CHANAKYA NATIONAL LAW UNIVERSITY,

PATNA

JURISPRUDENCE-I

Project on :-

JUSTICE HOLMES CONTRIBUTION TO LEGAL THEORY

SUBMITTED TO: Dr. MANORANJAN SUBMITTED BY

FACULTY OF LAW AJIT KUMAR SHARMA

Roll No: 1303

3rd Year, 5th Semester

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 ACKNOWLEDGEMENT

I would like to thank DR. MANORANJAN whose guidance helped me a lot with structuring
my project. I owe the present accomplishment of my project to my friends, who helped me
immensely with materials throughout the project and without whom I couldnt have
completed it in the present way.

I would also like to extend my gratitude to my parents and all those unseen hands who helped
me out at every stage of my project.

Thank you,

Ajit Kumar Sharma

Roll no-1303.

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 DECLARATION

I hereby declare that the work reported in the project entitled Justice Holmes Contribution
To Legal Theory submitted at CHANAKYA NATIONAL LAW UNIVERSITY is an
authentic record of my work carried out under the supervision of DR. MANORANJAN. I
have not submitted this work elsewhere for any other degree or diploma. I am fully
responsible for the contents of my Project Report.

Ajit Kumar Sharma

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 CONTENTS

Contents
ACKNOWLEDGEMENT ............................................................................................................................. 2
DECLARATION ......................................................................................................................................... 3
CONTENTS ............................................................................................................................................... 4
CH-1. INTRODUCTION ........................................................................................................................... 5
OBJECTIVES OF THE STUDY ..................................................................................................................... 7
RESEARCH METHODOLOGY .................................................................................................................... 7
SOURCES OF DATA .................................................................................................................................. 7
LIMITATIONS OF THE STUDY ................................................................................................................... 7
SCOPE OF THE STUDY.............................................................................................................................. 7
CH-2 . OLIVER WENDELL HOLMES AND HIS THEORIES ......................................................................... 8
CH-3. AMERICAN REALIST SCHOOL OF JURISPRUDENCE ...................................................................... 10
Meaning And Definition Of The American Realism:.......................................................................... 11
CH-4 BASIC FEATURES OF REALIST SCHOOL: ........................................................................................ 12
CH-5. CRITICISMS OF OLIVER WENDELL HOLMESS CONCEPT............................................................. 14
CH-6. CONCLUSION ............................................................................................................................... 16
BIBLIOGRAPHY ...................................................................................................................................... 18
BOOKS: .............................................................................................................................................. 18
WEBSITES: ......................................................................................................................................... 18

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 CH-1. INTRODUCTION

Oliver Wendell Holmes Jr. was a justice of the U.S. Supreme Court and legal philosopher
who has become a celebrated legal figure. His writings on Jurisprudence have shaped
discussions on the nature of law, and his court opinions have been studied as much for their
style as for their intellectual content. Though Holmes has been widely praised, he does have
critics who contend that he paid too much deference to the power of the state to control
individual freedom.1

Holmes was born March 8, 1841, in Boston. His father, Oliver Wendell Holmes Sr., was a
well-known physician, a lecturer at Harvard Medical School, an author who was widely read
in England and the United States, and a founder of the Atlantic Monthly. Holmes attended
private school and then Harvard College, graduating in 1861. With the outbreak of the Civil
War in 1861, Holmes enlisted as an officer in the Twentieth Massachusetts Volunteer
Infantry.

His military service was difficult. Holmes was wounded three times, twice almost fatally, and
suffered from dysentery. In 1863 he accepted a position as an aide to a Union general, and he
served in that capacity until 1864. He resigned his commission before the end of the war and
returned, exhausted, to Boston, where he began preparations for a legal career.

He attended Harvard Law School and graduated in 1866. He was admitted to the
Massachusetts bar in 1867. Because of inherited wealth Holmes had the financial luxury of
pursuing his intellectual interests. He edited the twelfth edition of jurist James
Kent's Commentaries on American Law (1873) and wrote many articles for the American
Law Review. Following his marriage to Fanny Dixwell in 1873, Holmes joined a prominent
Boston law firm, where he practiced Commercial Law.

