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Review of Stephen Budiansky’s “Oliver Wendell Holmes Jr.”

In Academia, America, American History, American Literature, Arts & Letters, Book Reviews, Books, Historicism, History, Humanities, Jurisprudence, Law, liberal arts, Oliver Wendell Holmes Jr., Philosophy, Pragmatism, Scholarship, Western Philosophy on September 25, 2019 at 6:45 am

This review originally appeared here in Los Angeles Review of Books.

Do we need another biography of Oliver Wendell Holmes Jr., who served nearly 30 years as an Associate Justice of the United States Supreme Court and nearly 20 years before that on the Massachusetts Supreme Judicial Court? He has been the subject of numerous biographies since his death in 1935. We have not discovered new details about him since Harvard made his papers available to researchers in 1985, so why has Stephen Budiansky chosen to tell his story?

The answer may have to do with something Holmes said in The Common Law, his only book: “If truth were not often suggested by error, if old implements could not be adjusted to new uses, human progress would be slow. But scrutiny and revision are justified.”

Indeed, they are — both in the law and in the transmission of history. Holmes has been so singularly misunderstood by jurists and scholars that his life and thought require scrutiny and revision. Because his story is bound up with judicial methods and tenets — his opinions still cited regularly, by no less than the US Supreme Court as recently as this past term — we need to get him right, or at least “righter,” lest we fall into error, sending the path of the law in the wrong direction.

A veritable cottage industry of anti-Holmes invective has arisen on both the left and the right side of the political spectrum. No one, it seems, of any political persuasion, wants to adopt Holmes. He’s a giant of the law with no champions or defenders.

For some critics, Holmes is the paragon of states’ rights and judicial restraint who upheld local laws authorizing the disenfranchisement of blacks (Giles v. Harris, 1903) and the compulsory sterilization of individuals whom the state deemed unfit (Buck v. Bell, 1927). This latter decision he announced with horrifying enthusiasm: “Three generations of imbeciles are enough.” For other critics, he’s the prototypical progressive, decrying natural law, deferring to legislation that regulated economic activity, embracing an evolutionary view of law akin to living constitutionalism, and bequeathing most of his estate to the federal government.

The truth, as always, is more complicated than tendentious caricatures. Budiansky follows Frederic R. Kellogg — whose Oliver Wendell Holmes Jr. and Legal Logic appeared last year — in reconsidering this irreducible man who came to be known as the Yankee from Olympus.

Not since Mark DeWolfe Howe’s two-volume (but unfinished) biography, The Proving Years and The Shaping Years, has any author so ably rendered Holmes’s wartime service. Budiansky devotes considerable attention to this period perhaps because it fundamentally changed Holmes. Before the war, Holmes, an admirer of Ralph Waldo Emerson, gravitated toward abolitionism and volunteered to serve as a bodyguard for Wendell Phillips. He was appalled by a minstrel show he witnessed as a student. During the war, however, he “grew disdainful of the high-minded talk of people at home who did not grasp that any good the war might still accomplish was being threatened by the evil it had itself become.”

Holmes had “daddy issues” — who wouldn’t with a father like Oliver Wendell Holmes Sr., the diminutive, gregarious, vainglorious, and sometimes obnoxious celebrity, physician, and author of the popular “Breakfast Table” series in The Atlantic Monthly? — that were exacerbated by the elder Holmes’s sanctimonious grandstanding about his noble, valiant son. For the aloof father, the son’s military service was a status marker. For the son, war was gruesome, fearsome, and real. The son despised the father’s flighty ignorance of the on-the-ground realities of bloody conflict.

Holmes fought alongside Copperheads as well, a fact that might have contributed to his skepticism about the motives of the war and the patriotic fervor in Boston. His friend and courageous comrade Henry Abbott — no fan of Lincoln — died at the Battle of the Wilderness in a manner that Budianksy calls “suicidal” rather than bold. The war and its carnage raised Holmes’s doubts regarding “the morally superior certainty that often went hand in hand with belief: he grew to distrust, and to detest, zealotry and causes of all kinds.”

This distrust — this cynicism about the human ability to know anything with absolute certainty — led Holmes as a judge to favor decentralization. He did not presume to understand from afar which rules and practices optimally regulated distant communities. Whatever legislation they enacted was for him presumptively valid, and he would not impose his preferences on their government. His disdain for his father’s moralizing, moreover, may have contributed to his formulation of the “bad man” theory of the law. “If you want to know the law and nothing else,” he wrote, “you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.”

