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The Common Law
Oliver Wendell Holmes, Jr. (1841–1935) is generally considered one of the two greatest justices of the United States Supreme Court, Chief Justice John Marshall being the other. In more than 2000 opinions, he delineated an impressive legal philosophy that profoundly influenced American jurisprudence, particularly in the area of civil liberties and judicial restraint. At the same time, his abilities as a prose stylist earned him a position among the literary elite.
In The Common Law , derived from a series of lectures delivered at the Lowell Institute in Boston, Holmes systematized his early legal doctrines. The result was an enduring classic of legal philosophy that continues to be read and consulted over a century later. Beginning with historical forms of liability (thought to have originated in the desire for vengeance in ancient Roman and Germanic blood feuds), the book goes on to discuss criminal law, torts, bails, possession and ownership, contracts, successions, and many other aspects of civil and criminal law.
Encompassing Holmes's profound, wide-ranging knowledge of the law in its historical aspects, yet written in a manner easily accessible to the layman, The Common Law provoked this observation from another famed jurist; "The book is a classic in the sense that its stock of ideas has been absorbed and become part of common juristic thought … they placed law in a perspective which legal scholarship ever since has merely confirmed." — Felix Frankfurter, Of Law and Men .
Now the influential ideas and judicial theory of Oliver Wendell Holmes, Jr. can be studied and appreciated in this superb edition — the only one in print — of his magnum opus. This edition also features a new introduction by Professor Sheldon M. Novick, author of Honorable The Life of Oliver Wendell Holmes . First published in 1881, this book is still indispensable reading for lawyers, political scientists, historians, general readers — anyone interested in the origins, development, and continuing evolution of the laws that govern human society.
In The Common Law , derived from a series of lectures delivered at the Lowell Institute in Boston, Holmes systematized his early legal doctrines. The result was an enduring classic of legal philosophy that continues to be read and consulted over a century later. Beginning with historical forms of liability (thought to have originated in the desire for vengeance in ancient Roman and Germanic blood feuds), the book goes on to discuss criminal law, torts, bails, possession and ownership, contracts, successions, and many other aspects of civil and criminal law.
Encompassing Holmes's profound, wide-ranging knowledge of the law in its historical aspects, yet written in a manner easily accessible to the layman, The Common Law provoked this observation from another famed jurist; "The book is a classic in the sense that its stock of ideas has been absorbed and become part of common juristic thought … they placed law in a perspective which legal scholarship ever since has merely confirmed." — Felix Frankfurter, Of Law and Men .
Now the influential ideas and judicial theory of Oliver Wendell Holmes, Jr. can be studied and appreciated in this superb edition — the only one in print — of his magnum opus. This edition also features a new introduction by Professor Sheldon M. Novick, author of Honorable The Life of Oliver Wendell Holmes . First published in 1881, this book is still indispensable reading for lawyers, political scientists, historians, general readers — anyone interested in the origins, development, and continuing evolution of the laws that govern human society.
480 pages, Paperback
First published January 1, 1911
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About the author
Oliver Wendell Holmes Jr.
70 books73 followersAmerican jurist Oliver Wendell Holmes, Junior, son of Oliver Wendell Holmes Sr., served as an associate justice on the Supreme Court of the United States from 1902 to 1932; many of his opinions greatly influenced the American concept of law. Noted for his long service, his concise and pithy opinions, and his deference to the decisions of elected legislatures, he is one of the most widely cited Supreme Court justices in history, particularly for his "clear and present danger" majority opinion in the case of Schenck v. United States (1919), as well as one of the most influential American common-law judges.
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June 29, 2011
Let's begin with a couple of biographical details. Oliver Wendell Holmes, Jr., was a weird guy. Anyone who had grown up in the home of Dr. Oliver Wendell Holmes, Sr., gone by the nickname "Wendy" as a lad, been for most of his life the smartest guy in any room by a fair margin, and been wounded three times and shell-shocked in the Civil War, is bound to be a little bit weird. Even that said, his aloofness and intellectualism was well-known during his lifetime. His tendency to take great pleasure in the harsh lacunae and limitations of the common law and the U.S. Constitution is already evident in The Common Law. Keep in mind that this is the same man who in his famous dissent in Lochner v. New York, which through subsequent legal evolution became far more prominent than the majority, pointed out (correctly) that the Constitution did not enact Herbert Spencer's Social Statics. But he was also the man who explained in Buck v. Bell, that sterilization of the mentally retarded was not unconstitutional because "three generations of imbeciles is enough." He wasn't nice, he wasn't exactly mean: He was just an extremely precise practitioner of his trade.
Holmes is probably the best stylist of any American legal writer, ever, and it shows in The Common Law. His prose is highly readable, even today. High-flown, pretty language of the type Benjamin Cardozo was so well known for does not show up; nor is his language ever imprecise--you get the feeling he agonized over every word; and it is very well-organized. You will notice a few archaisms, and you need either to know legal terminology or have a law dictionary handy, but it's all very simple, straightforward analysis of concepts any first-year law student would recognize and easily understand, and wouldn't be much of a stretch for any knowledgeable reader.
