"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" - Oliver Wendell Holmes Jr.
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| Myself, at the Durham Law School, I took some international law instruction from this school, but I am a Durham School Of Government And International Affairs guy through and through. |
A recent high profile assault case dismayed me, not because of the facts of the case, but because of the wild commentary coming from my compatriots regarding the path the law would take. What I observed was how easily my fellow Zimbabweans were being swayed into false analysis by the sensationalist headlines. Media headlines are mostly just noise, the discerning person just goes to the essence of the matter by referring to what the letter of the law says on the matter. This did not happen with the Zimbabweans. My dismay then, stems from the fact that I was convinced Zimbabweans, in the main, are a discerning and well educated people. I doubt that very much since.
I also know that it takes at least 4 years to be an expert at law, I am no expert, but I read one paper that insisted that I always look for essences when I want to predict the path of the law. The paper was The Path Of The Law by one of the United States of America's brilliant jurists - Oliver Wendell Holmes Jr. It was quite fortuitous too, how I found this paper: we shared a library computer room with Kent Law School students when I was at the University Of Kent. A Law School student printed this paper and must have forgotten to collect it, for as I was collecting my own Strategic Studies papers at closing time, I found this paper among my printing when I got home. I read it, and it enlarged my mind. I reproduce the same paper here, in the hope that you will also extract the same value from it as I did.
I also know that it takes at least 4 years to be an expert at law, I am no expert, but I read one paper that insisted that I always look for essences when I want to predict the path of the law. The paper was The Path Of The Law by one of the United States of America's brilliant jurists - Oliver Wendell Holmes Jr. It was quite fortuitous too, how I found this paper: we shared a library computer room with Kent Law School students when I was at the University Of Kent. A Law School student printed this paper and must have forgotten to collect it, for as I was collecting my own Strategic Studies papers at closing time, I found this paper among my printing when I got home. I read it, and it enlarged my mind. I reproduce the same paper here, in the hope that you will also extract the same value from it as I did.
Kudakwashe Kanhutu
The British Library
London
22nd August 2017
The Path of the Law
by Oliver Wendell Holmes, Jr.
10
Harvard Law Review 457 (1897)
When
we study law we are not studying a mystery but a well-known profession. We are
studying what we shall want in order to appear before judges, or to advise
people in such a way as to keep them out of court. The reason why it is a
profession, why people will pay lawyers to argue for them or to advise them, is
that in societies like ours the command of the public force is intrusted to the
judges in certain cases, and the whole power of the state will be put forth, if
necessary, to carry out their judgments and decrees. People want to know under
what circumstances and how far they will run the risk of coming against what is
so much stronger than themselves, and hence it becomes a business to find out
when this danger is to be feared. The object of our study, then, is prediction,
the prediction of the incidence of the public force through the instrumentality
of the courts.
The means of the study are a body
of reports, of treatises, and of statutes, in this country and in England,
extending back for six hundred years, and now increasing annually by hundreds.
In these sibylline leaves are gathered the scattered prophecies of the past
upon the cases in which the axe will fall. These are what properly have been
called the oracles of the law. Far the most important and pretty nearly the
whole meaning of every new effort of legal thought is to make these prophecies
more precise, and to generalize them into a thoroughly connected system. The
process is one, from a lawyer's statement of a case, eliminating as it does all
the dramatic elements with which his client's story has clothed it, and
retaining only the facts of legal import, up to the final analyses and abstract
universals of theoretic jurisprudence. The reason why a lawyer does not mention
that his client wore a white hat when he made a contract, while Mrs. Quickly
would be sure to dwell upon it along with the parcel gilt goblet and the
sea-coal fire, is that he foresees that the public force will act in the same
way whatever his client had upon his head. It is to make the prophecies easier
to be remembered and to be understood that the teachings of the decisions of
the past are put into general propositions and gathered into textbooks, or that
statutes are passed in a general form. The primary rights and duties with which
jurisprudence busies itself again are nothing but prophecies. One of the many
evil effects of the confusion between legal and moral ideas, about which I shall
have something to say in a moment, is that theory is apt to get the cart before
the horse, and consider the right or the duty as something existing apart from
and independent of the consequences of its breach, to which certain sanctions
are added afterward. But, as I shall try to show, a legal duty so called is
nothing but a prediction that if a man does or omits certain things he will be
made to suffer in this or that way by judgment of the court; and so of a legal
right.
