Oliver Wendell Holmes Jr..

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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

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


Online LibraryOliver Wendell Holmes Jr.The Path of the Law → online text (page 2 of 3)