Oliver Wendell Holmes on Natural Law

Villanova Law Review 48:1 (2002). Reprinted in Regent University Law Review 15:2 (Spring 2002-2003); The Good Society 12:3 (2003); and Jean DeGroot (ed.), Nature in American Philosophy (Catholic University of America Press, 2004).

My dear Laski,

Your remark about the “oughts” and system of values in political science leaves me rather cold. If, as I think, the values are simply generalizations emotionally expressed, the generalizations are matters for the same science as other observations of fact. If, as I sometimes suspect, you believe in some transcendental sanction, I don’t. Of course different people, and especially different races, differ in their values – but those differences are matters of fact and I have no respect for them except my general respect for what exists. Man is an idealizing animal – and expresses his ideals (values) in the conventions of his time. I have very little respect for the conventions in themselves, but respect and generally try to observe those of my own environment as the transitory expression of an eternal fact ….

So the eighty-eight-year-old Oliver Wendell Holmes wrote to Harold Laski on September 15, 1929, just weeks before the stock market crashed, plunging the world into depression.

What are we to make of Holmes’s statements? “Values,” he says, are merely “generalizations emotionally expressed.” As such, they are “matters for the same science as other observations of fact.” They have no “transcendental sanction.” Of course, different people, and especially different peoples (what Holmes calls “races”), “differ in their values.” These differences are mere “matters of fact” and deserve no particular respect beyond the respect owed to “what exists,” that is, the acknowledgment that it exists – the acknowledgment that things are as they are. ‘Man is an idealizing animal,” Holmes says. Man expresses his ideals in “conventions.” The “conventions” themselves are not worthy of any particular regard, but it makes sense for people generally to observe the conventions of their environment as “an expression,” albeit a “transitory” one, of “an eternal fact.”

Villanova Law Review
Regent University Law Review