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1 . F el ix F ra nk fu r t er , M r. J ustice H olmes and th e Constit uti on , i n M R . J USTICE H OLMES

46, 54 (Felix Fra nkfurter ed., 1931); Felix Fra nkfurter, M r. J ustice H olmes , 48 H ARV. L. RE V.1279, 1280 (195).

2 . B e n ja min N . Ca rdoz o, M r. J ustice H olmes , 44 H ARV. L. REV . 682, 691 (1931).

3 . R icha rd A. P os ne r, Introduction t o THE E SSENTIAL H OLMES : S ELECTIONS FROM THE

LETTERS , S PE E C H E S , J UDICIAL OPINIONS AND OTHER WRITINGS OF OLIVER WENDELL H OLMES ,

J R. a t ix (Richa rd A. Posner ed., 1992).

4. R ICHARD A. P OSNER, C ARDOZO: A S TUDY IN REPUTATION 76 (1990).

407

THE INFLUENCE OF THE GERMAN CONCEPTS

OF VOLKSGE IST AND ZE I TGE I ST ON THETHOUGHT AND J URISPRUDENCE OF OLIVER

WENDELL HOLMES

J AMES K NUDSON

Table of Contents

I . I NTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407

I I . TH E C ONCE P T OF THE V OLKSGEIST I N G ERMAN LEGAL

S C I E N C E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409

I I I . TH E P HILOSP HY AND J U RI SP RU D E N C E O F OLIVER

WENDELL H OLMES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 412

A. The I nf l uence of German L egal Science on Holmes . . 412

B. Th e I nfl uence of Social Dar wi nsim on H olm es’

Thought . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413

C. Th e I nf lu ence of U ti l i tar iani sm on H olm es’ Th ought 414

D . The E ffects of Posi ti vi sm on Holm es’ Though t . . . . . . 415

IV. TH E INFLUENCE OF P RAGMATIS M ON H OLMES ’ TH O U G H T 417

V. C ONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418

I . I NTRODUCTION

J ust ice Oliver Wendell Holmes is perha ps the most fam ous an d

influential judge in America n legal history. J ust l isten to wh a t some

other grea t legal minds ha ve said a bout H olmes. Felix Fra nkfurter

said Holmes “is indeed the philosopher become king” and added

“[f]or cent uries . . . men w ho never hea rd of him be moving t o th emeasure of his thought.”1 Benjamin Cardozo called Holmes “the

great overlord of the law and its philosophy.”2 R ichard P osner has

called him “the most illustrious figure in the history of American

law . ”3 A 1990 study shows Holmes to be th e most cited judge in la w

review a rticles other t ha n a select few judges who are st i l l on t he

bench.4 Regardless of what one thinks of the jurisprudence of

Holmes, his influence ca nnot be denied.

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408 J . TRANSNAT IONAL L AW & POL I CY [Vol. 11:2

5. C ATHERINE D. B OWEN , YANKEE FROM OLYMPUS : J USTICE H OLMES AND H I S FAMILY 152-

174, 418 (1944). See also L IVA B AKER, TH E J USTICE FROM B EACON H I LL : TH E L IFE AND TIMES

OF OLIVER WENDELL H OLMES 105-06 (1991).

6. ALBERT W ALSCHULER , LAW WITHOUT VALUES : TH E L I FE , WOR K , AND LEGACY OF

J USTICE H OLMES 10 (2000).

7. H .L. P OHLMAN, J USTICE OLIVER WENDELL H OLMES : FREE S PEECH AND THE L IVING

C ONSTITUTION 20 (1991); ALSCHULER , supra note 6, at 2.

8. J OHN H ENRY MERRYMAN ET AL ., TH E C IVIL LAW TRADITION : E UROPE , LATIN AMERICA,

AND E AST ASI A, C ASES AND MATERIALS 503-04 (1994) [herei na ft er MERRYMAN I ].

9. J OHN H ENRY MERRYMAN, TH E C IVIL LAW TRADITION : AN I NTRODUCTION TO THE LEGAL

S YSTEMS OF WESTERN E UROPE AND LATIN AMERICA 69-79 (2d ed. 1985) (1969) [herei na ft er

MERRYMAN II ].

10. MERRYMAN I , supra note 8, a t 503; Ja mes Whitma n, Commercial Law and the Ameri can

Volk: A Note on Ll ewellyn ’s Germ an Sources for the Uni form Commercial Code , 97 YALE L . J .

