The Life of the Law: What Holmes Meant

Whittier Law Review, Forthcoming

64 Pages Posted: 2 Feb 2011 Last revised: 21 Jul 2012

Brian Hawkins

affiliation not provided to SSRN

Date Written: May 3, 2012

Abstract

Lawyers from Justice Holmes’s day until today rally around the banner of his most famous quote, “The life of the law has not been logic: it has been experience.” Supposedly, this phrase reminds judges and other lawmakers never to let the law lose touch with the needs of ordinary people. In historical context, however, “the life of the law” says nothing about how judges should decide cases. Rather, it expresses Holmes’s view about how common law judges actually decide cases. More specifically, Holmes’s “experience” refers to judges’ mostly subconscious intuition, while “logic” refers to a vain attempt to systematize intuitively developed law. Proper understanding of Holmes’s famous quote, revealed through this Article’s historical analysis, helps to avoid an unfortunately common analytical distortion, and one which tends to stultify the law - what Holmes called “the danger of inventing reasons offhand for whatever we find established in the law.”

Keywords: Holmes, Life of the Law, Legal History, Realism, Modernism

Suggested Citation

Hawkins, Brian, The Life of the Law: What Holmes Meant (May 3, 2012). Whittier Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1753389 or http://dx.doi.org/10.2139/ssrn.1753389

Brian Hawkins (Contact Author)

affiliation not provided to SSRN ( email )

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