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diff --git a/old/pthlw10.txt b/old/pthlw10.txt new file mode 100644 index 0000000..2e4b136 --- /dev/null +++ b/old/pthlw10.txt @@ -0,0 +1,1133 @@ +Project Gutenberg Etext The Path of the Law, Oliver Wendell Holmes +#2 in our series by Oliver Wendell Holmes, Jr. + + +Copyright laws are changing all over the world, be sure to check +the copyright laws for your country before posting these files!! + +Please take a look at the important information in this header. +We encourage you to keep this file on your own disk, keeping an +electronic path open for the next readers. Do not remove this. + + +**Welcome To The World of Free Plain Vanilla Electronic Texts** + +**Etexts Readable By Both Humans and By Computers, Since 1971** + +*These Etexts Prepared By Hundreds of Volunteers and Donations* + +Information on contacting Project Gutenberg to get Etexts, and +further information is included below. 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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 modem 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 this Project Gutenberg Etext of The Path of the Law + diff --git a/old/pthlw10.zip b/old/pthlw10.zip Binary files differnew file mode 100644 index 0000000..e40a638 --- /dev/null +++ b/old/pthlw10.zip |