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ticular to say in defense of common law as a legal theory.7 Strangely, there
appears no recognized authoritative text or treatise on common law, con-
temporary or otherwise, with which these or other critics of textualism
are comfortable. But if indeed there is any theory against pure text and
in favor of context in legal interpretation, it must in some fashion derive
from or re¬‚ect the common law.
Holmes, although commended in Scalia™s lecture for his strict adher-
ence to the objective interpretation of a legislative text, developed a dis-
tinctive conception of the common law during the years 1865“80, after
he had returned from the Civil War and had entered the study of law, ¬rst
as a student at Harvard Law School, then as a reader and private practi-
tioner, and eventually as an independent scholar (including a lectureship
on constitutional law at Harvard College in 1870“71 and on jurispru-
dence at Harvard Law School from 1871 to 1873). It was in¬‚uenced by
editing Kent™s Commentaries on American Law, framed in a series of pub-
lished articles from 1870 to 18808 and re¬‚ected (though not, I argue,

6 Linda Greenhouse, “The Competing Visions of the Role of the Court,” New York Times,
sec. 4, July 7, 2002.
7 Gordon Wood does bring up the subject in a historical context in his comment on Justice
Scalia™s essay. Scalia, A Matter of Interpretation, 59.
8 These were reprinted in Frederic R. Kellogg, The Formative Essays of Justice Holmes: The
Making of an American Legal Philosophy (Westport: Greenwood Press, 1984) (hereafter
Formative Essays). They are now also available in vols. 1 and 3 of Collected Works. While
Holmes, Legal Theory, and Judicial Restraint
14

adequately explained) in his book The Common Law, delivered as the
Lowell Lectures in 1880 and published in 1881.9
As his own title suggests, it is a view based on the common law that
characterizes Holmes™s depiction, or perhaps reconstruction, of the gen-
eral conception “law.” The conception draws heavily from the historical
debate between English legal theorists over the nature and source of legal
rationality.10 It also ¬nds remarkable parallels to certain ideas of Holmes™s
nonlawyer friends, Chauncey Wright, Charles S. Peirce, William James,
and others, among whom were founders of the American school of
philosophical thought known as pragmatism, growing out of the multi“
faceted in¬‚uence of the Scottish Enlightenment on American thought
and the response of Cambridge intellectuals to Darwin™s Origin of
Species.11


Holmes may have formulated some of his theory before 1870, as Sheldon M. Novick
suggests, there is little clear evidence of it in the published writings. 1 Collected Works, 7
n. 2, 183“212.
9 Holmes received his bachelor™s degree from Harvard College in 1861, and began a two-
year course of study at Harvard Law School in the fall of 1864. He had been discharged
from the Twentieth Massachusetts Regiment on July 17, 1864. He left law school in
the middle of his second year to ¬nish his studies as a reader in the of¬ce of attorney
Robert M. Morse of Boston. The Harvard law faculty consisted of three men, Theophilus
Parsons, Joel Parker, and Emory Washburn, all former practitioners and none original
scholars, although Parsons™s treatise on contracts made him for many generations the
leading authority on the subject in America. They gave no examinations, and the only
requirement for a degree was occasional attendance at lectures. Holmes received his
degree in the summer of 1866. He later (1870) published anonymously the comment
that “for a long time the condition of the Harvard Law School has been almost a disgrace
to the Commonwealth of Massachusetts.” Mark DeWolfe Howe, Justice Oliver Wendell
Holmes: The Shaping Years, 1841“1870 (Cambridge, Mass.: Belknap Press, 1957), 205.
Seeking roots of his later theory in Holmes™s diaries of his early reading, several
items stand out. Foremost among them is the originating work of legal positivism, John
Austin™s Lectures on Jurisprudence, begun in April 1861, his ¬nal term of Harvard College,
while he was awaiting a commission in the Twentieth Massachusetts Regiment. Holmes
records reading Austin again in 1865“66, again in 1868, and still again in 1870 and 1871;
he notes that on December 5, 1871, he ¬nished reading it twice. Henry Maine™s Ancient
Law, a major originating work in historical theory of law, appears on the list for 1865“66,
and had been ¬nished twice by October 1868. Sir William Blackstone™s Commentaries on
the Laws of England, the highly in¬‚uential eighteenth-century exposition of the common
law and its underlying theory, appears at the very beginning of the diaries in 1865, later in
the 65“66 term, and again in 1867 and 1868. Jeremy Bentham, founder of utilitarianism
and leader of the challenge to common law theory, appears once in 1865“66 (Defence of
Usury), twice in 1871 (Theory of Legislation and General View of a Complete Code of Laws),
and 1872 (Fragment on Government). See Eleanor Little, “The Early Reading of Justice
Oliver Wendell Holmes,” 8 Harvard Library Bulletin 163, 169“85 (1954).
10 See, e.g., Friedrich, Philosophy of Law in Historical Perspective 67“100.
11 See n. 4 supra.
Playing King 15

