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Holmes and Legal Pragmatism
Thomas C. Grey*
Oliver Wendell Holmes is the great oracle of American legal
thought, but as with other oracles his message is subject to much dispute.
His admiring readers have mainly stressed Holmes the critic of
Langdellian legal formalism, who said the life of the law was not logic
but experience.' Others, generally less admiring, have focused on
Holmes the Social Darwinist, who celebrated the struggle for existence,
or Holmes the amoral positivist, who analyzed law from the perspective
of a "bad man."'2 In recent years, still others have emphasized yet another
Holmes, one whose main achievement as a legal thinker, apart
from a few memorable anti-formalistic jurisprudential slogans, was a
body of surprisingly abstract and conceptual doctrinal writing.3 One of
the few points on which all commentators agree is Holmes' greatness as
a prose stylist.4 But when combined with the range of competing interpretations
of his work, even the brilliance of his prose suggests another
unflattering account-Holmes the eclectic aphorist, whose purely literary
talent for glittering phrases conceals a muddle of mutually inconsistent
ideas.5
@1989 by Thomas C. Grey.
* Professor of Law, Stanford Law School. My thanks to Robert Gordon, David Hollinger,
William Simon, Robin West, and Steven Winter for their valuable comments, and to
Richard KIingler and Henry Bemporad for their useful research assistance. Barbara Babcock
has as usual provided especially careful and searching editing, and every other kind ofsupport
as well. My sister Alison Anderson unwittingly started me on this project many years ago
when she gave me two volumes of Holmes' correspondence, and she has inspired me by her
example in many ways since; this article is for her.
1. Among the most enthusiastic expressions of this perspective are the various essays in
the collection edited by Felix Frankfurter, especially those by Morris Cohen, John Dewey,
Frankfurter himself, and Harold Laski. MR. JUSTICE HOLMES (F. Frankfurter ed. 193 1). For a
contemporary expression of the same view, see the chapter Mr.JusticeOliver Wendell Holmes, the
Completely AdultJurist,in JEROME FRANK, LAW AND THE MODERN MIND 253-60 (1930). A more
sophisticated appreciation of Holmes which treats his critique of formalism as central to his
work is MORTON WHITE, SOCIAL THOUGHT IN AMERICA: THE REVOLT AGAINST FORMALISM 59-
75 (2d ed. 1957).
2. See, e.g., LON L. FULLER, THE LAW INQUEST OF ITSELF 62-63, 92-95 (1940); Henry M.
Hart, Holmes' Positivism-AnAddendum, 64 HARV. L. REV. 929 (1951); Yosal Rogat, TheJudge as
Spectator, 31 U. CHI. L. REV. 213 (1964).
3. Grant Gilmore particularly stressed this aspect of Holmes. See GRANT GILMORE, THE
DEATH OF CONTRACT 13-53 (1974); GRANT GILMORE, THE AGES OF AMERICAN LAw 48-56
(1977). Robert W. Gordon has pursued the theme as well. See Gordon, Holmes'Common Law
as Socialand Legal Science, 10 HOFSTRA L. REV. 719, 726-29 (1982).
4. The agreement is not confined to the parochial world of lawyers; even so demanding
a literary critic as Edmund Wilson judged Holmes' style to be "perfect." EDMUND WILSON,
PATRIOTIC GORE 781 (1962).
5. See Saul Touster, Holmes a HundredYears Ago: The Common Law and Legal Theory, 10
STANFORD LA W REVIEW
My thesis is that while there are indeed multiple and apparently
clashing strands in Holmes' thought, most of them weave together reasonably
well when seen as the jurisprudential development of certain
central tenets of American pragmatism. Conflicts do remain when
Holmes' work is interpreted from this perspective, but they can be explained
by a characteristic paradox-the man was disabled by temperament,
by experience, and by the historical context in which he found
himself from adequately practicing the pragmatism he so eloquently
preached.
Holmes as legal pragmatist is hardly a new idea. His associations
with Charles Sanders Peirce and William James, as well as his admiration
for John Dewey, have led a number of intellectual historians to
count him as an adherent and even a founder of the pragmatist movement.6
At the same time, legal theorists have associated both his generally
empirical and instrumental approach to law, and his specific
account of legal rules as predictions ofjudicial decisions, with familiar
pragmatist teachings.7 But there are serious problems with these standard
positions. On the biographical side, while Holmes did express admiration
for Dewey, he never made clear what it was that he admired.
And his more specific remarks about pragmatism and the other wellknown
pragmatists were critical, often harshly so. He condemned
James' version of pragmatism as "humbug";8 and while he apparently
knew little of Peirce's ideas, he did not think highly of what he knew. In
the end, what Holmes said directly about pragmatism and its exponents
does not by itself support placing him in the pragmatist camp.9
When we turn from Holmes' direct statements about pragmatism
and the pragmatists to his legal thought itself,the difficulty is to identify
anything distinctively pragmatist in his writings. He did treat law as a
utilitarian instrument for the satisfaction of human desires, but as he
said himself, "the judging of law by its effects and results did not have
to wait for W[illiam] J[ames]." 10 The English analytical positivists who
followed Bentham and Austin had made the instrumental approach to
HOFSTRA L. REV. 673, 707 (1982) (characterizing Holmes as an unsystematic "utterer of
smart things' ").
6. See, e.g., MAX H. FISCH, Justice Holmes, the Prediction Theory ofLaw, and Pragmatism, in
PEIRCE, SEMEIOTIC, AND PRAGMATISM: ESSAYS BY MAX FISCH 6 (K. Kerner & C. Kloesel eds.
1986) (reprinting Max H. FischJusticeHolmes, the Prediction Theory ofLaw, andPragmatism,39J.
PHIL. 85 (1942)); PHILIP P. WIENER, EVOLUTION AND THE FOUNDERS OF PRAGMATISM 172-89
(1965).
7. On instrumentalism, see Benjamin Cardozo, Mr. Justice Holmes, in MR. JUSTICE
HOLMES, supra note 1, at 1, 6-7; ROBERT S. SUMMERS, INSTRUMENTALISM AND AMERICAN LEGAL
THEORY 20-34 (1982). On the pragmatic aspects of the prediction theory, see Fisch, supra
note 6; see also Frederic Rogers Kellogg, The Making of an American Legal Philosophy, in THE
FORMATIVE ESSAYS OFJUsTICE HOLMES 1, 50-57 (F. Kellogg ed. 1984) [hereinafter FORMATIVE
ESSAYS].
8. 1 HOLMES-POLLOCK LEfRS 139 (M. Howe ed. 1941) (letter datedJune 17, 1908).
9. I review the evidence on Holmes' views ofthe leading pragmatists in an appendix to
this article. See text accompanying notes 368-421 infra.
10. 1 HOLMES-LASKI LETTERS 20 (M. Howe ed. 1953) (letter dated Sept. 15, 1916).
[Vol. 41:787
April 1989]
law prominent long before American pragmatism came on the scene.
Holmes was certainly one of the important American exponents of English
analytical positivism, and his prediction theory is a significant elaboration
of that approach to law. But if this were all there were to
Holmes, we would add little by calling him a pragmatist. 1
My suggestion is that we can understand the distinctively pragmatist
cast to Holmes' legal thought if we take account of the recent revival
and reinterpretation of pragmatism within Anglo-American philosophy.12
The "neo-pragmatists" reject the long-standing treatment of
pragmatism as simply a minor element in the triumphant advance of
scientific positivism.13
In this traditional view, the pragmatists were
merely thinkers who anticipated and stated in a confused way some of
the ideas later worked out more rigorously by the logical positivists and
their successors in the philosophy of science. A parallel view of pragmatism
in legal theory would see Holmes, Roscoe Pound, and its other
exponents as relatively primitive and confused precursors of the more
rigorous and sophisticated form of scientific instrumentalist jurisprudence
represented by contemporary law and economics, cost-benefit
analysis, and public choice theory.
By contrast, the new philosophical interpretation of pragmatism
stresses certain ways in which it departs from and indeed undermines
orthodox scientific empiricism, particularly in its focus on human inquiry
as a culturally situated form of activity. Much as William James'
original formulation of pragmatism sought to mediate between "toughminded"
devotees of science and "tender-minded" religious believ-
11. H.L. Pohlman argues that Holmes is best seen as continuing the tradition of Bentham
and Austin, see H.L. POHLMAN, JUSTICE OLIVER WENDELL HOLMES AND UTILITARIAN JURISPRUDENCE
(1984), and concludes that nothing is gained by characterizing him as a
pragmatist. Id. at 163-64. In my view, Pohlman significantly understates the importance of
historicist social theory in Holmes' legal thought. See text accompanying notes 74-81, 90-91
infra.
12. Richard Rorty has been the best-known promoter of the pragmatist revival. See
RICHARD RORTY, PHILOSOPHY AND THE MIRROR OF NATURE (1979); RICHARD RORTY, CONSEQUENCES
OF PRAGMATISM (1982). Rorty's introductory essay to the latter volume, Introduction:
PragmatismandPhilosophy, is a good introduction to the new interpretation of pragmatism. Id.
at xiii-xlvii. For a sample of the many other recent philosophical works that take neo-pragmatist
positions, though without adopting the pragmatist label, see RICHARD J. BERNSTEIN, BEYOND
OBJECTIVISM AND RELATIVISM: SCIENCE, HERMENEUTICS, AND PRAXIS (1985); NELSON
GOODMAN, WAYS OF WORLDMAKING (1978); SAUL KRIPKE, WITrGENSTEIN ON RULES AND PRIVATE
LANGUAGE (1982); HILARY PUTNAM, REASON, TRUTH AND HISTORY (1981); P.F. STRAWSON,
SKEPTICISM AND NATURALISM (1985). Kripke and Strawson both stress the influence of Hume
and the later Wittgenstein on their formulations. Another important influence on the neopragmatist
revival has been the modem historicist reconception of natural science associated
with Thomas Kuhn. See THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (2d
ed. 1970); THOMAS S. KUHN, THE ESSENTIAL TENSION (1977).
13. See, e.g., AJ. AYER, THE ORIGINS OF PRAGMATISM (1968); W.V. Quine, The Pragmatists'
Placein Empiricism,in PRAGMATISM: ITS SOURCES AND PROSPECTS 21 (R. Mulvaney & P. Zeltner
eds. 1981). Quine, who downplays the historicist aspects of pragmatism stressed by Rorty
and others, argues that the term "pragmatism" fails to usefully distinguish itselffrom "empiricism,"
and hence "draws a pragmatic blank." Id. at 23.
HOLMES
STANFORD L W REVIEW
ers,14
the neo-pragmatists seek a bridge across the divide that has separated
Anglo-American from European philosophy in this century. On
one side of this divide, English speakers (and some Austrian helpers)
have tended to conceive of philosophy as an enterprise dedicated to
exploring the foundations of knowledge through a rigorous account of
natural scientific method, with the ultimate aim of extending that
method to all areas of human inquiry. 15
On the other side, European
philosophy has long stood in an adversary relation to natural science
and technology, pursuing the (often quasi-religious) search for meaning,
sometimes culminating in a discovery of meaninglessness, through
the exploration of culture and lived experience. 16
This schism matters to legal scholars because it extends beyond philosophy
to divide students and theorists of social phenomena more
generally, including those who focus upon law. The positivist project
of developing "social sciences" modeled on physics, chemistry, and biology
has dominated Anglo-American social theory, while the European
tendency has been to study society and culture interpretively, as
text-analogues to be understood rather than as natural phenomena to
be explained. The extension of the European style of theorizing into
American intellectual life in recent years has produced sharp divisions
between the traditionally dominant positivist approach, and a newer
movement toward "hermeneutic" and "post-modernist" modes of
thought. This division is evident within legal thought as well, where
jurisprudential approaches based upon the economic paradigm of rational
choice remain dominant, but are increasingly subject to challenge
from approaches that stress the centrality of culture, history,
language, ideology, and rhetoric.
The neo-pragmatists' pluralistic conception of inquiry challenges
the dominance of natural science in the intellectual life of the Englishspeaking
world, and some traditional positivists see their work as a nihilistic
challenge to reason itself. But when compared with other postmodernist
thinkers, the new pragmatists can be seen as still working
within the scientific empiricist tradition broadly conceived. They tend
to reject both the pervasive relativism and the oppositional stance toward
natural science that many European philosophers and social
thinkers have adopted, and they accept the spirit of scientific inquiry, in
which theory is tested against experience by a reflective and critical
community of inquirers. Pragmatists see even natural scientific inquiry
as having unavoidably interpretive and culturally conditioned aspects;
14. WILLIAM JAMES, PRAGMATISM: A NEW NAME FOR SOME OLD WAYS OF THINKING 3-40
(1907) [hereinafter W. JAMES, PRAGMATISM].
15. This ambition runs throughout the work of the Logical Positivists, a representative
selection of whose writings can be found in LOGICAL PosmVSM (A.J. Ayer ed. 1959).
16. This generalization is meant to characterize the main line of European philosophy
since Kant's critiques overthrew the tradition of Cartesian foundational rationalism; the line
begins with Hegel, runs through Kierkegaard, Nietzsche, and Dilthey, and encompasses such
disparate modem thinkers as Heidegger, Sartre, Gadamer, Ricoeur, and Derrida.
[Vol. 41:787
April 1989]
at the same time they believe that humanistic and explicitly evaluative
inquiry can be pursued rationally and with the reasonable hope of progress.
In social theory generally, and legal theory more particularly,
the pragmatist tendency is to promote trade rather than warfare between
normative and descriptive theorists, storytellers and modelbuilders,
interpreters and causal explainers. 17
Finally, in interpreting the history of pragmatism, the neopragmatists
have departed from their predecessors by emphasizing
Dewey over Peirce and James as the central figure in the movement. 18
Dewey's own focus was not so much on the methods of the natural sciences
(as with Peirce) or on the life-situation of the individual (as with
James), but more on issues of social theory, politics, and law. It was
Dewey who particularly developed the pragmatist critique of the traditional
philosophical "quest for certainty", Dewey who particularly undermined
the positivist dualisms of subject and object, mind and
matter, fact and value, and Dewey who particularly stressed the shaping
effect of cultural and historical context on human inquiry. And these
are the aspects of pragmatism that have dominated the recent revival.
In what follows, I spell out my own version of the recent reinterpretation
of pragmatism, and then look at Holmes' legal theory from the
perspective it provides, with special emphasis on the elements common
to the thought of Holmes and Dewey. I was moved to my study by the
strongest single piece of direct evidence linking Holmes to pragmatism:
when late in life he read Dewey's Experience and Nature, Holmes wrote
that its "view of the universe ... came home to me closer than any
other that I know."' 9 As one for whom Dewey's masterpiece also
17. For some philosophical applications of"the new pragmatism" to social thought, see
RICHARD RORTY, Method, SocialScience, andSocial Hope, in CONSEQUENCES OF PRAGMATISM, supra
note 12, at 191, 203-08 (contrasting the progressive and optimisticJohn Dewey with the relativistic
and pessimistic European post-modernist Michel Foucault); and HILARY PUTNAM,
MEANING AND THE MORAL SCIENCES 66-77 (1978). For a political theorist's work in a pragmatist
vein, see DON HERZOG, WITHOUT FOUNDATIONS (1985). The reach ofpragmatism beyond
philosophy to social thought and practical politics is nothing new; David Hollinger has shown
that in the heyday of Dewey's influence, his version of pragmatism provided a significant
framework for the general thinking ofeducated Americans on social questions, and hence was
influential in arenas well beyond the philosophy department. See DAVID A. HOLLINGER, The
Problem ofPragmatismin American History, in IN THE AMERICAN PROVINCE 23 (1985).
The point is made most impressively inJAMES KLOPPENBERG, UNCERTAIN VICTORY: SOCIAL
DEMOCRACY AND PROGRESSIVISM IN EUROPEAN AND AMERICAN THOUGHT, 1870-1920 (1986).
This book, which I discovered just as this article was going to press, gives an account of
pragmatism strongly parallel to my own.
18. At the same time, bothJames and Peirce have themselves been persuasively reinterpreted
along "neo-pragmatist" lines. On James, see David A. Hollinger, WilliamJamesand the
Culture of Inquiry, in IN THE AMERICAN PROVINCE, supra note 17, at 3. And in a study that
parallels this one in many ways, Catharine Hantzis brings out elements in Holmes' legal theory
that depart from the conventional legal positivism so often attributed to him by noting the
similarities between his ideas and the pragmatism of Peirce. Catharine Hantzis, Legal Innovation
W1ithin the Wider IntellectualTradition:The PragmatismofOliver Wendell Holmes,Jr., 82 Nw. U.L.
REV. 541 (1988).
19. 2 HOLMES-POLLOCK LETrERs, supranote 8, at 272 (letter datedJuly 26, 1930). Dewey
expressed similar intellectual kinship with Holmes. See John Dewey,JusticeHolmes and the Lib-
HOLMES
STANFORD LA W REVIEW
comes very close to home, I was particularly struck by this remark, especially
in view of the great differences in social and political outlook
between the two men. Could there perhaps be some deeper unity that
explained the sense of intellectual kinship they shared? That question
started me in search of a Holmesian theory of law that fit with Dewey's
kind of pragmatism.20
Such a study responds to two motives, and I can only hope that I
have somehow managed to negotiate the conflicts between them. First,
in common with many American lawyers, I am fascinated by Holmes, a
fascination compounded of repulsion and attraction. It is easy to list
the man's repulsive aspects: his naive attraction to pseudo-scientific
eugenics, his fatalism, his indifference to human suffering, his egotism
and vanity, his near-worship of force and obedience. But even when all
that is taken into account, I am drawn on by Holmes' charms of person
and of style, charms enhanced for the interpretive suitor by the complexities
and paradoxes that shroud his character and thought. And the
substance of his most famous teaching, the primacy of experience over
logic, still seems to me the central, if obscure, truth of American legal
thought; as Cardozo wrote, "Here is the text to be unfolded. All that is
to come will be development and commentary. '"21
That conviction introduces my second motive, which is the wish to
have my own present say in furtherance of a neo-pragmatist approach
to legal theory. It has been common to promote legal theories by enlisting
Holmes among their sponsors, but the precedents are not all
auspicious. One who attempts to combine in a single study a commentary
on Holmes and a contribution to contemporary legal theory risks
doing neither well. While incurring this risk, I take some comfort from
the words of Chauncey Wright, an early influence on Holmes, who
wrote that "[t]he most profitable discussion is, after all, a study of other
minds-seeing how others see, rather than the dissection of mere propositions."22
The personal is the theoretical. Such, at least, is myjustification
for this binocular effort to present pragmatism through the lens
of Holmes while at the same time presenting Holmes through the lens
of pragmatism.
eral Mind, in MR. JUSTICE HOLMES, supra note I [hereinafter Dewey, Justice Holmes];JOHN
DEWEY, EXPERIENCE AND NATURE 417-19 (2d ed. 1929).
20. I should say a word about my sources. Holmes' published extra-judicial writings are
not voluminous, and I have read them all-his essays, speeches, letters, and his one book, The
Common Law. I have not reviewed the mass ofhis judicial opinions as exhaustively, nor drawn
on them as much in my argument, but my knowledge of the familiar among them, along with a
sampling of the less familiar, confirms that they do not add new elements to the body of his
general legal thought. He had only so many things to say, a mid-sized stock of basic insights
and aphorisms. The interpretive problem is to show how a set of familiar elements fit together,
if they do at all.
For my account ofpragmatism, I have drawn inspiration from the neo-pragmatist writers
already cited, and material mainly from the writings ofDewey, supplemented by references to
Peirce and James.
21. Benjamin Cardozo, Mr.JusticeHolmes, in MR. JUSTICE HOLMES, supra note 1, at 3.
22. Quoted in P. WIENER, supra note 6, at 30.
[Vol. 41:787
The study is a long one, and a sketch in advance may be helpful. In
Part I, I spell out my version of what distinguishes American pragmatism
from the scientific empiricism out of which it grew, its doubly practical
account of inquiry as at once situated in existing practice and
instrumental to practical ends. In Part II, I summarize the core of
Holmes' application of this perspective to law, his conception of "law as
experience," a conception synthesizing the apparently conflicting historical
and analytical schools of jurisprudence. In Parts III and IV, I
consider aspects of Holmes' legal thought often believed to conflict
with his experiential account of law-respectively, the conceptualism
discernible in his treatment of legal doctrine, and the apparently narrow
positivism of his emphasis on the prediction ofjudicial action. I
argue that when properly understood, both Holmes' conceptualism
("law as logic") and his positivism ("law as prediction") are consistent
with his pragmatist account of law as experience. In Part V, I turn to a
real and serious practical contradiction in Holmes' work, the conflict
between his spectatorial detachment from his own society on the one
hand, and his commitment to a life of active participation in its government
by law on the other. Finally, in Part VI, I argue that in the course
of Holmes' unsuccessful struggle with this contradiction, he came to
understand and articulate his own version of the important concept
that Dewey called "the end-means continuum," a concept that is essential
iflegal pragmatism is to differentiate itselffrom the more reductive
forms of legal instrumentalism.
I. THE PRIORITY OF PRACTICE
Those who would make Holmes a pragmatist have usually had in
mind his conception of law as the coercive use of state power through
the courts, aimed at the promotion of public welfare or the satisfaction
of collective wants. The conception is thought pragmatic because it is
at once empirical and instrumental. Descriptively, for Holmes, the law
is "what the courts... do in fact," and it draws its content largely from
"[t]he felt necessities of the time."' 23 Prescriptively, legal principles are
to be derived from "accurately measured social desires," with these to
be approximated, in the absence of a better measuring stick, by "conformity
to the wishes of the dominant power" in the community. 24
While nothing in such a conception of law is inconsistent with pragmatism,
the difficulty, mentioned already, is seeing anything distinctively
pragmatist in it. As Holmes himself was quite aware, the view of law as
23. OLIVER WENDELL HOLMES, The Pathof the Law (1897), inCOLLECTED LEGAL PAPERS
161, 173 (1920) (hereinafter The Path of the Law]; OLIVER WENDELL HOLMES, THE COMMON
LAW 5 (M. Howe ed. 1963) (originally published 1881) [hereinafter THE COMMON LAw].
24. OLIVER WENDELL HOLMES, Law in Science and Science in Law (1899), in COLLECTED
LEGAL PAPERS 210, 226 (1920) [hereinafter Law in Science]; OLIVER WENDELL HOLMES, Montesqtwieu
(1900), in COLLECTED LEGAL PAPERS 250, 258; see alsoTHE COMMON LAw, supranote 23,
at 36.
April 1989] HOLMES 793
STANFORD LA W REVIEW
regularized coercion and as a means to an end was not new either with
him or with those we think of as pragmatists. 25 Beginning more than a
century before pragmatism was first heard of, and continuing throughout
a long and immensely influential career Jeremy Bentham had promoted
the idea that law was the use of collective force as a means to
human happiness. In this, he was followed by his discipleJohn Austin,
whose theory became the orthodoxy of English analytical jurisprudence
while Holmes was a law student.26 Holmes was a member of the first
generation ofAmerican lawyers to be much influenced by the utilitarian
positivism of the analytical jurists; only in a later generation would such
views become dominant, as, in a sense, they remain to this day. Yet
there was nothing original to America, nothing derived from James or
Peirce, nothing peculiar to pragmatism, in Holmes' often reiterated application
of Benthamite slogans to law.
Bentham's instrumentalism applied the post-Enlightenment spirit of
scientific positivism to law and politics. Central to this spirit was the
conviction that, as Richard Rorty has put it, "natural science-facts
about how spatio-temporal things worked-was all the Truth there
was. '"27 Applied to law, the positivist spirit required that if legal propositions
were to have scientific standing, they must be reducible to
factual claims. Accordingly Austin, following Bentham's lead, analyzed
legal rights and duties in terms of two straightforwardly factual questions:
what person or group in society is habitually obeyed, and what
has he, she, or it commanded?28 Under this conception, the determination
of what the law is requires no value judgment; the lawyer needs
only to identify behavioral regularities and consult the plain meanings
of words.
For positivists of the Benthamite persuasion, moral and political
evaluation could proceed rationally only if evaluative discourse itself
could be reduced to factual terms. Otherwise it was pure rhetoric,
25. See note 10 supraand accompanying text. The point that there is nothing uniquely
pragmatic in a utilitarian, instrumental conception of law is forcefully made throughout H.
POHLMAN, supra note 11.
26. The publication ofa second edition of Austin's ProvinceofjurisprudenceDeterminedin
1861 rescued the work from the obscurity into which it had sunk after its original publication
in 1832. Sarah Austin's edition of his Lectures on Juriprudence,reconstructed from his manuscripts,
appeared in 1863. For this bibliographic history, see H.L.A. Hart, Introduction to JOHN
AUSTIN, THE PROVINCE OFJURISPRUDENCE DETERMINED AND THE USES OF THE STUDY OFJURISPRUDENCE
at vii, ix (1954) (originally published 1832) [hereinafterJ. AUSTIN, THE PROVINCE OF
JURISPRUDENCE]. Holmes checked Austin's Lectures out of the library some five times between
1863 and 1871. MARK DE WOLFE HOWE, JUSTICE OLIVER WENDELL HOLMES: THE SHAPING
YEARS, 1841-1870, at 194 & note d (1957) [hereinafter M. HOWE, THE SHAPING YEARS]. Peter
King unfortunately omits any consideration of Holmes in his otherwise useful study of the
transmission of analytical positivism to America. See PETER S. KING, UTILITARIAN JURISPRUDENCE
IN AMERICA: THE INFLUENCE OF BENTHAM AND AUSTIN ON AMERICAN LEGAL THOUGHT IN
THE NINETEENTH CENTURY (1986).
27. RICHARD RORTY, Introduction:PragmatismandPhilosophy,in CONSEQUENCES OF PRAGMATISM,
supra note 12, at xiii, xv.
28. SeeJ. AUSTIN, THE PROVINCE OF JURISPRUDENCE, supra note 26, at 9-33; JEREMY BENTHAM,
OF LAWS IN GENERAL, 1, 18-19 (H.L.A. Hart ed. 1970) (originally completed 1782).
[Vol. 41:787
"simple nonsense," or "nonsense upon stilts.' ' 29 The only empirical
realities available as plausible sources of value judgements were human
desires and sensations of pleasure or pain. Thus utilitarianism became
the prescriptive corollary of positivism. An action or a law was right to
the extent it promoted pleasure or satisfaction, and prevented pain or
frustration. Given this starting point, moral questions became in principle
issues of fact, which, it was hoped, technical progress would one
day reduce to mere matters of measurement. But this day was not yet
at hand, and the still immature science of utilitarian ethics or "censorial
jurisprudence"-the study of what the law should be-had to be kept
strictly separate from "expository jurisprudence," the identification of
the positive law that was actually in force.30
Much of Holmes' legal thought can be explained in terms of this
Victorian scientific positivism-what Holmes himself called "the scientific
way of looking at the world."''a From this outlook followed his
legal positivism and a version of utilitarianism tempered by skepticism
about the practical possibilities of measuring utility. Not only his functional
account of law generally, but also his analysis of lawyer's law as
prediction, his promotion of an external standard of liability, and his
critique of the use of moral terms in legal discourse, all were consistent
With a program of reducing vague and value-laden questions to clear
and factual ones. These aspects ofHolmes' legal thought fit in with the
utilitarian analytical jurisprudence of Bentham and Austin-the legal
branch of nineteenth-century scientific positivism. But while ideas such
as these are consistent with pragmatism, they are in no way distinctive
to it.
The founding pragmatists managed to break away from the standard
brand of scientific positivism. At the same time, and in an analogous
way, Holmes' work in legal theory came to surpass that of his
positivist predecessors. The differences between pragmatist and positivist
theories of knowledge are, in fact, the background against which
one can show that Holmes took legal thought beyond analytical positivism,
in a distinctively pragmatist direction.
We can best begin our account where the pragmatists themselves
did, with their naturalistic account of human mind and mental activity"inquiry,"
in Dewey's encompassing term. The pragmatist view of inquiry
represented a major departure from long-standing views of
human knowledge. British empiricism and its traditional rival, European
rationalism, had implicitly shared a dualistic conception of the
29. JEREMY BENTHAM, Anarchical Fallacies, (n.d.), in 2 THE WORKS OF JEREMY BENTHAM
489, 501 (1962) (J. Bowring ed. 1838-1843) [hereinafter WORKS OF BENTHAM].
30. JEREMY BENTHAM, An Introduction to the Principlesof Morals and Legislation (1780), in I
WORKS OF BENTHAM, supranote 29, at 1, 148; see also J. AUSTIN, THE PROVINCE OF JURISPRUDENCE,
supra note 26, at 184-91.
31. The Holmes-Cohen Correspondence,in PORTRAIT OF APHILOSOPHER: MORRIS R. COHEN IN
LIFE AND LETrERs 313, 321 (L. Rosenfield ed. 1962) (letter dated Feb. 5, 1919) [hereinafter
Holmes-Cohen Correspondence].
April 1989] HOLMES
STANFORD LAW REVIEW
human being as a spiritual or immaterial mind somehow lodged in a
material body. In its origin, this conception of the mind as metaphysically
distinct from the body traces back in Western thought at least to
Plato, and over time it became fused with the "soul" of Christian theology.
Carrying its multiple philosophical and religious origins with it,
the notion of the immaterial but substantial mind-soul or spirit was implanted
in the foundations of the developing Western scientific world
view by both the rationalist Descartes and the empiricist Locke in the
seventeenth century. Through the period of the Enlightenment, Western
philosophers, however oriented they were toward science, did not
root it out. Even in the work of a nineteenth-century philosophical positivist
who came as close to pragmatism as didJohn Stuart Mill, we find
an implicitly dualistic account separating mind from matter, in which
human knowledge of an objective, material and external world must
somehow be built up from subjective and immaterial impressions and
ideas occuring in an internal and intangible mental medium.3 2 How
this is to be done is the "problem of knowledge,"'to be solved by the
special philosophical sub-discipline of "epistemology"; epistemology in
turn is built upon an ontology that divides the world into mind and
matter, Descartes' res cogitans and res extensa.33
The pragmatist departure from this traditional concept of the
mental world seems in large part traceable to the influence of nineteenth-century
evolutionary thinking.3 4 By locating mankind firmly
within the animal kingdom, Darwin made it plausible to treat human
mental capacities as evolved functions of natural organisms, arising
from simpler forms of animal behavior as a result of their survival-promoting
tendencies. As this perspective took hold, the distinction between
spirit and nature, or mind and matter, came to seem increasingly
arbitrary. If the human being was a biological organism, "mind" and
"the mental" could only refer to those workings of the organism that
rose above whatever level of complexity had come to be defined as
''merely animal."
It is a mistake, however, to overemphasize the place of evolutionary
biology in the origins of pragmatism; certain characteristic elements of
nineteenth-century social thought were equally important. In reaction
to the ahistorical rationalism of the Enlightenment, a wide range of social
theorists emphasized and developed the importance in human affairs
of cultural evolution, or History with a capital "H." This tendency
in social thought, which we may loosely label "historicism," stressed
the fundamental character of historical change and cultural variation,
and thereby undermined the philosophical search for a single definite
32. JOHN STUART MILL, A SYSTEM OF LOGIC RATIOCINATIVE AND INDUCTIVE, in 7 CoLLECTED
WORKS OF JOHN STUART MILL 1, 56-64, 74 (J.M. Robson ed. 1973).
33. REN9 DESCARTES, Meditationson FirstPhilosophy (1642), in DESCARTES: PHILOSOPHICAL
WRITINGS 114-15 (E. Anscombe & P. Geach eds. 1964).
34. See generally P. WIENER, supra note 6.
[Vol. 41:787796
April 1989]
set of faculties and categories that constituted "the' human
understanding. 35
The collectivist bias of emerging historical, linguistic, and anthropological
studies helped undermine the notion of the human being as an
individual who, by virtue of the imprisonment of his or her spirit in a
carnal body, was a little lower than the angels. In its place arose the
idea of humanity as a species that, by virtue of its collective capacity to
generate, transmit, and adapt culture by means of language, was a little
higher than the apes. This concern with cultural as well as biological
evolution provided the pragmatists with an essential safeguard against
materialist reductionism, or behaviorism, which attempts to escape the
"mind-body problem" by simply reducing to the physical, or even denying
the reality of, phenomena traditionally classified as mental or
cultural.
