Justice Holmes and the Common-Law Tradition

Briefly, case law may be described as "a method of developing law which preserves the continuity of legal doctrine, and is, at the same time, eminently adaptable to the needs of a changing society." On the whole, it is not far from the truth to say that "it hits the golden mean between too much flexibility and too much rigidity .... -" But what makes it so matter-of-fact and racy of the soil is to be found in Holdsworth's further observation that "this method keeps the law in touch with life, and prevents much unprofitable speculation upon academic problems which serves only to illustrate the ingenuity of the speculator." Here we find reflected some of the most salient characteristics of the Anglo-Saxon mind: the predilection for the concrete, the aversion to speculation, the practical sense of the useful, the reliance on experience, the view of law as an integral part of life, the readiness to adapt its rules to the changing needs of men, the cautious striking out upon new paths, and instinctive response to the new values and novel situations constantly presented by a growing civilization. The common law is not laid out by rule and line. It is un chemin qui marche, to borrow a phrase from Pascal. It is life coping with life.

It is like managing a wild horse by a robust "horse sense." There is method in its madness.