156 (1987).

11. MERRYMAN I , supra note 8, at 503,

12. Oliver Wendell Holmes, The Pa th of the Law , Address at t he Dedicat ion of the New

Ha ll of the B oston Universit y School of La w (J an . 8, 1897), reprinted i n TH E H OLMES READER

59-85 (J ulius J . Ma rke ed., 1955) [hereina fter Holmes, The Pa th of the La w].

13. MERRYMAN I , supra note 8, at 504.

14. I d. at 503.

15. I d . a t 503-04.

16. None of the reasear ch for this art icle has revealed that t his topic has been direct ly

Holmes fought in th e Civil Wa r a nd lived throughout t he second

half of the Nineteenth century.5 As such, the thought and

philosophy of th e time no doubt influen ced him. The big quest ion ina cademic circles, however, has been specifica lly wh ich th oughts a nd

which philosophies influenced Holmes.6 Different scholars have

described Holmes as a ut il i tarian , a pragma tist , a social Da rwinist ,

a posit ivist , a nihilist , and a Nietzchean. 7 The debate over what

Holmes believed goes on t oday. One t hing t ha t is clear, how ever, is

that Holmes was influenced by the German legal science of the

nineteenth century.8

G erma n legal science ha s great ly influenced American la w .9 The

“ca se method” of tea ching t he law developed by Dea n C hristopher

Langdell at Harvard Law School, the American Law Insti tute’s

Restatements , and the Uniform Commercial Code were all

outgrowths of G erman lega l science.10

Holmes was also influencedby th e Germa n legal science.11 Holmes’ fa mous ad dress, Th e Path of

the L aw ,12 encourages the reading of eminent German jurists . 13

Holmes also made statements that were directly paralleled in the

works of lea ding G erman legal scientists . 14

The question to be an swered in t his a rticle is w hether H olmes

was influenced by the concept of the Volksgeist (also known as

Zeitgeist ) in G erman lega l thought. While most schola rs a gree that

Holmes wa s influenced by G erman lega l science in general ,15 t he

issue of w heth er Holmes a scribed t o the concept of Volksgeist a s t h e

source of the law is unresolved. 16 Solving this question will help

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Sprin g, 2002] GERMAN CONCEPTS 409

addressed in depth.

17. MERRYMAN I , supra note 8, a t 477-78.

18. Ma t h ia s R eima nn, The Hi stori cal School Against Codifi cation: Savigny, Carter, and t he

Defeat of the New York Civ il Code , 37 AM. J . C OMP . L. 95, 97-98 (1989).

19. MERRYMAN I I , supra note 9, a t 57, 59-67.

20. I d.

21. I d.

22. J OHN P . D AWSON, TH E ORACLES OF THE LAW 196, 198-201, 203, 206-07, 227-28, 231,

240-41, 450-52, 454-60 (1968).

23. MERRYMAN I I , supra note 9, a t 57, 59-67.

24. I d.

25. R ei ma n n , supra note 18, a t 95, 97-98.

bring clarity in understanding what Holmes believed and possibly

influen ced his decisions.

The method by w hich th is question w ill be resolved is to compa rethe idea of the Volksgeist to the various influences on Ho lmes’

th ought. First , Germ a n legal science will be discussed. Second, th e

various aspects of Holmes’ thoughts and beliefs will be outlined.

Finally, the two will be compared to determine if the concept of

Volksgeist logica lly fit w ithin Holmes’ world-view. I f so, a conclusion

th a t H olmes a scribed to the concept of Volksgeist ha s merit . I f not,

then the logical conclusion is that Holmes did not believe in the

concept of Volksgeist a s found in G erman lega l science.

I I . TH E C ONCE P T OF THE V OLKSGEIST I N G ERMAN LEGAL S C I E N C E

The concept of the Volksgeist is an interesting and important

aspect of German legal science.17 The concept of Volksgeist in

German legal science states that law can only be understood as a

manifestation of the spiri t and consciousness of the German

people.18 G erman legal science assumes tha t th e la w can be studied

scientif ically as naturally occurring phenomena from which

inherent legal principles and relationships can be discovered.19

Alth ough logic w a s used a s a tool, G erma n legal science rejected the

focus on logic in developing law tha t w a s popular in civil law sta tes

such as France.20 The German legal scientists of Holmes’ time

believed tha t it w a s impossible to crea te a sim plified code of law .21

Another important aspect of German legal science is that i t

eliminat ed ethical an d value judgments a bout th e la w.

