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The President, Mr Justice Holmes and the Life of the Law

Following Sir James Munby’s judgment in B and G (Children) (No 2), David Bedingfield, barrister of 4 Paper Buildings, considers the continuing relevance of the American jurist, Oliver Wendell Holmes.

David Bedingfield, barrister, 4 Paper Buildings

David Bedingfield, barrister, 4 Paper Buildings

The President's judgment In the Matter of B and G (Children) (No2), (14.1.2015), [2015] EWFC 3, is of interest not only because the Court for the first time addresses the difficulties of factual findings of Female Genital Mutilation. (Three experts had serious disagreements regarding whether the child had actually suffered FGM.) The case also reveals how Munby P perceives his role as a jurist and how he approaches "hard cases" in the family jurisdiction.    

After first setting out the World Health Organisation's definitions of FGM, and analysing how each expert in the case (with varying degrees of success, it has to be said) sought to answer the questions posed to them about the child's genitalia, Munby P found that in the case before him the local authority had not proved that the child in fact had suffered FGM. Two of the experts had examined the child, and the third, a consultant gynaecologist and professor at University College, had seen DVDs of the child and had met with the other two experts. The judgment is required reading for any advocate involved in a FGM case, in part because it shows the difficulties of deducing whether in fact the mutilation had occurred.

But an equally interesting portion of the judgment comes in the ensuing section, where Munby P seeks to examine why female genital mutilation is "unreasonable" parenting under the terms of s.31 of the Children Act 1989, while male genital mutilation (or circumcision) is "reasonable." Munby P accepts that there is a logical disconnect at work: It is now rare for a physician to prescribe male circumcision for therapeutic reasons.1  He concludes, therefore, that both male and female circumcision involves "significant harm." But male circumcision by itself will not establish the threshold under s.31. Only care that is not ". . . reasonable to expect a parent to give. . ." a child provides justification for the state to remove a child from the care of his or her parents.

But why is there a different rule for males and females? Munby P relies on an observation first made by the America jurist Oliver Wendell Holmes in 1881:

"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 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."

A bit of background: Holmes at the time of the lectures was a young (39 year old) lawyer in Boston, Massachusetts. His father, Dr. Oliver Wendell Holmes, Sr., was a physician and poet who, by the 1840's, was reasonably famous. His regular column in the Atlantic Magazine (The Autocrat at the Breakfast Table) was required light reading for Bostonians and New Yorkers. Holmes grew up wealthy and cosseted. His contemporaries were William and Henry James, Charles and Henry Adams. By the time of the Civil War in 1861 Holmes and his friends were vehemently anti-slavery, and Holmes duly enlisted with the 60th Massachusetts Infantry for a three year term of duty. He saw heavy fighting and was wounded three times, the last time at Cold Harbour in 1864 as Ulysses S Grant fought Robert E Lee before Richmond in some of the ugliest and most brutal battles of the war.

His biographers agree the war changed Holmes. He was by its end (and he did not stay in the Army after his discharge date in the spring of 1864, despite his father's anger and repeated letters telling him he must remain until the end) a pessimist who did not believe the war would actually change much. He was uncertain about a career, save he knew he wanted to excel as a scholar.  He wanted to study philosophy, along with William James, but his father, in the practical manner of most fathers, urged him to study law instead.

Holmes in 1865 began reading law at Harvard Law School at a time when there were no requirements for entry (other than finding the school), and no final exam at the end of the three terms that were offered. (Henry James enlisted for a year, but was so bored by it that he embarked for England and a lifetime as a novelist and ex patriot.) Holmes kept at it, and by 1867 he was working in a Boston law office and writing articles for the American Law Review.

Holmes during the next decade continued to practise law (although not often, and apparently not  all that well), but what he did primarily was read cases. He threw himself into old English reports, seeking to come up with general principles that underlay what appeared to be ". . .just one damn case after another".

