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THE PATH OF THE

LAW

OLIVER WENDELL HOLMES∗

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10 Harvard Law Review 457 (1897)When we study law we are not study-

ing a mystery but a well-known profession.We are studying what we shall want in or-der to appear before judges, or to advisepeople in such a way as to keep them outof court. The reason why it is a profes-

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sion, why people will pay lawyers to arguefor them or to advise them, is that in so-cieties like ours the command of the pub-lic force is intrusted to the judges in cer-tain cases, and the whole power of the statewill be put forth, if necessary, to carry outtheir judgments and decrees. People wantto know under what circumstances and howfar they will run the risk of coming against

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what is so much stronger than themselves,and hence it becomes a business to find outwhen this danger is to be feared. The objectof our study, then, is prediction, the pre-diction 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 of statutes, in thiscountry and in England, extending back for

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six hundred years, and now increasing an-nually by hundreds. In these sibylline leavesare gathered the scattered prophecies of thepast upon the cases in which the axe willfall. These are what properly have beencalled the oracles of the law. Far the mostimportant and pretty nearly the whole mean-ing of every new effort of legal thought isto make these prophecies more precise, and

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to generalize them into a thoroughly con-nected system. The process is one, froma lawyer’s statement of a case, eliminatingas it does all the dramatic elements withwhich his client’s story has clothed it, andretaining only the facts of legal import, upto the final analyses and abstract universalsof theoretic jurisprudence. The reason whya lawyer does not mention that his client

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wore a white hat when he made a contract,while Mrs. Quickly would be sure to dwellupon it along with the parcel gilt goblet andthe sea-coal fire, is that he foresees thatthe public force will act in the same waywhatever his client had upon his head. Itis to make the prophecies easier to be re-membered and to be understood that theteachings of the decisions of the past are

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put into general propositions and gatheredinto textbooks, or that statutes are passedin a general form. The primary rights andduties with which jurisprudence busies it-self again are nothing but prophecies. Oneof the many evil effects of the confusion be-tween legal and moral ideas, about which Ishall have something to say in a moment, isthat theory is apt to get the cart before the

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horse, and consider the right or the dutyas something existing apart from and inde-pendent of the consequences of its breach,to which certain sanctions are added after-ward. But, as I shall try to show, a legalduty so called is nothing but a predictionthat if a man does or omits certain thingshe will be made to suffer in this or that wayby judgment of the court; and so of a legal

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right.The number of our predictions when gen-

eralized and reduced to a system is not un-manageably large. They present themselvesas a finite body of dogma which may bemastered within a reasonable time. It is agreat mistake to be frightened by the ever-increasing number of reports. The reportsof a given jurisdiction in the course of a gen-

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eration take up pretty much the whole bodyof the law, and restate it from the presentpoint of view. We could reconstruct thecorpus from them if all that went beforewere burned. The use of the earlier reportsis mainly historical, a use about which Ishall have something to say before I havefinished.

I wish, if I can, to lay down some first11



principles for the study of this body of dogmaor systematized prediction which we call thelaw, for men who want to use it as the in-strument of their business to enable themto prophesy in their turn, and, as bearingupon the study, I wish to point out an idealwhich as yet our law has not attained.

The first thing for a businesslike under-standing of the matter is to understand its

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limits, and therefore I think it desirable atonce to point out and dispel a confusion be-tween morality and law, which sometimesrises to the height of conscious theory, andmore often and indeed constantly is makingtrouble in detail without reaching the pointof consciousness. You can see very plainlythat a bad man has as much reason as agood one for wishing to avoid an encounter

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with the public force, and therefore you cansee the practical importance of the distinc-tion between morality and law. A man whocares nothing for an ethical rule which isbelieved and practised by his neighbors islikely nevertheless to care a good deal toavoid being made to pay money, and willwant to keep out of jail if he can.

I take it for granted that no hearer of 14



mine will misinterpret what I have to sayas the language of cynicism. The law is thewitness and external deposit of our morallife. Its history is the history of the moraldevelopment of the race. The practice of it,in spite of popular jests, tends to make goodcitizens and good men. When I emphasizethe difference between law and morals I doso with reference to a single end, that of

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learning and understanding the law. Forthat purpose you must definitely master itsspecific marks, and it is for that that I askyou for the moment to imagine yourselvesindifferent to other and greater things.

I do not say that there is not a widerpoint of view from which the distinction be-tween law and morals becomes of secondaryor no importance, as all mathematical dis-

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tinctions vanish in presence of the infinite.But I do say that that distinction is of thefirst importance for the object which weare here to consider–a right study and mas-tery of the law as a business with well un-derstood limits, a body of dogma enclosedwithin definite lines. I have just shown thepractical reason for saying so. If you wantto know the law and nothing else, you must

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look at it as a bad man, who cares onlyfor the material consequences which suchknowledge enables him to predict, not asa good one, who finds his reasons for con-duct, whether inside the law or outside of it, in the vaguer sanctions of conscience.The theoretical importance of the distinc-tion is no less, if you would reason on yoursubject aright. The law is full of phraseol-

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ogy drawn from morals, and by the mereforce of language continually invites us topass from one domain to the other with-out perceiving it, as we are sure to do un-less we have the boundary constantly beforeour minds. The law talks about rights, andduties, and malice, and intent, and negli-gence, and so forth, and nothing is easier,or, I may say, more common in legal rea-

