The Common Law
by Oliver Wendell Holmes, edited by Mark DeWolfe Howe
Harvard, 338 pp., $5.00
This famous book, now admirably re-introduced to the general reader by Professor Mark Howe, resembles a necklace of splendid diamonds surprisingly held together at certain points by nothing better than string. The diamonds are the marvelous insights into the genius of the Common Law and the detailed explorations of the dynamic of its growth; they still flash their illuminating light on the dark areas beneath the clear and apparently stable forms of legal thought. The string is the sometimes obscure and hasty argument, the contemptuous dismissal of rival views, and the exaggerations with which Holmes sought to build up the tendencies which he found actually at work in the history of the law into a tough, collective philosophy of society. Holmes’s genius as displayed here is that of a historian especially of early law, and his historical work, though since corrected on many details, made, as Maitland immediately recognized, “an epoch.” By comparison, the philosophy which Holmes drew from his history was shallow, in spite of its interesting connections, noted by Professor Howe, with the Darwinism and empiricism of his day. It now seems of value mainly as a stimulant and to have little claim to finality, even as a critique of the Kantian metaphysics to which it was opposed.
The range of the book is vast; its topics include the basis of liability for crime and for civil wrongs or torts in early and later law, the nature of contract, the law’s use of the elusive idea of possession, and the slow emergence of modern ideas of the transferability of legal rights. But the range is matched by the scholarship. In the first thirty pages, besides the texts of Roman Law and English statutes and cases from the earliest times onwards, there are references to Plato, Demosthenes, Plutarch, Pausanias, Livy, Cicero, Aulus Gellius, Pliny, and many others. This learning is always gracefully deployed and never degenerates into pedantry, and it is amazing that so much could have been amassed by a man of thirty.
In his Preface of 1880 Holmes told his readers that his object in writing the book (which he had delivered as lectures to a partly lay and surely somewhat puzzled audience at the Lowell Institute in Boston) was to construct a theory. “Nous faisons une théorie et non un spicilege.” The theory was to hold together and render intelligible the forests of detail, some of it very ancient lumber, of which the Common Law appeared to consist. Perhaps the boldness of this enterprise appears greater today than it did then. Sir Henry Maine, gifted with similar talents for pregnant epigram and historical generalization, though with perhaps less learning, had successfully attempted something similar for Roman Law in his Ancient Law. The day had not yet then dawned when a “law book” would mean, for Americans, a vast tome constructed in, and for, law schools—mainly with scissors and paste—or, for Englishmen, a slightly smaller textbook, uneasily designed to serve the needs of …