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14 193 U.S. 197, 400 (1903).
15 Holmes, “The Theory of Torts,” in Formative Essays, 119, and in 1 Collected Works, 327. A
possible source for this model may indeed be Austin™s discussion of the “competition of
competing analogies,” found by his wife Sarah in “loose papers” and published along with
the Lectures in Jurisprudence in 1863. John Austin, Lectures on Jurisprudence or the Philosophy
of Positive Law, vol. 2 (London: John Murray, 1869), 660“62.
Holmes, Legal Theory, and Judicial Restraint
32

examinations of an array of speci¬c prior decisions. Decisions based on
different case-speci¬c considerations are depicted as gradually ¬lling
a metaphorical space between the two rules (“cluster[ing] around the
opposite poles”). Judges eventually resolve the con¬‚ict by recognizing
and describing a “line” between the opposing poles.
From this image it can be better understood what Holmes might have
in mind as an indeterminate case. It would be described as the case that
does not nicely ¬t the otherwise emergent “line” between opposing poles,
that cannot readily be “reconciled” with the patterned trend of other cases
in the same metaphorical space. This image can be seen projected into
such later comments as the familiar Northern Securities dissent (1903):

Great cases like hard cases make bad law. For great cases are called great not by
reason of their real importance in shaping the law of the future but because of
some accident of immediate overwhelming interest which appeals to the feelings
and distorts the judgment. These immediate interests exercise a kind of hydraulic
pressure which makes what previously was clear seem doubtful, and before which
even well-settled principles of law will bend.16

It should be noted parenthetically that this case involved the interpreta-
tion of a federal statute: the vague and sweeping Sherman Act, forbid-
ding “unreasonable restrictions of trade.” Although thirty years later and
still applying common law imagery, Holmes is not quite consistent (he
has moved from electromagnetics to ¬‚uid dynamics), and his terminol-
ogy can be confusing. He suggested earlier that in ideal circumstances
“a mathematical line is arrived at by the contact of contrary decisions.”
Beadel v. Perry, an English case, was cited to elucidate this: the standard of
“substantial damage” to neighboring property from construction near a
boundary, gradually abstracted into a judicial rule that the height of the
new building must not exceed “the distance of its base from the base of
the ancient windows.”17

16 Holmes, dissenting, in Northern Securities Co. v. United States, 193 U.S. 197, 400 (1903). It
should be noted that “hard cases” referred not to indeterminacy but to matters that had
a legally clear but inequitable or “hard” result under applicable precedents, e.g., County
of Morgan v. Allen, 103 U.S. 498, 515 (1880). The term is now often understood to refer
to the case that has no clear result under the applicable law, as opposed to the “easy”
case. E.g., Frederick Schauer, “Easy Cases,” 58 So. Cal. L. Rev. 399“440 (1985).
17 Holmes, “The Theory of Torts,” in Formative Essays, 120, and in Collected Works, 328, citing
Beadel v. Perry, L. R. 3 Eq. 465, 467 (1866). Frederick Pollock would later complain
that the case does not adequately elucidate the principle. Pollock to Holmes, July 3,
1874, Howe, ed., 1 Holmes-Pollock Letters (Cambridge, Mass.: Harvard University Press,
1946), 4.
Holmes™s Conception of Law 33

