How Not to Train Your Dragon, or Living Dangerously in the Law.

Author:Blumenthal, Susanna L.
Position:Symposium on Robert W. Gordon's 'Taming the Past: Essays on Law in History and History in Law'

Taming the Past (1) and the image that graces its cover are meant to call to mind the cave-dwelling dragon of which Oliver Wendell Holmes spoke in his famously iconoclastic 1897 vocational address The Path of the Law. (2) While the speech is most commonly associated with "our friend the bad man" and the prediction theory of law, (3) Bob Gordon redirects our attention to what the great jurist had to say about the place of history in "the rational study of the law." (4) As Gordon reminds us, Holmes assigned history a role that was preliminary and mostly negative, speaking of it as "the first step toward an enlightened skepticism, that is, toward a deliberate reconsideration of the worth of ... [legal] rules." (5) There was a tinge of the romantic in this rendering of historical inquiry, for in his next breath Holmes figured the quest for the past in heroic terms: "When you get the dragon out of his cave on to the plain and in the daylight, you can count his teeth and claws, and see just what is ... his strength."6 But Holmes emphasized that "to get him out is only the first step," implying that the historian's work was then done. (7) The next step was "either to kill him, or to tame him and make him a useful animal," a decision Holmes implied should be made by "the man of statistics and the master of economics." (8) Holmes was contemptuous of legal arguments and practices that proceeded solely or blindly upon the authority of the past. And he "look[ed] forward to a time when the part played by history" in the study of law "shall be very small, and instead of ingenious research we shall spend our energy on a study of the ends sought to be attained and the reasons for desiring them," which he took to be the province of the social sciences. (9)

In arraying himself against appeals to the past as a source of authority, Holmes qualifies as a practitioner of critical history in Gordon's book. But the Victorian jurist's modes of contending with the dragons of our legal past do not appear as an unambiguously good model in Taming the Past. Indeed, a pronounced ambivalence runs through all Gordon has written about Holmes, though it is most apparent in the essays Gordon penned on The Common Law (10) and The Path of the Law, in each case to mark the 100th anniversary of the work's publication. While Gordon praised The Common Law for seeking to ground legal theory in "cosmopolitan historical learning" and underscoring "the historical and social contingency of legal rules," he declared the book as a whole to be "at war with itself," reflecting an unresolved tension between conceptualism and historicism in Holmes's legal thought and practice. (11) Gordon nonetheless tempered these criticisms as he concluded the piece, acknowledging it to be "somewhat ungracious" to focus on Holmes's shortcomings on such an occasion, "making him, in a sense, my host and me his parasite." (12) He then recast the relationship in almost oedipal terms as he recalled Ralph Waldo Emerson's advice to Holmes after reading the latter's critique of Plato: "[W]hen you strike at a king, you must kill him." (13) Yet Gordon was quick to disclaim anything like homicidal aggression, explaining: "It is simply because Holmes saw so much deeper than others that I expect more of him and find his persistent reluctance to develop those insights harder to forgive." (14) Writing in a similar vein about Holmes's The Path of the Law some fifteen years later, Gordon found the rendering of "law as a vocation" in the speech "strangely disappointing," once again lamenting the jurist's failure to live out the potential in his own ideas. (15) To be sure, Holmes had admirably spent his career in the public world among practical-minded Boston lawyers and businessmen rather than "withdrawing] ... [to] become a pessimistic Cassandra ... or an expatriate aesthete" like others in his intellectual milieu. (16) But Gordon could not recommend Holmes's professional ethic of living "greatly in the law," (17) as it encouraged undue deference to the powerful and valorized "isolated acts of heroic intellectual achievement" instead of calling on lawyers to perform constructive roles in the polity. (18) And Gordon maintained that any improvement of the legal system and the society it is meant to serve "will have to come from efforts both more collaborative and more engaged." (19)

This is, of course, a Holmesian way of reading the compelling figure of Holmes, helping us to see just what is his strength. Viewing him through Gordon's eyes also brings into sharper focus the distinguishing features of Gordon's own critical historicism, an enterprise that questions the very possibility of taming or escaping the past...

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