The original post is, I'm afraid, a historical farrago, or--more precisely--a combination of mostly accurate information with mostly inaccurate generalization. You went rather fast, Kate, and where you exceeded what you knew your guesses didn't pan out. The need to write long should have warned you: any essay of that length needed to be edited, and editing would have taken you to sources, and sources would have shown you that you had more under your hands than you knew.

So, you are right to feel the influence of Nietzsche in Holmes, but to describe him in that respect as merely "a man of his time," as though Teddy Roosevelt and he were just two boys from Neitzscheland, is more comic than insightful. (HL Mencken said of TR that he "swallowed Nietzsche the way a peasant swallows Peruna, including the cork and the bottle," which is never true of Holmes, whose philosophic influences run more to Hegel, and still more to Chauncey Wright and Charles Peirce.) Holmes thought Freud was nonsense and Marx was rubbish that might yet have its day.

The King's Two Bodies is political theology to be sure, as Kantorowicz showed in a now-unread classic study, but it was medieval political theology--Maitland's point, in the essay on the corporation sole, your reference to which wins you the prize for casual erudition and is in fact immensely impressive, is to offer a Georgian echo of vestigial doctrine. It is right--to come to your central thesis--that Holmes' law-thought is entirely secular, but no more secular in fact than Blackstone's, or even Coke's. Why the common law is a secular system is surely an important question in English intellectual history, with profound consequences for the development of human society overall--I offer a course every couple of years in which we try to answer that among other questions. But it's a question about the sixteenth century, not the nineteenth.

-- EbenMoglen - 19 Jan 2008