SOURCE: "The Positivism of Mr. Justice Holmes," in Harvard Law Review, Vol. 64, No. 4, February, 1951, pp. 530-46.

On the occasion of the ninetieth birthday of Mr. Justice Holmes, his successor on the Supreme Court of the United States said that Holmes was "for all students of the law and for all students of human society the philosopher and the seer, the greatest of our age in the domain of jurisprudence, and one of the greatest of the ages."¹ At the conclusion of his essay, Mr. Justice Cardozo quoted from a letter which he had received from Holmes saying that he had always believed that neither place, nor power, nor popularity "makes the success that one desires, but the trembling hope that one has come near to an ideal."² Mr. Justice Cardozo was reminded by these words of the wistful confidence of Keats: "I think I shall be among the English poets after my death." And Cardozo went on to say that "there was no 'fool's paradise' for Keats" and to predict that there would be none for Holmes.³

Nearly twenty years have passed since Cardozo predicted that Holmes' trembling hope would be realized, and it is time to inquire whether the prediction has been fulfilled. Though many would think it obvious that time has done nothing to diminish the stature of Holmes, in recent years there have been such frequent efforts to belittle his reputation, to discredit his philosophy of law, and to disparage his achievements as a judge that Cardozo's prediction cannot be considered wholly fulfilled. When Holmes died in 1935 would any columnist, even the most irresponsible, have had the temerity to describe him as "the cynical and senile brutalitarian"? It seems clear that he would not. Yet it is with these delicate words that Westbrook Pegler has characterized Mr. Justice Holmes.⁴

It would be pleasant for those who believe that Cardozo's estimate of Holmes was justified, to write off the fulmination of Pegler as the outburst of an isolated, malignant temper. Unfortunately, however, Pegler's slur upon the memory of Holmes represents something more significant than a small boy's blasphemous efforts to attract attention. The theme which he so stridently plays had earlier been played to smaller audiences by far more responsible persons. Pegler's rendition is coarser than theirs, but the melody is unmistakably the same.

The first elaborate formulation of the thesis that Holmes' philosophy of law is anti-democratic, un-American and totalitarian in tendency was in an essay by Father John C. Ford⁵ and a year later it was restated by Father Francis E. Lucey.⁶ The next article in which the criticism was repeated was by Ben W. Palmer of the Minneapolis bar. His first paper, under the somewhat flashy title, "Hobbes, Holmes, and Hitler," appeared in 1945,⁷ and having brought forth a number of enthusiastic letters to the editor of the Journal was followed by another, "Defense Against Leviathan,"⁸ along the same lines. It is not my purpose to deal with these particular efforts to persuade the American people that the philosophy of Holmes was repugnant to the principles of American civilization. The criticism of Fathers Ford and Lucey, popularized by Mr. Palmer and perverted by Mr. Pegler is so firmly grounded in the Catholic philosophy of law that were I to attempt to meet it directly I should find myself quickly engaged in a theological controversy beyond my competence to discuss. All I need say of the essays of Father Ford and Father Lucey is that they take a position which it was almost inevitable that members of the Jesuit Order would take: Holmes not only proclaimed himself a skeptic in matters of religion and denounced man's relentless effort to give human values a more than human significance, but he denied the existence of that law of nature upon which the Catholic philosophy of law is based. It would have required no special insight to predict, twenty years ago, that Jesuit teachers of law would find Holmes' skepticism philosophically unacceptable.

The criticism of Holmes with which I shall deal has been most effectively stated by Professor Lon Fuller of the Harvard Law School. To date Professor Fuller has not directed his attention to the achievements of Holmes as judge and has discussed only the shortcomings of his philosophy of law as expressed in writings other than judicial opinions. This makes it suitable that I should accept those same limits.

