Holmes and Evolution: Legal Process as Artifical Intelligence

Abstract

A curious ambivalence toward the past underlies contemporary legal thought. On one hand, through the method of precedent, the judicial process venerates the past. Here one finds a subtle appreciation of what it means to be part of a tradition. The past is regarded as a valuable source of insights. Less obvious but equally important is the corollary: that learning and sense are needed to mediate between past and present. The judges thought great are not those who apply blindly rules from old books. It is understood that a living tradition implies a priesthood to reinterpret and reinvigorate, and thus to preserve. Legal scholarship has not, by and the work of its own past. With the exception of a handful of "classics" that still speak to contemporary issues in the law, articles in legal publications are rarely read more than a few years after they appear, except perhaps by other legal scholars making the obligatory bow to prior work in their area. The absence of a strong sense of its own past is a distinctive feature of legal scholarship. Academic historians, philosophers, and literary critics cultivate a tradition. Legal scholars, imitating science, purport to be engaged in a quest for new knowledge which, if successful, would sweep aside the paradigms of their predecessors.