When
we study law we are not studying a mystery but a well-known
profession. We are studying what we shall want in order to
appear before judges, or to advise people in such a way as to keep
them out of court. The reason why it is a profession, why
people will pay lawyers to argue for them or to advise them, is
that in societies like ours the command of the public force is
intrusted to the judges in certain cases, and the whole power of
the state will be put forth, if necessary, to carry out their
judgments and decrees. People want to know under what
circumstances and how far they will run the risk of coming against
what is so much stronger than themselves, and hence it becomes a
business to find out when this danger is to be feared. The
object of our study, then, is prediction, the prediction of the
incidence of the public force through the instrumentality of the
courts.
The
means of the study are a body of reports, of treatises, and of
statutes, in this country and in England, extending back for six
hundred years, and now increasing annually by hundreds. In
these sibylline leaves are gathered the scattered prophecies of the
past upon the cases in which the axe will fall. These are
what properly have been called the oracles of the law. Far
the most important and pretty nearly the whole meaning of every new
effort of legal thought is to make these prophecies more precise,
and to generalize them into a thoroughly connected system.
The process is one, from a lawyer's statement of a case,
eliminating as it does all the dramatic elements with which his
client's story has clothed it, and retaining only the facts of
legal import, up to the final analyses and abstract universals of
theoretic jurisprudence. The reason why a lawyer does not
mention that his client wore a white hat when he made a contract,
while Mrs. Quickly would be sure to dwell upon it along with the
parcel gilt goblet and the sea-coal fire, is that he foresees that
the public force will act in the same way whatever his client had
upon his head. It is to make the prophecies easier to be
remembered and to be understood that the teachings of the decisions
of the past are put into general propositions and gathered into
textbooks, or that statutes are passed in a general form. The
primary rights and duties with which jurisprudence busies itself
again are nothing but prophecies. One of the many evil
effects of the confusion between legal and moral ideas, about which
I shall have something to say in a moment, is that theory is apt to
get the cart before the horse, and consider the right or the duty
as something existing apart from and independent of the
consequences of its breach, to which certain sanctions are added
afterward. But, as I shall try to show, a legal duty so
called is nothing but a prediction that if a man does or omits
certain things he will be made to suffer in this or that way by
judgment of the court; and so of a legal right.
The
number of our predictions when generalized and reduced to a system
is not unmanageably large. They present themselves as a
finite body of dogma which may be mastered within a reasonable
time. It is a great mistake to be frightened by the
ever-increasing number of reports. The reports of a given
jurisdiction in the course of a generation take up pretty much the
whole body of the law, and restate it from the present point of
view. We could reconstruct the corpus from them if all that
went before were burned. The use of the earlier reports is
mainly historical, a use about which I shall have something to say
before I have finished.
I
wish, if I can, to lay down some first principles for the study of
this body of dogma or systematized prediction which we call the
law, for men who want to use it as the instrument of their business
to enable them to prophesy in their turn, and, as bearing upon the
study, I wish to point out an ideal which as yet our law has not
attained.
The
first thing for a businesslike understanding of the matter is to
understand its limits, and therefore I think it desirable at once
to point out and dispel a confusion between morality and law, which
sometimes rises to the height of conscious theory, and more often
and indeed constantly is making trouble in detail without reaching
the point of consciousness. You can see very plainly that a
bad man has as much reason as a good one for wishing to avoid an
encounter with the public force, and therefore you can see the
practical importance of the distinction between morality and
law. A man who cares nothing for an ethical rule which is
believed and practised by his neighbors is likely nevertheless to
care a good deal to avoid being made to pay money, and will want to
keep out of jail if he can.
I
take it for granted that no hearer of mine will misinterpret what I
have to say as the language of cynicism. The law is the
witness and external deposit of our moral life. Its history
is the history of the moral development of the race. The
practice of it, in spite of popular jests, tends to make good
citizens and good men. When I emphasize the difference
between law and morals I do so with reference to a single end, that
of learning and understanding the law. For that purpose you
must definitely master its specific marks, and it is for that that
I ask you for the moment to imagine yourselves indifferent to other
and greater things.
I do
not say that there is not a wider point of view from which the
distinction between law and morals becomes of secondary or no
importance, as all mathematical distinctions vanish in presence of
the infinite. But I do say that that distinction is of the
first importance for the object which we are here to consider--a
right study and mastery of the law as a business with well
understood limits, a body of dogma enclosed within definite
lines. I have just shown the practical reason for saying
so. If you want to know the law and nothing else, you must
look at it as a bad man, who cares only for the material
consequences which such knowledge enables him to predict, not as a
good one, who finds his reasons for conduct, whether inside the law
or outside of it, in the vaguer sanctions of conscience. The
theoretical importance of the distinction is no less, if you would
reason on your subject aright. The law is full of phraseology drawn
from morals, and by the mere force of language continually invites
us to pass from one domain to the other without perceiving it, as
we are sure to do unless we have the boundary constantly before our
minds. The law talks about rights, and duties, and malice,
and intent, and negligence, and so forth, and nothing is easier,
or, I may say, more common in legal reasoning, than to take these
words in their moral sense, at some state of the argument, and so
to drop into fallacy. For instance, when we speak of the
rights of man in a moral sense, we mean to mark the limits of
interference with individual freedom which we think are prescribed
by conscience, or by our ideal, however reached. Yet it is
certain that many laws have been enforced in the past, and it is
likely that some are enforced now, which are condemned by the most
enlightened opinion of the time, or which at all events pass the
limit of interference, as many consciences would draw it.
