Oliver Wendell Holmes

 

                                             

Biography:

Born in Boston in 1841. Oliver Wendell Holmes, Sr. a physician and Harvard professor of anatomy and physiology. He was also a famous poet, essayist and novelist, usually condidered a transcendentalist in the style of Emerson.

Holms, Jr. fought in the American Civil war (wounded three times), attended Harvard as an undergraduate and law student. Practiced for sixteen years, published his most famous book, The Common Law (1881), from which most of our readings come. Became a professor of law at Harvard, then a Massachusetts Supreme Court Justice till 1902, when we has promoted to the U.S. Supreme Court. There he served for more than 30 years, writing more briefs than any other Supreme Court Justice in history. Died in 1935.

To a lot of commentators, Holmes’ life tells us how young the United States is: He attended the funeral of the 6th President of the US , John Quincy Adams, and knew the 32nd President, FDR (who he described as having "a second-class intellect, but a first-class temperament").

In any case, while he was at Harvard he befriended both Peirce and James. Regarded himself as highly influenced by pragmatist ideas. We can see these ideas best expressed in‘The Path of the Law’ (1897), the most substantive piece I asked you to look at.

Let’s start, though, by looking at a piece in which he clearly articulates his targets (“Natural Law,” Menand, pp. 173 ff., published in 1918)

Read 1^st and 3^rd paragraphs (p. 173). Discuss.

Last Paragraph (p. 177). Discuss.

Natural Law Theory: The cosmos itself, and human society as a part or microcosm of the universe, encode inbuilt principles of rational order, and this order must apprehensible or otherwise discoverable by rational beings.

The idea is clearly in Plato. In the Republich, Thrasymachus presents a contrary view that laws reflect nothing but custom and power politics, but Plato is presented as decisively refuting him. And it’s really not much of a refutation. Plato just simply posits a human cabability to recognize principles of right social conduct independently of contingent legislation.

Aristotle, despite all his differences from Plato, insists on much the same thing. He insists that there are some legal universals across cultures than can only be explained by supposing that some legal principles are true by nature.

The Stoics had the same idea in Roman times, which you’d expect of the Stoics, since they thought human reason itself was a microcosm of the natural order.

And Thomas Aquinas codified the idea even more. Things are supposed to behave in certain ways because of the essential natures they are given by God. These essential natures dictate that a thing’s proper development follow a certain course. In the case of human beings, our natures dictate that to achieve our final ends, we must behave in certain ways toward ourselves and each other in civil society through the intermediary of the state.

And the British legal system was based largely on the Roman model and of course the American legal system was largely based on the British model. It wasn’t really till Hume and, later, Bentham that an alternative was rigorously explored, i.e., the idea that laws are essentially just codifications of custom. Note Bentham’s remark about the theory of natural rights.

What is the alternative account of the content of laws that Holmes gets at in writing (Menand, p. 145)?

When we study law we are not studying a mystery but a well-known profession. We are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court. The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees. People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.

What exactly is the nature of this claim?

What is the content of a law?

How is this a pragmatist idea? (Think of Peirce on “force.”)

Is it fundamentally prescriptive (this is what the law should do?) or is it also descriptive (this is what the law actually does or has always done)? (Menand, p. 145)

The means of the study are a body of reports, of treatises, and of statutes, in this country and in England , extending back for six hundred years, and now increasing annually by hundreds.  In these sibylline leaves are gathered the scattered prophecies of the past upon the cases in which the axe will fall.  These are what properly have been called the oracles of the law.  Far the most important and pretty nearly the whole meaning of every new effort of legal thought is to make these prophecies more precise, and to generalize them into a thoroughly connected system.  The process is one, from a lawyer's statement of a case, eliminating as it does all the dramatic elements with which his client's story has clothed it, and retaining only the facts of legal import, up to the final analyses and abstract universals of theoretic jurisprudence.  

What do judges do? So, what do lawyers do (point about hats)?

