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-knownprofession. We are studying what we shall want in order to appear beforejudges, 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 arguefor them or to advise them, is that in societies like ours the commandof the public force is intrusted to the judges in certain cases, and thewhole power of the state will be put forth, if necessary, to carryout their judgments and decrees. People want to know under whatcircumstances and how far they will run the risk of coming against whatis so much stronger than themselves, and hence it becomes a businessto 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 forcethrough the instrumentality of the courts. 

The means of the study are a body of reports, of treatises, and ofstatutes, in this country and in England, extending back for six hundredyears, and now increasing annually by hundreds. In these sibyllineleaves are gathered the scattered prophecies of the past upon the casesin which the axe will fall. These are what properly have been called theoracles of the law. Far the most important and pretty nearly the wholemeaning of every new effort of legal thought is to make these propheciesmore precise, and to generalize them into a thoroughly connected system. The process is one, from a lawyer's statement of a case, eliminatingas it does all the dramatic elements with which his client's story hasclothed it, and retaining only the facts of legal import, up to thefinal analyses and abstract universals of theoretic jurisprudence. Thereason why a lawyer does not mention that his client wore a white hatwhen he made a contract, while Mrs. Quickly would be sure to dwell uponit along with the parcel gilt goblet and the sea-coal fire, is that heforesees that the public force will act in the same way whatever hisclient had upon his head. It is to make the prophecies easier to beremembered and to be understood that the teachings of the decisions ofthe past are put into general propositions and gathered into textbooks, or that statutes are passed in a general form. The primary rights andduties with which jurisprudence busies itself again are nothing butprophecies. One of the many evil effects of the confusion between legaland 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 theright or the duty as something existing apart from and independent ofthe consequences of its breach, to which certain sanctions are addedafterward. But, as I shall try to show, a legal duty so called isnothing but a prediction that if a man does or omits certain things hewill be made to suffer in this or that way by judgment of the court; andso of a legal right. 

The number of our predictions when generalized and reduced to a systemis not unmanageably large. They present themselves as a finite bodyof dogma which may be mastered within a reasonable time. It is a greatmistake to be frightened by the ever-increasing number of reports. Thereports of a given jurisdiction in the course of a generation take uppretty much the whole body of the law, and restate it from the presentpoint of view. We could reconstruct the corpus from them if all thatwent before were burned. The use of the earlier reports is mainlyhistorical, a use about which I shall have something to say before Ihave finished. 

I wish, if I can, to lay down some first principles for the study ofthis 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 enablethem to prophesy in their turn, and, as bearing upon the study, I wishto point out an ideal which as yet our law has not attained. 

The first thing for a businesslike understanding of the matter is tounderstand its limits, and therefore I think it desirable at onceto point out and dispel a confusion between morality and law, whichsometimes rises to the height of conscious theory, and more often andindeed constantly is making trouble in detail without reaching the pointof consciousness. You can see very plainly that a bad man has as muchreason as a good one for wishing to avoid an encounter with the publicforce, and therefore you can see the practical importance of thedistinction between morality and law. A man who cares nothing for anethical rule which is believed and practised by his neighbors is likelynevertheless to care a good deal to avoid being made to pay money, andwill want to keep out of jail if he can. 

I take it for granted that no hearer of mine will misinterpret whatI have to say as the language of cynicism. The law is the witness andexternal deposit of our moral life. Its history is the history of themoral development of the race. The practice of it, in spite of popularjests, tends to make good citizens and good men. When I emphasize thedifference between law and morals I do so with reference to a singleend, that of learning and understanding the law. For that purpose youmust definitely master its specific marks, and it is for that that Iask you for the moment to imagine yourselves indifferent to other andgreater things. 

I do not say that there is not a wider point of view from whichthe distinction between law and morals becomes of secondary or noimportance, as all mathematical distinctions vanish in presence of theinfinite. But I do say that that distinction is of the first importancefor the object which we are here to consider--a right study and masteryof the law as a business with well understood limits, a body of dogmaenclosed within definite lines. I have just shown the practical reasonfor saying so. If you want to know the law and nothing else, you mustlook at it as a bad man, who cares only for the material consequenceswhich such knowledge enables him to predict, not as a good one, whofinds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience. The theoretical importance of thedistinction is no less, if you would reason on your subject aright. Thelaw is full of phraseology drawn from morals, and by the mere force oflanguage continually invites us to pass from one domain to the otherwithout perceiving it, as we are sure to do unless we have the boundaryconstantly before our minds. The law talks about rights, and duties, andmalice, and intent, and negligence, and so forth, and nothing is easier, or, I may say, more common in legal reasoning, than to take these wordsin their moral sense, at some state of the argument, and so to drop intofallacy. For instance, when we speak of the rights of man in a moralsense, we mean to mark the limits of interference with individualfreedom which we think are prescribed by conscience, or by our ideal, however reached. Yet it is certain that many laws have been enforcedin the past, and it is likely that some are enforced now, which arecondemned by the most enlightened opinion of the time, or which at allevents pass the limit of interference, as many consciences would drawit. Manifestly, therefore, nothing but confusion of thought can resultfrom assuming that the rights of man in a moral sense are equallyrights in the sense of the Constitution and the law. No doubt simpleand extreme cases can be put of imaginable laws which the statute-makingpower would not dare to enact, even in the absence of writtenconstitutional prohibitions, because the community would rise inrebellion and fight; and this gives some plausibility to the propositionthat the law, if not a part of morality, is limited by it. But thislimit of power is not coextensive with any system of morals. For themost part it falls far within the lines of any such system, and in somecases may extend beyond them, for reasons drawn from the habits of aparticular people at a particular time. I once heard the late ProfessorAgassiz say that a German population would rise if you added two centsto the price of a glass of beer. A statute in such a case would be emptywords, 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 wewould not all agree as to which were the wrong ones. 

