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In a recent admired work on Analytical Mechanics it is stated that we understand
precisely the effect of force, but what force itself is we do not understand! This is
simply a self-contradiction. The idea which the word force excites in our minds
has no other function than to affect our actions, and these actions can have
no reference to force otherwise than through its effects. Consequently, if we
know what the effects of force are, we are acquainted with every fact which is
implied in saying that a force exists, and there is nothing more to know. The
truth is, there is some vague notion a¬‚oat that a question may mean something
which the mind cannot conceive; and when some hair-splitting philosophers have
been confronted with the absurdity of such a view, they have invented an empty
distinction between positive and negative conceptions, in the attempt to give their
non-idea a form not obviously nonsensical.18

Similarly, Holmes saw the intrusion of Kantian notions into the law of
possession as carrying the concept of intention beyond its practical bearing

14 Menand, The Metaphysical Club, 201“35.
15 Wiener, Evolution and the Founders of Pragmatism, 26.
16 Peirce, Collected Papers, vol. 5, p. 282.
17 Id., 258.
18 Id., 264“55.
Holmes, Legal Theory, and Judicial Restraint
106

in legal proceedings. As he was to summarize in The Common Law, “The
theory has fallen into the hands of the philosophers, and with them has
become a corner-stone of more than one elaborate structure.”19 Holmes
saw this as not only false but self-reinforcing:

Possession was for [Kant] an extension of the ego, a setting of the will into some-
what external to it, and thus an appropriation of that somewhat, or, as Hegel
would have said, possession is an objective realization of free will; and the real-
ized free will of the individual can only be restrained when in opposition to the
freedom of all, to the universal will expressed by the state. The natural operation
of this view on the minds of German lawyers has been to lead them to consider
the intent necessary to possession as primarily self-regarding. . . . The will of the
possessor being conceived as self-regarding, the intent with which he must hold
is thereupon treated in the same way: he must hold for his own bene¬t.
[T]he direct operation of the law is to limit freedom of action or choice on the
part of a greater or less number of persons in certain speci¬ed ways; while the
fact that the power of removing or enforcing this limitation is generally con¬ded
to certain other private persons is not a necessary or universal correlative. Again,
the law does not enable me to use or abuse this book which lies before me. That
is a physical power which I have without the aid of the law. What the law does is
simply to prevent other men to a greater or less extent from interfering with my
use or abuse. Such being the direct operation of the law in the case of possession,
one would think that the animus or intent most nearly parallel to its movement
would be the intent of which we are in search. If what the law does is to exclude
others from interfering with the object, the intent which the law should require
would seem to be an intent to exclude others.20

Both papers were published in the same year, 1878.
If there is a version of the pragmatic maxim implicit in the Holmes
article, it is a resistance to an expanded idealist or deontological interpre-
tation of general legal terms by reducing them to their effects in determin-
ing liability. This form of skepticism revealed the danger of importing ide-
ology into the grounds for decisions, and would later be used by Holmes
to resist the introduction of laissez-faire economic theory into constitu-
tional due process. A legal concept, including a constitutional “right,” was
denied any inherent abstract content and was limited in meaning to its
effects in shaping the particular form of legal liability. The embodiment
of those effects was to be sought in prior precedent. Precedent, mean-
while, had been reinterpreted in Holmes™s early articles as a consensus
growing out of the gradual sifting of case-speci¬c decisions.

19 Holmes, The Common Law, 163.
20 Holmes, “Possession,” in Formative Essays, 180, and in 3 Collected Works, 46“7.
Morals and Skepticism in Law 107

