He says “poor Wendell” and “poor William” have chosen success—hum . . . it is not always disgraceful to succeed. I never knew anyone to elect against it for the sake of avoiding it—but I think I may say that since I chose the law, or rather was kicked into it by my father, I never have sacrificed an internal demand for an external end, and when the occasion seemed to require it have chosen what seemed to bar success.43
Success to Holmes above all meant accomplishing something original and of intellectual merit. By the time he finished his work on Kent in 1874, he still had seven years left to achieve that goal, before his self-imposed deadline of age forty.
“DECIDING TO GIVE Lowell Lectures on the Common Law, a matter which the weight of a hair decided, changed the whole course of my life,” Holmes recalled when he had been on the Supreme Court for a decade.44
He had been working on some of the key themes ever since his research for Kent had left him dissatisfied with “what sounded so arbitrary” in Blackstone and other leading authorities.45 In a series of articles for the American Law Review in the late 1870s Holmes began to work out the basic ideas. The task was immense, but it was where his heart lay, he told his English legal colleague James Bryce in the summer of 1879:
I wish that the necessity of making a living didn’t preclude any choice on my part—for I hate business and dislike practice apart from arguing cases. . . . As it is I console myself by studying towards a vanishing point which is the center of perspective in my landscape . . . but that has to be done at night for the most part and is very wearing. My articles though fragmentary in form and accidental in order are part of what lies as a whole in my mind—my scheme being to analyze what seem to me the fundamental notions & principles of our substantive law, putting them in an order which itself is a part of or results from the fundamental conceptions.46
His aim was nothing less than to try to make sense of the entire body of common law. An invitation in 1880 to deliver a series of twelve public lectures to the Lowell Institute that winter spurred him to complete the job in earnest.
The common law in America traces its origins to the Middle Ages in England, particularly the century following the Norman invasion in 1066. The Normans brought with them a body of customary law that, under Henry II, was extended across England by judges of the King’s Bench who traveled on circuit to hold court: the new law was “common” in the sense that it was presumed to apply throughout the realm, superseding or at least supplementing a hodgepodge of local customs.
Its key feature was that, unlike the Roman civil law that was becoming the foundation of the legal systems on the Continent at the same period, the English common law was not a written code of rules but rather rested upon a set of procedures and actions for redress of wrongs. The common law left it to judges, through their decisions in individual cases, to declare what the law was, and as early as the twelfth century the emerging class of legal professionals in England began preparing and circulating written digests of cases that judges and barristers could consult to see how courts had ruled in previous cases that raised similar questions to a matter at hand. The system was flexible and conservative at once: reliance on precedent helped to create uniformity in the administration of justice and avoid abrupt change, while also allowing cumulative growth and movement in new directions to deal with new situations over time.
Holmes’s famous dictum that the “common law is not a brooding omnipresence in the sky” was an allusion to the quasi-mystical reverence for the common law as a kind of Platonic ideal that, however, had come to be the accepted view by the nineteenth century. The approach taken by Blackstone and Kent reinforced the idea that judges merely “discovered” what was already existing in the law; they reached their decision in any particular case by deducing logical conclusions that flowed ineluctably from the law’s fundamental postulates.47 Legal scholars such as Holmes’s law school colleague Christopher Columbus Langdell—who pioneered the case study method of teaching the law, having students learn its principles by examining specific cases rather than memorizing rules and formulas—saw their role primarily as elucidating that ideal preexisting order in the received corpus of the law.
Langdell thought his approach “scientific.” But if so, it was, as Louis Menand observed, a distinctly pre-Darwinian kind of science. In an unsigned review of Langdell’s casebook in the American Law Review, Holmes rather more contemptuously described Langdell as “the greatest living legal theologian,” more concerned with reaffirming the law’s elegant consistency than questioning its reasoning.48
Holmes set out to study the history of the law for the same reason Darwin studied fossils: to elucidate the actual purpose and functions underlying its accumulated appendages and outer forms. The first hundred pages of his “Black Book” were filled with his notes for the project, written in precise script often as tiny as a sixty-fourth of an inch high, covering an enormous range of sources, going back to ancient Rome and the Germanic tribes.
His research spanned the gamut of the law: liability, crime, contracts, property, wills, bailments. His important discoveries emerged in three key themes that he emphasized throughout his lectures. All were strikingly original, as well as a radical assault on legal tradition.
First was that the law changed—but did so in a way that tended to hide the fact, by continually inventing new explanations for old rules that survive long after their original justifications have been forgotten.
Second was that common law judges did not just make law, they made policy: acknowledged or not, they fashioned solutions that addressed actual problems and needs of society.
And last, and in a way most shocking to conventional sensibilities, the law as it actually was applied had little concern with moral culpability: in all branches of the law, there had been an evolution away from trying to determine whether a man had acted with evil intent, substituting rules based on external standards of conduct that reflected social needs and norms of behavior.