The confusion with which I am dealing besets confessedly legalconceptions. Take the fundamental question, What constitutes thelaw? You will find some text writers telling you that it is somethingdifferent from what is decided by the courts of Massachusetts orEngland, that it is a system of reason, that it is a deduction fromprinciples of ethics or admitted axioms or what not, which may or maynot coincide with the decisions. But if we take the view of our friendthe bad man we shall find that he does not care two straws forthe axioms or deductions, but that he does want to know what theMassachusetts or English courts are likely to do in fact. I am muchof this mind. The prophecies of what the courts will do in fact, andnothing more pretentious, are what I mean by the law. 

Take again a notion which as popularly understood is the widestconception which the law contains--the notion of legal duty, to whichalready I have referred. We fill the word with all the content which wedraw from morals. But what does it mean to a bad man? Mainly, and inthe first place, a prophecy that if he does certain things he willbe subjected to disagreeable consequences by way of imprisonment orcompulsory payment of money. But from his point of view, what is thedifference between being fined and taxed a certain sum for doing acertain thing? That his point of view is the test of legal principlesis proven by the many discussions which have arisen in the courts on thevery question whether a given statutory liability is a penalty or a tax. On the answer to this question depends the decision whether conduct islegally wrong or right, and also whether a man is under compulsionor free. Leaving the criminal law on one side, what is the differencebetween the liability under the mill acts or statutes authorizing ataking by eminent domain and the liability for what we call a wrongfulconversion of property where restoration is out of the question. In bothcases the party taking another man's property has to pay its fairvalue as assessed by a jury, and no more. What significance is there incalling one taking right and another wrong from the point of view of thelaw? It does not matter, so far as the given consequence, the compulsorypayment, is concerned, whether the act to which it is attached isdescribed in terms of praise or in terms of blame, or whether the lawpurports to prohibit it or to allow it. If it matters at all, stillspeaking from the bad man's point of view, it must be because in onecase and not in the other some further disadvantages, or at least somefurther consequences, are attached to the act by law. The only otherdisadvantages thus attached to it which I ever have been able to thinkof are to be found in two somewhat insignificant legal doctrines, bothof which might be abolished without much disturbance. One is, that acontract to do a prohibited act is unlawful, and the other, that, if oneof two or more joint wrongdoers has to pay all the damages, he cannotrecover contribution from his fellows. And that I believe is all. Yousee how the vague circumference of the notion of duty shrinks and at thesame time grows more precise when we wash it with cynical acid and expeleverything except the object of our study, the operations of the law. 

Nowhere is the confusion between legal and moral ideas more manifestthan in the law of contract. Among other things, here again theso-called primary rights and duties are invested with a mysticsignificance beyond what can be assigned and explained. The duty to keepa contract at common law means a prediction that you must pay damagesif you do not keep it--and nothing else. If you commit a tort, you areliable to pay a compensatory sum. If you commit a contract, you areliable to pay a compensatory sum unless the promised event comes topass, and that is all the difference. But such a mode of looking at thematter stinks in the nostrils of those who think it advantageous to getas much ethics into the law as they can. It was good enough for LordCoke, however, and here, as in many others cases, I am content to abidewith him. In Bromage v. Genning, a prohibition was sought in theKings' Bench against a suit in the marches of Wales for the specificperformance of a covenant to grant a lease, and Coke said that it wouldsubvert the intention of the covenantor, since he intends it to be athis election either to lose the damages or to make the lease. SergeantHarra for the plaintiff confessed that he moved the matter against hisconscience, and a prohibition was granted. This goes further than weshould go now, but it shows what I venture to say has been the commonlaw point of view from the beginning, although Mr. Harriman, in his veryable little book upon Contracts has been misled, as I humbly think, to adifferent conclusion. 

