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When Hobbes asks, “Would you have every man to every other man
allege for law his own particular reason?” he has accepted that individuals
will disagree about legal questions according to their differing interests.
Although it might be applied to particular situations, this reasoning is
essentially, like Hobbes™s own reasoning, abstract and analytical. Hobbes
had no con¬dence in Coke™s claim that common law reason will resolve
close cases, but in an important way Hobbes misconstrued Coke™s perspec-
tive. Coke accepted the fact of complexity and diversity of opinion; his
observations in the Institutes re¬‚ect a sense of great dif¬culty “to reconcile
doubts . . . arising either upon diversity of opinions or questions moved
and left undecided.”13 He recognized that judges often disagreed.14 “The
learned” had to “perplex their heads, to make atonement and peace by
construction of law between insensible and disagreeing words, sentences
and provisoes.”15 How best to do this? “It is the best manner of expound-
ing, so to interpret the laws that they may agree with one another,” and
“The best interpreter of the law is custom.”16 Through such arguments
Coke implied removal of the analytical thinker as the source of logic,
and the replacement of it, as eventually also by Holmes, with patterns of
communal action.17
Hobbes™s attack on Coke was not published until well after his death
in 1681; it was apparently circulated widely enough in manuscript form
to come to the attention of Matthew Hale. Hale™s reply, Re¬‚ections by the
Lord Chiefe Justice Hale on Mr. Hobbes his Dialogue of the Lawe, was unpub-
lished until 1921 when its importance was recognized by the British legal
historian Frederick Pollock, by then a forty-seven-year friend and corre-
spondent of Holmes. It engages Hobbes on the subject of legal reason
as well as on sovereignty, and although in 1870 it remained as yet undis-
covered by Pollock and unread by the young Holmes, it stands as an
important precursor to Holmes™s nineteenth-century views.18

13 Coke, Reports of Sir Edward Coke sig. D 3b (Dublin: J. Moore, 1793), vol. 3.
14 Id.; Reports, vol. 1, Preface to the Reader.
15 Coke, Reports, vol. 2, To the Learned Reader, 7.
16 Coke, Reports, vol 2, p. 81; Reports, vol. 10, p. 70. (“Optimus legum interpretes consue-
tudo.”)
17 See D. E. C. Yale, “Hobbes and Hale on Law, Legislation and the Sovereign,” 31 Cambridge
Law Journal 25“26 (1972): “[I]n Coke™s theory the common custom of the realm was
totally reasonable, in the sense that it represented the product of a professional skill
working a re¬nement and co-ordination of social habits into a system of rules.”
18 Sir Matthew Hale, Re¬‚ections, printed in William Holdsworth, A History of English Law,
7th ed. (London: Methuen, 1956), 499“513. There is no evidence that Holmes made
any focused study of Hale until 1876, and then only by way of Andrew Amos, Ruins of
Time Exempli¬ed in Sir Matthew Hale™s History of the Pleas of the Crown (London: V. and
R. Stevens and G. S. Norton, 1856) (see Holmes, The Black Book, Harvard Law School
Common Law Theory Revisited 51

Hale begins his Re¬‚ections with an elaborate demonstration that reason
is by no means univocal as applied to different subjects of inquiry, such
as mathematics, physics, and politics, and that it must be permitted to
assume a special meaning in the dif¬cult ¬eld of law. This is because
“ye texture of Humane affaires is not unlike the Texture of a diseased
bodey labouring under Maladies, it may be of so various natures that
such Phisique as may be proper for the Cure of one of the maladies may
be destructive in relation to ye other, and ye cure of one disease may be
the death of the patient.”19
Hale™s comparison of law to a curative introduced into the “texture of
human affairs” separates both his notion of reason and his conceptualiza-
tion of law from those of Hobbes. His “texture” terminology anticipates
Hart™s “open texture” of legal language; but unlike Hart, the texture of
interest to Hale is outside the law, a texture of “affaires” or activity, and
the element of dif¬culty would necessarily be located there instead of
within the isolated text. His analysis resists separating law, whether as lan-
guage or reasoning, from the disputes that engage the courts and the
generality of human activity giving rise to them. The reasoning of the
common lawyer is not only different from that of the moral philosopher,
it is directed at a different subject matter, a distinct type of problem. It
is not, for Hale, akin to a mathematical or scienti¬c dissection of a pre-
existing system of rules. Based on experience, it looks beneath rules and
decisions to an organic reality, from which the consideration of rules by
themselves cannot be separated. “There is no sharp conceptual boundary
between law and other social phenomena because, on this view, there is
no sharp difference between them in the community governed by law.”20
The contrast between Hobbes™s Dialogue and Hale™s Re¬‚ections is
obscured by the use of similar terms. Both disputants in the Dialogue,
the Law Student and the Philosopher, are in agreement that law has a
rational basis “ that law must be informed by reason and cannot be law if
it con¬‚icts with reason. Hobbes™s point is simply that the claim of a “uni-
versal” or “natural” reason accessible to common lawyers opens the way to
disobedience by any who set up their own individual reason against that of
the law: it is the nature of law to command, and commands require obedi-
ence. It is the nature of “universal” reason to be open to question. Thus

