1. This article was downloaded by: [190.84.191.57]
On: 18 February 2013, At: 05:24
Publisher: Routledge
Informa Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House,
37-41 Mortimer Street, London W1T 3JH, UK
History of European Ideas
Publication details, including instructions for authors and subscription information:
http://www.tandfonline.com/loi/rhei20
An ineluctable minimum of natural law François
Gény, Oliver Wendell Holmes, and the limits of legal
skepticism
a
Ward Alexander Penfold
a
Harvard University, United States
Version of record first published: 17 Feb 2012.
To cite this article: Ward Alexander Penfold (2011): An ineluctable minimum of natural law François Gény, Oliver Wendell
Holmes, and the limits of legal skepticism, History of European Ideas, 37:4, 475-482
To link to this article: http://dx.doi.org/10.1016/j.histeuroideas.2011.07.007
PLEASE SCROLL DOWN FOR ARTICLE
Full terms and conditions of use: http://www.tandfonline.com/page/terms-and-conditions
This article may be used for research, teaching, and private study purposes. Any substantial or systematic
reproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in any form to
anyone is expressly forbidden.
The publisher does not give any warranty express or implied or make any representation that the contents
will be complete or accurate or up to date. The accuracy of any instructions, formulae, and drug doses should
be independently verified with primary sources. The publisher shall not be liable for any loss, actions, claims,
proceedings, demand, or costs or damages whatsoever or howsoever caused arising directly or indirectly in
connection with or arising out of the use of this material.

2. History of European Ideas 37 (2011) 475–482
Contents lists available at ScienceDirect
History of European Ideas
journal homepage: www.elsevier.com/locate/histeuroideas
An ineluctable minimum of natural law
Franc ´
¸ois Geny, Oliver Wendell Holmes, and the limits of legal skepticism
Ward Alexander Penfold
Harvard University, United States
A R T I C L E I N F O A B S T R A C T
Article history: During the first few decades of the twentieth century, legal theory on both sides of the Atlantic was
Downloaded by [190.84.191.57] at 05:24 18 February 2013
Available online 5 August 2011 characterized by a tremendous amount of skepticism toward the private law concepts of property and
contract. In the United States and France, Oliver Wendell Holmes and Franc ´
¸ois Geny led the charge with
Keywords: withering critiques of the abuse of deduction, exposing their forebears’ supposedly gapless system of
Natural law private law rules for what it was, a house of cards built on the ideological foundations of laissez faire
Holmes capitalism. The goal was to make the United States Constitution and the French civil code more
´
Geny
responsive to the realities of industrialization. Unlike the other participants in this transatlantic critique,
Skepticism
Franc ´
¸ois Geny simultaneously insisted on the immutability of justice and social utility. His ‘‘ineluctable
United States
France minimum of natural law’’ would guide judges and jurists toward the proper social ends, replacing
´
deduction with teleology. The problem was that nearly all of Geny’s contemporaries were perplexed by
his conception of natural law, which lacked the substance of the natural rights tradition of the eighteenth
and nineteenth centuries and the historicist impulse of the early twentieth. No one was more perplexed
than Oliver Wendell Holmes, whose more thoroughgoing skepticism led him to see judicial restraint as
the only solution to the abuse of deduction. The ultimate framework for this debate was World War I, in
´
which both Holmes and Geny thought they had found vindication for their views. Events on the
´
battlefield reaffirmed Geny’s commitment to justice just as they reignited Holmes’ existential embrace of
the unknown. In a sense, the limits of their skepticism would be forged in the trenches of the Great War.
ß 2011 Elsevier Ltd. All rights reserved.
The Yankee from Olympus and the Juriste Inquiet necessary to admit that it has never ceased to preoccupy
humanity.’’2
‘‘It is not enough for the knight of romance that you agree that
his lady is a very nice girl—if you do not admit that she is the
best that God ever made or will make, you must fight. There is in -Franc ´
¸ois Geny
all men a demand for the superlative, so much so that the poor Though Oliver Wendell Holmes and Franc ´
¸ois Geny played
devil who has no other way of reaching it attains it by getting strikingly similar roles in the evolution of legal theory in the United
drunk. It seems to me that this demand is at the bottom of the States and France at the turn of the twentieth century,3 Geny’s ´
philosopher’s effort to prove that truth is absolute and of the insistence on retaining the language of natural law most clearly set
jurist’s search for criteria of universal validity which he collects them apart. Holmes, who often stubbornly refused to engage with
under the head of natural law.’’1 his continental European counterparts, attached the following
footnote to the title of his 1918 article: ‘‘Suggested by reading
Franc ´ ´,
¸ois Geny, Science et technique en droit positif prive Paris,
-Oliver Wendell Holmes 1915.’’4 Whether out of carelessness or contempt, Holmes reversed
´’’ ´
the words ‘‘positif’’ and ‘‘prive in Geny’s title. Then, instead of
‘‘Under one label or another . . . it is always there, the eternal
constructively engaging with the use of droit naturel in Geny’s ´
problem of natural law that presents itself to our investigations
whether we like it or not. And despite the disdain that . . . most
modern jurists—moved by a sort of unthinking snobbery—have
2
feigned for the problem when formulated in these terms, it is ´ ´
F. Geny, Science et technique en droit prive positif, II vol. (Paris: Librarie de la
´ ´
Societe du Recueil Sirey, 1915), 10. All translations are mine.
