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Law without Values: The Life, Work, and Legacy of Justice Holmes (review)
- Civil War History
- The Kent State University Press
- Volume 50, Number 1, March 2004
- pp. 69-71
- 10.1353/cwh.2004.0011
- Review
- Additional Information
Civil War History 50.1 (2004) 69-71
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Law without Values: The Life, Work, and Legacy of Justice Holmes. By Albert W. Alschuler. (Chicago: University of Chicago Press, 2000. Pp. x, 325. Cloth $30.00.)
In this remarkable and unusual book, Albert Alschuler weaves together historical biography, legal biography, tort law, jurisprudence, and social commentary to address the life of Justice Oliver Wendell Holmes. In the words of Linda Przybyszewski, biographer of Justice Harlan, "Five tests usually surface in twentieth-century judicial biographies: wisdom, economic progressivism, vindication by history, integrity, and Holmes" (The Republic According to John Marshall Harlan,5). Holmes has been a demigod-like figure for law professors and judges, but Alschuler sees his influence extending beyond the legal profession. Alschuler argues that Holmes's legal and social legacy is a pervasive skepticism that has robbed the judicial system of values. By insisting that values are merely preferences and that no one's preference may rightly be asserted over another's, Holmes left the law empty. His admirers, usually influential young lawyers, created a Holmes myth, rehabilitating his [End Page 69] image to ameliorate the harsh social Darwinist outlook of this rather terrifying man. Alschuler levels extraordinary charges against the man some consider America's greatest legal thinker or its finest Supreme Court justice. Yet Alschuler's indictment is beyond provocative; it is also convincing.
How did Holmes become (dare we say it?) evil? Young Oliver was the child of an abolitionist mother and a famous Boston physician and author, the witty Oliver Wendell Holmes Sr., whose jocular essays on domestic life entertained readers of Atlantic Monthly. Oliver Jr. identified with his mother and joined her in the fight against slavery. When civil war divided the nation, Oliver left Harvard to join the Union army. He was wounded in battle three times, once near fatally. Though his parents urged him to reenlist, he refused. He came home seemingly detached from human society, a different man. Perhaps he was quite naturally traumatized by the horrors he witnessed, as thousands of his companions in arms died in every battle. Yet the change in Holmes was not solely the result of combat trauma, for he later gloried in remembering his days as a soldier. He did not take pride so much in his role as an emancipator of slaves as he did in his participation in the struggle itself. During the war Holmes came to believe that the meaning of life was struggle and that survival was all that mattered. There were no principled causes that actually meant anything; it did not matter which side one was on.
Alschuler argues that the Civil War was the turning point in Holmes's life and that he never diverged from this new path, not even a little. He even wondered whether it would be a good thing to banish words of moral significance from the law—a frightening prospect if he meant that law should be entirely separate from morals. In reference to his decision in Buck v. Bell, he bragged about upholding the constitutionality of a state law for sterilizing imbeciles, suggesting that in this way he was following the true principles of reform. Alschuler argues that Holmes's belief in eugenics, which went beyond the norm of his time by advocating the killing of inferior infants, was the product of a mind scarred by war. The author does not spend a long time giving the reader biographical details. Rather, he is interested in illustrating his point that reverence for Holmes has prevented scholars from seeing an all too discomforting truth: that Holmes twisted justice into a power struggle and that the path of law derived from his thinking may be warped.
For lawyers and legal scholars, Alschuler's attacks on Holmes's jurisprudence, especially in the area of torts, will stir debate. Calling into question the received wisdom about Holmes, the book represents a threatening critique of American legal thinking in general. Yet for readers not enmeshed in disputes about legal theory or personal injury law and who...