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You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: The Path of the Law + +Author: Oliver Wendell Holmes, Jr. + +Release Date: February 25, 2006 [EBook #2373] +Last Updated: February 4, 2013 + +Language: English + +Character set encoding: ASCII + +*** START OF THIS PROJECT GUTENBERG EBOOK THE PATH OF THE LAW *** + + + + +Produced by Stuart E. Thiel and David Widger + + + + + +</pre> + <p> + <br /> <br /> + </p> + <h1> + THE PATH OF THE LAW + </h1> + <p> + <br /> + </p> + <h2> + by Oliver Wendell Holmes, Jr. + </h2> + <p> + <br /> <br /> + </p> + <hr /> + <p> + <br /> <br /> + </p> + <h2> + 10 HARVARD LAW REVIEW 457 (1897) + </h2> + <p> + When we study law we are not studying a mystery but a well-known + profession. We are studying what we shall want in order to appear before + judges, or to advise people in such a way as to keep them out of court. + The reason why it is a profession, why people will pay lawyers to argue + for them or to advise them, is that in societies like ours the command of + the public force is intrusted to the judges in certain cases, and the + whole power of the state will be put forth, if necessary, to carry out + their judgments and decrees. People want to know under what circumstances + and how far they will run the risk of coming against what is so much + stronger than themselves, and hence it becomes a business to find out when + this danger is to be feared. The object of our study, then, is prediction, + the prediction of the incidence of the public force through the + instrumentality of the courts. + </p> + <p> + The means of the study are a body of reports, of treatises, and of + statutes, in this country and in England, extending back for six hundred + years, and now increasing annually by hundreds. In these sibylline leaves + are gathered the scattered prophecies of the past upon the cases in which + the axe will fall. These are what properly have been called the oracles of + the law. Far the most important and pretty nearly the whole meaning of + every new effort of legal thought is to make these prophecies more + precise, and to generalize them into a thoroughly connected system. The + process is one, from a lawyer's statement of a case, eliminating as it + does all the dramatic elements with which his client's story has clothed + it, and retaining only the facts of legal import, up to the final analyses + and abstract universals of theoretic jurisprudence. The reason why a + lawyer does not mention that his client wore a white hat when he made a + contract, while Mrs. Quickly would be sure to dwell upon it along with the + parcel gilt goblet and the sea-coal fire, is that he foresees that the + public force will act in the same way whatever his client had upon his + head. It is to make the prophecies easier to be remembered and to be + understood that the teachings of the decisions of the past are put into + general propositions and gathered into textbooks, or that statutes are + passed in a general form. The primary rights and duties with which + jurisprudence busies itself again are nothing but prophecies. One of the + many evil effects of the confusion between legal and moral ideas, about + which I shall have something to say in a moment, is that theory is apt to + get the cart before the horse, and consider the right or the duty as + something existing apart from and independent of the consequences of its + breach, to which certain sanctions are added afterward. But, as I shall + try to show, a legal duty so called is nothing but a prediction that if a + man does or omits certain things he will be made to suffer in this or that + way by judgment of the court; and so of a legal right. + </p> + <p> + The number of our predictions when generalized and reduced to a system is + not unmanageably large. They present themselves as a finite body of dogma + which may be mastered within a reasonable time. It is a great mistake to + be frightened by the ever-increasing number of reports. The reports of a + given jurisdiction in the course of a generation take up pretty much the + whole body of the law, and restate it from the present point of view. We + could reconstruct the corpus from them if all that went before were + burned. The use of the earlier reports is mainly historical, a use about + which I shall have something to say before I have finished. + </p> + <p> + I wish, if I can, to lay down some first principles for the study of this + body of dogma or systematized prediction which we call the law, for men + who want to use it as the instrument of their business to enable them to + prophesy in their turn, and, as bearing upon the study, I wish to point + out an ideal which as yet our law has not attained. + </p> + <p> + The first thing for a businesslike understanding of the matter is to + understand its limits, and therefore I think it desirable at once to point + out and dispel a confusion between morality and law, which sometimes rises + to the height of conscious theory, and more often and indeed constantly is + making trouble in detail without reaching the point of consciousness. You + can see very plainly that a bad man has as much reason as a good one for + wishing to avoid an encounter with the public force, and therefore you can + see the practical importance of the distinction between morality and law. + A man who cares nothing for an ethical rule which is believed and + practised by his neighbors is likely nevertheless to care a good deal to + avoid being made to pay money, and will want to keep out of jail if he + can. + </p> + <p> + I take it for granted that no hearer of mine will misinterpret what I have + to say as the language of cynicism. The law is the witness and external + deposit of our moral life. Its history is the history of the moral + development of the race. The practice of it, in spite of popular jests, + tends to make good citizens and good men. When I emphasize the difference + between law and morals I do so with reference to a single end, that of + learning and understanding the law. For that purpose you must definitely + master its specific marks, and it is for that that I ask you for the + moment to imagine yourselves indifferent to other and greater things. + </p> + <p> + I do not say that there is not a wider point of view from which the + distinction between law and morals becomes of secondary or no importance, + as all mathematical distinctions vanish in presence of the infinite. But I + do say that that distinction is of the first importance for the object + which we are here to consider—a right study and mastery of the law + as a business with well understood limits, a body of dogma enclosed within + definite lines. I have just shown the practical reason for saying so. If + you want to know the law and nothing else, you must look at it as a bad + man, who cares only for the material consequences which such knowledge + enables him to predict, not as a good one, who finds his reasons for + conduct, whether inside the law or outside of it, in the vaguer sanctions + of conscience. The theoretical