North Dakota Law Review Volume 83 Number 2 Article 3 1-1-2007 The Municipal Ideal and the Unknown End: A Resolution of Oliver Wendell Holmes Michael F. Duggan, Ph.D Follow this and additional works at: https://commons.und.edu/ndlr Part of the Law Commons Recommended Citation Duggan,, Michael F. Ph.D (2007) "The Municipal Ideal and the Unknown End: A Resolution of Oliver Wendell Holmes," North Dakota Law Review: Vol. 83 : No. 2 , Article 3. Available at: https://commons.und.edu/ndlr/vol83/iss2/3 This Article is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact [email protected]. THE MUNICIPAL IDEAL AND THE UNKNOWN END: A RESOLUTION OF OLIVER WENDELL HOLMES * MICHAEL F. DUGGAN, PH.D. I think that the sacredness of human life is a purely municipal ideal of no validity outside the jurisdiction.1 If I were dying, my last words would be have faith and pursue the unknown end.2 I. INTRODUCTION: THE HOLMESIAN BIFURCATION: DARWIN, MALTHUS AND THE “MUNICIPAL IDEAL” The article on Oliver Wendell Holmes in The Oxford Companion to the Supreme Court frames a well-known tension in his thought that at first glance would seem impossible to reconcile.3 In fact, the underpinnings of *Adjunct Professor of Liberal Studies, Georgetown University; Library Assistant and Supervisor of Bench Aides at the Supreme Court of the United States. I would like to thank David Isenbergh, many of whose ideas helped shape this article. For their insightful comments on drafts of this paper, I thank Linda S. Maslow, Assistant Librarian for Research Services at the Supreme Court, Noah R. Feldman, and Robert Fabrikant. I also thank Nicholas Matlach for technical assistance. Those who write on Holmes tend to approach him from a philosophical perspective (or from the history of philosophy) or from the law (or legal history) or as a hybrid of these (e.g., legal philosophy). Although I discuss aspects of his legal thought below, my approach to Holmes is from philosophy—more analytical than continental—and from a perspective within the history of ideas. The practical lawyer who reads this may grow impatient by the lack of case citations and what may seem to be an excess of theoretical speculation. I think this sort of approach to a topic related to the law has the potential for both insights and pitfalls, and only hope that my article will prove to be satisfactory to the modern heirs of the practical attorneys to whom Holmes first read The Path of the Law, 110 years ago. 1. OLIVER WENDELL HOLMES, The Path of the Law, in THE ESSENTIAL HOLMES 102 (Richard A. Posner ed., Univ. of Chi. Press 1992). 2. Letter from Oliver Wendell Holmes to Mr. Wu (Jan. 27, 1925), in JUSTICE HOLMES TO DR. WU: AN INTIMATE CORRESPONDENCE 1921-1932, at 24 (Central Book Co. 1947). 3. THE OXFORD COMPANION TO THE SUPREME COURT OF THE UNITED STATES 410 (Kermit L. Hall ed., Oxford Univ. Press 1992). The relevant text reads: To Holmes, life was a continual clash for groups—nations, races, classes— representing great conflicting principles, struggling for survival in a world of limited resources. The Constitution required only that the domestic struggle be fair and peaceful. The tack of the judge was to choose fairly between contending forces. Political truth was to be worked out in the competition of the marketplace and not imposed by armies or police. The inconsistency in Holmes’s ideas of the judge’s role became more marked as he grew older. His Darwinist, quasi-scientific system called for judges to serve, in the 464 NORTH DAKOTA LAW REVIEW [VOL. 83:463 Holmes’s philosophy are based on an apparent bifurcation amounting to a powerful contradiction: On the one hand is his frequently stated belief in a harsh Darwinian or Malthusian naturalism, a respect for often coercive, external power and an amoral, pragmatic approach to the law. On the other hand, is a view of the law suggesting a commitment to duty, balance, fairness, reason and moderation.4 When we factor in Holmes’s affable personality, his verve, and his romantic approach to life with the latter mode, and the dark skepticism found in some of his letters with the former, this gap becomes even wider, the poles more incongruous. This dichotomy—seemingly exclusive to the point of self-negation—is the central problem with Holmes’s view of the law and of life. A born skeptic, Holmes’s general outlook was influenced by evolutionary theory and nineteenth century positivism.5 As a youth, he had a streak of idealistic rebelliousness, but his service in the Civil War transformed this into something harder.6 Although he never subscribed to end, the survival of their own class or nation. Yet in the chivalrous system of the law Holmes described, the judge must set aside his personal loyalties and views, deciding cases fairly even when that would mean death to the existing order. Holmes’s self-denying sense of duty, his loyalty to the future of humanity rather than its present order, apparently was founded on faith in something outside of the evolutionary system of law. It could not be reconciled with Holmes’s system and indeed seemed to contradict it. As he grew older, Holmes’s sense of duty came to predominate, so that his opinions seemed to be the impersonal voice of duty itself. 