IMPLEMENTING AMERICAN RIGHTS:
OAKESHOTT, HOLMES, AND THE TYRANNY OF THE A PRIORI
The civil rights movement demonstrates the importance of collective action directed at building a broad consensus as an integral part of the effort for legal reform. It is a mistake to view the law, and especially the United States Constitution and its Bill of Rights, as capable of engineering a moral turning, or as somehow already embodying moral principles themselves. The same misperception is responsible for the current attempts to change the direction of national policy by appointing judges according to conservative ideology. This paper discusses the theories of Michael Oakeshott and Justice Oliver Wendell Holmes as supporting this perspective, against the positivist tradition emerging from the writings of Thomas Hobbes.
IMPLEMENTING AMERICAN RIGHTS:
OAKESHOTT, HOLMES, AND THE TYRANNY OF THE A PRIORI
As a young lawyer in the Justice Department of the Richard Nixon administration, on the staff of an Attorney General, Elliot Richardson, who would resign two months later to protest the presidential firing of my former professor of constitutional law, then the Special Watergate Prosecutor, Archibald Cox, I listened as Mr. Richardson addressed a dedicated group of government lawyers in the Civil Rights Division on a hot August Monday morning. "We have shown," he began with uncharacteristic certainty, but perhaps as I now think more as an encouragement to the staff, "that morality can be established through the law."
Richardson was referring to the string of court victories establishing civil rights for black Americans under the recently enacted provisions of the Civil Rights Act of 1964, particularly the employment provisions of Title VII, which included stringent relief orders requiring what we knew then as "goals and timetables," now generally referred to as affirmative action. These orders were readily forthcoming in the decade after the Act was passed. More controversial than the education decisions following Brown v. Board of Education, public employment cases had been successfully brought in major American cities to force the hiring of nonwhite police and firefighters.
I begin with this story in order to pose a critique of Richardson’s remark, and the attitude it betrays, not of the record of accomplishment to which he referred. Looking back, it seems clear to me that it was not the law that established the moral principles that carried the civil rights movement to its early victories, but the movement itself. It is hard to get a feel at this distance for the massive changes in national perception that were brought about simply by courageous coordinated nonviolent action. For those who were not around then, Gene Shepard’s famous radio account of the march on Washington, which has recently been rebroadcast on public radio, gives a sense of how broadly and deeply concerted action had captured the country’s support by 1963.
The Civil Rights Act was part of the work of implementing the changes in perception. But it is a great mistake to view the law, and especially the United States Constitution and its Bill of Rights, as capable of engineering a moral turning, or as somehow already embodying the principles themselves. The same misperception is responsible for the current attempts to change the direction of national policy by appointing judges according to conservative ideology rather than balance and experience. Their appointment is designed to impose a controversial view of a supposed "innate" constitution, rather than to serve as the independent third branch of government and guide and preserve the fairness of the democratic process. This is the tyranny of the a priori, in its legal form.
I say this by way of introduction to a paper on Michael Oakeshott and Oliver Wendell Holmes, and to the topic of reason and authority in the law. Oakeshott and Holmes are perhaps the two thinkers best known in the last century for scepticism. I want to discuss this in the context not only of the degraded state of American democracy today and the remarkable growth of litigation and the subsequent politicization of the judicial process, but also in light of its relevance to legal and political theory and to the model of democracy and democratic inquiry that grows out of the classical period of American philosophy.
In a manuscript found in his home after he died in 1990, the British political philosopher Michael Oakeshott included, in a footnote, a comment made by Holmes in an address to the New York State Bar Association in 1899:
Precisely because I believe that the world would be just as well off if it lived under laws different from ours in many ways, and because I believe that the claim of our special code to respect is simply that it exists, that it is the one to which we have become accustomed and not that it represents an eternal principle, I am slow to consent to overruling a precedent, and think that our important duty is to see that the judicial duel shall be fought out in its accustomed way. (239)
What Holmes meant by the "judicial duel" is clear from his other writings. He meant that the common law was slowly and gradually developed case by specific case, and that important battles of overriding principle were not to be decided in the courtroom before the lines of decision were indicated by a clear consensus. While he was not resistant to change itself–-indeed he recognized it as a constant--he was highly critical of the notion that it should come about through judicial decision. This sentiment Holmes later voiced in his 1913 speech to the Harvard Law School Association of New York:
As law embodies beliefs that have translated themselves into action, while there still is doubt, while opposite convictions still keep a battle front against each other, the time for law has not come; the notion destined to prevail is not yet entitled to the field. It is a misfortune if a judge reads his conscious sympathy with one side or the other prematurely into the law, and forgets that what seem to him to be first principles are believed by half his fellow men to be wrong.
