6 - Holmes on the Logic of the Law

Summary

Again and again throughout his long career, Oliver Wendell Holmes, Jr., seemed to be waging a jurisprudential campaign against something he called “logic.” His first great one-liner (and it remains his most famous) was “The life of the law has not been logic; it has been experience.” In a much-quoted letter, he described Christopher Columbus Langdell, Dean of the Harvard Law School, as representative of “the powers of darkness” in legal thought, because he “is all for logic and hates any reference to anything outside it.” The Path of the Law includes six paragraphs denouncing the “fallacy of logical form” in legal thought. In his dissent in Lochner v. New York, Holmes wrote that “[g]eneral propositions do not decide concrete cases,” because judicial decision rests on a “judgment or intuition more subtle than any articulate major premise.” And in a later dissent also attacking Constitutional judicial activism, he deprecated “pressing the broad words of the Fourteenth Amendment to a drily logical extreme.”

These passages are well known and have been influential, but it is natural for readers with a background in analytical philosophy to find confusion in them. Scott Brewer's essay (Chapter 5 in this volume) does just that, arguing that Holmes was not clear on the target of his “anti-logic” campaign, for he seems to have meant various things by “logic”: systematic coherence, deduction, induction, analogy, and even just plain common sense.