Law Without Values: The Life, Work, and Legacy of Justice Holmes.

• Author: Hoffman, Morris B.

LAW WITHOUT VALUES: THE LIFE, WORK AND LEGACY OF JUSTICE HOLMES. By Albert W. Alschuler. ([dagger]) Chicago: The University of Chicago Press. 2000. 325 pp.

1. INTRODUCTION

   In 1888, Oliver Wendell Holmes, Jr., and his wife spent the summer at Niagara Falls. He was forty-seven years old, had been a member of the Massachusetts Supreme Judicial Court for six years, and was fourteen years away from being named to the United States Supreme Court. He had written The Common Law seven years earlier, and in nine years would publish his other masterpiece, an article in the Harvard Law Review called The Path of the Law.

   As part of the Fourth of July celebration, a man announced he would plunge over the falls in a boat of his own construction. Holmes went down to the falls to witness the excitement, but was late. By the time he arrived, the man was already dead. In reminiscing about this event many years later, Holmes said:

   Afterwards a lady talking of the accident said that if the attempt had promised any possible good to his fellow men the case would have been different, but that under the circumstances she could not see any justification for a pure waste of life. I replied, Madam, on the contrary precisely because it was not useful it was a perfect expression of the male contribution to our common stock of morality.... This uselessness is the highest kind of use. It is kindling and feeding the ideal spark without which life is not worth living. (1) Perhaps none of Holmes' words so neatly capture his mystery and complexity. His was a peculiar kind of joie de vivre, always floating in a dreary bath of valueless social Darwinism. We are left to wonder, was Holmes genuinely admiring the courage of the hapless adventurer, or mockingly congratulating him on his personal contribution to natural selection? Was this a playful contrariness, or a chilling disregard for life? Was it Holmes the paternal legal icon, or Holmes the eugenicist? Holmes as aristocratic judge, or Holmes as Zarathustra? These same questions shout out at almost every point in Holmes' long and productive life--personally, philosophically, and judicially.

   None of this, of course, is new ground. No other American legal figure has ever had more written about him than Holmes (2) and, at least recently, the contradictions between his revered public persona and his philosophical dark side have been well documented, perhaps over-documented. (3) What is stunningly new and original about Albert Alschuler's book on Holmes is the way he weaves the strands of Holmes' dark philosophy into a kind of welcome mat on the road to the decline of American jurisprudence. Alschuler makes a powerful and elegant case that Holmes, more than anyone, is responsible for the current sorry state of jurisprudential affairs: a choice between the valueless deconstructionist nonsense that is "critical legal studies" and its valueless cousin, law and economics.

   Alschuler's book is less biography than philosophy. Although others have labeled it a "debunking" of the Holmes myth, (4) it is more accurate to describe it as a debunking of the Holmes philosophy and of the legal sycophants, centered at the Harvard Law School, who deified Holmes the judge while overlooking Holmes the nihilist. But this is hardly the sort of dry philosophical tract one might expect in a book about such difficult ideas as the ontology of right and wrong and the epistemological challenge of discovering the difference. Alschuler is a gifted teacher and lively writer, and his attacks on Holmes' philosophy are worthy of their brilliant, complex, and articulate target.

   The book has a few weaknesses, but only a few. Alschuler does not entirely persuade when he implies that, because Holmes' judicial opinions were almost always consistent with his valueless philosophy, they were the product of that philosophy and therefore somehow deserving of less reverence. (5) Neither is Alschuler entirely successful in attempting, at the end of the book, to suggest a value-based alternative to Holmes' bleak social Darwinism. Finally, Alschuler's attacks on Holmes' philosophy do not seem to take into account that much has been learned about evolution since Holmes' day.

   Still, Alschuler's survey of mankind's great intellectual issues, using Holmes as the medium, is a tour de force, as impressive for its entertaining readability as its intense intellectual insights. It is must reading for anyone interested in law, morals, troth, human nature, natural selection, judging, Holmes, the Harvard Law School, the creation of modern myths, or the meaning of life.

