Justice Holmes and the Natural Law by Michael H. Hoffheimer

Author:Michael H. Hoffheimer [Hoffheimer, Michael H.]
Language: eng
Format: epub
Tags: History, General
ISBN: 9781135530259
Google: VoguAgAAQBAJ
Publisher: Routledge
Published: 2013-11-26T16:00:39+00:00

E. Conflict in Legal Theory

Holmes worked to establish his intellectual identity as part of an ongoing struggle to control and master internal, conflicting drives. His struggle for control shaped the way he carved up his personal life into worlds of work and play.109 Legal scholarship and judicial writing were themselves expressions of control—activities into which he directed all his energies.

His theory of law, too, reflected his central concern with conflict and control. He forged the philosophical perspective that supported his legal theory in opposition to the transcendentalism of his father. From an intellectual standpoint, “The clash between father and son may be regarded as symbolic of the impact on New England’s transcendentalism of the positivism encouraged by the new theories of physics and biology.”110 From a psychoanalytic perspective, however, Holmes’s effort to elaborate a science of law resulted from the clash with his father and from his internal struggle with the transcendentalism that he had assimilated through the process of identification.

The origins of the new theory do much to explain the emotional force with which it was expressed, and they illuminate Holmes’s deep and abiding hostility to views that had once been his own. The natural law views associated with transcendentalism were special targets for his sarcasm and scorn—“fallacy and illusion,”111 “irreconcilable with primary juridical notions.”112 He likened natural law to a child’s bugaboo, “a brooding omnipresence.”113

Holmes sought out conversations and correspondences with younger male intellectuals—sparring partners, toward whom he adopted antagonistic intellectual postures that continue to bewilder biographers.114 In these relationships Holmes replicated his relation with his father; he avoided confronting his chronological or social superiors and assumed an antagonistic paternal relation with his inferiors. The relationships demonstrated the extraordinary plasticity of Holmes’s superego, and the lengths to which he would go to cultivate intellectual pugilism. According to one account, Holmes challenged his conversational adversary, “I am ready to contradict any statement you will make.”115

Holmes rejected vehemently all utopian schemes premised on the elimination of tension. Though he expressed conviction infrequently after the 1860s, he expressed forcefully his rejection of utopian ideologies that assumed the eventual elimination of social conflict. “Of course I disbelieve in all utopias to be reached through property.”116 He reacted cynically to Franklin Ford’s optimistic view of the future development of society on “the basis of science.”117 His frequent jibes at pacifism are well known, and he characterized egalitarian economic theories as “drivelling cant.”118

A central feature of Holmes’s thought was recognition and acceptance of tension. In The Path of the Law (1897), he wrote:

If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct … in the vaguer sanctions of conscience.119

His theory of criminal law explained criminal prohibitions as social efforts to deter unwanted acts, and he neglected considerations of moral blame-worthiness.120 After his death his focus on the bad man and his treatment of criminal law came under attack.

Download

Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.