Holmes’ Failure

I have just set down the March 1997 Harvard Law Review, with its centennial celebration of Oliver Wendell Holmes’ The Path of the Law. The Path of the Law is a grand thing, in my view Holmes’ best thing. But just the same, I find myself surprised that on this occasion none of its celebrants raised what has always seemed to me a weakness of the piece, and of Holmes’ much earlier book, The Common Law. This is a weakness that is at once a reflection and a forecast of the failure of its author. Writers today do seem to have come to terms with a revised, rather mean Holmes. But the particular failing I have in mind seems to have escaped remark. Yet I am beginning to think it more salient to an ultimate evaluation of Holmes than what is more typically being said. In the brief remarks that follow, I will try to convey what I think it is that we have not quite been seeing in Holmes’ thinking and work. I will try to identify and to bring into focus the flaw (for want of a better word, I have used “littleness”) that undermined Holmes’ work and made his ultimate failure inevitable. For I take it that Holmes was a failure. He failed to participate in the larger intellectual history of law in our century; failed, for the most part, to set his mark not only upon constitutional history but even upon the common law; and failed to come to grips with the big issues of his and our time. I will try to suggest how he could have suffered a failure of such magnitude notwithstanding his great talents and ambition. I will try to draw some connections between Holmes’ limitedness and Holmes’ life and judicial craft. I will add a few words in closing about the persistence of the Holmes legend.