I am strongly persuaded that Professor Fuller has expressed in his writing on Holmes a point of view which many lawyers have come, perhaps unconsciously, to share—a feeling not only that Holmes' philosophy of law was inconsistent with the highest traditions and aspirations of Western thought, but that his scale of moral and political values was badly suited to measure the needs of a progressive and civilized society. As I understand the thesis, it is that Holmes, child of Hobbes, is the American father of legal positivism. By positivism in law Professor Fuller tells us that he means "that direction of legal thought which insists on drawing a sharp distinction between the law that is and the law that ought to be."⁹ The justification for classifying Holmes as a positivist, within this definition, is found by Professor Fuller in many of Holmes' utterances, perhaps nowhere more clearly than in passages from his well-known address on "The Path of the Law."¹⁰ There he told his audience, first, that the student of law must come to recognize as fundamental the distinction between law and morality, and, second, that law was not usefully to be defined in terms of right and wrong and the principles of ethics, but should be considered to be nothing more esoteric than an informed and prophetic judgment as to what the courts will do in fact. With that positivist tendency in Holmes' thought, Professor Fuller contrasts the philosophy of natural law—"the view which denies the possibility of a rigid separation of the is and the ought, and which tolerates a confusion of them in legal discussion."¹¹ He asks the present generation of lawyers to abandon the positivism of Holmes and to return to the earlier and healthier conviction that there is nothing shameful in the association of law and morality.

My first concern will not be with the merits of the philosophical issue which Professor Fuller has so persuasively presented. It will rather be with a problem upon which he touched in passing—that is, the considerations which led Holmes to accept the positivist theory of law. When Hobbes first formulated the principles of positivism he gave an explicit reason for his effort to separate the domain of morals from the province of jurisprudence; he wanted men to obey even those rules of law which they believed to be unjust. Holmes, says Professor Fuller, never made it clear what prompted him to accept the dichotomy and has thus made our task of comprehension peculiarly difficult. He suggests, however, that Holmes' Civil War experience bred in the young soldier a sentimental enthusiasm for the heroism of obedience, which in the mature philosopher became blind respect for authority as such.¹² Though Professor Fuller does not quote Holmes' most famous pronouncement on the virtue of the soldier's faith, he undoubtedly had in mind the Memorial Day speech of 1895 in which Holmes had spoken these words:

I do not know what is true. I do not know the meaning of the universe. But in the midst of doubt, in the collapse of creeds, there is one thing I do not doubt, that no man who lives in the same world with most of us can doubt, and that is that the faith is true and adorable which leads a soldier to throw away his life in obedience to a blindly accepted duty, in a cause which he little understands, in a plan of campaign of which he has no notion, under tactics of which he does not see the use.¹³

I should not hesitate for a moment to agree that this passage reflects most significantly the mixing of skepticism and romanticism in Holmes' faith. My disagreement with Professor Fuller is with his suggestion that when Holmes spoke thus romantically of the soldier's sustaining faith he was indirectly committing himself to a positivist theory of law which, according to Professor Fuller, puts fiat above reason in the legal process.

Before discussing Holmes' theory of law one should consider his theory of morality, and, in order to comprehend his principles of ethics, one should look at the circumstances in which his mind and character came to their maturity. Catherine Drinker Bowen in Yankee from Olympus, has popularized the notion that Dr. Holmes, the Justice's bouncing father, was an insignificant figure of such consuming personal vanity and petty conceit that his son gained no significant profit from growing up in his household. This is a most misleading picture of the Doctor and a completely inadequate interpretation of the relation between father and son. It disregards entirely the fact that Dr. Holmes, throughout his whole life, was struggling vigorously to break away from the oppressive traditions by which American thought and American morality had, in his father's generation, been so effectively suffocated. Perhaps the Doctor was never able to shake himself entirely free from those traditions—he refused to read novels on Sunday—but with respect to the basic intellectual and moral issues of his day, he stood invariably with those men of vision who insisted that the questions which the advance of science had put to man should not be answered by the outworn formulas of Calvinism and the threadbare precepts of Protestant morality. The seeds of skepticism which had been planted in the mind of the medical student in Paris blossomed in the maturity of the novelist and essayist who asked of the old order whether its settled pieties had any other justification than familiarity. When he suggested that the sin of Elsie Venner might find a truer explanation and a more Christian understanding if its sources were approached through science rather than through Calvinism, he was asking that skepticism be given rights. He saw as persistent and inescapable the American's obligation to re-examine every article of national faith, whether political or religious. "To think," he said, "of trying to waterproof the American mind against the questions that Heaven rains down upon it shows a misapprehension of our new conditions. If to question everything be unlawful and dangerous, we had better undeclare our independence at once; for what the Declaration means is the right to question everything, even the truth of its own fundamental proposition."¹⁴ An alert young man, brought up in a household presided over by a father so wholeheartedly dedicated to the cause of free inquiry, could scarcely fail to start his life with the conviction that the first consequence of the scientific revolution must be the development of a skeptical mind.

