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The Path of the Law

by O. W. Holmes, Jr.

November, 2000  [Etext #2398]


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THE PATH OF THE LAW

Oliver Wendell Holmes, Jr.

10 Harvard Law Review 457 (1897)

When we study law we are not studying a mystery but a well-known
profession.  We are studying what we shall want in order to appear
before judges, or to advise people in such a way as to keep them out of
court.  The reason why it is a profession, why people will pay lawyers
to argue for them or to advise them, is that in societies like ours the
command of the public force is intrusted to the judges in certain cases,
and the whole power of the state will be put forth, if necessary, to
carry out their judgments and decrees.  People want to know under what
circumstances and how far they will run the risk of coming against what
is so much stronger than themselves, and hence it becomes a business to
find out when this danger is to be feared.  The object of our study,
then, is prediction, the prediction of the incidence of the public force
through the instrumentality of the courts.

The means of the study are a body of reports, of treatises, and of
statutes, in this country and in England, extending back for six hundred
years, and now increasing annually by hundreds.  In these sibylline
leaves are gathered the scattered prophecies of the past upon the cases
in which the axe will fall.  These are what properly have been called
the oracles of the law.  Far the most important and pretty nearly the
whole meaning of every new effort of legal thought is to make these
prophecies more precise, and to generalize them into a thoroughly
connected system.  The process is one, from a lawyer's statement of a
case, eliminating as it does all the dramatic elements with which his
client's story has clothed it, and retaining only the facts of legal
import, up to the final analyses and abstract universals of theoretic
jurisprudence.  The reason why a lawyer does not mention that his client
wore a white hat when he made a contract, while Mrs. Quickly would be
sure to dwell upon it along with the parcel gilt goblet and the sea-coal
fire, is that he foresees that the public force will act in the same way
whatever his client had upon his head.  It is to make the prophecies
easier to be remembered and to be understood that the teachings of the
decisions of the past are put into general propositions and gathered
into textbooks, or that statutes are passed in a general form.  The
primary rights and duties with which jurisprudence busies itself again
are nothing but prophecies.  One of the many evil effects of the
confusion between legal and moral ideas, about which I shall have
something to say in a moment, is that theory is apt to get the cart
before the horse, and consider the right or the duty as something
existing apart from and independent of the consequences of its breach,
to which certain sanctions are added afterward.  But, as I shall try to
show, a legal duty so called is nothing but a prediction that if a man
does or omits certain things he will be made to suffer in this or that
way by judgment of the court; and so of a legal right.

The number of our predictions when generalized and reduced to a system
is not unmanageably large.  They present themselves as a finite body of
dogma which may be mastered within a reasonable time.  It is a great
mistake to be frightened by the ever-increasing number of reports.  The
reports of a given jurisdiction in the course of a generation take up
pretty much the whole body of the law, and restate it from the present
point of view.  We could reconstruct the corpus from them if all that
went before were burned.  The use of the earlier reports is mainly
historical, a use about which I shall have something to say before I
have finished.

I wish, if I can, to lay down some first principles for the study of
this body of dogma or systematized prediction which we call the law, for
men who want to use it as the instrument of their business to enable
them to prophesy in their turn, and, as bearing upon the study, I wish
to point out an ideal which as yet our law has not attained.

The first thing for a businesslike understanding of the matter is to
understand its limits, and therefore I think it desirable at once to
point out and dispel a confusion between morality and law, which
sometimes rises to the height of conscious theory, and more often and
indeed constantly is making trouble in detail without reaching the point
of consciousness.  You can see very plainly that a bad man has as much
reason as a good one for wishing to avoid an encounter with the public
force, and therefore you can see the practical importance of the
distinction between morality and law.  A man who cares nothing for an
ethical rule which is believed and practised by his neighbors is likely
nevertheless to care a good deal to avoid being made to pay money, and
will want to keep out of jail if he can.

I take it for granted that no hearer of mine will misinterpret what I
have to say as the language of cynicism.  The law is the witness and
external deposit of our moral life.  Its history is the history of the
moral development of the race.  The practice of it, in spite of popular
jests, tends to make good citizens and good men.  When I emphasize the
difference between law and morals I do so with reference to a single
end, that of learning and understanding the law.  For that purpose you
must definitely master its specific marks, and it is for that that I ask
you for the moment to imagine yourselves indifferent to other and
greater things.