Holmes did not abandon his inquiries into the nature of law. He was invited to Boston to
present a series of lectures on the law, which were published in 1881 as The Common
Law. This volume is the most renowned work of legal philosophy in U.S. history. It allowed

1
Oliver Wendell Holmes Jr. Available at http://law.jrank.org/pages/7386/Holmes-Oliver-Wendell-Jr.html last
visited on 31/10/2017

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Holmes systematically to analyze, classify, and explain various aspects of U.S. Common
Law, ranging from Torts to contracts to crime and punishment.

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 OBJECTIVES OF THE STUDY
The objectives of the study to

(i) To study Oliver Holmes contribution to legal theory.

(ii) To study Oliver Holmes contribution to American Realism.

RESEARCH METHODOLOGY
The researcher depend upon the existing materials like books, case laws, thus the researcher
opted doctrinal method of research. The researcher visited library and refer the primary and
secondary sources available there.

SOURCES OF DATA
The researcher went for primary and secondary sources of data. Secondary sources are all
those work done on primary sources.

LIMITATIONS OF THE STUDY

The researcher had time limitation as he has to complete this project within one month.

SCOPE OF THE STUDY

This research will be a source for a further researcher. This research will give him/her the
basic ideas in a very simple manner.

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 CH-2 . OLIVER WENDELL HOLMES AND HIS THEORIES

Justice Holmes was regarded as one of the mental fathers of the realist movement. Realist
thinking was introduced to American jurisprudence by Oliver Wendell Holmes Jr. (1841-
1935). Holmes Jr. was called to arms during the American Civil War and served with
distinction on the side of the union before becoming a lawyer, Harvard law professor,
philosopher and judge. He served on the Massachusetts Supreme Court for 20 years and on
the US Supreme Court for 30 years. He had an enduring interest in history, philosophy and
science-disciplines that he brought to bear on his writings. His thought was influenced by the
British Empiricists, American pragmatists such as William James, John Dewey and Charles
Sanders Peirce, the historian Henry Maine and the evolutionary biologist Charles Darwin.
Holmes was the flawed genius of American jurisprudence.

The seed of realism was sown by Justice Holmes. He said that law is not like mathematics.
Law is nothing but a precedent. According to him the law of life is logic as well as
experience2. The real nature of the law cannot be explained by formal deductive logic. Judge
make their decision based on their own sense of what is right. In order to see what the law is
in reality, he adopted the stand point of a hypothetical Bad Man Theory. This theory says
that a bad man successfully predict the actual law than other people. Holmes said that law
should be looked from bad mans perspective. On the basis of this prediction Holmes defined
the law as, Prophecies (ability to predict) of what the court will do in fact and nothing more
pretentious.

That tendency was made articulate by Justice Holmes who, in an essay published in 1897,
gave an entirely empirical and sceptical definition of law in these words: "Take the
fundamental question, what constitutes the law... you will find some text writers telling you
that it is something different from what is decided by the courts of Massachusetts or England,
that it is a system of reason, that it is a deduction from principles of ethics or admitted
actions, or what not, which may or may not coincide with the decision. But if we take the
view of our friend, the bad man, we shall find that he does not care two straws for the action
or deduction, but that he does want to know what Massachusetts or English courts are likely
to do in fact. I am much of his mind. The prophecies of what the courts will do in fact and
nothing more pretentious are what I mean by the law". Prof. Dias points out that Justice

2
Holmes account of his own lectures given in the book notices section of volume 6 of the American law
review,

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Holmes was not giving a final definition of law. The statement that law is only what courts do
is iconoclastic and suggests that ethics, ideals and even rules should be put on one side.
Holmes himself had no such intention as he himself insisted in the same paper on the need to
restrict the area of uncertainty and the need for more theory. To quote him: "We have too
little theory in the la w, rather than too much." When he wrote, he did not have any suspicion
that he would be hailed as the prophet of a new faith. Dr. Friedmann points out that the
abovementioned statement was taken as a gospel by the followers of realism and
jurisprudence and they followed that and some similar statements of Holmes with almost
religious fervour. Both in his writings and his long tenure as a judge of the Supreme Court of
America, Holmes played a fundamental part in bringing about a changed attitude to law. He
put emphasis on the fact that the life of law was experience as well as logic. He stressed the
empirical and pragmatic aspect of law. For him, legal history was to be studied primarily as a
first step towards a deliberate reconsideration of the worth of rules developed historically3.
According to him, law must be strictly distinguished from morals. A lawyer is concerned
with what the law is and not with what it ought to be. Holmes was never tired of asserting
how "policy" governed legal development, especially in the form of the "inarticulate"
convictions of those engaged in creating law. Holmes felt that the development of law could
be justified scientifically4. In this respect, Holmes relied more on practical than on pure
science, the lawyer trained in economics and statistics though he no-where clearly indicated
how an objectively sound "policy" was to be attained. Holmes accepted the possibility of
scientific valuation in law, but he did not go so far as Dewey in the view that the choice
between different values can also be verified scientifically. For Holmes, the arbiter of this
choice could only be naked force. Holmes' view of law as "prediction" placed both litigation
and the professional lawyers in the centre of the legal stage. His emphasis on what courts
may do, rather than on abstract logical deduction from general rules, focussed attention of the
empirical factors which constitute a legal system. There was much in the American system
which made this new approach acceptable to American lawyers, Holmes' reliance on practical
social science seemed to point the way to future progress. His dissenting judgments in
Lochner and Adams cases were thought to point the way to a more rational and scientific
application of the Constitution to the actual social needs of the highly industrialised modern
society.

