Op/Ed

Victor Nuovo: A great legal philosopher

28th in a series

In 1859 Charles Darwin published “The Origin of Species” and in 1860 the American Civil War began. These two events had a profound effect on the life and mind of Oliver Wendell Holmes Jr. (1841–1935). An ardent Abolitionist deeply committed to the Union, he immediately enlisted, securing a commission in the Union Army, and was in combat almost constantly for the next four years, except for the times he spent recovering from his wounds, for he was gravely wounded three times. The experience of war led him to dismiss all belief in God, even more in a benevolent one, as a sentimental fantasy.

Darwin’s “Origin of Species” became his book of wisdom and his guide to the nature of things. He came to believe that the universe is the product of amoral natural forces, of chance and necessity, that belief in a providential government of the world is an illusion, that all religions and metaphysical systems are false. Yet he was not without values; he had a deep sense of duty and a strong will to do it; he honored truth and pursued it relentlessly and philosophically. He was an outstanding legal scholar, whose writings are definitive for a proper understanding of the rule of law.

When the Civil War ended, he enrolled in Harvard Law School. He would have preferred to study philosophy, but his father insisted he study law, and he was a dutiful son. After graduation, he practiced law, and taught for a brief time at Harvard Law School. In 1882, he was appointed to the Massachusetts Supreme Judicial Court, where he served for 20 years, becoming Chief Justice. In 1902, Theodore Roosevelt (1858–1919), who was a close friend, appointed him to the United States Supreme Court, where he served for 30 years, retiring at age 90.

Holmes was a youth of 20 when he joined the Union Army. He joined out of sense of duty, and he served honorably. He regarded this service as his greatest achievement in life, the fulfillment of a sacred duty. To him, Memorial Day (established in 1868) was the most sacred day of the year, and the faith that carried him through the remainder of his life was “a soldier’s faith.” “The joy of life is living,” “the power to persist in life;” and the measure of one’s power are the obstacles one is able to overcome, “to ride boldly at what is in front of you, be it fence or enemy … to keep the soldier’s faith … to know that one’s final judge and only rival is oneself.” There are loud echoes of Emersonian self-reliance in these lines, which should not be surprising, for Holmes described Emerson’s effect on him as being “touched with fire.” Yet Holmes repudiated the Transcendentalist faith and chose to live by the soldier’s austere commitment to “duty, honor, and country” whatever the personal cost. To be is to be involved in an endless struggle, a struggle for life, for therein he believed lies the key to life’s purpose.

Holmes’s characterization of existence as struggle has led scholars to cast him as a Social Darwinist. Simply or simplistically put, a Social Darwinist believes that life is a struggle, and in this struggle for life only the fittest survive, and this is as it should be. The rights of individuals are functions of their will to power. There should be no leveling of the playing field, no affirmative action, no remedies for the disadvantaged. His judicial decision “Buck vs. Bell” is evidence of this. Carrie Buck was a mentally challenged woman, as was her mother, and she also had a daughter who was judged mentally deficient. All three were institutionalized, wards of the state, and it was decided by Virginia state officials that she be sterilized. Holmes, who wrote for the majority, upheld this decision, which he justified with the observation that just as the state may call upon the best citizens to sacrifice their lives in war, so it may require “those who already sap the resources of government” to suffer lesser sacrifices, in this instance, the right to bear children. “It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.”

I have no doubt that my readers will be growing uncomfortable reading this as I am in writing it. Social Darwinism and Eugenics are ignoble theories, and I write about them not to commend them, but because they are part of our nation’s past, and it is wise to be aware of them, lest we repeat them. Besides Holmes was a great legal philosopher, and only a fool would ignore what he has written about the law; it is enlightening, even where it seems to go wrong.

Holmes approached the study of law, and its interpretation empirically and historically. Thus he wrote in “The Common Law,” “The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policies, avowed or unconscious, even the prejudices which judges share with their fellow men, have a good deal more to do than the syllogism in determining the rules by which men should be governed.” The only correct way to understand it is to view specific laws or kinds of law is to view them in the light of the historical circumstances in which they were framed, and by the creatures who framed them, who are invariably frail, fallible, finite human beings. There is no higher law that may inspire its interpreters.

Holmes’s viewpoint was antithetical to those of the transcendentalists. He disavowed Thoreau’s claim to civil disobedience, and he recognized no transcendent human archetype that guided Margaret Fuller, and the flame of Emerson’s inspiration had expired. Yet, he cannot be ignored. We must take them all together. To be continued.

Postscript: Holmes’s Civil War diary and correspondence with his parents have been published under the title “Touched with Fire” (Fordham University Press, 2000); “The Essential Holmes” (University of Chicago Press) provides a fine selection of his judicial opinions, theory of law, and philosophical reflections. Both are affordable; visit your local bookshop.

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