Holmes' Heritage: Living Greatly in the Law

Admirers and critics alike concede that Holmes was a great man and a great jurist. One hundred years after the publication of the Path of the Law, this classic article, and Holmes’ heritage in general, are very much alive. The Path is indeed an amazing piece. In less than 20 pages, Holmes sets out in his dazzling way the skeleton of his thought about the nature of law, its role in social life, the way it in fact develops and how it should be developed, the nature and importance of theorizing about law, and the way working within law fits in with a person’s broader aspirations. Despite the brilliance of the piece, however, we would not have been here today celebrating it had it not been written by Holmes. The Path is important because it gives us a condensed look into the thought of a person who is a giant, maybe the giant, of American legal culture. And Holmes’ greatness is the result of the combination of his scholarship, his judicial opinions, his life and the wealth of documentation of his readings, doings, thoughts, observations and feelings in diaries and letters. It is not uncommon that stature brings attention, and that attention creates the kind of familiarity that breeds both admiration and contempt. This has clearly happened to Holmes. Holmes’ persistent and growing fame, despite serious critiques, thus creates a puzzle. A person usually becomes a cultural hero because he stands for something. With Holmes, it is not always clear what he stands for. There are serious tensions both within his work, sometimes even within the same piece of work, and between his work and his judicial opinions. His famous oracular style means that it is possible to find support within his works and life to contradictory statements and guidelines. This in itself may be a devastating critique for a thinker or mentor. Maybe more troubling still, some of the things Holmes does seem to stand for, such as glorification of war and the endorsement of the legitimacy of policies aiding the survival of the fittest, are extremely objectionable and seem dangerous indeed, especially in the aftermath of WW2. Finally, some of Holmes’ tastes and preferences seem highly unattractive to many. Against this background, is Holmes a wrong hero to choose?

We may paraphrase and say that we can know a person, and a culture, by knowing who their heroes (and villains) are. Should we today participate in the tributes and thus contribute to the perpetuation of what might have been a grave mistake? Or should we seek to give the kind of balanced account that will tend to take Holmes down from his pedestal, leaving us free to use him and his work ‘on the merits’ of particular positions or decisions ?

Holmes suggested that survivals are often unfair and undeserved, and he would probably have said that attempts to change deliberately the verdict of history will likely be futile. In this case I am glad he is right, because despite many weaknesses, Holmes is an exceptional hero to have. He is not only a good person to look up to because of his great achievements while he lived. Many parts of his heritage are still meaningful, relevant and useful today. It is possible, of course, to address our practical concerns without invoking him. But it is stimulating, enlightening and fun to check what he had to say.

I will argue that this justified verdict of history does not depend mainly on the truth of Holmes’ insights about law, or about the adequacy of describing him as a progressive, a democrat or a liberal spirit. Holmes captivates our imagination, first and foremost, because he embodies, in the totality of his life and work, a way of living greatly in the law. In part, Holmes’ achievement is based on his insistence that all greatness requires a combination of passion and detachment, and that in the law greatness can be reached only if one constantly moves between working in the law, accepting it as given and binding, and looking at it from the outside, putting law in the broadest contexts possible. The variety and richness of his thought are thus not just an accident. His conception of the good life required that he had to articulate attitudes about the meaning of life and its choices, about the distinctive nature of law, its social functions and its limits, about the nature of different ways of working within the law and the relationships between working within the law and other human pursuits. Furthermore, in his own work within the law, Holmes practiced what he preached: he mastered the craft of the law, theorized about it on many levels, and acted on the insights he gained throughout his judicial career. There is an impressive wholeness and comprehensiveness here, unrivaled in the careers of most jurists.

With this breadth of scope and ambition, Holmes sets the enterprise of working within the law in a much more satisfying way than most accounts. Holmes would have survived just for that, even if we had rejected - as many do - many of his positions and sentiments on life, society, law, legal theory and adjudication. My reading of Holmes, however, finds less to criticize and reject than it is common to think. While there are details of his thought that are now generally accepted as wrong or confused or exaggerated, and other that are seen as truisms, many of his more basic intuitions about law and its development have stood the test of time well, and are still serious contenders in contemporary debates. Holmes was a very wise man, and his work is full of “diamonds” and deep insights. Moreover, many of the apparent tensions or contradictions in his work are not a result of sloppiness or inattention. They reflect deep complexities in the subject-matters Holmes is addressing. Holmes used to the full the fact that he was not a ‘professional’ philosopher or scholar. His insights are not parts of a comprehensive theory, and should not be regarded as such. When we read Holmes’ provocative statements not as attempts to provide full and accurate answers to carefully-put questions, but as general reminders of aspects of an elusive complex reality, dictated by perceived weaknesses of other attitudes or trends, a fresh and attractive wholeness emerges. This wholeness does contain tensions and apparent contradictions, but their absence, says Holmes rightly, is not the fate of man.