When Holmes wrote, the legal academy was dominated by Harvard Law School. Its famous dean, Christopher Columbus Langdell, had held the philosophy that the essence of the common law could be distilled from reading reported appellate cases. He took the position that there was a sort of platonic form of the law that could be inferred. He also took a normative view of the law--that it was a fundamentally moral project. His voice was fairly dominant in the law at the time. There were those who took more practical views--Chancellor Kent of New York comes to mind--but Langdell was such a dominant voice in the academy that his views were fairly dominant among appellate judges and academics in his day.
Holmes disagreed with Langdell's basic premises that there was a logical form of the law, and that this was normative. Holmes's view was that law was the product of experience and accident, and that to the extent it was normative, its normativity was a function of the state's ability to stand behind the law with force. This is the import of his twin propositions that he looked at the law as the bad man saw it: his question is not "what should the law be?"--but instead "what will the Commonwealth of Virginia punish me for?"; and that the life of the law is experience, not logic. Although Langdell's case method remains dominant in the academy, and continues to be the way that cases are briefed and sometimes how they are argued, Holmes's views on the nature of the law are certainly triumphant in our society and the academic and practical legal world, aside from a few odd natural law enthusiasts.
At any rate, Holmes traces and the history and the lacunae in the evolution of every major area of the common law, including torts, fraud, criminal law, wills and estates, bailments, and contracts. Without doing a thorough exposition of the book, he covers the development and limitations of each area. For instance, he covers how criminal law, due to the stringencies of the common law rules, could allow fairly serious wrongs to go unpunished--and other things not in themselves wrong to be punished as though they were. He also traces the growth of tort law from the old form of action for trespass vi et armis, to trespass and trespass on case, finally to the modern four element tort of (1) breach (2) of a duty (3) that causes (4) damages. He also does a very thorough exposition of the nature of contract law as it stood at the turn of the twentieth century.
This book is not an exposition of modern law. But as a sort of philosophical meditation on various aspects of the common law, it is an interesting and edifying read. Moreover, it is interesting to read it and compare it to much of the literature coming out of the legal academy today. Much that comes out of the academy today is poorly-written, jargon-ridden, and more or less rubbish. Holmes, on the other hand, is a pleasure to read and interesting to the philosophically-inclined attorney. Would that more fit that bill today.
Holmes is probably the best stylist of any American legal writer, ever, and it shows in The Common Law. His prose is highly readable, even today. High-flown, pretty language of the type Benjamin Cardozo was so well known for does not show up; nor is his language ever imprecise--you get the feeling he agonized over every word; and it is very well-organized. You will notice a few archaisms, and you need either to know legal terminology or have a law dictionary handy, but it's all very simple, straightforward analysis of concepts any first-year law student would recognize and easily understand, and wouldn't be much of a stretch for any knowledgeable reader.
When Holmes wrote, the legal academy was dominated by Harvard Law School. Its famous dean, Christopher Columbus Langdell, had held the philosophy that the essence of the common law could be distilled from reading reported appellate cases. He took the position that there was a sort of platonic form of the law that could be inferred. He also took a normative view of the law--that it was a fundamentally moral project. His voice was fairly dominant in the law at the time. There were those who took more practical views--Chancellor Kent of New York comes to mind--but Langdell was such a dominant voice in the academy that his views were fairly dominant among appellate judges and academics in his day.
Holmes disagreed with Langdell's basic premises that there was a logical form of the law, and that this was normative. Holmes's view was that law was the product of experience and accident, and that to the extent it was normative, its normativity was a function of the state's ability to stand behind the law with force. This is the import of his twin propositions that he looked at the law as the bad man saw it: his question is not "what should the law be?"--but instead "what will the Commonwealth of Virginia punish me for?"; and that the life of the law is experience, not logic. Although Langdell's case method remains dominant in the academy, and continues to be the way that cases are briefed and sometimes how they are argued, Holmes's views on the nature of the law are certainly triumphant in our society and the academic and practical legal world, aside from a few odd natural law enthusiasts.
At any rate, Holmes traces and the history and the lacunae in the evolution of every major area of the common law, including torts, fraud, criminal law, wills and estates, bailments, and contracts. Without doing a thorough exposition of the book, he covers the development and limitations of each area. For instance, he covers how criminal law, due to the stringencies of the common law rules, could allow fairly serious wrongs to go unpunished--and other things not in themselves wrong to be punished as though they were. He also traces the growth of tort law from the old form of action for trespass vi et armis, to trespass and trespass on case, finally to the modern four element tort of (1) breach (2) of a duty (3) that causes (4) damages. He also does a very thorough exposition of the nature of contract law as it stood at the turn of the twentieth century.