Budiansky’s treatment of Holmes’s experience as a trial judge — the Justices on the Massachusetts Supreme Judicial Court in those days presided over trials of first instance — is distinctive among the biographies. Budisansky avers,

[I]n his role as a trial justice, Holmes was on the sharp edge of the law, seeing and hearing firsthand all of the tangled dramas of the courtroom, sizing up the honesty of often conflicting witnesses, rendering decisions that had immediate and dramatic consequences — the breakup of families, financial ruin, even death — to the people standing right before him.

Holmes’s opinions as a US Supreme Court Justice have received much attention, but more interesting — perhaps because less known — are the salacious divorce cases and shocking murder trials he handled with acute sensitivity to evidence and testimony.

Budiansky skillfully summarizes Holmes’s almost 30-year tenure on the US Supreme Court, the era for which he is best known. He highlights Holmes’s dissenting opinions and his friendship with Justice Louis Brandeis, who was also willing to dissent from majority opinions — and with flair. For those looking for more detailed narratives about opinions Holmes authored as a Supreme Court Justice, other resources are available. Thomas Healy’s The Great Dissent, for example, dives more deeply into Holmes’s shifting positions on freedom of speech. Healy spends a whole book describing this jurisprudential development that Budiansky clears in one chapter.

Contemptuous of academics, Budiansky irrelevantly claims that “humorless moralizing is the predominant mode of thought in much of academia today.” He adds, “A more enduring fact about academic life is that taking on the great is the most reliable way for those who will never attain greatness themselves to gain attention for themselves.” Harsh words! Budianksy accuses the French historian Jules Michelet of rambling “on for pages, as only a French intellectual can.” Is this playful wit or spiteful animus? Is it even necessary?

Budiansky might have avoided occasional lapses had he consulted the academics he seems to despise. For instance, he asserts that the “common law in America traces its origins to the Middle Ages in England […] following the Norman invasion in 1066,” and that the “Normans brought with them a body of customary law that, under Henry II, was extended across England by judges of the King’s Bench who traveled on circuit to hold court.” This isn’t so. Writing in The Genius of the Common Law, Sir Frederick Pollock — “an English jurist,” in Budiansky’s words, “whose friendship with Holmes spanned sixty years” — mapped the roots of the common law “as far back as the customs of the Germanic tribes who confronted the Roman legions when Britain was still a Roman province and Celtic.” In other words, Budiansky is approximately one thousand years off. Rather than supplanting British customs, the Normans instituted new practices that complemented, absorbed, and blended with British customs.

The fact that Budiansky never mentions some of the most interesting researchers working on Holmes — Susan Haack, Seth Vannatta, and Catharine Wells come to mind — suggests willful ignorance, the deliberate avoidance of the latest scholarship. But to what end? For what reason?

It takes years of study to truly understand Holmes. The epigraph to Vannatta’s new edition, The Pragmatism and Prejudice of Oliver Wendell Holmes Jr., aptly encapsulates the complexity of Holmes’s thought with lines from Whitman’s Song of Myself: “Do I contradict myself? / Very well then I contradict myself, / (I am large, I contain multitudes.)” Budiansky recognizes, as others haven’t, that Holmes was large and contained multitudes. Holmes’s contradictions, if they are contradictions, might be explained by the famous dictum of his childhood hero, Emerson: “A foolish consistency is the hobgoblin of little minds.”

Holmes was consistently inconsistent. His mind was expansive, his reading habits extraordinary. How to categorize such a wide-ranging man? What were the defining features of his belief? Or did he, as Louis Menand has alleged, “lose his belief in beliefs”? Budiansky condenses Holmes’s philosophy into this helpful principle: “[T]hat none of us has all the answers; that perfection will never be found in the law as it is not to be found in life; but that its pursuit is still worth the effort, if only for the sake of giving our lives meaning.”

