Oliver Wendell Holmes Jr.
From Philosopedia
Holmes, Oliver Wendell Jr. (8 March 1841 - 6 March 1935)
The famed jurist Oliver Wendell Holmes Jr. was born in Boston, Massachusetts. He was the namesake and son of a famed physician.
Holmes graduated from Harvard in 1861 and immediately enlisted in the Army, where he was seriously wounded three times. After the Civil War, Holmes entered Harvard Law School, where his best friend was William James.
The New York Times obituary for Holmes reported that the two young men went to Europe together:
- . . . while James went on, continuing in Germany his search for the meanings of the universe, Holmes decided that "maybe the universe is too great a swell to have a meaning," that his task was to "make his own universe livable," and he dove deep into the study of the law.
- [He wrote:] “When men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment.”
Holmes was admitted to the bar in 1866. He became coeditor of the American Law Review in 1870.
Holmes wrote his legal treatise, The Common Law, in 1881, a 15-year labor predicated on his belief that "The life of the law has not been logic; it has been experience." His recodification of the law from religious foundations to modern jurisprudence was pivotal to the evolution of legal scholarship. Holmes urged "judicial restraint," or the divorcing of private views from legal opinions. Holmes thought law could be understood only as a response to the needs of the society it regulated, that it is useless to consider law merely a body of rules developed logically by legal theorists.
The work, generally thought the most important of American legal scholarship, commenced,
- The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. . . . In order to know what [the law] is, we must know what it has been, and what it tends to become.
Of The Common Law, critic Thomas C. Grey has written,
- Holmes set about mastering the technical details of the law, with the ultimate goal of reformulating its theoretical underpinnings. His project was to replace the prevailing theologically tinged or formalistic legal theories with a modern jurisprudence that draws its inspiration from Darwin and its methods from German historical scholarship and English utilitarianism. He labored for fifteen years, practicing law by day and studying and writing at night, first to master the law’s substance, and then to reimagine it as at once a social instrument and a product of society’s habits, desires, and ideals.
A professor at Harvard Law School, he was appointed at age 41 as an associate justice on the Massachusetts Supreme Court, eventually becoming Chief Justice. Pres. Theodore Roosevelt appointed him to the U.S. Supreme Court in 1902. He retired in 1932, as the oldest judge to serve.
Holmes earned the sobriquet, "The Great Dissenter," for his many famous dissents, which have long since been adopted as mainstream by courts. Among his well-known legal adages:
- The mind of the bigot is like the pupil of the eye: the more light you shine on it, the more it will contract.
- Taxes are the price we pay for a civilized society.
- Three generations of imbeciles are enough.
- The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater. . . .
- The right to swing my fist ends where the other man's nose begins.
Holmes, like his father, was a Unitarian, who believed in a god, but was creedless. Holmes was presiding officer of the Unitarian Festival (24 May 1859) and was active in publicizing Unitarianism.
The son of one of the most famous American authors, and a person raised in the Boston Brahmin culture defined by men like his father but a person who had none of the sometimes expressed Brahmin anti-Semitism, he grew up reading Emerson’s essays right off the press and late in life commented on T. S. Eliot, Proust, and Hemingway.