3
Surya Prakash Sinha,Jurisprudence Legal Philosophy, West Group, 4th Edition, 2003
4
Holmes, The path of the Law in collected legal papers at page.173

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 CH-3. AMERICAN REALIST SCHOOL OF JURISPRUDENCE
Realist thinking was introduced to American Jurisprudence by Oliver Wendell Holmes5

Oliver Holmes has been described as the intellectual inspiration6and even the spiritual father7
of the American realist movement. Holmes was sceptical of the ability of general rules to
provide the solution to particular cases and readily gave credence to the role of extra-legal
factor in judicial decision-making. Homes gave the first and classic exposition of the court-
focused approach in 1897. Sowing the seeds for realism, in a paper called The Path of the
Law.

American Realism is not a school of jurisprudence but it is pedagogy of thought. They are
concerned with the study of law as it works and functions which means investigating the
social factors that makes a law on the hand and the social results on the other. The emphasize
more upon what the courts may do rather than abstract logical deductions from general rules
and on the inarticulate ideological premises underlying a legal system.

The realism is the anti-thesis of idealism. Some jurists refuse to accept the realist school as a
separate school of jurisprudence. American realism is a combination of the analytical
positivism and sociological approaches. It is positivist in that it first considers the law as it is.
On the other hand, the law as it stands is the product of many factors. In as much as the
realists are interested in sociological and other factors that influence the law. Their concern,
however, law rather than society. Realists dont give any importance to laws enacted by
legislature. And they uphold only judge-made law as genuine law.

A great role of judges understanding about law, society and also their psychology affect any
judgment given by them. At the same time, in a same case applying same law two different
judges give the different judgments. Realism denounces traditional legal rules and concepts
and concentrates more on what the courts actually do in reaching the final decision in the
case. In strict sense, realists define law as generalized prediction of what the courts will do.
Realists believe that certainty of law is a myth and its predictability depends upon the set of
facts which are before the court for decision. It presupposes that law is intimately connected
with the society and since the society changes faster than law so there can never be certainty
about law. They do not support formal, logical and conceptual approach to law. The realist

5
Lectures on Jurisprudence {4th ed., Campbell), Vol. 1, p. 86. Cited in W. Friedman, Legal Theory, Fifth
edition pg no. 211
6
V.D. Mahajan,.Jurisprudence And Legal Theory,Eastern Book Company, 5th Edition, 2014.
7
Introduction to jurisprudence, page no.451

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school evaluates any part of law in terms of its effect. Jerome Frank has stated, Law is what
the court has decided in of any particular set of facts prior to such a decision, the opinion of
lawyers is only a guess as to what the court will decide and this cannot be treated as law
unless the Court so by its judicial pronouncement.8The judges decisions are the outcome of
his entire life history9.

Meaning And Definition Of The American Realism:

The insights of legal realism are mainly negative, revealing a deep skepticism about the
model of rules, about any general and abstract theory of the law. Realism was not
consolidated into a definite, coherent theoretical system; it can at best be described as
movement or historical phenomenon rather than a school of thought. American Legal
Realism expressed a set of sometimes self-contradictory tendencies rather than a clear body
of tenets or a rigorous set of methodologies or propositions about legal theory.

According to Roscoe PoundRealism is the accurate recording of things as they are, as

contrasted with things as they are imagined to be or wished to be or as one feels they ought
to be.

