The Common Law
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 both practitioners and students. The delineation of first principles was still a respectable speculative enterprise even for a lawyer.
When Holmes first began to write in the 1870’s, he found that academic law was dominated by a theory which had been begotten by German philosophy on the body of Roman Law. The great names were those of Kant, Hegel, and Savigny, and the theory’s focal point was the respect, indeed the reverence, due the individual and the individual will. To this, all that was problematic or in need of justification was referred. Punishment was to be justified as a return for, or even a cancelling out of, the blameworthy exercise of the will; contracts were to be enforced because they were made by the meeting of human wills which they expressed; possession—even the possession by a thief of stolen goods—was to be protected by the law because it was “the objective realization of the will.” To Holmes, this Willenstheorie seemed either unintelligible or a romantic fiction, incapable of explaining even the institutions of Roman Law on which it purported to be a gloss. Apart from its detailed errors, the whole metaphysical approach appeared simply to ignore the practical aims and exigencies which shape any living body of law. In this ruling theory of his day, Holmes discerned two pathetic fallacies and devoted much of this book to their exposure. The first fallacy was that a legal system had a simple logical structure and that its complexities could all be explained as the deductive consequences of a few leading principles. The second fallacy was that there was a close affinity, if not identity, between legal and moral duty and legal and moral wrong. These were the ideas which, as he wrote elsewhere, were to be washed, perhaps washed away, in “cynical acid,” and he turned to English legal history to find it. In so doing he professed himself convinced that in the Common Law there was “a system far more civilized than the Roman, framed on a plan irreconcilable with the a priori doctrines of Kant and Hegel.”
In spite of the originality and generality of its main themes, none of this book is easy reading. It is essentially the work of a professional legal historian in search of a general theory, not that of a social prophet. The most difficult passages are in the last chapters which describe the slow, involved process by which modern notions of contract, and of legal rights as easily transferable things, emerged from cruder primitive conceptions. Here Holmes probed deep into the technicalities of medieval Common Law, and the often rebarbative detail is difficult even for a lawyer to follow. But it is precisely here that Holmes’s greatest gifts were manifested. He opened up fresh ground in this area of legal science because he was so greatly endowed with the ability to question what had long seemed obvious. “The difficulty in dealing with a subject,” he observes, “is to convince the sceptic that there is anything to explain.” So he set about to understand and to expound how familiar modern legal conceptions first became “thinkable in legal terms.” More—more even of philosophy—is to be learned from following Holmes’s sympathetic reconstruction of the difficult birth of modern legal ideas than from attending to his overt philosophizing. To learn how men came, with the aid of the strange fictions and analogies depicted here, to acknowledge that not only concrete things but abstractions like legal rights might be transferred from person to person, is to gain a new comprehension of the natural history of human thought. Indeed Holmes’s touch was very much that of the naturalist and was perhaps influenced by the biological theories of his day. Though he never adulated the past, he thought recourse to it indispensable to explain its remnants still present in modern legal rules. It is, he said, “just as the clavicle in the cat tells of the existence of some earlier creature to which a collar bone was useful.”
From his historical studies Holmes distilled a number of maxims to be used as prophylactics against the excessive rationalization and moralization of the law, which were the occupational diseases of the legal theorist. Among these maxims is the famous warning (too frequently torn from its context and misapplied) that “the life of the law has not been logic; it has been experience,” and his insistence on the importance to the understanding of law on “instinctive preferences and inarticulate convictions.” But his idée maîtresse, which in the end became something of an obsession, was the principle that, though the law often seems to make liability to punishment or to pay compensation for harm done dependent on the individual’s actual intention to do harm, this is most often not to be taken at its face value. Here, he thought, lay one of the cardinal differences between early and modern law. “Though the law starts from the distinctions and uses the language of morality, it necessarily ends in external standards not dependent on the actual consciousness of the individual.” Or again: “The law considers what would be blameworthy in the average man, the man of ordinary intelligence and prudence, and determines liability by that.” These were indeed powerful heuristic maxims dissipating much misunderstanding in the fields of contract and tort. But Holmes came to regard them as more than valuable pointers to neglected tendencies in the law. He sometimes treats them as statements of necessary truths (“by the very necessity of its nature the law is continually transmuting moral standards into external or objective ones”), and in the most celebrated chapter in this book he erects these principles into a form of social philosophy justifying what he describes as “the sacrifice of the individual.”
