I want to discuss the secularization of the law, which, in my opinion, is at the heart of Holmes's discussion. It seems that Holmes is putting the nail in the coffin on a theological conceptualization of the Law to form something informed by both morality and logic, yet distinctly different from either - and therefore neither. It at once falls short of society's moral limits, yet surpasses the constraints of logic. This intermediary role that the law plays between morality and logic is what most people call "policy" - that is, some result influenced by our cultural values (i.e. morality) and empirical analysis (i.e. logic). The reason why I have termed this delicate balance between the two poles the "secularization of the law" is that either extreme represents a theological category. Put differently, both morality and logic rest on abstract principles or dogmas usually without comprehending the practical considerations involved.

It does not seem surprising to conceptualize the Law as theological. After all, the 10 Commandments are "legal." Yet, what is surprising is the fact that around the time of Holmes this theological view of the Law had not entirely disappeared. Only a century before, at the time of the American Revolution, the absurdity of the theological conceptualization of the Law came to the fore. I remember reading in a history book (written by Maitland, I think) how George III went to Parliament to ask permission from the MPs to own land as a private person. In the cultural thinking of only a century before Holmes, the King was, as Shakespeare terms it in Richard II, "twin bodied" - he had at once his natural body and body politic. The former was aging, temporal, and natural whereas the latter was sempiternal, incorruptible, and largely theological. Hence the phrase "The king is dead. Long live the King" (notice the caps!) or the English Civil War's paradoxical charge of "fighting the king to save the King." In Shakespeare's Richard II, many critics analyze Richard as at once God, King, and Fool, representing at once the divine, doubled (i.e. divine and temporal), and temporal nature of the King, respectively. Likewise, being at once corporate yet individual, King George III as simply George of Hanover had to ask permission to hold a piece of land as a private person - his body natural, and not in his status as the body politic. In short, only a century before Holmes, the English legal system still maintained these fictions of the King's two bodies to preserve the logical structure of the Law. The logic followed from the fiction, the Law from the logic. At the root of these fictions is discovered a long history of mythologizing and mystifying the role of Kingship from being at once above and below the Law, at once legislator of positive law yet the servant or subject of natural law.

My point is this: Holmes understands morality and logic as being precisely similar to these fictions of kingship, these metaphysical rationalizations of the symbolic state as the body politic of the King. By the Holmesian view, in no sense were they more than fictions to which the Law was subject. The secularization of the law balances the theological polarities of morality and logic to form a hybrid based on policy to affect social action. In the end, the Law becomes something in between philosophy and religion (the onto-theological categories of epistemology) and mathematics (the logical category). This, in my opinion, is Holmes's most groundbreaking thesis. And as a man of his time, he was following the American school of pragmatism or thinking in the vein of the European critics of the Western metaphysical tradition in the 19th and early 20th centuries -- namely, Nietzsche, Freud, and (I daresay!) Marx. This secularization, so my running thesis goes, is legal realism.

Perhaps a most interesting question, therefore, would be: what legal fictions still exist in our legal thought and why? One comes to mind - the "renewed" motion for judgment as a matter of law after the jury verdict comes out. What logical or moral principles does this fiction serve?

-- JesseCreed - 19 Jan 2008

I think Jesse has a point, but there is something I am hesitant about. I think there is a danger in speaking of law as something in between philosophy and religion and mathematics because it opens the door to viewing the law as a set of normative principles. To think of law as a sort of multi-disciplinary body of knowledge that is a combination of the aforementioned studies can imply that it has evolved over time through deliberate, deep thought and study. While this may (or may not) be true one case at a time, taken collectively - statutory and common law - law is hardly just a synthesis of these studies. To this end, Holmes gives the example of the way the courts treat larceny, which reflects neither logic nor morality, but the effects of (perhaps imprudent) judicial restraint and tradition.

To me, Holmes' main point is that to understand law, you must understand the system within which it functions. The point of law is not to form a unique and elegant nexus from our studies of other subjects. If anything, he urges us to put down the history books, and take up the calculations of the economists (perhaps at a time when we had much more faith in the objectivity and thorough processes of economics). Law should start by examining the world around us and making decisions with an eye not toward their compatibility with any combination of logic and morality, but toward the results we want to achieve.

-- KateVershov - 19 Jan 2008

The original post is, I'm afraid, a historical farrago, or--more precisely--a combination of mostly accurate information with mostly inaccurate generalization. You went rather fast, Jesse, and where you exceeded what you knew your guesses didn't pan out. The need to write long should have warned you: any essay of that length needed to be edited, and editing would have taken you to sources, and sources would have shown you that you had more under your hands than you knew.

