, and in
3 Collected Works, 75“6.
38 Holmes, The Common Law, 38.
39 Posner, Introduction to The Essential Holmes, xii.
Holmes, Legal Theory, and Judicial Restraint
96

In contrast, the order of John Austin found its origins in three sources:
the enclosed, analytic, command vision of law proposed by Hobbes, Ben-
tham™s vision of utilitarian reform through legal command and sanction,
and (not least) the quest for a systematic understanding of law as a univer-
sal phenomenon. Like Holmes, Austin was driven by powerful personal
ambition, fed by his association with preeminent intellectuals. He saw
himself as the pioneer of a new scienti¬c jurisprudence. In the spirit of
his time, he adopted political economy as a model, recognized as the ¬rst
successful model of social science, and his driving ambition was to estab-
lish jurisprudence as a second such science, exhibiting similar scienti¬c
features.40
Holmes too had been impressed as an undergraduate with the expan-
sion of science, nurtured by his years at Harvard and extensive reading
after the Civil War,41 but his eventual picture of science was different,
focusing less on a speculative or Aristotelian model and more (like Wright
and Peirce) on the process of communal inquiry.42
The analytical positivism of Hobbes, Austin, and Hart has had surpris-
ing vitality, still remaining (as Ronald Dworkin now calls it) the “ruling
theory of law.” Its bias against history is deep. Modern positivism and its
contemporary critics have been intent on ¬nding essential truths in the
abstract debate over the relation of law and morals.
H. L. A. Hart™s separation of law and morals, inherited from Austin,
presumed that there are features of the two that are permanent, and
thus permanently distinguishable. Insofar as legal positivism has become
“merely a series of elaborations, emendations, and clari¬cations of
H. L. A. Hart™s work,”43 Holmes is clearly not a legal positivist in the
contemporary sense, though if positivism were given a broader de¬ni-
tion, as an effort to establish a study of law™s nature (as Brian Bix puts it)


40 W. L. Morison, John Austin (Stanford, Calif.: Stanford University Press, 1982), 1: “John
Austin believed that the ¬rst ˜moral™ (now, it would be called social) science to be estab-
lished was political economy, as expounded particularly by David Ricardo and epitomized
by James Mill. It was Austin™s own ambition to establish a second such science, jurispru-
dence, exhibiting the scienti¬c features which he admired in political economy. These
features were, ¬rstly, its presentation of its subject matter as patterns of observed mental
and physical events. It was an empirical science. Secondly, it presented its patterns of
events by reference to the universal features which all events have: their logical features
as these are discerned by the traditional logic associated with Aristotle. It was a logically
systematic science.”
41 See Howe, The Shaping Years, 17“18, 206“207, 209, 221“22, 256“58.
42 See n. 35 and chapters 3 and 5 supra.
43 Brian Bix, “Legal Positivism,” 32.
The General Theory of Liability 97

“in the scienti¬c spirit,”44 Holmes can be considered within the positivist
tradition.
Another nuance of the term “legal positivism,” hardly a formal theory,
is the notion that “might makes right,” and it has often been suggested
that Holmes™s occasional offhand remarks re¬‚ected a harsh version of this
viewpoint. While he may have believed that stronger interests generally
prevail in socio-legal con¬‚icts, he recognized that strength lay not just
in wealth but in organization, and his overall theory runs contrary to
any suggestion of judicial subservience or premature assistance to the
repositories of power.45
Holmes departs from Hart in one salient respect. Hart™s overriding
concern is to preserve a domain of study and understanding in which
contemporary law may be effectively de¬ned and, in a sense, con¬ned.
Bix, in the recent Blackwell Guide to the Philosophy of Law and Legal Theory,
describes it as “a study of the nature of law, disentangled from proposals
and prescriptions for which laws should be passed or how legal practice
should be maintained or reformed.”46 The key word here is “disentan-
gled,” a term that can imply the separation of real entities. As with the
semantics of texture, the quest for conceptual distinction has led to onto-
logical separation.47
The device through which Hart™s separation is maintained is his “Rule
of Recognition,” claimed to be a necessary feature of all law, implying
a stable set of social and professional conventions. By this device Hart
took the study of law a critical step further than a domain of understand-
ing to a domain of operation, a step that Holmes declined at an early
stage of his research. That step is implied by the tendency of analytical
positivism toward interpretive closure, giving the impression that a sys-
tematic understanding may permit answers to new legal questions. This
has reinforced the assumption of judicial determinism, that judges are