Nurtured in that belief, Holmes must have found many, if not all, of the aspects of the Harvard College which he entered in the fall of 1858 hopelessly benighted. The sponge of complacency with which Professor Francis Bowen, Professor of Natural Religion, Moral Philosophy, and Civil Polity, erased the writing on the wall was the product of Harvard's stubborn assurance that reason and morality, religion and piety had discovered the final answers to the mysteries of the universe, and that the teacher's responsibility to his students was to explain those answers and develop an appropriate humility before the altar of unalterable truth. Is it any surprise that the young Holmes, encouraged by his father to ask on all occasions the unanswerable question, in his senior year had to be publicly admonished by President Felton for "repeated and gross indecorum in the recitation room of Professor Bowen"?¹⁵ In his junior year Holmes had written an undergraduate essay in which he had offended the pieties of his teachers by suggesting that "duty is not less binding had the Bible never been written, or if we were to perish utterly tomorrow."¹⁶ This rather pallid expression of skepticism aroused the anger of a more orthodox classmate, who published a protest against the Emersonian tendencies of Holmes' thought, and suggested that his ideas were "barbarous in the province of reason and practical piety."¹⁷ It is not unlikely that the satisfaction which Holmes found in disturbing the intellectual tranquilities of his teachers and his fellow students added fresh impetus to the skeptical instinct. It is certain, in any case, that his reading as an undergraduate followed those frontiers of inquiry to which the scientific impulse was carrying philosophical and ethical speculation.

As Holmes' college course came to its end, he found himself, under the influence of his father and his times, far from the moorings of religious faith which his New England ancestors had laid and to which most of his contemporaries were still fixed. Having lost all confidence that moral convictions may find sufficient justification in the dogma of religion, Holmes' search was for a system of philosophy, or, perhaps, for a way of life, which would give some assurance that a sense of duty had validity in a universe which must be explained in scientific terms. Where the normal processes of intellectual growth would have led him had tranquility not been shattered by the outbreak of the Civil War no one can say. It is possible that his early admiration for Emerson might have led him to attempt to systematize the Emersonian insights, and that out of that effort might have come a philosophy quite different from that which the circumstances of war in fact produced. That, however, is the idlest speculation, for the War did come, and with it the need for again examining the foundations of morality.

Although in later life Holmes indicated that he had small sympathy for men of strong belief and distrusted the crusading spirit of the reformer, when the Civil War broke out it is clear that he was moved to join the Union forces by an abolitionist fervor. He acknowledged later that he shared the emotional state of the abolitionists—a state which he came to dislike because "it catches postulates like the influenza."¹⁸ 1 am not concerned at the moment, however, with the later development of Holmes' thought but with the significant fact that the young man, who during his college course had come to the conviction that morality could no longer find its justification in a theology which science had shown to be unacceptable, went to war convinced that the cause for which he fought was noble and right. It may even be said that he went in a spirit of some defiance, anxious to prove to a complacent older generation that a skeptic in religion was not necessarily a skeptic in other things, and that though science had turned the creed of Harvard and of his ancestors to dust and ashes, the Puritan's standard of morality and duty still survived. In the very thick of war he wrote to Charles Eliot Norton that it was only by preserving his conviction that the War was the holy crusade of the nineteenth century that he was able to keep his hand to the sword." Certainly there is no indication that at the opening of the War, Holmes had become a skeptic in matters of morality. His father's influence had carried him far on the way to emancipation from tradition; it had led him to repudiate the religious and the intellectual assumptions upon which Harvard's decencies and Boston's proprieties were built, but it had not led him seriously to doubt that the accepted standards of behavior had an external or preordained validity. Those to whom postulates are as catching as the influenza are unlikely to look skeptically upon the disease and are susceptible to its infection simply because of the conviction that each postulate reflects at least a facet of the cosmic truth.

