Albert W. Alschuler.
Law without Values: The Life, Work, and Legacy of Justice Holmes.
Chicago and London: University of Chicago Press, 2001. x + 325 pp. Notes,
index. $30.00 (cloth), ISBN 0-226-01521-1 ISBN 0-226-01520-3; $18.00
(paper), ISBN .
Stephen B. Presser , Northwestern University School of Law.
Heresy in the
Everybody talks about Oliver Wendell Holmes, Jr.
(1841-1935), but nobody does anything much about him. He remains "the most
illustrious figure in the history of American law," "America's only
authentic legal sage," our only "adult jurist," and all the other
wonderful things people have said about him, ritually praising him to the
skies. Very quickly in law school the novice learns that what Holmes
thought was right, and that we haven't much improved on his ideas since.
He is the father of legal realism, the father of legal liberalism, and the
father of legal pragmatism. It seems that every current strand of legal
theory traces its lineage back to Holmes. Invoking Holmes serves the same
purpose for a modern law professor as a Christian's invoking Jesus or a
Marxist's invoking Marx.
Even so, there have always been a few dissenters from the
deification of Holmes. At least one of his biographers grew so nauseated
by the man that he gave up on writing his life. H. L. Mencken and some
others thought that Holmes's liberalism was a fabrication by some of his
academic admirers (Felix Frankfurter and Harold J. Laski are the usually
designated sycophantic villains), and that really Holmes would allow any
governmental assertion of force whatsoever. The key quality of Holmes that
these people fingered was that Holmes's war wound in the civil war somehow
turned him into a "good soldier," always ready to further sacrifice
innocents in the service of some national goal, whatever it was. This was
certainly supported by Holmes's aphorism that "[I]f my fellow citizens
want to go to Hell I will help them. It's my job." Holmes's famous opinion
upholding compulsory sterilization in Buck v. Bell, on the
ground that "three generations of imbeciles is enough," has never been
exactly beloved of civil libertarians, and was reportedly cited by those
seeking to build a German master race in the 1930s.
But still, there were the facts that Holmes served longer
than almost anyone as a judge (twenty years on the Supreme Judicial Court
of Massachusetts, and thirty on the United States Supreme Court), that he
hobnobbed with all the great and near great, that he towered over most at
6'3", and that he was probably the Platonic form of a Boston Brahmin. And,
if that was not enough, he wrote a volume, The Common Law
(1881), that some have described as the greatest American law book ever
written, and he gave a speech, "The Path of the Law," turned into an
article in the Harvard Law Review, which was said to have done
nothing less than begin the modern age of the law. My guess would be
that if we polled current American law students and their professors there
would be only two figures whom they would virtually all rate as
indisputably great--Holmes and John Marshall.
Albert Alschuler, the Wilson-Dickinson Professor of Law at
the University of Chicago Law School, has nothing to say about Marshall,
but in Law without Values, he comes very near to destroying Holmes.
Alschuler's Holmes, though not short, and too cultivated to be nasty, is
certainly brutish. He takes credit for others' work, has boundless
ambition, fails to come up with a single original idea, writes utterly
incomprehensibly, is possibly perverted, delights in eugenics, is probably
a racist and maybe an anti-Semite, allows legislatures carte blanche,
and believes that law students can only come to appreciate law if they
think about it the way a "bad man" would. Alschuler asks, as the title for
his chapter 3, "Would You Have Wanted Holmes as a Friend?" and his answer
is a resounding, "No!"
This is refreshing, to say the least. It's also pretty
convincing. With great gusto, a sparkling style, and prodigious learning,
Alschuler picks apart Holmes and what he wrote, until at last it seems
that all that is left is a gangly, repulsive carcass. But debunking for
the sake of debunking is too easy; after all, any young law professor
learns that any appointments candidate can pretty easily be destroyed by
quoting his or her scholarship out of context, complaining that it is too
empirical, or too theoretical, or fails to take into account any of a
hundred ephemeral legal academic schools of thought. So what makes
Alschuler's excoriation of particular interest?
It is that he believes that Holmesianism, a disease with
which most of us are infected, is, in some part, responsible for the evils
we in America now suffer as a thoroughly hedonistic, thoroughly
irresponsible society. For Alschuler, what Holmes really managed to
accomplish--especially with his ideas in The Common Law and "The
Path of the Law" that "the life of the law has not been logic, it has been
experience," that "the substance of the law pretty nearly corresponds, at
any given time, so far as it goes, to what is then regarded as
convenient," and that one ought to view the law the way a "bad man"
would--was to separate law totally from values, or, if you like, to
separate law from morality.
There can be no denying that law used to be different in
America. My own view (similar to Alschuler's) is that, at least in the
founding era, there was a consensus that it was impossible to have order
without law, that it was impossible to have law without morality, and that
it was impossible to have morality without religion. Holmes would have
denied all but the first proposition, for he had great respect for the
power of the law to enforce the will of society (indeed his theory of
justice, according to Alschuler, was Thrasymachian), but Holmes thought
all morality and all religion various species of bunk. And thus the heirs
of Holmes have come to rule in the rigidly secular America of the late
twentieth and early twenty-first centuries, where no one is permitted to
judge the morals of anyone else, and where religion must forcibly be
driven from the public square.