importance of the distinction is no less, + if you would reason on your subject aright. The law is full of phraseology + drawn from morals, and by the mere force of language continually invites + us to pass from one domain to the other without perceiving it, as we are + sure to do unless we have the boundary constantly before our minds. The + law talks about rights, and duties, and malice, and intent, and + negligence, and so forth, and nothing is easier, or, I may say, more + common in legal reasoning, than to take these words in their moral sense, + at some state of the argument, and so to drop into fallacy. For instance, + when we speak of the rights of man in a moral sense, we mean to mark the + limits of interference with individual freedom which we think are + prescribed by conscience, or by our ideal, however reached. Yet it is + certain that many laws have been enforced in the past, and it is likely + that some are enforced now, which are condemned by the most enlightened + opinion of the time, or which at all events pass the limit of + interference, as many consciences would draw it. Manifestly, therefore, + nothing but confusion of thought can result from assuming that the rights + of man in a moral sense are equally rights in the sense of the + Constitution and the law. No doubt simple and extreme cases can be put of + imaginable laws which the statute-making power would not dare to enact, + even in the absence of written constitutional prohibitions, because the + community would rise in rebellion and fight; and this gives some + plausibility to the proposition that the law, if not a part of morality, + is limited by it. But this limit of power is not coextensive with any + system of morals. For the most part it falls far within the lines of any + such system, and in some cases may extend beyond them, for reasons drawn + from the habits of a particular people at a particular time. I once heard + the late Professor Agassiz say that a German population would rise if you + added two cents to the price of a glass of beer. A statute in such a case + would be empty words, not because it was wrong, but because it could not + be enforced. No one will deny that wrong statutes can be and are enforced, + and we would not all agree as to which were the wrong ones. + </p> + <p> + The confusion with which I am dealing besets confessedly legal + conceptions. Take the fundamental question, What constitutes the law? You + will find some text writers telling you that it is something different + from what is decided by the courts of Massachusetts or England, that it is + a system of reason, that it is a deduction from principles of ethics or + admitted axioms or what not, which may or may not coincide with the + decisions. But if we take the view of our friend the bad man we shall find + that he does not care two straws for the axioms or deductions, but that he + does want to know what the Massachusetts or English courts are likely to + do in fact. I am much of this mind. The prophecies of what the courts will + do in fact, and nothing more pretentious, are what I mean by the law. + </p> + <p> + Take again a notion which as popularly understood is the widest conception + which the law contains—the notion of legal duty, to which already I + have referred. We fill the word with all the content which we draw from + morals. But what does it mean to a bad man? Mainly, and in the first + place, a prophecy that if he does certain things he will be subjected to + disagreeable consequences by way of imprisonment or compulsory payment of + money. But from his point of view, what is the difference between being + fined and taxed a certain sum for doing a certain thing? That his point of + view is the test of legal principles is proven by the many discussions + which have arisen in the courts on the very question whether a given + statutory liability is a penalty or a tax. On the answer to this question + depends the decision whether conduct is legally wrong or right, and also + whether a man is under compulsion or free. Leaving the criminal law on one + side, what is the difference between the liability under the mill acts or + statutes authorizing a taking by eminent domain and the liability for what + we call a wrongful conversion of property where restoration is out of the + question. In both cases the party taking another man's property has to pay + its fair value as assessed by a jury, and no more. What significance is + there in calling one taking right and another wrong from the point of view + of the law? It does not matter, so far as the given consequence, the + compulsory payment, is concerned, whether the act to which it is attached + is described in terms of praise or in terms of blame, or whether the law + purports to prohibit it or to allow it. If it matters at all, still + speaking from the bad man's point of view, it must be because in one case + and not in the other some further disadvantages, or at least some further + consequences, are attached to the act by law. The only other disadvantages + thus attached to it which I ever have been able to think of are to be + found in two somewhat insignificant legal doctrines, both of which might + be abolished without much disturbance. One is, that a contract to do a + prohibited act is unlawful, and the other, that, if one of two or more + joint wrongdoers has to pay all the damages, he cannot recover + contribution from his fellows. And that I believe is all. You see how the + vague circumference of the notion of duty shrinks and at the same time + grows more precise when we wash it with cynical acid and expel everything + except the object of our study, the operations of the law. + </p> + <p> + Nowhere is the confusion between legal and moral ideas more manifest than + in the law of contract. Among other things, here again the so-called + primary rights and duties are invested with a mystic significance beyond + what can be assigned and explained. The duty to keep a contract at common + law means a prediction that you must pay damages if you do not keep it—and + nothing else. If you commit a tort, you are liable to pay a compensatory + sum. If you commit a contract, you are liable to pay a compensatory sum + unless the promised event comes to pass, and that is all the difference. + But such a mode of looking at the matter stinks in the nostrils of those + who think it advantageous to get as much ethics into the law as they can. + It was good enough for Lord Coke, however, and here, as in many others + cases, I am content to abide with him. In Bromage v. Genning, a + prohibition was sought in the Kings' Bench against a suit in the marches + of Wales for the specific performance of a covenant to grant a lease, and + Coke said that it would subvert the intention of the covenantor, since he + intends it to be at his election either to lose the damages or to make the + lease. Sergeant Harra for the plaintiff confessed that he moved the matter + against his conscience, and a prohibition was granted. This goes further + than we should go now, but it shows what I venture to say has been the + common