22

In fa ct , theGerman legal scientists sought to be value free in analyzing the

l a w .23 Concepts such as na tura l la w, w hich sta tes tha t some values

a nd la w s a re objectively tr ue, had no place wit hin th e schola rship

a nd t hought of the lega l scientists . 24

The G erma n philosopher, Frederick Ca rl Von S a vigny is credited

with creating German legal science.25 Savigny felt that “a proper

code [of law could only] be an organic system based on the true

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26. FREDERICK C HARLES VON S AVIGNY, OF THE VOCATION OF OU R AGE FOR LEG ISLATION AND

J URISPRUDENCE (Abraha m H ayw ar d tra ns., Arno P ress 1975) (1831).

27. I d.

28. Id. .

29. I d. a t 28.

30. I d. a t 30.


32. I d.

33. I d.

34. I d.

35. MERRYMAN I I , supra note 9, a t 30-32.

36. ROLAND N. S TROMBERG , E UROPEAN I NTELLECTUAL H ISTORY S INCE 1789, at 77-78 (6th

ed. P rent ice Ha ll 1994) (1966).


38. ROMANTICISM AND E VOLUTION ; TH E NINETEENTH C ENTURY 61 (Bruce Wilshire ed.,

U niv. P ress of Am. 1985) (1968) [hereina fter R OMANTICISM AND E VOLUTION].

fundamental principles of the law as they had developed over

time.”26 Savigny did not believe that a proper code of law could be

crea ted, at lea st certa inly not for the foreseea ble future.

27

Savigny also introduced the concept of the Volksgeist into the

lega l an a lysis of his t ime.28 Sa vigny s ta ted that law , like lan guage ,

is a n expression of th e “comm on consciousness of th e people,”29 a nd

is driven by “internal, silently operating powers.”30 For Savigny,

German law was an expression of the common consciousness or

“Spirit” of the German people.31 The result of this is that law

consta ntly cha nges and evolves a s the G erman people change a nd

evolve throughout time, and it is properly understood only in the

light of history, both past and present.32 Savigny fe l t that the

peoples of each count ry h a d a simila r effect on each na tion’s law ,33

and that this method was necessary to a proper understanding of

law tha t could yield more effective law s.34

Much of German legal science can be traced back to German

romantic philosophers, who lent credence to the concept of the

Volksgeist .35 G .W.F. Hegel, perha ps the most fa mous and influentia l

G erman philosopher of the nineteenth century, w a s t he driving force

behind t he hist oricism m ovement --th e belief tha t t he scientific study

of history is necessary to a proper understanding of the world--

w hich influenced Sa vigny a nd G erman legal science.36 Along with

Hegel, German romantics such as Herder and Goethe helped to

ha ve concepts such as t he Volksgeist ta ken seriously.37 The G erman

roma nt ic philosophers helped pave th e wa y for Germa n legal science

to entertain a romantic sense of history and view the study of

history as indispensa ble to understan ding the law .38 Savigny’s method stated that law is the product of the

Volksgeist , embodying th e wh ole history of a na tion’s culture and

reflecting inn er convictions th a t a re rooted in th e society’s common

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39. D AWSON, supra note 22, at 451.

40. MERRYMAN I I , supra note 9, a t 69-79.


42. I d .

43. I d.

44. ROMANTICI SM AND E VOLUTION , supra note 38, at 160.

45. The Hegelian concept of a “National S pirit ” and the concept of the “volksgeist ” are very

simila r, wit h both referring to a common essence or spirit am ong the people of a na tion.

46. W.F . H E G E L, REASON IN H ISTORY: A G ENERAL I NTRODUCTION TO THE P HILOSOPHY OF

H ISTORY 1-3 (Robert S. Hartman trans., 1953), reprinted in 4 P HILOSOPHIC C LASSICS :

N INETEENTH-CENTURY P HILOSOPHY 63 (Forrest B air d & Walt er Kau fma nn eds., 2d ed. 1997)

[hereina fter P HILOSOPHIC C LASSICS].

47. I d. a t 77.

48. I d. a t 84.

49. I d. a t 89.


experience. 39 German legal science also rejected the concept of a

“natura l law, ” or a ny o ther sys tem external to the s ta te by which the

va lidity of a positive law could be judged.