So, you are right to feel the influence of Nietzsche in Holmes, but to describe him in that respect as merely "a man of his time," as though Teddy Roosevelt and he were just two boys from Neitzscheland, is more comic than insightful. (HL Mencken said of TR that he "swallowed Nietzsche the way a peasant swallows Peruna, including the cork and the bottle," which is never true of Holmes, whose philosophic influences run more to Hegel, and still more to Chauncey Wright and Charles Peirce.) Holmes thought Freud was nonsense and Marx was rubbish that might yet have its day.

The King's Two Bodies is political theology to be sure, as Kantorowicz showed in a now-unread classic study, but it was medieval political theology--Maitland's point, in the essay on the corporation sole, your reference to which wins you the prize for casual erudition and is in fact immensely impressive, is to offer a Georgian echo of vestigial doctrine. It is right--to come to your central thesis--that Holmes' law-thought is entirely secular, but no more secular in fact than Blackstone's, or even Coke's. Why the common law is a secular system is surely an important question in English intellectual history, with profound consequences for the development of human society overall--I offer a course every couple of years in which we try to answer that among other questions. But it's a question about the sixteenth century, not the nineteenth.

-- EbenMoglen - 19 Jan 2008

Eben, I think you went "rather fast" yourself and attributed Jesse's post to Kate. I edited to split them up more clearly.

-- DanielHarris - 20 Jan 2008

Indeed you are right. I appreciate both the edit and the correction, which also means that my original remark should be amended. A suggestion about how to avoid this problem is contained in the general GoodStyle recommendations.

-- EbenMoglen - 20 Jan 2008

I appreciate all your feedback, Kate and Eben. These are definitely historical generalities in need of more focus and precision. It is less the precise subject of the King's Two Bodies, more the fictional nature of this transcendental myth, that I hoped, persuasively or poorly, to address.

On an entirely different note, I really liked Eben's neologism "Nietzscheland," presumably a place where the cultured man would be excluded, and other visitors would see themselves transformed into double-bodied satyrs while wining and dancing with their brethren.

-- JesseCreed - 20 Jan 2008

It will be interesting to think about how the law is bound by the past as we begin to study Constitutional law. Precedent and doctrine remain significant in all areas of the law (though thankfully, no judge would ever write an opinion blindly adhering to either), but where a Constitutional question is explicitly involved, there's the weighty presence of an incontrovertible "Bible." The meaning of the Constitution, like that of any Bible, shifts over time and can be used to justify a range of activities and their opposites. Still, certain things are the way they are in law "because the Constitution says so," and no amount of reason, instinct, or policy rationale can change that

• But is this actually any more true than the opposite conclusion, embodied in the statement Chief Justice Hughes made to the young Justice Douglas that "the Constitution means what five votes on the United States Supreme Court say it means"?
  -- EbenMoglen - 20 Jan 2008

(my ConLaw? casebook gives a number of clear examples, such as a foreign born candidate - Ahnold, anyone? - seeking to assume the presidency after having been voted in by a majority of the electors). Holmes says, "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." But the only reason a 34 year old can't be president is that so it was laid down in the time of George the Washington, and no inquiry into the rationale for the rule (that only experienced people should lead) and whether it is breached in the particular instance (this particular 34-year old is omnicompetent and the best choice for president) is permitted.

• But that's not true. You had a reason, and you gave it. You are confusing a definitional property of law, that it commands something, with the quality of prescriptive law, that it derives its authority from its antiquity. You haven't heard Holmes clearly.
  -- EbenMoglen - 20 Jan 2008.

So we seem to have a system where certain questions of law can be answered only with reference to the text of a document out of the shadowy past. And, of course, any case that turns on a statute is similar in that, while a range of interpretations is allowed, all argument must be conducted with reference to the statute and free-floating policy rationale is barred (though non-free floating policy rationale, i.e., policy dictates that we adopt this particular interpretation, is permitted).

• Hence, from an uncertain major premise and a disestablished minor premise, a doubtful conclusion. Do we seem to have such a system? Not to me. Precisely on the basis of Holmes' realism, I see both courts and administrative agencies exercising law-making power based entirely on the rationalization of policy judgments exogenously arrived at. The seeming you seem to wish on Holmes is actually the opposite of how things seem to have seemed to him based on what he wrote.
  -- EbenMoglen - 20 Jan 2008.

