Law Without Values: The Life, Work, and Legacy of Justice Holmes [Hardcover]

Albert W. Alschuler (Author)

Book Description

ISBN-10: 0226015203 | ISBN-13: 978-0226015200 | Publication Date: December 1, 2000 | Edition: 1

In recent decades, Oliver Wendell Holmes has been praised as "the only great American legal thinker" and "the most illustrious figure in the history of American law." But in Albert Alschuler's critique of both Justice Holmes and contemporary legal scholarship, a darker portrait is painted—that of a man who, among other things, espoused Social Darwinism, favored eugenics, and, as he himself acknowledged, came "devilish near to believing that might makes right."

Editorial Reviews

From Booklist

Oliver Wendell Holmes is popularly considered to be one of the greatest legal thinkers in U.S. history. His illustrious legal career included teaching at Harvard Law School and three decades of service on the U.S. Supreme Court. Alschuler, a law professor, explores the complexities of Holmes' personality that have been obfuscated by his reputation. Although Holmes' work as a legal scholar was meritorious, it wasn't groundbreaking, according to Alschuler. The more substantive aspects of Holmes reflected an implicit dark side. The brutality of the Civil War rendered him a brooding skeptic: he'd gone in as an abolitionist and came out as a nonbeliever in causes. Holmes adopted the Social Darwinism popular at the time and came close to applying that philosophy in his decision making. Even so, many of Holmes' opinions, especially the dissenting ones, proved right over a period of time, including support for welfare-rights litigation and freedom of expression. Vernon Ford
Copyright © American Library Association. All rights reserved

Review

"An exuberantly and entertainingly polemical attack on the character, scholarship and philosophy of America's most revered judicial saint." - Jeffrey Rosen, New York Times Book Review "[This] slender volume by a distinguished University of Chicago law professor should be required reading." - Tom Roeser, Chicago Sun-Times; "In a lively and entertaining attack, Albert Alschuler strips layer after layer from the traditional image of Holmes to reveal not a wise and compassionate liberal saint, but a heartless social Darwinist who believed in nothing but power. [H]is dissection of Holmes's legal scholarship is devastating." - The Economist --This text refers to the Paperback edition.

See all Editorial Reviews

Product Details

• Hardcover: 336 pages
• Publisher: University Of Chicago Press; 1 edition (December 1, 2000)
• Language: English
• ISBN-10: 0226015203
• ISBN-13: 978-0226015200
• Product Dimensions: 9.3 x 6.3 x 1 inches
• Shipping Weight: 1.4 pounds (View shipping rates and policies)
• Average Customer Review: 3.2 out of 5 stars  See all reviews (6 customer reviews)
• Amazon Best Sellers Rank: #2,512,249 in Books (See Top 100 in Books)
  • #23 in Books > Biographies & Memoirs > People, A-Z > ( H ) > Holmes, Oliver Wendell

More About the Author

Discover books, learn about writers, read author blogs, and more.

Customer Reviews

Most Helpful Customer Reviews

54 of 58 people found the following review helpful:

5.0 out of 5 stars Law Without Values---A Book With Values, December 18, 2000

By 

Mary Maudsley (linwood, nj USA) - See all my reviews
(REAL NAME)   

This review is from: Law Without Values: The Life, Work, and Legacy of Justice Holmes (Hardcover)

Professor Alschuler's single-minded attack on the much admired judicial philosophy of Oliver Wendell Holmes is that rare accomplishment: a destruction of a myth accomplished through a balanced and fair examination of the subject's thought revealed in his own words.

Most of us who went to law school in the latter half of the 20th century learned to admire Oliver Wendell Holmes for his apparently whole-hearted support of free speech, with all its attendant risks to polite social dialogue: "(W)e should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death . . ." We learned, in Holmes' words, that no one group of citizens has exclusive possession of truth for all time, for "the best test of truth is the power of the thought to get itself accepted in the competition of the market."

We also learned that the absence of absolute truth mandated a perhaps less easily understood explanation of Holmes' concept of law: "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." The law, we learned, is a separate thing from a moral foundation, from a good or a bad act. We learned, in the simplest terms, that the law ultimately can describe and impose consequences, both civilly and criminally, for actions. It cannot reward good people and punish bad people except by the coincidence that their actions either conform or do not conform to the body of rules we know as "the law."

What Professor Alschuler has done in this remarkable book is to mount an all-out offensive on the easy-minded assumption that Holmes was a legal philosopher whose unique insights blazed the way for humanitarian redistribution through tort law and just punishment through criminal law. These assumptions were promoted in part by Holmes himself, and in part by his legal disciples who grazed the surface of his legal philosophy.