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soning, than to take these words in theirmoral sense, at some state of the argument,and so to drop into fallacy. For instance,when we speak of the rights of man in amoral sense, we mean to mark the limits of interference with individual freedom whichwe think are prescribed by conscience, or byour ideal, however reached. Yet it is certainthat many laws have been enforced in the

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past, and it is likely that some are enforcednow, which are condemned by the most en-lightened opinion of the time, or which atall events pass the limit of interference, asmany consciences would draw it. Mani-festly, therefore, nothing but confusion of thought can result from assuming that therights of man in a moral sense are equallyrights in the sense of the Constitution and

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the law. No doubt simple and extreme casescan be put of imaginable laws which thestatute-making power would not dare to en-act, even in the absence of written constitu-tional prohibitions, because the communitywould rise in rebellion and fight; and thisgives some plausibility to the propositionthat the law, if not a part of morality, islimited by it. But this limit of power is not

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coextensive with any system of morals. Forthe most part it falls far within the lines of any such system, and in some cases may ex-tend beyond them, for reasons drawn fromthe habits of a particular people at a par-ticular time. I once heard the late Pro-fessor Agassiz say that a German popula-tion would rise if you added two cents tothe price of a glass of beer. A statute in

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such a case would be empty words, not be-cause it was wrong, but because it could notbe enforced. No one will deny that wrongstatutes can be and are enforced, and wewould not all agree as to which were thewrong ones.

The confusion with which I am dealingbesets confessedly legal conceptions. Takethe fundamental question, What constitutes

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the law? You will find some text writerstelling you that it is something different fromwhat is decided by the courts of Massachusettsor England, that it is a system of reason,that it is a deduction from principles of ethicsor admitted axioms or what not, which mayor may not coincide with the decisions. Butif we take the view of our friend the badman we shall find that he does not care

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two straws for the axioms or deductions,but that he does want to know what theMassachusetts or English courts are likelyto do in fact. I am much of this mind. Theprophecies of what the courts will do in fact,and nothing more pretentious, are what Imean by the law.

Take again a notion which as popularlyunderstood is the widest conception which

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the law contains–the notion of legal duty, towhich already I have referred. We fill theword with all the content which we drawfrom morals. But what does it mean to abad man? Mainly, and in the first place,a prophecy that if he does certain thingshe will be subjected to disagreeable conse-quences by way of imprisonment or compul-sory payment of money. But from his point

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of view, what is the difference between be-ing fined and taxed a certain sum for doinga certain thing? That his point of view isthe test of legal principles is proven by themany discussions which have arisen in thecourts on the very question whether a givenstatutory liability is a penalty or a tax. Onthe answer to this question depends the de-cision whether conduct is legally wrong or

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right, and also whether a man is under com-pulsion or free. Leaving the criminal law onone side, what is the difference between theliability under the mill acts or statutes au-thorizing a taking by eminent domain andthe liability for what we call a wrongful con-version of property where restoration is outof the question. In both cases the partytaking another man’s property has to pay

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its fair value as assessed by a jury, and nomore. What significance is there in callingone taking right and another wrong fromthe point of view of the law? It does notmatter, so far as the given consequence, thecompulsory payment, is concerned, whetherthe act to which it is attached is describedin terms of praise or in terms of blame, orwhether the law purports to prohibit it or

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to allow it. If it matters at all, still speak-ing from the bad man’s point of view, itmust be because in one case and not inthe other some further disadvantages, orat least some further consequences, are at-tached to the act by law. The only otherdisadvantages thus attached to it which Iever have been able to think of are to befound in two somewhat insignificant legal

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doctrines, both of which might be abolishedwithout much disturbance. One is, that acontract to do a prohibited act is unlawful,and the other, that, if one of two or more joint wrongdoers has to pay all the dam-ages, he cannot recover contribution fromhis fellows. And that I believe is all. Yousee how the vague circumference of the no-tion of duty shrinks and at the same time

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grows more precise when we wash it withcynical acid and expel everything exceptthe object of our study, the operations of the law.

Nowhere is the confusion between legaland moral ideas more manifest than in thelaw of contract. Among other things, hereagain the so- called primary rights and du-ties are invested with a mystic significance

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beyond what can be assigned and explained.The duty to keep a contract at commonlaw means a prediction that you must paydamages if you do not keep it–and nothingelse. If you commit a tort, you are liableto pay a compensatory sum. If you commita contract, you are liable to pay a compen-satory sum unless the promised event comesto pass, and that is all the difference. But

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such a mode of looking at the matter stinksin the nostrils of those who think it advan-tageous to get as much ethics into the lawas they can. It was good enough for LordCoke, however, and here, as in many oth-ers cases, I am content to abide with him.In Bromage v. Genning, a prohibition wassought in the Kings’ Bench against a suit inthe marches of Wales for the specific perfor-

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mance of a covenant to grant a lease, andCoke said that it would subvert the inten-tion of the covenantor, since he intends itto be at his election either to lose the dam-ages or to make the lease. Sergeant Harrafor the plaintiff confessed that he moved thematter against his conscience, and a prohi-bition was granted. This goes further thanwe should go now, but it shows what I ven-

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ture to say has been the common law pointof view from the beginning, although Mr.Harriman, in his very able little book uponContracts 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 log-ical justification can be found for speakingof civil liabilities as imposing duties in an

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intelligible sense. These are the relativelyfew in which equity will grant an injunction,and will enforce it by putting the defendantin prison or otherwise punishing him unlesshe complies with the order of the court. ButI hardly think it advisable to shape generaltheory from the exception, and I think itwould be better to cease troubling ourselvesabout primary rights and sanctions alto-

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gether, than to describe our prophecies con-cerning the liabilities commonly imposed bythe law in those inappropriate terms.