These developments in biological and social theory focused philosophers'
attention on some of the fundamental difficulties with the traditional
accounts of mind. How can a ghostly mind be linked to the
material world through the bodily machine that it somehow haunts?
How can we have reliable knowledge of an outer physical world if all
our experience is made up of mental impressions and ideas projected in
some inner and immaterial theater? The acute debates over these questions
during the previous two centuries had preoccupied philosophers
with what John Dewey called "[t]he alleged discipline of
epistemology."
3 6
The pragmatist breakthrough was to reject all mind-body dualisms
and treat thought or "inquiry" as a mode of the human organism's activity,
an adaptive product of biological and cultural evolution. Peirce,
the founder of pragmatism, described a belief as a "habit of mind" that
enables the organism to cope with some aspect of its environment.3 7
When action on a habitual belief does not produce the expected result,
the believer experiences the "irritation of doubt." "Inquiry," which
Peirce described as "a struggle to attain a state of belief" or "settlement
of opinion," is supposed to resolve the irritation of doubt in favor
of some belief that can once again reliably guide the believer's action.38
Of course, this new belief, when acted upon, might itself lead to new
doubt, thus requiring new inquiry.3 9
35. For the importance of historical and cultural themes in the development of nineteenth-century
British evolutionary thought, and their relative independence from Darwinian
theory, see generallyJ.W. BURROW, EVOLUTION AND SOCIETY (1966).
36. JOHN DEWEY, ESSAYS IN EXPERIMENTAL LOGIC 264 (1916) [hereinafterJ. DEWEY, ExPERIMENTAL
LOGIC].
37. CHARLES SANDERS PEIRCE, The Fixation ofBelief in 5 COLLECTED PAPERS OF CHARLES
SANDERS PEIRCE paras. 358, 367 (C. Hartshorne & P. Weiss eds. 1934).
38. Id. paras. 374-375.
39. Peirce's earliest pragmatist essay was a taxonomy of the methods ofsettling opinion,
among which he included "tenacity" (resisting doubt), "authority" (accepting the opinions of
leaders), and "inspiration" (reasoning a priori, as in philosophical rationalism). But better
than any of these, according to Peirce, is the method of science-hypothesis and experi-
HOLMES
STANFORD LA W REVIEW
Though there were important differences among the leading
pragmatists, all of them endorsed this Darwinist-historicist account of
human inquiry.40 They treated "the mind" as an evolved mode for
coping with the environment, a set of biologically based powers that
included the crucial capacity to learn language. Linguistic capacity allowed
human mental powers to be vastly augmented and modified
along many different paths of cultural development. 41 The pragmatists
thus provided an escape from the philosophical paradoxes inherent in
the confused conception of the Platonic-Christian-Cartesian-Lockean
mind-soul, that hybrid entity with its many and conflicting roles: the
locus of personal identity and moral being, the active organ of decision,
the seat of creativity and imagination, the passive theater of perception,
the storehouse of memory, and the immaterial and indestructible survivor
of the body's mortality.
The pragmatists' account of the mind and inquiry was thus thoroughly
practical,in two related senses. First, on the side that derived
from historicist social thought, they treated thinking as contextual and
situated; it came always embodied in practices-habitsand patterns of
perceiving and conceiving that had developed out of and served to
guide activity. Some of these habits and patterns were instinctive, some
were learned individually, but those most distinctively human resulted
from the capacity for language; they were products of culture, collectively
developed and transmitted. Second, on the side that derived
from Darwinism, the pragmatists regarded thinking as an adaptive function
of an organism, practical in the sense that it was instrumental. It had
evolved as a problem-solving capacity, oriented toward survival. In its
most developed form, thinking functioned to help resolve, by means of
conscious reflection and experimental revision, the real problems and
live doubts that arose in the course of acting on unreflective and habitual
practices. Holmes himself provided a characteristically compact
summary of these two tenets: "all thought," he said, is at once "social"
and "on its way to action."'42
Whereas older accounts of pragmatism emphasized its instrumentalism,
the distinctive feature of recent reinterpretations of pragmatism
is to give equal significance to its contextualist thesis-the idea that
thought is essentially embedded in a context of social practice. Not
ment-because its practice is self-confirming and its achievements progressive. Id.paras. 377-
387; see alsoJOHN DEWEY, THE QUEST FOR CERTAINTY 227-28 (1929).
40. See, e.g., J. DEWEY, EXPERIMENTAL LOGIC, supra note 36, at 183-219; JOHN DEWEY,
HUMAN NATURE AND CONDUCT 172-80 (1922);J. DEWEY, THE QUEST FOR CERTAINTY, supranote
39, at 224-28;JOHN DEWEY, LOGIC: THE THEORY OF INQUIRY 7-10, 12-14 (1938) [hereinafterJ.
DEWEY, THE THEORY OF INQUIRY]. W. JAMES, PRAGMATISM, supranote 14, at 59-66.
41. SeeJ. DEWEY, EXPERIMENTAL LOGIC, supra note 36, at 331-32. Dewey's best general
statement of the importance he placed upon language as an independent force in the development
of culture is the chapter Nature, Communication, and Meaning, in J. DEWEY, EXPERIENCE
AND NATURE, supra note 19, at 166-207.
42. OLIVER WENDELL HOLMES,John Marshall (1901), in COLLECTED LEGAL PAPERS 266,
270 (1920) [hereinafterJohn Marshall].
[Vol. 41:787
only is contextualism no less fundamental to the pragmatists' thought
than instrumentalism; it is what most sharply distinguishes them from
orthodox scientific positivists. Indeed, development of the contextualist
thesis led the pragmatists to their most profound philosophical innovation:
the rejection of philosophical "foundationalism."
Foundationalism is a long name for the age-old philosopher's
dream that knowledge might be grounded in a set of fundamental and
indubitable beliefs. For the rationalist tradition descended from
Descartes, the cornerstones of knowledge are those rational intuitions
that survive as clear and distinct ideas in the face of the thinker's effort
at universal doubt. For the empiricist tradition running from Bacon,
Hobbes, and Locke to the logical positivism of this century, the foundations
of factual knowledge are the bare uninterpreted data delivered to
the mind by the senses. The tradition of modern Western epistemology,
both rationalist and empiricist, has imagined that knowledge can
be securely based only if the inquirer strips away all habitual and conventional
ways of thought, and builds a purified structure based on
valid inferences from indubitable premises.
The pragmatists' first thesis-that knowledge is essentially contextual,
situated in habit and practice-holds that no such zero-based
method of inquiry is possible. Peirce stated the point forcefully: No
one, he said, can set out to think either by "doubting everything" or by
"observing 'the first impressions of sense.' " Rather:
[T]here is but one state of mind from which you can "set out," namely,
the very state of mind in which you actually find yourself at the time
you do "set out"-a state in which you are laden with an immense mass
of cognition already formed, of which you cannot divest yourself if you
would; and who knows whether, ifyou could, you would not have made
all knowledge impossible to yourself?4 3
In a similar vein, James stressed that the individual always begins
with "a stock of old opinions."' 44 When these are put under strain by
some incongruous perception or desire, the individual seeks to escape
from the "inward trouble" thus generated by "modifying his previous
mass of opinions."' 45
But "[hie saves as much of it as he can, for in this
matter of belief we are all extreme conservatives.... The most violent
revolutions in an individual's beliefs leave most of his old order standing."'
46
Similarly, Dewey stressed the beginning of thought in habit; the
human being is in the first instance a creature of habit, not of reason. 47
43. CHARLES SANDERS PEIRCE, What Pragmatism Is (1905), in 5 COLLECTED PAPERS OF
CHARLES SANDERS PEIRCE, supra note 37, paras. 411, 416; see also CHARLES SANDERS PEIRCE,
Some Consequences ofFourIncapacities (1868), in id.at paras. 264, 265 [hereinafter C.S. PEIRCE,
FourIncapacities].
44. W. JAMES, PRAGMATISM, supra note 14, at 59.
45. Id. at 59-60; see also id. at 64.
46. Id. at 60; see also id. at 224-25.
47. SeeJ. DEwEY, HUMAN NATURE AND CONDUCT, supranote 36, at 172-80;J. DEWEY, ExPERIMENTAL
LOGIC, supranote 40, at 184-88.
April 1989] 799HOLMES
STANFORD LAW REVIEW
Only when habit and practice become problematic is there occasion for
inquiry, the application of conscious intelligence to a situation. The
task of inquiry is not the impossible one of building a purified structure
of truths from the ground up, but rather the practical one of making
such modifications in the existing body of knowledge as will solve the
difficulty at hand. This remains as true for the most abstract theoretical
puzzle in mathematics or speculative philosophy as it does for those
ordinary problems of daily life in which conscious deliberation
originates.
48
Practices are not only habitual and largely unconscious; they are
mainly collective in origin. The pragmatists emphasized the social origins
of the great mass of settled belief from which inquiry proceeds.
We see that practices are collective, when we consider that they are
mediated by language, the conventional, collectively constituted, spontaneously
evolved, complex communicative structure of meaningful
signs that underlies all reflective or conscious thought. Language supplies
not only the forms in which thought is represented and conveyed,
but much of the stuff of thought itself.49 Thus, Peirce argued that
thought was essentially carried on by means of signs, of which the most
important were the conventional signs that constitute language.50 In
fact, in emphasizing the role of language and the collective notion of
inquiry, Peirce went so far as to hold that reality itself is simply the
object on which the representations of a community of inquirers are
destined in the long run to converge.51
The pragmatists thus broke not only with the foundationalism of the
empiricist tradition, but also with its methodological individualism.
They did not regard society as a construct built up out of elementary
individuals, each possessing a rich array of pre-social qualities. Rather,
they argued, the individual person, the knowing, willing subject of Enlightenment
epistemology and political philosophy, is only the late and
sophisticated product of a complex cultural development. 52
48. SeeJ. DEWEY, THE QUEST FOR CERTAINTY, supranote 39, at 186-87; cf J. DEWEY, EXPERIENCE
AND NATURE, supra note 19, at viii-ix ("We cannot lay hold ofthe new, we cannot even
keep it before our minds, much less understand it, save by the use of ideas and knowledge we
already possess.").
49. See J. DEWEY, EXPERIENCE AND NATURE, supra note 19, at 166-207; J. DEWEY, THE
THEORY OF INQUIRY, supranote 40, at 45-47. George Herbert Mead's contribution to pragmatism
was to work out in far more detail than Dewey or James the role that language and
communication play in establishing selfhood and social cooperation-that is, to work out a
pragmatic social philosophy. See H.S. THAYER, MEANING AND ACTION: A CRITICAL HISTORY OF
PRAGMATISM 232-68 (1981).
50. See C.S. PEIRCE, FourIncapacities,supranote 43, para. 283; C.S. PEIRCE, What Pragmatism
Is, supra note 43, para. 421.
51. See C.S. PEIRCE, FourIncapacities,supra note 43, para. 311; see also H.S. TmYR, supra
note 49, at 235-36.
52. SeeJ. DEWEY, EXPERIENCE AND NATURE, supra note 19, at 208-11; C.S. PEIRCE, What
PragmatismIs, supranote 43, para. 421; see also H.S. THAYER, supranote 49, at 232-34 (discussing
Mead's views). James is often said to have neglected the cultural and linguistic bases of
thought, but David Hollinger argues persuasively to the contrary. See D. HOLLINGER, supra
note 17, at 9-10, 20-22.
800 [Vol. 41:787
April 1989]
This first thesis of pragmatism-the situated, historical, practiceconstituted
character of human life and thought-is not unique to the
pragmatists. It has been a central theme for all those modem philosophers
who have broken from the foundationalist tradition in Western
thought. The erstwhile logical positivist Otto Neurath captured the essence
of anti-foundationalism in a famous metaphor, when he described
human inquirers as sailors on a boat that can never come to
drydock for repair, so that they must maintain and reconstruct it as they
sail, using its own material and what flotsam they come upon.5 3
In his
later work, Wittgenstein often stressed the social, habitual, and practical
basis of all reasoning: "What has to be accepted, the given, is...
forms of life.''54
And Heidegger held that all beliefs presuppose
prejudices-judgments already made, implicit in practice, prior to reflection,
largely historical and collective in origin, tacitly accepted, and
for the moment unquestioned. 55
Even before pragmatism as such came on the scene, the concept of
human inquiry as essentially situated and historically conditioned was
one of the central themes of nineteenth-century social thought. It appears
in Hegel, from whom it was taken in a revolutionary direction by
Marx. But it was most conspicuous in the Burkean-romantic brand of
conservative social theory that in the English-speaking world drew inspiration
from the traditional ideology of the common law, and found
theoretical expression in Friedrich von Savigny, Sir Henry Maine,
James Coolidge Carter, and the other proponents of the historical
school ofjurisprudence.5 6
The leading pragmatists, however, did not
share the Burkean conservatism common among so many thinkers who
stress the centrality of history and context to human social life. Their
analysis grants no special authority to unconscious habit and slowly
evolved custom; self-conscious reflection and innovative reason are
equally central to their account of inquiry. The pragmatist thesis is that
human thought always and necessarily arises in a situated complex of
beliefs; on any given occasion, the great mass of these beliefs must be
left tacit and simply used, not made explicit and subject to doubt, if
thought is to proceed at all. But from this the pragmatists draw no
53. Otto Neurath, ProtocolSentences, in LOGICAL Posrrxvlsm, supra note 15, at 199, 201.
54. LUDWIG WITrGENSTEIN, PHILOSOPHICAL INVESTIGATIONS pt. 2, at 226e (G.E.M. Anscombe
trans. 3d ed. 1968). For similar late-Wittgensteinian remarks, see, for example, id.pt.
1, paras. 19, 23, 217, 240-242; LUDWIG WrrrGENSTEIN, ON CERTAINTY paras. 166, 189, 204
(G.E.M. Anscombe & D. Paul trans. 1969); LUDWIG WrrrGENSTEIN, REMARKS ON THE FOUNDATIONS
OF MATHEMATICS pt. 1, paras. 113-116 (G.E.M. Anscombe trans. rev. ed. 1978).
55. See MARTIN HEIDEGGER, BEING AND TIME 188-203 (J.Macquarrie & E. Robinson
trans. 1962).
56. Among the best studies of historicist evolutionary thought areJ. BURROW, supranote
35, and PETER STEIN, LEGAL EVOLUTION (1980) (focusing on legal thought). An important
background figure in the development ofhistoricist social thought, neglected by these writers,
was David Hume. On the striking extent to which Hume's ideas anticipate the historicist aspects
ofpragmatism sketched here, see DONALD W. LIVINGSTON, HUME'S PHILOSOPHY OF COMMON
LIFE 24, passim, (1984). For the legal significance ofHume's social thought, see GERALD
J. POSTEMA, BENTHAM AND THE COMMON LAW TRADITION 81-143 (1986).
HOLMES
STANFORD LA W REVIEW
inference that any particular idea or belief should be treated as even
presumptively immune from questioning.
Rather, pragmatists treat critical reflection as a natural aspect of
thought, an aspect as natural, if not as easy, as following habit. Conscious
inquiry arises naturally whenever a person enters a problematic
situation, a case in which habitual and unconscious belief produces
trouble.57 And this happens all the time, romantic conservatism
notwithstanding. Here we come to the second and more familiar pragmatist
thesis: Thought or inquiry is instrumental as well as situated in
practice. Reflective, deliberative, even contemplative thinking
originates in the practical need to solve real problems.
The pragmatists were not, of course, the first to situate thinking
within the experience of everyday life; this insight goes back at least to
Aristotle.58 Their innovation was to move the category of the practical
from the periphery to the center in their account of human reason.
This reversed the familiar Platonic and Aristotelian ordering in which
speculation or theory is the primary and highest form of reason. For
pragmatists, the capacity for reason is best suited to practical concerns
because it arises from our efforts to deal with those concerns. 59
Both the traditional ordering of the practical and theoretical, and
the pragmatist reversal of that ordering, are illustrated in the origin of
the term "pragmatism" itself. Peirce took the word from Kant, who
had defined "pragmatic" beliefs as those that were "contingent only,"
supplying "a ground for the actual employment of means to certain
actions" even though "another might form a better judgment.' 6 0
The
strength of a pragmatic belief was measured by the believer's willingness
to bet on it: "Sometimes it turns out that a man has persuasion
sufficient to be valued at one ducat, but not at ten .... Thus pragmatic
belief admits of degrees which, according to the difference of the interests
at stake, may be large or small."'6 1
In Kant's view, this merely contingent and relative pragmatic type of
57. See J. DEWEY, EXPERIMENTAL LOGIC, supra note 36, at 225; see also J. DEWEY, THE
QUEST FOR CERTAINTY, supra note 39, at 244-45.
58. Dewey explicitly makes the connection to Aristotle in J. DEWEY, EXPERIMENTAL
LOGIC, supra note 36, at 331-34. The pragmatist thesis that thought is always situated in a
social context could likewise be traced to the Aristotelian thesis that human beings are essentially
social animals. For works of a neo-pragmatist tendency that stress their Aristotelian
roots, see ALISDAIR MACINTYRE, AFTER VIRTUE (1981); MARTHA C. NUSSBAUM, THE FRAGILITY
OF GOODNESS (1986).
59. Contemplative and theoretical reason gained its traditional privilege in Western
thought, Dewey argued, by virtue of the pervasive class-divided form of social organization
that associates work and practical concerns with menial status, and the leisure for contemplation
and theory with high status. SeeJ. DEWEY, THE QUEST FOR CERTAINTY, supranote 39, at 4-
5; J. DEWEY, EXPERIENCE AND NATURE, supra note 19, at 93-94.
60. IMMANUEL KANT, CRITIQUE OF PURE REASON 661 (F. Miller trans. 2d ed. 1896) (originally
published 1781).
61. Id. at 661-62. Compare Holmes' view: "I describe myself as a bettabilitarian. I believe
that we can bet on the behavior of the universe in its contact with us. We bet we can
know what it will be." 2 HOLMES-POLLOCK LETrERS, supranote 8, at 252 (letter dated Aug. 30,
1929).
802 [Vol. 41:787
April 1989]
belief was different in kind from genuine knowledge. Through science,
human beings could gain true knowledge of the spatio-temporal natural
world of cause and effect; and through reflection on their capacity
for deliberation about what to do, they could gain true practical knowledge
of the moral realm. But the assessment of the likelihood of attaining
an end through given means must remain in the lower category of
the pragmatic-mere guesswork. In a transvaluative flip worthy of
Nietzsche, Peirce reversed the Kantian hierarchy, and assimilated all
human science, speculative philosophy, and moral inquiry into the category
of the pragmatic.62 All judgments-scientific and moral as well as
prudential and technical-were contingent, probabilistic, relative to a
situation and to the interests of an agent or a community of agents.
Thought was no longer to be conceived as something distinct from
practice, but rather it simply was practice, or activity, in its deliberative
or reflective aspect. 63
In making this assimilation, the pragmatists took a decisive step beyond
orthodox nineteenth-century positivism. Following a tradition as
firmly lodged in British empiricism as in European rationalism, positivists
had treated philosophy and science not as forms of problem-solving
practical reason, but as autonomous, distinctively "mental"
activities prior to and independent of practice, aimed at providing an
accurate representation of an objective external reality. Rejecting this
dualism, the pragmatists applied the utilitarian test of consequences to
theories, as well as to rules for action, on the ground that all beliefs
were, directly or indirectly, action-guiding and, accordingly, should be
judged by their efficacy in leading the agent through experience
successfully.
64
The notion of making beliefs, thoughts, or propositions accurately
represent external reality played no essential part in the pragmatic account
of inquiry. The "externality" of "the world" was the other side
of the coin to the "internality" of "the mind"; having rejected the on e,
the pragmatists had no need for the other.65 They believed that it
62. See C.S. PEIRCE, What PragmatismIs, supranote 43, para. 412.
63. Dewey makes the point best in the chapter Nature, Life and Body-Mind, in J. DEWEY,
EXPERIENCE AND NATURE, supra note 19, at 248-97. See also 2 WILLIAMJAMES, THE WORKS OF
WILLIAMJAMES: THE PRINCIPLES OF PSYCHOLOGY 1136-93 (F. Burkhardt ed. 1981) (originally
published 1890).
64. Peirce once described pragmatism as "scarce more than a corollary" of the English
psychologist Alexander Bain's definition of a belief as " 'that upon which a man is prepared to
act.' " C.S. PEIRCE, HistoricalAffinities and Genesis (1906), in 5 COLLECTED PAPERS OF CHARLES
SANDERS PEIRCE, supra note 37, para. 912. Peirce learned of Bain's definition from Holmes'
friend, the young Boston lawyer Nicholas St. John Green, whom Peirce called "the grandfather
of pragmatism." Id- On Bain's influence, see M. FxscH,Alexander Bainand the Genealogy of
Pragmatism,in PEIRCE, SEMEIOTIC, AND PRAGMATISM, supra note 6, at 79. Holmes himself evidently
learned of Bain's conception of belief indirectly, through the writings of James
Fitzjames Stephen. See M. HOWE, THE SHAPING YEARS, supranote 26, at 267-70. On Green's
contributions to pragmatism, see P. WIENER, supranote 6, at 152-71; on his apparent anticipation
of some ofHolmes' own ideas, seeJerome Frank, A Conflict with Oblivion:Some Observations
on the Foundersof Legal Pragmatism,9 RUTGERS L. REv. 425, 434-44 (1954).
65. For a pragmatist, the materialist and behaviorist theories that deny the reality ofthe
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STANFORD LA W REVIEW
sometimes made sense to speak of ideas or propositions as copying or
representing facts, but representational accuracy was not a generalcriterion
for evaluating either ordinary beliefs or scientific theories. The
general criterion was success in helping people cope with the world.66
Holmes understood this feature of pragmatism and appreciated its
originality; in one of his few bits of grudging praise forJames' version
of pragmatism, he acknowledged that his old friend had "made a valuable
contribution in pointing out that ideas were not necessarily faint
pictures of original experience .... ,,67 He himself often invoked this
pragmatist insight into the instrumental character of thought, most notably
in the words of his Gitlow dissent: "Every idea is an incitement. It
offers itself for belief and if believed it is acted on . ... ,68
A corollary of pragmatism, derived from the tenets that thought is
always both situated and instrumental, is a kind of perspectivism. Because
new beliefs emerge out of a complex of already existing beliefs
that can never be made fully conscious and explicit, all useful beliefs
may not ultimately prove commensurable with each other. Furthermore,
because inquiry is at root an instrument to guide action (including
the action offurther inquiry), its products are subject to revision as
the ends sought in action change. This double relativity of situation
and purpose implies a tentative attitude toward all beliefs, including
especially those "theoretical" and "fundamental" ones to which we are
most likely to attribute permanent and universal validity. The pragmatist
recognizes that the best account of a phenomenon (such as law)
from one angle, for one purpose, at one time, might not serve as well
from another perspective, rooted in another temporal context, and
mental simply rehearse the standard Cartesian error of dividing the world into resextensa and
rescogitans. See text accompanying note 32 supra. Such views accept the Cartesian categories,
only to assert that one of them is empty. Pragmatists, instead, reject the basic metaphysical
views on which the "spirit-matter" distinction rests. As Holmes wrote, "I don't perceive why
there is any more right to think away consciousness than there is to think away nerve tissuethe
total is the datum." Holmes-Cohen Correspondence,supranote 31, at 325 (letter datedJuly 21,
1920).
66. James promoted the so-called "pragmatic theory of truth," which equated true beliefs
with those that are on the whole advantageous to hold. See W.JAMES, PRAGMATISM, supra
note 14, at 197-236. This has long drawn the fire ofcritics who argue that we have independent
standards of truth and falsity at least for some beliefs, such as those for which a "correspondence"
account of truth is apt, and that there is no guarantee that beliefs true in the
correspondence sense will always prove expedient, even in the long run, for those who hold
them. See BERTRAND RUSSELL, WilliamJames'sConceptionof Truth, in PHILOSOPHICAL ESSAYS 112,
125-26, passim (rev. ed. 1966). Dewey corrected James on this point. SeeJ. DEWEY, ExPERIMENTAL
LOGIC, supra note 36, at 318-20. A solution to the problem, consistent with Dewey's
approach, and reasonably congruent with ordinary usage, would be to confine judgments of
truth or falsity to those claims or beliefs that are in principle subject to assessment in terms of
representational accuracy.
67. 1 HOLMES-POLLOCK LETrERS, supra note 8, at 191 (letter dated Apr. 26, 1912).
68. Gitlow v. New York, 268 U.S. 652, 673 (1925); cf.JohnMarshall,supranote 42, at 270
("all thought is social, is on its way to action"); OLIVER WENDELL HOLMES, Introduction to the
GeneralSurvey by EuropeanAuthors in the ContinentalLegal HistoricalSeries (1913), in COLLECTED
LEGAL PAPERS 298, 298 (1920) ("The philosophers teach us that an idea is the first step toward
an act.") [hereinafter Introduction to the GeneralSurvey].
804 [Vol. 41:787
aimed at different goals. In its mature version, as Dewey stated it, pragmatism
rejects the assumption that there must exist a comprehensive
and final account of "reality" that, if attained, would bring the process
of scientific and philosophical inquiry to a close.69
A pragmatic legal theorist will embed questions about law in a context
and address them for a purpose, and so may reach different and
apparently inconsistent answers as context and purpose vary. The
point of view of the judge, the legal commentator, the counselor, and
the legal historian or anthropologist might produce analyses of the concept
of law that seem mutually inconsistent. There is no reason to assume
in advance that these alternative accounts, directed as they are to
different purposes, are, like the different perceptions the blind men had
of the elephant, to be reconciled in some all-comprehending meta-account,
though a wise pragmatist will also accept as legitimate the "philosophical"
human need to generate such unifying accounts. This
perspectival pluralism turns out to be particularly important to understanding
Holmes' pragmatist jurisprudence, with its apparently conflicting
accounts of the legal elephant as experience, logic, and
prediction. To these accounts we now turn.
II. LAW AS EXPERIENCE
To apply the central pragmatic tenets to law means to treat it as a
practical enterprise in two senses. First, law is constituted of practices-contextual,
situated, rooted in custom and shared expectations.
Second, it is instrumental, a means for achieving socially desired ends,
and available to be adapted to their service. The first point, about practice
and context, suggests the perspective of the historical school of
jurisprudence; the second or instrumental point suggests Benthamite
utilitarian positivism. Standard nineteenth-century jurisprudence regarded
these theories as rivals. A central innovation of legal pragmatism
was to comprehend that each of them expresses a partial truth
about law, the one reflecting its situated and the other its instrumental
character. An adequate theory should synthesize them rather than
69. For an example of Dewey's perspectivism, see his comments on the aims of
education:
[Tihestatement of aim is a matter ofemphasis at a given time. And we do not emphasize
things which do not require emphasis-that is, such things as are taking care of
themselves fairly well. We tend rather to frame . . . our explicit aims in terms of
some alteration to be brought about. It is, then, no paradox requiring explanation
that a given epoch or generation tends to emphasize in its conscious projections just
the things which it has least ofin actual fact. A time of domination by authority will
call out as response the desirability ofgreat individual freedom; one ofdisorganized
individual activities the need of social control as an educational aim.
JOHN DEwEY, DEMOCRACY AND EDUCATION 111-12 (1916). Nelson Goodman has provided an
excellent contemporary version of perspectivism in N. GOODMAN, supra note 12, at 1-21, 91-
140. For a clear account of the perspectivism of Nietzsche, a contemporary of the American
pragmatists, and a thinker whose views on this subject paralleled theirs in important ways, see
ALEXANDER NEHAMAS, NiErzscHE: LIFE As LITERATURE 42-73 (1985).
HOLMES 805April 1989]
STANFORD LA W REVIEW
choose between them.70 It is to Holmes that we owe the first clear
statement of such a synthesis.
John Dewey stated the same synthesis when he came, late in life, to
attempt a brief summary statement of his "philosophy of law."' 71 With
the historicaljurists, he argued that the main source of law was custom,
the network of interaction and expectation that gave structure to social
life. At the same time, with the utilitarian positivists, he held that law's
end or criterion of evaluation was the extent to which it produced desired
practical consequences in application.72
In this synthesis, Dewey followed Holmes, with whose dictum that
"the life of the law is not logic but experience" he was certainly famil-
iar.73
The well-known words that follow "experience" in the opening
passage of The Common Law elaborate Holmes' conception of the
sources of law:
The felt necessities ofthe time, the prevalent moral and political theories,
intuitions of public policy, avowed or unconscious, even the
prejudices which judges share with their fellow-men, have had a good
deal more to do than the syllogism in determining how men should be
governed.
74
On the one hand, law is situated: It draws onfelt necessities; unconscious
intuitions; preudices-the tacit patterns of thought inherited from the
past. It cannot be treated as a pure logical system because it "embodies
the story of a nation's development through many centuries." 75 On the
other hand law is instrumental: It responds to moral and political theories;
avowed intuitions of public policy-the products of future directed
deliberation. To identify what law is, one must attend both to "what it
has been" and to "what it tends to become."' 76 The jurist must both
70. Holmes indicated his ambition to synthesize the analytic and historical schools in
OLIVER WENDELL HOLMES, Science ofLegalJudgment,in JusTicE OLIVER WENDELL HoLmES: HIs
BOOK NOTICES AND UNCOLLECTED LETTERS AND PAPERS 5 (H. Shriver ed. 1936) [hereinafter
BOOK NOTICES] (reprinting Book Notice, 6 AM. L. REV. 134 (1871)):
A treatise on the sources ofthe law which shall strike halfway between the somewhat
latitudinary theorizing of Savigny and the too narrow exclusiveness of Austin, will
form a chapter ofjurisprudence which is not yet written, and which it is worthy of the
ambition of an aspiring mind to write.
Id. at 5-6.
John Stuart Mill had contrasted the Bentham-Austin analytical approach to Sir Henry
Maine's historical jurisprudence, but without suggesting any synthesis of them, in his review
essay on Austin's Lectures onJurisprudence.JOHN STUART MILL, Austin onJurisprudence(1863), in
DISSERTATIONS AND DISCUSSIONS 157, 161-71 (1873). Holmes read this essay of Mill's. See
Patrick Kelley, Oliver Wendell Holmes, UtilitarianJurisprudence,and the PositivismofJohnStuart Mill,
30 AM. J.JURIS. 189, 199 (1985).
71. John Dewey, in My Philosophy of Law 73 (Julius Rosenthal Foundation ed. 1941).
72. See id.;see alsoJohn Dewey, LogicalMethod andLaw, 10 CORNELL L.Q. 17 (1924);JoHN
DEWEY, THE PUBLIC AND ITS PROBLEMS 51-57 (2d ed. 1954); John Dewey, The HistoricBackgroundof
CorporateLegal Personality, 35 YALE LJ. 655 (1926).
73. See Dewey's extensive quotation from Holmes' works in Dewey,JusticeHolmes, supra
note 19, at 33.
74. THE COMMON LAW, supra note 23, at 5.
75. Id
76. Id
806 [Vol. 41:787
April 1989]
remember and imagine, "alternately consult[ing] history and existing
theories of legislation." 77 Law is "a reaction between tradition on the
one side and the changing desires and needs of a community on the
other."78 To identify law with experience is to treat it as "policy coupled
with tradition."'79
Given that legal "experience" has both past-embedded (customary)
and forward-looking (deliberative) aspects, what relation should these
elements bear to each other for the judges and commentators who state
and shape the law? Holmes answers, as usual, with an aphorism:
"[C]ontinuity with the past is only a necessity and not a duty."80 On
the one hand, continuity with the past is a necessity-which is merely to
repeat that law is always situated. No working system of practice can be
built by reasoning from the bare ground of human nature alone. If we
leave out all the institutions, practices, and beliefs that exist now only
because they existed in the past, we will have insufficient resources to
build with-no culture, no shared values, no language (hence no collective
deliberation), and indeed no recognizably human individuals. Custom,
the accretion of situated experience, "limits the possibilities of our
imagination, and settles the terms in which we shall be compelled to
think." 8 '
On the other hand, continuity with the past is no categorical imperative-law
is a functional instrument meant to meet present and future
human needs. To show that a legal rule has a customary basis is not to
justify that rule, though it may suggest expectations that impose legitimate
claims. But the main practical point of historical research on law
is to stress the contingent and variable character of practices that historically
unsophisticated practical lawyers may regard as inevitable and
rationally necessary. Historical inquiry aims toward reform. Rather
than blindly follow a rule for no better reason than that "so it was laid
down in the time of Henry IV,' '8
2 the judge and commentator should
recognize that "the present has a right to govern itself so far as it can"
and engage in "scrutiny and revision" guided by "considerations of social
advantage."83
It is worth reviewing the debate between the schools of legal theory
that supplied the context for Holmes' aphorism about continuity with
the past. On the one side, English utilitarian positivists and European
rationalist codifiers stood for the spirit of the Enlightenment, the spirit
77. Id.
78. OLIVER WENDELL HOLMES, Twenty Years in Retrospect (1902) [hereinafter Twenty Years
in Retrospect], in THE OCCASIONAL SPEECHES OF JUSTICE OLIVER WENDELL HOLMES 154, 155
(M. Howe ed. 1962) [hereinafter OCCASIONAL SPEECHES].