The result is a system of law which he describes as follows:

The number of our predictions when generalized and reduced to a system is not unmanageably large.  They present themselves as a finite body of dogma which may be mastered within a reasonable time.  It is a great mistake to be frightened by the ever-increasing number of reports.  The reports of a given jurisdiction in the course of a generation take up pretty much the whole body of the law, and restate it from the present point of view.  We could reconstruct the corpus from them if all that went before were burned.  The use of the earlier reports is mainly historical, a use about which I shall have something to say before I have finished.

What pragmatist themes does this bring to mind? Think about James talking about theories.

In this paper, Holmes really has two concerns. There are two mistakes that people often make when describing the content and processes of law that he wants to correct, and he thinks that both will be corrected if we just keep this alternative account of legal content in mind.

What are the two mistakes? It’s closely connected with the notion of natural rights we’ve described.

1.    Connection between Law and Morality.

2.    Nature of legal reasoning and decision-making.

What is the mistaken connection? Is he committed to saying that because the law does not derive from morality that there are no moral truths?

Why do we make this mistake?

(Menand, p. 148) The law is full of phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds.  The law talks about rights, and duties,and malice, and intent, and negligence, and so forth, and nothing is easier, or, I may say, more common in legal reasoning, than to take these words in their moral sense, at some state of the argument, and so to drop into fallacy. 

Why does he think it’s important that we avoid this mistake? Why does he say for us to properly investigate the nature of the law we have to pretend that we are “bad men”?

The first thing for a businesslike understanding of the matter is to understand its limits, and therefore I think it desirable at once to point out and dispel a confusion between morality and law, which sometimes rises to the height of conscious theory, and more often and indeed constantly is making trouble in detail without reaching the point of consciousness.  You can see very plainly that a bad man has as much reason as a good one for wishing to avoid an encounter with the public force, and therefore you can see the practical importance of the

distinction between morality and law.  A man who cares nothing for an ethical rule which is believed and practised by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can.

So, he purports to be solving a problem of motivation. The problem of moral motivation is an old one (Plato, Aristotle, Hume) and Holmes doesn’t want the theory of law to inherit it.

(Menand, p. 149) The confusion with which I am dealing besets confessedly legal conceptions.  Take the fundamental question, What constitutes the law? You will find some text writers telling you that it is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason, that it is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions.  But if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact.  I am much of this mind.  The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.

Well, this is his proposal. And unlike Mead who, by and large, just proposes an alternative account, Holmes actually has arguments. Take some of the additional things he says about confusing legal and moral language:

(Menand, p. 151) I mentioned, as other examples of the use by the law of words drawn from morals, malice, intent, and negligence.  It is enough to take malice as it is used in the law of civil liability for wrongs what we lawyers call the law of torts--to show that it means something different in law from what it means in morals, and also to show how the difference has been obscured by giving to principles which have little or nothing to do with each other the same name. 

Then he notes that weird example from the 16^th Century involving the parson who made reference to one of his own parishioners by mistake.

(Menand, p. 151) Three hundred years ago a parson preached a sermon and told a story out of Fox's Book of Martyrs of a man who had assisted at the torture of one of the saints, and afterward died,suffering compensatory inward torment.  It happened that Fox was wrong. The man was alive and chanced to hear the sermon, and thereupon he sued the parson. hief Justice Wray instructed the jury that the defendant was not liable, because the story was told innocently, without malice.

Remember this? What moral does he get from this?

Or another example. The one about contracts. Suppose you contract me to deliver a lecture. We write up the contract and sign it but omit to mention a date the lecture is supposed to be given. Remember that? What happens?

“Within a reasonable time.”

Holmes’ conclusion about all this is quite adamant.

(Menand, p. 153) For my own part, I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law.  We should lose the fossil records of a good deal of history and the majesty got from ethical associations, but by ridding ourselves of an unnecessary confusion we should gain very much in the clearness of our thought.

This is a strong claim. . .

So that’s what he says about the connection between law and morality. What about his second concern: the stuff about the nature of legal reasoning and decision-making. What does he think the mistake is here that his predictive theory of law helps to correct?

(Menand, p. 154) The fallacy to which I refer is the notion that the only force at work in the development of the law is logic.  In the broadest sense, indeed, that notion would be true.  . .