Because he did not regard a legal text as hieratic, even while applying a
strict standard of interpretation,12 Holmes was not a textualist in Scalia™s
sense. Nor was he in any strong sense an “originalist.” The appeal to
original understanding, while in many instances useful and some cases
essential, sheds little light on novel questions. It is like the rhetorical one
put a century ago by Holmes™s friend and colleague John Chipman Gray:
“What was the Law in the time of Richard Coeur de Lion on the liability of
a telegraph company to the persons to whom a message was sent?”13 What
was the original understanding of the Fourteenth Amendment, adopted
on the heels of the Civil War in 1868, regarding remedial or af¬rmative
steps to end race or gender discrimination? Or, for that matter, regarding
state-sponsored suppression of free speech, the indigent right to counsel
in a criminal case, or privacy? All of these issues are now part of Fourteenth
Amendment law.14
It is a sign of misunderstanding Holmes that we have failed fully to
investigate the roots of his cautionary language in the Supreme Court dis-
sents and the connection, if any, with his early scholarship and his major
work, The Common Law. The explanation may be the obscure language
and shifting focus of the early scholarly work, especially the condensed
style and heavily historical bent of The Common Law, with its widely dis-
credited thesis of an evolution from moral to external standards, worked
so insistently into his treatise and later his Massachusetts opinions.
The Common Law is considered supplanted and no longer relevant.
But defects aside, an account must be provided for the idea, sounding
radical but also conservative, that premature judicial intervention and
resolution may in some serious and coherent sense be illegitimate, that a
¬nal judicial prerogative to interpret and pronounce constitutional rights
may be associated with a ¬‚awed conception of law itself.
If Holmes is to be reread in search of this connection, the de¬ciencies
of The Common Law and the excesses of his Massachusetts opinions need
to be not overlooked, but rather illuminated as part of a larger context.

12 See Holmes, “Legal Interpretation,” Collected Legal Papers, 203.
13 John Chipman Gray, The Nature and Sources of the Law (Gloucester, Mass.: Peter Smith,
1972), 99.
14 The Fourteenth Amendment was passed by the Reconstruction Congress in 1866.
Included in it is the phrase “[n]o state . . . shall deprive any person of life, liberty, or
property, without due process of law.” While there is no evidence of an original intent
in 1866 to include the rights of free expression, fair trials in criminal cases, and privacy,
such rights have been “incorporated” from other rights applying against the federal gov-
ernment so as to apply against the states. This issue, and Holmes™s attitude regarding it,
is further discussed in chapters 9 and 10.
Holmes, Legal Theory, and Judicial Restraint
16