My reading of Holmes’ justified survival dictates the structure of this paper. I will stand The Path of the Law on its head: The Path consists of a number of parts, with uneasy relationships among them : 1) the prediction theory of law, advocating a separation in both vocabulary and substance between law and morality; 2) the analysis of how the law develops, and good and bad ways of developing it (law is not logic, law is not history, but there is too much alleged logic and tradition in law, used to disguise that law is, and should be, a tool for advancing social goals); 3) the role of jurisprudence and legal scholarship in aiding the practice and study of law, and 4) the mystical, romantic, cryptic invocation of theory, ideals, the meaning of life, the infinite and universal law.

Many think that the fourth part does not really belong, and that it was a cheap trick Holmes played on his audience. I will argue that this part is the key to the way in which the different strands in Holmes’ life and work integrate into the whole that charms us. I will therefore start with Holmes’ positions on what gives meaning and significance to human life, and how these may be reached in the law. The basic tension for Holmes starts right here: On the one hand, an important way of giving meaning is by connecting one’s specific pursuit to the human and to man’s place in the universe. Practicing the law, however, requires that it be seen as distinct from art, science, morality and politics. Holmes argues equally eloquently for both perspectives in his essays and speeches, and acts from both of them in his professional life. Furthermore, law itself, when it is looked from within, is a puzzling combination of facts and values, of brute force and of lofty ideals.

I will argue that Holmes does not really offer a ‘definition’ of law that he seeks to defend. Rather, he offers us a series of insights about law and its functions and about legal reasoning and the ways law develops. These do fit in with his larger picture of human and social life. Different parts of these accounts do have implications, not always clear and determinate, to both the description and the evaluation of working within the law. Holmes sees that these implications may be different for at least three clusters of ways of acting as lawyers - counselors, judges and academics.

I single out for special discussion Holmes’ position on the role of the judge in a democracy, which is still at the center of debate in our own times. I find it relevant, moving and compelling, a much needed corrective against attempts to reduce adjudication to social reform. Some argue that Holmes’ self-restraint and deference to precedent are at war with his claim that we should not be ruled by tradition and that law’s ultimate test is its social utility. I disagree. Holmes’ position on adjudication is the one following most consistently from his views about the nature and functions of law, the role of law within social life, and the special duties of judges within the law.

Holmes’ continuing relevance, too, stems from the breadth of his approach to law and legal study. Holmes was reacting to some of the conditions of his time, and many of these have changed, so his specific reactions to them may be irrelevant to our present practical concerns. But more often he was indeed aiming at ‘universal law’, at deep facts of human nature and human society. On these, despite enormous changes in technology and culture, not much is new under the sun. Holmes had a courageous spirit, and his sober and harsh observations were not always popular at his time. Today we have become such effective silencers of some disagreeable facts that reminders of his positions, with the legitimacy he may give them, may be badly needed. After all, as Mill reminds us, one of the great values of freedom of speech is that we come to struggle with other views, so that our own commitments become less dogmatic. On many issues, we are too protected from this need.

In short, it is true that Holmes was not a great reformer himself, but he did not aspire to be. He reminds us that there are ways of human greatness that do not involve a radical critique of one’s society or even a commitment to social reform. Moreover, reformers in the law, too, need an analysis of what law is, what can be done through it, and what its limits are. On these aspects, I am not sure that reformers’ zeal has not occasionally blurred the insights of the more detached Holmes. I feel pleased at the thought that Holmes will stay with us, as a hero worth studying and looking up to, for some time to come.

1. Holmes on Human Life and its Meaning

Holmes ends the Path of the Law with a resounding affirmation of the fact that dealing with theory in the practice of law is the way to find meaning in it. He starts the last section of the article by explaining why in talking about the study of law he has said almost nothing about the details and sources of such study, about the materials students are in contact with. The reason, says Holmes, is that his subject is theory, which is “the most important part in the dogma of law”. Theory is practical, because “to the competent, it means going to the bottom of the subject”. There is a serious danger that able people, with practical minds, should “look with indifference or disgust upon ideas the connection of which with their business is remote”. While money is a legitimate object of desire, the only enduring achievement is “the command of ideas”. Holmes echoes Bentham’s idea that we all want happiness, but broadens it to include more than a good corporate job with a decent salary:

The remoter and more general aspects of the law are those which give it universal interest. It is through them that you do not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.

That “happiness”, the big prize of human existence, takes more than financial success; that it involves meaning, and an attempt to become a master in your calling, is a theme quite frequent and consistent in Holmes’ writings. He applies it to war, seeking to explain the importance of Memorial Day: It is a day that “embodies in the most impressive form our belief that to act with enthusiasm and faith is the condition of acting greatly”. “It was given to us to learn at the outset that life is a profound and passionate thing. While we are permitted to scorn nothing but indifference, and do not pretend to undervalue the worldly rewards of ambition, we have seen with our own eyes, beyond and above the gold fields, the snowy heights of honor, and it is for us to bear the report to those who come after us”. This report is not borne by argument or reason, but by contagion, by the exhibition of feelings: “feeling begets feeling, and great feeling begets great feeling”. And Holmes generalizes: ”But, above all, we have learned that...the one and only success which it is [man’s] to command is to bring to his work a mighty heart” . It is not surprising to see similar themes in Holmes’ words in the 50th anniversary reunion, 1911, of his 1861 class. But very similar threads appear in his talks on “the Law”, 1885, and “The Profession of the Law”, 1886. He sounds similar themes when he is talking about all intellectual pursuits, not just the practice and study of law.

