Holmes The Common Law

Even with all the criticisms levelled at it, The Common Law remains an instructive and pioneering book that has by no means lost its essential power. A work of such insight transcends temporal bounds and is — or at least should be — rediscovered anew by successive generations. The work is not static. It bends, and is bent by, each new audience that encounters it. As Holmes wrote in a letter to Harold Laski in 1919, he — Holmes — “started all the inquiries that since have gone over many matters therein. Every original book has the seeds of its own death in it, by provoking further investigation and clearer restatement, but it remains the original and I think it is forgotten how far that is true of The Common Law.” This casual comment by

When Holmes talks of the “failure of all theories which consider the law only from its formal side” of logical deduction, he is frankly acknowledging the crucial role played by experience and even irrational forces. Considered from the perspective of intellectual history, The Common Law may be part of the “revolt against formalism” in many fields, the struggle between “rationalists” and “empiricists.” In this account, everyone from Descartes to Bacon to Hume is engaged in one long battle over whether truth is to be found “in here,” through strictly logical reasoning on the model of mathematics, or “out there,” through observation of the

In this model, Athens represents reason and Jerusalem represents revelation. Holmes’s The Common Law, with its focus on the real world, might well be associated with Athens, and the theological abstraction of legal formalism with Jerusalem. Holmes would join the company of Voltaire and Locke. Legal formalists are analogous to the medieval theological schoolmen, like Thomas Aquinas, who developed fine spun webs of logic from a given premise of fixed and closed principles.

In some ways, Holmes’s approach resembles Edmund Burke’s political philosophy. Burke opposed the French Revolution because it embodied radical, abrupt, violent change. Instead he favored incremental change with due regard for tradition and social and political institutions. The government of human beings, he argued, is a matter not of applying cold rules and principles, but of attending to warm relationships and attachments to produce the strongest and best unified community. Change, Burke thought, should be