Self-Preference, Competition, and the Rule of Force: The Holmesian Legacy

GARY J. AICHELE

Editor's Note: This article was originally presented at the 1985 Annual Meeting of the Northeastern Political Science Association. It was part of a larger study, recently published by Twayne Publishers as part of its Twentieth-Century American Biography Series, titled 01iver Wendell Holmes, Jr.--Soldier, Scholar, Judge.

Nearly thirty years ago, Philip Kurland commented that Mr. Justice Holmes was "in greater danger than ever of becoming a legend, or more accurately, the subject of several diverse and contradictory legends."[1] Kurland's observation remains a fair description of contemporary research on Holmes. It seems "the Yankee who strayed from Olympus" only to become the "devil's disciple" has more recently been chastised as a friend of late 19th-century laissez-faire capitalism in its most virulent form.[2] In the most recent work on Holmes-H.L. Pohlman's Justice Oliver Wendell Holmes and Utilitarian Jurisprudence--Grant Gilmore's characterization of Holmes' theory of liability as "a shield for capitalist interests" is rejected in favor of an interpretation which sees Holmes as a legal positivist in the tradition of Bentham and Austin.[3] Pohlman also disputes the conclusions reached by G. Edward White and Robert Gordon concerning the extent to which Holmes' jurisprudence is flawed by certain irreconcilable inconsistencies.[4] Thus, "the rise and fall" of Holmes' reputation continues unabated, and the significance of his jurisprudence and legal theory continues to stimulate further research and debate.[5]

It is difficult to study the life and work of Oliver Wendell Holmes, Jr. for very long without becoming uncomfortably aware of the enigmatic nature of this seminal figure in American law. Yosal Rogat noted some twenty years ago that Holmes, like his contemporaries and close personal friends William James and Henry Adams, withdrew behind "a public mask."[6] Reflecting the considerable degree to which Holmes "stepped out of life," this detachment provides a partial explanation for his inscrutability.[7]

Another factor, however, that may account for the difficulty of ever really "knowing" Holmes is the unusually paradoxical nature of his impact upon his own and succeeding generations. Exclaiming that "the apotheosis of Holmes defeats understanding," Rogat concluded his 1964 article by noting the scope of the paradox:

Such a list suggests that any synthetic interpretation of Holmes' jurisprudence will be hard pressed to explain seemingly unexplainable contradictions. This is not to suggest that such a theory is unattainable, but only to note that such a theory has not yet been achieved.

If a useful theory is to be developed, I suspect that it will be one which focuses on the centrality of Holmes' fascination with authority, domination and power.[9] Whether reading Holmes' own words or those of his commentators, even a casual student is struck by the extent to which the language is "charged with battle imagery and metaphors of violence."[10] Such language enhances considerably Holmes' central tenet that "the life of the law has not been logic" but "experience."[11] The law, for Holmes, "embodies the story of a nation's development through many centuries," and little doubt exists that for the thrice-wounded Civil War veteran, the story is a bloody one.[12] Though obviously rhetorical, such language suggests a preoccupation with physical force that can not easily be discounted.

One particularly significant aspect of this preoccupation is Holmes' acceptance of the legitimacy of self-preference:

Consistent with--and perhaps even derived from--this assertion is the conclusion that "the first requirement of a sound body of law" is that "it should correspond with the actual feelings and demands of the communitys whether right or wrong."[14] For Holmes, it all came down to a single "ultimate" question: "what do the dominant forces of the community want"[15]

While at least one commentator has noted the implications of such a doctrine for unpopular minorities within the community, and others have examined the similarities in thinking between "Hobbes, Holmes and Hitler,"[16] less attention has been directed to determining the actual significance of these ideas for Holmes' own jurisprudence. I find it striking that the legal theory of a man obsessed with the ubiquity of force should itself have been so impotent, leaving its author virtually helpless in the face of the struggle he so vividly described. Though Holmes continued to exhort young men to "share the passion and action of [their] time at peril of being judged not to have lived,"[17] the mature jurist found it increasingly difficult to care at all about the outcome of the war being waged around him.