I mentioned, as other examples of theuse by the law of words drawn from morals,malice, intent, and negligence. It is enoughto take malice as it is used in the law of civilliability for wrongs what we lawyers call thelaw of torts–to show that it means some-

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thing different in law from what it meansin morals, and also to show how the differ-ence has been obscured by giving to princi-ples which have little or nothing to do witheach other the same name. Three hundredyears ago a parson preached a sermon andtold a story out of Fox’s Book of Martyrsof a man who had assisted at the torture of one of the saints, and afterward died, suffer-

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ing compensatory inward torment. It hap-pened that Fox was wrong. The man wasalive and chanced to hear the sermon, andthereupon he sued the parson. Chief JusticeWray instructed the jury that the defen-dant was not liable, because the story wastold innocently, without malice. He tookmalice in the moral sense, as importing amalevolent motive. But nowadays no one

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doubts that a man may be liable, withoutany malevolent motive at all, for false state-ments manifestly calculated to inflict tem-poral damage. In stating the case in plead-ing, we still should call the defendant’s con-duct malicious; but, in my opinion at least,the word means nothing about motives, oreven about the defendant’s attitude towardthe future, but only signifies that the ten-

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dency of his conduct under known circum-stances was very plainly to cause the plain-tiff temporal harm.

In the law of contract the use of moralphraseology led to equal confusion, as I haveshown in part already, but only in part.Morals deal with the actual internal state of the individual’s mind, what he actually in-tends. From the time of the Romans down

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to now, this mode of dealing has affectedthe language of the law as to contract, andthe language used has reacted upon the thought.We talk about a contract as a meeting of the minds of the parties, and thence it isinferred in various cases that there is nocontract because their minds have not met;that is, because they have intended differ-ent things or because one party has not

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known of the assent of the other. Yet noth-ing is more certain than that parties may bebound by a contract to things which neitherof them intended, and when one does notknow of the other’s assent. Suppose a con-tract is executed in due form and in writ-ing to deliver a lecture, mentioning no time.One of the parties thinks that the promisewill be construed to mean at once, within a

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week. The other thinks that it means whenhe is ready. The court says that it meanswithin a reasonable time. The parties arebound by the contract as it is interpretedby the court, yet neither of them meantwhat the court declares that they have said.In my opinion no one will understand thetrue theory of contract or be able even todiscuss some fundamental questions intelli-

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gently until he has understood that all con-tracts are formal, that the making of a con-tract depends not on the agreement of twominds in one intention, but on the agree-ment of two sets of external signs–not onthe parties’ having meant the same thingbut on their having said the same thing.Furthermore, as the signs may be addressedto one sense or another–to sight or to hearing–

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on the nature of the sign will depend themoment when the contract is made. If thesign is tangible, for instance, a letter, thecontract is made when the letter of accep-tance is delivered. If it is necessary thatthe minds of the parties meet, there willbe no contract until the acceptance can beread; none, for example, if the acceptancebe snatched from the hand of the offerer by

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a third person.This is not the time to work out a theory

in detail, or to answer many obvious doubtsand questions which are suggested by thesegeneral views. I know of none which arenot easy to answer, but what I am tryingto do now is only by a series of hints tothrow some light on the narrow path of le-gal doctrine, and upon two pitfalls which,

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as it seems to me, lie perilously near to it.Of the first of these I have said enough. Ihope that my illustrations have shown thedanger, both to speculation and to prac-tice, of confounding morality with law, andthe trap which legal language lays for us onthat side of our way. For my own part, Ioften doubt whether it would not be a gainif every word of moral significance could

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be banished from the law altogether, andother words adopted which should conveylegal ideas uncolored by anything outsidethe law. We should lose the fossil recordsof a good deal of history and the majestygot from ethical associations, but by rid-ding ourselves of an unnecessary confusionwe should gain very much in the clearnessof our thought.

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So much for the limits of the law. Thenext thing which I wish to consider is whatare the forces which determine its contentand its growth. You may assume, with Hobbesand Bentham and Austin, that all law em-anates from the sovereign, even when thefirst human beings to enunciate it are the judges, or you may think that law is thevoice of the Zeitgeist, or what you like. It

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is all one to my present purpose. Even if every decision required the sanction of anemperor with despotic power and a whim-sical turn of mind, we should be interestednone the less, still with a view to predic-tion, in discovering some order, some ra-tional explanation, and some principle of growth for the rules which he laid down.In every system there are such explanations

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and principles to be found. It is with re-gard to them that a second fallacy comesin, which I think it important to expose.