Manifestly, therefore, nothing but confusion of thought can result
from assuming that the rights of man in a moral sense are equally
rights in the sense of the Constitution and the law. No doubt
simple and extreme cases can be put of imaginable laws which the
statute-making power would not dare to enact, even in the absence
of written constitutional prohibitions, because the community would
rise in rebellion and fight; and this gives some plausibility to
the proposition that the law, if not a part of morality, is limited
by it. But this limit of power is not coextensive with any
system of morals. For the most part it falls far within the
lines of any such system, and in some cases may extend beyond them,
for reasons drawn from the habits of a particular people at a
particular time. I once heard the late Professor Agassiz say
that a German population would rise if you added two cents to the
price of a glass of beer. A statute in such a case would be
empty words, not because it was wrong, but because it could not be
enforced. No one will deny that wrong statutes can be and are
enforced, and we would not all agree as to which were the wrong
ones.
The
confusion with which I am dealing besets confessedly legal
conceptions. Take the fundamental question, What constitutes
the law? You will find some text writers telling you that it is
something different from what is decided by the courts of
Massachusetts or England, that it is a system of reason, that it is
a deduction from principles of ethics or admitted axioms or what
not, which may or may not coincide with the decisions. But if
we take the view of our friend the bad man we shall find that he
does not care two straws for the axioms or deductions, but that he
does want to know what the Massachusetts or English courts are
likely to do in fact. I am much of this mind. The
prophecies of what the courts will do in fact, and nothing more
pretentious, are what I mean by the law.
Take
again a notion which as popularly understood is the widest
conception which the law contains--the notion of legal duty, to
which already I have referred. We fill the word with all the
content which we draw from morals. But what does it mean to a
bad man? Mainly, and in the first place, a prophecy that if
he does certain things he will be subjected to disagreeable
consequences by way of imprisonment or compulsory payment of
money. But from his point of view, what is the difference
between being fined and taxed a certain sum for doing a certain
thing? That his point of view is the test of legal principles
is proven by the many discussions which have arisen in the courts
on the very question whether a given statutory liability is a
penalty or a tax. On the answer to this question depends the
decision whether conduct is legally wrong or right, and also
whether a man is under compulsion or free. Leaving the
criminal law on one side, what is the difference between the
liability under the mill acts or statutes authorizing a taking by
eminent domain and the liability for what we call a wrongful
conversion of property where restoration is out of the
question. In both cases the party taking another man's
property has to pay its fair value as assessed by a jury, and no
more. What significance is there in calling one taking right
and another wrong from the point of view of the law? It does
not matter, so far as the given consequence, the compulsory
payment, is concerned, whether the act to which it is attached is
described in terms of praise or in terms of blame, or whether the
law purports to prohibit it or to allow it. If it matters at
all, still speaking from the bad man's point of view, it must be
because in one case and not in the other some further
disadvantages, or at least some further consequences, are attached
to the act by law. The only other disadvantages thus attached
to it which I ever have been able to think of are to be found in
two somewhat insignificant legal doctrines, both of which might be
abolished without much disturbance. One is, that a contract to do a
prohibited act is unlawful, and the other, that, if one of two or
more joint wrongdoers has to pay all the damages, he cannot recover
contribution from his fellows. And that I believe is
all. You see how the vague circumference of the notion of
duty shrinks and at the same time grows more precise when we wash
it with cynical acid and expel everything except the object of our
study, the operations of the law.
Nowhere is the confusion between
legal and moral ideas more manifest than in the law of
contract. Among other things, here again the so- called
primary rights and duties are invested with a mystic significance
beyond what can be assigned and explained. The duty to keep a
contract at common law means a prediction that you must pay damages
if you do not keep it--and nothing else. If you commit a
tort, you are liable to pay a compensatory sum. If you commit
a contract, you are liable to pay a compensatory sum unless the
promised event comes to pass, and that is all the difference.
But such a mode of looking at the matter stinks in the nostrils of
those who think it advantageous to get as much ethics into the law
as they can. It was good enough for Lord Coke, however, and
here, as in many others cases, I am content to abide with
him. In Bromage v. Genning, a prohibition was sought in
the Kings' Bench against a suit in the marches of Wales for the
specific performance of a covenant to grant a lease, and Coke said
that it would subvert the intention of the covenantor, since he
intends it to be at his election either to lose the damages or to
make the lease. Sergeant Harra for the plaintiff confessed
that he moved the matter against his conscience, and a prohibition
was granted. This goes further than we should go now, but it
shows what I venture to say has been the common law point of view
from the beginning, although Mr. Harriman, in his very able little
book upon Contracts 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 logical justification can be found for speaking of civil
liabilities as imposing duties in an intelligible sense.
These are the relatively few in which equity will grant an
injunction, and will enforce it by putting the defendant in prison
or otherwise punishing him unless he complies with the order of the
court. But I hardly think it advisable to shape general
theory from the exception, and I think it would be better to cease
troubling ourselves about primary rights and sanctions altogether,
than to describe our prophecies concerning the liabilities commonly
imposed by the law in those inappropriate terms.
