Oliver Wendell Holmes: Violence and the Law

Holmes’s war experiences left him with the view that it all boils down to force, to the imposition of death.  “Holmes had little enthusiasm for the idea that human beings possessed any rights by virtue of being human.  Holmes always liked to provoke friends who he thought were being sentimentally idealistic by saying, ‘all society rests on the deaths of men,” and frequently asserted that a ‘right’ was nothing more than ‘those things a given crowd will fight for—which vary from religion to the price of a glass of beer’” (369-70 in Budiansky’s biography of Holmes).

Holmes’ rejection of any “natural” theory of rights always returned to this assertion about death:

The jurists who believe in natural law seem to me to be in that naïve state of

mind that accepts what has been familiar and accepted by them and their

neighbors as something that must be accepted by all men everywhere.  The

most fundamental of the supposed preexisting rights—the right to life—is

sacrificed without a scruple not only in war, but whenever the interest of

society, that is, of the predominant power in the community, is thought to

demand it (376).

 

And he understood the law entirely through its direct relation to force.  “The law, as Holmes never tired of pointing out, is at its foundation ‘a statement of the circumstances in which the public force will be brought to bear upon men through the courts’” (435).  “Holmes’s point was that the law is what the law does; it is not a theoretical collection of axioms and moral principles, but a practical statement of where public force will be brought to bear, and that could only be derived from an examination of it in action” (244).  “[H]e would come to insist as a cornerstone of his legal philosophy that law is fundamentally a statement of society’s willingness to use force—‘every law means I will kill sooner than not have my way,’ as he put it[;] . . . he did not want the men who threw ideas around ever again to escape responsibility for where those ideas led.  It was the same reason he lost the enthusiastic belief he once has in the cause of women’s suffrage: political decision had better come from those who do the killing” (131).

Temperamentally, this is easy enough to characterize.  The manly facing up to harsh facts, to an unsentimental view of humans and their social institutions, and a disgust with all sentimental claptrap.

Philosophically, it is less easy to describe.  Where there is power there must be force is clear enough.  But what Holmes seems to miss is that the law often serves as an attempt to restrict force.  Rights (in some instances) are legal statements about instances where the use of force is illegitimate.  Certainly (as Madison was already well aware and as countless commentators have noted since) there is something paradoxical about the state articulating limitations on its own powers.

Who is going to enforce those limitations?  The answer is the courts.  And the courts do not have an army.  That’s what the rule of law is about: the attempt to establish modus vivendi that are respected absent the direct application of force.  Holmes, of course, is arguing that the court’s decision will not be obeyed unless there is the implied (maybe not even implied, but fully explicit) use of state power to enforce that decision.  But his position, like all reductionisms, does not do justice to the complexities of human behavior and psychology.  The Loving decision of 1967, like earlier decisions on child labor laws, led to significant changes in everyday social practice that came into existence with little fanfare.  There are cases where the desire to live within the law is enough; there is an investment in living in a lawful society.  Its benefits are clear enough that its unpleasant consequences (in relation to my own beliefs and preferences) are a price I am willing to pay in order to enjoy those benefits.  Of course, there are also instances where force needs to be applied—as with the widespread flouting of the Brown decision.  My point is simply that the law’s relationship to force is more complex than Holmes allows.  The law is an alternative to violence in many instances, not its direct expression.

My position fits with my notion of the Constitution as an idealistic document, of a statement of the just society we wish to be.  The law is not, as Holmes would argue, completely divorced from questions of morality and justice (more claptrap!).  That relation is complex and often frustrating, but it does no good (either theoretically or practically) to just cut the tie in the name of clear-sighted realism.  Social institutions exist, in part, to protect citizens from force.  And, yes, that can mean in some instances that state force must be deployed in order to fend off other forces.  But it also means in some instances that the institutions serve to prevent any deployment of force at all.  The law affords, when it works, an escape from force, from the unpredictable, uncontrollable and deeply non-useful side effects of most uses of force.