This book is not an exposition of modern law. But as a sort of philosophical meditation on various aspects of the common law, it is an interesting and edifying read. Moreover, it is interesting to read it and compare it to much of the literature coming out of the legal academy today. Much that comes out of the academy today is poorly-written, jargon-ridden, and more or less rubbish. Holmes, on the other hand, is a pleasure to read and interesting to the philosophically-inclined attorney. Would that more fit that bill today.
August 9, 2016
Valuable quotes:
“Even a dog distinguishes between being stumbled over and being kicked.”
“Man's mind, once stretched by an idea, never regains its original shape.”
“The life of the law has not been logic; it has been experiencing.”
This book is an analysis of the law and the building of what may be called a civilized society. Laws have to be subject to precision to have ambiguous laws leads to trouble and chaos. Oliver traces the history of criminal law, fraud, liability, the common good, property, etc... Old English can be difficult to read, but it is worth the read. Anyone who is interested in law this would be one book I would recommend to become familiar with. If you are not inserted in reading all of it, you can read the chapter on criminal and the chapter on property both chapters, in my opinion, are the best!
“Even a dog distinguishes between being stumbled over and being kicked.”
“Man's mind, once stretched by an idea, never regains its original shape.”
“The life of the law has not been logic; it has been experiencing.”
This book is an analysis of the law and the building of what may be called a civilized society. Laws have to be subject to precision to have ambiguous laws leads to trouble and chaos. Oliver traces the history of criminal law, fraud, liability, the common good, property, etc... Old English can be difficult to read, but it is worth the read. Anyone who is interested in law this would be one book I would recommend to become familiar with. If you are not inserted in reading all of it, you can read the chapter on criminal and the chapter on property both chapters, in my opinion, are the best!
June 26, 2009
A wonderful exploration of the anomalies that appear in the common law. The book's title is a little misleading since unlike Blackstone, Holmes is not really writing about the law, he is writing about what he thinks are the fundamentals of its jurisprudence. For the reader who approaches this read under that the false pretense that this a book on law, a few pages will quickly disabuse them of that perception. But that is not the only misunderstanding that gets frequent mention.
"The Common Law" is known by quotation that appears in the fourth sentence. There Holmes famously declares "The life of the law has not been logic: it has been experience." A great quote, though not incontrovertible. Still, this is an important token of the book; and a reader who does not appreciate the underlying meaning of that statement will likely be confused by most of what follows in the discussion.
That said however, I think a careful review of Holmes' argument will reveal that this is not the main effort of his exertions. It is important that he have this point for the labors of his argument, but it is not the ultimate purpose of them. I would contend instead his purpose is to uncover what he surmises are the overarching principles that uphold and authorize the common law. There are so many loose ends, ambiguities, counter-intuitive results, anomalies, and points of conflict within the law that an explanation for what it is that binds it all, and gives it wholeness, is truly hard to discern and warrants serious interrogation.
It is this that defines the project for entire book, and it is a project enormous in size. It only happens that along the course of that discussion he must convince the reader the law has not remained static; that the same principles that presided over the Roman law, then the German law, and then the older iterations of the common law, were not the same as the law today--they have fundamentally changed. If that's true, then the record proves that the same principles of law have not been applied invariably. They have, and still are, changing. Hence Holmes great quote: the life of the law has not been logic, but experience. And if that's so it begs the question what were the underlying principles of the law then? And more urgently, what are those principles now?
This opinion of mine--that his purposes in "The Common Law" are of a deeper, more philosophic nature--I think are supported by Holmes himself. In his correspondence with Frederick Pollock he comments on his book.
The reader should then prepare them self for a larger, more philosophic examination. This is not so much a book about law, though it happens to be the substance of discussion. Holmes is after objects much larger, more philosophic; and the reader should keep it in mind as they navigate the thick arguments and obscure prose that mark Holmes' style. His focus on the bigger picture I much appreciate; and I think he is right that the questions here are not only more worthy, but they are more interesting than the tedium of law's maturation.
What is it that appears in the law that raises these deeper, more profound questions that impinge upon philosophy? Consider a few examples.
First is the question of liability. Why is it that a persons responsibility can be engaged when they had nothing to do with an injury? Imagine the case where my dog on an occasion where I am absent bites the mail man; or instead of that, damages my neighbors lawn by tearing up their flower bed. Through the fault of my dog, not my own, another has been injured. Why should the law hold me and not my dog responsible? Why is it that I may be liable for far more than the dog? And that not only may the dog face be liable for the adjudged consequences, but by the law so may I? Holmes explains that this was not always the case, and in the ancient accounts of the law liability was strictly confined to the actual perpetrator. So that if a tree on my property blew over into my neighbors yard and damaged their house, the tree, and not I, was held responsible. That my dog, and not I, should be the limit of liability in the instance where it causes damage. And that though perhaps I should have the right to exchange the dog's liability for my own, and provide restitution instead; in any case, it seems strange that I should assume responsibility for things that were completely divorced from both my actions and my intentions. What then are the principles that explain this unusual doctrine of the law?