Library (1876“1935), 17). Frederick Pollock never mentions discovering the Re¬‚ections
in his surviving letters to Holmes. However, there is no way of assessing the content and
in¬‚uence of conversations between Holmes and English common law scholars such as
Pollock and James Fitzjames Stephen on his trips to England beginning in 1866.
19 Hale, Re¬‚ections, 503.
20 Postema, Bentham and the Common Law Tradition, 38.
Holmes, Legal Theory, and Judicial Restraint
52

the reason of law must emanate from a single commanding sovereign
source.
Hobbes™s Philosopher asks the imaginary Law Student to explain how
Coke can avoid the charge that in tying the law to reason he is discour-
aging obedience. The Law Student™s defense of Coke, demonstrating
Hobbes™s personal view of common law theory, falls back on the claim
of special legal training ridiculed lately by Justice Scalia: he cites Coke™s
dictum that the law is based on what is reasonable not to any individ-
ual man but to the reason of men specially trained and possessing the
legal art: “because by so many successions of ages it hath been ¬ned and
re¬ned by an in¬nite number of Grave and Learned Men.” This removes
from its context the common law argument from experience, the iden-
ti¬cation of reason with a deference to the established practices of the
relevant community. Hobbes™s Law Student, in identifying reasoning as
mere subjective individual judgment, albeit coming from a profession
claiming special expertise, would not have received a passing grade from
Sir Matthew.21
Hale™s Re¬‚ections, in contrast, binds the de¬nition of reason closely to
the nature of the inquiry:

It is taken complexedly when the reasonable facultie is in Conjunction w[i]th
the reasonable Subject, and habituated to it by Use and Exercise, and it is this
kind of reason or reason thus taken that Denominates a Man a Mathematician, a
Philosopher, a Politician, a Phisician, a Lawyer; yea that renders men excellent in
their p[a]rticular Acts22 as a good Engineer, a good Watchmaker, a good Smith,
a good Surgeon “ all w[hi]ch consists in the application of the Facultie of reason
to the particular Subject. . . . 23

Hereupon Hale anticipates the later comment of Lord Mans¬eld, quoted
by Holmes in 1870, to the effect that the business man suddenly
appointed judge should avoid abstract reasoning and rely on common
sense:

And upon this acco[un]t it is that when men of observation and Experience in
Humane affaires and Conversation between man and man make many times good
Judges, yett for the most part those men that have greate reason and Learne-
ing w[hi]ch they gather up of Casuists, Schoolmen, Morall Philosophers, and
Treatises touching Moralls in the Theory, that So are in high Speculations and
abstract Notions touching Justice and Right, and as they differ Extreamely among

21 Hobbes, Dialogue, 109.
22 A note appears here in Pollock™s text: “This should probably be ˜Arts.™ “ F.P.”
23 Hale, Re¬‚ections, 501“2.
Common Law Theory Revisited 53

themselves when they come to particular applications, So are most comonly the
worst Judges that can be, because they are transported from the Ordinary Mea-
sures of right and wrong by their over ¬ne Speculacons[,] Theoryes and distinc-
tions above the Comon Staple of humane conversations.24

Hobbes could not appreciate the common law argument from custom
and practice, because he could not see how custom or precedent could
have any special authority apart from their explicit adoption into the law
by an empowered sovereign on strictly legal or equitable grounds:

I deny that any Custome of its own nature, can amount to the authority of a law:
For if the Custome be unreasonable, you must with all other lawyers confess that
it is no law, but ought to be abolished; and if the Custome be reasonable, it is not
the custom, but the equity that makes it law.25

