Reading 'The Path of the Law' on Justice Holmes' Birthday

Ravi Shankar Pandey

6 March 2021 2:36 AM GMT

  • Reading The Path of the Law on Justice Holmes Birthday

    Legal systems go through massive upheavals, with organic interpretation in both constitutional and non-constitutional branches getting shaped on the whims and fancies of the Parliament. What has been said a century back will thus lose its relevance with time. In light of this premise, when one starts reading the scholarship of late Justice Oliver Wendell Holmes Jr. (March 8, 1841- March...

    Legal systems go through massive upheavals, with organic interpretation in both constitutional and non-constitutional branches getting shaped on the whims and fancies of the Parliament. What has been said a century back will thus lose its relevance with time. In light of this premise, when one starts reading the scholarship of late Justice Oliver Wendell Holmes Jr. (March 8, 1841- March 6, 1935), the only result is astonishment, amazement, and bewilderment because Holmes' path is the most travelled path till date when it comes to influencing the legal development in general. With Birth (8th March) and Death Anniversaries (6th March) of Justice Holmes approaching, let us read 'his' path of law and assess its employability in the 21st century. 'The Path of the Law' [10 Harv. L. Rev. 457 (1897)] was originally an address delivered by Justice Holmes at the dedication of the new hall of the Boston University School of Law, on January 8, 1897 [later published by Harvard Law Review ('HLR')] and is the third most cited law article of all time; the first two being Ronald Coase's 'The Problem and Social Cost' (1960) and Warren & Brandeis' 'The Right to Privacy' (1890).

    Holmes is such a preeminent figure in the history of legal jurisprudence that HLR brought a centenary volume with contributions by the likes of Judge Richard A. Posner,[1] the most cited legal scholar of all time, and one of author's favourite jurists. But what makes Holmes' path of the law so special? As Posner asks, "why it is so famous, and whether it has anything to say to us or is merely a museum piece?" Posner answers the question his own way, as I attempt to do in this piece. Start searching for Justice Holmes in the Yale book of quotations and you will find that the seminal work contains six quotations from 'The Path of the Law' [hereinafter 'TPL']. Is not that incredible? The vigour, valour (for Holmes also served the US army during Civil war, later honorary bestowed with the rank of Colonel), and vitality that his discourse contains is unmatchable, unfathomable. Holmes hit hard with his wit and wisdom when he said "The life of the law has not been logic, it has been experience" in his common law (1881). He again rejuvenates the readers with his long yet impactful paragraphs in TPL. The list of such prose in TPL is endless and is filled with striking aphorisms such as "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law"; "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV"; "For the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics" (my favourite line).

    While a complete analysis of Holmes' discourse will require at least a long article of HLR standard and even writing a book may give incomplete results, two themes of TPL require brief discussion. First, Holmes' appeal to the law enthusiasts to look at the law as a bad man. Second, the promotion of interdisciplinarity in legal discourse (an overlooked area in Indian legal education till date). Holmes' argues that looking at law as a bad man does, is a better approach to understand law, as after all law is supposed to set aside morality as much as possible and is expected to work in technicalities and procedure, focusing on meeting ends rather than the 'means' per se, and fosters a result oriented approach 'not as a good man, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience' but as a bad man, 'who cares only for the material consequences which such knowledge enables him to predict'. Second, Holmes' attempt on interdisciplinarity is at least five-six decades ahead of legal scholarship. The economic movement in legal studies which only started with Gary Becker's interventions in 50s, was remarkably foreseen by Justice Holmes in 1897. As good as it gets, TPL religiously irrigates the interdisciplinary produce, blooms the barren legal understanding, and paves the way for multitudes of division and sub-divisions for legal theory.

    Not only Holmes says that the future man of law would be a man of statistics and economic, but ask a very important question appealing equally to the abolitionists as well as retentionists. In his words: "what have we better than a blind guess to show that the criminal law in its present form does more good than harm?... I have in mind more far-reaching questions. Does punishment deter? Do we deal with criminals on proper principles?" This is significant because the first significant study on capital punishment deterrence came seven decades later in 70s only to get refuted by future studies within a few years.

    In another critique of TPL published in Alabama law review, Professor Michael Coper shares his experience after reading the masterpiece. He says on his conscious copying of his article's title from TPL,[2]

    Sometimes, however, the borrowing is conscious. Brahms, when it was pointed out to him that part of his First Symphony sounded very much like the great theme from Beethoven's Ninth, is said to have retorted: "Any fool can see that!" Tonight, I am guilty of plagiarism in the same sense. I have stolen the title of my talk, and I have stolen it from one of my heroes in the law!"