law point of view from the beginning, although Mr. Harriman, in his + very able little book upon Contracts has been misled, as I humbly think, + to a different conclusion. + </p> + <p> + I have spoken only of the common law, because there are some cases in + which a logical justification can be found for speaking of civil + liabilities as imposing duties in an intelligible sense. These are the + relatively few in which equity will grant an injunction, and will enforce + it by putting the defendant in prison or otherwise punishing him unless he + complies with the order of the court. But I hardly think it advisable to + shape general theory from the exception, and I think it would be better to + cease troubling ourselves about primary rights and sanctions altogether, + than to describe our prophecies concerning the liabilities commonly + imposed by the law in those inappropriate terms. + </p> + <p> + I mentioned, as other examples of the use by the law of words drawn from + morals, malice, intent, and negligence. It is enough to take malice as it + is used in the law of civil liability for wrongs what we lawyers call the + law of torts—to show that it means something different in law from + what it means in morals, and also to show how the difference has been + obscured by giving to principles which have little or nothing to do with + each other the same name. Three hundred years ago a parson preached a + sermon and told a story out of Fox's Book of Martyrs of a man who had + assisted at the torture of one of the saints, and afterward died, + suffering compensatory inward torment. It happened that Fox was wrong. The + man was alive and chanced to hear the sermon, and thereupon he sued the + parson. Chief Justice Wray instructed the jury that the defendant was not + liable, because the story was told innocently, without malice. He took + malice in the moral sense, as importing a malevolent motive. But nowadays + no one doubts that a man may be liable, without any malevolent motive at + all, for false statements manifestly calculated to inflict temporal + damage. In stating the case in pleading, we still should call the + defendant's conduct malicious; but, in my opinion at least, the word means + nothing about motives, or even about the defendant's attitude toward the + future, but only signifies that the tendency of his conduct under known + circumstances was very plainly to cause the plaintiff temporal harm. + </p> + <p> + In the law of contract the use of moral phraseology led to equal + confusion, as I have shown in part already, but only in part. Morals deal + with the actual internal state of the individual's mind, what he actually + intends. From the time of the Romans down to now, this mode of dealing has + affected the language of the law as to contract, and the language used has + reacted upon the thought. We talk about a contract as a meeting of the + minds of the parties, and thence it is inferred in various cases that + there is no contract because their minds have not met; that is, because + they have intended different things or because one party has not known of + the assent of the other. Yet nothing is more certain than that parties may + be bound by a contract to things which neither of them intended, and when + one does not know of the other's assent. Suppose a contract is executed in + due form and in writing to deliver a lecture, mentioning no time. One of + the parties thinks that the promise will be construed to mean at once, + within a week. The other thinks that it means when he is ready. The court + says that it means within a reasonable time. The parties are bound by the + contract as it is interpreted by the court, yet neither of them meant what + the court declares that they have said. In my opinion no one will + understand the true theory of contract or be able even to discuss some + fundamental questions intelligently until he has understood that all + contracts are formal, that the making of a contract depends not on the + agreement of two minds in one intention, but on the agreement of two sets + of external signs—not on the parties' having meant the same thing + but on their having said the same thing. Furthermore, as the signs may be + addressed to one sense or another—to sight or to hearing—on + the nature of the sign will depend the moment when the contract is made. + If the sign is tangible, for instance, a letter, the contract is made when + the letter of acceptance is delivered. If it is necessary that the minds + of the parties meet, there will be no contract until the acceptance can be + read; none, for example, if the acceptance be snatched from the hand of + the offerer by a third person. + </p> + <p> + This is not the time to work out a theory in detail, or to answer many + obvious doubts and questions which are suggested by these general views. I + know of none which are not easy to answer, but what I am trying to do now + is only by a series of hints to throw some light on the narrow path of + legal doctrine, and upon two pitfalls which, as it seems to me, lie + perilously near to it. Of the first of these I have said enough. I hope + that my illustrations have shown the danger, both to speculation and to + practice, of confounding morality with law, and the trap which legal + language lays for us on that side of our way. For my own part, I often + doubt whether it would not be a gain if every word of moral significance + could be banished from the law altogether, and other words adopted which + should convey legal ideas uncolored by anything outside the law. We should + lose the fossil records of a good deal of history and the majesty got from + ethical associations, but by ridding ourselves of an unnecessary confusion + we should gain very much in the clearness of our thought. + </p> + <p> + So much for the limits of the law. The next thing which I wish to consider + is what are the forces which determine its content and its growth. You may + assume, with Hobbes and Bentham and Austin, that all law emanates from the + sovereign, even when the first human beings to enunciate it are the + judges, or you may think that law is the voice of the Zeitgeist, or what + you like. It is all one to my present purpose. Even if every decision + required the sanction of an emperor with despotic power and a whimsical + turn of mind, we should be interested none the less, still with a view to + prediction, in discovering some order, some rational explanation, and some + principle of growth for the rules which he laid down. In every system + there are such explanations and principles to be found. It is with regard + to them that a second fallacy comes in, which I think it important to + expose. + </p> + <p> + The fallacy to which I refer is the notion that the only force at work in + the development of the law is logic. In the broadest sense, indeed, that + notion would be true. The postulate on which we think about the universe + is that there is a fixed quantitative relation between every phenomenon + and its antecedents and consequents. If there is such a thing as a + phenomenon without these fixed