Mr. Justice Hobbes? On the Jurisprudence of Oliver Wendell Holmes Jr.

The jurisprudence of Justice Holmes is often equated with the political philosophy of Thomas Hobbes, the former jurist's thought usually understood in light of the latter philosopher. It would seem that while not of the same intellectual caliber as Hobbes, Holmes's political and thus legal thinking is substantively the same. Careful study reveals that while both men shared an Epicurean understanding of human nature, Hobbes believed that a natural right teaching could be derived from it, whereas Holmes rejected natural right altogether. This divergence on natural right led to two distinct political doctrines. Hobbes's political philosophy equates an actual good with an alleviation of the fear of death, which is most conveniently sought within an artificial political community. Holmes's jurisprudence equates a perceived good with the legal and the legal with the arbitrary decrees of an arbitrary sovereign. This legal positivism pervades Holmes's jurisprudence, including his renowned free speech jurisprudence.