Holmes was intellectually humble, warning us against the complacency that attends certainty. Driving his methods was the sober awareness that he, or anyone for that matter, might be incorrect about some deep-seated conviction. During this time of polarized politics, self-righteous indignation, widespread incivility, and rancorous public discourse, we could learn from Holmes. How civil and respectful we could be if we all recognized that our cherished ideas and working paradigms might, at some level, be erroneous, if we were constantly mindful of our inevitable limitations, if we were searchers and seekers who refuse to accept, with utter finality, that we’ve figured it all out?

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Alabama’s Constitution(s)

In Law, Southern History, The South on September 18, 2019 at 6:45 am

On Patrick Deneen’s “Why Liberalism Failed”

In Arts & Letters, Book Reviews, Books, Christianity, Conservatism, Historicism, History, Humane Economy, Humanities, Law, liberal arts, Liberalism, Libertarianism, Philosophy, Politics, Scholarship, Western Civilization, Western Philosophy on August 28, 2019 at 6:45 am

The original version of this piece appeared here in the Journal of Faith and the Academy. A later version appeared here at Mises Wire.

Only the bold would title a book Why Liberalism Failed. Patrick Deneen, the David A. Potenziani Memorial Associate Professor of Political Science at the University of Notre Dame, has done just that, proposing that such failure has actually occurred and setting the unreasonable expectation that he can explain it. His operative premise is that liberalism so called created the conditions for its inevitable demise—that it is a self-consuming, self-defeating ideology only around 500 years old. (p. 1) “Liberalism has failed,” he declares triumphantly, “not because it fell short, but because it was true to itself. It has failed because it has succeeded.” (p.3)

Deneen doesn’t define the term liberalism, which isn’t in his index even though it’s littered throughout the book. I have it on reliable authority that one of the peer reviewers of the pre-published manuscript recommended publication to the editors at Yale University Press, provided that Deneen cogently defined liberalism and then cleaned up his sloppy references to it. Deneen ignored this advice, leaving the manuscript as is. His genealogy of liberalism is all the more problematic in light of this refusal to clarify.

Deneen presents a seeming paradox, namely that liberalism, under the banner of liberty and emancipation, produced their opposite: a vast, progressive, and coercive administrative state under which individuals have grown alienated, amoral, dependent, conditioned, and servile. “[T]he political project of liberalism,” he claims, “is shaping us into the creatures of its prehistorical fantasy, which in fact required the combined massive apparatus of the modern state, economy, education system, and science and technology to make us into: increasingly separate, autonomous, nonrelational selves replete with rights and defined by our liberty, but insecure, powerless, afraid, and alone.” (p.16)

One hears in this line echoes of Sartre, and indeed existentialism recommends a certain kind of individualism: the freedom of the rational agent, having been thrust into existence through no choice or fault of his own, to will his own meaning in an absurd and chaotic world. But existentialism is a different species of individualism from that which motivated Hobbes, Locke, and Mill: chief targets of Deneen’s ire. It’s true that Mill disliked dogmatic conformity to custom, but that is a customary—one might even say conservative—position to take. One must preserve, or conserve, after all, a critical mode for undertaking difficult questions without assuming to have already ascertained all suitable solutions. Every age must rework its approaches to perennial problems. There’s plenty of Mill to dislike from a Christian perspective, but his unlikable conclusions do not necessarily follow from his method of inquiry or openness to examining afresh the puzzles and issues with which our ancestors struggled.

The classical liberalism or libertarianism to which Christian individualists adhere promotes peace, cooperation, coordination, collaboration, community, stewardship, ingenuity, prosperity, dignity, knowledge, understanding, humility, virtuousness, creativity, justice, ingenuity, and more, taking as its starting point the dignity of every human person before both God and humanity. This individualism prospers in fundamentally conservative cultures and does not square with Deneen’s caricature of a caricature of a caricature of “liberal” individualism. This conservative individualism, a creature of classical liberalism, advocates liberty in order to free human beings to achieve their fullest potential, cultivate widespread ethics and morality, and improve lives and institutions through economic growth and development. And who can deny that the market economy with which it is bound up has, throughout the globe, given rise to improved living conditions, technological and medical advances, scientific discovery, intellectual curiosity, and industrial innovation?

