Ideas: A History from Fire to Freud

Holmes Junior was as impressed with Emerson as his father had been. As a freshman at Harvard in 1858, he said many years later, Emerson ‘set me on fire’. But Holmes Jr was not in exactly the same mould as his father. Though Holmes Sr had been an abolitionist on religious grounds, he never had much direct involvement with blacks. Holmes Jr, on the other hand, felt the situation rather more keenly. He found The Pickwick Papers distasteful because of its treatment of West Indians and he likewise detested minstrel shows – they were, he said, ‘demeaning’.⁹ He agreed with Emerson, that a scientific world view did not preclude a moral life, or that it was possible to live in a better relation with one’s fellow men outside organised religion than within it.

Holding such views, the Civil War, when it broke out in 1861, provided him with an opportunity to do something practical. True to his word, Holmes accepted a commission ‘in a spirit of moral obligation’.

¹⁰ His very first engagement, the battle of Ball’s Bluff, on 21 October that year, was far from being a success: 1,700 Union soldiers made the advance across the river, but less than half returned. Holmes took a bullet near the heart, the first of three injuries he was to suffer in the war and these wounds, as Menand observes, shaped him. (His handwriting in his letters was less than perfect, he told correspondents, because he had to lie flat on his back.)¹¹ Subsequently, although he might recount his fighting exploits from time to time, he never read histories of the Civil War.¹² He knew what he knew and he had no need and no wish to revisit the horror. The Civil War was fought with modern weapons and pre-modern tactics. The close-order infantry charge was designed for use against the musket, a gun with a range of about eighty yards. Nineteenth-century rifles had a range of 400 yards. This accounts for the terrible carnage of the Civil War, which is still the war in which most American lives have been lost and why it had such an effect on Holmes and others.¹³

Amid the carnage, he learned one thing that was to remain with him all his life. It was a distrust of absolutes and certainty, a conviction that ‘certitude leads to violence’.¹⁴ He looked about him and observed that, although the abolitionists in 1850 appeared to many Northerners as subversives, by the end of the war ‘they were patriots’. He concluded from this that ‘There is no one way that life must be.’¹⁵ This guided him and formed him into the wise judge that he became. This wisdom emerged in his great book The Common Law,

¹⁶ which began life as the Lowell Lectures at Harvard University, all twelve given before a full house, where he spoke without notes.¹⁷

His biographer Mark DeWolfe Howe says Holmes was the first lawyer, English or American, to subject the common law to the analysis of a philosopher and the explanation of an historian.¹⁸ The philosophical brilliance of Holmes was to see that the law has no one overriding aim or idea. (This was the idea he brought from the disaster of the Civil War.)¹⁹

That it had evolved pragmatically.²⁰ Every case, in terms of facts at least, is unique. When it reaches court, it is swept up in what Menand calls a ‘vortex’ of intentions, assumptions and beliefs. There is, for example, the intention to find the solution that is just in this case. At the same time, there is an intention to arrive at a verdict that is consistent with analogous cases in the past. There is also the intention to arrive at a verdict that will be most beneficial to society as a whole – the result that will deter others.²¹ Then there are a number of less pressing aims, which also impinge on a verdict, some of which, Holmes conceded, are unvoiced. These may include a wish to redistribute costs from parties who can’t afford them (often victims) to parties who can (often manufacturers or insurance companies). ‘However over this whole weather pattern – all of which is in motion, so to speak, before any case ever arises – is a single meta-imperative: not to let it appear as though any one of these lesser imperatives has decided the case at the blatant expense of the others. A result that seems just intuitively but is admittedly incompatible with legal precedent is taboo; the court does not want to seem to excuse reckless behaviour (like operating a railroad too close to a heavily populated area), but it does not want to raise too high a liability barrier to activities society wants to encourage (like building railroads).’²²