Holmes™s choice of terms is unfortunate; it is rare that con¬‚icts among
cases are resolved “mathematically.” The next sentence suggests that the
line has nothing to do with mathematical logic: it is drawn “so far arbitrary
that it might equally well have been drawn a little further to the one side
or to the other.” His point is rather that case-speci¬c decisions based
on a general standard, such as “substantial damage,” are bound to vary
somewhat from one case to the next, like sentences for similar crimes.
“[B]etween these clearly opposed cases there lie a great number of others
which may as well be decided one way as the other, and so the exact limit
of the defendant™s duty is measured by the opinion of the jury. But all
the elements of these cases are permanent, and there is no reason why a
case should be decided one way to-day, and another tomorrow. To leave
the question to the jury forever, is simply to leave the law uncertain.”18
Despite some problems in Holmes™s exposition, it can now be seen
where he ¬nds the critical point for the judge™s active contribution: after
the practical contours of an issue have been surveyed and assessed by
case-speci¬c decisions, it becomes necessary to remove the issue from the
gray area of case-speci¬c decision and to abstract a rule and rationale. In
this notion lay the germ of his 1913 comment about a “time for law” “
his eventual sense of the boundary between activism and restraint. It
emerged as a question of consensual judgment and timing. It implies an
image of disputes plotted on a rough intellectual graph, working their
way into the courts in related clumps, to be sorted out individually until
patterns of decision emerge. The patterns consist of relatively clear cases
at opposite “poles,” separated by a more dimly visible “line” where the
distinctions are less clear, such that close cases may be decided “one
way [or] the other.” Without judicial intervention, the law will remain
“uncertain.” It is better “ at some appropriate point “ for the judge to
exercise what Holmes called “the sovereign prerogative of choice”19 than
to leave future actors to guess where the limits of legal liability lie.
There are a number of assumptions behind this model. The judicial
role, while important, is not envisioned as the primary creative force in
the development of legal rules. It is limited in an important respect: the
courts take notice of the relation of disputes to the practices that give rise
to them, and let the practices, insofar as possible, dictate the solutions.
Second, the process involves, as Holmes explicitly says, “many minds.” It
suggests an ongoing community exploring common problems. In this it

18 In Formative Essays, 119“20, and in 1 Collected Works, 328.
19 Holmes, “Law in Science and Science in Law,” in Collected Legal Papers, 210.
Holmes, Legal Theory, and Judicial Restraint
34

bears remarkable similarities to the model of scienti¬c inquiry emerging
at roughly the same historical period in the writings of Holmes™s contro-
versial friend Charles S. Peirce, a model later adopted by John Dewey. All
thought and its conceptual products were for Peirce a response to human
problems, driven by doubt and seeking commonly accepted belief. Such
belief would be expressed in language as principles of knowledge, but the
language was itself fallible. New circumstances were bound to arise that
could not possibly have been foreseen, and hence expressed.20 Dewey
applied the model to logic in general, in his 1939 Logic: The Theory of
Inquiry.21
Thus Holmes in the early 1870s was advancing a theory of law as itself
a process of critical inquiry. Like the scienti¬c philosophy of Peirce, it was
driven by something akin to problematic doubt, more speci¬cally by the
problem of disputes ¬‚owing into the courts, and resolved by the formu-
lation of general rules and principles. And as with Peirce the language
was subject to modi¬cation while new circumstances were still forthcom-
ing. Holmes™s 1870 article notes hypothetically that even if a code were
adopted by a committee of lawyers (thus bringing the law closer to a leg-
islative model), “New cases will arise which will elude the most carefully
constructed formula. The common law, proceeding, as we have pointed
out, by a series of successive approximations “ by a continual reconcili-
ation of cases “ is prepared for this, and simply modi¬es the form of its
rule.”22
Holmes™s vision is unique among theories of the common law. As a com-
prehensive conception, it could hardly avoid affecting his approach to
constitutional law. For the traditional areas of the common law, yet unreg-
ulated by legislation, it emerged from his scholarship as a new hypothesis
and remained (as it still does) surprisingly untested by broad scholarly
criticism. Undaunted, Holmes proceeded to document it himself, by ¬at,
simply writing it into his opinions on the Supreme Judicial Court at every

