A thirst for Justice

Justice Oliver Wendell Holmes, a great common lawyer, was an adornment to the American Supreme Court. His wisdom is still cited in common-law jurisdictions throughout the world. Any English lawyer who would prefer to exchange Holmes’s incisive rulings — which usually amount to common sense elevated to a Platonic idea — for some European mush based on supposed human rights, reveals himself as a legal numbskull who so hates his own country that he cannot bear its successes, not least of which is the principle of freedom under the rule of law.

Holmes’s long life was a chronicle of American evolution. He would have been entitled to call his memoirs ‘The history of the United States in my own times’. At the beginning of the Civil War he joined the Union army. Shortly afterwards, as a young officer, he was stationed on the northern bank of the Potomac helping to man the ramparts. A tall man appeared, insouciant of Confederate snipers across the river. ‘Keep down, you fool,’ cried Holmes. The long fellow did, and as he passed said: ‘Thank you, Lieutenant.’ It was President Lincoln.

About 70 years later, another president came across Holmes reading Plato’s Republic in the original. ‘Why are you reading Plato in Greek, Justice Holmes?’ enquired Franklin Roosevelt. ‘To improve my mind, Mr President.’

Holmes’s legal aphorisms were equally pithy. It was he who declared, in a debate about freedom of speech, that no one was entitled to shout ‘fire’ in a crowded theatre. He also stated that a man was entitled to swing his arm with its fist as vigorously as he chose, as long as it did not come into contact with another man’s nose.

But I was citing the formidable Judge in a wholly un-legal context.