U.S. Intellectual History Blog

Oliver Wendell Holmes, Jr. and the Philosophy of Objects

I recently had the pleasant opportunity to work through a difficult book often thought to be very boring: Oliver Wendell Holmes, Jr.’s The Common Law (1881). I think The Common Law’s anesthetic reputation is unearned: the book is, admittedly, rambling and technical, but it is also stylistically enchanting. Its best passages are as weird and invigorating as the best passages in the work of Holmes’s friend William James (the two were in close correspondence in the period during which The Common Law was drafted).

In a happy coincidence, at the same time as I was reading The Common Law, I was also trying to get my bearings in relation to the new philosophical literature that flies under the banner of “Speculative Realism” (probably, the better name for the movement is Paul Ennis’s “Continental Realism”). Within “Speculative Realism,” one energetic subproject—called “Object-Oriented Ontology”––has provoked the most interest among non-philosophers. The Common Law and Object-Oriented Ontology turn out to have quite a lot to say to one another. More on that below.

First, we should try to unpack what it is that “Object-Oriented Ontology” wants to accomplish (my sense is that many historians have not found the game of figuring this out as worth the candle). OOO probably has something to do with the philosophical desire for greater access to the noumenon––or the “thing-in-itself”––than has been deemed permissible according to the norms of post-Kantian critical thought. (This story of “reclaimed access” is, at least, how many OOO theorists describe their conceptual innovations).

Following the example of Bruno Latour, OOO-ists tend to prioritize a “flattening” of ontology, a leveling of hierarchies and a cancellation of prior decisions that require distinctions between objects that are usually thought of as plainly different from one another.

The OOO theorist Levi Bryant writes in The Democracy of Objects (the title of Bryant’s book illustrates well the movement’s political aspirations) of a flat “conception of being” as superior to the “sort of vertical conception of being we encounter in hegemonic ontologies”:

Where a hegemonic ontology treats one agency as making all the difference, an ontology premised on entanglements is attentive to how a variety of different objects or agencies interact in the production of phenomena… And here the crucial point is that these entangled practices are productive, and who and what are excluded through these entangled practices matter… Within an entanglement and a diffraction pattern there can be no hegemon, which isn’t to say that some objects might not contribute more differences within a particular constellation than other objects. It is precisely this tangled contribution of differences that an obsessive focus on the signifier blinds us to. And once again, the point here isn’t that signifiers and signs don’t contribute differences, but that we need to be attentive to the role played by other, non-signifying differences within a collective.

Perhaps more pertinently for historians, the term “flat ontology” can also be found in Ignacio Farías and Thomas Bender’s Urban Assemblages: How Actor-Network Theory Changes Urban Studies (2010), Part I of which is entitled: “Towards a flat ontology?”

I think that there are plenty of riches to be mined from such a leveling of distinctions (or refusal of the “bifurcation of nature,” in Alfred North Whitehead’s terms, in the first place). Urban history is an obvious starting point, but one can also imagine myriad other sites of overlapping concern, wherein historians and OOO-ians might discover shared interests. OOO theorists have not been hesitant to draw connections between their work and certain classic historiographical experiments: Braudel’s history of the Mediterranean, for example, William Cronon’s Nature’s Metropolis, and William McNeill’s Plagues and Peoples. It is important to recall, too, that Latour’s inaugural flattening of ontology was worked out in The Pasteurization of France, a work that is usually thought of as a History of Science text.

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Here, in a somewhat contrarian spirit, I want to do something else: something that is, probably, the exact opposite of what OOO theorists would like in the way of a response to their arguments. I would like to take advantage of the new analytical attention to objects as a prompt to think about the way “objects” figure in certain chapters of intellectual history. (OOO-ists would dislike this gesture, I think, because the “objects” in which I am interested are still “objects” for “subjects”; not the better and more objectal objects with which OOO engages). We seek to misread OOO as a spur to looking with fresh eyes at historical texts like The Common Law which are not much read anymore.

 ***

Objects make an early appearance in The Common Law. Chapter One (“Early Forms of Liability”) sets out to convince the reader that Anglo-American jurisprudence is largely a haphazard array of practices, long since disconnected with original functions, for which lawyers struggle to devise explanations. The pattern that Holmes wishes us to recognize is as follows: custom establishes a formula in response to a need; the need and custom disappear, but the formula remains. “A very common phenomenon,” Holmes muses, “and one very familiar to the student of history, is this”:

The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things; and then the rule adapts itself to the new reasons which have been found for it, and enters on a new career. The old form receives a new content, and in time even the form modifies itself to fit the meaning which it has received.