I
mentioned, as other examples of the use by the law of words drawn
from morals, malice, intent, and negligence. It is enough to
take malice as it is used in the law of civil liability for wrongs
what we lawyers call the law of torts--to show that it means
something different in law from what it means in morals, and also
to show how the difference has been obscured by giving to
principles which have little or nothing to do with each other the
same name. Three hundred years ago a parson preached a sermon
and told a story out of Fox's Book of Martyrs of a man who had
assisted at the torture of one of the saints, and afterward died,
suffering compensatory inward torment. It happened that Fox
was wrong. The man was alive and chanced to hear the sermon, and
thereupon he sued the parson. Chief Justice Wray instructed
the jury that the defendant was not liable, because the story was
told innocently, without malice. He took malice in the moral sense,
as importing a malevolent motive. But nowadays no one doubts that a
man may be liable, without any malevolent motive at all, for false
statements manifestly calculated to inflict temporal damage.
In stating the case in pleading, we still should call the
defendant's conduct malicious; but, in my opinion at least, the
word means nothing about motives, or even about the defendant's
attitude toward the future, but only signifies that the tendency of
his conduct under known circumstances was very plainly to cause the
plaintiff temporal harm.
In
the law of contract the use of moral phraseology led to equal
confusion, as I have shown in part already, but only in part.
Morals deal with the actual internal state of the individual's
mind, what he actually intends. From the time of the Romans
down to now, this mode of dealing has affected the language of the
law as to contract, and the language used has reacted upon the
thought. We talk about a contract as a meeting of the minds
of the parties, and thence it is inferred in various cases that
there is no contract because their minds have not met; that is,
because they have intended different things or because one party
has not known of the assent of the other. Yet nothing is more
certain than that parties may be bound by a contract to things
which neither of them intended, and when one does not know of the
other's assent. Suppose a contract is executed in due form
and in writing to deliver a lecture, mentioning no time. One
of the parties thinks that the promise will be construed to mean at
once, within a week. The other thinks that it means when he
is ready. The court says that it means within a reasonable
time. The parties are bound by the contract as it is
interpreted by the court, yet neither of them meant what the court
declares that they have said. In my opinion no one will
understand the true theory of contract or be able even to discuss
some fundamental questions intelligently until he has understood
that all contracts are formal, that the making of a contract
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. Furthermore, as the signs may be addressed to one
sense or another--to sight or to hearing--on the nature of the sign
will depend the moment when the contract is made. If the sign
is tangible, for instance, a letter, the contract is made when the
letter of acceptance is delivered. If it is necessary that
the minds of the parties meet, there will be no contract until the
acceptance can be read; none, for example, if the acceptance be
snatched from the hand of the offerer by a third
person.
This
is not the time to work out a theory in detail, or to answer many
obvious doubts and questions which are suggested by these general
views. I know of none which are not easy to answer, but what I am
trying to do now is only by a series of hints to throw some light
on the narrow path of legal doctrine, and upon two pitfalls which,
as it seems to me, lie perilously near to it. Of the first of
these I have said enough. I hope that my illustrations have
shown the danger, both to speculation and to practice, of
confounding morality with law, and the trap which legal language
lays for us on that side of our way. 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.
So
much for the limits of the law. The next thing which I wish
to consider is what are the forces which determine its content and
its growth. You may assume, with Hobbes and Bentham and
Austin, that all law emanates from the sovereign, even when the
first human beings to enunciate it are the judges, or you may think
that law is the voice of the Zeitgeist, or what you like. It
is all one to my present purpose. Even if every decision required
the sanction of an emperor with despotic power and a whimsical turn
of mind, we should be interested none the less, still with a view
to prediction, in discovering some order, some rational
explanation, and some principle of growth for the rules which he
laid down. In every system there are such explanations and
principles to be found. It is with regard to them that a
second fallacy comes in, which I think it important to
expose.
The
fallacy to which I refer is the notion that the only force at work
in the development of the law is logic. In the broadest
sense, indeed, that notion would be true. The postulate on
which we think about the universe is that there is a fixed
quantitative relation between every phenomenon and its antecedents
and consequents. If there is such a thing as a phenomenon
without these fixed quantitative relations, it is a miracle.
It is outside the law of cause and effect, and as such transcends
our power of thought, or at least is something to or from which we
cannot reason. The condition of our thinking about the
universe is that it is capable of being thought about rationally,
or, in other words, that every part of it is effect and cause in
the same sense in which those parts are with which we are most
familiar. So in the broadest sense it is true that the law is
a logical development, like everything else. 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 the natural error of
the schools, but it is not confined to them. I once heard a
very eminent judge say that he never let a decision go until he was
absolutely sure that it was right. So judicial dissent often
is blamed, as if it meant simply that one side or the other were
not doing their sums right, and if they would take more trouble,
agreement inevitably would come.
This
mode of thinking is entirely natural. The training of lawyers
is a training in logic. The processes of analogy,
discrimination, and deduction are those in which they are most at
home. The language of judicial decision is mainly the
language of logic. And the logical method and form flatter
that longing for certainty and for repose which is in every human
mind. But certainty generally is illusion, and repose is not
the destiny of man. Behind the logical form lies 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. You can give any conclusion a logical form.
You always can imply a condition in a contract. But why do
you imply it? It is because of some belief as to the practice
of the community or of a class, or because of some opinion as to
policy, or, in short, because of some attitude of yours upon a
matter not capable of exact quantitative measurement, and therefore
not capable of founding exact logical conclusions. Such
matters really are battle grounds where the means do not exist for
the determinations that shall be good for all time, and where the
decision can do no more than embody the preference of a given body
in a given time and place. 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. No concrete proposition is self
evident, no matter how ready we may be to accept it, not even Mr.
