Oliver Wendall Holmes, Jr. (1841-1935) was the son of a physician and writer who was a significant figure in 19th century American literature. After some years of private practice in the law, the younger Holmes served for 20 years on the Massachusetts supreme court and then 30 years on the U. S. Supreme Court (1902-1932).
Holmes was closely associated with the founders of the American philosophical movement known as “Pragmatism,” and his views on the nature of law are easy to tie to a key tenet of pragmatism, which is due to C. S. Peirce (1839-1914): “Consider what effects, that might conceivably have practical bearings, we conceive the object of our conception to have. Then, our conception of these effects is the whole of our conception of the object” (“How to Make Our Ideas Clear,” Popular Science Monthly, vol. 12, 1878, p. 293).
Near the end of Holmes’ life, ideas like his were developed by a new generation of legal theorists. They linked the study of the law to sociology (as in Karl Llewellyn’s “A Realistic Jurisprudence—The Next Step,” Columbia Law Review, vol. 30, 1930, pp. 431-465) and psychology (as in Jerome Frank’s book Law and the Modern Mind, Brentano’s, 1930). This movement acquired the label “American legal realism,” and that label is often applied to Holmes also. Llewellyn provided a simple statement of the American legal realists’ point of view (a statement whose simplicity he came to regret) in his introduction to the study of law The Bramble Bush (1930): referring to “judges or sheriffs or clerks or jailers or lawyers,” he said there, “What these officials do about disputes is, to my mind, the law itself” (p. 3).
After an introduction (pp. 457f), Holmes’ lecture can be divided into a series of four main points: the importance of distinguishing law and morality (pp. 459-464), the relative role of logic and social policy in judicial decisions (pp. 465-468), the role of the history of law in legal education (pp. 468-474), and the importance of jurisprudence (pp. 474-478). Although I recommend that you read the whole of the lecture, it is the introduction and the first two of the points following it that will be the focus of our discussion in class.
• In the introduction, pay special attention to the idea that statements of law are predictions of court decisions. Notice, in particular, the secondary role Holmes gives to statutes.
• The key idea in Holmes’ distinction between law and morality is the point of view of the “bad man.” Think whether this “cynical acid” (p. 462) serves to clarify our thinking or to distort the ideas dipped in it.
• Holmes’ comments on logic, and indeed the whole rest of the lecture, echo what he says at the beginning of his book The Common Law (pp. 1f):
The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every stage. The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.
The clearest echo of this in the lecture is his claim that “behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding” (p. 466). And his strongest statement of the alternative to logic appears in his reference to judges’ “duty of weighing considerations of social advantage” (p. 467).
• Much of the thrust of the third and fourth points of the lecture can be seen in two places: Holmes’ comments on the study of economics on p. 474 and what he says about the “way to get to the bottom of the subject” on p. 476.
I’ve directed you to JSTOR for a PDF version of Holmes’ lecture as it was originally published, but you can also find it in the text browser on the course Moodle site. The lecture was also reprinted with later editions of Holmes’s book The Common Law (whose first edition, 1881, appeared before the lecture was written). That book itself is also a good source for examples of Holmes’ view of the law (I quoted it above in that regard), and it’s also in the text browser.