The Path of the Law

By

Oliver Wendell Holmes, Jr.

Oliver Wendell Holmes Jr.

(1841 – 1935)

1
 Foreword
By

Douglas A. Hedin
Editor, MLHP

On January 8, 1897, Oliver Wendell Holmes, Jr., then a Justice on

the Massachusetts Supreme Judicial Court, delivered an address
at Boston University Law School that is “generally considered to
have heralded the beginning of the modern era of American
Jurisprudence”1 and is “of monumental significance to under-
standing the intellectual history of American law.”2 Martha
Minow, in a centennial tribute, noted its lasting importance:

Thus, The Path of the Law either displayed great

prescience or else carried remarkable influence.
Either way, it serves as a fitting prologue for much of
legal scholarship during the past century. Perhaps a
more accurate description, though, would label it a
prism, for subsequent works have separately drawn
out different colors from its rich spectrum of
instrumentalism, utilitarianism, and poetry.3

Each year brings forth new books and articles by authors who
have glanced at the law and law’s history through Holmes’
“prism.”

Holmes’ address was published later that year in the Harvard

Law Review.4 In that version, five footnotes were added. It
follows, complete, though reformatted. ◊

1
Anthony J. Sebok, “Introduction” to “Symposium: The Path of the Law 100 years later:
Holmes’s Influence on Modern Jurisprudence,” 63 Brooklyn Law Review 1 (1997).
2
David Rosenberg, “The Path Not Taken,” 110 Harvard Law Review 1044 (1997).
3 Martha Minow, “The Path as Prologue,” 110 Harvard Law Review 1023, 1027 (1997).
4 10 Harvard Law Review 457-478 (1897).
The literature on “The Path of the Law” is voluminous. Articles by the scholars quoted
here appear in symposia commemorating its centennial. See 110 Harvard Law Review
989-1054 (1997) and 63 Brooklyn Law Review 1-276 (1997). Benjamin Kaplan’s “En-
counters With O. W. Holmes, Jr.,” 96 Harvard Law Review 1828 (1983), is worth tracking
down. The articles in Steven J. Burton, ed., The Path of the law and its Influence: The
Legacy of Oliver Wendell Holmes Jr. (Cambridge Univ. Press, 2000), are demanding.

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 The Path of the Law
By

Oliver Wendell Holmes, Jr.

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 instru-
mentality 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 pro-

3
phecies 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 pro-
positions 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

4
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 pro-
phesy 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 im-
portance 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.

5
I take it for granted that no hearer of mine will mis-
interpret 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 your-
selves 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 phrase-
ology 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

6
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

7
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 pro-
phecies 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

8
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 dif-
ference 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.

9
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,5 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
5 1 Roll Rep. 368.

10
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 pun-
ishing 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 neg-
ligence. 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

11
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.6

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
6 See Hanson v. Globe Newspaper Co., 159 Mass. 293, 302.

12
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 ac-
ceptance 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 spec-
ulation 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

13
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 deter-
mine 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 prin-
ciples 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

14
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 gov-
erning 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 judg-
ment, 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

15
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 con-
clusions. 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 circum-
stances 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

16
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 reconsidera-
tion 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

17
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 con-
ceivable 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 ad-

equately to recognize their duty of weighing con-
siderations 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 pro-
hibition 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

18
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

19
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

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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.7

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 refer-
ence 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 wrongdoer 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 al-
7 Commonwealth v. Rubin, 165 Mass. 453.

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together. 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

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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."8

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 action-
able, 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

8 Havelock Ellis, “The Criminal,” citing Garofalo. See also Ferri, Sociologie Criminelle,”
passim. Compare Tarde, “La Philosophie Pénale.”

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grounds of policy the law refuses to protect the plaintiff
or grants a privilege to the defendant.9 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 dif-
ference 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 cir-
cumstances 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

9 An example of the law’s refusing to protect the plaintiff is when he is interrupted by a

stranger in the use of a valuable way, which he has travelled adversely for a week less
than the period of prescription. A week later he will have gained a right, but now he is
only a trespasser. Examples of privilege I have given already. One of the best is
competition in business.

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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 appli-
cation. 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 obli-
gations 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

25
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 inter-
changed their written expressions, not on the con-
tinued 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

26
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

27
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 under-

valued 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

28
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 im-
portance 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

29
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 Römische 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, Sohm'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

30
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

31
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.

32
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 im-
portant 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 know-
ledge. 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

33
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 suc-cessful 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. ■

ΞΞHΞΞ

Posted MLHP: March 12, 2014.

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