The dominant mode of legal thought in the 1870s and 80s was legal formalism. The historian John Zane described this legal approach like this:

"The judicial power can only adjudicate. It can render a judgment upon a particular concrete set of facts. Every judicial act resulting in a judgment consists of a pure deduction. The figure of its reasoning is the stating of a rule applicable to certain facts, a finding that the facts of the particular case are those certain facts and the application of the rule is a logical necessity. The old syllogism, 'All men are mortal, Socrates is a man; therefore Socrates is mortal.' states the exact form of a judicial judgment."2 

Holmes saw this was ludicrous. It did not reflect what judges actually do, and it is right to say that Holmes was the first serious scholar to note that the judicial emperor had no clothes. He began to see that what judges first do is note the consequences of whatever decision the judge might make, then seek to determine whether those consequences are "beneficial". Making this determination, of course, requires the jurist to bring to the question more than simple logic or deductive ability. It inevitably requires the jurist to bring his or her own prejudices, beliefs (and perhaps misconceptions) to the task as well.

By 1870, Holmes began to lecture at Harvard, and also began to edit the American Law Review. In 1873 he published the 12th edition of Kent's Commentaries on American Law. In 1880 he was asked to give the Lowell Lectures, 12 public lectures given annually by a notable public figure. Holmes accepted. The result was the book The Common Law, published in 1881. It eventually changed the way lawyers look at the law.

Holmes's primary insight, as Munby P notes, is the recognition that law is not simply a deductive exercise in logic. Instead, judges make decisions based not only on the "felt necessities of the times", but also based on ". . . even the prejudices judges share with their fellow men". But his insights did not stop there. He sought to demystify what it is lawyers do, primarily by demystifying what judges do.  Holmes believed that morality had little to do with the basic premises of the law. He later (in 1898) expanded on this.

"Law is not a mystery. It is a well known profession. A profession is just a job people will pay others to do. What lawyers are paid for is the business of showing clients how to avoid danger from the state. 

"A legal duty is nothing but a prediction that if a man does, or omits certain things he will be made to suffer in this or that way by judgment of the court—and so of a legal right. . . 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 .... The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law."3 

This was—and remains—a revolutionary assertion. The law is not "out there, waiting to be discovered". It is merely the prediction of what a judge will do with a certain set of facts. Holmes said this as well:

"I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether. . .We should lose the fossil records of a good deal of history and the majesty got from ethical associations, but by ridding ourselves of an unnecessary confusion we should gain very much in the clearness of our thoughts."

In 1882, Holmes accepted an appointment as a professor of law at Harvard Law School. Three months after he did so, the Governor of Massachusetts offered him a judgeship. He took it. He became perhaps the most famous American jurist ever, even though in his lifetime he was much misunderstood. In 1889 he became Chief Justice of the Massachusetts Supreme Court. Thirteen years later, in 1902, he was appointed by Theodore Roosevelt to the United States Supreme Court. Holmes, a progressive Republican like Roosevelt, would never have been appointed had not William McKinley been shot and killed by a mad anarchist in 1901, elevating Vice President Roosevelt to the Oval Office. Holmes was then 61, and critics pointed out that at his age he could not expect to leave much of a legacy from the Bench. He served for 30 years.

Holmes was not a famous figure in the US until his appointment to the Supreme Court bench. He was a Republican, incredibly conservative on most issues (he believed it exceedingly foolish for legislatures to attempt to make life easier for working men or the poor, was no real supporter of the aspirations of the newly freed Black slaves, and believed it right for states to remove the wombs of women deemed "imbeciles" by a state court judge). He was an acceptable appointment by a Republican to a Supreme Court that was in no way a liberal or progressive court. Roosevelt appointed him, some critics say, because Holmes promised (through his friend the Massachusetts Senator Henry Cabot Lodge) that he would not find that the Constitution covered the newly acquired US possessions of the Philippines or Hawaii.4

But he maintained his view of how the law was created. He very quickly began to reach different conclusions from his brethren on the court on the most difficult and divisive issues of the day. He became known as the Great Dissenter, but most of his views became mainstream judicial thinking by the 1940s. He remained an active justice on the Court until he reached 90. He retired in 1932, one year after becoming the first non-Brit to be named an honorary bencher at Lincoln's Inn.