40

The result of elimina tingnatural law was that e thics and value judgments were not to be

considered in an a lyzing the law .41 G erma n lega l science rejected t he

focus on logical deduction a lone in developing la w , inst ead believing

logic to be one tool in understanding the current evolutionary

development of the law.42 The Volksgeist drives the law to slowly

develop over th e course of history .43 Thus, a thorough understa nding

of the history of a people is necessary for studying the law

a ccura tely. G erman legal science is a “science,” but one th a t uses

logic to study history, which in turn is based on the spiri t

(Volksgeist ) of a people.

The work of Hegel, perhaps the most famous and influential

G erman philosopher of the nineteenth centur y,44

helps shed morelight on w ha t exa ctly is the concept of Volksgeist .45 Hegel s ta ted tha t

the study of world history indicates that history has proceeded

rationally, and history is the rationally necessary course of the

“World Spirit.”46 H egel a lso spoke of a “Nat iona l Spirit” tha t exists

wi thin nat ions and must be mainta ined, for when the “Nat ional

Spirit” fails, the nation is sure to crumble. 47 I t is this spiri tual

content tha t is t he essence of individua ls an d t he people a s a wh ole,

a nd is a “holy bond” th a t t ies them together.48 Accordin g t o Hegel,

the “Spirit” seeks freedom and is manifested in the State. 49 The

concept of the Volksgeist is essentially this concept of a common

“Spirit” of a people, a nd t he G erman lega l science of Sa vigny sta ted

tha t la w is an outgrowt h of this common spirit of the people.50

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51. I d . at 452; S TROMBERG , supra note 36, at 42, 79.

52. I t s hou ld b e not e d t ha t Holmes’ thought wa s not completely in line with any part icular

philosophy. In researching Holmes’ thought , it is int erest ing t ha t va rious a uthors cla imed

tha t Holmes as cribed to the modes of thought listed in t his paper. It is n ot the purpose of this

article to resolve this controversy. However, it is the case that Holmes’ thought contains

aspects of a ll th ese methods of thought , an d t his a rt icle seeks to examine the w ays in the

var ious aspects of Holmes’ thought prove or disprove his belief in the Volksgeist .

53. Oliver Wendell Holmes, Learning a nd Science, Speech at a D inner of the Harva rd Law

School Association in Honor of P rofessor C . C. L an gdell (J une 25, 1895), reprinted in TH E

H OLMES READER, supra note 12, at 107 [hereina fter H olmes, Learning a nd Science].

54. Holmes , The Pa th of the Law, supra note 12, at 68-70.

55. I d. a t 68.

56. I d. a t 68.

57. Holmes , Learning and Sc ience , supra note 53, at 107.

58. I d.

59. Holmes Reader , The Pa th of the Law, supra note 12, at 94.

60. I d. a t 68.

61. S TEPHEN J . B URTON , TH E P ATH OF THE LAW AND I TS I NFLUENCE : TH E LEGACY OF OLIVER

I I I . TH E P HILOSPH Y AND J U RI SP RU D E N C E OF OLIVER WENDELL

HOLMES

The concept of the Volksgeist in German legal science is a

roman tic, almost my stical concept.51 An a na lysis of Holmes’ th ought

a nd philosophy is necessa ry t o determ ine wh ether H olmes believed

in the concept. Holmes’ thought contained aspects of positivism,

socia l Darwinism, ut i l i tar ianism, and pragmatism.52 Through

analyzing each of the aspects of Holmes’ thoughts and beliefs, it

becomes appar ent t ha t H olmes did not a scribe to the concept of the

Volksgeist a s put forth by G erman lega l science.

A. The I nf l uence of German L egal Science on Holmes

Holmes agreed wit h th e Germa n legal scientists tha t scientif icinquiry should be used to exa mine the law ,53 th a t logic is a n element

but not a focus of such an exa mina tion,54 a nd tha t moral i ty should

be sepa ra ted from the law .55 H olmes believed tha t t he law should be

based on science and not tradition.56 Holmes wrote “[a]n ideal

system of law should draw its postulates and i ts legislative

justification from science” and continued by saying “[a]s it is now,

we rely upon t ra dition, or vague sentiment.57 Holmes believed th a t

everything, including law, should be put to the test of proof in a

scientific analysis.58 Holmes agreed with German legal science

scientif ic inquiry should be used a s a tool to an a lyze the law .59

The G erman lega l scientists a nd H olmes a lso a greed tha t logic

should not be the total focus of the law. 60 This can be seen inHolmes’ famous statement that “the l i fe of the law has not been

logic, it ha s been experience.”61 This sta tement directly pa ra llels a n

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WENDELL H OLMES , J r. 2 (St even J . Bur ton ed., 2000) [hereina fter B URTON].