79. THE COMMON LAW, supra note 23, at 123.
80. Law in Science, supra note 24, at 211; see also OLIVER WENDELL HOLMES, Learningand
Science (1895), in COLLECTED LEGAL PAPERS 138, 139 (1920) [hereinafter Learningand Science].
81. Law in Science, supra note 24, at 211; cf THE COMMON LAw, supra note 23, at 5 n.a.
82. The Pathof the Law, supra note 23, at 187.
83. LearningandScience, supranote 80, at 139; THE COMMON LAw, supranote 23, at 33; The
Path ofthe Law, supra note 23, at 184.
HOLMES
STANFORD LA W REVIEW
summarized by Kant in the slogan "think for yourself1' '8 4 For all their
differences, Kant, the philosopher behind German legal science, and
Bentham, the founder of English analytical positivism, shared a commitment
to liberate the human mind from its state of "tutelage"-the
tutelage of the past, with its weight of customs, traditions, and inherited
texts.
Nowhere did the Enlightened feel the weight of the past more than
in the law. They responded with the thought-experiment of stripping
away the tutelage of the past in imagination, preliminary to a similar
defoliation in actual social practice. Thus Bentham sought to clear
away the tangle of customary English common law and construct in its
place a code designed on the Principle of Utility, every provision of
which was rationally aimed at attaining the greatest happiness of the
greatest number.8 5 His enemy was ajungle of irrational custom, prejudice,
and superstition, hidden behind a false front of pretended reason.
The enemy was epitomized by the Commentaries of Sir William Blackstone,
which culminated the long common law tradition while domesticating
its inherited irrationalities in the smooth rhetoric of the Age of
Reason.
8 6
Against the codifying jurisprudence of the Enlightenment there
arose a romantic and conservative reaction based upon faith in the virtues
of tradition, organic solidarity, and cultural particularity, and upon
distrust of innovation and abstract reason. In Europe, this reaction
found its vehicle in the formation of the historical school ofjurisprudence.
The historicists argued that the basis of all law is custom, the set
of evolved norms that give a society its identity. According to their central
metaphor, a community's law is like its language, a collective product,
peculiar to its people and their history, gradually developed, a
structure of contingent elements and rules, and yet one so deeply
rooted in practice as to be almost entirely resistant to conscious modification.
Because law had this character, to reform it through codification
was impossible and where attempted harmful-as misguided as the
attempt to impose a constructed artificial language on a people.8 7
Though the historical school had an important English spokesman
in Sir Henry Maine, it never found as large a following in the Englishspeaking
countries as it did in Germany.88 This was not because it
84. "Sapere Aude!"-literally, "Dare to khow!" IMMANUEL KANT, What is Enlightenment?
(1784), inKANT ON HISTORY 3 & n.l (L. Beck ed. 1963).
85. J. BENTHAM, An Introductionto the PrinciplesofMoralsandLegislation,supranote 30, at 2.
86. See generallyJEREMY BENTHAM, A Fragmenton Government;or a Comment on the Commentaries
(1776), in 1WORKs or BENTHAM, supra note 29, at 221 [hereinafterJ. BENTHAM, A Fragment
on Government].
87. The classic statement of the historical school position is FRIEDRICH KARL VON SAvWGNY,
OF THE VOCATION OF OUR AGE FOR LEGISLATION AND JURISPRUDENCE (reprint ed. 1975)
(A. Hayward trans. 2d. ed. 1831).
88. Sir Henry Maine's best known works applied historicist social theory to law but did
not take the polemical position in favor of customary law and against codification and reformist
legislation characteristic of von Savigny and his American disciple James Coolidge Carter.
[Vol. 41:787808
failed to touch a sympathetic nerve but rather because it said nothing
that was in substance new to English and American lawyers. Historical
jurists only restated the conventional wisdom of the "the common law
tradition" as it had been articulated over the centuries by Coke, Hale,
and Blackstone and translated into the language of political theory by
David Hume and Edmund Burke. The commonplaces of that tradition
included the conception of law as custom, adapted to circumstances
through a gradual process of case-by-case decision by judges each of
whom felt bound to discover a law implicit in the body of prior precedents.
This process, in its collective wisdom, was thought more impressive
than the conscious intelligence of any individual could possibly be;
the law that emerged from it was said to be the perfection of reason,
but an admittedly artificial reason, to be learned only through apprenticeship
and experience.8 9
The two schools of jurisprudence thus shared the factual premise
that the law up to the present had largely been the product of custom.
At that point they diverged-the Enlightened argued that the only
proper way to remove the law's haphazard excrescences was to start
from scratch (at least in imagination) and build up a new body of law by
rational inference from first principles; the historical jurists responded
that workable law must always be based in custom, and that no good
could possibly come from conscious and instrumental law reform.
Holmes' maxim that "continuity with the past is no duty but only a
necessity" synthesized these two schools and provided a reconciliation
of their main tenets. On the one hand, the historicists were importantly
right. The Benthamite project of clearing away and building anew was
the social and institutional analogue of the Cartesian epistemological
project of submitting all inherited belief to doubt, so as to rebuild
knowledge from the ground up upon indubitable foundations. And the
pragmatic response was the same one Peirce had made to Descartes: In
remaking a society or its law there was no ground zero to set out from;
the only starting point was where you actually found yourself, "laden
with an immense mass of cognition already formed, of which you cannot
divest yourself if you would; and who knows whether, ifyou could,
you would not have made all knowledge impossible to yourself?" 90 As
See, e.g., HENRY MAINE, ANCIENT LAW (2d ed. 1863). But in his later work, Maine revealed his
full commitment to the standard Burkean legal conservatism of the historical jurists. See, for
example, his praise of "historical Constitutions, Constitutions gradually developed through
the accumulation of experience" as compared to "a priori Constitutions, Constitutions
founded on speculative assumptions remote from experience." HENRY MAINE, POPULAR GovERNMENT
176 (1885).
89. For "the artificial reason of the law," see Prohibitions del Roy, 12 Coke's Reports
63, 65 (1608); for the connection between Burkean political philosophy and the common law
tradition, seeJ.G.A. PococK, Burhe andthe Ancient Constitution:A Problemin the HistoryofIdeas, in
POLITICS, LANGUAGE AND TIME 202 (1973); for Hume's place in that tradition, see G. POSTEMA,
supranote 56,at 110-43; and for a modem conservative political philosopher's restatement of
the common law tradition, see the chapter The ChangingConcept ofLaw, in FRIEDRICH AUGUST
VON HAYEK, LAw, LEGISLATION AND LIBERTY: RULES AND ORDER 72-93 (1973).
90. C.S. PEIRCE, What PragmatismIs, supra note 43, para. 416.
April 1989] HOLMES 809
STANFORD LAW REVIEW
Holmes put the same point in the legal context,
[o]ne fancies that one could invent a different code under which men
would have been as well off as they are now, if they had happened to
adopt it. But that ifis a very great one. The tree has grown as we know
it. The practical question is what is to be the next organic step.91
On the other hand, Holmes' view of law also embodied utilitarian
reformism, because recognition of law as customary and situated did
not necessarily have conservative implications. No one could discard
all customary beliefs and practices at once, but this did not immunize
any subset of those beliefs and practices from "scrutiny and revision."'
92 As Holmes said, just because "we all are compelled to take on
faith at second hand most of the rules on which we base our action and
our thought," it does not follow "that each of us may not try to set
some corner of his world in the order of reason, or that all of us collectively
should not aspire to carry reason as far as it will go thoughout the
whole domain."93 In the short run we may be ruled by our habits and
unreflective desires; in the longer run we have "every reason .. .for
trying to make our desires intelligent."19 4
This is the framework of Holmes' mature pragmatic conception of
law. In thus describing it, I do not mean to deny that Holmes himself
did indeed hold many conservative political and legal views. In fact, he
began his career quite close to the orthodoxy of the common law tradition.
In his first essay in legal theory, Codes, and the Arrangement of the
Law,95 Holmes debated in fairly conventional terms the standard topic
of codification. He argued that the strength of the common law was its
flexibility and adaptability. The source of this strength was the tacit
practical wisdom of the common law judge, who "decides the case first
and determines the principle afterwards."'96 Legal principles gradually
emerged out of lines of precedent, so that a "well settled legal doctrine
embodies the work of many minds, and has been tested in form as well
as substance by trained critics whose practical interest it is to resist it at
every step."'97 No individual's "faculty of generalization, however brilliant,"
could supply these advantages, which would be lost if a code
were adopted as binding law.9 8
But even in his early writings, Holmes came to deviate significantly
from conservative common law orthodoxy. He soon recognized that
91. OLIVER WENDELL HOLMES, Holdsworth'sEnglish Law (1909), in COLLECTED LEGAL PAPERS
285, 289 (1920) [hereinafter Holdsworth'sEnglish Law].
92. THE COMMON LAW, supra note 23, at 33.
93. The Path of the Law, supra note 23, at 185.
94. OLIVER WENDELL HOLMES, IdealsandDoubts (1915), in COLLECTED LEGAL PAPERS 303,
305 (1920) [hereinafter Ideals andDoubts].
95. Oliver Wendell Holmes, Codes, and the Arrangement ofthe Law, in FORMATIVE ESSAYS,
supra note 7, at 77, 77 (reprinting Codes, andthe Arrangement ofthe Law, 5 Am.L. REV. 1 (1870)
[hereinafter Codes, andthe Arrangement of the Law].
96. Id.
97. Id.
98. Id.
[Vol. 41:787
the traditional viewpoint presupposed the existence of a unified community,
bound by shared values and interests. Yet he saw before him
an industrial society rapidly dividing along class lines at the same time
that it was becoming more economically interdependent. 99 And he became
increasingly skeptical about the rationally adaptive character of
the process of case-by-case decision. Borrowing a concept from the anthropologists,
Holmes came to believe that "in large and important
branches of the law the various grounds of policy on which the various
rules have been justified are later inventions to account for what are in
fact survivals from more primitive times."' 100 No longer did it seem so
clear to him that the less conscious the process of evolution the better
the product. Rather the discovery that new reasons have been invented
to justify old practices that in fact survive merely by the force of social
inertia should encourage lawyers to "reconsider" and "decide anew
whether those reasons are satisfactory."101
During his years on the Massachusetts bench, Holmes became more
sympathetic with Benthamite reformism-particularly toward the end
of the 1890s, when he confronted the obdurately conservative response
of the bench and bar to the demands of the labor movement. This experience
drove him to write that it was "revolting" to retain dysfunctional
rules of law supported by nothing more than "blind imitation of
the past."10 2 He advocated yet more strongly the practical use of legal
history for "clearing away rubbish" by identifying those rules that were
"mere survivals" ripe for reform.10 3 The ultimate aim was to produce a
legal system in which "every rule ... is referred articulately and definitely
to an end which it subserves, and ... the grounds for desiring
that end are stated or are ready to be stated in words."' 0 4 The law's
postulates should ideally be established "upon accurately measured social
desires instead of tradition." 10 5
But these Benthamite words alone do not fully convey Holmes'
views; he retained his historicist skepticism about the prospects for ac-
99. See his anonymously published editorial note on the prosecution of the leaders of
the British Gas Stokers' Strike. OLIVER WENDELL HOL.MES,HerbertSpencer: Legislationand Empiricism,
in BooK NoncEs, supra note 70,at 104 (reprinting Summary of Events: GreatBritain, 7
AM. L. REV. 582 (1873)).
100. THE COMMON LAW, supra note 23, at 33 (emphasis added). Holmes took the concept
of the "survival" from the early English anthropologist Sir Edward Tylor. For a discussion
of Tylor, see J. BURROW, supra note 35, at 234-59. Holmes cited Tylor's work in O.W.
Holmes, PrimitiveNotions in Modern Law (pt. 1), in FORMATIVE EssAys, supranote 7, at 129, 135-
36, 139 (reprinting PrimitiveNotions in Modern Law, 10 AM. L. REV. 422 (1876)).
101. THE ComumoN LAw, supra note 23, at 33.
102. The Path ofthe Law, supra note 23,at 187.
103. Law in Science, supranote 24, at 225-26. Holmes thus articulated his pragmatic approach
to history in a letter to Laski: "History has to be rewritten because history is the
selection of those threads ofcauses or antecedents that we are interested in-and the interest
changes in fifty years." I HoLsES-LAsKI LETTERS, supra note 10, at 409 (letter dated Mar. 11,
1922).
104. The Pathof the Law, supra note 23, at 186. Compare the similar discussion of legal
classification in J. BENTHAM, A Fragmenton Government, supranote 86, at 237.
105. Law in Science, supranote 24, at 225-26.
April 1989] HOLMES
STANFORD LA W REVIEW
curately measuring social desires. He did not believe that even with the
help of "statistics and every modern appliance" there would ever be "a
commonwealth in which science is everywhere supreme."' 106 In practice,
it was "only occasionally" possible to measure competing desires
accurately; in the usual case, "the worth of the competing social ends
...cannot be reduced to number and accurately fixed." 10 7 On the
question of the "worth" of different policies "in a more far-reaching
sense than that of expressing the defacto will of the community for the
time.... as yet no one has much to say."' 08 Thus for him the notion of
a code comprehensively justified on utilitarian grounds could never be
more than an ideal providing inspiration for more limited changes. 10 9
Holmes' attitude toward legal and political reform remained at bottom
"an unconvinced conservatism."'1 10 "I don't believe much in anything
that is," he once wrote to John Henry Wigmore, "but I believe a
damned sight less in anything that isn't." 11 Precisely because he
"rarely could be sure" that one rule "tends more than its opposite to
the survival and welfare of the society where it is practiced," ' 1 2 he was
slow to depart from precedent. "Precisely my skepticism, my doubt as
to the absolute worth of a large part of the system we administer, or of
any other system, makes me very unwilling to increase the doubt as to
what the court will do."'113 The only legal value that could be "assumed
as certainly to be wished" was "that men should know the rules
by which the game will be played."1 14
In fact, Holmes' conservatism was not always simply skeptical and
"unconvinced." Alongside his pragmatic conception of the critical uses
of history, he had a powerful streak of romantic antiquarianism. "I love
the old," he wrote to Pollock.1 15 "I feel.., to my finger tips" a "reverence
for venerable traditions," he said in a speech dedicating a memorial
to the sailors of Ipswich, every sentence of which expresses his
passionate attachment to the Massachusetts past.116 The sentiment applied
to law as well, where it produced some deep purple Holmesian
rhetoric. The common law, growing "for near a thousand years," was
"one of the vastest products of the human mind," a mighty system that
106. Id. at 242.
107. Id. at 231.
108. Holdsworth'sEnglish Law, supra note 91, at 288.
109. See Law in Science, supra note 24, at 242-43.
110. Holdsworth's English Law, supranote 91, at 289.
111. Letter From Oliver Wendell Holmes toJohn Henry Wigmore (Dec. 4, 1910), quoted
in MARK DE WOLFE HOWE, JUSTICE OLIVER WENDELL HOLMES: THE PROVING YEARS, 1870-
1882, at 198 (1963) [hereinafter M. HOWE, THE PROVING YEARS].
112. O.W. HOLMES, Twenty Years in Retrospect, supranote 78, at 156.
113. Id.; see also Law in Science, supra note 24, at 239; Holdsworths English Law, supranote
91, at 290; cf Southern Pac. Co.v.Jensen, 244 U.S. 205, 221 (1917) (Holmes, J.,dissenting);
Stack v. New York, N.H. & Hart. R.R., 177 Mass. 155, 158-59, 58 N.E. 686, 687 (1900).
114. Holdsworth's English Law, supra note 91, at 289.
115. 2 HOLMES-POLLOCK LETrERS, supra note 8, at 123 (letter dated Nov. 5, 1923).
116. OLIVER WENDELL HOLMES, Ipswich (1902), in OCCASIONAL SPEECHES, supra note 78,
at 136, 136.
812 [Vol. 41:787
April 1989]
had "the final title to respect that it exists, that it is not a Hegelian
dream, but a part of the lives of men."' 17
As with most of his passions, Holmes had the capacity for self-critical
distance from his antiquarianism. Thus he could write: "How delightful
is the mixed emotion half noble, aesthetic-half fishy-that of
the collector, with which one turns to ancient things ... ."118 He
warned of the "deceptive charm" of legal history and the accompanying
"pitfall of antiquarianism" into which lawyers were drawn by the
"peculiar logical pleasure in making manifest the continuity between
what we are doing and what has been done before."' 19
But awareness of the "peculiar" and "half fishy" pleasures of nostalgia
did not always protect Holmes. His intended masterpiece, The Common
Law, is deeply flawed by sentimental legalistic antiquarianism. His
project in the book was to produce a doctrinal restatement of the common
law that was guided by the demands of contemporary policy, using
historical research primarily to identify anachronistic survivals. But
Holmes' love of the old and the alluring logical pleasures of historical
continuity led him repeatedly astray. The book today reads as a
hodgepodge, honeycombed with passages in which ancient cases are
treated not as objects of critical historical explanation, but as authoritative
precedents, to which Holmes gave ingenious but tendentious lawyerly
readings in support of controversial propositions of law he
favored.
120
Because Holmes' conservatism in both its skeptical and its romantic
mode was so pervasive, it is important to see that it has no necessary
connection with the basic pragmatist tenets that he so well articulated.
Dewey, for example, welcomed Holmes as a philosophical kindred
spirit even while recognizing that the two of them disagreed on many of
the political questions of the day.' 2 1 Dewey used pragmatist premises
as a basis for an optimistic brand of activist liberal reformism. For him,
the situated character of human belief and practice served a liberating
rather than a Burkean and cautionary function; when he criticized the
ascription of finality and universality to some set of local, customary,
and partial principles, he conceived himself as removing an obstacle to
social transformation.
22
Others have made even more radical use of the pragmatist stress on
117. Learningand Science, supranote 80, at 140; The Path ofthe Law, supranote 23, at 194;
see also I HOLMES-POLLOCK LETTERS, supra note 8, at 24 (letter dated Nov. 5, 1883) (Holmes
found Burke "marvelous great.").
118. 1 HOLMES-LASKI LETTERS, supra note 10, at 64 (letter dated Feb. 27, 1917).
119. The Pathof the Law, supranote 23, at 194; LearningandScience, supra note 80, at 139.
120. The point was made first in 1882 in A. V. Dicey's review of The Common Law. See
A.V. Dicey, Holmes's "Common Law', THE SPECTATOR, LITERARY SUPPLEMENT, June 3, 1882, at
745, reprintedin Touster, supra note 5, app. 2, at 712 [reprinted version hereinafter cited as
Dicey Review]. For specific quotes, see note 258 infra. The point is made again, persuasively,
in Gordon, supra note 3, at 733.
121. Dewey, JusticeHolmes and the LiberalMind, supra note 73, at 37, 43.
122. See JOHN DEWEY, HUMAN NATURE AND CONDUCT, supra note 40, at 80-82; JOHN
HOLMES
STANFORD LA W REVIEW
context and situation. The point is that if theory is necessarily situated
within and closely dependent upon practice, then current theory loses
its claim to finality. Things now "impossible even in theory" become
possible as theory adapts to changes in practice, themselves driven in
part by earlier theory. That is the common-sense basis of the dialectical
Marxist conception of revolutionary praxis and of the critique of ideology
characteristic of much modem Marxism. 123 The application of this
idea to law has been one of the central themes of the Critical Legal
Studies movement.1 24 These radical uses are as consistent with a pragmatist
framework as Dewey's liberal reformism or Holmes' skeptical
conservatism.
From a certain philosophical perspective, Holmes' pragmatist theory
of law is, like much pragmatist theory, essentially banal. At its most
abstract level it concludes in truisms: Law is more a matter of experience
than of logic, and experience is tradition interpreted with one eye
on coherence and another on policy. Similarly, Peirce's critique of
foundational epistemology did away with the exciting theories that had
engaged great minds from Descartes to Kant and, ifaccepted, left nothing
interesting to say at the most general level about how human beings
acquire knowledge. In the same vein, almost all of Dewey's best work
involved the critique of elegantly structured dualistic theories and their
replacement with one version or another of his standard monistic (and
monotonous) truisms: that generalizations tend to be situated instrumentalities
marking temporary distinctions of degree, not absolute
truths delineating sharp boundaries, and that some of them are good
for some purposes in some contexts, others for other purposes in other
contexts. After a pragmatist critique, the theory of the effect of separation
on human relationships might come down to: sometimes "out of
sight, out of mind," and sometimes "absence makes the heart grow
fonder."
The payoff of pragmatist philosophy is thus often more in the critique
than in the construction. This is why Dewey called philosophy
"criticism" and metaphysics the "ground-map of the province of criticism.'
2 5
Pragmatism rejects the maxim that you can only beat a theory
with a better theory, when this carries with it such essentially
DEWEY, LIBERALISM AND SOCIAL ACTION 48-50, passim (1935); J. DEWEY, THE PUBLIC AND ITS
PROBLEMS, supra note 72, at 6-7.
123.
The materialist doctrine concerning the changing ofcircumstances and upbringing
forgets that circumstances are changed by men and that it is essential to educate
the educator himself.... The coincidence of the changing of circumstances and of
human activity or self-changing can be conceived and rationally understood only as
revolutionarypractice.
KARL MARX, Theses on Feuerbach, in THE GERMAN IDEOLOGY 121, 121 (C. Arthur ed. 1970) (discovered
and originally published in 1888).
124. See, e.g., Robert W. Gordon, New Developments in Legal Theory, in THE POIaTrCS OF
LAW: A PROGRESSIVE CRrrIQUE 281, 286 (D. Kairys ed. 1982).
125. J. DEWEY, EXPERIENCE AND NATURE, supra note 19, at 412-13.
814 [Vol. 41:787
aesthetic criteria of theory choice as elegance, rigor, and originality.
No rational God guarantees in advance that important areas of practical
activity will be governed by elegant theories. Certain useful theories,
such as those concerning the motions of the heavenly bodies, do indeed
turn out to be simple, rigorous, and altogether pleasing to the intellectual
taste. On the other hand, the theories most helpful for understanding
the weather are messy, complex, and unlovely, and they may
always remain so.
Pragmatists thus tend to be theoreticians armed with a presumptive
suspicion of neat theories; this is not because they despise neatness, but
because they know how obsessively those drawn to theorizing love it.
Thus, typically of pragmatist theory, Holmes' central point about
judges' law was a critical one; law isn't "logic" in Langdell's exciting
and geometrically precise sense. 126 It was partly to avoid a discursive
vacuum, and partly to nudge practice roughly in the right direction,
that he added the vague constructive alternative that law is "experience,"
by which he meant an indefinite mixture of habit, instrumental
reason, and the search for internal coherence. Dewey used the term
"experience," and his other favorite, "situation," in very much the
same way, as designedly vague terms meant to give a sense of partial
closure and some approximate practical remapping of the conceptual
space his critique had vacated.' 27
Within the field of legal practice and ideology, the Holmesian slogan
about the primacy of experience over logic serves as a guide and
morale-booster to practitioners and scholars who work in a context in
which Langdellian formalism retains a primeval and often unrecognized
power. But from an external philosophical perspective that evaluates
theories according to their intrinsic intellectual interest, the
slogan has nothing much to recommend it. No doubt this is why books
about legal philosophy discuss Holmes' "prediction theory" much
more than his maxim about logic and experience. The idea that statements
of law are no more than predictions ofjudicial decisions is bold,
reductive, and stimulating; it is also easily discredited if treated as a
general definition of law, good for all purposes. But that is not how
Holmes intended it. The conception of law he recommended tojudges
and other authoritative interpreters is to be found in the inspired imprecision
of his account of law as experience.
126. See text accompanying notes 133, 147-148, 162 infra.
127. Rorty pushes this point further than I would and criticizes Dewey's tendency to
supply vague affirmative accounts to replace the rigorous but misleading theories that were
the object of his critique. RICHARD RORTY, Dewey's Metaphysics, in CONSEQUENCES OF PRAGMATsMi,
supranote 12, at 72. In my view, the affirmative accounts are essential; Dewey's promotion
of an alternative metaphysics organized around appropriately vague (but never wholly
contentless) concepts like "experience" and "the situation" responds to a widespread and
entirely legitimate human need for basic concepts, ontological ultimates, an overall
"groundmap" or world-picture, even in the absence of epistemological foundations.
815April 19891 HOLMES
STANFORD L4 W REVIEW
III. LAW AS LOGIC
Before we come to consider Holmes' prediction theory, it will be
helpful to take account of the role of logic in his overall approach to
theory within law. As we consider this subject, we come upon an apparent
Holmesian paradox. Led by the late Grant Gilmore, revisionists
have recently drawn attention to the fact that much of Holmes' actual
work was devoted to the abstract and conceptual ordering of doctrine
into a structured and coherent system 12 8-in other words, the kind of
doctrinal legal "logic" that Langdell specialized in and that Holmes so
famously contrasted with "experience." How are we to reconcile these
doctrinal labors, which mark Holmes as one of the leading practitioners
of classical nineteenth-century legal science, with his own celebrated
critique of that enterprise? The answer is that although Holmes was
indeed a conceptualist, he viewed legal systematization as a practical
aid in teaching and understanding law. Unlike Langdell, Holmes did
not believe doctrinal conceptualization could produce a deductive system
that would make legal reasoning formal and scientific.
The revisionist commentators have correctly pointed to an aspect of
Holmes' work not sufficiently stressed before. The project behind The
Common Law was avowedly doctrinal and conceptual: "to make known
the content of the law; that is, to work upon it from within, or logically,
arranging and distributing it, in order, from its summum genus to its infima
species, so far as practicable." 129
Holmes sought to replace the old
arrangement of Anglo-American private law, based on Blackstone and
the writ system, with a new "philosophical" structure organized around
the categories of contract and tort. Supplementing this recategorization,
he also sought to focus private law doctrine around the generalization
that legal standards, even when misleadingly phrased in terms of
internal and subjective states of mind, actually tended to make liability
turn on the objective question whether the actor's external conduct
matched that which was to be expected of the typical member of the
community, the "reasonable man." And to a large extent, in collaboration
with Langdell, Ames, Wigmore, Keener, and others, Holmes succeeded:
By the end of the century, the new doctrinal classification, and
to a lesser degree the generalization of the "external" standard of liability,
had come to dominate teaching and professional commentary in
private law.130
128. G. GILMORE, THE DEATH OF CONTRACT, supra note 3, at 14-53; G. GILMORE, THE
AGES OF AMERICAN LAW, supra note 3, at 48-56; Gordon, supranote 3, at 726-29.
129. THE COMMON LAw, supra note 23, at 173.
130. The best account of this doctrinal reclassification remains Duncan Kennedy, The
Rise and Fall of Classical Legal Thought 1850-1940 (Oct. 1975) (unpublished manuscript)
(on file with the author). On Holmes' central role in the classical reordering of tort law, see
G. EDWARD WHITE, TORT LAW INAMERICA 12-19 (1980). On his role in the development of
classical contract doctrine, see G. GILMORE, THE DEATH OF CONTRACT, supranote 3, at 14-53.
For the triumph of the external standard, see Pollock's letter of 1893: "Nemesis is upon us.
The reasonable man and the 'external standard' have filtered down to the common examina-
816 [Vol. 41:787
April 1989]
In his earliest theoretical work, Holmes attempted to follow Austin's
lead and develop a universal scheme for the classification of legal duties.
By the mid-1870s, however, he had come to doubt that the concept
of legal duty was sufficiently general to serve as the basis for any
such ordering. And in the process he had lost interest in universal
schemes-which he later called "striving for a useless quintessence of
all systems, instead of an accurate anatomy of one." 131
But the anatomical metaphor itself suggests his continued interest
in the structural treatment of legal concepts. As he wrote to James
Bryce in 1879, Holmes' aim in The Common Law was to "analyse what
seem to me the fundamental notions and principles of our substantive
law, putting them in an order which is a part of or results from the
fundamental conceptions."' 132 This is not a project obviously different
from the one Langdell stated in his much-quoted manifesto of classical
legal science:
Law, considered as a science, consists of certain principles or doctrines....
If these doctrines could be so classified and arranged that
each should be found in its proper place, and nowhere else, they would
cease to be formidable from their number.133
Nor did Holmes abandon the conceptualist enterprise after he went
on the bench.13 4
Almost two decades after The Common Law, in The Path
of the Law, Holmes' most comprehensive statement of his mature legal
theory, he restated in the strongest terms his dedication to conceptualism.
The "most important" point of "every new effort of legal
thought" was to "generalize [the law] into a thoroughly connected system,"
made up, as Langdell had insisted, of a "not unmanageably
large" number of legal principles. 135 To thus systematize legal doction
candidate, who is beginning to write horrible nonsense about them." Letter from Frederick
Pollock to Holmes (Aug. 31, 1893), reprintedin I HOLMES-POLLOCK LETTERS,supranote 8,
at 46.
131. The Pathofthe Law,supranote 23, at 196-97. For an example ofthe idea of"general
jurisprudence" which Holmes was criticizing, seeJ. AUSTIN, THE PROVINCE OFJURISPRUDENCE,
supra note 26,at 366-69, 373.
132. Letter from Holmes toJames Bryce (Aug. 1879), quoted in M. HOWE, THE PROVING
YEARS,supranote 111, at 25. In another letter written in 1879, Holmes said his purpose was
to "make a new and more fundamental analysis" of the "cardinal principles and conceptions
of the law" so as to make "a new Jurisprudence or new first book of the law." Letter from
Holmes to Arthur Sedgwick (July 12, 1879), quoted in Gordon, supranote 3, at 719.
133. 1 CHRISTOPHER COLUMBus LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS
viii-ix (2d ed. 1879).
134. For the contrary view that Holmes' experience as a judge led him to abandon his
interest in the conceptualist "arrangement of the law," see Mark Tushnet, The Logic of Experience:
Oliver Wendell Holmes on the SupremeJudicialCourt, 63 VA. L. REV. 975, 1045-46 (1977); and
G. Edward White, The Integrity ofHolmes'Jurisprudence,10 HOFTRA L. REV. 633, 649-51 (1982).
135. The Pathofthe Law, supra note 23, at 168-69. Holmes later repeated that his ambition
was to give the law a "continuous, logical, philosophical exposition." OLIVER WENDELL
HOLMES, Speech atBar Dinner (1900), in COLLECTED LEGAL PAPERS, 244, 245 (1920) [hereinafterSpeech
atBarDinner].Holmes there explained that although he had not been able to realize
this ambition as a judge, he would never abandon the project. Even after retiring from the
Supreme Court in 1932, he spoke of "writing a little book embodying my views on the ultimates
of the law." "[Blut," he went on to say, "I have expressed thempassim and Idesire only
HOLMES
STANFORD LAW REVIEW
trine, the jurist must "look straight through all the dramatic incidents"
presented by a case, analyze it in purely legal terms, and recognize the
application of the broadest rules. The failure to get past the merely
"dramatic" led jurists to write useless books on the law of subjects such
as "Railroads or Telegraphs." 136
The Legal Realists in their critique of conceptual jurisprudence
would later seek (without much success) to reorder the law around just
such "functional" and "real-world" topic headings. And ironically the
Realists claimed Holmes as their chief authority in the assault upon the
classical doctrinal framework of legal thought-a framework that he
had helped to build.137 In addition to his slogan about logic and experience,
consider these other Holmesian taglines that served, and still
serve, as battle cries in the never-ending War Against Langdell: "Law,
being a practical thing, must found itself on actual forces"; 138 "The
important phenomenon is ... the justice and reasonableness of a decision,
not its consistency with previously held views"; l3 9 "[T]he real justification
of a rule of law, ifthere be one, is that it helps to bring about a
social end which we desire"; 140 "General propositions do not decide
concrete cases." 14 1
Nor did the Realists simply misconstrue the object of Holmes' critique
in these famous passages. The line about logic and experience
first appeared in Holmes' unsigned review of Langdell's Summary of Contract,142where
the context makes clear that Langdellian legal conceptualism
was indeed the conception of "law as logic" that Holmes had in
mind.143 Later he referred to the "fallacy" that a system oflaw "can be
worked out like mathematics from some general axioms of conduct." 144
In The Common Law he described two forms of the mistake of considering
the law "only from its formal side": attempting "to deduce the
corpus from a prioripostulates," and "the humbler error of supposing
the science of the law to reside in the ekgantiajuris,or logical cohesion
of part with part."' 45
It is not difficult to identify the two groups of legal logicians Holmes
had in mind. Those who would deduce the content of the law from a
prioripostulates were the German Pandectist legal scientists; they purrepose.
