University of Connecticut OpenCommons@UConn Faculty Articles and Papers School of Law 1998 Holmes and the Romantic Mind Anne Dailey University of Connecticut School of Law Follow this and additional works at: https://opencommons.uconn.edu/law_papers Part of the Jurisprudence Commons, Law and Philosophy Commons, and the Legal Biography Commons Recommended Citation Dailey, Anne, "Holmes and the Romantic Mind" (1998). Faculty Articles and Papers. 234. https://opencommons.uconn.edu/law_papers/234 +(,121/,1( Citation: 48 Duke L.J. 429 1998-1999 Content downloaded/printed from HeinOnline (http://heinonline.org) Tue Aug 16 12:50:56 2016 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0012-7086 HOLMES AND THE ROMANTIC MIND ANNE C. DAILEYt ABSTRACr Oliver Wendell Holmes, Jr. is perhaps best known for his "tough- minded" jurisprudence based on objective standards of reasonable- ness. Scholars have traditionallyunderstood Holmes's jurisprudential outlook as fundamentally behavioristic. Professor Dailey challenges that understanding,revealing the importance of Romantic psychology in Holmes's major writings. His outlook, she argues, was shaped by his belief in unconscious motivations, imagination, irrationality and instinctual drives. Rather than simply characterize Holmes as a "Romantic," Professor Dailey draws out the conflict in his thought, illuminating his struggle to develop an empiricalapproach to law that could also accountfor the depth and complexity of human nature. TABLE OF CONTENTS Introduction ............................................................................................430 I. The Psychology of Holmes's Jurisprudential Writings ..................438 A. Instincts and Evolution ................................................................439 B. Unconscious Ideas and Legal Rules ............................................447 II. Empirical Foundations and Their Limits .......................................457 A. German Physiological Psychology ..............................................461 B. British Associationist Psychology ...............................................472 C. American Functionalism ..............................................................480 III. Rom antic H orizons .........................................................................485 A. German and English Romantic Influences ................................486 B. Seeing Through the Heart and Will ............................................493 C. H eroism in the Law .......................................................................502 C onclusion ..............................................................................................508 t Professor of Law, University of Connecticut School of Law. I would like to thank Professors Peter Gay, Rick Kay, Tom Morawetz, Kent Neumeyer, Jeremy Paul, Nomi Stolzenberg, Chief Judge Richard Posner, and Dr. Ernst Prelinger for their helpful comments and criticisms. Special thanks go to Steven Ecker and Deborah Rothstein. 430 DUKE LAW JOURNAL [Vol. 48:429 A keen, slender, stridulous vibration-almost too fine for the hearing, weaving in and out, and in the pauses of the music dividing the silence like a knife-pierces my heart with an ecstasy I cannot utter. A! what is it? Did I ever hear it? Is it a voice within, answer- ing to the others, but different from them-and like a singing flame not ceasing with that which made it vocal?' INTRODUCTION The jurisprudence of Oliver Wendell Holmes, Jr. is not usually associated with the poetry of Wordsworth, Shelley and Coleridge, the novels of Goethe, or the philosophy of Fichte, Schelling, and Carlyle. In fact, eighteenth-century Romanticism' seems directly at odds with the scientific empiricism of Holmes's professional writings: the "bad man" view of lawyering;3 the positivist definition of law as prediction;4 the enthusiasm for the "master of economics" and 1. Letter from Oliver Wendell Holmes, Jr. to William James (Apr. 19, 1868), quoted it RALPH BARTON PERRY, THE THOUGHT AND CHARACTER OF WILLIAM JAMES 92-93 (Harvard Univ. Press, briefer version 1948) (1935). 