Law Without Values : The Life, Work, and Legacy of Justice Holmes

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9780226015217: Law Without Values : The Life, Work, and Legacy of Justice Holmes

In recent decades, Oliver Wendell Holmes has been praised as "the only great American legal thinker" and "the most illustrious figure in the history of American law." But in Albert Alschuler's critique of both Justice Holmes and contemporary legal scholarship, a darker portrait is painted—that of a man who, among other things, espoused Social Darwinism, favored eugenics, and, as he himself acknowledged, came "devilish near to believing that might makes right."

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In recent decades, Oliver Wendell Homes has been praised as "the only great American legal thinker" and "the most illustrious figure in the history of American law." In Law without Values, Albert W. Alschuler paints a much darker picture of Justice Holmes as a distasteful man who, among other things, espoused Social Darwinism, favored eugenics, and as he himself acknowledged, came "devilish near to believing htat might makes right."

Alschuler begins by examinging Holmes's power-focused philosophy and then turns to Holmes the person, describing how the horrors he expereinced in the Civil War would transform his outlook into one of moral skepticism and profoundly color his decisions, both personal and legal. Thus skepticism, Alschuler argues, was at the root of his personal indifference to others, his romanticization of war and struggle, his persistent efforts to substitute powe metaphors for judgments of right and wrong, and his "bad man" concept of law. His pernicious leacy, according to Alschuler, is evident in twentieth-century legal thought, whether one takes an economic or a critical legal approach. Contrary to the perception of many modern lawyers and scholars, Holmes's legacy was not a "revolt against formalism" or against a priori reasoning; it was a revolt against the objective concepts of right and wrong—against values.

Alschuler's thoroughgoing, no-holds-barred debunking of Holmes, together with his scathing critique of contemporary legal scholarship, will be a lightning rod for discussion and debate.

About the Author:

Albert W. Alschuler is the Wilson-Dickinson Professor in the University of Chicago Law School. His study of Sir William Blackstone received the 1997 Sutherland Prize of the American Society of Legal Historians.

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