Saturday, August 16, 2014

Learned Hand: the Wisest Judge

Learned Hand (1872-1961) has a tag line. Superman is the man of steel; Learned Hand is the most important American judge who never sat on the Supreme Court. He did sit on the Federal Appeals Court for New York from 1924 to 1951, and I gather that he left a very important legacy in commercial law. That was the era when America's courts made key decisions about the government's ability to regulate economic life, and since American economic life was concentrated in New York, Hand heard a lot of those cases.

All I know about Hand as a judge is what anyone can read on wikipedia. But I have just finished reading a little book called The Spirit of Liberty, published in 1953 and available cheap from your neighborhood used bookstore. This is a collection of Hand's speeches and essays, and it is the source of just about every quote from Hand you can find online. It is an odd volume. Most of these speeches were given at events like Harvard alumni get-togethers, or retirement parties for eminent judges -- not the sort of settings where one expects to hear profound thoughts. Hand's style fits these occasions, heavily metaphorical and deeply conventional. The effect is much like settling into lunch at the Milwaukee Rotary Club, half listening to a droning speech from some local businessman and then being startled to realize that behind the stock rhetoric he is making a profound argument of urgent importance.

Hand came from the post-Nietzsche generation, and he was a severe skeptic about all philosophical and religious absolutes. He had no religion in the conventional sense, nor any attraction to the various political substitutes that flourished in the twentieth century. Fascism and communism alike left him scratching his head. He had absorbed all that political science and philosophy have to say against democracy: that most people vote with little thought or understanding, that representation is an absurd concept, that political principles are usually cover for the interests of powerful groups. He laughed off the notion that the Constitution should supply America with absolute principles; after banning Mormon polygamy, he asked, how can we seriously maintain that we support religious freedom as an absolute value?

Yet Hand did not surrender to his doubts. He believed in democracy as the best available system, demonstrably better than any of the alternatives on offer. In one speech, after listing some of the problems with our system, he went on:
In what I have to say, I want to suggest that the result is not as bad as it seems, and that, good or bad, we still derive from it advantages which are irreplaceable in any other system. If you insist, I shall ask no more than that you agree with Dean Inge that even though counting heads is not an ideal way to govern, at least it is better than breaking them.
He devoted his career to making democratic society work as well as it can in a world full of apathetic voters and powerful interest groups. Politics, he thought, was how those powers measure themselves against each other, and all we can ask is that this trial be conducted without violence and with some consideration of the common good:
In any society, I submit, the aggressive and insistent will have disproportionate power. For myself, I confess I should like it otherwise; I prefer the still small voice reason. But, though I would build the world anew and nearer to the heart's desire, if I could, I do not propose to cry for the moon. In a world where the stronger have always had their way, I am glad if I can keep them from having it without stint.

It seems to me that, with all its defects, our system does just that. For, abuse it as you will, at least it gives a bloodless measure of social forces -- bloodless, have you thought of that?-- a means of continuity, a principle of stability, a relief from the paralyzing terror of revolution.
If this seems cowardly or complacent, remember that this was 1932, with Stalin in control of Russia and Fascism on the march, the Great Depression just settling in. In those circumstances, who could blame Hand for seeking stability even at a high price?

If you want to give Hand's philosophy a name, he was a pragmatist. It does no good asking what is absolutely true, he argues over and over; the only question is what will work. The world is what it is, and our job is to find some way of keeping it functioning and ameliorating the worst of its abuses when we can. Since he believed that laws were the product of compromises worked out between competing interests in the political arena, Hand was very reluctant to overturn any statute. He lived through the time when American courts struck down many laws passed by the states to limit the power of big business and help workers and citizens. He hated this judicial interference in politics, and was part of the movement that eventually changed the attitude of the courts toward these compromise measures. No doubt he heard in his nightmares the gunfire of revolution. To preserve democracy, he helped fashion a new way of thinking about the Bill of Rights that made it less a piece of Lockean political theory and more a general guide to the things Americans care about. The exact wording of the text is of no importance compared to keeping the Republic alive.