Holmes’s exposition of how old forms and rules in the law were put to new uses bore more than a passing similarity to biological evolution. Although Holmes did not read Darwin until 1907, Darwin’s Origin of Species had been published while Holmes was in college, and its ideas, as he told Morris Cohen, were “in the air.” He would later say that that no writer of English “has done so much to affect our whole way of thinking about the universe” as Charles Darwin.49
A page of notes for The Common Law
The law, Holmes observed, above all adapted to its surrounding environment, just as Darwin saw biological species did. Property law of the twelfth century, for example, was almost entirely concerned with land tenure and inheritance. But English law courts in the ensuing centuries evolved an entire body of commercial law to cope with the emerging money economy, fashioning new rules for contracts, partnerships, buying and selling, payment of debt, stocks, insurance, and all the other appurtenances of modern business life.
As Holmes explained in the famous lines with which he began his first lecture, the law has always kept pace with the “felt necessities of the time”; more than that, it mirrors the prevailing zeitgeist as a whole, reflecting “prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men.”50
The effect of applying new reasoning to old precedents, however, was often to hide this reality of the law as a living, evolving organism. The entire process was unseen, even unconscious to judges themselves as they worked its gradual evolution over time:
The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient, but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past. . . . It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off.51
That meant, for one t
hing, that any search for coherence and logical consistency in the law was bound to be futile. Exposing the forces that shaped the law over time would not only clarify its true purpose, but also open the way to a rational reevaluation of rules that heretofore had been taken on faith:
When we find that in large and important branches of the law the various grounds of policy on which the various rules have been justified are later inventions to account for what are in fact survivals from more primitive times, we have a right to reconsider the popular reasons, and . . . to decide anew whether those reasons are satisfactory. They may be notwithstanding the manner of their appearance. If truth were not often suggested by error, if old implements could not be adjusted to new uses, human progress would be slow. But scrutiny and revision are justified.52
A prime example Holmes gave was the rule in admiralty law that a ship involved in a collision can be seized and detained, and later sold to pay for the damages if at fault. That, Holmes noted, is justified by good sense: a foreign owner is usually beyond the reach of the court, thus “the ship is the only security available” to insure that an injured party is compensated.
But that was not where the rule had come from, he found in delving into its history: its origin, in fact, lay in an ancient legal formula that held even inanimate objects as legitimate targets of retribution. In Edward I’s time, if a man fell from a tree and was killed, the tree itself was forfeited to the dead man’s kin, or chopped to pieces as a token of vengeance. Everywhere else in the law the notion had sensibly died away, as recompense took the place of vengeance. “No one would think of claiming a right to seize the horse and wagon” of a livery stable whose customer had run over a man in the street, Holmes noted. The survival of the old formula in admiralty law was apparent in the formality, still followed to this day, of naming not the ship’s owner or crew as the defendant but the ship itself, for an offense “committed by the vessel.” Yet the real justification for retaining this archaic formula was an entirely new one, adopted for sound reasons of current policy needs.53
A point Holmes recurred to was that many of the new rules that had evolved reflected efforts by courts to work out a balance between competing interests in society and establish standards of conduct so as to avoid conflict. That meant the law was as much about setting policy as doing justice in individual cases: “In substance the growth of the law is legislative,” he insisted.54 To American legal theorists, that was an especially heretical idea. They had been adamant that judges were not “legislators”: that was a power reserved to the democratic will of the people, expressed through their elected representatives.
Holmes’s most telling counterexample came from tort law, the body of law that provides redress for injuries. The traditional legal authorities had deduced in liability law a morass of confusing “duties” owed to others: landowners to trespassers, innkeepers to customers, railroads to passengers, owners of straying cattle to neighbors. Holmes’s key insight was that a better way to get at the underlying purpose of the law was to begin by asking under what circumstances the law actually held a man to account.
In all cases, Holmes found, the law adjusted fault not to the gravity of the injury done or the intent to injure another person, but to other considerations that reflected a balancing of competing social needs. It is important not to encourage people to act recklessly; it is also important not to make it impossible to carry on normal and useful business by assigning fault every time someone is hurt. Examined in this light, Holmes concluded that in “a pretty sensible way,” the law weighed the probabilities of harm under different situations based on actual experience, and held people to account when they failed to act as a prudent member of society would be expected to. The law, in other words, set standards based on accepted social norms and real-world knowledge of what activities are particularly dangerous and what safeguards are reasonable to demand.55
For actions that are inherently dangerous—pulling the trigger on a pistol in a crowded street without checking first to see if it is loaded, constructing a reservoir that can flood neighboring land if it gives way—the law tends to apply a standard of absolute or strict liability: a man proceeds at his own peril, and is fully responsible for any injury that results, foreseen or not, intended or not. Actions that serve an important social end, by contrast, are sometimes shielded from liability even when they are almost certain to cause direct and undeniable harm at times. The law of slander even traditionally protected an employer who unintentionally makes false and damaging statements in providing a reference for a servant. That was a striking exception to the usual rule that innocent intentions are no excuse when it comes to harming another person’s reputation. But in this instance, Holmes noted, “the law considered the damage to the plaintiff of less importance than the benefit of free speaking.”56
Most tort cases, though, fall in a middle ground, where liability is tied to negligence. But even there, Holmes emphasized, “negligence” is not a statement of moral failing (“guilty neglect”), but rather a proxy for a generally agreed rule of conduct: in practice, it means a failure to take the normal precautions or care that is generally expected in the usual course of life.
