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way that could be incorporated into a larger understanding, consistent
with common law tradition. Here lies a nuance in Holmes™s thought that
seems crucial for us to recognize in escaping the Diceyan confusion. It
is easier to miss if the reader is embedded in the set of assumptions that
accompany analytical positivism.
For a vision that is fundamentally open to transformation, as Holmes™s
vision was, room had to be left for collective attitudes that could turn with
relative freedom, such that a public choice might exist whether and how
to turn away from turbulence, toward order. Holmes conceded reform
legislation as a legitimate turn, defending it against constitutional attack,
and in so deferring to the state, and demanding strict adherence to the
text of legislation insofar as it was indisputable, he has seemed to have
put himself on a parallel course with Hobbes, Bentham, and Austin. This
is a good part of the reason why the majority of scholars now see Holmes
as a “positivist.”
If we were to de¬ne positivism broadly, as (in the formulation of Brian
Bix) “a study of law in the scienti¬c spirit,” rather than an attempt to
separate it de¬nitively from morals or “law as it should be,” Holmes
is indeed a positivist. But legal positivism in the twentieth century has
been characterized by a strict separation of law and morals, and this does
not suit the common law-based conception developed by Holmes. We
should take care to distinguish Holmes from this aspect of the Hobbesian
tradition.28

28 James Herget notes that the use of the term “legal positivism” to characterize the rad-
ical separation of law and morals ¬‚ourished after Lon L. Fuller, in The Law in Quest of
Playing King 23

For Holmes a pervasive skepticism forever remained the prominent
feature of his thought. The manifestations, indeed the very nature, of
legal argument and rationalization required cautious evaluation. The
assumptions of lawyers or philosophers, no matter how widespread, are
not necessarily evidence of conclusive and permanent aspects of law,
though they may be evidence of the process through which it is changing.
Arguments and rationalizations themselves are not evidence of analyti-
cal truth “ even those that may have acquired a seemingly permanent
consensus.29 Nevertheless, conclusive weight is placed by contemporary
legal philosophers on precisely this sort of evidence.30
Holmes™s famous skepticism, for all its negative overtones, may be
defended as an antidote to this form of thinking. For Holmes the judge,
a high premium lay with what we would today call “transparency,” the
unblemished reality behind the varnished product. It was to be found in
a realistic assessment of the history of legal development, and thus of the
judges™ appropriate institutional place in the legal process. He sought a
perspective that would genuinely re¬‚ect historical reality, from which he
could de¬ne what he saw as judicial error or abuse. He saw these as fre-
quently arising from reliance on sweeping and “empty” generalizations,


Itself (Chicago: Foundation Press, 1940), challenged the extreme empiricist strain of
legal realism together with John Austin for failing to account for values and purposes
in jurisprudence. Herget, American Jurisprudence 1870“1970 (Houston: Rice University
Press, 1990), 253“56. Herget usefully distinguishes Anglo-American jurisprudence into
three camps, the “moral,” “expository,” and “evolutionary” models or paradigms, and
notes Holmes™s dramatic shift from an expository to an evolutionary model in the 1870s,
id. at 43, which I attempt to explain as essential to understanding his conception of law.
29 See Basil Willey, The Eighteenth Century Background (New York: Doubleday, 1953), 99“
100: “What we have to look out for, in reading the philosophers of Western Europe,
is the emotional or social determinant which makes their work what it is, and this is
usually implicit rather than explicit. As I have attempted to suggest above, what will
seem ˜true™ or ˜explanatory™ to any age or individual is what satis¬es current demands
and interests. What has this writer most urgently demanded from life? is the question
we must constantly ask ourselves. The original impulse, towards, say, ˜materialism,™ or
˜idealism,™ is usually something sublogical; not, that is, a ˜conviction™ resulting from
an intellectual process, but a quite simple set of the whole being towards a particular
way of life. The direction once given, the subconscious af¬rmation once made, the
character of the metaphysical superstructure is determined accordingly. It would be
well if it were more generally realized that metaphysical utterances which appear to be
statements of ˜fact™ are disguised imperatives, or at least disguised optatives; and our
studies of the philosophers would be more remunerative if we went to them, not for
˜truth,™ but in order to discover what particular ¬at or utinam their teaching implies.
“Few of our modern classical philosophers illustrate these considerations more than
Thomas Hobbes.”
30 I discuss this throughout chapters 6 through 9, in the context of Holmes™s opposition
to the use of moral arguments from general propositions in deciding particular cases.
Holmes, Legal Theory, and Judicial Restraint
24