Holmes said this, we should note, in the wake of a rising swell of popular opposition to the Supreme Court’s reversal of reform legislation under the spurious notion that a sweeping constitutional right of free contract stood in the way of majoritarian action to regulate working conditions.
Oakeshott’s manuscript is now published under the title The Politics of Faith and the Politics of Scepticism (1996). It embodies a defense of skepticism in a climate of political activism, in which much of the dominant rhetoric of the day embodied, to Oakeshott, a misplaced faith in human perfectibility through the instrumentality of government power. His footnote to Holmes follows a comment in the text, likely written over a half-century ago, that is no less applicable to an attitude about Holmes that has persisted over the period since his death: "[I]n this activist climate (in which the government of faith seems so preeminently relevant), the skeptical style must appear as an unintelligible piece of sophistication." (1966)
Because it has seemed unintelligible, such skepticism has frequently been demonized. This was the case when the recently deceased Holmes was attacked in the 1940s, as the nation mobilized for a war on Nazi Germany, and it seems to be the case again with Albert W. Alschuler’s recent polemic, Law Without Values: The Life, Work, and legacy of Justice Holmes (2000). Alschuler takes Holmes as a Nietzschean nihilist promoting a concept of law bereft of moral values, and advances the notion that law benefits from moralistic argument. (179) He stops just short of advocating that judges should promote values, but he approves Michael Moore’s characterization that "Any belief, moral or factual, is justified only by showing that it coheres well with everything else one believes. . . . [O]ne matches one’s own particular judgments with one’s more general principles without presupposing that one group must necessarily yield where judgments and principles contradict each other." (190) Advocating a competition of principles in legal argument sounds innocent, but it lies behind the political war over the appointment of judges whose principles are the correct ones. Judges, like others, may hold strong principles; the question is whether they should implement them as officials of an all-powerful state. The question put by Thomas Hobbes to the common lawyers over three centuries ago has lost none of its relevance: "Would you have every man to every other man allege for law his own particular reason?" Hobbes ignored or simply misconstrued the common law insight that legal reasoning cannot be univocal, and imposed by the state from above; in common law, it arises out of a diverse mass of particular disputes.
Oakeshott defined philosophical skepticism as having grown up in opposition to the "politics of faith," which has been reflected in the notion that there is a doctrine or theory that can fix the proper scope and limits of the authority of government, determinately for all time. For this kind of believer, the skeptic is a heretic. Oakeshott held that the proper tasks of government cannot be determined by reasoning from first principles, but only by reasonings that are circumstantial, and which invoke precedents, judgments and practices that are already present in political life. This is not a radical program against change; it is in fact what took place in the extraordinary mid-century struggle by civil rights activists and lawyers. They made their case to the courts and to the nation--before the constitution and laws followed suit. Indeed, the speeches of Martin Luther King were designed to convince the nation that the cause of racial equality flowed from the very heart of the document.
The notion that law, rather than our conduct and our commitment, must protect our most fundamental values is what John Gray calls the legalist paradigm, in which all political claims and conflicts are modeled in the jargon of rights. (1998) The paradigm grows out of the tradition of legal positivism, which has its roots in Thomas Hobbes’s defense of centralized state power against the common law theorists, Coke, Blackstone and Hale. The common law model better fits Oakeshott’s model of political life, and this reflects the relevance of common law theory in a contemporary context.
For common law theory, the state is not the Hobbesean exclusive source of all law and legal rationality, and the causal relation of law and conduct is reversed: law follows the values of society, it does not dictate them. Its principal elements are critical rather than affirmatory: critical of legal ontology, system-building, and uniform taxonomy. It is even critical of the most conservative positivist legacy, or what might be called positivist minimalism: that of extreme textualism in legal interpretation, the judicial method defended by Justice Antonin Scalia. Contemporary legal textualism privileges every word issuing from the legislative branch-–as if that process were not itself subject to capture by temporary special interests. Against the textualist, skepticism poses the question whether we should replace a flawed legislative process with an even more flawed adjudicative one. For the skeptic there is no perfect process.
There is a distinctive reflection of classical American pragmatism in the Holmesean version of skepticism. It lies in a resistance to the diversion of legal meaning into detached abstraction (what Dewey would call the intellectualist fallacy) through the antidote of reducing legal concepts to their effects in determining liability. This specialized form of skepticism revealed the danger of importing ideology into the grounds for decisions, and would later be used by Holmes to resist the introduction of laissez faire economic theory into constitutional due process.