That was a pattern he called attention to throughout the law: although the law “abounds in moral phraseology,” with terms like wrong, malice, fraud, intent, obligation, and duty, those words had lost their original moral meaning as they were actually applied by the courts. Malice, for example, did not in practice mean evil intent, but rather reckless disregard for certain agreed standards of behavior. The law, Holmes concluded, “is continually transmuting those moral standards into external or objective ones, from which the actual guilt of the party concerned is wholly eliminated.”57
Holmes’s great clarifying contribution to liability law and negligence was the concept of the “reasonable man.” Holmes did not invent the term, but his writings and many subsequent decisions on the Massachusetts high court were greatly influential in securing its place in both American and English common law. The standard instruction to juries in injury cases is a direct legacy of these ideas: juries are told to consider how the defendant’s actions compare to what a reasonable person would have done in similar circumstances—and not what the defendant intended, or what his personal motivations were.
As Holmes explained it, the “reasonable man” by its very nature embodied a community standard that ignored individual variations in blameworthiness or culpability in determining when a person should be held accountable for an injury that arises from his actions. “When men live in society, a certain average of conduct, a sacrifice of individual peculiarities going beyond a certain point, is necessary to the general welfare,” Holmes stated in his third lecture, devoted to trespass and negligence. A man, after all, might be born awkward or accident-prone, and “no doubt his congenital defects will be allowed for in the courts of Heaven,” Holmes noted, “but his slips are no less troublesome to his neighbors than if they sprang from guilty neglect. His neighbors accordingly require him, at his proper peril, to come up to their standard, and the courts which they establish decline to take his personal equation into account.”58
Huntington Hall
It was another way of saying that assigning risk is always going to be a judgment call, but that practical experience was the best guide to making that judgment. And the less it was couched in the moral language of individual guilt and more in the express acknowledgment that it was about necessary social norms, the more consistent and purposeful the result was likely to be. “Experience is the test by which it is decided whether the degree of danger attending given conduct under certain known circumstances is sufficient to throw the risk upon the party pursuing it,” Holmes concluded.59
He began the lecture series the night of November 23, 1880. The site was Huntington Hall at MIT, a large semicircular lecture room that the Lowell Institute had chosen just the year before as its new venue—relocating from a slightly seedy chapel in downtown Boston just a half bl
ock from Holmes’s boyhood home on Montgomery Place, but now hemmed in by music halls and hotels that the institute’s trustees thought cast a “commercial” air inappropriate to the intellectual tone they were hoping to maintain. The Boston Daily Advertiser reported that the hall for Holmes’s first talk was nearly full, and in contrast to the usual audience for the Lowell Institute lectures, it was made up mostly of young men. But Dr. Holmes was also there; as was Horace Gray, the chief justice of Massachusetts and half-brother of Holmes’s good friend John Chipman Gray; and also the president of the Massachusetts Senate, and other important state officials and lawyers. “Mr. Holmes proved a ready, interesting lecturer, speaking well without being confined to his notes,” the paper reported.60
He continued for six weeks, Tuesdays and Fridays, concluding the series on December 31. Still feeling “superstitious enough” to want his magnum opus published before he turned forty, Holmes hurried to get the text ready for the printer. For the rest of his life he kept in his desk drawer a champagne cork on which he had inscribed: First copy of book, March 3, 1881. He had opened the bottle of champagne at Mattapoisett to celebrate. It was five days before his fortieth birthday.61
The reviews were largely favorable; a few criticized it for obscurity, but Pollock wrote a glowing notice in The Saturday Review, praising its originality and holding it up as proof that English lawyers were “being outrun by their American brethren in the scientific and historical criticism of English legal institutions and ideas.”62
Holmes later conceded some of the criticism, but defended the book’s faults as the price of originality. “Obscurity has been my trouble,” he admitted to Mrs. Curtis in 1908. But, he added, “Obscurity sometimes means, with me as with others, that one still is out on the fighting line of thought. It is only when the battle is over that one can arrange one’s forces. When a thought has become commonplace to you, you can state it clearly. For that I take no shame.”63
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