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Holmes, Legal Theory, and Judicial Restraint
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controversies, and the timing of generalization, has obscured the under-
lying insight that Holmes has in common with other legal theorists. One is
certainly James Coolidge Carter (1827“1905), who emphasized the role
of customary morality in shaping and transforming the law.10 Another
is F. A. Hayek, now the acknowledged champion of the view that law is
grounded in social mores rather than state power.11 A more unlikely bed-
fellow is Lon L. Fuller, notwithstanding his own severe critique of Holmes
in 1940, based on a common misreading of “The Path of the Law” as sep-
arating law from morals. Though he is best known for his attack on posi-
tivism and his exegesis of the “morality that makes law possible,” Fuller™s
vision of law privileged the “spontaneous ordering of human relations”
and saw adjudication as the “collaborative articulation of shared pur-
poses,” both elements of Holmes™s decidedly more skeptical approach.12
Contemporaneous as well as contemporary reaction to The Common
Law, viewing Holmes as consistent with Austin, re¬‚ects the in¬‚uence
of Austin™s strict separation of positive law from morals, while failing
to discern the distinctive context.13 If Holmes was in¬‚uenced by Austin™s
separation thesis, it led him nevertheless in a radically different direction.
Eschewing an Aristotelian separation of kinds as static and simplistic, he
looked to history for a dynamic that distinguished (in practice, not in
essence) the fact-speci¬ed dictates of law from the abstract dictates of
morals.14

10 Carter viewed the role of custom in shaping law in a manner remarkably similar to
Holmes. As with Maine and Holmes, he began with a consideration of primitive society,
and saw law as emerging from norms developed through the constant interactions of
individuals, eventually embodied in precedent as judges discover what those norms are,
but express them provisionally, subject to modi¬cation in light of new circumstances.
Id., 120; James Coolidge Carter, Law: Its Origin, Growth and Function (New York: Legal
Classics Library, 1996).
11 As discussed in chapter 2, n. 15, Hayek drew on David Hume, who in turn was in¬‚uenced
by the “moral sense” theorists of the Scottish Enlightenment. Some similar in¬‚uence
on Holmes is suggested by his Harvard education, reading, and involvement with the
Metaphysical Club. See chapter 2, n. 4, chapter 3, n. 24.
12 Fuller, The Law in Quest of Itself, 110; The Morality of Law, 92 (“the law merely brings to
explicit expression conceptions of right and wrong widely shared in the community”);
Herget, American Jurisprudence 1870“1970, 253“61. On Fuller™s criticism of Holmes™s
alleged positivism, see The Law in Quest of Itself, 62“63, 117“18.
13 White, Justice Oliver Wendell Holmes, 182“91.
14 See Touster, “Holmes a Hundred Years Ago,” 684“91. Noting that The Common Law had
sought so ambitiously to advance the projects of both Maine and Austin, Touster asks
the question, “Why, then, the clear, if not always acknowledged, failure of the work?”
His answer is similar to the opinion expressed in 1882, in an anonymous review, by the
distinguished scholar Albert Venn Dicey, that Holmes focused too keenly on proving
where the legal process was going and too little on the rami¬cations of the historical
Holmes™s Theory in Retrospect 161

In so doing Holmes left open a connection between law and the moral
usage embedded in the community, which he distinguished from moral
postulates as they appear in legal arguments or judicial opinions. This
device served an important function, particularly where juries were not
engaged in the judgment process, as in the labor cases Vegelahn and Plant.
It restrained the encroachment of moral postulates on the gradual devel-
opment of judicial consensus. In rede¬ning judicial inquiry as coordinate
with that of the jury, Holmes limited its freedom to moralize even while
revitalizing the underlying legitimacy of the common law method.
While he would frequently allude to the importance of judicial defer-
ence to community standards as established through jury determinations,
we ¬nd him increasingly willing (as Kelley notes) to put the judge in the
place of the common law jury in de¬ning the prudent man: to forgo send-
ing cases back for further jury ¬ndings “ if that option were available “ and
to look instead to himself for the relevant community standard. This form
of judicial self-reliance, which Holmes had recognized before becoming
a judge, is conditioned by its focus on community-derived standards and
the rejection of argument from abstract “principles.” As he explained in
his 1880 essay “Trespass and Negligence,”

