Oliver Wendell Holmes - The Path of the Law and The Common Law

Oliver Wendell Holmes said: The right to swing my fist ends where the other man's nose begins. I first heard these words quoted by my eighth-grade history teacher, who loved Holmes, and taught me to revere his work. The phrase became one of the guiding principles of my life, reminding me to respect the rights of others through the rule of law. It's the reason I became a lawyer. I'm honored to introduce The Path of the Law and The Common Law, considered by many as two of Holmes seminal works. But to be frank, it's an intimidating task. How does an everyday lawyer go about commenting on this beacon of jurisprudence?

Sure, I'm a published writer, but Holmes sharp and crisp words echo in my ears as if they had tumbled from the marbled halls of the Supreme Court: Speak clearly, if you speak at all; carve every word before you let it fall. His pithy commentary, sharpened by his years of writing, would intimidate even Strunk and White: Detached reflection cannot be demanded in the presence of an uplifted knife.

Enough handwringing! As Holmes would whisper in my ear, When in doubt, do it.

Let's put what you're about to read in context. Holmes was the son of a well-known New England physician who had also gained fame as a writer. His grandfather, Abiel Holmes, was a clergyman and, unsurprisingly, a famous writer as well. Holmes was named for his father, Dr. Oliver Wendell Holmes, Sr, who taught him well, training his mind almost from birth. As reported in Holmes obituary, the boy was to start each day at that autocratic breakfast table where a bright saying won a child a second helping of marmalade. Holmes was born in Boston, married, but had no children (though he and his wife adopted and raised a young cousin). He served in the Civil War for three years, suffered bullet wounds three times, and fought in many famous battles, including Antietam and Fredericksburg. He left the Union Army as a Brevet Colonel.

Holmes was a successful young attorney and became the editor of The American Law Review in 1870. After resigning his position as a professor of law at Harvard University, Holmes took his seat on the bench of the Massachusetts Supreme Court at age 41. The Harvard Law Review published The Path of the Law five years before Holmes became Chief Justice of the United States Supreme Court. President Theodore Roosevelt nominated him to that position, and the Senate immediately and unanimously confirmed it. Despite the passage of time the text is over 100 years oldthis book is as relevant now as when it was first written. Another luminous writer of U.S. law, Supreme Court Justice Benjamin N. Cardozo, commented on Holmes The Common Law that he packed a whole philosophy of legal method into a fragment of a paragraph.

High praise, indeed.

Holmes' writings have not escaped all criticism, however. As constitutional scholar and Dean of the University of California at Irvine, Donald Bren School of Law, Erwin Chemerinsky called it, Holmes wrote some of the most offensive language found anywhere in the United States Reports. Upholding Virginia's sterilization statute, Holmes penned the majority opinion in Buck v. Bell, 274 U.S. 200, 207 (1927), writing, It is better for all the world, if instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind three generations of imbeciles is enough.

To understand his position, though, realize that this brilliant man believed laws passed by legislatures should be upheld, and that he did not suffer fools lightly. Controversy equalizes fools and wise menand the fools know it, he once said. He argued that judges should exercise restraint and not imprint their personal beliefs on jurisprudence. The Buck v. Bell opinion may be the only anomaly in that armor, but in the context of Holmes life it has its place. Holmes would likely respond to critics as he writes in The Path of the Law, nothing but confusion of thought can result from assuming that the rights of man in a moral sense are equally rights in the sense of the Constitution and the law. He might also comment, To reach a port we must sail, sometimes with the wind, and sometimes against it. But we must not drift or lie at anchor. Certainly he was not a man to stand still.

Holmes was not without his humanityeven in his nineties. As Isaac Asimov noted in The Sensuous Dirty Old Man, Holmes, in his last years, was walking down Pennsylvania Avenue with a friend, when a pretty girl passed. Holmes turned to look after her. Having done so, he sighed and said to his friend, Ah, George, what wouldn't I give to be seventy-five again.

Holmes lived until age 94, and is buried alongside his wife in Arlington National Cemetery. He was eulogized by Chief Justice Charles E. Hughes, Jr, who wrote, Eager young students of history and the law, with no possibility of an introduction to him, made pilgrimages to Washington merely that they might remember at least the sight of him on the bench of the Supreme Court. Others so fortunate as to be invited to his home were apt to consider themselves thereafter as men set apart.

Pull up a chair, crack this book's spine and sit at the feet of a rare genius in the law. Read on and make your own pilgrimage. It is a path well worth walking.

J. Craig Williams, Esq,

Newport Beach, California,

August 2008.

When we study law we are not studying a mystery but a well-known profession. We are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court. The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees. People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.

The means of the study are a body of reports, of treatises, and of statutes, in this country and in England, extending back for six hundred years, and now increasing annually by hundreds. In these sibylline leaves are gathered the scattered prophecies of the past upon the cases in which the axe will fall. These are what properly have been called the oracles of the law. Far the most important and pretty nearly the whole meaning of every new effort of legal thought is to make these prophecies more precise, and to generalize them into a thoroughly connected system. The process is one, from a lawyer's statement of a case, eliminating as it does all the dramatic elements with which his client's story has clothed it, and retaining only the facts of legal import, up to the final analyses and abstract universals of theoretic jurisprudence. The reason why a lawyer does not mention that his client wore a white hat when he made a contract, while Mrs. Quickly would be sure to dwell upon it along with the parcel gilt goblet and the sea-coal fire, is that he foresees that the public force will act in the same way whatever his client had upon his head. It is to make the prophecies easier to be remembered and to be understood that the teachings of the decisions of the past are put into general propositions and gathered into textbooks, or that statutes are passed in a general form. The primary rights and duties with which jurisprudence busies itself again are nothing but prophecies. One of the many evil effects of the confusion between legal and moral ideas, about which I shall have something to say in a moment, is that theory is apt to get the cart before the horse, and consider the right or the duty as something existing apart from and independent of the consequences of its breach, to which certain sanctions are added afterward. But, as I shall try to show, a legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court; and so of a legal right.