62. Konrad Zweigert & Kurt S iehr , Jh eri ng’s I nfl uence on the Development of Compar ati ve

L egal M ethod , 19 AM. J . C OMP . L. 215, 217 (1971).

63. Holmes , The Pa th of the Law, supra note 12, at 61.

64. I d. a t 61, 68.

65. Letter from Oliver Wendell Holmes to Lady P ollock (Sept. 6, 1902), reprinted i n 1

H OLMES-POLLOCK LETTERS : TH E C ORRESPONDENCE OF MR . J USTICE H OLMES AND S I R

FREDERICK P OLLOCK 1874-1932, a t 105 (Mar k D eWolfe H owe ed., 1942).

66. MERRYMAN I I , supra not e 9, at 57, 59-67.

67. ALSCHULER , supra note 6, at 2; Letter from Oliver Wendell Holmes to Harold Laski

(Aug 6, 1917), reprinted in 1 H OLMES-LASKI LETTERS : TH E C ORRESPONDENCE OF MR. J USTICE

H OLMES AND H AROLD J . LASKI, 1916-1935, at 96 (Mark D eWolfe How e ed., 1963) [hereina fter

H OLMES-LASKI LETTERS ].

68. ALSCHULER , supra note 6, at 49.

69. I d . a t 60-61.

70. Th e concept of a common spirit am ong the people seems opposed to a “surviva l of the

fit test” theory tha t a ll people are in consta nt competit ion with one another.

71. S TROMBERG , supra note 36, 116-18 (Social Darwinism attempted to apply Darwin’s

theory of the survival of the fittest t o all knowledge).

72. ALSCHULER , supra note 6, at 60; Reima nn, supra note 18, a t 95, 97-98.

earlier sta tement of the famous G erman legal scientist Rudolf von

J hering, who sa id tha t the “cult of the logical . . . is an aberration

a nd rests on ignora nce a bout th e nat ure of the la w.”

62

Holmes alsoindicated that law and his tory are inter twined, ca l l ing law the

history of the moral development of huma nity.63

Holmes also agreed with German legal science that

considera tions of mora lity should be elimina ted from la w .64 In fa ct ,

Holmes seems to ha ve been a m oral skeptic who wrote tha t m oral

preferences a re “more or less a rbitr a ry, . . . [d]o you like suga r in

your coffee or don’t you? . . . [s]o as to truth.” 65 This is in line wit h

the attempt of German legal scientists to divorce morali ty from

l a w .66 Holmes also joined th e Germ a n legal scientists in d isbelieving

in an y sort of a na tura l law say ing, “[a ]ll my life I ha ve sneered at

the nat ural r ights of man. ”67 I t a ppears tha t H olmes wa s influenced

by ma ny of the a spects of G erman legal science.

B. Th e I nfl uence of Social D arw in ism on H olm es’ Th ought

Holmes wa s a follower of socia l Da rw inism.68 Social Da rwinism

views life as a struggle between individuals in w hich t hose wh o are

the strongest and most powerful prevail.69 Social Darwinism

appears logically opposed to the concept of the Volksgeist .70 Social

Darwinism is highly scientif ic and thus unlike the somewhat

roman tic theory of a Volksgeist a mong t he people.71 Additionally, th e

Volksgeist is a common “Spirit” among the people of a nation, at

odds with th e socia l Da rw inist view of conflict in a society .72

Social D a rwinism a lso sta tes th a t society reflects evolution inth a t t he stronger members of a society benefit a nd prosper a t t he

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74. I d. a t 48.

75. I d. a t 6 .

76. H OLMES-LASKI LETTERS , supra note 67.

77. P HILOSOPHIC C LASSICS , supra note 46, at 89.


79. L IVA B ARKER , TH E J USTICE FROM B EACON H IL L: TH E L IFE AND TIMES OF OLIVER

WENDELL H OLMES 159 (1991).

80. Lett er from Oliver Wendell Holmes to Felix Frankfurt er (Mar . 24, 1914), reprinted i n

H OLMES AND FRANKFURTER: THEIR C ORRESPONDENCE , 1912-1934, at 19 (Robert M. Mennel

& Chr istine L . Compst on eds., 1996).


82. I d . at 17.

83. The only common spirit tha t can be found is Social Da rwinism is constant competit ion,

a concept at odds with the Volksgeist .