whether time-honored legal maxims or abstract constitutionally based
“principles.” In his ongoing opposition to this tendency, Holmes sought
to force dif¬culty and complexity to the surface “ although once in the
open, he could, to the discredit of his later reputation, be doctrinaire in
his treatment of it and surprisingly quick to lay down his own rule.
After what I have called the formative period, after Holmes was
appointed in December of 1882 to the Supreme Judicial Court of
Massachusetts, he served there for twenty years. He was appointed by
Theodore Roosevelt to the Supreme Court of the United States in 1902,
retiring in January 1932 at the age of ninety. He applied and adapted his
early conception of law to issues that faced him as a judge; and Holmes
throughout his career was a prodigious worker. In his forty“nine years
of service as a judge, Holmes compiled a huge inventory of over two
thousand signed opinions (and many unsigned memorandum opinions),
which Sheldon Novick has suggested may be more than any other judge
writing for a supreme appellate court.31 Several excellent studies of the
Massachusetts opinions have been published;32 the Supreme Court years
are less well charted.33
The span of Holmes™s scholarly and judicial career is so great, and the
social, economic, and military events that touched it so signi¬cant, that no
writer can approach the subject without humility. While I have focused
mainly on the years of scholarship, Holmes™s views on law (as Morton
Horwitz also maintains) were in¬‚uenced by his judicial experience.34 I
have suggested somewhat less of a transformation than Horwitz, along
a far more consistent path, leading to and elucidating the pronounced
judicial restraint and skepticism that Horwitz views as having changed
from the early years.35
David Rosenberg has recently explored the dif¬culty of accurately
tracking Holmes™s thought in The Hidden Holmes (1995). Focusing mainly
on his theory of tort and personal injury, he has shown how inaccurate

31 Sheldon M. Novick, Honorable Justice: The Life of Oliver Wendell Holmes (Boston, London,
and Toronto: Little, Brown, 1989), 406.
32 White, Justice Oliver Wendell Holmes ; Mark Tushnet, “The Logic of Experience: Oliver
Wendell Holmes on the Supreme Judicial Court,” 63 Virginia L. Rev. 975“1052 (1977);
Patrick J. Kelley, “Holmes on the Supreme Court: The Theorist as Judge,” 275“352.
33 A careful and illuminating exploration of Holmes™s due process decisions is found in
Michael J. Phillips, “The Substantive Due Process Decisions of Mr. Justice Holmes,”
36 American Business Law Journal 437“77 (Spring 1999).
34 Morton J. Horwitz, The Transformation of American Law 1870“1960 (New York and Oxford:
Oxford University Press, 1992), 109“43.
35 Id. See chapter 8, n. 36.
Playing King 25

misconceptions have become mainstream opinion, and how a strict
attention to the entire chronology of Holmes™s writing is essential in get-
ting him right.36 While we may disagree in the overall characterization of
Holmes™s theory, I agree with Rosenberg™s observation that Holmes did
not adopt the strict separation of law and morals.37
Following the discussion of the early scholarship, I have focused my
attention largely on Massachusetts decisions that re¬‚ect and elucidate
his scholarly concept of law, and those from early in his Supreme Court
tenure that form a part of the history of the Court™s interpretation of
the due process clause of the Fourteenth Amendment. This is a choice
dictated by space and narrative coherence; there is much more to be
explored of Holmes™s judicial career, and there is much of considerable
value and insight in the existing literature, that I unfortunately cannot
address here.

36 Rosenberg, The Hidden Holmes: His Theory of Torts in History (Cambridge, Mass.: Harvard
University Press, 1995), 163“69 (noting the tendency of mainstream scholarship to
overlook the place of Holmes™s tort theory in the context of his overall thought
and to associate Holmes with opposition to strict liability, limiting the corporate exposure
to damages, which Rosenberg refers to as the “industrial-subsidy” thesis).
37 Id., 49“50. Rosenberg™s central thesis, with which I agree, is that scholars have misin-
terpreted Holmes as a opponent of strict liability. Our principle disagreement lies in
Rosenberg™s account of what he refers to as Holmes™s “new jurisprudence,” in particular
supporting judicial law making in “proceed[ing] opportunistically, with courts fashion-
ing and enforcing their views of expedient policy for the particular situation at hand.”
Id. at 44. I address this topic at length in chapters 7 and 8.
3