The number of our predictions
when generalized and reduced to a system is not unmanageably large. They
present themselves as a finite body of dogma which may be mastered within a
reasonable time. It is a great mistake to be frightened by the ever-increasing
number of reports. The reports of a given jurisdiction in the course of a
generation take up pretty much the whole body of the law, and restate it from
the present point of view. We could reconstruct the corpus from them if all
that went before were burned. The use of the earlier reports is mainly
historical, a use about which I shall have something to say before I have
finished.
I wish, if I can, to lay down
some first principles for the study of this body of dogma or systematized
prediction which we call the law, for men who want to use it as the instrument
of their business to enable them to prophesy in their turn, and, as bearing
upon the study, I wish to point out an ideal which as yet our law has not
attained.
The first thing for a
businesslike understanding of the matter is to understand its limits, and
therefore I think it desirable at once to point out and dispel a confusion
between morality and law, which sometimes rises to the height of conscious
theory, and more often and indeed constantly is making trouble in detail
without reaching the point of consciousness. You can see very plainly that a
bad man has as much reason as a good one for wishing to avoid an encounter with
the public force, and therefore you can see the practical importance of the
distinction between morality and law. A man who cares nothing for an ethical
rule which is believed and practised by his neighbors is likely nevertheless to
care a good deal to avoid being made to pay money, and will want to keep out of
jail if he can.
I take it for granted that no
hearer of mine will misinterpret what I have to say as the language of
cynicism. The law is the witness and external deposit of our moral life. Its
history is the history of the moral development of the race. The practice of
it, in spite of popular jests, tends to make good citizens and good men. When I
emphasize the difference between law and morals I do so with reference to a
single end, that of learning and understanding the law. For that purpose you
must definitely master its specific marks, and it is for that that I ask you
for the moment to imagine yourselves indifferent to other and greater things.
I do not say that there is not a
wider point of view from which the distinction between law and morals becomes
of secondary or no importance, as all mathematical distinctions vanish in
presence of the infinite. But I do say that that distinction is of the first
importance for the object which we are here to consider — a right study and
mastery of the law as a business with well understood limits, a body of dogma enclosed
within definite lines. I have just shown the practical reason for saying so. If
you want to know the law and nothing else, you must look at it as a bad man,
who cares only for the material consequences which such knowledge enables him
to predict, not as a good one, who finds his reasons for conduct, whether
inside the law or outside of it, in the vaguer sanctions of conscience. The
theoretical importance of the distinction is no less, if you would reason on
your subject aright. The law is full of phraseology drawn from morals, and by
the mere force of language continually invites us to pass from one domain to
the other without perceiving it, as we are sure to do unless we have the
boundary constantly before our minds. The law talks about rights, and duties,
and malice, and intent, and negligence, and so forth, and nothing is easier,
or, I may say, more common in legal reasoning, than to take these words in
their moral sense, at some state of the argument, and so to drop into fallacy.
For instance, when we speak of the rights of man in a moral sense, we mean to
mark the limits of interference with individual freedom which we think are
prescribed by conscience, or by our ideal, however reached. Yet it is certain
that many laws have been enforced in the past, and it is likely that some are
enforced now, which are condemned by the most enlightened opinion of the time,
or which at all events pass the limit of interference, as many consciences
would draw it. Manifestly, therefore, nothing but confusion of thought can
result from assuming that the rights of man in a moral sense are equally rights
in the sense of the Constitution and the law. No doubt simple and extreme cases
can be put of imaginable laws which the statute-making power would not dare to
enact, even in the absence of written constitutional prohibitions, because the
community would rise in rebellion and fight; and this gives some plausibility
to the proposition that the law, if not a part of morality, is limited by it.
But this limit of power is not coextensive with any system of morals. For the
most part it falls far within the lines of any such system, and in some cases
may extend beyond them, for reasons drawn from the habits of a particular
people at a particular time. I once heard the late Professor Agassiz say that a
German population would rise if you added two cents to the price of a glass of
beer. A statute in such a case would be empty words, not because it was wrong,
but because it could not be enforced. No one will deny that wrong statutes can
be and are enforced, and we would not all agree as to which were the wrong
ones.
The confusion with which I am
dealing besets confessedly legal conceptions. Take the fundamental question,
What constitutes the law? You will find some text writers telling you that it
is something different from what is decided by the courts of Massachusetts or
England, that it is a system of reason, that it is a deduction from principles
of ethics or admitted axioms or what not, which may or may not coincide with
the decisions. But if we take the view of our friend the bad man we shall find
that he does not care two straws for the axioms or deductions, but that he does
want to know what the Massachusetts or English courts are likely to do in fact.