He failed to accept that common lawyers conceived the notion of custom
not in isolation but as the continuing effect of public practices on the
substantive framework of law. We see here the danger of which Dewey
warned: using “law” in such a way as to set it up as a separate entity. In
Hobbes™s usage, custom is objecti¬ed as a discrete entity, set off from a
similarly objecti¬ed entity “law,” while insofar as the common lawyers had
conceptualized law, custom was already at work within it. For Hobbes a
presumptive boundary preexisted the analysis; any given custom must be
separately evaluated as part of the law or not.
What Hale, especially, seems to be driving at by “custom” are the set-
tled and orderly habits of economic and social activity that provide the
basis for a coordinate legal order; both law and custom are organically
connected and integrated.26 This order is constantly interrupted and
threatened by dispute and con¬‚ict, which would cause considerable dis-
ruption to the social fabric were the law not available to restore it, ¬rst
by explicitly identifying and recognizing the integrated fabric, notwith-
standing its complexity, then by gradually and experimentally crafting a
coherent and consistent response.

First, The Common Law does determine what of those Customs are good and
reasonable, and what are unreasonable and void. Secondly, the Common Law
gives to those Customs, that it adjudges reasonable, the Force and Ef¬cacy of
their Obligation. Thirdly, the Common Law determines what is that Continuance
of Time that is suf¬cient to make such a Custom. Fourthly, the Common Law

24 Ibid., 503.
25 Hobbes, Dialogue, 96.
26 See Postema, “Philosophy of the Common Law,” 592.
Holmes, Legal Theory, and Judicial Restraint
54

does interpose and authoritatively decide the Exposition, Limits and Extension
of such Customs.27

The above is from Hale™s posthumous A History of the Common Law of
England; in Re¬‚ections Hale makes clear that his concept of custom, seen
through the eyes of the judge, is akin to experience, and law should be
based on as wide a variety of experience as possible:28

Againe I have reason to assure myselfe that Long Experience makes more discov-
eries touching conveniences or Inconveniences of Laws then [sic] is possible for
the wisest Councill of Men att ¬rst to foresee. And that those amendm[en]ts and
Supplem[en]ts that through the various Experiences of wise and knowing men
have been applyed to any Law must needs be better suited to the Convenience
of Laws, then the best Invention of the most pregnant witts not ayded by Such a
Series and tract of Experience.
All these thinges are reasonable, the particular reason of the Laws &
Supplem[en]ts themselves perchance are not obvious to the most Subtill Witts
or Reason.
And this adds to ye dif¬cultie of a present fathomeing of the reason of Laws,
because they are the Production of long and Iterated Experience. . . .29

This point, made after the lengthy argument concerning the nature of
reasoning itself, provides a striking historical precedent for Holmes™s fa-
mous passage, written two centuries later, at the beginning of The Common
Law: “the life of the law has not been logic, it has been experience.”30
Legal positivism emerged “ we may portray it here as an outgrowth of
political developments in seventeenth-century England “ as a defense of
central government entirely compatible with democratic theory: what the
sovereign commands, whether by ¬at or majoritarian legislation, is the
law. Holmes wrote much that seems consistent with this simple dictum,
and most scholars understandably characterize him as a positivist.31 But
legal positivism has evolved in a manner that renders it quite incompatible

27 Hale, A History of the Common Law of England, ed. C. M. Gray (Chicago: University of
Chicago Press, 1971), 18.
28 Yale, “Hobbes and Hale,” 126“27.
29 Hale, Re¬‚ections, 504“5.
30 Holmes, The Common Law, 1.
31 E.g., White, Justice Oliver Wendell Holmes, 161, 221, 388. Patrick J. Kelley, “Was Holmes a
Pragmatist? Re¬‚ections on a New Twist to an Old Argument,” 14 S. Ill. L. J. 427 (1990);
Sheldon M. Novick, “Holmes™s Constitutional Jurisprudence,” 18 S. Ill. L. J. 347, 348
(1994): “The assumption of all [Holmes™s] thinking was that government rested on
violent force”; Posner, Introduction to The Essential Holmes, xxiii; Posner, The Problems of
Jurisprudence (Cambridge, Mass., and London: Harvard University Press, 1990), 20.
Common Law Theory Revisited 55