This quest for happiness in the broad sense is for Holmes both descriptive and normative: People should act this way to gain a meaningful life, and this is the only life worth living. Many people, from all walks of life, in fact live this way, and feel empty and frustrated when they feel their lives are meaningless. Nonetheless, on the descriptive side, Holmes seems to oscillate between thinking, on the one hand, that the quest for meaning is universal, and, on the other, that most people in fact do not lead meaningful lives or seek them.

It’s not very clear what may give human life significance. At times it appears that greatness in life is one way of gaining meaning, but it is not clear what this ‘greatness’ may mean. It may mean a high degree of professional competence, mastering one’s calling. It may also mean just a passionate and determined dedication to whatever pursuit one chooses or happens to be, including fighting a war. Or, if we take more seriously the part of connectedness to ‘the universe’ and ‘the infinite’, significance is gained by the acceptance of one’s place in the universe. While religion and a sense of holiness serve as sources of meaning for some, secular souls need a different way. Seeking honor, fearing disgrace, says Holmes, are not bad ways of doing this.

So in some senses, the possibility of living greatly is open to all individuals, in all pursuits, and does not require either education or contemplation. But the kinds of examples Holmes gives to greatness, and the kinds of qualities required for achieving it, suggest that greatness is going to be the prize of the very few, and that even the peace of knowing that one tried hard and thus lived belongs to a small elite . On the other hand, there is a great human humility in Holmes’ position. People, however accomplished, should not see themselves semi-gods. They do not control most of the aspects of their lives, and the significance of their existence lies in their acceptance of their very small place within a cosmos much greater than themselves.

It is noticeable that Holmes figures of heroes, the people he often mentions as great, are philosophers, scholars, artists, soldiers, explorers. While there is here a tension between thinkers and doers, it seems no accident that Holmes does not count in the moralist, the person who articulates specific visions of the good life. Holmes exhibits a familiar phenomenon: while his explicit meta-ethics seems to be extremely relativistic and skeptical, he sees that moral beliefs are central elements in one’s humanity, and justifies, indeed values and glorifies, people’s willingness to fight and die for them, or enforce them by force. This willingness in itself is a way of living greatly. For Holmes, the fact that people are social beings, and thus have to live in societies, is one of the only basic assumptions of the human condition. Inevitably, the meaning of the life of individuals is colored by the social arrangements in which one lives.

Despite Holmes’ protected and fortunate childhood, his conception of life is not that of an easy, secure existence. This, too, is only in part a result of his early meeting with war and death. It is also the result of his analysis of human life and social arrangements mainly in terms of scarcity, conflict, struggle, power and survival. From very early on Holmes rejects as false and misleading idealized visions of society as based on harmony and convergence of interests. He also sees quite well that the strong will tend to use their power not only to perpetuate their privilege, but also to hide the fact that they are using it to this purpose. While he does not have a vision of social justice requiring serious changes in this order of the world (and he probably distrusts attempts to make revolutionary changes), he accepts quite fully that the underprivileged should be allowed to try and change the rules in their favor. If they succeed in doing that - he will object to an attempt by the powers-that-were to stop this process by invoking historical rights. Ultimately, he concedes that there may be time when the only way to solve a deep dispute is by force. He is not eager to reach this point, and he sees law as a prime way of reaching solutions that will decrease the need for resolving disputes by force. However, law may do this only to a limited degree, and if one lives in a period when law collapses, one should be willing to join the forces fighting for what is right. Holmes is thus worried that the willingness of people to fight for what they believe, and to respect those who have done so in the past, is weakening by theories suggesting that it is always better to refrain from war . Coloring all of this is Holmes’ deep awareness of the fact that sincerity and certitude are no sure signs of universal values or truth. Holmes is no skeptic in the sense that he does not care and that for him anything goes. He also offers explanations as to how it is determined what people care about - it is mainly a matter of temperament and history and early associations, and truth is more a series of ‘can’t helps’ than a ‘true’ picture of some reality. This awareness does not take away the love or the reverence. These may be so great as to justify a war. But even a war is quite consistent with admitting that the other side’s claims are just as good as ours. Holmes realizes that this vision of the status of values in the world is unsettling. He returns to his theme of acceptance one’s place in the universe as an existential way out of the dilemma:

We still shall fight - all of us because we want to live, some, at least, because we want to realize our spontaneity and prove our powers, for the joy of it, and we may leave to the unknown the supposed final valuation of that which in any event has value for us. It is enough for us that the universe has produced us and has within it, as less than it, all that we believe and love. If we think of our existence not as that of a little god outside, but as that of a ganglion within, we have the infinite behind us. It gives us our only but adequate significance.

