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Another Scot, Lord Kames, in Historical Law-Tracts (1758), extended moral sense
as a theory of law and legal development, drawing on the comparative law insights of
Montesquieu™s L™esprit des lois (1748). Commenting on the movement for law reform in
Holmes™s Conception of Law 41

Twentieth-century positivists gave up the command theory as unten-
able, but they have held fast to the ontological separation. In his renewal
of positivism as a system of primary and secondary rules, governed by a
Rule of Recognition, Hart, not a Holmes scholar, and misled (as many
are) by “The Path of the Law,” simply packaged Holmes up with John
Austin as a proto-command-theorist, ignoring the early writings that
reveal Holmes™s rejection of a strict separation of law and morals for a
holistic version of pragmatic inquiry and fallibilism: the notion that gen-
eral conceptions must be open to revision to accommodate new expe-
rience. The pathbreaking Peirce scholar Max Fisch even suggested, in
1942, that Holmes introduced his evidence of common law fallibilism
into discussions of the Metaphysical Club and that it in¬‚uenced Peirce™s
philosophy.34
Whether that happened is hardly crucial; the point is that Holmes™s
association with Wright, James, and Peirce, and the readings that in¬‚u-
enced them all, elucidates the origin and nature of his intellectual atti-
tude. One of a very few explicitly given credit by Holmes was Wright,

eighteenth-century Scotland, Kames stressed the importance of courts over legislatures
in developing the law (as Holmes would do a century later in “Codes, and the Arrange-
ment of the Law”), exercising their natural “moral sense.” He argued (as Holmes
would do in The Common Law) that “[l]aw in particular, becomes then only a rational
study, when it is traced historically, from its ¬rst rudiments among savages, through
successive changes, to its highest improvements in a civilized society.” Historical Law
Tracts iii (Edinburgh: T. Cadell, Bell and Bradfute, and W. Creech, 1792). Montesquieu™s
L™esprit des lois appears in Holmes™s reading diaries in December 1871 and July 1873.
In keeping with the widespread regard for Kames, and deeply in¬‚uenced by David
Hume, Adam Smith proposed that moral judgment derived from the ability to evaluate
the behavior of others in particular situations through natural sympathy, and putting
oneself in the position of an “impartial spectator,” a trope strikingly parallel to Holmes™s
emphasis on juries applying the standard of the “prudent man.” Smith developed a
view of justice that arose from the confrontation with particular episodes of wrong
demanding redress, and in¬‚uenced by custom “ comparable to the idea of common
law rules arising from repeated applications of the prudent man standard to determine
accepted standards of conduct. Adam Smith, The Theory of Moral Sentiments, ed. Knud
Haakonssen (Cambridge: Cambridge University Press, 2002), 182“83, 234“47; see
J. W. Cairns, “Legal Theory,” in Broadie, Cambridge Companion to the Scottish Enlightenment,
222“42.
There is scant evidence that Holmes drew directly from these writers (though
he did study Hume), and his theory is distinct enough to suggest that he did not.
However, there is ample evidence that the empirical and moral naturalism of the
Scottish Enlightenment had a profound in¬‚uence on the intellectual climate of the
Boston and Cambridge in which he grew up and was educated, and that later Scots,
including Alexander Bain, directly in¬‚uenced the discussions of the Metaphysical Club.
Kuklick, Rise of American Philosophy, 10“62; Flower and Murphey, A History of American
Philosophy, 203“69, 567ff.
34 Max Fisch, “Justice Holmes, the Prediction Theory of Law, and Pragmatism,” 39 Journal
of Philosophy 85, 94 (1942).
Holmes, Legal Theory, and Judicial Restraint
42