20 Charles Sanders Peirce, Collected Papers, vol. 5, ed. Charles Hartshorne and Paul Weiss
(Cambridge, Mass.: Belknap Press, 1978), 231.
21 John Dewey, Logic: The Theory of Inquiry (New York: Henry Holt, 1938).
22 Holmes, “Codes, and the Arrangement of the Law.” Others have made a similar obser-
vation, including Edward Levi in An Introduction to Legal Reasoning, 27“33. One issue
that perhaps deserves more speci¬c discussion than I have given it here is the different
conceptions of rules and principles and their operation found in Holmes, and those of
Hart and Dworkin, especially in the latter™s Taking Rights Seriously, 24“58, and in Hart™s
Postscript to The Concept of Law, 259“65. While I have not addressed this speci¬cally,
I hope the distinction becomes clear in chapters 7“10 treating Holmes™s approach to
precedents, principles, and legal texts.
Holmes™s Conception of Law 35

available opportunity. It rested on the notion of a cumulative commu-
nity consensus, involving judicial rule making only after a clear standard
of conduct was evident. But if it were to apply to constitutional cases,
could Holmes fairly ¬nd a comparable process? And would a common
law approach simply unfetter constitutional decision making, rendering it
free to be applied without restraint to a broad range of issues? Or might
it instead have an opposite effect when lacking an evident consensual
grounding?
At stake is the question of judicial supremacy “ the notion that judges
are ¬nal interpreters of all law including the Constitution. Holmes offers
a perspective that escapes what I have portrayed as the positivist trap.
A perspective that accepts and conditions the traditional involvement
of judges in the growth of legal rules may provide a keener awareness
of the historical conditions of the judicial role. It may, indeed, be all the
more effective in preserving realistic constraints. Positivism, in restricting
the judge to the con¬nes of an identi¬able entity, denies with excessive
strictness any creative role to the judge and the entire courtroom context.
This may have an unintended effect where, in a close, novel, or highly
controversial case, the sweeping generalities of a constitution are relied
on as deriving from an authoritative text to support a conclusion that is
permitted to ignore, and thus disregard, competing laws and precedents.
Common law has always conceded a prominent role for judges. The
traditional explanation, that they were “¬nding” the preexisting law of
a dif¬cult case, was no longer acceptable when Holmes wrote in the
nineteenth century; it was unacceptable to Hobbes in the seventeenth.
To Holmes it raised the specter of something “out there,” a “brooding
omnipresence in the sky,” as he derisively called it.23 But no cognizable
alternative theory existed to account for the common law process, in
which judges were directed not just to the authoritative materials of law
but to the context of a dispute and of prior similar disputes, embodied in
previous decisions or precedents. On what authority did they depart from
the authoritative written materials of the law? Was this authority a blank
check, to depart whenever they saw ¬t? What principles of legitimacy
governed the common law method?
In laying down a positivist theory of law in the seventeenth century,
Thomas Hobbes had addressed the problem of legitimacy with a clarity

23 Southern Paci¬c Co. v. Jensen, 244 U.S. 205, 222 (1917): “The common law is not a brooding
omnipresence in the sky but the articulate voice of some sovereign or quasi-sovereign
that can be identi¬ed.”
Holmes, Legal Theory, and Judicial Restraint
36

largely absent in the common law tradition. A Hobbesean view, detail-
ing the law as a comprehensive set of sovereign commands, had been
reaf¬rmed and elaborated by John Austin in the generation preceding
Holmes. Over the centuries since Hobbes, positivists have kept issues
of legitimacy in the forefront of their thinking. For the theory of com-
mon law, it has, surprisingly, been largely ignored since the eighteenth
century.24
The writings of Hobbes and Austin laid down a strict de¬nition of
law that had the merit of separating it clearly from “morals”: law was
the command of the sovereign, as Austin noted, command enforced and
habitually obeyed. This antiseptic, test-tube“like separation was seen as a
path toward clear and objective, if not indeed scienti¬c, understanding of
law. It was a bulwark against subjectivism and libertinism: the removal of
all doubt and dispute. To make matters confusing, emphasis on a certain
kind of separation of law and morals is found prominently in the writings
of Holmes. This has led to the conception of Holmes as a positivist; but
there is a critical difference, in that the positivist separation is analytical,
going to the essential nature of law, while that of Holmes is historical and
found in the transformation of liability. Austin™s separation was expressed
in 1832 as follows:
In consequence of the frequent coincidence of positive law and morality, and of
positive law and the law of God, the true nature and fountain of positive law is
often absurdly mistaken by writers upon jurisprudence.25