I am much of this mind. The prophecies of what the courts will do in fact, and
nothing more pretentious, are what I mean by the law.
Take again a notion which as
popularly understood is the widest conception which the law contains — the
notion of legal duty, to which already I have referred. We fill the word with
all the content which we draw from morals. But what does it mean to a bad man?
Mainly, and in the first place, a prophecy that if he does certain things he
will be subjected to disagreeable consequences by way of imprisonment or
compulsory payment of money. But from his point of view, what is the difference
between being fined and taxed a certain sum for doing a certain thing? That his
point of view is the test of legal principles is proven by the many discussions
which have arisen in the courts on the very question whether a given statutory
liability is a penalty or a tax. On the answer to this question depends the
decision whether conduct is legally wrong or right, and also whether a man is
under compulsion or free. Leaving the criminal law on one side, what is the
difference between the liability under the mill acts or statutes authorizing a
taking by eminent domain and the liability for what we call a wrongful
conversion of property where restoration is out of the question. In both cases
the party taking another man's property has to pay its fair value as assessed
by a jury, and no more. What significance is there in calling one taking right
and another wrong from the point of view of the law? It does not matter, so far
as the given consequence, the compulsory payment, is concerned, whether the act
to which it is attached is described in terms of praise or in terms of blame,
or whether the law purports to prohibit it or to allow it. If it matters at
all, still speaking from the bad man's point of view, it must be because in one
case and not in the other some further disadvantages, or at least some further
consequences, are attached to the act by law. The only other disadvantages thus
attached to it which I ever have been able to think of are to be found in two
somewhat insignificant legal doctrines, both of which might be abolished
without much disturbance. One is, that a contract to do a prohibited act is
unlawful, and the other, that, if one of two or more joint wrongdoers has to
pay all the damages, he cannot recover contribution from his fellows. And that
I believe is all. You see how the vague circumference of the notion of duty
shrinks and at the same time grows more precise when we wash it with cynical
acid and expel everything except the object of our study, the operations of the
law.
Nowhere is the confusion between
legal and moral ideas more manifest than in the law of contract. Among other
things, here again the so-called primary rights and duties are invested with a
mystic significance beyond what can be assigned and explained. The duty to keep
a contract at common law means a prediction that you must pay damages if you do
not keep it — and nothing else. If you commit a tort, you are liable to pay a
compensatory sum. If you commit a contract, you are liable to pay a
compensatory sum unless the promised event comes to pass, and that is all the
difference. But such a mode of looking at the matter stinks in the nostrils of
those who think it advantageous to get as much ethics into the law as they can.
It was good enough for Lord Coke, however, and here, as in many others cases, I
am content to abide with him. In Bromage v. Genning, a prohibition
was sought in the Kings' Bench against a suit in the marches of Wales for the
specific performance of a covenant to grant a lease, and Coke said that it
would subvert the intention of the covenantor, since he intends it to be at his
election either to lose the damages or to make the lease. Sergeant Harra for
the plaintiff confessed that he moved the matter against his conscience, and a
prohibition was granted. This goes further than we should go now, but it shows
what I venture to say has been the common law point of view from the beginning,
although Mr. Harriman, in his very able little book upon Contracts has
been misled, as I humbly think, to a different conclusion.
I have spoken only of the common
law, because there are some cases in which a logical justification can be found
for speaking of civil liabilities as imposing duties in an intelligible sense.
These are the relatively few in which equity will grant an injunction, and will
enforce it by putting the defendant in prison or otherwise punishing him unless
he complies with the order of the court. But I hardly think it advisable to
shape general theory from the exception, and I think it would be better to
cease troubling ourselves about primary rights and sanctions altogether, than
to describe our prophecies concerning the liabilities commonly imposed by the
law in those inappropriate terms.
I mentioned, as other examples of
the use by the law of words drawn from morals, malice, intent, and negligence.
It is enough to take malice as it is used in the law of civil liability for
wrongs what we lawyers call the law of torts — to show that it means something
different in law from what it means in morals, and also to show how the
difference has been obscured by giving to principles which have little or
nothing to do with each other the same name. Three hundred years ago a parson
preached a sermon and told a story out of Fox's Book of Martyrs of
a man who had assisted at the torture of one of the saints, and afterward died,
suffering compensatory inward torment. It happened that Fox was wrong. The man
was alive and chanced to hear the sermon, and thereupon he sued the parson.
