Community and Contingency

For my thoughts on the first essay of Louis Menand's American Studies, "Henry James and the Case of the Epileptic Patient," click here.

"The Principles of Oliver Wendell Holmes"

Oliver Wendell Holmes (1841-1935), Supreme Court Justice from 1902 to 1932, was a man of many sides on whom no label seems to stick. He has been called "a progressive, a liberal, a civil libertarian, a democrat, an aristocrat, a reactionary, a Social Darwinist, a fascist." But, according to Louis Menand, such labels assume that Holmes was concerned about the real-world consequences of his ideas. Actually, Holmes's 1881 book The Common Law posits, basically, that common law decides the outcome of a case first and then attempts to justify said outcome by resorting to abstract legal principles. Nineteenth century legal thought believed in formalism: that a general legal principle can be deduced by looking at a sequence of related cases. Holmes disagreed.

Holmes, in his approach to law, has been called "a formalist, a positivist, a utilitarian, a realist, a historicist, and a pragmatist (not to mention a nihilist)." Problem is, says Menand, supporters of each term tend to spend more time arguing why the others are wrong than trying to defend their own beliefs. Furthermore, such labels ultimately reduce the law to a bare essential, which was precisely what Holmes tried not to do. Once a case is introduced, it brings with it a whole matrix of "discursive imperatives." The final decision must be in sync with past decisions rendered upon similar cases. The decision must be beneficial to society as a whole. Preexisting legal doctrine must be bent to fit changing social norms. Bad must be punished and good rewarded. Costs must be redistributed to the party who can best afford them (Menand uses the example of car crash victims and insurance companies). Naturally, of course, judges want their decisions to be agreeable with their own politics, although they prefer not to admit this. And finally, binding the whole vortex together is what Menand calls "the meta-imperative": the desire to phrase everything so that it appears that no single one of these imperatives was decisive in determining the outcome at the obvious expense of the others.

So what decides cases? What apparently extralegal mechanism is the true force behind the scenes, which formal legal language merely supports after the fact? In Common Law, Holmes sought to articulate what exactly this force was.

In a nutshell: it's culture.

Holmes preferred the word "experience," which he saw as everything - values, prejudices, sentiments, and so forth - that evolves out of the individual human's lifelong reaction to their environment. Experience, he theorized, cannot be reduced to propositions; though the "pleasure of life is in general ideas," such general ideas cannot be utilized to solve specific problems. They must be deduced. First people decide, then they deduce. To train lawyers in "black letter law" - that is, to train them using only the abstract legal arguments upon which cases are ostensibly decided - is to train impotent, useless lawyers. The reality is, according to Holmes, that pretty much anything can go into a judge's decision. And if the general consensus is that the judge arrived at the right decision, then experience is therefore perfectly legitimate legal material to work with. In other words, the law is not based on some neo-Platonic, higher-level objective authority. As the instrument by which society regulates moral conduct and enforces social rules, the law is firmly rooted in the here-and-now.

Now since individuals rooted in the same culture must necessarily have sufficiently similar experiences (so Holmes thought), a second feature of common law is "the reasonable man," a "statistical fiction" who represents the average of all individual experiences. "The reasonable man" is what one expects a sound, prudent member of their society to look like. He is particularly well-known as the protagonist of modern liability theory. Society acts as an external regulator of each citizen's activities and seeks to prevent careless members from disrupting its smooth functioning. In a negligence case, the defendant's intentions or state of mind are irrelevant. (It's all rather Borg-like.) "A man may have as bad a heart as he chooses," Holmes explained in Common Law, "if his conduct is within the rules." What matters is that the defendant did somehow cause damage or injury, and this is where we return to experience, which is the basis for deciding whether a particular act or omission constitutes negligence. A reasonable man's experience tells him what the probability of injury is in any given situation (i.e. target practice in a populated area); added to this is the weight of the costs of avoiding injury against the social benefit of the hazardous practice in question (like working with explosives or toxic chemicals). Eventually, Holmes believed, formal legal doctrine in such cases will become archaic, as science and practicality take precedence over abstract concepts.

Unfortunately, what Holmes failed to factor in is how widely experience varies once you consider age, gender, location, sub-culture, culture of origin, and other such variables. One of Holmes's most famous screw-ups was the case of Baltimore & Ohio Railroad v. Goodman (1927). A motorist had died at a railroad crossing because his view of the track was obstructed. Holmes at the time was an 86-year-old man who had never driven and had been born decades before the invention of the car. In his mind, the motorist should have stopped the car, gotten out, and looked up and down the track before crossing it. Of course, such actions are not customary when driving and would likely disrupt traffic. But Holmes's experience didn't teach him this.

Still, the "imprecision factor" was an important third element of Holmes's theory of common law, which simply says that experience is amorphous and we should never treat a prediction as a certainty. You can start out with a seemingly concrete principle which appears to be of great help in deciding a large number of cases. As you expand outwards, however, you find that this principle actually rests on a shifting foundation of politics, sentiments, beliefs, intuitions, and so forth, and is therefore emptied of predictive force once you step back far enough. Menand uses the example sic utere tuo ut alienum nom laedas, which is generally interpreted to mean that a citizen can use their property any way they want to, as long as said use does not injure another citizen's property. But, said Holmes in Common Law, this also means that an arsonist who uses his matches to burn down a mom-and-pop candy store will be held liable for damage, whereas a competitor who opens a candy store across the street and forces Mom and Pop out of business and homeless into the night will face no legal consequences. The moral is that we cannot universalize our principles.

Menand goes on to explore how Oliver Wendell Holmes applied his theories to several famous free speech cases during World War I. However, I was more interested in the common law theory itself. I work a legal secretary in a general practice law firm that handles motor vehicle accidents, personal injury, and negligence cases, so this was all quite eye-opening to me. I have no intention of becoming a lawyer myself (I have neither the personality or the diehard work ethic), but I do find the law to be an interesting profession: abstract and research-based, yet grounded in practical concerns and real action. I wonder if how much influence Holmes ended up having on the practice of tort law. I'll have to ask someone when I get back to work on Wednesday. (Today is Columbus Day and I got tomorrow off for my birthday, so I have a four-day weekend. My birthday is actually Wednesday, however, and we will be having cake at the office.)