I do not say that there is not a wider point of view from which the
distinction between law and morals becomes of secondary or no
importance, as all mathematical distinctions vanish in presence of the
infinite.  But I do say that that distinction is of the first importance
for the object which we are here to consider--a right study and mastery
of the law as a business with well understood limits, a body of dogma
enclosed within definite lines.  I have just shown the practical reason
for saying so.  If you want to know the law and nothing else, you must
look at it as a bad man, who cares only for the material consequences
which such knowledge enables him to predict, not as a good one, who
finds his reasons for conduct, whether inside the law or outside of it,
in the vaguer sanctions of conscience.  The theoretical importance of
the distinction is no less, if you would reason on your subject aright.
The law is full of phraseology drawn from morals, and by the mere force
of language continually invites us to pass from one domain to the other
without perceiving it, as we are sure to do unless we have the boundary
constantly before our minds.  The law talks about rights, and duties,
and malice, and intent, and negligence, and so forth, and nothing is
easier, or, I may say, more common in legal reasoning, than to take
these words in their moral sense, at some state of the argument, and so
to drop into fallacy.  For instance, when we speak of the rights of man
in a moral sense, we mean to mark the limits of interference with
individual freedom which we think are prescribed by conscience, or by
our ideal, however reached.  Yet it is certain that many laws have been
enforced in the past, and it is likely that some are enforced now, which
are condemned by the most enlightened opinion of the time, or which at
all events pass the limit of interference, as many consciences would
draw it.  Manifestly, therefore, nothing but confusion of thought can
result from assuming that the rights of man in a moral sense are equally
rights in the sense of the Constitution and the law.  No doubt simple
and extreme cases can be put of imaginable laws which the statute-making
power would not dare to enact, even in the absence of written
constitutional prohibitions, because the community would rise in
rebellion and fight; and this gives some plausibility to the proposition
that the law, if not a part of morality, is limited by it.  But this
limit of power is not coextensive with any system of morals.  For the
most part it falls far within the lines of any such system, and in some
cases may extend beyond them, for reasons drawn from the habits of a
particular people at a particular time.  I once heard the late Professor
Agassiz say that a German population would rise if you added two cents
to the price of a glass of beer.  A statute in such a case would be
empty words, not because it was wrong, but because it could not be
enforced.  No one will deny that wrong statutes can be and are enforced,
and we would not all agree as to which were the wrong ones.

The confusion with which I am dealing besets confessedly legal
conceptions.  Take the fundamental question, What constitutes the law?
You will find some text writers telling you that it is something
different from what is decided by the courts of Massachusetts or
England, that it is a system of reason, that it is a deduction from
principles of ethics or admitted axioms or what not, which may or may
not coincide with the decisions.  But if we take the view of our friend
the bad man we shall find that he does not care two straws for the
axioms or deductions, but that he does want to know what the
Massachusetts or English courts are likely to do in fact.  I am much of
this mind.  The prophecies of what the courts will do in fact, and
nothing more pretentious, are what I mean by the law.

Take again a notion which as popularly understood is the widest
conception which the law contains--the notion of legal duty, to which
already I have referred.  We fill the word with all the content which we
draw from morals.  But what does it mean to a bad man?  Mainly, and in
the first place, a prophecy that if he does certain things he will be
subjected to disagreeable consequences by way of imprisonment or
compulsory payment of money.  But from his point of view, what is the
difference between being fined and taxed a certain sum for doing a
certain thing?  That his point of view is the test of legal principles
is proven by the many discussions which have arisen in the courts on the
very question whether a given statutory liability is a penalty or a tax.
On the answer to this question depends the decision whether conduct is
legally wrong or right, and also whether a man is under compulsion or
free.  Leaving the criminal law on one side, what is the difference
between the liability under the mill acts or statutes authorizing a
taking by eminent domain and the liability for what we call a wrongful
conversion of property where restoration is out of the question.  In
both cases the party taking another man's property has to pay its fair
value as assessed by a jury, and no more.  What significance is there in
calling one taking right and another wrong from the point of view of the
law?  It does not matter, so far as the given consequence, the
compulsory payment, is concerned, whether the act to which it is
attached is described in terms of praise or in terms of blame, or
whether the law purports to prohibit it or to allow it.  If it matters
at all, still speaking from the bad man's point of view, it must be
because in one case and not in the other some further disadvantages, or
at least some further consequences, are attached to the act by law.  The
only other disadvantages thus attached to it which I ever have been able
to think of are to be found in two somewhat insignificant legal
doctrines, both of which might be abolished without much disturbance.
One is, that a contract to do a prohibited act is unlawful, and the
other, that, if one of two or more joint wrongdoers has to pay all the
damages, he cannot recover contribution from his fellows.  And that I
believe is all.  You see how the vague circumference of the notion of
duty shrinks and at the same time grows more precise when we wash it
with cynical acid and expel everything except the object of our study,
the operations of the law.