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

I mentioned, as other examples of the use by the law of words drawn frommorals, malice, intent, and negligence. It is enough to take malice asit is used in the law of civil liability for wrongs what we lawyers callthe law of torts--to show that it means something different in law fromwhat it means in morals, and also to show how the difference has beenobscured by giving to principles which have little or nothing to do witheach other the same name. Three hundred years ago a parson preached asermon and told a story out of Fox's Book of Martyrs of a man whohad 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 suedthe parson. Chief Justice Wray instructed the jury that the defendantwas not liable, because the story was told innocently, without malice. He took malice in the moral sense, as importing a malevolent motive. Butnowadays no one doubts that a man may be liable, without any malevolentmotive at all, for false statements manifestly calculated to inflicttemporal damage. In stating the case in pleading, we still should callthe defendant's conduct malicious; but, in my opinion at least, theword means nothing about motives, or even about the defendant's attitudetoward the future, but only signifies that the tendency of his conductunder known circumstances was very plainly to cause the plaintifftemporal harm. 

In the law of contract the use of moral phraseology led to equalconfusion, as I have shown in part already, but only in part. Moralsdeal with the actual internal state of the individual's mind, what heactually intends. From the time of the Romans down to now, this modeof dealing has affected the language of the law as to contract, and thelanguage used has reacted upon the thought. We talk about a contractas a meeting of the minds of the parties, and thence it is inferred invarious cases that there is no contract because their minds have notmet; that is, because they have intended different things or becauseone party has not known of the assent of the other. Yet nothing is morecertain than that parties may be bound by a contract to things whichneither of them intended, and when one does not know of the other'sassent. Suppose a contract is executed in due form and in writing todeliver a lecture, mentioning no time. One of the parties thinks thatthe promise will be construed to mean at once, within a week. The otherthinks that it means when he is ready. The court says that it meanswithin a reasonable time. The parties are bound by the contract as itis interpreted by the court, yet neither of them meant what the courtdeclares that they have said. In my opinion no one will understand thetrue theory of contract or be able even to discuss some fundamentalquestions intelligently until he has understood that all contracts areformal, that the making of a contract depends not on the agreement oftwo minds in one intention, but on the agreement of two sets of externalsigns--not on the parties' having meant the same thing but on theirhaving said the same thing. Furthermore, as the signs may be addressedto one sense or another--to sight or to hearing--on the nature of thesign will depend the moment when the contract is made. If the sign istangible, for instance, a letter, the contract is made when the letterof acceptance is delivered. If it is necessary that the minds of theparties meet, there will be no contract until the acceptance can beread; none, for example, if the acceptance be snatched from the hand ofthe offerer by a third person. 

This is not the time to work out a theory in detail, or to answer manyobvious 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 donow is only by a series of hints to throw some light on the narrow pathof legal doctrine, and upon two pitfalls which, as it seems to me, lieperilously near to it. Of the first of these I have said enough. I hopethat my illustrations have shown the danger, both to speculation andto practice, of confounding morality with law, and the trap which legallanguage lays for us on that side of our way. For my own part, I oftendoubt whether it would not be a gain if every word of moral significancecould be banished from the law altogether, and other words adopted whichshould convey legal ideas uncolored by anything outside the law. Weshould lose the fossil records of a good deal of history and themajesty got from ethical associations, but by ridding ourselves of anunnecessary confusion we should gain very much in the clearness of ourthought. 

So much for the limits of the law. The next thing which I wish toconsider is what are the forces which determine its content and itsgrowth. You may assume, with Hobbes and Bentham and Austin, that alllaw emanates from the sovereign, even when the first human beings toenunciate it are the judges, or you may think that law is the voice ofthe Zeitgeist, or what you like. It is all one to my present purpose. Even if every decision required the sanction of an emperor with despoticpower and a whimsical turn of mind, we should be interested none theless, still with a view to prediction, in discovering some order, somerational explanation, and some principle of growth for the rules whichhe laid down. In every system there are such explanations and principlesto 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 workin the development of the law is logic. In the broadest sense, indeed, that notion would be true. The postulate on which we think about theuniverse is that there is a fixed quantitative relation between everyphenomenon and its antecedents and consequents. If there is such a thingas a phenomenon without these fixed quantitative relations, it isa miracle. It is outside the law of cause and effect, and as suchtranscends our power of thought, or at least is something to or fromwhich we cannot reason. The condition of our thinking about the universeis that it is capable of being thought about rationally, or, in otherwords, that every part of it is effect and cause in the same sensein which those parts are with which we are most familiar. So in thebroadest sense it is true that the law is a logical development, likeeverything else. The danger of which I speak is not the admission thatthe principles governing other phenomena also govern the law, but thenotion that a given system, ours, for instance, can be worked out likemathematics from some general axioms of conduct. This is the naturalerror of the schools, but it is not confined to them. I once heard avery eminent judge say that he never let a decision go until he wasabsolutely 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 theirsums right, and if they would take more trouble, agreement inevitablywould come. 