Second is the question of tort. This is that confusing department of the law that says that damages should lie where they fall. If I hurt a stranger by pure accident, without any ill intent, and with only the tiniest molecule of fault, but still as the result of my actions I should be held responsible according to the doctrines of tort. For example, if I were under assault, and in my attempt to defend myself I accidentally strike another not involved, I would be responsible for the injury that the third person sustained. The injury was an accident, not intended, and it came in the course of me legitimately defending myself, which is my right. Still I might still be liable for the harm resulting. What makes this doctrine particularly strange is that other harms, even when the result of deliberate intent, are not thought to be imputable to any person. Suppose, that in a small town I open a second ice cream store across the street from your ice cream store. I do this for reasons of pure malice. And as a result of my actions, your store loses half its business. That is a serious injury, and probably produces more injury than an accidental strike received during a melee. But you have no recourse by law to complain of my action if I open a store, even if it is pursued with the most wicked motives in mind. There are injuries in both cases, one by accident, the other deliberate, but in the first you have appeal and the second you do not. Why should the law allow this to be? What are the implicit principles the law relies upon to permit the one and prohibit the other?
Third is the question of possession. Controversies regarding possession appear in circumstances of all kinds, but they are most plain in an instance where several persons are attempting to claim possession of something that has no owner and has not yet been occupied with the rights of property--res nullius. Holmes gives the example of whale hunting. By his recount the several different customs had prevailed on the oceans of the world resolving questions of possession of a whale. By one account, a first attack on a whale that does not maintain a harpoon in the beast does not acquire any rights of possession if a second boat appears and secures the catch. By a different custom however the boats would have joint possession of the whale, which would entitle the first boat to claim half the proceeds of sale from the second. This raises then the question: what is the threshold after which discovery results in possession? At what point does an object without owner rightfully become the possession of a person? Are their possessory rights in that object thereby absolute? Does possession by default result in ownership? And is there a point after which the rights of possession expire? Though seemingly abstract, questions have immediate application not only for fishermen, or the discovery of oil and mineral deposits, but also for the fields of patent, copyright, and trademark.
And there are many more subject areas that Holmes wades into, but it would far overextend the length of this entry to explore them all. But I sketch these three examples, not so much to replicate what it is that Holmes is doing in his lectures on the common law (what I have described here in no way mimics the pattern of Holmes' analysis). I do it instead to illustrate the nature of the problem that he confronts. Problems of liability, tort, possession, and others that I have not named, are issues that have been assumed within the province of the law, but what it is their answers should be, and principles those answers should be formulated, are not legal in nature, they really implicate the domain of moral and political philosophy. And if the reader is interested by what may be the answer the common law provides to these real and vexing questions, Holmes book "The Common Law" is a must read.
Thought provoking as the book is, it comes with the important caveat that it is a difficult read. Holmes' affects an unusual style; neither legalistic nor philosophic, but one different, and foreign. It is both the way that he composes his sentences, and also the order of his narrative: it is dense, thick with argument, and moves along often without announcing to the reader what it is that he is doing. Arguments by reductio ad absurdum, long digressions, use of technical legal terminology, and general qualities of abstruse writing--all together these can make reading Holmes a very taxing endeavor. There is no way to read Holmes casually; and even then, his arguments can often move in directions that are so unexpected that the rereading can be as confusing as the initial read. Still, Holmes has a powerful mind for analysis, and if the reader has only a mild interest in the subject matter, they may still learn a facility for analysis from merely observing how it is that he moves through his arguments.
I give Holmes five stars. The book certainly qualifies for it. It is a great book, but it is also great with difficulty.
"The Common Law" is known by quotation that appears in the fourth sentence. There Holmes famously declares "The life of the law has not been logic: it has been experience." A great quote, though not incontrovertible. Still, this is an important token of the book; and a reader who does not appreciate the underlying meaning of that statement will likely be confused by most of what follows in the discussion.
That said however, I think a careful review of Holmes' argument will reveal that this is not the main effort of his exertions. It is important that he have this point for the labors of his argument, but it is not the ultimate purpose of them. I would contend instead his purpose is to uncover what he surmises are the overarching principles that uphold and authorize the common law. There are so many loose ends, ambiguities, counter-intuitive results, anomalies, and points of conflict within the law that an explanation for what it is that binds it all, and gives it wholeness, is truly hard to discern and warrants serious interrogation.
It is this that defines the project for entire book, and it is a project enormous in size. It only happens that along the course of that discussion he must convince the reader the law has not remained static; that the same principles that presided over the Roman law, then the German law, and then the older iterations of the common law, were not the same as the law today--they have fundamentally changed. If that's true, then the record proves that the same principles of law have not been applied invariably. They have, and still are, changing. Hence Holmes great quote: the life of the law has not been logic, but experience. And if that's so it begs the question what were the underlying principles of the law then? And more urgently, what are those principles now?
This opinion of mine--that his purposes in "The Common Law" are of a deeper, more philosophic nature--I think are supported by Holmes himself. In his correspondence with Frederick Pollock he comments on his book.