The fallacy to which I refer is the notionthat the only force at work in the develop-ment of the law is logic. In the broadestsense, indeed, that notion would be true.The postulate on which we think about theuniverse is that there is a fixed quantitative

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relation between every phenomenon and itsantecedents and consequents. If there issuch a thing as a phenomenon without thesefixed quantitative relations, it is a miracle.It is outside the law of cause and effect, andas such transcends our power of thought, orat least is something to or from which wecannot reason. The condition of our think-ing about the universe is that it is capa-

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ble of being thought about rationally, or, inother words, that every part of it is effectand cause in the same sense in which thoseparts are with which we are most familiar.So in the broadest sense it is true that thelaw is a logical development, like everythingelse. The danger of which I speak is notthe admission that the principles governingother phenomena also govern the law, but

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the notion that a given system, ours, for in-stance, can be worked out like mathematicsfrom some general axioms of conduct. Thisis the natural error of the schools, but itis not confined to them. I once heard avery eminent judge say that he never leta decision go until he was absolutely surethat it was right. So judicial dissent oftenis blamed, as if it meant simply that one

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side or the other were not doing their sumsright, and if they would take more trouble,agreement inevitably would come.

This mode of thinking is entirely natu-ral. The training of lawyers is a trainingin logic. The processes of analogy, discrim-ination, and deduction are those in whichthey are most at home. The language of judicial decision is mainly the language of

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logic. And the logical method and formflatter that longing for certainty and for re-pose which is in every human mind. Butcertainty generally is illusion, and repose isnot the destiny of man. Behind the logi-cal form lies a judgment as to the relativeworth and importance of competing legisla-tive grounds, often an inarticulate and un-conscious judgment, it is true, and yet the

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very root and nerve of the whole proceed-ing. You can give any conclusion a logicalform. You always can imply a condition in acontract. But why do you imply it? It is be-cause of some belief as to the practice of thecommunity or of a class, or because of someopinion as to policy, or, in short, because of some attitude of yours upon a matter notcapable of exact quantitative measurement,

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and therefore not capable of founding ex-act logical conclusions. Such matters reallyare battle grounds where the means do notexist for the determinations that shall begood for all time, and where the decisioncan do no more than embody the prefer-ence of a given body in a given time andplace. We do not realize how large a partof our law is open to reconsideration upon

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a slight change in the habit of the publicmind. No concrete proposition is self evi-dent, no matter how ready we may be toaccept it, not even Mr. Herbert Spencer’s”Every man has a right to do what he wills,provided he interferes not with a like righton the part of his neighbors.”

Why is a false and injurious statementprivileged, if it is made honestly in giving

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information about a servant? It is becauseit has been thought more important that in-formation should be given freely, than thata man should be protected from what underother circumstances would be an actionablewrong. Why is a man at liberty to set up abusiness which he knows will ruin his neigh-borhood? It is because the public good issupposed to be best subserved by free com-

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petition. Obviously such judgments of rela-tive importance may vary in different timesand places. Why does a judge instruct a jury that an employer is not liable to an em-ployee for an injury received in the course of his employment unless he is negligent, andwhy do the jury generally find for the plain-tiff if the case is allowed to go to them? Itis because the traditional policy of our law

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is to confine liability to cases where a pru-dent man might have foreseen the injury,or at least the danger, while the inclinationof a very large part of the community is tomake certain classes of persons insure thesafety of those with whom they deal. Sincethe last words were written, I have seen therequirement of such insurance put forth aspart of the programme of one of the best

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known labor organizations. There is a con-cealed, half conscious battle on the questionof legislative policy, and if any one thinksthat it can be settled deductively, or oncefor all, I only can say that I think he istheoretically wrong, and that I am certainthat his conclusion will not be accepted inpractice semper ubique et ab omnibus.

Indeed, I think that even now our theory66



upon this matter is open to reconsideration,although I am not prepared to say how Ishould decide if a reconsideration were pro-posed. Our law of torts comes from theold days of isolated, ungeneralized wrongs,assaults, slanders, and the like, where thedamages might be taken to lie where theyfell by legal judgment. But the torts withwhich our courts are kept busy today are

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mainly the incidents of certain well knownbusinesses. They are injuries to person orproperty by railroads, factories, and the like.The liability for them is estimated, and sooneror later goes into the price paid by the pub-lic. The public really pays the damages,and the question of liability, if pressed farenough, is really a question how far it isdesirable that the public should insure the

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safety of one whose work it uses. It mightbe said that in such cases the chance of a jury finding for the defendant is merelya chance, once in a while rather arbitrar-ily interrupting the regular course of recov-ery, most likely in the case of an unusuallyconscientious plaintiff, and therefore betterdone away with. On the other hand, theeconomic value even of a life to the com-

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munity can be estimated, and no recovery,it may be said, ought to go beyond thatamount. It is conceivable that some day incertain cases we may find ourselves imitat-ing, on a higher plane, the tariff for life andlimb which we see in the Leges Barbarorum.

I think that the judges themselves havefailed adequately to recognize their duty of weighing considerations of social advantage.

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The duty is inevitable, and the result of theoften proclaimed judicial aversion to dealwith such considerations is simply to leavethe very ground and foundation of judg-ments inarticulate, and often unconscious,as I have said. When socialism first beganto be talked about, the comfortable classesof the community were a good deal fright-ened. I suspect that this fear has influenced

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judicial action both here and in England,yet it is certain that it is not a consciousfactor in the decisions to which I refer. Ithink that something similar has led peoplewho no longer hope to control the legisla-tures to look to the courts as expounders of the constitutions, and that in some courtsnew principles have been discovered outsidethe bodies of those instruments, which may

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be generalized into acceptance of the eco-nomic doctrines which prevailed about fiftyyears ago, and a wholesale prohibition of what a tribunal of lawyers does not thinkabout right. I cannot but believe that if the training of lawyers led them habituallyto consider more definitely and explicitlythe social advantage on which the rule theylay down must be justified, they sometimes

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would hesitate where now they are confi-dent, and see that really they were tak-ing sides upon debatable and often burningquestions.