3
See R. Pound, ‘Judge Holmes’s Contributions to the Science of Law’, Harvard Law
´
Review 34 (1921) 449, 451; A. Kocourek, ‘Science et technique en droit prive positif,
E-mail address: wpenfold@fas.harvard.edu. by Franc ´
¸ois Geny’, American Journal of International Law 9 (1915) 772, 774.
1 4
O. W. Holmes, ‘Natural Law’, Harvard Law Review 32 (1918) 40. Holmes, ‘Natural Law’, 40.
0191-6599/$ – see front matter ß 2011 Elsevier Ltd. All rights reserved.
doi:10.1016/j.histeuroideas.2011.07.007

3. 476 W.A. Penfold / History of European Ideas 37 (2011) 475–482
work, Holmes spent just four and a half pages likening the French reality that was to be revealed through libre recherche, natural law
¨
jurist to the most naıve of philosophical metaphysicians. In would become the objective foundation for his new approach to
Holmes’ mind, the philosopher’s boast, the jurist’s insistence on private law doctrine.
natural law, and the knight’s claims to divine knowledge were In the years following ‘‘The Path of the Law,’’ Holmes ascended
three different manifestations of the same antiquated worldview. from the Massachusetts Supreme Judicial Court to the United
While this episode could be dismissed as yet another example States Supreme Court. Throughout the first few decades of the
of Holmes’ brash idiosyncrasies, many of Geny’s French ´ twentieth century, he would put his new philosophy of judicial
contemporaries were similarly confused by his insistence upon restraint to work at the federal level, mostly in the form of
an ‘‘ineluctable minimum’’ of natural law.5 Jurists on both sides of dissenting opinions.10 Meanwhile, Geny found himself at the heart
´
the Atlantic believed that natural law was simply out of step, if not of the French ‘‘modernist crisis.’’11 Both his critique of deduction
´
completely incompatible, with the thrust of Geny’s thought, and and his use of droit naturel implicated him in the secular and
´
they adopted various strategies to apologize for Geny, appropriate Catholic debates over the future of legal theory and the
his ideas, or reject them outright, depending on the context. relationship between the Catholic Church and the French state.
Holmes, for his part, was primarily concerned with his American As part of the ‘‘renaissance’’ of natural law,12 Geny was faced with
´
milieu, and his concise yet forceful dismissal of natural law is best tremendous pressure to side with either his friend Raymond
understood as an attempt to curb the potential influence of Geny’s ´ Saleilles and the liberal modernizers or the more conservative
´
ideas in the United States. In France, Geny was torn between two Catholic jurists who viewed private law in terms of a larger crisis of
poles—the Catholic natural lawyers and the liberal modernizers— faith or morality.13 These controversies were only intensified by
but he could not seem to please either side. His ‘‘ineluctable the Third Republic’s ongoing process of secularization, including
minimum’’ was too minimal for the natural lawyers and too the 1905 law that enforced a strict separation of Church and State.
ineluctable for the modernizers. In the end, nearly everyone was ´
Just as Geny’s libre recherche attempted to strike a balance between
´
perplexed by Geny’s conception of natural law, which lacked the the extremes of laissez faire capitalism and radical socialism, his
Downloaded by [190.84.191.57] at 05:24 18 February 2013
substance of the natural rights tradition of the eighteenth and deployment of natural law weighed the demands of tradition
nineteenth centuries and the historicist impulse of the early ´
against modernization. Geny’s trajectory over the course of the
twentieth. ´
Belle Epoque suggested that his balance tipped in the direction of
´
In order to explain Geny’s and Holmes’ divergent approaches to the former. Increasingly, his struggle to legitimize droit naturel in
natural law, it is first necessary to situate this debate within the the face of the ‘‘snobisme’’ of modern jurists was framed in terms of
context of their respective critiques of deductive legal reasoning at a moral crisis.