This mode of thinking is entirely natural. The training of lawyers isa training in logic. The processes of analogy, discrimination, anddeduction are those in which they are most at home. The language ofjudicial decision is mainly the language of logic. And the logicalmethod and form flatter that longing for certainty and for repose whichis in every human mind. But certainty generally is illusion, and reposeis not the destiny of man. Behind the logical form lies a judgment asto the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet thevery root and nerve of the whole proceeding. You can give any conclusiona logical form. You always can imply a condition in a contract. But whydo you imply it? It is because of some belief as to the practice of thecommunity 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 capableof exact quantitative measurement, and therefore not capable of foundingexact logical conclusions. Such matters really are battle grounds wherethe means do not exist for the determinations that shall be good for alltime, and where the decision can do no more than embody the preferenceof a given body in a given time and place. We do not realize how largea part of our law is open to reconsideration upon a slight change in thehabit of the public mind. No concrete proposition is self evident, nomatter 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 notwith a like right on the part of his neighbors. "

Why is a false and injurious statement privileged, if it is madehonestly in giving information about a servant? It is because it hasbeen thought more important that information should be given freely, than that a man should be protected from what under other circumstanceswould be an actionable wrong. Why is a man at liberty to set up abusiness which he knows will ruin his neighborhood? It is becausethe public good is supposed to be best subserved by free competition. Obviously such judgments of relative importance may vary in differenttimes and places. Why does a judge instruct a jury that an employer isnot liable to an employee for an injury received in the course of hisemployment unless he is negligent, and why do the jury generally findfor the plaintiff if the case is allowed to go to them? It is becausethe traditional policy of our law is to confine liability to cases wherea 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 makecertain classes of persons insure the safety of those with whom theydeal. Since the last words were written, I have seen the requirementof such insurance put forth as part of the programme of one of the bestknown labor organizations. There is a concealed, half conscious battleon the question of legislative policy, and if any one thinks that it canbe settled deductively, or once for all, I only can say that I think heis theoretically wrong, and that I am certain that his conclusion willnot be accepted in practice semper ubique et ab omnibus. 

Indeed, I think that even now our theory upon this matter is open toreconsideration, although I am not prepared to say how I should decideif a reconsideration were proposed. Our law of torts comes from theold days of isolated, ungeneralized wrongs, assaults, slanders, and thelike, where the damages might be taken to lie where they fell by legaljudgment. But the torts with which our courts are kept busy today aremainly the incidents of certain well known businesses. They are injuriesto person or property by railroads, factories, and the like. Theliability for them is estimated, and sooner or later goes into the pricepaid by the public. The public really pays the damages, and the questionof liability, if pressed far enough, is really a question how far it isdesirable that the public should insure the safety of one whose work ituses. It might be said that in such cases the chance of a jury findingfor the defendant is merely a chance, once in a while rather arbitrarilyinterrupting the regular course of recovery, most likely in the caseof an unusually conscientious plaintiff, and therefore better doneaway with. On the other hand, the economic value even of a life to thecommunity can be estimated, and no recovery, it may be said, ought to gobeyond that amount. It is conceivable that some day in certain cases wemay find ourselves imitating, on a higher plane, the tariff for life andlimb which we see in the Leges Barbarorum. 

I think that the judges themselves have failed adequately to recognizetheir duty of weighing considerations of social advantage. The duty isinevitable, and the result of the often proclaimed judicial aversionto deal with such considerations is simply to leave the very ground andfoundation of judgments inarticulate, and often unconscious, as I havesaid. When socialism first began to be talked about, the comfortableclasses of the community were a good deal frightened. I suspect thatthis fear has influenced judicial action both here and in England, yetit is certain that it is not a conscious factor in the decisions towhich I refer. I think that something similar has led people whono longer hope to control the legislatures to look to the courts asexpounders of the constitutions, and that in some courts new principleshave been discovered outside the bodies of those instruments, which maybe generalized into acceptance of the economic doctrines which prevailedabout fifty years ago, and a wholesale prohibition of what a tribunalof lawyers does not think about right. I cannot but believe that if thetraining of lawyers led them habitually to consider more definitely andexplicitly the social advantage on which the rule they lay down must bejustified, they sometimes would hesitate where now they are confident, and see that really they were taking sides upon debatable and oftenburning questions. 