quantitative relations, it is a miracle. It + is outside the law of cause and effect, and as such transcends our power + of thought, or at least is something to or from which we cannot reason. + The condition of our thinking about the universe is that it is capable of + being thought about rationally, or, in other words, that every part of it + is effect and cause in the same sense in which those parts are with which + we are most familiar. So in the broadest sense it is true that the law is + a logical development, like everything else. The danger of which I speak + is not the admission that the principles governing other phenomena also + govern the law, but the notion that a given system, ours, for instance, + can be worked out like mathematics from some general axioms of conduct. + This is the natural error of the schools, but it is not confined to them. + I once heard a very eminent judge say that he never let a decision go + until he was absolutely sure that it was right. So judicial dissent often + is blamed, as if it meant simply that one side or the other were not doing + their sums right, and if they would take more trouble, agreement + inevitably would come. + </p> + <p> + This mode of thinking is entirely natural. The training of lawyers is a + training in logic. The processes of analogy, discrimination, and deduction + are those in which they are most at home. The language of judicial + decision is mainly the language of logic. And the logical method and form + flatter that longing for certainty and for repose which is in every human + mind. But certainty generally is illusion, and repose is not the destiny + of man. Behind the logical form lies a judgment as to the relative worth + and importance of competing legislative grounds, often an inarticulate and + unconscious judgment, it is true, and yet the very root and nerve of the + whole proceeding. You can give any conclusion a logical form. You always + can imply a condition in a contract. But why do you imply it? It is + because of some belief as to the practice of the community or of a class, + or because of some opinion as to policy, or, in short, because of some + attitude of yours upon a matter not capable of exact quantitative + measurement, and therefore not capable of founding exact logical + conclusions. Such matters really are battle grounds where the means do not + exist for the determinations that shall be good for all time, and where + the decision can do no more than embody the preference of a given body in + a given time and place. We do not realize how large a part of our law is + open to reconsideration upon a slight change in the habit of the public + mind. No concrete proposition is self evident, no matter how ready we may + be to accept it, not even Mr. Herbert Spencer's "Every man has a right to + do what he wills, provided he interferes not with a like right on the part + of his neighbors." + </p> + <p> + Why is a false and injurious statement privileged, if it is made honestly + in giving information about a servant? It is because it has been thought + more important that information should be given freely, than that a man + should be protected from what under other circumstances would be an + actionable wrong. Why is a man at liberty to set up a business which he + knows will ruin his neighborhood? It is because the public good is + supposed to be best subserved by free competition. Obviously such + judgments of relative importance may vary in different times and places. + Why does a judge instruct a jury that an employer is not liable to an + employee for an injury received in the course of his employment unless he + is negligent, and why do the jury generally find for the plaintiff if the + case is allowed to go to them? It is because the traditional policy of our + law is to confine liability to cases where a prudent man might have + foreseen the injury, or at least the danger, while the inclination of a + very large part of the community is to make certain classes of persons + insure the safety of those with whom they deal. Since the last words were + written, I have seen the requirement of such insurance put forth as part + of the programme of one of the best known labor organizations. There is a + concealed, half conscious battle on the question of legislative policy, + and if any one thinks that it can be settled deductively, or once for all, + I only can say that I think he is theoretically wrong, and that I am + certain that his conclusion will not be accepted in practice semper ubique + et ab omnibus. + </p> + <p> + Indeed, I think that even now our theory upon this matter is open to + reconsideration, although I am not prepared to say how I should decide if + a reconsideration were proposed. Our law of torts comes from the old days + of isolated, ungeneralized wrongs, assaults, slanders, and the like, where + the damages might be taken to lie where they fell by legal judgment. But + the torts with which our courts are kept busy today are mainly the + incidents of certain well known businesses. They are injuries to person or + property by railroads, factories, and the like. The liability for them is + estimated, and sooner or later goes into the price paid by the public. The + public really pays the damages, and the question of liability, if pressed + far enough, is really a question how far it is desirable that the public + should insure the safety of one whose work it uses. It might be said that + in such cases the chance of a jury finding for the defendant is merely a + chance, once in a while rather arbitrarily interrupting the regular course + of recovery, most likely in the case of an unusually conscientious + plaintiff, and therefore better done away with. On the other hand, the + economic value even of a life to the community can be estimated, and no + recovery, it may be said, ought to go beyond that amount. It is + conceivable that some day in certain cases we may find ourselves + imitating, on a higher plane, the tariff for life and limb which we see in + the Leges Barbarorum. + </p> + <p> + I think that the judges themselves have failed adequately to recognize + their duty of weighing considerations of social advantage. The duty is + inevitable, and the result of the often proclaimed judicial aversion to + deal with such considerations is simply to leave the very ground and + foundation of judgments inarticulate, and often unconscious, as I have + said. When socialism first began to be talked about, the comfortable + classes of the community were a good deal frightened. I suspect that this + fear has influenced judicial action both here and in England, yet it is + certain that it is not a conscious factor in the decisions to which I + refer. I think that something similar has led people who no longer hope to + control the legislatures to look to the courts as expounders of the + constitutions, and that in some courts new principles have been discovered + outside the bodies of those instruments, which may be generalized into + acceptance of the economic doctrines which prevailed about fifty years + ago, and a wholesale