History of the Law, Part 1: Keeping it Real


Today, the law is largely based on theories of human behavior, but this was not always the case. Before the nineteenth-century, laws were based much more upon the morally-informed concept of Natural Law. Then along came the Realists.

Rather than a framework focused on essential, fundamental liberties and justice, prominent conceptualizations of law came, by the late 19th century, to feature distinctly rational examinations of human nature and the role of law in governing human impulses. This concept, made popular by Supreme Court Justice Oliver Wendall Holmes in his treatise The Path of Law, endured from his tenure well into the early 1960s as an authority on jurisprudence in the United States. The main ideas, as well as the influence of his work on later interpretations, will be broken down in this post, providing insight into the modern methods used to create and interpret law within the United States

This sign marks the nearby resting place of Carrie Buck, the plaintiff in the 1927 compulsory sterilization case that reached the Supreme Court.

Legal realists insist, first and foremost, that law is human-made; people themselves shape the law as it is created and mold it as statutes are enforced. Derived from Justice Holmes’s writing on interpretation, this method of reading law and predicting the result of cases sought to bring law back to the human sphere and away from idealistic visions of rights and judgement. Notably arguing that judges are not god-like figures — that they balance competing interests and ultimately rule arbitrarily based on their political, economic, and social proclivities — as well as that law is a profession, able to be learned as any other, Holmes’s work remains a key text in the scholarly tradition against legal and moral mixing. Within his text, he argues, less than persuasively to a modern reader, that morality is insufficient in the calculation of how individual actors will behave because of the inherent criminality of “bad” men. The idea that some people are born bad due to defective genes is one, thankfully, lost mostly to time, but in Holmes’s day, it was fairly salient. Interested readers should pause now to consider the highlights of the horrifying  opinion written by Holmes in the 1927 case Buck v Bell.

Image of Carrie Buck and her mother, Emma Buck three years before their case reaches the Supreme Court

Law is not a part of morality, but is limited by it,” claims Holmes in his seminal piece. Showing, shamefully in the cited opinion, the grave fault and infringement on personal freedoms possible with inattention to moral concern, Holmes’s view is nonetheless affirmed by its salience to future scholars and jurists. Dubbed the Father of Legal Realism, a formal movement that emerged after his time, Holmes’s work was translated into the legal realist theoretical framework in later years. His objective of relieving the law from confusing moral questions remains a hallmark of the enduring legal realist drive to remove the law from divine and moral orbits and situate it back with its human creators.

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