    Holmes is our hero too. As Coper says TPL is the forerunner of the American realism movement that shaped and swept all the discussions in 20s and 30s. Coper says a lot and succinctly summarises the whole legal drama that Holmes directed through his writings, rulings and experiences. Well, let us now talk about the chances and ironies. The irony in Holmes' life as Coper writes stems from his Common law, which despite being difficult, obscure, and now very much out of date-was published just five days before Holmes's fortieth birthday. It was a huge relief for Holmes, as he firmly believed at that stage of his life that if one was to achieve anything in life, it had to be before the age of forty. And while Holmes believed that and talked about logic and experience, he outlived the double of that age, gathered immense experience, broke the shackles and boundaries, redefined and refined the legal theory, and made a mark in history through 'his' path of the law, not just in theory but in practice when he delivered landmarks in Otis v Parker,[3] Abrams v United States (dissenting opinion), and Buck v Bell (majority judgement). His observations in Davis v Mills[4] beautiful summarises his expectations from law in practice that "Constitutions are intended to preserve practical and substantial rights, not to maintain theories". I can talk and talk and continue writing 'my' take of Holmes' TPL but it would not be complete if I miss how he got his seat at SCOTUS. It was only when President McKinley was assassinated, and his successor President Theodore Roosevelt did not feel bound to continue with the confirmed nomination of Alfred Hemenway, that Holmes was chosen from Massachusetts. Is not that incredible, too?

    If one wants to understand how great jurists are shaped, one may draw a comparison between the life of Justice Holmes and Justice Krishna Iyer. Both the justices wrote impactful prose, authored literature which talks about legal utopia and redefined the contours of constitutional law and legal theory; former through his opinions and writings, the latter by broadening the horizon of constitutional remedies catalysing the PIL movement. There is another aspect to be looked upon as well. While Iyer shared a communist outlook in his political career before getting appointed as Kerala High Court judge at 59, Holmes had a short yet remarkable stint at US army during civil war before he received the call to serve at SCOTUS at the age of 61 and served from 4 December 1902. Justice Iyer published extensively till he died at the age of 99 on 4th December 2014; Holmes, on the other hand retired late in 1932 (aged 90) and died two years later; an unbeaten record of oldest SCOTUS judge. Thus, all the broad outlook and non-conservative analysis of law could be justly attributed to the experiences both the jurists had, which not only involved technicalities under which legal systems work, but humanistic approaches which never misses the point that the makers and breakers of law are human beings first and anything else later.

    Holmes' taught me, Holmes will teach you too, both directly and indirectly, a starting point of which could be reading TPL. TPL teaches you how well-thought verbal discourse can be of much impact than an overly researched article with multiple secondary references. Thus, one can be advised to read his piece loudly before sending it to law reviews. The focus on interdisciplinarity is another aspect which needs to be touched especially in the Indian legal education.

    Similarly, Holmes warns against using history as the building block of all the legal developments. If history leads to distortion and immoral conclusions with present notions of public morality, it is better to get to the bottom of the subject itself and find the way 'to its highest generalizations by the help of jurisprudence; and, so far as you can, to consider the ends which the several rules seek to accomplish, the reasons why those ends are desired, what is given up to gain them, and whether they are worth the price'. Afterall, as Holmes says quoting Hegel, "it is in the end not the appetite, but the opinion, which has to be satisfied". Holmes focuses on ingenuity and chooses to wait for a time when focus on the history in legal analysis is reduced and the focus is shifted to the end goals of the law in consonance with the constitutional scheme.

    Perhaps Holmes is the first jurist to romanticise dissenting opinions. He never fears to dissent, never seems to worry about misplaced analysis of the majority, never puts harder efforts for fitting in. As he writes in TPL, "no one will understand me to be speaking with disrespect of the law, because I criticise it so freely. But one may criticise even what one reveres. Law is the business to which my life is devoted, and I should show less than devotion if I did not do what in me lies to improve it, and, when I perceive what seems to me the ideal of its future, if I hesitated to point it out and to press toward it with all my heart".

    In the ultimate analysis, 'The Path of the Law' is a magnus opus; a timeless masterpiece of the socio-humanistic-legal domain which was and still is far ahead of its time. Holmes is and will remain one of the biggest exponents in the legal community because 'his' path of the law is worth taking a walk for every stakeholder of law: be it first-year law student, a young academician, or stalwarts like Posner and Coper. Had Frost's 'The Road Not Taken' was published before 1897 and not in 1916, Holmes could have said that the 'path' he took was less travelled by and hence it made all the difference. Vive l'héritage Justice Holmes !

    The author is an undergraduate law student at Dr. RMLNLU. He can be reached at

    [1] See, Richard A. Posner, "The Path Away from the Law," 110 Harvard Law Review 1039 (1996).

    [2] See, Michael Coper, The Path of the Law: A Tribute to Holmes, 54 ALA. L. REV. 1077 (2003).

    [3] First opinion at SCOTUS declaring that due process of law was limited only to those fundamental principles enshrined in the common law and did not protect most economic interests.

    [4] Davis v Mills, 194 US 451, 457 (1904)

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