the end of the nineteenth century. Holmes’ 1897 speech, ‘‘The Path Finally, with the outbreak of World War I, Holmes and Geny ´
of the Law,’’6 and Geny’s 1899 tome, Me
´ ´thode d’interpre´tation et both thought they had found ultimate vindication for their
sources en droit prive positif,7 both denounced ‘‘classical legal
´ ´
respective views on natural law. For Geny, the conflict was
thought,’’8 which had allowed the interpreters of the U.S. symptomatic of Europe’s larger crisis of faith, and the entire
Constitution and the French civil code to abuse deduction, to second volume of Science et technique was dedicated to
insinuate their ideological preferences into private law on both defending a minimalist conception of ‘‘irre ´ductible’’ natural
sides of the Atlantic. Despite the various similarities in their law. For Holmes, on the other hand, the war gave voice to the
´
critiques, however, Holmes and Geny went on to develop markedly dominant metaphor of his life: existential struggle.14 The jurists
divergent positive projects. Holmes’ disillusionment with legal ¨
who put their faith in natural law were naıve precisely because
reason was nearly complete, and his replacement for deductive there could never be universal agreement on the meaning of
rationality was judicial restraint. If there was no principled justice. As Holmes put it, ‘‘[p]hilosophy does not furnish motives,
distinction between law and politics, Holmes thought that the but it shows men that they are not fools for doing what they
controversial issues of the day should be decided in the legislative already want to do.’’15
branch, not the courts. ´
As this last line suggests, part of the chasm between Geny and
´
Instead of abandoning legal reason altogether, Geny’s new Holmes on the issue of natural law can be ascribed to their
method, libre recherche scientifique, replaced deduction with radically different sensibilities. In short, Holmes was the ‘‘Yankee
teleology. What was needed in the French context was a reading from Olympus’’16 and Geny was a ‘‘juriste inquiet.’’17 Holmes’
´
of the Code civil that was at once liberal and scientific. According to characteristic skepticism led him to view social struggle and the
the ‘‘compromis Geny,’’9 the civil code would remain supreme, but
´ breakdown of traditional modes of thought with a stoic resolve,
inevitable gaps would be filled in by libre recherche, thus allowing ´
while Geny’s anxiety over socialist agitation and French seculari-
French private law to adapt to the realities of industrialization and zation drove him toward compromise and moderation. In another
´
social change. It was at this point that Geny first introduced his
notion of droit naturel. In determining the proper direction for 10
See, e.g., Lochner v. New York, 198 U.S. 45 (1905).
´
French law, Geny’s jurist was to be animated by what he called the 11
´
F. Audren, ‘La Belle epoque des juristes catholiques (1870-1914)’, Revue
‘‘immutable’’ principles of justice and social utility. If low-level franc ´
¸aise d’histoire des idees politiques 28 (2008) 233, 266-7.
12 ´
See R. Saleilles, ‘l’Ecole historique et droit naturel’, Revue trimestrielle de droit
legal concepts such as property and contract were subject to the
civil 1 (1902) 80; J. Charmont, La Renaissance du droit naturel (Montpellier: Coulet et
abuse of deduction, natural law was different. Along with the social Fils, 1910).
13
´
See Audren, ‘La Belle epoque des juristes catholiques’; P. Rolland, ‘Un ‘‘cardinal
´es
vert’’: Raymond Saleilles’, Revue francaise d’histoire des ide politiques 28 (2008)
¸
5
´
Geny, Science et technique, II vol., 350. 273.
6 14
O. W. Holmes, ‘The Path of the Law’, Harvard Law Review 110 (1997) 991. See, e.g., O. W. Holmes, ‘The Soldier’s Faith’, in The Essential Holmes: Selections
7
´
F. Geny, Me ´thode d’interpre ´tation et sources en droit prive positif, 2nd edn (Paris:
´ from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell
´ ´
Librarie generale de droit et de jurisprudence, 1919). Holmes, Jr., ed. R. A. Posner (Chicago: The University of Chicago Press, 1992), 78.
8 15
D. Kennedy, ‘Three Globalizations of Law and Legal Thought: 1850–2000’, in The Holmes, ‘Natural Law’, 44.
16
New Law and Economic Development: A Critical Appraisal, ed. D. Trubek, A. Santos See, e.g., C. D. Bowen, Yankee from Olympus: Oliver Wendell Holmes (New York:
(New York: Cambridge University Press, 2006). Bantam Books, 1960).
9 17
See P. Jestaz, ‘Franc ´
¸ois Geny: une image franc ¸aise de la loi et du juge’, Francois
¸ M.-C. Belleau, ‘The ‘‘Juristes Inquiets’’: Legal Classicism and Criticism in Early
Ge´ny, mythe et re ´alite 1899–1999, centenaire de Me
´s: ´thode d’interpre ´tation et sources Twentieth-Century France’, Utah Law Review 2 (1997) 379 (citing P. Cuche, A la `
´
en droit prive positif (Paris: Dalloz, 2000); see also D. Kennedy, M.-C. Belleau, recherche du fondement du droit: y a-t-il un romantisme juridique? Revue
‘Franc ´ ´
¸ois Geny aux Etats-Unis’ in the same volume. trimestrielle de droit civil 28 (1929) 57, 65–6).