Deneen wishes to rewind the clock, to recover the virtuous “self-governance” of the ancients that, he believes, was predicated on “the common good.” (p. 99) He sees in antiquity a social rootedness that aligns with Christianity as exemplified in the modern world by Amish communities.(p 106-107) His celebration of the traditional liberal arts adopts, he says, “a classical or Christian understanding of liberty” (p. 129) that emphasizes situated norms and localities, embedded cultures, and institutional continuities. This, however, is a curious take on antiquity, one that flies in the face of the anti-Christian features of classical and ancient thought extolled by Friedrich Nietzsche, Ayn Rand, and Julius Evola, who valued the pagan elements of “the ancient commendation of virtue” (p. 165) and disparaged the modern world as being too Christian.

Deneen is not interested in liberalisms, i.e., the multiplicity of concepts that fly under the banner of liberalism. He prefers casually to lump together varieties of generic ills (everything from industrialized agriculture to the infatuation with STEM, diversity, multiculturalism, materialism, and sexual autonomy) as products of the one common enemy of everything good that the classical and medieval periods had to offer. He then gives that enemy a name: liberalism. He would plunge us back, if not into antiquity, then into medieval tribalism, into periods in which the accused were tried by ordeal or combat, when blood oaths and kinship rather than trust, goodwill, or economic exchange determined one’s loyalties and allegiances.

It isn’t correct that liberalism “requires liberation from all forms of associations and relationships, from family to church, from schools to village and community.” (p. 38) On the contrary, liberalism frees people from the tyrannical and institutionalized coercion that prevents them from enjoying local associations and relationships, including those in families, churches, schools, and communities. Liberalism properly understood empowers people to group themselves and define their experience by their own customs and mores. Thanks to liberalism, Deneen himself enjoys the freedom to critique the rapidly growing government that increasingly attempts to impose on him standards and rules at odds with his own.

Extending the individualism that characterized classical liberalism to twentieth century progressivism and modern identity politics, as Deneen does, is misguided. Modern identity politics is about collectivism in the name of self-definition, self-awareness, and self-constitution, about choosing which communities (Black Lives Matter, LGBTQ, the Democratic Socialists of America, neo-Nazis, etc.) embrace the physical (e.g. ethnic or racial), ideological (e.g., pan-nationalist, Marxist, ecosocialist, feminist, anarcho-syndicalist, white supremacist), or normative characteristics (e.g. social justice or egalitarianism) around which one forms group associations.

The truth is that individualism thrives in moral, virtuous communities, and that the common good and group associations flourish in societies that acknowledge and understand the inherent worth and dignity of every individual. Of the interdependence and mutually strengthening nature of freedom and order, of the individual and society, Frank Meyer proclaimed that “truth withers when freedom dies, however righteous the authority that kills it; and free individualism uninformed by moral value rots at its core and soon brings about conditions that pave the way for surrender to tyranny.”1 To those who insist that individualism is antithetical to religious belief, which is itself indispensable to conservatism and the common good, M. Stanton Evans stated, “affirmation of a transcendent order is not only compatible with individual autonomy, but the condition of it; […] a skeptical view of man’s nature [i.e., as inherently flawed and prone to sin] not only permits political liberty but demands it.”2

In a free society, entrepreneurs and producers are looking to others, to communities, to determine basic needs to satisfy. The rational self-interest motivating creativity and inventiveness is fundamentally about serving others more efficiently and effectively, about generating personal rewards, yes—but personal rewards for making life better and easier for others. The Adam Smith of The Wealth of Nations is the same Adam Smith of The Theory of Moral Sentiments. Human beings are wired both to look out for themselves, protecting their homes and loved ones, and to feel for, and empathize with, others. Beneficence and generosity are principal aspects of the liberal individualism that Deneen maligns.

The “second wave” of liberalism, in Deneen’s paradigm, is Progressivism. (p. 142) Yet modern progressivism and the Democratic Party have almost nothing to do with classical liberalism. Curiously and, I daresay, lazily, Deneen wishes to connect them. He cannot draw a clearly connecting line between them, however, because there isn’t one. The alleged connection is the supposed ambition “to liberate individuals from any arbitrary and unchosen relationships and remake the world into one in which those especially disposed to expressive individualism would thrive.” (p. 143–44) Should we take this assertion to mean that Deneen would prefer our relations and interactions to be arbitrarily coerced by a central power in a closed society where subordinated individuals habitually follow the unquestioned commands of established superiors?