In an article which examines the critical period of years that Holmes sat on the Supreme Judicial Court of Massachusetts-- years largely overlooked between the publication of The Common Law ending Holmes' intellectually most productive period and his ascension to the Supreme Court of the United States--Mark Tushnet suggests that Holmes' theory underwent a critical revision as a result of his actual experience as a judge.[18] Tushnet examines Holmes' decisions in several key areas--most significantly those of industrial relations and labor organization--and discovers what at first appear to be inconsistencies. Attempting to account for his discovery, Tushnet makes the following comment:

For those who agree with Tushnet's analysis--and I do--the question of why Holmes found his own theory so utterly deficient remains an intriguing one. My hunch is that the answer can be provided by Holmes' conception of the relation of law to power. Always at the center of Holmes' thinking, the preeminence of power became a more pronounced aspect of Holmes' jurisprudence as time went on. It provides, however, the common thread from first to last.

The Common Law, Holmes' most successful attempt to formulate a comprehensive and coherent theory of law, attacked "the elegantia juris" and prevailing notion of the day that the law was best understood as a formal system of logic. Holmes emphatically rejected such a perspective, and offered instead an explicitly organic explanation of how the law developed. Influenced by the work of Henry Adams and others, research that argued forcefully that the roots of Anglo-Saxon law lay in Teutonic rather than Roman history, Holmes attempted to prove that legal rules grew out of the actual struggles of a prior time, and reflected neither the command of God nor the legal sovereign. Holmes denied that the law could be properly understood "as if it contained only the axioms and corollaries of a book of mathematics," and corollaries of a book of mathematics," focusing his study instead on "the customs, beliefs, or needs of a primitive time.[20] Holmes thus advanced the radical notion that the "felt necessities of the time" had "a good deal more to do than the syllogism in determining the rules by which men should be governed."[21]

In Holmes' mind, the growth of the law was clearly organic, and he identified "considerations of what is expedient for the community" as "the secret root from which the law draws all the juices of life. Every principle of law developed through litigation was "in fact and at bottom the result of more or less definitely understood views of public policy."[23] Asserting the primacy of such considerations, Holmes believed it "pretty certain" that men will "make laws which seem to them convenient without troubling themselves very much {with} what principles are encountered by their legislation.[24]

The success of The Common Law established Holmes' reputation as a serious legal scholar and earned him an appointment to the faculty of the Harvard Law School, which he quickly departed to join the Supreme Judicial Court. His effort to derive from historical case studies a single, unifying theory of law proved somewhat less successful, however. The theoretical conclusion of The Common Law was that the law increasingly relied on standards that were objective and external. Implicit in this conclusion was Holmes' acceptance of the growing power of the organized state to impose its will, and the increasing subordination of the interests of the individual to the interests of the collective. The law is an instrument of the state, and if it is to be an efficient instrument, it must be able to compel what the community wills. Standards of liability and proof must be objective rather than subjective precisely because subjective motivation ceased to be of importance when viewed only as an obstacle to social control.

Holmes' attempt to refine the conclusions of his socio-historical investigations into a "philosophically continuous series" has exposed him to the charge of replacing one "elegantia juris" with another.[25] Nevertheless, one is struck by the degree to which the conclusions of The Common Law presume that society, i.e., "the community," is an organism--an integrated collective being capable of exerting a single collective will. Perhaps this view of society reflected a nineteenth-century commitment to enduring values shared by all members of the community, or the intellectual homogeneity of Brahmin Boston. Whatever its source, the view that society was motivated by a consensus on what constituted beneficial social ends serves as the underpinning for much of Holmes' theory; it was precisely this underpinning that gave way under the weight of the individual cases that demonstrated all too convincingly that no such consensus actually existed.

The collapse of Holmes' confidence in his own premise is the central motif of his judicial career. In 1897, the seasoned judge delivered an address marking the dedication of a new law school. Entitled "The Path of the Law," the lecture ostensibly reprised the familiar themes of The Common Law. From the outset, however, Holmes attempted to shore up the foundations of his theory. Plagued by doubt, he grasped for certainty. His very opening line asserted that law was "not studying a mystery but a well-known profession."[26] Rejecting once more that logic was "the only force at work in the development of the law," Holmes also noted "the pitfalls of antiquarianism," instructing his listeners that the only utility of understanding the past was "the light it throws upon the present. In a prophetic statement, Holmes concluded that "the black-letter man may be the man of the present,[27] but the man of the future is the man of statistics and the master of economics."[28]

This new emphasis on statistics and economics suggests the extent to which Holmes hoped such new expertise might ease his job as a judge. Law had become for Holmes simply "a set of predictions" concerning "what courts do." The value of a legal rule was determined by the degree to which it increased a lawyer's ability to predict court action.[29] If enduring community values no longer provided a stable foundation for such predictions, perhaps statistical analysis could.

