O. Holmes in the History of Legal Realism in the USA and the Problem of Typologizing His Views

O. Holmes is one of the most authoritative lawyers in American literature and in general in the history of American legal thought. He quite rightly belongs to the number of almost the founders of modern legal science in the USA. Over the following years, i.e. throughout the twentieth century and the beginning of the XXI century, many other names appeared that claim to represent American legal thought. In the second half of the twentieth century, American legal literature and the approaches of American lawyers became popular outside the United States. However, the study of European literature shows that the interest of European authors in American approaches was not large-scale, deep or at least obvious.

To a considerable extent, Soviet jurists contributed to increasing attention to American literature, who in their criticism not only often thoroughly analyzed the content and direction of the ideas of their American colleagues, but also made this line of thought more relevant than before (for example, in the works of V.A. Tumanov ^[5], A.K. Kulikov ^[4], V.G. Grafsky ^[2], etc.). American legal thought was not a special model of scientific and conceptual nature for objective reasons. Among other things, it should be noted that until 1870 there were no modern universities in the USA, not to mention the standards of vocational training ^[18]. It is very significant that, for example, one of O. Holmes' contemporaries, another equally well-known American "lawyer" R. Pound, an extremely popular and influential jurist, had no legal education at all; he was a botanist, headed the American Botanical Society, but at the same time, being a very well-read and erudite person, for more than 20 years headed one one of the most famous law faculties in the USA, namely Harvard ^{[16, p. 35-36]}. Emigrants from Europe played an important role in the formation of legal education in the USA and the development of legal science, who contributed to the formation of legal education in the USA by transferring and adapting traditional European practices, especially dogmatic techniques characteristic of the German historical school of law. At the same time, the fascination with the writings of leading European lawyers and philosophers contributed to the emergence of the foundations of legal science in the United States. Over time, references to Europeans easily disappeared from the texts of American lawyers. And as the theoretical material accumulated, the impression was formed about the originality of their own legal science.

It should also be noted that, using the term "legal science" in relation to the legal representations of American authors, it is necessary to clarify the difference in meanings that a European and American lawyer puts into this term. During the period when O. Holmes and R. Pound wrote their works, despite the pragmatic attitude in the understanding of law clearly expressed in their ideas, emphasizing the social conditionality of law dominating its logical content, there was a thorough installation to give the practice-oriented logic of American lawyers the character not only of craft, but also of science, to substantiate its conceptual the content is different, taking into account new trends in jurisprudence. The ideas of R. Iering, which arose on the basis of his ideas, such directions as "the movement of free law", "the jurisprudence of interests", attention to the issues of psychology and sociology in the understanding of law, which are in the stage of their formation, etc., — all this was popular and extremely relevant in the works of European authors. Even a cursory acquaintance with these directions, taking into account the nature of ideas about law in the traditions of Anglo-Saxon culture, easily reveals the suitability of the thesis about the central role of social practice in the formation, or rather restructuring of the theoretical foundations of law in the United States at the end of the XIX and in the XX century.

