JUSTICE HOLMES: A YANKEE STRAYED FROM OLYMPUS

Justice Holmes - Courtesy Wikipedia

Justice William Oliver Holmes (March 8, 1841 – March 6, 1935) is more famous and better known than any other judge in the English speaking world. There are numerous books written on him and there are books containing his writings and opinions. This post is about these books and which one to read.

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I passed out Law in 1973 and started my practice at Banda, where my grandfather Keshav Chandra Singh Chaudhary was a legendary advocate. He was no more, just died before I graduated but two of my uncles were still there: one was civil and the other was a criminal lawyer. They gave me first advise—read at least one Supreme Court and one Allahabad High Court journal word by word. In the later years, I added two more in the list: All England Law reports and US Lawyers Edition. I followed this practise till I became a Judge on 5th February 1999. After becoming a judge, there was no time: I just glanced at the head-notes.

One of the first case that I read was Keshvanand Bharti Vs State of Kerala AIR 1973 SC 1461 = 1973 (4) SCC 225. There were many things to be noticed in the judgement but one thing that caught my eyes was that Justice Holmes was quoted more than any other judge. Till then, I hadn’t heard of his name. During my law course, I had read everything but law, attended anything but law classes, and had devoted my time to games. It was kind of protest against wishes of my parents, who in a way had cajoled me to take up law as a profession. But once I became a lawyer, I had to be serious.

In the years to follow, I realised that Justice Holmes is more famous and more quoted than anyone else. There isn’t a Judge or a lawyer, who has not quoted him or has not used his quotation to support arguments. No wonder I read almost all his writings, his judgements and as many books written on him as I could. The first book that I read was ‘The Common Law’ edited by Mark De Wolfe Howe.

In 1880, Justice Holmes was invited to give lectures on common law by the Lowell Institute. He worked on them for the entire year and delivered twelve of them  in November-December 1880 in Boston. The last one being summary of the first eleven. These lectures were first published in 1881. Its first paragraph is a classic and part of it is more quoted in the legal world than any other quotation.

‘The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which the judges share with their fellow men, have had a good deal more to do than the Syllogism in determining the rules by which men should be governed. The law embodies the story of nation's development through many centuries, and it can not be dealt with as if it contained only the axioms and corollaries of a book of mathematics.’

At other place, while discussing ‘Early Forms of Liability’, he explains,

'It [compensation] can hardly go very far beyond the case of a harm intentionally inflicted: even a dog distinguishes between stumbled over and being kicked.'

But I must confess, in 1970’s at the early stage of my law career, I found  the book to be difficult.

Soon I read his another book ‘Collected legal Papers’. As the name suggests, it is collections of his articles and speeches. This was easy to understand and I enjoyed it thoroughly. It contains many of his gems that are quoted in the legal world. This book is worth reading.

After death of Justice Holmes, it was realised that he was a prolific letter writer and his letters to Harold Laski and Pollok and to others have also been published. Not every letter is interesting or valuable. These are meant for those, who wish to go deep into the world of Justice Holmes.

But perhaps the best book, to get acquainted with the world of Holmes, is ‘The Essential Holmes’ edited by Richard A Posner. One get birds eye view of his writings; be it in the form of his articles, or letters, or speeches, or  judgements. However they are edited but important passage or quotation from that writing is there. If one wants to have the context in which it was written  then perhaps reading of full article or judgement would be necessary. It also has edited version of ‘The Common Law’.

Holmes was less interested  in giving detailed principles involved in the case. He was more interested in using the memorable language with style to give to his readers and listeners something to think about. Justice Frankfurter once explained that he spoke for the court tersely and often cryptically. Perhaps, this is the reason why his quotations are so famous. 

Here are some quotations from his book ‘Collected Legal Papers’. In the brackets I have mentioned the name of the article or speech and page numbers (Pg) where they appear in the book ‘Collected Legal Papers’. These articles are also published in  ‘The Essential Holmes’.

• Law, wherein, as in a magic mirror, we see reflected, not our lives, but the lives of all men that have been. (The Law Pg 26); 
• The law is not the place for the artist or the poet. The law is calling of the thinkers. (The Profession of Law Pg 29)
• The past gives us our vocabulary and fixes the limits of our imagination.  We cannot get away from it. … But the present has a right to govern itself so far as it can; and it ought always to be remembered that historic continuity with the past is not a duty it is only a necessity. (Learning the Science Pg 139)
•  A system of law at any time is resultant of present needs and present notions of what is wise and right on the one hand and, on the other, of rules handed down from earlier states of society and embodying needs and notions which more or less have passed away. (The Bar As profession Pg 156). 
• The law is the witness and external deposit of our moral life. Its history is the history of moral development of the race.  (The Path of the law Pg 170)
• The prophecies of what the courts will do in fact, and nothing more pretensions, are what I mean by the law.  (The Path of the Law Pg 173)
• The rational study of law is still to a large extent the study of history. History must be a part of the study, because without it we cannot know scope of rules which it is our business to know. (The Path of Law Pg 186)
• It is revolting to have no better reason for a rule of law than that so it was laid down in the line of Henry IV.  It is still more revolting if the grounds upon which it was laid down have vanished long since and rule simply persists from blind imitation of the past. (The Path of Law Pg 187)
• Everywhere the basis of principle is tradition, to such an extent that we are in danger of making the role of history more important than it is. (The Path of the Law Pg 191).
• And happiness, I am sure from having known many successful men, cannot be won simply by being counsel for great corporation and having an income of fifty thousand dollars. An intellect great enough to win the prize need other food beside success. (The Path of the Law Pg 202).
• It is not true that in practice (and I know no reason why theory should disagree with the fact) a given word or even a given collocation of words has one meaning and no other. A word generally has several meanings, even in the dictionary. You have to consider the sentence in which it stands to decide which of those meanings it bears in the particular case, and very likely will see that it there has a shade of significance more refined than any given in the word-book. (The Theory of legal Interpretation Pg 203)
• Every one instinctively recognises that in these days the justification of a law for us cannot be found in the fact that our fathers always have followed it. It must be found in some help which the law brings toward reaching a social end which the governing power of the community has made up its mind that it wants. (Law in Science – Science in Law Pg 225)
• It often is a merit of an ideal to be unattainable. Its being so, keeps forever before us something more to be done, and saves us from the ennui of a monotonous perfection. (Law in Science – Science in Law Pg 242)
• To have doubted one's own first principles is the mark of a civilized man. To know what you want and why you think that such a measure will help it is the first but by no means the last step towards intelligent legal reform. (Ideals and Doubts 307).