So much for the fallacy of logical form.Now let us consider the present conditionof the law as a subject for study, and theideal toward which it tends. We still are farfrom the point of view which I desire to see

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reached. No one has reached it or can reachit as yet. We are only at the beginning of aphilosophical reaction, and of a reconsider-ation of the worth of doctrines which for themost part still are taken for granted with-out any deliberate, conscious, and system-atic questioning of their grounds. The de-velopment of our law has gone on for nearlya thousand years, like the development of a

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plant, each generation taking the inevitablenext step, mind, like matter, simply obey-ing a law of spontaneous growth. It is per-fectly natural and right that it should havebeen so. Imitation is a necessity of hu-man nature, as has been illustrated by a re-markable French writer, M. Tard, in an ad-mirable book, Les Lois de l’Imitation. Mostof the things we do, we do for no better rea-

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son than that our fathers have done them orthat our neighbors do them, and the sameis 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 fora better, but it is not the best. It doesnot follow, because we all are compelled totake on faith at second hand most of therules on which we base our action and our

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thought, that each of us may not try to setsome corner of his world in the order of rea-son, or that all of us collectively should notaspire to carry reason as far as it will gothroughout the whole domain. In regardto the law, it is true, no doubt, that anevolutionist will hesitate to affirm univer-sal validity for his social ideals, or for theprinciples which he thinks should be em-

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bodied in legislation. He is content if he canprove them best for here and now. He maybe ready to admit that he knows nothingabout an absolute best in the cosmos, andeven that he knows next to nothing about apermanent best for men. Still it is true thata body of law is more rational and more civ-ilized when every rule it contains is referredarticulately and definitely to an end which

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it subserves, and when the grounds for de-siring that end are stated or are ready to bestated in words.

At present, in very many cases, if wewant to know why a rule of law has takenits particular shape, and more or less if wewant to know why it exists at all, we go totradition. We follow it into the Year Books,and perhaps beyond them to the customs

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of the Salian Franks, and somewhere in thepast, in the German forests, in the needsof Norman kings, in the assumptions of adominant class, in the absence of general-ized ideas, we find out the practical mo-tive for what now best is justified by themere fact of its acceptance and that menare accustomed to it. The rational studyof law is still to a large extent the study

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of history. History must be a part of thestudy, because without it we cannot knowthe precise scope of rules which it is ourbusiness to know. It is a part of the ratio-nal study, because it is the first step towardan enlightened scepticism, that is, towardsa deliberate reconsideration of the worth of those rules. When you get the dragon outof his cave on to the plain and in the day-

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light, you can count his teeth and claws,and see just what is his strength. But toget him out is only the first step. The nextis either to kill him, or to tame him andmake him a useful animal. For the rationalstudy of the law the blackletter man maybe the man of the present, but the man of the future is the man of statistics and themaster of economics. It is revolting to have

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no better reason for a rule of law than thatso it was laid down in the time of HenryIV. It is still more revolting if the groundsupon which it was laid down have vanishedlong since, and the rule simply persists fromblind imitation of the past. I am thinkingof the technical rule as to trespass ab initio,as it is called, which I attempted to explainin a recent Massachusetts case.

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Let me take an illustration, which canbe stated in a few words, to show how thesocial end which is aimed at by a rule of law is obscured and only partially attainedin consequence of the fact that the rule owesits form to a gradual historical development,instead of being reshaped as a whole, withconscious articulate reference to the end inview. We think it desirable to prevent one

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man’s property being misappropriated byanother, and so we make larceny a crime.The evil is the same whether the misap-propriation is made by a man into whosehands the owner has put the property, orby one who wrongfully takes it away. Butprimitive law in its weakness did not getmuch beyond an effort to prevent violence,and very naturally made a wrongful tak-

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ing, a trespass, part of its definition of thecrime. In modem times the judges enlargedthe definition a little by holding that, if the wrong-doer gets possession by a trickor device, the crime is committed. This re-ally was giving up the requirement of tres-pass, and it would have been more logical,as well as truer to the present object of the law, to abandon the requirement alto-

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gether. That, however, would have seemedtoo bold, and was left to statute. Statuteswere passed making embezzlement a crime.But the force of tradition caused the crimeof embezzlement to be regarded as so fardistinct from larceny that to this day, insome jurisdictions at least, a slip corner iskept open for thieves to contend, if indictedfor larceny, that they should have been in-

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dicted for embezzlement, and if indicted forembezzlement, that they should have beenindicted for larceny, and to escape on thatground.