In the twentieth century, towards the middle and especially noticeably in the post-war period, an array of statements, fragmentary justifications, theses, slogans, appeals gradually formed, which together began to be interpreted as a kind of intellectual and practical education called "legal realism". American lawyers have not been able to come up with a clear theoretical justification for their mindsets. The reasons for this were that attempts to delve into the subject of pragmatism or realism unwittingly led to the fact that it had already been invented long before them, the desire to "revive" arguments about law required something practical, not traditional and conceptual. Therefore, lawyers began to share their impressions, memories, practical moods, to talk about what from the field of theoretical knowledge is useful to them in practice and why they choose one or another approach ^[14]. In addition, the great desire was to create something new, their own, American, and not imported. Here we can recall the attitude that was formed at the beginning of the XIX century to the legal profession under the influence of prevailing English ideas about the profession and its elitism. This mood gradually turned into a kind of public opinion, a corporate explanation of the guild craft of lawyers. Today, it is often proposed, almost without any criticism, to understand a theoretically mature phenomenon by legal realism. But this, of course, is not the case. There is no theory of legal realism in the American version, not to mention the fact that he himself is against any theory, any concept. He just doesn't need them. We can say that a certain parallel paradigm of perception of legal science has emerged: something that does not need traditional logic, concepts, methodology. This symbiosis is born on the basis of the false attribution of some conceptual content to the legal ideas of American lawyers, which was not there and is not there. Conceptuality is largely to European lawyers. They are proud of the culture of abstract thinking, formal logic, the development of concepts, the formation of theories, etc. But legal realism rejects these moments and categories. All its rational aspects can be easily decomposed into traditional sociological or psychological approaches to law. This means, first of all, that American legal realism should be analyzed adequately by its nature, nature and purpose, as a certain phenomenon in the intellectual life of American lawyers, as a kind of model for understanding social practice. However, to give it the features of theory or fundamental conceptuality is a mistake that gives American legal realism features that are not peculiar to it.     

At the same time, American legal realism represents a certain regional type of interpretation of legal practice, for the evaluation of which certain types of factors and conditions are recognized as significant.

In the works of the classics of American legal realism, such as O. Holmes and R. Pound, there is still a desire inspired by the development of a number of schools and trends in European legal science to build an American legal theory on the model of European ones. However, in the future, these attempts were not conceptually continued, remaining a kind of program or even a background for the practical slogans and appeals of the so-called legal realists.

For example, one of the representatives of the legal-realistic approach, who nevertheless tried to introduce elements of rationalism into the discussion of the relevant issues, F. Cohen designated his ideas as "functional jurisprudence" ^{[7, p. 7]}. At first, this author notes that correctly posed questions are important for jurisprudence. The main issue for the sphere of law is the question of how the law operates, how it functions and what mechanisms are effective for its operation. At the same time, any arguments are important for evaluating the law from this point of view: historical, analytical, ethical and functional. As a result, the author comes to the clarification that two points are important for "functional jurisprudence": the analysis of law as a function of the behavior of judges and the assessment of law as a determinant of human behavior ^{[7, p. 7]}. F. Cohen wrote: "Functionalism, as a philosophy, can be defined as a point of view according to which a thing has no "nature" or "essence” or "reality" underlying its manifestations and effects, and apart from its relations with other things; that the nature, essence or reality of a thing is its manifestations, its effects and its relations with other things; and that, besides them, "this" is nothing or, at most, a point in logical space, the possibility that something will happen" ^{[7, p. 7]}. However, in the future, all the arguments of the author are reduced to reducing the study of individual functions of law from a sociological point of view, and he called the method "realistic" or "sociological". It was proposed not even to study the social functions of law, since this was a general call, but "social factors determining the direction of the court's decision", etc., which will allow more or less reliably develop a plan for working with the client on the case. F. Cohen does not define law anywhere. Similarly, the methodological part of functionalism remains weak. Apart from arguments about the importance of studying law by its consequences, by its external manifestations and factors that affect the activities of American judges, there are no examples or methodological explanations of how functionalism should function. In this regard, we find such a message from him: "If the functionalists are right, then the meaning of the definition lies in its consequences. The definition of such a general term as "law" is significant only because it affects all our definitions of specific legal concepts" ^{[7, p. 15]}. Moreover, the explanation of this meaning boils down to excluding the word "due" from the analysis of possible court decisions on contracts, property, etc. Hence, the main thing is that the questions should be of a sociological, factual nature. And at the same time, which is very important for functional realism, references to the power or necessity of logical arguments and arguments should be avoided; on the contrary, it is important to actually analyze how, in fact, and taking into account what factors a layman, an official or a judge understands and interprets a particular decision. Therefore, F. Cohen strongly warned against the "normative use of the functional definition of law." Accordingly, the functional analysis of a legal norm or decision is a "purely descriptive process" ^{[7, p. 25]}.      