Holmes™s Conception of Law




It is the merit of the common law that it decides the case ¬rst and determines
the principle afterwards.
O. W. Holmes, 1870

Before tracing Holmes™s intellectual path, which I do in the following
chapters, I should highlight a broad distinction between common law
conceptions and their more recent alternative, analytical legal positivism.
John Dewey, the American philosopher much admired by Holmes, held
that law is “through and through a social phenomenon” and that all legal
theories should be judged as programs for action. Hence Dewey warned
against use of the word “law” as a “single general term.” Law, he explained,
must be viewed as intervening in the complex of other activities, and as
itself a social process. Hence (in Dewey™s words) “ ˜law™ cannot be set
up as a separate entity, but can be discussed only in terms of the social
conditions in which it arises and of what it concretely does there.”1
This is a classic statement of law as boundaryless, endogenous, and
embedded, as a social theorist might say, an “open system.” It emerges
in part from, and is applicable to, common law. It is distinct in several
crucial respects from the dominant vision of legal positivism, which sees
law as fundamentally separate, exogenous, autonomous, acting on society
rather than acting within.2 Both models are in some degree re¬‚ected in
the current methodology of American law; yet the two are at odds. They

1 John Dewey, “My Philosophy of Law,” in Credos of Sixteen American Scholars (Boston: Boston
Law Book, 1941), 77.
2 See Gerald J. Postema, Bentham and the Common Law Tradition (Oxford: Clarendon Press,
1986), 314.

26
Holmes™s Conception of Law 27

imply a deep inconsistency in our corporate belief in what law is. What
difference does it make which assumption is taken?
For the present purposes, we may ¬nd an operational contrast between
the two views, in their different approaches to legal interpretation.
According to the positivist model of law as a separate, autonomous, and
bounded entity, law (when deciding a case) either succeeds or fails on
its own. That is, all positivists would agree that it is law only that must
determine the outcome, but when law is de¬ned as a static textual or
analytical entity, as “positive” law, the outcome of a case must be rec-
ognizably attributable to it without regard to human intervention and
foible. When it comes to deciding dif¬cult cases, this means the positivist
legal theorist must accept the real and problematic possibility of “legal
indeterminacy.” What is stated as a metaphor becomes real; the issue of
the boundary location of law itself becomes intimately involved with the
question of legitimacy of judicial decisions.3
For the endogenous or embedded model, that of the common law,
legal indeterminacy carries a very different meaning, denoting degrees of
uncertainty and dif¬culty. The term “legal indeterminacy” can, of course,
be understood conversationally to mean a high degree of dif¬culty,
but this is not its meaning under positivism. The core issue of positivist
jurisprudence, lending itself to the technique and style of analytical phi-
losophy, is the de¬nition and boundary of the concept of law. When the
entire authoritative text of the law does not appear to have any clear
answer to a pertinent question, the positivist paradigm forces the conclu-
sion that it is “indeterminate” and the answer must lie, in some crucial
respect, outside the boundary. This bears an obvious implication for the
conduct of judges: if the decision of an unclear case is not covered by
what is inside the accepted boundary, it must have been guided by some-
thing outside, not belonging within the proper de¬nition of “the law.”
The decision must be tantamount to judicial “activism” or “legislation.”
In a now famous remark about law that appears altogether unlike the
positivist model, Holmes in 1870, at the age of twenty-nine, wrote:

It is the merit of the common law that it decides the case ¬rst and determines the
principle afterwards. . . . In cases of ¬rst impression Lord Mans¬eld™s often-quoted
advice to the business man who was suddenly appointed judge, that he should

3 Brian Leiter incisively sets forth the grounds for concluding that “the real debate about
indeterminacy is, in fact, coextensive with the debates already central to analytic jurispru-
dence, for example, about the legitimate sources of law and legitimate ways of interpreting
statutes and precedents.” Leiter, “Legal Indeterminacy,” 1 Legal Theory 481“492 (1995).
Holmes, Legal Theory, and Judicial Restraint
28

state his conclusions and not give his reasons, as his judgment would probably
be right and the reasons certainly wrong, is not without its application to more
educated courts.4

