82 Virginia Law Review 111 (1996)

February, 1996

Essay

[*111]  "DO JUSTICE!": VARIATIONS OF A THRICE-TOLD TALE

Michael Herz [FNa1]

Copyright (c) 1996 by the Virginia Law Review Association; Michael Herz

I remember once I was with [Justice Holmes]; it was a Saturday when the Court was to confer. It was before we had a motor car, and we jogged along in an old coupé. When we got down to the Capitol, I wanted to provoke a response, so as he walked off, I said to him: "Well, sir, goodbye. Do justice!" He turned quite sharply and he said: "Come here. Come here." I answered: "Oh, I know, I know." He replied: "That is not my job. My job is to play the game according to the rules."

Judge Learned Hand [FN1]

There is a story that two of the greatest figures in our law, Justice Holmes and Judge Learned Hand, had lunch together and afterward, as Holmes began to drive off in his carriage, Hand, in a sudden onset of enthusiasm, ran after him, crying, "Do justice, sir, do justice." Holmes stopped the carriage and reproved Hand: "That is not my job. It is my job to apply the law."

Judge Robert Bork [FN2]

[*112] Let me conclude with an old story about judges, law and justice. Learned Hand was visiting Washington and went to lunch with Justice Holmes. They walked back to the Capitol. The Court was still sitting there in the Old Senate Chamber. As they parted, Hand called, "Sir, do justice."

The old man turned on him fiercely, eyebrows bristling: "Justice? What's that? That's none of my business. Law is my business."

Professor Abram Chayes [FN3]

Although recent debates would suggest that narrative scholarship is brand new, [FN4] lawyers, judges, and law professors, like all humankind, have always offered stories for illustration or support or to make a point in an indirect, and often more effective, way. Learned Hand's story about telling Justice Holmes to "do justice" is one widely-used example, offered by many writers in addition to Judge Bork and Professor Chayes. Its popularity is easy to understand. The story has a substantive message, pithily expressed, on a basic jurisprudential issue; it involves two members of the pantheon; and it crams a lot of human interest and historical flavor into a few lines.

The exchange between the two judges is part of an age-old struggle to define the relation of law and justice and to determine  [*113] to which the judge owes loyalty. [FN5] Some distinction between law and justice, certainly as a descriptive matter and often as a normative one, is generally accepted. Law schools are famous for insisting on such a separation, [FN6] and lawyers and nonlawyers alike easily accept the concept of an "unjust law" or a judicial decision that is "unfair" (or unjust) but "correct as a matter of law." The distinction is perhaps more often celebrated within the legal profession and more often lamented outside it. [FN7]

Holmes, of course, is particularly associated with what Anthony D'Amato and Arthur Jacobson label the "'Separation Thesis'--the thesis that law is entirely separate and distinct from any value-system such as justice or morality." [FN8] It was Holmes who famously proclaimed, "I hate justice." This sentiment is usually cited to a letter from Holmes to John Wu: "I have said to my brethren many times that I hate justice, which means that I know if a man begins to talk about that, for one reason or another he is shirking thinking in legal terms." [FN9] This strenuous  [*114]  positivism is linked to the insistence on judicial restraint illustrated by Hand's story. We see the same stance in another familiar Holmes statement concerning the nature of his "job," a statement quite reminiscent of his reply to Hand:

I have been in a minority of one as to the proper administration of the Sherman Act. I hope and believe that I am not influenced by my opinion that it is a foolish law. I have little doubt that the country likes it and I always say, as you know, that if my fellow citizens want to go to Hell I will help them. It's my job. [FN10]

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