So much for the fallacy of logical form. Now let us consider the presentcondition of the law as a subject for study, and the ideal toward whichit tends. We still are far from the point of view which I desire to seereached. No one has reached it or can reach it as yet. We are only atthe beginning of a philosophical reaction, and of a reconsiderationof the worth of doctrines which for the most part still are taken forgranted without any deliberate, conscious, and systematic questioningof their grounds. The development of our law has gone on for nearly athousand years, like the development of a plant, each generation takingthe inevitable next step, mind, like matter, simply obeying a law ofspontaneous growth. It is perfectly natural and right that it shouldhave been so. Imitation is a necessity of human nature, as has beenillustrated by a remarkable French writer, M. Tard, in an admirablebook, Les Lois de l'Imitation. Most of the things we do, we do for nobetter reason than that our fathers have done them or that our neighborsdo them, and the same is true of a larger part than we suspect of whatwe think. The reason is a good one, because our short life gives us notime for a better, but it is not the best. It does not follow, becausewe all are compelled to take on faith at second hand most of the ruleson which we base our action and our thought, that each of us may not tryto set some corner of his world in the order of reason, or that all ofus collectively should not aspire to carry reason as far as it will gothroughout the whole domain. In regard to the law, it is true, no doubt, that an evolutionist will hesitate to affirm universal validity for hissocial ideals, or for the principles which he thinks should be embodiedin legislation. He is content if he can prove them best for here andnow. He may be ready to admit that he knows nothing about an absolutebest in the cosmos, and even that he knows next to nothing about apermanent best for men. Still it is true that a body of law is morerational and more civilized when every rule it contains is referredarticulately and definitely to an end which it subserves, and when thegrounds for desiring that end are stated or are ready to be stated inwords. 

At present, in very many cases, if we want to know why a rule of law hastaken its particular shape, and more or less if we want to know why itexists at all, we go to tradition. We follow it into the Year Books, andperhaps beyond them to the customs of the Salian Franks, and somewherein the past, in the German forests, in the needs of Norman kings, in theassumptions of a dominant class, in the absence of generalized ideas, wefind out the practical motive for what now best is justified by the merefact of its acceptance and that men are accustomed to it. The rationalstudy of law is still to a large extent the study of history. Historymust be a part of the study, because without it we cannot know theprecise scope of rules which it is our business to know. It is a part ofthe rational study, because it is the first step toward an enlightenedscepticism, that is, towards a deliberate reconsideration of the worthof those rules. When you get the dragon out of his cave on to the plainand in the daylight, you can count his teeth and claws, and see justwhat is his strength. But to get him out is only the first step. Thenext 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 ofthe present, but the man of the future is the man of statistics and themaster of economics. It is revolting to have no better reason for arule of law than that so it was laid down in the time of Henry IV. Itis still more revolting if the grounds upon which it was laid down havevanished long since, and the rule simply persists from blind imitationof the past. I am thinking of the technical rule as to trespass abinitio, as it is called, which I attempted to explain in a recentMassachusetts case. 

Let me take an illustration, which can be stated in a few words, to showhow the social end which is aimed at by a rule of law is obscured andonly partially attained in consequence of the fact that the rule owesits form to a gradual historical development, instead of being reshapedas a whole, with conscious articulate reference to the end in view. Wethink it desirable to prevent one man's property being misappropriatedby another, and so we make larceny a crime. The evil is the same whetherthe misappropriation is made by a man into whose hands the owner has putthe property, or by one who wrongfully takes it away. But primitive lawin its weakness did not get much beyond an effort to prevent violence, and very naturally made a wrongful taking, a trespass, part of itsdefinition of the crime. In modern times the judges enlarged thedefinition a little by holding that, if the wrong-doer gets possessionby a trick or device, the crime is committed. This really was givingup the requirement of trespass, and it would have been more logical, as well as truer to the present object of the law, to abandon therequirement altogether. That, however, would have seemed too bold, andwas left to statute. Statutes were passed making embezzlement a crime. But the force of tradition caused the crime of embezzlement to beregarded as so far distinct from larceny that to this day, in somejurisdictions at least, a slip corner is kept open for thieves tocontend, if indicted for larceny, that they should have been indictedfor embezzlement, and if indicted for embezzlement, that they shouldhave been indicted for larceny, and to escape on that ground. 

Far more fundamental questions still await a better answer than that wedo as our fathers have done. What have we better than a blind guess toshow that the criminal law in its present form does more good thanharm? I do not stop to refer to the effect which it has had in degradingprisoners and in plunging them further into crime, or to the questionwhether fine and imprisonment do not fall more heavily on a criminal'swife and children than on himself. I have in mind more far-reachingquestions. Does punishment deter? Do we deal with criminals on properprinciples? A modern school of Continental criminalists plumes itself onthe formula, first suggested, it is said, by Gall, that we must considerthe criminal rather than the crime. The formula does not carry us veryfar, but the inquiries which have been started look toward an answerof my questions based on science for the first time. If the typicalcriminal is a degenerate, bound to swindle or to murder by as deepseated an organic necessity as that which makes the rattlesnake bite, it is idle to talk of deterring him by the classical method ofimprisonment. He must be got rid of; he cannot be improved, orfrightened out of his structural reaction. If, on the other hand, crime, like normal human conduct, is mainly a matter of imitation, punishmentfairly may be expected to help to keep it out of fashion. The study ofcriminals has been thought by some well known men of science to sustainthe former hypothesis. The statistics of the relative increase of crimein crowded places like large cities, where example has the greatestchance to work, and in less populated parts, where the contagion spreadsmore slowly, have been used with great force in favor of the latterview. But there is weighty authority for the belief that, however thismay be, "not the nature of the crime, but the dangerousness of thecriminal, constitutes the only reasonable legal criterion to guide theinevitable social reaction against the criminal. "

