The Collected Legal Papers

Oliver Wendell Holmes

• Publisher: Dover Publications
• Year: 2012
• Print ISBN: 9780486454443
• eBook ISBN: 9780486148922
• Topic: Law
• Subtopic: Legal History
• Index: Law

Oliver Wendell Holmes (1841–1935) is ingrained in American history as one of the country's foremost jurists. Distinguished for his learning, judgment, humor, and eloquence, he served as justice of the United States Supreme Court for four decades. Throughout his career, Holmes forged new concepts of the origin and nature of law. He viewed the law as a social instrument rather than as a set of abstract principles, and his ideas were seminal in the development of modern free-speech legislation. His retirement in 1932 was a national event, and he remains today one of the most influential members to have ever served on the Supreme Court.
This volume compiles twenty-six of Oliver Wendell Holmes's legal papers and addresses, an important collection of opinions and dissents that touch every field of our national activity and reflect the ongoing development of a democratic society. Included is the famous article "Early English Equity," along with Holmes's essay on "The Path of the Law," which is regarded as the most significant index to his legal work.

NATURAL LAW ³⁷⁶

IT is not enough for the knight of romance that you agree that his lady is a very nice girl — if you do not admit that she is the best that God ever made or will make, you must fight. There is in all men a demand for the superlative, so much so that the poor devil who has no other way of reaching it attains it by getting drunk. It seems to me that this demand is at the bottom of the philosopher’s effort to prove that truth is absolute and of the jurist’s search for criteria of universal validity which he collects under the head of natural law.

I used to say, when I was young, that truth was the majority vote of that nation that could lick all others. Certainly we may expect that the received opinion about the present war will depend a good deal upon which side wins (I hope with all my soul it will be mine), and I think that the statement was correct in so far as it implied that our test of truth is a reference to either a present or an imagined future majority in favor of our view. If, as I have suggested elsewhere, the truth may be defined as the system of my (intellectual) limitations,³⁷⁷ what gives it objectivity is the fact that I find my fellow man to a greater or less extent (never wholly) subject to the same Can’t Helps. If I think that I am sitting at a table I find that the other persons present agree with me; so if I say that the sum of the angles of a triangle is equal to two right angles. If I am in a minority of one they send for a doctor or lock me up; and I am so far able to transcend the to me convincing testimony of my senses or my reason as to recognize that if I am alone probably something is wrong with my works.

Certitude is not the test of certainty. We have been cock-sure of many things that were not so. If I may quote myself again, property, friendship, and truth have a common root in time. One can not be wrenched from the rocky crevices into which one has grown for many years without feeling that one is attacked in one’s life. What we most love and revere generally is determined by early associations. I love granite rocks and barberry bushes, no doubt because with them were my earliest joys that reach back through the past eternity of my life. But while one’s experience thus makes certain preferences dogmatic for oneself, recognition of how they came to be so leaves one able to see that others, poor souls, may be equally dogmatic about something else. And this again means scepticism. Not that one’s belief or love does not remain. Not that we would not fight and die for it if important — we all, whether we know it or not, are fighting to make the kind of a world that we should like — but that we have learned to recognize that others will fight and die to make a different world, with equal sincerity or belief. Deep-seated preferences can not be argued about — you can not argue a man into liking a glass of beer — and therefore, when differences are sufficiently far reaching, we try to kill the other man rather than let him have his way. But that is perfectly consistent with admitting that, so far as appears, his grounds are just as good as ours.

The jurists who believe in natural law seem to me to be in that naive state of mind that accepts what has been familiar and accepted by them and their neighbors as something that must be accepted by all men everywhere. No doubt it is true that, so far as we can see ahead, some arrangements and the rudiments of familiar institutions seem to be necessary elements in any society that may spring from our own and that would seem to us to be civilized — some form of permanent association between the sexes — some residue of property individually owned — some mode of binding oneself to specified future conduct — at the bottom of all, some protection for the person. But without speculating whether a group is imaginable in which all but the last of these might disappear and the last be subject to qualifications that most of us would abhor, the question remains as to the Ought of natural law.

It is true that beliefs and wishes have a transcendental basis in the sense that their foundation is arbitrary. You can not help entertaining and feeling them, and there is an end of it. As an arbitrary fact people wish to live, and we say with various degrees of certainty that they can do so only on certain conditions. To do it they must eat and drink. That necessity is absolute. It is a necessity of less degree but practically general that they should live in society. If they live in society, so far as we can see, there are further conditions. Reason working on experience does tell us, no doubt, that if our wish to live continues, we can do it only on those terms. But that seems to me the whole of the matter. I see no a priori duty to live with others and in that way, but simply a statement of what I must do if I wish to remain alive. If I do live with others they tell me that I must do and abstain from doing various things or they will put the screws on to me. I believe that they will, and being of the same mind as to their conduct I not only accept the rules but come in time to accept them with sympathy and emotional affirmation and begin to talk about duties and rights. But for legal purposes a right is only the hypostasis of a prophecy — the imagination of a substance supporting the fact that the public force will be brought to bear upon those who do things said to contravene it — ...

Table of contents

• Title Page
• Copyright Page
• Table of Contents
• PREFACE
• EARLY ENGLISH EQUITY
• THE LAW
• THE PROFESSION OF THE LAW
• ON RECEIVING THE DEGREE OF DOCTOR OF LAWS
• THE USE OF LAW SCHOOLS
• AGENCY
• AGENCY.
• PRIVILEGE, MALICE, AND INTENT
• LEARNING AND SCIENCE
• EXECUTORS
• THE BAR AS A PROFESSION
• A REJOINDER
• A POSTSCRIPT
• BROWN UNIVERSITY — COMMENCEMENT 1897
• THE PATH OF THE LAW
• THE THEORY OF LEGAL INTERPRETATION
• LAW IN SCIENCE AND SCIENCE IN LAW
• SPEECH
• MONTESQUIEU
• JOHN MARSHAL
• ADDRESS OF CHIEF JUSTICE HOLMES
• ECONOMIC ELEMENTS
• ON F. W. MAITLAND’S DEATH
• HOLDSWORTH’S ENGLISH LAW
• LAW AND THE COURT
• INTRODUCTION TO THE GENERAL SURVEY
• IDEALS AND DOUBTS
• BRACTON DE LEGIBUS ET CONSUETUDINIBUS ANGLIAE
• NATURAL LAW