If Holmes went to the War a convinced abolitionist, what was it that led him thirty-four years later in his Memorial Day speech to say categorically: "I do not know what is true. I do not know the meaning of the universe"? The answer to this question is not to be found in the maturing process of the intervening years, setting the young man's crusade in historical perspective. It is rather to be found in the drama of the Civil War itself—a drama so vast in its political and physical aspects that one easily overlooks its no less exciting and confusing moral aspects. The Twentieth Regiment of Massachusetts Volunteers, which Holmes joined immediately after his graduation, reflected the national confusion and the whole uncertainty of purpose by which the Union effort from first to last was frustrated. Among the officers with whom Holmes was most intimately associated was his classmate, Penrose Hallowell, Quaker and abolitionist, whose religious convictions condemned war and whose reforming faith made participation in war seem necessary. Another friend was William Francis Bartlett who gravely doubted the justice of the Northern cause, yet fought gallantly with its armies, losing a leg with the Twentieth Regiment, returning to command another regiment of volunteers, and ultimately rising to the rank of Major General at the age of twenty-six. Of other friends the most intimate was Henry Abbott. From the very first Abbott proclaimed himself a Copperhead, throughout the War cursed the purposes and abilities of Lincoln, condemned the strategy of the northern armies, and denounced the emancipation of the slaves as unconstitutional. Yet he fought with supreme courage in every battle in which the Twentieth was engaged, refused promotion which would have taken him to safer posts, and, when he finally fell in the Wilderness, was mourned by generals and privates as their heroic brother.

Read in this context of association and experience Holmes' Memorial Day speech takes on a very different meaning from that which his latter-day critics have given it. The young man who had joined the army in the conviction that the cause of abolition made the Civil War the moral crusade of the nineteenth century, found that those who saw it as the blundering effort of politicians to achieve through force ends which were beyond the constitutional limits of their power, were capable of a selfless heroism equalling if not exceeding his own. What wonder is there, then, that such a young man, already skeptical in matters of religious faith, should find himself at the War's end doubtful that "the right" as he conceived it had a better claim to universal validity than "the right" so differently conceived by his neighbor. Perhaps a man of relentless rationalism, having discovered that he neither knows what is true nor has solved the riddle of the universe, would have been satisfied to settle down, cushioned by his skepticism, to observe the silly antics of mankind—affirming nothing, denying nothing. Perhaps a man of firmer complacency would have returned from the War convinced that the greater sacrifices which wounded and dead comrades had made for the cause as they saw it were less significant than the sacrifices which he had made for the cause as he had seen it. But it is not surprising that a sensitive spirit and a skeptical mind, remembering such friends as Henry Abbott, gave neither the cynical nor the complacent answer to the problem of intense experience and came out of the War, despite all doubt, convinced of one truth "that the faith is true and adorable which leads a soldier to throw away his life in obedience to a blindly accepted duty, in a cause which he little understands, in a plan of campaign of which he has no notion, under tactics of which he does not see the use."

To read Holmes' Memorial Day Address as the creed of an authoritarian is totally to disregard its context; to suggest that he there was saying that might makes right, that the is is more important than the ought, distorts his thesis beyond recognition. It is to read his eloquent address to veterans as if it were a law review article on jurisprudence. This is not to say that Holmes never permitted oratory to get the better of judgment, or to deny that he let himself too frequently use the language of arms to dispose of questions of morality; it is only to ask that we take appropriate account of the influence which the experience of the Civil War had in moulding the contour of his skepticism.

If this interpretation of Holmes' intellectual development is accepted, it means that when he began the study of law in the fall of 1864 he had passed through two decisive phases of his growth. First, he had shaken off the religious faith on which so many of the assumptions of the world around him were based, and, second, he had learned from the War that personal taste in morals does not establish universal or objective truth in ethics. Skeptic in faith and skeptic in morals, he quickly found, however, that the world around him, particularly the world of legal theory in which he moved at the Harvard Law School, was heavy with the stagnant complacency of the pre-War years. The law in books was a conglomerate of Coke's artificial reason and Kent's equally artificial morality. Outside of books, the law, to be sure, was less burdened with pretension and piety, for such judges as Shaw in Massachusetts and Gibson in Pennsylvania had shown that good sense and the adjustment of English principle to American reality could make the law an effective instrument of government. Yet the words of Rufus Choate, spoken to the pre-War generation, still struck chords of sympathy in the minds of the post-War generation of lawyers. Choate had insisted that our national need was for "reformation of our individual selves," not for reform of our legal institutions. Describing the body of the law which he considered so deserving of preservation, Choate had said:

The judge does not make it. Like the structure of the State itself, we found it around us at the earliest dawn of reason, it guarded the helplessness of our infancy, it restrained the passions of our youth, it protects the acquisitions of our manhood, it shields the sanctity of the grave, it executes the will of the departed. Invisible, omnipresent, a real yet impalpable existence, it seems more a spirit, an abstraction,—the whispered yet authoritative voice of all the past and all the good,—than like the transient contrivance of altogether such as ourselves.²⁰

