20 Ratio Juris 1 (2007)

handle is hein.journals/raju20 and id is 1 raw text is: 


Ratio Juris. Vol. 20 No. 1 March 2007 (1-31)


On Logic in the Law:

Something, but not All


SUSAN HAACK


Abstract. In 1880, when Oliver Wendell Holmes (later to be a Justice of the U.S.
Supreme Court) criticized the logical theology of law articulated by Christopher
Columbus  Langdell (the first Dean of Harvard Law School), neither Holmes nor
Langdell was aware of the revolution in logic that had begun, the year before, with
Frege's Begriffsschrift. But there is an important element of truth in Holmes's
insistence that a legal system cannot be adequately understood as a system of
axioms and corollaries; and this element of truth is not obviated by the more
powerful logical techniques that are now available.


1. An Old  Story, and Its Relevance Today

In one  of the best-known  passages of The Common   Law,  Oliver Wendell
Holmes  writes:

It is something to show that the consistency of a system requires a particular result;
but it is not all. The life of the law has not been logic; it has been experience. The
felt necessities of the time, the prevalent moral and political theories, even the
prejudices which judges share with their fellow-men, have had a good deal more
to do than the syllogism in determining the rules by which men should be
governed. The law embodies the story of a nation's development through many
centuries, and it cannot be dealt with as if it contained only the axioms and
corollaries of a book of mathematics.'

What  probably is not so well known is that the best-known sentence of this
well-known  passage-The life  of the law has not been  logic; it has been
experience-had   already appeared  in print the year before, in Holmes's
review of the second edition of Christopher Columbus  Langdell's Selection
of Cases on the Law of Contracts.
  This  book   of  Langdell's,  Holmes writes, is an extraordinary
production,-equally  extraordinary in its merits and its limitations. Chief

' Holmes (1881), in Novick, ed., 1995, 115.


2007 Susan Haack.

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