4. See id.; see also infra note 9 and accompanying text. 5. For an overview of Holmes’s philosophical influences, see PHILIP P. WIENER, EVOLUTION AND THE FOUNDERS OF PRAGMATISM 172-79 (Harvard Univ. Press 1949). See also Sheldon M. Novick, Holmes’s Philosophy and Jurisprudence: Origin and Development of Principal Themes, in 1 COLLECTED WORKS OF JUSTICE HOLMES: COMPLETE PUBLIC WRITINGS AND SELECTED JUDICIAL OPINIONS OF OLIVER WENDELL HOLMES 18, 18-73 (Sheldon M. Novick ed., Univ. of Chic. Press 1995). Other insightful overviews of Holmes’s life and thought include DAVID H. BURTON, OLIVER WENDELL HOLMES, JR.: WHAT MANNER OF LIBERAL? (Robert E. Krieger Pub’g Co. 1979), and MAX LERNER, THE MIND AND FAITH OF JUSTICE HOLMES i-6 (Little, Brown & Co. 1943). 6. Neither Holmes’s skepticism nor his romanticism was the result of his experiences in the war, but both were altered and brought to maturity by it. In a letter to Morris Cohen dated February 5, 1919, Holmes claims to having inherited from his mother a “skeptical temperament.” Letter from Oliver Wendell Holmes to Morris Cohen (Feb. 5, 1919), in THE ESSENTIAL HOLMES, supra note 1, at 110. He also mentions his early support of abolition and a belief in Emersonian Transcendentalism here. Id. The values Holmes embraced as a young man included chivalry, idealism, and an emerging belief in duty. Duty is what a person commits to and what guides his or her actions in situations with a lack of certainty. It is a commitment to grand strategy with only a tactical perspective. Oliver Wendell Holmes, Natural Law, in THE ESSENTIAL HOLMES, supra note 1, at 183. Holmes’s duty, therefore, is strangely like faith—a word that we must use in a qualified sense with him. Since Holmes believed that our knowledge of things is modest and incomplete, the virtues that he valued—loyalty, duty, courage, etiquette—were also modest and not deontological absolutes. They comprise a simple system of belief for a man who thought that anything more ambitious or optimistic was unfounded. For a discussion of this perspective, see Catherine Pierce 2007] A RESOLUTION OF OLIVER WENDELL HOLMES 465 the undisciplined, wholesale evolutionism of Herbert Spencer or the vitalism of Hegel, he did believe that evolution could be meaningfully applied to the development of the law, which, along with the general growth of human knowledge, is among the few, non-biological spheres in which evolutionary explanations based on natural selection are appropriate.7 Holmes’s unsentimental view embraced the idea that the struggle for survival in nature was also a part of the human condition and therefore manifest in civilization at large. After all, people are a subset of nature and not the other way around. In spite of his bluster and didacticism characterizing adjudication as “playing the game by its rules,” and his dismissal of morality as etiquette— manners to ameliorate pure force—and nothing more objective than “the human point of view,”8 Holmes believed that some solutions in the law Wells, Old-Fashioned Postmodernism and the Legal Theories of Oliver Wendell Holmes, Jr., 63 BROOK. L. REV. 54, 59-85 (1997). In one of his occasional speeches, Holmes evoked a scene of a soldier’s grave in juxta- position to the activity of the thinking man of consequences. Both exist in the cosmos where “the truth of truth” is not certain, and both men are men of action in very different ways. Holmes’s Walbridge Abner Field Speech of November 25, 1899, in THE ESSENTIAL HOLMES, supra note 1, at 213. The soldier dies to help make the kind of world in which he would want to live. Likewise, the philosopher will never know if he was right, but acts nonetheless by advancing his ideas, “knowing that he could go no further.” Id. This would seem to be the basis of Holmes’s idea of an existential allegiance to duty to what one believes without knowing. And it is this commitment that defines much of his outlook.