Holmes™s attitude, as expressed in 1881, ran thus:
[W]hile the terminology of morals is still retained, and while the law does still
and always, in a certain sense, measure legal liability by moral standards, it

24 The natural af¬nity between common law practice and a decentralized, naturalistic ethics
was observed by writers of the Scottish Enlightenment in the seventeenth and eighteenth
centuries, especially Lord Kames (1696“1792) and Adam Smith (1723“90); if moral
conduct was rooted in the natural moral sense of individuals and communities, courts
and their judgments could be seen as its embodiment. Smith, Lectures on Jurisprudence
(Oxford: Clarendon Press, 1978); Cairns, “Legal Theory,” in A. Broadie, ed., Cambridge
Companion to the Scottish Enlightenment (Cambridge: Cambridge University Press, 2003),
234 (“[C]ourts . . . managed to inscribe into rules of law the needs of justice as identi¬ed
by the moral sense or moral sentiments by responding appropriately to individual cases”).
Such a foundation for common law has never been persuasively and comprehensively
established, and while Holmes was not an ethicist, I suggest that his approach might
form a critical part of such a foundation.
25 John Austin, The Province of Jurisprudence Determined and the Uses of the Study of Jurisprudence
(London: Weidenfeld and Nicolson, 1955), 162“163.
Holmes™s Conception of Law 37

nevertheless, by the very necessity of its nature, is continuously transmuting those
moral standards into external or objective ones, from which the actual guilt of
the party concerned is wholly eliminated.26

The different perspectives expressed here embody substantially different
approaches to, and assumptions about, both law and knowledge.
Both scholars were products of the intellectual climate of their time
and place. A full understanding of Holmes™s judicial philosophy has been
obstructed largely by an unexamined association of him with the positivist
analytical separation of law from morals. While supported in part by his
deference to sovereign power, this is often based on a speech given at mid-
career at Boston University Law School, “The Path of the Law,” where he
advanced and elaborated on the view that he “often doubt[s] whether it
would not be a gain if every word of moral signi¬cance could be banished
from the law altogether.” But Holmes had in mind a quite speci¬c notion
of “words of moral signi¬cance” and their abuse by lawyers and judges; this
speech was not a departure from the view developed earlier, wherein the
law does “in a certain sense” measure liability by moral standards. He sig-
ni¬cantly noted in the speech that, standing back with the view of the his-
torian, “[t]he law is the witness and external deposit of our moral life.”27
I have argued, against the grain of mainstream scholarship, that
Holmes™s assessment of the relation of law and morals was and remained
fundamentally distinct from the tradition of legal positivism. I do not
claim that there are no problems with his overall theory nor that he
was always a paradigm of restraint himself. But lest Holmes appear inco-
herent, it is imperative to show conclusively that Holmes came down
on Dewey™s side of the larger issue, and this accounts for his distinctive
approach to legal interpretation, as well as to judicial restraint.
The relation between law and morals has been an important topic
throughout the past century, in part due to the revival of legal positivism
by H. L. A. Hart at Oxford University, and also because of its obvious
bearing on public attitudes toward global con¬‚ict and ideological polar-
ization. During this period we have seen a continuing transformation of
legal positivism from the concept introduced by Hobbes. The most in¬‚u-
ential version in the past century was Hart™s. The issue came to new life
when, in the 1950s, the Harvard philosopher Morton G. White arranged

