From Blackstone to Holmes: The Revolt Against Natural Law

Abstract

A number of fortuitous circumstances made William Blackstone the principal teacher of law to American lawyers of the revolutionary generation and the early republic. Daniel Boorstin said of Blackstone's Commentaries, "In the history of American institutions, no other bookexcept the Bible-has played so great a role." Yet Blackstone's jurisprudence is widely regarded today as ponderous, formal, conceptual, deductive, mechanistic, naive, and hopelessly unrealistic. A revolt against formalism led by Oliver Wendell Holmes is said to have given us a better, more flexible, more adaptive concept of law. 

Liva Baker, one of Holmes's biographers, voiced the conventional understanding:

"American legal scholarship... was ripe for the kind of corrective surgery Holmes was about to perform. The traditions of the natural law-the law of nature transmitted by divine will-as explicated by Blackstone... its roots running deep into the soil of ancient Greece and Rome, had outlived its usefulness. Its immutable principles comforted. Its abstract and logical nature satisfied. Its simplicity, certainty, and reasonableness continued to be appealing. But its inertia kept it from dealing with the disorder and changefulness and all the other complexities of nineteenth-century life. The traditionalists "discovered" law which was deduced from the unchanging nature of things.... That the law's development might have been progressive was not generally recognized."

A few pages later, Baker offered this serenade to Holmes's achievement:

"[Holmes] had broken new intellectual trails, using history to guide him. He had given the law a vitality it never before had possessed. He had wrested legal history from the aridity of syllogism and abstraction and placed it in the context of human experience, demonstrating that the corpus of the law was neither ukase from God nor derived from Nature, but.., a constantly evolving thing, a response to the continually developing social and economic environment."

The goal of this brief article is to persuade you that this conventional wisdom is backwards-or, to put the matter less delicately, that the twentieth century and the twenty-first century so far have been a mistake.