However, let's return to O. Holmes, who tried to "revive" American science, to give it a debatable character. The solution of this problem was facilitated by the study of the history of law, with special attention to the formation and evolution of Anglo-Saxon law, and the advanced ideas of European lawyers, who represented what different authors and in different countries have designated as a "new movement in science", associated primarily with imitating the natural sciences, observe the right in a living environment, extract it from life, identify and fix it with the help of textual and logical means. This is what R. Iering once called the era of realism. To a large extent, the XIX century is actually the period of formation and gradually increasing the influence of realism in legal science and practice. The so-called legal realism of the twentieth century, especially in modern interpretations, is often only an ideological construction, which is presented in isolation from the conceptual content of legal realism, which was formed in the XIX century. American legal culture turned out to be very consonant with the ideas of European and Russian realists (the translation of N.M. Korkunov's lectures into English at the beginning of the twentieth century is noteworthy ^[13]). But despite this, the process of forming the theoretical foundations of legal realism in the United States took a long time. Sociological accents and attitudes in the interpretations of the meaning and purpose of law were not immediately perceived and assimilated. A more noticeable phenomenon in the intellectual life of the United States were the ideas of philosophers and psychologists who developed under the name of pragmatism. Especially significant were the philosophical and psychological writings of W. James. Russian Russian translation of many of his works during the author's lifetime was, in particular, popular with Russian readers.

In the legal literature of the late XIX century – early XX century, there is almost no mention of O. Holmes. However, for example, in the Brockhaus and Efron encyclopedic dictionary there is information about Holmes, who is named in the dictionary as Holmes Oliver Wendell (son). It is noted, in particular, that Holmes is "an American lawyer, a professor in Boston, one of the first–class representatives of English jurisprudence. He is mainly known for his essay "The common law" <...> — a historical and dogmatic review of English common law, combining the techniques of scientific, purely sociological study of law with subtle and full of vitality dogmatic constructions (our italics). One small chapter in this study produced a decisive revolution in the views of English lawyers on the methods of evaluating contractual relations. It can serve as an example of the method of study to which legal thought is increasingly striving after the accomplished convergence of jurisprudence with sociology (our italics). Not noticed at first in Europe, G.'s book has now found itself the highest rating here" (https://rus-brokgauz-efron.slovaronline.com ).

Among the issues that remain relevant today in relation to the work of O. Holmes, the following stand out: 1) was Holmes an original thinker or an eclectic? 2) how should the influence or mutual influence of Holmes and his colleagues in the "metaphysical club" be explained? 3) what type of legal understanding is characteristic of Holmes' views? 4) how well is the place of Holmes' ideas in the history of legal thought assessed?

K. Wells, a well-known expert in the USA on the philosophy of pragmatism and its relationship with American legal theory, wrote that, from her point of view, the most difficult and controversial issues concerning the work of O. Holmes for many decades are, firstly, related to determining his place in the intellectual tradition, and secondly to what extent Holmes' legal views were influenced by positivism ^{[20, p. 543]}. Regarding the first question , the American researcher limited herself to considering Holmes ' legal views in the broad context of nineteenth - century pragmatism . As for the second, it was about criticizing the typologization of Holmes' legal ideas as positivism. At the same time, she believed that Holmes was misinterpreted, referring him to positivists, since in the XIX century pragmatism and logical positivism were often arbitrarily mixed ^{[20, p. 543]}. She believed that Holmes was mistakenly attributed to positivists, noting also the fact that subsequent generations of lawyers often attributed terminology to him that he did not use.

M. White, a professor of philosophy at Harvard University, in his work "Social Thought in America" (1947) referred Holmes to a group of scientists who were characterized by the rejection of formalism ^[21]. M. White characterizes the intellectual tradition that has been dominant in America for almost half a century (the first half of the twentieth century) as a style of thinking, illustrative examples of which were the views of D. Dewey, T. Veblen, O. Holmes, C. A. Beard, D. H. Robinson. Their unifying feature was that their ideas combined pragmatism, institutionalism, behaviorism, legal realism, economic determinism, and "new history" ^{[21, p.133]}.

