In Louisa May Alcott\u27s Eight Cousins, first published in 1875, a young woman called Rose is being given a conventional girl\u27s upbringing by her aunts in a dark and stuffy old mausoleum of a house. Then Uncle Alec becomes Rose\u27s new guardian. He strides into the house, throws open the curtains and windows, and hustles his ward into the outdoors. He throws out her old confining clothes and buys her new ones, changes her diet, and with his vigorous scientific intellect begins helping her to clear her mind of received opinions. With the very first paragraph of The Path of the Law, we know Uncle Alec has arrived and that the old Victorian mansion will never be the same again

Gordon, Robert W.

English

Yale Law School Legal Scholarship Repository

THE PATH OF THE LAWYER
Robert W. Gordon*
In Louisa May Alcott's Eight Cousins, first published in 1875, a
young woman called Rose is being given a conventional girl's upbring-
ing by her aunts in a dark and stuffy old mausoleum of a house.
Then Uncle Alec becomes Rose's new guardian. He strides into the
house, throws open the curtains and windows, and hustles his ward
into the outdoors. He throws out her old confining clothes and buys
her new ones, changes her diet, and with his vigorous scientific intel-
lect begins helping her to clear her mind of received opinions. With
the very first paragraph of The Path of the Law, we know Uncle Alec
has arrived and that the old Victorian mansion will never be the same
again.
What was that older world? Nineteenth-century lawyers liked to
speak of law sitting "in the bosom of God, her voice the harmony of
the world."' Lawyers had, as they saw it, a direct line to God's mind
through their knowledge of the principles of legal science, which at
their most abstract harmonized with the principles of morals and nat-
ural justice, as well as with tradition-derived principles of the common
law. It was such knowledge of constitutional and private-law princi-
ples that supposedly equipped lawyers to be statesmen and social
trustees, who could vindicate the rights of clients and the people at
large and also steer them in the performance of their duties.
In The Path of the Law, Holmes, swinging his modernizing broom,
seems impatient to sweep away all this piety as so much cobwebs.
Law is not "a mystery but a well known profession" - whisk. A pro-
fession is just a job "people will pay" others to do - whisk. What
lawyers are paid for is the "business" of showing clients how to avoid
"danger" from the state - whisk whisk. He is at special pains to
demystify the law by de-moralizing it - to arrive at what he calls a
"business-like understanding of the matter." "If you want to know the
law and nothing else, you must look at it as a bad man, who cares
only for the material consequences which such knowledge enables him
to predict . . . ." "I often doubt whether it would not be a gain if
every word of moral significance could be banished from the law alto-
gether." Whisk whisk whisk.
* Johnston Professor of Law, Yale University. Portions of this comment are adapted from a
much longer essay to be published in THE PATH OF THE LAW IN THE TWENTIETH CENTURY
(Steven J. Burton ed., forthcoming r998).
I Richard Hooker, Of the Laws of Ecclesiastical Polity, in I WORKS OF RICHARD HOOKER
r97, 285 (John Keble ed., 7th ed. x888).
1013
HeinOnline -- 110 Harv. L. Rev 1013 1996-1997
HARVARD LAW REVIEW
Once law's claims to be a moral science are out in the trash, next
to go are its claims to being a "logical" one - that if we were "doing
[our] sums right," we would get right answers. In fact, "[m]ost of the
things we do, we do for no better reason than that our fathers have
done them or that our neighbors do them, and the same is true of a
larger part than we suspect of what we think." The main product of
this delusion, that the habitual is the logical, turns out to be the most
cherished object in the entire mausoleum, the fundamental law of the
Constitution. What nineteenth-century judges had been elaborating as
doctrines emanating from basic principles of liberty and property,
Holmes contemptuously describes as "the comfortable classes of the
community['s]" fear of socialism, "generalized into acceptance of the
economic doctrines which prevailed about fifty years ago."
History and tradition are the next to go. For Holmes, the main
reason to study history is that it disabuses us of tradition, by revealing