A legal concept, including a constitutional "right," was denied any inherent abstract content and was limited in meaning to its effects in shaping the particular form of legal liability. The embodiment of those effects was to be sought in prior precedent. Precedent, meanwhile, had been reinterpreted in Holmes’ early articles as a consensus growing out of the gradual sifting of case-specific decisions. Considered in light of the rest of Holmes’ theory, the famous skepticism was part of a larger outlook, integral to his reconceptualization of common law.
It was also tied to the communal or social nature of inquiry. Charles Peirce’s formulation, applicable to his own fields of interest, was that inquiry began with doubt and sought belief, and that it took place in an ongoing community of the inquirers who worked on the given problem, experimenting and addressing new findings or circumstances as the inquiry progressed. Belief was expressed in general formulations that were themselves subject to revision as the inquiry progressed. For Holmes too, the growth of legal rules began with doubt relevant to an emergent problem and progressed over time in separate case-specific proceedings, connected by engagement with common forms of dispute-engendering conduct, though each instance might display slightly different circumstances. The outcome sought was a general rule, believed to address the relevant conditions but necessarily open to revision or refinement.
The nature of skepticism growing out of this perspective reflects several aspects of inherent uncertainty. At an early stage no single observer is in a position to know the outcome, or perhaps even the direction, of inquiry. In a scientific context, the direction of inquiry might be roughly specified; but in legal disputes, even that may be subject to derailment by the caprice of human conduct. At later stages of legal inquiry there may be competing rules affecting similar situations, and competing interpretations of them, with opposing outcomes dictated by such small differences as Holmes noted in "The Theory of Torts." The best that an individual judge or jury could do was to attempt to decide the original case on its facts, as principles could only be arrived at later; "general propositions do not decide concrete cases."
Both Holmes and the common law tradition drew on the notion of a collective insight, which Gerald Postema describes as "that reason itself--or at any rate, the sort of practical reason called for in human civic affairs,--is essentially social, that the collective wisdom reposited in the historically evolved Common Law provides the context within which alone the exercise of civic practical reason is possible." (1986) Civil rights leaders and advocates from King to Thurgood Marshall understood that success would only flow from the kind of courageous nonviolent action that would engender a widespread collective response, powerful enough to mobilize majority support.
This should counter the impression that Holmes’ skepticism grows out of cynicism. Given the impediments to "reason" in the growth of the law, there is a sense in which Holmes’ unvarnished realism is nevertheless benign and meliorative. Insofar as law is the result of centuries of collective responses to social disputes and conflicts, imperfectly refined and rationalized by judges, legislators and scholars, it is the residue of the actual historical reasoning process of society, warts and all: vestiges, fictions, intellectualisms, and unresolved struggles in a somewhat camouflaged display. Despite emergent and changing patterns of conduct, struggles among competing interests, and flawed individual decisionmakers, the depiction leaves ample room for a revisable consensus, indeed for change as radical as that which occurred in the middle of the last century.
It seems clear that the traditional depiction of common law inquiry as social in nature acquires an original definition and importance in Holmes’ reconstruction of common law theory. Its sense of reason is far more realistic than that of Coke; Holmesean reason is but an ideal, never fully realizable, but perhaps made more attainable by an accurate map of flaws and misconceptions both past and present. Its authority is to be found not in a pure embedded collective wisdom, for this too is a chimera; continual reconsideration is in order. The authority for revision is to be found not in detached abstract or sovereign reason, but rather in a consultative partnership with the affected community and its practices.
In this reconstruction, the concepts and methods of the common law might almost be understood as conforming the legal order with a process of rule formation and revision that is, if not democratic in the majoritarian sense, nevertheless neither fundamentally autocratic nor surreptitiously countermajoritarian. Holmes’ initial formulation of common law rules, derived by the community-oriented process of "successive approximation" and so strikingly parallel to the process Peirce attributed to the development of scientific principles, prefigures Dewey’s theory of democratic inquiry. The function of a community of inquirers was as central to the legal theory of Holmes as to the scientific and philosophical theory of Peirce. This picture could have political as well as philosophical significance. The generalizing element of law--the process of rulemaking and the analysis that goes along with it--could be seen not as imposed from above but as subservient to indigenous custom and practice, indeed to the distinctive practices of the new American society. The community of observers that governed Peirce’s conception of scientific inquiry would translate into a vast community of living actors determining the continuing growth of the law and making it responsive to emerging social practices.
Moreover, subjective legal theory-making could be reined in by such a conception. The fixation of legal concepts and classifications would await the deliberate and fair assessment of the actual consequences of specific decisions. Hence in the legal context can be seen the practical importance of the so-called pragmatic maxim, whereby concepts are to be tested by their consequences. If this maxim is not strictly observed in the legal arena, loose abstraction does more than cloud or distort theory-making; it impinges upon freedom of action, as the abstractions of law in the hands of judges carry coercive power.
