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Oliver Wendell Holmes, Jr., Legal Theory, and Judicial Restraint

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Frederic R. Kellogg's new book on the legal thought of Justice Holmes is one of the most useful studies I have ever read on the Justice's jurisprudential thought. Even if the reader cannot accept all the elements of Kellogg's thesis, his analysis is so rich in insights and incisive in content that one nonetheless benefits enormously. Kellogg is, of course, the author of "The Formative Essays of Justice Holmes" (1984), which did so much to direct scholarly attention to OWH's early essays published prior to his epic "The Common Law" in 1871. Here again he is developing his theory that the key to Holmes' later period as state judge and Supreme Court Justice is this early period of his writing up to and including TCL. There is so much gold here that a short review can only touch upon a few of the analytical points put forward by Kellogg.

One of the author's goals is to shock us out of the long-time assumption that OWH was a "legal positivist." This ties into the author's primary thesis that OWH eventually settled upon a common law theory of judicial interpretation (on both the Massachusetts SJC and the Supreme Court) that sought its cues from the sentiments and feelings of the society. Kellogg argues that in this sense OWH did not wish to exclude "moral" considerations from judicial analysis. Employing such an approach, OWH adopted a position generally favoring judicial restraint until the community's viewpoint had become palpable.

Echoing his earlier book, the author maintains that the keys to OWH's legal philosophy are to be found not in TCL but earlier in the essays published while he edited the "American Law Review." These early essays apparently were OWH conversing with himself as he searched for key principles in legal analysis. Hence, he abandons the effort to establish legal categories based on duties; moves to an external/objective standard of liability; and eventually adopts a common law historical, empirical, case by case, approach to judicial interpretation. Kellogg is to be particularly commended for recognizing the critical impact of the Scottish Enlightenment on American philosophy. OWH's periods of service as state and Supreme Court judge are analyzed to explore his actual reliance upon these concepts.

Along the way the author touches upon numerous key jurisprudential thinkers and concepts: Dworkin; H.L.A. Hart; Fuller; Bentham (and particularly the work of Gerald Postema); Austin; Maine; Pollock; Dicey and John Dewey. The work of prominent scholars also is touched upon: Horwitz; Alschuler (one of OWH's severest current critics); Posner; and Tushnet. Justice Scalia's "A Matter of Interpretation" also pops up.

Much, much more is discussed in a book that is under 200 pages in length. The research is stupendous; the bibliography extremely valuable; the analysis cogent and readable. However, I don't think this should be the first book one reads on Holmes unless one has a solid background in jurisprudential thought. A better approach is to read one of the many Holmes biographies that address his judicial philosophy --Ted White's "Justice Oliver Wendell Holmes: Law and the Inner Self" being by far the best volume in this regard. A book to savor, argue with, reconsider, and mull over. As good as they come in this area.

I tried to read this book a couple of years ago, intending to review it for a legal magazine, but was unable to finish it. This was the case even though I am a lawyer who has read much about Holmes and much about legal philosophy, and I have published an article on Holmes and book reviews on both subjects. When I was reading Kellogg's book, I jotted down a few sentences for possible use in my review and I will use them here. I wouldn't have bothered to post a review of this book on amazon.com, but, having just read Ronald H. Clark's review, I want to provide balance to his excessive praise.

Kellogg's book is not well written. He writes, "Over the centuries since Hobbes, positivists have kept issues of legitimacy in the forefront of their thinking. For the theory of common law, it has, surprisingly, been largely ignored since the eighteenth century." (36) What is the antecedent of "it"? He uses redundancies, such as "ignore, and thus disregard" (35), and "segregation or separation" (40). Some of Kellogg's writing it too abstract. In successive sentences (43-44), he refers to "the foundationalist and teleological strain that has characterized legal positivism since Hobbes," but does not say how they have done so, and to "the subtle poison of teleology [that] crept into The Common Law and certain of Holmes's judicial decisions," but does not say how it has done so. These statements have limited value without elaboration.

Kellogg is also verbose. He writes, for example, that Holmes "came, through analytical and historical criticism, to reject the former - Austin's system of duties and rights - as an Aristotelian attempt to assign potency and actuality to fixed natures or essences, and instead to view the actual law as revealing the historical emergence and transformation of legal concepts born of repeated inquiry into classes of repetitive disputes." (39) A briefer version of this sentence might be, "The life of the law has not been logic: it has been experience."

I'll conclude by noting that, when Kellogg quotes this line, he replaces the colon with a comma. (54) Here, though, Kellogg is not alone; I see the line more often quoted with a comma or a semicolon than with a colon. Why can't one of the most famous lines in the legal literature be quoted with the correct punctuation?