Holmes's thinking about the law remains relevant today, as Munby P reminded us.  As Judge Richard Posner of the US 7th Circuit Court of Appeals shows us, Holmes is the father of legal pragmatism, where courts openly seek to understand the impact of their judgments.5  Courts have moved beyond the formalist approach of the first half of the 20th Century and the higher courts now often discuss policy as much as law.

His views about law meant that he often wrote opinions that were contrary to his own political convictions. But by Holmes's reckoning, judges play a specific role in the US constitutional order. He therefore thought it wrong for judges to take the vaguely worded provisions of the US Constitution (in particular, the 14th Amendment) and use them to overturn decisions by state legislatures. In particular, he thought it wrong for the Supreme Court to overturn a decision by legislators to limit the hours of working people.6 (The majority of the court thought these laws violated the "freedom to contract" that was found in the 14th Amendment's guarantees.) He thought it wrong and not pragmatic for judges to issue injunctions against labour unions that were on strike, believing it far better for the judges to back off the competition between labour and capital.7 He thought it wrong for judges to punish those who wrote offensive political speeches, unless there was a "clear and present danger" that such a speech would result in immediate harmful action.8

Holmes's influence today remains pervasive. His view about law requires judges to pragmatically look at the consequences of their decisions. That does not mean there is no place for legal formalism – indeed, the pragmatic judge will know that there is a place for predictability and certainty in the law, and that at times (as Justice Antonin Scalia likes to say) the rule of law does indeed mean a law of rules.

But the hard case, where reasonable people may disagree about, for example, what is in the best interests of a child, require judges to become empiricists, to look carefully at the real world consequences of the decisions that are made. Munby P recognised that in the case of In the Matter of B and G. Holmes therefore remains relevant, 80 years after his death in 1935.

[1]  Munby P notes that (although opinions are divided) some in the medical profession do believe that there are hygienic or prophylactic benefits to male circumcision.
[2]  Zane, "German Legal Philosophy". Michigan Law Review 16 (1918), 288. See also The Path of the Law and Its Influence: The Legacy of Oliver Wendell Holmes Jr, Burton, ed, Cambridge University Press (2000), p 5.
[3]  See Holmes, "The Path of the Law" (1897) 10 Harvard Law Review 457. The article is often called the most important law review article in American legal history. See Richard Posner, The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions and other Writing of Oliver Wendell Holmes, Jr (1992 University of Chicago Press).
[4]  See Sheldon Novick, Honorable Justice – The Life of Oliver Wendell Holmes (1989  Little Brown and Co, p.) 234-235.
[5]  See  Posner, Law, Pragmatism and Democracy (2003 Harvard Univ Press).
[6]  See Lochner v New York 198 U.S. 45 (1905). New York's state legislature had limited bakers' working hours to 10 hours per day. Holmes dissented from the Supreme Court majority's conclusion that the 14th Amendment's due process clause protected the bakers' and the employers' freedom to contract. "The Fourteenth Amendment," Holmes wrote, "does not enact Mr. Herbert Spencer's Social Statics."
[7]  See Vegehlan v Guntner, 167 Mass 92, 97 (1896).
[8]  See Schenck v United States, 249 U.S. 47 (1919). Schenck was General Secretary of the Socialist party in Philadelphia. He had posted leaflets to men who were about to be inducted after being drafted. His view was that the draft was unconstitutional. A jury in Philadelphia had convicted him of violating the Espionage Act of 1917. Holmes and the Court affirmed his conviction, but Holmes's opinion set out the clear and present danger test. He later used this test to dissent against convictions by anarchists who spoke in public. See Abrams v United States, 250 U.S. 616 (1919), Holmes dissenting.