The target, here, is nineteenth-century German legal historicism, and a great many tasks are delegated to objects in the interest of rendering ridiculous Hegelian fantasies of the life of the law as the logical unfolding of the Spirit of the State.

Holmes emphasizes that the earliest forms of legal procedure “were grounded in vengeance.” The deadly feud was eventually interrupted by means of symbolic objects. The earliest function of these symbolic objects, Holmes guesses, was to provide a means of attributing intentionality to actions that result in harm.

Holmes attends, for example, to the ancient form of legal appeal called “de pace et plagis.” In this sort of appeal, the law required a description of the “nature of the arms used, and the length and depth of the wound,” as well as an audible “hue and cry.”

As object-oriented readers of Holmes, then, we count three sorts of objects here, in descending order of permanence: weapons, bodily lesions, and the acoustic registration of pain and alarm. The universe in which these objects circulate is a sort of simplified billiard-ball one. Objects affect one another, sometimes in ways that call for legal remedies, but there is no abstraction from these sequences of knock-on effects to the notion that human subjects are responsible for the prevention of accidents. Cause and effect is limited to what has happened. Modal logic has no pertinence. “Another peculiarity to be noticed,” Holmes observes, is that “liability seems to have been regarded as attached to the body doing the damage, in an almost physical sense. An untrained intelligence only imperfectly performs the analysis by which jurists carry responsibility back to the beginning of a chain of causation.”

The law would, of course, eventually come to prioritize the “aforethought” as a key category of liability. The historiographical problem, for Holmes, is to explain the gradual emergence of this concept. Another kind of object (or something like an object) is called upon to help with this task: what Holmes calls the “external visible fact.” Damnun corpore corpori datum, Holmes reminds us, was the guiding principle of early law. Jurisprudence was not to penetrate beyond the material world. Judges were forbidden to inquire into the “internal condition of the defendant.”

At this point in the text, we encounter a curious phrase: “The original principles of liability for harm inflicted by another person or thing have been less carefully considered hitherto than those which governed trespass, and I shall therefore devote the rest of this Lecture to discussing them.” I think it is “curious”; lawyers reading this passage might not find anything to be surprised at. One of the earliest lessons of law school, as I understand it, is that lawyers should always be prepared to finds things where one expects to find humans, and vice versa. For the legal laity, however, the construction “harm inflicted by another person or thing” seems to suggest a startlingly flattened ontology, making “things” into actors in their own right, and denying the specialness of humans as the only players in the game with sufficient volition to count as parties to legal action.

Holmes here unveils a miscellany of non-human actors: an escaped “animal of known ferocious habits,” the delivery cart of a master baker, delivering the “hot rolls of a morning,” of which the “baker’s man” loses control, running another man down; the commercial ship, conceived as a “vessel” and “her freight” (an ontologically mercurial set of objects, in which the law takes a great interest in cases of shipwreck or disappearance at sea). Holmes lays particular stress upon this last group of objects, because maritime law seems to him the direct ancestor of the jurisprudential principle whereby capitalism’s corporate reconstruction (violently evident in every area of American life as The Common Law left the printing press) was set in motion: “if a merchant embark a portion of his property upon a hazardous venture, it is reasonable that his stake should be confined to what he puts at risk,—a principle similar to that on which corporations have been so largely created in America during the last fifty years.” (Readers interested in this connection should consult Jonathan Levy’s excellent recent text Freaks of Fortune).

From these objects, Holmes moves to the allegorically rich thing called in law a “deodand”: “It has been a rule of criminal pleading in England down into the present century, that an indictment for homicide must set forth the value of the instrument causing the death, in order that the king or his grantee might claim forfeiture of the deodand, ‘as an accursed thing,’ in the language of Blackstone.”