2. The use of the term "Romanticism" in this Article is discussed in Part III.A. Briefly, the term "Romantic" is used here to denote the counter-Enlightenment ideas about human nature present in the work of a wide and varied group of writers, critics and philosophers across France, Germany and England during the late eighteenth and early nineteenth centuries. As explained below, Romantic psychology stressed the powers of intuition and imagination, subjective experience, psychic conflict, irrationality, nature and inner transcendence. See infra notes 283-95 and accompanying text. This Article assesses the place of Romantic ideas about human nature in Holmes's jurisprudential work. The focus here is on his early theoretical writings, speeches, and correspondence, and not on his later decisions as a Supreme Court Justice. Although it is my belief that Holmes's Romantic psychology played a role in his later decisions, including his post-World War I First Amendment opinions, I do not develop that thesis here. For an example of a Holmes opinion that uses language reflecting a Romantic view of the unconscious, see Chicago B. & Q. Ry. Co. v. Babcock, 204 U.S. 585, 598 (1907) (stating that the reasoning of an administrative body expresses "an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions ... which may lie beneath consciousness without losing their worth"). 3. Oliver Wendell Holmes, Jr., The Path of the Law, 10 HARV. L. REv. 457, 459 (1897) [hereinafter The Path of the Law], reprintedin 3 THE COLLECTED WORKS OF JUsTICE HOLMES 391, 392 (Sheldon M. Novick ed., 1995) [hereinafter COLLECrED WORKS] ("You can see very plainly that a bad man has as much reason as a good one for wishing to avoid an encounter with the public force, and therefore you can see the practical importance of the distinction between morality and law."). 4. See, e.g., id. at 460-61 ("The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law."). 1998] HOLMES AND THE ROMANTIC MIND 431 quantitative decisionmaking5 and the external standard of liability.6 Even the discovery of Holmes's romance with Lady Castletown7 has done little to alter the views of a legal world long accustomed to the idea of Holmes as a "tough-minded," unsentimental legal thinker.8 Yet as this Article explains, the central tenets of Romantic psychology occupied an important place in Holmes's jurisprudence. Taken together, Holmes's published writings, speeches and correspondence offer a view of human nature strongly reminiscent of eighteenth-century Romantic literature and philosophy. Like the Romantic writers he read most frequently-notably, Wordsworth, Coleridge, Carlyle and Goethe-Holmes asserted the existence of such fundamental and nonempirical psychological concepts as unconscious motivations, instinctual desires, inner conflict, irrationality, imagination and transcendent faith in "the infinite."9 His two most important jurisprudential works, The Common Law and The Path of the Law, incorporate a view of individuals as intuitive beings whose rational faculties can be overcome by deep-seated instincts and unconscious passions. His letters, speeches, journals and reading lists document his abiding interest in the idea of an active and creative mind endowed with native faculties and capable of intuitive insight. Alongside his celebrated enthusiasm for empirical science lay 5. See, e.g., id. at 469 ("For the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics."). 6. See, e.g., OLIVER WENDELL HOLMES, JR., THE COMMON LAW 108 (Boston, Little, Brown & Co. 1881) [hereinafter THE COMMON LAW] ("The law considers, in other words, what would be blameworthy in the average man, the man of ordinary intelligence and prudence, and determines liability by that."). 7. In 1985, a trove of letters written by Holmes to Lady Clare Castietown, the wife of an Irish Baron, was discovered. Written over a three-year period from 1896 to 1899, the letters reveal Holmes, 55 years old and married at the time, to have been passionately and somewhat impulsively in love. See David J. Seipp, Holmes's Path, 77 B.U. L. REV. 515, 534-37 (1997) (excerpting several of the 103 letters from Hoimes to Lady Castletown that have been preserved). 8. The term "tough-minded" as applied to scientific empiricism comes from William James. See WILLIAM JAMES, PRAGMATISM: A NEW NAME FOR SOME OLD WAYS OF THINKING 262-63 (1907). In a letter to James written after receiving a copy of Pragmatism, Holmes conceded: "You would say that I am too hard or tough-minded." Letter from Oliver Wendell Holmes, Jr. to William James, quoted in David A. Hollinger, The "Tough-Minded" Justice Holmes, Jewish Intellectuals, and the Making of an American Icon, in THE LEGACY OF OLIVER WENDELLHOLMES, JR. 216,218 (Robert W. Gordon ed., 1992). 9. The Path of the Law, supra note 3, at 459, reprinted in 3 COLLECrED WORKS, supra note