84. H .L. P OHLMAN, J USTICE OLIVER WENDELL H OLMES AND U TILITARIAN J URISPRUDENCE

(1984).

85. S TROMBERG , supra note 36, a t 54-55.

86. F REDERICK ROGERS KELLOGG , TH E FORMATIVE E SSAYS OF J USTICE H OLMES : TH E

MAKING OF AN AMERICAN LEGAL P HILOSOPHY 5 (1984).

expense of the w ea ker members of society. 73 H olmes appears to ha ve

ha d tendencies towa rd social Da rwinism 74 in tha t H olmes often said

that ethical questions could be reduced to issues of dominance,power a nd survival .75 According to Holmes, huma n righ ts a re only

w h a t “a given crow d . . . will fight for.”76 This is quit e different from

Hegel’s view of the “Spirit” or Volksgeist , as a common bond that

inherent ly desires freedom. 77

Holmes a lso indicat ed tha t one could not speak of the good of a

comm unity , beca use all th a t exists a re the competing interests of

dif ferent groups w ithin the communit y.78 I f a l l tha t exis ts are the

competing int erests of groups in a commu nity , it seems odd to spea k

of a common “Spirit” or Volksgeist with in tha t commun ity. Holmes

believed tha t a l l aut hority is vested in force.79 He a lso fel t tha t “a

la w is good if it reflects th e domina nt forces of th e communit y, even

if such la ws ta ke us to hell. ”80

Such law s, Holmes said, should tendtowa rds survival of the f i t test .81 H olmes clea rly believed in ma ny of

the t enets of socia l Da rw inism.82 Such a belief is at odds with the

concept of the Volksgeist , and i t is unlikely that Holmes would

a scribe to both a t t he same time.83

C. Th e I nf lu ence of U ti l i tar iani sm on H olm es’ Thought

Holmes also wa s influenced by the theory of utilitar ian ism.84 The

B ritish philosopher J eremy Bent ha m is considered th e founder of

ut il i tarianism. 85 Util i tarianism hoped to establish morals as an

exact science, though B enth a m believed mora ls a re not objectively

t rue as s ta ted in na t ura l law.

86

U t i li t a r ianism sta tes tha t obta ining

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87. S TROMBERG , supra note 36, at 56.

88. I d.


90. H owever, it would be incorrect t o say tha t H olmes wa s an “orthodox” ut ilitaria nism.

Holmes was skeptical about t he possibility of accurate ut ilitar ian evalua t ion.

91. Richard A. Posner, B ook Review, 53 GE O. WASH . L. RE V. 870, 872 (1985) (reviewing

KELLOGG , supra note 86).

92. KELLOGG , supra note 86, at 136.

93. I d. at 136; ALSCHULER , supra note 6, at 17.

94. ALSCHULER , supra note 6, a t 60-61.


96. I d . a t 4.

97. I d.

98. S TROMBERG , supra note 36, at 239-40.

99. I d . at 86.


pleasure motivates each person.87 That being the case, law (and

everything else) should seek to maximize the overall pleasure of

society a nd minimize th e overall pain.

88

Holmes agreed with the ut il i tarians that people naturally

pursue their wa nts a nd pleasures.89 H e also believed tha t effective

government provides the most pleasure with the least cost. 90

However, it w ould be incorrect to sa y tha t H olmes wa s a n “orthodox”

ut i l i tar ian .91 Holmes wa s skeptical about t he possibil i ty of accura te

ut i l i tar ian evaluat ion.92 This was because human rights, and

humans themselves, were constantly in conflict . 93 Thus, while

Holmes may have believed that uti l i tarianism was correct in i ts

insight th a t people constan tly pursue plea sure, his socia l Da rw inist

belief in conflict prevented him from believing that the desires of

society could be evaluated accurately.94 Such a view of society as

one whose members are in competition to have their desires forplea sure met seems a t odds with t he idea of a Volksgeist or comm on

“Spirit” of a people.

D. Th e Eff ects of Posit ivi sm on H olmes’ Thought

Posit ivism is another philosophy that had an effect on the

th ought of Holmes.95 P ositivism wa s in large part developed by the

philosopher Auguste Comte.96 Posit ivism declares that there has

been an inevitable progression from theology to the scientific

method as the basis for knowledge.97 Posit ivism also posits that

there are no objectively true moral truths,98 and is a thoroughly

materialist ic theory.