with Holmes™s most basic insights, and its recent development highlights
the very criticisms of it that are embedded in his early writing.
Many now view the early common law theorists as engaged in a hold-
ing action, defending judicial prerogative against a transformative tide
toward both majoritarian legislation and central government. Common
law itself is seen as radically diminished in size as well as importance.
Scalia quotes the legal historian Lawrence Friedman in saying that even
private law has become statutory and that “[t]his is particularly true in
the federal courts, where, with a quali¬cation so small that 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 statute, or of the Constitution.” But while marginal-
izing common law, Scalia undercuts his own textualism with the obser-
vation, “We American judges have no intelligible theory of what we do
most.”32
Until quite recently, “common law” perspectives on law have persisted
apathetically. Allusions to common law have been found at the mar-
gins of theoretical debate, such as that over interpretative approaches
in Supreme Court jurisprudence. Common law has suffered from the
fact that it is perceived as ungrounded in any current or comprehensive
legal philosophy. It can be neither explained nor ignored. Bentham con-
sidered the common law “sham,” “mock,” or “impostrous,” equivalent
to the exercise of arbitrary power; he called it “¬ctitious” and a “mere
nonentity.”33 A. W. B. Simpson has more recently written that it is “more
like a muddle than a system,” “essentially shadowy,” and operates “as if
[it] placed particular value upon dissention, obscurity, and the tentative
character of judicial utterances.”34
In the course of his early scholarship, Holmes did indeed give common
law a theory, as had the English scholar-judges of the seventeenth and
eighteenth centuries. Theirs is now seen as a defense of embedded, and
not entirely well reasoned or intentioned, practices. They were pitted


32 Scalia, A Matter of Interpretation, 14, quoting Henry M. Hart, Jr., and Albert M. Sacks,
The Legal Process: Basic Problems in the Making and Application of Law (Westbury, N.Y.:
Foundation Press, 1994), 1169: “The hard truth of the matter is that American courts
have no intelligible, generally accepted, and consistently applied theory of statutory
interpretation.”
33 Stephen R. Perry, “Judicial Obligation, Precedent, and the Common Law,” 7 Oxford
Journal of Legal Studies 215 (1987), 234.
34 Id., 250; A. W. B. Simpson, “The Common Law and Legal Theory,” in Simpson, ed.,
Oxford Essays in Jurisprudence: Second Series (Oxford: Clarendon Press, 1973), 90.
Holmes, Legal Theory, and Judicial Restraint
56

against a nicely simple theory “ perhaps too simple “ of both state and
democratic power. The early articulation of both theories, common law
as well as positivist, can be traced to a period of ¬erce competition for
power in England, raising issues of who controlled the law and how.
Whence did judges derive the authority to discover law? On what grounds
do so-called common law judges decide, if not directly from the text of
the relevant law or authoritative legal materials? And why do they defer
to previous decisions (the practice called stare decisis) even where they
might be persuaded that convincing authority, textual or otherwise, is
opposed?
In Holmes™s reconceptualization, common law was not strictly “judge-
made,” as commonly characterized.35 This ignores the importance given
by Holmes to the broader experience taken into account by judges in
their retrospective adjustments of legal rules, and even of the crucial
role of consensus among judges, lawyers, and litigants that is implied in
Holmes™s 1870 comment that “a well settled legal doctrine embodies the
work of many minds, and has been tested in form as well as substance
by trained critics whose practical interest it is to resist it at every step.” A
caricature of common law has been the notion that judges, in resolving
even the most dif¬cult cases, are specially equipped to divine from within
the “preexisting” law of that situation “ appealing to what Holmes mocked
as a “brooding omnipresence in the sky.” He rejected this in favor of a
naturalistic theory of inquiry, in which intractable legal disputes were
viewed as bearing a certain degree of unforeseen novelty or originality,
and the legal profession, in concert with the community at large, worked
out a gradual resolution through progressive abstraction from speci¬c
cases.
Much of his early research drew on the traditional domain of private
law, wherein statute making had yet to make substantial inroads by the
mid-nineteenth century. One might assume that Holmes was developing
a theory for that part of the law alone, irrelevant to the growing body
of legislation, to which positivism could better apply. A powerful move-
ment toward legislative reform and codi¬cation of the common law was
already under way while Holmes was engaged in this work.36 Holmes
would retain the traditional continuity between common and statute
law.