that traditional forms are often irrational "survivals" of practices
rooted in the power politics and dominant assumptions of past times
- perpetuated into our own by blind imitation, distortion, and
overgeneralization, and above all by spurious rationalization. History
is a rubbish-clearing enterprise.
But if everything musty in the old house is to go, how will it be
refurnished? The most obvious candidates to replace the lawyer as
moralist and curator of worn-out traditions were clearly these: the
lawyer as neutral predictor of the output of courts and the lawyer as
policy analyst and utilitarian social engineer. Thus at any rate have
most subsequent generations - with varying degrees of approval and
horror - read the message of The Path of the Law.
Probably the most common reading of the speech is that it sets
forth a purely positivist theory of law - a deflated, de-moralized,
"disenchanted" view (to use Max Weber's term) of the legal system.
To those who like this view, the "bad man" is just the rational man -
Homo law-and-economicus - who treats all legal rules as prices on
conduct. To less approving eyes, Holmes recommends that the lawyer
regard the legal system in a wholly alienated and instrumental fashion
- not as a set of norms established for common membership in a
political community, nor an attempt to realize (however imperfectly)
ideals of justice or social integration, but simply as random and arbi-
trary outputs of state force, which are opportunities for or obstacles to
realizing his client's self-interested projects. To Holmes's fiercest crit-
ics, he seems to be arguing that state-enforced Might is Right.
The second Path is more active and constructive than the task of
predicting the-law-as-it-is: the task of making conscious and articulate
the social purposes that legal rules have been fashioned to serve, to
assess through study of actual effects how effectively those purposes
are served, and to reform the law to make it serve those purposes
more efficiently. Liberal Progressives took this as encouragement to
[Vo]. I O:OI 31o14
HeinOnline -- 110 Harv. L. Rev 1014 1996-1997
THE PATH OF THE LAWYER
expose the reactionary and obsolete social and economic theory ("Mr.
Herbert Spencer's Social Statics," in the memorable phrase of
Holmes's Lochner dissent 2) lurking in constitutional principles and as
support for their program of redistributive social legislation. More re-
cently, neoclassical legal economists have taken it as prefiguring their
program of restating the latent functions of law as promoting "effi-
ciency" and reforming such law as is inefficient.
Yet the neutral predictor and policy engineer are only pieces of a
complex whole. Holmes in The Path is not putting forward a theory
of law, but rather (to paraphrase Wallace Stevens) thirteen ways of
looking at law - sketches of approaches to the legal system that will
present it in a new light.
Take the "bad man" and the "prediction theory." This can't possi-
bly be a theory that law has no moral content. "The law is the wit-
ness and external deposit of our moral life," Holmes says in The Path,
and elsewhere makes it clear that the law of any age is saturated with((prevalent moral and political theories" as well as "[t]he felt necessities
of the time."3 No, he is inviting his audience to adopt a perspective
for a limited purpose: when analyzing legal doctrine, disregard all the
moral-sounding phrases in legal language - "malice," "fault," "inten-
tion," "right," "duty." Dig beneath those phrases to find what circum-
stances trigger the liability and what remedies actually attach; then
redescribe the rule in language that avoids the imprecision of the mor-
alistic phrasing. The "bad man" turns out to be one of Uncle Alec's
practical jokes - a deliberate provocation, a device to shock the audi-
ence out of complacency and into an enquiring state of mind.
So too with the trashing of tradition. Is Holmes really a moderniz-
ing iconoclast, ready to bury the dead past to build a brave new utili-
tarian present? Hardly: as a judge he was slow to innovate, believing
that the existing law "has the final title to respect that it exists, that it
is not a Hegelian dream, but a part of the lives of men." Holmes as
proto-Posnerian lawyer-economist is more plausible than Holmes as
Progressive-liberal. For Progressives, policy science was a means of