F. A. Hayek once stated that, “[u]ntil the rise of socialism,” the opposite of conservatism was liberalism but that, in the United States, “the defender of the American tradition was a liberal in the European sense.”3 Is Deneen so immersed in American culture that he cannot recognize this basic distinction? Deneen prizes the common, collective good as manifest in local communities, blaming rational self-interest for the allegedly universalizing tendency of liberalism to stamp out venerable customs and cultural norms. But he seems befuddled by the American taxonomy into which liberalism has fallen and would do well to revisit the works of Ludwig von Mises, who explained, “In the United States ‘liberal’ means today a set of ideas and political postulates that in every regard are the opposite of all that liberalism meant to the preceding generations. The American self-styled liberal aims at government omnipotence, is a resolute foe of free enterprise, and advocates all-round planning by authorities, i.e., socialism.”4

A comparison of Deneen’s speculative political theory and its abstract narrative of decline with Larry Siedentop’s deeply historical, ideologically neutral Inventing the Individual (Belknap / Harvard, 2014) reveals critical flaws in Deneen’s argument, starting with the proposition that the individualism key to liberalism is merely 500 years old. Siedentop undercuts the common portrayal of a medieval Europe gripped by poverty and superstition, monarchy and tyranny, widespread corruption and early death from which the Renaissance and, later, the Enlightenment allegedly rescued us. Siedentop sees, instead, the rise of Christianity—long before medievalism—as the cause of the rise of liberal individualism, which, in fact, has roots in the teachings of St. Paul and Jesus Christ. Whereas Deneen theorizes individualism as recent and anti-Christian, Siedentop traces its actual history as distinctly Christian, mapping its concrete features over time as it proliferated and supplanted ancient pagan cultures and customs that lacked a structural understanding of the dignity and primacy of the human person.

Siedentop attributes liberal individualism to Christianity; Deneen treats liberal individualism as inimical to Christianity. Both men cannot correct, at least not fully.

Walking back some of his grand claims, Deneen acknowledges in his final pages that liberalism, in certain manifestations, has in fact been around longer than 500 years and that it has much in common with Christianity:

While liberalism pretended to be a wholly new edifice that rejected the political architecture of all previous ages, it naturally drew upon long developments from antiquity to the late Middle Ages. A significant part of its appeal was not that it was something wholly new but that it drew upon deep reservoirs of belief and commitment. Ancient political philosophy was especially devoted to the question of how best to avoid the rise of tyranny, and how best to achieve the conditions of political liberty and self-governance. The basic terms that inform our political tradition—liberty, equality, dignity, justice, constitutionalism—are of ancient pedigree. The advent of Christianity, and its development in the now largely neglected political philosophy of the Middle Ages, emphasized the dignity of the individual, the concept of the person, the existence of rights and corresponding duties, the paramount importance of civil society and a multiplicity of associations, and the concept of limited government as the best means of forestalling the inevitable human temptation toward tyranny. Liberalism’s most basic appeal was not its rejection of the past but its reliance upon basic concepts that were foundational to the Western political identity. (pp. 184–85)

Forgive me for being confused, but I thought Deneen had set out to criticize liberalism and chart its failure, not to exalt or defend it, and certainly not to tie it to an ancient lineage associated with Christianity. This passage represents the discombobulation at the heart of Deneen’s book. Liberalism is not to blame for the massive administrative state and its networks of agents and functionaries that coerce local communities. Deneen is part of the problem he describes, championing ways of thinking and organizing human behavior that undercut his hope for the reawakening of traditional values and familial or neighborly bonds on local levels.

Deneen airs his opinions with such maddening certitude that he comes across as haughty and tendentious, as a zealously anti-libertarian manqué with an axe to grind. He lacks the delicacy and charity with which reasonable scholars of good faith approach their ideological opponents. He does not entertain the position of those who, like me, believe that liberal individualism is a necessary condition for the flourishing of local communities, the cultivation of virtue and responsibility, the forming of mediating institutions and bottom-up political associations, and the decentralization and diffusion of government power. He just can’t grasp the possibility that liberal individualism creates a vehicle for the preservation of custom and heritage, the family unit, and social bonds on local levels.