Herbert Spencer's "Every man has a right to do what he wills,
provided he interferes not with a like right on the part of his
neighbors."
Why
is a false and injurious statement privileged, if it is made
honestly in giving information about a servant? It is because
it has been thought more important that information should be given
freely, than that a man should be protected from what under other
circumstances would be an actionable wrong. Why is a man at
liberty to set up a business which he knows will ruin his
neighborhood? It is because the public good is supposed to be
best subserved by free competition. Obviously such judgments of
relative importance may vary in different times and places.
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 our law is to confine liability to cases
where a prudent man might have foreseen the injury, or at least the
danger, while the inclination of a very large part of the community
is to make certain classes of persons insure the safety of those
with whom they deal. Since the last words were written, I
have seen the requirement of such insurance put forth as part of
the programme of one of the best known labor organizations.
There is a concealed, half conscious 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.
Indeed, I think that even now our
theory upon this matter is open to reconsideration, although I am
not prepared to say how I should decide if a reconsideration were
proposed. Our law of torts comes from the old days of
isolated, ungeneralized wrongs, assaults, slanders, and the like,
where the damages might be taken to lie where they fell by legal
judgment. But the torts with which our courts are kept busy
today are mainly the incidents of certain well known
businesses. They are injuries to person or property by
railroads, factories, and the like. The liability for them is
estimated, and sooner or later goes into the price paid by the
public. The public really pays the damages, and the question
of liability, if pressed far enough, is really a question how far
it is desirable that the public should insure the safety of one
whose work it uses. It might be said that in such cases the
chance of a jury finding for the defendant is merely a chance, once
in a while rather arbitrarily interrupting the regular course of
recovery, most likely in the case of an unusually conscientious
plaintiff, and therefore better done away with. On the other
hand, the economic value even of a life to the community can be
estimated, and no recovery, it may be said, ought to go beyond that
amount. It is conceivable that some day in certain cases we
may find ourselves imitating, on a higher plane, the tariff for
life and limb which we see in the Leges Barbarorum.
I
think that the judges themselves have failed adequately to
recognize their duty of weighing considerations of social
advantage. The duty is inevitable, and 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, as I have said. When
socialism first began to be talked about, the comfortable classes
of the community were a good deal frightened. I suspect that
this fear has influenced judicial action both here and in England,
yet it is certain that it is not a conscious factor in the
decisions to which I refer. I think that something similar
has led people who no longer hope to control the legislatures to
look to the courts as expounders of the constitutions, and that in
some courts new principles have been discovered outside the bodies
of those instruments, which may be generalized into acceptance of
the economic doctrines which prevailed about fifty years ago, and a
wholesale prohibition of what a tribunal of lawyers does not think
about right. 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 where now they are
confident, and see that really they were taking sides upon
debatable and often burning questions.
So
much for the fallacy of logical form. Now let us consider the
present condition of the law as a subject for study, and the ideal
toward which it tends. We still are far from the point of
view which I desire to see reached. No one has reached it or
can reach it as yet. We are only at the beginning of a
philosophical reaction, and of a reconsideration of the worth of
doctrines which for the most part still are taken for granted
without any deliberate, conscious, and systematic questioning of
their grounds. The development of our law has gone on for
nearly a thousand years, like the development of a plant, each
generation taking the inevitable next step, mind, like matter,
simply obeying a law of spontaneous growth. It is perfectly
natural and right that it should have been so. Imitation is a
necessity of human nature, as has been illustrated by a remarkable
French writer, M. Tard, in an admirable book, Les Lois de
l'Imitation. Most of the things we do, we do for no better
reason than that our fathers have done them or that our neighbors
do them, and the same is 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 for a better, but it is not the best.
It does not follow, because we all are compelled to take on faith
at second hand most of the rules on which we base our action and
our thought, that each of us may not try to set some corner of his
world in the order of reason, or that all of us collectively should
not aspire to carry reason as far as it will go throughout the
whole domain. In regard to the law, it is true, no doubt,
that an evolutionist will hesitate to affirm universal validity for
his social ideals, or for the principles which he thinks should be
embodied in legislation. He is content if he can prove them
best for here and now. He may be ready to admit that he knows
nothing about an absolute best in the cosmos, and even that he
knows next to nothing about a permanent best for men. Still
it is true that a body of law is more rational and more civilized
when every rule it contains is referred articulately and definitely
to an end which it subserves, and when the grounds for desiring
that end are stated or are ready to be stated in
words.
At
present, in very many cases, if we want to know why a rule of law
has taken its particular shape, and more or less if we want to know
why it exists at all, we go to tradition. We follow it into
the Year Books, and perhaps beyond them to the customs of the
Salian Franks, and somewhere in the past, in the German forests, in
the needs of Norman kings, in the assumptions of a dominant class,
in the absence of generalized ideas, we find out the practical
motive for what now best is justified by the mere fact of its
acceptance and that men are accustomed to it. The rational
study of law is still to a large extent the study of history.
History must be a part of the study, because without it we cannot
know the precise scope of rules which it is our business to know.
It is a part of the rational study, because it is the first step
toward an enlightened scepticism, that is, towards a deliberate
reconsideration of the worth of those rules. When you get the
dragon out of his cave on to the plain and in the daylight, you can
count his teeth and claws, and see just what is his strength.