“It was said in one of the speeches of Aeschines,” Holmes recalls, that “we banish beyond our borders stocks and stones and steel, voiceless and mindless things, if they chance to kill a man; and if a man commits suicide, bury the hand that struck the blow afar from its body. This is mentioned quite as an everyday matter, evidently without thinking it at all extraordinary… As late as the second century after Christ the traveller Pausanias observed with some surprise that they still sat in judgment on inanimate things in the Prytaneum.” The “deodand” was a particularly sticky object: “The action followed the guilty thing into whosesoever hands it came.”

The transformation of this object-oriented jurisprudence into one mainly concerned with human liability was gradual. Holmes suggests as one turning point Gaius’s reasoning that  “it was unjust that the fault of children or slaves should be a source of loss to their parents or owners beyond their own bodies,” expanded upon by Ulpian to imply that reasoned that, a fortiori, this was also true of “things devoid of life, and therefore incapable of fault”:

In other words, vengeance on the immediate offender was the object of the Greek and early Roman process, not indemnity from the master or owner. The liability of the owner was simply a liability of the offending thing. In the primitive customs of Greece it was enforced by a judicial process expressly directed against the object, animate or inanimate. The Roman Twelve Tables made the owner, instead of the thing itself, the defendant, but did not in any way change the ground of liability, or affect its limit. The change was simply a device to allow the owner to protect his interest. But it may be asked how inanimate objects came to be pursued in this way, if the object of the procedure was to gratify the passion of revenge Learned men have been ready to find a reason in the personification of inanimate nature common to savages and children, and there is much to confirm this view. Without such a personification, anger towards lifeless things would have been transitory, at most. It is noticeable that the commonest example in the most primitive customs and laws is that of a tree which falls upon a man, or from which he falls and is killed. We can conceive with comparative ease how a tree might have been put on the same footing with animals. It certainly was treated like them, and was delivered to the relatives, or chopped to pieces for the gratification of a real or simulated passion.

“The hatred for anything giving us pain,” Holmes writes, “which wreaks itself on the manifest cause, and which leads even civilized man to kick a door when it pinches his finger, is embodied in the noxae deditio and other kindred doctrines of early Roman law. There is a defective passage in Gaius, which seems to say that liability may sometimes be escaped by giving up even the dead body of the offender.”

Articulating an interpretation later to be picked up by Rene Girard and certain deconstructive Christian theologians, Holmes highlights the metaphoric work performed by that most fascinating and disturbing of legal objects, the “lifeless body.” Holmes here invokes Livy: “Brutulus Papius having caused a breach of truce with the Romans, the Samnites determined to surrender him, and that, upon his avoiding disgrace and punishment by suicide, they sent his lifeless body. It is noticeable that the surrender seems to be regarded as the natural expiation for the breach of treaty, and that it is equally a matter of course to send the body when the wrongdoer has perished.”

Whether on not Holmes’s interpretation is historiographically accurate is not particularly important. We are trying, after all, to produce some insights into the late nineteenth century, not the classical period (we have no training at all in ancient history). Our focus should be trained upon Holmes. Why is Holmes so interested in telling this story about the law and objects? Towards what legacies and survivals of this ancient “democracy of objects” is Holmes directing his reader’s attention?

6 Thoughts on this Post

  1. Kurt,
    V. interesting. When I got to the latter part of the post about non-human liability etc., I recalled having seen a reference to E. Evans, The Criminal Prosecution and Capital Punishment of Animals (Faber, 1987) [cited in A. Wendt’s Social Theory of International Politics, 1999]. Judging from its title, the Evans book might be relevant to some of this. (As I recall, Wendt uses it for an anecdote about the execution of horses found guilty of something or other, but I can’t find the particular passage right now.)

    One other thought: one of Holmes’s key contributions to legal theory (as Menand notes in The Metaphysical Club) was the elaboration of the notion of ‘the reasonable man’ (a hypothetical construct but human, of course). I wonder whether/how the discussion in The Common Law about (to quote you) “the transformation of [an] object-oriented jurisprudence into one mainly concerned with human liability” ties in with that.

    I think most people today remember The Common Law only for its most famous sentence in the opening: “The life of the law has not been logic but experience.” The Menand book (which I’ve lately been dipping into) also has things to say about that, but it’s perhaps somewhat off-topic as far as the focus of your post is concerned.

    • P.s. I realize the above comment rather skirts your main points and the questions at the end, but I don’t feel competent to address them.