35 Postema, Bentham and the Common Law Tradition, 588.
36 Horwitz, The Transformation of American Law 1870“1960, 123.
Common Law Theory Revisited 57

Taken as a whole, his effort was aimed toward encompassing statute
law, and was framed with the comprehensive positivist theory of John
Austin in mind. It was an extended criticism of Austinian positivism,
and an effort to present a uni¬ed theory of all law, accounting for the
judicial role in interpreting and applying all forms of law, precedent,
statute, and constitution. In this it has had an incomplete and uneven
reception.
The early scholarship includes an effort to make a rough analytical map
of two quite different things: ¬rst, of the categories of the law, organized
around its putatively innate conceptual elements, drawing in particular
from an elaborate scheme set forth earlier in the century by John Austin.
Next, to better understand the dif¬culties he encountered in settling on
anything innate, the analysis turns to the historical development of legal
conceptualization itself. The ¬rst project was undertaken in an essay on
codi¬cation: it began as a critical examination of possible schemes of
legislative organization of law as a whole.
Thus did Holmes become engaged by 1870 with the relation of legal
classi¬cation, legal history, and codi¬cation. Within this threefold rela-
tion lie important issues concerning the nature and sources of authority,
law, and justice. Is law a natural entity? Is its inherent nature (presumably
consisting in certain basic conceptual elements) discoverable? If not nat-
ural, then is that nature entirely subject to legislative ¬xation? What, in
this context, are we to make of the legal conception of justice, especially
in relation to morals? Two centuries earlier, in an England riven by the
clash of crown and rising professional classes, the same threefold relation
had been at the center of opposing theories of law put forth by Hobbes
and the common law judges.
The positivist project, begun with Hobbes™s defense of the central state,
was undertaken with an implicit commitment to the belief that law is a
de¬nable entity. This has two meanings: de¬nable in clear language, the
dictionary sense, and actually de¬ned by a real and identi¬able boundary “
having a distinct ontology, a term denoting concreteness. The two are
easily confused; both ¬t the spirit and purpose of reform better than the
notion that law cannot be universally de¬ned or that it has an open, or
nonexistent, boundary. In contrast is the tradition of common law as an
acentric legal order better explained by history than static analysis. Insofar
as its nature had been revealed, it was through such sweeping historical
theories as Henry Maine™s notion of the evolution of legal relations from
status to contract. Clearly in¬‚uenced by Maine, Holmes proposed his
Holmes, Legal Theory, and Judicial Restraint
58

own sweeping theory, a movement from moral to external standards of
conduct and liability. Consistent with a skeptical outlook, this implied a
retreat from moral certainty, and the attribution of a degree of moral
skepticism to the emergent common law itself.37
Although critical of Maine, Holmes™s theory was similarly develop-
mental, perceiving legal concepts in the context of their emergence and
growth. Pure positivism and its textualist simpli¬cation leave little room
for such developmental talk. Holmes could talk on both sides of the
divide because the appearance of some empirical aspects of positivism
were part of the historical shift. By 1894 he had come to welcome legisla-
tion, indeed the application of utilitarian reform, as the legal enterprise
coming to control its own destiny: “The time has gone by when law is
only an unconscious embodiment of the common will. It has become a
conscious reaction upon itself of organized society knowingly seeking to
determine its own destinies.”38
More signi¬cant is the resilience of the attitudes of early common law
theorists and Holmes™s resistance to the most basic elements of what
has now become hard-core positivist doctrine.39 Pure positivism, the
analytical version that Holmes challenged in detail during the forma-
tive period of his research, has itself encountered problems, not least
among them the twentieth-century critiques of Ronald Dworkin. Since
Hobbes it has wrestled continually, and less than successfully, with the
boundary question: in what fundamental elements, precisely, does “law”
consist? Hart™s effort to unify positivist thinking by moving away from the
command de¬nition favored by Hobbes and Austin toward an analytical
arrangement of “primary” and “secondary” rules, governed by a Rule of
Recognition, has fallen into scholastic wrangling.40
A leading topic during the last century has been the status of moral
principles and abstract rights. Lon Fuller, and later Dworkin, undermined
positivist con¬dence by pressing the case that they must fall within the

37 For a comment on the relation of the Scottish Enlightenment to common law theory,
see chapter 3, n. 31.
38 Holmes, “Privilege, Malice, and Intent,” in Collected Legal Papers, 129“30.
39 “A classic form [of legal positivism] holds that a community™s law consists only of what
its lawmaking of¬cials have declared to be the law, so that it is a mistake to suppose that
some nonpositivist force or agency “ objective moral truth or God or the spirit of an age
or the diffuse will of the people or the tramp of history through time, for example “ can
be a source of law unless lawmaking of¬cials have declared it to be.” Ronald Dworkin,
Justice in Robes (Cambridge, Mass.: Belknap Press, 2006), 187.
40 Id., 188.
Common Law Theory Revisited 59

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