Here the legal decision is described as coming before the reasoning; the
boundary of the law, and the appropriate rule of decision, would appear
surprisingly irrelevant. This somewhat hyperbolic comment implies “
perhaps too much so “ that there is no clear rational itinerary from
the written law to the speci¬c decision. More important, it implies
a sort of common law judicial minimalism, deciding “one case at a
time.” This phrase has most recently been deployed by Cass Sunstein,
referring to decisions of the Supreme Court that avoid formulae and
withhold sweeping generalization.5 Holmes had in 1870 proposed a
quite sophisticated model through which common law rules are ideally
formulated:

It is only after a series of determinations on the same subject-matter, that it
becomes necessary to “reconcile the cases,” as it is called, that is, by a true induc-
tion to state the principle which has until then been obscurely felt. And this state-
ment is often modi¬ed more than once by new decisions before the abstracted
general rule takes its ¬nal shape. 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.6

Holmes called this process “successive approximation.” Legal rules are
viewed historically, and Holmes here proposes that they be understood
as emerging from classes of activity, or more precisely from classes of dis-
putes within discrete activities. As new cases arise within a given class, for
example, vehicular accidents or communications among people form-
ing contractual arrangements, they are initially decided on their facts, a
case at a time. Eventually, a body of decided cases can be “reconciled,”
with the laying down of a general rule, after time has permitted suf¬-
cient case-speci¬c analysis, probing the relevant varieties and conditions
of accidents or contractual communications.

4 Holmes, “Codes, and the Arrangement of the Law,” in Formative Essays, 77, and in
1 Collected Works, 212.
5 Cass Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (Cambridge,
Mass., and London: Harvard University Press, 1999); Legal Reasoning and Political Con¬‚ict
(New York and Oxford: Oxford University Press, 1996), 68 (crediting Holmes for saying
that ideas are developed with close reference to the details, rather than imposed on them
from above).
6 Holmes, “Codes, and the Arrangement of the Law.”
Holmes™s Conception of Law 29

Whereas legal positivism emphasizes language and text, which gives
the appearance of ¬xity, the common law model emphasizes patterns of
conduct, which may be in the process of gradual development. While
the positivist model sees legal development as possible mainly through
legislation, Holmes saw it as ongoing in areas even already covered by
statute; and ¬nality of generalization is elusive. The introduction of new
forms of travel or communication may require new amendments to the
rules of travel or contract, as did the airplane and the telegraph in the
previous century. And even new legislation will need to be interpreted
and applied on a case-by-case basis.7
Opposing this version is the textualist idea that a judicial decision
should derive directly from the written law. We may take an example
made famous by the leading British positivist legal philosopher of the
last century, H. L. A. Hart of Oxford University, who conceived the law
as embodied in language and viewed indeterminacy as deriving from
legal language™s “open texture.” A local ordinance bans vehicles from a
public park. Competent users of English are uncertain or disagree about
whether bicycles are vehicles. Hart infers that the rule banning vehicles
from the park has a core of determinate meaning and a penumbra of
indeterminate meaning, into which the bicycle would fall.8
For Hart, deciding the bicycle case requires a court to assign to the rule
an increment of determinate meaning that it did not previously have.9
The American legal philosopher David Lyons has pursued the impli-
cations of this to a troublesome conclusion.10 Lyons demonstrates that
positivist open texture theory, adopting the conception of metaphorical
space in an open-textured entity “law,” either renders the project of legal
interpretation impossible or the language of judges and lawyers fraudu-
lent. For the metaphorical space to be truly empty, any gap in a rule must


7 As developed below, Holmes applied this to legislation. Statutes too are the work of many
minds, in elected bodies. Diverse circumstances are explored all at once, in legislative
committees, instead of seriatim through litigation. Again, unclear circumstances remain,
to be addressed in a case-speci¬c manner by the judiciary, if not through legislative
amendment. See, e.g., Roscoe Pound, The Spirit of the Common Law (Boston: Beacon
Press, 1921), 174; Edward H. Levi, An Introduction to Legal Reasoning (Chicago: Chicago
University Press, 1949), 27“33.
8 H. L. A. Hart, The Concept of Law (Oxford: Oxford University Press, 1994), 123“127.
9 Hart, supra n. 10, 127. This reading is reinforced by Hart™s own remarks in the Postscript
responding to Ronald Dworkin added to the second edition of The Concept of Law, 252“
53, 272“73.
10 David Lyons, “Open Texture and the Possibility of Legal Interpretation,” 18 Law and
Philosophy 297“309 (1999).
Holmes, Legal Theory, and Judicial Restraint
30

