Holmes' failure.

Author:Weinberg, Louise
Position::Oliver Wendell Holmes, Jr.

    I have just set down the March 1997 Harvard Law Review, with its centennial celebration(1) of Oliver Wendell Holmes' The Path of the Law.(2) The Path of the Law is a grand thing, in my view Holmes' best thing. But just the same, I find myself surprised that on this occasion none of its celebrants(3) raised what has always seemed to me a weakness of the piece, and of Holmes' much earlier book, The Common Law.(4) This is a weakness that is at once a reflection and a forecast of the failure of its author.

    Writers today do seem to have come to terms with a revised, rather mean Holmes.(5) But the particular failing I have in mind seems to have escaped remark. Yet I am beginning to think it more salient to an ultimate evaluation of Holmes than what is more typically being said.

    In the brief remarks that follow, I will try to convey what I think it is that we have not quite been seeing in Holmes' thinking and work. I will try to identify and to bring into focus the flaw (for want of a better word, I have used "littleness") that undermined Holmes' work and made his ultimate failure inevitable. For I take it that Holmes was a failure. He failed to participate in the larger intellectual history of law in our century; failed, for the most part, to set his mark not only upon constitutional history but even upon the common law; and failed to come to grips with the big issues of his and our time. I will try to suggest how he could have suffered a failure of such magnitude notwithstanding his great talents and ambition. I will try to draw some connections between Holmes' limitedness and Holmes' life and judicial craft. I will add a few words in closing about the persistence of the Holmes legend.


    The Path of the Law is probably Holmes' greatest achievement. It is so thoroughly grown Up.(6) It is the one work in which Holmes' voice is truly the voice of the future. The Path of the Law set a new style in thinking about law; it was a clarion call to twentieth-century American legal realism.(7) But reading it over is an oddly unsatisfying experience. There is a certain, well, littleness in the work. And the littleness of the work suggests a certain littleness of the man. To better convey my point, let me try to sort out its discrete, if overlapping and intertwined, strands.

    First, there is the problem of the great issues. Holmes was nothing if not ambitious. In The Path of the Law the picture he set out to paint was the big picture. Yet that is precisely where he came up short. I am reminded of an encounter I had some years ago with a distinguished colleague. He was giving a talk on the "equity" of courts, an old-fashioned way of referring to judicial lawmaking. For the purpose he set up a hypothetical case. Incredibly, his hypothetical was about a "man who accidentally builds a house on the land of another." I say "incredibly" not because of the unlikelihood of the scenario, but because this was at a time when classes of thousands of litigants were seeking injunctions against violations of the Constitution or acts of Congress. Courts were ordering legislatures reapportioned, prisons reformed, hospitals shut down, populations of schoolchildren transferred. I confess I could not refrain from suggesting to my colleague that he update some of his examples. Some time later, I learned that he had given the same talk elsewhere and indeed had updated it: his hypothetical was now about "a man who accidentally repairs the computer of another." For all his brilliance, my colleague's imagination was bogged down in old textbook posers about claims for restitution of gratuitous benefits, at a time when the world was caught up in claims for great political wrongs.

    Holmes' ideas are stale, it seems to me, in just the way that my friend's ideas were. It pains me especially to be seeing The Path of the Law, an icon of realism and the modern, in this musty light. But there is nothing in the piece, or in the earlier study, The Common Law, or indeed in those other of Holmes' nonjudicial writings I have seen, about the great issues even of the times in which Holmes wrote. The Civil War was over, but the race and labor problems of the country were severe. Rural southern blacks had been reduced to conditions of servitude roughly approximating their condition under slavery. The later American Indian populations were struggling for survival. Our eastern coastal cities were teeming with poor European immigrants. Great financiers were accumulating untaxed wealth on an unimaginable scale. But the mind of Holmes was locked in a dusty law office, where a conscientious counselor advises his client how to avoid legal liability.