Chief Justice Wray instructed the jury that the defendant was not liable,
because the story was told innocently, without malice. He took malice in the
moral sense, as importing a malevolent motive. But nowadays no one doubts that
a man may be liable, without any malevolent motive at all, for false statements
manifestly calculated to inflict temporal damage. In stating the case in
pleading, we still should call the defendant's conduct malicious; but, in my
opinion at least, the word means nothing about motives, or even about the
defendant's attitude toward the future, but only signifies that the tendency of
his conduct under known circumstances was very plainly to cause the plaintiff
temporal harm.
In the law of contract the use of
moral phraseology led to equal confusion, as I have shown in part already, but
only in part. Morals deal with the actual internal state of the individual's
mind, what he actually intends. From the time of the Romans down to now, this
mode of dealing has affected the language of the law as to contract, and the
language used has reacted upon the thought. We talk about a contract as a
meeting of the minds of the parties, and thence it is inferred in various cases
that there is no contract because their minds have not met; that is, because
they have intended different things or because one party has not known of the
assent of the other. Yet nothing is more certain than that parties may be bound
by a contract to things which neither of them intended, and when one does not
know of the other's assent. Suppose a contract is executed in due form and in
writing to deliver a lecture, mentioning no time. One of the parties thinks
that the promise will be construed to mean at once, within a week. The other thinks
that it means when he is ready. The court says that it means within a
reasonable time. The parties are bound by the contract as it is interpreted by
the court, yet neither of them meant what the court declares that they have
said. In my opinion no one will understand the true theory of contract or be
able even to discuss some fundamental questions intelligently until he has
understood that all contracts are formal, that the making of a contract depends
not on the agreement of two minds in one intention, but on the agreement of two
sets of external signs — not on the parties' having meant the same thing but on
their having said the same thing. Furthermore, as the signs may be addressed to
one sense or another — to sight or to hearing — on the nature of the sign will
depend the moment when the contract is made. If the sign is tangible, for
instance, a letter, the contract is made when the letter of acceptance is
delivered. If it is necessary that the minds of the parties meet, there will be
no contract until the acceptance can be read; none, for example, if the
acceptance be snatched from the hand of the offerer by a third person.
This is not the time to work out
a theory in detail, or to answer many obvious doubts and questions which are
suggested by these general views. I know of none which are not easy to answer,
but what I am trying to do now is only by a series of hints to throw some light
on the narrow path of legal doctrine, and upon two pitfalls which, as it seems
to me, lie perilously near to it. Of the first of these I have said enough. I
hope that my illustrations have shown the danger, both to speculation and to
practice, of confounding morality with law, and the trap which legal language
lays for us on that side of our way. For my own part, I often doubt whether it
would not be a gain if every word of moral significance could be banished from
the law altogether, and other words adopted which should convey legal ideas
uncolored by anything outside the law. We should lose the fossil records of a good
deal of history and the majesty got from ethical associations, but by ridding
ourselves of an unnecessary confusion we should gain very much in the clearness
of our thought.
So much for the limits of the
law. The next thing which I wish to consider is what are the forces which
determine its content and its growth. You may assume, with Hobbes and Bentham
and Austin, that all law emanates from the sovereign, even when the first human
beings to enunciate it are the judges, or you may think that law is the voice
of the Zeitgeist, or what you like. It is all one to my present purpose. Even
if every decision required the sanction of an emperor with despotic power and a
whimsical turn of mind, we should be interested none the less, still with a
view to prediction, in discovering some order, some rational explanation, and
some principle of growth for the rules which he laid down. In every system
there are such explanations and principles to be found. It is with regard to
them that a second fallacy comes in, which I think it important to expose.
The fallacy to which I refer is
the notion that the only force at work in the development of the law is logic.
In the broadest sense, indeed, that notion would be true. The postulate on
which we think about the universe is that there is a fixed quantitative
relation between every phenomenon and its antecedents and consequents. If there
is such a thing as a phenomenon without these fixed quantitative relations, it
is a miracle. It is outside the law of cause and effect, and as such transcends
our power of thought, or at least is something to or from which we cannot
reason. The condition of our thinking about the universe is that it is capable
of being thought about rationally, or, in other words, that every part of it is
effect and cause in the same sense in which those parts are with which we are
most familiar. So in the broadest sense it is true that the law is a logical
development, like everything else. The danger of which I speak is not the
admission that the principles governing other phenomena also govern the law,
but the notion that a given system, ours, for instance, can be worked out like
mathematics from some general axioms of conduct. This is the natural error of
the schools, but it is not confined to them. I once heard a very eminent judge
say that he never let a decision go until he was absolutely sure that it was
right. So judicial dissent often is blamed, as if it meant simply that one side
or the other were not doing their sums right, and if they would take more trouble,
agreement inevitably would come.