Far more fundamental questions still awaita better answer than that we do as ourfathers have done. What have we betterthan a blind guess to show that the crimi-nal law in its present form does more good

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than harm? I do not stop to refer to the ef-fect which it has had in degrading prisonersand in plunging them further into crime, orto the question whether fine and imprison-ment do not fall more heavily on a crimi-nal’s wife and children than on himself. Ihave in mind more far-reaching questions.Does punishment deter? Do we deal withcriminals on proper principles? A modern

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school of Continental criminalists plumesitself on the formula, first suggested, it issaid, by Gall, that we must consider thecriminal rather than the crime. The for-mula does not carry us very far, but the in-quiries which have been started look towardan answer of my questions based on sciencefor the first time. If the typical criminal isa degenerate, bound to swindle or to mur-

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der by as deep seated an organic necessityas that which makes the rattlesnake bite,it is idle to talk of deterring him by theclassical method of imprisonment. He mustbe got rid of; he cannot be improved, orfrightened out of his structural reaction. If,on the other hand, crime, like normal hu-man conduct, is mainly a matter of imita-tion, punishment fairly may be expected to

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help to keep it out of fashion. The studyof criminals has been thought by some wellknown men of science to sustain the for-mer hypothesis. The statistics of the rela-tive increase of crime in crowded places likelarge cities, where example has the greatestchance to work, and in less populated parts,where the contagion spreads more slowly,have been used with great force in favor

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of the latter view. But there is weightyauthority for the belief that, however thismay be, ”not the nature of the crime, butthe dangerousness of the criminal, consti-tutes the only reasonable legal criterion toguide the inevitable social reaction againstthe criminal.”

The impediments to rational generaliza-tion, which I illustrated from the law of

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larceny, are shown in the other branches of the law, as well as in that of crime. Takethe law of tort or civil liability for damagesapart from contract and the like. Is thereany general theory of such liability, or arethe cases in which it exists simply to be enu-merated, and to be explained each on itsspecial ground, as is easy to believe fromthe fact that the right of action for certain

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well known classes of wrongs like trespass orslander has its special history for each class?I think that the law regards the infliction of temporal damage by a responsible personas actionable, if under the circumstancesknown to him the danger of his act is mani-fest according to common experience, or ac-cording to his own experience if it is morethan common, except in cases where upon

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special grounds of policy the law refuses toprotect the plaintiff or grants a privilege tothe defendant. I think that commonly mal-ice, intent, and negligence mean only thatthe danger was manifest to a greater or lessdegree, under the circumstances known tothe actor, although in some cases of privi-lege malice may mean an actual malevolentmotive, and such a motive may take away a

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permission knowingly to inflict harm, whichotherwise would be granted on this or thatground of dominant public good. But whenI stated my view to a very eminent English judge the other day, he said, ”You are dis-cussing what the law ought to be; as thelaw is, you must show a right. A man isnot liable for negligence unless he is subject to a duty.” If our difference was more

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than a difference in words, or with regardto the proportion between the exceptionsand the rule, then, in his opinion, liabilityfor an act cannot be referred to the mani-fest tendency of the act to cause temporaldamage in general as a sufficient explana-tion, but must be referred to the specialnature of the damage, or must be derivedfrom some special circumstances outside of

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the tendency of the act, for which no gener-alized explanation exists. I think that sucha view is wrong, but it is familiar, and Idare say generally is accepted in England.

Everywhere the basis of principle is tra-dition, to such an extent that we even are indanger of making the role of history moreimportant than it is. The other day Profes-sor Ames wrote a learned article to show,

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among other things, that the common lawdid not recognize the defence of fraud in ac-tions upon specialties, and the moral mightseem to be that the personal character of that defence is due to its equitable origin.But if, as I said, all contracts are formal, thedifference is not merely historical, but theo-retic, between defects of form which preventa contract from being made, and mistaken

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motives which manifestly could not be con-sidered in any system that we should callrational except against one who was privyto those motives. It is not confined to spe-cialties, but is of universal application. Iought to add that I do not suppose that Mr.Ames would disagree with what I suggest.

However, if we consider the law of con-tract, we find it full of history. The dis-

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tinctions between debt, covenant, and as-sumpsit are merely historical. The classifi-cation of certain obligations to pay money,imposed by the law irrespective of any bar-gain as quasi contracts, is merely historical.The doctrine of consideration is merely his-torical. The effect given to a seal is to be ex-plained by history alone. Consideration isa mere form. Is it a useful form? If so, why

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should it not be required in all contracts?A seal is a mere form, and is vanishing inthe scroll and in enactments that a consid-eration must be given, seal or no seal. Whyshould any merely historical distinction beallowed to affect the rights and obligationsof business men?

Since I wrote this discourse I have comeon a very good example of the way in which

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tradition not only overrides rational policy,but overrides it after first having been mis-understood and having been given a newand broader scope than it had when it hada meaning. It is the settled law of Eng-land that a material alteration of a writ-ten contract by a party avoids it as againsthim. The doctrine is contrary to the gen-eral tendency of the law. We do not tell

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a jury that if a man ever has lied in oneparticular he is to be presumed to lie inall. Even if a man has tried to defraud,it seems no sufficient reason for prevent-ing him from proving the truth. Objec-tions of like nature in general go to theweight, not to the admissibility, of evidence.Moreover, this rule is irrespective of fraud,and is not confined to evidence. It is not

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merely that you cannot use the writing, butthat the contract is at an end. What doesthis mean? The existence of a written con-tract depends on the fact that the offererand offeree have interchanged their writ-ten expressions, not on the continued exis-tence of those expressions. But in the caseof a bond, the primitive notion was differ-ent. The contract was inseparable from the

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parchment. If a stranger destroyed it, ortore off the seal, or altered it, the obligeecount 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 whichit bound him. About a hundred years agoLord Kenyon undertook to use his reasonon the tradition, as he sometimes did to

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the detriment of the law, and, not under-standing it, said he could see no reason whywhat was true of a bond should not be trueof other contracts. His decision happenedto be right, as it concerned a promissorynote, where again the common law regardedthe contract as inseparable from the paperon which it was written, but the reason-ing was general, and soon was extended to

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other written contracts, and various absurdand unreal grounds of policy were inventedto account for the enlarged rule.