44 Id., 30.
45 The best explanation of Holmes™s view can be found in his own words: “It is perfectly
proper to regard and study the law simply as a great anthropological document. It is
proper to resort to it to discover what ideals of society have been strong enough to
reach that ¬nal form of expression, or what have been the changes in dominant ideals
from century to century. It is proper to study it as an exercise in the morphology and
transformation of human ideas.” Holmes, “Law in Science “ Science in Law,” in Collected
Legal Papers at 212.
46 Bix, “Legal Positivism,” 30.
47 This may be compared to Alfred North Whitehead™s criticism of “misplaced concrete-
ness.” Paul F. Schmidt, Perception and Cosmology in Whitehead™s Philosophy (New Brunswick,
N.J.: Rutgers University Press, 1967), 84.
Holmes, Legal Theory, and Judicial Restraint
98

primary and ¬nal actors, whether in the “interpreting” or the “making,”
of law.
Holmes ¬rst rejected this step in 1870 when he wrote that “it is the
merit of the common law that it decides the case ¬rst and determines
the principle afterwards.” New questions enter the domain of law as yet
unde¬ned and unclassi¬ed. They are decided individually, guided by
a sense of prevailing standards of prudent conduct, drawn in the ¬rst
instance from jury determinations. Arrangement takes place gradually,
as repeated instances lead to judicially abstracted rules. By the ongoing
contribution of lawyers, judges, legal scholars, and legislators, the law
over time takes on the likeness of an organized system, informing and
guiding most activity. Nevertheless, it is in the nature of dif¬cult cases,
rising to the higher levels of appeal, to contain some degree of novelty
and originality such that the existing system of understanding does not
provide an answer in precedent or authoritative text.
At this stage, Holmes™s account of the judicial role differs from that of
Hart and the positivists. For Hart, the judge alone is the primary actor
in resolving the matter. Either the answer can be found within the sys-
tem of legal understanding, permitting the judge to decide according
to legal reasoning, or it cannot, obliging the judge to “legislate,” that
is, to create new law. For Holmes, the judge should recognize the yet-
uncertain relation of the case to the law as it is presently understood, and
act accordingly, deciding the case on particular grounds, as a tentative,
perhaps experimental, step in the application of prior experience and
precedent toward an eventual general resolution. While Holmes some-
times referred to this as “interstitial legislation,” it has in his context an
entirely different meaning from that of Hart.48
Holmes™s position stands apart from the entire line of development
of contemporary legal philosophy. This literature has been heavily in¬‚u-
enced by Ronald Dworkin™s challenge to Hart™s concept of law, ¬rst devel-
oped in essays leading to Taking Rights Seriously (1977). There, Dworkin
famously claimed that Hart™s Rule of Recognition could not account for
the apparent operation of rights and principles in judicial decisions, a
subject I take up in the next chapter.
Morals in general “ the moral values and concerns of society “ are
distinguished by Holmes from moral propositions and arguments, in a

48 See Rosenberg, Hidden Holmes, 43; Posner, Problems of Jurisprudence, 20. I address this at
greater length in chapter 8, in the context of Holmes™s limited view of the judges™ role
in making “policy.”
The General Theory of Liability 99

way that they are not by Dworkin and the positivists. While the former
are permitted, indeed required, as a vital force in the development of
law, moral arguments are disquali¬ed by Holmes as grounds for legal
decisions. For Holmes, morals are not ontologically separate from law.
Words denoting them are, however, treated with the skepticism born of
his overall conception of law and the legal process. This attitude permits
us to take a new and more critical look at Dworkin™s theory itself.
7