“Statism enables individualism, individualism demands statism,” (p. 17) Deneen insists with little proof beyond his own ahistorical speculative theories—ironically given his call for “smaller, local forms of resistance: practicesmore than theories.” (pp. 19–20) Here’s an alternative proposition: liberal individualism and the community bonds it generates are best protected in a Christian society that is solemnly mindful of the fallibility of the human mind, the sinful tendencies of the human flesh, and the inevitable imperfection of human institutions.

Reading Why Liberalism Failed, one might come away questioning not whether Deneen is right, but whether he’s even sufficiently well-read in the history of liberalism to pass judgment on this wide-ranging, centuries-old school of philosophy that grew out of Christianity. What an unfortunate impression to impart for someone who writes with such flair about such important trends and figures. The reality, I think, is that Deneen is erudite and learned. His tendentious depiction of liberalism is thus disappointing for not putting his erudition and learning properly on display, for promoting an idiosyncratic take on liberalism that could ultimately undermine the classical and Christian commitment to liberty that he wishes to reinvigorate.

  • 1.Frank Meyer, “Freedom, Tradition, Conservatism,” in What is Conservatism? (Wilmington, Delaware: ISI Books, 2015), p. 12.
  • 2.M. Stanton Evans, “A Conservative Case for Freedom,” in What is Conservatism? (Wilmington, Delaware: ISI Books, 2015), p. 86.
  • 3.F. A. Hayek, “Why I Am Not a Conservative,” The Constitution of Liberty: The Definitive Edition, Vol 17, The Collected Works of F. A. Hayek(Routledge, 2013), p. 519.
  • 4.Ludwig von Mises, Liberalism in the Classical Tradition (1927) (The Foundation for Economic Education and Cobden Press, 2002) (Ralph Raico, trans.), pgs. xvi-xvii.

Why Libertarians Should Care About the Constitution

In History, Judicial Activism, Judicial Restraint, Jurisprudence, Law, Libertarianism, Politics, The Supreme Court on August 14, 2019 at 6:45 am

Presidential Appointments to the United States Supreme Court

In America, American History, History, Humanities, Law, The Supreme Court on August 7, 2019 at 6:45 am

Michael Anton vs. Samuel Gregg

In America, Civics, Conservatism, Economics, History, Humanities, Law, Philosophy, Politics, Western Civilization, Western Philosophy on July 17, 2019 at 6:45 am

Oliver Wendell Holmes Jr. and Abraham Lincoln

In Arts & Letters, Historicism, History, Humanities, Law, Nineteenth-Century America, Oliver Wendell Holmes Jr., Politics, Southern History, The South on July 10, 2019 at 6:45 am

Dave Farrow and Allen Mendenhall on the High Costs of Legal Services

In American History, higher education, Law, Law School, Legal Education & Pedagogy on June 26, 2019 at 6:45 am

The Moral Imagination and the Common Law

In Arts & Letters, Conservatism, History, Humanities, Law, Legal Education & Pedagogy, Philosophy on June 12, 2019 at 6:45 am

I thought I knew a lot until I had kids. One hot Sunday summer afternoon in Alabama, when I was driving my family home from church, my son, Noah, then five, asked about the origin of roads. From a father’s perspective, this curiosity was a sweet, welcome alternative to questions about where babies come from. I explained with resolute immodesty how road construction operated, under what timelines and conditions, and using which tools and implements. I smiled, thinking the matter settled, and turned up the radio.

Then my son, in his little-boy manner and vocabulary, objected that his inquiry was, in effect, less about the technicalities of engineering or labor and more taxonomical or definitional in concern. Why wasn’t the trail near our home, trodden beneath innumerable feet, a road?  Why weren’t the sidewalks in downtown Auburn roads? What made a road a road? How did construction workers know where to build roads? From whom did they take orders and derive their authority? Could he, Noah, build a road if he wanted to? How could anyone build a road from here to there if the property along the way belonged to someone else, even multiple owners?

I turned down the radio.

This perplexing interrogation led Noah—who, again, possessed merely the lexicon and sophistication of a child—to more grating appeals for clarity and qualification. What, he wondered, empowered governments to authorize the creation and maintenance of roads? Were there roads beyond government control? What was the difference between public and private? What was government? Where did it come from? Why did we have it?

The moment I caught myself trying to explain social contract theory to a five-year-old, I realized I had been not only humbled and humiliated but overmatched, not by Noah necessarily but by the impressive sum of human ignorance about everyday experience and activity.