I trust that no one will understand meto be speaking with disrespect of the law,because I criticise it so freely. I veneratethe law, and especially our system of law,as one of the vastest products of the hu-man mind. No one knows better than I do

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the countless number of great intellects thathave spent themselves in making some addi-tion or improvement, the greatest of whichis trifling when compared with the mightywhole. It has the final title to respect thatit exists, that it is not a Hegelian dream,but a part of the lives of men. But one maycriticise even what one reveres. Law is thebusiness to which my life is devoted, and I

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should show less than devotion if I did notdo what in me lies to improve it, and, whenI perceive what seems to me the ideal of itsfuture, if I hesitated to point it out and topress toward it with all my heart.

Perhaps I have said enough to show thepart which the study of history necessarilyplays in the intelligent study of the law asit is today. In the teaching of this school

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and at Cambridge it is in no danger of be-ing undervalued. Mr. Bigelow here and Mr.Ames and Mr. Thayer there have made im-portant contributions which will not be for-gotten, and in England the recent historyof early English law by Sir Frederick Pol-lock and Mr. Maitland has lent the subjectan almost deceptive charm. We must be-ware of the pitfall of antiquarianism, and

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must remember that for our purposes ouronly interest in the past is for the light itthrows upon the present. I look forwardto a time when the part played by historyin the explanation of dogma shall be verysmall, and instead of ingenious research weshall spend our energy on a study of theends sought to be attained and the reasonsfor desiring them. As a step toward that

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ideal it seems to me that every lawyer oughtto seek an understanding of economics. Thepresent divorce between the schools of po-litical economy and law seems to me an ev-idence of how much progress in philosoph-ical study still remains to be made. In thepresent state of political economy, indeed,we come again upon history on a largerscale, but there we are called on to con-

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mental conceptions. One mark of a greatlawyer is that he sees the application of the broadest rules. There is a story of aVermont justice of the peace before whoma suit was brought by one farmer againstanother for breaking a churn. The justicetook time to consider, and then said that hehas looked through the statutes and couldfind nothing about churns, and gave judg-

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ment for the defendant. The same state of mind is shown in all our common digestsand textbooks. Applications of rudimen-tary rules of contract or tort are tuckedaway under the head of Railroads or Tele-graphs or go to swell treatises on histori-cal subdivisions, such as Shipping or Eq-uity, or are gathered under an arbitrary ti-tle which is thought likely to appeal to the

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practical mind, such as Mercantile Law. If a man goes into law it pays to be a masterof it, and to be a master of it means to lookstraight through all the dramatic incidentsand to discern the true basis for prophecy.Therefore, it is well to have an accurate no-tion of what you mean by law, by a right,by a duty, by malice, intent, and negligence,by ownership, by possession, and so forth.

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I have in my mind cases in which the high-est courts seem to me to have flounderedbecause they had no clear ideas on some of these themes. I have illustrated their im-portance already. If a further illustrationis wished, it may be found by reading theAppendix to Sir James Stephen’s CriminalLaw on the subject of possession, and thenturning to Pollock and Wright’s enlightened

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book. Sir James Stephen is not the onlywriter whose attempts to analyze legal ideashave been confused by striving for a uselessquintessence of all systems, instead of anaccurate anatomy of one. The trouble withAustin was that he did not know enoughEnglish law. But still it is a practical ad-vantage to master Austin, and his predeces-sors, Hobbes and Bentham, and his worthy

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successors, Holland and Pollock. Sir Fred-erick Pollock’s recent little book is touchedwith the felicity which marks all his works,and is wholly free from the perverting in-fluence of Roman models.

The advice of the elders to young men isvery apt to be as unreal as a list of the hun-dred best books. At least in my day I hadmy share of such counsels, and high among

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the unrealities I place the recommendationto study the Roman law. I assume that suchadvice means more than collecting a fewLatin maxims with which to ornament thediscourse–the purpose for which Lord Cokerecommended Bracton. If that is all that iswanted, the title De Regulis Juris Antiquican be read in an hour. I assume that, if it is well to study the Roman Law, it is

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well to study it as a working system. Thatmeans mastering a set of technicalities moredifficult and less understood than our own,and studying another course of history bywhich even more than our own the Romanlaw must explained. If any one doubts me,let him read Keller’s Der Romische CivilProcess und die Actionen, a treatise on thepraetor’s edict, Muirhead’s most interesting

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Historical Introduction to the Private Lawof Rome, and, to give him the best chance,Sohn’s admirable Institutes. No. The wayto gain a liberal view of your subject is notto read something else, but to get to thebottom of the subject itself. The means of doing that are, in the first place, to followthe existing body of dogma into its high-est generalizations by the help of jurispru-

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dence; next, to discover from history how ithas come to be what it is; and finally, so faras you can, to consider the ends which theseveral rules seek to accomplish, the reasonswhy those ends are desired, what is given upto gain them, and whether they are worththe price.