I am persuading myself that one has no duties at 91." 2 HoLMES-POLLOCK LETrERS,
supranote 8, at 307 (letter dated Apr. 5, 1932).
136. The Path ofthe Law, supra note 23, at 196.
137. See, e.g., J. FRANK, supra note 1, at 253-60.
138. THE COMMON LAW, supra note 23, at 168.
139. Book Notice, 14 AM. L. REV. 233, 234 (1880) (unsigned review; for attribution to
Holmes, see M. HOWE, THE PROVING YEARS, supra note 111, at 155-57) [hereinafter Langdell
Review].
140. Law in Science, supranote 24, at 238.
141. Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting).
142. C.C. LANGDELL, A SUMMARY OF THE LAW OF CoNTRACrs (2d ed. 1880).
143. See M. HOWE, THE PROVING YEARS, supra note 111, at 155-58.
144. The Path ofthe Law, supra note 23, at 180.
145. THE COMMON LAW, supra note 23, at 32.
[Vol. 41:787
ported to found their universalized version of Roman law on neo-Kantian
first principles of justice. 146 Closer to home were those who
portrayed the law as an entirely self-contained geometric system of axioms,
theorems, and proofs, generated by constructing the simplest and
most elegant internally consistent set of principles that could organize
and reconcile most of the cases; for Holmes, these were the Langdellians,
as his review of Langdell's book confirms beyond doubt.1 47
How can we reconcile Holmes' critique of Langdell and the German
Pandectists with his own highly conceptualistic doctrinal work? Holmes
supplies an important partial answer in the practical conception of logic
that he shared with Dewey and the pragmatists. As we shall see later,
Holmes' answer is only a partial one; he loved the logical manipulation
of doctrine for its own sake nearly as much as Langdell did, and this
could lead him astray in practice. But he differed from Langdell in possessing
a coherent and useful working conception of the point and
place of doctrinal concepts and principles in the law.
Unlike many of the Legal Realists, Holmes greatly valued the role of
conceptual systems in legal study, but unlike Langdell, he saw that role
as a subordinate one. For Langdell, the fundamental principles of the
common law, once extracted by induction from the cases, had the status
of axiomatic general truths; they were the law, and individual decisions
shown to conflict with them were thereby shown to have been wrongly
decided.148 Holmes, by contrast, considered the same general principles
to be guidelines, rules of thumb, instruments of inquiry designed
as practical aids to making sound decisions. They were not like mathematical
axioms; the very generality of their terms guaranteed that their
application would give rise to difficult or borderline cases, in which
judges would have to exercise "the sovereign prerogative of choice." 149
In exercising that prerogative, judges would be guided, consciously or
not, by "views of public policy" and "considerations of social advantage."'150
And this was as it should be, for the principles were meant
only as intermediate premises designed to guide judges toward decisions
in the public interest.
The contrast between Holmes' and Langdell's views can be illustrated
by their respective treatment of the "mailbox rule" chestnutthe
question of when a contractual proposal accepted by mail became
binding. For Langdell, there was only one acceptable answer: The
doctrine of consideration required that there must be a return promise
before there could be a contract, and by its very nature a promise could
146. Holmes later makes clear that the German Pandectists are the target of his critique.
l at 163-68.
147. See Langdell Review, supra note 139, at 233-34. For my own analysis of Langdell's
geometric vision of legal thought, see Thomas C. Grey, Langdell's Orthodoxy, 45 U. Prrr.L.
REV. 1 (1983).
148. See Grey, supranote 147, at 11-13, 16-20.
149. Law in Science, supranote 24, at 239.
150. THE CoMMoN LAw, supra note 23, at 32; The Path of the Law, supranote 23, at 184.
HOLMESApril 1989]
STANFORD LAW REVIEW
not be complete until communicated. Hence the decisions holding that
a contract became binding when the letter of acceptance was mailed
were simply wrongly decided. Once it was shown that these decisions
were inconsistent with established principle, any arguments that the
rule they embodied was more just or more practical were simply
"irrelevant."15 1
By contrast, Holmes, who accepted the same general view of the
consideration doctrine as did Langdell, believed that no general principle
could deductively settle such a question of legal detail. He criticized
Langdell's treatment of this issue as that of a "legal
theologian."1 52 On a question at the borderline of an established legal
principle, "[i]f convenience preponderates in favor of either view, that
is a sufficient reason for its adoption."' 15 And a rigid rule prohibiting
contract formation without actual communication would violate practical
common sense; it would mean, most inconveniently, that "if the letter
had been delivered to the promisee and was then snatched from his
hands before he had read it, there would be no contract." 154
Holmes' attitude toward the place ofprinciples in legal reasoning is
likewise illustrated when we put his slogan "[g]eneral propositions do
not decide concrete cases" back into its context within his Lochner dissent.155
The general principle Holmes referred to was one he had just
stated and relied on himself: "[A] constitution is not intended to embody
a particular economic theory."' 56 He meant his famous slogan
only to qualify, not to negate, the force of this general principle, a principle
which would if accepted "carry us far toward the end."'157 The
principle did not deductively decide Lochner; one might accept it and yet
strike down the maximum hours law, characterizing liberty of contract
not as part of a controversial and historically transient economic theory
but rather as a fundamental aspect of personal liberty. Yet Holmes believed
that a judge who approached the case guided by this principle
would be nudged in the direction of the correct decision.
151. C. LANGDELL, supra note 142, at 15, 20-21. I discuss Langdell's approach to arguments
ofjustice and policy in Grey, supra note 147, at 13-15.
152. Langdell Review, supra note 139, at 234.
153. THE COMMON LAW, supra note 23, at 239.
154. Id. at 240; cf id. at 167 (on the propriety of the "sacrifice of principle to
convenience").
155. Lochner v. New York, 198 U.S.45, 76 (1905) (Holmes,J., dissenting). The line was
a Holmesian "chestnut," often repeated in various forms. See, e.g., Otis v. Parker, 187 U.S.
606, 608 (1903); Vegelahn v. Guntner, 167 Mass. 92, 106, 44 N.E. 1077, 1080 (1896)
(Holmes,J., dissenting); See also 1 HOLMES-LAsXi LETTERS, supra note 10, at 243 (letter dated
Feb. 19, 1920)("I always say in conference that no case can be settled by general propositions,
that I will admit any general proposition you like and decide the case either way."); id. at 390
(letter dated Dec. 22, 1921) (virtually identical statement).
156. Lochner, 198 U.S. at 75 (Holmes, J., dissenting).
157. Id. at 76 (Holmes, J., dissenting). Similarly, Holmes concluded an essay setting
forth general principles of tort law with the words "my object is not to decide cases, but to
make a little clearer the method to be followed in deciding them." OLIVER WENDELL HOLMES,
Privilege,Malice and Intent (1894), in COLLECTED LEGAL PAPERS 117, 137 (1920) [hereinafter
Privilege, Malice and Intent].
[Vol. 41:787
Holmes first clearly articulated his view of general doctrines as
guidelines and legal distinctions as matters of degree early in his career.
There was no single idea about law that he repeated so often or
was so proud of:
The growth ofthe law is very apt to take place in this way: Two widely
different cases suggest a general distinction, which is a clear one when
stated broadly. But as new cases cluster around the opposite poles,
and begin to approach one another, the distinction becomes more difficult
to trace; the determinations are made one way or the other on a
very slight preponderance offeeling, rather than articulate reason; and
at last a mathematical line is arrived at by the contact of contrary decisions,
which is so far arbitrary that it might equally well have been
drawn a little further to the one side or to the other. The distinction
between the groups, however, is philosophical, and it is better to have a
line drawn somewhere in the penumbra between darkness and light,
than to remain in uncertainty.158
When Holmes says that the distinctions between legal categories are
"philosophical," he means (among other things) that the concepts defining
and structuring those distinctions are fundamental in a practical
sense, superior to alternative frames of analysis for purposes of decision.159
He does not mean, however, that legal decisions follow deductively
from "the very nature" of legal categories like contract or tort, or
legal concepts like consideration or proximate cause.160 To paraphrase
Holmes' view, a fundamental legal concept, necessarily general and imprecise,
applies with decreasing certainty to fact situations as they diverge
from its paradigm instance.' 61 In the area where neighboring
concepts overlap, legal decision must assign disputed particular cases
to one or another on grounds not deducible from the internal structure
of the concepts.
To fix the contrast between Holmes' and Langdell's views of the
place of legal principles, it is useful to distinguish between conceptual-
158. Holmes, The Theory of Torts (1873), in FORMATIVE ESSAYS, supra note 7, at 117, 119
(reprinting The Theory ofTorts, 7 AM. L. REV. 652 (1873)) [hereinafter The Theory ofTorts]. For a
few among the many repetitions of the point, see, for example, THE COMMON LAw, supra note
23, at 101; Law in Science, supra note 24, at 232. ChiefJustice Charles Doe ofNew Hampshire
repeated the gist of the idea in his opinion in Stewart v. Emerson, 52 N.H. 301, 314 (1872).
With characteristic jealousy, Holmes resented Doe's failure to give him credit; he later characterized
Doe, in many ways a better judge than he, as "second-rate." The controversy is explored
by Doe's biographer John Philip Reid in Reid, Brandy in His Water: Correspondence
Between Doe, Holmes and Wigmore, 57 Nw. U.L. REv. 522 (1962). Ironically, Holmes seems to
have picked up the idea he was so proud of from Nicholas St. John Green. See NICHOLAS ST.
JOHN GREEN, Insanity in CnrminalLaw, in ESSAYS AND NOTES ON THE LAw OF TORT AND CRIME,
161, 166-67 (1933) (reprinting Book Notice, 5 Am. L. REV. 704 (1871)).
159. There was more to what Holmes meant by "philosophical" than this. See text accompanying
notes 259-263, 265-268 infra.
160. Holmes describes the demand for a doctrine of property based upon "internal juristic
necessity drawn from the nature of possession itself" as expressing "a characteristic
yearning ofthe German mind." THE COMMON LAw, supranote 23, at 164. Coming from him,
this was not a compliment.
161. Compare the well-known discussion of the "open texture" of language and its significance
for the law in H.L.A. HART, THE CONCEPT OF LAw 121-32 (1961).
HOLMESApril 1989]
STANFORD LA W REVIEW
ism and formalism. Conceptualism is the project of structuring law into
a system of classification made up of relatively abstract principles and
categories; formalism is the project of making law certain by making
legal reasoning deductive. Both Holmes and Langdell were conceptualists;
both were formalists. But they differed in how they conceived
the relation between the two projects. For Langdell, the two were integrated;
formality was to be achieved through the conceptualist enterprise
itself. The general principles must serve as axioms constituting a
deductive system that would make legal reasoning exact and
scientific.
16 2
For Holmes, by contrast, the conceptualist goal of coherent order
and the formalist goal of objective predictability had to be pursued by
different means. The concepts that were best for classificatory purposes,
by virtue of their very generality, could not be applied exactly
and predictably in deciding particular cases. Their application invariably
involved inexactjudgments of degree. The only way to achieve certain
and predictable law was to artificially fix "a mathematical line" at
some relatively arbitrary point within the penumbra where opposing
concepts overlapped. For example, the law started with the distinction
between infancy and adulthood, and ended with a line at age twentyone;
it began with the genuinely distinct but fuzzily bounded notions of
night and day, and ended with a statute drawing the line at one hour
before sunrise and one hour after sunset.1 63
Langdell thought of legal categories and principles as ideal realities
which the legal scientist could discover and describe and which ajudge
could simply follow. By contrast, Holmes' primary criterion for assessing
legal concepts was instrumental; legal principles were "correct" insofar
as they served a practical purpose, and that purpose was typically
a heuristic one. A principle was an indexing device that guided the lawyer
to relevantly similar cases, while at the same time guiding thejudge
to the policy considerations relevant in deciding the hard cases that fell
under it. Holmes stated the heuristic aim in one of his earliest essays,
claiming "the end of all classification should be to make the law knowabe."'164
He repeated the point a quarter century later in The Pathof the
Law: The aim of conceptual arrangement was to make the law "easier
to be remembered and to be understood."' 165
Holmes' practical heuristic criterion made "telegraphs" an inappropriate
category because grouping cases on this subject did not efficiently
organize legal knowledge for the law student, the lawyer, or the
162. For a fuller discussion of conceptualism, formalism, and Langdell's combination of
the two, see Grey, supra note 147, at 6-15.
163. Law in Science, supra note 24, at 232. For other examples, see THE COMMON LAw,
supra note 23, at 101-02.
164. Holmes, The Arrangement ofthe Law: Privity, in FORMATIVE EssAYs, supranote 7, at 95,
96 n.2 (reprinting The Arrangement ofthe Law: Privity,7 AM. L. REV. 46 (1872)) [hereinafter The
Arrangementof the Law: Privity].
165. The Path of the Law, supra note 23, at 168.
[Vol. 41:787
judge. Courts did not decide cases according to whether telegraph
companies were involved. By contrast, Holmes said, "marine insurance"
was a proper subdivision of contract law because "the fact that
the agreement was of that sort has attached to it further and more specific
consequences, such as the implied warranty of seaworthiness,
which cannot be reduced under any more general head."'166
The efficiency of conceptual schemes cannot be determined in the
abstract where the aim is a practical heuristic one. Holmes often made
this point by denying Langdellian claims of scientificstatus to the activity
of legal categorization. "Law is not a science, but is essentially empirical.
Hence, although the general arrangement should be philosophical,
even at the expense of disturbing prejudices, compromises with practical
convenience are highly proper."' 67 Or as he wrote in direct criticism
of Langdell's treatment of the law of contract:
As a branch ofanthropology, law is an object of science; the theory of
legislation is a scientific study; but the effort to reduce the concrete
details of an existing system to the merely logical consequence ofsimple
postulates is always in danger ofbecoming unscientific, and ofleading
to a misapprehension ofthe nature ofthe problem and the data.' 68
In conceptually ordering the law, Holmes thought a practical balance
must be struck between the claims of habit on the one hand, and
those of taxonomic efficiency on the other. He favored retaining certain
legal concepts even though we would not adopt them if we were
arranging the law from scratch; the costs of relearning and reindexing
would outweigh the gains from added clarity. Holmes mentioned the
concept of ownership and the (since generally abandoned) category of
the law of persons as examples of taxonomically awkward legal notions
that were probably too well entrenched to be worth replacing.169 But
the benefits of conceptual efficiency and the costs of inertia were real.
A quarter of a century later, still pursuing the same themes, Holmes
said: "Our forms of contract, instead of being made once [and] for all,
like a yacht, on lines of least resistance, are accidental relics of early
notions .... ,170
Since the heyday of the Realists, legal thinkers have tended to as-
166. OLIVER WENDELL HOLMES, Codification and Scientific Classficationof the Law, in BOOK
NOTICES, supra note 70, at 59, 60-61 (reprinting Book Notice, 7 AM. L. REV. 318 (1873)).
167. Codes, and the Arrangement of the Law, supra note 95, at 80.
168. LangdellReview, supranote 139, at 234. In 1925, Holmes wrote to his young friend
Dr.John Wu, who had written an essay praising the German neo-Kantian legal theorist Rudolf
StammIer:
Perhaps your phrase legal science indicates the beginning of our divergence ...
[WIMhen it comes to the development of a corpusjuristhe ultimate question is what do
the dominant forces of the community want and do they want it hard enough to
disregard whatever inhibitions may stand in the way.
OLIVER WENDELL HOLMES, Letters to Dr.Wu, in BOOK NoTcEs, supranote 70, at 149, 187 (letter
dated Aug. 26, 1926) [hereinafter Letters to Dr. W].
169. Codes, and the Arrangement of the Law, supra note 95, at 80.
170. Learningand Science, supra note 80, at 139.
HOLMES 823April 1989]
STANFORD LA W REVIEW
sume that legal taxonomy and conceptual doctrine-building necessarily
rest on Langdellian premises. Behind this assumption often lies the
instinctive nominalism, or cult of the concrete, that denies all practical
importance to generalization and abstractiop. Yet no pragmatist would
endorse such an antipathy to generalization. All the major pragmatist
figures accepted and asserted the importance of general principles and
systematic thought; they insisted only that the test of abstractions must
be their usefulness for action and concrete inquiry. Peirce in particular
abhorred nominalism and argued for the independent reality of universals.17'
And other pragmatists who did not share his metaphysical
views nevertheless agreed with him about the practical importance of
coherent and systematic generalization in all fields of human thought.
In a 1924 essay, Dewey applied this standard pragmatist position to
legal thought:
[L]ogical systematization with a view to the utmost generality and consistency
of propositions is indispensable but is not ultimate. It is an
instrumentality, not an end. It is a means of improving, facilitating,
clarifying the inquiry that leads up to concrete decisions .... It is most
important that rules oflaw should form as coherent generalized logical
systems as possible.172
He could have been paraphrasing Holmes; indeed he probably was.
Holmes had written that "[a] generalization is empty so far as it is
general. Its value depends on the number of particulars which it calls
up to the speaker and the hearer." 173 He did not mean by this that
generalization was useless and should be abandoned, no more than
when he wrote that he would "admit any general proposition that anyone
wants to lay down and decide the case either way."' 174 Though he
rejected the Langdellian conception of principles as axiomatic foundations
for legal decision, he found great value in a system of general
legal principles which could call to mind just those rules, cases, and
considerations of policy that were useful in deciding the matter at
hand. 175
Indeed, all the leading Anglo-American legal thinkers of the period
from about 1870 to 1920 were conceptualists in the same sense. They
all would have rejected the later Legal Realist project of breaking the
general and abstract concepts of the law into narrow categories and
171. CHARLES SANDERS PEIRCE, Lectures on Pragmatism, in 5 COLLECTED PAPERS OF
CHARLES SANDERS PEIRCE, supra note 37, paras. 93-101.
172. Dewey, Logical Method and Law, supra note 72, at 19.
173. Law in Science, supranote 24, at 240. This was another of Holmes' "chestnuts," and
he repeated its substance often. See, e.g., Letters to Dr. Wu, supra note 168, at 167 (letter dated
Sept. 20, 1923) ("[Tlhe only use of a pint pot is to present the beer (or whatever lawful liquid
it may contain), and infinite meditation upon the pot never will give you the beer.").
174. 1 HOLMES-LAs LETrERS, supra note 10, at 390 (letter dated Dec. 22, 1921).
175. See THE COMMON LAw, supra note 23, at 173; OLIVER WENDELL HOLMES, The Use of
Law Schools (1886), in COLLECTED LEGAL PAPERS, 35, 41-42 (1920) [hereinafter The Use ofLaw
Schools]; The Pathof the Law, supra note 23, at 168, 195-202.
[Vol. 41:787824
type-situations based in extra-legal experience.1 76 The legal thinkers
of Holmes' generation confronted a practical historical situation that
impressed upon them the need for a new and perspicuous categorical
arrangement of the common law. With the demise of the writ system,
the organization of cases around the traditional forms of action was
breaking down.177 Blackstone's arrangement of the common law, the
basis of elementary legal education for a century, had become obsolete;
its scheme had served as a transition between a feudal status-based and
a liberal market-based legal system, and the period of transition was
over.178 The spread of university-based legal education had created
new demand for an intelligible arrangement of curriculum and courses,
and as members of a new full-time law professoriate, with the time and
the incentive to do scholarship, Holmes' contemporaries saw meeting
that demand as their primary task and opportunity.
While conceptualism was universal during the classical period of
Anglo-American legal thought, adherence to the Langdellian notion of
legal science was not. Not only Holmes, but Gray, Nicholas St. John
Green, Thayer, and Wigmore, and in the next generation Arthur
Corbin-conceptualists all in their legal scholarship-were critics of (or
at least deviants from) Langdellianism. They did not accept Langdell's
insistence that legal thought could and should be autonomous and universally
formal as well as conceptually ordered. They did not aspire to
make common law reasoning exact and deductive by excluding considerations
ofjustice and social policy. Conceptual system-building had a
significant but subordinate place in the law for them; they treated principles,
categories, and taxonomies as instruments for use in the process
of legal inquiry rather than its end result. 179
176. One articulation of the Realist preference for narrow and real-world categories is
Karl N. Llewellyn, Some Realism About Realism, 44 HARV. L. REV. 1222 (1930). Holmes, in comparison,
prefered "tort" and "contract" as legal categories over "shipping" and "telegraphs."
See The Path of the Law, supra note 23, at 196. In his memoirs, Williston focused upon the
preference for narrow categories as the only idea ofthe Legal Realists that he wholly rejected.
SAMUEL WILLISTON, LIFE AND LAw 208-09, 213-14 (1940).
177. Holmes himself emphasized the disappearance of the forms of action as one ofthe
factors facilitating his kind of conceptual rearrangement ofcommon law doctrine. Other factors
were "[t]he philosophical habit ofthe day, the frequency of legislation, and the ease with
which the law may be changed to meet the opinions and wishes of the public"; these contributed
to a situation in which '"judges as well as others should openly discuss the legislative
principles upon which their decisions must always rest in the end .... THE COMMON LAW,
supra note 23, at 64.
178. See Duncan Kennedy, The Structureof Blackstone'sCommentaries, 28 BUFFALO L. REV.,
205, 231-34 (1979).
179. For Gray's criticism of Langdell, see M. HOWE, THE PROVING YEARS,supra note 111,
at 158. For Green's practical and policy-oriented approach to the law, see almost any of the
pieces in N. GREEN, supranote 158. ProximateandRemote Cause,id. at 1, is the best known, but
just as notable are Contributory Negligence on the Partofan Infant, id. at 18, 24-26, and Married
Women, id. at 31, a powerful argument which concludes: "The law of the status of women is
the last vestige of slavery." Id.at 48. For the pragmatism ofThayer and Wigmore, see almost
any passage from their treatises on the law of evidence. E.g.,JAMES BRADLEY THAYER, PRELIMINARY
TREATISE ON EVIDENCE AT THE COMMON LAwv 484-89 (1898) (introducing the "best evidence
rule"); I JOHN HENRY WIGMORE, A TREATISE ON THE SYSTEM OF EVIDENCE IN TRIALS AT
April 1989] HOLMES 825
STANFORD LA W REVIEW
It was Holmes who best articulated the view of the place of doctrinal
"logic" that these early critics of classical Langdellian legal science
shared. He can be fairly criticized for preaching better than he practiced
the subordination of conceptual elegance and the primacy of convenience
and justice.1 80 But his preachments on this subject, greatly
influential when he produced them, and surviving through the years by
virtue of the lasting power of his literary art, remain one of the most
valuable of his legacies to American law.
IV. LAW AS PREDICTION
With a sense of Holmes' instrumental approach to theorizing in
mind, we are in a better position to understand what he is best known
for by legal philosophers-his statement that "[t]he prophecies of what
the courts will do in fact, and nothing more pretentious, are what I
mean by the law."'181 This has come to be enshrined in the orthodox
jurisprudence textbooks as "the prediction theory," where it competes
with "right reason," "tradition and custom," "the command of the sovereign,"
and "the behavior of officials" to be accepted as the ultimate
definition of law.' 8 2
Holmes developed the prediction theory during the early 1870s at
the same time that he was attending the meetings of the Metaphysical
Club at which the pragmatic movement was founded. For this reason
especially, intellectual historians have taken a keen interest in the connection
between this theory and the doctrines of pragmatism. 183 They
have stressed the reductive aspects of Holmes' theory: the analysis of
statements about "the law" as predictions ofjudges' decisions, and the
analysis of the decision in terms of the remedy. These elements are
indeed consistent with pragmatic analysis, particularly of the sort Peirce
favored, but they equally follow from the application to law of the scientific
positivism of Bentham, Austin, and Mill.
Actually, the distinctively pragmatic aspect of Holmes' approach was
the practical conception of jurisprudential theory that it embodied.
When Holmes defined law as the prediction ofjudicial action, he was
theorizing in the pragmatist way, contextually and instrumentally. The
context and the purposes Holmes had in mind were those defined by a
limited but particularly important legal perspective, that of a private
COMMON LAw §§ 24-36 (1904) (introducing "general theory of relevancy"). No one can
doubt that Corbin was a critic ofLangdellianism, but his multi-volume treatise on contract law
also attests to his careful attention to the conceptual structure of the subject. See ARTHUR
LINTON CORBIN, CORBIN ON CoNTRAcTs: A COMPREHENSIVE TREATISE ON THE RULES OF CONTrAc'r
LAw (1950).
180. See texts accompanying notes 246-271, 298-310 infra.
181. The Path of the Law, supra note 23, at 173.
182. Since Holmes was at least as much concerned to direct attention to what courts "do
in fact"-that is, the remedies they grant-as he was to recast propositions oflaw in predictive
form, "the predicted remedy theory" would better capture his double emphasis. But I will
stay with the standard nomenclature.
183. See, e.g., M. FiscH, supra note 6.
826 [Vol. 41:787
April 1989]
lawyer counseling a client. Once this perspectival limitation is seen,
most of the standard objections against the prediction theory drop
away.
Holmes divided legal thought and discourse between the categories
of the theoretical and the practical in two quite different ways. First, he
distinguished between treating law practically (from the inside) as a
working body of rules, concepts, and techniques meant to guide private
and official decisions and treating it theoretically (from the outside) as
an object of historical or anthropological investigation or a stimulus to
philosophical speculation.184 Second, within the internal ("practical"
in the first sense) treatment of law, he distinguished between the practical
(everyday, relatively concrete) formulations used by the working
practitioner, and the theoretical (academic, relatively abstract) discourse
of the teacher or doctrinal commentator. The predictive analysis
of law is a theory only in the second sense; it is a relatively abstract
and general formulation, but it is practical in the sense of internal to
the law, rooted in the activity of legal practice, and conceived instrumentally
as a means for carrying on that activity. This pragmatic conception
of internal theory underlay Holmes' remarks to the effect that
theory was "not to be feared as unpractical" and that "even for practical
purposes" it "generally turns out the most important thing in the
end."
18 5
This pragmatic perspective on legal theory was not standard in
Holmes' time, and even today it is by no means commonly made explicit.
Typically, the kind of analytical jurisprudence pursued by Bentham,
Austin, and their successors has not been seen in these practical
terms, but rather as a scientific analysis of legal phenomena. Analytical
jurisprudence thus presents itself as "philosophy of law"-an external
account of legal phenomena purporting to be truth for truth's sake,
using the apparatus of another discipline, as does "history of law" or
"anthropology of law." This standard view-which treats jurisprudence
as theoretical in the first or external sense described above-is
implicit, for example, in T. E. Holland's statements that "an exposition
of existing law is obviously quite another thing from a science of law,"
and thatjurisprudence, in contrast to law as such, is the "formal science
of those relations of mankind which are generally recoguised as having
legal consequences."1 8 6
184. See, e.g., Law in Science, supra note 24, at 211; Introduction to the GeneralSurvey, supra
note 68, at 300-01.
185. The Path of the Law, supra note 23, at 200; OLIVER WENDELL HOLMES, The Theory of
Legal Interpretation (1899), in COLLECTED LEGAL PAPERS 203, 209 (1920).
186. THOMAS ERSKINE HOLLAND, THE ELEMENTS OFJURISPRUDENCE 4, 8 (4th ed. 1888).
Consider in this light Sarah Austin's recollection of her husband's remark that he " 'ought to
have been a schoolman of the twelfth century-or a German professor.' " Sarah Austin, Preface
to IJ. AUSTIN, LECTURES ON JURISPRUDENCE 1, 12 (5th ed. 1885) (2d ed. 1861). For Austin,
the laws were one thing-sovereign commands, backed by force, aimed at social utility.
The principles ofjurisprudence or legal science were quite another--discoveries, axioms and
theorems, conceptual truths about the nature of things legal. Austin presents his never-end-
HOLMES
STANFORD LAW REVIEW
In comparison, Holmes saw jurisprudence as internal to the legal
enterprise, "simply law in its most generalized part," so that "the process
[of legal thought] is one, from a lawyer's statement of a case.., up
to the final analyses and abstract universals of theoretic jurisprudence."'
18 7 He viewed his analyses ofjurisprudential concepts such as
right, duty, and law itself in the same light that he viewed his conceptual
formulations of substantive legal doctrine. They were meant to be
practical guides to the better working of the legal system.
Unlike Holland and most of the other analytical jurists, Holmes
never spoke of internal legal theory as "legal science." Rather he saw it
as recipe-making, with the proof of the pudding in the eating. Science
was not so practical; it was the grander enterprise of seeking exact
knowledge, typically for its own sake, at the hands of those who serve
"Truth, their only queen."' 188 In connection with the study of law,
Holmes reserved the honorific term "science" for the external historical
or anthropological study of law, sometimes adding the pious hope
that the utilitarian calculus might one day produce a genuinely useful
Benthamite "science of legislation."'' 8 9
Holmes proposed his prediction theory as a useful guideline for a
particular and confined heuristic purpose, not as a general scientific or
conceptual truth about the nature of law. As a scientific definitionone
that might, for instance, identify the essence of the distinctively
legal subset of social phenomena, and hence provide a theoretical basis
for the comparative study of widely varying legal systems-its inadequacies
have often been noted. The prediction theory fails to capture
the legal attitudes of officials and probably of most ordinary citizens,
attitudes that any reasonably complete sociological account of law must
consider. It leaves out the element of perceived legitimacy, which
seems a necessary aspect of any serious attempt to distinguish legal
from other constraints as part of a general scientific study of society.'90
Nor, for similar reasons, is it an adequate account of law from the perspective
of the judge.
ing cascade of definitions and subdefinitions, distinctions and subdistinctions without ever
saying for what purpose they are offered. His lecture, The Uses ofthe Study ofJurisprudence,inJ.
AUSTIN, THE PROVINCE OFJURISPRUDENCE, supranote 26, at 366-93, is a somewhat inept effort
to list certain practical side benefits for law students of a study that Austin himself obviously
regards as self-justifying.
187. The Path of the Law, supra note 23, at 195, 168. Or as Holmes noted in another
context, "jurisprudence means simply the broadest generalization of the principles and the
deepest analysis of the ideas at the bottom ofan actual system. It is the same process, carried
further, by which the law is carried out from particular cases into general rules." OLIVER
WENDELL HOLMES, The Baras a Profession (1896), in COLLECTED LEGAL PAPERS 153, 157 (1920)
[hereinafter The Bar as a Profession].
188. The Use ofLaw Schools, supranote 175, at 38.
189. See Codes, andthe Arrangementof the Law, supra note 95, at 80; LangdellReview, supra
note 139, at 234; Letters to Dr. Wu, supra note 168, at 187 (letter dated Aug. 26, 1926).
190. Modem legal positivists have taken account of this element in their analyses: Kelsen,
with his concept of the "normativity" of law, and Hart with his requirement that some
participants take an "internal" attitude. See HANS KELSEN, PURE THEORY OF LAw 4-10 (1967);
H.L.A. HART, supra note 161, at 79-88.
[Vol. 41:787
Holmes began to work toward the prediction theory in his firstjurisprudential
essay, Codes, andthe Arrangementofthe Law. 191 His project was
to develop a systematic arrangement for teaching and storing legal
materials. As a preliminary step in working out such a taxonomy, it is
natural to seek a working definition of the subject matter, a principle by
which to identify material for arrangement. An especially useful working
definition might also serve to suggest a basis for the classificatory
categories themselves.
Seeking a working definition and a principle of classification in
1870, Holmes looked first to Austin, who had defined "the province of
jurisprudence" as comprising the general commands of the sovereign.
Austin had analyzed a command as an expression of desire backed by
the threat of sanction and defined the sovereign as that determinate
body habitually obeyed without itself habitually obeying anyone else.
