In recent decades, Oliver Wendell Holmes has been praised as "the only great American legal thinker" and the "most illustrious figure in the history of American law." In Law Without Values, Albert W. Alschuler paints a darker picture of Justice Holmes as a distasteful man who, among other things, espoused Social Darwinism, favored eugenics, and as Holmes himself acknowledged, came "devilish near to believing that might makes right.”
Alschuler begins by examining Holmes’s power-focused philosophy and then turns to Holmes the person, describing how the horrors he experienced in the Civil War transformed his outlook into one of moral skepticism and profoundly colored his decisions, both personal and legal. This skepticism, Alschuler argues, was at the root of his personal indifference to others, his romanticization of war and struggle, his persistent efforts to substitute power metaphors for judgments of right and wrong, and his “bad man” concept of law. His pernicious legacy, according to Alschuler, is evident in much contemporary legal thought, from critical legal studies on the left to law and economics on the right. Contrary to the perception of many modern lawyers and scholars, 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. Arguing for a restoration of moral judgment, Alschuler shows how a new epistemology developed primarily by post-World War II writers points the way to a revival of our moral realist or natural law heritage.
Alschuler’s thoroughgoing, no-holds barred debunking of Holmes, together with his critique of contemporary legal scholarship and proposal for the resurrection of concepts such as justice and duty, will be a lightning rod for discussion and debate.
- Table of Contents
- Chapter 1: Moral Skepticism in Twentieth-Century American Law
- Chapter 2: A Power-Focused Philosophy
- Chapter 3: Would You Have Wanted Justice Holmes as a Friend?
- Chapter 4: The Battlefield Conversion of Oliver Wendell Holmes
- Chapter 5: Holmes’s Opinions
- Chapter 6: Judging the Common Law
- Chapter 7: The Descending Trail: Holmes’s Path of the Law
- Chapter 8: The Beautification of Oliver Wendell Holmes
- Chapter 9: Ending the Slide from Socrates and Climbing Back