Oliver Wendell Holmes, Jr. (V)
Bill Long 10/19/05
Intellectual Developments, 1867-1880
The two historical bookends for this essay are Holmes' becoming a member of the MA bar and his giving the Lowell Lectures which eventuated in the publication of The Common Law a week before his 40th birthday. The latter was fortuitous in a way, for Holmes always believed that if you haven't accomplished something major by your 40th birthday, you might as well hang it up. I, aware of that advice, finished my first book while I was 40, even though it wasn't published until I was 41.* Using White's very helpful chapter on this period in his
[*Longing for God: Prayer and the Rhythms of Life (InterVarsity, 1993). To set the record straight, however, I wrote my first autobiography, consisting of 150 single spaced dot-matrix-printed pages, 39 and Lost in America, in the summer of 1991, when I was 39. Someday, I am sure, that book will be in print.]
bigroaphy of Holmes, I will divide my consideration into: (1) earliest scholarship; (2) discovering history; and (3) the importance of social policy. My contention in this essay is that Holmes became one of the premier legal historians in America during the 1870s, even if his purpose was not at all antiquarian.
Earliest Scholarship
Because he had ready access to publication through the American Law Review, to which he was a contributing editor beginning in 1867 and co-editor beginning in Oct. 1870, he wrote and wrote and wrote. His earliest period, through 1873, could be characterized as a "systematic" period. Through his book notices and articles (on "Privity" or "Codification") he was looking for organizing principles around which all of law could gather. In addition, he was trying to do this in the context of John Austin's definition of law, in his Jurisprudence, as the "command of the sovereign."** He settled upon the notion of
[**A brief historical digression is appropriate here. Austin was Bentham's student, and Bentham is now almost universally recognized as the most influential common law reformer in 18th-19th century England. Why, then, did Holmes read Austin and react to him rather than Bentham? Principally because at his death Bentham left his works in such a state of dishevelment that only a few of his works had been published by then. It is not until the work of the Bentham project (ongoing--hoping to produce 70 volumes of his work by the time it is completed in about 20 years) that the full scope of Bentham's creative genius is beginning to come into focus. Thus, Holmes and subsequent students of jurisprudence have had to content themselves with Austin. Even contemporary textbooks give us long excerpts from him. Austin, however, is a sterile intellect compared to Bentham. My suggestion is to get rid of Austin from jurisprudence reading and focus on Bentham. That is what I have done in my classes, and I have been satisfied with the results. Unfortunately, however, Holmes was confined to considering Austin.]
legal duties as his organizing principle of law, and White gives some helpful reflections on why this principle may have come to the fore for Holmes. But even as Holmes was writing on this, he seemed to recognize its inadequacy. As White writes:
"Holmes was eventually to settle on historical analysis as the methodology most conducive to deriving general observations about legal subjects, and to abandon both the concept of duty and his duty-based classification scheme" (129).
Discovering History
From 1873-76 he returned to legal practice and stopped writing articles. He was not, however, giving up on the idea of scholarship--he decided that he needed to do some concentrated reading on legal history to understand how the doctrines that he so eagerly wanted to classify in 1867-73 actually emerged and developed. That is, he wanted to use history not as a way of abandoning systematic classification but to clarify the precise contours of an eventual classificatory scheme. And so he read about 75 books in these years on legal history and also regained his German in the process. He realized that German post-Kantian legal scholarship had mined historical questions in great detail, and Holmes eagerly imbibed this work. One of the burning questions among 19th century German legal historians was whether the current German legal structure owed more to its Roman or Germanic antecedents. Holmes would weigh in on this by taking the sides of the Germanists, the most famous of them (at least to American ears) is Jakob Grimm (of fairy-tale fame). It was this deep sinking of his roots into history, all the way from Roman law to Germanic law to Justian and medieval law, to the historical understanding of the English common law, that made his subsequent historical references (e.g., in "The Path of the Law") seem so effortless yet so consequential. Only a person who has deeply imbibed history can appreciate the extent of Holmes' historical knowledge.***
[***Roscoe Pound, the incredibly learned Dean of HLS in the 20th century, was more learned than Holmes in his understanding of German and international law of the 17th - 19th centuries, though not quite as deeply versed in the history of the common law.]
Putting it All Together--Social Policy
The "new" Holmes, then, produced several essays from 1876-1880 in which he replaced a systematic approach to law with a historical one. But his interests, as mentioned, were far from antiquarian. He was interested to show how an unintentional tort originated, for example, in the ancient concept of vengeance (and here he would use anthropolgocial histories such as Tylor's) but that had, when running against various forms of action at common law (trespass on the case/detinue) lost its original character and become more fault-based. But then the historical roots were lost and "confusion of thought" set in so that the original purposes of liability for negligence/unintentional torts was no longer understood. When this happened, social policy and needs of a people took over and the tort became defined by the needs of the day.
Thus, by 1880, especially in his articles on Common Carrier liability and "Tresspass and Negligence," one has all the elements of the "developing" Holmes. Torts originated in a hoary past, whose contours might be subject to some description; they then developed slowly, being subject to "confusion of thought" as they were pursued with different forms of action; and then they became subject to the whims of latter-day politicians when the history had completely been lost. Yet, these laws and the cases which described the evolution of law were the best "predictors" of what a court would do in similar situations today. Finally, and only "discovered" by Holmes in his 1880 article on "Trespass," was the consistent social policy that liabilty was found only when a person had fallen below a societally-accepted standard of conduct, the sort of conduct expected of a reasonable person in similar circumstances.
Conclusion
Thus, by the time he delivered the Lowell Lectures, when he was 39, Holmes had most of the conceptions in his mind that constitute the foundational principles of his mature work. By our slowly tracing his intellectual development, he ceases to be a cipher, even if what he actually believes is sometimes difficult to decide.
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