Returning to a theme developed in The Common Law, Holmes continued to argue that behind the general form of legal rules lay "the practical motive" for their enforcement. Holmes proposed that if his audience would wash the law with "cynical acid" they would see this practical motive more clearly.[30] Holmes pressed his point home by suggesting a view of law that would "stink{s} in the nostrils of those who think it advantageous to get as much ethics into law as they can." To understand the law fully, one had to look at it from a "bad man's" point of view:

Holmes' motive in proposing such a perspective seems clear: if the law was to have any degree of certainty, it was essential that a reasonably prudent man could be held accountable for the consequences of his conduct regardless of his actual knowledge of the law or intent to violate it. It is likely that Holmes himself adopted this view of the law as a way to hedge his bet that his earlier theoretical assumptions about the evolution of the law might still prove true. Holmes believed that by adopting this "wider point of view" from which "the distinction between law and morals becomes of secondary or no importance," he had made possible a clearer vision of the law, one which revealed "the relative worth of our different social ends."[33] By this point in his judicial career, he had concluded that:

Holmes' day-to-day experience on the bench had confirmed his belief that "behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding."[35] Holmes concluded that the law was a battleground "where the means do not exist for determinations that shall be good for all time, and where the decision can do no more than embody the preference of a given body in given time and place."[36] This frank acknowledgment of the relativism of legal rules clearly was at odds with the deterministic tone of The Common Law. Having revealed the extent to which judges were "taking sides upon debatable and often burning questions," Holmes urged judges to accept the duty and responsibility for making wise decisions.[37]

Two years later, Holmes returned to the problem of determining the relative worth of social ends in an address to the New York State Bar entitled "Law in Science and Science in Law." Holmes stated what he believed to be an obvious and accepted truth, that "every one instinctively recognizes that in these days the justification of a law...cannot be found in the fact that our fathers always followed it," but rather in "some help which the law brings toward reaching a social end which the governing power of the community has made up its mind that it wants."[38] Understood in explicitly instrumental terms, the law must be judged by the degree to which it promotes desired social ends. The problem with such a conception of the role of law is that it strips law of any ethical or moral meaning of its own, and reduces law to simply the process through which society gets what it wants. And where there is doubt, Holmes encouraged judges to "exercise the sovereign prerogative of choice."[39]

For nearly a half-century--from his appointment to the Massachusetts Supreme Judicial Court in 1883 until his retirement from the Supreme Court of the United States in 1932--Oliver Wendell Holmes, Jr. faced the challenge such "choice" presented. Early in his judicial career, Holmes appeared committed to implementing the ideas he had developed in The Common Law. But as time went on, he increasingly absented himself from making the most difficult choices about the relative worth of competing public policies. As early as 1873, Holmes had accepted the proposition that "in the last resort a man rightly prefers his own interest to that of his neighbors," as well as Herbert Spencer's assertion that legislation invariably shifts burdens from the shoulders of the strong to those of the weak, thereby accomplishing a "redistribution of discomfort."[40] A confirmed Darwinist, Holmes assumed that the fittest would not only prevail, but that they had earned the right to survive through victory in combat. Holmes rejected the idea that legislation could guarantee the greatest good for the greatest number; such a calculus presumed an equality of ability and identity of interest which experience had taught Holmes did not exist. If in a given situation legislation actually did prefer the greatest good for the greatest number it was because the majority enjoyed sufficient power to put disagreeable burdens on the shoulders of those too weak to resist the imposition. Holmes concluded that "all that can be expected from modern improvements is that legislation should easily and quickly, yet not too quickly, modify itself in accordance with the will of the de facto supreme power in the community."[41] This instruction, more than any other, came to serve as Holmes' own guide.