In short, the manly man creates (at least as much as he discovers) the harsh world of struggle he insists is our basic lot.  True, Holmes did not create the war he marched off to at the age of twenty.  He experienced that war as forced upon him.  But he never got quite clear about who was responsible.  He was inclined to blame the abolitionists and their moral fervor, their uncompromising and intolerant absolutism.  He certainly had no patience for their self-righteous moralizing.  Still, blaming them had some obvious flaws, so he ended up converting the idea of struggle into a metaphysical assertion.  He, like Dewey and James, but in a different, more Herbert Spencer-like register, became a Darwinian, focused on the struggle for existence.  But he yoked Darwin to Hobbes; it is not the best adaptation to environmental conditions that assures survival, but the best application of force.  Of course, if the environmental condition is the war of all against all, then the adepts at violence will be the ones who survive.

All of this goes along with contempt for the losers in the battle.  Holmes had no patience with socialists or with proponents of racial justice.  The unwashed were driven by envy; “no rearrangement of property could address the real sources of social discontent” (396), those sources being the envy of the successful by the unsuccessful.  It’s a struggle; just get on with it and quit the whining—or expecting anyone to offer you a helping hand.  Holmes did accept that the law should level the field of struggle; he was (somewhat contradictorily) committed to the notion of a “fair” fight.  Where this ideal of “fairness” was to come from is never clear in his thought—or his legal opinions.  (He was, in fact, very wary of the broad use of the 14th Amendment’s language about “due process” and “equal protection of the laws.”  The broad use of the 14th amendment was being pioneered by Louis Brandeis in Holmes’ later year on the Supreme Court.)  Budiansky is clear that Holmes is by no stretch of the term a “liberal.”

Holmes’s famous dissents from the more conservative decisions of the pre-New Deal Court are motivated by his ideal of fairness—and (connecting to earlier posts about what liberalism even means) that ideal is used against decisions that in American usage are understood as “conservative” even though those conservative decisions were based on the “liberal” laissez-faire idea that the state cannot interfere in business practices.  Holmes’s scathing dissents from the court’s overturning of child labor laws enacted by the states are usually argued on the grounds of consistency.  He says that state governments already regulate commerce (for example, of alcohol), so it is absurd to say they can’t regulate other aspects of commercial activities.

Regulation, it would seem, is always about competing interests.  Since it is inevitable that there will be competing interests, society (through its regulatory laws) is best served by establishing a framework for the balancing of those interests.  Regulation is neither full permission nor full prohibition.  It strives to set conditions for a practice, conditions that take the various interests involved into account.  But Holmes never really worked out a theoretical account of regulation—another place where his reductionism fails him.  Yes, regulations must be enforced, but they are also always a compromise meant to mitigate the need to resort to force–and to prevent anyone from having a full, free hand in the social field characterized by a plurality of different interests and aims.

A Veteran’s Worldview

I have just finished reading Stephen Budiansky’s riveting biography of Oliver Wendell Holmes, subtitled “A Life in War, Law, and Ideas” (Norton, 2019).  Like Louis Menand, Budiansky claims—and makes a very compelling case for the claim—that Holmes’ manner and belief are all shaped by his service in the Civil War.  Holmes was severely wounded twice (once in late July 1861 and then again at Antietam in September 1862).  The second time (like Robert Graves) his death was reported in the newspapers.  Holmes returned to service after both wounds, but saw only limited combat after 1862 since he joined a general’s staff.  He had had more than enough—and quit the war in 1864 as soon as his three year term of service had expired.

Budiansky does a superb job in portraying Holmes’ worldview, one that I think is shared by many veterans.  It certainly resonates with the hard to describe beliefs that animated my own father, who saw serious combat (although far short of the slaughterhouse that was September 17, 1862 at Antietam) in the Pacific during World War II.  At bottom, Holmes became a “it’s struggle all the way down” guy.  In the final analysis, it is force that tells—and that rules.  That is an ugly truth.  Force is relentless, mindless, brutal, and unrelated to justice or any other ideals.  People who mouth ideals or try to call others to account in the name of ideals are naïve at best, deluded hypocrites speaking claptrap.  At worst, they are moralistic despots, deploying their moral certainties to tyrannize over the rest of us.  Dewey’s pragmatist attack on “the quest for certainty” becomes in Holmes the justification of an activist pluralism.  The role of the law is to create a social field in which individuals are free to live their lives according to their own vision of the good life.  Oddly enough, this yields a positive value: basically the very English value (both Holmes and my father were over-the-top Anglophiles) of “fair play.”  Holmes’ Supreme Court decisions, in almost every instance, were directed to leveling the playing field, to denying any one or any group more power than any other.  Thus he was a liberal in the Judith Shklar’s “liberalism of fear” sense; the focus is on preventing concentrations of power.

