Oliver Wendell Holmes, Jr., Legal Theory, and Judicial Restraint (review)

The popular success of Louis Menand's The Metaphysical Club was to some a blessing and a curse. On the one hand, it brought a broad audience's attention to American pragmatism. On the other, scholars found a great deal in the book with which they disagreed or that they otherwise found troubling. Among the areas of disagreement was the great importance that the text placed on Oliver Wendell Holmes, Jr. Holmes came first in the book and was connected to the pragmatists given his brief participation in the metaphysical club, which the book takes as its central thematic springboard. It is only fitting, then, that some scholarly attention be devoted to examining the real connections that might be solidified between Holmes and the pragmatists. Readers in the Society for the Advancement of American Philosophy will be pleased to know that Frederic R. Kellogg's 2007 book, Oliver Wendell Holmes, Jr., Legal Theory, and Judicial Restraint, has much to offer scholars of pragmatism.¹

Certainly a great deal of scholarship has been devoted to Holmes. But as Kellogg clearly shows, many common assumptions or arguments about Holmes's work are misleading. And, while scholarship has focused on several periods of Holmes's career, Kellogg's attention is directed at Holmes's years of scholarship. Holmes has been criticized heatedly over his strong skeptical outlook. He has also been charged with relativism and a lack of values. Kellogg defends Holmes to show the richness of his skeptical inquiry, his transformational, evolutionary understanding of law and society, and his defense of the common law tradition that rejected legal positivism.

Kellogg demonstrates many key features of Holmes's thought that bear pragmatist qualities. Kellogg shows the communal aspect of Holmes's theory of inquiry, Holmes's rejection of abstraction as a fundamental starting point of ethical inquiry, and the continuity of public inquiry with morals. Legal positivists believe that law and morality are to be understood separately, whereas thinkers like Holmes and Dewey clearly shared the view that these are intertwined elements of experience not to be divorced.

Kellogg's eleven chapters begin by setting in historical context Holmes's work among the various stripes of legal scholarship that draw from works dating back to Hobbes. In the process, Kellogg corrects some troubling misconceptions that have led some to see Holmes as a "power-oriented amoral relativist" (12). Next, Kellogg addresses "Holmes's Conception of Law" and the latter's re-thinking of the common law tradition. Then, he follows these earlier chapters with an examination of Holmes's decisions in Massachusetts, which Kellogg says "reflect and elucidate [Holmes's] scholarly concept of law," and some from the early portion of Holmes's Supreme Court days as well (25).

What has troubled many critics of Holmes is his simultaneous disavowal of eternal moral principles and his belief that law as developed in the courts can foster moral progress. Both of these themes are in line with the pragmatist traditions of understanding the evolutionary aspect of experience, moral principles, and the importance of considering historical development in moral theorizing. As with pragmatists and the common law tradition, Holmes believed that particular cases are formative of generalized principles. Pragmatists holding that we must beware of the ahistorical application of abstract principles to new particulars will have sympathy for Holmes.

Chapter 7 of Kellogg's book, "Morals and Skepticism in Law," demonstrates the challenge of categorizing Holmes's thinking. For, even if Holmes holds to the common law tradition, his extensive skepticism leads him also to defer to legislation in a way that can seem "unprogressive" (101). Progressives often have had much appreciation for Holmes, however, insofar as his vision "is fundamentally open to transformation" (22).

The tension we feel in considering the progressive and unprogressive elements of Holmes's legal theory are central to Kellogg's analysis. He argues that Holmes's work has an "overall consistency" that critics have not recognized (171). The trouble that critics see...