99

In fact, positivist lega l philosopher J ohnAustin was one of the first persons to propose a systematic

separa t ion of law from morals.100 “Austin hoped tha t purifying the

concepts of law of their moral content would reveal the law’s

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101. I d. at 6 (citat ion omitted).

102. Id. a t 6 .

103. I d.

104. Holmes , The Pa th of the Law, supra note 12.

105. I d. a t 60-62.

106. I d. a t 60.

107. D AWSON, supra note 22.


109. I d. a t 60-62.

110. I d. a t 68.

111. I d. (empha sis a dded).

112. I d.

113. I d. a t 77.

114. I d.

essentia l principles.”101 Holmes read ma ny of Aust in’s lectures a nd

works,102 a nd much of his early w riting w a s influenced by Austin’s

theory.

103

Holmes’ belief in positivism ca n be seen in th e argum ent t ha t he

makes in his famous work, The Path of the Law .104 Holmes

disagreed tha t t here were any objective mora l trut hs, a thoroughly

positivist a rgument.105 This ca n be seen from his argum ent th a t “a

lega l duty so called is nothing but a prediction tha t i f a ma n does or

omits certain things h e will be made t o suffer . . . a nd so of a lega l

right. ”106 Thus the law is only a prophecy of what a court will do.

Holmes indicated wi th this argument that there was no greater

moral signif ica nce to the law , which is a sta tement very much . in

line wit h G erma n legal science, w hich sought to divorce mora ls from

the law .107 As Holmes himself put it , “I often doubt w heth er it w ould

not be a ga in if every word of moral significance could be ba nishedfrom th e la w a ltogether.”108

Th e Path of the L aw 109 contains another statement by Holmes

tha t directly indica tes tha t , wh ile he wa s familiar w ith th e concept

of the Volksgeist or Zeitgeist , he did not feel tha t th e law wa s the

embodiment of t he spirit of t he people.110 In addr essing th e question

of wh a t t he forces are tha t determine the content of the law a nd its

growth, Holmes said “you may think that law is the voice of the

Zeitgeist , or what you like . . . . It is all one to my present

purpose.”111 Holmes mentioned nothing about whether he believed

in the Zeitgeist , an d seemed to view t he concept a s mea ningless for

his purpose of expla ining how th e law develops.112

Holmes a lso seemed to revolt a gainst a heavy focus on the studyof history as a primary mean s of a scientif ic study of the la w, a s put

forth by G erman lega l science.113 He sa id of th e law , “[e]veryw here

the ba sis of principle is tradit ion, to such a n extent t ha t w e are in

da nger of ma king the role of history more importan t t ha n i t is . ”114

Holmes went on to opine tha t hist ory hopefully will be minimized a s

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115. I d.

116. I d.

117. I d.

118. I d.

119. Oliver Wendell Holmes, L aw i n Science and S cience in L aw , 12 H ARV. L. RE V. 443-63

(Feb. 25, 1899), reprinted in TH E H OLMES READER, supra note 12, at 129.

120. Lett er from Oliver Wendell Holmes to Felix Fran kfurter (Dec. 23, 1921), reprinted i n

H OLMES AND FRANKFURTER, supra note 80, at 19.

121. P HILOSOPHIC C LASSICS , supra note 46, a t 392-93.

122. B URTON , supra note 61, at 213.

123. P HILOSOPHIC C LASSICS , supra note 46, at 393.





128. Holmes , The Pa th of the Law, supra note 12.

a n explan a tion of the law a nd ra th er the focus of scholars w ill be on

the ends and ra t iona le of law s.115

However, lest one think that Holmes totally disagreed withG erman legal science in Th e Path of th e L aw ,116 it s hould be noted

tha t a t th e end of the art icle Holmes recommends tha t la wyers read

the works of German jurists to improve their knowledge of the

l a w .117 One w ould a ssume th a t if H olmes believed in th e concept of

the Volksgeist , he would have found the study of history to be of

prime importa nce in st udying the la w. 118 Instea d, Holmes appears

to be more ena mored with t he aspects of Germa n legal science th a t

empha sized using science to ana lyze the law rat her tha n G erman

lega l science’s a rguments stressing the importan ce of history a nd

th e spirit of the Volksgeist .119

IV. TH E I NFLUENCE OF P RAGMATISM ON H OLMES ’ THOUGHT

P ra gma tism is yet a nother philosophy tha t H olmes used a spects

of in his thinking.120 Pragmatism was developed in large part by

William J a mes and Cha rles Sa nders P ierce.121 A pragma tist thinks

about actions in terms of their practical effects, not in terms of

abstract principles.122 P ut simply, pragma tism is t he philosophy of

determining what works.123

Pragmatis ts tend to use ut i l i tar ianism to determine what is

good.124 Pragmatists believe ethics should be derived from

experience, and they follow two main precepts. 125 The first is that

knowledge should be sought by intelligently observing the world

a round a person.

