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Valparaiso Univ. Law School

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Tuesday, August 28, 2007

Teaching Assistants: Oliver Wendell Holmes

Holmes In his brief essay, The Theory of Legal Interpretation (12 Harv. L. Rev. 418 (1899)), Oliver Wendell Holmes endorses the objective theory of contract formation and justifies his preference as follows:

For each party to a contract has notice that the other will understand his words according to the usage of the normal speaker of English under the circumstances, and therefore cannot complain if his words are taken in that sense.  Id. at 419. 

This is an important and probably a sound conclusion, but Holmes arrives at it by means of reasoning that might well lead one to a very different conclusion.

Holmes first notes that while serious documents might "in theory" have one meaning and no other, "in practice" it is simply not the case that individual words or "a given collocation of words" has one meaning and no other.  Id. at 417.  Even dictionaries provide multiple definitions, and Holmes suggests, words taken in their context often depart subtly from the connotations assigned to them in dictionaries.  Holmes thus arrives at a shocking interim conclusion:

What happens it this.  Even the whole document is found to have a certain play in the joints when its words are translated into things by parol evidence, as they have to be.  It does not disclose one meaning conclusively according to the laws of language.  Id.

How does Holmes avoid following this reasoning into the dark corners explored by the likes of Stanley Fish -- or worse Jacques Derrida?  Well, it turns out, we don't care what the words meant to the person or people who drafted them.  We care only about what those words "would mean in the mouth of a normal speaker of English."  Id.  Although he accepts that proper names, such as Peerless, can create an irresoluble ambiguity, Holmes is for some reason convinced that we are otherwise usually able to understand what contractual language would mean to a "normal speaker of English." 

Holmes' reasoning here eludes me, but it seems to turn on notice, as indicated in the first quotation above.  But if the meaning of words is subject to "a certain play in the joints," and if this play is inescapable, and Holmes suggests that it is, how can one know in advance what meaning a normal speaker of English will attach to contractual language?

Holmes concludes by noting that "practical men prefer to leave their major premises inarticulate, yet even for practial purposes theory generally turns out the most important thing in the end."  Holmes begins his essay by contrasting "theory," which holds that words have one meaning, with "practice" which reveals that they have multiple meanings.  Practice, 1; Theory, 0.  In his conclusion, Holmes evens the score and defies the "practical men" who refuse to articulate the theoretical underpinnings of their practices.  Unfortunately, at least in this essay, Holmes' theoretical defense of the practice is incomplete.

[Jeremy Telman]

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