26 Holmes, The Common Law, 33.
27 Holmes, “The Path of the Law,” in Collected Legal Papers, 170. This lecture, and its consis-
tency with Holmes™s overall theory, is discussed at greater length in chapter 8, n. 36.
Holmes, Legal Theory, and Judicial Restraint
38

to have Hart visit Harvard University. Thus began Hart™s debate with Lon
Fuller.28
Professor Fuller at Harvard Law School had gained considerable emi-
nence through his Rosenthal Lectures given at Northwestern University
Law School, later published as The Law in Quest of Itself. He had launched
a severe attack on the “positivist” separation of law and morals and called
upon a new generation of lawyers to return to the healthier conviction,
traditionally associated with natural law, that law and morals can and must
be associated. Holmes came in for especially heavy criticism as chie¬‚y
responsible for “why American legal scholarship has remained so unsea-
sonably positivistic.”29 A scholarly exchange of views between Fuller and
Hart whether law and morals are separate hardly resolved the question,
but led to the full exposition of their views in Hart™s Concept of Law and
Fuller™s The Morality of Law. White, in Social Thought in America: The Revolt
against Formalism, had already taken Holmes™s skepticism as an aspect
of America™s unique philosophical innovation, pragmatism, while iden-
tifying an apparent inconsistency in his approach to the relationship of
law and morals that now appears to be at the root of a deep division in
Holmes scholarship. In his famous lecture “The Path of the Law,” where
he de¬ned law as the prediction of the courts™ use of of¬cial coercion,
Holmes seemed to deny “that the rules of law can be deduced from the
principles of ethics,” while asserting in the same lecture that “the law is
made by judges who do draw upon considerations of social and moral
advantage.”30 Clearing away the apparent incoherence requires that we
consider the roots of his conception itself.
An extreme workaholic, Holmes was in the 1870s juggling several intel-
lectual agendas: the philosophical commitments in¬‚uenced by Chauncey
Wright and (according to Charles S. Peirce) the Metaphysical Club; a
comprehensive analysis of the in¬‚uential lectures of the Benthamite
legal philosopher John Austin; a painstaking revision of the leading com-
prehensive American legal treatise, Kent™s Commentaries on American Law;
and his own ambitious (but ultimately ¬‚awed) evolutionary theory of the
common law. From the ¬rst two emerged what White has called Holmes™s
holistic pragmatism, such as it is: implicit and poorly articulated, but

28 Morton G. White, A Philosopher™s Story (University Park: Pennsylvania State University
Press, 1999), 217.
29 Lon L. Fuller, The Law in Quest of Itself (Boston: Beacon Press, 1966), 117.
30 Morton G. White, Social Thought in America: The Revolt against Formalism (Boston: Beacon
Press, 1947), 69“70, discussing Holmes, “The Path of the Law,” in Collected Legal Papers,
172.
Holmes™s Conception of Law 39

revolutionary. Within the latter is found a dense and aphoristic style,
marked by extravagance, allusion, and dif¬culty of interpretation. Within
the mixture there came a sophisticated insight regarding the nature of
law.
In his early essays, Holmes compared the positivist catalogue of legal
concepts detailed by John Austin against the actual encyclopedia of the
law of his time in Kent™s Commentaries. He came, through analytical and
historical criticism, to reject the former “ Austin™s system of duties and
rights “ as an Aristotelian attempt to assign potency and actuality to
¬xed natures or essences, and instead to view the actual law as revealing
the historical emergence and transformation of legal concepts born of
repeated inquiry into classes of repetitive disputes. He thus replaced the
internal taxonomic permanence and authority of legal positivism with
a fallibilist skepticism combined with a community-based deference to
ongoing, transgenerational consensus. Law received authority and legiti-
macy less by logic or ¬at than by inheritance, and an of¬cially sanctioned
process of inquiry and revision. Consistency was gradually, if imperfectly,
worked in:

The truth is, that law hitherto has been, and it would seem by the necessity of its
being is always approaching and never reaching consistency. It is for ever adopting
new principles from life at one end, and it always retains old ones from history
at the other which have not yet been absorbed or sloughed off. It will become
entirely consistent only when it ceases to grow.31