This might best be described by showing how Holmes painstakingly recov-
ered and redescribed the tradition of the common law, eventually to
address a new problem of now massive dimensions: the interpretation of
a written constitution as it applies to the most vexing legal controversies
of modern society.
It is, moreover, a context that should be connected to the path of
Anglo-American legal philosophy since Thomas Hobbes. In the seven-
teenth century, amidst the con¬‚ict engendered by the English Civil War,
Hobbes solidi¬ed a concept and philosophy of law rooted in the power
of the central state that might be said, like the British royal family, to be
a paradigm that reigns even while surrounded with evidence of its own
obsolescence. I mean by this the notion of law as a certain and de¬n-
able analytical entity, which the English scholar John Austin af¬rmed for
Holmes™s generation and which Professor H. L. A. Hart of Oxford Uni-
versity carried forward in the twentieth century. It is a context in which
we may understand and actually resolve the problem that Dicey noted
immediately in 1881, the confusing “attempt to unite the historical with
the analytical method,” which, I suggest, underlies the main controversies
about Holmes today.
The tradition that Holmes brought forward is the fundamental rela-
tion of law to the voluntary, embedded patterns of social life. We live in
an age of legislation and administrative regulation, accompanying the
fact of enormous growth in the size and scope of government. This devel-
opment, traceable back to origins in the sixteenth century and before,
has brought with it a set of assumptions about law. Those assumptions
have evolved, but on balance they re¬‚ect a vision of law as autonomous,
determinative, largely coherent, and textual. Against that, the old idea
has emphasized the larger context of law embedded in social practices
and emerging from the resolution of disputes. It appeared distinctly as a
theory of the common law.15


15 The idea that law is embedded in society and its order is in some fundamental sense inde-
pendent of state enforcement is developed in the writings of F. A. Hayek, most recently
in The Constitution of Liberty (Chicago: University of Chicago Press, 1960), 148“61. Hayek
(id. at 452) notes that the idea goes back at least to David Hume (1711“76). Hume™s likely
in¬‚uences were Anthony Ashley Cooper, Lord Shaftsbury (1671“1713), Francis Hutche-
son (1694“1746), and Henry Home, Lord Kames (1696“1782), as well as Charles de Sec-
ondat, Baron de Montesquieu™s (1689“1755) L™esprit des lois (1748). See chapter 3, n. 24.
This broad insight does not on its own meet the question of how such ordering oper-
ates and what it entails for the problems of legal interpretation, a need that Holmes
would address by his original analysis of the common law.
Playing King 17

When Holmes wrote his famous dissent in Lochner v. New York,16 resist-
ing the judicial overruling of reform legislation at the beginning of the
twentieth century, the old idea had been transformed by him to apply, as
never before, to the adjudication of disputes arising from the language
of the United States Constitution. This was an approach to constitutional
adjudication derived from the tradition of the common law. His approach
can be traced from his early research to the dissenting opinions in the
Fourteenth Amendment cases of his late career.
It is a path in which the fortune of ideas is remarkably linked to that of
a man and his legacy. Holmes™s reputation has traced a roller-coaster path
in the seventy years since his death. After reaching an apotheosis during
the 1930s around Holmes™s death, it was challenged in the 1940s during
years of world con¬‚ict in which his outspoken skepticism of moral certain-
ties ill suited the nation™s mobilized mood.17 It rose in mid-century with a
sincere, but incomplete, recognition of his contributions to a ¬‚ourishing
of constitutional doctrine and legal philosophy in America. After a some-
what bumpy period of interest, it plummeted again in the 1980s, driven
down once more by the more skeptical “ many say cynical “ aspects of
his thought and writing. H. L. Pohlman has noted the tendency toward
polemical abuse of Holmes™s in¬‚uential writings, leading to “cycles of
intellectual anachronism, panegyrics, and condemnations.”18
In 1997, Professor Albert W. Alschuler of the University of Chicago
Law School wrote his disapproving and highly readable book about
Holmes™s life and legacy, with the title Law without Values, echoing
attacks from patriotic and natural law theorists during the Second
World War. The idea that Holmes™s conception of law was value-less rather
than value-neutral (or, as I suggest, value-transparent) betrays a misunder-
standing of his overall career and a marked tendency to miss the intel-
lectual context of his skepticism itself. Alschuler is hardly alone. The
principal missing piece of the puzzle, whose incompletion may explain
the widely shared attitude, is the period after Captain Holmes returned
to Cambridge in 1864 from the Civil War, having been thrice wounded