Austin had inherited from Bentham a focus on sanctions as the feature
distinguishing between legal and other norms; a legal right is a claim
backed by a sanction.1 92
Holmes agreed with this focus, but asked why Austin had confined
the province of jurisprudence to rules laid down by a sovereign. He
pointed out that there were other quite definite rules of conduct backed
by reliable threats of enforcement, such as rules of "positive morality,"
which differed from proper laws in Austin's sense only in that the sanctions
backing them were applied directly by public opinion, rather than
through the courts. Holmes suggested that Austin's purpose in excluding
these rules of popular morality from the province ofjurisprudence
must be a practical one, defined by the range of professional concerns.
"Courts ... give rise to lawyers, whose only concern is with such rules
as the courts enforce. Rules not enforced by them, although equally
imperative, are the study of no profession. It is on this account that the
province ofjurisprudence has to be so carefully determined."' 193
But if the professional concerns of lawyers defined the province of
law study, then Austin had been wrong to define law as the commands
of a sovereign. International law, for example, fell outside this definition,
but it was a subject, as Holmes said, "which lawyers do practically
study"; it had "rules of conduct so definite as to be written in textbooks,
and sanctioned in many cases by the certainty that a breach will
be followed by war." 194 A practical definition of law-in the sense of
treating whatever concerned lawyers in their professional practicemust
include rules such as these.
Moving from the issue of sovereignty to the question of how to
classify the rules enforced by courts, Holmes noted that Austin had fol-
191. Codes, and the Arrangement ofthe Law, supra note 95.
192. SeeJ. AuSTIN, THE PROVINCE OFJURISPRUDENCE, supra note 26, at 9-33;J. BENTHAM,
OF LAWs INGENERAL, supranote 28, at 1, 18-19.
193. Codes, and the Arrangement ofthe Law, supranote 95, at 81.
194. Id.
HOLMES 829April 1989]
STANFORD LAW REVIEW
lowed the approach of the Roman lawyers, arranging legal doctrines
according to the rights they created in claimants--dividing them first
into the broad categories of personal and property rights, and further
subdividing from there. Holmes questioned whether classification on
the basis of legal rights was consistent with Austin's emphasis upon the
sanction as the distinguishing mark of the legal norm. Since what gave
a rule legal character was that it was backed by a sanction, and sanctions
operated directly on defendants, Holmes thought that a sanction-based
legal taxonomy should presumably classify rules in terms of duties (the
liabilities of defendants) rather than rights (the claims of those benefiting
from those liabilities.)' 9 5
Within two years of writing Codes, and the Arrangement of the Law,
Holmes stated the prediction theory in the course of the jurisprudence
lectures he gave at the Harvard Law School, a brief summary ofwhich
he published as a book notice in 1872.196 Now he made his pragmatic
orientation explicit; the defining feature of "lawyers' law" was the fact
that it was "enforced by the procedure of the courts, andtherefore[was]of
practicalimportance to lawyers."'197 His theory was to be the theory of a
practice, the practice of law:
The only question for the lawyer is, how will the judges act? Any motive
for their action, be it constitution, statute, custom, or precedent,
which can be relied upon as likely in the generality ofcases to prevail, is
worthy of consideration as one of the sources of law, in a treatise on
jurisprudence.1
9 8
The professional perspective led Holmes to think in terms of prediction.
For the lawyer counseling a client, law was whatever general
factors might motivate ajudge.' 99 That perspective also produced another
crucial modification of Austin's analysis, replacing the sanction
with the more general concept of "judicial action," or remedy. Austin
had said that every proper law was a command, creating a duty; a command
was an expression of a wish backed by a sanction, or threat of
unpleasant consequence. But in this formulation, Holmes argued, Austin
had "looked at the law too much as a criminal lawyer." 200 Taxes are
levied by law, are of concern to lawyers, and are unpleasant consequences
of taxed conduct, but no one would say that a "protective tariff
on iron ... create[s] a duty not to bring it into the country." Rather,
the tax statute grants the person subject to it "an option at a certain
195. Id. at 80. For Holmes' later thoughts on this issue, see The Arrangement ofthe Lau:
Privity, supra note 164, at 95. See also THE COMMON LAW, supra note 23, at 173; The Path ofthe
Law, supra note 23, at 168-69, 174-75.
196. Holmes, Book Notices, in FORMATIVE EssAys, supra note 7, at 91 (reprinting Book
Notice, 6 AM. L. REV. 723 (1872)) [hereinafter Notice:JurisprudentialLectures].
197. Id. at 91-92 (emphasis added).
198. Idi at 92.
199. Holmes distinguished "general" factors from such "singular motives" as "the blandishments
of the emperor's wife"; these are not lawyers' law, Holmes thought, only because
their singularity renders them useless as a "ground of prediction." Id. at 92.
200. Id. at 93.
[Vol. 41:787
April 1989]
price." The concept of duty only really applies to those actions that it is
the legislature's "absolute wish" to prevent.201
Having made his point with the obvious case of the tax, Holmes
went on to show its much more significant but less obvious extension to
the common law's main civil remedy: compensatory money damages.
In the normal case, the law only charges a defendant a price for his
action, measured by the actual cost imposed on the plaintiff. Since they
create merely "[l]iability to pay the fair price or value of an enjoyment,"
civil damages are "not a penalty. ' 20 2 Following the analysis developed
in Codes, andthe Arrangementof the Law, Holmes concluded that an award
of only compensatory damages does not rest on a breach of a legal duty
in any meaningful sense. The basic rules of private law thus do not fit
Austin's definition because they create options rather than laying down
commands. But nevertheless they are law for the practical reason that
they are "applied by the courts and must therefore be known by professional
men."'203
The analysis of civil law in terms of remedy and liability rather than
sanction and duty led Holmes directly to one of his central insights:
Ordinary private law, rather than enforcing the principles of corrective
justice that establish moral rights and duties among individuals, is primarily
a device for distributing risk according to the variable demands
of public policy. If the civil remedy of compensatory damages is not a
penalty, then, contrary to what Austin thought (and contrary to the
main current of nineteenth-century case law and commentary), justice
does not require restricting civil liability to cases involving a breach of
moral right or duty. Liability without fault simply charges the defendant
the price of his activity, and might be imposed for reasons of
"[plublic policy" alone. For instance, "it may be thought that titles
should be protected against even innocent conversion," or that persons
should be compensated "for injuries from extra-hazardous sources, in
which case negligence is not an element." 20 4 Generally, in cases of ordinary
civil liability "[t]he object of the law is to accomplish an external
result," and legal rules imposing civil liability, like taxes and subsidies,
can vary with public needs and demands. As an example, Holmes
noted that strict liability for straying cattle had been "very properly
abandoned in some of the western states, where the enclosure of their
vast prairies is necessarily for a long time out of the question. ' 205
The literature of legal theory contains few performances of more
201. Id. at 92.
202. Id at 93.
203. Id at 93.
204. Id
205. Id. Later, Holmes claimed that general strict liability in tort should be rejected as
"offending the sense ofjustice," and unconvincingly tried to defend the consistency of that
argument with his central point that civil liability involving only compensatory damages
should be allocated on grounds of policy not restrained by notions of fair punishment. See
THE COMMON LaW, supra note 23, at 78, 118.
HOLMES
STANFORD LA W REVIEW
concentrated brilliance than the thirty-one-year-old Holmes' "book notice"
of scarcely a thousand words.20 6 His formulations represented a
breakthrough, the implications of which would not be fully absorbed
for several generations. At the outset of his career as a legal theorist,
he planted the germ of the whole modem analysis of tort and contract
in terms of risk allocation, later embodied in such notions as loss
spreading, cost internalization, and efficient breach. He went on during
the 1870s to develop further the policy conception of the common
law, though the results of his work must be sought amidst cryptic and
dubiously relevant historical and anthropological learning in The Common
Law.
20 7
Later, Holmes learned better to separate his scientific from his doctrinal
interests, and he finally came to formulate his mature jurisprudential
views, most fully articulated in 1897 in The Pathof the Law.208 In
that speech he gave both the prediction theory and its associated public
policy conception of civil liability their most familiar and influential
statement. The occasion was an address to law students, and from the
beginning Holmes stressed more forcefully than ever before the practical
professional perspective out of which his theory arose. He began by
noting that "[w]hen we study law we are not studying a mystery but a
well-knownprofession," or, as he put it later, a "business." 20 9 The two main
aspects of this business are advocacy ("to appear before judges") and
counseling ("to advise people in such a way as to keep them out of
court"). Law is a profession because people, knowing that "the command
of the public force is intrusted to... judges in certain cases," are
willing to pay for the advice of those who make "[t]he object of [their]
study.., the prediction of the incidence of the public force through the
instrumentality of the courts."'210
One might fairly criticize this account of law practice, centered on
litigation and remedies, as too narrow, both normatively and descriptively.
Good lawyers should frame advice to clients with more in mind
than what remedial "price" will be charged if the clients are brought
into court. And lawyers do in fact advise clients, conduct negotiations,
and design transactions and legal structures with more in mind than the
outcome of potential litigation. This was true in Holmes' time, and is
even more true today. And yet even now practitioners often speak of
aspects of their work not ultimately referable to the possibility of litigation
as "extra-legal." However much lawyers need to understand ethics,
commerce, technology, politics, public relations, and psychology,
still they have no licensed monopoly as experts in any of these fields.
206. The essay contains yet another significant element, a trenchant criticism of Austin's
concept of sovereignty. Notice:JurisprudenceLectures, supra note 196, at 91.
207. For discussion of the contradictions and confusions in The Common Law, see
Gordon, supra note 3; see also text accompanying notes 246-271 infra.
208. The Path of the Law, supra note 23.
209. Id. at 167, 171 (emphasis added).
210. Id. at 167.
[Vol. 41:787
But lawyers alone are permitted to argue before courts and to advise
clients about what courts are likely to do; in this sense, litigation does
provide the distinctive and, in a way, the defining focus of their work.
Whatever its faults, Holmes' account of the counseling lawyer's
work bounds the claims of the prediction theory. For one who proposes
to study "the law as a business with well understood limits,"
Holmes says it is heuristically useful to adopt the viewpoint of a "bad
man" who cares only for "material consequences. 2 1 1
Not that good
lawyers must be themselves bad men; indeed he thought the practice of
law "tends to make good citizens and good men."2 12 Rather, the bad
man's perspective focuses attention on the operative aspect of the law,
the remedy-"the law and nothing else" as Holmes put it.213 He insists
on the sharp distinction between law and morals embodied in the bad
man's perspective "with reference to a single end, that of learning and
understanding the law."'214
Holmes applied the "bad man" or remedial perspective to generalize
his earlier critique of the concept of duty in civil cases. The official
rhetoric of the law claims to attach liability to violations of legal duty:
wrongs (torts) and breaches (contracts). But when we wash this rhetoric
in the "cynical acid" provided by the insight that the law acts as law
only through its remedies, the "duty" element vanishes.2 15 Because
the only remedy normally available for an ordinary tort or contractual
breach is compensatory money damages, the law really only charges the
tort or contract defendant the priceof his conduct and no more. "If you
commit a tort, you are liable to pay a compensatory sum. Ifyou commit
a contract, you are liable to pay a compensatory sum unless the promised
event comes to pass, and that is all the difference. ' 2 16
Holmes here suggests a double analogy. First, he assimilates normal
tort and contract liability into each other by means of the unusual
locution "commit a contract." Second, he compares both of these ordinary
forms of civil liability to analogous liabilities that involve no
"fault" or "breach of duty" as ordinarily understood. For an example
of a tort, Holmes takes statutes that allow a mill owner to flood upstream
neighbors' property on condition that they be compensated for
the loss in value.217 From the bad man's remedy-centered perspective,
tort liability in trespass is like the duty to compensate for lawful flooding
under these Mill Acts. And contractual liabilities are all, in the remedial
sense, like an insurer's obligation to indemnify the insured
against covered loss, a legal requirement of compensatory payment
arising without any fault or "breach." In the more typical tort and con-
211. Id. at 171.
212. Id. at 170.
213. Id. at 171.
214. Id. at 170.
215. Id. at 174.
216. Id at 175.
217. Id at 173-74.
HOLMES 833April 1989]
STANFORD LAW REVIEW
tract case, in which a compensatory damage award is predicated upon a
supposed "breach of duty," the remedy isjust the same as in these "nofault"
cases-payment of a money amount measured by actual loss.
Holmes' point is that from the "purely legal" (that is, remedial)
point of view, the language of duty and breach is misleading in the
standard instances of their use. Where we want to treat an act as a
genuine legal wrong, and so express an absolute legal wish that it not
be done, we have appropriate remedies: criminal penalties, punitive
damages, or injunctions. Where we do not use those remedies, we
show ourselves not to be serious about treating the act as legally wrong.
Speaking in its true language of remedies, the law in such cases simply
grants the supposed duty-bearer an option either to discharge the supposed
duty or pay for the actual loss caused by not doing so. And it is
the job of counsel to translate for the client the actual message of the
law's working remedial language.
Analyzing private law in this way opens many possibilities, some of
which Holmes noted in a remarkable passage concisely anticipating the
turn toward enterprise liability that accident law would take as his riskallocating
conception of civil liability gradually took hold:
[T]he torts with which our courts are kept busy to-day are mainly the
incidents ofcertain well known businesses.... The liability for them is
estimated, and sooner or later goes into the price paid by the public.
The public really pays the damages, and the question of liability, if
pressed far enough, is really the question how far it is desirable that the
public should insure the safety of those whose work it uses. It might be
said that in such cases the chance of a jury finding for a defendant is
merely a chance, once in a while rather arbitrarily interrupting the regular
course ofrecovery, most likely in the case ofan unusually conscientious
plaintiff, and therefore better done away with.218
The analysis to this point has focused on the remedial aspect of
Holmes' theory; what of the prediction aspect? Holmes tells us that it is
useful to look at legal propositions as predictions ofjudicial action, distinguishing
them, for example, from descriptive statements about legal
rights or duties, or as commands directed toward citizens. This aspect
of the theory has been repeatedly assaulted for failing to guide the
judge, who cannot be helped by being told that law is what she or he
218. Id at 183. With this passage, Holmes abandoned his earlier defense of the fault
system as required by the "sense ofjustice." See note 205 supra. But in another passage in The
Path of the Law, Holmes again strayed from his own teaching on duties. In describing a legal
duty as "nothing but a prediction that if a man does or omits certain things he will be made to
suffer in this or that way by judgment of the court," The Path ofthe Law, supranote 23, at 169,
he contradicted his position that the award of ordinary compensatory damages does not presuppose
a breach of legal duty. Holmes returned to his true doctrine later in the lecture when
he said that private law rules impose "duties in an intelligible sense" only when the injunctive
remedy was available, and recommended against speaking of ordinary civil liabilities in the
"inappropriate terms" of duties and rights, id at 175-76; cf.THE COMMON LAw, supranote 23,
at 173.
[Vol. 41:787
likely will decide.2 19
But Holmes' limited purpose is explicit and clearly defined; he is
offering a perspective on the law for those "who want to use it as the
instrument of their business," where that business is "to appear before
judges, or to advise people in such a way as to keep them out of
court." 220
This is essentially the perspective of the practitioner who
counsels private clients-certainly the predominant professional work
contemplated by the law students Holmes was addressing. Without
much critical inquiry into the social role of the practicing bar, Holmes
accepted it; moreover he thought it the proper perspective both for
legal education and for much legal commentary.
Holmes was clear that the counselor's perspective is not the only
one from which to view the law. We know he believed that the law
could be viewed externally and impractically, as an object of study and
speculation, a "great anthropological document," and from this point
of view the history of the law "is the history of the moral development
of the race." 221 There are other practical and internal points of view
toward the law, as well, perspectives which dispense with the counselor's
(and bad man's) clear-cut "distinction between morality and
law." Holmes drew this distinction "with reference to a single end, that
of learning and understanding the law."' 222 From a "wider point of
view ...the distinction between law and morals becomes of secondary
or no importance"-whether that is the point of view of the scholar, the
speculative thinker, or for that matter the law-abiding citizen, a point of
view Holmes adopted himself in a later speech when he condemned
"the unrest that seems to wonder vaguely whether law and order
pay."
223
Of course Holmes was quite aware that in applying the law a
judge-especially a judge of a higher court-could not operate solely
on the basis of the predictive attitude. But the predictive perspective
nevertheless was one the judge should have in mind, because it was the
natural attitude of legal counselors, on whose advice ordinary citizens
had to depend. The counselor expects to be able to advise clients on
the basis of precedents. For that reason, Holmes did not think that
judges "should undertake to renovate the law" wholesale.224
At the same time, he also believed that the judges of his time sometimes
overexerted themselves in the quest for certainty; "certainty generally
is illusion, and repose is not the destiny of man."'225 In the many
doubtful cases that came before them, judges were called upon to "ex-
219. See, e.g., Rogat, supra note 2, at 248-49.
220. The Path of the Law, supra note 23, at 169, 167.
221. Law in Science, supranote 24, at 212; The Pathof the Law, supra note 23, at 170.
222. The Path of the Law, supra note 23, at 170.
223. Id. at 170; OLIVER WENDELL HOLMES, Law andthe Court (1913), in COLLECTED LEGAL
PAPERS 291, 292 (1920) [hereinafter Law and the Court].
224. Law in Science, supra note 24, at 239.
225. The Path of the Law, supra note 23, at 181.
April 19891 HOLMES
STANFORD LAW REVIEW
ercise the sovereign prerogative of choice."' 226 And Holmes criticized
his contemporaries on the bench for failing "adequately to recognize
their duty of weighing considerations of social advantage. ' 227 In context,
it could hardly be more clear that Holmes never intended his
"prediction theory" as a conception of law sufficient for a judge.228
Holmes did not put the strictlypredictive aspect of his theory to work
in any very significant way. As an analytical jurist his main contributions
were his stress on remedies as the working instruments of the law,
and, most originally, his point that not all remedies were duty-creating
sanctions. He did not have to define law in predictive terms to make
these points.229 But the focus on prediction did center attention on the
characteristic planning role of lawyers, and sharpened the standard jurisprudential
discussions of the virtues of certainty and predictability.
The larger importance of the predictive approach came later, when the
Legal Realists took up the divergence between book law and the working
law revealed by the effort to predict official actions. Holmes' formulation
thus laid the conceptual basis for much later work.
Holmes was the first writer to base a jurisprudential theory on a
perspective derived from the practice of law. In so doing, he was acting
as a pragmatist, developing theory that was situated in and reflective
upon practice, and that was meant to be evaluated as an instrument for
serving human purposes. In criticism of Holmes' view, it is fair to say
that he accepted without much critical evaluation a simple positivist
conception of the bar's counseling role. Still, the view of law that
Holmes derived from that doubtless incomplete conception served to
bring the study of remedies to the center of legal scholarship. And the
explicit adoption of the practical perspective on jurisprudential theory
was itself a great advance. John Noonan has written that he "cannot
understand those who write on law asking abstractly, 'What is law?'
How can that question be answered without asking another-'Why do
you want to know?' "230 Holmes, unlike all his predecessors and most
of his successors among legal theorists, explicitly embedded his bestknown
answer to the first question within an answer to the second one.
V. HOLMES DIVIDED: THE SPECTATOR AT THE STORM CENTER
At this point, we can see the main outlines of Holmes' legal pragmatism:
his synthesis of historical ("situated") and analytical ("instrumen-
226. Law in Science, supranote 24, at 239.
227. The Path ofthe Law, supra note 23, at 184.
228. One might, though, quite properly criticize Holmes for not raising the question
why the counselor interpreting the law to a client had no quasi-judicial duty (as an "officer of
the court") to consider the public welfare in shaping that interpretation. I owe this point to
my colleague Bill Simon, who elaborates just such a duty, defending it as a natural extension
to the bar of the Holmesian approach to the judicial role, in William H. Simon, EthicalDiscretion
in Lawyering, 101 HARv. L. REv. 1083 (1988).
229. SeeJOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 323 (1980).
230. JOHN T. NOONAN, JR., PERSONS AND MASKS OF THE LAW ix (1976).
[Vol. 41:787
April 1989]
tal") jurisprudence; his practical approach to legal "logic," or doctrinal
conceptualism; and his account of legal reasoning, from the point of
view of the counseling practitioner, as effort to predict what relief a
judge will grant to a client. In presenting the story this far, I have
sought to develop a general version of legal pragmatism, using Holmes
as my example. Now I shift my focus more to the particularities and
peculiarities of Holmes' thought and work. But even here, the Holmesian
paradoxes and contradictions bear on the implications of pragmatism
for law.
During Holmes' last years, his influential younger admirers promoted
his reputation to truly Olympian heights; a prototypical encomium
was Cardozo's characterization of the old justice as "the
philosopher and the seer, the greatest of our age in the domain ofjurisprudence,
and one of the greatest of the ages." 23' The inevitable reaction
against such extravagances-Holmes' "elevat[ion] . . . from deity
to mortality"232 at the hands of less starry-eyed critics-has motivated
much of the best subsequent commentary on his work.2 33
Having argued
that Holmes' jurisprudence is more coherent than some of these
critical commentators have thought, I now turn to consider a genuine
Holmesian contradiction, one that pervasively flawed his work asjudge
and commentator, one that must be considered in assessing his relation
to pragmatism.
While Dewey defined pragmatism by its contrast to what he called
the "spectator theory of knowledge," 234 Holmes was, as Yosal Rogat
argued in one of the best of the revisionist studies, fundamentally a
spectator in his approach to the law.23 5
But he was a spectator who
chose to work at "the storm centre," rather than to devote his energies
to the kind of external study of law that might have benefited from his
unusual capacity for detachment.236 As Robert Gordon has noted in
another fine critical study, Holmes supplied the slogans for the movement
that emphasized the historically conditioned and socially embedded
nature of legal institutions and ideas, but in devoting his working
efforts to doctrinal commentary and adjudication, left the serious work
in legal history and social science during his lifetime to others, such as
Sir Henry Maine, F.W. Maitland, and Max Weber.237 When we combine
Rogat's point with Gordon's, we can see the practical contradiction
within which Holmes was caught. He proceeded at perspectival
231. Cardozo, supra note 7, at 5; cf.J. FRANK, supranote 1, at 253-60; Harold Laski, Mr.
Justice Holmes, in MR. JUSTICE HOLMES, supra note 1, at 138.
232. Walton H. Hamilton, On DatingMr.JusticeHolmes, 9 U. CHI. L. REV. 1 (1941).
233. For the fluctuations in Holmes' reputation, see G. Edward White, The Rise andFall
ofJustice Holmes, 39 U. CHI. L. REV. 51 (1971).
234. J. DEwEY, THE QUEST FOR CERTAINTY, supra note 39, at 23.
235. Rogat, supra note 2. Rogat forcefully denies any important similarities between
Holmes and Dewey. Id at 251 n.194.
236. "We are very quiet there [at the Supreme Court], but it is the quiet of a storm
centre." Law and the Court, supranote 223, at 292.
237. Gordon, supra note 3, at 746.
HOLMES
STANFORD LA W REVIEW
cross-purposes; though drawn to the law by the external viewpoint of
the observer, he worked on it from the internal viewpoint of the
practitioner.
Holmes himself often noted the distinction between the perspectives
of the "witness" and the "actor," 238 and he organized his 1899
lecture Law in Science and Science in Law around the difference between
these two viewpoints.239 Seen from the external perspective, law was
an object of study or contemplation, "a great anthropological document,"
providing raw material for the investigation of "the morphology
and transformation of human ideas." This kind of investigation could
be "science in the strictest sense," to be "pursued for the pleasure of
the pursuit and of its fruits, as an end in itself."'2 40 From the internal
perspective, on the other hand, law was an instrument of government,
its study a practical enterprise meant to guide the man who must "make
up [his] mind.., upon a living question, for purposes of action." 24 1 In
this latter aspect, law study could not be scientific until the distant day
when its postulates were established in Benthamite fashion "upon accurately
measured social desires. ' 242 In the meantime, practical law
study would be mainly craft rather than science, eclectically combining
history, doctrinal clarification, and-most important of all-the prudential
legislative art required to keep the law in its application congruent
with the demands of the community. 243
In the abstract, Holmes' recognition of distinct and even incommensurate
internal and external perspectives on law is neither inconsistent
nor unpragmatic. But in fact Holmes' attitudes toward the two perspectives
reflected an unresolved conflict, as his tortured rhetoric at the
point of transition between the two parts of Law in Science andScience in
Law reveals. The first part concludes with a characteristic hymn of
praise to the life of the mind; Holmes tells us that he knows no "more
exalted form of life than that of [the] great abstract thinker" who pursues
knowledge "simply to feed the deepest hunger and to use the
greatest gifts of his soul."' 244
But he immediately qualifies this judg-
238. For "witness" and "actor," see OLIVER WENDELL HOLMES, The Law (1885), inCOLLECTED
LEGAL PAPERS, 25, 26 (1920) [hereinafter The Law]. See alsoLangdellReview, supranote
139, at 234; The Path of the Law, supra note 23, at 201-02. Of special interest on this point is
Introductionto the GeneralSurvey, supra note 68, at 300-01, where Holmes divided the world
between "external" and "internal" types, the latter ofwhom think "that ideas are more interesting
than things." It was clear that he saw himself as "internal." See, e.g., I HOLMES-LASKI
LErTERS, supra note 10, at 128 (letter datedJan. 16, 1918). Holmes' terminology may confuse;
in the context of the type ofperson, the internal person (the intellectual) is drawn to theory and
the external to practice. In the context ofperspectiveon law, however, the external perspective
is theoretical and the internal practical.
239. Law in Science, supra note 24.
240. Id. at 211-12.
241. Id. at 224.
242. Id. at 225-26.
243. Id. at 225.
244. Id. at 224. Statements similar in content and (mostly) in dithyrambic tone could be
multiplied almost endlessly. See, e.g., OLIVER WENDELL HOLMES, The Profession of the Law
(1886), in COLLECTED LEGAL PAPERS, 29, 30 (1920) [hereinafter The Professionofthe Law];Ou[Vol.
41:787838
April 1989]
ment so sharply as in effect to contradict it: "But after all the place for
a man who is complete in all his powers is in the fight." The "great
abstract thinker" of the previous paragraph now becomes, less flatteringly,
"the professor, the man of letters" who "gives up one-half of life
that his protected talent may grow and flower in peace." 245 The witness'
"exalted form of life" suddenly is portrayed as incomplete,
stunted, and effete, by comparison to the actor's role.
This ambivalence about the roles of actor and witness characterized
Holmes' entire career in the law. Rogat has persuasively made the case
for this claim with respect to hisjudicial work. Similarly, in his role as a
legal thinker, my main concern here, Holmes was likewise caught between
these external and internal perspectives. In his scholarship, he
chose to write as a commentator or doctrinalist, which for him meant
treating the law internally, as a working system of guidance for practical
decision; legal history and anthropology had a limited role in this kind
of work.246 Yet he pursued this course as a man who was attracted to
law mainly by its interest as a spectacle and an object of contemplation.
As a result The Common Law is, as Gordon says, "a book at war with
itself."247 So distorting is Holmes' perspectival wobble that the work,
for all its nominal status as a classic, was scarcely understood and perhaps
rarely read as a whole until Mark Howe devoted a masterful volume
to unraveling its complexities and excavating its underpinnings in
Holmes' reading and thinking during the 1870s.248
Howe's account allows us to trace the fault lines in The Common Law
back to their origins. Holmes' first interest in the law was entirely external.
As a young Civil War veteran his passions were science, poetry,
and philosophy; his companions at the time were the young writers and
intellectuals of Boston and Cambridge, William and Henry James,
Chauncy Wright, and Nicholas St. John Green. He came to the law in
VER WENDELL HOLMES, Brown University-Commencement1897, in id. at 164, 165-66 [hereinafter
Brown Commencement]; The Path of the Law, supra note 23, at 202; OLIVER WENDELL HOLMES,
Address of ChiefJusticeHolmes (1902), in COLLECTED LEGAL PAPERS at 272, 276-77 (1920) [hereinafter
NorthwesternAddress]; OLIVER WENDELL HOLMES, Bracton de Legibuset ConstuetudinibusAngliae
(1915), in id. at 308, 309; OLIVER WENDELL HOLMES, The Use of Colleges (1891), in
OCCASIONAL SPEECHES, supra note 78, at 62, 63 [hereinafter The Use of Colleges]; OLIVER WENDELL
HOLMES, A ProvisionalAdieu (1902), in id. at 150, 152 [hereinafter A ProvisionalAdieu]; I
HOLMES-LASKi LETrERS, supranote 10, at 374 (letter dated Oct. 9, 1921).
245. Law in Science, supra note 24, at 224; see also OLIVER WENDELL HOLMES, George Otis
Shattuck (1897), in OCCASIONAL SPEECHES, supranote 78, at 92, 95 [hereinafter GeorgeOtisShattuck];
Letter from Holmes to Felix Frankfurter (July 15, 1913), quoted in M. HOWE, THE PROVING
YEARS, supra note I 11, at 282.
246. For the "internal" juristic aims of The Common Law, see THE COMMON LAW, supra
note 23, at 173; see also Letter from Holmes to A.G. Sedgwick (Juli 12, 1879), quoted in
Gordon, supra note 3, at 719; Letter from Holmes to James Bryce (Aug. 1879), quoted in M.
HOWE, THE PROVING YEARS, supranote 111, at 25; Letter from Holmes to John Norton Pomeroy
(Aug. 8, 1881), quoted in id, at 137. On the limited relevance of historical material in The
Common Law, see Gordon, supranote 3, at 730-33.
247. Gordon, supranote 3, at 720-21.
248. M. HOWE, THE PROVING YEARS, supra note 111; see also Howe, Introduction to THE
COMMON LAW, supranote 23, at xi, xx.
HOLMES
STANFORD LA W REVIEW
1865 not out of any sense of professional calling, but because he was,
as he put it, "kicked," "thrown," and "shoved" into it.249 At first he
doubted whether this "ragbag of details" was "worthy of the interest of
an intelligent man."'250 But he soon reconciled himself, not because of
any attractions from the profession's practical side, but on the ground
that "law . . . may be approached in the interests of science" and
"opens a way to philosophy.' 25
1
What did Holmes count as "science" or "philosophy"? We know
that he identified as scientific the work of both the German academic
historians of ancient Roman law and the mostly American historians
who were uncovering the English law's Teutonic roots.25 2 What gave
this work the status of science was its objectivity and its detailed reliance
on evidence drawn from original sources. "All scientific study
nowadays is microscopic," Holmes wrote, "even the study of history
. ... "253 Holmes likewise regarded as true "scientists" the anthropologists,
Tylor and others, who were during this period founding the
scholarly study of primitive society and law.254
Early on, Holmes concluded that the enterprise of the jurist, who
works "from within" the law to "make known [its] content," was "not a
science. ' 255 Yet he aspired to the scientific (external) study of law, and
in the 1870s he did extensive secondary reading and some original research
in legal history and anthropology. At the same time, he committed
himself to the very kind of internal juristic work to which he had
denied scientific status. Unable to leave the fruits of his "scientific"
labors unused, he distributed throughout The Common Law little essays
and asides on primitive social arrangements and Roman and ancient
German and English law; these asides, scattered among policy arguments
and doctrinal reclassifications, contribute substantially to what
Gordon rightly calls the work's "recklessly miscellaneous" quality.256
The first chapter, for example, is an extended study of the phenomenon
of animism in primitive law; how it bears on Holmes' primary doc-
249. Letter from Holmes to Mrs. John C. Gray (Apr. 30, 1905), quoted in M. HOWE, THE
SHAPING YEARS, supra note 26, at 176; Letters to Dr. Wu, supra note 168, at 167 (letter dated
Sept. 20, 1923); 1 HOLMES-LASKi LErERS, supranote 10, at 205 (letter dated May 18, 1919).
250. Introduction to the GeneralSurvey, supra note 68, at 301; see also I HOLMES-LAsEi LErTERS,
supranote 10, at 430 (letter dated June 1, 1922); A ProvisionalAdieu, supra note 244, at
152.
251. Letter from Holmes to William James (Apr. 19, 1868), quoted in 1 RALPH BARTON
PERRY, THE THOUGHT AND CHARACTER OF WILLIAM JAMES 510 (1935); Letter from Holmes to
Ralph Waldo Emerson (Apr. 16, 1876), quotedin M. HOWE, THE SHAPING YEARS, supranote 26,
at 203; see also I HOLMES-POLLOCK LErERS, supra note 8, at 16 (letter dated Mar. 5, 1881).