and his diaries re¬‚ect both meeting with and reading Wright, speci¬cally
the latter™s important 1865 essay “The Philosophy of Herbert Spencer.”
Holmes™s diary for 1867 reveals several trips to see the reclusive bachelor
(October 20, 1867: “Went out and had a long palaver with Chauncey
Wright also with Wm James on philosophy”) and a “reread[ing]” of
Wright™s article on Spencer (September 12, 1867). In a letter to Fred-
erick Pollock written many years later, Holmes would recall, “Chauncey
Wright, a nearly-forgotten philosopher of real merit, taught me when
young that I must not say necessary about the universe, that we don™t know
whether anything is necessary or not. I believe that we can bet on the
behavior of the universe in its contact with us. So describe myself as a
bet-abilitarian” (emphasis in original).35
The connection would appear to be with Wright™s insistent criticism of
Spencer for misconstruing Darwin and interpreting nature in terms of a
teleological principle. Although Spencer had sought to avoid grand over-
generalizing in his “law of evolution,” Wright commented that “teleology
is a subtle poison and lurks where least suspected.” Wright suspected
all cosmological “systems” to be essentially teleological, “a ¬ne composi-
tion of poetry under the forms of science.” In place of the lure of evo-
lutionary cosmology, Wright suggested an alternative he called “cosmic
weather,” the notion that there is only movement and countermovement,
that “there is no production in nature from which in in¬nite ages there
can result an in¬nite product.” There remain mere probabilities; hence,
we might surmise, Holmes™s language of betability and prediction.36
The roots of this are important. At Harvard, Emerson had been
Wright™s main in¬‚uence, but he was soon immersed in Francis Bacon
and William Whewell, who together established and reinforced a strong
empiricism and mistrust of teleological anticipations of nature. Next to
engage him was William Hamilton, from whom Wright took “the salutary
lesson that the capacity of thought is not to be constituted into the mea-
sure of existence.” Wright™s attention was then captured by John Stuart
Mill, especially the critical Examination of Sir William Hamilton™s Philosophy,
generating a wholesale rejection of a priori thinking that would lead
his Darwinian empiricism toward the radically anti-Cartesian idea that


35 Chauncey Wright, “The Philosophy of Herbert Spencer,” 100 North American Review 427
(1865); Holmes to Pollock, August 30, 1929, 2 Holmes-Pollock Letters, 252.
36 Gail Kennedy, “The Pragmatic Naturalism of Chauncey Wright,” in Studies in the History of
Ideas (New York: Columbia University Press, 1935), vol. 3, pp. 482“83. See also Kuklick,
Rise of American Philosophy, 63“79.
Holmes™s Conception of Law 43

natural selection had formed the very process of thought as a means of
human adaptation to the environment.37
In deriving from this a holistic account of the socially rooted devel-
opment of perception, cognition, and language, Wright anticipated by
nearly a century the radical anti-Cartesianism “ resisting the separation
of mind and world “ of John Dewey.38 It is striking to ¬nd in Holmes™s
diaries of his readings, for the years immediately following his return to
Cambridge from the Civil War, reference not only to Wright™s essay on
Spencer but to the very authors that had in¬‚uenced him in that direction:
Whewell, Hamilton, Spencer, and Mill, interspersed among Bentham,
Austin, and various legal treatises. Like Wright, Holmes had read Emer-
son before the war. Wright and Holmes, though a decade apart, were grad-
uates with James and Peirce of Harvard College, lived in Cambridge, and
shared and nurtured a distinct intellectual climate.39 If indeed Holmes
attended the informal Metaphysical Club (something like it is suggested
by the diary entry for October 20, 1867), Peirce™s tribute to Wright™s role
as “boxing master” on those discussions is telling.40
This suggests deep roots to Holmes™s holistic pragmatism, though
of course his position must be ¬xed by extrapolation, acknowledging
his own rejection of the pragmatist label as it was popularized in later
years by James (“I think pragmatism an amusing humbug “ like most of
William James™s speculations, as distinguished from his admirable and
well written Irish perceptions of life”41 ). Wright and his readings seem to
have pulled the already Emersonian and anti-Platonist Holmes sharply
away from the foundationalist and teleogical strain that has character-
ized legal positivism since Hobbes, as well as the associated tendency to,
in Joseph Margolis™s apt description, “assign ¬xed potency and actuality
to ¬xed ˜natures™ (or essences) or essences to ¬xed potencies.” Although


37 Id.
38 See Wright, “The Evolution of Self-consciousness,” North American Review 245 (April
1873), in Wright, Philosophical Discussions (New York: Henry Holt, 1877), 205“29.
39 Kuklick, Rise of American Philosophy, 10“62; Flower and Murphey, A History of Philosophy
in America, 507, 535“53, 567“68; see chapter 2, n. 4, supra.
40 Id., 537; Max H. Fisch, “Was There a Metaphysical Club in Cambridge?” in Studies in the
Philosophy of Charles Sanders Peirce, ed. Edward C. Moore and Richard S. Robin (Amherst:
University of Massachusetts Press, 1964), 15; see also chapter 5.
41 Holmes to Pollock, June 17, 1908, in Howe, Holmes-Pollock Letters, vol. 1, pp. 138“39. A year
earlier Holmes wrote more sympathetically about James™s views to James himself: “We
start from surprisingly similar premises and our conclusions ¬t as opposites sometimes
do.” Holmes to James, April 1, 1907, in Skrupskelis and Berkeley, The Correspondence of
William James, vol. 11, p. 338 (acknowledging receipt of an essay on pragmatism).
Holmes, Legal Theory, and Judicial Restraint
44

