Holmes, Nietzsche & Classical Realism

Abstract

The point of departure is Richard Posner's striking suggestion that Holmes is American Nietzsche. What is it that the great American judge and the great German philosopher have in common? The Essay argues that the real thematic (and tempermental) affinity between Holmes and Nietzsche lies in the fact that both are proponents of a general, but neglected, perspective on questions of moral, political, and legal theory that I will call Realism. Importantly, the Classical of Holmes and Nietzsche places them in a long tradition of theories of morals, politics, and society that we find in writers like Thucydides, Machiavelli, Freud and (to some extent) Marx, among others. This tradition, however, has almost vanished from the modern academy. It is the most general aim of this paper to revive the doctrine of Classical as a serious--albeit debunking--position in normative theory. By using the label Realism I wish to reclaim for the term realism a meaning both older than and different from that current in academic debates, especially in philosophy, where it names certain doctrines in semantics and metaphysics. Classical Realism, by contrast, is a very different kind of view; indeed, it entails no particular semantic and metaphysical doctrines at all. Classical denotes a certain hard-headed, unromantic, uncompromising attitude towards the world, which manifests itself in a brutal honesty and candor in the assessment of human motives and the portrayal of human affairs. The Essay explores this doctrine in some detail in a variety of thinkers, including Holmes, Posner, Nietzsche, Marx, and the American Legal Realists. The Appendix to the Essay offers a critical discussion of Posner's and David Luban's treatment of the Holmes-Nietzsche relation.