Law in Contemporary Society

Holmes and the Universal

Holmes’s defense of jurisprudence in the final paragraph of “The Path of the Law” echoes Shelley’s “Defence of Poetry.” To study law well, in order to become a good reader of sibylline leaves, Holmes wants his reader to stop confounding law with morality and to stop relying on the illusion of logic. The study of history and economics can better inform the ends we should seek to attain through law and why we desire them. Holmes ends his essay encouraging his reader to find happiness; happiness that will not be satisfied by an impressive title or salary. Instead, Holmes encourages finding happiness and satisfaction through jurisprudence. He describes a movement from the particular to the universal- to catch a hook in the universal law. To this end, philosophers of law are like the unacknowledged legislators of the world.

Universal Law?

What is universal law? As Holmes describes it, universal law is something infinite, unfathomable, something grasped by the lawyer who connects her work with something greater. It would be taking Holmes too literally to transpose human rights law for universal law. The rights protected in universal instruments like the Universal Declaration of Human Rights, the ICESCR, or the ICCPR are the products of power at a specific time and place. While the word “Universal” creates the illusion of infinite application, the political construction of any legal instrument draws down the Universal to the specific spheres of power and influence in which it was created. Property, social security, privacy, and marriage, to take a few examples from the instruments, are intensely cultural elements of personhood that could not articulated universally.

The Universal that Holmes speaks of is at once more individualized and more general than the universal human rights embodied in law. I can write of human rights as a movement out of compassion and equality, yet that movement will end with me. I came to law school because I believed a legal education could teach me how to create social change. Yet law is inherently constrained by political realities, and any iteration of the Universal is susceptible to critique as the constructed product of a specific place, time, and position of power. Perhaps learning to navigate and manipulate the political is a necessary trade off in turning a personal quest for meaning into a legal career. But I would prefer not—manipulation is not a skill set I desire.

Tiresias, Cassandra, and other Prophets of the Ages

As Holmes writes of lawyers, Shelley also writes of poets as prophets. A lawyer will predict the application of law to her client and help her client structure his choices accordingly. A poet writes of the beauty, tragedy, and life of her time. The poet experiences the present intensely and participates in the eternal and infinite in the moment; making her conceptions, time, and place irrelevant. Maybe I am stretching too far in connecting Holmes to Shelley but I like to imagine that when I become a lawyer I could also be a poet. “A Defence of Poetry” parallels “The Path of Law” in values and in how the authors instruct their colleague lawyers and poets to live. But I wonder if the prophetic and unacknowledged legislator qualities of lawyers and poets have more to do with the properties of words, rather than the properties of the profession. Words make social change. Lawyers, poets, teachers, bankers, and possibly anyone using words, can create social change.

Poet-Lawyer: Language and Social Change

I came to law school to learn how to use words to make social change, but maybe I should put the pressure in reverse. Instead of learning the magical incantations that will create social change in law by perpetuating a system of illusory logic and unequal justice, maybe I should study social change. What is social change? What type of social change would I seek? What type of social change could I create as a student, a lawyer, a poet, a daughter, or a friend?

As a student, a positive social change would be for me to change how I relate to my fellow students. Instead of relating to other students from a place of competition and suspicion, a spirit of collaboration—learning or failing together, should guide my relationships to other students. While I do try to cultivate this type of relationship, there is a persistent fear that this is wasted effort, or that others may not treat me in the same way. Social change is predicated on my ability to think about myself, and treat my fellow students, differently.

As a lawyer, I do not know how to create positive social change or how I would go about it. This is something I want and need to learn at law school- from my professors, fellow students, and in some measure, from myself.

As a poet, I could create social change by articulating something (a thought, emotion, experience) in way that affects someone else. Reading others’ poetry has given me comfort, inspiration, beauty, sadness, and understanding in various doses. Poetry has added to my sense that although I go through life alone, there is a shared consciousness that binds me to every other person. Social change that operates from a basis in equality and compassion must draw on a sense of shared humanity that poetry can create.

As a daughter, a sister, and a friend, I can create social change by using the trust and love inherent in these intimate relationships to better understand myself and to test how effective <span style="background-color: #cc6688; color: yellow; padding-left: 3px; padding-right: 3px">of a communicator I am. I know if I cannot convince my father of something, I would stand no chance in front of a judge, politician, or anyone else. If I can convince my brother of something, I would feel confident I could do the same in front of nearly anyone else. In this way, social change occurs by understanding how I affect other people and how they affect me.

  • That's a solecism. You don't need "of" in that sentence, but its presence will cause distress in literate readers.

Social change is an elusive goal. Pinning my professional success and personal fulfillment on helping others through achieving social change will have to remain akin to the Universal as Holmes described it: unfathomable and infinite—something created in its doing.

Poets and Lawyers

-- By DianaSidakis - 27 Feb 2009

  • You didn't need the prior version to be included here, because it's always available in the wiki under the "diffs" button, which perhaps should be called "versions," so I removed it.

  • I think the piece as you have revised it is an example of what it claims, namely that your powers of language can make change by convincing people one at a time, beginning with those closest to you. And your powers, being great, may sometimes have that effect. But even if social change were only individual change multiplied, the limitation would be suffocating unless it were possible to enlist others, who have not your powers, in the task of persuasion. And social change is not just individual change multiplied. But creativity must be something that begins in one human, unless we ask what inside the human, both biologically and psychically, is the dialog among parts from which the new occurs. And so if we think of the new as proceeding from some people who have imagined it, there can be no question that the articulation of the new is integral to the making of everything different. We are seeking, however, consilient explanations across the immense span from that within the individual to those third- and fourth-order consequences of our complex human sociality, which means going beneath the level of human creativity--to find the inhibitors, the forces that turn it off, and make talented, creative young people reluctant or unwilling to change--and above it, to understand how what people invent becomes how society behaves. I think you took the invitation I offered and made clearer your own idea, which was a very substantial improvement. But I think you can drive your understanding past where Holmes' inconsistent conclusion to The Path of the Law leaves one if you ask more unsparingly what poetry and social change both are and how they relate to one another. A subject, of course, on which poets are as usual more eloquent than are the sociologists.


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r5 - 08 Jan 2010 - 21:35:31 - IanSullivan
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