Considered in light of the rest of Holmes™s theory, skepticism was part
of a broader perspective. It was connected to an understanding of the for-
mation of concepts in the process of communal or social inquiry. Peirce™s
formulation, applicable to his scienti¬c interests, was that inquiry began
with doubt and sought belief, and that it took place in an ongoing commu-
nity of the inquirers who worked on the given problem, experimenting
and addressing new ¬ndings or circumstances as the inquiry progressed.
This “community” was not singular and temporary, its work might require
several generations of cognate studies, and any consensus could be grad-
ual and transgenerational “ a notion suited to the common law. Belief
was expressed in general formulations that were themselves subject to
revision as the inquiry progressed.21
For Holmes the growth of legal rules began with doubt surrounding an
emergent problem and emerged from separate case-speci¬c proceedings,
exploring common forms of dispute-engendering conduct, each instance
displaying varied circumstances. The outcome sought was a general rule,
believed to address the relevant conditions, but necessarily open to revi-
sion or re¬nement.
The skepticism growing out of this perspective re¬‚ects several kinds of
uncertainty. There is no single supreme matrix of law dictating answers
to close questions. Rules and principles emerge gradually; at an early
stage no single observer is in a position to know the outcome, or perhaps
even the direction, of inquiry. In a scienti¬c context, the direction of
inquiry might be roughly speci¬ed; but in legal disputes, even that may
be subject to derailment by the in¬‚uence of doctrine or ideology. This was
a particular threat in close or dif¬cult cases, where competing rules came
into play and judges were tempted to choose a direction by reference to
a sweeping maxim or “eternal principle,” rather than working their way
through the relevant case law, the historical background and applicability
of competing precedents.
Both Holmes and the common law tradition drew on the notion of a
collective insight, which Postema describes as “that reason itself “ or at
any rate, the sort of practical reason called for in human civic affairs, “
is essentially social, that the collective wisdom reposited in the histori-
cally evolved Common Law provides the context within which alone the
exercise of civic practical reason is possible.”22 But for Holmes there are
important departures from that tradition.

21 Peirce, Collected Papers, vol. 5, p. 231.
22 Postema, Bentham and the Common Law Tradition, 70.
Holmes, Legal Theory, and Judicial Restraint
108

In his challenge to Austin, Holmes implicitly raises the question of
whether to characterize the common law tradition as entirely one of
reason at all. The presumption of a pervasive collective wisdom through-
out the common law is undermined by the apparent nonlogical origins
of legal rules and conceptions, and the use of ¬ctions to hide surviving
vestiges. Even if Holmes was not a canonical legal realist, equating law
with the decisions of legal of¬cials, he maintained a realistic awareness of
the persistence of capricious rulings by individual judges, and as a judge
he would witness at ¬rst hand the operation of the intellectualist fallacy.
His formulation recognizes the importance of novelty in the nature of
con¬‚icts that work their way up through the courts, as well as their embod-
iment of struggles among opposing interests seeking to impose their will
on the eventual rules.
This should counter the impression that Holmes™s skepticism grows
mainly out of cynicism. Given the impediments to “reason” in the growth
of the law, there is a sense in which his unvarnished realism is illuminating.
Insofar as law is the result of centuries of collective responses to social
disputes and con¬‚icts, imperfectly re¬ned and rationalized by judges,
legislators, and scholars, it is the residue of the actual historical reasoning
process of society, warts and all: vestiges, ¬ctions, intellectualisms, and
unresolved struggles in a retrospectively camou¬‚aged display. Despite
emergent and changing patterns of conduct, struggles among competing
interests, and ¬‚awed individual judgments, the depiction leaves ample
room for a gradual and revisable formation of consensus.
In the early article “The Theory of Torts,” juries appear to play a criti-
cal role in legal development. Their decisions are depicted as providing
the raw data, the case-speci¬c decisions, indicating the relevant commu-
nity standard of conduct from which judges eventually abstract rules. Jury
decisions have the effect of in¬‚uencing the legal articulation of standards
of conduct, drawn as much from outside as from inside the legal profes-
sion and its body of doctrine. They help to shape general standards of
ordinary prudence, using the standard of the “reasonable” or “prudent”
man. In deciding where the cost of an injury should be born, juries are
depicted as knowledgeable interpreters of the customs of the usual types
of litigants, and judges refrain from rule making until a clear pattern of
decisions has established the standards and expectations indigenous to a
given practice.23

23 As a depiction of the origin of earliest rules of liability, this model would have little
support. Juries began not as independent assessors of fact, but as recognitors, attestors
to the oaths of parties. It was at a late stage, after much doctrine was established, that
Morals and Skepticism in Law 109

