Holmes on agency and contract 1891 4

Lawyers like to think of Holmes as a "legal realist"---a term that sounds off to a philosopher, I think. Part of this is verbal, but it seems more accurate to call him a "legal pragmatist": circumstantial evidence exists (he was a member of the Metaphysical Club with James and Peirce and the rest), but so does textual evidence (his emphasis on common-sense in judicial reasoning, his eschewing of abstract principle, and so on).

I guess I join Brian Leiter and others who've done a lot of work to call attention to this, though Leiter (among others) has spent effort to clear things up and help the "realist" out a bit (Leiter, 2001, "Legal realism and legal positivism reconsidered," Ethics 111: 278-301). A quick look at his paper pre-convinces me that he is right. (A longer read will settle my thinking for real.) The gist of my thinking is that Holmes can be said to be pragmatist as a matter of approach to legal reasoning, while Hart and the positivists are giving a theory of the nature of law itself. Leiter holds that view, but goes much further in showing how the two can actually depend on each other. I need more to persuade me on that point.

In any case, Holmes' approach to law is clearly common-sensical and unprincipled (not in any anarchic sense, but in an anti-positivistic sense). Why not call this pragmatist?

Now the important part of this point. Holmes effectively shuts down the two familiar moves in legal philosophy---that of the positivist and that of the naturalist. Is this a good thing? We'll see. (But the Leiter caveat from earlier: maybe the realist actually needs a version of the positivist's appeal to rules. This is getting a bit complicated and will need its own post later.)

The positivist---take Hart as a paradigm---can make an appeal to the rule structure that constitutes law, and argue that those rules (properly understood) both guide and enable the jurist's reasoning. But Holmes can't make this move given his rejection of such legal abstractions. (Could he respond that the rules of the positivist aren't necessarily problematic---perhaps they are not necessarily abstract? Hard to see how he makes that move.)

The appeal to morality and the common good---the sort the natural law theorist will want to make---doesn't seem available to Holmes either.

The urgency to figure this out comes in part from thinking about how legal philosophy ought to explain the slave's place in the republic. 

At a high theoretical level the question plays out as pressure to moralize the law in the face of an egregious set of statutes (slave codes, Jim Crow laws). MLK's famous civil disobedience arguments in Letter from a Birmingham Jail represent this (leftward?) pressure on the Holmes-style legal theorist. 

But at a lower theoretical level is Holmes' discussion of contract law and its origins in Roman slave-master relations. If masters took their slaves to be agents for the purpose of making contracts, then the obligations thereby created (a cornerstone of contract law) arise pre-conventionally---at least to the extent that the families that slaves joined are pre-conventional. If so, then Holmesian contract law is naturalistic, a seeming violation of his realism.

This kind of reading is complicated by Holmes' approving quotation of Hobbes, though. Here's Hobbes:

Likewise children, fools, and madmen that have no use of reason may be personated by guardians, or curators, but can be no authors during that time of any action done by them, longer than (when they shall recover the use of reason) they shall judge the same reasonable. Yet during the folly he that hath right of governing them may give authority to the guardian. But this again has no place but in a state civil, because before such estate there is no dominion of persons. (Hobbes, Leviathan, chapter 16; emphasis mine).

Here Hobbes claims that there is no dominion of persons in the state of nature, and hence (I think) ex persona domini powers are non-natural. If so, then Holmes can be taken as claiming that the slave-master origins of contractual obligations are conventional after all.

Have to figure this out.