March 5, 1881
I have failed in all correspondence and have abandoned pleasure as well as a good deal of sleep for a year to accomplish a result which I now send you by mail in the form of a little book The Common Law. When a man is engaged all day at his office in practice it is a slow business to do work of this sort by night, but my heart has been deeply in it, and I am encouraged to hope by the way in which you have received articles which were precursors of parts of the volume that you will not think my time has been wasted. At any rate I have worked hard for results that seemed to me important. You are happy in being able to afford time to philosophy. I have to make my living by my profession and therefore have been compelled to approach philosophy indirectly through the door of a specialty, but all roads lead to Rome and I don't doubt that a man with the philosophic craving would find stuff to work upon if he was a hatter. I sometimes even think that there is a certain advantage in difficulties, and that one sails better with the wind on the quarter than when it is directly astern.
The reader should then prepare them self for a larger, more philosophic examination. This is not so much a book about law, though it happens to be the substance of discussion. Holmes is after objects much larger, more philosophic; and the reader should keep it in mind as they navigate the thick arguments and obscure prose that mark Holmes' style. His focus on the bigger picture I much appreciate; and I think he is right that the questions here are not only more worthy, but they are more interesting than the tedium of law's maturation.
What is it that appears in the law that raises these deeper, more profound questions that impinge upon philosophy? Consider a few examples.
First is the question of liability. Why is it that a persons responsibility can be engaged when they had nothing to do with an injury? Imagine the case where my dog on an occasion where I am absent bites the mail man; or instead of that, damages my neighbors lawn by tearing up their flower bed. Through the fault of my dog, not my own, another has been injured. Why should the law hold me and not my dog responsible? Why is it that I may be liable for far more than the dog? And that not only may the dog face be liable for the adjudged consequences, but by the law so may I? Holmes explains that this was not always the case, and in the ancient accounts of the law liability was strictly confined to the actual perpetrator. So that if a tree on my property blew over into my neighbors yard and damaged their house, the tree, and not I, was held responsible. That my dog, and not I, should be the limit of liability in the instance where it causes damage. And that though perhaps I should have the right to exchange the dog's liability for my own, and provide restitution instead; in any case, it seems strange that I should assume responsibility for things that were completely divorced from both my actions and my intentions. What then are the principles that explain this unusual doctrine of the law?
Second is the question of tort. This is that confusing department of the law that says that damages should lie where they fall. If I hurt a stranger by pure accident, without any ill intent, and with only the tiniest molecule of fault, but still as the result of my actions I should be held responsible according to the doctrines of tort. For example, if I were under assault, and in my attempt to defend myself I accidentally strike another not involved, I would be responsible for the injury that the third person sustained. The injury was an accident, not intended, and it came in the course of me legitimately defending myself, which is my right. Still I might still be liable for the harm resulting. What makes this doctrine particularly strange is that other harms, even when the result of deliberate intent, are not thought to be imputable to any person. Suppose, that in a small town I open a second ice cream store across the street from your ice cream store. I do this for reasons of pure malice. And as a result of my actions, your store loses half its business. That is a serious injury, and probably produces more injury than an accidental strike received during a melee. But you have no recourse by law to complain of my action if I open a store, even if it is pursued with the most wicked motives in mind. There are injuries in both cases, one by accident, the other deliberate, but in the first you have appeal and the second you do not. Why should the law allow this to be? What are the implicit principles the law relies upon to permit the one and prohibit the other?
Third is the question of possession. Controversies regarding possession appear in circumstances of all kinds, but they are most plain in an instance where several persons are attempting to claim possession of something that has no owner and has not yet been occupied with the rights of property--res nullius. Holmes gives the example of whale hunting. By his recount the several different customs had prevailed on the oceans of the world resolving questions of possession of a whale. By one account, a first attack on a whale that does not maintain a harpoon in the beast does not acquire any rights of possession if a second boat appears and secures the catch. By a different custom however the boats would have joint possession of the whale, which would entitle the first boat to claim half the proceeds of sale from the second. This raises then the question: what is the threshold after which discovery results in possession? At what point does an object without owner rightfully become the possession of a person? Are their possessory rights in that object thereby absolute? Does possession by default result in ownership? And is there a point after which the rights of possession expire? Though seemingly abstract, questions have immediate application not only for fishermen, or the discovery of oil and mineral deposits, but also for the fields of patent, copyright, and trademark.
And there are many more subject areas that Holmes wades into, but it would far overextend the length of this entry to explore them all. But I sketch these three examples, not so much to replicate what it is that Holmes is doing in his lectures on the common law (what I have described here in no way mimics the pattern of Holmes' analysis). I do it instead to illustrate the nature of the problem that he confronts. Problems of liability, tort, possession, and others that I have not named, are issues that have been assumed within the province of the law, but what it is their answers should be, and principles those answers should be formulated, are not legal in nature, they really implicate the domain of moral and political philosophy. And if the reader is interested by what may be the answer the common law provides to these real and vexing questions, Holmes book "The Common Law" is a must read.