252. See The Use ofLaw Schools, supra note 175, at 41-42; see also M. HOWE, THE PROVING
YEARS, supra note 111, at 142-48, 153.
253. Book Notice, I I AM. L. REV. 327 (1877) (for attribution ofthis anonymous review
to Holmes, see M. HOWE, THE PROVING YEARS, supra note 106, at 148) [hereinafter Book
Notice].
254. See M. HOWE, THE PROVING YEARS, supra note 111, at 149-50.
255. THE COMMON LAW, supra note 23, at 173; Codes, and the Arrangement ofthe Law, supra
note 95, at 80, see also LangdellReview, supra note 138, at 234.
256. Gordon, supra note 3, at 719.
[Vol. 41:787
April 19891
trinal concems is, as Howe gently remarks, not "wholly clear."'25 7 And
Holmes' fascination with the antiquities of English legal history led him
to give them too much doctrinal weight, as A.V. Dicey pointed out in
his contemporary review of the book.2 58
Holmes' conceptual and expository juristic focus in The Common Law
was blurred not only by his interest in "science," but also by his ambition
to do "philosophy." For Holmes, philosophy encompassed all
forms of broad and speculative thought that claimed intrinsic intellectual
interest. Above all it included what we might call social theorywork
involving broad generalizations about human society that rested
loosely on scholarly findings, but which went beyond them to guide
further research and speculation.259 Thus he wrote during the 1870s
that the "scientific" researches of the new legal historians "prepare the
ground for a true philosophic history of the law." 260 The paradigm of
the kind of philosophy Holmes had in mind was Sir Henry Maine's Ancient
Law,26l a work too speculative to count as scientific history or anthropology,
but which, as Holmes later said, "fe[d] the philosophic
passion. '2 62 Maine contributed no original research, but rather a set of
fruitful social-theoretic generalizations about the patriarchal origins of
government, the communal roots of property, and the movement of
progressive societies from status to contract.
The Common Law in its overall thrust shows Holmes' desire to emulate
Maine's kind of "philosophy," just as its many "asides" reflect the
"science" of the historians and anthropologists.2 63
The book's central
doctrinal thesis is that contemporary standards of civil liability are (and
should be) typically "objective," determined by collective social expectations,
whereas their verbal formulations often misleadingly portray
them as "subjective" by making reference to a defendant's individual
capacities or state of mind. But Holmes does not present his "objective
theory" as a normative doctrinal thesis; rather he offers it as a historical
generalization, one he obviously thinks is comparable to Maine's hy-
257. M. HOWE, THE PROVING YEARS, supranote 111, at 163.
258. As Dicey noted, Holmes' "attempt to unite the historical with the analytical
method," led to an "uncertainty of aim" between stating doctrines "in conformity with the
decisions to be found in the year-books" and "in conformity with the dictates of right reason,
or expediency. The plain truth is that our author is too much an apologist." Dicey Review,
supranote 120, at 713-14.
259. In 1913 Holmes wrote that works of legal history "provide philosophical food to
philosophical minds." Introduction to the GeneralSurvey, supranote 68, at 300. And as he later
wrote to Laski, "I regard philosophy as simply the broader generalizations of thought that
can't lift itself by the slack of its own breeches." I HoUAIES-LAsxi LETTERS, supra note 10, at
706 (letter dated Feb. 7, 1925).
260. Book Notice, supranote 253, at 331.
261. H. MAINE, ANCIENT LAW, supra note 88.
262. 1 HOLMES-LASKI LETTERS, supra note 10, at 429 (letter dated June 1, 1922). For
Holmes' general assessment of Maine, see HOLMES-POLLOCK LETrERS, supranote 8, at 31 (letter
dated Mar. 4, 1888).
263. Howe points out that the structure of The Common Law corresponds to that of Andent
Law, M. HowE, THE PROVING YEARs, supranote 111, at 149 n.31, suggesting that Holmes
was more influenced by Maine than he liked to admit.
HOLMES
STANFORD LA W REVIEW
potheses of the law's tendency to move from status to contract, or from
communal to individual ownership. As a historical thesis, Holmes' theory
is wholly unconvincing, and his formulation of the external standard
in these terms has led many readers to take The Common Law as a
work of philosophical history or social theory comparable in purpose to
Ancient Law.
2 64
Though Holmes generally considered philosophy external to the actual
discourse of law, he gave internal or practical legal writing the accolade
"philosophical" when it had, or aspired to, intrinsic intellectual
interest along with its practical classificatory and decision-guiding
use.265 And he found ideas intrinsically interesting only when they
weregeneral. He "hated] facts" and thought the "chief end ofman is to
form general propositions," to which he always added the twist-meant
to stress that he valued his generalities as ends in themselves, not for
their utility-that "no general proposition is worth a damn." 266 The
philosophy that consoled him as he lay at Ball's Bluff, thinking himself
mortally wounded, was a faith in generalideas: "good & universal(orgeneral
law) are synonymous terms in the universe. ' 267 And as he often
said in later years, what differentiated gossip from philosophy for him
was only that the former treated a fact "as if it really stood apart" while
the latter made it "a part of the whole." 268
Holmes' conscious or unconscious striving to make his internal legal
discourse "philosophical" led him to his most characteristic vice as a
doctrinal writer-a pervasive and excessive generality. As John Chipman
Gray observed, "Mr. H. carries his theories of simplification too
far: there is too much tendency on his part to make cases come under
264. See, e.g., id. at 212-13 (quoting FREDERICK POLLOCK, PRINCIPLES OF CONTRACT Xi
(1881)).
265. Thus Holmes wrote that an "interest in philosophical speculation" lay behind the
renewed interest shown at Langdell's Harvard in "analyzing and generalizing the rules of law
and the grounds on which they stand." The Use of Law Schools, supra note 175, at 42. And he
urged that the general categorical arrangement of legal doctrine should be at the same time
"philosophical" and subject to "compromises with practical convenience." Codes, and the Arrangement
ofthe Law, supranote 95, at 80; see also The Theory of Torts,supranote 158, at 119. And
if in the midst of practical commentary, there arose the chance to make a pretty, though useless,
point, so much the better; thus Holmes admitted to Pollock that "in practice it does not
much matter" whether his own objective or an opponent's constrained subjective theory of
interpretation was adopted, but added that "theory is none the less interesting when it is
outside the limits of possible proof or refutation .... I HOLMES-POLLOCK LETTERs, supra
note 8, at 95, 96 (letter datedJuly 16, 1899).
266. 1 HOLMES-LAsKI LMrrERS, supra note 10, at 205 (letter dated May 18, 1919); 2
HOLMES-POLLOCK LETrERS, supra note 8, at 13 (letter dated May 26, 1919); see also OLIVER
WENDELL HOLMES, Dr.S. WeirMitchell (1900), in OCCASIONAL SPEECHES, supranote 78, at 119,
121 [hereinafter Dr. Mitchell]; Holmes-Cohen Correspondence,supra note 31, at 314 (letter dated
Apr. 12, 1915).
267. OLIVER WENDELL HOLMES,JR., TOUCHED WITH FIRE: CIVIL WAR L=-mRS AND DIARY
OF OLIVER WENDELL HOLMES, JR., 1861-1864, at 28 (M. Howe ed. 1946) [hereinafter
TOUCHED WITH FIRE].
268. Brown Commencement, supra note 244, at 16; see also OLIVER WENDELL HOLMES, Remarks
to the Essex Bar, in OCCASIONAL SPEECHES, supra note 78, at 48, 49; 1 HOLMES-LASKI
LETrERS, supra note 10, at 129 (letter dated Jan. 18, 1918); id. at 810 (letter dated Dec. 27,
1925).
842 [Vol. 41:787
April 1989]
the principle, wh[ich] cannot really belong there."269 In The Common
Law, for example, Holmes tended to leave out aspects of living tort law
that focus on subjective states of mind in the service of his effort to
force doctrine into "a philosophically continuous series" arranged
along the dimension of objectively foreseeable probability of harm.270
And the extension of the external standard to the criminal area led him
to understate quite grossly the concern with individual moral culpability
reflected in the substantive law of crimes. 27'
After finishing The Common Law, Holmes came to believe that "inside
the body of the law" the "field for generalization... was small," so
that if he was to continue to write about law "as a philosopher," he
must approach it externally, through other disciplines like ethics, history,
anthropology, and political economy. 272
He had every opportunity
to make the change when he was offered and accepted a
professorship at the Harvard Law School, where he insisted that, in addition
to teaching ordinary law courses, he should be free to devote
part of his working time to "studies touching the history and philosophy
of law."'273 But a few months into his academic career, he unhesitatingly-some
colleagues thought precipitately-accepted a seat
on the Massachusetts Supreme Judicial Court.274 He would be ajudge
for the remaining fifty years of his active life, thus guaranteeing that his
daily work would confine his thinking "inside the body of the law,"
where he had said there was little room for significant generalization.
As he later described his state of mind at the time of his appointment,
he was confronted by a choice between "applying [my] theories
to practice and details or going into another field."' 275 Why did he
choose "practice and details" over "science" and "philosophy"? In a
letter to James Bryce written soon after the decision, Holmes anticipated
the language he later used in the Law in Science lecture; to reject a
"share in the practical struggle of life which naturally offered itself"
269. Lecture by John Chipman Gray, Harvard Law School (Jan. 12, 1883), quoted in M.
HowE, THE PROVING YEARS, supranote 111, at 276 (Chipman quote based on student notes of
lecture).
270. See THE COMMON LAw, supra note 23, at 104. Holmes to some extent corrected the
excessive focus on the objective degree of probability as the determinant of liability in Privilege,
Malice and Intent, supra note 157, at 118-19.
271. See THE COMMON LAW, supranote 23, at 41-43. Holmes' failure to sufficiently distinguish
criminal prohibition from civil liability was one of the (lesser) flaws of his dissent in
Bailey v. Alabama, 219 U.S. 219, 245-51 (1911) (Holmes, J., dissenting).
272. Letter from Holmes toJames Bryce (Dec. 31, 1882), quotedin M. HowE, THE PROVING
YEARS, supra note 111, at 280.
273. Letter from Holmes to Charles Eliot (Nov. 1, 1881), quotedin M. HowE, THE PROVING
YEARS, supra note 111, at 260.
274. For Howe's account ofHolmes' decision to accept the judicial appointment, see M.
HowE, THE PROVING YEARS, supra note 111, at 265-70 (Holmes' failure to consult with his
Dean or colleagues before leaving his post in the middle of the academic year left behind
some bitterness against him at Harvard, though he had specified in joining the faculty that he
would be free to accept a judgeship if one were offered.).
275. 1 HOLMES-LAsxi LmTrRS, supra note 10, at 291 (letter dated Nov. 17, 1920).
HOLMES
STANFORD LAW REVIEW [Vol. 41:787
would be "the less manly course. ' 27 6
But many years later, after his
reputation and self-esteem were finally secure and he could speak of
the decision in less self-serving terms, he put the matter differently. He
told his young admirer Laski that in addition to "natural fear and the
need of making a living," he had thought that "(at 40) ...it would take
another ten years to master a new subject," and he "couldn't bargain
that my mind should remain suggestive at that age." He concluded
wistfully: "I think I was right but there are many tempting themes on
which it seems as if one could say something if one knew enough-I am
glad on the whole that I stuck to actualities against philosophy (the interest
of all actualities).
'
"277
In fact, Holmes seems to have accepted the judgeship on the assumption
that his creative work as a scholar and thinker was done. He
had no inclination for further detailed research in legal history or anthropology,
and his taste in "philosophy" ran to the artful aphorism or
apercu, not to systematic exposition.2 78
In this, his abilities and his
276. Letter from Holmes toJames Bryce (Dec. 31, 1882), quoted in M. HOWE, THE PROVING
YEARS, supra note 111, at 280-81. Years later, Holmes wrote to Frankfurter in a similar
vein. See id. at 282; see also George Otis Shattuck, supra note 245, at 95-96.
277. 1 HOLMES-LAsKI LE'rERS, supra note 10, at 291-92 (letter dated Nov. 17, 1920).
Howe notes Holmes' persistent Puritan tendency to approve the less pleasant course, M.
HOWE, THE PROVING YEARS, supra note I11, at 282. To this effect, see OLIVER WENDELL
HOLMES, MemorialDay (1884), in OCCASIONAL SPEECHES, supra note 78, at 4, 11 [hereinafter
Memorial Day] (the Puritan virtue is to choose the "most disagreeable" alternative-the context
makes plain that Holmes is not being wholly ironic); OLIVER WENDELL HOLMES,ArthurP.
Bonney andFredericT. Greenhalge (1896), in id. at 87, 89 (" 'The good is one thing, the pleasant
is another; the wise prefer the good.' "). Holmes described his choice to enlist in the army in
1861 in the same terms as he later described his decision to become a judge: "[A]s life is
action and passion, it is required of a man that he should share the passion and action of his
time at peril ofbeing judged not to have lived." MemorialDay,supra,at 6-7. He wrote of the
chance to serve on the United States Supreme Court in terms of preparing for battle. See
Twenty Years in Retrospect, supra note 78, at 157.
278. For some ofHolmes' many statements of preference for philosophers' apercus over
their systems, see I HOLMES-POLLOCK LETTERS, supra note 8, at 261 (letter dated Mar. 1,
1918); 2 idL at 52 (letter dated Aug. 28, 1920); 1 HOLMES-LASKI LMrERS, supranote 10, at 133
(letter dated Feb. 7, 1918); id. at 277 (letter dated Aug. 30, 1920); 2 id at 971-72 (letter dated
Aug. 18, 1927); Letters to Dr. Wu, supranote 168, at 162 (letter dated Apr. 1, 1923); id. at 186
(letter dated Aug. 26, 1926). It is interesting to compare these statements with what he wrote
of his father, the celebrated poet and essayist:
[Hie contented himself too much with sporadic apercus-thetime for which, I used to
say when I wanted to be disagreeable, had gone by. If he had had the patience to
concentrate all his energy on a single subject, which perhaps is saying if he had been
a different man, he would have been less popular, but he might have produced a
great work.
Letter from Holmes to Clara Stevens (July 26, 1914), quoted in M. HOWE, THE SHAPING YEARS,
supra note 26, at 19.
The possibilities for psycho-biographical speculation here are further enriched by considering
Holmes' oft-reiterated insistence on the great differences between the "thinker" (like
himself) and the "poet" or "man ofletters" (like Emerson,James, and his father), generally to
the advantage of the former. See The Profession of the Law, supra note 244, at 29-31; OLIVER
WENDELL HOLMES, RUDYARD KIPLING (1893), quotedin OCCASIONAL SPEECHES, supranote 78, at
71; Dr.Mitchell, supra note 266, at 120; 1HOLMES-POLLOCK LE=rERS, supra note 8, at 96 (letter
dated July 16, 1899); 1 HOLMES-LAsKI LETrERS, supra note 10, at 474 (letter dated Jan. 13,
1923); id. at 533 (letter dated Sept. 4, 1923); id. at 593 (letter dated Feb. 17, 1924). And yet
Holmes conceived of philosophy in an artist's way; he sought to "see the universal in the
April 1989]
tastes were in harmony; few if any writers on the law have matched his
gift for compressed expression, which is seen to its best effect in letters,
essays, and judicial opinions. On the other hand, his only attempt at a
full-length and systematic work of "science" or "philosophy," The Common
Law, does not represent his best work. Holmes spoke of himself,
perhaps even half-consciously so, when he wrote of those "men of the
world," the aphorists, whose work outlives "the greatest works of intellect";
"it is the second rate that lasts." 2 79
In becoming a judge, Holmes entered a life to which, for all the
scope it gave to his literary gifts, he was not wholly suited. Judging is
an enterprise deeply concerned with "practice and details," and neither
Holmes' talents nor his inclinations lay in this direction. Generations
of law students have marveled at the simple lack of informed common
sense manifested by such judgments as his pronouncement that a motorist
at a rail crossing must stop, look, and listen for a train, and get
out of the car if necessary to do so, on pain of being found contributorily
negligent.280 By his own admission, he was "academic to the
point of unreality"; he did not "read the papers or otherwise feel the
pulse of the machine"; he "never [knew] any facts about anything" and
was baffled whenever a visitor asked "some informal intelligent question
about our institutions or the state of politics or anything else." 28 '
Becoming a judge did not change his attitude toward the gritty facts
of human disputation. To him lawsuits were "mannerless conflicts over
often sordid interests. ' 28 2 The cases he decided dealt mostly with "trifling
and transitory matters. ' 283 The realm of "[t]he practical" was "a
mean and stony soil," the world of fact a "mass of sordid details" until
transfigured by "some new generalization. ' 28 4 Then it served only as
"raw material" that could "challenge your power to idealize the brute
fact," and "nourish" valuable abstractions with the necessary empirical
content.285 Until the thinker's power of generalization could impart to
life some "mystic spiritual tone," it was only a "roar of bargain and
battle," inhabited by "men . . .like flies-here swept away by a pesparticular,"
to "show the infinite in the finite." Letters to Dr. Wu,supranote 168, at 164 (letter
datedJune 16, 1923); HOLMES-SHEEHAN CORRESPONDENCE 51 (D. Burton ed. 1976) [hereinafter
HOLMES-SHEEHAN CORRESPONDENCE] (letter dated Oct. 27, 1912).
279. OLIVER WENDELL HOLMES, Montesquieu (1900), in COLLECTED LEGAL PAPERS 250,
250 (1920). But see Holmes-Sheehan Correspondence,supra note 278, at 51 (letter dated Oct. 27,
1912) ("Only the first rate lasts.").
280. Baltimore & O.R.R. v. Goodman, 275 U.S. 66, 69-70 (1927).
281. 1 HOLMES-POLLOCK LETrERS, supranote 8, at 116 (letter datedJan. 10, 1904); id. at
124 (letter dated May 25, 1906); id. at 118 (letter dated Sept. 24, 1904).
282. The Profession of the Law, supra note 244, at 29.
283. Speech atBarDinner,supranote 135, at 245; cf Holmes-CohenCorrespondence,supranote
31, at 319 (letter dated Sept. 10, 1918).
284. Letters to Dr. Wu,supranote 168, at 184 (letter dated Jan. 31, 1926); id. at 176-77
(letter dated Jan. 27, 1925).
285. Id. at 190 (letter datedJan. 31, 1927); Letter from Holmes to Felix Frankfurter (July
15, 1913), quoted in M. HowE, THE PROVING YEARS, supra note 111, at 282; Letters to Dr. Wu,
supranote 168, at 175 (letter dated Mar. 6, 1924).
HOLMES
STANFORD LAW REVIEW
tilence-there multiplying unduly and paying for it.
'
"
2
86
In Holmes' conception, the working of the idealizing imagination
upon the world of brute fact was aesthetic rather than political; it might
transfigure but not transform. Like his Calvinist ancestors, Holmes saw
in the sequence of events the unfolding of a predestined tale. The philosophy
that consoled him at Ball's Bluff was fatalistic: "now as ever I
believe that whatever shall happen is best-for it is in accordance with a
general law ....,,287 "I see the inevitable everywhere," he wrote.288 "I
do in a sense worship the inevitable ....,"289 Of course "the mode in
which the inevitable comes to pass is through effort," and as a practical
matter "[w]e must be serious in order to get work done," but ultimately
the human sense of power over events was only "the trick by which
nature keeps us at ourjob. ' ' 290 His fatalism led him to accept "a rough
equation of isness and oughtness. ' '291
In its practical aspects, judging was for Holmes only a 'job"; he
remained drawn to the law by the same purely external interests as had
286. OLIVER WENDELL HOLMES, The Class of '61 (1911), in OCCASIONAL SPEECHES, supra
note 78, at 160, 162 [hereinafter The Classof '61]; 1 HoLMEs-LAsS LETTERS, supranote 10, at
762 (letter dated July 23, 1925); see also id. at 194 (letter dated Apr. 8, 1919) ("I respect your
respect for the human soul while still doubting whether to share it. The formula of life to
great masses would be Feed-F-outre[Fuck] and Finish, and I am not sure that it won't remain
so."). In interpreting statements like these, on which Rogat and others build much of their
indictment ofHolmes' world view, one should apply to him what he said to his fellow veterans
of the 20th Massachusetts Regiment: "[A] great trial in your youth made you different." OLIVER
WENDELL HOLMES, The FraternityofArms (1897), in OCCASIONAL SPEECHES, supranote 78,
at 100, 101. He spent three of his formative years "soaked in a sea of death." OLIVER WENDELL
HOLMES, Remarks at a Meeting ofthe SecondArmy CorpsAssociation (1903), in id. at 158, 159.
For the definitive account of Holmes' war experiences, see M. HOWE, THE SHAPING YEARS,
supra note 26, at 80-175. Holmes wrote, only half ironically, "I lost my humanity with my
abolition days in college and in the army." 1 HOLMES-LAsKI LETrERS, supra note 10, at 769
(letter dated Aug. 1, 1925). Saul Touster sensitively explores the numbing effect of the war
on Holmes' capacity for emotional involvement, in Touster, In Search ofHolmesfrom Within, 18
VAND. L. REV. 437 (1964), and Edmund Wilson interestingly compares Holmes' reaction to
his war experience to that ofAmbrose Bierce, in E. WILSON,supranote 4, at 621-28, 753-66.
Holmes was given to skeptically sanguinary remarks about killing the other fellow when you
disagree with him enough, even though his view is as good as yours. See, e.g., OLIVER WENDELL
HOLMES, NaturalLaw (1918), in COLLECTED LEGAL PAPERS 310, 312 (1920) [hereinafter
Natural Law]; 2 HOLMES-LASKI LETERS, supra note 10, at 862 (letter dated Aug. 5, 1926).
These remarks were rooted in the personal experience of killing Confederate soldiers. For
after Holmes' abolitionist idealism had been extinguished by years ofslaughter, as well as by
his formation ofclose bonds with fellow officers who were Southern sympathizers, he came to
regard the Confederate soldiers as honorable men doing their duty.
287. TOUCHED WITH FIRE, supra note 267, at 28.
288. 2 HOLMES-POLLOCK LETrERS, supra note 8, at 230 (letter dated Sept. 20, 1928).
289. Holmes-CohenCorrespondence,supranote 31, at 334 (letter datedJan. 30, 1921); see also
1 HOLMEs-LASKI LE=rRS, supra note 10, at 469 (letter dated Jan. 6, 1923) (the proposition
that "repressions and extinctions" are "inevitable" is "sufficiently established by their
occurrence.").
290. IdealsandDoubts, supranote 94, at 305; Letters to Dr.Wu, supranote 168, at 185 (letter
dated May 5, 1926); see also Northwestern Address, supra note 244, at 273-74; HOLMES-SHEEHAN
CORRESPONDENCE, supra note 278, at 28 (letter dated July 17, 1909).
291. "I do accept 'a rough equation ofisness and oughtness' .... I also would fight for
some things-but instead of saying that they ought to be I merely say they are part ofthe kind
of a world that I like-or should like." 2 HOLMEs-LASKI LETrERS, supranote 10, at 948 (letter
datedJune 1, 1927).
846 [Vol. 41:787
April 1989]
first motivated him. 292
In 1876, writing as a young lawyer to the old
philosopher Emerson, he said that what justified law to him was the
path it opened to philosophy.2 93
In 1915, writing as an oldjudge to the
young philosopher Morris Cohen, he expressed his pleasure that a philosopher
should be interested in the law, and added: "I hardly should
be interested in it-if it did not open a wide door to philosophizing
.... 294 Though the lawyer's working life is a "greedy watch for clients
and practice of shopkeepers' arts," still "a man may live greatly in the
law" because it stimulates "the large survey of causes" where "thought
may find its unity in an infinite perspective." 295 Though "artists and
poets" shrink from law, still it is "human"-not because lawyers deal
with human beings and their human joys and pains, but because law as
"a part of man, and of one world with all the rest" teaches the "philosophical"
lesson of the "continuity of the universe. '296 And the law's
true fascination, he said in the Emersonian peroration to The Pathof the
Law, lies in those "remoter and more general aspects" wherein the lawyer
can "catch an echo of the infinite, a glimpse of its unfathomable
process, a hint of the universal law." 297
Those who believe that questions of law should be kept sharply separate
from questions of public policy might regard Holmes' kind of intellectual
detachment as a positive qualification for a judicial career.
But of course one of Holmes' chief claims to greatness as a legal thinker
is his critique of any such view of the judicial process. Holmes believed
that adjudication should and must be result-oriented, fundamentally
legislative. For him, the formal justification ofjudicial decision in terms
of precedent and legal principle was "the evening dress which the newcomer
puts on to make itself presentable according to conventional requirements";
but "[t]he important phenomenon" was the "justice and
292. On Holmes' view of "jobbism," see OLIVER WENDELL HOLMES, Sidney Bartlett
(1889), in OCCASIONAL SPEECHES, supranote 78, at 51, 54 [hereinafter Sidney Bartlett];Speech at
BarDinner,supranote 135, at 247; I HOuIES-LAS.I LE=rERS, supranote 10, at 385 (letter dated
Dec. 9, 1921); id. at 723 (letter dated Mar. 26, 1925); Letters to Dr. Wu, supra note 168, at 178
(letter dated Mar. 26, 1925). Yosal Rogat explores the roots of this stoical professionalism in
Holmes' alienation from the America of the Gilded Age, comparing him to his contemporaries
Henry James and Henry Adams. Rogat, supranote 2, at 228-43. Both Holmes' "jobbist"
or professionalist ethic and his aesthetic approach to law have further (and positive) implications
developed later. See text accompanying notes 347-366 infra.
293. Letter from Holmes to Ralph Waldo Emerson (Apr. 16, 1876), quotedin M. HOWE,
THE SHAPING YEARS, supranote 26, at 203.
294. Holmes-Cohen Correspondence,supra note 31, at 314 (letter dated Apr. 12, 1915).
295. The Profession of the Law, supra note 244, at 29-30.
296. Brown Commencement, supra note 244, at 165, 166.
297. The Pathofthe Law, supranote 23, at 202; see alsoIntroductionto the GeneralSurvey, supra
note 68, at 300-02; 1 HOLMES-POLLOCK LErrERS, supra note 8, at 22 (letter dated Aug. 27,
1883). 1thank Sandy Levinson for drawing my attention to the Emersonian echoes in many of
Holmes' purple passages. Holmes was greatly influenced by Emerson, whom he credited with
"imparting a ferment." Letters to Dr. Iu, supranote 168, at 176 (letter datedJan. 27, 1925).
From the sage of Concord he drew not only his sentiment of acceptance of the universe and
worship of the inevitable, but also his celebration of action, vitality, and process. On the
importance of Emerson in the origins ofpragmatism, see RICHARD POIRIER, THE RENEWAL OF
LrERATURE 13-14, 17-18, 192-202 (1987).
HOLMES
STANFORD LA W REVIEW
reasonableness" of the actual decision itself.298
In cases not settled by
clear positive command, judges were to exercise their "sovereign prerogative
of choice," producing interstitial legislation based on "considerations
of social advantage. '299
Sound legislative judgment was thus a primary judicial qualification,
and Holmes best expressed his sense of the kind of person likely to
possess this quality in the uncharacteristically unstinted praise he gave
to Massachusetts' antebellum Chief Justice Lemuel Shaw. Though in
"technical knowledge" many judges had surpassed Shaw, Holmes
wrote, "the strength of that great judge lay in an accurate appreciation
of the requirements of the community whose officer he was." Because
"few have lived who were his equals" in understanding those "grounds
of public policy" which are the ultimate criteria of good law, he had
been "the greatest magistrate which this country has produced. °300
Years later, after more than thirty years on the bench, Holmes wrote
in similar terms of his colleague and good friend, United States Chief
Justice Edward Douglas White: "He is always thinking what will be the
practical effect of the decision (which of course is the ultimate justification
of condemnation of the principle adopted.)" Holmes went on to
add a revealing note of contrast between White's mode ofjudging and
his own: "I think of [the decision's] relation to the theory and philosophy
of the law-if that isn't too pretentious a way of putting it. We
generally come out the same way by very different paths. But we sometimes
come together head on with a whack." 30'
In fact Holmes did not believe that "theory and philosophy" necessarily
supplied the practical knowledge and understanding that made a
good judicial legislator. As a pragmatist, and hence a believer in the
situated and tacit character of belief, he thought that "successful men
of affairs" operated on "premises" that though "inarticulate" were
often "profound. ' '3 0 2 Applying the point to the judiciary, Holmes defended
the appointment of politicians as judges, which had produced
Marshall, Story, Taney, and Chase, along with his contemporaries Taft
and White. He feared that "men ... of the abstract type only exceptionally
prove wise in practical affairs," adding wryly that coming from
him this was obviously a "disinterested judgment."3 0 3
Though no one
298. LangdellReview, supra note 139, at 234.
299. Law in Science, supra note 24, at 239; The Path ofthe Law, supra note 23, at 184. For
other statements ofthis often reiterated Holmesian theme, see THE COMMON LAW, supranote
23, at 5, 32-33, 167-68, 244, 263-64; Privilege,Malice andIntent, supranote 157, at 120, 129-30;
Learningand Science, supra note 80, at 139; Law in Science, supra note 24, at 225-26; Ideals and
Doubts,supra note 94, at 306-07.
300. THE COMMON LAW, supra note 23, at 85.
301. HOLMES-SHEEHAN CORRESPONDENCE, supra note 278, at 58 (letter dated Jan. 31,
1913). On Holmes' high opinion ofWhite's legislative judgment, see also 1 HOLMES-POLLOCK
LErrERS, supra note 8, at 170 (letter dated Sept. 24, 1910); 1 HOLMES-LAsKi LEMrrRS, supra
note 10, at 294 (letter dated Nov. 26, 1920).
302. 1 HOLMEs-LASKI LET-ERS, supra note 10, at 121 (letter dated Dec. 26, 1917).
303. Id. at 797 (letter dated Nov. 13, 1925).
[Vol. 41:787
April 1989] HOLMES 849
could ever have mistaken Holmes for a modest man, he was able to
admit his own deficiencies in practical wisdom and common understanding
(at least to a fervent admirer). Thus he wrote to Laski: "[N]ot
being a man of affairs and affairs being half at least of life I look up to
those who have profound insights and foresights and successfully act
on them." °304 And when Brandeis scolded him for ruling on labor legislation
without understanding the facts of industrial life, he accepted the
criticism as fair, and even read a few legislative studies of factory conditions
before begging off on account of age and going back to Aristotle,
Hegel, and French novels for his vacation reading.30 5
Perhaps sensing his own deficiencies as "a man of affairs," Holmes
in hisjudicial role adopted, as a kind of surrogate for Shaw's or White's
sound instinctive sense of good public policy, his well-known attitude
of deference to legislative judgment.30 6 His reputation as a great judge
rests largely on his many eloquent reiterations of this attitude in constitutional
cases during a period of progressive legislative activity-and
his reputation as a liberal statesman rests almost wholly on this basis.307
304. Id.at 374 (letter dated Oct. 9, 1921).
305. See id. at 204-05 (letter dated May 18, 1919); id. at 212 (letter datedJune 16, 1919);
id. at 268 (letter dated June 11, 1920); it at 430 (letter dated June 1, 1922); 2 HOLMES-POLLOCK
LETERS, supra note 8, at 13 (letter dated May 26, 1919); id. at 17-18 (letter dated June
27, 1919). For Holmes' recognition of the advantages of Brandeis' practical knowledge of
affairs, see I HOLMES-LAsKI LETrERS, supranote 10, at 485 (letter dated Mar. 1, 1923); itd at
810 (letter dated Dec. 27, 1925); 2 id at 1135 (letter dated Feb. 22, 1929). More generally,
for Holmes' admiration of Brandeis, perhaps the greatest practicingpragmatist American law
has known, see 2 HOLMES-POLLOCK LETrERS, supranote 8, at 191 (letter dated Oct. 31, 1926).
Samuel Konefsky provides ajudicious comparative assessment oftheir practical contributions
as Supreme Court justices, giving Holmes his considerable due but ranking Brandeis clearly
higher. SAMUEL J. KONEFSKY, THE LEGACY OF HOLMsES AND BRANDEIS 258-84 (reprint ed.
1974).
