Law professors rarely write books. When they write at all, they typically produce incomprehensible and heavily footnoted articles (usually unread) for obscure law reviews. It is even rarer to find a law professor who can write with flair about something of more than ephemeral interest. And it is rarest of all to find a law professor who can address a topic important to the readers of Chronicles and reach a conclusion that makes good sense. That has happened, however, in the case of University of Chicago Law Professor Albert Alschuler’s pungent little jurisprudential biography of Oliver Wendell Holmes, Jr.—one of the best works on Holmes, legal theory, and legal education to appear in the last 30 years.
With the possible exception of Chief Justice John Marshall, no figure in American legal history is more venerated in law schools than Oliver Wendell Holmes, Jr. (1841-1935). No one gives a major address to a law-school audience without taking care to quote Holmes at least once, while among the milder encomiums distinguished law professors have lavished on him are that he was “the great oracle of American legal thought,” “America’s most distinguished citizen,” “the only great American legal thinker,” and “the most illustrious figure in the history of American law.” As Alschuler demonstrates with almost savage grace, Holmes’ is one of the great undeserved reputations of our era. Alschuler argues that none of the man’s ideas was original, much of his writing was undistinguished and impenetrable (especially his book, The Common Law (1881), a tome virtually unread today but still widely regarded as the greatest American law book ever written). Moreover, he was a nasty, crabby, mean, and selfish man.
So why the unparalleled obeisance to Holmes? Alschuler hints at some possible explanations: Holmes was a patrician’s patrician, a Boston Brahmin, a member of the Porcellian at Harvard as an undergraduate and a law professor there before serving on the Massachusetts Supreme Judicial Court for 30 years and the U.S. Supreme Court for another 20. Holmes brilliantly developed a circle of admirers and sycophants, many of whom went on to become influential in government and the academy; he knew everybody, corresponded with several, and possibly made love to at least one British aristocrat; and he cultivated one of the great mustaches of his time. (Alschuler fails to mention that he was a dead ringer for Michelangelo’s rendering of God as painted on the Sistine Chapel.)
None of this really explains, though, how someone of pedestrian legal skills could end up regarded as our only authentic jurisprudential oracle. Alschuler’s answer is that Holmes wrote “five great paragraphs” in The Common Law and that, in doing so, he limned a philosophy of law perfectly in tune with the desires of those who took over the teaching of law, in the postwar period especially. In his “great paragraphs,” he explains that “The life of the law has not been logic: It has been experience,” and that
The substance of the law pretty nearly corresponds at any given time, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.
Most importantly, he holds that
in substance the growth of the law is legislative. . . . The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient for the community concerned.
Adopted by a group calling themselves “Legal Realists” and waving the banner of Holmes, these ideas permeated law schools in the 20th century and eventually gave license to a slew of state and federal judges fundamentally to remake American private and public law in accordance with their particular notions of what was best for Americans. The loss of the American people’s ability democratically to make law for themselves through their constitutions and the acts of their elected representatives is bad enough, but, for Alschuler, there is a greater dimension to this tragedy: The revolution in the nature of judgment and legal education that Holmes furthered resulted in a body of law (and, probably, a society) bereft of what had given it greatness. This is the problem of “Law Without Values,” flagged in the title of Alschuler’s book. While American law in the 18th and most of the 19th century was lodged firmly in the tradition of Plato, Aquinas, Blackstone, Washington, and others who believed that there could be no law without morality and no morality without religion, the followers of Holmes in the 20th century embraced their master’s notion that this assumption was nonsense.
For all of Holmes’ considerable charm, Alschuler reminds us, he had a terrible emptiness, if not an evil, within him. He was selfish, vain, and ambitious, had few really close friends, and seemed to take a perverse delight in the physical tragedies of others. He actually advocated exterminating unfit infants, brought snobbery to a fine art, and thought, like Thrasymachus, that justice and morals were simply what the strong chose to impose on the weak. Alschuler’s thesis is that this deeply flawed man gave us a deeply flawed jurisprudence. He believes that
a country in which law without values takes hold—a country where the preferences of those wielding power on the bench and off are the only tests of what is good law—is in deep trouble.
Alschuler concludes his book with an eloquent plea for a return to law with values and, in particular, a return to Socrates’ notion that a standard of justice exists, against which human laws can be measured and found wanting. Holmes famously (and, perhaps, characteristically) claimed that we should look at the law as a “bad man” would and that all that law students should be concerned with is a prediction of “what the courts will do in fact.” Instead, Alschuler proposes that, if we must define law (which he concedes may be asking too much), our definition should be “those societal settlements that a good person should regard as obligatory,” thus making a clear statement in favor of morality as a basis for law. This is a very courageous thing to say in the legal academy today, especially where Alschuler teaches. (Chicago, after all, is the Rome of Law and Economics, a current legal specialty devoted to a bloodless Holmesian examination of the law.)
Law Without Values is not without flaws. Alschuler’s (or his publisher’s) politically correct preference for using the feminine gender pronoun is irritating. (My favorite example: “A president’s duty is sometimes to disobey legislation that she considers unconstitutional . . . ”) His closing discussion of what he considers to be the promising new academic phenomenon of searching for truth through “a new epistemology based on coherency of ideas” is not as convincing as the implicit plea for a return to simple Judeo-Christian notions that Alschuler has made in some of his other works. In his discussion of the decline of American culture, which he correctly attributes in part to the ascendance of Holmesian notions in law, Alschuler fingers Comedy Central’s South Park as an example of the “violent and bitter” worst, though it is, in fact, an inspiredly hilarious and brilliant (though admittedly vulgar) cartoon that satirizes many of the things Alschuler is against. Finally, whenever Alschuler wishes to provide an example of unjust law, he resorts to such traditional law-school whipping boys as slavery, racism, and Nazism, even though it might have been, perhaps, more convincing to advert to the havoc that latter-day legal nihilists like Holmes have wreaked on Africa, Southeast Asia, Eastern Europe, or the U.S. Supreme Court in the late 20th century. These, however, are quibbles, advanced as much to validate the praise offered here as to criticize the book.
Law Without Values is a slim volume (fewer than 200 pages of text followed by 100 pages of copious notes), yet Professor Alschuler has written a big and important book: a splendid, laudable, and necessary jurisprudential tract for our time.
[Law Without Values: The Life, Work, and Legacy of Justice Holmes, by Albert W. Alschuler (Chicago and London: The University of Chicago Press) 325 pp., $30.00]