Thread by @LMcHugh_Russell

If you're interested in #legalhistory, intellectual history or the uses of concepts across the boundary between law and history, here's an interesting story about @OWHolmes and #evolution for you. 1/14

The intellectual and moral failures of the 19th concept of evolution can largely be attributed to a fundamental contradiction between a teleological optimism and a materialist indeterminism. 2/14

On the one hand, based on a vague knowledge of Darwin's account of natural selection, people understood evolution to be a process of adaptation to environment, in accordance with the motto 'survival of the fittest.' 3/14

OTOH, evolution, due to the reception of Darwin in popular understandings through the writings of Spencer (/lots/ of people talked about Darwin, but had only read Spencer), thought 'survival of the fittest' was a principle of progress: from the worst to the better. 4/14

Cockroaches are really well adapted to their environment, arguably betther than humans are. Natural selection generated both. Evolution, in a biological sense, doesn't move forms toward excellence. And there is no reason that similar processes would produce better societies. 5/

19th century social theorists focused on the fact that the operation of evolution over history had led from amoeba to humans (and noted that history had led to European domination over colonies, and concluded evolution /must/ lead from worse to better! (ahem) 6/ 14

19th century attempts to craft positivist accounts of 'legal evolution' consistently foundered in effort to reconcile these incompatible beliefs. Legal systems reveal no consistent movement through stages. Any value ordering is imposed by the scholar, not generated by time. 7/14

Holmes had a relatively sophisticated take on how legal norms change over time that, in particular, attended to errors, borrowing and novelty. He saw that the corpus of norms was always a hodgepodge of solutions to problems long gone and corrupted meanings. 8/14

Yet he still cleaved to a faith that the true nature and destiny of the common law was the achievement of social ends and the promotion of the public good. (A good reader, bad citer of the German historicists). 9/ 14

How did he do it? With the trick that is perhaps the archetype of evasion in most of what is called legal theory: judges, he said, when parts of the mess in the existing corpus are tested against one another, must decide by reference to social ends. 10/14

That is, he perfected a positivist /explanation/ of law by substituting at the key moment of his account a judgement about how judges should do their job for the necessary account of how they actually act. 11/14

One might complain that this rather departs from the positivist project; Holmes would have seen it differently. For the circle could be completed, he felt, by the capacities of science to identify objectively, without controversy what the needs of society were. 12/14

Logic suggests this is a cop out: even if science could say how to best fulfil social needs through law, this is no guarantee that judges would cleave to its precepts, and certainly not an explanation of how the law has so far done so well in fulfilling its destiny. 13/14

As Holmes would say, though, "the life of the law has not been logic, it has been experience." Indeed. 14/14

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