The impediments to rational generalization, which I illustrated from thelaw of larceny, are shown in the other branches of the law, as well asin that of crime. Take the law of tort or civil liability for damagesapart from contract and the like. Is there any general theory of suchliability, 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 believefrom the fact that the right of action for certain well known classes ofwrongs like trespass or slander has its special history for each class?I think that the law regards the infliction of temporal damage by aresponsible person as actionable, if under the circumstances known tohim the danger of his act is manifest according to common experience, or according to his own experience if it is more than common, except incases where upon special grounds of policy the law refuses to protectthe plaintiff or grants a privilege to the defendant. I think thatcommonly malice, intent, and negligence mean only that the danger wasmanifest to a greater or less degree, under the circumstances known tothe actor, although in some cases of privilege malice may mean anactual malevolent motive, and such a motive may take away a permissionknowingly to inflict harm, which otherwise would be granted on this orthat ground of dominant public good. But when I stated my view to a veryeminent English judge the other day, he said, "You are discussing whatthe law ought to be; as the law is, you must show a right. A man is notliable for negligence unless he is subject to a duty. " If our differencewas more than a difference in words, or with regard to the proportionbetween the exceptions and the rule, then, in his opinion, liability foran act cannot be referred to the manifest tendency of the act to causetemporal damage in general as a sufficient explanation, but must bereferred to the special nature of the damage, or must be derived fromsome special circumstances outside of the tendency of the act, for whichno 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 thatwe even are in danger of making the role of history more important thanit is. The other day Professor Ames wrote a learned article to show, among other things, that the common law did not recognize the defence offraud in actions upon specialties, and the moral might seem to be thatthe personal character of that defence is due to its equitable origin. But if, as I said, all contracts are formal, the difference is notmerely historical, but theoretic, between defects of form which preventa contract from being made, and mistaken motives which manifestly couldnot be considered in any system that we should call rational exceptagainst one who was privy to those motives. It is not confined tospecialties, but is of universal application. I ought to add that I donot 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 merelyhistorical. The classification of certain obligations to pay money, imposed by the law irrespective of any bargain as quasi contracts, ismerely 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 shouldit not be required in all contracts? A seal is a mere form, and isvanishing in the scroll and in enactments that a consideration must begiven, seal or no seal. Why should any merely historical distinction beallowed to affect the rights and obligations of business men?

Since I wrote this discourse I have come on a very good example of theway in which tradition not only overrides rational policy, but overridesit after first having been misunderstood and having been given a new andbroader scope than it had when it had a meaning. It is the settled lawof England that a material alteration of a written contract by a partyavoids it as against him. The doctrine is contrary to the generaltendency of the law. We do not tell a jury that if a man ever has liedin one particular he is to be presumed to lie in all. Even if a man hastried to defraud, it seems no sufficient reason for preventing himfrom proving the truth. Objections of like nature in general go to theweight, not to the admissibility, of evidence. Moreover, this rule isirrespective of fraud, and is not confined to evidence. It is not merelythat you cannot use the writing, but that the contract is at an end. What does this mean? The existence of a written contract depends onthe fact that the offerer and offeree have interchanged their writtenexpressions, not on the continued existence of those expressions. But inthe case of a bond, the primitive notion was different. The contract wasinseparable from the parchment. If a stranger destroyed it, or tore offthe seal, or altered it, the obligee count not recover, however freefrom fault, because the defendant's contract, that is, the actualtangible bond which he had sealed, could not be produced in the form inwhich it bound him. About a hundred years ago Lord Kenyon undertook touse his reason on the tradition, as he sometimes did to the detriment ofthe law, and, not understanding it, said he could see no reason why whatwas true of a bond should not be true of other contracts. His decisionhappened to be right, as it concerned a promissory note, where again thecommon law regarded the contract as inseparable from the paper on whichit was written, but the reasoning was general, and soon was extended toother written contracts, and various absurd and unreal grounds of policywere invented to account for the enlarged rule. 

I trust that no one will understand me to be speaking with disrespectof the law, because I criticise it so freely. I venerate the law, andespecially our system of law, as one of the vastest products of thehuman mind. No one knows better than I do the countless number ofgreat intellects that have spent themselves in making some addition orimprovement, the greatest of which is trifling when compared with themighty whole. It has the final title to respect that it exists, thatit is not a Hegelian dream, but a part of the lives of men. But one maycriticise even what one reveres. Law is the business to which my life isdevoted, and I should show less than devotion if I did not do what in melies to improve it, and, when I perceive what seems to me the ideal ofits future, if I hesitated to point it out and to press toward it withall my heart. 