Nowhere is the confusion between legal and moral ideas more manifest
than in the law of contract.  Among other things, here again the so-
called primary rights and duties are invested with a mystic significance
beyond what can be assigned and explained.  The duty to keep a contract
at common law means a prediction that you must pay damages if you do not
keep it--and nothing else.  If you commit a tort, you are liable to pay
a compensatory sum.  If you commit a contract, you are liable to pay a
compensatory sum unless the promised event comes to pass, and that is
all the difference.  But such a mode of looking at the matter stinks in
the nostrils of those who think it advantageous to get as much ethics
into the law as they can.  It was good enough for Lord Coke, however,
and here, as in many others cases, I am content to abide with him.  In
Bromage v.  Genning, a prohibition was sought in the Kings' Bench
against a suit in the marches of Wales for the specific performance of a
covenant to grant a lease, and Coke said that it would subvert the
intention of the covenantor, since he intends it to be at his election
either to lose the damages or to make the lease.  Sergeant Harra for the
plaintiff confessed that he moved the matter against his conscience, and
a prohibition was granted.  This goes further than we should go now, but
it shows what I venture to say has been the common law point of view
from the beginning, although Mr. Harriman, in his very able little book
upon Contracts has been misled, as I humbly think, to a different
conclusion.

I have spoken only of the common law, because there are some cases in
which a logical justification can be found for speaking of civil
liabilities as imposing duties in an intelligible sense.  These are the
relatively few in which equity will grant an injunction, and will
enforce it by putting the defendant in prison or otherwise punishing him
unless he complies with the order of the court.  But I hardly think it
advisable to shape general theory from the exception, and I think it
would be better to cease troubling ourselves about primary rights and
sanctions altogether, than to describe our prophecies concerning the
liabilities commonly imposed by the law in those inappropriate terms.

I mentioned, as other examples of the use by the law of words drawn from
morals, malice, intent, and negligence.  It is enough to take malice as
it is used in the law of civil liability for wrongs what we lawyers call
the law of torts--to show that it means something different in law from
what it means in morals, and also to show how the difference has been
obscured by giving to principles which have little or nothing to do with
each other the same name.  Three hundred years ago a parson preached a
sermon and told a story out of Fox's Book of Martyrs of a man who had
assisted at the torture of one of the saints, and afterward died,
suffering compensatory inward torment.  It happened that Fox was wrong.
The man was alive and chanced to hear the sermon, and thereupon he sued
the parson.  Chief Justice Wray instructed the jury that the defendant
was not liable, because the story was told innocently, without malice.
He took malice in the moral sense, as importing a malevolent motive.
But nowadays no one doubts that a man may be liable, without any
malevolent motive at all, for false statements manifestly calculated to
inflict temporal damage.  In stating the case in pleading, we still
should call the defendant's conduct malicious; but, in my opinion at
least, the word means nothing about motives, or even about the
defendant's attitude toward the future, but only signifies that the
tendency of his conduct under known circumstances was very plainly to
cause the plaintiff temporal harm.

