OW Holmes, Jr. 1841-1935
Prof. Bill Long 10/13/05
Themes from "The Path of the Law"
Just as CC Langdell has taken on symbolic importance in the history of American law as the originator of the case study method and the proponent of the "scientific" notion of law, so OW Holmes, Jr. has taken on symbolic or iconic status. Well, it might be more accurate to state that he holds semi-divine status in American law. He is, however, not so much identified with a particular legal doctrine or method as with epigrammatic statements, a certain kind of elegant elitism, and a long-life filled with stories and interesting anecdotes well pronounced. In addition, his 50 years as a Justice, first on Massachusetts' Supreme Judicial Court and then the US Supreme Court (named by Teddy Roosevelt in 1902) yielded a rich harvest of opinions on a wide variety of topics. The sheer length of his life (94 years) and extent of his work are daunting to biographers, even though at least three have tried to scale that mountain in the last 15 years.
He authored what many think is the most signficant law review article in American history in 1897 ("The Path of the Law"), which originally was an address given at the dedication of a new hall at the Boston University School of Law. It must have placed considerable demands on his hearers, but it shows some of the scope and scintillating alacrity of his mind. The purpose of this and the next mini-essay is to coax some leading themes from this article. My pagination is taken from the original article as it appeared in 10 HLR 457 (1897).
Holmes is speaking primarily to law students, and he wants to probe the issue of "what we shall want in order to appear before judges," i.e., what kind of knowledge best serves an advocate in court (457). Why do people come to lawyers? To "know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves" (Id.). Law has lots of powers at its beck and call; people want to know how they can understand what law and the legal system will require of them or possibly do to them. "The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts" (Id.).
Holmes therefore begins with the very practical issue of how law students can take the substantial legal heritage they need to learn and apply it in a "predictive" way. Indeed, that legal heritage is vast and long. Holmes talks about the "sibylline leaves" or the "oracles" of the law (past reported decisions) and says that the most important effort of legal thought is "to make these prophecies [i.e., past decisions] more precise, and to generalize them into a thoroughly connected system" (457-458). By a thoroughly connected system of law the "prophecies" are "easier to be remembered and understood." Thus, systematic jurisprudence (which Langdell taught) does have its uses. But these systematic summaries, however, are not useful for their own sake; they are helpful so that an advocate can try to predict what a court will do, all for the sake of his (in that time, all the lawyers were male) client.
Let's pause here for a moment, in the middle of page 458. Holmes is so hard to "pin down" jurisprudentially because so many of his statements can be taken in different ways. Here, so far, he appears as a sort of Langellian with a twist: systems of law are important to put together, through the study of history, because they give you a way of trying to predict what a court will do when a similar legal/factual issues confront future judges. And, he continues to sound like Langdell. Except for the word "prediction," the next two sentences could have been taken from the Preface of Langdell's 1871 contracts casebook:
"The number of our predictions when generalized and reduced to a system is not unmanagably large. They present themselves as a finite body of dogma which may be mastered within a reasonable time" (458).
But already we see Holmes' impish and memorable style peeking out of the pages at us. He give an example of client's hat colors, which a fashion magazine might note but a legal case would not, that makes us smile. Surely we have a quick and wide-ranging mind here at work.
First Principles of Law
So, after stating in good Langdellian fashion that the principles of these "legal prophecies" are few, he tries to lay down some "first principles" for the study of law. He has two "first principles" that you should highlight. The first is to "dispel a confusion between morality and law." Morality and law should be kept separate. They may overlap a great deal but they are distinct. There is a practical reason to justify this distinction: "a bad man has as much reason as a good one for wishing to avoid an encounter with the public force" (459). Presumably a "bad" man is morally inferior to a "good" man, but each want to avoid trouble with the law. Therefore their concern of both is not with the "morality" of the law but how they can keep on the good side of it. Again, Holmes is interested in the practical reach of the law. In saying this Holmes immediately reminds us of Bentham, though Bentham, it seems, said it even more clearly than Holmes.
But then Holmes takes a step back, figuratively speaking, and says that he doesn't want to be interpreted as a cynic. "The law is the witness and external deposit of our moral life" (459). Practicing and obeying the law makes us good citizens and people. He simply is emphasizing the single issue of learning and understanding the law. You need to master it from the perspective not of its morality but for the practical use of being able to predict what a court will do when your client is before a judge.
The "Bad Man"
Holmes then gives one of his most famous analogies: that of the "bad man." If you really want to study law, the law and nothing else, with the end of keeping your client out of trouble, you must "look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience" (459). But as soon as he gives the "bad man" analogy, he is back to talking about the distinction between law and morality. Law is full of phrases drawn from morals and people often make the mistake of imagining that the words should carry their moral import over into law. But this isn't the case. Sometimes laws are passed that seemingly have no relation to any kind of moral system. That is the purpose of his llittle story about Professor Agassiz (a famous anti-Darwininan scientist at Harvard at the time) about revolution in Germany if you raised the price of beer two cents a glass. The statute would be "wrong" not because it was "morally wrong" in any sense of the word, but simply because it couldn't be enforced. Legality and morality are not related here.
Holmes then returns to the bad man, whom he seemingly had left for a minute. What is the law, in the view of the "bad man" (460)? The bad man cares not a whit for axioms or deductions but what a court will do with his case. "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law" (461). From the perspective of many people, a legal duty might be something drawn from morals. But, from the perspective of a bad man, the concept of legal duty only has any relevance for him when he looks at what penalties he might face. He really doesn't care about the difference between calling his action a penalty or a fine as long as there are no "further disadvantages" to its so being called (461). Thus, when we "wash" with "cynical acid" all our legal conceptions by referring to them from the perspective of the bad man, we can eliminate all moral connotations of the ideas of duty in law.
Holmes then gives examples from contract law and by using the concept of malice to underscore his point. The rights and duties of contract law are imbued with a "mystic significance" beyond what can easily be explained (462). Then he says the line that sounds so Benthamite and will be influential in the future: "The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it,--and nothing else" (462). I don't have time here to develop his approach to malice (463), but it is of similar import. Malice in law is devoid of malevolent motive. And, it is good for it to be.
Copyright © 2004-2007 William R. Long