Holmes is where the heart is

Oliver Wendell Holmes, Jr. has become a character of near mythical proportion in the American mind. Born the first son of the "Autocrat of the Breakfast Table" in 1841, Holmes's life stretched across one of the most important spans of American history. By the time he died in 1935 the Civil War, the first world war, and the Great Depression had left their marks on American politics and society. And all along the way, Holmes had been an active participant in the great events and debates of the times.

Thrice wounded in the Civil War, author of the classic work The Common Law, and professor of law at Harvard, Holmes in 1882 became a justice (and, later, chief justice) of the Supreme Judicial Court of Massachusetts, a seat he held until Theodore Roosevelt put him on the United States Supreme Court in 1902. During his 30 years on the highest bench he rendered decisions and fashioned phrases that have become part of the fabric of American law.

But Holmes's popular reputation depends as much on his alleged intellectual prowess off the bench as on, and on that ground he is found wanting, as this collection of his non-judicial writings makes clear. His reputation in this regard is more the result of affection than of analysis, more from the heart than from the head.

The canonisation of Holmes began early and has been carried forward by several generations of loving disciples determined to make him more than he was. The effort has had a particular objective, as Sheldon Novick points out in his introductory essay to these volumes. There has been "a conscious effort to portray Holmes as a political liberal". Felix Frankfurter, Benjamin Cardozo, Louis Brandeis and Harold Laski, among others, had a decided ideological interest in finding a patron saint for the good liberal works they thought the courts ought to be doing. Holmes fitted the bill perfectly, even though he was a lifelong Republican of conservative political and social views, and an advocate of free-market economics who believed in judicial restraint.

One would think a man chosen for elevation to the status of public "philosopher" (Laski's word) should have a grand theory of the law and the constitution. Certainly Holmes's great predecessors such as John Marshall and Joseph Story had such views; and many of those who came after him, from Frankfurter to William Brennan to Antonin Scalia, have also viewed their work from a theoretical perspective. But not Holmes.

Holmes was, as they say in the trade, a real black-letter lawyer. His early contributions to the American Law Review, which he edited from 1867-73, were on such matters as agency and torts. Even when he turned his attention to the connection between law and morality, as he did in his famous article "The path of the law", his focus was less on constitutional law than on the more mundane private law of contracts. Ultimately, Holmes was more a lawyer's lawyer than a philosopher.

Holmes's most famous work, The Common Law, was explicitly concerned with private, not public law. While bits of his prose have been taken out of the context of what Novick rightly calls "a museum piece of Victorian scientism" and given inflated moral meaning, the work on the whole does not rise to philosophical heights. Through this course of lectures Holmes endeavoured to fashion a single standard of liability in tort law. Even with a subject he knew so well, "Holmes was like a carpenter trying to deduce a mortise and tenon joint from Newton's laws of motion". His one real stab at producing an enduring theory of law was a dud.

This is not to say Holmes did not have a theory of law, or to suggest he did not aspire to be theoretical in his various non-judicial articles and speeches. It is only to say that the assessment of Walter Berns seems right: "Holmes was a dilettante who dabbled in philosophical works and who was led by his attraction to theory to make theoretical statements about the law". But even so, given his long judicial tenure and large output, and the reputation as a great thinker that has come to be bestowed on him, whatever theory he had or his disciples say he had must be taken seriously.

There are two striking things about the various theoretical strands in Holmes's thought. First, Holmes was an immensely learned man, well read in the most recent scientific and philosophical works of his day. He soaked up all he read, mulled over all the theories that came his way, and sought to put them into some sort of intellectual order. This was usually a matter of years; one sees, for example, traces of one of his most famous statements in The Common Law: "The life of the law has not been logic: it has been experience", in a student essay on Plato published in 1860. But ultimately, Holmes was less an original thinker than an avid reader and tireless writer and talker; he was a man of confident sentiments, not deep theory.

