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  • Justice Holmes, the Social Darwinist
  • Seth Vannatta

1. Introduction and Origins

Social Darwinism covers a set of particulars bearing a family resemblance including, but not limited to (1) the extension of evolutionary biology to social phenomena, (2) a biological explanation for the success of certain more biologically "fit" groups over others, (3) an acceptance of the use of force by the "fit" to succeed over the "unfit" in the life struggle (Hawkins 31), and (4) a preference for competition in the marketplace and a laissez-faire ideology. The serpent of Social Darwinism leaves a trail of the eugenics movement in its wake. Evidence can be found that Oliver Wendell Holmes's judicial and non-judicial philosophy fits each of these instantiations.

This paper first explains the origins of Social Darwinism. Next, it examines the evidence supporting the five features of Social Darwinism in Holmes's writings. Then it evaluates the repugnant trail of eugenics in Holmes's Buck v. Bell decision. Last, the analysis pivots to concluding reflections on Holmes's contested legacy and on the label of Social Darwinist. I conclude that while much explanatory work can be done situating Holmes as a man of his time, and while he is rightly characterized as the first legal pragmatist, the label of Social Darwinist for him is quite fitting.

The term "Social Darwinism" was first used in Joseph Fisher's 1877 article "The History of Landholding in Ireland," published in the Transactions of the Royal Historical Society in 1877. It was popularized by the American historian Richard Hofstadter in Social Darwinism in American Thought in 1944. Hofstadter used the term to decry a reactionary ideology that trafficked in competitive strife, racism, and jingoism. Hofstadter recounts that Herbert Spencer coined the term "survival of the fittest" and criticized state interference with the natural working of the market. Public assistance to the [End Page 78] poor and regulations on businesses were both forms of conventional law, the product of the weak and unfit, disturbing the law of nature, which favored the fit and strong. Spencer's followers then used Darwinian evolutionary science to legitimize Spencer's social philosophy (Hofstadter xiv).

2. Evidence of Social Darwinism in Holmes's Philosophy

2.1 The Extension of Evolutionary Biology to Social Phenomena

The nineteenth-century instantiations of the attitude of Social Darwinism loom large in Holmes's career. Holmes certainly extended evolutionary biology to the social phenomenon of law. He saw himself as fulfilling Sir Henry Maine's historical method in Ancient Law in a post-Darwinian world. Holmes's The Common Law is "first of all an account of legal change, and its object in this respect is to exhibit the workings of Darwinian evolution in law" (Vetter 362). In light of this fact, Jan Vetter states explicitly that Holmes "is best seen . . . as a kind of Social Darwinist" (363). He referred to early conceptions of law as embryonic and attempted to show that law, responding to externalities, evolves by organic necessity (Holmes, Collected Works 1: 189). Holmes's first lecture in The Common Law, "Early Forms of Liability," treats the law as an organic, evolving form. Referring to the evolutionary nature of law, he states, "[J]ust as the clavicle in the cat only tells of the existence of some earlier creature to which a collarbone was useful, precedents survive in the law long after the use they once served is at an end and the reason for them has been forgotten" (Holmes, Collected Works 3: 132). In the first three lectures of The Common Law, Holmes shows that the modern concept of liability began from a concept grounded in vengeance and the passion for revenge, where the action for damages was brought against the owner of the deodand, or, in even more primitive cases, liability was attached to the offending thing, not the human agent (Holmes, Collected Works 3: 132). The long evolution of the concept of liability from primitive to modern was one from vengeance to compensation, from inanimate objects to living things, to owners of living things, to knowledge of the owner of the living thing, and finally to the concepts of negligence and culpability (Holmes, Collected Works 3: 132...


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