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Abstract
This article undertakes a rhetorical reading of Oliver Wendell Holmes Jr.’s “The Path of the Law” (1897), attending particularly to Holmes’s use of the trope of the “oracle” in his legal philosophy to show how Holmes utilizes this figure to interrogate the Anglo-American legal tradition and to articulate his own, new understanding of the task of the law. For Holmes, lawyers reading the “sibylline leaves” of the common law will inevitably make imperfect predictions about how judges will rule a case. In contrast, Holmes suggests that lawyers should be able to make predictions with the same degree of reliability as scientific hypotheses based on the laws of physics. Similarly, Holmes argues that laws should be considered in terms of desired ends, rather than precedent and tradition, and assessed using the new quantitative social science of statistics. Thus, by turning “prophecy” into a figure of rationality, Holmes calls for a radical reinvention of the law as scientifically based and oriented towards the future.
Disclosure Statement
No potential conflict of interest was reported by the author(s).
Notes
1 Oliver Wendell Holmes, Jr., “The Path of the Law,” Harvard Law Review 10, no. 8 (1897): 457.
2 For and overview on the posthumous reception of “Path of the Law,” see Albert W. Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes (Chicago: The University of Chicago Press, 2000), 132.
3 Alschuler, Law Without Values, 132
4 Alschuler, Law Without Values, 144.
5 Laurent de Sutter calls Holmes’s turn towards oracles and prediction “[l]a plus étonnante de ces thèses” (the most astonishing of his theses). “Défense et illustration du réalisme juridique” in La voie du droit, Oliver Wendell Holmes, Jr. and Laurent de Sutter (Paris: Dalloz, 2014), 5. My translation.
6 Holmes, “The Path of the Law,” 457.
7 Holmes, “The Path of the Law,” 457.
8 James Kent, Commentaries on American Law, vol. 1 (New York: O. Halsted, 1826), 440.
9 Holmes, “The Path of the Law,” 475.
10 Moreover, this mystifying perspective of the lawyer’s job was particularly put forward on occasions such as the one on which Holmes gave his speech. See Robert W. Gordon, “Law as a Vocation: Holmes and the Lawyer’s Path” in The Path of the Law and its Influence: The Legacy of Oliver Wendell Holmes, Jr., ed. Steven J. Burton (Cambridge: Cambridge University Press, 2000), 8–11.
11 Lisi Schoenbach, for instance, notes that “there is an implied contrast here between the outmoded, disorganized, and ‘scattered’ ‘sibylline leaves’ of the law, on the one hand, and, on the other, the legal thinker of the future … Still, the language of this passage resonates throughout the essay.” Pragmatic Modernism (Oxford: Oxford University Press, 2012), 93.
12 On the “formally irrational” nature of the law’s usage of oracles, see Max Weber, Economy and Society: An Outline of Interpretive Sociology, vol. 2, ed. Guenther Roth and Claus Wittich, transl. Ephraim Fischoff et al. (Berkeley: University of California Press, 1978), 656.
13 Michael Wood, The Road to Delphi: The Life and Afterlife of Oracles (New York: Picador, 2004), 7.
14 See Richard Stoneman, The Ancient Oracles: Making the Gods Speak (New Haven: Yale University Press, 2011), 11-3.
15 Wood, The Road to Delphi, 23.
16 Wood, The Road to Delphi, 29.
17 See also Jean-Pierre Vernant, “Parole et signes muets,” in Divination et rationalité, ed. Jean-Pierre Vernant et al. (Paris: Éditions du Seuil, 1974), 23.
18 Christoph Menke, Tragic Play: Irony and Theater from Sophocles to Beckett, trans. James Phillips (New York: Columbia University Press, 2009), 18.
19 See Vernant, “Parole et signes muets,” 10.
20 On the complex relation of oracle and legal procedure, see Menke, Tragic Play, 15-22.
21 “Dans le cadre de la polis, la divination … ne peut plus avoir qu’un rôle mineur et acessoire.” Vernant, “Parole et signes muets,” 13. My translation.
22 Caleb Smith, The Oracle and the Curse: A Poetics of Justice from the Revolution to the Civil War (Cambridge: Harvard University Press, 2013), 14.