Worked in along with consistency was something he called “policy” or
considerations of “social advantage.” The law gradually adapted itself to
its time. But it is clear that this process is retrospective. As Justice Holmes
explained it to the Harvard Law School Association of New York in 1913:
“It cannot be helped, it is as it should be, that the law is behind the
times.” The context of this insight, the root of Holmes™s restraint, has
been obscured by misinterpretation of his position on law and morals.
The de¬nition of law as prediction emerged during the period of intense
critical analysis of the legal taxonomy of John Austin and his revised form
of the command theory of Thomas Hobbes. Beneath it lay Holmes™s obser-
vation that the courtroom operates through “successive approximation,”
guided by precedent but adapting prior rules to conform to unantici-
pated circumstances. In so noting, Holmes rejected a rigid separation

31 Holmes, “Common Carriers and the Common Law,” in Formative Essays, 201, 223, and in
3 Collected Works, 60, 75“6.
Holmes, Legal Theory, and Judicial Restraint
40

of law from morals, or more precisely from the moral force of indige-
nous custom and practice, advancing instead a conception of law that
denies any ontological segregation or separation. White perceived this in
1947 as one side of Holmes™s inconsistency. In retrospect, it now appears
that Holmes was breaking with the positivist tradition in a manner more
profound than White or anyone else gave him credit.
In fact, Holmes was rethinking the common law. It had never entirely
recovered (nor has it still) as an intellectual account, Edmund Burke
notwithstanding, from the positivist attack begun by Hobbes and con-
tinued by Bentham. In place of the earlier appeal to tradition, Holmes
introduced a theory of socially rooted inquiry with remarkable parallels to
the scienti¬c philosophy of Peirce. This was a conservative application of
the pragmatic attitude, not the more progressive one associated with John
Dewey. Nor is it comparable to the neopragmatic “ironism” of Richard
Rorty.32 Both attitudes noted by White toward Holmes™s skepticism are
misguided: he was siding with neither Fuller nor Hart.
Seeking a foundation for universal deference to sovereign power,
Hobbes conveyed supreme legal authority (and control of its rationale) to
the state. With this centralizing turn, traditional common law theory was
rejected, and law became (under all subsequent versions of positivism)
separate and exogenous, acting on society, rather than within. A strict
separation of law and morals re¬‚ected Hobbes™s rejection of individual
subjective judgments as potential grounds for disobedience. Thus, in¬‚u-
encing legal theory for the next three hundred years, was priority given
to theories of state sovereignty over the quibbling common lawyer.33

32 See Kellogg, “Who Owns Pragmatism,” 6 Journal of Speculative Philosophy 67 (1992), and
ch. 7, n. 26.
33 Hobbes, Elements of Law (Cambridge: Cambridge University Press, 1928), 87. It
should be noted that an in¬‚uential line of criticism of Hobbes originating with
Lord Shaftsbury (1671“1713) and Frances Hutcheson (1694“1746) supports an
alternative to Hobbes that is parallel in important respects to the common law
approach of Holmes. Shaftesbury argued, against Hobbes™s emphasis on fear as the
principal motivating factor in human social ordering, that human affections support
the tendency to live in community and that social ordering through the ideal of
ethical conduct is founded on a natural “moral sense.” Hutcheson developed moral
sense theory into an articulate moral naturalism, in¬‚uencing a great many Scottish
theorists from Adam Ferguson and Thomas Reid to Adam Smith and David Hume.
He was well known in America and his in¬‚uence was acknowledged by John Adams
and Thomas Jefferson and later generations of Americans. Flower and Murphey,
A History of Philosophy in America, 224ff.; see also L. Turco, “Moral Sense and the
Foundations of Morals,” in Broadie, Cambridge Companion to the Scottish Enlightenment.

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