Oliver Wendell Holmes, Jr.’s The Common Law has fallen well out of favor. Richard Posner and the Chicago school pretty much relegated it to the dustbin and I think that’s a shame. Whatever side of the fence you’re on, you must admit that economics and law deal with individuals in markedly different ways. When economic principles are invoked to influence behavior, they are invoked on behalf of whole classes of people: labor; the well to do; the “welfare class” (whatever that means); the middle class. We don’t apply monetarism or game theory to Joe the Plumber. (Sorry, I couldn’t resist that one.) We apply those principles to huge clusters of individuals and concern ourselves little with the effect of a given policy on one person.
The law is not applied that way. As a forward-thinking, behavior influencing set of principles it is helpful to think of the effect of laws on classes of people. But the law is only partly forward-thinking. Unlike economics, the law is inevitably called upon to decide the rightness or wrongness of acts which have already occurred. Thinking of law in strictly economic terms, or for that matter, in terms of gender or race, is interesting but of no practical use in enforcing the social contract.
Holmes was a leading American proponent of legal realism around the turn of the twentieth century. The law at that time was being asked to accomodate a whole new set of social problems. Railroads in particular made it necessary to craft new protections for workers and their families. Accidents on the tracks influenced the development of contributory negligence principles, the notion of the “standard of care”, the existence of the duty to use due care, and causation. Who doesn’t remember the fact pattern from Palsgraf? Well, if you went to law school, anyway. If you didn’t, you can read about it here: http://en.wikipedia.org/wiki/Palsgraf_v._Long_Island_Railroad_Co.
You are wondering what any of this has to do with pearls. I don’t blame you. I am getting to that now.
Holmes the legal philospher and Supreme Court justice was the son of one Oliver Wendell Holmes, the doctor. Dr. Holmes is remembered today as one of the Fireside Poets, a group which includes Henry Wadsworth Longfellow, John Greenleaf Whittier, and James Russell Lowell. Dr. Holmes’ claim to fame is one poem and really one poem only. It appears in most middle school or high school English textbooks and it is called The Chambered Nautilus.
Like most poems of its time it is written in a pseudo-Classical style in regular meter and neatly rhyming lines. The Fireside Poets are also called The Schoolroom Poets because their poems are well suited to memorization and recitation. In other words, they are orderly. There are no oddball near rhymes or rhythm shuffles to be worried about. The reader or reciter can be assured that all will go well and that the appropriate applause will follow. (How astonishing to consider that so few years separate Dr. Holmes and e.e. cummings!)
Dr. Holmes celebrates in his poem the “ship of pearl” that had “sail[ed] the unshadowed main” – nautili live in the deep waters of the South Pacific and Indian Oceans – and arrived at the shore only by reason of its death. He considers that the nautilus, dead now, had built each chamber of the shell to live in as it grew, abandoning the smaller for the larger year by year. Then he moves on to the ”moral” portion of the poem so regrettably common to the Victorians and declares, famously: “Build thee more stately mansions, O my soul,/As the swift seasons roll!” Dr. Holmes argues that the chambers of the shell represent intellectual and possibly spiritual levels of growth, to be discarded at death when no longer needed.
And Justice Holmes seems to take a cue from his father in The Common Law:
The life of the law has not been logic; it has been experience…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.
The Common Law (1881) at 1.
For Justice Holmes, the law was the ocean, an undulating thing to be inhabited rather than mastered. Concepts should be taken up and applied as appropriate and for the common good, but discarded when no longer so. He advocated for what you might call judicial restraint, although I think his concept would not be recognized by the Scalias of today. Holmes believed that judges too often inserted their own vision for the approach favored by the general population; and in fairness to those who critique him, he authored the Buck v. Bell decision, finding constitutional a statute that permitted the forced sterilization of the mentally retarded. (If any decision argues against the legitimacy of true judicial restraint, this is it; unfortunately there are others, Dred Scott among them).
In my mind, though, Holmes’ saving grace, and the saving grace of his approach to law, was his willingness to be flexible in the interest of the common good. No doubt this will draw fire. Jurists like Scalia argue that inflexibility is the only way to ensure, if not justice, then at least rationality. The rich man will be deprived of a right – or granted a privilege – no less and no more than the poor man.
In reality that rarely happens. People like Mark Dreier evade justice for as long as they do because their connections and wealth buy them time. Justice Holmes’ common law would demand more of Dreier and his ilk than from the guy selling papers on the street. His plea to jurists and lawyers alike: “Don’t be ‘consistent,’ but be simply true.”