    This in turn raises a second peculiarity of Holmes' work, the absence, from Holmes' thinking, of public and constitutional law. When he embarked on The Common Law, Holmes in effect confined his thinking for most of the rest of his life within the cramped compass and too-easy ground of private-law damages cases. The consequences were disastrous for him. Holmes' mind became so engaged with the narrow philosophical questions raised by private law that there was no room in it for public law. His imagination was deflected from larger issues, from more powerful mechanisms, and from constitutional theory. If he had a clue that the future of legal intellectual history would lie in constitutional, rather than common law theory, he shut his eyes to it. However modern The Path of the Law was in some respects, its author was looking backward.

    At this point it is necessary to single out a third strand of Holmes' difficulties -- the strand that has to do with morals. It is almost a commonplace to say that Holmes was amoral. His opinions have a certain ruthlessness.(8) It seems obvious that there is a connection between the Holmes that was amoral and the Holmes that was the theorist of the separation between law and morals. I am not saying that Holmes was unaware of the moral force of law. He made it memorably clear how well he understood that when, in The Path of the Law, he wrote, "The law is the witness and external deposit of our moral life."(9) Rather, in trying to repeat one of the messages of The Common Law,(10) that law must be distinguished from morals,(11) Holmes was focusing on the nature of the responsibility the common law imposes. He was trying to show that the common law is a system of liabilities, not moral duties. The defendant at common law can break a contract or commit a tort simply by paying damages. This was a chief element of the separation between law and morals that was essential to Holmes' thought. Morals are what is right; but law, according to The Path of the Law, is only the monetary penalty of which a "bad man" must keep clear.(12) Holmes' "bad man" has to consult a lawyer to find out what he must keep clear of; the lawyer, in turn, must consult the latest(13) cases, those "oracles of the law,"(14) and on this basis must try to advise the "bad man." Seeing this, Holmes announces -- it is a wonderful moment -- that in this practical sense law is, only "[t]he prophecies of what the courts will do in fact."(15)

    But for me the far more telling moment in The Path of -the Law is the moment when Holmes seems to have a fleeting insight that there are cases in which law and morals can become one. That is when equity will grant an injunction:

    I have spoken only of the common law, because there are some

    cases in which a logical justification can be found for speaking of civil

    liabilities as imposing duties in an intelligible sense. These are the

    relatively few in which equity will grant an injunction, and will enforce

    it by putting the defendant in prison or otherwise punishing him

    unless he complies with the order of the court.(16)

    But now Holmes takes an electrifying step. Such cases, being rare, Holmes insists, are exceptional. He dismisses them, out of hand, forever, curtly, briefly, astonishingly, remarking only, "I hardly think it advisable to shape general theory from the exception ...."(17)

    Having in this way separated private law from morals, Holmes equally casually separates the Constitution from morals: "[N]othing but confusion of thought can result from assuming that the rights of man in a moral sense are equally rights in the sense of the Constitution and the law."(18) Here with a word or two he reveals how completely he has shut out from the world of his thought everything that would become central to ours. Nobody did this to Holmes -- he put the blinkers on himself.

    A further strand of Holmes' pathology also has to do with equity, but from a somewhat different angle. In his book, The Common Law, as well as in The Path of the Law, Holmes saw his task as transforming the complexity and richness of common law obligation into a formal theory of liability, one that would be thoroughly objective. Between these two writings, Holmes spent twenty years on his state's high court, dealing virtually exclusively with common law cases.

    In these twenty long years, the treasury of Holmes' life became so filled with the small change of the common law that the author of The Path of the Law was one who could hot imagine -- and utterly failed to foresee -- the triumph of equity.

    Recall Holmes' momentary perception in The Path of the Law that in equity, law and morals could become one. Equity, then, spoiled the symmetry of Holmes' positivistic reasoning. So he willfully left it out of his thinking. And so he failed to see the potential uses of equity in the litigation of larger public issues. Stuck in his private-law universe, always examining law from the vantage point of his "bad man" defendant, Holmes did not perceive that for "great political wrongs,"(19) compensation in damages is meaningless. When the plaintiff comes to court to secure her right to vote, only injunctive relief has any utility. At least since 1908 it has been open to the profession to counsel a client to go...

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