The danger of which I speak is not the admission that the principles governing other phenomena also govern the law, but the notion that a given system, ours, for instance, can be worked out like mathematics from some general axioms of conduct. 

Well, three questions:

(1) How is this denial of authority to deductive models of reasoning a pragmatic theme we’ve seen before?

(2) Why are judges and lawyers inclined to suppose that their discipline is deductive.

(3) What’s so bad about this deductive model for legal reasoning?

How about question (1)?

How about question (2)?

(Menand, p. 154) This mode of thinking is entirely natural. The training of lawyers is a training in logic. The processes of analogy, discrimination, and deduction are those in which they are most at home. The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose which is in every human mind.

Think about how the language of rational necessity is invoked: “If the glove doesn’t fit, you must acquit.” Must talk is at the heart of logical reasoning.

Ok. What about the final question. Why is it a mistake to think of the law as a deductive system?

What are the problems that Holmes isolates in these passages:

(Menand, p. 155) Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding.  You can give any conclusion a logical form.  You always can imply a condition in a contract.  But why do you imply it?  It is because of some belief as to the practice of the community or of a class, or because of some opinion as to policy, or, in short, because of some attitude of yours upon a matter not capable of exact quantitative measurement, and therefore not capable of founding exact logical conclusions.

The stuff here about quantitative measurement is possibly beside the point. But other than that, what is he saying?

(Menand, p. 155) Such matters really are battle grounds where the means do not exist for the determinations that shall be good for all time, and where the decision can do no more than embody the preference of a given body in a given time and place. We do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind. No concrete proposition is self evident, no matter how ready we may be to accept it, not even Mr. Herbert Spencer's "Every man has a right to do what he wills, provided he interferes not with a like right on the part of his neighbors."

(Menand, p. 155) Why is a man at liberty to set up a business which he knows will ruin his neighborhood?  It is because the public good is supposed to be best subserved by free competition. Obviously such judgments of relative importance may vary in different times and places.  Why does a judge instruct a jury that an employer is not liable to an employee for an injury received in the course of his employment unless he is negligent, and why do the jury generally find for the plaintiff if the case is allowed to go to them?  It is because the traditional policy of our law is to confine liability to cases where a prudent man might have foreseen the injury, or at least the danger, while the inclination of a very large part of the community is to make certain classes of persons insure the safety of those with whom they deal.  Since the last words were written, I have seen the requirement of such insurance put forth as part of the programme of one of the best known labor organizations. 

There is a concealed, half conscious battle on the question of legislative policy, and if any one thinks that it can be settled deductively, or once for all, I only can say that I think he is theoretically wrong, and that I am certain that his conclusion will not be accepted in practice.

Or another passage

(Menand, p. 156) Our law of torts comes from the old days of isolated, ungeneralized wrongs, assaults, slanders, and the like, where the damages might be taken to lie where they fell by legal judgment.  But the torts with which our courts are kept busy today are mainly the incidents of certain well known businesses.  They are injuries to person or property by railroads, factories, and the like. The liability for them is estimated, and sooner or later goes into the price paid by the public.  The public really pays the damages, and the question of liability, if pressed far enough, is really a question how far it is desirable that the public should insure the safety of one whose work it uses. 

What’s Holmes saying here?

(Menand, pp. 156-57) I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage.  The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious, as I have said. 

When socialism first began to be talked about, the comfortable classes of the community were a good deal frightened.  I suspect that this fear has influenced judicial action both here and in England , yet it is certain that it is not a conscious factor in the decisions to which I refer. I think that something similar has led people who no longer hope to control the legislatures to look to the courts as expounders of the  constitutions, and that in some courts new principles have been discovered outside the bodies of those instruments, which may be generalized into acceptance of the economic doctrines which prevailed about fifty years ago, and a wholesale prohibition of what a tribunal of lawyers does not think about right.  I cannot but believe that if the training of lawyers led them habitually to consider more definitely and explicitly the social advantage on which the rule they lay down must be justified, they sometimes would hesitate where now they are confident,and see that really they were taking sides upon debatable and often burning questions.