Volume 13, Issue 5: Magistralis
A Man Without a Chest
Gregory C. Dickison
In The Abolition of Man, C.S. Lewis wrote of men without chests. He argued that those who deny objective beauty and tell us that our response to beauty is only a personal and unimportant subjective experience of emotion, are essentially cutting out our hearts. We are left to be driven by appetite and intellect, without sentiment, and without the ability to delight in truth, beauty, and goodness.
Oliver Wendell Holmes, Jr., could have been the poster boy for men without chests. He is one of the most well-known former justices of the United States Supreme Court. In 1897, when he was 55 years old and still a justice of the Supreme Judicial Court of Massachusetts, the Harvard Law Review published an article by Holmes called "The Path of the Law."1 It set forth Holmes' idea of what law is, and has been called the most influential piece of jurisprudence ever written.2 While Holmes does make some valid points, one of the most striking features of the article is that Holmes entirely empties the law of its moral content. While the idea that the law was not a moral entity was not new with Holmes, he and his admirers did much to popularize it.
Holmes was a hodge-podge of atheistic philosophies. He believed that "rights" were nothing more than what a given group of people would fight for. If the advocates of one particular idea won the fight, he did not believe courts should prolong the survival of those who were unfit by keeping the fittest in check. Whoever was on top had been put there by nature, and who was he to upset the natural order? At the
same time, he believed that life was vanity, and that man must infuse it with meaning in how he lived. Holmes' own desire was to become the greatest jurist to ever live. But if someone else gave life zest and affirmed his existence by committing suicide, that was okay, too. If extreme sports had been around in Holmes' day, he would have been all for them.
Holmes read the Bible, but, in his unbelieving approach, got all the wrong things out of it. He considered the command, "`whatsoever thy hand finds to do, do it with thy might,' infinitely more important than the vain attempt to love thy neighbor as
thyself."3 Holmes called aesthetic and moral preferences "can't helps." They were simply part of a man's make-up, and had no objective value beyond that. "I can't help preferring port to ditch-water," he said,
"but I see no ground for supposing that the cosmos shares my
weakness."4 Holmes' view of the law was based primarily on self-interest. Holmes wrote, "A man who cares nothing for an ethical rule which is believed and practiced by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can." In order to properly study the end of the law, you had to study it from the perspective of one who wanted to avoid it. "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, whether inside the law or outside of it, in the vaguer sanctions of conscience."5 For example, Holmes denied any moral obligation to keep contractual agreements. "The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep itand nothing else."6 To the bad man, a fine or a civil penalty for doing something the law prohibited was no different than a tax for doing something the law permitted. If dishonestyor crimepays, then go for it.
In other words, the law is the study of what a man can get away with. The sentimental and quaint idea of moral duties to others is legally meaningless and completely irrelevant. For the bad man, obedience to the law is a simple cost-benefit and risk analysis. If I do this, how likely is it that the law will do anything about it? And will the benefit I obtain for doing it be worth the price?
Holmes recognized that his "ideal" of an amoral law had not been obtained in his time, but he looked forward to the day when morality would no longer be "constantly. . . making trouble. . . ."7 If he were alive today, he would
be pleased with how far we have come.
Law is inherently moral. There is no way to decide what is right in any given legal dispute without appealing to what is right ultimately. The law is also inherently beautiful, because it is moral. Holmes, like Achish, would
have thought David a madman. While Holmes looked at the law as a bad man, David saw the law as a source of delight. The law of the Lord is perfect, and His statutes are right. They give joy and enlightenment. They are finer than gold and sweeter than honey.
Holmes' view of the law, and life itself, was bankrupt. Life was nothing but a struggle, and the whole duty of man was to struggle with all his might. How this was supposed to produce anything like justice, Holmes could
not explain. Holmes made men geldings, then bid them be fruitful.