Most subscribers to H-Law may not find our current
situation as tragic as does Alschuler, and he does go a bit overboard when
he condemns such intriguing manifestations of popular culture as Beavis
and Butthead and South Park. Moreover, Alschuler's attempts to
support a definition of law as "those societal settlements that a good
person should regard as obligatory," and to suggest that the currently
trendy and jargonistic notions of "reflective equilibrium, coherency, and
inference to the best explanation" offer much hope of resolving
jurisprudential dilemmas may not be convincing. Still, Alschuler is on to
something. Even those on the left, who seemed undisturbed when the Warren,
Burger, and Rehnquist Courts essentially rewrote the First and Fourteenth
Amendments, if not the rest of the Constitution, began to wonder about the
wisdom of judicial legislation following the decision in Bush v. Gore
(2000). We are, it would seem, in the midst of another effort to
determine whether there really might be--out there somewhere--Wechslerian
neutral principles (dare one call them "moral" principles? Lon Fuller
did and Alschuler does) that can serve to guide courts and give some
deeper meaning to the judicial task.
Even Holmes probably believed that there were such
over-arching principles. He made fun of the notion when he excoriated
others for believing in a "brooding omnipresence" of content for the
law, but in his famous "Path of the Law," even Holmes promised that study
of the law could reveal "echoes of the infinite." Alschuler tends to
dismiss Holmes's "echoes" as mere bombast, and argues that Holmes did
really live a life without values, and perhaps he did. Still, Holmes's
life, as Alschuler quite nicely demonstrates, was not a particularly happy
one--except, as Alschuler indicates, quoting H. L. Mencken: "After Holmes
reached the age of seventy-eight, a strange amiability sometimes overcame
him." And Alschuler's thesis that a society with a jurisprudence without
values will be as unhappy as a person without them seems intuitively
correct. Or, to be more precise, Alschuler is probably arguing that those
who believe, like Holmes, that the only realities in the world are the
exercise of self-interested power by strong individuals at the expense of
the weak and infirm, are bound to build themselves a Hell on earth.
This is the sort of timeless message that it is always good
to hear, and to have it delivered through an absorbing examination of
biography, philosophy, constitutional law, torts, contracts, and currently
practicing legal academics is a rare treat indeed. Not all readers will
leave Alschuler convinced that Holmes was a ghoul or at least a monster,
though most should. Some will still hold on to the notion that the author
of the dissent in Lochner v. New York, the dissent in Abrams
v. United States, The Common Law, and "The Path of the Law"
was a giant, and perhaps even a fit hero for liberals. And even Alschuler
concedes that whatever else one may say about Holmes he wrote "five great
paragraphs" and that's more than most of us manage. Alschuler has
managed considerably more than that. With this book he marks himself out
as one of our most provocative legal thinkers, and as indispensable for
anyone who seeks to understand what went wrong with Holmes and with us.
. Buck v.
U.S. 200 (1927).
. Oliver Wendell Holmes, Jr., The Common Law
(Boston: Little, Brown, 1881; edited by Mark DeWolfe Howe, Boston: Little,
. Oliver Wendell Holmes, Jr., "The Path of the Law,"
Harvard Law Review, 10 (1897): 457.
. "Morton Horwitz declared, 'With "The Path of the Law,"
Holmes pushed American legal thought into the twentieth century'" (p.
. For the details, see Stephen B. Presser,
Recapturing the Constitution: Race Religion and Abortion Reconsidered
(Chicago: Regnery, 1994).
. Bush v. Gore, 531 U.S. 98 (2000).
. Herbert Wechsler, "Toward Neutral Principles of
Constitutional Law," Harvard Law Review 73 (1959): 1.
. Lon L. Fuller, The Morality of Law, revised
edition (New Haven: Yale University Press, 1965).
. Southern Pac. Co. v. Jensen, 244 U.S. 205, 221
(1917) (Holmes, J., dissenting).
. Lochner v.
198 U.S. 45, 74 (1905) (Holmes, J., dissenting).
. Abrams v. United States, 250 U.S. 613, 630
(1919) (Holmes, J., dissenting).
. At the beginning and end of chapter 1, the lecture on
torts, in The Common Law (1881) (see pp. 131, 272 n. 298).
Library of Congress
Call Number: KF8745.H6 A66 2000
* Holmes, Oliver Wendell, 1841-1935.
* Judges--United States--Biography.
“Albert W. Alschuler portrays his new book as an unorthodox challenge to
the widespread praise of Holmes as a scholar and a judge…[His] criticisms
are generally persuasive though not as unorthodox as he maintains…Alschuler
differs by turning up the volume of criticism, sometimes in ways that,
while witty, are unfairly polemical and mask the complexity of Holmes’
David M. Rabban, review of Law Without Values: The Life, Work, and
Legacy of Justice Holmes, by Albert W. Alschuler, The Journal of
American History 88 (December 2001): 1118-1119.