prohibition of what a tribunal of lawyers does not + think about right. I cannot but believe that if the training of lawyers + led them habitually to consider more definitely and explicitly the social + advantage on which the rule they lay down must be justified, they + sometimes would hesitate where now they are confident, and see that really + they were taking sides upon debatable and often burning questions. + </p> + <p> + So much for the fallacy of logical form. Now let us consider the present + condition of the law as a subject for study, and the ideal toward which it + tends. We still are far from the point of view which I desire to see + reached. No one has reached it or can reach it as yet. We are only at the + beginning of a philosophical reaction, and of a reconsideration of the + worth of doctrines which for the most part still are taken for granted + without any deliberate, conscious, and systematic questioning of their + grounds. The development of our law has gone on for nearly a thousand + years, like the development of a plant, each generation taking the + inevitable next step, mind, like matter, simply obeying a law of + spontaneous growth. It is perfectly natural and right that it should have + been so. Imitation is a necessity of human nature, as has been illustrated + by a remarkable French writer, M. Tard, in an admirable book, Les Lois de + l'Imitation. Most of the things we do, we do for no better reason than + that our fathers have done them or that our neighbors do them, and the + same is true of a larger part than we suspect of what we think. The reason + is a good one, because our short life gives us no time for a better, but + it is not the best. It does not follow, because we all are compelled to + take on faith at second hand most of the rules on which we base our action + and our thought, that each of us may not try to set some corner of his + world in the order of reason, or that all of us collectively should not + aspire to carry reason as far as it will go throughout the whole domain. + In regard to the law, it is true, no doubt, that an evolutionist will + hesitate to affirm universal validity for his social ideals, or for the + principles which he thinks should be embodied in legislation. He is + content if he can prove them best for here and now. He may be ready to + admit that he knows nothing about an absolute best in the cosmos, and even + that he knows next to nothing about a permanent best for men. Still it is + true that a body of law is more rational and more civilized when every + rule it contains is referred articulately and definitely to an end which + it subserves, and when the grounds for desiring that end are stated or are + ready to be stated in words. + </p> + <p> + At present, in very many cases, if we want to know why a rule of law has + taken its particular shape, and more or less if we want to know why it + exists at all, we go to tradition. We follow it into the Year Books, and + perhaps beyond them to the customs of the Salian Franks, and somewhere in + the past, in the German forests, in the needs of Norman kings, in the + assumptions of a dominant class, in the absence of generalized ideas, we + find out the practical motive for what now best is justified by the mere + fact of its acceptance and that men are accustomed to it. The rational + study of law is still to a large extent the study of history. History must + be a part of the study, because without it we cannot know the precise + scope of rules which it is our business to know. It is a part of the + rational study, because it is the first step toward an enlightened + scepticism, that is, towards a deliberate reconsideration of the worth of + those rules. When you get the dragon out of his cave on to the plain and + in the daylight, you can count his teeth and claws, and see just what is + his strength. But to get him out is only the first step. The next is + either to kill him, or to tame him and make him a useful animal. For the + rational study of the law the blackletter man may be the man of the + present, but the man of the future is the man of statistics and the master + of economics. It is revolting to have no better reason for a rule of law + than that so it was laid down in the time of Henry IV. It is still more + revolting if the grounds upon which it was laid down have vanished long + since, and the rule simply persists from blind imitation of the past. I am + thinking of the technical rule as to trespass ab initio, as it is called, + which I attempted to explain in a recent Massachusetts case. + </p> + <p> + Let me take an illustration, which can be stated in a few words, to show + how the social end which is aimed at by a rule of law is obscured and only + partially attained in consequence of the fact that the rule owes its form + to a gradual historical development, instead of being reshaped as a whole, + with conscious articulate reference to the end in view. We think it + desirable to prevent one man's property being misappropriated by another, + and so we make larceny a crime. The evil is the same whether the + misappropriation is made by a man into whose hands the owner has put the + property, or by one who wrongfully takes it away. But primitive law in its + weakness did not get much beyond an effort to prevent violence, and very + naturally made a wrongful taking, a trespass, part of its definition of + the crime. In modern times the judges enlarged the definition a little by + holding that, if the wrong-doer gets possession by a trick or device, the + crime is committed. This really was giving up the requirement of trespass, + and it would have been more logical, as well as truer to the present + object of the law, to abandon the requirement altogether. That, however, + would have seemed too bold, and was left to statute. Statutes were passed + making embezzlement a crime. But the force of tradition caused the crime + of embezzlement to be regarded as so far distinct from larceny that to + this day, in some jurisdictions at least, a slip corner is kept open for + thieves to contend, if indicted for larceny, that they should have been + indicted for embezzlement, and if indicted for embezzlement, that they + should have been indicted for larceny, and to escape on that ground. + </p> + <p> + Far more fundamental questions still await a better answer than that we do + as our fathers have done. What have we better than a blind guess to show + that the criminal law in its present form does more good than harm? I do + not stop to refer to the effect which it has had in degrading prisoners + and in plunging them further into crime, or to the question whether fine + and imprisonment do not fall more heavily on a criminal's wife and + children than on himself. I have in mind more far-reaching questions. Does + punishment deter? Do we deal with criminals on proper principles? A modern + school of Continental criminalists plumes itself on the formula, first + suggested, it is said, by Gall, that we must consider the criminal rather + than the crime. The formula does not carry us very far, but the inquiries + which have been started look toward an answer of my questions based on + science for the first time. If the typical criminal is a degenerate, bound + to swindle or to murder by as deep seated an organic necessity as that + which makes the rattlesnake bite, it is idle to talk of deterring him by + the classical method of imprisonment. He must be got rid of; he cannot be + improved, or frightened out of his structural reaction. If, on the other + hand, crime, like normal human conduct, is mainly a matter of imitation, + punishment fairly may be expected to help to keep it out of fashion. The + study of criminals has been thought by some well known men of science to + sustain the former hypothesis. The statistics of the relative increase of + crime in crowded places like large cities, where example has the greatest + chance to work, and in less populated parts, where the contagion spreads + more slowly, have been used with great force in favor of the latter view. + But there is weighty authority for the belief that, however this may be, + "not the nature of the crime, but the dangerousness of the criminal, + constitutes the only reasonable legal criterion to guide the inevitable + social reaction against the criminal." + </p> + <p> + The impediments to rational generalization, which I illustrated from the + law of larceny, are shown in the other branches of the law, as well as in + that of crime. Take the law of tort or civil liability for damages apart + from contract and the like. Is there any general theory of such liability, + or are the cases in which it exists simply to be enumerated, and to be + explained each on its special ground, as is easy to believe from the fact + that the right of action for certain well known classes of wrongs like + trespass or slander has its special history for each class? I think that + the law regards the infliction of temporal damage by a responsible person + as actionable, if under the circumstances known to him the danger of his + act is manifest according to common experience, or according to his own + experience if it is more than common, except in cases where upon special + grounds of policy the law refuses to protect the plaintiff or grants a + privilege to the defendant. I think that commonly malice, intent, and + negligence mean only that the danger was manifest to a greater or less + degree, under the circumstances known to the actor, although in some cases + of privilege malice may mean an actual malevolent motive, and such a + motive may take away a permission knowingly to inflict harm, which + otherwise would be granted on this or that ground of dominant public good. + But when I stated my view to a very eminent English judge the other day, + he said, "You are discussing what the law ought to be; as the law is, you + must show a right. A man is not liable for negligence unless he is subject + to a duty." If our difference was more than a difference in words, or with + regard to the proportion between the exceptions and the rule, then, in his + opinion, liability for an act cannot be referred to the manifest tendency + of the act to cause temporal damage in general as a sufficient + explanation, but must be referred to the special nature of the damage, or + must be derived from some special circumstances outside of the tendency of + the act, for which no generalized explanation exists. I think that such a + view is wrong, but it is familiar, and I dare say generally is accepted in + England. + </p> + <p> + Everywhere the basis of principle is tradition, to such an extent that we + even are in danger of making the role of history more important than it + is. The other day Professor Ames wrote a learned article to show, among + other things, that the common law did not recognize the defence of fraud + in actions upon specialties, and the moral might seem to be that the + personal character of that defence is due to its equitable origin. But if, + as I said, all contracts are formal, the difference is not merely + historical, but theoretic, between defects of form which prevent a + contract from being made, and mistaken motives which manifestly could not + be considered in any system that we should call rational except against + one who was privy to those motives. It is not confined to specialties, but + is of universal application. I ought to add that I do not suppose that Mr. + Ames would disagree with what I suggest. + </p> + <p> + However, if we consider the law of contract, we find it full of history. + The distinctions between debt, covenant, and assumpsit are merely + historical. The classification of certain obligations to pay money, + imposed by the law irrespective of any bargain as quasi contracts, is + merely historical. The doctrine of consideration is merely historical. The + effect given to a seal is to be explained by history alone. Consideration + is a mere form. Is it a useful form? If so, why should it not be required + in all contracts? A seal is a mere form, and is vanishing in the scroll + and in enactments that a consideration must be given, seal or no seal. Why + should any merely historical distinction be allowed to affect the rights + and obligations of business men? + </p> + <p> + Since I wrote this discourse I have come on a very good example of the way + in which tradition not only overrides rational policy, but overrides it + after first having been misunderstood and having been given a new and + broader scope than it had when it had a meaning. It is the settled law of + England that a material alteration of a written contract by a party avoids + it as against him. The doctrine is contrary to the general tendency of the + law. We do not tell a jury that if a man ever has lied in one particular + he is to be presumed to lie in all. Even if a man has tried to defraud, it + seems no sufficient reason for preventing him from proving the truth. + Objections of like nature in general go to the weight, not to the + admissibility, of evidence. Moreover, this rule is irrespective of fraud, + and is not confined to evidence. It is not merely that you cannot use the + writing, but that the contract is at an end. What does this mean? The + existence of a written contract depends on the fact that the offerer and + offeree have interchanged their written expressions, not on the continued + existence of those expressions. But in the case of a bond, the primitive + notion was different. The contract was inseparable from the parchment. If + a stranger destroyed it, or tore off the seal, or altered it, the obligee + count not recover, however free from fault, because the defendant's + contract, that is, the actual tangible bond which he had sealed, could not + be produced in the form in which it bound him. About a hundred years ago + Lord Kenyon undertook to use his reason on the tradition, as he sometimes + did to the detriment of the law, and, not understanding it, said he could + see no reason why what was true of a bond should not be true of other + contracts. His decision happened to be right, as it concerned a promissory + note, where again the common law regarded the