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

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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.

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.

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.

Oliver Wendell Holmes is a towering figure in our history, even if, like me, you only learned his name in school and only know he was a supreme court justice, or else he wrote books, didn't he? Or was that his Dad? But it turns out that what Holmes the justice thought is of crucial importance to key legal issues of today. Holmes can be seen as a major pragmatist thinker, and pragmatism can be seen as a major source of our current culture wars. I came across Holmes via Allan Bloom and, oddly, Edmund Wilson. I heard about Holmes' Civil War experiences and how he believed that the law is quote unquote only what men are willing to die for, and I was hooked, and looked around for a book that would best examine Holmes life, thought, and impact, and finally decided on this book by Alschuler. The book is thematic rather than chronological. And I don't think Alschuler argues very well. He tends to write impressionistically, and IMHO he indulges in smear tactics. For example, "Would you want to have Holmes as a friend?" But surely whether Holmes would make a good friend is irrelevant to the character of his thought. But Alschuler also manages to convey some of the wonderful issues at play in this arena for a non-lawyer such as myself. For me the book was like a window into an alien universe that I've actually been living in unknowingly all along. So I forced my way throught it. It's not long, less than 190 pages plus notes.

In his own day, Holmes was revered as the greatest, wisest judge in the English-speaking world. Today, however, Holmes' significance is downplayed in law schools across America, or he is trashed as he is in this book. The dramatic decline in Holmes' popularity and influence has resulted from his opinion in a single case, Buck v. Bell (1927), in which Holmes advocated sterilization of "imbeciles." Since the Holocaust, sterilization is understandably unpopular, especially among Jews, who dominate the faculties at America's top law schools and write many widely-used casebooks. Holmes, who wrote his opinion in Buck v. Bell long before the Holocaust, has been lumped into the Nazi camp (the Nazis tried to use Buck v. Bell at Nuernberg to defend their practices) by modern liberals, and many so-called "legal scholars" now dismiss Holmes' ideas without consideration and do not include his opinions in their casebooks. One of the central tenets of historiography is that it is improper to judge historical figures by the moral standards of today. Alschuler violates this principle again and again--excoriating a great mind because of the way its ideas were used by others. Compare this book to THE ESSENTIAL HOLMES, which is both scholarly and readable. It is also written by Judge Posner, an influential modern jurist respected by liberals and conservatives. Do your own reasoning, draw your own conclusions, and be fooled by no one.

The author might have explored Holmes's skepticism more, but he oddly leaves many questions open that he could have addressed. What values should drive the law? We are left wondering.