But to get him out is only the first step. The next is either
to kill him, or to tame him and make him a useful animal. For
the rational study of the law the blackletter man may be the man of
the present, but the man of the future is the man of statistics and
the master of economics. It is revolting to have no better
reason for a rule of law than that so it was laid down in the time
of Henry IV. It is still more revolting if the grounds upon
which it was laid down have vanished long since, and the rule
simply persists from blind imitation of the past. I am
thinking of the technical rule as to trespass ab initio, as it is
called, which I attempted to explain in a recent Massachusetts
case.
Let
me take an illustration, which can be stated in a few words, to
show how the social end which is aimed at by a rule of law is
obscured and only partially attained in consequence of the fact
that the rule owes its form to a gradual historical development,
instead of being reshaped as a whole, with conscious articulate
reference to the end in view. We think it desirable to
prevent one man's property being misappropriated by another, and
so we make larceny a crime. The evil is the same whether the
misappropriation is made by a man into whose hands the owner has
put the property, or by one who wrongfully takes it away. But
primitive law in its weakness did not get much beyond an effort to
prevent violence, and very naturally made a wrongful taking, a
trespass, part of its definition of the crime. In modem times
the judges enlarged the definition a little by holding that, if the
wrong-doer gets possession by a trick or device, the crime is
committed. This really was giving up the requirement of
trespass, and it would have been more logical, as well as truer to
the present object of the law, to abandon the requirement
altogether. That, however, would have seemed too bold, and
was left to statute. Statutes were passed making embezzlement
a crime. But the force of tradition caused the crime of
embezzlement to be regarded as so far distinct from larceny that to
this day, in some jurisdictions at least, a slip corner is kept
open for thieves to contend, if indicted for larceny, that they
should have been indicted for embezzlement, and if indicted for
embezzlement, that they should have been indicted for larceny, and
to escape on that ground.
Far
more fundamental questions still await a better answer than that we
do as our fathers have done. What have we better than a blind
guess to show that the criminal law in its present form does more
good than harm? I do not stop to refer to the effect which it has
had in degrading prisoners and in plunging them further into crime,
or to the question whether fine and imprisonment do not fall more
heavily on a criminal's wife and children than on himself. I
have in mind more far-reaching questions. Does punishment
deter? Do we deal with criminals on proper principles?
A modern school of Continental criminalists plumes itself on the
formula, first suggested, it is said, by Gall, that we must
consider the criminal rather than the crime. The formula does
not carry us very far, but the inquiries which have been started
look toward an answer of my questions based on science for the
first time. If the typical criminal is a degenerate, bound to
swindle or to murder by as deep seated an organic necessity as that
which makes the rattlesnake bite, it is idle to talk of deterring
him by the classical method of imprisonment. He must be got
rid of; he cannot be improved, or frightened out of his structural
reaction. If, on the other hand, crime, like normal human
conduct, is mainly a matter of imitation, punishment fairly may be
expected to help to keep it out of fashion. The study of criminals
has been thought by some well known men of science to sustain the
former hypothesis. The statistics of the relative increase of
crime in crowded places like large cities, where example has the
greatest chance to work, and in less populated parts, where the
contagion spreads more slowly, have been used with great force in
favor of the latter view. But there is weighty authority for
the belief that, however this may be, "not the nature of the crime,
but the dangerousness of the criminal, constitutes the only
reasonable legal criterion to guide the inevitable social reaction
against the criminal."
The
impediments to rational generalization, which I illustrated from
the law of larceny, are shown in the other branches of the law, as
well as in that of crime. Take the law of tort or civil
liability for damages apart from contract and the like. Is
there any general theory of such liability, or are the cases in
which it exists simply to be enumerated, and to be explained each
on its special ground, as is easy to believe from the fact that the
right of action for certain well known classes of wrongs like
trespass or slander has its special history for each class? I think
that the law regards the infliction of temporal damage by a
responsible person as actionable, if under the circumstances known
to him the danger of his act is manifest according to common
experience, or according to his own experience if it is more than
common, except in cases where upon special grounds of policy the
law refuses to protect the plaintiff or grants a privilege to the
defendant. I think that commonly malice, intent, and
negligence mean only that the danger was manifest to a greater or
less degree, under the circumstances known to the actor, although
in some cases of privilege malice may mean an actual malevolent
motive, and such a motive may take away a permission knowingly to
inflict harm, which otherwise would be granted on this or that
ground of dominant public good. But when I stated my view to
a very eminent English judge the other day, he said, "You are
discussing what the law ought to be; as the law is, you must show a
right. A man is not liable for negligence unless he is
subject to a duty." If our difference was more than a
difference in words, or with regard to the proportion between the
exceptions and the rule, then, in his opinion, liability for an act
cannot be referred to the manifest tendency of the act to cause
temporal damage in general as a sufficient explanation, but must be
referred to the special nature of the damage, or must be derived
from some special circumstances outside of the tendency of the act,
for which no generalized explanation exists. I think that
such a view is wrong, but it is familiar, and I dare say generally
is accepted in England.
Everywhere the basis of principle
is tradition, to such an extent that we even are in danger of
making the role of history more important than it is. The
other day Professor Ames wrote a learned article to show, among
other things, that the common law did not recognize the defence of
fraud in actions upon specialties, and the moral might seem to be
that the personal character of that defence is due to its equitable
origin. But if, as I said, all contracts are formal, the difference
is not merely historical, but theoretic, between defects of form
which prevent a contract from being made, and mistaken motives
which manifestly could not be considered in any system that we
should call rational except against one who was privy to those
motives. It is not confined to specialties, but is of
universal application. I ought to add that I do not suppose
that Mr. Ames would disagree with what I suggest.