Holmes seems to be referring to cases of common law where judges are not bound by a particular Contitutional provision or statute. But there are many Constitutional or statutory cases, and judges find themselves bound by the opinions of august bodies from the past every time they decide such cases. One difference is that the bodies that pass statutes are legislative bodies answerable to the people, and judges are not supposed to feel free to contravene the authority of the people's legislative representatives by themselves legislating. But what about a case where a statute on the books was passed in 1830 and hasn't been thought about since? A judge would still be bound by it, even though there would be no basis for his decision other than that "so it was laid down in 1830 [when the people had different concerns and wouldn't necessarily have thought about today's conditions]." The more I think about it, the more I see examples where legal questions continue to have their answers depend on the past and nothing more. Should courts then be free to disregard the weight of history, and instead inquire only into the reasons behind the historical statute? But no one thinks we should do this with the Constitution - a 34 year old can't be president, period, even if the reasons for the Constitutional provision are not in play vis a vis a particular candidate. How can this blind respect for the Constitution be reconciled with a theory of law that seeks to get beyond blind respect for the past?

-- MichaelBerkovits - 21 Jan 2008

-- AndrewGradman - 21 Jan 2008

I read Holmes as not only arguing that judges decide for policy reasons, but also that judges should do so. And clearly, today, judges often articulate policy reasons for their decisions.

Still, I continue to find it interesting that, though we've clearly moved a long way from Holmes's day - such that courts today often self-consciously make law and generally abhor "authority from [] antiquity," as Eben wrote - we haven't quite done a 180 degree turn. As Jesse has pointed out, legal fictions remain, and it seems to me that they are most prevalent in cases implicating Constitutional cases, where we're stuck within the confines of an ancient document (and whatever stretching we can give it, which has proven to be much). One could argue that a "Holmesian court" would not insist that a motion for judgment as a matter of law be made prior to the jury's retirement, to take Jesse's example. Another example is the laborious process of determining whether a 7th amendment right to a jury trial exists. The Terry (Chauffers, Teamsters v. Terry) majority held that a historical analysis into whether that type of suit existed in the 18th century was required, plus an inquiry into the type of relief sought, while a Brennan concurrence argued that only the relief sought was relevant. But it is striking that no justice argued from policy (e.g., whether all plaintiffs should have the right to a jury trial for dignitary reasons, whether no plaintiffs should for reasons of efficiency, whether it should depend on the type of case because certain types of claims are more suited to juries, etc.). These are examples where I see courts today feeling bound by the language of the Constitution, and where policy reasons for coming out a certain way, if they exist, are kept hushed. Did Brennan vote that the plaintiffs had the right to a jury trial because they were mere union laborers who would probably benefit from a jury trial? Quite possibly. Would he have said so? No, not in this type of constitutional case. I think.

The saying that "The Constitution means what five votes... say it means" is true where Constitutional provisions admit of debate and false where they do not. While the very question of whether a given provision even admits of debate is a question subject to change with circumstance and time, there are still Constitutional provisions today that, at least right now, seem so definite and certain that no judge would feel free to reinterpret them, even if he felt it were warranted. The Constitution may not derive authority from antiquity per se, but the effects of being bound by the Constitution are, as outlined above, sometimes similar to the effects of being bound by a Blackstone or a Coke, as 19th century judges felt themselves to be. My question is, do we want a radical neo-Holmes (certainly not Holmes himself, because he presumably would think this a terrible idea) to come in and tell us that "The Constitution means what five votes say" is more than a clever line that rings true, but rather is a basic principle that ought to be up front and clear in judicial opinion-writing, because that's what judges do anyway? And should we also be told that even the clearest Constitutional provisions oughtn't be followed where judges find that there is no good policy rationale for them? We're no longer in the 19th century by any stretch, but judges today, while acknowledging their own law-making ability, probably don't believe that it extends that far.

-- MichaelBerkovits - 22 Jan 2008

The problem of course in not that we have a written constitution. The problem is that we have a constitution which we choose to interpret by examining the historical context within which it was written. We essentially see the Constitution as crystallizing the law as it was at one point in time - one with a significant distinction between actions at law and equity. On the one hand, we want a government that is congruent with the vision of the Framers, but on the other hand, even the Framers themselves understood that the law would evolve, as would the needs of society. In my view, justices should attempt to create laws which reflect the values upon which the Framers' vision relies, even if that means breaking free of the confines of historical context. I think justices should give up the pretense of historical analysis (which is becoming both more difficult and less relevant), acknowledge their role in "adapting" the Constitution to the times (one that should be applauded instead of berated lest we want to destabilize our government), and have the courage to declare that certain modern institutions, proceedings, and technologies simply have no analog in the past. The values and ideals the Framers wished to seed in this country should trump the rather limited black letter law within which they tried so arduously to capture them. The Constitution is simply an expression of an idea, an imperfect and finite expression. Justices should protect the idea and not its expression.

-- KateVershov - 22 Jan 2008