4. W.A. Penfold / History of European Ideas 37 (2011) 475–482 477
´
sense, however, both Holmes and Geny were responding to a development of the law is logic,’’24 the notion that a given legal
problem that their ideas had helped to create. The two men spent system could be ‘‘worked out like mathematics from some general
the last years of the nineteenth century exposing their forebears’ axioms of conduct.’’25 In Me´thode d’interpre
´tation, Geny also aimed
´
supposedly gapless system of private law rules for what it was, a to debunk the kind of legal reasoning that treated concepts ‘‘AS IF
house of cards built on the ideological foundations of laissez faire THEY HAD AN OBJECTIVE PERMANENT REALITY when their very nature is
capitalism. In the aftermath of their critiques, however, Holmes ´
PROVISIONAL AND PURELY SUBJECTIVE,’’ an abuse that Geny believed
´
and Geny were left to adapt French and American private law to ‘‘necessarily ends in making the entire system of positive law
the realities of industrialization. Natural law fit awkwardly within consist in a limited number of LOGICAL CATEGORIES—essentially
this picture, if it fit at all, and this article is ultimately about how predetermined, fundamentally unchangeable, governed by inflexible
´
Geny’s de minimis version of natural law was shaped by its dogmas, and consequently incapable of supple accommodation to the
negative reception on both sides of the Atlantic from the turn of varied and changing exigencies of life.’’26
´
the century (Part I) through the Belle Epoque (Part II) to the Great Placing two of their more evocative passages side-by-side
´
War (Part III). Much like Geny’s theory itself, natural law does not ´
brings the parallels between Holmes and Geny into full relief. Here,
so much make up the substance of this article as it is a place-holder Holmes explained why so many judges and jurists had been
´
for the boundary beyond which Geny’s legal skepticism would not seduced by the ‘‘logical fallacy’’:
tread.
‘‘The language of judicial decision is mainly the language of
logic. And the logical method and form flatter that longing for
`
The fin-de-siecle critique of deductive legal reasoning
certainty and for repose which is in every human mind. But
certainty generally is illusion, and repose is not the destiny of
´
For all of their considerable differences, Holmes and Geny both
man. Behind the logical form lies a judgment as to the relative
brought the nineteenth century to a close with scathing critiques of
worth and importance of competing legislative grounds, often
Downloaded by [190.84.191.57] at 05:24 18 February 2013
the traditional approaches to legal reasoning in their respective
an inarticulate and unconscious judgment, it is true, and yet the
countries. ‘‘The Path of the Law’’ and Me ´thode d’interpre´tation each
very root and nerve of the whole proceeding. You can give any
became touchstones for the transatlantic critique of classical legal
conclusion a logical form.’’27
thought. In reflecting on Holmes’ achievement, Morton Horwitz
´
Geny, for his part, honed in on the liberties taken by the traditional
went so far as to say that this text ‘‘pushed American legal thought
interpreters of the civil code:
into the twentieth century. It is the moment at which advanced
legal thinkers renounced the belief in a conception of legal thought ‘‘[W]ithout any hint from the text, we accept, as the ground for
independent of politics and separate from social reality.’’18 Similar these legal conclusions, a theoretical construction made up
´
praise had been offered for Geny’s work at the time of publication, from whole cloth by the interpreter, and lacking any foundation
in the form of Raymond Saleilles’ preface to Me ´thode d’interpre ´ta- but a vaguely defined tradition of his personal fantasy. Yet it is
tion. Saleilles wrote that ‘‘this book does not require a preface . . . clear that, under the false pretense of strict interpretation, all of
what matters above all is that in following this new orientation . . . this implies—if we assess it rationally—that there exists a
one embarks on a path straight to . . . scientific and social superior logic inherent in legal institutions that dominates the
progress.’’19 legislator himself.’’28
Several of Holmes’ contemporaries in the United States also Beyond the methodological problems that the abuse of deduction
pointed out the parallels between the two works, both before and ´
posed, Holmes and Geny both believed that it allowed the judge or
after the good Justice’s piece on natural law. In a 1915 review of jurist to insinuate their own ideological preferences into the
Science et technique, for example, Albert Kocourek wrote that process of legal interpretation. In reading the French Code civil or
´
Geny’s work had demonstrated that ‘‘[t]he field of legal method is the Fourteenth Amendment to the U.S. Constitution, the interpret-
much broader than that required merely by the application of an er could posit static conceptual categories in order to skew private
Aristotelian logic to legal concepts.’’20 Kocourek immediately went law in the direction of their own worldview. The word ‘‘contract,’’
on to say that ‘‘[t]his fact was explicitly stated by Judge Holmes when subjected to the abuse of deduction, could quickly become
many years ago.’’21 Similarly, on the occasion of the publication of ‘‘absolute freedom of contract’’; ‘‘property’’ could become ‘‘abso-
Holmes’ Collected Legal Papers in 1921, Roscoe Pound wrote that lute private property’’; and so on. The laissez faire economic
´
‘‘Geny’s Me ´thode d’interpre
´tation is commonly put as a landmark. philosophy of the nineteenth century was promulgated by this
But years before it appeared Mr. Justice Holmes had begun to study deductive brand of legal reasoning.
