The Long Life And Broad Mind Of Mr. Justice Holmes


If one were to assess The Common Law today as a work of legal history, it might receive only indifferent marks. The texts available to Holmes in the 1870’s were often corrupt. The AngloSaxon material, for example, began to reach definitive form only three decades later. Yet the book still remains important for its expression of legal theory. His conception of the external standard has had its logical consequence in our modern tendency to eliminate guilt from liability, as seen in workmen’s compensation laws and in no-fault automobile insurance.

I have dwelt at some length on The Common Law because I believe that it represents the culmination of Holmes’s immersion in matters intellectual. For the next fifty years he was too busy a judge to write books, but he never changed his fundamental views from those stated in 1881. Idealists have attacked his materialism. Is there not an implication in his legal philosophy that moral standards have no place even in the realm of the conscience? Has a man no obligation to his neighbor but what the average citizen conceives as such? Can morality be reduced to simple good manners? And is a good deed good even if directed by an evil motive? Or a bad deed bad even if directed by a good one? Did Holmes not reject all religion?

He was, it was true, an agnostic, perhaps an atheist. He never considered that man was central, or even necessarily important, to the cosmos. He did not believe in a life after death. When his wife died, it took the persuasion of his brothers on the court, apprehensive of the scandal of such godlessness in high places, to induce him to have any funeral service at all. But there was never any question of his own exacting moral standards. He may have laughed at himself for being the heir to a puritan background, but he did not kick against its restraints. He had a deep sense of the importance of being a gentleman—in the best sense of that word—even in a cold and indifferent universe. How can rational men be Christians? he asked Sir Frederick Pollock, the eminent British legal authority, and here is how he answered his own question: “It is like the justification of conventions—I respect a tall hat or the cult of monogamy not from the internal selfsatisfaction of the accidents of space and time but from the consideration that the inward necessity of man to idealize must express itself in inadequate and transitory symbols of no value in themselves but reverent for the eternal movement of which they are the momentary form.”

Holmes’s work on the Supreme Judicial Court of Massachusetts represented a highly creative period in the development of law, and he came to be a leading, if not the dominant figure of that bench. From the beginning, in 1882, he was happy in his new work. He loved being able to apply his knowledge in the philosophy of law to actual cases, and he found the judicial experience an exciting one. There are few positions in the world of practical affairs where a man can be so much of a scholar and a philosopher as that of judge. Holmes’s life was with ideas; he had no use for facts except insofar as they gave rise inductively to general propositions. Years later, in 1919, he was to describe to Pollock the feelings aroused in him by Justice Louis Brandeis’ criticism of his slighting of economic statistics: “Brandeis the other day drove a harpoon into my midriff with reference to my summer occupations. He said you talk about improving your mind, you only exercise it on the subjects with which you are familiar. Why don’t you try something new, study some domain of fact. Take up the textile industries in Massachusetts and after reading the reports sufficiently you can go to Lawrence and get a human notion of how it really is. I hate facts. I always say the chief end of man is to form general propositions—adding that no general proposition is worth a damn.”

Holmes was an ambitious man, but his ambition lay along severely restricted lines. When his friend Henry Cabot Lodge suggested that he should run for Governor of Massachusetts as a step toward becoming a senator, he replied simply, “But I don’t give a damn about being Senator.” He said of Napoleon, “I am not interested by men whose view of life does not interest me.” But he was intensely interested in judicial work and looked forward to an even larger opening than was offered by the highest bench of Massachusetts.

Washington was watching him. His reputation for liberalism stood him in good stead under the new administration of Theodore Roosevelt. Holmes’s dissent in Vegelahn v. Guntner had alarmed the capitalist world, although the simple language with which he presented the conflict of capital and labor seems indisputable today: “One of the eternal conflicts out of which life is made up is that between the effort of every man to get the most he can for his services, and that of society, disguised under the name of capital, to get his services for the least possible return. Combination on the one side is patent and powerful. Combination on the other is the necessary and desirable counterpart, if the battle is to be carried on in a fair and equal way.”