The workable solution, to Hand, was almost always found somewhere in the middle. He was an instinctual moderate; he once called himself "a conservative among liberals, and a liberal among conservatives." One of his best short speeches describes the judge trying to find a middle path between ruling only from the plain language of the statute, which is impossible, or deciding whatever he thinks is right, which is anarchy. The key to maintaining a moderate position, Hand thought, was humility. Fanatics are certain they are right; wise people tend toward the middle because they know how ignorant they really are. Instead of the Ten Commandments, Hand thought that every courtroom should have on its wall a quotation from a letter Oliver Cromwell sent to the Scots before he slaughtered them at the Battle of Dunbar: "I beseech you in the bowels of Christ, think that ye may be mistaken."

Hand's other abiding concern was preserving the soul of the individual in a world increasingly dominated by mass culture and mass politics. He hated dogma and had a deep love for free-spirited inquiry. What he loved about Harvard, he said on several occasions, was the sense he got there of scholars following the truth wherever it went, convention and popular opinion be damned. In the 20s he worried a great deal about the potential of radio to create movements like Fascism, sweeping millions of individuals into an obedient swarm. "Our dangers," he told the Bryn Mawr class of 1927, "are not from the outrageous but from the conforming." Think for yourselves, he urged them; discover for yourselves. Yet he then turned around and warned them, "Those ages which ruthlessly break the moulds their forebears laborious made do not always find freedom in their indeterminism, or reality because their expression is untrammeled." We don't know that your experiments will turn out for the best, he seems to be saying, but make them anyway, because that is what human life is or should be about.

Devoted as he was to skepticism, Hand did not shy away from the big conflicts of his time. He was a strong supporter of Roosevelt's New Deal, and an early advocate of American intervention in World War II. After the war he found himself in the midst of the struggles over McCarthyism. In three famous cases he decided one in favor of free speech, wrote a stinging dissent in defense of another man's right to privacy, but then decided for the government in a case against 13 leaders of the Communist Party. Speech was one thing, he argued, but actually plotting the armed overthrow of the government was not something we have to tolerate. I don't know that he was right. But he was trying, as best he could, to to define our freedoms rationally in an era of great fear and deep political passions, which is my ideal of what a judge should be.

Here Hand imagines the situation of our species:
Man may be a little lower than the angels, but he has not yet shaken off the brute. His passions, his thinking, his body carry their origins with them; and he fails, if he vaingloriousy denies them. His path is strewn with carnage, the murderer lurks always not far beneath, to break out from time to time, peace resolutions to the contrary notwithstanding. What he has gained has been with immeasurable waste; what he shall gain will be with immeasurably more. Trial and error is the confession, not indeed of an impotent, but of a wayward, creature, blundering about in worlds not realized. But the Absolute is mute; no tables come from Sinai to guide him. . . . Look where he will, there are no immutable laws to which he can turn; no, not even that in selfless abnegation he must give up what he craves, for life is self-assertion. Conflict is normal; we reach accommodations as wisdom may teach us that it does not pay to fight. And wisdom may; for wisdom comes as false assurance goes -- false assurance, that grows from pride in our powers and ignorance of our ignorance. Beware then of the heathen gods; have no confidence in principles that come to us in the trappings of the eternal. Meet them with gentle irony, friendly scepticism and an open soul. Nor be cast down; for it is always dawn. Full light of day? No, perhaps not ever. But it grows lighter, and the paths that were so blind will, if one watches sharply enough, become hourly plainer. We shall learn to walk straighter. Yes, it is always dawn.
"There is no solution," Hand once wrote of a thorny legal conundrum; "there seldom is to any of the real problems of life." To know this, and to nonetheless devote a life's work to making things better however we can, is my idea of nobility, and of wisdom.

1 comment:

G, Verloren said...

A fascinating sounding fellow.

For all that I feel he and I might disagree about a great many things, were he still around to discuss them, I wish more judges and people of power, influence, and authority had the principles and the bravery to be humble, pragmatic, and concerned with truth and the world as it actually is.