5 - Traversing Holmes's Path toward a Jurisprudence of Logical Form

Summary

Holmesian Anti-Logic and the “Fallacy of Logical Form”

The life of the law is, and should be, logic suffused by experience and experience tempered by logic. That is the principal proposition I defend in this essay.

It is now a commonplace that Holmes's declaration “The life of the law has not been logic: it has been experience” is, as Thomas Grey has said, the “central slogan of legal modernism.” Holmes first offered it in 1880 in a review of C. C. Langdell's book on contracts, and he repeated it prominently at the opening of The Common Law, published in the same year, where it serves as part of an extended admonition about the limitations of “logic” in the best explanation of common law doctrines:

The object of this book is to present a general view of the Common Law. To accomplish that task, other tools are needed besides logic. It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, institutions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. 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.