legal method, had called attention to the modes of judicial thought As jurists writing at the end of the nineteenth century, Holmes
and had anticipated the main ideas of today.’’22 If Geny’s treatise
´ ´
and Geny were both faced with the dissonance between this
was a more systematic investigation of the abuse of deduction and traditional mode of legal thought and the rapid social, economic,
Holmes’ speech had the virtue of being written first, the two texts and cultural changes that were sweeping across Europe and
were inextricably intertwined in the minds of many jurists at the North America. ‘‘The Path of the Law’’ and Me ´thode d’interpre
´ta-
time. tion were attempts to make American and French private law
´
When it comes to Holmes’ and Geny’s critiques of traditional more responsive to the realities of industrialization. As Holmes
method, it is easy to see why Kocourek and Pound would have put it, ‘‘the man of the future is the man of statistics and the
made this connection. The stated goal of Holmes’ speech was to master of economics,’’ rather than the ‘‘black-letter man’’ of the
‘‘throw some light on the narrow path of legal doctrine.’’23 He present.29
sought to expose the fallacy that the ‘‘only force at work in the While commentators like Kocourek and Pound were right to
´
point out parallels between Holmes’ and Geny’s writings, it is also
18
M. Horwitz, The Transformation of American Law, 1870–1960: The Crisis of Legal
Orthodoxy (New York: Oxford University Press, 1992), 142.
19 24
´
R. Saleilles, ‘Preface’, in Me´thode d’interpre
´tation et sources en droit prive positif,
´ Holmes, ‘The Path of the Law’, 997.
25
´ ´
2nd edn (Paris: Librarie generale de droit et de jurisprudence, 1919), xiii. Holmes, ‘The Path of the Law’, 998.
20 26
Kocourek, ‘Science et technique’, 774. ´
Geny, Me´thode d’interpre
´tation, 129–30.
21 27
Kocourek, ‘Science et technique’, 774. Holmes, ‘The Path of the Law’, 998.
22 28
Pound, ‘Judge Holmes’s Contributions to the Science of Law’, 451. ´
Geny, Me´thode d’interpre
´tation, 126.
23 29
Holmes, ‘The Path of the Law’, 997. Holmes, ‘The Path of the Law’, 1001.

5. 478 W.A. Penfold / History of European Ideas 37 (2011) 475–482
important to situate their work within the divergent private-law pretentious, are what I mean by the law.’’37 In short, Holmes’
traditions of the United States and France—the Anglo-American disillusionment with ‘‘legal’’ reason went all the way down, and he
common law and the continental-European civil law.30 This was left without a principled way to mediate between labor and
distinction is critical, because it meant that comparable critiques capital. His so-called ‘‘predictive theory’’ of law was now in full
of the abuse of deduction led to quite different implications for the bloom.38
´
private law of Holmes’ and Geny’s respective countries. When Holmes ascended from the Massachusetts Supreme
Holmes was operating in a system that was driven by judicial Judicial Court to the U.S. Supreme Court in 1902, he finally had the
precedents. The post-Civil-War reconstruction amendments, opportunity to put his philosophy of judicial restraint to work on a
coupled with a strong tradition of judicial supremacy,31 created national scale.39 His first major dissent came in 1905, with Lochner
a situation in which the U.S. Supreme Court could strike down v. New York.40 The case involved a New York law that limited the
state legislation that violated the private rights of ‘‘due process’’ number of hours a baker could work each week. A majority of the
and ‘‘equal protection.’’32 In other words, Holmes’ abusers of Justices held that such laws impinged on the ‘‘right to free
´
deduction were judges. Contrast this with Geny’s situation in contract’’ that was implicit in the due process clause of the
France, where the Code civil reigned supreme in private law. Fourteenth Amendment.41 In a stirring dissent, Holmes wrote that:
´
Though judges were implicated in Geny’s critique, the main
culprits made up what would later be referred to as the e ´cole de ‘‘The 14th Amendment does not enact Mr. Herbert Spencer’s
l’exe `se (exegetical school),33 a constellation of jurists who
´ge Social Statics . . . [A] Constitution is not intended to embody a
insisted that private law should develop through the strict particular economic theory, whether of paternalism and the
exegesis of the civil code—embodying the will or volonte of the ´ organic relation of the citizen to the state or of laissez faire. It is
legislator—instead of also drawing upon other potential sources of made for people of fundamentally differing views, and the
law. French doctrine had developed on the assumption that the accident of our finding certain opinions natural and familiar, or
Code civil provided an internally consistent or gapless set of novel, and even shocking, ought not to conclude our judgment