It is difficult for the present generation of lawyers to realize that when Choate spoke in these terms he was not simply indulging his passionate weakness for oratory, but was defining the prevailing concept of law. The concept was not appreciably shaken for most American lawyers until the 1880's. That it was shaken then was due primarily, perhaps, to the effort of Sir Henry Maine and others of the historical school to examine the institutions of the law with the same scientific detachment which Darwin had shown in examining the physical world around him. It was, of course, inevitable that Holmes, if he could be persuaded that law offered the same opportunity for generalization which the new philosophy and the new science offered, would join those scattered forces which were seeking to rid the law of its analytical and moral dogmatism. His first struggle was to persuade himself that the law did offer large opportunities for creative speculation. Shortly after the end of his law school course, if not earlier, he became convinced that the satisfaction which his philosophical instinct was seeking could be found in the law. During the fifteen years which passed between his graduation and his first appointment to judicial office, his energies were dedicated to the task of showing that a critically accurate understanding of the law would only be possible after two steps had been taken. First, its analytical traditions must be subjected to the same rigorous and skeptical inspection to which science had subjected theology. Second, its moral postulates, imbedded in the old complacency, must be reexamined without fear and without deference to settled pieties.

I need not discuss the first efforts which he made in essays and in book reviews to achieve those tasks. The fruits of all those efforts were brought together in The Common Law. The most significant achievements of that book were two. He made it impossible for later generations of lawyers to accept as valid Coke's maxim that "reason is the life of the law," and compelled them instead to accept as true the conflicting maxim that "the life of the law has not been logic; it has been experience."²¹He thus led American legal scholarship to follow the historical rather than the purely logical—even theological—methods which had threatened to dominate legal thought. The other achievement, less apparent though it may have been, was no less significant. It was to call attention to the fact that though moral conceptions had been of predominant importance in the initial formulation of rules of law, time and experience had given to the language of morality as it survives in law, a meaning substantially different from that which it originally possessed. In the first cases in which such moral concepts as those of "fraud," "malice," and "negligence" had been fruitfully utilized, the concepts had relatively clear dimensions. As time passed, however, the words had lingered in the law, still laden with deceptive implications of morality, but infused with a new meaning and serving new purposes. Generalizing the tendency of growth, Holmes found that the terms of subjective morality had acquired in the law an objective meaning quite different from that which they had at first possessed.

So far as I know, the latter-day critics of Holmes do not cite The Common Law to show that his creed was that of the positivist who asserts that law must concern itself exclusively with the is and never bother itself with the ought. Yet his address on"The Path of the Law" to which they have so frequently taken exception says little if anything more than what he had already said in The Common Law. The differences in emphasis are largely the result of the fact that The Common Law was a volume written for sophisticated and mature lawyers, whereas "The Path of the Law" was an address to students. Each effort, however, was the expression of the same philosophical concern of which I have already spoken. In talking to students, Holmes asked them at the outset to look behind the surface of traditional definitions to the stuff of the law. For generations, students had been told that law is "a system of reason" and had been charged by their elders to remember that it is "a deduction from principles of ethics." We may have forgotten the words of Rufus Choate, but, to the audience which Holmes addressed, the suggestion that the invisible and omnipresent law was "the whispered yet authoritative voice of all the past and all the good" still had persuasive eloquence. Read with appreciation of the circumstances in which the address was delivered, "The Path of the Law" is anything but the formulation of a totalitarian creed. It is a philosopher's plea that theory should be founded in fact; an historian's argument that experience tells more of truth than does eloquence.

The passages in the "The Path of the Law" to which Holmes' critics have taken most frequent objection opened with the suggestion that it was desirable to dispel a prevailing confusion between morality and law. In order to dramatize the suggestion, he urged that the student should look at the law from the standpoint of the bad man—a hypothetical figure who was concerned neither with moral right nor with moral wrong, and whose only interest was in knowing what sanctions society might bring to bear upon him if he followed a course of lawless conduct. Such a man, Holmes indicated, might have a more accurate understanding of the meaning in law of such words as "fraud," "malice" and "intent" than a student nurtured in the pieties of Rufus Choate. If Holmes' historical analysis in The Common Law was accurate and perceptive, it is hard to see how his dramatic reiteration of the same analysis in "The Path of the Law" became totalitarian. Professor Fuller and Holmes' other critics have not, so far as I know, argued that he was mistaken in saying that the language of morality when used in the law loses much of its ethical content. When Holmes' critics show that he was wrong in that matter, it will be time for them to show the error of his philosophical way. While that thesis remains unrefuted, however, the friends of Holmes are likely to believe that the current criticism of his views is founded either in misunderstanding of his argument or in an unimaginative, literalminded reading of "The Path of the Law."