2. THE RELUCTANT BIOGRAPHERS

   It is amazing that the first complete biography of Holmes did not appear until 1989, fifty-three years after his death and eighty-seven years after his appointment to the Supreme Court. (6) Why did biographers shy away for so long from a man of Holmes' unprecedented judicial celebrity? One reason was that the Harvard Law School, which was the executor of Holmes' literary estate, refused to give access to the documents to "unauthorized scholars," meaning, at its narrowest, biographers not approved by the Harvard Law School, and at its broadest, scholars without sufficient scholarly pedigree. (7)

   But much to the consternation of the keepers of the Holmes myth, the authorized Harvard-based biographers abandoned their work one by one. The first, Felix Frankfurter, dropped the project when he was appointed to the Supreme Court in 1939. The second, Mark DeWolfe Howe, Jr., left the biography unfinished, in part because he was "discouraged by what seemed to him the bleakness of Holmes' character." (8) When Howe died, his widow and the Harvard Law School jointly selected Grant Gilmore as the third official Holmes biographer. He would be the last.

   Gilmore worked on the biography for fifteen years, but never published any part of it. He explained his disillusionment, which appeared to be akin to Howe's, in lectures at Yale (of all places):

   Put out of your mind the picture of the tolerant aristocrat, the great liberal, the eloquent defender of our liberties, the Yankee from Olympus. All that was a myth, concocted principally by Harold Laski and Felix Frankfurter, about the time of World War I. The real Holmes was savage, harsh, and cruel, a bitter and lifelong pessimist who saw in the course of human life nothing but a continuing straggle in which the rich and powerful impose their will on the poor and weak. (9) Later, Gilmore wrote an essay that was to be included in an exhibit at the Harvard Law School to mark the fortieth anniversary of Holmes' death. The essay was so scathing that Harvard refused to publish it. (10)

   When Gilmore died in 1982, the Harvard Law School abandoned any hope of an "official" biography, and made Holmes' papers more accessible. The first complete though unauthorized biographies quickly followed, including Novick's in 1989 (11) and G. Edward White's in 1993. (12) Alschuler makes it clear that neither Novick nor White seemed to be any more enamored of Holmes than Howe or Gilmore. What Alschuler does not satisfactorily explain, at least directly, is why Holmes was such a difficult subject. It cannot have been only his disagreeable personality. Library shelves are full of biographies of the disagreeable. And it cannot have been that writers found the topic of Holmes uninteresting. There has been and continues to be an enormous body of material written about Holmes--in essays, articles and other non-biographical forms. But why so few biographies?

   One reason is the sheer size of the project. In Holmes' ninety-three years, he wrote three books, dozens of articles, and over 2,000 legal opinions, not to mention his vast output of correspondence. Mark Howe alone assembled more than 36,000 documents for his attempted biography. (13) But even after Howe and Gilmore assembled the Holmes papers, biographers were still reluctant. Why?

   Good biography is a process of almost impossible integration. With Holmes, the almost impossible was abjectly impossible. The difficulties experienced by the Holmes biographers have not been so much with his harsh and unpleasant philosophy as with the problem of explaining how such a philosopher--for whom there was no good except the good fight--could have become the revered repository of all that is good in American jurisprudence. It was a biographical reluctance borne of shame--not shame of Holmes but shame of the academy's own complicity in what Alschuler astringently calls Holmes' "beatification." And of course the longer the complete biographies were delayed, the more the beatification set in. By the time Novick's biography appeared in 1989, the idea that Holmes was the greatest American jurist, perhaps the greatest American thinker, was a well-established axiom of both popular and academic culture.

   What so compels Alschuler's approach is that he does not get caught up in a biographer's attempt to integrate the non-integrable Holmes. Instead, he unwinds the threads of Holmes' persona and legacy, then follows those threads into the present, demonstrating with a gentle but unwavering voice that Holmes has lead us astray.

3. THRASYMACHUS TO HOLMES TO CRITICAL LEGAL STUDIES AND POSNER

   Alschuler begins his philosophical journey by reminding all of us that the debate about the nature of man, and therefore about jurisprudence, is an ancient one. In the Greek version of the debate retold by Plato, we had in one corner the Athenian Sophist Thrasymachus, who, as Alschuler puts it, "anticipated Holmes by 2,300 years when he said, `Justice is nothing else than the interest of the stronger.'" (14) In the other corner we had Socrates, who replied to Thrasymachus by saying that justice was not simply the institutional expression of the will of the powerful but rather an expression of "the excellence of the soul." (15) Socrates' humanist view of the nature of man predominated in early Western thought, animating our democratic and...