be a gap in the law as a whole, as there would otherwise be someplace
else within the law to ¬nd an answer. Hence for such gaps there is no
possibility of deciding a case by interpreting “the law.” Lyons observes
that this is inconsistent with what happens in actual legal disputes.11
Lyons notes that ¬lling such gaps assumes a logical step that is not nec-
essary in actual practice. Assume that a judge decides for the defendant;
this would not require incremental meaning for the term “vehicle.” The
case could simply be decided under the principle that “conduct that is
not legally prohibited is legally permitted.” Although there might be an
appearance of open texture in the language of authoritative legal mate-
rials, this does not in practice give rise to gaps in the law, as there is no
gap-¬lling required to decide the matter. A court deciding a paradig-
matic “open texture” case need not become a surrogate legislature by
contributing new meaning to the indeterminate term. This is reinforced
by the working assumption of lawyers and judges who speak and act in
such cases as if they are applying the law. To hold otherwise would imply
that judges and lawyers are massively confused or deceitful in purporting
to resolve dif¬cult cases according to “the law.”12
We may wonder whether law can be conceived as a separate entity
without bringing on some form of the problem that Lyons identi¬es.
To be separate philosophically implies having a distinctive and coherent
form, such that a comparative judgment can be made between what is
within and what is without. Whether or not the internal form is seen as
a “texture,” it must be distinctive enough to be described “ and, implic-
itly, inert at the moment of analysis and insulated from revision by the
deciding judge. But as courtroom experience re¬‚ects, “uncertain” and
indeed “original” cases do indeed arrive and must be decided. Little philo-
sophical analysis precedes the decision of lawyers and litigants to ¬le a
lawsuit. From a practical perspective “ the one taken by Lyons “ the term
“law” should be broad enough to encompass any claim that can be stated
within the rules of pleading. Even a denial of relief re¬‚ects the operation
of “law.” Anglo-American law began as a process of controlling disputes,
and it has been largely dispute-driven throughout its history.
It seems that this is the sort of issue that Dewey sought to avoid
through his warning. He would not have been sympathetic to the debate
of whether law and morals are separate, which has gone on in some form
for centuries. Hart, at mid-twentieth century, famously upheld the strict

11 Id., 300“303.
12 Id., 303.
Holmes™s Conception of Law 31

separation of law against Professor Lon L. Fuller of Harvard, who main-
tained that there were several enumerable aspects of “inner morality”
to the law.13 But for Dewey it would seem that the question was not a
proper question at all, as it required “setting law up as a separate entity.”
The choice, it would appear, is a radical one: is law an entity identi¬able
from moment to moment, even as it develops, or is it something rather
more amorphous, a term of convenience or method “ as Dewey said, “a
process”? Does it contain all of the elements necessary to decide a case in
advance, or do its very decisions “make” the law, as suggested by Holmes™s
dissent in Northern Securities v. United States: “great cases, like hard cases,
make bad law”?14
Indeterminate cases more often involve the con¬‚icting effects of multi-
ple applicable rules than the extension of just one. In the positivist texture
model, the aggregate of all legal rules (common law as well as statutes,
constitutions, and accompanying principles) is presumably already inter-
connected in its recognizable form, despite having arisen from diverse
unrelated human pursuits. But this is not so for the alternative model; any
such consistency as might exist must be worked in as part of the ongoing
project. In Holmes™s model, as it further developed in 1873, the reso-
lution of interaction among con¬‚icting cases is handled in roughly the
same case-speci¬c experimental manner as was the original formulation
of the rules themselves:

The growth of the law is very apt to take place in this way: Two widely different
cases suggest a general distinction, which is a clear one when stated broadly. But
as new cases cluster around the opposite poles, and begin to approach each other,
the distinction becomes more dif¬cult to trace; the determinations are made one
way or the other on a very slight preponderance of feeling, rather than articulate
reason; and at last a mathematical line is arrived at by the contact of contrary
decisions, which is so far arbitrary that it might equally well have been drawn a
little further to the one side or to the other.15

Such interactions are not resolved all at once, through interpretation and
application of an antecedent underlying pattern by a Herculean intelli-
gence. Instead, they are addressed in appropriately timed retrospective

13 Lon L. Fuller, The Morality of Law (New Haven: Yale University Press, 1969), 33“41.

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