    • Thanks so much for this thoughtful reply. And thanks for that reference. One of the interesting tensions in OOO is between object theory and the literature of the “animal turn,” and most of the major influences on OOO (Heidegger, Lacan, Deleuze, Alfred North Whitehead, Bateson) have a lot to say about animals. I should try to figure out if the law provides a particularly focused example in which to play around with some of these tensions.

      And thanks too for the ref to Menand and the “reasonable person” standard. I tend to think that the TMC is, paradoxically, most interested in OWH Jr the person and least interested in OWH Jr the thinker. The idea that TCL is all about the “reasonable person”–along with the idea that it is consumed with the question of whether law proceeds from the standpoint of the “bad man”–is orthodox (it powers also certain left takes on TCL, such as Morton Horwitz’s mostly dismissive reading of Holmes). So my reading of TCL is a kind of old-fashioned deconstructive one. I think Derrida provides a nice model here, not as a philosopher and creator of maddening slogans, but simply as a close reader who wants to remind us: we can distill, say, Rousseau’s books into their 3 or 4 formulas, but, still, there is all this strange stuff going on, all of these other pages of intense prose that Rousseau clearly thought important in making his arguments.

      But, at some point, I might want to push further and actually say: TCL really isn’t about the “reasonable man” standard. If anything, it is about the “unreasonable person”–in this way, it is very close to William James’s project in Principles of Psychology. “Reasonableness” comes in in OWH’s argument that juries cannot be asked to weigh every quirk of every human being, because otherwise nobody would ever be found guilty of anything. This is very different from the “rule of reason” in corporate law and the regulation of monopoly (from the Slaughterhouse Cases to Standard Oil), which is the connection most intellectual historians want to make. I think this is a misreading, based on a pretty arbitrary bit of corpus linguistics: “reason” it is true, appears in both places, but that is the extent of the commonality. It can have the effect of making OWH seem an advocate of conformism or elitism, and I don’t think that is right.

  2. …we can distill, say, Rousseau’s books into their 3 or 4 formulas, but, still, there is all this strange stuff going on, all of these other pages of intense prose that Rousseau clearly thought important in making his arguments.

    Yes, I agree; I think, as you indicate, this applies also to Holmes as well as to any thinker of any depth. So I think you’re right to resist reducing TCL to a formula or two. (I haven’t read TCL; my knowledge of Holmes comes from the very good Sheldon Novick biography, which I read some years ago, and from dipping into Menand [‘dipping into’ b/c I haven’t read it cover-to-cover though I’m going to]. And from a few famous Holmes judicial opinions.) Menand *is* interested in Holmes the man and maybe doesn’t plumb OWH the thinker enough; I don’t know. If Menand were here, he would presumably say the two are hard to separate.

    Re ‘reason’ in TCL vs. in corporate and antitrust law: my very vague recollection is that, yes, the ‘rule of reason’ in antitrust law was/is indeed something different.

    Re Holmes and conformism and elitism: An advocate of conformism, no, but in some ways he was most definitely an elitist. There is a definite strain of Social Darwinism in Holmes and a rejection of the notions of inherent individual rights and dignity. (The biographers say or imply that was the effect of his fighting in the Civil War as a v. young man, which Menand, following others, calls the central experience of OWH’s life.) OWH upholds the free exchange of ideas in ‘the marketplace’ (see the famous Abrams dissent) *not* because of the inherent individual right to free expression but mainly b/c society benefits when dissenting views are not suppressed. This is the conventional wisdom on OWH, I think, and in this respect I think it is correct.

    • Yes, certainly, OWH in the period 1870-1910 was an elitist in the same way as every member of his class was an elitist. I suppose my point would be that he was not an elitist of the Mugwump variety, nor an unquestioning American chauvinist, nor an unthinking adherent of the idea of the survival of the fittest (he was far less of an elitist, say, than his correspondent Henry James). But, certainly an ordinary elitist––and a casual racist––without question. (He does seem to have been drawn to gender egalitarianism, though that was not unheard of among Progressive Era male intellectuals).

      I do think that the later Holmes, from the Wilson Era on, is a different creature–tired, far less intellectually curious, capable of really terrible and cynical syntheses (one might be tempted to compare the later Holmes and the later Freud, though the latter is never as unappealing as the former). He had nothing like the inspiring last act of Dewey, and perhaps that points to some pre-existing tendencies that became calcified as he got older…

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