However, if we consider the law of
contract, we find it full of history. The distinctions between
debt, covenant, and assumpsit are merely historical. The
classification of certain obligations to pay money, imposed by the
law irrespective of any bargain as quasi contracts, is merely
historical. The doctrine of consideration is merely
historical. The effect given to a seal is to be explained by
history alone. Consideration is a mere form. Is it a useful
form? If so, why should it not be required in all
contracts? A seal is a mere form, and is vanishing in the
scroll and in enactments that a consideration must be given, seal
or no seal. Why should any merely historical distinction be
allowed to affect the rights and obligations of business
men?
Since
I wrote this discourse I have come on a very good example of the
way in which tradition not only overrides rational policy, but
overrides it after first having been misunderstood and having been
given a new and broader scope than it had when it had a
meaning. It is the settled law of England that a material
alteration of a written contract by a party avoids it as against
him. The doctrine is contrary to the general tendency of the
law. We do not tell a jury that if a man ever has lied in one
particular he is to be presumed to lie in all. Even if a man
has tried to defraud, it seems no sufficient reason for preventing
him from proving the truth. Objections of like nature in
general go to the weight, not to the admissibility, of
evidence. Moreover, this rule is irrespective of fraud, and
is not confined to evidence. It is not merely that you cannot
use the writing, but that the contract is at an end. What
does this mean? The existence of a written contract depends
on the fact that the offerer and offeree have interchanged their
written expressions, not on the continued existence of those
expressions. But in the case of a bond, the primitive notion
was different. The contract was inseparable from the
parchment. If a stranger destroyed it, or tore off the seal,
or altered it, the obligee count 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 which it bound him. About a hundred years ago Lord
Kenyon undertook to use his reason on the tradition, as he
sometimes did to the detriment of the law, and, not understanding
it, said he could see no reason why what was true of a bond should
not be true of other contracts. His decision happened to be
right, as it concerned a promissory note, where again the common
law regarded the contract as inseparable from the paper on which it
was written, but the reasoning was general, and soon was extended
to other written contracts, and various absurd and unreal grounds
of policy were invented to account for the enlarged
rule.
I
trust that no one will understand me to be speaking with disrespect
of the law, because I criticise it so freely. I venerate the
law, and especially our system of law, as one of the vastest
products of the human mind. No one knows better than I do the
countless number of great intellects that have spent themselves in
making some addition or improvement, the greatest of which is
trifling when compared with the mighty whole. It has the
final title to respect that it exists, that it is not a Hegelian
dream, but a part of the lives of men. But one may criticise
even what one reveres. Law is the business to which my life
is devoted, and I should show less than devotion if I did not do
what in me lies to improve it, and, when I perceive what seems to
me the ideal of its future, if I hesitated to point it out and to
press toward it with all my heart.
Perhaps I have said enough to show
the part which the study of history necessarily plays in the
intelligent study of the law as it is today. In the teaching of
this school and at Cambridge it is in no danger of being
undervalued. Mr. Bigelow here and Mr. Ames and Mr. Thayer
there have made important contributions which will not be
forgotten, and in England the recent history of early English law
by Sir Frederick Pollock and Mr. Maitland has lent the subject an
almost deceptive charm. We must beware of the pitfall of
antiquarianism, and must remember that for our purposes our only
interest in the past is for the light it throws upon the
present. I look forward to a time when the part played by
history in the explanation of dogma shall be very small, and
instead of ingenious research we shall spend our energy on a study
of the ends sought to be attained and the reasons for desiring
them. As a step toward that ideal it seems to me that every
lawyer ought to seek an understanding of economics. The
present divorce between the schools of political economy and law
seems to me an evidence of how much progress in philosophical study
still remains to be made. In the present state of political
economy, indeed, we come again upon history on a larger scale, but
there we are called on to consider and weigh the ends of
legislation, the means of attaining them, and the cost. We
learn that for everything we have we give up something else, and we
are taught to set the advantage we gain against the other advantage
we lose, and to know what we are doing when we elect.
There
is another study which sometimes is undervalued by the practical
minded, for which I wish to say a good word, although I think a
good deal of pretty poor stuff goes under that name. I mean
the study of what is called jurisprudence. Jurisprudence, as
I look at it, is simply law in its most generalized part.
Every effort to reduce a case to a rule is an effort of
jurisprudence, although the name as used in English is confined to
the broadest rules and most fundamental conceptions. One mark
of a great lawyer is that he sees the application of the broadest
rules. There is a story of a Vermont justice of the peace
before whom a suit was brought by one farmer against another for
breaking a churn. The justice took time to consider, and then said
that he has looked through the statutes and could find nothing
about churns, and gave judgment for the defendant. The same
state of mind is shown in all our common digests and
textbooks. Applications of rudimentary rules of contract or
tort are tucked away under the head of Railroads or Telegraphs or
go to swell treatises on historical subdivisions, such as Shipping
or Equity, or are gathered under an arbitrary title which is
thought likely to appeal to the practical mind, such as Mercantile
Law. If a man goes into law it pays to be a master of it, and to be
a master of it means to look straight through all the dramatic
incidents and to discern the true basis for prophecy.