23 Smith, The Oracle and the Curse, 15.
24 Smith, The Oracle and the Curse, 11. As judges became less and less conceived of as oracles who gave voice to transcendental justice and higher law, Smith argues, this higher law and transcendental justice materialized in speech acts of a somewhat different kind: in curses. Curses, however, were not pronounced by judges, but rather by convicts, by those standing outside (or in opposition to) the law and who oftentimes criticized the positive law that condemned them. See Smith, The Oracle and the Curse, 26–28
25 William Blackstone, Commentaries on the Laws of England. Book the First (Oxford: At the Clarendon Press, 1765), 69.
26 Blackstone, Commentaries on the Laws of England, 17. The common law, Blackstone furthermore argues, as “all human laws,” is based on “the law of nature and the law of revelation.” Commentaries on the Laws of England, 42.
27 Jeremy Bentham, A Comment on the Commentaries and A Fragment on Government, ed. J. H. Burns and H. L. A. Hart (London: The Athlone Press, 1977), 195.
28 Bentham, A Comment on the Commentaries, 195.
29 For Bentham, “judicial decisions, which whenever the Common Law was asked for were to be produced corum populo, as the ostensible images of its person, not as themselves being that thing, but as evidences of there being such a thing somewhere.” A Comment on the Commentaries, 195.
30 Caleb Smith emphasizes the question of authority: “With the trope of the oracle, Blackstone mystified the origin of juridical authority.” The Oracle and the Curse, 43.
31 Holmes, “The Path of the Law,” 465.
32 Jeremy Bentham, A Comment on the Commentaries, 223.
33 As Stephen R. Perry has pointed out, “[i]t is this debunking, apparently anti-theoretical tone that has, quite understandably, led to The Path of the Law being widely read as an early but forceful articulation of some of the more skeptical themes emphasized by the legal realists.” “Holmes versus Hart: The Bad Man in Legal Theory” in The Path of the Law and its Influence, ed. Steven J. Burton (Cambridge: Cambridge University Press, 2000), 159.
34 Holmes, “The Path of the Law,” 457.
35 See “Sibylle” and “Sibyllini libri” in Der Neue Pauly: Enzyklopädie der Antike, vol. 11, ed. Hubert Canik and Helmuth Schneider (Stuttgart: Verlag J. B. Metzler, 2001), 499–502.
36 Stoneman, The Ancient Oracles, 190.
37 See “Omen” in Der Neue Pauly: Enzyklopädie der Antike, vol. 8, ed. Hubert Cancik and Helmuth Schneider (Stuttgart: Verlag J. B. Metzler, 2000), 1198–1199.
38 Wood, The Road to Delphi, 104.
39 Wood, The Road to Delphi, 116.
40 Wood, The Road to Delphi, 117.
41 Holmes, “The Path of the Law,” 457.
42 Holmes, “The Path of the Law,” 458.
43 See Daniel Weidner und Stefan Willer, “Fürsprechen und Vorwissen: Zum Zusammenhang von Prophetie und Prognostik,” in Prophetie und Prognostik: Verfügungen über Zukunft in Wissenschaften, Religionen und Künsten, ed. Daniel Weidner and Stefan Willer (München: Willhelm Fink, 2013), 10.
44 Oliver Wendell Holmes, Jr., The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Jr., ed. Richard A. Posner (Chicago: The University of Chicago P, 1992), 182.
45 Oliver Wendell Holmes, Jr., Holmes-Pollock Letters: The Correspondence of Mr. Justice Holmes and Sir Frederick Pollock, 1874-1932, vol. 2, ed. Mark DeWolfe Howe (Cambridge: The Belknap Press of Harvard University Press, 1941), 212n1.
46 Holmes, Holmes-Pollock Letters, 212.
47 Holmes, Holmes-Pollock Letters, 212.
48 Holmes, Holmes-Pollock Letters, 212.
49 Laurent de Sutter alerts us to another relevant context, namely that at the end of the nineteenth century, as Holmes was developing his conception of legal prophecies, important anthropological studies by Robert Henry Codrington and James George Frazer appeared that attended to magical practices. They showed that magic could be understood not as mysticism, but rather as a concrete procedure that creates relations and connections between things. “Défense et illustration du réalisme juridique,” 10-11.
50 Gabriel Tarde, The Laws of Imitation, trans. Elsie Clews Parsons (Gloucester: Peter Smith, 1962), 18-9.
51 Along these lines, Schoenbach reads “The Path of the Law” as “Holmes’s attempt to approach the study of law as a science, a cool-headed, modern measure of risk and probability.” Pragmatic Modernism, 85.