mastering necessity, understanding the structural determinants of pov-
erty, vice, urban squalor, alcoholism, prostitution, political corruption,
monopoly power, and "wasteful competition," in order to conquer
them as public health science had conquered epidemic disease. For
Holmes, however, science pointed chiefly in the opposite direction, to
recognition of the limits necessity imposes. There is perhaps no theme
Holmes sounds more often than that science teaches hard lessons of
scarcity and the limits of social intervention. Like the judges he made
fun of, Holmes was echoing "the economic doctrines [of] fifty years
ago," in this case those of Thomas Malthus.
2 Lochner v. New York, x98 U.S. 45, 75 (19o5) (Holmes, 3., dissenting).
3 OLIVER WENDELL HOLIES, THE COMMON LAW 5 (Mark DeWolfe Howe ed., Harvard
Univ. Press 1963) (i881).
1997] 1o15
HeinOnline -- 110 Harv. L. Rev 1015 1996-1997
HARVARD LAW REVIEW
Yet The Path of the Law as a manifesto for Chicago efficiency en-
gineers is not wholly convincing either. To be sure, Holmes gave
much thought and energy to a utilitarian project, the reform of tort
law. But he was only sporadically a utilitarian. Unlike modern econo-
mists, he did not see the common law or social life generally as the
outcome of efficiency-enhancing evolution. Legal history was a long
record of struggle among contending power blocs, activated as much
by irrational instincts, ideals, ideologies, religions, and the will to
power as by rational self-interest. Even more important, though com-
mitted to working for gradual improvements in the rationality of the
legal system - Holmes was scornful of the dream of rational social
happiness. His greatest enthusiasm was reserved for the irrational,
reckless quest for the unattainable.
And it's in celebration of that quest that The Path of the Law con-
cludes. The tough talk that opens the speech is meant to bring listen-
ers back down to reality, have them feel the hard and dirty ground
under them for a moment - but then to raise their eyes to a farther
horizon:
How can the laborious study of a dry and technical system, the greedy
watch for clientsand practice of shopkeepers' arts, the mannerless con-
flicts over often sordid interests, make out a life? ... If a man has the
soul of Sancho Panza, the world to him will be Sancho Panza's world:
but if he has the soul of an idealist, he will make - I do not say find -
his world ideal.4
He fought against the reduction of the goal of law practice to mak-
ing money: "[Happiness .. .cannot be won simply by being counsel
for great corporations and having an income of fifty thousand dollars.
An intellect great enough to win the prize needs other food besides
success." To the extent that The Path of the Law is a vocational ad-
dress, its real subject is that of the lawyer in the exercise of the higher
faculties of his calling as thinker or scientist.
A "business-like understanding of the matter" teaches that law is
about predictions of the incidence of public force, and not about mo-
rality. Yet by the end, Holmes is telling us that he venerates the law
as a calling of thinkers, who by grasping the "remoter and more gen-
eral aspects of the law" may become "master[s] [of their] calling," and
"connect [their] subject with the universe and catch an echo of the
infinite, a glimpse of its unfathomable process, a hint of the universal
law."
The speech thus reenacts the narrative of Holmes's own journey
- perhaps in the battlefields of the Civil War, perhaps earlier - from
loss of faith in ideals and morals toward a newfound faith of the sci-
entist and the soldier. Talking about law as an expression of or means
4 Oliver Wendell Holmes, The Profession of the Law, Lecture to Undergraduates of Harvard
University (Feb. r7, 1886), reprinted in 3 THE COLLECTED WORKS OF JUSTICE HOLMES 471,
471-72 (Sheldon M. Novick ed., 1995).
ioi6 [Vol. 110:1O1 3
HeinOnline -- 110 Harv. L. Rev 1016 1996-1997
THE PATH OF THE LAWYER
of enforcing moral standards is delusive cant: understood socially, law
is a resultant of power, instinct, and need; understood historically, law
has for centuries been disposing of its notionally moral content in
favor of "objective standards"; for the practicing lawyer with clients to
serve, law is simply predictions of where and when the public axe will
fall. But this disillusioned, de-moralized view leads on not to cynicism
