Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Sunday, January 17, 2010

The Natural Law's Devil: Justice Oliver Wendell Holmes

"I HATE JUSTICE," the American Supreme Court Justice Oliver Wendell Holmes, Jr., famously wrote in a letter to John C.H. Wu dated July 1, 1929. Not only did Justice Holmes hate justice, he hated the natural law. From a pure intellectual perspective, Justice Holmes's superiority must be admitted. But what a misuse of God's gift! Holmes's intellect was unmoored, infected by an extreme relativism, Darwinian materialism, and hopeless skepticism. Morally, at least from a theoretical level, Justice Holmes was bankrupt, and his moral philosophy betrays the depth of intellectual depravity, even evil. By any measure, the legal or judicial philosophy of Mr. Justice Holmes is a blight in the annals of American jurisprudence. To the natural law, Justice Holmes responded like the Devil to God: Non serviam. He is the natural law's devil, and his judicial philosophy belongs in Hell. His deformed and piteous soul, however, may not be beyond the mercy of the God he vociferously denied. And if perchance of God's special grace he avoided eternal torment which he held a figment of superstition, Mr. Justice Holmes deserves our prayers as he progresses through the Purgatory in which he never believed.

Perhaps the best treatment of Justice Holmes's disdain for natural law concepts can be found in Professor Albert W. Alschuler's excellent book, Law Without Values: The Life, Work, and Legacy of Justice Holmes (Chicago: University of Chicago Press, 2000). See also Albert W. Alschuler, From Blackstone to Holmes: The Revolt Against Natural Law, 36 Pepperdine L. R. 491-506 (2009).

Rather than engage in any sustained treatment of Justice Holmes, I will let Holmes speak for himself. His vituperation, his rebellion, his incorrigible inhumanity and misanthropy, the evil of his judicial philosophy--all make themselves so apparent as to be incontestable. In his view of justice and the natural law, Justice Holmes offends anyone with any sense of good will. Unhappy man, and unhappy Justice, he should be spurned, not hailed as one of America's great jurists.

To show this man's judicial philosophy, there is no better source that his private correspondence. Here is a sample of quotes from them:

"I take no stock in abstract rights . . . and equally fail to respect the passion for equality." (Letter to Laski, August 1, 1925)

"You respects the rights of man--I don't, except those things a given crowd will fight for." (Letter to Laski, June 1, 1927)

"All my life I have sneered at the natural rights of man." (Letter to Laski, Sept. 15, 1916)

"All law means is I will kill you if necessary to make you conform to my requirements." (Letter to Laski, Sept. 7, 1916)

"My bet is that we have not the kind of cosmic importance that parsons and philosophers teach. I doubt if a shudder would go through the spheres if the whole ant heap [i.e., the human community] were kerosened." (Letter to Lewis Einstein, August 19, 1909)

"I see no reason for attributing to a man a significance different in kind from that which belongs to a baboon or to a grain of sand." (Letter to Sir Frederick Pollock, August 30, 1929)

"I wonder if cosmically an idea is any more important than the bowels." (Letter from Holmes to Pollock)

"I think that the sacredness of human life is a purely municipal ideal of no validity outside the jurisdiction. I believe that force, mitigated so far as may be by good manners, is the ultima ratio . . . [E]very society rests on the death of men." (Letter to Sir Frederick Pollock, Feb. 1. 1920)

"As I probably have said many times before, all I mean by truth is what I can't help believing--I don't know why I should assume except for practical purposes of conduct that [my] can't help has more cosmic worth than any others--I can't help preferring port to ditch-water, but I see no ground for supposing that the cosmos shares my weakness. . . . .[I] demand . . . of my philosophy simply to show that I am not a fool for putting my heart into my job." (Letter to John Chipman Gray, Sept. 3, 1905)

"Doesn't this squashy sentimentality of a big minority of our people about human life make you puke? [That minority includes] people who believe that there is an onward and upward--who talk of uplift--who think that something in particular has happened and that the universe is no longer predatory. Oh bring in a basin." (Letter to John H. Wigmore, Nov. 1915)

In an address at the dedication of the Northwestern University School Building (October 20, 1902), Holmes stated that "moral and aesthetic preferences" are "more or less arbitrary . . . . Do you like sugar in your coffee or don't you? . . . So as to truth." "Our tastes," Holmes states, "are finalities."

Mr. Justice Holmes was morally sick, a legal enormity, a vicious embarrassment in human jurisprudence. Miserable, unhappy man. His barren judicial philosophy bears as much fruit as his barren, childless marriage. Justice Holmes was a great bad man, like Napoleon, like Hitler. Unlike them, he did not command armies, but the pen and a black robe. But in the area of judicial philosophy he caused his own share of mayhem, suffering, and evil like his political and military analogues in the social, political, and physical realms. He was, paraphrasing what Alexis de Tocqueville said of Napoleon, as great as a judge can be without virtue, which is pretty much what one can say of the Devil--as great an angel can be without virtue--in whom he was in thrall.

Mitte ei, Domine, auxilium de sancto.
Send him help, O Lord, from Thy holy place.

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