But Holmes (and here he is also very pragmatist) did not accept that uncertainty meant nihilism.  “’Of all humbugs the greatest is the humbug of indifference and superiority,’ he wrote . . . in 1897. ‘Our destiny is to care, to idealize, to live toward passionately desired ends.’ He always dismissed the nihilistic attitude ‘it is all futile,’ which he termed ‘the dogmatism that often is disguised under skepticism.  The sceptic has no standard to warrant such universal judgments.  If a man has counted in the actual striving of his fellows he cannot pronounce it vain’” (130).

Eureka!  I can’t help but take this for the cornerstone.  It jives with William James’s constant harping of “striving,” and it is tied to a deep commitment to a certain ideal of masculinity.  Holmes (like my father) was clear-eyed about the waste, the futility, the sheer brutal nastiness and devastation of war. He could see that a killing field like Antietam left nothing to individual initiative, ability, or resolve.  It was all sheer chance as to whether one survived or not.  And yet, he still hung on to the time-worn notion that war was the supreme test of manhood—and thus valuable because (for reasons never examined) manhood has to be tested.  Maybe that goes back to the struggle thing; one needs to compete against others for the prize of being able to, in one’s own eyes and in the eyes of others, be accounted a man.  Since the struggle lies in front of us, the prize goes to those who most energetically strive.  And by upping the stakes to life or death in the way that combat does, manhood is fully tested.

Thus, he famously wrote (in 1884) of himself and his fellow Civil War veterans: “We have shared the incommunicable experience of war; we have felt, we still feel, the passion of life to its top . . . Through our good fortune, in our youth our hearts were touched with fire” (127).  And later, during the First World War, he wrote: “I truly believe that young men who live through a war in which they have taken part will find themselves different thenceforth—I feel it—I see it in the eyes of the few surviving men who served in my Regiment.  So, although I would have averted the war if I could have, I believe that all the suffering and waste are not without their reward.  I hope will all my heart that your boys may win the reward and at not too great a cost” (363).

That last bit strikes the note perfectly.  A real desire to avoid war joined with an equally real belief that war brings its own distinctive rewards, along with the absolute distinction between those who have the incommunicable experienced of war and those who do not.  The veteran is part of the elect; he has looked into the abyss; he has seen the fundamental ugly truth of struggle, and is the better man for it.

In the implacable face of violence and death, high ideals mean nothing.  The only worthy response is to shut up and get on with it. Grim determination, strong silence, and doing the job well are what is worthy of respect; nothing more or less.  His ideal men “were free to be egoists or altruists on the usual Saturday half holiday provided they were neither while on their job.  Their job is their contribution to the general welfare and when a man is on that, he will do it better the less he thinks ether of himself or of his neighbors, and the more he puts his energy into the problem he has to solve” (137).  His contempt for intellectuals and moralists was unbounded.  “More than once he cautioned his friends about ‘the irresponsibility of running the universe on paper. . . . The test of an ideal or rather of an idealist, is the power to hold it and get one’s inspiration from it under difficulties.  When one is comfortable and well off, it is easy to talk high talk’”(131).  His attitude toward intellectuals was very close to that of George Orwell; they talked a talk they never had to walk—and they rendered the world frictionless in their images of its betterment.  It is the contempt of the self-styled man of action for the man of ideals—and is undoubtedly tied up with a cherished ideal of manhood.  And, of course, in both Holmes and Orwell, it comes from two men who are primarily men of words.  But they both share their military experience, so can see themselves as superior to the non-veteran.

When you aspire to be a man of action, the nostalgia for combat is understandable.  What other field of action that is not contemptible does the modern world offer?  What honor is there in making more money than others?  Where, in other words, is the moral equivalent of war?  Certainly not in politics, which is even more contemptible than trade.  Holmes was determined not to become either the gloomy Henry Adams nor the god-seeking William James.  He wanted, instead, to be the tough-minded realist described in the opening pages of James’s Pragmatism book.

