Usefulness and Limitations of Holmes’s Legal Functionalism

-- By StephenRushin - 27 Feb 2009

I. Introduction

Holmes’s legal functionalist argument seems to be an improvement on Langdell’s approach to the study of law. Nevertheless, Holmes's functionalist view of law, while extremely useful in various ways is ultimately incomplete.

II. Holmes’s Approach is Useful to an Extent

a) Relationship Between Langdell and Holmes

When reading Holmes’s Path of Law, I was reminded of Christopher Langdell’s approach to the study of law, described in less than flattering terms by Grant Gilmore in The Ages of American Law. It has been suggested that Holmes anti-logic thesis was aimed at Langdell’s view of lawyers as legal scientists.

Indeed, the two seem to disagree as to the role of logic in uncovering law; Langdell viewed law as a scientific principle that could inevitably be uncovered through logical deductions made by studying select cases, while Holmes posited the realist notion that “behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment.”

Each seemed to view the study of law as integrally related to predicting how future cases would be adjudicated. Yet, Holmes’s realistic admission as to the lack of logic within our legal system makes his theory more useful. In the end, as Gilmore explained “Holmes accomplishment was to make Langdellianism intellectually respectable.”

• Grant Gilmore's book is a tendentious and unreliable one. You can say that Gilmore asserts tat Holmes made Langdellianism intellectually respectable, but to say he "explained" that proposition is to accord him an authority he does not possess. By taking on his conclusions, and his tone, sometimes with attribution sometimes without, you are doing yourself less good than you seem to think.

b) Holmes Justifiably Argues That Judges Impose Logic on Otherwise Subjective Decisions

Especially in constitutional law cases, it seems that logic serves more as a justification for an individualized value judgment than as a mechanism forcing the proverbial hand of a judge. Logic legitimizes judicial review. Logic makes judges appear as impartial referees objectively deciding cases without predispositions. Yet the various modalities of constitutional interpretation suggest that a judge could apply numerous different, supposedly logical interpretive methods in arriving at the same decision.

For instance, defining what rights are covered by substantive due process and incorporation requires an expansive reading of the constitution that hardly follows a logical form. Judicial tests, whether they are called fundamental fairness, rigid scrutiny, or reasonableness, ultimately require a value judgment. And even if we accept that these tests are objective, we must nevertheless accept that a judge makes a choice as to which test most aptly fits within a given context.

c) Viewing the Study of Law as Predictive is Useful

In addition, Holmes’s suggestion that the purpose of studying law is to predict “the incidence of the public force through the instrumentality of the courts,” is very useful. An attorney in our legal system serves as a representative for the interests of an individual. Hence, making apt judgments as to the probability of a client being succeeding in a case is centrally important to the study of law. This suggests that rather than just being masters in the “logic” of legal decisions, lawyers must also become well versed in the various psychological and sociological factors that affect a judicial opinion.

III. The Functionalist View of the Law has Limits

Despite the usefulness of functionalist view, I think it remains somewhat limited in capturing the scope and importance of legal study. In my opinion, the study of law involves the development of an ethical foundation and a realization of the integral role attorneys can play in shaping our system of law. In some sense, a study of law requires investigation into how the law “ought” to operate, not just how it does operate. Holmes’s view seemed premised on utilitarianism. During the Lochner Era, Holmes often dissented with the Court as it overturned legislation that limited business. Nevertheless, according to Gilmore, “Holmes had no great sympathy for such legislation – he thought that most of it was silly and useless – but he consistently maintained his position that the dominant political majority is entitled to work its will on its defeated adversaries.”

• Now you are offering your "opinion" as a source of wisdom, which is less impressive than when Gilmore does it, because he was a little older and a little further along, but in any event one would want more than an opinion. The opinion being expressed here has the drawback also of less than complete understanding. Your second sentence is a truism, the third is a subject of common agreement, the fourth and fifth are non-sequitur.

Such a view suggests that the judge serves only to reflect the will of the majority, deferring to even the most apparently immoral and reprehensible legislation. I would argue that the law is a dynamic system of rules and regulations, premised upon basic fairness and morality. A lawyer’s job, along with representing the interests of a party in an adversarial system, is to develop her own conception of legal fairness.

• The suggestion results from taking Gilmore's view of Holmes and building on it. If you had explored the primary sources rather than the tendentious secondary interpretation you'd have found a more complex story.

Holmes seems to undervalue the role of “abstract principles of natural justice” in our conception of a sound body of law; it seems that in some cases, the majority of the legislature cannot (or at least should not) interfere with individual rights because “the general principles of law and reason” prevent it. [Justice Chase’s opinion in Calder v. Bull] While I am not comfortable taking the argument for natural rights quite as far as Chase, I think his underlying argument has merit. Judicial judgments often require an assessment of values and even morality.

• Holmes doesn't undervalue principles of natural law: he objects to the idea altogether. Citing Justice Chase seems like a peculiar way of discussing (or dismissing) Holmes' view. There are 660,000 corpses in between.

Perhaps inherent in my disagreement with Holmes is a deep seeded belief that humans have a somewhat consistent view of morality, with basic views on fairness, justice, and equality. I have a tough time swallowing the notion that law is nothing more a prophecy of what will happen, especially given the role lawyers can play as actors in bringing about social change.

• You meant "seated."

• That you have a tough time swallowing something is not an argument. Others would have a tough time swallowing your very peculiar argument that "humans have a somewhat consistent view of morality." If "somewhat consistent" means "inconsistent" your statement is true but unhelpful. If "somewhat consistent" means "consistent" your statement is evidently false.

To me, this is the limit of the functionalist approach to Holmes’s view of law. His view can demonstrate the predictive role of law and the use of logic to legitimize judicial opinions. But, a lawyer is not just a predictor, but also an actor within the legal system. When pursing a study of law, lawyers must develop their own view of natural rights, ethics, and morality, and deduce not just what the court will likely do, but what the court ought to do. Then a lawyer has the option, and many would argue a moral obligation, to use her degree in a way that works towards a broader realization of her conception of fairness and justice.

• You have attempted to prove Holmes wrong and failed. Perhaps it would be better to figure out what you think than what you think of what Gilmore thinks about what Holmes thinks.