Thought provoking as the book is, it comes with the important caveat that it is a difficult read. Holmes' affects an unusual style; neither legalistic nor philosophic, but one different, and foreign. It is both the way that he composes his sentences, and also the order of his narrative: it is dense, thick with argument, and moves along often without announcing to the reader what it is that he is doing. Arguments by reductio ad absurdum, long digressions, use of technical legal terminology, and general qualities of abstruse writing--all together these can make reading Holmes a very taxing endeavor. There is no way to read Holmes casually; and even then, his arguments can often move in directions that are so unexpected that the rereading can be as confusing as the initial read. Still, Holmes has a powerful mind for analysis, and if the reader has only a mild interest in the subject matter, they may still learn a facility for analysis from merely observing how it is that he moves through his arguments.
I give Holmes five stars. The book certainly qualifies for it. It is a great book, but it is also great with difficulty.
October 14, 2012
This book is one of the three or four books that shaped modern America. It has been in print continuously since 1885. It is both a book of ideas and an artifact; it is written in Victorian American English, so it is not an easy read. I first read it in the summer of 1968 before starting law school. I have to confess that I didn't understand it very well. The ideas seemed obvious; after law school I re-read it and realized that it semed obvious to me bcause it was the founding document of two schools of thought: Logical positivism and Pragmatism. All of those "zingers"--"Experience, and not logic, is the life of the law."; "The law is not a brooding omnipresence in the sky."-- are in Holmes's 1885 introduction.
Not until the beginning of the 21st Century with the lunacy of Teabaggers would any serious, if nonsensical, challenge to Pragmatism emerge. Unfortunately, we now face a group of Neanderthals who believe that the law really is "a brooding omnipresence in the sky."
Not until the beginning of the 21st Century with the lunacy of Teabaggers would any serious, if nonsensical, challenge to Pragmatism emerge. Unfortunately, we now face a group of Neanderthals who believe that the law really is "a brooding omnipresence in the sky."
August 16, 2013
Among justices of the Supreme Court, Oliver Wendell Holmes, Jr. is of a tier that accompanied only by a few others, such as John Marshall and perhaps Hugo Black. Before this book was published, Holmes had already edited Chancellor Kent's Commentaries on American Law and written a number of useful academic articles. Had he died then, he would have been known as a respected, if little known, legal scholar. With the Common Law, however, Holmes established the reputation that would elevate him to Harvard Law's faculty, the Massachusetts Supreme Court, and eventually the United States Supreme Court as an associate justice. There is no denying that this is a thick book not made for drowsy, on the nightstand reading; it requires attention and a familiar background in English common law. What Holmes attempted to do was trace the common law as a rational system developed over time from judge's experiences. What perhaps made his efforts unique and distinctly successful were the relatively frequent references to yearbooks, the very earliest English reports of the Middle Ages. This embodiment of practical, as opposed to idealistic, thinking in the law was making headway in the late-19th century and this book perhaps made Holmes it icon. Although Holmes would later be known for his terse dissents (which are also a better starting point if you wish to know a bit more of the mind of the man), this book in quality legal writing in its most rarefied form. If you have some free time and want to improve your mind, I suggest cracking it open.
August 15, 2015
After the first 50 pages, I thought I had a five star work here, even to the point that I went on Ebay and ordered a set of the complete works of this author. Can not cancel the order now but would if I could. This was nothing but a romance which would still have been ok but the covers of this book were too far apart.
May 21, 2019
Holmes argues common law arises from history and policy. Yet, having rejected formalism and natural law, he is too sanguine about the good sense of law.
October 25, 2018
This book reminded me of studying for the bar – a lot actually. The bar review programs stress that the bar asks questions based on the traditional common law, not modern statutes. So, for example, at common law, burglary is the breaking and entering of the dwelling of another at nighttime with the intent to commit a felon therein. The element that seems most out of place is “at nighttime” – as if burglary won’t be burglary at noon – but that’s the rule. And that’s the exact rule that Holmes tells us about. It’s as if you could review for the bar just by reading “The Common Law” (don’t do that, though).
The title of this book is telling. It’s not “the origins of” or “thoughts on” or “roots of” or “a sketch of” or “a history of” the common law. It is “The Common Law” – a simple yet ambitious title. It promises a lot. And the book makes an ambitious attempt. History, philosophy, and procedure – they all feature prominently in Holmes’s analysis and lectures. The prose is a little difficult to penetrate, but it is supposed to be a general survey.
The title of this book is telling. It’s not “the origins of” or “thoughts on” or “roots of” or “a sketch of” or “a history of” the common law. It is “The Common Law” – a simple yet ambitious title. It promises a lot. And the book makes an ambitious attempt. History, philosophy, and procedure – they all feature prominently in Holmes’s analysis and lectures. The prose is a little difficult to penetrate, but it is supposed to be a general survey.