If this willingness to acquiesce to the will of the community explains Holmes' opinions in cases like Lochner v. New York (1905), Cop-page v. Kansas (1915), Hammer v. Dagenhart (1918), Adkins v. Children's Hospital (1923), and the notorious language of Buck v. Bell (1927), can it also explain his famous dissents in Abrams v. U.S. (1919), Gitlow v. New York (1925), Olmstead v. U. 5. (1928), and U.S. v. Schwimmer (1929)? A clue to the answer may lie in a dissent Holmes wrote in 1896 while on the Massachusetts high court. The case--Vegelahn v. Guntner[42]--involved the right of laborers to picket. Holmes' angry comments to his English friend, Sir Frederick Pollock, about the way his dissent in support of the workers was misinterpreted by the press as support for organized labor makes clear that Holmes cared little about the lives and interests of those his opinion seemed to help.[43] Though he explicitly denigrated the efficacy of strikes as a way to increase labor's share of the wealth of society, he upheld labor's right to organize because to do otherwise would have ignored the reality of who was coming to enjoy power in the community. Moreover, Holmes could not distinguish this right from similar rights the Court had upheld for entrepreneurs. In a telling portion of his opinion, Holmes argued that "the doctrine generally has been accepted that free competition is worth more to society than it costs."[44] Foreshadowing the day when cost-benefit analysis would be presented in full dress as a comprehensive and acceptable theory of law, Holmes' emphasis on "free competition" and "fair play" characterized many of his most important decisions. Unable to intervene in the contest because he was unable to determine for himself the relative worth of competing social ends, Holmes chose to become the impartial umpire, protecting the combatants' right to a fair fight. His dissent in Abrams summarizes his position:

Read in a certain light, this is no more than a restatement of Holmes' position in Lochner that his own personal agreement or disagreement with the legislative policy involved had "nothing to do with the right of a majority to embody their opinions in law."[46] Thus, what ultimately mattered most for Holmes was that the game be played according to certain notions of a "fair fight," and that the arena remain open for all contestants. He cared little about winners and losers, confident that over time the strongest would inevitably prevail.

It is interesting to note that within a year of his dissent in Abrams, Holmes had noted that even "a dog will fight for his bone,"[47] and that he had come "devilish near to believing that "might makes right."[48] These two comments highlight the degree to which Holmes saw force as the central dynamic of social relations. In the "universal struggle of life," force settled everything.[49] Fascinated by power, Holmes rejected moral sensibility as weakness. For Holmes, all moral and aesthetic preferences were "more or less arbitrary... Do you like sugar in your coffee or don't you...So as to truth."[50] Unrestrained by any particular interest in shaping the future, Holmes self-consciously let "the crowd" decide the most important questions facing society. "In my epitaph," Holmes quipped, "they ought to say 'here lies the supple tool of power'."[51] Where the crowd led, Holmes was prepared to follow: "If my fellow citizens want to go to Hell I will help them. It's my job."[52] Holmes supposed that "the crowd if it knew more wouldn't want what it does--but that is immaterial."[53] Such collective ignorance was immaterial precisely because Holmes' test of excellence for judicial decision was "correspondence to the actual equilibrium of force in the community--that is, conformity to the wishes of the dominant power."[54] In a remarkably direct statement, Holmes noted that "of course, such conformity may lead to destruction, and it is desirable that the dominant power should be wise" but "wise or not, the proximate test of a good government is that the dominant power has its way."[55] Holmes was no optimist--he fully expected that the crowd would ultimately destroy the way of life he preferred.[56] Convinced by his own theory that his own kind were destined for extinction, Holmes was prepared to "bow to the way of the world."[57] But what of those who yielded less willingly? Holmes' conclusion was no less resigned. Having accepted "how limited a part reason has in the conduct of men,"[58] Holmes fully expected that raw force would he the ultimate arbiter. "When men differ in taste as to the kind of world they want the only thing to do is to go to work killing."[59] In Holmes' theory, "war not only is not absurd but is inevitable and rational." Such a conclusion was entirely consistent with his grim statement that "all society rests on the death of men. If you don't kill 'em one way you kill 'em another."[61]

Perhaps Holmes was not entirely serious in these comments, but they provide an important insight to the larger philosophical view of Holmes the jurist. Moreover, one should be careful in evaluating a late-nineteenth century jurisprudence from a post-Auschwitz, post-Hiroshima perspective. Holmes' theory undoubtedly sounds different to a contemporary ear, but the question really remains the same--is the Holmesian legacy one that continues to have value, or is it essentially bankrupt? Holmes' abdication of responsibility for choices he endorsed, and the ultimate impotence of his jurisprudence in the face of difficult questions suggests that although the impact of his decisions was substantial, his solution to the fundamental question of how a judge should decide a case has little enduring value for those who now must exercise "the sovereign prerogative of choice."