I want, in my next post, to consider how tough-minded realism plays itself out in Holmes’ understanding of the law.  But today I will end with the way that realism renders Holmes a pluralist in an additional sense.  He is a pluralist in the John Rawls sense of believing that the central unalterable fact that liberal society must negotiate is the existence of multiple visions of the good, none of which should be allowed to trample on the others.  He is a pluralist in the Isaiah Berlin sense in asserting that, even within a single vision of the good, there are competing goods that require tradeoffs and compromises; we will never getting everything we could wish for because those things cannot co-exist.  Going to the theater tonight means missing a dinner with a different set of friends.  Intellectuals, he thinks, never take the inevitability of never achieving the maximum into account in their criticisms of the men of action or in their imagined utopias.  “Remember, my friend [he wrote], that every good costs something.  Don’t forget that to have anything means to go without something else.  Even to be a person, to be this means to be not that’ (131).

In sum, life’s a struggle and a real man just gets on with the job, harboring no illusion that it will be all wine and roses.  That real man is full of contempt for the complainers and idealists, the ones who aim to change the basic fact of struggle into some kind of gentler form of cooperation that tends toward ameliorating the sufferings of himself and/or others.  You just need to face up to the suffering in stoic silence, doing the best that you can for yourself and for those you love.  Because you are a man and they are depending on you, even as you have no one to depend on but yourself.  It’s a cop-out of your manhood to expect help; it’s a sign of weakness, of not being up to the struggle, to whine for help from the law, from society, from anyone.

Economic Power/Political Power

A quick addition to my last post.

The desire is to somehow hold economic power and political power apart, using each as a counterbalance against the other.  To give the state absolute power over the economy is to insure vast economic inequality.  Such has, generally speaking, been the lesson of history.  Powerful states of the pre-modern era presided over massively unequal societies.

But there is a modern exception.  Communism in Russia and Eastern Europe did produce fairly egalitarian societies; in that case, state power was used against the accumulation of wealth by the few.  There still existed a privileged elite of state officials, but there was also a general distribution of economic goods.  The problem, of course, was a combination of state tyranny with low productivity.  The paranoia that afflicts all tyrannies led to abuses that made life unbearable.

But (actually existing) communism did show that it is possible to use state (political) power to mitigate economic inequality.  Social democracy from 1945 to 1970 was also successful in this direction.  Under social democracy, the economy enjoys a relative autonomy, but is highly regulated by a state that interferes to prevent large inequities.

Where there is some kind of norm that political power (defined as the ability to direct the actions of state institutions) should not either 1) be a route to economic gain or 2) be working hand-in-glove with the economically powerful to secure their positions, the violations of that norm are called “corruption.”  The Marxist, of course, says that the state in all capitalist societies (the “bourgeois state”) is corrupt if that is our definition of corruption.  The state will always have been “captured” by the plutocrats.

What belies that Marxist analysis is that the plutocrats hate the state and do everything in their power (under the slogan of laissez-faire) to render the state a non-player in economic and social matters.  Capitalists do not want an effective state of any sort—either of the left, center, or right.  A strong state of any stripe is not going to let the economy goes its own way, but will (instead) fight to gain control over it.  I think it fair to say that the fight between political and economic power mirrors the fight between civil and religious power in the early days of the nation-state.  The English king versus the clergy and the Pope.

The ordinary citizen, I am arguing, is better off when neither side can win this fight, when the two antagonists have enough standing to prevent one from having it all its way.

Our current mess comes in two forms, the worst of all worlds.  We have a weak state combined with massive corruption.  What powers the state still has are placed at the service of capital while politicians use office to get rich.  We have a regulatory apparatus that is almost completely dormant.  From the SEC to the IRS, from the FDA to the EPA, the agencies are not doing their jobs, but standing idly by while the corporations, financiers, and tax-evading rich do their thing.

The leftist response is to say that the whole set-up in unworkable.  We need a new social organization.  I have just finished reading Fredric Jameson’s An American Utopia (Verso, 2016).  Interestingly enough, Jameson also thinks we need “dual power” in order to move out of our current mess.  The subtitle of his book is “Dual Power and the Universal Army.”  More about Jameson in subsequent posts.