Though not impulsively so, I’m reflectively Hayekian and thus managed to articulate to Noah my abiding belief in the limitations of human knowledge, the selectivity of human memory, and the fallibility of human intuition, and to emphasize the importance of subjecting our most cherished principles to continued testing so they may be corrected or refined as we mature in our understanding. Roads could not be the inevitable product of one man’s awesome imagination working in isolation; rather they were the concrete product of aggregated, uncountable ideas, applied variously depending on local circumstances. This fancy way of saying “I don’t know” seemed to satisfy Noah, who grew quiet about his objections and marvels and turned his attention elsewhere.

I, however, couldn’t quiet my restless urge for the kind of comforting certitude that ultimately cannot be achieved. It wasn’t roads but knowledge itself and its embodiment or expression in the law—in particular in our Anglo-American common-law tradition—that suddenly bothered and intrigued me. Noah’s inquisitiveness had reminded me of the opening lines to a learned book on the common law:

Legal history is a story which cannot be begun at the beginning. However remote the date at which we start, it will always be necessary to admit that much of the still remoter past that lies behind it will have to be considered as directly bearing upon the later history. […] [T]he further back we push our investigations, the scantier become our sources, and the more controversial and doubtful their interpretation.[1]

The common law is not just an historical and governmental system for resolving disputes through courts and case precedents, traceable to eleventh-century England and adopted by the United States and nearly half of the countries on earth, but also a mode of preserving and transmitting knowledge about the human condition that develops out of ascertainable facts rather than abstract speculation. It’s bottom-up, reflecting the embedded norms and values of the community as against executive command or legislative fiat.

To continue reading about the common law and the moral imagination, please download the remaining essay here at SSRN.

 

[1] Theodore F. T. Plucknett, A Concise History of the Common Law 3 (1956) (Indianapolis: Liberty Fund, 2010).

Prospective Law Students Should Consider These Questions

In Law, Law School, Legal Education & Pedagogy, Teaching on June 5, 2019 at 6:45 am

An earlier version of this post appeared here at Faulkner University’s blog.

When you’re visiting law schools, remember to ask questions about the faculty and class size. Law school is more than just classrooms and libraries: It’s your home for three years, and you’ll be connected to your law school throughout your professional life.

To make sure you’re choosing the institution that’s right for you, be sure to ask these less common but crucial questions during your visit.

Does the law school offer scholarships after the first year?

Most law schools consider all new students for merit-based scholarships based on their LSAT scores, undergraduate GPAs, and other criteria such as demonstrated leadership and service. During your visit to a law school, admissions professionals will probably tell you about their merit-based scholarships and the amount you might expect to receive as an incoming student. But in most cases, those awards are guaranteed only for the first year of law school—so it’s important to ask whether similar scholarships are also available for the second and third year. At Faulkner Law, for instance, we review each student’s record at the end of the academic year to determine scholarship eligibility for the following year.

How does the law school help students secure internships or employment?

Getting into law school is an important achievement, but most people expect it to be just one more step on the path to securing the job they want. Having a J.D. after your name, however, doesn’t automatically open doors to employment; most law students secure internships while in school and rely on their law school’s career services to help them network and find employment.

At Faulkner Law, we place more than 200 students in internships every year. Our post-graduate employment rate is close to 90 percent and trending upward, and our employment rate for JD-required positions is 70 percent.

What’s it like to live here?

Most law students hope to enjoy cultural attractions, a vibrant restaurant scene, and a safe and friendly environment outside of school. Find out about the culture and community near the law school you’re considering. Consider what forms of entertainment will be available to you during the next three years when you’re not attending class or studying.

At Faulkner Law, we want our students to succeed, not just professionally but also personally and spiritually. The River Region is vibrant, and the revitalized downtown in Montgomery features several restaurants, minor-league baseball, parks, concerts, museums, historic landmarks, and tourist attractions. Many students relocate here to attend law school and then choose to make Montgomery their permanent home.

What is the law school’s vision for the future?

Law school is a choice for life, not just for three years. Faulkner Law equips students to become competent, reliable attorneys with a passion for learning and service. Our graduates dedicate their careers to solving problems, representing clients with vigor and diligence, improving lives and institutions, and cultivating an ethic of candor, civility, integrity, and professionalism.

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