Llewellyn, K. N.

English

University of Chicago Law School: Chicago Unbound

BOOK REVIEWSThe Spirit of Liberty. Papers and Addresses of Learned Hand. Collected byIrving Dilliard. New York: Knopf, 1952. Pp. xxx, 262. $3.50.This is a hard book to review.It is easy to begin: one remarks that these are the truly obiter papers of themost distinguished living judge of the English-speaking law, and that Dilliard'sbiographical study (pp. v-xxv) is welcome. Then begin the troubles.Shall one go on, as is so easy, to the sudden spread of admiration for Handamong those outside our profession when his speech on "The Spirit of Liberty"caught the general eye? Along that road, one would record that in the sub-stance, as in the detail of each word, the speech stands up on one's own fortiethrereading, and seems still to belong almost beside a certain speech at Gettys-burg. The road would lead further along that line into Learned Hand's philos-ophy of freedom of thought, freedom of speech: not merely toleration, but wel-coming tolerance for and faith in growth from difference in and on every phaseof man's living. One would explain that his obiter philosophy must, of course,be read against his judicial decisions, and that he had to wrestle, as for exampleMill did not, with the problems of weighing the costs of freedom against itsgains, and with the labor of modifying even his own most precious single idealvalue to take account of other values. In these papers-cumulating into "TheSpirit of Liberty"-the forces which might limit freedom of expression mightseem to be only forces of sect or faction or bigotry; but in the whole range of theman's work, especially in his last years on the bench, one would have to recog-nize his clean tackling (in the teeth of his own articulate philosophy) of thedeeper question of when and how far the values of freedom must yield to theneeds of the society on which, and for which, the recent and delicate plant offreedom grows.Along the road opened by "The Spirit of Liberty," as along any other road Ihave been able to imagine, one would have to comment on Learned Hand'sprose style. I think it inept to dismiss the problem with "distinguished": it islike dismissing good ideas by calling them "brilliant." The secrets of style havenever been grasped, even for communication to the gifted; but in this man'sstyle one can spot one attribute of vital note to men of law. Outsiders mightcall his style "lapidary" or "polished." It is not. Any legal reader with sensi-tivity for language must feel and then see the process. Whereas Cardozo trulypolished his writing, and whereas Holmes felt for the sthking phrase-each, formy money, thereby diluting the legal job he was accomplishing--Hand worksat writing in the cleanest simple tradition of legal craftsmanship: "Firstyou work out what you want to say. Then you say it. Accurately." The resultsare almost mirrored in what Learned Hand has written of his great brother onthe bench, Tom Swan (who, in my opinion, learned his own magnificent judicialstyle even more from Hand than from Corbin): "Simple, clear, severe, trimmedof ornament. He never seeks a display of learning or a locution or phrase de-signed to divert his reader's attention from the substance he would convey, and19531THE UNIVERSITY OF CHICAGO LAW REVIEWto center it upon himself; and in this he is protected, as few of us indeed areprotected, by as complete an absence of any desire to startle and impress otherswith his endowments, as I have known on the bench or off." Hand's effective-ness along this simple line is plain from reading any twenty of his opinions insuccession; with that as a guide (a help which laymen who "think" literaturedo not have), these papers illustrate the same point unmistakably. Hand's in-tent and theory along this line was rubbed under my personal nose when I wastrying to persuade him of the value of a purpose-clause in a statute. He wouldn'tpersuade; there was just one sound way of writing: say it.The difference between the styles of Swan and Hand is thus neither in methodnor intention. It lies in what I should like to call the judicially suppressed show-off in Learned Hand, coupled with plain literary genius; even the most severelydealt-with desire for "a locution or a phrase" can, without design, as a manponders on "how to say it," lend to the final saying overtones, sparkle, fragrance.A completely different line of reviewing would offer itself if one were to con-sider the development of the man and his thoughts as reflected in the papers(and, of course, in the opinions). One is truly grateful to the editor for includingthe smug, unripe Harvard commencement address, as illuminating as wasMargaret Hall's inclusion of an undergraduate paper of Cardozo's. This busi-ness of having our heroes come before us at sixty, seventy, or eighty, as if theyhad been smashed by Vulcan out of the head of Zeus, is not good business. Theyoung have need to see and feel that greatness can begin where they themselvesare or, even better, have been and already are no longer.Still different ways of review would be along the line of, say "Learned Handand his Time," with the sharp question of why our Supreme Court could be de-prived of this major American judge, and with by-discussion of his senior andbeloved teacher, Hough, that tower of early twentieth century American com-mercial law, who died in frustration because third-rate commercial judges onthe Supreme Court rewrote and spoiled his entire sequence of Mansfeldianopinions. Or else, to review along the lines of the prior reviews, pointing out howpeople missed the various points: Berle, for example, seeking to apply a prac-ticing party politician's tests to what is no philosophy of party politics but in-stead a philosophy of sympathetic general understanding built by a great judgeto implement great judging, and by a great citizen to implement great citizen-ship and, for a citizen in office, great statesmanship. Yet another and rewardingapproach would be to see Hand in the light of his appreciations in these pagesof a variety of men worth any man'sappreciation: Holmes, Cardozo, Williston,Brandeis, Littell, Flexner, Stone, Swan, Hughes.What is clear is that no single review or manner of review can do justice toa book as deep and rich as these collected papers. You need not only to read it,but to buy it, so that you can read it every year.K. N. Llewellyn.** Professor of Law, University of Chicago Law School.

Review of \u3ci\u3eThe Spirit of Liberty. Papers and Addresses of Learned Hand\u3c/i\u3e

https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2812&amp;context=uclrev

Review of \u3ci\u3eThe Spirit of Liberty. Papers and Addresses of Learned Hand\u3c/i\u3e

Abstract

Similar works

Full text

Available Versions

University of Chicago Law School: Chicago Unbound