52 Holmes, “The Path of the Law,” 458. This, for Morton J. Horwitz, is “the first clear articulation of legal positivism—that is, an insistence on a sharp distinction between law and morals—by any American legal thinker.” The Transformation of American Law 1870-1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992), 140.
53 Holmes, “The Path of the Law,” 462.
54 Holmes, “The Path of the Law,” 469.
55 Louis Menand, The Metaphysical Club: A Story of Ideas in America (New York: Farrar, Straus and Giroux, 2001), 187.
56 Menand, The Metaphysical Club, 187
57 Holmes, “The Path of the Law,” 470.
58 Holmes, “The Path of the Law,” 470. On Lombroso and on Tarde’s critique of a Lombrosian criminal anthropology, see Piers Beirne, Inventing Criminology: Essays on the Rise of ‘Homo Criminalis’ (Albany: State University of New York Press, 1993), 147–153.
59 Holmes, “The Path of the Law,” 470. Likewise, Tarde describes crime in his Penal Philosophy as “a peculiar social fact, but after all a social fact like any other.” Gabriel Tarde, Penal Philosophy, trans. Rapelje Howell (Boston: Little, Brown, and Company, 1912), 362.
60 Oliver Wendell Holmes, Jr., The Common Law (Cambridge: The Belknap Press of Harvard University Press, 2009), 70.
61 Havelock Ellis, The Criminal (London: Walter Scott, 1892), 258.
62 Holmes, “The Path of the Law,” 471.
63 Beirne points out that “[w]ith a much greater intensity than any of his contemporaries, he [Tarde] isolated the modern city as the greatest repository of the imitative propagation of crime and also as its greatest source.” Inventing Criminology, 162.
64 Holmes, “The Path of the Law,” 468.
65 Latour succinctly summarizes Tarde: “It is in the nature of the individual agent to imitate others.” Bruno Latour, “Tarde’s Idea of Quantification,” in The Social after Gabriel Tarde: Debates and Assessments, ed. Matei Candea (London: Routledge, 2010), 151.
66 Tarde, The Laws of Imitation, 102.
67 Tarde, The Laws of Imitation, 111.
68 Tarde, The Laws of Imitation, 2.
69 Tarde, The Laws of Imitation, 138.
70 Holmes, “The Path of the Law,” 468.
71 Holmes, “The Path of the Law,” 469.
72 In addition, Alexandre Lefebvre considers it to be an a priori of Holmes’s legal theory that “in the most basic sense, the desires of a society change over time.” The Image of Law: Deleuze, Bergson, Spinoza (Stanford: Stanford University Press, 2008), 97.
73 Aldo Schiavone, The Invention of Law in the West, trans. Jeremy Carden and Antony Shugaar (Cambridge: The Belknap Press of Harvard University Press, 2012), 178.
74 Qtd. in Blackstone, Commentaries on the Laws of England, 12.
75 Blackstone, Commentaries on the Laws of England, 12.
76 Cicero, De Oratore: In Two Volumes, vol. 1, Books I, II, trans. E. W. Sutton (London: William Heinemann, 1942), 141. This passage is also paraphrased by James Kent in his Commentaries on American Law, where he speaks of the house of a “distinguished jurist[],” as “a living oracle to the whole city.” Commentaries on American Law, 494.
77 Cicero specifically calls it “disordered, and wellnigh absurd.” De Oratore, 137.
78 Holmes, “The Path of the Law,” 473-4.
79 Robert Mangabeira Unger, The Critical Legal Studies Movement: Another Time, A Greater Task (London: Verso, 2015), 75.
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Thomas Dikant
Thomas Dikant received his Dr. phil. in American Studies from the Free University Berlin, and he has subsequently taught at the Goethe University Frankfurt am Main, the Free University Berlin, and the University of Chicago. His first book, Landschaft und Territorium: Amerikanische Literatur, Expansion und die Krise der Nation, 1784-1866 (Landscape and Territory: American Literature, Expansion, and National Crisis, 1784-1866), was published with Wilhelm Fink in 2014, and his articles have appeared in Leviathan: A Journal of Melville Studies, Early American Literature, Amerikastudien/American Studies, and ESQ: A Journal of the American Renaissance.