306. Holmes' conception ofjudicial impartiality required the judge to be "superior to
class prejudices and to his own prejudices," OLIVER WENDELL HOLMES, Despondency and Hope
(1902), in OCCASIONAL SPEECHES, supra note 78, at 146, 148 [hereinafter DespondencyandHope],
and to remember "that what seem to him to be first principles are believed by halfhis fellow
men to be wrong," Law andthe Court,supranote 223, at 295. "I hope and believe that I am not
influenced by my opinion that it is a foolish law," he said of the Sherman Act. 1 HOLMESLASKI
LErrrERS, supranote 10, at 248-49 (letter dated Mar. 4, 1920). Thejudge was to legislate
only in the interstices left by the legislature, Southern Pac. Co.v. Jensen, 244 U.S. 205, 221
(1917) (Holmes, J., dissenting), and the cultivation of an attitude of impartiality was all that
could confine judicial legislation to its properly interstitial character. When Holmes criticized
admired colleagues like White and Brandeis for being unjudicial, it was because he thought
they lacked this attitude, and hence sometimes went beyond the interstitial in their judicial
legislating. See, e.g., I HoLMEs-LASKi LETrERS, supra note 10, at 294 (letter to Justice White
dated Nov. 26, 1920); id. at 556 (letter dated Nov. 5, 1923.).
307. Holmes' many illiberal views have been adequately chronicled. Seegenerally Yosal
Rogat, Mr.JusticeHolmes:A DissentingOpinion (pts. I& 2), 15 STAN. L. REV. 3, 254 (1962-1963).
In addition to Holmes' well-known adherence to Social Darwinism, laissez-fairism, and eugenics,
note also his attitudes on race, 1 HoLMES-LASKi LETrERS, supra note 10, at 372 (letter
dated Sept. 27, 1921) ("One accepts the union of O[thello] and D[esdemona], black and
white, because one has been so accustomed to it. Otherwise it would disgust most of us" ),
and gender, 2 idat 1035 (letter dated Mar. 7, 1928) ("ifI were sincere and were asked certain
whys by a woman [I] should reply, 'Because Ma'am I am the bull.' "). On the other side are the
relatively rare opinions in which he invokes the power ofjudicial review on the liberal side,
particularly on questions of free speech and fairness in criminal procedure. Did any of
STANFORD LA W REVIEW [Vol. 41:787
Of course deference to the legislature could not guide him in common
law adjudication, and it is in this area, where his learning was so deep,
that his judicial performance was least impressive and has had the least
influence. As a judge, he was skilled at the conceptual aspect of the
work ("untying knots" he called it308), and he could follow the wishes
of his community when those wishes were given positive embodiment.30
9 But his very lack of connection to that community and lack of
empathy with its central concerns disabled him from being the kind of
"great magistrate" that Lemuel Shaw had been. When, occasionally,
hisjudgment was not distorted byjealousy or vanity, it was even a deficiency
he recognized in himself 3 10
VI. THE END-MEANS CONTINUUM AND THE LAWYER'S WORK
Holmes' predicament, then, was to be an instrumentalist without an
adequate system of ends. While he conceived of law as a tool for the
achievement of the good, on the question of what the good was, he
thought that apart from "the defacto will of the community for the time
• . . as yet no one has much to say."' 3 11
Nor, in the absence of formal
Holmes' "liberal activist" opinions, other than his dissent in Frank v. Mangum, 237 U.S. 309,
345-50 (1915), predate Brandeis'joining him on the Court?
308. See 2 HOLMES-POLLOCK LETrERS, supra note 8, at 61 (letter dated Jan. 23, 1921);
Letters to Dr. Wu, supra note 168, at 167 (letter dated Sept. 30, 1923).
309. For the kind of relatively minute legal conceptual points that especially engaged
Holmes' interest as ajudge, see, for example, 1HOLMES-POLLOCK LErrERS, supranote 8, at 27
(letter dated Mar. 12, 1886); id. at 33 (letter dated Feb. 23, 1890); id. at 39.40 (letter dated
July 8, 1891); id at 50-51 (letter dated Apr. 2, 1894); id. at 243 (letter dated Feb. 18, 1917)
("We have had all manner ofinteresting and important cases-the two are not the same."); id.
at 262 (letter dated Mar. 22, 1918); id. at 273 (letter dated Nov. 24, 1918) (a "pretty point in
Sovereignty").
310. Holmes' jealous vanity appears in his snide "tribute" toJohn Marshall; he characterized
Marshall as basically a party politician who had luckily happened on the scene at a
moment when history was on his party's side. JohnMarshall,supranote 42, at 267-68. Holmes
went on to say that he preferred to celebrate the "originators of transforming thought," those
who see theoretical issues in "little decisions" which effect "interstitial change[s]" in the "tissue
of the law." Id. at 269. But, he concluded sadly, "what the world pays for isjudgment,
not the original mind," so that centenary tributes must be paid to those (like Marshall) who
decide "great questions and great cases" of the sort that involve "the Constitution or a telephone
company." Id. Marshall's political "judgment" was, of course, exactly the quality
Holmes had praised in Shaw, and would later praise in White. It was the same quality, he
admitted in his better moments, that he lacked himself.
Later, after his nomination to the Supreme Court, Holmes groused to Pollock about
press commentary, which naturally focused on his widely publicized pro-labor dissent in
Vegelahn v. Guntner, 167 Mass. 92, 104-09, 44 N.E. 1077, 1079-82 (1896), the opinion that
had led a Progressive president to appoint him. Holmes particularly resented the journalistic
charge that he was "brilliant but not very sound," complaining thatjournalists "bully me with
Shaw, Marshall and the rest." 1 HOLMES-POLLOCK LETrERS, supranote 8, at 106 (letter dated
Feb. 23, 1902). For other gloomy reflections on his failure to get the credit he thought he
deserved for his work as a state court judge, see Despondency andHope, supranote 306, at 147,
and Twenty Years in Retrospect, supra note 78, at 157.
Toward the end of his life, after Holmes' career on the U.S. Supreme Court had finally
gained him the reputation he wanted, Harvard Law School hung his portrait next to Marshall's.
Holmes referred to this as "the handsomest compliment that they could pay." 2
HOLMES-PoLLOCK LETrERS, supra note 8, at 268 (letter dated June 9, 1930).
311. Holdsworth'sEnglish Law, supra note 91, at 288.
850
April 1989]
legislative guidance, did he even have much of a sense for the temporary
de facto collective will; he had chosen to serve a community with
whose values he was out of sympathy, whose opinions he did not know,
whose very newspapers he did not read.
As an "internal" man who thought that "ideas are more interesting
than things," Holmes was by nature a spectator or "witness," yet he
chose to work within the law as an "actor.''312 He was reconciled to
being a lawyer by a faith that law could "furnish philosophical food to
philosophical minds."3 13 But he had to struggle to square this faith,
which drove him to see every case as an illustration of the "theory and
philosophy of the law," with his instrumental conception of law as essentially
legislative, to be judged by its "justice and reasonableness. '314
This struggle gave him a curious half-out-of-body vision, an ability to
look in on the law from the outside at the same time as he operated
upon it from within.
His double vision led Holmes to celebrate the value of the lawyer's
work in an unusual way. The passages he composed for ceremonial
legal occasions on the theme of how to "live greatly in the law" are
familiar ornaments of law school deans' welcoming speeches and commencement
speakers' valedictories.3 15 But these passages are exceptional
within the canon of the law's celebratory rhetoric for more than
their stylistic qualities. They lack the usual references to law as a force
for good in the community, whether as the bulwark of liberty, the refuge
of the oppressed, the source of order and stability, or the guarantor
of prosperity.31 6 Their focus is entirely on the intrinsicjoys rather
than on the instrumental justifications of the lawyer's work.
The dangers of this kind of rhetoric, especially when it has behind it
the force of Holmes' literary art, are evident. It renders in impressive
terms lawyers' self-conception as practitioners of a demanding craft
and members of a learned profession, while ignoring the immediate
312. Introductionto the GeneralSurvey, supranote 68, at 300-01; The Law, supranote 238, at
26-27.
313. Introductionto the GeneralSurvey, supranote 68, at 300.
314. HOLMES-SHEEHAN CORRESPONDENCE, supra note 278, at 58 (letter dated Jan. 31,
1913); LangdellReview, supra note 139, at 234.
315. As Holmes put it in the most-quoted of these passages, "I say... that a man may
live greatly in the law as well as elsewhere; that there as well as elsewhere his thought may find
its unity in an infinite perspective; that there as well as elsewhere he may wreak himself upon
life, may drink the bitter cup of heroism, may wear his heart out after the unattainable." The
Profession ofthe Law, supranote 244, at 30; seealso The Law, supranote 238, at 26; The Use ofLaw
Schools, supra note 175, at 38-39, 48; The Baras a Profession, supranote 187, at 159; The Path of
the Law,supra note 23, at 202; Law in Science, supra note 24, at 212, 224;John Marshall,supra
note 42, at 270; orthwestern Address, supranote 244, at 276-77; Introductionto the GeneralSurvey,
supra note 68, at 300-01 OLIVER WENDELL HOLMES, Albert Venn Dicey (1898), in OCCASIONAL
SPEECHES, supra note 78, at 106, 107;A ProvisionalAdieu, supranote 244, at 152; cf.The Baras a
Profession,supra note 187, at 154 (discussing the possibility of great success at the bar without
much education).
316. A rare counterexample, which focuses on the practical work of the bar as its main
function, is Twenty Years in Retrospect, supranote 78, at 154-57.
HOLMES
STANFORD LA W REVIEW
and material external consequences of their work on others.31 7 This
portrayal of legal practice flowed naturally out of Holmes' most conspicuous
defect as a judge and "practical legislator"-his spectatorial
detachment from his social context. Having noticed this defect in his
qualities, it is now time to consider the qualities of the defect.3 18 In my
view, Holmes' lack of any strong vision of the social good led him to
concentrate with unusual focus on the respects in which pragmatism's
stress on situation and context differentiate it from simple
instrumentalism.
Excessive focus on the instrumental aspects of pragmatism, especially
with emphasis on its evolutionary biological roots, readily makes
it into the philistine and drearily reductive philosophy portrayed by its
critics. Pragmatists treat human inquiry as a means, an instrumentbut
an instrument to what ends? As Holmes once said, the theory of
evolution seems to decree constant attention to survival, so "that man
should produce food and raiment in order that he might produce yet
other food and other raiment to the end of time." And yet, as he added,
"who does not rebel at that conclusion?"31 9 Well, not everyone
does. Holmes himself associated the term "pragmatism" with the
world view of those who endorse this same grimly philistine "food and
raiment" creed, in which every activity is subordinated to some end external
to itself, and nothing is done for its own sake-the world view of
Mr. Gradgrind, Dickens' great parodic embodiment of English positivism
and utilitarianism.3 20
Holmes vehemently and self-consciously repudiated this view. He
denied that "the justification of science and philosophy is to be found
in improved machinery and good conduct"; they were "themselves
necessaries of life" which "civilization sufficiently accounts for itself"
by producing. "[S]cience, like art," he said, was to be "pursued for the
pleasure of the pursuit and of its fruits, as an end in itself."'32 1 It was in
this spirit that Holmes praised a Cambridge mathematician's dedication
317. For critique along these lines ofHolmes' version of "living greatly in the law," see
J. NOONAN, supra note 230, at 144-51. Noonan unflatteringly portrays Cardozo (following
Holmes) as seeking to extract "great and shining truths" from "the sordid controversies of
the litigants." Id. at 150 (quoting Cardozo). Also see Bill Simon's critique of the vision of
legal practice as either a craft guided mainly by its own internal standards or a game to be
played for its intrinsic pleasures. William Simon, The Ideology ofAdvocacy: ProceduralJusticeand
ProfessionalEthics, 1978 Wis. L. REv. 29.
318. "[M]en may be pardoned for the defects of their qualities if they have the qualities
of their defects." The Classof'61, supra note 286, at 161.
319. NorthwesternAddress, supra note 244, at 272; see also Speech at Bar Dinner,supra note
135, where Holmes, while conceding that "we all want" to "make a living and to succeed,"
referred to "our ulterior intellectual or spiritual interest," "the ideal part, without which we
are but snails or tigers." Id. at 246.
320. "Now, what I want is Facts. Teach these boys and girls nothing but Facts. Facts
alone are wanted in life. Plant nothing else, and root out everything else." CHARLES DicKENS,
HARD TIMES 11 (1961) (originally published 1854).
321. Holmes-CohenCorrespondence,supranote 31, at 326 (letter dated July 21, 1920) (quoting
The Use of Colleges, supra note 244, at 63); Law in Science, supranote 24, at 211-12.
852 [Vol. 41:787
to the derivation of a theorem he believed to be entirely useless.3 22
The point was not confined to the abstract thinker; the same value attached
to the care a stonemason lavished on a cathedral gargoyle
placed where no one could see it, and to an explorer's search for the
North Pole, simply because it was there. In Holmes' mind, these kinds
of inquiry and activity respond to "categorical imperatives" that "hold
their own against hunger and thirst" and "scorn to be classed as mere
indirect supports of our bodily needs, which rather they defy."3 23 The
World War, he wrote to Laski, would be nothing but "a fight of swine
for swill" if "we ceased to be interested in philosophy and art."3 24
Holmes spoke on no theme with so much passion so often as he did on
the value of activity, including intellectual activity, that in any usual
sense we would find inexpedient and uneconomic. These passages
make it impossible to accept the harsh universality of Yosal Rogat's
judgment of Holmes as a man who in the end "simply did not care."3 25
How did Holmes reconcile his romantic celebration of the impractical,
especially the impractical life of the mind, with the pragmatic account,
which he accepted, of the place of thought in life? Pragmatic
instrumentalism, after all, holds that beliefs are instruments for coping
with life, treating (in Holmes' own words) "all thought" as "on its way
to action."13 26 How then to explain, much less justify, the delight of the
mathematician at his useless theorem, not to mention the explorer's
life-risking quest for the Pole? If "mind" is the name for a set of animal
capacities and dispositions naturally selected, like other such capacities
and dispositions, for their survival value, why should anyone pursue an
end that ignores or even defies the drive to survive and reproduce?
And why should anyone think such conduct praiseworthy?
These questions created a genuine paradox for Holmes, and he
spent considerable reflection upon them. Perhaps he put his thoughts
best in a letter to Cohen:
Man is like a strawberry plant, the shoots that he throws out take root
and become independent centres. And one illustration ofthe tendency
is the transformationofmeans into ends. A man begins a pursuit as a means
of keeping alive-he ends by following it at the cost of life. A miser is
an example-but so is the man who makes righteousness his end. Morality
is simply another means ofliving but the saints make it an end in
itself. Until just now it never occurred to me I think that the same is
true of philosophy or art. Philosophy as a fellow once said to me is
only thinking. Thinking is an instrument of adjustment to the conditions
of life-but it becomes an end in itself. So ...we can see how
322. Law in Science, supra note 24, at 211.
323. NorthwesternAddress, supra note 244, at 273-74.
324. 1 HOLMES-LAsKm LErrmRs, supra note 10, at 111 (letter dated Nov. 22, 1917).
325. Rogat, supra note 2,at 255.
326. John Marshall,supranote 42, at 270.
April 1989] HOLMES 853
STANFORD LA W REVIEW
man is inevitably an idealist ofsome sort .... 327
This idea of Holmes'-"the transformation of means into ends"--
closely parallels an important theme in Dewey's work. Holmes' first
notion-that philosophy is "only thinking," and that thinking is, or begins
as, "an instrument of adjustment to the conditions of life,"-reflects
the instrumental side of Deweyan pragmatism. The second
notion, that thinking "becomes an end in itself," is equally Deweyan,
though it reflects a less well-known aspect of his work. Holmes' point is
that the human capacity for generalizing is indeed a useful aid to survival;
but the development of this capacity then makes its exercise intrinsically
rewarding; and so the chief end of life, for some, becomes
"framing generalizations" which are not (in terms of survival) "worth a
damn."
3 28
At the center of both Dewey's account of human action and his theory
of value is the concept of the continuum ofends and means. This is
one of his most important ideas, and it sharply differentiates him from
other "instrumentalist" thinkers, such as Bentham and Hobbes, who
understand that human action is always directed toward certain fixed
ends, whether the avoidance of death or the attainment of pleasure.
For Dewey, the second pragmatist tenet, the culturally situated and
contextual aspect of all human inquiry and deliberation, undercuts any
idea that all human activity is aimed at some limited set of fixed ends,
just as it undercuts the concept that the moral life should be directed by
fixed rules or principles formulated and applied without regard for context
and consequence. The dualism of ends and means is, for Dewey,
no more tenable than any other, when it is taken to divide experience
into mutually exclusive categories.3 29
As Dewey understands human conduct, individuals make plans, setting
provisional goals at varying levels of abstraction, and selecting
among the alternative courses of conduct that might lead to the
goals. 330 But the goals that give structure to human plans are never
"final"; they are at best momentary resting points whose attainment has
further foreseeable consequences desirable or undesirable; hence they
must themselves be evaluated as means relative to those consequences.
Nor can alternative plans of action be evaluated only on the basis of
their efficacy in achieving their (provisional) ends; activities, however
instrumentally conceived, are to be evaluated by their intrinsic satisfac-
327. Holmes-Cohen Correspondence,supra note 31, at 329-30 (letter dated Sept. 6, 1920)
(emphasis added); see also Sidney Bartlett,supra note 292, at 54.
328. See note 266 supra.
329. These aspects of both Dewey's and Holmes' versions of instrumentalism can be
seen as developments ofthe Emersonian elements in the origins ofpragmatism. See note 297
supra.
330. See, for example, Dewey's discussion ofthe movement between ends and means in
the process of building a house inJ. DEWEY, HUMAN NAU-RE AND CONDUCt, supra note 40, at
268-69.
[Vol. 41:787
April 1989]
tions or frustrations as well as by their consequences.331
Dewey's conception of the end-means continuum challenges another
of the standard dualisms of Western thought: the economist's
division of human activity into distinct categories of production and
consumption. For Dewey, these concepts as commonly understood denote
pathological rather than paradigm cases, and are of little use in
characterizing normal human activity, which integrates instrumental or
productive aspects with those that are final or consummatory. The concept
of pure production-activity valued purely as a means of attaining
external results-may approximate the reality of,for example, the most
mindless and degrading forms of industrial labor. But this simply confirms
that such labor is a pathological rather than a normal form of
human activity.3 32
Similarly, pure consumption, behavior carried on entirely for its immediate
reward, with no further purpose whatever, scarcely qualifies as
human activity for Dewey. The economist's account of consumption
might describe a kitten's play with a ball, but such purely "consummatory"
conduct lacks the purposefulness which is the characteristic feature
of normal human action. Even the play of very young children,
Dewey noted, has this characteristic; the most initially aimless play
tends to become an improvised game or drama, in which "purpose becomes
a thread that runs through a succession of acts."333 Purposefulness
and enjoyment are thus not antagonists, as in the economist's
account of production and consumption, but complements.
Play often involves not only an ordering of activities, as in a game,
but also an "ordering of materials"3 34; in such cases it merges imperceptibly
into artistic creation. For Dewey, the making of art, in its organic
integration of the instrumental and consummatory aspects of
conduct, is the prototype of authentic human activity. Though art, like
play, has its own immediate rewards, it is not pursued purely for its own
sake; as with play, a thread of purpose, ulterior motive, gives unity to
the process. The artist aims in the first instance at the production of
the work of art itself. But the thread of purpose is not cut with the
completion of the art object; the object too is an instrument for use,
just as are more evidently utilitarian products. For Dewey, art is "peculiarly
instrumental in quality.., a device in experimentation.., a new
training of modes of perception." Works of art are tools for learning,
331. Dewey's works contain numerous discussions of the end-means continuum, as well
as other, related critiques of the concept of fixed human ends. See, e.g., JOHN DEWEY, RECONSTRUCTION
IN PHILOSOPHY 161-86 (2d ed. 1948); J. DEWEY, HUMAN NATURE AND CONDUCT,
supra note 40, at 199-277; J. DEWEY, EXPERIENCE AND NATURE, supra note 19, at 354-437; J.
DEWEY, THE QUEST FOR CERTAINTY, supranote 39, at 258-64;JOHN DEWEY, ART AS EXPERIENCE
35-57 (1934); JOHN DEWEY, THEORY OF VALUATION 40-50 (1939).
332. J. DEWEY, RECONSTRUCTION IN PHILOSOPHY, supra note 331, at 181;J. DEWEY, ART AS
EXPERIENCE, supra note 331, at 341.
333. J. DEWEY, ART AS EXPERIENCE, supra note 331, at 278.
334. l
HOLMES
STANFORD LAW REVIEW
insight, and communication; like "microscopes and microphones" they
"open new objects to be observed and enjoyed." 335
Any human activity informed by purpose and shaped by structure
falls upon the end-means continuum and can be seen to resemble not
only art but also work, "provided work is not identified with toil or
labor."3 36 For Dewey, "[w]ork which remains permeated with the play
attitude is art."' 337 And the aesthetic dimension properly pervades
workaday life.33 8
The social separation of activities into those pursued
for their own sake and those merely instrumental, consumption and
production, is, on Dewey's account, a piece of ideology reflecting and
defending the class-based association of material production with menial
status and leisure with privilege.33 9
Thus Dewey's psychology of action, his aesthetics, and his social
philosophy are linked together around the central concept of the endmeans
continuum. From his account of normal human action as an integration
of instrumental and consummatory aspects emerges a critique
that blurs the common distinctions between work and play, on the one
hand, and between play and art on the other. The consequence is a
commitment to ensuring meaningful work-playful, artful, and
"unalienated"-as one of the central goals of social organization. This
commitment is what gives to Dewey's social philosophy its radically critical
bite. Though he considered himself a liberal democrat, and rejected
many aspects of Marxism, he did believe that capitalist economic
organization as he knew it had failed to fulfill the goal of meaningful
work for all and that classical liberal political theory and political economy
had failed even to articulate this goal as one of its ideals.3 40
Now we must return our attention to Holmes, who of course was no
radical, scarcely even a liberal, and who had no faith at all in the advancement
of human happiness by the economic reorganization of society.
These are real and irreducible differences between him and
335. J. DEWEY, EXPERIENCE AND NATURE, supra note 19, at 392.
336. J. DEWEY, ART AS EXPERIENCE, supra note 331, at 278.
337. J. DEWEY, DEMOCRACY AND EDUCATION, supra note 69, at 206.
338. In one of his best passages, Dewey insisted that an understanding ofart must begin
with
the events and scenes that hold the attentive eye and ear of man, arousing his interest
and affording him enjoyment as he looks and listens: the sights that hold the
crowd-the fire-engine rushing by; the machines excavating enormous holes in the
earth; the human-fly climbing the steeple-side; the men perched high in air on girders,
throwing and catching red-hot bolts. The sources of art in human experience
will be learned by him who sees how the tense grace of the ball-player infects the
onlooking crowd; who notes the delight of the housewife in tending her plants, and
the intent interest of her goodman in tending the patch of green in front of the
house; the zest of the spectator in poking the wood burning on the hearth and in
watching the darting flames and crumbling coals.
J. DEWEY, ART As EXPERIENCE, supra note 331, at 4-5.
339. J. DEWEY, EXPERIENCE AND NATURE, supra note 19, at 368;J. DEWEY, ART AS EXPERiENCE,
supra note 331, at 4-10.
340. J. DEWEY, ART As EXPERIENCE, supra note 331, at 343-44;J. DEWEY, LIBERAISM AND
SOCIAL ACTION, supra note 122, at 87-90.
[Vol. 41:787
April 1989]
Dewey. Yet alongside these differences, we can now see the important
similarities. Holmes' conception of "living greatly in the law" projected-at
least for lawyers-a Deweyan vision ofwork as uniting means
enjoyed for their own sake, and ends produced for use: work-play-art.
That Holmes had himself arrived at something like Dewey's conception
of the ends-means continuum is evident in the "strawberry plant"
passage already quoted, with its account of the transformation of the
purely instrumental into the intrinsically valuable.341 In one speech,
Holmes applied the insight to that most instrumental of activities, industrial
production, when he said that the "chief worth of civilization"
is not that it produces more goods but that it "makes the means of
living more complex" and thereby "calls for great and combined intellectual
efforts ... in order that the crowd may be fed and housed and
moved from place to place." The "more complex and intense intellectual
efforts" called forth by industrial society "mean a fuller and richer
life. They mean more life. Life is an end in itself....-"342 This passage
strikingly juxtaposes the bitter and the sweet in Holmes-on the one
hand, his remoteness from the "crowd" of ordinary people, whose real
material needs for decent food and housing scarcely concern him; on
the other, the genuine and uncommon insight into the intrinsic value
arising out of a realm of material production usually conceived entirely
in instrumental terms.
Holmes' infusion of the workaday world with intrinsic value, value
conceived in aesthetic terms, was a remnant he always retained from his
early Emersonian romanticism. He spoke in this spirit when he told his
Harvard classmates that "[l]ife is painting a picture, not doing a
sum," 3 43
and when, writing to his young friend Wu, he quoted Croce
to the effect that "all experience is art." As he elaborated Croce's
point, he noted the creatively selective quality of both art and ordinary
perceptual experience: "all art is caricature, that is, it emphasizes what
the artist wants to call attention to at the expense of other elements
...." The kind of "insight" that guides this selection of the telling
detail, Holmes called "the great human gift."'3 44
Holmes describes the
philosopher in terms usually reserved for the artist as one who can "see
the universal in the particular" and "show the infinite in the finite."' 345
But unlike his mentor Emerson, Holmes conceived of the "universal"
and "infinite" not in Platonic terms as discoverable objects of rational
inquiry; rather his conception was a genuinely pragmatic and
perspectival one. For him, the idealist is one who seeks to "make-I do
not say find-his world ideal," in part by adopting "an infinite perspec-
341. See text accompanying note 327 supra.
342. Speech at BarDinner,supranote 135, at 248.
343. The Class of '61, supra note 286, at 161.
344. Letters to Dr. Wu, supranote 168, at 156-57 (letter dated Dec. 2, 1922).
345. Id. at 164 (letter dated June 16, 1923); HOLMES-SHEEHAN CORRESPONDENCE, supra
note 278, at 51 (letter dated Oct. 27, 1912).
HOLMES
STANFORD LA W REVIEW
five," accepting that "the universe has more in it than we understand."'
346 Similarly, the Holmesian "universal" involves the
connection of the particulars of ordinary experience to each other by
the transfiguring vision of the imaginative qye.
34 7
For the purpose of seeing the infinite and the universal, "every particular
is as good as any other," subject to "only the qualification, that
some can see it in one, some in another matter more readily, according
to their faculties."'348 Everyday work thus opened the door to both art
and philosophy for Holmes, and he spoke in these terms of his own
work: "Life having thrown me into the law, I must try to put my feeling
of the infinite into that, to exhibit the detail with such a hint of a vista as
I can, to show in it the great line of the universal. '349
Focus on the similarity between Dewey's and Holmes' thoughts on
art and work risks distortion without the offsetting reminder of the very
important differences. Dewey, as a temperamental activist and a convinced
democrat, clearly meant his conception of work as play and art
to apply to everyone, recognizing that for this to be achieved the whole
system of industrial labor would have to be transformed. With Holmes,
a detached skeptic whose commitment to democracy was at best ambiv-
alent,350
there is more doubt whether he thought the ideal of work as
346. The Professionof the Law, supra note 244, at 29, 30 (emphasis added); NaturalLaw,
supranote 286, at 315.
347. In his essay, NaturalLaw, Holmes identifies himself as one who "sees no reason for
believing that significance, consciousness and ideals are more than marks of the finite," NaturalLaw,
supranote 286, at 315, and added that "[i]f we think ofour existence not as that of a
little god outside, but as that of a ganglion within, we have the infinite behind us. It gives us
our only but our adequate significance." Id. at 316. All that is required is an "imagination ...
strong enough to accept the vision of ourselves as parts inseverable from the rest .... " Id.
348. Letters to Dr. Wu, supra note 168, at 164-65 (letter dated June 16, 1923).
349. Id. at 167 (letter dated Sept. 30, 1923). Holmes was presumably alluding to the
Emersonian origins ofhis ideas about the "infinite" and "universal" when he wrote to Cohen
that "early associations affect my emotional attitude toward the mystery of the world."
Holmes-Cohen Correspondence,supra note 31, at 334 (letter dated Jan. 30, 1921).
350. Holmes' ambivalence about democracy was lifelong. As a Civil War officer he
wrote: "While I'm living en aristocratI'm an out-and-outer of a democrat in theory, but for
contact, except at the polls, I loath the thick-fingered clowns we call the people .... " Letter
from Holmes to Amelia Holmes (Nov. 16, 1862), reprintedin TOUCHED wrrH FIRE, supranote
267, at 71. Also, recall Holmes' comments on the mass of men as suited only for "Feed-Foutre
and Finish." See note 286 supra. On the other side, he once said in a speech that "the
deepest cause we have to love our country" was its "democratic spirit"-"that instinct, that
spark that makes the American unable to meet his fellow man otherwise than simply as a man
.... " OLIVER WENDELL HOLMES, The Puritan(1886), in OCCASIONAL SPEECHES, supranote 78,
at 25. And he wrote ofJane Addams as
a big woman who knows at least the facts and gives me more insights into the point
ofview of the working man and the poor than I had before. How excellent her discrimination
between doing good to them and doing good with them. I believe with
her that we need more democratic feeling-I like to multiply my scepticisms-for in
administering constitutional law one cannot realize too clearly the possibility of different
points of view for all of which there ought to be room to assist themselves if
the constitution is not to be a Procrustean bed.
Benjamin G. Rader and Barbara K. Rader, The Ely-Holmes Friendship, 1901-1914, 10 AM. J.
LEGAL HIsT. 128, 137 (1966).
858 [Vol. 41:787
April 1989]
partaking of art and philosophy could be extended beyond learned professionals
to ordinary people.
On the one hand, Holmes did present his ethic of professionalism
or "jobbism"-" 'Whatsoever thy hand findeth to do, do it with thy
might' "-as a value of potentially universal application.351 In this
vein, he quoted George Herbert's lines on the infusion of the divine
into the most humble work: "Who sweeps a room as for Thy laws,/
Makes that and th' action fine" 352 -a reference that Dewey noted favorably
in his own essay on Holmes. 353 Holmes often showed appreciation
of the intrinsic pleasures of basic human activity.354 And he said
that "[e]very calling is great when greatly pursued." 355
On the other hand, by "greatly pursued" Holmes seems generally
to have meant pursued with learning and with a bent toward abstract
speculation. Sweeping a room might be "fine" but not "great"-it is
hard to imagine Holmes trying it out for the challenge. He conceived
of intellectual pursuits as naturally reserved for the few. Thus he celebrated
the special virtues of the little band of professionals or "specialists,"
including lawyers, who set high intellectual standards for their
work. At the same time he deplored the "effervescence of democratic
negation" that "attacks the lines of Nature which establish orders and
degrees among the souls of men."'356
At this point one might ask what present use less ambivalent democrats
than Holmes might make of his version of professionalism. As a
beginning, his insistence on the intrinsic rewards of law practice as a
craft, an art, and a goad to speculative thought reminds us of a valued
partial ideal of professional life. If his words on how to "live greatly in
the law" are balanced by some stress on the external and political consequences
of professional activity, they do still belong in those deans'
remarks and commencement speeches. Further, Holmes' rhetoric can
be generalized along the lines Dewey suggests and thus can serve to
articulate the broader social ideal of universal access to intrinsically sat-
351. Speech at Bar Dinner,supra note 135, at 247. Characteristically, Holmes described
the commitment to doing one'sjob well as "infinitely more important than the vain attempt to
love one's neighbor as one's self." Id. He made explicit the link between "jobbism" or professionalism
and the transformation of means into ends in Sidney Bartlett,supra note 292:
It seems to me further that the rule for serving our fellow men... is to do one's task
with one's might. If we do that, I think we find that our motives take care of themselves.
Wefind that what may have been begun as a means becomes an endin itsel;that selfseeking
is forgotten in labors which are the best contribution that we can make to
mankind; that our personality is swallowed up in working to ends outside ourselves.
Id. at 54 (emphasis added).
352. The Bar as a Profession,supra note 187, at 159.
353. Dewey,Justice Holmes, supra note 19, at 36.
354. "[A]n adequate vitality would say daily: 'God-what a good sleep I've had.' 'My
eye, that was dinner.' 'Now for a rattling walk-' in short realize life as an end in itself. Functioning
is all there is .... 2 HOlmES-POLLOCK LrrERs, supranote 8, at 22 (letter dated Aug.
21, 1919).