Morals and Skepticism in Law




And in this activist climate (in which the government of faith seems so
preeminently relevant), the skeptical style must appear as an unintelligible
piece of sophistication. Government in this style is, we have seen, primarily
a judicial activity; and where men are intent upon achievement, either
individual or communal, judicial activity is easily mistaken for a hindrance.
It abdicates exactly at the point where the activist expects an assertion
of authority; it withdraws where he expects it to proceed; it insists upon
technicalities; it is narrow, severe and unenthusiastic; it is without courage
or conviction. Here is a style of government which recognizes a multiplicity
of directions of activity, and yet expresses approval of none; which assumes
imperfection and yet ventures upon no moral judgement. It sets a high
value on precedent, but does not believe that the path of precedent leads
to any speci¬c destination.
Michael Oakeshott, The Politics of Faith and the Politics of Scepticism

The above passage is taken from a manuscript found after Michael
Oakeshott™s death in 1990 and published in 1996.1 Oakeshott used foot-
notes sparingly, but employed one here to cite a passage from Holmes.
Criticizing the effort to perfect society through government power,
Oakeshott referred to a speech in 1899 to the New York State Bar

1 The manuscript appears to have been written shortly after World War II. Oakeshott™s
politics of faith refers to the perfectibility of human beings and their institutions through
their own efforts. The prime condition of the emergence of the politics of faith was a
“remarkable and intoxicating increase of human power” making its appearance at the
beginning of modern history and stimulating the hope of salvation through politics,
and the promise of prosperity, abundance, and welfare. This faith corresponds to that
disposition Oakeshott calls “rationalism in politics” or the “ideological style of politics.”
Oakeshott, The Politics of Faith and the Politics of Scepticism (New Haven and London: Yale
University Press, 1996), xi, 46.

100
Morals and Skepticism in Law 101

Association in which Holmes doubted the value of “eternal principles” in
de¬ning the limits of judicial policy making.

Precisely because I believe that the world would be just as well off if it lived under
laws different from ours in many ways, and because I believe that the claim of our
special code to respect is simply that it exists, that is the one to which we have
become accustomed and not that it represents an eternal principle, I am slow to
consent to overruling a precedent, and think that our important duty is to see
that the judicial duel shall be fought out in its accustomed way.2

Holmes has recently been held responsible for what Professor Albert
W. Alschuler calls a “downward path” of American law. Alschuler claims
that Holmes led the “revolt against natural law” that ended the “moral
realism” of the “golden age” of American law prior to the ¬nal third of the
nineteenth century. This set it on its current relativistic course, opposed
to lofty abstraction and moral principle “ a condition in which “[j]ustice
is nothing else but the interest of the stronger.”3
There is in the doubting of eternal principles an implied deference to
prevailing powers, but language here is treacherous, and care is required
in distinguishing between methods and outcomes. Oakeshott has helped
us to see that Alschuler™s conclusion does not follow from Holmes™s obser-
vation. Acknowledging the powers embodied in precedents, whether
social, economic, or the forgotten roots of taste and tradition, is not
a surrender to relativism or rank injustice.
The way that social progressives, such as the young Felix Frankfurter,
were drawn to Holmes despite his deeply unprogressive grounds for defer-
ring to legislation,4 shows how mightily Holmes has de¬ed easy characteri-
zation. An older Frankfurter, appointed to the Court by the next President
Roosevelt, was to all appearances more conservative, with acquired traits
of a Holmesean skepticism. Part of the mix “ and here I must defer to
G. Edward White and refer the reader to him “ is to be found in the biases
of time, class, and personality, just as we bring these to the table in reassess-
ing Holmes today. His skeptical mindset was complex and arguably often
inconsistent,5 but remains susceptible to an overall understanding.

2 The passage is from Holmes, “Law in Science “ Science in Law,” originally written as an
address to the New York State Bar Association on January 17, 1899; in Collected Legal Papers
at 239.
3 Alschuler, Law without Values, 8, citing Thrasymachus.
4 White, Justice Oliver Wendell Holmes, 378“411.
5 White notes, for example, that Holmes “simultaneously attacked the jurisprudential
soundness of a body of ˜federal common law™ and unabashedly contributed to developing
it in negligence cases,” and “was disinclined to defer to the verdicts of juries in common
Holmes, Legal Theory, and Judicial Restraint
102