M. White was delighted with the ideas of O. Holmes. The legal representations of the latter are reproduced by M. White exclusively as an element of the internal evolution of intellectual thought in America. Obviously, not knowing the sources of inspiration for O. Holmes' legal ideas, M. White tried to interpret the lawyer's catch phrases as an amazing find. In reality, it wasn't like that at all. And the ideas about the meaning of experience in the life of law, about antipathy to deductive constructions in law, and his speech entitled "Law", and later speech "By the Way of Law" and some others were written under the strong impression of acquaintance with the works of his German contemporary R. Iering ^[1]. The similarity is easily recognized not only by the content, but also by the style, by the compositional construction of the plots of the mentioned works. And Holmes himself, although he did not quote Iering directly often, admitted that he read his available works. There was no English translation of Iering's works, with the exception of a vulgar and peculiar translation in England of the essay "The Struggle for Law", and Holmes read "The Spirit of Roman Law" in French.

In the essay "By the Way of Law" O. Holmes gives a definition, often quoted later, of what he understands by law: "The prediction of what the courts will actually do, and nothing more pretentious, is what I mean by law" ^{[12, p. 458]}. M. White wrote about this that for Holmes, things that most people call law are a tool for legal predictions of what the courts will actually do. Hence, as M. White believed, "law, considered as a set of predictions, becomes an array of empirical statements, and law itself tends to become an empirical science in a perfectly simple sense" ^{[21, p. 136]}. At the same time, predictions, in turn, depend on the ability of lawyers to make generalizations about what courts will do under certain conditions. O. Holmes argued that in order to facilitate predictions and to simplify the worries of remembering decisions of the past, generalizations that are collected in books or stated in general form in laws are necessary. Hence, for example, M. White concluded that O. Holmes was not an opponent of generalization techniques, deductive method, systematic approach, despite emphasizing the importance of experience as opposed to logic.

An American jurist, at one time a professor at the University of Wisconsin, R. Gordon attributed Holmes' legal views to logical-positivist epistemology ^[8]. As an example of positivism, with which R. Gordon connects the origins of O. Holmes' legal ideas, he accepts first of all his interpretations in the works of W. Clifford ^[6] and G. Spencer ^[17]. R. Gordon, in particular, believes that both of these positivists were zealous defenders of the idea that the world is an incomprehensible object which is gradually revealed through the suppression of subjectivity. This formulation is given in the work of D. Hollinger ^{[9, p. 267]}. At the same time, R. Gordon contrasts positivist philosophy with those pragmatic ideas and principles of cognition that the participants of the intellectual circle called the Metaphysical Club, which included O. Holmes, W. James, C. Pierce and some others, tried to develop. Positivism, or more precisely scientific positivism, presupposes such an epistemological attitude that cognition should be strictly scientific, and not speculative, as in philosophy, that it should focus on the study of facts, and the main method of study becomes induction and observation, which, as proponents of the positivist methodology believed and believe, should give grounds for forecasting future events.

R. Gordon, to prove that O. Holmes was a supporter of positivist views, gives an example of the latter's interpretation of the concept of "legitimate right", which implied an understanding of this concept as a protected interest. O. Holmes wrote: "Precisely to the extent that possession is protected, it is the same source of legal rights as property is when it provides the same protection." R. Gordon probably did not know or did not want to know that these ideas, like many others, were gleaned by O. Holmes from R. Iering.

O. Holmes believed that in the development of common law, responsibility for crimes, torts and breach of contracts was increasingly based on personal, moral guilt and increasingly on an objective or external standard ^{[10, p. 119, 233, 242]}. According to O. Holmes, this standard is sometimes derived from behavior that the community, speaking through a legislative body or a jury, considers reprehensible in a normal person and which it then prohibits; in other cases, the standard is derived from political considerations unrelated, even indirectly, to moral condemnation ^[10].