In the law of contract the use of moral phraseology led to equal
confusion, as I have shown in part already, but only in part.  Morals
deal with the actual internal state of the individual's mind, what he
actually intends.  From the time of the Romans down to now, this mode of
dealing has affected the language of the law as to contract, and the
language used has reacted upon the thought.  We talk about a contract as
a meeting of the minds of the parties, and thence it is inferred in
various cases that there is no contract because their minds have not
met; that is, because they have intended different things or because one
party has not known of the assent of the other.  Yet nothing is more
certain than that parties may be bound by a contract to things which
neither of them intended, and when one does not know of the other's
assent.  Suppose a contract is executed in due form and in writing to
deliver a lecture, mentioning no time.  One of the parties thinks that
the promise will be construed to mean at once, within a week.  The other
thinks that it means when he is ready.  The court says that it means
within a reasonable time.  The parties are bound by the contract as it
is interpreted by the court, yet neither of them meant what the court
declares that they have said.  In my opinion no one will understand the
true theory of contract or be able even to discuss some fundamental
questions intelligently until he has understood that all contracts are
formal, that the making of a contract depends not on the agreement of
two minds in one intention, but on the agreement of two sets of external
signs--not on the parties' having meant the same thing but on their
having said the same thing.  Furthermore, as the signs may be addressed
to one sense or another--to sight or to hearing--on the nature of the
sign will depend the moment when the contract is made.  If the sign is
tangible, for instance, a letter, the contract is made when the letter
of acceptance is delivered.  If it is necessary that the minds of the
parties meet, there will be no contract until the acceptance can be
read; none, for example, if the acceptance be snatched from the hand of
the offerer by a third person.

This is not the time to work out a theory in detail, or to answer many
obvious doubts and questions which are suggested by these general views.
I know of none which are not easy to answer, but what I am trying to do
now is only by a series of hints to throw some light on the narrow path
of legal doctrine, and upon two pitfalls which, as it seems to me, lie
perilously near to it.  Of the first of these I have said enough.  I
hope that my illustrations have shown the danger, both to speculation
and to practice, of confounding morality with law, and the trap which
legal language lays for us on that side of our way.  For my own part, I
often doubt whether it would not be a gain if every word of moral
significance could be banished from the law altogether, and other words
adopted which should convey legal ideas uncolored by anything outside
the law.  We should lose the fossil records of a good deal of history
and the majesty got from ethical associations, but by ridding ourselves
of an unnecessary confusion we should gain very much in the clearness of
our thought.

So much for the limits of the law.  The next thing which I wish to
consider is what are the forces which determine its content and its
growth.  You may assume, with Hobbes and Bentham and Austin, that all
law emanates from the sovereign, even when the first human beings to
enunciate it are the judges, or you may think that law is the voice of
the Zeitgeist, or what you like.  It is all one to my present purpose.
Even if every decision required the sanction of an emperor with despotic
power and a whimsical turn of mind, we should be interested none the
less, still with a view to prediction, in discovering some order, some
rational explanation, and some principle of growth for the rules which
he laid down.  In every system there are such explanations and
principles to be found.  It is with regard to them that a second fallacy
comes in, which I think it important to expose.

The fallacy to which I refer is the notion that the only force at work
in the development of the law is logic.  In the broadest sense, indeed,
that notion would be true.  The postulate on which we think about the
universe is that there is a fixed quantitative relation between every
phenomenon and its antecedents and consequents.  If there is such a
thing as a phenomenon without these fixed quantitative relations, it is
a miracle.  It is outside the law of cause and effect, and as such
transcends our power of thought, or at least is something to or from
which we cannot reason.  The condition of our thinking about the
universe is that it is capable of being thought about rationally, or, in
other words, that every part of it is effect and cause in the same sense
in which those parts are with which we are most familiar.  So in the
broadest sense it is true that the law is a logical development, like
everything else.  The danger of which I speak is not the admission that
the principles governing other phenomena also govern the law, but the
notion that a given system, ours, for instance, can be worked out like
mathematics from some general axioms of conduct.  This is the natural
error of the schools, but it is not confined to them.  I once heard a
very eminent judge say that he never let a decision go until he was
absolutely sure that it was right.  So judicial dissent often is blamed,
as if it meant simply that one side or the other were not doing their
sums right, and if they would take more trouble, agreement inevitably
would come.

