Law without Values: The Life, Work, and Legacy of Justice Holmes
By Albert W. Alschuler
In this book, University of Chicago professor Albert W. Alschuler categorically debunks the jurisprudence of the Yankee from Olympus.
University of Chicago Press (2000)
Reviewed by: Eric Howard
This short, well-written biography concentrates on one objective: arguing against the jurisprudence of Oliver Wendell Holmes and for a return of moral sensibility in American law. Holmes has been lionized as America's greatest legal mind, but Alschuler's argument is persuasive.
In the author's view, the horrors that Holmes experienced in the Civil War permanently shaped—or warped—his thinking. Having seen and felt in many slaughters what earthly power could do, Holmes became extremely skeptical of abstractions, especially moral ones. Thus, Holmes developed a jurisprudence based on power rather than justice. Contemptuously distrustful of such notions as duty and fairness, Holmes consistently applied a Nietzschean, extremely pragmatic approach in his legal philosophy. In this, Holmes was far ahead of his time, but, Alschuler argues, not admirable. As the book's jacket flap puts it:
Holmes's legacy was not a revolt against formalism or against a priori reasoning; it was a revolt against the objective concepts of right and wrong--against values.
Alschuler urges legal practitioners and scholars to reject Holmes's jurisprudential legacy. The law, the author points out, is all about right and wrong, what should or should not be done, and Holmes's attempts at removing human feeling from law do not withstand logical examination. Alschuler's deconstruction of Holmes's writings on tort law, for example, is compelling.
This book is clearly intended to invite rather than avoid controversy. Whatever effect it has on American jurisprudence, it is certainly a compelling, highly readable challenge to the standard-issue perception of an American icon.
Eric Howard is associate editor of Los Angeles Lawyer.