Sic et non, Justice Holmes style

|The Volokh Conspiracy |

From Holmes's "The Path of the Law":

"It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV."

From Holmes's review of Holdsworth's A History of English Law:

"[I]mitation of the past, until we have a clear reason for change, no more needs justification than appetite."

According to Westlaw, the former is quoted in 146 cases, 534 secondary sources, and 89 briefs, while the latter is quoted in 0 cases, 5 secondary sources, and 0 briefs.

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  1. Now do his free-speech opinions.

  2. People are to caught up with empirical truth being needed to justify policy, Sometimes correlation is good enough. Consider an atheist person living in the Iron Age. He would not have a working knowledge of germ theory but he might also say that the Bible has no provable truth so it should be discarded. So when he comes across the passage “You are to have a place outside the camp and go there to relieve yourself”. Deuteronomy 23:12. he might think to ignore it because he can not prove that it is a good idea to do this. The end result is this Iron Age man dies of dysentery. The same can be said about our Common Law traditions. If the law has been the way it has been for a thousand years unless you have a good reason to change the law then you should keep the law as is. It is not enough to say we do not know why the law’s purpose so we should discard it.

    1. I’ll see your urination and raise kosher restrictions, no electricity on the sabbath (but you can hire some heathen to turn lights on for you), no pictures of Mohammed or Allah, differing definitions of events based on whether clouds hide the moon, and about a zillion other pieces of nonsense.

      That would be an interesting study. Go through the Bible, the Koran, other religious books, and tally up which admonitions were sensible, stupid, and silly.

      1. Most kosher restrictions have pretty good basis in fact when taking into consideration the technology at the time. I don’t know where in the Bible discusses electricity. The point is if we can prove something is nonsensical that is one thing but when you can not don’t mess with it.

      2. no electricity on the sabbath (but you can hire some heathen to turn lights on for you),

        FTR: This is wrong.

        1. Wrong by which authority? I knew people who obeyed it.

  3. So, not to rain on your parade, but this is why statistics are so misleading.

    The Path of the Law is a famous (or should I say, was a famous?) Harvard Law review article.

    The other quote is from a review of someone else’s work.

    Regardless of the substance of the quotes, it is hardly surprising that a part of a famous law review article that is original is CITED more than a mere review of someone else’s work.

  4. Also from Holmes:
    “I hate a man who KNOWS that he knows.”

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