The misinterpretation seems almost willful when one remembers that Holmes prefaced his argument with the following paragraph:

I take it for granted that no hearer of mine will misinterpret what I have to say as the language of cynicism. The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race. . . . When I emphasize the difference between law and morals I do so with reference to a single end, that of learning and understanding the law. For that purpose you must definitely master its specific marks, and it is for that I ask you for the moment to imagine yourselves indifferent to other and greater things.²²

Is this the language of one who sought to make law a matter not of reason but of fiat and who was not concerned with questions of the ought and only interested in the is? Does it indicate a repudiation of the conviction so firmly stated in The Common Law that "rules of law are or should be based upon a morality which is generally accepted"?²³ Professor Fuller says nothing of this prefatory caution nor does he refer to that other passage in "The Path of the Law" in which his positivist villain spoke of the direction which he thought the path should follow. "I look forward," said Holmes, "to a time when the part played by history in the explanation of dogma shall be very small, and instead of ingenious research we shall spend our energy on a study of the ends sought to be attained and the reasons for desiring them."²⁴

Professor Fuller has not, of course, overlooked such passages as those which I quote. He dismisses them with the casual statement that Holmes "did not always himself remain faithful to the program for a rigid separation of law and morals laid down in his early essays."²⁵ It is my thesis that Holmes never laid down the program which Professor Fuller ascribes to him, that from first to last he insisted that the ultimate source of law is the moral judgment of the community. He felt, however, that understanding of the law would be more perceptive than it had been if one saw morality as its source rather than its content. If Holmes' critics would limit their efforts to the task of showing that this conviction was mistaken they might succeed, but that success would not establish their present thesis that his philosophical concern was solely with the is and never with the ought.

Professor Fuller, with others, treats Holmes' definition of law—the prediction of what the courts will do in fact—as another aspect of the positivist's refusal to let conceptions of morality play their appropriate part in the legal process.²⁶ Once more this seems to involve an almost willful refusal to understand his thesis and his definition. Believing as Holmes did that "the law is the witness and external deposit of our moral life," it is inconceivable that he should ask lawyers to leave out of their predictions of what courts might be expected to do in fact—in other words, out of their consideration of law—all attention to the influence of morality on the minds of judges and jurors. What he was asking was that lawyers and judges should think things and not words, and become conscious of their responsibility to bring decisions into conformity with current standards of morality. Holmes once said that the strength of Mr. Chief Justice Shaw lay in his "accurate appreciation of the requirements of the community whose officer he was," and that few judges "have lived who were his equals in their understanding of the grounds of public policy to which all laws must ultimately be referred."²⁷ In "The Path of the Law," the alleged source of all imperfection, Holmes spoke of the utility of history, and described its use by lawyers as "the first step toward an enlightened skepticism, that is towards a deliberate reconsideration of the worth"²⁸ of rules of law. "It is revolting," he went on to say, "to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from the blind imitation of the past."²⁹ Remembering such utterances as these, how is it possible to accept Professor Fuller's statement that Holmes' "avowed purpose" was "to cut the law loose from the ethical considerations that have shaped it"?³⁰

The critics of Holmes might, perhaps, admit that they have exaggerated the positivist elements in his theory of law. Should they make that admission, I believe that they would return to the assault on other lines of battle. They would tell us, first, that the effort which he made to look at law from the bad man's point of view added nothing to our understanding of its character. I should be willing to admit that if his effort is read as an attempt to reach the heart of a philosophical problem, it was not entirely successful. It usually takes something more than a shift in emphasis to achieve profound insight. What Holmes was seeking to do was to put the familiar and valid thesis of The Common Law in dramatic terms, to suggest to his audience that their understanding of law would be more penetrating if they washed its precepts in cynical acid, and in doing so, discovered that its language of subjective morality was deceptive. Perhaps his effort was an artistic failure, possibly the dramatic image of the bad man was bound to distract the attention both of the speaker and the audience from the philosophic point in issue. If Holmes' failure was merely artistic, however, criticism of his effort should be concerned with that failure and not with the thesis which he sought to establish.