This mode of thinking is entirely
natural. The training of lawyers is a training in logic. The processes of
analogy, discrimination, and deduction are those in which they are most at
home. The language of judicial decision is mainly the language of logic. And
the logical method and form flatter that longing for certainty and for repose
which is in every human mind. But certainty generally is illusion, and repose
is not the destiny of man. Behind the logical form lies a judgment as to the
relative worth and importance of competing legislative grounds, often an
inarticulate and unconscious judgment, it is true, and yet the very root and
nerve of the whole proceeding. You can give any conclusion a logical form. You
always can imply a condition in a contract. But why do you imply it? It is
because of some belief as to the practice of the community or of a class, or
because of some opinion as to policy, or, in short, because of some attitude of
yours upon a matter not capable of exact quantitative measurement, and
therefore not capable of founding exact logical conclusions. Such matters
really are battle grounds where the means do not exist for the determinations
that shall be good for all time, and where the decision can do no more than
embody the preference of a given body in a given time and place. We do not
realize how large a part of our law is open to reconsideration upon a slight
change in the habit of the public mind. No concrete proposition is self
evident, no matter how ready we may be to accept it, not even Mr. Herbert
Spencer's "Every man has a right to do what he wills, provided he
interferes not with a like right on the part of his neighbors."
Why is a false and injurious
statement privileged, if it is made honestly in giving information about a
servant? It is because it has been thought more important that information
should be given freely, than that a man should be protected from what under
other circumstances would be an actionable wrong. Why is a man at liberty to
set up a business which he knows will ruin his neighborhood? It is because the
public good is supposed to be best subserved by free competition. Obviously
such judgments of relative importance may vary in different times and places.
Why does a judge instruct a jury that an employer is not liable to an employee
for an injury received in the course of his employment unless he is negligent,
and why do the jury generally find for the plaintiff if the case is allowed to
go to them? It is because the traditional policy of our law is to confine
liability to cases where a prudent man might have foreseen the injury, or at
least the danger, while the inclination of a very large part of the community
is to make certain classes of persons insure the safety of those with whom they
deal. Since the last words were written, I have seen the requirement of such
insurance put forth as part of the programme of one of the best known labor
organizations. There is a concealed, half conscious battle on the question of
legislative policy, and if any one thinks that it can be settled deductively,
or once for all, I only can say that I think he is theoretically wrong, and
that I am certain that his conclusion will not be accepted in practice semper
ubique et ab omnibus.
Indeed, I think that even now our
theory upon this matter is open to reconsideration, although I am not prepared
to say how I should decide if a reconsideration were proposed. Our law of torts
comes from the old days of isolated, ungeneralized wrongs, assaults, slanders,
and the like, where the damages might be taken to lie where they fell by legal
judgment. But the torts with which our courts are kept busy today are mainly
the incidents of certain well known businesses. They are injuries to person or
property by railroads, factories, and the like. The liability for them is
estimated, and sooner or later goes into the price paid by the public. The
public really pays the damages, and the question of liability, if pressed far
enough, is really a question how far it is desirable that the public should
insure the safety of one whose work it uses. It might be said that in such
cases the chance of a jury finding for the defendant is merely a chance, once
in a while rather arbitrarily interrupting the regular course of recovery, most
likely in the case of an unusually conscientious plaintiff, and therefore
better done away with. On the other hand, the economic value even of a life to
the community can be estimated, and no recovery, it may be said, ought to go
beyond that amount. It is conceivable that some day in certain cases we may
find ourselves imitating, on a higher plane, the tariff for life and limb which
we see in the Leges Barbarorum.