In his common law“based theory, the state is not, as in Hobbes™s
Leviathan, the exclusive source of all law and legal rationality. The causal
relation of law and conduct is reversed: law largely follows the values of
society, it does not dictate them. Its principal elements are critical rather
than af¬rmatory: critical of legal ontology, system building, and uniform
taxonomy. It is critical even of the most conservative positivist legacy,
that of extreme textualism in legal interpretation. Holmes™s skepticism
re¬‚ects a distinctive understanding of society and its relation to the legal
process.
As noted in previous chapters, Holmes™s notion of the historical trans-
formation of standards of blame served to mark the common law as
embodying a skepticism of moral terminology, of deontological concepts
such as right and duty, and thus of ideology. His skepticism has frequently
been identi¬ed “ most recently by Louis Menand “ as a personal and
emotional component of his thought, whether deriving from his Civil
War experience or innate social Darwinist leanings.6 But skepticism, as
Gerald Postema has shown, was part of the strategy of traditional com-
mon law theory in challenging the defenders of the centralized state
in their problematic reliance, like that of Hobbes, on sovereign natural
reason.7
Coke employed this strategy in his Institutes: “The Common Law is
nothing else but reason. . . . But this is an arti¬cial perfection of Rea-
son gotten by long study, observation, and experience, and not every
mans natural reason,” concluding, “No man (out of his private reason)
ought to be wiser than the law, which is the perfection of reason.”8 A
similar point was advanced by Hale in the Re¬‚ections, questioning the
existence of a uniform faculty of reasoning and stressing the dif¬culty of
ministering with transparent rationality to the “diseased body” of human
affairs.


law subjects but inclined to tolerate the views of legislatures on constitutional questions”
(381, 409). He was remarkably quick to accept uncritically the bias toward eugenics in
upholding the compulsory sterilization of “mental defectives” in Buck v. Bell, 274 U.S. 200
(1927).
6 Professor Howe also saw Holmes™s skepticism as a product of his Civil War experience,
a theme popularized by Edmund Wilson in Patriotic Gore. Howe, “The Positivism of
Mr. Justice Holmes,” 64 Harv. L. Rev. at 536. See also Touster, “Holmes a Hundred Years
Ago,” 688“90; Louis Menand, The Metaphysical Club (New York: Farrar, Straus & Giroux,
2001), 61“67; Alschuler, Law without Values, 29.
7 Postema, Bentham and the Common Law Tradition, 60“71.
8 Coke, Institutes, vol. 1, sec. 21, p. 138.
Morals and Skepticism in Law 103

Common law skepticism was tied to a notion that the collective wisdom
in rules of long standing is more reliable than the logical judgment of any
particular individual. It is more reasonable, Hale writes in the Re¬‚ections,

to preferre a Law by wh[i]ch a Kingdome hath been happily governed four or ¬ve
hundr[e]d yeares then to adventure the happiness and Peace of a Kingdome upon
Some Theory of my owne tho™ I am better acquainted w[i]th the reasonableness
of my owne Theory than w[i]th that Law.9

Implicit in this argument is the idea that long experience has afforded
ample opportunity to adjust the common law to peculiar and unforeseen
circumstances. Thus Coke speaks of the process of re¬nement:

[O]ur days upon the earth are but as a shadow in respect of the old ancient days
and times past, wherein the laws have been by the wisdom of the most excellent
men, in many successions of ages, by long and continual experience, (the trial of
light and truth) ¬ned and re¬ned, which no one man, (being of so short a time
albeit he had in his head the wisdom of all the men in the world), in any one age
could ever have effected or attained unto.10

Of these two passages Postema comments:

The argument seems to rest on two related claims. First, it is argued that the law
has been subjected to “the trial of light and truth” and has been constantly, though
incrementally, readjusted to the complexities of civil life and the common good.
The perfection of any art, it is argued, is the product of time and this is no less
true of the art of fashioning a body of law to ¬t a nation and its needs. . . . Second,
it is claimed that, for the fashioning of civil arrangements, there is no alternative
to the test of time and history; in particular, no single person or generation, how-
ever sagacious and far-seeing, can hope to match the record of history. “[L]ong
and iterated experience . . . is the wisest expedient among mankind,” Hale insists,
because it “discovers those defects . . . which no wit of man could either at once
foresee or aptly remedy”.11

Similarities to Holmes are plain enough. What Holmes described in
1870 as the case-speci¬c method of decision making, which he there
calls “successive approximation,” is not far from what Postema describes
as legal rules being “constantly, though incrementally, readjusted to the
complexities of civil life and the common good.” It is a skepticism of ¬rst
impressions, and also of the allure of doctrinal certainty. The former is