The other line of attack which I believe that Holmes' critics might be expected to follow would be the assertion that whatever his own philosophy may have been, he put it in such terms as to encourage his disciples to the commission of philosophic sin. By asking lawyers to think of themselves as bad men, by urging them to separate law and morality, by telling them that law is simply a prediction of what courts will do in fact, he started the train of positivism on its journey to cynicism. This visiting of the sins of the children upon their father seems a somewhat harsh sentence, particularly when it is imposed by the philosophers who ask that morality should play a part in law. If the misinterpretations of Holmes' beliefs by some of his disciples have been similar to those of his critics, the primary blame is on disciples and critics alike and not on Holmes. Again, however, I think it only proper to acknowledge that Holmes may deserve some blame for crediting his audience with an imagination greater than they possessed. Though I have spoken of his distrust of the rhetorical excesses of Rufus Choate, he himself was an effective orator and allowed himself, perhaps too frequently, to express philosophic doctrines of great subtlety in the dramatic language of oratory. To say this, however, is only to repeat my earlier point that legitimate artistic criticism is not necessarily valid philosophic criticism.

If my efforts thus far have met with any success, I trust that I have demonstrated that Holmes did not deny that a primary source of law is the realm of moral standards in which society has its being, and that he considered the first responsibility of the lawyer and judge to be that of bringing the law into conformity with those moral standards. It may be asked, however, whether this deference to morality had any substantial significance if Holmes denied, as he did, that our moral standards have objective—or, as he liked to say, cosmic—significance. Those persons whose articles of religious faith include the conviction that the Law of Nature has real existence and that virtue as we conceive it lies at the heart of reality, are compelled, of course, to believe that when Holmes repudiated the absolute in morals, he destroyed the ethical foundations of the law. For those of us, however, who doubt the cosmic significance of human values, I wonder whether the rejection of the absolute necessarily entails such destructive consequences. May not the value which is merely human have an influence on law as decisive as that which is gloriously absolute? Only if one is persuaded that it may, will it be possible to accept the interpretation of Holmes' philosophy of law which I have suggested. For if it is believed that standards of behavior, which are sustained by human sanctions only, may not lay claim to the honors of morality, then Holmes, by giving no other support to those standards than the taste and preference of men, denied that morality is a source of law. Such critics as Professor Fuller, however, do not purport to defend the absolute. The character of their misinterpretation follows a direction which suggests that his real offense, in their eyes, may be his moral skepticism, not his legal positivism.

This suggestion, that the true ground of their hostility to Holmes is something different from what it appears to be, is not, I believe, an insolent effort on my part to charge his critics with intellectual dishonesty, or a sly attempt to suggest that I know them better than they know themselves. For it seems to me that it is at this point of inquiry that we reach an issue of transcendent importance. That issue concerns problems of metaphysics and ethics more directly than it does questions of law, yet it is inescapably presented in the philosophy of Holmes. The question to which I refer is this: are we intellectually willing and emotionally able to accept that total skepticism which led Holmes to question whether man has a cosmic significance "different in kind from that which belongs to a baboon or a grain of sand"? There are many indications that our stomachs are not strong enough to accept the bitter pill which Holmes tendered us. Professor Fuller is not the only legal philosopher who is asking us to return, if not to the whole of the tradition of natural law, then at least to a significant portion. Although Professor Fuller has given to the concept of natural law a meaning substantially different from that which history has given it, his use of the familiar words is significant of a desire, shared by many thinkers of our generation, a desire to reinstate the monarchy of absolutes—no longer perhaps as an absolute monarchy but one subject to the constitutional restraints of scientific reason. This new doubt of our generation whether the skepticism of Holmes did not carry us too far is partly the result of the glimpse which Hitler gave us of cynicism triumphant. We have begun to ask ourselves whether, despite Holmes, there are not some standards of decency so fundamental and so permanent that they may properly be described as absolute. The legitimacy of such inquiry is beyond question; the one serious danger is that the glib journalism of such mountebanks as Westbrook Pegler will persuade us that there is no difference between the skepticism of Holmes and the cynicism of Hitler.

