“The loss of certainty” is a phrase many intellectual historians have used to characterize the period in which Holmes lived. But the phrase has it backward. It was not the loss of certainty that stimulated the late-nineteenth-century thinkers with whom Holmes associated; it was the discovery of uncertainty. Holmes was, in many respects, a materialist. He believed, as he put it, that “the law of the grub … is also the law for man.” And concerning the hope of social betterment, he was something worse than a pessimist. “I despise,” he said, “the upward and onward.” But he was not entirely a determinist, because he did not think that the course of human events was fixed—or that if it was fixed, we could reliably know any¬thing about it. Complete certainty was an illusion; of that he was certain. There were only greater and lesser degrees of certainty, and that was enough. It was, in fact, better than enough; for although we always want to reduce the degree of uncertainty in our lives, we never want it to disappear entirely, since uncertainty is what puts the play in the joints. Imprecision, the sportiveness, as it were, of the quanta, is what makes life interesting and change possible. Holmes liked to call himself a “bettabilitarian”: we cannot know what consequences the universe will attach to our choices, but we can bet on them, and we do it every day.
For although Holmes believed that experience is the only basis we have for guiding our affairs, he also believed that experience is too amorphous, or too multiple, ever to dictate a single line of conduct. Experience makes everything blurry at the edges; it reduces knowledge to a prediction of what should be the case most of the time, and we treat a prediction as an absolute at our peril. We start, in the law, with a principle or a concept that seems to help us decide the great mass of cases, and we therefore begin to assume this concept as fundamental. But as we move out toward the marginal cases, we begin to find that the concept actually rests on a whole submerged structure of other concepts, policies, intuitions, practices, and assumptions, and at a certain point we discover that it has become emptied of predictive force.
Sic utere tuo ut alienum non laedas, for instance, is an old com¬mon law maxim generally interpreted to mean that people are required to use their property in a way that will not injure the property of another. This certainly sounds unexceptionable, in law and in morals. But it is a principle, Holmes argued in “Privilege, Malice, and Intent,” that “teaches nothing but a benevolent yearning.” If I burn down the mom-and-pop candy store around the corner, it is true that I will be held liable for the damage. But (to use one of Holmes’s favorite examples) if I set up my own candy store right next door and, by deliberately underselling them, bring mom and pop to heartache and financial ruin, ultimately driving them homeless into the night, the law, although the consequences of my behav¬ior are effectively the same, will be indifferent.
Holmes’s perception here was not that we are hypocritical in punishing the first behavior and countenancing (not to say encouraging) the second. His perception was that we cannot make our way by universalizing our principles: it is always the underlying context that gives them force, and it is in the nature of contexts to shift. Nearly all of Holmes’s greatest moments as a judge arose from this perception. It is at the bottom of his most famous opinions, the dissents in the free speech cases of Abrams v. United States (1919) and Gitlow v. New York (1925)—although there is something else interesting about those opinions, too, which is that in order to write them, Holmes had to overcome an innate resistance to the very idea of a right to free speech, a resistance which was based on a principle of his own.
That principle was actually a kind of an antiprinciple. Holmes was a lifelong enemy of the concept of natural law—the notion that individuals retain certain rights, against the state, simply by virtue of being human. There are, Holmes thought, no such immutable and universal rights. What we take to be rights are simply customs that have become settled enough to seem inevitable. “As an arbitrary fact people wish to live,” he wrote in “Natural Law” (1918), and we say with various degrees of certainty that they can do so only on certain conditions. . . . But that seems to me the whole of the matter. I see no a priori duty to live with others and in that way, but simply a statement of what I must do if I wish to remain alive.
If I do live with others they tell me that I must do and abstain from doing various things or they will put the screws on to me. I believe that they will, and being of the same mind as to their conduct I not only accept the rules but come in time to accept them with sympathy and emotional affirmation and begin to talk about duties and rights. But for legal purposes a right is only the hypostasis of a prophecy—the imagination of a substance supporting the fact that the public force will be brought to bear upon those who do things said to contravene it—just as we talk of the force of gravitation accounting for the conduct of bodies in space. One phrase adds no more than the other to what we know without it.