The Iconoclast
Tuesday, 2 October 2007
A Little More On Learned Hand

Learned Hand of the Second Circuit is, in the history of American law, and in the minds of Americans, more important than many, even most, of those who have sat on the Supreme Court. His most famous case had nothing to do with free speech, but  did have to do with another sort of calculus: the calculus of whether one should spend more to avoid a tort than would be the cost to repair the commission of that tort. Sound familiar? This developed into what is called the "law-and-economics" school, associated with that nonstop writer (and harnesser of law clerks), Judge Richard Posner. Posner has hits, when he sticks to his last, but also misses, among which is his " Law and Literature" with the book-of-the-month-club view expressed surprisingly, and disappointingly, therein, for Posner appears to think that the value of a work of literary art is reducible to its "message" -- what King Lear "tells us,"  what Hamlet "is saying." The much better educated Learned Hand would never have thought, or written, that.

Here are a few of the most famous of Hand's sententiae:

  • "Heretics have been hated from the beginning of recorded time; they have been ostracized, exiled, tortured, maimed, and butchered; but it has generally proved impossible to smother them; and when it has not, the society that has succeeded has always declined."
  • "In the end it is worse to suppress dissent than to run the risk of heresy."
  • "How long shall we blunder along without the aid of unpartisan and authoritative scientific assistance in the administration of justice, no one knows; but all fair persons not conventionalized by provincial legal habits of mind ought, I should think, unite to effect some change."
  • "There is no surer way to misread any document than to read it literally. ... As nearly as we can, we must put ourselves in the place of those who uttered the words, and try to divine how they would have dealt with the unforeseen situation; and, although their words are by far the most decisive evidence of what they would have done, they are by no means final."
  • "If the prosecution of crime is to be conducted with so little regard for that protection which centuries of English law have given to the individual, we are indeed at the dawn of a new era; and much that we have deemed vital to our liberties, is a delusion."
  • "It is of course true that any kind of judicial legislation is objectionable on the score of the limited interests which a Court can represent, yet there are wrongs which in fact legislatures cannot be brought to take an interest in, at least not until the Courts have acted.
  • "Political agitation, by the passions it arouses or the convictions it engenders, may in fact stimulate men to the violation of the law. Detestation of existing policies is easily transformed into forcible resistance of the authority which puts them in execution, and it would be folly to disregard the causal relation between the two. Yet to assimilate agitation, legitimate as such, with direct incitement to violent resistance, is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government."
  • "It is still in the lap of the gods whether a society can succeed which is based on 'civil liberties and human rights' conceived as I have tried to describe them; but of one thing at least we may be sure: the alternatives that have so far appeared have been immeasurably worse."
  • "A self-made man may prefer a self-made name."
  • "For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not."
  • "The hand that rules the press, the radio, the screen and the far-spread magazine, rules the country."

    Hand used to summer in Cornish, New Hampshire, whose most famous resident is J. D. Salinger. Apparently they got along swimmingly. It's a famous, because at first glance a most unlikely, friendship. On second glance, it seems just right, practically inevitable. On the list of  the conversations one might have wished to eavesdrop on, those between Learned Hand and J. D. Salinger, in Cornish and thereabouts, stand high.

    Learned Hand  addressed a New York crowd with a speech in 1944. It was called "The Spirit of Liberty." That speech deserves to be reprinted, and impressed on all kinds of brains. Printed, impressed, but not invoked the way today's A.C.L.U. would invoke it, to protect those methodically pursuing the goal of removing all obstacles to the spread and ultimate dominance of Islam world-wide. Learned Hand, like most sensible people, in his lifetime had no need to pay attention to Islam, and so, like everyone else in the Western world, he paid Islam no never mind. But if he were alive today? He'd be on the right side. He, along with Holmes and Brandeis, and Tocqueville,  and Churchill, and John Quincy Adams, and Hume, and Spinoza, and all the best people among Keats' two categories: the Noble Living and the Noble Dead. Just like today. Where all the best people are on the right side, and the better they are, the more fervent they are in being on that side. Yes, Learned Hand would be on the right side. And he would have a better idea of how to conduct a campaign in this ideological war against the forces of Jihad, than those who now presume to protect us, but whose sole idea of "war" is Boots On The Ground, and Bombs Away.

    • Posted on 10/02/2007 5:37 PM by Hugh Fitzgerald
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