Oliver Wendell Holmes Jr. and Path of the law and questions and dewey and legal realism

The purpose of this page is to describe the intellectual influences that gave birth to the legal realist movement and to present some thoughts/questions to help us understand "The Path of the Law." A few preliminary remarks are necessary. First, as both Feldman and Bix point out, legal realism may best be characterized as a "mood" or "temper" rather than a specific "movement" or "school." It is an approach to law shaped by the developmental or evolutionary spirit of the times. Second, I think it is best to divide American Legal Realism ("ALR") into two "generations"--the first being influenced by Holmes and Pound and the second being primarily influenced by John Dewey and the world of social scientific inquiry in the academy and the first days of Roosevelt's New Deal (mid 1930s). The three leading figures, in my mind, of the ALR all remarkably lived into their 90s...OW Holmes, Jr., Roscoe Pound and, above all, John Dewey. The second generation was inspired by Dewey in a Columbia University seminar in 1922 when he stressed the need for "empirical research" in law--the second generation of realists were committed to empirical research--as Feldman points out.

Intellectual/Political Influences on Legal Realism

The most prominent influences on the development of ALR were: 1) pragmatic philosophy--James and Dewey; 2) progressive politics, beginning with TR and continuing through Wilson's Presidency; 3) the growth of the social sciences, especially sociology, as instruments through which society could be "perfected"; and 4) the dominance of the historical or evolutionary paradigm, which provided that law, like other things, developed and was shaped by (and confined by) its history. This is particularly evident in Holmes' essay, "The Path of the Law." I think Feldman makes a helpful distinction when he talks about history and the Realists. The "older" historical approach, of Maine and Savigny (p. 105) tried to show law as developing out of the culture, a kind of "Volkssprach," while the "newer" historical approach was influenced by Darwinian science and the sense that law developed and that its development both enabled and confined legal and social institutions.

Holmes (1841-1935) and the Path of the Law (1897)

OW Holmes, Jr. is probably the most famous American legal thinker and jurist. He served both on the Supreme Judicial Court of Massachusetts and the United States Supreme Court (1901-1932). In studying Holmes there is the man and the myth of the man. People are usually much more interested in the latter than the former. Aiding the development of the "myth" of Holmes are his epigrammatic statements, pithy remarks that he made on a number of subjects, remarks that are endlessly quoted today by those who love cliches. Yet, a sentence can also reflect a temper, an approach that should not be lost. The focus of class today, I hope, will be on his 1897 lecture at Boston University which has become recognized as probably the most significant law review article ever written. Almost every paragraph of the article ought to stimulate reactions. Here are some questions to help you think through the article.

Questions/Thoughts on "The Path of the Law"

1) From reading this article, how would you characterize the temper of Holmes' mind? What kind of thinker is he?

2) What does he mean when he says that "the object of our study is prediction, the prediction of the incidence of the public force through the instrumentality of the courts"?

3) If Holmes is so interested in "prophecies" and "prediction," what is the role of history for him? Why study it, or is it worthless?

4) When he says, "The number of our predictions when generalized and reduced to a system is not unmanageably large. They present themselves as a finite body of dogma which may be matered within a reasonable time"..who does he sound like, especially the second sentence?

5) What does he mean when he says, "If you want to know the law and nothing else, you must look at it as a bad man..."?

6) Central for Holmes is a distinction between law and morality. This distinction marks him as a positivist, of course, but what does he mean by this and how does he illustrate it?

7) What does he mean when he says, "The fallacy to which I refer is the notion that the only force at work in the development of the law is logic"? Who might have made such a claim? Do you know of any other epigrams of Holmes relating to law and logic? How does he approach the issue of the relationship of law and logic?

8) My thesis about Holmes is that his goal is to demystify legal language and develop a language that truly reflects what is going on in judging and legal decision. He wants to be sensitive to the way that social advantage is at play in law; that history can help explain where we are in law; that the emergent social sciences can aid the lawyer. Reactions? (Note one of his more famous epigrams from this essay --"For the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics.")