Perhaps I have said enough to show the part which the study of historynecessarily plays in the intelligent study of the law as it is today. Inthe teaching of this school and at Cambridge it is in no danger of beingundervalued. Mr. Bigelow here and Mr. Ames and Mr. Thayer there havemade important contributions which will not be forgotten, and in Englandthe recent history of early English law by Sir Frederick Pollock and Mr. Maitland has lent the subject an almost deceptive charm. We mustbeware of the pitfall of antiquarianism, and must remember that for ourpurposes our only interest in the past is for the light it throws uponthe present. I look forward to a time when the part played by history inthe explanation of dogma shall be very small, and instead of ingeniousresearch we shall spend our energy on a study of the ends sought to beattained and the reasons for desiring them. As a step toward that idealit seems to me that every lawyer ought to seek an understanding ofeconomics. The present divorce between the schools of political economyand law seems to me an evidence of how much progress in philosophicalstudy still remains to be made. In the present state of politicaleconomy, indeed, we come again upon history on a larger scale, but therewe are called on to consider and weigh the ends of legislation, themeans of attaining them, and the cost. We learn that for everything wehave we give up something else, and we are taught to set the advantagewe gain against the other advantage we lose, and to know what we aredoing when we elect. 

There is another study which sometimes is undervalued by the practicalminded, for which I wish to say a good word, although I think a gooddeal of pretty poor stuff goes under that name. I mean the study of whatis called jurisprudence. Jurisprudence, as I look at it, is simply lawin its most generalized part. Every effort to reduce a case to a ruleis an effort of jurisprudence, although the name as used in English isconfined to the broadest rules and most fundamental conceptions. Onemark of a great lawyer is that he sees the application of the broadestrules. There is a story of a Vermont justice of the peace before whom asuit was brought by one farmer against another for breaking a churn. Thejustice took time to consider, and then said that he has looked throughthe statutes and could find nothing about churns, and gave judgment forthe defendant. The same state of mind is shown in all our common digestsand textbooks. Applications of rudimentary rules of contract or tortare tucked away under the head of Railroads or Telegraphs or go to swelltreatises on historical subdivisions, such as Shipping or Equity, or aregathered under an arbitrary title which is thought likely to appeal tothe practical mind, such as Mercantile Law. If a man goes into lawit pays to be a master of it, and to be a master of it means to lookstraight through all the dramatic incidents and to discern the truebasis for prophecy. Therefore, it is well to have an accurate notionof what you mean by law, by a right, by a duty, by malice, intent, andnegligence, by ownership, by possession, and so forth. I have in my mindcases in which the highest courts seem to me to have floundered becausethey had no clear ideas on some of these themes. I have illustratedtheir importance already. If a further illustration is wished, it may befound by reading the Appendix to Sir James Stephen's Criminal Law onthe subject of possession, and then turning to Pollock and Wright'senlightened book. Sir James Stephen is not the only writer whoseattempts to analyze legal ideas have been confused by striving for auseless quintessence of all systems, instead of an accurate anatomy ofone. The trouble with Austin was that he did not know enough Englishlaw. But still it is a practical advantage to master Austin, and hispredecessors, Hobbes and Bentham, and his worthy successors, Holland andPollock. Sir Frederick Pollock's recent little book is touched withthe felicity which marks all his works, and is wholly free from theperverting influence of Roman models. 

The advice of the elders to young men is very apt to be as unreal asa list of the hundred best books. At least in my day I had my share ofsuch counsels, and high among the unrealities I place the recommendationto study the Roman law. I assume that such advice means more thancollecting a few Latin maxims with which to ornament the discourse--thepurpose for which Lord Coke recommended Bracton. If that is all thatis wanted, the title De Regulis Juris Antiqui can be read in an hour. Iassume that, if it is well to study the Roman Law, it is well to studyit as a working system. That means mastering a set of technicalitiesmore difficult and less understood than our own, and studying anothercourse of history by which even more than our own the Roman law mustexplained. If any one doubts me, let him read Keller's Der RomischeCivil Process und die Actionen, a treatise on the praetor's edict, Muirhead's most interesting Historical Introduction to the Private Lawof 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 readsomething else, but to get to the bottom of the subject itself. Themeans of doing that are, in the first place, to follow the existing bodyof dogma into its highest generalizations by the help of jurisprudence;next, to discover from history how it has come to be what it is; andfinally, so far as you can, to consider the ends which the several rulesseek to accomplish, the reasons why those ends are desired, what isgiven up to gain them, and whether they are worth the price. 

