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logic in the modern manner would have changed the situation for
Holmes's purposes. It was simply his convictionthat deductive
logic did not suffice,no matter how enriched. Holmes was not
about to give a list of legal axioms in the manner of Euclid and
promptlyto deduce theoremswith the help of logic. If this were
his sole purpose, logic would have been the sole tool necessary in
addition to the legal principles expressed in his axioms. But on
this he says: "The law embodies the story of a nation's develop-
ment throughmany centuries,and it cannot be dealt with as if it
contained only the axioms and corollaries of a book of mathe-
matics."'3
We see at once the historical emphasis in Holmes. It is because
the law embodies the historyof a nation that it cannot be treated
deductively. AlthoughHolmes does not explicitlyformulatethem,
we may indicate at least two questions which are introducedby his
statement,in order to be clearer about what he is saying. (1) Can
we formulatethe law accepted at a given time in a deductivefash-
ion, beginningwith legal axioms or fundamentalprinciples? (2)
Has the law in its actual historical course developed in a logico-
deductive manner? In other words, did the axioms, for example,
reveal themselvesto man before the theorems? Now we must not
forgetthat in this place Holmes is concernedwith the latter ques-
tion,and his answer is that we cannot explain legal historyin terms
of logical processes alone. Legal history does not unfold as if it
were created by a logician. The life of the law has not been logic in
this sense.'4 He follows this statementwith a statementof other
factorsto whichwe mustreferif we are to understandwhyand how
certain legal rules were developed: "The felt necessities of the
jural relations: "Hohfeld was as you surmisean ingeniousgent,making,as I judge
fromflyingglimpses,prettygood and keen distinctionsof the kind that are more
needed by a lowergrade of lawyerthan theyare by you and me. I thinkall those
systematicschematismsratherbores; and now Kocurek in the Illinois Law Review
and elsewhereadds epicycles-and I regard him civillybut as I have writtendon't
care muchfor the whole machinery." Holmes-PollockCorrespondence,II, 64.
13 The CommonLaw, 1.
14 I am not suggestingthat Holmes was not interestedin the firstquestion.
Indeed he has consideredit too. But I wish to suggest that the anti-formalismin
The CommonLaw was the productof a negativeanswerto the second question. On
this point it may be instructiveto examineMill's comparisonof Maine and Austin.
The latter is the logician of the law; the formerinvestigates"not properly the
philosophyof law, but the philosophyof the historyof law." Dissertations and
Discussions,IV, 161-64.
18.
culturalattitudeunitedDeweyand Veblenagainsttheabstractand
a priorimethodof Mill. It is also clear whyAmericanthinkers
rejectedso muchof the "empiricism" of Benthamand Mill:-
becausetheywererevoltingagainsttheleast empiricalelementsof
thetradition-a priorism,abstractionism, thefelicific
calculus,the
formaljurisprudence ofAustin. The groundsofVeblen'srejection
ofthemethodofclassicaleconomicsare verysimilarto thosewhich
led Dewey to reject what he called scholasticformalismin psy-
chologyand logic. Theyalso resembletheconsiderations whichled
Holmes to reject the so-calledmechanicaltheoryof the law as
existingin advance and awaiting the judge's discoveryof it.
Furthermore, to completethepattern,Veblenalso turnsto history
and culture,to a cross-sectional
studyof the institutionalcontext
of economicbehavioras wellas to a studyof thetemporaldevelop-
mentof society.42Like Dewey and Holmes he looks to temporal
antecedentsand culturalconcomitants.For thisreasonwe maysay
thatDewey,Holmes,andVeblenare unitedin an attemptto destroy
whattheyconceiveas threefictions-thelogical,legal and economic
man. In thiswaytheybegina traditionin recentAmericanthought
which Beard and Robinson continuedin political science and
history.
IV. James Harvey Robinson and Charles A. Beard
The connectionsbetween Robinson,Beard, and the revolt
againstformalismare evidentas earlyas 1908-the year in which
theydeliveredlectureson politicsand historyrespectivelyat Co-
lumbiaUniversity, in a series devotedto science,philosophy,and
art.43 Consideredin termsof the revolt,Robinson'sworkis an
expressionofhistoricism, theevolutionary movement in social sci-
ence,and geneticmethod. Robinsonwas anxiousto establishthe
scientific
characterof history,but at the same timeto distinguish
his ownfromRanke's versionof scientific methodin history." Ac-
42
In addition to Dorfman's book see the recent study of John S. Gambs,
Beyond Supply and Demand: A Reappraisal of Institutional Economics. This
last came to my attentionafter this paper was prepared. For a succinct state-
menton Veblen's "system"see K. L. Anderson,"The Unity of Veblen's Theoretical
System,"QuarterlyJournal of Economics,48 (1933). Naturally thereis an enor-
mous literatureon Veblen,but I cite only itemsof general interest,especially since
I am concernedonly witha segmentof Veblen's career.
43 Dewey delivereda lectureentitled"Ethics" in the series.
44 For a recentdiscussionof the attitudesof Americanhistorianson this ques-
tion and others,see Theoryand Practice in Historical Study: A Report of the Com-