Against this background, it is not surprising that many of Holmes’ aspirations for a good life belong on the side of honor, complexity, richness, aesthetic values, rather then on equal justice for all. The latter goal he sees as both unrealistic and possibly impoverishing. He does not seem concerned with the fact that there are many whose life is exhausted by struggling to subsist. But his skepticism goes further and deeper. The dreams of reformers and union leaders seem to him misleading because they are based, he believes, on an inadequate economic analysis. While he thinks that strikes are legitimate tools in the struggle for better wages, he criticizes the rhetoric suggesting that they may give labor, as a group, a larger part of capital’s pie. The gains of stronger workers are at the expense of weaker ones. Similarly, he insists that social arrangements are dictated by power, not by morality or justice. He resents attempts to present political agendas and social requirements in normative terms of ‘rights’ and ‘duties’. He would rather present them as attempts to use the public force of the community to promote what people in power want. Like today’s critical thinkers, he reminds us that normative terms are often used to signify that those advocating them do believe that the arrangements thus described are just, and they would like to make others see things the same way. But, says Holmes, this is in fact very different from a real identification of a preexisting right. “A dog will fight for his bone”.

Holmes realizes that individuals do not control much of their lives and their fates. The human lot is to act from the knowledge of this fact and from an acceptance of it. Yet this acceptance, for Holmes, should not lead to hedonism or indifference. To the contrary, it is this sober acceptance that permits human greatness by creating duties that transcend necessities.

Greatness and meaning are thus combinations of choices and skills, hard work and passion, persevering effort and luck. They require a constant moving and interaction between the investing all one has in the business of life - and reflecting on it while knowing that its secrets are beyond human knowledge.

2. Living Greatly in the Law

a. Law and Living in the Law

So we now know that for Holmes, a good life, a life worth living, is a life that tries to be a great life. Holmes knows that a person may live a worthy life in many pursuits, and his inclinations and family background indicated philosophy or the arts. Yet he decided to try the study of law very early, just after he graduated and before he went to the war. Initially, he was not sure the law may indeed have this potential to offer one working within it a way to live greatly. By the time he has published The Common Law he is a convert to the love of law. He finds working within the law challenging and meaningful. He likes the practical side of law, the fact that solving problems within the law put one in touch with life in all its complexity and hardship. He also has found in the law as good a starting point as any other to the highest forms of understanding of human nature, to the most imaginative generalizations.

The existence of special schools devoted to the study of law, and of professional groups, mainly lawyers and judges, whose special craft is that of using the law, suggests that all people working in the law “are united in the abstraction called the Law”. Holmes notices important differences between them. Yet they are all connected to the law, and this is what makes working in it so varied and diverse, allowing one to be a social fighter, a philosopher, a scholar or an internal doer within the same discipline.

We can start from a detailed description of the activities, and then derive insights about the nature of law, or move in the other direction, start from the idea of ‘the law’ and see the implications to acting in the law and possiways of achieving greatness within it. Either attitude may have advantages and costs. The practices of people working within the law and its institutions appear to be better subjects for study, since they are more tangible than abstract concepts. Learning about law from what people who invoke it actually do may thus seem a better way of getting an adequate account of law. However, most observers agree that even paradigmatic legal activities involve many elements and features which are either clearly extra-legal, or that their legality is questionable. Consequently, the decision which parts of the activities involved are related to law, and in what way, will itself necessitate a prior judgment about the identifying marks of law. The identification of these marks is itself a theoretical question, which will be decided, among other things, by the theoretical utility and the practical implications of alternative answers. Let me therefore start with Holmes’ answers to theoretical questions about law and show how they color different ways of acting in the law.

b. Holmes’ Theorizing about the Law

To be able to identify the elements of Holmes’ thought that belong to his theory about law we need to start with a conception of a theory of law. For our purposes - the organization of Holmes’ thoughts about the nature of law - we want as broad a characterization as possible, so that our conception of a legal theory does not exclude relevant parts of Holmes’ thought. This is not a common way of characterizing legal theories, since usually we define this term in a context in which the nature of theorizing about law is itself part of the issue. I shall thus include within legal theory statements about the definition of Law, statements about the relationships between law and morals, about ways to identify the legal arrangements of particular systems at given times, factors affecting the growth of the law and its development, and an analysis of its functions. (When the growth and development are done by courts, the description belongs also to the descriptive theory of adjudication). I also include within legal theory the normative aspect. What should legal arrangements be? Who should determine them? (When we evaluate the way courts make law, we are talking about a normative theory of adjudication). Some of these studies can be done in the context of particular legal systems or families of systems. Others aspire to have a universal application to all legal systems, and thus belong to what is often called ‘general jurisprudence’. The question about the coherence or the utility of general jurisprudence, and its relation to theoretical studies of specific legal systems, is itself an interesting question of legal theory.