Those who are encouraging the revival of natural law, though they do not ask us to receive it with all its implications of divine authority, seem to me to be seeking shelter from skepticism beneath the deceptive security of a phrase. The security is sure to be deceptive so long as the phrase embraces no concepts more serviceable than those of social convenience, utility and the public need. If that is all that is included in this new law of nature which is being offered us as an alternative to the positivism of Holmes, it seems to me clear that we are only being asked to swap phrases in the middle of the philosophic stream. The problem of getting across will still be with us. The problem of defining law, the problem of deciding cases, and the never-ending problem of determining through what processes and by what standards the influence of morality on law is to be made effective, remain as they were when Holmes considered them. The danger to be feared in this effort to revive the concept of natural law is that it will lead us unconsciously back to the shop-worn absolutes of an earlier day. If criticism of Holmes proceeds without protest along the lines which it has recently followed, we shall soon find ourselves persuaded that skepticism inevitably breeds cynicism. To avoid that danger we are likely to become fearful of skepticism and seek solace in the delusive concept of natural law.

None of Holmes' serious critics has charged him with cynicism. As Professor Fuller has pointed out, Holmes found it possible to escape the despair which might seem the natural consequence of total skepticism by a romantic faith in the fruitfulness of struggle and of action. By putting his faith in the language of arms he used a tongue which to our generation is distasteful. I see no reason, however, for holding the language which experience made natural to him too much against him. His temperament, like ours, demanded some form of assurance that things are, or at least may be, better than they seem to the eye of reason. The experience of the Civil War, the memory of friends who had died for causes which they did not understand, provided him with the materials for faith. We might find that faith more lovable if its context had been less military. But we, who are also seeking for a faith which will give us protection from our own skepticism, should not be hypercritical of one whose search was inspired by impulses like our own. I wonder, in the end, whether a revived though pallid faith in the law of nature is not less healthy than his. If we should accept it, are we not likely soon to find ourselves not only allied with those who repudiate the achievements of skepticism but eager to rediscover the comforts of the absolute? If that eagerness becomes predominant in our philosophy, we shall be obliged once more to free ourselves from the old shackles. We would do better to stand by Holmes' faith and his skepticism than to repudiate both.

¹ Cardozo, Mr. Justice Holmes, 44 Harv. L. Rev. 683, 684 (1931).

²Id. at 691.

³Id. at 692.

⁴ See Boston American, Dec. 18, 1950, p. 34.

⁵ Ford, "The Fundamentals of Holmes' Juristic Philosophy" in Phases of American Culture 51 (1942).

⁶ Lucey, Natural Law and American Legal Realism, 30 GEO. L.J. 493 (1942).

⁷ Palmer, Hobbes, Holmes, and Hitler, 31 A.B.A.J. 569 (1945).

⁸ Palmer, Defense Against Leviathan, 32 A.B.A.J. 328 (1946).

⁹ Fuller, The Law In Quest of Itself 5 (1940).

¹⁰ Holmes, "The Path of the Law" in Collected Legal Papers 167 (1920).

¹¹ Fuller, op. cit. supra note 9, at 5.

¹²Id. at 106-07.

¹³ Holmes, Speeches 59 (1913).

¹⁴The Professor at the Breakfast Table, 2 Works of Dr. Oliver Wendell Holmes 295 (1892).

¹⁵ Tilton, Amiable Autocrat, 264 (1947).

¹⁶ Holmes, "Notes on Albert Durer, " 7 Harvard Magazine 41 (1860).

¹⁷ 7 id. at 144.

¹⁸ Unpublished letter, Holmes to Harold Laski (Sept. 18, 1918).

¹⁹Touched with Fire 122 n.I (Howe ed. 1946).

²⁰ I Works of Rufus Choate 436 (1862).

²¹ Holmes, The Common Law I (1881).

²² Holmes, Collected Legal Papers 170 (1920).

²³ Holmes, The Common Law 44 (1881).

²⁴Id. at 195.

²⁵ Fuller, op. cit. supra note 9, at 117.

²⁶ Fuller, Reason and Fiat in Case Law, 59 Harv. L. Rev. 376, 383-84 (1946).

²⁷ Holmes, The Common Law 106.

²⁸ Holmes, Collected Legal Papers 186 (1920).

²⁹Id. at 187.

³⁰ Fuller, supra note 26 at 384.