one might argue that the subtle poison of teleology crept into The Common
Law and certain of Holmes™s judicial decisions, he seems to have believed,
with Wright before him and Dewey later, in what Margolis calls “the
¬‚ux.”42
Assuming this condensed account is satisfactory to place Holmes and
his relation to both holism and the positivist tradition, we may proceed
to its relevance for legal interpretation. What difference can such philos-
ophy make to legal theory, and ultimately to practice itself?
First, where did Hart lead legal positivism? He saw his task as maintain-
ing the foundation for law™s autonomous authority and reason (though
without the original Hobbesean explanation) such that law kept its
authority as law, not open to in¬‚uence from moral opinion, however prin-
cipled. Defending against the challenge from Lon Fuller, who insisted on
certain basic moral principles inherent in contemporary law, Hart deftly
incorporated them as part of the hierarchy of legal rules. Thus the onto-
logical separation of law and morals was maintained, with the reassuring
myth that law operates determinately insofar as it extends.
Applied to the judicial process, this conceptual picture leads to a per-
sistent dilemma. The project of conceptual separation of “law” goes hand
in hand with the project of de¬nition and delineation of it and concedes
the possibility of legal indeterminacy, the real existence of cases that are
not covered by the law as de¬ned and delineated. There is a vast litera-
ture on this in contemporary analytical positivism. Hart addressed it as an
indeterminacy of text, such that matters outside the “penumbra” of legal
terms require interstitial judicial “legislation.” Constitutional textualists
such as Justice Antonin Scalia, in dealing with the problem, look to the
original understanding of the founding generation.
The defect of this model lies in creating an ontic gap or cavity wherein
either legitimate judicial decision is foreclosed or judicial resort is con-
ceded “outside” legal texts to something the judge ¬nds subjectively
compelling, whether “moral principle” or a putative historical necessity.
Holmes saw cases not as “determined” vel non by an existing “law” or
its inexorable logic, but as bearing varying levels of dif¬culty or novelty.
He sought to identify the undeniably original aspects of dif¬cult cases as
leaning more or less toward distinct lines of prior decision or precedent.
This focused the judicial role on the re¬ned and fact-speci¬c question

42 Joseph Margolis, Reinventing Pragmatism: American Philosophy at the End of the Twentieth
Century (Ithaca, N.Y.: Cornell University Press, 2002), 117, 126.
Holmes™s Conception of Law 45

of which precedent should prevail and where the immediate controversy
could be situated in the progression from old to new consensus.
Holmes accordingly rejected judicial appeal to “principle” as a dere-
liction of the judicial role. This was to step entirely away from the delicate
process of building or rebuilding transgenerational consensus. Such was
the import of his constant critique of moral language, notable in “The
Path of the Law.” Herein lies the resolution of the inconsistency White
noted in 1947. What Holmes meant in eschewing moral language was not
an ontological separation but a fallibilist insight, that competing princi-
ples can generally be found on both sides of a controversial case, and
moral argument from them amounts to “hollow deduction from empty
general propositions.”43
Moreover, by 1902 when Holmes joined the Supreme Court, the expan-
sion of constitutional jurisdiction had brought con¬‚icts into the courts
among competing interests where no consensus had yet emerged. Judicial
restraint thus became something quite distinct from judicial circumspec-
tion, or even a policy of cautious governance; it was seen as a limiting
condition of collective inquiry into the conditions of consensual social
ordering, of which law and governance are contributing, but hardly the
only, factors. If judges blithely assumed that sweeping constitutional “prin-
ciples” were part of the legal fabric, trumping precedent and legislation,
the legal process could be used to short-circuit democratic deliberation
and the more cautious legislative process. Judicial teleology could be a
subtle poison. As the famous dissent in Lochner v. New York notes, “The
Fourteenth Amendment does not enact Mr. Herbert Spencer™s Social
Statics.”44
Although Holmes™s frequent discussion of the effect of “policy” on the
growth of the law would appear to elevate expediency in judicial deci-
sions, what White calls his “holism,” emerging from Wright™s critique of
teleology, and from his application of it to the positivist paradigm, ulti-
mately supports a cautionary approach to judicial policy where no clear
path has yet been publicly sanctioned. In constitutional law, privileging
the text, with its sweeping terms such as equal protection and due process,
short-circuits the mechanics of social and political intercourse.