9 Hale, Re¬‚ections, 504.
10 Coke, “Calvin™s Case,” 7 Coke™s Reports, quoted in J. A. G. Pocock, The Ancient Constitution
and the Feudal Law (Cambridge: Cambridge University Press, 1957), 35.
11 Postema, Bentham and the Common Law Tradition, 64, citing Hale, Re¬‚ections, 505.
Holmes, Legal Theory, and Judicial Restraint
104

found as early as 1870 in the comment that “[a] well settled legal doctrine
embodies the work of many minds, and has been tested in form as well
as substance by trained critics whose practical interest it is to resist it
at every step.” It is only strengthened by Holmes™s later conclusion that
moral terminology in the law hides the operation of external standards
of liability, and his discernment of the nonlogical origins of settled legal
doctrines.
In the extended critique of Austin, Holmes did more than simply
criticize the project of analytical classi¬cation. The vast inheritance of
legal concepts and relationships demanded an alternative explanation.
Holmes devised an understanding based on observation of the legal pro-
cess, from historical research as well as from his own intimate knowledge
of the law as it was practiced and catalogued. He developed an awareness
of the contingency of concepts in relation to the real events to which they
are related “ an awareness of a reality far more complex than formulaic
relationships.
Nearly sixty years later, in 1929, Holmes would recall the early in¬‚u-
ence of Chauncey Wright in a letter to Frederick Pollock:

Chauncey Wright a nearly forgotten philosopher of real merit, taught me when
young that I must not say necessary about the universe, that we don™t know whether
anything is necessary or not. So that I describe myself as a betabilitarian. I believe
that we can bet on the behavior of the universe in its contract with us. We bet we
can know what it will be. That leaves a loophole for free will “ in the miraculous
sense “ the creation of a new atom of force, although I don™t in the least believe
in it.12

Wright was nine years older than Holmes, had graduated in 1852 from
Harvard, and lived in Cambridge not far from the college and Holmes™s
birthplace. He is the only one of a number of brilliant Holmes friends in
Cambridge “ including William James, Charles S. Peirce, and N. St. John
Green “ whom Holmes credits as an in¬‚uence. According to Peirce, these
¬ve would with a few others in 1872 form the discussion group called
“The Metaphysical Club,” in which Peirce reports that Wright had a lead-
ing role.13 While Holmes is recalled by Peirce as attending this group,
there are no such meetings recorded in Holmes™s post-1867 diaries, which
became mere lists of his reading.
It is clear that Holmes engaged in something like a round-robin of
philosophical discussions with these and other Cambridge intellectuals,

12 Holmes to Pollock, August 30, 1929, in Holmes-Pollock Letters, vol. 2, p. 252.
13 Flower and Murphey, A History of Philosophy in America, vol. 2, p. 537.
Morals and Skepticism in Law 105

before and after 1872,14 and their writings suggest a mutual in¬‚uence.
Philip Wiener has noted the powerful impact of evolutionary theory on
all these young intellectuals. Particularly in¬‚uenced by Wright, who cor-
responded with Charles Darwin, an essential commonality was the notion
“that the meaning of a theory evolves with its experimental application,
that all claims to truth have to be publicly veri¬able and withstand the
competition of prevailing ideas, and that the function of ideas is to adjust
man to a precarious and changing world.”15
The name itself, “The Metaphysical Club,” is an ironic reference to
their abhorrence of metaphysical absolutism; Peirce described it as imply-
ing “that almost every proposition of ontological metaphysics is either
meaningless gibberish . . . or else is downright absurd.”16
In a paper Peirce claims to have circulated to the members, he set forth
what is referred to as the Pragmatic Maxim: “Consider what effects, that
might conceivably have practical bearings, we conceive the object of our
conception to have. Then, our conception of these effects is the whole
of our conception of the object.”17 An example is the concept of force in
physics; Peirce contends that it must be limited to the actual motions of
particles or bodies from which force is inferred. We may ¬nd a parallel
with the method used by Holmes to analyze legal concepts; an example
is found in his 1878 essay on “Possession.” First, here is Peirce:

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