Holmes offers us observations and insights about most of these questions, and he is never very clear about which of the questions he is addressing. I will indeed argue that Holmes does not offer a comprehensive and systematic answer to any of these questions, and that understanding this fact is an important part of reading his theoretical statements about the law.

The literature about these issues is huge. Many of the questions Holmes addressed are still central to contemporary debates. I believe that on most of them, Holmes’ positions are still relevant and illuminating. Rather then try to provide skeletal support for these contentions, my main concern will be to show how the holistic and integrated reading of Holmes’ attitude to law colors his observations about legal theory and contribute to its lasting influence.

The first part of the Path, often called the ‘bad man’ part or the prediction theory of law, is probably Holmes’ most frequently discussed (and criticized) attitude to law. Many consider it his proposed ‘theory’ or ‘definition’ of law: They cannot be faulted. “The Prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law” (emphasis added) does sound very much like a definition. But in the same piece, Holmes offers at least two more ‘definitions” of law: “[the] body of dogma or systematized prediction which we call the law” (emphasis added) and “The law is the witness and external deposit of our moral life” (992). According to the first, Holmes sees ‘the law’ as the body of rules (rather than prophecies) enunciated in statutes and in previous decisions, a rather conventional positivistic ‘definition’ of law. The second characterization, although offered as a corrective against the apparent cynicism the prediction theory, nonetheless suggests that the law is not a neutral body of rules identified solely by pedigree. The three definition-like statements taken together indicate that Holmes’ conception of the law would not be considered today very unique: He stresses, like most theorists of law, that what is special about it is a complex relationship between force and normativity. When one fights against theories which seem to deny this relationship, one is naturally attracted to emphasizing the neglected element. In Holmes’ time, he felt, the ethical elements of law were over-emphasized. He therefore wanted to stress that neglecting reality, force and sanctions is as dangerous in a comprehensive account of the law as neglecting its obvious connections with notions of bindingness and with moral ideas.

It is important to notice that in the prediction theory itself, Holmes ‘imports’ this ambiguity into his account. The definition is given, at least in part, as a response, on behalf of the ‘bad man’, to definitions of the law in terms of deductions from principles of ethics or reason “which may or may not coincide with the decisions”. Holmes wants to point out that definitions of law in terms of rules may misguide, because deductions from the rules are not always the same as the decisions actually reached. The difference is explained precisely by the fact that both legislative judgments and judicial opinions are reflections of perceived moral necessities, not of logical derivations. In other words, to predict what the court is likely to decide, knowledge of its moral beliefs is no less important than familiarity with previous decisions and statutes and with canons of logical derivation. Law is the reservoir of our moral life just as it is the reality of what courts of law actually decide.

We should do well, therefore, not to rehearse the weaknesses of the prediction theory of law. As noticed by many, it is a bad definition of law if it is seen as an answer to the question what makes law a distinct social institution, either as a theoretical matter or for other practical purposes. For instance, it belies the experience of appellate judges, or all judges, who seek to apply the law, not to predict how they will decide. Rather, we should assess it by evaluating the sentiments about law and its study that Holmes was trying to impart, and the dangers he was trying to avoid.

Holmes’ account is supposed to show the fallacies of accounts such as Langdell’s, for whom law is a conceptually and ethically coherent system of norms, which dictates judicial decisions. This is a claim on the level of the nature of law and of legal reasoning. The same account is also designed to show that the law should be ‘purified’ of moral terms, so that the truth that standards of legal responsibility are, and must be, external and objective, can be clearly seen and applied by all. This is a claim of the level of both ‘necessary’ and contingent principles of liability, with implications to the language of legal terms. It should be clear that these goals are different, and it would be very surprising if one account could achieve both of them together.

Holmes emphatically denied that law was, and should be presented, as a preexisting consistent and eternal system, whose general arrangements, and specific decisions within it, were identified by deduction from these axioms. He thought law was a man-made attempt to solve social problems and conflicts. He believed consistency was an ideal law strove to achieve, but that could never be attained, in par because of the nature of legal development by specific decisions of legislators and courts, each driven by a host of considerations having nothing to do with logic or universal principles, depending to a large extent on accidents of what cases got to the court or what circumstances triggered legislation. . He further believed that actual legal arrangements were on the whole justifiable, because they reflected considered judgments about what should be the case, but could contain, and often did contain, many bad and stupid arrangements. Clearly, these beliefs about the law and the way it is made and developed have clear implications to the way law is taught, practiced and applied by judges.