43 Holmes, “Privilege, Malice and Intent,” Collected Legal Papers, 117, 120.
44 Lochner v. New York, 198 U.S. 45, 75 (1905).
4

Common Law Theory Revisited




The common law is the absolute perfection of reason.
Sir Edward Coke, Institutes of the Laws of England

Would you have every man to every other man allege for law his own par-
ticular reason? There is not amongst men a universal reason agreed upon
in any nation, besides the reason of him that hath the sovereign power. Yet
though his reason be but the reason of one man, yet it is set up to supply
the place of that universal reason, which is expounded to us by our Saviour
in the Gospel; and consequently our King is to us the legislator both of
statute-law, and of common-law.
Thomas Hobbes, A Dialogue between a Philosopher and a Student of
the Common Laws




I have claimed that Holmes™s overall conception of law is rooted in the
common law tradition in the novel theory he proposes. There are strands
that recognizably link the two together. We may trace the origins of
Holmes™s common law vision back to Sir Edward Coke™s comment above,
associating common law with “the perfection of reason,” and just below
it the rhetorical question inspired by it, put to an imaginary seventeenth-
century common law theorist by Thomas Hobbes, in a manuscript writ-
ten late in his life in the 1670s. The manuscript, with its questioning by
the “Philosopher” of the “Law Student,” introduces the resolution that
Hobbes gave to the problem of the relation between reason and authority
in the law, one based on sovereign command and inhering in coherence
and determinacy. This writing is generally consistent with Hobbes™s better


46
Common Law Theory Revisited 47

known works, though speci¬cally designed as a challenge to Coke and
his defense of the common law.1
In a mocking tone similar to Scalia™s recent attack on common law
three centuries later, Hobbes derides Coke™s notion of an innate ratio-
nality to the common law. He ridicules the possibility of a universal or
natural reason that can supply coherence and consistency in the search
for answers to troublesome legal questions. For Hobbes, Coke™s assump-
tion would let “every man to every other man allege for law his own
particular reason.” Law can have coherence and determinacy only if its
reason comes from a single source, a fully empowered sovereign “ or, as
Scalia claims, from an authoritative text and its original understanding.
The conditions surrounding Holmes™s early life and research differ
markedly from those of Coke and his contemporaries. The sovereign
power of nineteenth-century America lay in a republic of divided pow-
ers, not a monarch asserting royal prerogatives in the face of challenges
from rising and shifting economic and social forces. Nevertheless, both
Hobbes and Holmes wrote in defense of central authority in a century
of political disorder, radical revolution, and eventual restoration. Coke,
and anyone else asserting common law reason in his time, would have
had in mind professional and political interests different from those of
post“Civil War America. Groups favoring legislation or executive author-
ity would be as different in their interests and temperaments from each
other as they would be from Thomas Hobbes. The targets of persuasion
and the stakes of belief differ greatly over this long span. But there is
remarkable common ground.
Where did the peculiar “model” of common law interpretation and
decision derive in Holmes™s early research? It would seem that nothing
quite like the intellectual background of Darwinian evolution and Wright-
in¬‚uenced fallibilism could be found in previous theoretical writings
about the common law, and it is evident that Holmes himself believed
his theory to be original.2 In certain basic respects it clearly is not; the
comment that Holmes in 1870 attributes to Lord Mans¬eld, for instance,
evokes claims and observations about the nature of common law that were

1 See Postema, Bentham and the Common Law Tradition, 46 n. 13; see J. Cropsey, Introduction
to Thomas Hobbes, A Dialogue between a Philosopher and a Student of the Common Laws of
England (Chicago and London: University of Chicago Press, 1971).
2 See Howe, Justice Oliver Wendell Holmes: The Proving Years, 137. For some of the possible
sources that might have contributed to the intellectual climate surrounding his eventual
outlook, even if Holmes believed that he came to it largely on his own; see chapter 3,
n. 33.
Holmes, Legal Theory, and Judicial Restraint
48

made by its defenders during the period of its defense in the sixteenth and
seventeenth centuries. Its principal expositors were engaged in various
phases of the political con¬‚ict over increasing centralization of authority
in England: Sir Edward Coke (1552“1634), Sir Matthew Hale (1609“76),
and Sir William Blackstone (1723“80).
The common law, according to Blackstone, was “That antient collec-
tion of unwritten maxims and customs, which is called the common law,
however compounded or from whatever foundations derived, [that] had
subsisted immemorially in this kingdom; and though somewhat altered
and impaired by the violence of the times, had in great measure weath-
ered the shock of the Norman Conquest.”3 The common law is seen here
as universal, shared by the people of England notwithstanding the history
of divisions and con¬‚icts. It is “a law common to all the realm, the jus com-
mune or folcright mentioned by King Edward the elder, after the abolition
of the several provincial customs and particular laws beforementioned”4
(emphasis in original). As can be seen from Blackstone™s comment on
the Norman Conquest, it is also continuous. Its validity lies in the fact that
it is of long standing:

[T]he maxims and customs, so collected, are of higher antiquity than memory
or history can reach: nothing being more dif¬cult than to ascertain the precise
beginning and ¬rst spring of an antient and long-established custom. Whence it
is that in our law the goodness of a custom depends upon it™s[sic] having been
used time out of mind; or, in the solemnity of our legal phrase, time whereof the
memory of man runneth not to the contrary. This it is that gives it it™s [sic] weight
and authority; and of this nature are the maxims and customs which compose
the common law, or lex non scripta, of this kingdom.5

Legislation, the lex scripta, was written or in some form enacted law; “the
written laws of the kingdom, which are statutes, acts, or edicts, made by the
king™s majesty by and with the advice and consent of the lords spiritual and
temporal and commons in parliament assembled.”6 When Blackstone
wrote, the lex scripta and non scripta were considered to be of the same
substance: “Statutes also are either declaratory of the common law, or
remedial of some defects therein.” The same was true of “constitutional
law,” as it emerged in England.7 Coke and Blackstone were skeptical

3 W. Blackstone, Commentaries on the Law of England, vol.1 (New York and London: Garland
Publishing, 1978), 17.
4 Id. at 67.
5 Id.
6 Id. at 85.
7 John Hudson, The Formation of the English Common Law (London and New York: Longman,
1996), 220“37.
Common Law Theory Revisited 49

and often severely critical of legislation as the product of a temporary
consensus among arbitrary wills:8

The mischiefs that have arisen to the public from inconsiderate alterations in
our laws, are too obvious to be called in question; and how far they have been
owing to the defective education of our senators, is a point well worthy the public
attention. The common law of England has fared like other venerable edi¬ces
of antiquity, which rash and inexperienced workmen have ventured to new-dress
and re¬ne, with all the rage of modern improvement. Hence, frequently it™s [sic]
symmetry has been destroyed, it™s [sic] proportions distorted, and it™s [sic] majestic
simplicity exchanged for specious embellishments and fantastic novelties. For, to
say the truth, almost all the perplexed questions, almost all the niceties, intricacies,
and delays (which have sometimes disgraced the English, as well as other, courts
of justice) owe their original not to the common law itself, but to innovations that
have been made in it by acts of parliament.9

Blackstone™s emphasis on custom suggests a different view common
lawyers had of reason; for Coke, Blackstone, and Hale all insisted that
(in Coke™s terms) “the common law is the absolute perfection of rea-
son.”10 This special common law reason has been described as “arti¬cial”
and “within the law,”11 but like the Holmesian model it had much to do
with conduct and practice. As Gerald Postema has noted, it was “insep-
arable from the particular situations brought to the law and resolved by
it. It is the reason not of rules and principles, but of cases.”12 It may be
misleading to describe this reason as internal to the law, as it re¬‚ects
the fact that cases are the by-product of problematic interaction among
humans engaged in social and economic activities, which fall naturally
into patterns that might qualify as “custom,” from which reason cannot
be detached. It is distinct, then, from the meaning given to the term by
Hobbes.

8 As Postema has noted, after the sixteenth century, common law theory struggled to ¬nd
a satisfactory explanation of legislation, as the latter took on an ever greater impor-
tance in English life and society. The medieval notion of legislation as merely another
form, with adjudication, of discovering preexisting law gave way to the realization that
law could be created anew; “[l]aw could be seen not merely as the formal and public
expression of an existing social (or even natural) order, but as an instrument with which
that order could be altered or even recreated.” Postema, Bentham and the Common Law
Tradition, 15.
9 Blackstone, 1 Commentaries 10.
10 Sir Edward Coke, The Second Part of the Institutes of the Laws of England (Buffalo, N.Y.:
William S. Hein,1986), 179.
11 Postema, Bentham and the Common Law Tradition, 30.
12 Id., 31. See also Postema, “Philosophy of the Common Law,” in The Oxford Handbook of
Jurisprudence and Philosophy of Law, ed. Jules Coleman and Scott Shapiro (Oxford: Oxford
University Press, 2002), 593“95.
Holmes, Legal Theory, and Judicial Restraint

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