4 - Theories, Anti-Theories, and Norms: Comment on Nussbaum

Summary

The jurisprudence of Oliver Wendell Holmes, Jr., embodies exactly the kind of anti-theoretical reasoning that Martha Nussbaum criticizes. Holmes, as Nussbaum recognizes, was notoriously hostile to generalization and abstraction. Consider his famous aphorisms: “[G]eneral propositions do not decide concrete cases”; “[T]he life of the law has not been logic: it has been experience”; The common law … decides the case first and determines the principle afterwards.” The same attitude informs the legal doctrines that Holmes championed. The “reasonable man” standard of negligence, the “clear and present danger” test for speech restrictions, and the “dangerous proximity” test for criminal attempts – all reflect a calculated vagueness designed to preserve the freedom of the decision maker to adapt her judgment to an ever-shifting array of salient particulars.

So if Nussbaum is on target in her critique of anti-theory, we should be wary of Holmes's jurisprudence; indeed, we should be wary of the jurisprudence of a host of twentieth-century antiformalists, many of whom are indebted to Holmes. The most famous of these are the legal realists, who not only asserted the impossibility of formal deductive proofs in law, but who also defended what Karl N. Llewellyn called “situation sense” – a perceptive capacity born of a decision maker's immersion in the norms and practices of a particular field of law and social activity. In describing the common law method, Holmes spoke of a similar perceptive capacity, which he characterized as “insight, tact, and specific knowledge,” and which he contrasted to “rules of method.”