A judge who has long sat at nisi prius [trying cases of ¬rst impression on their
facts] ought gradually to acquire a fund of experience which enables him to
represent the common sense of the community in ordinary instances far better
than an average jury. He should be able to lead and instruct them in detail, even
where he thinks it desirable on the whole, to take their opinion. Furthermore,
the sphere in which he is able to rule without taking their opinion at all should
be constantly growing.15

As a Massachusetts judge, Holmes routinely conceptualized close cases
as invoking competing lines of precedent, involving con¬‚icts that must
be resolved through line drawing, thus applying his model of common-
law rule making as it emerged in the early 1870s. Kelley has shown that

process itself. As Dicey had written in 1882, the dual in¬‚uence of Maine and Austin led
to the insight that “the notions and maxims which make up the common law are the slow
growth of judicial decisions,” but also to the chief defect of Holmes™s book, “uncertainty
of aim.” I have argued that the full rami¬cations of his insight become clear only in
light of Holmes™s entire career and of its now evident opposition to Hobbesian posi-
tivism as it has progressed into the twentieth century and beyond. A. V. Dicey, “Holmes™s
˜Common Law,™” published anonymously in The Spectator, Literary Supplement, June 3,
1882, at 745“47, reprinted as an appendix to, Touster, “Holmes a Hundred Years Ago,”
712, 714.
15 Holmes, “Trespass and Negligence,” in Formative Essays, 257, and in 3 Collected Works,
99“100.
Holmes, Legal Theory, and Judicial Restraint
162

Holmes often appears to force his conceptual framework upon resistant
materials, thereby biasing the results.16 Yet the materials of each case “
claims, facts, defenses “ were already packaged by counsel to suit the
interests of opposing parties. Holmes™s historical thesis may be ¬‚awed,
but his method removes arguments from case law into a wider perspec-
tive, disrobing principles and maxims, translating con¬‚icting precedents
into the continuum of con¬‚icting activities, and seeking a context within
which he could compare previous resolutions, whether legislative or judi-
cial. Seeing each case in this broader continuum provided considerable
illumination:

Nobody who sat on [Holmes™s] court in my time had quite such a daunting
personality “ to a young lawyer, at least. Holmes was extremely courteous but his
mind was so extraordinarily quick and incisive, he was such an alert and sharply
attentive listener, his questions went so to the root of the case, that it was rather an

16 Kelley, “Holmes on the Supreme Judicial Court: The Theorist as Judge,” 283“85, 300“
303, 324“40, 351“52. See also White, Justice Oliver Wendell Holmes, 384“85. Examples of
Holmes™s line-drawing analogy are rife and begin soon after his assumption of judicial
responsibilities. They arose wherever competing considerations cast alternative theo-
ries of decision over a particular case, as in the examples, such as Beadel v. Perry, that
Holmes had come across in his research for Kent™s Commentaries. In 1879, shortly before
preparing his text for the Lowell Lectures, Holmes wrote out a lengthy explanation of
the relationship between judge and jury: “The court, not entertaining any clear views
of public policy applicable to the matter, derives the rule to be applied from common
experience. . . . But the court further feels that it is not possessed of suf¬cient practical
experience to lay down the rule intelligently. . . . Therefore, it aids its conscience by tak-
ing the opinion of the jury.” Note the context in which Holmes uses the phrase “public
policy,” and what he goes on to say:

But supposing a state of facts often repeated in practice, is it to be imagined that the
court is to go on leaving the standard to the jury for ever? Is it not manifest, on the
contrary, that if the jury is, on the whole, as fair a tribunal as it is represented, the lesson
which can be got from that source will be learned? Either the court will ¬nd that the
fair teaching of experience is that the conduct complained of is or is not blameworthy,
and therefore, unless explained, is or is not a ground of liability; or it will ¬nd the jury
oscillating to and fro, and will see the necessity of making up its mind for itself. . . .
If this be the proper conclusion in plain cases, further consequences ensue. Facts
do not often exactly repeat themselves in practice; but cases with comparatively small
variations from each other do. A judge who has long sat at nisi prius ought gradually to
acquire a fund of experience which enables him to represent the common sense of the
community in ordinary instances better than an average jury. He should be able to lead
and to instruct them in detail, even where he thinks it desirable, on the whole, to take
their opinion. Furthermore, the sphere in which he is able to rule without taking their
opinion at all should be continually growing.