Accordingly, R. Gordon does not see in everything a manifestation of scientific positivism in the work of O. Holmes, and even within the framework of one of his works "Common Law". R. Gordon, in particular, writes that he does not consider scientific positivism to be the main methodological line in "Common Law", since this method, observed by R. Gordon in in the development of some topics, it dissonates with "a strong historical understanding of the randomness of experience", as well as his thesis about the life of law, which is more experience than logic.                      

W. James, a classic of pragmatism, characterizes pragmatism as a "special method" with which any philosophical disputes should be easily resolved, since its application simplifies any philosophical concept to the level of answering the question of what practical significance it has. Therefore, it seemed to W. James that pragmatism was in harmony with many philosophical trends. In particular, he wrote: "So, for example, he agrees with nominalism in that he constantly turns to the private, individual; together with utilitarianism, he emphasizes the practical moment of reality; with positivism, he shares his contempt for verbal solutions, useless questions and metaphysical abstractions" ^{[3, p. 38]}. At the same time, this method – pragmatism – "has no dogmas, does not exhibit any special teachings" ^{[3, p. 39]}.  

R. Summers argued that Holmes, like Pound and Dewey, was characterized by an instrumental approach ^[19]. G. L. Polman attributed O. Holmes' ideas to the philosophy of utilitarianism ^[15]. P. Wiener placed Holmes' work entirely in the tradition of the so-called "American philosophical pragmatism" ^[22].

O. Holmes is indeed an extraordinary thinker. In his work, various ideas were expressed, which became decisive for the entire subsequent history of legal thought. The greatest influence on the first American realists, namely R. Holmes and R. Pound, was exerted by the so-called "new movement in the science of law", which was largely associated with the name of R. Iering. Just like a German lawyer, it is not easy to attribute American realists to a certain philosophical and methodological school that determines the typological characteristics of their legal views. The latest research shows that there is every reason to talk not only about the influence of pragmatism on O. Holmes, but also vice versa, O. Holmes on the views of his colleagues in the "metaphysical club". O. Holmes did not seek to imitate or follow any particular school at all. In different sections of his work "Common Law", one can find the use of various cognitive and explanatory techniques. In explaining the relationship between law and morality, O. Holmes imitated the concept of the "teleology of the moral world order" by R. Iering. This is evidenced by a number of judgments in articles from different years. For example, in his speech in Suffolk in 1885, O. Holmes spoke about the tasks of the historian of law, referring to them himself, namely, that the history of law is "no less than the history of the moral life of his people. For him, every text that he deciphers, every doubt that he resolves, adds a new feature to the unfolding panorama of the fate of man on this earth. His task will not be completed until, even in the most remote corners of the human imagination, until he sees with his own eyes the birth and growth of society and even in the most secret depths of the mind understands the philosophy of its existence… But to the discerning eye of [the lawyer], every painful step and every world-shaking confrontation in which humanity has worked and fought its way from savage isolation to organic social life are revealed" ^[11].

Or, for example, later in 1897, in his famous speech entitled "The Way of Law", O. Holmes reasoned that "law is a testimony and an external repository of our moral life. Its history is the history of the moral development of the people. Its practical implementation, despite popular jokes, tends to make good citizens and good people. When I emphasize the difference between law and morality, I do it for the sole purpose of studying and understanding law" ^{[12, p. 459]}. This fragment again returns to the ideas of R. Iering, expressed in his teleological concept.

All this shows that O. Holmes was clearly not close to pragmatism, at least as a direct basis for his legal views. In the essay "Common Law", especially in the section on responsibility, as well as in the article "By the Way of Law", the influence of the positivist epistemology of Kontovsky's execution is noticeable. However, the legal views of O. Holmes can most accurately be considered as a legal-realistic interpretation of law, but not in the pragmatic version of legal realism, which begins with K. Llewellyn, but as the application of the realistic theory of law by R. Iering to the analysis of traditional legal practice and behavioral patterns of judges.