December 7, 2012
Really, though, it is a very good book, but for me it was like reading a different language. Certainly, there was a good deal of Latin phrases (and not ones in the dictionary I had handy), the writing was 19th century, so many references to the different English Monarchs by ear of their reign), and legal concepts outside of my background.
So while hard, it have to say that it was a very well developed history of the laws that are in existence today. And if law is anything, it really is a reflection of history (sometimes, history in the making, but the next case will build on that).
So while hard, it have to say that it was a very well developed history of the laws that are in existence today. And if law is anything, it really is a reflection of history (sometimes, history in the making, but the next case will build on that).
January 28, 2018
A terribly boring read. I guess this could be categorized as a romance. I was so stupefied by all the insipid conversations these flat characters were having that I'm not totally sure what was going on. There's an artist, there's a model, there's Dhwama because Society won't let them be together. To be honest I skimmed through most of this.
July 29, 2018
One of the most interesting topics to me, a total neophyte in the field of law, is the comparison between civil law -- i.e. law decreed by a sovereign -- and common law -- i.e. law constructed by judges in the Anglo-American tradition. The topic is deep and weighty, and one in which it's hard to cleanly resolve a question along the lines of which might be "better." Everything is subtlety and nuance, comparison of principles and implementation, and a noting of the successes and failures of each in history.
In any case. To try and remedy my neophytism I have been on a bit of a legal series, reading this or that interesting-looking law text to try and suss out whatever intuition I can from it. The Common Law, by Oliver Wendell Holmes Jr., has been the latest. The book is a collection of lectures Holmes gave in Boston at some point around 1880, and is written in a somewhat informal, chatty style. It is rather easy to read, but I've found it to be a difficult work to appraise. My thought on it to has improved by mulling it over and chewing on it a bit, but I suppose I actually need to review the thing eventually, so I may as well give that a shot here.
One can't talk about The Common Law without some digression on the man behind it. Holmes was an enormously influential American legal scholar and jurist of the late 19th and early 20th centuries, notably having served as both Associate Justice and Acting Chief Justice of the U.S. Supreme Court (where he was appointed by Theodore Roosevelt), as well as a law professor at Harvard. His legacy is somewhat controversial on all sides. He has been accused by the right of perverting American jurisprudence by way of his particularly strong moral skepticism, leading to the so-called legal realism that has come to dominate modern American law. The most concentrated of these accusations came after publication of The Common Law, when Holmes was criticised heavily -- "attacked," by some accounts -- in various periodicals and legal journals by a number of Catholic lawyers who disagreed with his denouncement of (Roman Catholic) natural law. What criticism I've seen of Holmes from the the left, on the other hand, has been along the lines of claiming that he was "bad" -- i.e., not a leftist. At least one modern-day progressive, writing in the Times, called Holmes "a cold and brutally cynical man who had contempt for the masses and for the progressive laws he voted to uphold," and an "aristocratic nihilist," adding that he was supposedly quoted as saying (with some amusing literary flourish) that he "loathed the thick-fingered clowns we call the people."
(N.b. I can't help but point out that the above author in the Times condemned Holmes for who he was, rather than what he did. The criticism from the right, on the other hand, has its basis in the later American law Holmes effected.)
Another book I skimmed after reading The Common Law, Biddle's 1961 Justice Holmes, Natural Law, and the Supreme Court, corroborates much of the man's reputation. Holmes seemed a fellow of contradictions: a tremendously erudite aristocrat, elitist, and conservative, but also a stalwart defender and enabler of progressive laws. Enormously respectful of Christianity, but a hardcore religious skeptic, and strong proponent of eugenics to boot. According to Biddle, Holmes supposedly liked to say "If you do not think like a devil, you can not touch the deepest complexities of the absolute." Whether Holmes managed to scratch said complexities or not, the quote probably summarises the man rather well.
(N.b. Nassim Nicholas Taleb wrote in his recent Skin In The Game: "My heuristic is that the more pagan, the more brilliant one’s mind, and the higher one’s ability to handle nuances and ambiguity." Eh, maybe. While I quite like Taleb, I'm pretty sure his criterion is neither necessary nor sufficient for brilliance. But Holmes strikes me as being the type of character Taleb was thinking about, in any case.)
So, you get the picture. Holmes was an interesting character, and his legacy is complex. I will go further: Holmes's work is complex. At times I perceive it as wise or brilliant, at other times capricious or deluded. Rather than a treatise on what could be called the implementation details of the common law in any given jurisdiction -- precedent and stare decisis, equity, organisation via higher and lower courts, and so on -- The Common Law is better understood as an indirect discussion on the philosophical foundations of the law, as well as its historical evolution, as Holmes saw both in the late 19th century. The content of the book revolves around two broad, primary topics; the first is the nature of the common law -- what is it, what does it seek to do, and so on, and the second is the reality of the law -- how does it tend to evolve, what external forces is it subject to, etc.