It seems clear that the traditional depiction of common law inquiry
as social in nature acquires an original de¬nition and importance in
Holmes™s reconstruction. Its sense of reason is more naturalist than that
of Coke; Holmesean reason is but an ideal, never fully realizable, but
arguably made more attainable by an accurate map of ¬‚aws and miscon-
ceptions both past and present. Its authority is not to be found in a ¬nal
embedded collective wisdom, for this too is a chimera; constant reconsid-
eration is under way. In this sense, reconsideration “ when appropriate “
is itself a source of authority. The authority for revision is to be found
not in detached abstract or sovereign reason, but rather in a consulta-
tive partnership with the affected community and its practices, seeking
reasons not in pure logic but in what he would call “public policy.”
In this reconstruction, the method of the common law might almost be
understood as conforming the legal order to a process of rule formation
and revision that is, if not democratic in the majoritarian sense, nev-
ertheless neither fundamentally autocratic nor surreptitiously counter-
majoritarian. Holmes™s initial formulation of common law rules, derived
by the community-oriented process of “successive approximation” and
strikingly parallel to the process Peirce attributed to the development of
scienti¬c principles, pre¬gures Dewey™s theory of democratic inquiry.24
The function of a community of inquirers was as central to the legal
theory of Holmes as to the scienti¬c and philosophical theory of Peirce.
This picture could have political as well as philosophical signi¬cance. The
generalizing element of law “ the process of rule making and the analysis
that goes along with it “ could be seen not as imposed from above but as

the fact-¬nding function became distinct. Early case reports were sketchy and not gen-
erally careful to report facts, focusing rather on the subjective interests of reporters. See
S. F. C. Milsom, Historical Foundations of the Common Law (London: Butterworths, 1969),
34, 36“8. Holmes certainly knew this “ his diaries re¬‚ect exposure to enough legal his-
tory to cast doubt on his model as a historical account. See Little, “The Early Reading
of Justice Oliver Wendell Holmes,” 8 Harvard Library Bulletin 168“80. Yet even as a later
development of common law in America, the account is questionable; Professor Horwitz
argues at length that judges had far more in¬‚uence than juries on the transforma-
tion of liability. See Morton J. Horwitz, The Transformation of American Law 1780“1860
(Cambridge, Mass., and London: Harvard University Press, 1977). Nevertheless, the
model appears to emerge from the research done by Holmes on his edition of Kent™s
Commentaries; Commentaries on American Law, vol. 2: 561, n. 1; 2 Collected Works, 198 n. It
may have been supported by an awareness of the practice of Lord Mans¬eld in relying
on “special juries” chosen to determine standards of conduct in specialized matters,
and ¬rst inspired by generalizing from the historical account of the growth of the pru-
dent man standard in Jones on Bailments, which appears in Holmes™s diary of reading for
1865“66. Little, supra, 169; Jones, An Essay on the Law of Bailments.
24 See Robert B. Westbrook, John Dewey and American Democracy (Ithaca, N.Y.: Cornell
University Press, 1991).
Holmes, Legal Theory, and Judicial Restraint
110

subservient to indigenous custom and practice, indeed to the distinctive
practices of the new American society. The community of observers that
governed Peirce™s conception of scienti¬c inquiry would translate into
a vast community of living actors determining the continuing growth of
the law and making it responsive to emerging social practices.
Moreover, subjective legal theory making could be reined in by such
a conception. The ¬xation of legal concepts and classi¬cations would
await the deliberate and fair assessment of the actual consequences of
speci¬c decisions. Hence in the legal context can be seen the practical
importance of the so-called Pragmatic Maxim, whereby concepts are to
be tested by their consequences.25 If this maxim is not strictly observed in
the legal arena, loose abstraction does more than cloud or distort theory
making; it impinges on freedom of action, as the abstractions of law in
the hands of judges carry coercive power.26
The notion of restraint is thus not located strictly within the legal or
political domain, as a condition of the proper operation of a putative
system of governance. Nor is law seen as separate and autonomous, as in
the dominant school of theory still prevailing in England and America.
Instead, judicial restraint is seen as a limiting condition of collective
inquiry into the conditions of social ordering, of which law and gov-
ernance is a contributing, but not the only, factor, its extent and oper-
ation to be determined according to the overall success of the project


25 The best known version of the pragmatic maxim is “consider the 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.”
5 Collected Papers, 258. In one version of the pragmatic maxim Peirce writes that “if we
know what the effects of force are, we are acquainted with every fact which is implied in
saying that a force exists, and there is nothing more to know.” 5 Collected Papers, 265.
26 For classical pragmatism, generalizing was tested by consequences and connected to
the solution of human problems. In law, this highlights the degree of inclusion; yet
not just in law, but in science and (a then revolutionary notion) in philosophy itself,
meaning can be described as the best consensus of all those confronted with a practi-
cal stake in the outcome. Fallibilism, the attitude that no formulation of any principle
can be comprehensively ¬nal, originated in the discussions of the Metaphysical Club
as a reference to the inherent element of uncertainty and ambiguity in forming and
translating that consensus through language. We should note how different this is from
the Continental associations of the more recent version of pragmatism, which has been
given currency under the name of “neopragmatism.” Both have emphasized a critique
of the foundationalist tendency of Western philosophy. But nineteenth-century pragma-
tism came to this view less from a sense of exhaustion of the Enlightenment tradition
and more from a democratic reconceptualization of Western scienti¬c and political cul-
ture. See generally Kellogg, “Who Owns Pragmatism,” Journal of Speculative Philosophy 6,
no. 67 (1992).
Morals and Skepticism in Law 111

