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The Life of the Law: What Holmes Meant

Brian Hawkins

affiliation not provided to SSRN

May 3, 2012

Whittier Law Review, Forthcoming

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.”

Number of Pages in PDF File: 64

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

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Date posted: February 2, 2011 ; Last revised: July 21, 2012

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

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Brian Hawkins (Contact Author)
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