16 Lochner v. New York, 198 U.S. 45, 74“76 (1905) (Holmes, dissenting).
17 See Touster, “Holmes a Hundred Years Ago,” 675.
18 H. L. Pohlman, Justice Oliver Wendell Holmes and Utilitarian Jurisprudence (Cambridge,
Mass., and London: Harvard University Press, 1984), 1. Pohlman has been a leader in
reading Holmes strictly in historical context. He argues forcefully for a closer identi¬-
cation with Bentham and Austin than would appear consistent with the early critique
of Austin and the turn Holmes™s thinking took in the mid-1870s. See chapter 6 and 10
infra.
Holmes, Legal Theory, and Judicial Restraint
18

with the Twentieth Massachusetts Regiment at Ball™s Bluff, Antietam, and
Second Fredericksburg.
In 1864, after Grant took over the Army of the Potomac and began his
relentless drive toward Richmond, Holmes was detailed as a staff of¬cer to
General Horatio Wright and witnessed the extraordinary carnage of the
battle of the Wilderness and the Bloody Corner, reinforcing a reluctance
to extend his enlistment and return to the line with the Twentieth Mas-
sachusetts, a regiment that suffered singular casualties throughout the
war. Holmes went to Cambridge and began the formative period of his
scholarship, including a decade of still obscure essays that reveal his com-
mitment to a common law tradition and eventually his transformation
of it.
To explore the transformation I address the progression of Holmes™s
thought in an updated context, comparing it along the way with more
recent ideas concerning law, as well as earlier ones stemming from the
seminal Hobbes. Now may be a propitious moment to separate Holmes
from an important aspect of the analytical positivist tradition, with which
Alschuler and many others have identi¬ed him, and to show how his
overall perspective compares with other contemporary approaches to
legal philosophy, especially the forms of legal positivism still maintained
today, and the in¬‚uential anti-positivist position painstakingly elaborated
by Ronald Dworkin.
Holmes™s association with the common law tradition is a key to the
overall puzzle. Common law has perhaps had no other explicit con-
structive theorist, effectively since Sir Edward Coke (1552“1634), Sir
Matthew Hale (1609“1676), and Sir William Blackstone (1723“1780) “
also scholar-judges “ in the seventeenth and eighteenth centuries.19 Com-
mon law theory has been considered by most scholars to have been
eclipsed for two centuries by the legal positivism of Hobbes (1588“1679)
and a succession of positivist theorists from John Austin (1790“1859) to
Hans Kelsen (1881“1973), H. L. A. Hart (1907“1994), and their con-
temporary successors.20 Even so, the term and practice of “common law”

19 Other common law theorists may be found among the legal realists of the early twentieth
century, but none advance as comprehensive a theory as Holmes. See, e.g., Karl Llewellyn,
The Common Law Tradition: Deciding Appeals (Boston: Little, Brown, 1960).
20 The roster of contemporary legal positivists is too long to enumerate; useful recent
references are Brian Bix, “Positivism,” in The Blackwell Guide to the Philosophy of Law and
Legal Theory, ed. William A. Edmundson and Martin P. Golding (Oxford and Malden,
Mass.: Blackwell, 2004), 29; Jules L. Coleman and Brian Leiter, “Legal Positivism,” in
Playing King 19