According FriedmanRealist school prefers to evaluate any part of law in terms of its
effects.

8
Cited in V. D. Mahajan , Jurisprudence and Legal Theory, Eastern Book Company, Fifth edition, pg no. 653
9
Jurisprudence, pp.621-22.

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 CH-4 BASIC FEATURES OF REALIST SCHOOL:

Realism denounce traditional legal rules and concepts and concentrates more on what
American legal realism consists of variety of ideas as enunciated by various realist
philosophers, philosophies of the different realists on following common features:

American realism calls in question the certainty of the law. law is not something
certain, it is not what the judges have said, but what they will do.
Legal realism attacks conceptualism.
Society is continuously changing and therefore law must change with it.
Legal realism separates the is from the ought.
Law is not just the statute but the interpretation of the statute.
Law is what the law does.
Legal realism puts a stress on evaluation of the law in terms of its impact and effects
on society.
Law is just a prediction of what the court will do.
Their approach to law was not concerned with any kind of ideology or theory of
justice.

Realism denounces traditional legal rules and concepts and concentrates more on what the
courts actually do in reaching the final decision in the case. In strict sense, realists define law
as generalized prediction of what the courts will do. There are certain principal features of
realistic jurisprudence as outli1. There has to be a conception of law in flux and of the
judicial creation of law. There are certain principal features of realistic jurisprudence as
outlined by by Karl Llewellyn and Prof. Goodhart10

1. There has to be a conception of law in flux and of the judicial creation of law.

2. Law is a means to social ends; and every part of it has constantly to be examined for its
purpose and effects, and to be judged in the light of both and their relation to each other.

3. Society changes faster than law and so there is a constant need to examine how law meets
contemporary social problems.

10
Dr. N. V. Paranjape, Studies in Jurisprudence and Legal Theory, 6th edition 2011, pg no. 82

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4. Realists believe that there can be no certainty about law and its predictability depends upon
the set of facts which are before the court for decision.

5. They do not support formal, logical and conceptual approach to law because the Court
while deciding a case reaches its decisions on emotive rather than logical ground.

6. They lay greater stress on psychological approach to the proper understanding of law as it
is concerned with human behaviour and convictions of the lawyers and judges.

7. Realists are opposed to the value of legal terminology, for they consider it as tacit method
of suppressing uncertainty of law.

8. The realists introduced studies of case law from the point of view which distinguished
between rationalization by a judge in conventional legal terminology of a decision already
reached and the motivations behind the decisions itself.

9. The realists also study the different results reached by courts within the framework of the
same rule or concept in relation to variations in the facts of the cases, and the extent to which
courts are influenced in their application of rules by the procedural machinery which existsfor
the administration of the law.

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 CH-5. CRITICISMS OF OLIVER WENDELL HOLMESS CONCEPT.

1. One limitation of the American realist approach is that it can only be applied where
the judiciary is not intimidated by the legislative forces and where the interaction of social
forces is sufficiently free so as to enable their scientific weighing. Therefore, it fails for those
who seek a universal definition of law.

2. Furthermore, it can apply only to a legal system whose method is case law. Only in
such a system can one find judicial decisions as a body of facts.

3. In identifying the field of law as exclusively judicial, the American realists expunge
rules and principles.

4. There are four types of difficulties with American realism one, it does not adequately
deal with the question of ideals of law. Second is realism too, becomes only a formalistic
approach, incapable of the reform that its advocates seem to desire. Third, it allows a
framework in which any preferred ideology can be promoted. Four, it provides no means for
distinguishing good law from bad law.

5. By reducing law to the fact of judicial behaviour, American realism has eliminated
any distinction between facts and law.

6. The method of legal rules, as distinguished from the realist method, consists both of
formal rules and judicially formulated rules that fill gaps in the formal rules.

7. The procedure of the American realists is to focus upon the wording of the law and
then criticize it as being an inadequate statement of legal phenomena and therefore
inappropriate for defining that phenomenon.

8. The American realist ignore the fact the law adapts itself to the constantly changing
conditions by asking what the legislator in a statute or the judge in an opinion would have
meant.

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9. The realists believe that an institution exists in the fact that people behave in certain
patterns11.

10. The American realists call a decision the behaviour of the judges. However, this does
not seem correct. Behaviour connotes physical acts that are connected with the judges
organism.