This mode of thinking is entirely natural.  The training of lawyers is a
training in logic.  The processes of analogy, discrimination, and
deduction are those in which they are most at home.  The language of
judicial decision is mainly the language of logic.  And the logical
method and form flatter that longing for certainty and for repose which
is in every human mind.  But certainty generally is illusion, and repose
is not the destiny of man.  Behind the logical form lies a judgment as
to the relative worth and importance of competing legislative grounds,
often an inarticulate and unconscious judgment, it is true, and yet the
very root and nerve of the whole proceeding.  You can give any
conclusion a logical form.  You always can imply a condition in a
contract.  But why do you imply it?  It is because of some belief as to
the practice of the community or of a class, or because of some opinion
as to policy, or, in short, because of some attitude of yours upon a
matter not capable of exact quantitative measurement, and therefore not
capable of founding exact logical conclusions.  Such matters really are
battle grounds where the means do not exist for the determinations that
shall be good for all time, and where the decision can do no more than
embody the preference of a given body in a given time and place.  We do
not realize how large a part of our law is open to reconsideration upon
a slight change in the habit of the public mind.  No concrete
proposition is self evident, no matter how ready we may be to accept it,
not even Mr. Herbert Spencer's "Every man has a right to do what he
wills, provided he interferes not with a like right on the part of his
neighbors."

Why is a false and injurious statement privileged, if it is made
honestly in giving information about a servant?  It is because it has
been thought more important that information should be given freely,
than that a man should be protected from what under other circumstances
would be an actionable wrong.  Why is a man at liberty to set up a
business which he knows will ruin his neighborhood?  It is because the
public good is supposed to be best subserved by free competition.
Obviously such judgments of relative importance may vary in different
times and places.  Why does a judge instruct a jury that an employer is
not liable to an employee for an injury received in the course of his
employment unless he is negligent, and why do the jury generally find
for the plaintiff if the case is allowed to go to them?  It is because
the traditional policy of our law is to confine liability to cases where
a prudent man might have foreseen the injury, or at least the danger,
while the inclination of a very large part of the community is to make
certain classes of persons insure the safety of those with whom they
deal.  Since the last words were written, I have seen the requirement of
such insurance put forth as part of the programme of one of the best
known labor organizations.  There is a concealed, half conscious battle
on the question of legislative policy, and if any one thinks that it can
be settled deductively, or once for all, I only can say that I think he
is theoretically wrong, and that I am certain that his conclusion will
not be accepted in practice semper ubique et ab omnibus.

Indeed, I think that even now our theory upon this matter is open to
reconsideration, although I am not prepared to say how I should decide
if a reconsideration were proposed.  Our law of torts comes from the old
days of isolated, ungeneralized wrongs, assaults, slanders, and the
like, where the damages might be taken to lie where they fell by legal
judgment.  But the torts with which our courts are kept busy today are
mainly the incidents of certain well known businesses.  They are
injuries to person or property by railroads, factories, and the like.
The liability for them is estimated, and sooner or later goes into the
price paid by the public.  The public really pays the damages, and the
question of liability, if pressed far enough, is really a question how
far it is desirable that the public should insure the safety of one
whose work it uses.  It might be said that in such cases the chance of a
jury finding for the defendant is merely a chance, once in a while
rather arbitrarily interrupting the regular course of recovery, most
likely in the case of an unusually conscientious plaintiff, and
therefore better done away with.  On the other hand, the economic value
even of a life to the community can be estimated, and no recovery, it
may be said, ought to go beyond that amount.  It is conceivable that
some day in certain cases we may find ourselves imitating, on a higher
plane, the tariff for life and limb which we see in the Leges
Barbarorum.

I think that the judges themselves have failed adequately to recognize
their duty of weighing considerations of social advantage.  The duty is
inevitable, and the result of the often proclaimed judicial aversion to
deal with such considerations is simply to leave the very ground and
foundation of judgments inarticulate, and often unconscious, as I have
said.  When socialism first began to be talked about, the comfortable
classes of the community were a good deal frightened.  I suspect that
this fear has influenced judicial action both here and in England, yet
it is certain that it is not a conscious factor in the decisions to
which I refer.  I think that something similar has led people who no
longer hope to control the legislatures to look to the courts as
expounders of the constitutions, and that in some courts new principles
have been discovered outside the bodies of those instruments, which may
be generalized into acceptance of the economic doctrines which prevailed
about fifty years ago, and a wholesale prohibition of what a tribunal of
lawyers does not think about right.  I cannot but believe that if the
training of lawyers led them habitually to consider more definitely and
explicitly the social advantage on which the rule they lay down must be
justified, they sometimes would hesitate where now they are confident,
and see that really they were taking sides upon debatable and often
burning questions.