Downloaded by [190.84.191.57] at 05:24 18 February 2013
private-law concepts such that a judge could reach the correct upon the question whether statutes embodying them conflict
outcome when confronted with the facts of a particular case with the Constitution of the United States.’’42
through a double-movement of induction–deduction. Where In Holmes’ view, determining where to strike the appropriate
Holmes wanted to constrain judges in their reading of the balance between paternalism and laissez faire was a matter of
´
Fourteenth Amendment, Geny wanted to free judges to move policy, not of law. His philosophy of judicial restraint cut in favor of
beyond the rigid constraints imposed by the exegetical school. In whichever party had the majority in the legislature. In the context
other words, the abuse of deduction led Holmes toward judicial of the early twentieth century, this meant that Holmes became a
´
restraint in his American milieu, while Geny’s critique produced a darling of the progressive cause, despite his own personal disdain
different prescription for French private law: ‘‘By the civil code, but for progressivism.43
beyond the civil code!’’34 According to this ‘‘compromis Geny,’’35 the
´ ´
Geny, on the other hand, did not move from the critique of
code was still supreme where its provisions were clear, but deduction to the death of legal reason tout court. If deduction was
inevitable gaps were to be filled by the results of libre recherche, the mode of thought specific to classical legal thought, teleological
not by the ideological preferences (masked as deduction) of any reason would undergird his sociological jurisprudence. As Geny ´
given jurist. put it,
At this point it should be clear that Holmes and Geny had ´
‘‘. . . legal rules and the outcomes they justify are essentially
arrived at radically divergent conceptions of law. Though the
determined by the practical goal and the social end of
institutional frameworks in which they wrote help to explain their
institutions. This is their source, and, if you will, simultaneously
responses to the abuse of deduction, their positive projects were by
their inherent logic: a logic that is truly certain and fertile,
´
no means determined by context. Holmes and Geny also supplied
because it is composed entirely of moral, psychological and
different responses to the question of what was left of ‘‘legal’’
economic motives, and because it tends to result in objective
reasoning after the critique of deduction. In ‘‘The Path of the Law,’’
Holmes washed the concept of law with ‘‘cynical acid,’’36 and this is
37
what remained: ‘‘[I]f we take the view of our friend the bad man we Holmes, ‘The Path of the Law’, 994.
38
As Morton Horwitz put it, ‘‘judicial restraint follow[ed] from the collapse of his
shall find that he does not care two straws for the axioms or search for immanent rationality in customary law.’’ In other words, ‘‘[i]f law is
deductions, but that he does want to know what the Massachusetts merely politics, then the legislature should in fact decide. If law is merely a
or English courts are likely to do in fact. I am much of his mind. The battleground over which social interests clash, then the legislature is the
prophesies of what the courts will do in fact, and nothing more appropriate institution for weighing and measuring competing interests.’’
Transformation, 142.
39
He had already done so in Massachusetts: Vegelahn v. Guntner, 167 Mass. 92, 44
30
As Holmes’ reference to the ‘‘black-letter man’’ suggests, the common law is a N.E. 1077, 1080 (1896).
40
system of judicial precedents in which court decisions are binding in future cases. In Lochner v. New York, 198 U.S. 45, 74–6 (1905).
41
contrast, the French civil law system centers around a piece of legislation, the Code Lochner, 198 U.S. at 53.
42
civil. Though previous judicial decisions have persuasive authority in French law, Lochner, 198 U.S. at 75–6.
43
they are not binding in the same way that they are in the United States (stare See, e.g., Buck v. Bell, 274 U.S. 200 (1927); see also O. W. Holmes, ‘Ideals and
decisis). Doubts’, in Collected Legal Papers (New York: Harcourt, Brace and Howe, 1920), 305–
31
See, e.g., Marbury v. Madison, 5 U.S. 137 (1803). 6: ‘‘The social reformers of today seem to me so far to forget that we no more can get
32
Section I of the Fourteenth Amendment: ‘‘All persons born or naturalized in the something for nothing by legislation than we can by mechanics as to be satisfied if
United States, and subject to the jurisdiction thereof, are citizens of the United the bill to be paid for their improvements is not presented in a lump sum. Interstitial
States and of the State wherein they reside. No State shall make or enforce any law detriments that may far outweigh the benefit promised are not bothered about.
