OW Holmes, Jr. (II)
Prof. Bill Long 10/13/05
"The Path of the Law" Continued
Before leaving his first principle of the law, that law and morality are to be separate, Holmes can't resist mentioning his view of contract law, which view actually is important in shaping modern contract law. Morals deal with a state of a person's mind, what that person actually intends. The history of contract law picked up on this notion and suggested that a contract was therefore what two parties intended. There had to be a "meeting of the minds" of the parties. If there was no "meeting of the minds," no contract took place (463). But Holmes will have none of it. Courts will often imply a term in a contract, such as a reasonable time for holding a lecture (464), which was what neither party intended. Yet you have a contract. This leads him to his conclusion that the fundamental nature of agreement "depends not on the agreement of two minds in one intention, but on the agreement--of two sets of external signs,--not on the parties' having meant the same thing but on their having said the same thing" (464). Contracts are to be interpreted by the language and not the "inner state" of the person signing it. He concludes his treatment of the difference between law and morality as follows:
"For my own part, I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law. We should lose the fossil records of a good deal of history and the majesty got from ethical associations, but by ridding ourselves of an unnecessary confusion we should gain very much in the clearness of our thought" (464).
Law and Logic
Holmes now realizes he is wandering pretty far afield, and so he rushes on to his second principle of law. What, he asks, are the forces contributing to law's content and growth? (464-65). "In every system there are such explanations and principles to be found" but he wants to know the relationship of law and logic. He states his principle: "The fallacy to which I refer is the notion that the only force at work in the development of the law is logic" (465). Though this is true in the broadest sense, that isn't his concern.
"The danger of which I speak is not the admission that the principles governing other phenomena also govern the law, but the notion that a given system, ours, for instance, can be worked out like mathematics from some general axioms of conduct. This is a natural error of the schools, but it is not confined to them" (465).
Again, let's pause for a moment. He is not objecting to the role that logic plays in law; he is simply trying to argue that you can't infer the development of law from what you already have. Who maintained that you could? This is the caricature of Langdell that the later generations adopted. I don't know, in fact, if this is actually what Langdell would have maintained, that the future of law, as it were, can be logically inferred from the current condition of law. But most think that this is what Langdell maintained. Holmes will have none of this, and so he will be breaking from Langdell here. You have to look beyond the logical form of law to a "judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding" (466).
Social Advantage and the Law
Holmes continues on the point. "We do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind" (466). Thus, what changes law is not logic but the mysterious forces at work in life. And, not only does law change because of these mysterious forces. The current shape of law is to be explained more from its coherence with first principles than any concept of "logic." For example, "Why is a man at liberty to set up a business which he knows will ruin his neighbor?" (466). This has nothing to do with logic and everything to do with the fact that "the public good is supposed to be best subserved by free competition" (466).
And, in an issue that was a burning issue at the time Holmes was writing (whether there should be workers compensation statutes), he asked "Why does a judge instruct a jury that an employer is not liable to an employee for an injury received in the course of his employment unless he is negligent, and why do the jury generally find for the plaintiff if the case is allowed to go to them?" It is because the traditional policy of law is to confine liabililty but the inclinations of a very large part of the community "is to make certain classes of persons insure the safety of those with whom they deal" (466). That is, there was (in 1897) sort of a raging public debate on the issue of employer liability for a worker injury in the course of work. Should a negligence of employer standard be imported? That was the traditional approach. But juries, perhaps being acquainted with the ravages of industrial America and the difficulty of being able to "prove" negligence of employers (sometimes accidents just seem to happen), were more willing to hold for employees even if negligence could not be proved. Would logic help us determine which way the law was going to go on the issue of worker's compensation? Of course not (at least that is what Holmes argues).
"There is a concealed, half conscioius battle on the question of legislative policy, and if any one thinks that it can be settled deductively, or once for all, I only can say that I think he is theoretically wrong, and that I am certain that his conclusion will not be accepted in practice semper ubique et ab omnibus" (467--quoting a church historian regarding the spread of church doctrine).
Then, still on the same point, Holmes digresses and speaks about the way that society has changed and how judges and lawyers ought to pay attention to issues of "social advantage" in looking at cases. In the old days torts were mostly "isolated, ungeneralized wrongs, assaults..." (467) while today the courts are kept busy, in torts cases, mainly with "the incidents of certain well known businesses," such as railroads, factories and the like. The real legal question is how far "it is desirable that the public should insure the safety of those whose work it uses" (467). It is a weighing process that has more to do with "considerations of social advantage," as Holmes calls it (467) than any reference to logic or inference from the way law is understood today.
Holmes doesn't want us to miss the point. The duty of weighing social advantage is so important and is inevitable. "The result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious" (467). Indeed, one of the reasons for the growth of socialism is that the socialists are willing to take on these questions that the legal establishment avoids. He concludes his point:
"I cannot but believe that if the training of lawyers led them habitually to consider more definitely and explicitly the social advantage on which the rule they lay down must be justified, they sometimes would hesitate now where they are confident, and see that really they were taking sides upon debateable and often burning questions" (468).
The Rest of the Story
Holmes could have stopped here, midway through his speech, and he would have provided enough fodder for everyone to speak of for quite some time. However, he plunges on. He will move to "the present condition of the law as a subject for study, and the ideal toward which it tends" (468). He will consider the importance of history for the study of law on pages 468-70--it is important "because without it we cannot know the precise scope of rules which it is our business to know" (469)-- and focuses on the development of larceny and embezzlement at common law. His point, of course, is that history explains things that legal principles could never do. A study of history helps remove the "impediments to rational generalization" (471). Though history is important, it should not be overemphasized. We study it to get our bearings, so to speak, to be able to predict where law should go in the future. But ultimately the role of history is not so important as the role of economics in law (474). We need to study history now just to remove all the confusion in the law, but the person of the future is the person of economics. And, he closes the essay by urging the study of jurisprudence (the application of the broadest rules to a situation--474-478).
This last paragraph is an inadequate summary of the second half of the article, but it will have to suffice for now. "The Path of the Law' is truly a breathtaking piece.
Copyright © 2004-2007 William R. Long