11. A legal decision does not follow the pattern of physical causation either. Thus
obedience to the decision by one on whom it is legally binding depends on an independent
judgment and will.

12. Holmes bad man is not a very convincing character. Holmes make him worry about
judicial scorn but be totally indifferent to extralegal penalties. It is hard to conceive of a
temperament that would be so worried about judicial penalty but not at all worried about
other penalties.

13. Holmes maintains that rights and duties resolve themselves into nothing other than a
prediction of what the courts will do about them.

11
Surya Prakash Sinha,Jurisprudence Legal Philosophy, West Nutshell Group series, 4th Edition, 2003.

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 CH-6. CONCLUSION

Oliver Wendell Holmes is certainly one of the greatest legal scholars the world will ever
know. His scholarly legacy is, perhaps, unsurpassed and 70 years after his death his thoughts
and opinions are cited as though they were expressed yesterday. If the belief in reincarnation
is legitimate, we should hope that he would be reborn to continue with his excellent legal
expositions. We should not hope, however, that he would be reborn an imbecile. For in that
case we will lose his worth, judging by his own standards, because he will rather be a burden
on society

Holmes is a realist at heart. He tries to show that the study of the law cannot be dissociated
from social forces. We learn from him that: 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,
institutions of public policy, avowed or unconscious, even the prejudices which judges share
with their fellow-men, have a good deal more to do than the syllogism in determining the
rules by which men should be governed.12

Holmes says that The whole outline of the law as it stands to-day, is the resultant of a conflict
between logic and good sense the one striving to carry fictions out to consistent results, the
other restraining and at last overcoming that effort when the results become too manifestly
unjust.

Realists define law as a generalised prediction of what the courts will do. Realists believe the
certainty of law is a myth and it is predictability depends upon the set of facts which the
before court for decision. Legal realism emerged as an anti-formalist and empirically oriented
response to and rejection of the legal realism. Legal realism operates on a premise that a
adhered to by most laymen and many who have legal training that the law whatever that
may be is concerned with what the law should or ought to be, but that legal realism simply
seek to describe what law is. Proponents of legal formalism disagree, saying that law is
what is commanded by a law giver, that judges are not law giver, and what judges do, while it
might belong to the field of law, is not law but legal practice. American realism jolted legal
positivism out of its complacency by questioning widely held assumptions about the nature of

12
The Prophecies of the Prophetic Jurist A Review of Selected Works of Oliver Wendell Holmes, Jr. Available
at http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1025&context=lps_papers last visited on
30/10/2017.

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rules. Realism prompted the rethink of legal positivists to distance themselves from
formalism and to reconsider the nature of legal language and judicial discretion.

American legal realism is often remembered for its challenge to the classical legal claim that
orthodox legal institutions provided an autonomous and self-executing system of legal
discourse untainted by politics. Unlike classical legal thought, American legal realism
worked vigorously to depict the institution of law without denying a picture of sharp moral,
political, and social conflict. The most important legacy of American legal realism is its
challenge to the classical legal claim that reasoning was separate and autonomous from moral
and political discourse.

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 BIBLIOGRAPHY

BOOKS:
i. Biswas A. R , Modern Jurisprudence, Kamal Law House. 2006.
ii. Mahajan V. D, Jurisprudence and Legal Theory, 5th Edition Eastern Book Company,
2007.
iii. Freidman. W, Legal Theory, Universal Law Publishing Co. Pvt. Ltd, 2006.
iv. Dr. Paranjape. N. V, Studies in Jurisprudence and Legal Theory, Central Law
Agency, 2011.

WEBSITES:
i. http://en.wikipedia.org/wiki/American_realism on 08-11-2016 at 2000hrs.
ii. http://books.google.co.in/books?id=6nf4hZ0FjdUC&pg=PA21&lpg=PA21&dq=posit
ivism+with+reference+to+american+realism&source=bl&ots=qFVtIdQewF&sig=xSh
XP1VBwWnuzYTyC0HAPHGM780&hl=en&sa=X&ei=d0qMUvraE8mJrQeV4oDg
DQ&ved=0CGQQ6AEwCQ#v=onepage&q=positivism%20with%20reference%20to
%20american%20realism&f=false on 09-11-2016 at 2200hrs.
iii. http://onlinelibrary.wiley.com/doi/10.1111/j.1468-2230.1972.tb01343.x/pdf on 10-11-
2016 at 2200hrs.

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