contract as inseparable from + the paper on which it was written, but the reasoning was general, and soon + was extended to other written contracts, and various absurd and unreal + grounds of policy were invented to account for the enlarged rule. + </p> + <p> + I trust that no one will understand me to be speaking with disrespect of + the law, because I criticise it so freely. I venerate the law, and + especially our system of law, as one of the vastest products of the human + mind. No one knows better than I do the countless number of great + intellects that have spent themselves in making some addition or + improvement, the greatest of which is trifling when compared with the + mighty whole. It has the final title to respect that it exists, that it is + not a Hegelian dream, but a part of the lives of men. But one may + criticise even what one reveres. Law is the business to which my life is + devoted, and I should show less than devotion if I did not do what in me + lies to improve it, and, when I perceive what seems to me the ideal of its + future, if I hesitated to point it out and to press toward it with all my + heart. + </p> + <p> + Perhaps I have said enough to show the part which the study of history + necessarily plays in the intelligent study of the law as it is today. In + the teaching of this school and at Cambridge it is in no danger of being + undervalued. Mr. Bigelow here and Mr. Ames and Mr. Thayer there have made + important contributions which will not be forgotten, and in England the + recent history of early English law by Sir Frederick Pollock and Mr. + Maitland has lent the subject an almost deceptive charm. We must beware of + the pitfall of antiquarianism, and must remember that for our purposes our + only interest in the past is for the light it throws upon the present. I + look forward to a time when the part played by history in the explanation + of dogma shall be very small, and instead of ingenious research we shall + spend our energy on a study of the ends sought to be attained and the + reasons for desiring them. As a step toward that ideal it seems to me that + every lawyer ought to seek an understanding of economics. The present + divorce between the schools of political economy and law seems to me an + evidence of how much progress in philosophical study still remains to be + made. In the present state of political economy, indeed, we come again + upon history on a larger scale, but there we are called on to consider and + weigh the ends of legislation, the means of attaining them, and the cost. + We learn that for everything we have we give up something else, and we are + taught to set the advantage we gain against the other advantage we lose, + and to know what we are doing when we elect. + </p> + <p> + There is another study which sometimes is undervalued by the practical + minded, for which I wish to say a good word, although I think a good deal + of pretty poor stuff goes under that name. I mean the study of what is + called jurisprudence. Jurisprudence, as I look at it, is simply law in its + most generalized part. Every effort to reduce a case to a rule is an + effort of jurisprudence, although the name as used in English is confined + to the broadest rules and most fundamental conceptions. One mark of a + great lawyer is that he sees the application of the broadest rules. There + is a story of a Vermont justice of the peace before whom a suit was + brought by one farmer against another for breaking a churn. The justice + took time to consider, and then said that he has looked through the + statutes and could find nothing about churns, and gave judgment for the + defendant. The same state of mind is shown in all our common digests and + textbooks. Applications of rudimentary rules of contract or tort are + tucked away under the head of Railroads or Telegraphs or go to swell + treatises on historical subdivisions, such as Shipping or Equity, or are + gathered under an arbitrary title which is thought likely to appeal to the + practical mind, such as Mercantile Law. If a man goes into law it pays to + be a master of it, and to be a master of it means to look straight through + all the dramatic incidents and to discern the true basis for prophecy. + Therefore, it is well to have an accurate notion of what you mean by law, + by a right, by a duty, by malice, intent, and negligence, by ownership, by + possession, and so forth. I have in my mind cases in which the highest + courts seem to me to have floundered because they had no clear ideas on + some of these themes. I have illustrated their importance already. If a + further illustration is wished, it may be found by reading the Appendix to + Sir James Stephen's Criminal Law on the subject of possession, and then + turning to Pollock and Wright's enlightened book. Sir James Stephen is not + the only writer whose attempts to analyze legal ideas have been confused + by striving for a useless quintessence of all systems, instead of an + accurate anatomy of one. The trouble with Austin was that he did not know + enough English law. But still it is a practical advantage to master + Austin, and his predecessors, Hobbes and Bentham, and his worthy + successors, Holland and Pollock. Sir Frederick Pollock's recent little + book is touched with the felicity which marks all his works, and is wholly + free from the perverting influence of Roman models. + </p> + <p> + The advice of the elders to young men is very apt to be as unreal as a + list of the hundred best books. At least in my day I had my share of such + counsels, and high among the unrealities I place the recommendation to + study the Roman law. I assume that such advice means more than collecting + a few Latin maxims with which to ornament the discourse—the purpose + for which Lord Coke recommended Bracton. If that is all that is wanted, + the title De Regulis Juris Antiqui can be read in an hour. I assume that, + if it is well to study the Roman Law, it is well to study it as a working + system. That means mastering a set of technicalities more difficult and + less understood than our own, and studying another course of history by + which even more than our own the Roman law must explained. If any one + doubts me, let him read Keller's Der Romische Civil Process und die + Actionen, a treatise on the praetor's edict, Muirhead's most interesting + Historical Introduction to the Private Law of Rome, and, to give him the + best chance, Sohn's admirable Institutes. No. The way to gain a liberal + view of your subject is not to read something else, but to get to the + bottom of the subject itself. The means of doing that are, in the first + place, to follow the existing body of dogma into its highest + generalizations by the help of jurisprudence; next, to discover from + history how it has come to be what it is; and finally, so far as you can, + to consider the ends which the several rules seek to accomplish, the + reasons why those ends are desired, what is given up to gain them, and + whether they are worth the price. + </p> + <p> + We have too little theory in the law rather than too much, especially