Endnotes

1. Kurland, Book Review, 25 U. Chi. L. Rev. 206, 206 (1957).
2. Gilmore, The Ages of American Law (Yale, 1977), pp. 66-67.
3. Pohlman, Justice Oliver Wendell Holmes and Utilitarian Jurisprudence (Harvard, 1984), p. 151.
4. Ibid., pp. 152-156.
5. See G. Edward White’s "The Rise and Fall of Justice Holmes," 39 U. Chi. L. Rev. 51 (1971).
6. Rogat, "The Judge as Spectator," 31 U. Chi. L. Rev. 213, 230.
7. Ibid.
8. Ibid., p. 256.
9. Ibid., p. 236.
10. See Rogat, n. 131, pp. 238-239.
11. Holmes, The Common Law (Little, Brown, 1881), p. 1.
12. Ibid.; See also Holmes’s opinion in Missouri v. Holland, 252 U.S. 416 (1920.
13. The Common Law, p. 44.
14. Ibid., p. 41.
15. Justice Oliver Wendell Holmes: His Book Notices and Uncollected Letters and Papers (Shriver, ed., 1936) p. 187.
16. See Gilmore, pp. 49-50, and Palmer, "Hobbes, Holmes and Hitler," 31 A.B.A.J. 569 (1945).
17. Holmes, "Memorial Day Address, 1895," reprinted in The Mind and Faith of Justice Holmes (Lerner, ed. 1943), p. 20.
18. Tushnet, "The Logic of Experience: Oliver Wendell Holmes on the Supreme Judicial |Court," 63 Virginia L. Rev. 975 (1977).
19. Ibid., p. 1049.
20. The Common Law, p. 1, 5.
21. The Common Law, p. 1.
22. Ibid., p. 35.
23. Ibid.
24. Ibid., p. 211.
25. Gilmore, p. 53.
26. Holmes, "The Path of the Law," Collected Legal Papers (Harcourt, Brace, 1920) p. 167.
27. Ibid., pp. 194-195.
28. Ibid., p. 187.
29. Ibid., p. 168.
30. Ibid., p. 174.
31. Ibid., p. 175.
32. Ibid., p. 171.
33. Ibid., p. 170, 242.
34. Ibid., p. 186.
35. Ibid., p. 181.
36. Ibid.
37. Ibid., p. 184.
38. Holmes, "Law in Science and Science in Law," Collected Legal Papers, p. 225.
39. Ibid., p. 184.
40. Holmes, "The Gas-Stokers’ Strike," 7 Am. L. Rev. 583 (1873), reprinted in 44 Harv. L. Rev. 795 (1931).
41. Ibid.
42. 167 Mass. 92, 44 N.E. 1077 (1896).
43. 1 Holmes-Pollock Letters 106 (Howe, ed. 1941).
44. 167 Mass. 92, 104, 106; 44 N.E. 1077, 1080 (1896).
45. Abrams v. U.S., 250 U.S. 616, 630 (1919).
46. Lochner v. New York, 198 U.S. 45, 5 (1905) (Holmes, J., dissenting).
47. Holmes, "Natural Law," 32 Harv. L. Rev. 40, 42 (1918).
48. Holmes to Bryce (September 17, 1919) cited in Howe, The Proving Years (Harvard, 1963, p. 46, n. 41.
49. Plant v. Woods, 176 Mass. 492, 505; 57 N.E. 1011, 1016 (1900) (Holmes, C.J., dissenting). See also Rogat at p. 235.
50. 1 Holmes-Pollock Letters 105 (Howe, ed. 1941).
51. Holmes to C.E. Hughes, cited in Pusey, 1 Charles Evans Hughes (Macmillan, 1951), p. 287.
52. 1 Holmes-Laski Lettters 249 (Howe, ed. 1953).
53. 1 Holmes-Pollock Letters 163 (Howe, ed. 1941).
54. Holmes, "Montesquieu," Collected Legal Papers, p. 250, 258.
55. Ibid.
56. 2 Holmes-Laski Letters 114 (Howe, ed. 1953).
57. Ibid.
58. 1 Holmes-Laski Letters 122 (Howe, ed. 1953).
59. 1 Holmes-Laski Letters 116 (Howe, ed., 1953).
60. 2 Holmes-Pollack Letters 230 (Howe, ed., 1941).
61. 1 Holmes-Laski Letters 431 (Howe, ed., 1953).