of an ordered society. How this is to be managed is a question that runs
throughout Holmes™s judicial career, albeit often obscured by his willing-
ness to exercise judicial authority in settling dif¬cult issues “ when he
viewed them as ripe “ and his evident pride in doing so.27
Holmes observes near the beginning of The Common Law that “the
life of the law has not been logic, it has been experience.” While antici-
pated in Hale™s Re¬‚ections, that insight takes on a new meaning. In cutting
away the presumptively precise and self-determining character of law and
replacing it with human exigency, control over the generalizing and rule-
making element was detached from its traditional location in the state
and rooted in society at large. His was a revolutionary, presumptively
classless society dedicated to the radical principles of 1776. Hence it was
necessary to recognize the breadth of the community with a stake in the
outcome of debate, including philosophical debate, which might affect
legal theory and in turn the exercise of sanctions affecting everyone.
Holmes™s critique of moral language stands in sharp contrast to the
abstract and ahistorical separation of law and morals in contemporary
positivism. Morals, in the sense of community standards of conduct, are
for Holmes inseparable from the legal process, as they affect its growth
and development. But appeals to moral principle by lawyers and judges
are to be treated with the utmost caution when they attempt to steer the
outcome of a case away from the more concrete and distinctive paths
of precedent, outside the established or enacted framework of conduct
and association. The historical dimension, and the location of morals in
a subtle and dynamic relationship to law, is an essential part. As noted
in the preceding chapters, this dimension is profoundly missing from
contemporary theory.
Also missing is the reality of ongoing social con¬‚ict, fully recognized in
Holmes™s depiction of law. Although positivism originally recognized the
prominence of con¬‚ict in the works of Thomas Hobbes, its contempo-
rary successor is relatively unconcerned with any broader vision of law in
society; it is now preoccupied with the abstract de¬nition of law. The legal
order of John Austin found its origins in the three sources mentioned
earlier: the enclosed, analytic, command vision of law ¬rst proposed by
Hobbes, Bentham™s vision of utilitarian reform through legal command
and sanction, and the quest for a systematic understanding of law as a
universal phenomenon.

27 See Mark Tushnet, “The Logic of Experience: Oliver Wendell Holmes on the Supreme
Judicial Court,” 63 Va. L. Rev. 975 (1977); White, Justice Oliver Wendell Holmes, 312ff.
Holmes, Legal Theory, and Judicial Restraint
112

Positivism, as modi¬ed by H. L. A. Hart and his followers, retains only
a weak interest in the third of these considerations. It has given up the
command de¬nition, since de¬ning the sovereign in modern democratic
society has proven problematic and the notion of law as command overly
simplistic.28 It is detached from utilitarianism and maintains only a loose
association with political philosophy. It makes no effort to detail the law™s
overall classi¬cation, as Austin did, content instead to appeal only to
broad abstractions in addressing whether law and morals are separate.
That question, devoid of historical and political context, is what princi-
pally remains of the positivist tradition, now holding a defensive rhetorical
line whose original purpose retains only a dim resonance.
Hart™s major work, The Concept of Law, is a contribution markedly dif-
ferent from Austin™s Lectures in Jurisprudence. There is little interest in
mapping the various forms of liability across the body of the law. Instead,
Hart argues in favor of conceiving of law as a system of rules. There are
two main types, primary rules, or speci¬c directives, and secondary rules,
those that govern the conditions and validity of the primary ones. His
central purpose in de¬ning law as such a system is to maintain the notion
of a pedigree; in the words of his chief critic, Ronald Dworkin, legal rules
“can be identi¬ed and distinguished by speci¬c criteria, by tests having to
do not with their content but with their pedigree or the manner in which
they were adopted or developed” (emphasis in original). As Dworkin fur-
ther notes, “The set of these valid rules is exhaustive of ˜the law,™ so that
if someone™s case is not clearly covered by such a rule (because there is
none that seems appropriate, or those that seem appropriate are vague,
or for some other reasons) then that case cannot be decided by ˜applying
the law.™”29
Dworkin argued from two famous common law cases, Riggs v. Palmer
and Henningsen v. Bloom¬eld Motors, Inc., that moral principles can “trump”
clear rules of law in legal decisions. In Riggs a judge ruled that the ben-
e¬ciary in a will could not inherit by murdering his benefactor, due to
the principle that “No one shall be permitted to . . . acquire property by
his own crime.” In Henningsen the purchaser of a defective car was per-
mitted to recover for injuries after an accident under a warranty limited
only to replacement of defective parts. According to Dworkin, the con-
tract was overridden by the “principle” that “courts generally refuse to