While students for years have dismissed or rationalized Holmes opinion that "three generations of imbeciles are enough," Holmes active support of eugenics has gone largely unexamined until now. His glorification of war, his conviction that the highest "good" to be accomplished by man is to die for a cause he does not understand, his belief in social Darwinism, all are revealed in Holmes' own words. His observation that the law is the instrument of the powerful was not a mere observation, it was part of Holmes canon. Alschuler's book lucidly exposes Holmes' logical contradictions and examines his often "muddled" thinking.

Having learned of Holmes own unappealing convictions, we may paradoxically be grateful for the evolution of "law without values." Having eviscerated our hero, the author does not leave us abandoned. His final chapter begins a new exploration of ultimate values, morals, and personal responsibilities as they intersect with, and determine, the law. The reader is left wanting to engage in this dialogue, or to write a letter, or to have a discussion.

I must make a brief comment on the author's surprisingly readable style. Concepts which may puzzle even law students are explained so clearly that the non-legal reader finds them easy to grasp, and, more importantly, to grapple with. Although the author deals with the impact of relativism on the law, we are mercifully spared even a single mention of the word "postmodern." The book is written in plain, elegant English.And Alschuler's charming use of the feminine generic pronoun where one might expect the masculine, as in "a judge who begins to say to herself..." leaves us wishing we could know more about the values the author himself might introduce into the discussion.

10 of 14 people found the following review helpful:

5.0 out of 5 stars Thorough scholarship., January 9, 2002

By 

Benjamin Rossen "Benjamin" (Netherlands) - See all my reviews

Amazon Verified Purchase

This review is from: Law Without Values: The Life, Work, and Legacy of Justice Holmes (Hardcover)

This book is extremely well written, thoroughly researched and possessing the profound perspective of a wise and intelligent writer exercising his science and art with a passion that can be felt just beneath the surface of cool academic analysis. This book is not only of interest to legal historians and philosophers of law, but to any reader wishing to take hold of the main threads which run through the cultural landscape of the modern world.

14 of 20 people found the following review helpful:

3.0 out of 5 stars Something Missing!, June 14, 2004

By 

Kevin Currie-Knight "Education Grad Student" (Newark, Delaware) - See all my reviews
(VINE VOICE)    (TOP 500 REVIEWER)   

This review is from: Law Without Values: The Life, Work, and Legacy of Justice Holmes (Hardcover)

This book is meant as a polemic against Oliver Wendell Holmes, and in particular, how his skeptical worldview can seen in his decisions.

Here's the thing: I, personally, like Holmes and actually quite admire his skeptical philosophy. So, much of what the author sees as Holmes's faults, I tend to see as his strenghts. The fact that he had no use for ideas of natural law and objective 'right answers;' the fact that he recognized (to my eyes) the reality that social life is an ongoing struggle of interest against interest; his view that rights are not naturally existing, self-evident things, but only have validity through positive law.

There are two reasons I mention the chasm between what the author thought were strikes against Holmes, that I thought were points in Holmes' favor. First, this leads me to conclude that the this book 'preaches to the choir.' It will only convert the converted; if you dislike Holmes and the skeptical turn in law and society, you will like this book. If you admire Holmes and the skeptical turn he helped usher in, you will not be convinced here that you are wrong.

The second reason I bring up the above chasm between mine and the author's take, is taht he really doesn't ARGUE so much as he might do something like simply say: "Holmes was a social darwinist who didn't see a grand purpose to life..." He simply assumes that the reader will addend the sentence with a tacit: "...and those traits are disgusting." There is even a chapter called "Would you have Wanted Holmes for a Friend?" which does exactly this: it points out the traits the author thinks are ugly about Holmes, and ASSUMES without further argument that the reader will concur. "Holmes was detached from having many friendships...[and wouldn't that be just like that sour old man. Hmmph!]" For my part, I wasn't convinced.

The other criticism I have is that the last chapter - which allegedly shows that the skepticism Holmes has ushered in is still with us today - was about as close to a joke as an academic book can produce. The author goes on about teen pregnancy, the rising crime rates, and, yes, even the fact that Americans are runnning deficits. Apparently this all links back to Holmes. To say it bluntly, this chapter seemed so far afield and widely stretched that this nicely written academic book was capped off by a chapter straight out of Pat Robertson's 700 Club. Hmm...

So there you have it: the book is good in that it is well-researched, clearly written and interesting as all get out. It is also one of the few books that really explores Holmes the philosopher as much as Holmes the Justice [see also The Essential Holmes, Posner, Richard (Ed.)] But if you are not a Holmes-hater before you go into this book, you will not be when you come out - and vice versa. For all the author's research and 'expose' of Holmes' personality, philosophy, and methods, he simply ASSUMES what he is supposed to prove: that Holmes is the villian the author says he is, and that these traits are the be-all end-all they are assumed to be.