We have too little theory in the law rather than too much, especially onthis final branch of study. When I was speaking of history, I mentionedlarceny as an example to show how the law suffered from not havingembodied in a clear form a rule which will accomplish its manifestpurpose. In that case the trouble was due to the survival of formscoming from a time when a more limited purpose was entertained. Let menow give an example to show the practical importance, for the decisionof actual cases, of understanding the reasons of the law, by taking anexample from rules which, so far as I know, never have been explained ortheorized about in any adequate way. I refer to statutes of limitationand the law of prescription. The end of such rules is obvious, but whatis the justification for depriving a man of his rights, a pure evil asfar as it goes, in consequence of the lapse of time? Sometimes the lossof evidence is referred to, but that is a secondary matter. Sometimesthe desirability of peace, but why is peace more desirable after twentyyears than before? It is increasingly likely to come without the aid oflegislation. Sometimes it is said that, if a man neglects to enforcehis rights, he cannot complain if, after a while, the law follows hisexample. Now if this is all that can be said about it, you probably willdecide a case I am going to put, for the plaintiff; if you take the viewwhich I shall suggest, you possibly will decide it for the defendant. Aman is sued for trespass upon land, and justifies under a right ofway. He proves that he has used the way openly and adversely for twentyyears, but it turns out that the plaintiff had granted a license to aperson whom he reasonably supposed to be the defendant's agent, althoughnot so in fact, and therefore had assumed that the use of the way waspermissive, in which case no right would be gained. Has the defendantgained a right or not? If his gaining it stands on the fault andneglect of the landowner in the ordinary sense, as seems commonly to besupposed, there has been no such neglect, and the right of way has notbeen acquired. But if I were the defendant's counsel, I should suggestthat the foundation of the acquisition of rights by lapse of time is tobe looked for in the position of the person who gains them, not in thatof the loser. Sir Henry Maine has made it fashionable to connect thearchaic notion of property with prescription. But the connection isfurther back than the first recorded history. It is in the nature ofman's mind. A thing which you have enjoyed and used as your own for along time, whether property or an opinion, takes root in your being andcannot be torn away without your resenting the act and trying todefend yourself, however you came by it. The law can ask no betterjustification than the deepest instincts of man. It is only by way ofreply to the suggestion that you are disappointing the former owner, that you refer to his neglect having allowed the gradual dissociationbetween himself and what he claims, and the gradual association of itwith another. If he knows that another is doing acts which on their faceshow that he is on the way toward establishing such an association, Ishould argue that in justice to that other he was bound at his peril tofind out whether the other was acting under his permission, to see thathe was warned, and, if necessary, stopped. 

I have been speaking about the study of the law, and I have saidnext to nothing about what commonly is talked about in thatconnection--text-books and the case system, and all the machinery withwhich a student comes most immediately in contact. Nor shall I sayanything about them. Theory is my subject, not practical details. The modes of teaching have been improved since my time, no doubt, butability and industry will master the raw material with any mode. Theoryis the most important part of the dogma of the law, as the architect isthe most important man who takes part in the building of a house. The most important improvements of the last twenty-five years areimprovements in theory. It is not to be feared as unpractical, for, tothe competent, it simply means going to the bottom of the subject. For the incompetent, it sometimes is true, as has been said, that aninterest in general ideas means an absence of particular knowledge. Iremember in army days reading of a youth who, being examined for thelowest grade and being asked a question about squadron drill, answeredthat he never had considered the evolutions of less than ten thousandmen. But the weak and foolish must be left to their folly. The dangeris that the able and practical minded should look with indifferenceor distrust upon ideas the connection of which with their business isremote. I heard a story, the other day, of a man who had a valet towhom he paid high wages, subject to deduction for faults. One of hisdeductions was, "For lack of imagination, five dollars. " The lack is notconfined to valets. The object of ambition, power, generally presentsitself nowadays in the form of money alone. Money is the most immediateform, and is a proper object of desire. "The fortune, " said Rachel, "isthe measure of intelligence. " That is a good text to waken people outof a fool's paradise. But, as Hegel says, "It is in the end not theappetite, but the opinion, which has to be satisfied. " To an imaginationof any scope the most far-reaching form of power is not money, it is thecommand of ideas. If you want great examples, read Mr. Leslie Stephen'sHistory of English Thought in the Eighteenth Century, and see how ahundred years after his death the abstract speculations of Descartes hadbecome a practical force controlling the conduct of men. Read the worksof the great German jurists, and see how much more the world is governedtoday by Kant than by Bonaparte. We cannot all be Descartes or Kant, butwe all want happiness. And happiness, I am sure from having knownmany successful men, cannot be won simply by being counsel for greatcorporations and having an income of fifty thousand dollars. Anintellect great enough to win the prize needs other food besidessuccess. The remoter and more general aspects of the law are those whichgive it universal interest. It is through them that you not only becomea great master in your calling, but connect your subject withthe universe and catch an echo of the infinite, a glimpse of itsunfathomable process, a hint of the universal law.