endures in England, America, and elsewhere (there is now said to be an
emerging “common law of Europe”21 ), embedded in legal education and
research, and reasoning from precedents. It is the quintessential decen-
tralized or “bottom-up” theory of law, as opposed to one stemming from
Hobbes that might be characterized as fundamentally centralized and
“top-down.”
Understanding the connection between Holmes™s eventual judicial
restraint and his theory of the common law requires taking the good
with the bad. There are aspects of his theory, as originally formulated
in the period of scholarly research, that have not withstood scrutiny.
This includes the notion of an external standard of liability sweeping
inexorably throughout the entire body of the law, removing all traces of
subjectivity, and his effort to apply and later to amend the notion as an
appellate judge. It also includes his own occasionally idiosyncratic use of
reasons and precedents, in judicial rulings that have troubled contempo-
rary scholars.22
Yet there are broad aspects of the theory that remain relevant, in par-
ticular the ideas of common law method as case-speci¬c inquiry, of the
tentative and experimental nature of legal thinking and common law
rule making, of the skepticism of abstraction, and of the importance
of and respect for community practice and participation in the court-
room law-making process. These ideas may sound unrealistic in light of
current legal culture, but Holmes af¬rmed them as part of the Anglo-
American legal tradition. They contribute to a particular image or ideal
of a judge that may yet be valuable and worth preserving, especially given
the extreme politicization of judicial selection that prevails at the federal
level.
My ¬rst task is to reexamine Holmes from the perspective of the early
writings leading to his Lowell Lectures of 1880, published as The Common
Law. From the period of exploration, 1866“80, emerges a picture of his


Dennis Patterson, ed., A Companion to Philosophy of Law and Legal Theory (Oxford and
Malden, Mass.: Blackwell, 1996), 241; and Stephen R. Perry, “The Varieties of Legal
Positivism,” 9 Canadian Journal of Law and Jurisprudence 361“81 (July 1996).
21 See, e.g., Bruno de Witte and Caroline Forder, The Common Law of Europe and the Future
of Legal Education (Deventer, The Netherlands, and Cambridge, Mass.: Kluwer 1992).
22 See Patrick J. Kelley, “Holmes on the Supreme Court; The Theorist as Judge,” in Russell
K. Osgood, ed., The History of the Law in Massachusetts: The Supreme Judicial Court 1692“
1992 (Boston: Supreme Judicial Court Historical Society, 1992), 275“352; Alschuler,
Law without Values.
Holmes, Legal Theory, and Judicial Restraint
20

conception of common law with a distinctiveness that cannot be fully
retrieved from the 1880 lectures, or the later essays, opinions, and let-
ters. My approach follows intellectual rather than psychological or socio-
cultural sources in the development of his thinking. Primacy is given
to the period in which the main lines of his philosophy were formed,
followed by connecting later developments to the original patterns of
thought.
A useful device in understanding Holmes may lie in considering his
overall method and theory in comparison to the founder of legal posi-
tivism, Thomas Hobbes. For both men, the fundamental nature of law was
associated with con¬‚ict. Born in 1588, as the Spanish ¬‚eet prepared its
ill-fated invasion of England, Hobbes commented, “My mother brought
forth twins, both me and fear.” Also a speculative scholar (though not
as empirical as Holmes), his approach re¬‚ects the powerful in¬‚uence
of mathematical and mechanistic logic.23 Greatly impressed by his expo-
sure to Euclid in 1630, he was inclined toward argument from principles
to necessary conclusions.24 Holmes, on the other hand, refrained from
abstraction until surrounded by facts, in great detail, largely acquired
while editing a contemporary encyclopedia of American law.
For Hobbes, who viewed the civil strife of his era as re¬‚ecting an ugly
and brutish state of nature,25 law emerged from the considered decision
by the citizenry to yield certain of their natural rights to the sovereign
state. Law thereby became, by a deductive if not Euclidean necessity, an
entity with the overall form of a system of sovereign commands. From this
assumption, it followed for Hobbes that law™s internal reasoning should
re¬‚ect a unitary form of authority and coherence, or be subject to con-
stant doubt and dispute by a quibbling citizenry. Hobbes found himself
obliged to reject the common law, in continuous ¬‚ux from particularized
cases and in¬‚uences, in favor of absolute sovereign power and, where
applicable, the legislative text. It followed that all legal reasoning should
be derived from its sovereign source.26

