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 epistemological categories) 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