So much for the fallacy of logical form.  Now let us consider the
present condition of the law as a subject for study, and the ideal
toward which it tends.  We still are far from the point of view which I
desire to see reached.  No one has reached it or can reach it as yet.
We are only at the beginning of a philosophical reaction, and of a
reconsideration of the worth of doctrines which for the most part still
are taken for granted without any deliberate, conscious, and systematic
questioning of their grounds.  The development of our law has gone on
for nearly a thousand years, like the development of a plant, each
generation taking the inevitable next step, mind, like matter, simply
obeying a law of spontaneous growth.  It is perfectly natural and right
that it should have been so.  Imitation is a necessity of human nature,
as has been illustrated by a remarkable French writer, M. Tard, in an
admirable book, Les Lois de l'Imitation.  Most of the things we do, we
do for no better reason than that our fathers have done them or that our
neighbors do them, and the same is true of a larger part than we suspect
of what we think.  The reason is a good one, because our short life
gives us no time for a better, but it is not the best.  It does not
follow, because we all are compelled to take on faith at second hand
most of the rules on which we base our action and our thought, that each
of us may not try to set some corner of his world in the order of
reason, or that all of us collectively should not aspire to carry reason
as far as it will go throughout the whole domain.  In regard to the law,
it is true, no doubt, that an evolutionist will hesitate to affirm
universal validity for his social ideals, or for the principles which he
thinks should be embodied in legislation.  He is content if he can prove
them best for here and now.  He may be ready to admit that he knows
nothing about an absolute best in the cosmos, and even that he knows
next to nothing about a permanent best for men.  Still it is true that a
body of law is more rational and more civilized when every rule it
contains is referred articulately and definitely to an end which it
subserves, and when the grounds for desiring that end are stated or are
ready to be stated in words.

At present, in very many cases, if we want to know why a rule of law has
taken its particular shape, and more or less if we want to know why it
exists at all, we go to tradition.  We follow it into the Year Books,
and perhaps beyond them to the customs of the Salian Franks, and
somewhere in the past, in the German forests, in the needs of Norman
kings, in the assumptions of a dominant class, in the absence of
generalized ideas, we find out the practical motive for what now best is
justified by the mere fact of its acceptance and that men are accustomed
to it.  The rational study of law is still to a large extent the study
of history.  History must be a part of the study, because without it we
cannot know the precise scope of rules which it is our business to know.
It is a part of the rational study, because it is the first step toward
an enlightened scepticism, that is, towards a deliberate reconsideration
of the worth of those rules.  When you get the dragon out of his cave on
to the plain and in the daylight, you can count his teeth and claws, and
see just what is his strength.  But to get him out is only the first
step.  The next is either to kill him, or to tame him and make him a
useful animal.  For the rational study of the law the blackletter man
may be the man of the present, but the man of the future is the man of
statistics and the master of economics.  It is revolting to have no
better reason for a rule of law than that so it was laid down in the
time of Henry IV.  It is still more revolting if the grounds upon which
it was laid down have vanished long since, and the rule simply persists
from blind imitation of the past.  I am thinking of the technical rule
as to trespass ab initio, as it is called, which I attempted to explain
in a recent Massachusetts case.

Let me take an illustration, which can be stated in a few words, to show
how the social end which is aimed at by a rule of law is obscured and
only partially attained in consequence of the fact that the rule owes
its form to a gradual historical development, instead of being reshaped
as a whole, with conscious articulate reference to the end in view.  We
think it desirable to prevent one man's property being misappropriated
by another, and so we make larceny a crime.  The evil is the same
whether the misappropriation is made by a man into whose hands the owner
has put the property, or by one who wrongfully takes it away.  But
primitive law in its weakness did not get much beyond an effort to
prevent violence, and very naturally made a wrongful taking, a trespass,
part of its definition of the crime.  In 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 Project Gutenberg's etext, The Path of the Law, by
O. W. Holmes, Jr.