on + this final branch of study. When I was speaking of history, I mentioned + larceny as an example to show how the law suffered from not having + embodied in a clear form a rule which will accomplish its manifest + purpose. In that case the trouble was due to the survival of forms coming + from a time when a more limited purpose was entertained. Let me now give + an example to show the practical importance, for the decision of actual + cases, of understanding the reasons of the law, by taking an example from + rules which, so far as I know, never have been explained or theorized + about in any adequate way. I refer to statutes of limitation and the law + of prescription. The end of such rules is obvious, but what is the + justification for depriving a man of his rights, a pure evil as far as it + goes, in consequence of the lapse of time? Sometimes the loss of evidence + is referred to, but that is a secondary matter. Sometimes the desirability + of peace, but why is peace more desirable after twenty years than before? + It is increasingly likely to come without the aid of legislation. + Sometimes it is said that, if a man neglects to enforce his rights, he + cannot complain if, after a while, the law follows his example. Now if + this is all that can be said about it, you probably will decide a case I + am going to put, for the plaintiff; if you take the view which I shall + suggest, you possibly will decide it for the defendant. A man is sued for + trespass upon land, and justifies under a right of way. He proves that he + has used the way openly and adversely for twenty years, but it turns out + that the plaintiff had granted a license to a person whom he reasonably + supposed to be the defendant's agent, although not so in fact, and + therefore had assumed that the use of the way was permissive, in which + case no right would be gained. Has the defendant gained a right or not? If + his gaining it stands on the fault and neglect of the landowner in the + ordinary sense, as seems commonly to be supposed, there has been no such + neglect, and the right of way has not been acquired. But if I were the + defendant's counsel, I should suggest that the foundation of the + acquisition of rights by lapse of time is to be looked for in the position + of the person who gains them, not in that of the loser. Sir Henry Maine + has made it fashionable to connect the archaic notion of property with + prescription. But the connection is further back than the first recorded + history. It is in the nature of man's mind. A thing which you have enjoyed + and used as your own for a long time, whether property or an opinion, + takes root in your being and cannot be torn away without your resenting + the act and trying to defend yourself, however you came by it. The law can + ask no better justification than the deepest instincts of man. It is only + by way of reply to the suggestion that you are disappointing the former + owner, that you refer to his neglect having allowed the gradual + dissociation between himself and what he claims, and the gradual + association of it with another. If he knows that another is doing acts + which on their face show that he is on the way toward establishing such an + association, I should argue that in justice to that other he was bound at + his peril to find out whether the other was acting under his permission, + to see that he was warned, and, if necessary, stopped. + </p> + <p> + I have been speaking about the study of the law, and I have said next to + nothing about what commonly is talked about in that connection—text-books + and the case system, and all the machinery with which a student comes most + immediately in contact. Nor shall I say anything about them. Theory is my + subject, not practical details. The modes of teaching have been improved + since my time, no doubt, but ability and industry will master the raw + material with any mode. Theory is the most important part of the dogma of + the law, as the architect is the most important man who takes part in the + building of a house. The most important improvements of the last + twenty-five years are improvements in theory. It is not to be feared as + unpractical, for, to the competent, it simply means going to the bottom of + the subject. For the incompetent, it sometimes is true, as has been said, + that an interest in general ideas means an absence of particular + knowledge. I remember in army days reading of a youth who, being examined + for the lowest grade and being asked a question about squadron drill, + answered that he never had considered the evolutions of less than ten + thousand men. But the weak and foolish must be left to their folly. The + danger is that the able and practical minded should look with indifference + or distrust upon ideas the connection of which with their business is + remote. I heard a story, the other day, of a man who had a valet to whom + he paid high wages, subject to deduction for faults. One of his deductions + was, "For lack of imagination, five dollars." The lack is not confined to + valets. The object of ambition, power, generally presents itself nowadays + in the form of money alone. Money is the most immediate form, and is a + proper object of desire. "The fortune," said Rachel, "is the measure of + intelligence." That is a good text to waken people out of a fool's + paradise. But, as Hegel says, "It is in the end not the appetite, but the + opinion, which has to be satisfied." To an imagination of any scope the + most far-reaching form of power is not money, it is the command of ideas. + If you want great examples, read Mr. Leslie Stephen's History of English + Thought in the Eighteenth Century, and see how a hundred years after his + death the abstract speculations of Descartes had become a practical force + controlling the conduct of men. Read the works of the great German + jurists, and see how much more the world is governed today by Kant than by + Bonaparte. We cannot all be Descartes or Kant, but we all want happiness. + And happiness, I am sure from having known many successful men, cannot be + won simply by being counsel for great corporations and having an income of + fifty thousand dollars. An intellect great enough to win the prize needs + other food besides success. The remoter and more general aspects of the + law are those which give it universal interest. It is through them that + you not only become a great master in your calling, but connect your + subject with the universe and catch an echo of the infinite, a glimpse of + its unfathomable process, a hint of the universal law. + </p> +<pre xml:space="preserve"> + + + + + +End of Project Gutenberg's The Path of the Law, by Oliver Wendell Holmes, Jr. + +*** END OF THIS PROJECT GUTENBERG EBOOK THE PATH OF THE LAW *** + +***** This file should be named 2373-h.htm or 2373-h.zip ***** +This and all associated files of various formats will be found in: + http://www.gutenberg.org/2/3/7/2373/ + +Produced by Stuart E. Thiel and David Widger + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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