Hence it is clear that, however controversial it is today to speak of judges contributing
to public policy, for Holmes it meant a collaborative enterprise of seeking a “common
sense of the community.” Holmes, “Trespass and Negligence,” in Formative Essays, 257,
and in 3 Collected Works, 98“99.
Holmes™s Theory in Retrospect 163

ordeal to appear before him. In arguing a case you felt that when your sentence
was half done he had seen the end of it, and before the argument was a third
¬nished he had seen the whole course of reasoning and was wondering whether
it was sound.17

The essence of this contribution is a revision of the conception of com-
mon law method inherited from sixteenth-century England as a distinc-
tive vision of formal community inquiry into the litigated con¬‚icts that
arise in society.
I have emphasized that Holmes™s model of retrospective generaliza-
tion separates contemporary common law from the project of analytical
positivism to come up with a ¬xed universal de¬nition of law that might
lead to ¬nal answers to legal questions. It proposes a theory by which legal
rules are mediated by contemporary standards of prudence and policy,
and offers an empirical model of rule-based con¬‚ict resolution, one that
seeks to distinguish between con¬‚icts among competing precedents and
those among competing general interests. It demands that judges explain
their reasoning and decisions in speci¬c terms “ comparing precedents,
distinguishing interests, limiting the prospective use of generalization. In
constitutional law, Holmes did not foreclose judicial inquiry into new sub-
stantive issues under the Fourteenth Amendment, but he believed that
his protocols of interpretation offered a method for weighing the pro-
tections of a constitution, sweeping in their expression, in circumstances
unforeseen by the framers.
Of all contemporary scholars, Gerald Postema has done the most to
explore the theory of common law. For Postema, as well as for David
Strauss and other writers that have lately given the matter serious thought,
“common law is judge-made law.”18 This is, of course, true in a literal
sense, but so describing it downplays the in¬‚uence of embedded patterns
of conduct and belief that form what Holmes called the external standard
of prudence. That is quite close to what Postema recognizes elsewhere as
“material conventionalism,” or the in¬‚uence on common law of “ordinary
social life.” As a foundation for common law, it is hard to improve on
Postema™s observation:

Material conventionalism maintains that it is necessary that law be incorporated
into the ordinary social life of the community it seeks to govern, while it will always
be different and to a degree distant from it. For this, it is not necessary that legal

17 Unpublished remarks of U.S. Circuit Judge James M. Morton, Jr., at memorial exer-
cises for Holmes at the Supreme Judicial Court on October 9, 1937, quoted in Novick,
Honorable Justice, at 173.
18 Postema, “Philosophy of the Common Law,” 588.
Holmes, Legal Theory, and Judicial Restraint
164

norms be incorporated into any general theory or comprehensive doctrine about
that social life or its underlying principles. Providing the soil into which law must
sink its roots are “conversations” not creeds, practices not principles, ordinary
affairs and activities not theories and doctrines. These resources give practical
life to law™s norms. Entirely without them, law™s normative guidance and robust
normative governance would be rootless. (emphasis in original)19

From this it is but a short step to the essence of Holmes™s judicial method.
If legal problems are seen as embedded in practices, and the practices are
the concrete factors that de¬ne both the legal and the logical character
of cases that come before the courts, then it follows that each case must
be seen as a class of legal problem, and each problem must be seen as a
continuum, a phenomenon with discrete stages in the process of inquiry
and remediation.
This context illuminates such comments as in 1913 regarding a “time
for law.” It should not be read to suggest that judges should time their
interventions, insofar as decisions may be forced by the ¬‚ow of litigation;
they should consider it in the nature of the response. Within the ¬‚ow
of disputes are varying degrees of ripeness, what Holmes referred to in
1870 as the relative opportunity to “˜reconcile the cases,™ as it is called,
that is, by a true induction to state the principle which has until then
been obscurely felt.”
How this perspective applies to contemporary problems may require
further insight, as Holmes™s half-century of judging recedes. He has
helped us to understand that judges should withhold predisposition
where “opposing convictions still maintain a battle front against each
other.” We may yet wonder if they must put a ¬nger to the political winds
before deciding when and how to withhold. If recognition is required of
a popular consensus respecting constitutional cases, how may we know
when it is a consensus that is gathering, as opposed to a pendulum
shift in popular feeling? If judges must con¬ne a decision to speci¬c
circumstances, leaving open the broader dispute to further ferment in
the public sphere, what if nonjudicial avenues are clogged and no res-
olution is likely? May it not depend on how dire the consequences of
waiting? Answers do not come easily, but these are practical questions
that Holmes™s conception of common law uniquely recognizes, as legiti-
mate aspects of legal and constitutional philosophy.
Another insight is the relationship of common law method and textual
interpretation. In an example suggested by H. L. A. Hart, noted above in

