LAW WITHOUT VALUES: THE LIFE, WORK, AND LEGACY OF JUSTICE HOLMES. By Albert W. Alschuler. Chicago: University of Chicago Press. 2000. Pp. x, 326. Cloth, $30; paper, $18.
"More, more, I'm still not satisfied!" (1)
Holmes has kept scholars busy for most of a century, and the resulting volume of literature about him is staggering. In the last twenty years alone, we have been blessed with four biographies, (2) four symposia, (3) three new collections of his works, (4) two volumes of essays, (5) and various monographs, (6) not to mention a multitude of free-standing law review articles. (7) Since life is short, everyone who adds to the deluge, including Albert Alschuler (8) with his new book, bears a heavy responsibility to make the expenditure of trees, library space, and reading time worthwhile. Does Law Without Values fulfill that responsibility? Despite the book's considerable weaknesses the answer is yes, but it is a close call.
The book presents such a multitude of theses, theories, and ideas about Holmes, his work, and jurisprudence more generally, it is easy for the reader to get lost. As best I can see, it basically pursues three agendas. First, Law Without Values attacks Holmes as a person, judge, and scholar. While much of Alschuler's critique, depicting the man as a harsh nihilist and his work as deeply flawed, hits home, most of these attacks are not new but reiterate existing scholarship. Second, Alschuler seeks to explain Holmes by looking at him as an existentialist and positivist. The author's claim that this brings to light the consistency between Holmes's character, philosophy, and work is interesting, but the attempt to explain away the contradictions and tensions within Holmes is as time-honored as it is questionable. Third, the book blames Holmes for having corrupted modern American jurisprudence. The thesis that Holmes's bleak positivism made a crucial contribution to the demise of values in modern legal thought is intriguing, but Alschuler fails to substantiate it.
Alschuler does not clearly define or distinguish between these three agendas, and he constantly shifts back and forth among them, often, one suspects, unconsciously. While the execution of all three agendas leaves something to be desired, the book as a whole conveys an important message. It illuminates the troublesome implications of a jurisprudence so skeptical of moral values that it reduces law to its instrumental function--a jurisprudence shared by Holmes and major currents of our own age.
At the outset, a note of disclosure is in order. On several occasions, Alschuler counts me among the Holmes enthusiasts whose (positive) views he then proceeds to attack. (9) I have always considered myself more critical of, than enthusiastic about, Holmes, (10) but I have no ax to grind and no position to defend. Moreover, I agree with most of Alschuler's perceptions of the man and the work, and even with many of his views on the current state of American legal scholarship, my critique of Law Without Values notwithstanding.
Perhaps the most pervasive theme of Law Without Values is a no-holds-barred attack on Holmes. The book is not a biography but mostly a long essay in pursuit of Holmes's dark side. In a nutshell, the critique proceeds as follows.
Holmes, the perceived "hero of American law" (p. 14), subscribed to a bleak "power-focused philosophy" (pp. 14-30). He was unable to embrace any substantive values or causes (chillingly, the only cause he ever believed in as an adult was eugenics). He was neither a utilitarian nor a true pragmatist but rather an existentialist. Sharing important characteristics with his contemporary Nietzsche (p. 19), he embraced a "noble nihilism" (p. 20) and revered "struggle, violence, death, and the unknown" (p. 29). Personally, Holmes was self-absorbed and indifferent to others, ambitious and egotistical (pp. 31-40). He had many acquaintances, especially among the famous, but few, if any, real friends. "He lacked (and resisted) familiar forms of love and support" (p. 40)--witness his professed relief about having remained childless (pp. 35-36)--and as a human being he was cold, harsh, and lonely. Both his power-focused philosophy and his personal character traits largely resulted from his civil war experience (pp. 41-51). Whatever pre-war beliefs he had held (e.g., in abolitionism) completely collapsed in the horrors of Balls Bluff, Antietam, and Chancellorsville. Amidst senseless death and destruction, Holmes lost the ability to believe in any causes and values--with the exception of the soldier's faith in blindly throwing away his life. From then on he sneered at human values and considered war the height of human experience.
Holmes's judicial opinions evince his harsh personality and power-focused philosophy (pp. 53-83). His work on the Supreme Court demonstrates his inclination to validate the outcomes of power struggles. His deference to legislative decisions was not an expression of a socially progressive attitude but of letting the elected majority have its way; consequently, he upheld progressive and repressive legislation alike (p. 63). Thus, Holmes was not at all a great liberal and defender of individual rights for their own sake. Only late in life, probably under the influence of Brandeis, did he veer somewhat in that direction (pp. 82-83).
Holmes scholarship does not justify his reputation as America's greatest legal thinker. His book, The Common Law, has mostly been overrated (pp. 84-131). Its truly remarkable (and well-known) part is very small--it consists of "five great paragraphs" (p. 85) and these paragraphs were not nearly as pathbreaking as their reputation suggests (pp. 86-103). The ideas expressed here had long since been developed by others and were widely shared at the time--many of them even by Holmes's jurisprudential target, Christopher Columbus Langdell. In fact, the opposition between the formalist Langdell and anti-formalist Holmes is largely an invention of later generations. The huge, "mercifully unread" (p. 131) remainder of The Common Law--i.e., Holmes's lengthy search for fundamental principles of liability--was by and large a scholarly disaster (pp. 104-25). The attempt to distill all-encompassing principles from the multitude of cases was a thoroughly formalist enterprise and worse than anything Langdell ever attempted. Holmes's arguments and analyses were confused and contradictory and most of his results implausible, if not patently absurd. All in all, the book was a "clear failure." (11) Holmes's most famous essay, The Path of the Law, (12) does not fare much better (pp. 133-180). While the piece has frequently been praised as one of the best essays ever written about law, closer inspection reveals fundamental flaws. This is true for all four elements of the "Holmesian positivism" the article expresses (p. 133)--i.e., Holmes's prediction theory, his "bad man" test, his attempt to separate law and morals in general, and his idiosyncratic theory of contract in particular. (13) The whole piece is full of ill-considered and implausible statements, and Alschuler finds virtually nothing to be said in its favor.
Alschuler's explanation of why such a brutalized man holding such flawed views became the hero of modern American law is threefold (pp. 181-86). First, Holmes actually had several impressive qualities (such as brilliance, powerful prose, prestigious pedigree, striking appearance, charm, and longevity), and his views on the crucial constitutional issues of the time ultimately carried the day (p. 181). Second, the promotion of Holmes by Felix Frankfurter, Harold Laski, and other influential disciples created a powerful myth about him to which he contributed by telling "tales, true and false" (p. 184) about himself. Third, Holmes formulated and promoted the ideas that came to determine the character of twentieth century American jurisprudence. (14)
What is the reader to make of this diatribe against the most revered figure in American law? Alschuler's attack on Holmes is terribly one-sided, but I do not consider that a flaw. I take it to be Alschuler's very purpose to present the case against Holmes in order to provide an antidote to all the lavish praise Holmes has received from others. (15) In current American legal scholarship, deconstruction is a widely respected agenda, and "[w]hen you strike at a king, you must kill him." (16) Moreover, Alschuler recognizes that Holmes had attractive sides and emphasizes that the "book does not deny his greatness" (p. 181). Alschuler just does not make Holmes's positive sides his concern.
The real problem with his attack is that too little of it is new. Anyone who is conversant with the literature about Holmes--and Alschuler does not seem to write for the uninitiated--will find most of his points quite familiar. Holmes's nihilist and Darwinian outlook; his cold and harsh personality; his war experience underlying both phenomena; the error of reading his...