which shall abridge the privileges or immunities of citizens of the United States; nor Probably I am too skeptical as to our ability to do more than shift disagreeable
shall any State deprive any person of life, liberty, or property, without due process of burdens from the shoulders of the stronger to those of the weaker. But I hold to a
law; nor deny to any person within its jurisdiction the equal protection of the laws.’’ few articles of a creed that I do not expect to see popular in my day. I believe that the
33
See Belleau, ‘The ‘‘Juristes Inquiets’’’, 386. Belleau points out that the ‘‘juristes wholesale social regeneration which so many now seem to expect, if it can be
inquiets’’ in a sense ‘‘invented’’ the e´cole de l’exe `se in the process of critiquing it.
´ge helped by conscious, coordinated human effort, cannot be affected appreciably by
34
´ ´thode d’interpre
Saleilles, ‘Preface’, Me `
´tation, xxv: ‘‘Par le Code civil, mais au-dela tinkering with the institution of property, but only be taking in hand life and trying
du Code civil!’’ to build a race. That would be my starting point for an ideal for the law. The notion
35
See Kennedy, Belleau, ‘Franc ´ ´
¸ois Geny aux Etats-Unis’, 297. that with socialized property we should have women free and a piano for everybody
36
Holmes, ‘The Path of the Law’, 995. seems to me an empty humbug.’’

6. W.A. Penfold / History of European Ideas 37 (2011) 475–482 479
equity by the combination of the idea of justice and that of the such as Saleilles pushed for a strict separation between the
largest social utility.’’44 theological and legal spheres,51 while more conservative jurists
Borrowing from the German free law movement (Freirechtschule), argued for a specifically Catholic reading of the Code civil.52 Both
´
Geny sought to orient libre recherche scientifique toward justice and ´
sides fought for Geny’s allegiance, but wherever a particular jurist
social utility. Logical constructions would be tolerated only to ‘‘the came down, Catholic culture and legal culture were so intertwined
extent that they facilitate[d] the teleological work of jurispru- ´ ´
that Frederic Audren has seen fit to describe this period as the
dence, to be adapted and transformed as needed given the ‘‘Belle epoque des juristes catholiques.’’53 The pressure on Catholic
´
exigencies of life.’’45 By drawing upon the burgeoning social jurists was heightened by the unfolding dynamics of secularization
sciences and by observing the ‘‘nature des choses positives,’’46 the in the Third Republic. The 1905 law enforcing a strict separation of
jurist could facilitate the natural evolution of positive law. Church and State led to mass riots in the streets of Paris and other
´
Geny had, in a sense, retained precisely what Holmes had given cities. Religious tensions were mixed with a larger sense of
´
up: the search for immanent rationality in law. If Geny had stopped disorientation, a full-blown ‘‘modernist crisis.’’54 In this context,
there, Holmes could have understood, based on his own youthful ´
Geny felt compelled to defend natural law more systematically, as
misadventures.47 After all, Holmes had specifically referred to this he continued to walk the tight-rope of compromise between
perspective in ‘‘The Path of the Law’’: ‘‘[A]n evolutionist will stability and evolution, tradition and modernization, faith and
hesitate to affirm universal validity for his social ideals, or for the reason.
principles which he thinks should be embodied in legislation. He is ´
Though it is possible to read Geny’s deployment of natural law
content if he can prove them best for here and now. He may be in Me ´thode d’interpre´tation as having entirely secular content, he
ready to admit that he knows nothing about an absolute best in the did offer one hint as to his stance within Catholic debates. While
cosmos, and even that he knows next to nothing about a ´
diagnosing the abuse of deduction, Geny included the following
permanent best for men.’’48 For his part, Saleilles tried to portray footnote: ‘‘See, on the abuse of ideology and the omission of
´
Geny as exactly that, an evolutionist. In his preface to Me ´thode ´
realities in the religious domain: R. P. Etourneau, 1st Conference at
Downloaded by [190.84.191.57] at 05:24 18 February 2013
d’interpre ´tation, he wrote that libre recherche would draw upon Notre-Dame, Lent 1898, p. 13–22. Comp. H. Taine, Les Origines de la
‘‘the most diverse scientific directions: sociology, economics, France contemporaine. Le Re ´gime moderne, t. I, edit. In-8, p. 28–
´
politics, natural law in the modernized sense of the word, ´ ´
29.’’55 Geny was clearly citing Etourneau as an example of the
philosophy, even theology; all of the observations of experience; ‘‘abuse of ideology’’ in the ‘‘religious domain’’ and juxtaposing his
