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diff --git a/2373.txt b/2373.txt new file mode 100644 index 0000000..176ca43 --- /dev/null +++ b/2373.txt @@ -0,0 +1,1225 @@ +Project Gutenberg's The Path of the Law, by Oliver Wendell Holmes, Jr. + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. 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] + +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 + + + + + +THE PATH OF THE LAW + +by Oliver Wendell Holmes, Jr. + + + + +10 HARVARD LAW REVIEW 457 (1897) + + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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." + +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. + +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. + +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. + +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. + +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. + +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. + +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." + +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. + +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. + +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? + +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. + +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. + +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. + +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. + +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. + +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. + +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. + + + + + +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.txt or 2373.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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