28 Hart, The Concept of Law, 18“22.
29 Dworkin, Taking Rights Seriously, 17.
Morals and Skepticism in Law 113

lend themselves to the enforcement of a bargain in which one party has
unjustly taken advantage of the economic necessities of [an]other.”30
Armed primarily with these examples, Dworkin attacked Hart™s con-
cept of law with the claim that “when lawyers reason or dispute about
legal rights and obligations, particularly in those hard cases when our
problems with these concepts seem most acute, they make use of stan-
dards that do not function as rules, but operate differently as principles,
policies, and other sorts of standards.”
Such a claim should have considered the objections to moral argument
that Holmes had articulated throughout his career, but given the confu-
sion over Holmes™s relation to analytical positivism, Dworkin was never
pressed to do so. The objection, re¬‚ected in the expression “general
propositions do not decide concrete cases,” was aimed at the tendency of
sheer statements of “principle” to evade the painstaking task of locating
the new case within competing lines of prior decision and precedent.
That task would engender a judicial opinion explaining why one line of
precedent should prevail over another “ why, in effect, the rule found in
prior cases would govern the murder of a benefactor rather than the stan-
dard testamentary laws. A principle might be articulated, but it would be
tied to the speci¬c circumstances, not freely available for trumping other
settled rules.
Hart, in a 1994 postscript to a later edition of The Concept of Law,
conceded Dworkin™s characterization of the operation of principles in
cases such as Riggs and Henningsen, and found a way to include them
within his concept of law, as part of the hierarchy of rules governing a legal
system. This argument, called “soft positivism” or “inclusive positivism,”
uncritically accepts the status of arguments from principle within law, and
incorporates them into a revised account of law™s fundamental nature.31
Contemporary jurisprudential debate was thus framed in terms suf¬-
ciently ¬‚exible that they could accommodate either side of the debate
over the relation of law and morals. With the concept of secondary rules
and the rule of recognition, Hart met the arguments of both Lon Fuller
and Ronald Dworkin to the effect that moral principles may be con-
sidered within the boundary de¬ning law. While Dworkin has further
advanced his argument in ways not considered here, the debate has
failed to recognize Holmes™s distinction between the values and beliefs

30 Id., 23“24.
31 For a excellent summary of the arguments, see Bix, “Legal Positivism,” 36“38.
Holmes, Legal Theory, and Judicial Restraint
114

embedded in society and sweeping generalizations in legal arguments or
judicial opinions. Focusing on professional conventions of argumenta-
tion, in which lawyers are presumed to enunciate moral values and prin-
ciples on behalf of their clients, judicial power to choose among them
is implied. For anyone sharing Holmes™s concern, there is little practical
difference between the positions of Hart and Dworkin.
Dworkin™s position has led to a division among analytical positivists
into two camps: “inclusive” and “exclusive” legal positivists. The former
agreed (with Hart, based on the postscript) that while there is no neces-
sary moral content to a legal rule (or a legal system), a particular legal
system may, by conventional rule, make moral criteria necessary or suf-
¬cient for validity in that system.32 The latter have denied there can be
any necessary connection; moral criteria can be neither suf¬cient nor
necessary conditions for the legal status of a norm.
All sides have accepted Dworkin™s account of the process whereby Riggs
and Henningsen were decided: “morals,” in the form of the two principles
enunciated by the deciding courts, overrode otherwise established rules
of law that would have led to a different result. No one has considered
the possibility that the trumping principles enunciated by the deciding
courts in both cases can be understood as opposing common law grounds
of decision, both entitled to consideration in Holmes™s model. In fact,
the court in Riggs explicitly follows Holmes, not Dworkin, referring not
to a trumping “moral principle” but, citing applicable precedent, to a

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