Therefore, it is well to have an accurate notion of what you mean
by law, by a right, by a duty, by malice, intent, and negligence,
by ownership, by possession, and so forth. I have in my mind
cases in which the highest courts seem to me to have floundered
because they had no clear ideas on some of these themes. I
have illustrated their importance already. If a further
illustration is wished, it may be found by reading the Appendix to
Sir James Stephen's Criminal Law on the subject of possession, and
then turning to Pollock and Wright's enlightened book. Sir
James Stephen is not the only writer whose attempts to analyze
legal ideas have been confused by striving for a useless
quintessence of all systems, instead of an accurate anatomy of
one. The trouble with Austin was that he did not know enough
English law. But still it is a practical advantage to master
Austin, and his predecessors, Hobbes and Bentham, and his worthy
successors, Holland and Pollock. Sir Frederick Pollock's
recent little book is touched with the felicity which marks all his
works, and is wholly free from the perverting influence of Roman
models.
The
advice of the elders to young men is very apt to be as unreal as a
list of the hundred best books. At least in my day I had my
share of such counsels, and high among the unrealities I place the
recommendation to study the Roman law. I assume that such
advice means more than collecting a few Latin maxims with which to
ornament the discourse--the purpose for which Lord Coke recommended
Bracton. If that is all that is wanted, the title De Regulis
Juris Antiqui can be read in an hour. I assume that, if it is
well to study the Roman Law, it is well to study it as a working
system. That means mastering a set of technicalities more
difficult and less understood than our own, and studying another
course of history by which even more than our own the Roman law
must explained. If any one doubts me, let him read Keller's
Der Romische Civil Process und die Actionen, a treatise on the
praetor's edict, Muirhead's most interesting Historical
Introduction to the Private Law of Rome, and, to give him the best
chance, Sohn's admirable Institutes. No. The way to gain a
liberal view of your subject is not to read something else, but to
get to the bottom of the subject itself. The means of doing
that are, in the first place, to follow the existing body of dogma
into its highest generalizations by the help of jurisprudence;
next, to discover from history how it has come to be what it is;
and finally, so far as you can, to consider the ends which the
several rules seek to accomplish, the reasons why those ends are
desired, what is given up to gain them, and whether they are worth
the price.
We
have too little theory in the law rather than too much, especially
on this final branch of study. When I was speaking of
history, I mentioned larceny as an example to show how the law
suffered from not having embodied in a clear form a rule which will
accomplish its manifest purpose. In that case the trouble was
due to the survival of forms coming from a time when a more limited
purpose was entertained. Let me now give an example to show
the practical importance, for the decision of actual cases, of
understanding the reasons of the law, by taking an example from
rules which, so far as I know, never have been explained or
theorized about in any adequate way. I refer to statutes of
limitation and the law of prescription. The end of such rules
is obvious, but what is the justification for depriving a man of
his rights, a pure evil as far as it goes, in consequence of the
lapse of time? Sometimes the loss of evidence is referred to,
but that is a secondary matter. Sometimes the desirability of
peace, but why is peace more desirable after twenty years than
before? It is increasingly likely to come without the aid of
legislation. Sometimes it is said that, if a man neglects to
enforce his rights, he cannot complain if, after a while, the law
follows his example. Now if this is all that can be said
about it, you probably will decide a case I am going to put, for
the plaintiff; if you take the view which I shall suggest, you
possibly will decide it for the defendant. A man is sued for
trespass upon land, and justifies under a right of way. He
proves that he has used the way openly and adversely for twenty
years, but it turns out that the plaintiff had granted a license to
a person whom he reasonably supposed to be the defendant's agent,
although not so in fact, and therefore had assumed that the use of
the way was permissive, 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 neglect of the landowner in the
ordinary sense, as seems commonly to be supposed, there has been no
such neglect, and the right of way has not been acquired. But
if I were the defendant's counsel, I should suggest that the
foundation of the acquisition of rights by lapse of time is to be
looked for in the position of the person who gains them, not in
that of the loser. Sir Henry Maine has made it fashionable to
connect the archaic notion of property with prescription. But
the connection is further back than the first recorded
history. It is in the nature of man's mind. A thing
which you have enjoyed and used as your own for a long time,
whether property or an opinion, takes root in your being and cannot
be torn away without your resenting the act and trying to defend
yourself, however you came by it. The law can ask no better
justification than the deepest instincts of man. It is only
by way of reply to the suggestion that you are disappointing the
former owner, that you refer to his neglect having allowed the
gradual dissociation between himself and what he claims, and the
gradual association of it with another. If he knows that
another is doing acts which on their face show that he is on the
way toward establishing such an association, I should argue that in
justice to that other he was bound at his peril to find out whether
the other was acting under his permission, to see that he was
warned, and, if necessary, stopped.