Holmes’ insistence that to understand law we must concede its’ social fact’ aspect, this need to distinguish between the law as it is and the law as it should be, is common to all positivistic and realist theories of law. This is the part of Holmes’ work that received the most extensive critical appraisals. After WW2, with the general attack in both Germany and the US on positivism and realism as theories facilitating Nazi atrocities in the name of the law, it has been argued by many that the dangers of confusing legal and moral ideas were very small when compared to the dangers that materialized under a climate stressing that the law should not be confused with morality. If only Germans had less of a positivistic approach to law, it was claimed, if only they had accepted that law is “the witness and the deposit of our moral life”, things might have been different. I have my doubts about this, and I cannot enter this fascinating debate here. When statements are taken out of context, there are almost no limits to what they can support. But the reader of The Path will easily see that Holmes is not talking (as Hart and Fuller are) about the relationships between the definition or the identification of law and the obligation - real or perceived - to obey it. His concern is that people may be misled by their conceptions of law not to give individuals adequate legal advice, or with the dangers of reaching bad judicial decisions, if one confuses the decisions as they are likely to be with the deductions from principles, or takes expressions such as ‘duty’ or ‘ intent’ or ‘malice’ in their ‘moralistic’, extra-legal, meaning.

We should note that Holmes here talks on at least two levels - that of a theory of law and its development, and that of the desired principles of liability. Holmes should be the first to see that the first is a theoretical level, the second a matter of policy. His ambiguity on these issues has earned him the justified criticism of many writers.

On one level, when Holmes argues for the ‘purification’ of moral terms from the law, he is probably referring to the English distinction between rights and remedies. He wants us to derive rights from remedies, not remedies from rights, so that we stay close to the reality of decisions, not to normative claims which may not have a real basis in actual decision. But the theoretical questions of the adequate ‘definition’ of a legal duty or the debate whether ‘duty’ or ‘sanction’ should have primacy in our presentations of the law, on which there are strong (though not conclusive) arguments for Holmes’ position, seem to be quite different from the question whether a person’s actual attitudes and motives should be an element of legal liability. Whatever our account of the concept of a legal right or duty, there is a policy debate about the question whether we should impose a duty (or specify that a sanction be applied, and in fact enforce this rule so that such enforcement may be predicted) only on those with actual foresight and wish (intent in the strict sense), or on those who were negligent as well.

At times Holmes suggests that the move of the law to ‘external’ (i.e. non-subjective) standards follows necessarily from law’s nature. If this is the case, this is a conceptual claim about law in all places and at all times. At other times the claim is simply historical - in fact that law moved from revenge to external standards. As a matter of description, one can question whether this was indeed the trend, and seek the reasons for this development. If these reasons are deeply embedded in facts about human nature and human society, the trend may indeed be universal. At still other times Holmes presents the questions as matters of policy. On the policy issue, he sometimes takes a clear position in favor of external standards in all fields of law, at others he advocates a more differentiated approach, and anyway concedes that the question cannot be answered once and for all in all contexts.

Many have noticed the confusion in Holmes’ views on this issue, his inattention to the distinction between description of developments and their evaluations, and the weakness of both his historical and his normative claims . For my purposes, however, the important point is the connection between Holmes’ views on the bases of legal liability, existing or desirable, and his conception of the nature of law and of the enterprises of theorizing about law, practicing it and studying it.

Again, Holmes is ambiguous. On the one hand, he seems to propose a very narrow, professionalized, ‘internal’, ‘purified’ and realistic perspective on the study of law. On the other hand, he seems to argue that even legal practice cannot be ‘great’ without expanding the scope of study and understanding. Holmes’ criticism of the habit of studying Roman Law and his definition of theory as the more generalized part of law (PL 1005), as the attempt to arrange the existing legal materials of one’s legal system in the most accessible way, support the first view. The reading of The Common Law as an elaborate exercise in describing US law as it stood at the time leads in the same direction. On the other hand, the other strands in The Common Law and Holmes’ own observations about the importance and indispensability of external and theoretical perspectives about law go in the other direction.

The two themes are combined in a complex way in Holmes’ recommendation of the way one can acquire a good understanding of one’s legal system. Holmes identifies three stages in such a pursuit: In the first, one uses jurisprudence to follow existing dogmas into their highest generalizations. In the second, historical studies are used to understand how the law got to be the way it is. Third and last is the attempt to evaluate the success of the various rules in attaining their goals.

The three stages may seem to stand on both sides of the divide between specific and general jurisprudence. On the one hand, all these studies may be centered around a given legal system in a given time. Existing dogma, the way it got there, and the goals rules are designed to serve are all ‘empirical’, that is contingent. But ‘the highest generalities’, on both description and evaluation, often do apply to all human societies at all times. Thus, when Holmes emphasizes that the purpose of his theoretical choice in the prediction theory is to take account of the fact that bad men are as interested in legal sanctions as are moral men, he is talking of all people in all legal systems, not just about ‘bad guys’ in his own USA. Similarly, Holmes illustrates his claim that there are in fact limitations on the power of legislatures, stemming from the limits of public acceptance, by an example from Germany.