The second striking thing about Holmes's essays and speeches is how politically incorrect were many of his views when judged by today's standards. To put it most simply, Holmes did not believe in the possibility of justice. For him, morality was nothing more than "a body of imperfect generalisations expressed in terms of emotion". All that counted for him as a judge was that the "game is played according to the rules whether (he) like(d) them or not". What that meant in practice was that majority rule is all that is required for a "just" regime, and whatever a majority might indeed do is a matter of moral indifference. As Holmes bluntly put it: "Wise or not, the proximate test of a good government is that the dominant power has its way."

Holmes was particularly opposed to the idea of natural law in legal interpretation: "Nothing but confusion of thought can result from assuming that the rights of man in a moral sense are equally rights in the sense of the constitution and the law". In his famous 1918 essay on "Natural law" Holmes chided his brethren of the bench: "The jurists who believe in natural law seem to me to be in that naive state of mind that accepts what has been familiar and accepted by them and their neighbours as something that must be accepted by all men everywhere". At his deepest, Holmes was a superficial Hobbesian who believed that outside the constitutional structures of society such words as "justice" and "injustice" can have no meaning.

Beneath his view of the law as the judgement of the dominant power in the community was a harshly amoral view of man. Nature gave no edge to mankind, in Holmes's opinion: "A certain complex of energies can wag its tail and another can make syllogisms". Writing to Sir Frederick Pollock, Holmes confided that "when one thinks coldly, I see no reason for attributing to man a significance different in kind from that which belongs to a baboon or to a grain of sand". These views are hardly the stuff of contemporary constitutional moralism. Indeed, given the way American constitutional theory has developed, tenure for Holmes at Harvard Law School would today be a real question; appointment to the Supreme Court would not be a question at all - he would not get confirmed. Holmes's unblushing moral scepticism when it came to judging puts him much closer to the views of Judge Robert Bork and Chief Justice William H. Rehnquist than to such liberal favourites as Justice William Brennan and the late Chief Justice Earl Warren.

The greatest virtue of this collection is what it shows us about the age in which Holmes lived and how a very intelligent and public spirited lawyer reacted to those times. It is simply stunning to remember that here is a man who published a contemporary analysis of the impeachment of Andrew Johnson in 1868, and whose last published work was in 1934, well into Franklin D. Roosevelt's presidency. These non-judicial writings are like snapshots taken along the way.

The weakness of this collection is what is missing. Novick has not seen fit to include any portions of Holmes's diary; nor is there any of the justly celebrated correspondence, such as that with Pollock and Laski. The lively and insightful exchanges between Holmes and the great figures of his day would have brightened this collection considerably. The unguarded glimpse one gets of Holmes in his letters is far richer, and in many ways more important, than what is preserved here.

A case in point is the editor's decision to waste the entire second volume on Holmes's notes to his edition of Chancellor James Kent's Commentaries on American Law, on the grounds that it shows Holmes directly battling against the older legal tradition. There is not enough of Kent provided (usually only a sentence or two) to give the reader a sense of the importance of what Holmes was doing. In the end, there is too little here for the scholar, and too much for the normal reader with an interest in these matters.

On the mechanical side of things, the editor is also guilty of omission. While the name and case indices are helpful, for a man like Holmes a general subject index is essential. The failure to include one greatly reduces the utility of these volumes for students who might wish to explore Holmes for his views on certain issues. As it stands, one is reduced to scanning the entire collection looking for the odd phrase or word.

The next two volumes in Novick's project will be a compilation of Holmes's "selected" judicial writings, and one can only look forward to them. For in the end the Oliver Wendell Holmes known so well is Justice Oliver Wendell Holmes, the author of more than 800 opinions on the Supreme Court. It is in those opinions where one will find the stirring rhetoric that helped shape the judicial doctrines on such things as freedom of speech for which Holmes is so fondly remembered and highly regarded. Until those opinions appear, those who truly wish to understand the man, the judge and the scholar will have to wait.

Gary L. McDowell is director of the Institute of United States Studies and professor of American studies, University of London.