but to glory: "If we think of our existence not as that of a little god
outside, but as that of a ganglion within, we have the infinite behind
us. It gives us our only but our adequate significance." s The tough-
minded scientific naturalist who is willing to stare brute facts - such
as the fact of human insignificance - fully in the face is a Stoic hero.
Holmes liked to compare him (himself, really) with the great Arctic
explorers: "if he is a man of high ambitions he must leave even his
fellow-adventurers and go forth into a deeper solitude and greater tri-
als. He must start for the pole. In plain words he must face the lone-
liness of original work."6 He is a hero not just because he can face the
cold, unfeeling universe without flinching, but also because he can use
his intelligence to investigate the larger whole, to "catch ... a hint of
the universal law." Ultimately the "abstract speculation[ ]" of great
thinkers like Descartes or Kant is the most practical activity of all,
because of its power of "controlling the conduct of men" for centuries
to come.
Holmes's is a grand ambition. Yet my reaction to it is something
like Max Beerbohm's to the ant: "The ant sets an example to us all;
but not a good one."7 Holmes is most inspiring, and useful, in his
endorsement and demonstration of the practical role of theory, the
critical and emancipating uses of history, and the importance of under-
standing and evaluating doctrines, decisions, and legislative reforms in
terms of their likely costs and consequences. He seems (to me anyway)
a much more accurate and penetrating observer of society and the
legal system than either his Progressive or his lawyer-economist aco-
lytes - much more acutely aware of the pervasiveness of power rela-
tions and coercion in social life, and of the fact that people fight and
oppress and rise up for ideals as often as for material interests. More-
over, though fastidiously repelled by the philistine business and polit-
ical cultures of post-bellum America and most at home in English
intellectual circles, he made his career among Boston practical men,
lawyers and businessmen who distrusted any show of intellectual in-
tensity. He remained in the public world, rather than withdrawing to
become a pessimistic Cassandra like his friend Henry Adams, or an
expatriate-aesthete like his friend Henry James and contemporary
5 Oliver Wendell Holmes, Natural Law, 32 HARv. L. REV. 40, 43-44 (I918).
6 Oliver Wendell Holmes, Address at Brown University Commencement (1897), reprinted in
3 COLLECTED WoRKs, supra note 4, at 517, 518.
7 DAVID CECIL, MAX 345 (2964) (quoting a notebook kept by Max Beerbohm, around the
time of World War I) (internal quotation marks omitted).
19971 1o17
HeinOnline -- 110 Harv. L. Rev 1017 1996-1997
HARVARD LAW REVIEW
George Santayana. He was spared such a withdrawal and impelled to
a life of social usefulness by his aristocratic and Puritan sense of duty
- as well I think by Victorian masculinity and the cult of the strenu-
ous life.
Still, as a guide to law as a vocation - though certainly far supe-
rior to the promoters of the unabashedly privatized profit-seeking ethic
that emerged in Holmes's time and dominates ours - Holmes is
strangely disappointing. Though acknowledging that legal actors and
decisionmakers have discretion to choose, more often than not he urges
them to defer to power even more than their role requires, to be pas-
sive instruments of society's or clients' ends rather than active forces
to help refigure and transform those ends. He discards the traditional
roles for lawyers as seekers of justice, social mediators, and curators of
the legal framework; and although he substitutes for those roles an
undoubtedly valuable role as consequentialist policy analyst, he
doesn't expect lawyers to do much with the role except temper the
ambitions of reform movements. His ultimate ethic is one of isolated
acts of heroic intellectual achievement. But if there is to be spring-
cleaning in the Heartbreak House of the law, it will have to come
from efforts both more collaborative and more engaged.
ioi8 [Vol. 110:1OI 3
HeinOnline -- 110 Harv. L. Rev 1018 1996-1997


The Path of the Lawyer

https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2381&amp;context=fss_papers

The Path of the Lawyer

Abstract

Similar works

Full text

Available Versions

Yale Law School Legal Scholarship Repository