Some quotations from other sources:

• It is not the will of the sovereign that makes lawyers law, even when that is its source but what… the judges by whom it is enforced, say is his will. The judges have other motives for decision, outside their own arbitrary will, besides the commands of their sovereign. And whether those motives are or are not, equally compulsory, it is immaterial, if they are sufficiently likely to prevail to afford a ground for prediction. The only question for the lawyer is, how will the judges act?   (Book notices: The Law Magazine and Review 6 American Law Review 723 (1872).
• History has to be rewritten because history is the selection of those threads of causes or antecedents that we are interested in and the interest changes in fifty years. Holmes in a letter dated 11.3. 1922 to Laski. 

Some quotations from his judicial opinions: many of which were dissenting at that time:

• Great cases like hard cases make bad law.  For great cases are called great not by reason of their real importance in shaping the law of the future but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgement. These immediate interest exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful and before which even well settled principles of law will bend.  Northern Securities Co Vs US 193 US 197 (1904);
• Constitutions are intended to preserve practical and substantial rights, not to maintain theories Davis v. Mills, 194 U.S. 451, 457 (1904);
• General propositions do not determine concrete cases. Lochner Vs New York 198 US 45 (1905);
• Fiction always is a poor ground for changing substantial rights. Haddock Vs Haddock 201 US 562 = 50 LEd 867 (1806);
• It is one of the misfortunes for the law that ideas become encysted in phrases and thereafter for a long time cease to provoke further analysis Hyde Vs United States 225 US 347 (1909);
• But the provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic, living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and dictionary but by considering their origin and the line of their growth. Gompers Vs United States 233 US 604 (1914);
• The common law is not a brooding omnipresence in the sky but articulate voice of some sovereign or quasi sovereign that can be identified.  Southern Pacific Company vs Jensen 244 US 205 = 61 LEd 1086 (1917);
• A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used. Tower Vs Eisner 245 US 418 (1918);
• But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre, and causing a panic. Schenk Vs United States 249 US 47 (1919);
•  It is not an adequate discharge of duty for the courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before. Towne v. Eisner (1918) ; Johnson v. United States 163 Fed. 30 (ist Cir 1908) (Oliver Wendell Holmes by Stephen Budiansky Pg 200)
• Taxes are what we pay for civilized society, including the chance to insure. Compania General De Tabacos De Filipinas Vs Collector 275 US 87 (1927);
• We have to choose, and for my part I think it is a less evil that some criminal should escape than that the government should play an ignoble part. Olmstead Vs United States 277 U.S. 438 (1928);
• But if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate. United States Vs Schwimmer 279 US 644 (1929).

Our Supreme Court has quoted some of his quotations and following them I have also used them. However, I could not find them in any writing or speech of Justice Holmes. Here they are. I have also mentioned the case from where they are quoted:

• The meaning of a sentence is to be felt rather than to be proved. B Prabhakar Rao Vs Desari Panakal Rao AIR 1976 SC 1803 (10) = 1976 (3) SCC 550;
• It is sometimes more important to emphasise the obvious rather than to elucidate the obscure. Maru Ram Vs Union of India AIR 1980 SC 2147 (18 = 1981 (1) SCC 107;

There are many biographies of Justice Holmes and I have read three: ‘Justice Holmes: The shaping years 1841-1870’ by Mark De Wolfe Howe but as the name suggests it is earlier part of his life; ‘Justice Oliver Wendell Holmes; Law and the Inner Self’ by G. Edward White is more detailed; however, ‘Oliver Wendell Holmes: Sage of the Supreme Court’ also written by G Edward White and published by Oxford University Press is a shorter version. If you wish to read his one biography then this is the one to read.

On 90th birthday of Justice Holmes (8-3-1931), he  spoke on the radio. He did not talk about his life. It was short and true for all of us.

'The riders in the race do not stop short when they reach the goal. There is a little finishing canter before coming to a standstill. There is time to hear the kind voice of friends and to say to oneself: the work is done. But just as one says that, the answer comes: the race is over, but the work never is done while the power to work remains. The canter that brings you to a stand-still need not be only coming to rest. It cannot be while you still live. For to live is to function. That is all there is in living. And so I end with a line from a Latin poet who uttered the message more than fifteen hundred years ago: “Death plucks my ear and says, ‘Live - I am coming.’       

Elizabeth Shiply Sergent wrote an article in The New republic in December, 1926. It opened with the sentence ‘Here is a Yankee, strayed from Olympus’. This is how he will remain and be remembered.

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