126

The second is tha t a pragma tist is alw a ys will ingto revise th eir beliefs wh en faced wit h empirica l facts.127 At lea st one

Holmes scholar has said that much of Holmes’ argument in The

Path of the L aw ,128 specif ically his view that the law should be

viewed in the perspective of a bad man who only cares for the

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129. B URTON , supra note 61, at 224-27.

130. I d. at 214.

131. See Schenck v. Unit ed Sta tes, 249 U.S . 47 (1919) (Holmes creat es the clear a nd present

danger test); Abrams v. United States, 250 U.S. 616-18 (1919) (Holmes sa ys “w e should be

eterna lly vigilant aga inst a tt empts to check the expression of opinions”).


133. Pra gmat ism s imply has l i t t le to do with the Volksgeist and the research for this a rt icle

provided no distinguisha ble links between the tw o schools of thought .

134. B URTON , supra note 61, at 214; P HILOSOPHIC C LASSICS , supra note 46, at 77.


consequences of his actions, is pra gma tic in na ture.129 The ba sic rule

of William J a mes’ ethics wa s respect for t he perspective of oth ers.130

This viewpoint wa s one tha t H olmes sha red, as indica ted by muchof his First Amendment freedom of speech jurisprudence. 131

However, while Holmes had some aspects of pragmatism in his

thought he a lso ha d his problems w ith th e theory, ca ll ing i t a t one

point “an amusing humbug.” 132 To the extent that Holmes did

believe in some aspects of pragmatism, it is also clear that such

beliefs in no way support a contention that he believed in the

concept of the Volksgeist .133 Pragmatism looks to personal

experience as the key to understanding the world around us, a

concept th a t h a s l i t t le to do with the common spirit of a n a tion.134 I t

is probably fairest to say that the pragmatic aspects of Holmes’

jurisprudence provide little guida nce as to w heth er he believed in

the concept of the Volksgeist .

V. C ONCLUSION

Holmes does not appear to have ascribed to the concept of the

Volksgeist . Holmes’ social Darwinism appears logically opposed to

th e concept of th e Volksgeist . Social D a rwinism is a highly scientif ic,

theory of a Volksgeist . Additionally, unlike the romantic the

Volksgeist is a common “S pirit” a mong t he people of a na tion. This

is also opposed to the socia l Da rw inist view of conflict am ongst t he

members of a society.

The ut ilita ria n a spects of Holmes’ th ought a lso show little proof

that Holmes believed in the Volksgeist . Holmes believed thatuti l i tarianism was correct in i ts insight that people constantly

pursue pleasure. However social Darwinist beliefs prevented him

from believing that the desires of society could be evaluated

accurately, a view of society as one whose members are in

competition to have their desires for pleasure met seems at odds

with t he idea o f a Volksgeist or common essence of a people.

Holmes’ positivist views as seen in The Path of the L aw 135

indicat es tha t he a greed with G erma n legal science’s use of scientific

methods to ana lyze the la w. H owever, Holmes did not a gree with

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the focus on history a nd th us w a s unlikely to consider the Volksgeist

a n importa nt a spect of a na lyzing the la w, since knowledge of history

is importa nt in un dersta nding t he spirit of a people. InTh e Path of

the L aw , Holmes even gives short shrift to the concept of the

Volksgeist a s being importa nt t o obtaining a n understa nding of the

law . Fina lly, the pra gma tic elements of Holmes thought a lso do not

indicate th a t he a scribed to the concept: of the Volksgeist

There is almost no evidence that Oliver Wendell Holmes

believed th a t th e Volksgeist is th e source of law . In fa ct the opposite

is true. The stra ins of Holmes’ thoughts indica te tha t he w a s quite

unlikely to have believed in such a concept. The only most

rea sona ble conclusion th a t can be reached from a na lyzing the beliefs

of Oliver Wendell Holmes is th a t he did n ot believe in t he concept

of the Volksgeist a s found in G erman legal science.

Knudson

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