23 Leo Strauss, “On the Spirit of Hobbes™s Political Philosophy,” in K. C. Brown, Hobbes
Studies (Cambridge, Mass.: Harvard University Press, 1965), 1“29.
24 Id. at 17: “The attempt to deduce the natural law or the moral law from the natural right
of self-preservation or from the inescapable power of the fear of violent death led to
far-reaching modi¬cations of the content of the moral law. The modi¬cation amounted,
in the ¬rst place, to a considerable simpli¬cation.”
25 Michael Oakshott, “Introduction to Leviathan,” in Rationalism in Politics and Other Essays
(Indianapolis: Liberty Fund, 1991), 279.
26 “Hobbes, as his opponents understood him, identi¬ed the moral with the positive law.
That is wrong, he said, which the sovereign forbids; that is right which he allows.”
Playing King 21

Two centuries later, John Austin, in¬‚uenced less by Hobbes than
Jeremy Bentham and lecturing in London during Holmes™s youth, ¬lled
out (for different reasons) what such a unitary system might look like in
considerable and impressive detail. A generation after this, Holmes, who
would ¬rst read Austin while preparing to become a Union soldier and
would continue to reread him, immersed himself in a revision of Kent™s
Commentaries on American Law, the encyclopedic reference work of its day,
perhaps the ideal reality test for any analytical scheme of law. Recruited
as an assistant editor by Thayer, he had brashly taken the project over.27
Updating this legal catalogue with Austin™s framework in mind, he grew
increasingly doubtful not just of Austin™s classi¬cations but of the project
of classi¬cation itself. In a decade of essays we ¬nd a unique commen-
tary by Holmes on analytical legal reasoning “ itself at times analytical,
empirical, and historical.
This development of his thought “ a growing skepticism concerning
pure analytical method leading to a historical conception of the law™s
(including analytical method™s) own formation and usage “ is largely
missing from The Common Law. There, the historical conception is trans-
formed into a new evolutionary thesis, a direct challenge to Sir Henry
Maine, as Dicey noted. Yet in¬‚uence of the analytical framework remains,
since Holmes had concluded (in a somewhat Hegelian move) that aspects
of Austin™s positivism could be the result, mutatis mutandis, of the histori-
cal process. This replacement of Hobbesian foundations explains Dicey™s
confusion about the relation of the two in the ¬nal overall scheme.
Against the weight of scholarly opinion, Holmes had found not internal
coherence throughout law, but rather the scattered evidence of a pro-
cess of growth and adjustment, leading nevertheless to an increasingly
systematic order. Obscured from view amidst the subsequent confusion
has been the residue of his early critical insights, his conception of rule
formation and the resolution of con¬‚icts among competing precedents
and legal authorities.
Though personally bloodied by a far more intense, ¬ery, and deadly
fratricidal con¬‚ict than Hobbes could have witnessed or perhaps even
imagined, Holmes nevertheless conceptualized law with a theory not to

Sir Leslie Stephen, History of English Thought in the Eighteenth Century, vol. 2 (London:
Smith, Elder, 1902), 5. Friedrich identi¬es Jean Bodin (1530“96) as the originator of
the view of law as properly deriving from the sovereign. Friedrich, Philosophy of Law in
Historical Perspective, 57.
27 Mark DeWolfe Howe, Oliver Wendell Holmes: The Proving Years, 1870“1882 (Cambridge:
Belknap Press, 1963), 11“15.
Holmes, Legal Theory, and Judicial Restraint
22

control con¬‚ict but to assimilate it. His conception was embedded within
the perennial turbulence of society, not superimposed upon it. It embod-
ied not deductive reasoning from a set of unquestioned assumptions but a
messier, collective form of thinking, growing out of the turbulence itself.
It would grow despite the lack of an innate unitary rational coherence,
though Holmes attempted to attribute an overall historical direction.
Meanwhile, the process of collective reasoning amidst con¬‚ict remained
keenly local and speci¬c in origin and left ample room for social compe-
tition and change.
This account of a perennial misunderstanding renders Holmes™s
thought both more coherent and consistent than the prevailing interpre-
tation of him as a late Hobbesian positivist. Times had changed from the
common law of Hobbes™s day, and part of the change was the widespread
growth and acceptance of centralized republican government. Holmes
was obliged to make room for the positivist ethos of legislation, but in a

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