355. The Law, supra note 238, at 26.
356. The Use ofLaw Schools, supra note 175, at 37-38.
HOLMES
STANFORD LAW REVIEW
isfying work. Following Dewey, one might say what Holmes would not:
It is false that "every calling" as presently constituted can be "greatly
pursued." But it should be true, and its falsity stands as a continuing
rebuke to the present social constitution of work.
Finally, Holmes' account of "the transformation of means into
ends" responds to the most common objection to pragmatism-that it
is the soulless philosophy of Mr. Gradgrind, promoting a mean and reductive
approach both to life and to law. On this score, it is instructive
to compare Holmes' version of the ideal the lawyer should pursue with
that stated by Roscoe Pound, who was probably the first significant
American legal thinker to label himself a "pragmatist. '357 Expounding
his conception of "sociological jurisprudence," Pound wrote that legal
scholarship should dedicate itselfto a "great task... of social engineering,"
aimed at the creation of a system of law rationally designed with
an eye to "precluding friction and eliminating waste."' 358 Pound's "social
engineer" would study the law scientifically, accumulating information
so as to assess the machinery of the law in terms of the efficient
production and distribution of material goods. This purely instrumental
conception of law was not all there was to Pound's jurisprudence,
but it was certainly its most prominent strand.3 59 It was a view entirely
consistent with Bentham's conception of law as an instrument for the
satisfaction of certain fixed human desires and the assuagement of certain
fixed fears.3 60
There is much of value in Pound's engineering conception of law,
especially by way of compensation for the spectatorial defects in
Holmes' statement of the professional ideal. Pound rightly emphasizes
the social consequences of legal practice and thus properly reinforces
the sense that professional privileges carry with them social obligations.
But for all this, his model of the lawyer as social engineer has defects
that have become more evident over the years. For one thing, the engineering
metaphor creates false hopes for the technical solution of social
problems by experts, wrongly suggesting that injustice is always
better redescribed as "friction" and "waste." 361 Further, it presupposes
that so important an element in social life as law can remain sim-
357. See Roscoe Pound, A PracticalProgramof ProceduralReform, 1910 PROC. ILL. ST. B.A.
373, 375. On Pound's pragmatism, see generally DAVID WIGDOR, RoscoE POUND 183-205
(1974).
358. ROSCOE POUND, THE SPIRIT OF THE COMMON LAW 195-96 (1921); see also Roscoe
Pound, The Theory ofJudicialDecision (pt. 3), 36 HARV. L. REV. 940, 954-56 (1923).
359. Pound later leavened the "social engineering" picture with the claim that the judge
requires imaginative "trained intuition" as well as calculative instrumental reason, at least for
certain classes of cases. See Pound, The Theory ofJudicialDecision, supranote 358, at 951.
360. For Bentham's view ofthe four fixed goals to be pursued by a legal system-subsistence,
abundance, security, and equality-see J. BENTHAM, Principles of the Civil Code, in 1
WORKS OF BENTHAM, supranote 29, at 297, 302.
361. Dewey's writing is also laden with Progressive imagery suggesting scientistic and
technocratic cures for social ills; but in his case, the "social laboratory" rhetoric is offset by a
strong democratic sense for the importance of broad public participation in government and a
recognition of the historically conditioned, political, and aesthetic dimensions of science.
860 [Vol. 41:787
April 1989]
ply a dependent variable, a means for achieving external ends. Holmes'
and Dewey's concept of the ends-means continuum reminds us that
law, even if it begins as an instrument for the attainment of basic ends
like "food and raiment," can generate its own intrinsic values, both
positive (due process, legality, the Rule of Law) and negative (legalism).
Dewey well understood this; he wrote that a good system of law was
partly constitutive of, not merely instrumental to, a good society.3 62
Legal pragmatism thus understood is receptive to the classical republican
conception both of law as a constitutive element in political life,
and of politics itself as an activity of intrinsic as well as instrumental
value. Together, these ideas suggest a model of lawyer as republican
civil servant rather than as social engineer.363
The concept of the end-means continuum has another implication
for law study: Dewey's and Holmes' ideas on the relations among art,
play, and work remind us that law has a pervasive aesthetic dimension.
Legal practice is inevitably an art and a craft, even a game, carried on
partly for its own sake. Legal thinkers have rarely taken this point seriously.
Some have recognized that a certain aesthetic sensibility supports
the geometric conception of law as a closed logical system-thus
the Romans' phrase elegantiajuris.But fewer have seen that any critique
of geometric formalism carries with it some aesthetic of its own, implicit
if not explicit. Influenced by Holmes on this point, Karl Llewellyn was
one of the few American legal thinkers really to attend to the aesthetic
and rhetorical dimension of law. This appears most memorably in his
treatment ofjurisprudential approaches as "styles," grand and formal,
rather than as "theories"; less well known is his use of the (Holmesian)
analogy of law to architecture, which allowed him to formulate the aesthetic
of the legal grand style as form in the service of function.3 64
But Llewellyn scarcely began the study of law as an art or craft. His
most significant hint of the direction he might have followed came in a
footnote written at the end of his life in which he spoke of the relation
between legal aesthetics and justice, "the beautiful" and "the good" in
law.365 He suggested thatjustice, partly a surrogate for efficiency, is in
part also an aesthetic ideal, and none the worse for it. The just is quite
appropriately conceived of as the "fitting." Recent legal scholarship
362. "A good political constitution, honest police-system, and competent judiciary, are
means of the prosperous life of the community because they are integrated portions of that
life." J. DEWEY, EXPERIENCE AND NATURE, supra note 19, at 367.
363. For a modern account oflegal practice as a constitutive aspect ofAmerican government,
which explicitly draws on classical republican ideas, see Robert W. Gordon, The Independence
of Lawyers, 68 B.U.L REV. 1, 14-30 (1988). Any such account must go significantly
beyond Holmes' implicit view of the private counselor as purely the predictor ofjudicial action
in the service of the private interests of clients. See text accompanying notes 181-230
supra.
364. See Karl N. Llewellyn, On the Good, the True, the Beautiful, in Law, 9 U. CHI. L. REv.
224 (1942), reprintedin KARL N. LLEWELLYN, JURISPRUDENCE: REALISM IN THEORY AND PRACTICE
167, 174-96 (1962). Holmes suggested the analogy of the legal theorist to the architect
in The Path ofthe Law, supra note 23, at 200.
365. Llewellyn, supra note 364, at 224 & n.*.
HOLMES
STANFORD LAW REVIEW
has begun to develop the themes anticipated by Llewellyn's hint, focusing
on the place in law of literary technique, visual imagery, and religious
symbolism. Particularly notable in this development have been
feminist writers on law, whose own practical and contextual approach
to law indicates important parallels between pragmatism and contemporary
feminist thought.366
Of course Holmes was even less of a feminist than he was a radical
economic reformer. And while he often contrasted scientific with literary
approaches to inquiry, he did so invariably to the disadvantage of
the literary.3 67 But taken all in all, his version of legal pragmatism supports
those who would study the place in law of narrative, metaphor,
and the aesthetics of conceptual architecture. And, inevitably, he will
be enlisted to supply epigraphic and aphoristic inspiration for this approach
to law study-a role that might seem trivial, but only because
the approach has not yet taken sufficient root. If scholarship does establish
the aesthetic and rhetorical element in law as intrinsic rather
than merely decorative, we will better appreciate, though still withjustified
suspicion, the power that a legal theorist armed with the skills of a
great literary artist can wield.
It is important, finally, for those of us susceptible to Holmes' charms
to recall once more the need for that suspicion. Holmes never did resolve
the contradiction between the work of an actor and the perspective
of a witness. His resulting ideal vision of legal practice does indeed
emphasize the important and neglected "philosophical" (or aesthetic)
values that bear on the lawyer's working life. But this emphasis comes
at the expense of the aspects of lawyering that make it both a political
and a service profession, one with special access to the levers of power,
to be judged primarily by how its exercise of that power affects the lives
of those subject to it. Ifwe insistently force ourselves to make this correction
in the law's image as it appears through the lens Holmes'
thought provides, those of us who cannot bury him need not rest con-
366. See Robert M. Cover, Foreword: Nomos and Narrative, 97 HARV. L. REv. 4 (1982);
Robin West,Jurisprudenceas Narrative:An AestheticAnalysis ofModern Legal Theory, 60 N.Y.U. L.
REV. 145 (1985); see also Dennis E. Curtis &Judith Resnik, Images ofjustice, 96 YALE LJ.1727
(1987). Curtis and Resnick explore the iconography ofjustice, an issue on which Llewellyn
said:
I am rather clear that in a fuller presentation, there would have to be included under
"The Good," a study of "Justice, Efficiency, and Warmth," developing not only the
problem offinding the first, and ofweaving the three together, but also that of finding
a symbol for law of very different character from that of a large, cold, figure,
distant, blind, and carrying a sword-a symbol earth-rooted and friendly as an oak.
Llewellyn, supra note 364, at 224 n.*.
For more on the striking analogies between pragmatist and feminist thought, compare
the formulations of the distinction between the "tough-minded" and "tender-minded" in W.
JAMES, PRAGMATISM, supra note 14, at 3-40, and the distinction between "separate" and "connected"
approaches to knowledge in MARY FIELD BELENKY, BLYTHE MCVICKER CLINCHY,
NANCY RULE GOLDBERGER, & JILL MATrUCK TARULE, WOMEN'S WAYS OF KNOWING 100-30
(1986).
367. See note 278 supra.
862 [Vol. 41:787
April 1989] HOLMES 863
tent with simply praising him. Following his own best teachings, we can
properly re-situate him, and put him yet again to good use.
STANFORD LA W REVIEW
Appendix: Holmes and the Pragmatists
Pragmatism was not only a theory; it was also an important movement,
originating with Charles Sanders Peirce, later led by William
James, and then by John Dewey. It used to be said that Holmes was
part of this movement, indeed an important founder of it.368 But the
evidence for Holmes as a founder of pragmatism is weak, and he said
much that casts doubt on whether he thought of himself as a pragmatist
at all. Still, there are enough complexities on the issue to make it impossible
to ascribe any simple view to Holmes.
When James introduced pragmatism by name to the world in 1898,
he attributed both the word and the idea behind it to Peirce,3 6 9
who
had first articulated the idea, though without the name, in a series of
articles published in Popular Science Monthly twenty years before.3 7 0
Peirce's basic thesis Was that general concepts get their meanings not
from their antecedents in sensation, as traditional empiricism had it,
but from their practical consequences in action.3 7 1
Pragmatism, he
said, followed as "scarce more than a corollary" from Alexander Bain's
definition of a belief as " 'that upon which a man is prepared to
act.' "372 He first stated the thesis, and used the name "pragmatism,"
in a paper delivered in 1872 to a meeting of the Metaphysical Club, a
small discussion group that met in Cambridge during the years after
the Civil War.3 7 3
Holmes was one of the original Metaphysicians, along
with Peirce, Chauncey Wright, Nicholas St. John Green, and James.3 74
On the basis of these ties, Max Fisch argued that Holmes should be
regarded as one of the principal founders of pragmatism. 3 75
Fisch argued
that Holmes' prediction theory of law, which he first publicly articulated
in jurisprudence lectures he gave at the Harvard Law School
in 1872,376 was a straightforward application of the basic pragmatic
368. See M. FISCH, supra note 6; P. WIENER, supra note 6, at 172-89.
369. WILLIAM JAMES, Philosophical Conceptionsand PracticalResults (1898), in COLLECTED
ESSAYS AND REVIEWS 406, 410 (1920).
370. C.S. PEIRCE, The Fixation of Belief supra note 37; CHARLES SANDERS PEIRCE, How to
Make Our Ideas Clear (1878), in 5 COLLECTED PAPERS OF CHARLES SANDERS PEIRCE, supranote
37, para. 388.
371. "Consider what effects, that might conceivably have practical bearings, we conceive
the object ofour conception to have. Then, our conception ofthese effects is the whole of our
conception of the object." C.S. PEIRCE, How to Make OurIdeas Clear,supra note 370, para. 402.
372. C.S. PEIRCE, HistoricalAffinities and Genesis, supra note 64, para. 12.
373. Id para. 13; see also Letter from William James to Henry James (Nov. 24, 1872),
quoted in IR. PERRY, supranote 251, at 332.
374. See C.S. PEIRCE, HistoricalAffinities and Genesis, supra note 64, paras. 12-13; Letter
from WilliamJames to Holmes (Jan. 3, 1868), quotedin 1 R. PERRY, supranote 251, at 507. On
the Metaphysical Club, see P. WIENER, supra note 6, at 18-30, and the authoritative account
appearing in Max H. Fisch, Was There a MetaphysicalClub in Cambridge?,in STUDIES INTHE PHILOSOPHY
OF CHARLES SANDERS PEIRCE 3 (E. Moore & R. Robin eds. 1964).
375. M. FIscH, supra note 6.
376. Holmes first published the gist of the prediction theory in Notice:JurisprudentialLectures,
supra note 196.
864 [Vol. 41:787
HOLMES: APPENDIX
maxim that Peirce had first presented to the Metaphysical Club in his
paper of that year. Fisch inferred that Holmes' theory had been formulated
along with Peirce's maxim and even speculated that Peirce might
have derived the maxim by generalizing from the prediction theory.3 77
In fact, whatever is distinctively pragmatist in the prediction theory
is not likely to have emerged from the discussions of the Metaphysical
Club. As Fisch's own later research showed, Holmes' connection with
the Club was very tenuous.378 Holmes later wrote that he had not
heard of pragmatism before the 1890s3 7 9
and that he had seen Peirce
"very little" during the Metaphysical Club period, because "in those
days I was studying law and I soon dropped out of the band"; what
benefit he had from the Club was derived from Wright and Green
rather than Peirce, whom Holmes regarded as a self-important bore.380
Holmes apparently became aware of the term "pragmatism" only
some time afterJames introduced it to the public in 1898.381 Thereafter,
he spoke of it several times in his letters, always critically. Holmes
saw pragmatism as entirely James' creation, and his criticisms of the
doctrine must be seen in the context of the complex relations between
the two men. In their youth they were intense discussion partners and
friends; Holmes could addressJames without any irony as "Oh! Bill, my
beloved, '38 2 whilejames called him in reply "my Wendly boy."383 But
they were friends always conscious of serious differences. Thus in 1868
James wrote to Holmes that when they were together "I put myself involuntarily
into a position of self-defense, as ifyou threatened to overrun
my territory and injure my own proprietorship. ' 3 8 4 A year later
James wrote to his brother Henry of the "cold-blooded, conscious egotism
and conceit" by which "[a]ll the noble qualities of Wendell
Holmes .. .are poisoned. s38 5
As late as 1876 James was still close
enough to Holmes to visit him and his wife on Cape Cod, where, as he
wrote to Henry, he saw Holmes' "virtues and faults . . .thrown into
singular relief by the lonesomeness of the shore"; against that background
Holmes appeared to James as "a powerful battery, formed like
a planing machine to gouge a deep self-beneficial groove through
377. M. FIsCH, supranote 6, at 11-12.
378. Fisch, supra note 374, at 22.
379. Holmes-Cohen Correspondence,supra note 31, at 326 (letter dated July 21, 1920).
380. Letter from Holmes to Charles Hartshorne (Aug. 25, 1927), quoted in Fisch, supra
note 374, at 11.
381. Holmes' first mention of the term is in a 1907 letter to James. See Letter from
Holmes to William James (Mar. 24, 1907), quoted in 2 R. PERRY, supra note 251, at 459-61.
Holmes had written to James over a decade before in response to the latter's essay The Will to
Believe, which had, without using the term "pragmatism," deployed whatJames later treated as
a central aspect ofthe idea. See Letter from Holmes to WilliamJames (May 24, 1896), quoted in
id. at 458.
382. Letter from Holmes to William James (Dec. 15, 1867), quoted in l id.at 506.
383. Letter from William James to Holmes (Jan. 3, 1868), quotedin l id at 508.
384. Letter from William James to Holmes (May 15, 1868), quoted in 1id. at 514.
385. Letter from William James to Henry James (Oct. 2, 1869), quoted in l id.at 307.
April 1989]
STANFORD LAW REVIEW
life."38 6
Though these temperamental differences finally put an end to their
active friendship, James continued to send Holmes his writings. But
the breach colored all of Holmes' responses. In 1896, after reading The
Will to Believe, Holmes commented thatJames' demands on the universe
"are too nearly the Christian demands without the scheme of salvation....
This you will recognize as my ever recurring view ever since
we have known each other."38 7 A decade later, Holmes responded
even more negatively toJames' Pragmatismlectures. Holmes called the
name itself "pedantic" 388 and declared his own adherence to one ofthe
two warring factions-the "tough" and the "tender"-between which
James wished his new philosophy to meditate:38 9 "You would say that I
am too hard or tough-minded ....-390
To others, Holmes used harsher terms. Thus he wrote to Sir Frederick
Pollock: "Ithink pragmatism an amusing humbug-like most of
WilliamJames's speculations ... ."391 James, he said, was not strong in
"logic" or "abstract thinking"; 392 his talent was for "art and belles lettres"
rather than "philosophy"; 393 he had taken positions "fitted to
please free thinking Unitarian parsons and the ladies. '394 WhenJames
died, Holmes wrote to Pollock that it was his "little sympathy" with
James' "demi spiritualism and pragmatism" that had finally driven
them apart.3 95
Writing to Harold Laski, Holmes crudely parodied pragmatism: "I
never could make anything out of [James'] or his friends' advocacy of
his nostrum except either that in motives depending upon human conduct
effort affects the result-which we have heard-or that by yearning
we can modify the multiplication table, which I doubt. '3 96 And, with
more justice, he objected to Laski's fashionable use of the term "pragmatic"
to describe Benthamite legal ideas: "[Tihejudging of law by its
effects and results did not have to wait for WJ. or Pound for its exist-
386. Letter from WilliamJames to HenryJames (July 5, 1876), quotedin I id.at 371. For
Perry's analysis of the James-Holmes relation, see 1 id. at 504-19.
387. Letter from Holmes to William James (May 24, 1896), quoted in 2 id. at 459.
388. Letter from Holmes to William James (Oct. 13, 1907), quoted in 2 id. at 462.
389. W. JAMES, PRAGMATISM, supranote 14, at 12, 32-33.
390. Letter from Holmes to William James (Mar. 24, 1907), quoted in 1 R. PERRY, supra
note 251, at 301.
391. 1 HOLMES-PoLLOCK LETrERS, supra note 8, at 138-39 (letter dated June 17, 1908).
392. Id. at 192 (letter dated Apr. 26, 1912). James' own characterization reflects some
agreement with Holmes' view: "You have a far more logical and orderly mode of thinking
than I ...." Letter from William James to Holmes (May 15, 1868), quotedin 1R. PERRY, supra
note 251, at 513.
393. 1 HOLMES-POLLOCK LETrERS, supra note 8, at 78 (letter dated Aug. 11, 1897).
394. Id.at 139 (letter datedJune 17, 1908); see alsoHolmes-Cohen Correspondence,supranote
31, at 350 (letter dated Feb. 16, 1925).
395. 1 HOLMES-POLLOCK LErERS, supra note 8, at 167 (letter dated Sept. 1, 1910).
396. 1 HOLMEs-LASKi LETrERS, supra note 10, at 70 (letter dated Mar. 29, 1917). In
another letter, Holmes reports his "glee" that F.H. Bradley "falls foul of Pragmatism and
chops it into mincemeat"; he feared he "had missed something until I was confirmed in my
criticisms by him." Id. at 705 (letter dated Feb. 1, 1925).
866 [Vol. 41:787
HOLMES: APPENDIX
ence ...."397
While Holmes spoke ofJames' psychological insight and personal
charm,3 9 8
qualities he attributed to the latter's "essential Irishness, '3 99
only once did he praise one of his old friend's ideas; he conceded that
James might have "made a valuable contribution in pointing out that
ideas were not necessarily faint pictures of original experience. '4 00
Though isolated, the remark is significant, for it reveals Holmes' recognition,
however grudging, of one of the basic pragmatist innovations
upon orthodox empiricism.
Holmes extended his rejection of James' ideas to those of Peirce as
well. After Peirce finally came to public attention in the 1920s, Holmes
wrote that he was "overrated,"'40
' observing that "his reasoning in the
direction of religion &c seems to me to reflect what he wants to believe."140
2
This reference to religion suggests an important factor common
to Holmes' rejection of the ideas of bothJames and Peirce: "As to
pragmatism .... I now see . . .that the aim and end of the whole
business is religious. '40 3
This offended against one of Holmes' own
deepest intellectual commitments: the religious skepticism that he had
formed as a young student before the Civil War, and that he had held to
in the most testing moment of his life, when he lay wounded, mortally
he thought, after the battle of Ball's Bluff.40 4
In Holmes' view, James
and Peirce had succumbed to wishful thinking when they made room
for God in their otherwise scientific views of the universe. He could
befriend and admire the Irish Catholic priest Canon Sheehan,40 5
but he
detested softness toward religion from within the camp of science. To
Holmes, James' thesis that "we are warranted in choosing what seems
397. Id at 20 (letter dated Sept. 15, 1916).
398. 1 HOLMES-POLLOCK LETrERS, supra note 8,at 192 (letter dated Apr. 26, 1912).
399. Id at 78 (letter dated Aug. 11, 1897); see alsoHolmes-Cohen Correspondence,supra note
31, at 325 (letter dated July 21, 1920). The connotations of "Irishness" for a Brahmin like
Holmes were not likely to be strongly favorable.
400. 1 HOLMES-POLLOCK LETrERS, supranote 8, at 191 (letter dated Apr. 26, 1912).
401. 1 HOLMES-LAsKI LE'rERS, supranote 10, at 565 (letter dated Nov. 29, 1923).
402. Holmes-Cohen Correspondence, supra note 31, at 341 (letter dated Sept. 14, 1923).
Holmes went on to question Peirce's claims to originality: "That we could not assert necessity
of the order of the universe I learned to believe from Chauncey Wright long ago. I suspect
C.S.P. got it from the same source." Id.
403. 1 HOLMES-POLLOCK LUrERS, supra note 8, at 140 (letter dated July 6, 1908).
404.
Of course when I thought I was dying the reflection that the majority vote ofthe
civilized world declared that with my opinions I was en route for Hell came up with
painful distinctness-Perhaps the first impulse was tremulous-but then I said-by
Jove, I die like a soldier anyhow-I was shot in the breast doing my duty up to the
hub-afraid? No, I am proud-then I thought I couldn't be guilty of a deathbed
recantation-father and I had talked of that and were agreed that it generally meant
nothing but a cowardly giving way to fear-Besides, thought I, can I recant if I want
to, has the approach of death changed my beliefs much? & to this I answered-No.
TOUCHED wrrH FIRE, supra note 267, at 27-28; cf.M. HOWE, THE SHAPING YEARS, supra note
26, at 11.
405. See HOLMES-SHEEHAN CORRESPONDENCE, supra note 278, at 12 (letter dated Feb.
1904); id at 28 (letter dated July 17, 1909). Holmes' admiration for Sheehan is evident
throughout their correspondence.
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STANFORD LAW REVIEW
to us the most effective and helpful view in cases where we have no
proof either way" was "fishy" and unacceptable "for us hard-headed
ones," because it created an "alliance of philosophy with religion" and
allowed the religious to "bully nous autres" from a new "dogmatic foothold."40
6 Holmes felt that in wanting "a warm God... that loves and
admires us,' 40 7
James had given in to temptation by creating a theory
that allowed him to believe in one: "His reason made him sceptical and
his wishes led him to turn down the lights so as to give miracle a
chance."
408
Holmes criticized the pragmatists not only for softness toward religion,
but also for philistinism. In commenting on pragmatism to Cohen,
he quoted an old speech in which he had said that the
"justification of science and philosophy" was not to be found in "improved
machinery and good conduct." Rather "[slcience and philosophy
are themselves necessaries of life. By producing them civilization
sufficiently accounts for itself. . . ." Holmes did admit that the "pragmatic
utilitarian tests" were "more exquisite" than his words-- 'improved
machinery and good conduct"-had indicated.40 9 Holmes
knew that he was invoking a popular canard against the pragmatists,
but perhaps he felt a connection between their softness toward God
and the philistine conception of progress popularly attributed to them.
But Holmes did not reject the ideas of all the leading pragmatists.
Late in his life, he praised in the highest terms the work ofJohn Dewey,
who, unlike James and Peirce, did not combine pragmatism with theism.
With Dewey, as with James, personal factors complicate any assessment
of the significance of Holmes' judgment. In 1922, Holmes
appraised Dewey's Human Nature and Conduct in mixed terms: it was
"like shavings of jade-subtle-sometimes epigrammatic . . . an immense
advance on any book there was when I was younger-yet somehow
not quite seeming to arrive anywhere-and not feeling to me quite
as new as it is civilized."'4 10 He disliked Dewey's reformist politics
nearly as much as James' and Peirce's religiosity, noting that Dewey
"talks of the exploitation of man by man-which always rather gets my
hair up."' 411
And three years later, his opinion was even less positive;
on hearing that Laski found Dewey unreadable and that Bertrand Russell
did not admire him, Holmes reported himself "pleased at what you
say aboutJohn Dewey-whom I have supposed myself bound to revere,
and have revered, but have not read-except in matters of no great
moment or impressiveness.
' 4 12
406. 1 HOLMES-POLLOCK LETrERS, supra note 8, at 191-92 (letter dated Apr. 26, 1912).
407. Id. at 140 (letter dated July 6, 1908).
408. Id. at 167 (letter dated Sept. 1, 1910).
409. Holmes-Cohen Correspondence,supra note 31, at 326 (letterdated July 21, 1920) (quoting
The Use of Colleges,supra note 244, at 63).
410. 1 HOLMES-LASKI LETrERS, supra note 10, at 431 (letter dated June 14, 1922).
411. Id.
412. Id. at 803 (letter dated Dec. 5, 1925).
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April 1989] HOLMES: APPENDIX
Then in 1926, when Holmes was 85, his young friend John Wu recommended
that he read Dewey's new book Experience and Nature.
Holmes agreed to try it, even though he had previously found Dewey
"excellent but uninspired. '4 13
But the new work transformed his opinion;
he wrote at once to Laski, "I thought [it] truly a great book. '414
Holmes' praise for Experience and Nature may not have been motivated
entirely by admiration for Dewey's views. Immediately after
praising Dewey's book, Holmes added: "I mention that he quotes me
in it as one of our great American philosophers, and pleased me
thereby no little, only to say that that was not why I read it and is not
why I think it great."14 15 The protesting addition may protest too much;
it casts some doubt on the source of the transformation of Holmes'
opinion of Dewey. One is reminded of a bit of revealing self-deprecation
he put in a letter to Pollock: "as Hohfeld used to crack me up
naturally I thought well of him."4 16 From his own testimony, we know
that Holmes valued above all other things the praise of those few whom
he regarded as experts. 41 7
Of course we should not simply discount Holmes' insistence that
Dewey's praise was "not why I think [the book] great." But when he
came to say why he thought Experience andNature a great book, Holmes
was uncharacteristically inarticulate; he "could not have summed up a
chapter or a page" and would "find it hard to give any intelligible ac-
413. Letters to Dr. Wu, supra note 168, at 189 (letter dated Nov. 23, 1916).
414. 2 HOLMES-LASEi LrrEas, supranote 10, at 904 (letter dated Dec. 15, 1926); see also
id.at 901 (letter dated Dec. 4, 1926); Letters to Dr. Wu, supranote 168, at 287 (letter dated Jan.
30, 1928); 2 HOLMES-POLLOCK La'rERS, supranote 8, at 287 (letter dated May 15, 1931); id at
272 (letter datedJuly 26, 1930) ("[Dewey's] view of the universe came home to me closer than
any other that I know.").
415. 2 HOLMEs-LAsKi LErrRs, supra note 10, at 904-05 (letter dated Dec. 15, 1926).
Dewey had written, before quoting for two full pages from Holmes' essays Ideals andDoubts,see
note 94 supra,and NaturalLaw, see note 286supra: "Igladly borrow the glowing words ofone
of our greatest American philosophers; with their poetry they may succeed in conveying
where dry prose fails." J. DEWEY, EXPERIENCE AND NATURE, supranote 41, at 417; see alsoid. at
417-19 (quoting Holmes).
416. 2 HOLMES-POLLOCK LE-rrERs, supra note 8, at 64 (letter dated Feb. 9, 1921).
417. See Letters to Dr. Wu, supranote 168, at 200 (letter dated Nov. 2, 1928) ("the only
thing that gives one real happiness is when one whose judgment one respects says the few
words that are the laurel crown"); HOLMIES-SHEEHAN CORRESPONDENCE, supranote 278, at 58
(letter datedJan. 31, 1913) ("I like to have the Bar think well ofme, but the only thing Icare
much for is what a few masters scattered here and there say."); 2 HOLMES-POLLOCK LE'rERS,
supranote 8, at 71 (letter dated June 20, 1921) (Holmes lived "solely" for the favorable judgments
of the "few competents like you"); id at 92 (letter dated Mar. 29, 1922) ("I have had
some letters and one or two notices in the papers that have touched me deeply. They have
said what I longed to hear said and would almost willingly have died to hear twenty years
ago."); id. at 260-61 (letter dated Apr. 6, 1930) (to Pollock's criticism-"The butter's spread
too thick"-of an effusive tribute by Laski, Holmes wrote that he "was so touched and moved
by the note of affection and made so shy by the praise that I hardly like to speak about it and
could not criticize."); Letters to Dr. Wu, supra note 168, at 201 (letter dated July 1, 1929) (of
Cardozo: "I... owe to him some praise that I regard as one of the chief rewards ofmy life.");
2 HOLIES-LAsxRi LETrERS, supra note 10, at 1272 (letter dated Aug. 9, 1930) (likewise ofCardozo:
"He is one of the few who have said in print and private the things that make my life
seem worth having been lived.").
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STANFORD LA W REVIEW
count" of the work.418 Yet, he concluded, despite "defects of expression,"
Dewey seemed "to hold more of existence in his hand and more
honestly to see behind all the current philosophers than any book I can
think of on such themes. '4 19 Elsewhere, Holmes spoke of the book's
"symphonic" quality and said that it reminded him of Walt Whitman.420
Yet nowhere did he say anything specific about its content.
On this record I would certainly not confidently conclude that
Dewey won Holmes' esteem merely by calling the old Justice a great
philosopher. Much of this study has been devoted to tracing the similarities
in the thought of the two men. And there are elements new to
Dewey's work in Experience and Nature that might have especially appealed
to Holmes.421 But the very vigor and immediacy with which
Holmes denied that Dewey's praise had influenced him reveals his discomfort
with the coincidence that the book in which it appeared had
elevated Dewey's stature in his mind from "uninspired" to "great."
The record of his direct remarks and their context simply leaves
Holmes' relation to pragmatism in doubt. On the one hand, one might
take his explicit rejections of pragmatism at face value. On this view, he
accepted the pragmatists' basic positivism and empiricism, but thought
on that score thatJames and Peirce had added nothing essentially new
to Bentham and Mill. What he regarded as genuinely novel-James'
justification of beliefs lacking evidentiary support on grounds of their
good effect on morale-Holmes rejected. From this perspective, what
Holmes found acceptable in Dewey's ideas was his generally naturalistic
and evolutionary world view; and, since what he found more than
merely acceptable he could not articulate, we must suspect that, especially
at the age of 85, Holmes' judgment had been swayed by Dewey's
praise of him.
On the other hand, Holmes might have rejected James' and Peirce's
versions of pragmatism largely because they used it to justify religion.
Holmes' critical judgment on this issue may have been nudged along by
his dislike of Peirce and his more complex antipathy toward James.
The negative part of his early reaction to Dewey could then be explained
by the latter's awkward prose style and reformist politics. Ifwe
see the evidence in this light, Holmes never really confronted a statement
of pragmatism that was not tainted by the adventitious elements
of religion, personality, or politics until he read ExperienceandNature, at
which point he finally reacted with unmediated enthusiasm. Further excavation
of a narrowly biographical kind is not likely to decide between
these conflicting interpretations.
418. 2 HOLMES-LASKI LErERS, supra note 10, at 904.
419. Id. at 905.
420. Letters to Dr. Wu, supra note 168, at 190 (letter dated Dec. 5, 1926).
421. In particular, Dewey developed his theory of art further than he had before. See
notes 335-339 supraand accompanying text. Also, compared to Dewey's other books, Experience
andNature has much less of the liberal reformist politics which Holmes disliked.
870 [Vol. 41:787