all of the discoveries in social matters.’’49 text with Taine’s, an example of the refusal to ‘‘omit realities.’’56
´
The version of natural law that Geny presented in Me ´thode ´
Etourneau’s 1st Conference confirms this reading:
d’interpre ´tation, however, did not seem to square well with either
Saleilles’ modernized sense of the word or the humility of Holmes’ ‘‘You do not come here to hear the numerous words of men but
´
evolutionist. Instead, Geny insisted upon the timelessness of the singular word of God; you come to see if, when everything
justice and utility, the substance of his first foray into droit naturel. changes in the world, the religion that your fathers practiced,
´
At the same time, Geny insisted that he was not repeating the that blessed your cradle and their graves, remains very much
errors of the deductive method. In his words, the mistakes of the the same, preaching today what it preached yesterday, the same
exegetical school came from: creed and the same ethics, the same mysteries and the same
grace, the same threats and the same promises. And this sacred
‘‘confusing two things that are quite distinct: on the one hand, pulpit profess[es] the immutable doctrine with a skill,
the principles of justice or universal utility which are in essence conviction, and faith that no other . . . [whether an academic
immutable, varying only in the details of their application and lectern, the judicial bar, or the political gallery] . . . has
according to sociological conditions, and, on the other hand, surpassed.’’57
technical procedures . . . the only real value of which comes ´
Etourneau’s emphasis on the ‘‘immutable doctrine’’ of Catholi-
from their greater or lesser usefulness in realizing the goals of cism, set apart from a world beset by rapid change, was a
supreme equity.’’50 conservative, anti-modernist position, and it exemplified the
In these terms, justice and utility became true-north for the jurist ´
religious version of the abuse of deduction for Geny. Even if some
´
of libre recherche, the ends to be achieved by Geny’s teleological aspects of Catholic doctrine—the existence of God and the sanctity
reason. While it remained unclear how he would relate the of the Church—were immutable, their application to present
principles of his droit naturel to social reality or ‘‘mutable’’ legal ´
conditions had to evolve. The Catholic Church, in Geny’s view, had
´
concepts, the bold claims that Geny made in Me ´thode d’interpre
´ta- to engage with reality, it had to modernize. The alternative was
tion—his critique of deduction and his immutable natural law— obsolescence.
would come to impact legal theory on both sides of the Atlantic Perhaps Saleilles had picked up on this aspect of Me ´thode
during the first few decades of the twentieth century. d’interpre´tation in his preface, where, again, he asserted that Geny’s
´
51
´
Natural law in the belle epoque ´
Audren, ‘La Belle epoque des juristes catholiques’, 266.
52
´
Audren, ‘La Belle epoque des juristes catholiques’, 249–50.
53
´
Audren, ‘La Belle epoque des juristes catholiques’, 271.
While Holmes spent the early twentieth century writing 54
´
Audren, ‘La Belle epoque des juristes catholiques’, 266.
´
dissenting opinions on the U.S. Supreme Court, Geny was thrust 55
´
Geny, Me ´thode d’interpre ´tation, 147.
56
into the fray of French secular and Catholic debates about natural Here is a representative passage from H. Taine, Les Origines de la France
contemporaine. Le Re ´gime moderne. t. I, edit. in-8, 28: ‘‘Depuis trois siecle, nous
´ `
law. The contours of these debates were incredibly complex, and
perdons de plus en plus la vue pleine et directe des choses; sous la contrainte de
the concept of natural law hit on all registers. Catholic modernizers ´ ` ´ ´
l’education casaniere, multiple et prolongee, nous etudions, au lieu des objets, leurs
signes; au lieu du terrain, la carte; au lieu des animaux qui luttent pour vivre, des
44
´
Geny, Me ´thode d’interpre
´tation, 144–5. ´
nomenclatures, des classifications, et, au mieux, des specimens morts de museum; ´
45
´
Geny, Me ´thode d’interpre
´tation, 146. au lieu des hommes sentants et agissants, des statistiques, des codes, de l’histoire,
46
´
Geny, Me ´thode d’interpre
´tation, 470. ´ ´
de la litterature, de la philosophie, bref, des mots imprimes, et, chose pire, des mots
47
See, e.g., O. W. Holmes, The Common Law (Boston: Little, Brown, 1881). ` `
abstraints, lesquels, de siecle en siecle, deviennent plus absraits, partant plus
48
Holmes, ‘The Path of the Law’, 1000. ´ ´ ´ `
eloignes de l’experience, plus difficiles a bien comprendre, moins maniables et plus
49
´
Saleilles, ‘Preface’, Me´thode d’interpre´tation, xxv. ´ `
decevants, surtout en matiere humaine et sociale.’’
50
´
Geny, Me ´thode d’interpre
´tation, 147. 57 ´ ´ ` ˆ
R. P. Etourneau, 1re Conference a Notre-Dame, Careme de 1898, 12.