Here I just want to reiterate what I take to be a fundamental liberal tenet: all concentrations of power are to be avoided; monopolies of power in any society are a disaster that mirror the equal but opposite disaster of civil war.  Absolute sovereignty of the Hobbesian sort is not a solution; but the absence of all sovereignty is, as Hobbes saw, a formula for endless violence.  Jameson says the key political problem for any Utopia is “federalism.”  That seems right to me, if we take federalism to mean the distribution of power to various social locations.  Having a market that stands in some autonomy from the state is an example of federalism.  There are, of course, other forms that federalism can take.  All of those forms are ways of working against the concentration of power in one place.

Liberalism (Yet Again)

In his London Review of Books review (February 6th issue) of Alexander Zevin’s history of The Economist magazine, Stefan Collini makes a point I have often made-and which I presented at some length on this blog some eighteen months ago.  To wit, the term “liberalism” is used in such a loose, baggy way that it comes to mean nothing at all—or, more usually, everything that the one who deploys the term despises.  If John Dewey and Margret Thatcher are both liberals, what could the term possibly designate?

My take has always been that there are a number of things—habeas corpus, religious tolerance, social welfare programs, freedom of the press—that in specific contexts can be identified as “liberal” in contrast to more authoritarian positions, but that the existence of these specific things are the product of different historical exigencies and do not cohere into some coherent, overall ideology.  They may be a family resemblance among the positions that get called “liberal,” but there is no necessary connection between habeas corpus and religious tolerance.  You can easily have one without the other, as was true in England for several centuries.

In a letter to the LRB, Zevin objects to Collini’s refusal to credit the more generalized use of the term “liberal.”  I find his objection cogent and thus offer it here:

“Resistant, in general, to overarching categories, he [Collini] seems particularly sensitive when it comes to liberalism. ‘When people ask me if the division between men of the Right and men of the Left still makes sense,’ the essayist Alain once remarked, ‘the first thing that comes to mind is that the person asking the question is certainly not a man of the Left.’  When someone says, mutatis mutandis, ‘all you mean by liberalism’ is ‘not socialism’ and ‘there is no such thing,’ it is safe to assume the speaker is a liberal, defensively protecting himself.”

So, yes, guilty as charged.  I am a liberal—and do have something at stake in claiming that the term ‘liberalism’ is used in too loose a fashion to do much good.  I want a finer grained statement of what specific features of the political landscape are desirable, are worth fighting to preserve where they exist, and to introduce where they do not.  We should know what we are talking about—and what we are advocating for.  Zevin’s point (not surprisingly) is that the liberalism of The Economist encompassed its support of the Vietnam and Iraqi wars; Collini, no doubt, would argue that many liberals opposed those wars, whereas they were the brainchild of many to the right of liberalism, those often called neo-conservatives.  The right, in other words, was more solidly unified in its opinion on those wars than a sorely divided liberal camp. Yes, some liberals supported those wars, but hardly all.  And it is very hard to believe that a centrist like Al Gore would have led the US into that “war of choice” in Iraq.  To which, the anti-liberal leftist says I have two words for you: Tony Blair.

The left, it seems, needs to continually assert its distance from a detested center that it calls ‘liberalism.”  It also needs to constantly trumpet the sins of that liberalism and to mitigate its differences from the right.  For the soi disant radical left, neo-liberal and neo-conservative become equivalent terms, with no appreciable difference between them.  Hilary Clinton is no better and no worse than George W. Bush.  And somehow both are liberals.

My defensiveness comes from wanting to save the term “liberal” to designate a raft of values and positions I wish to advocate.  Maybe I should give that up, call myself a “social democrat,” and move on.  I resist that move because there are values captured by “liberalism” (especially those connected to rights and tolerance) that aren’t covered by “social democrat,” with its focus on economic sufficiency and regulation of market forces and market practices.