We have too little theory in the law ratherthan too much, especially on this final branch

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of study. When I was speaking of history,I mentioned larceny as an example to showhow the law suffered from not having em-bodied in a clear form a rule which willaccomplish its manifest purpose. In thatcase the trouble was due to the survival of forms coming from a time when a more lim-ited purpose was entertained. Let me nowgive an example to show the practical im-

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portance, for the decision of actual cases,of understanding the reasons of the law, bytaking an example from rules which, so faras I know, never have been explained or the-orized about in any adequate way. I referto statutes of limitation and the law of pre-scription. The end of such rules is obvious,but what is the justification for deprivinga man of his rights, a pure evil as far as it

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goes, in consequence of the lapse of time?Sometimes the loss of evidence is referredto, but that is a secondary matter. Some-times the desirability of peace, but why ispeace more desirable after twenty years thanbefore? It is increasingly likely to comewithout the aid of legislation. Sometimes itis said that, if a man neglects to enforce hisrights, he cannot complain if, after a while,

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the law follows his example. Now if thisis all that can be said about it, you prob-ably will decide a case I am going to put,for the plaintiff; if you take the view whichI shall suggest, you possibly will decide itfor the defendant. A man is sued for tres-pass upon land, and justifies under a rightof way. He proves that he has used the wayopenly and adversely for twenty years, but

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it turns out that the plaintiff had granteda license to a person whom he reasonablysupposed to be the defendant’s agent, al-though not so in fact, and therefore had as-sumed that the use of the way was permis-sive, 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 ne-glect of the landowner in the ordinary sense,

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as seems commonly to be supposed, therehas been no such neglect, and the right of way has not been acquired. But if I werethe defendant’s counsel, I should suggestthat the foundation of the acquisition of rights by lapse of time is to be looked for inthe position of the person who gains them,not in that of the loser. Sir Henry Mainehas made it fashionable to connect the ar-

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chaic notion of property with prescription.But the connection is further back than thefirst recorded history. It is in the natureof man’s mind. A thing which you haveenjoyed and used as your own for a longtime, whether property or an opinion, takesroot in your being and cannot be torn awaywithout your resenting the act and tryingto defend yourself, however you came by it.

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The law can ask no better justification thanthe deepest instincts of man. It is only byway of reply to the suggestion that you aredisappointing the former owner, that yourefer to his neglect having allowed the grad-ual dissociation between himself and whathe claims, and the gradual association of itwith another. If he knows that another isdoing acts which on their face show that he

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is on the way toward establishing such anassociation, I should argue that in justice tothat other he was bound at his peril to findout whether the other was acting under hispermission, to see that he was warned, and,if necessary, stopped.

I have been speaking about the studyof the law, and I have said next to noth-ing about what commonly is talked about

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in that connection–textbooks and the casesystem, and all the machinery with whicha student comes most immediately in con-tact. Nor shall I say anything about them.Theory is my subject, not practical details.The modes of teaching have been improvedsince my time, no doubt, but ability andindustry will master the raw material withany mode. Theory is the most important

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part of the dogma of the law, as the archi-tect is the most important man who takespart in the building of a house. The mostimportant improvements of the last twenty-five years are improvements in theory. It isnot to be feared as unpractical, for, to thecompetent, it simply means going to thebottom of the subject. For the incompe-tent, it sometimes is true, as has been said,

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that an interest in general ideas means anabsence of particular knowledge. I remem-ber in army days reading of a youth who,being examined for the lowest grade and be-ing asked a question about squadron drill,answered that he never had considered theevolutions of less than ten thousand men.But the weak and foolish must be left totheir folly. The danger is that the able and

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practical minded should look with indiffer-ence or distrust upon ideas the connectionof which with their business is remote. Iheard a story, the other day, of a man whohad a valet to whom he paid high wages,subject to deduction for faults. One of hisdeductions was, ”For lack of imagination,five dollars.” The lack is not confined tovalets. The object of ambition, power, gen-

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erally presents itself nowadays in the formof money alone. Money is the most imme-diate form, and is a proper object of desire.”The fortune,” said Rachel, ”is the mea-sure of intelligence.” That is a good textto waken people out of a fool’s paradise.But, as Hegel says, ”It is in the end notthe appetite, but the opinion, which hasto be satisfied.” To an imagination of any

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scope the most far-reaching form of poweris not money, it is the command of ideas. If you want great examples, read Mr. LeslieStephen’s History of English Thought in theEighteenth Century, and see how a hundredyears after his death the abstract specula-tions of Descartes had become a practicalforce controlling the conduct of men. Readthe works of the great German jurists, and

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see how much more the world is governedtoday by Kant than by Bonaparte. We can-not all be Descartes or Kant, but we allwant happiness. And happiness, I am surefrom having known many successful men,cannot be won simply by being counsel forgreat corporations and having an income of fifty thousand dollars. An intellect greatenough to win the prize needs other food

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besides success. The remoter and more gen-eral aspects of the law are those which giveit universal interest. It is through them thatyou not only become a great master in yourcalling, but connect your subject with theuniverse and catch an echo of the infinite, aglimpse of its unfathomable process, a hintof the universal law.

oliver wendell holmes-the path of the law mobile

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