The notion of restraint is thus not located strictly within the legal or political domain, as a condition of the proper operation of a putative system of governance. Nor is law seen as separate and autonomous, as in the dominant school of theory still prevailing in England and America. Instead judicial restraint is seen as a limiting condition of collective inquiry into the conditions of social ordering, of which law and governance is a contributing, but not the only, factor, its extent and operation to be determined according to the overall success of the project of a legally ordered society. How this is to be managed is a question that runs throughout Holmes’ judicial career, albeit often obscured by his willingness to exercise judicial authority in settling difficult issues when he viewed them as ripe for decision.
The opening paragraph of The Common Law contains the famous remark, "The life of the law has not been logic, it has been experience." While anticipated in Hale’s Reflections, that insight takes on a new meaning. In cutting away the presumptively precise and self-determining character of law and replacing it with human exigency, control over the generalizing and rule-making element was detached from its traditional location in the state and rooted in society at large. His was a revolutionary, presumptively classless society dedicated to the radical principles of 1776. Hence it was necessary to recognize the breadth of the community with a stake in the outcome of debate, including philosophical debate, which might affect legal theory and in turn the exercise of sanctions affecting everyone.
The civil rights movement demonstrated that the implementation of fundamental American rights requires a high degree of collective effort and commitment, and that the legal dimension of such reform is neither the primary one nor the first priority. Reform and renewal must come again if American democracy and its principles are to survive. Notwithstanding a long, arduous, and painful struggle, it is heartening to recall how responsive the country finally proved to be only a half century ago; it seems possible that it democracy can be renewed by a vigorous reassertion of reformist zeal. It will be no simple matter; as with the civil rights movement, it will take realism, perspective, planning, enormous commitment and sacrifice, and no small amount of excellent leadership. The greatest danger to this prospect lies in the effort to remake the federal judiciary for political purposes, and this should be resisted by all Americans of every political persuasion who care deeply about our democratic tradition and its example throughout the world.
Alshuler, Albert W..
2000. Law Without Values: The Life, Work, and legacy of Justice Holmes, Chicago:Chicago University Press.
1986. The Closing of the American Mind.
1996. Post-Liberalism: Studies in Political Thought
Holmes, Oliver W.
19–-. Collected Legal Papers
1881. The Common law
1905. Lochner v. New York 198 U.S. 45, 76 (1905).
1996. The Politics of Faith and the Politics of Scepticism
Peirce, Charles S.
Collected Papers. Pragmatism & Pragmaticism, 402 (C. Hartshorne & P. Weiss eds. 4th printing 1978
1986. Bentham and the Common Law Tradition. Oxford: Clarendon Press
1977. The Logic of Experience: Oliver Wendell Holmes on the Supreme Judicial Court, 63 Va. L. Rev. 975.
1999. Taking the Constitution Away from the Courts. Princeton: Princeton University Press
199-. John Dewey and American Democracy
 Oakeshott writes, "of the emergence of the politics of faith [was] a remarkable and intoxicating increase of human power" making its appearance at the beginning of modern history and stimulating the hope of salvation through politics, and the Baconian promise of prosperity, abundance, and welfare. This faith corresponds to that disposition Oakeshott called "rationalism in politics" or the "ideological style of politics." (1996)
 See generally Westbrook, John Dewey and American Democracy, (19-- )
 The best known version of the pragmatic maxim is "consider the effects, that might conceivably have practical bearings, we conceive the object of our conception to have. Then, our conception of these effects is the whole of our conception of the object." 5 Collected Papers of Charles Sanders Peirce: Pragmatism & Pragmaticism, 402 (C. Hartshorne & P. Weiss eds. 4th printing 1978). In one version of the pragmatic maxim Peirce writes "if we know what the effects of force are, we are acquainted with every fact which is implied in saying that a force exists, and there is nothing more to know." 5 Collected Papers of Charles Sanders Peirce 265.
 For classical pragmatism, generalizing was tested by consequences and connected tothe solution of human problems. In law, this highlights the degree of inclusion; yet not just in law, but in science, and (a then revolutionary notion) in philosophy itself, meanin can be described as the best consensus of all those confronted with a practical stake in the outcome. Fallibilism, the attitude that no formulation of any principle can be comprehensively final, originated in the discussions of the Metaphysical Club as a reference to the inherent element of uncertainty and ambiguity in forming and translating that consensus through language. We should note how different this is from the Continental associations of the more recent version of pragmatism, that has been given currency under the name of "neopragmatism." Both have emphasized a critique of the foundationalist tendency of Western philosophy. But nineteenth century pragmatism came to this view less from a sense of exhaustion of the Enlightenment tradition and more from a democratic reconceptualization of Western scientific and political culture.