I think that the judges
themselves have failed adequately to recognize their duty of weighing
considerations of social advantage. The duty is inevitable, and the result of
the often proclaimed judicial aversion to deal with such considerations is
simply to leave the very ground and foundation of judgments inarticulate, and
often unconscious, as I have said. When socialism first began to be talked
about, the comfortable classes of the community were a good deal frightened. I
suspect that this fear has influenced judicial action both here and in England,
yet it is certain that it is not a conscious factor in the decisions to which I
refer. I think that something similar has led people who no longer hope to
control the legislatures to look to the courts as expounders of the
constitutions, and that in some courts new principles have been discovered
outside the bodies of those instruments, which may be generalized into
acceptance of the economic doctrines which prevailed about fifty years ago, and
a wholesale prohibition of what a tribunal of lawyers does not think about
right. I cannot but believe that if the training of lawyers led them habitually
to consider more definitely and explicitly the social advantage on which the
rule they lay down must be justified, they sometimes would hesitate where now
they are confident, and see that really they were taking sides upon debatable
and often burning questions.
So much for the fallacy of
logical form. Now let us consider the present condition of the law as a subject
for study, and the ideal toward which it tends. We still are far from the point
of view which I desire to see reached. No one has reached it or can reach it as
yet. We are only at the beginning of a philosophical reaction, and of a
reconsideration of the worth of doctrines which for the most part still are
taken for granted without any deliberate, conscious, and systematic questioning
of their grounds. The development of our law has gone on for nearly a thousand
years, like the development of a plant, each generation taking the inevitable
next step, mind, like matter, simply obeying a law of spontaneous growth. It is
perfectly natural and right that it should have been so. Imitation is a
necessity of human nature, as has been illustrated by a remarkable French
writer, M. Tard, in an admirable book, Les Lois de l'Imitation.
Most of the things we do, we do for no better reason than that our fathers have
done them or that our neighbors do them, and the same is true of a larger part
than we suspect of what we think. The reason is a good one, because our short
life gives us no time for a better, but it is not the best. It does not follow,
because we all are compelled to take on faith at second hand most of the rules
on which we base our action and our thought, that each of us may not try to set
some corner of his world in the order of reason, or that all of us collectively
should not aspire to carry reason as far as it will go throughout the whole
domain. In regard to the law, it is true, no doubt, that an evolutionist will
hesitate to affirm universal validity for his social ideals, or for the principles
which he thinks should be embodied in legislation. He is content if he can
prove them best for here and now. He may be ready to admit that he knows
nothing about an absolute best in the cosmos, and even that he knows next to
nothing about a permanent best for men. Still it is true that a body of law is
more rational and more civilized when every rule it contains is referred
articulately and definitely to an end which it subserves, and when the grounds
for desiring that end are stated or are ready to be stated in words.
At present, in very many cases,
if we want to know why a rule of law has taken its particular shape, and more
or less if we want to know why it exists at all, we go to tradition. We follow
it into the Year Books, and perhaps beyond them to the customs of the Salian
Franks, and somewhere in the past, in the German forests, in the needs of
Norman kings, in the assumptions of a dominant class, in the absence of
generalized ideas, we find out the practical motive for what now best is
justified by the mere fact of its acceptance and that men are accustomed to it.
The rational study of law is still to a large extent the study of history.
History must be a part of the study, because without it we cannot know the
precise scope of rules which it is our business to know. It is a part of the
rational study, because it is the first step toward an enlightened scepticism,
that is, towards a deliberate reconsideration of the worth of those rules. When
you get the dragon out of his cave on to the plain and in the daylight, you can
count his teeth and claws, and see just what is his strength. But to get him
out is only the first step. The next is either to kill him, or to tame him and
make him a useful animal. For the rational study of the law the blackletter man
may be the man of the present, but the man of the future is the man of
statistics and the master of economics. It is revolting to have no better
reason for a rule of law than that so it was laid down in the time of Henry IV.
It is still more revolting if the grounds upon which it was laid down have
vanished long since, and the rule simply persists from blind imitation of the
past. I am thinking of the technical rule as to trespass ab initio,
as it is called, which I attempted to explain in a recent Massachusetts case.
Let me take an illustration,
which can be stated in a few words, to show how the social end which is aimed
at by a rule of law is obscured and only partially attained in consequence of
the fact that the rule owes its form to a gradual historical development,
instead of being reshaped as a whole, with conscious articulate reference to
the end in view. We think it desirable to prevent one man's property being
misappropriated by another, and so we make larceny a crime. The evil is the
same whether the misappropriation is made by a man into whose hands the owner
has put the property, or by one who wrongfully takes it away. But primitive law
in its weakness did not get much beyond an effort to prevent violence, and very
naturally made a wrongful taking, a trespass, part of its definition of the
crime. In 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 could 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 — textbooks 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.