This is Holmes’s greatly debated theory of objective liability. Its central contention is that when the law speaks of an intention to do harm as a necessary constituent of a crime, all it does, and can, and should, require (Holmes never adequately discriminated among these three) is that the person accused of the crime should have done what an average man would have foreseen would result in harm. In spite of its subjective and moralizing language, the law does not require proof of the accused’s actual wickedness or actual intention or actual foresight that harm would result. Of course, for common sense as for the law, there are important connections between the proposition that a man by acting in a certain way intended harm, and the proposition that an average man who acted in that way would have foreseen it or intended it. For the latter is good, though not conclusive, evidence of the former. Nonetheless the two propositions are distinct. Holmes, however, though well aware of the distinction, thought that in general the law did not and should not attend to it. This was not because he was a philosophical behaviorist, or because he thought that subjective facts were too elusive for the courts to ascertain. There is no echo in Holmes of the medieval Chief Justice Brian of the Common Pleas, “The thought of man is not triable; the devil alone knoweth the thought of man.” Though many of Holmes’s followers accepted his theory of objective liability because of the difficulties of legal proof of actual knowledge or intention, Holmes does not rest his doctrine on these merely pragmatic grounds but on a social theory. His view was that the function of the criminal law was to protect society from harm, and in pursuit of this objective it did and should set up standards of behavior which individuals must attain at their peril. The law may exempt those who, like the young child or lunatic, are obviously grossly incapable, but apart from this, if men are too weak in understanding or in will power, they must be sacrificed to the common good.
Certainly the criminal law bears traces of such objective standards; indeed the elimination of them has been the aim of many liberal-minded reformers of the law for many years. But though Holmes at one point says that he does not need to defend the law’s use of “objective standards” but only to record it as a fact, he devotes much of this chapter to showing that the law here is reasonable and even admirable. The arguments he uses are the poorest in the book. He considers the objection that the use of external standards of criminal responsibility, taking no account of the incapacities of individuals, treats men as things, not as persons, as means and not as ends. He admits the charge but thinks it irrelevant. He asserts that society frequently treats men as means: it does so when it sends conscripts “with bayonets in their rear” to death. But this reply is cogent only against a stupidly inaccurate version of the Kantian position on which the objection rests. Kant never made the mistake of saying we must never treat men as means. He insisted that we should never treat them only as means “but in every case as ends also.” This meant that we are justified in requiring sacrifices from some men for the good of others only in a social system which also recognizes their rights and their interests. In the case of punishment, the right in question is the right of men to be left free and not to be punished for the good of others, unless they have broken the law when they had the capacity and a fair opportunity to conform to its requirements.
Apart from this, Holmes’s main argument is a fallacy and unfortunately an infectious one. He adopts the acceptable position that the general aim, justifying a modern system of criminal punishment, is not to secure vengeance or retribution in the sense of a return of pain for an evil done, but to prevent harmful crime. On this basis he seeks to prove that there can be no reason why the law should concern itself with the actual state of the offender’s mind or enquire into his actual capacity to do what the law requires. His proof is that since the law only requires outward conformity to its prescriptions and does not care, so long as the law is obeyed, what were the intentions or motives of those who obeyed or whether they could have done otherwise, so it should equally disregard these subjective matters in dealing with the offender when the law has been broken. This is, of course, a non sequitur. Even if the general justification of punishment is the utilitarian aim of preventing harm, and not vengeance or retribution, it is still perfectly intelligible that we should defer to principles of justice or fairness to individuals and not punish those who lack the capacity or fair opportunity to obey. It is simply not true that such a concern with the individual only makes sense within a system of retribution or vengeance. Indeed, Holmes himself in discussing liability in tort stresses the importance of such principles of justice to individuals, but thinks their requirements are adequately satisfied if the individual is punished only for what would be blameworthy in the average man. No doubt there are practical difficulties in ascertaining the actual knowledge or intention or capacity of individuals in every case, but there is no reason in principle why a maximum effort should not be made to do it.
“The law will not enquire whether he did actually foresee this consequence or not. The test of foresight is not what this very criminal foresaw but what a man of reasonable prudence would have foreseen.” When he was a judge in Massachusetts, Holmes applied this principle in murder cases at least twice and the influence of his doctrine has been great, both on the body and the theory of the law. In 1961 the English House of Lords endorsed it and quoted Holmes’s words. But little support for it is now to be found in American legal opinion and it is firmly rejected in the Model Penal Code of the American Law Institute. The decision of the House of Lords was greeted with a storm of criticism and it is clear that Holmes’s doctrine is unlikely to be invoked in English cases other than murder. But paradoxically some of Holmes’s opponents even in America have darkened counsel as much as his followers. For they have accepted from Holmes the false suggestion implicit in his argument that it is pointless to bother about the individual’s mind or capacity to conform to law except where the aim of punishment is retribution for moral wickedness. They have asserted against Holmes that we should indeed be concerned with these subjective facts about the individual, but agreed with him that this is so only because it is necessary to establish the moral wickedness of those who are punished. This is a blinding over-simplification of the complex issues surrounding the institution of punishment, and it ignores the claims of those liberal forms of utilitarianism which hold that, though it is for the protection of society that law breakers are to be punished, no individual is to be punished who lacks the capacity to obey.
Though there are these and other weaknesses to be found in this book, almost everything which Holmes said in it still reverberates. This is not only a tribute to the magic and sonority of his style. It still pays handsome dividends in thinking about any subject on which Holmes touched here, to begin with what he said, even though, in some cases, it seems no longer possible to stay with it.