19 Id., 615.
Holmes™s Theory in Retrospect 165

chapter 3, the question was posed of whether a bicycle would constitute a
“vehicle” prohibited by statute from use in a public park. Hart attributed
this kind of legal question to the “open texture” of language, such that (in
David Lyons™s analysis) it implied the impossibility of resolution by “the
law.” The example demonstrated that there exist gaps in legal language
that oblige the judge to “legislate.”20
Openness of texture, even as a metaphor applied to language, carries
with it the image of a fabric, a woven cloth, with intervening spaces that
fail to provide the logical force of clear words in their typical function
of representation. If the law is equated with authoritative legal language,
the logic of the metaphor suggests that the law is without an answer to any
unclear case that falls resolutely in the gaps and thus outside the operative
terms “ in spaces where reference seems utterly unavailing. But (as Hart
himself has observed21 ) the law of precedent operates by example; and
the common law is an accretion of examples, successively approximated
in language.
Common law precedents may thus be drawn on to illuminate the mean-
ing of a statutory term, such as the term “maintenance” in Commonwealth
v. Churchill.22 There, the question arose as to whether one defendant, as a
sales employee, had participated in “keeping and maintaining” a place for
the illegal sale of alcoholic beverage. The prosecution argued that sales in
the presence of the employer, whose guilt was clear, assisted the latter in
keeping the tenement. In an opinion remarkably similar to his common
law decisions, Holmes compared competing lines of precedent in similar
situations. His ¬nding that purchases in other situations had been held
outside the purview of such assistance in¬‚uenced the result. Such consid-
erations would tend to be ignored by purely textual interpretation. In A
Matter of Interpretation, Justice Scalia draws a sharp line between common
law and statutory interpretation:

[T]hough I have no quarrel with the common law and its process, I do question
whether the attitude of the common-law judge “ the mind-set that asks, “What is
the most desirable resolution of this case, and how can any impediments to the
achievement of that result be evaded?” “ is appropriate for most of the work that
I do, and much of the work that state judges do. We live in an age of legislation,
and most new law is statutory law.23


20 Lyons, “Open Texture and the Possibility of Legal Interpretation,” 303.
21 Hart, The Concept of Law, 126.
22 See chapter 9, n. 7.
23 Scalia, A Matter of Interpretation, 13.
Holmes, Legal Theory, and Judicial Restraint
166

Here Scalia adopts a view of common law decisions as a caricature plainly
rejected by Holmes: that the common law method is an open invitation
to judicial license, to a subjective instrumentalism, deciding as the indi-
vidual judge deems socially “desirable.” Scalia excludes the possibility
of a common law approach that does not invite sheer subjective result
orientation. He continues:
As one legal historian has put it, “The lion™s share of the norms and rules that
actually govern the country [come] out of Congress and the legislatures. . . .”
This is particularly true in the federal courts, where, with a quali¬cation so small
it does not bear mentioning, there is no such thing as common law. Every issue
of law resolved by a federal judge involves interpretation of text “ the text of a
regulation, or of a statute, or of the Constitution.24

There is here an important semantic distinction between common law as
a separate body of doctrine and common law as a method. When Scalia
says of the federal courts, “there is no such thing as common law,” he refers
to the overruling of Swift v. Tyson, permitting federal courts to substitute
their own judgment for that of the appropriate state in “diversity” cases, in
Erie Railroad v. Tomkins.25 Holmes had himself led the Supreme Court in
this direction by his dissents in Kuhn v. Fairmont Coal Co. and Black & White
Taxi Co. v. Brown & Yellow Taxi Co.26 This only highlights that Holmes™s
theory of common law was focused not on content, on the common law as
a discrete body of doctrine (the view he often referred to as a “brooding
omnipresence in the sky”27 ), but on a method applicable to all law and
legal adjudication.
When Justice Scalia in his lecture addresses what he calls the “science
of statutory interpretation,” he presents a compendium of “canons of
construction “ which have been widely criticized, indeed even mocked,
by modern legal commentators.” They include “expressio unius est exclusio
alterius. . . . [e]xpression of the one is exclusion of the other”; “noscitur a

