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February 16, 2014

Faulkner on "the besetting and deepest flaw of Holmes' thought"

Anyone wishing to understand the philosophic basis of American constitutionalism as developed in the jurisprudence of John Marshall would be well served to read and reflect on Robert Faulkner’s 1968 book, The Jurisprudence of John Marshall.

In Appendix I (“Justice Holmes and Chief Justice Marshall”), Faulkner investigates the contrasting thought of Marshall and Oliver Wendell Holmes, Jr. One portion of this discussion in particular stood out for me when a recent reading revealed resonance with Chapter 1 of John Finnis’s magisterial Natural Law and Natural Rights. It is Faulkner’s discussion of Holmes’s failed attempt at a value-free description of law, an “abstraction from humane ends” that Faulkner describes as “the besetting and deepest flaw of Holmes’s thought.” (Lengthy excerpt after the jump:)

Holmes’ science began as a description of law as it “really” is, of the forces which move the law. So beginning, how can it measure or guide those forces and thus instruct the law? For law is inevitably a standard for the use of force, not simply a force. Law is a rule, and therefore looks askance at arbitrary force; it is usually designed to pursue some sort of justice or public good, and thus also looks askance at force utterly without right. If law is not a standard for action (it needn’t, of course, be a sufficient standard), it does not exist. Holmes meets this objection by seeing a standard implicit in the basic forces moving the law: the ideal develops from and by means of the real. Scientific “consciousness” is the culmination of historical development. The difficulty remains. We must have trans-historical knowledge to judge of history’s development, to know what is ideal, to know a culmination from a useful tool, a development from a vast concatenation of changes signifying nothing. History doesn’t teach; its lessons must be drawn out by judgment. Science can’t provide the judgment Holmes needs. It is only a tool for human utility. It doesn’t and can’t indicate the things men should seek and even the limited range of things that men should regard as useful. 

This “descriptive” basis mixing science with historical development gone, all of Holmes’ confidences and hopes for the future must be seen as what they are: confidences and hopes. The utopia of human “consciousness,” the sanguine faith in history’s victor, the expectation that ideas obtain power according to their worth, the recommendation to let the struggle in politics, economics, and ideas go on unimpeded—these have in their Holmesian form little behind them but “faith,” that is, belief without rational foundation. It is striking how frequently the “realistic” Holmes chose to rely on what he called “faith.” It seems that he was not unaware of some difficulties in his thought. His fundamentally optimistic fatalism was often tinged with a pessimistic skepticism. He saw, in a way, that by making the future his standard of truth he lost the ability to judge now, even as to whether the future will be truthful. Moreover, it becomes dubious whether change is development if its purport appears obscure. The resulting tension leads to characteristically paradoxical statements: “the key to happiness is . . . to be not merely a necessary but a willing instrument in working out the inscrutable end.” Need one say that if the end is inscrutable, one cannot distinguish an instrument from an obstacle? Should one then hang one’s happiness, and the country’s happiness, on the unknown? Holmes’ “more cosmopolitan standards” amount to little more than the replacement of the statesman’s judgment by condescending calls for change, couched in misleadingly brief and aphoristic rhetoric, resting on no more than blind faith in the future.


To some, however attentive to the argument we have made, this conclusion will sound unnecessarily harsh. Certainly, many of the particular legal decisions and political policies for which Holmes stood, sometimes against the narrow and mean jurisprudence of his contemporaries, can be defended. The point is that Holmes’ theoretical defense won’t do, and, moreover, that his policies and defense constantly assume moral and political accomplishments, of both statesmen and philosophers, for which he neither accounts nor provides. Certainly “theory” has a place in the law. The point is that Holmes’ kind of theory preempted the guidance of American law only to show itself incapable of guiding. One may readily acknowledge the importance of legal philosophy, if not of Holmes’ elaborately scientific and historical theory. Yet it must be said that such speculations have a very limited place in American law. A few remarks on that place will clarify the role in American legal practice of judicial statesmen like Marshall.

We are still tempted to embrace in the field of ethics, politics, and the law those methods of natural science which have had such spectacular results elsewhere. The temptation must be resisted. A science exploiting nature for the benefit of man presupposes some judgments as to what is beneficial for man. That knowledge modern science cannot provide. As applied to human affairs social science admits this inability and even prides itself on being “value-free.” Judgments of value, however, guide the well-intentioned law-maker and judge. Although we need efficient techniques to assist in what we wish to do, we need first know what to do. Means follow from ends, where not in themselves worthy or unworthy. This orientation by moral and political ends is absent from Holmes’ jurisprudence. Holmes turned much of modern jurisprudence to the study of judicial decision-making, but left vacant its essence: a reasonable view of what constitutes justice in America, of the rights and duties of citizens and of the institutions of law, economics, and polity appropriate for the country. A methodological utopia is substituted for sound political counsel.

It is this abstraction from humane ends which is the besetting and deepest flaw of Holmes’ thought. It controls his sketch of Marshall, the judge evaluated in terms of the thinker’s chill transformation. Marshall’s significance for the patriot is described as “union”—with no characterization of the kind of union and its worth for Americans. His significance for lawyers was the raising of law above state—with no estimate of the political advantages and disadvantages of such a momentous achievement. . . . Among Holmes’ publications and judicial opinions there is nothing focusing on constitutional law in the broad and statesmanlike manner of any one of a dozen Marshallian opinions. Marshall and Holmes each wrote one book. Marshall’s comprised the life and especially the military and political accomplishments of Washington, the country’s greatest statesman [as Marshall thought], the fundamental founder and savior of its best institutions. Holmes’ comprised a series of lectures on private law—in a manner which seems to have bent evidence and presentation to conform to his Darwinian philosophy of history. 

Robert Kenneth Faulkner, The Jurisprudence of John Marshall, pp. 262-66 (1968).

Posted by Kevin C. Walsh on February 16, 2014 at 09:57 AM in Walsh, Kevin | Permalink