There is also (to put the final spin on the system), within each of these competing imperatives, the problematic that Holmes’s dictum about the nature of reasoning identified, which is the business of deciding what counts as relevant within that particular discourse and what does not. This series of problems begins with the question of what the legally relevant “facts” in the case really are; it runs through the questions of what counts as an analogous case, what counts as an applicable general legal principle, what counts as a benefit to society, and so on; and it ends with the question of what counts as a “just result.” Holmes thought that there were no hard- and-fast distinctions in any of these areas; he believed that the an¬swer always boils down to a matter of degree. And when he said that general propositions do not decide concrete cases, he was saying that even if we were to select one imperative to trump all the others in our approach to judicial decision-making, we would still find that the consequences for any particular case were indeterminate. “Cost-benefit analysis” is as malleable as “rights talk.” When there are no bones, as T. S. Eliot once said, anybody can carve a goose.
There are bones, though. For cases get decided and verdicts get returned and opinions get written, and by a process that does not seem arbitrary or self-interested to the people who do the deciding, returning, and explaining. If the various discourses of fairness, policy, precedent, and so forth are simply being manipulated rather than applied, they are being manipulated to justify an outcome which has been reached in obedience to some standard. When Holmes said that the common law decided the result first and fig¬ured out a plausible account of how it got there afterward, the im¬plication was not that the result was chosen randomly, but that it was dictated by something other than the formal legal rationale later adduced to support it. The purpose of The Common Law was to discover what that something was.
The book originated as a series of twelve lectures at the Lowell Institute, in Boston, which Holmes delivered, to a packed hall, extem¬poraneously. It was the product of prodigious research—Holmes was regarded by his contemporaries as a frighteningly disciplined worker—and it has seemed to many competent commentators a kind of thicket of contradictory approaches, all bristling with pedan¬tic details of legal antiquarianism and technical analyses of legal doctrine.
The impression of methodological confusion arises from Holmes’s unwillingness to see the law under just one aspect. He was suspicious of formalism—the extraction of abstract legal doctrines from the analysis of sequences of cases—which was the prevailing academic approach to the law at the time: he once re¬ferred to Christopher Columbus Langdell, the dean of the Harvard Law School and founder of the case method of legal instruction, as one of “the powers of darkness.” (Langdell was probably in the audience for the Lowell Lectures, and he offered Holmes a job af¬terward anyway.) But Holmes had, in fact, praised Langdell’s case-books, and he used the case method himself when he taught at Harvard; and if there are formalist elements in The Common Law, it is because there are formalist elements in the law. Doctrinal conti¬nuity, after all, is something highly valued by judges; it is, at a mini¬mum, the best hedge against reversal. At the same time, Holmes believed that the law was susceptible to a utilitarian analysis, since the law is also an instrument of social policy; a moral analysis, since the law is a record of the conduct a society sees fit to penalize; and a historical analysis, since the law has historical roots and evolves in response to changing social conditions.
Thus the celebrated sentence in the opening paragraph of The Common Law, “The life of the law has not been logic; it has been experience,” does not say that there is no logic in the law. It only says that logic is not responsible for what is living in the law. The active ingredient in the compound, what puts the bones in the goose, is the thing called “experience.” Holmes was using that word in a particular sense. He meant it as the name for everything that arises out of the interaction of the human organism with its environment: beliefs, sentiments, customs, values, policies, prejudices—what he called “the felt necessities of the time.” Our word for it (in many ways less satisfactory) is “culture.”
Understanding Holmes’s conception of “experience” is the key to understanding almost everything that is distinctive about his view of the law. Three features seem especially significant. The first is that experience is not, in Holmes’s view, reducible to propositions, even though human beings spend a lot of time so reducing it. “All the pleasure of life is in general ideas,” Holmes wrote to a corre¬spondent in 1899. “But all the use of life is in specific solutions—which cannot be reached through generalities any more than a picture can be painted by knowing some rules of method. They are reached by insight, tact and specific knowledge.” Even people who think their thinking is guided by general principles, in other words, even people who think thought is deductive, actually think the way everyone else does—by the seat of their pants. First they decide, then they deduce.
This is obviously the idea that stands behind the assertion, in Lochner and many other places in Holmes’s writing, that general propositions do not decide concrete cases. Logical reasoning from a prioris is just not the way people make practical choices. Holmes thought that learning the abstract legal doctrines on which judicial decisions are expressly based—what used to be called “black letter law”—was therefore poor training for a lawyer. Judges do invoke these doctrines when they are explaining their decision, but (as Holmes was pointing out when he volunteered to use the same principle to decide a given case either way) the doctrines are never sufficient to account for the result reached. The hole always has a different shape from the arrow sticking out of it. So that anything that might operate as a motive for a judge’s decision—a moral con¬viction, a political preference, even (as he put it) “the blandishments of the emperor’s wife”—was, according to Holmes, legally material if it helped lawyers guess the result correctly.