24 Id.
25 304 U.S. 64 (1938). Diversity cases are suits between parties of separate states, and oblige
federal courts to apply state law.
26 215 U.S. 349, 370 (1910); 276 U.S. 518, 532 (1928). Professor White has observed: “Even
though he claimed that the conception of an independent, transcendent body of federal
common law was fallacious, since it ignored principles of sovereignty and resurrected
the archaic image of law as ˜a brooding omnipresence in the sky,™ [Holmes] continued
to decide federal common law cases without recourse to the law of the state in which
they arose, and in negligence cases substituted the judge-made rules of federal courts
for the decisions of local juries.” White, Justice Oliver Wendell Holmes, 381.
27 White, Justice Oliver Wendell Holmes, 387.
Holmes™s Theory in Retrospect 167

sociis, which means, literally, ˜it is known by its companions™”; and “ejusdem
generis, which means ˜of the same sort.™”28 In the case of Commonwealth
v. Churchill, such canons would presumably have been brought to bear
on the interpretation of the word “maintain,” to determine whether the
accused was guilty under the statute prohibiting “keeping and maintain-
ing” the proscribed tenement. Can the canons alone satisfactorily explain
the process?
It is remarkable that none of the commentaries on Scalia™s essay chal-
lenged his caricature of the common law nor proffered a coherent alter-
native theory, demonstrating perhaps how established is either the cari-
cature itself or the consensus that there is no coherent theory. Gordon
Wood came closest to doing so, offering the following:

I wonder whether the distinction Justice Scalia has drawn between common-law
interpretation and statutory interpretation is not too sharp. In any common-law
system statutory construction seems bound to take on many of the characteristics
of common law interpretation. I am not a lawyer, but I do have the sense that
English common-law judges, in construing parliamentary statutes, try to ¬t them
into the body of the law; in English jurisprudence, then, knowing the text of a
statute is not the same as knowing the law.29

Wood makes a pertinent point, but his essay was an appeal to history and
tradition, tying common law practice to the development in America of
an independent judiciary, and Scalia refuted it as such:

I am not aware of any evidence that adjudicative tribunals (the Supreme Judicial
Court of Massachusetts, for example, as opposed to the General Court, which is
its legislature) felt free to legislate “ that is, to change or depart from statutory
law in the course of promulgating their adjudicative decrees. To the contrary, it
was accepted (Lord Chief Justice Coke in Dr. Bonham™s case notwithstanding)
that courts were in principle bound by statutory enactments.
This is not to say that I take issue with Professor Wood™s conclusion that the
problem of judicial rewriting of democratically adopted texts is “deeply rooted in
our history” and that “judges have exercised that sort of presumably undemocratic
authority from the very beginning.” To acknowledge that is simply to acknowledge
that there have always been, as there undoubtedly always will be, willful judges who
bend the law to their wishes. But acknowledging evil is one thing, and embracing
it is something else.30


28 Scalia, A Matter of Interpretation, 25“26.
29 Wood, “Comment,” id., 59.
30 Id., 131.
Holmes, Legal Theory, and Judicial Restraint
168

This is strong language indeed, not likely to endear the common law
tradition to impressionable law students.
Justice Scalia contemplates no respectable rationale for anything other
than a strict, and laboratory-puri¬ed, concentration only on the statute
in question, albeit part of a comprehensive body of statutes. Nonstatu-
tory lines of precedent are plainly to be ignored. His remarks imply that
statutory terms such as “maintenance” in the Massachusetts Code of 1883
could not be examined with reference to common law usage “ that is,
their use not only in prior decisions interpreting the statute in question,
but their historical meaning as part of the common law.
Yet Scalia leaves himself an accommodation; he accepts the common
law practice of stare decisis, while insisting that it is not an acceptance of
independent judicial meaning. His canons of statutory interpretation,
especially noscitur sociis and ejusdem generis, can hardly be read otherwise
than as inviting, if not requiring, comparison of other cases, some of
which would surely be found applicable by Holmes. In short, Scalia™s
strict textualism needs more room for consideration of precedent than
is consistent with his own caricature of common law method.
Are we to conclude that there is little difference in the opposing
schools? Not when one considers that no nonstatutory precedent bearing
on the meaning of statutory terms is permissible for the textualist “ unless
perhaps it can be shown that the legislature intended to incorporate such
meaning. This, however, would tread the forbidden waters of legislative
history, against Scalia™s conviction (with Holmes) that “the objective indi-
cation of the words, rather than the intent of the legislature, is what
constitutes the law.”31 And if this were the ¬rst instance of interpreting a
statutory term, the pure textualist would insist that the judge look only to

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