The three stages similarly stand in an unclear position concerning the internal-external divide. Clearly, the identification of the law on a given question (stage 1) is the paradigmatic activity of actors within a given system of law. At least in some senses, understanding the way the law got to be what it is, and clearly evaluating it, are very different, and are governed by different disciplines. The lawyer, as such, seems to have no special competence in such activities. However, in actual or idealized accounts of adjudication, is it really the case that we can draw these distinctions so clearly? Let’s take the test case of the situation in which we identify the law (first stage), understand how it was developed (stage 2), but reach the decision (at stage 3) that the rule, for historical or other reasons, is a ‘bad’ rule. Are we bound to say that the present law is bad, and should be changed in the proper ways? Or do we in fact collapse the three stages into one, identifying the law in part on the basis of our evaluative judgments? It seems as if Holmes, together with most judges and scholars, oscillates between the two attitudes depending on his vantage point and his role. His theorizing about law explains and illuminates this oscillation, as we shall see when I talk about the implications of his theories to adjudication.

As we shall see, Holmes devotes much of his time to a theory of how judges develop (and should develop) the law. He insists that judicial development in the law is ‘legislative’ not only in the sense that it changes the law, so that after the decision it is not identical to what it was before it, but also in the more profound sense that it is directed by the wish to achieve social goals, even if judges do not usually mention those, and when they do, they seem to be apologizing.

It should be stressed that Holmes’ analysis of the law as a human tool that should be judged by its ability to achieve human and social goals does not affect his ‘definition’ of law in terms of prediction, or his assessments of the limits of human knowledge to identify goals and the right means to achieve them. His estimate is that the actual development of the law, both via the common-law and through legislation, has been on the whole good (law’s history “is the history of the moral development of the race”) , but that there are still many instances in which the law as it exists may be improved. He also thinks people working in the law should seek to improve it, and has his own version of what this improvement should look like. While Holmes is very aware, and not always clear, about the constraints judicial development of the law imposes, he is quite clear about the social basis of legislative reforms. These are simply the reflections of the perceived interests of the group which has social power. Luckily, these interests include some showing of sympathy, some concern to protect the welfare of the weak, an interest in creating a market by enabling the increase of consumption by all. But, as we saw, Holmes sees the world as a place of conflicts and struggles, and is very distrustful of attempts to change this situation radically by invoking the validity of ideal moral principles. This is why he is skeptical of notions such as ‘natural rights’ and their claim to universal validity. On the other hand, Holmes is quite aware that people may be willing to fight (in the broad sense, in all kinds of ways which are not necessary military) for what to them seem important and good. Indeed, we saw that this willingness to fight, and to obey while fighting, is one of the ways to achieve greatness. Consequently, peoples’ conception of the good may triumph when it is combined with the required political power. It is important to see that while Holmes’ descriptive theory of legislation emphasizes realities and power, it does not reduce all human motivations to material interests. To the contrary, a way of achieving greatness in life is precisely fighting for what one believes in (even if one also believes that one’s own ideals are not necessarily valid).

Not surprisingly, Holmes’ normative theory of legislation is more elusive. He seems to share without much enthusiasm and hope something like Bentham’s vision of a law reflecting the best cost-benefit analysis of social policies. In this sense, the person of the future is the economist. But this is a hope for the goals we share, where we debate about the proper means to reach them. In principle, under such circumstances, we are all interested in efficiency (at least within some constraints). Holmes seems almost silent on a substantive normative theory of legislation. He is very explicit that the kinds of constraints based on an expansive reading of ‘natural rights’ and ‘freedom of the will’ seem to him confused and wrong. He is not a supporter of the idea of ‘rights as trumps’: ‘rights’, that is benefits the law gives individuals, should not defeat the welfare of society, and it is not true that society should never sacrifice individuals. On the other hand, he is quite willing, at times, to advance arguments that support a social decision to protect liberty in a given area, believing that such protection does serve the welfare of society at large. Such protection may well require or justify the recognition that the legislature does not have the power to impose certain legal sanctions on behavior that the constitution sought, for social welfare reasons, to permit.

I shall now use this very skeletal account of Holmes’ theorizing about the law to examine its implications to the varieties of ways of acting within the law. Holmes’ theorizing about law is clearly not exhausted by his ‘definitions’ of law. Yet even these definitions encompass a great scope for varied activity and ways of finding meaning within the law.

c. Implications of Holmes’ conceptions of law to Ways of Working in the Law

We saw that Holmes’ integrated vision of law, its development and its functions is much richer and more complex than a narrow reading of the prediction theory of law suggests. There is law as the body of dogma that is identified as ‘the law’ by students and scholars. There is the social institution which is deeply embedded in both tradition and morality, which is a central tool in the self-government of society. This social institution is constituted, at any given moment in time, by the body of dogma and by the activities of legal actors. These legal actors, in turn, are not of the same sort and do not perform the same functions. All of them act in ways that relate in complex ways to the body of preexisting dogma.. Members of all the three groups I mentioned - judges, lawyers, and teachers-cum-scholar - may make important contributions to the development and the application of law. Indeed, Holmes stressed that these contributions may be inter-related in important ways. In this section I will seek to connect what Holmes’ said about these ways of working in the law to his integrated vision of law. My emphasis is on the internal richness and complexity of Holmes’ thought, rather than on the way it may fare in contemporary debates.

