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Produced by Stuart E. Thiel and David Widger


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

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.

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Online LibraryOliver Wendell Holmes Jr.The Path of the Law → online text (page 1 of 3)