The Construction Of Holmes's Legal Theory

Oliver Wendell Holmes, Jr. (1841-1935) as an individual case, works outrespectable contributions to the following importantquestions:how do we thinkof thelegal profession? How do we transmute existing achievements and particularexperiences into our own legal methods and points of view? How do we constructsome kindof understanding of this modern world?The central question for Holmes is the significance of human being within thisless theological and more scientific day. Itinvolves two interdependentaspects, thatis,science and infinitive perspective. The former, which refers to systematicclassification and empirical investigation, cannot establish the human significance inits whole, and may therefore lead to the infinitive perspective. He regards man asinfinite being and consciously pays attention to the infinite world, this life. The law,which holds distinctive importin this life, was chosen by himas alifelong profession.We can fairly conceive his early legal scholarship (1870-1880) and the CommonLaw as a continuum. In the early age, Holmes was to a large extent immersed in thestream of Victorian legal thoughs represented by Austin and Maine. The CommonLaw (1881) is Holmes's unique treatise, whose methodology is widely recognized asthe famous slogan: The life of the law has not been logic: it has been experience. Acertain method must agree with a certain subject-matter.What he deals with is theCommon Law itself, and its concrete proposition is the legal, as opposed to the moral,criterion of liability: "while the terminology of morals is still retained, while the lawstill and always, in a certain sense, measures legal liability by moral standards, itnevertheless, by the very necessity of its nature, is continually transmuting thosemoral standards into external or objective ones, from which the actual guilt of theparty concerned is wholly eliminated." Holmes's legal methodology is expressed as:"In order to know what it is, we must know what it has been, and what it tends tobecome. We must alternately consult history and existing theories of legislation. Butthe most difficult labor will be to understand the combination of the two into newproducts atevery stage."The methodological slogan mentioned above is to be graspedin this context, whose precise object is not law itself but the life of the law,synonymous with the growth and development of the law. Such aviewpoint posits thelaw as an evolving organism, and the first feature of legal evolution can be described as the contradiction between substance and form. Holmes's "logic"refers to rigid staredecisis whichgets a certain resultby syllogism, and itobviously concerns ChristopherColumbus Langdell. But such a case is somehow misleading for omitting theircommon premises, the total change of the Common Law and its requirements forlegal training. Furthermore, this"logic"relates to full reliance on history. It can besaid that for Holmes, history does not constitute a self-sufficient methodologicaldimension, but just a purposive analytical device. This attitude suggests that thecrucial measure of Holmes's legal theory is in fact"theories of legislation"that referto"public policy"in the 19th century context. It is public policy that composesHolmes's concept"experience". We can fairly argue that Holmes's use of theanalytical tools of logic and experience, his full comprehension of the deep historicityof our surroundings, his prescription of the nature of law—all of these in the lastanalysis fall within the domination of the moving public policy. However, what isHolmes's ground forinsisting on complying with public policy? His answerformed inlateryears is more orless dialectical.Holmes has to criticise"criteria of universal validity which he collects underthehead of natural law", which is the subject of the article Natural Law (1918). The Pathof the Law and the Soldier's Faith have set up a will for critique, and the precisereason of criticising the"natural law"is that it is necessary to negate an externalopponent so as to estalish enough self-consciousness of his own legal methodology.The"natural law", when appearing in the practices of law and politics, meansimmediately to take particular arbitrary faiths as the criteria of public policy, thedanger in which can be clearly seen in the slavery crisis. Only after sweeping awaythis obstacle can Holmes naturally build upa more inclusive criterion of public policy,thatis, free speech.The most complete statement of Holmes's theory of free speech is the dissentopinion in Abrams v. United States (1919), where his concise arguments go throughsome transformation, from a common law argument to a constitutional argumentwhich puts forward historical and philosophical justifications. So far as the formerargument is concerned, Holmes's doctrine is not necessarily apt to protect the freespeech, for it only requires that the approximate motive confirmed by commonexperience be the condition to limit free speech, which is virtually connected with theidea of some qualified privilege. In his constitutional argument, there are two parts,the thesis of the market competition of ideas and the thesis of history. The first goes for experiments and political decentralization which mainly refer to the location ofpolitical authority and the cultivation of political accountability and relevant culturalconditions. It provides a pressing counterweight and goes against censorial mentalitygenerated by various illiberal positions. The secondbases free speech onourhistorical...