C.1 Implications to Adjudication

Despite the inter-relatedness of contributions all kinds of lawyers to the law, American legal culture is known for its singling-out of, and preoccupation with, judges, especially Justices of the Supreme Court. This elevation of judges is reflected in the fact that most American legal theories define law through the activities of judges. It may go back to the Tocquevillian insight that on of the defining marks of the US political community is that, sooner or later, all major public questions reach the court. I have no doubt that Holmes’ endurance owes much to the fact that he spent the last third of his life as a Supreme Court Justice, despite the fact that it may well be that his judicial decisions are not the most valuable part of his heritage. This prestige of Justices is of special interest because in a way all other legal actors reinforce it: the people who generate courts-based legal theories are usually legal scholars who are not themselves judges. Similarly, those who make the Justices into heroes are the people in the media and those who teach in the law schools and write Justices’ biographies.

This importance of judges may be the result of an important insight stressed by Holmes and others: Judges, unlike other legal scholars, are the vehicles of the authoritative use of political force. Because of this fact, it is judges, rather than other legal and political actors, who can make binding decisions in particular cases, and can thus influence actual development. Because of this, their arof general norms, whether declarative or legislative, is the most authoritative and the one affecting the development of the law and its symbolic and educational visibility.

Judges, the bench, are the most coherent group of actors-in-the-law. The task of all courts is basically identical - to examine ‘cases and controversies’ brought before them according to rules of jurisdiction, and decide them. The usual picture of this process, supported by Holmes, is that judges in fact decide cases, and should do so, by starting from the pre-existing body of legal dogma (first-stage law) and applying it to the cases brought to them. In the US, all courts must, while exercising this duty, decide also whether the law in question is constitutional. If the law is deemed unconstitutional, the judge, in all courts, may declare its unconstitutionality. Courts in common-law jurisdictions do not have the option of non-liquet - the declaration that preexisting law does not decide the case.

While the basic judicial function is the same, there are important differences between courts. Some are courts of general jurisdiction. Others, like the Supreme Court, can choose their cases. Courts of first instance usually devote a lot of their time to fact-finding, whereas courts of appeal usually deal with questions of law. Finally, there is a major difference in the precedential impact of decision between various courts. Consequently, the counter-majoritarian difficulty works differently for different tribunals. Especially in supreme courts, a basic tension may emerge between the perceived justice of the case, and the general principle on which the decision is based and justified. These two goals of good adjudication yield two conceptions of greatness in judging. One conception of greatness relates to the wisdom and attention and good judgment required for doing justice in the case, the other has to do with the ability to enunciate and articulate general legal norms and the values that underlie and justify them.

When we talk about ‘greatness’ in judging, under either conception, we become aware of the difficulty in maintaining a structured distinction between descriptive and normative theories of adjudication: Judges try to do what they think they should do. To the extent that they can be and are successful, a descriptive theory of adjudication is a description of both what judges do and what they should be doing. However, we all know that there is critical commentary of judicial decisions and practices, from both within the court and from the outside. Such commentaries presuppose that we know how to distinguish between what judges and courts do and what they should be doing. Moreover, it presupposes that the canons for describing what judges are doing, even if they include a reference to their purpose and to their sense of what they should be doing, are different in kind from the criteria we use for evaluating their performance.

We shall see this difficulty more clearly, when we try to start with descriptive questions. Theory of law and theory of adjudication are connected by a persistent descriptive-theoretical controversy: are judges (necessarily, always, or primarily) ‘finders’ or ‘makers’ of law? Some theories stipulate that judges are finders of the law, and that this conclusion is derived conceptually from the nature of law, from the nature of language, or from a combination of these. Other scholars point out that legal rules cannot logically bind, that deciding a case always requires a specific normative judgment, and thus that judges always and necessarily transcend pre-existing law in their judgments. Less radical critics suggest that even if rules can bind, a careful analysis of judicial decisions will show that they do not: judges in fact do what they want, and their proffered justifications are rationalizations, skillfully invoking the rules. Some theorists think these debates are legal-system-dependent, while others argue that while there may be differences in detail, the basic structure of adjudication is identical in all systems, thus belonging to ‘general jurisprudence’.

These are among the main controversies of contemporary jurisprudential debate. For our purposes it is important to note that they are eternal problems of jurisprudence. Not surprisingly, Holmes addresses them. Not surprisingly, we can find statements by Holmes that may be seen as supporting either of the two extremes. In fact, as we saw, he spoke more provocatively against the ‘noble dream’ version, according to which the judges were declarers of conclusions which followed inevitably from pre-existing standards, because the ‘nightmare’ vision, of arbitrary, politicized and unbound judges, was not so vocal in his time. But careful readers of Holmes see that his position suits his rich and complex conception of law: Laws can bind, and usually they do. We usually can identify