Holmes: Path of the Law...Have we Strayed too Far?

As a criminal justice major, one the the first things you learn in Criminal Law is that the law has limits. Oliver Wendell Holmes points this out and chief among the limits is history. He writes that history "overrides [rational policy] after first having been misunderstood and having been given a much broader scope than it had when it had a meaning" (Holmes 162). So the accusation is that history plays too large of a role in the law and when it does it is misinterpreted.

That was 1897.

What is the state of the law now?

We still look to history to guide cases, especially appellate decisions. History in the sense that we look at previous decisions of similar cases when we are having difficulty in making a decision about a particular case. Or we look back at similar cases and realize that the ruling was unjust and questions about particular laws are raised and often done away with. Judicial decisions, like Miranda, are huge with respect to "throw[ing light] upon the present" (Holmes 164), helping to remind, guide, and question future decisions. In some ways I think the law has become what Holmes wanted it to be for the way judicial decisions are used now. The law has to be clear. A person of common intelligence must be able to interpret and understand the law and we get rid of vagueness from the law by explicitly stating what we mean. Which is not always the case. Hence, the void for vagueness doctrine, which allows for an individual to voice that the meaning of a particular law was unclear to them and why. The burden rests on the individual to prove the truth of this, but not knowing the law is not a defense. Misunderstanding it is. If the law is unclear, it is void, hence historical cases to remind us of this.

Holmes talks a lot about legal duty being the issue with history because omission is considered a failure to act and a person can only be held criminally liable if they had a legal duty to act, which includes contracts, statutes, and special relationships (parent). Holmes' issue is that history controls quite a bit of this and I believe in some ways, this has not changed in the sense that history muddies what people believe is relevant with respect to legal duty. (By the way, see page 161, you can be held liable for negligence even if you do not have a legal duty to act, which is a huge controversy right now = strict liability).

On a different note, I think Holmes is a very smart man. I think that he is correct when he says that "the rational study of the law is still to a large extent the study of history" (158) and it needs to be a part of it. I think that his worry, which I feel is very valid, is that we would repeat history because it reflects tradition. I think in some ways we have drifted too far from that. History has set some very clear and reasonable guidelines, yet, we have a code (MPC) which states can adopt whatever portion they see fit and use it to override and guide their laws. In some ways we have drifted too far from the books and I would argue that our system and people are suffering for it. The system is broken because Holmes' advice went a little too far. Can we get back?