9 - Oliver Wendell Holmes, Jr., and William James: The Bad Man and the Moral Life

Summary

Why has there been so much controversy about Holmes – why so much disagreement over the nature of his views? On one level, he was exceptionally articulate. The sharpness of his wit left little doubt about where he stood on particular issues. But on another level, he was often obscure. Despite the seeming lucidity of his prose, scholars have been unable to agree even on a general description of his theoretical views: they have variously described him as a realist, a positivist, an instrumentalist, a utilitarian, a pragmatist, a liberal, a conservative, a fascist, a critical theorist, a cynic, an idealist, and even a nihilist. Among this wealth of labels, two have seemed especially appropriate. The first – “legal realist” – seems plausible because of Holmes's well-known disagreement with the logical methods of Christopher Columbus Langdell. In reviewing Langdell's book Cases on the Law of Contracts, Holmes made his disagreement clear: “The life of the law,” he wrote, “has not been logic: it has been but experience.” In addition, the notion of Holmes as a realist gained credibility from the fact that the realists themselves frequently regarded him as a leader of their movement. Nevertheless, a thoroughgoing realism seems inconsistent with many of his articulated views. If he was a realist, then how would we explain his insistence that legal doctrine be properly categorized, his close attention to legal precedent, and his continuing interest in the process of legal reasoning?