I
have been speaking about the study of the law, and I have said next
to nothing about what commonly is talked about in that
connection--text- books and the case system, and all the machinery
with which a student comes most immediately in contact. Nor
shall I say anything about them. Theory is my subject, not
practical details. The modes of teaching have been improved
since my time, no doubt, but ability and industry will master the
raw material with any mode. Theory is the most important part
of the dogma of the law, as the architect is the most important man
who takes part in the building of a house. The most important
improvements of the last twenty-five years are improvements in
theory. It is not to be feared as unpractical, for, to the
competent, it simply means going to the bottom of the
subject. For the incompetent, it sometimes is true, as has
been said, that an interest in general ideas means an absence of
particular knowledge. I remember in army days reading of a
youth who, being examined for the lowest grade and being asked a
question about squadron drill, answered that he never had
considered the evolutions of less than ten thousand men. But
the weak and foolish must be left to their folly. The danger
is that the able and practical minded should look with indifference
or distrust upon ideas the connection of which with their business
is remote. I heard a story, the other day, of a man who had a
valet to whom he paid high wages, subject to deduction for
faults. One of his deductions was, "For lack of imagination,
five dollars." The lack is not confined to valets. The object
of ambition, power, generally presents itself nowadays in the form
of money alone. Money is the most immediate form, and is a
proper object of desire. "The fortune," said Rachel, "is the
measure of intelligence." That is a good text to waken people
out of a fool's paradise. But, as Hegel says, "It is in the
end not the appetite, but the opinion, which has to be
satisfied." To an imagination of any scope the most
far-reaching form of power is not money, it is the command of
ideas. If you want great examples, read Mr. Leslie Stephen's
History of English Thought in the Eighteenth Century, and see how a
hundred years after his death the abstract speculations of
Descartes had become a practical force controlling the conduct of
men. Read the works of the great German jurists, and see how
much more the world is governed today by Kant than by
Bonaparte. We cannot all be Descartes or Kant, but we all
want happiness. And happiness, I am sure from having known
many successful men, cannot be won simply by being counsel for
great corporations and having an income of fifty thousand
dollars. An intellect great enough to win the prize needs
other food besides success. The remoter and more general
aspects of the law are those which give it universal
interest. It is through them that you not only become a great
master in your calling, but connect your subject with the universe
and catch an echo of the infinite, a glimpse of its unfathomable
process, a hint of the universal law .
在契约法领域中，法律和道德观念的混乱是最明显的。这儿又出现了具有神秘色彩的，我们无法确认和解释的所谓基本权利义务的概念。普通法上的履约义务意味着一项预测，如果你违约，你就要赔偿损失——仅此而已。如果你侵权，你有义务给付一笔损害赔偿金。如果你订立了契约，除非允诺得以实现，否则你要付违约金。所有的差别在于允诺是否实现。那些认为应当尽可能多地在法律中加入伦理准则是大有裨益的人对这种看待问题的方式不屑一顾。科克勋爵在以下以及其他诸多的案件中的表现都很优秀，我十分乐意追随他的道路。在Bromage v.
Genning一案中1，原告试图在王座法院获得一项禁令，来反对在威尔士进行的一桩诉讼案件，以达到使一项关于租赁的契约得到具体履行的目的。而科克认为如果授予禁令，那就违背了当事人的意思，因为当事人的本意是在出租和失去补偿金之间作出选择。支持原告的哈里斯（Harris）警官承认他对这个问题的解决违背了自己的良心，原告获得了禁令。这超出了我们目前讨论的范围，但它表明了我从一开始试图论说的都是普通法的观点，虽然卑下以为哈里曼（Harriman）先生在他关于契约的雄辩的小册子里误入歧途，以至得出了截然不同的结论。
为什么当一个人诚实地说出一位仆人的情况，即使他的论述是错误和不公的他也不承担诽谤罪？因为言论自由比一个人免于受到在其他情形下可能是错误行为的侵犯更为重要。为什么人们能够自由地开办企业，尽管他知道这会毁了别人的事业？因为据称自由竞争最有利于公众的利益。显然，这种对重要性的判断因时因地而异。为什么法官指示陪审团，雇主无须对雇员在其受雇期间所受伤害负责，除非雇主有过失，而当案件移送到陪审团处时，他们通常总是作出有利于原告的裁定？因为我们法律的传统政策是将责任限定在一个谨慎的人本来能够预见伤害或者至少预见到这种危险的存在的范围内，并且大部分公众倾向于认为，某类人应当保证与他们打交道的另一些人的安全。写下这段话时，我已经看到了对这种保证的要求在一个著名的劳工组织的计划书中被提了出来，其中隐藏着一场半清不楚的关于立法政策问题的争论。如果有人认为他能够通过演绎推理的方法一劳永逸地解决这个问题。我肯定地说，他在理论上是错误的，而且他的理论在实践上也不会被接受。（semper unique et ab
omnibus）
现在，在许多案件中，如果我们想知道一个法律规则为什么采取了其独特的形式，或者我们对它为什么存在有些怀疑，我们就会转向传统。我们跟随它回到年鉴，或者走得更远些，回到古法兰克的习惯；我们会回到过去的某个地方，德国森林、诺曼国王的需要、某个统治阶级的观念、缺乏概括性观念的地方，这样我们就发现了我们现在以它被人们接受和人们对它已经习惯了这一事实加以正当化的规则的实践动力。理性地研究法律在很大程度上仍然是对历史的研究。历史必须成为法律研究的一部分，非此我们不能了解法律规则的精确范围。你把一条龙拖出山洞，把它放在光天化日之下，你才可能数清它的牙齿和爪子，才能发现它的力量所在。但是把它拖出山洞只是第一步，下一步则是杀了它或者把它驯服，使它成为有用的动物。现在的人物是不吉利的家伙（black-letter
man），而将来有身份的人则是统计学家和经济学家。在亨利五世时期，法治原则已经确立，现在没有比那时更多的理由坚持这一点是令人反感的；假如确立这一原则的根据早已消失，这一原则仅仅是出于对过去盲目的模仿，那就更是让人反感的。我想到了一条关于非法侵扰（trespass ab
initio）的技术性规则，我最近将要在一个马萨诸塞州的案件中对它进行解释。
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