The better the society, the less law there will be. In Heaven there will be no law,
and the lion will lie down with the lamb…. In Hell there will be nothing but
law, and due process will be meticulously observed.
SO REMARKED THE eminent legal scholar Grant Gilmore in closing his 1974 lecture series at Yale Law School, later published as The Ages of American Law. Gilmore crafted this catchy couplet to capture the pessimistic view of law, politics, and society made popular by the American jurist and Supreme Court Justice Oliver Wendell Holmes Jr. (1841–1935). Contrary to the conventional portrait of Holmes as the sage and sartorial “Yankee from Olympus,”1 Gilmore saw him as a “harsh and cruel” man, chastened and charred by the savagery of the American Civil War and by the gluttony of the Industrial Revolution. These experiences, Gilmore argued, had made Holmes “a bitter and lifelong pessimist who saw in the course of human life nothing but a continuing struggle in which the rich and powerful impose their will on the poor and the weak.”2 The cruel excesses of the Bolshevik Revolution, World War I, and the Great Depression in the first third of the twentieth century only confirmed Holmes in his pessimism that human life was “without values.”3
This bleak view of human nature shaped Holmes's bleak view of law, politics, and society. Holmes regarded law principally as a barrier against human depravity—a means to check the proverbial “bad man” against his worst instincts and to make him pay dearly if he yielded to temptation.4 Holmes also regarded law as a buffer against human suffering—a means to protect the vulnerable against the worst exploitation by corporations, churches, and Congress. For Holmes, there was no higher law in heaven