But how about the “not socialism” broad brush?  Michael Clune, in an essay entitled “Judgment and Equality” (Critical Inquiry, 2019, pp. 910—917), repeats the by-now familiar dismissal of liberalism’s individualism, its reduction of everything to “choice,” to “consumer preference.”  Even a cursory reading of 20th century liberals such as Dewey or Charles Taylor would indicate how sloppy a vision of liberalism such a charge demonstrates.  Not to mention that one standard conservative charge against liberals is precisely that they negate individual responsibility in their emphasis on the social determinants of behavior.  Which is it?  Liberals are full-scale believers in heroic individual autonomy, or they are apologists for the impoverished and the misfit, blaming social conditions for their perceived failures?

Still, Clune does make a concrete claim: “The liberal tradition supports the effort to correct egregious market inequities through policies that leave the market intact” (928).

Now we are talking.  I do think that the commitments I think of as liberal include an acceptance of the market.  That acceptance is, partly, pragmatic (in the vulgar, not philosophical, sense of that term.)  I think the chances of overthrowing the market and installing something different in its place are nonexistent.  In that sense, there is no realistic alternative at the current moment.  So, says the radical, you and Thatcher are the same.  Told you so.

Not so fast.  What I am saying is that the consequential political battles of our time are going to be fought over what kind of market we are going to have.  This is a real battle, with real stakes.  The right over the past seventy years has fought tooth and nail to discredit social democracy, to roll back any state (or other) regulation of the market, and any mechanisms (from unions to minimum wage laws to other forms of state involvement in wage negotiations) that would overcome the imbalances of power existing between employers and workers in an unregulated market.  We know two things: one, that the right has been largely successful in this battle; two, that the vast majority of workers in the West are worse off now than they were in 1960.  Social democracy was a better deal for workers than the present regime (call it neo-liberal if you like, although that term ignores the liberalism of the twentieth century in favor of the “classical liberalism” of the 19th).

Another (contingent) feature of liberalism is its distrust of concentrations of power, its desire to share power around, to create “checks and balances.”  Currently, that entails a recognition that economic power is over-concentrated; that we need state power to counterbalance it because the collective power of workers (through unions or other mechanisms) is hard (if not impossible) to mobilize under present economic conditions.

It is fair to say that the founders were more concerned about concentrated state power than about concentrated economic power.  It is a stretch, I believe, to see Jefferson as a laissez-faire classical economist, but his words and ideas can be wrenched in that direction (by historians like Joyce Appleby) because he wanted to establish sources of power outside of the state’s reach.

I think economic sufficiency does provide a citizen with some independence from the state.  Therefore, I am also willing to argue that acceptance of markets is not just a pragmatic expediency, but also justified in its own right.  Economic bases of power apart from the state are not necessarily a bad thing.

The bad thing is overweening economic power, just as tyrannical state power is a bad thing.  Markets, like states, tend toward the abuse of power.  We need mechanisms, enforceable regulations and structuring rules, to curb market power.  We also need to identify various basics—like health care, education, transportation, clean water and energy—that are not well served by markets and create alternative institutions for their provision.  The best guideline for these alternative institutions is that old liberal standby: equality of access for all.

There are three very strong arguments against the market.  One, the market inevitably produces wildly unequal outcomes.  The liberal response: there are mechanisms, including unions, taxes, and redistributive policies that can combat those unequal outcomes.

Second, markets are inimical with democracy.  The liberal response: workplace democracy is possible, as is political democracy.  Its achievement depends on active mechanisms of participation which must be mandated as part of corporate and state governance.  But there is no absolute bar to the existence of such mechanisms.

Third, economic power always overwhelms political power—if it does not simply convert itself directly into political power.  The reforms that liberalism envisions as answers to numbers one and two never happen because the opponents of such reforms always already have power—which means the power to perpetuate existing inequalities.

That last argument is the killer.  It simply seems true—and then the issue becomes how best to diminish the power of the wealthy, how to turn plutocracy into democracy, and use the democratic state to rein in the inequities of the market (not to mention its environmental degradations).

At this point in the argument, I don’t think the leftist and the liberal have very different goals.  They just differ strongly on tactics.  Is it better to aim to win the way to reform of the market?  Or is it better to work toward the total overthrow of the market?  I don’t see any remotely realistic pathway to that second goal, which is why I remain someone committed to the re-emergence, in even stronger and better form, of social democracy.