| Holmes's preeminence in American jurisprudence has produced anachronistic interpretations of his legal philosophy. To understand the subtlety, complexity, and unity of his thought, we must place Holmes in his historical context and note the intellectual traditions to which he was indebted. Of these traditions, the most important is Bentham's and Austin's school of utilitarian jurisprudence. The crucial core of Holmes's legal philosophy is utilitarian in origin: his comprehensive, general, external, knowledge-based theory of legal liability; his theory of a determinate factual sovereign; his predictive definition of law; his psychological theory of legal obligation; and his inductive, policy-oriented theory of judicial decision-making; all share certain resemblances to doctrines first formulated by the utilitarian jurists. An investigation of these similarities between Holmes's and the utilitarians' legal philosophies will give us not only a better understanding of Holmes's thought, but also a warmer appreciation for utilitarian jurisprudence. All too often contemporary legal theorists have at best a noncommital attitude toward the utilitarians because the former are ignorant of the degree to which the latter are responsible for many relevant (though now unpopular)) legal doctrines. Indeed, after we have a better appreciation of Holmes's and the utilitarians' legal thought, we can use their ideas to probe the value of contemporary legal philosophy. In many ways, Holmes's and the utilitarians' theories of liability, sovereignty, law, obligation, and judicial decision-making offer us convenient and valuable alternatives to current approaches to these issues. |