To Holmes, the law exists to maximise the freedom of individuals while simultaneously protecting them from harm. It accomplishes this by disincentivising harmful action through the credible threat of punishment. The law is a function of the society over which it holds jurisdiction; it is to be determined, to large extent, by the abstraction of the "reasonable and prudent man." It demands that individuals in said society bring themselves up to the standard of this abstraction -- that they know the law, know the common teachings of experience, and conduct themselves to the standard of the reasonable and prudent man. A man becomes liable under the law when he acts in a way that is likely to cause harm -- again, as judged by a reasonable and prudent man. His degree of liability under the law is determined by experience, viz., to the degree, demonstrated via decisions in similar cases, to sufficiently disincentivise the harmful act under the appropriate circumstances.
As for the reality of the law, Holmes's view is best summed up by his most famous quote: that "the life of the law has not been logic: it has been experience." To Holmes, the law cannot be understood simply by looking at it in a purely formal matter. One also needs to observe the process by which the law has developed in history. The growth of the law is logical, but in practice it is also messy. It is careful and legislative, but it is also subject to "the secret root from which the law draws all the juices of life [..] considerations of what is expedient for the community concerned." To Holmes, "the law is always approaching, and never reaching, consistency. 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. It will become entirely consistent only when it ceases to grow."
You'll note that this is all a very instrumental, material view of law. Law, to Holmes (and this characterisation comes via Biddle) is "a statement of the circumstances in which the public force will be brought to bear upon men through the courts." This stands in particular contrast to the philosophy of natural law, for example, where the law is considered to be an objective, external prescription for moral conduct based on natural rights endowed by God or Nature. Holmes's approach became known as legal realism, a school of thought closely related to the legal positivism that developed in Britain in the Benthamite tradition, in which the law becomes a question of what will the courts do, rather than what ought be the case.
In the present work, Holmes develops his thought by discussing several important areas of the common law, commenting on general principles and making observations as he sees fit, but mostly confining himself to the major areas of criminal law, tort, possession, contract, and succession. Occasionally Holmes explicitly states that he will cover some otherwise minor subject at great length simply because he personally finds it interesting, such as when examining the liability of the "bailee" -- i.e. someone whom possession, but not ownership, has been transferred to -- under common law. An interesting way to proceed, and one that I can mostly get behind. But there is too much material in the book to just proceed through it linearly in a review -- I'll just comment on various areas in much the same fashion as Holmes, commenting on general principles and making observations as I see fit.
Criminal liability is discussed first, with Holmes dedicating a chapter to its history in Greek, Roman, Germanic, and English law. Holmes asserts that the origin of criminal law and the law of torts can be found in the desire for vengeance one feels upon being wronged. The law formalises vengeance; in a sufficiently mature legal system, agents must know what conduct will leave them liable for reproach under the law, and are thus incentivised to avoid such behaviour. The law is thus entirely preventative or ex-post in nature. Quoting Holmes at length:
"[..] there can be no case in which the law-maker makes certain conduct criminal without his thereby showing a wish and purpose to prevent that conduct. Prevention would accordingly seem to be the chief and only universal purpose of punishment. The law threatens certain pains if you do certain things, intending thereby to give you a new motive for not doing them. If you persist in doing them, it has to inflict the pains in order that its threats may continue to be believed."
This is certainly not a new take on law, and Holmes finds himself in the company of any other number of jurists and thinkers on the matter. Grotius, in his Rights of War and Peace, cites Plato: "justice does not inflict punishment for the evils that are done and cannot be retrieved; but to prevent the same from being done for the time to come."
In purely mechanical terms, vengeance is certainly a simple and effective, if crude, solution to the problem of defection in repeated games (where here "defection" can basically be understood as instances of non-cooperation inside a mutually-understood regime of cooperation). Just using the idea of theft, for example: if I understand that we are obeying certain rules (e.g., we don't take each others' stuff), and you break those rules (e.g., you take my stuff), then I will likely feel a passionate urge to make you smart for it. This urge is primal and innate, as strong as just about any other extant human emotion. But vengeance is a general solution to defection in general repeated games -- it is by no means limited to human behaviour or society. Continuing in the spirit of theft: such behaviour, along with some concept of property rights, tends to manifest in social animals because it is plainly evolutionarily favourable. Jointly-understood property rights allow you and I use our environment to plan for the future in a mutually-beneficial and fitness-enhancing way. A credible threat of vengeance is what enforces these rights, decreasing the probability that either of us defects.
It can be striking to see the similar nature of this sort of behaviour in other animal species. I don't watch much TV, but I recently caught an episode of Blue Planet or Round Planet or something that just happened to be on one night. There was a fascinating segment where some Adelie penguins in Antarctica were busy building nests out of stones. At one point, when one little penguin plunked a fresh stone into his nest and waddled off to find another, one of his buddies snatched it, dropping it into his own nest when the other guy’s back was turned. This continued for a few iterations until the honest penguin happened to notice what was going on, proceeding in short order to open a spectacularly fierce can of penguin whoop-ass on the sneakier fellow. I may not "know what it's like to be a penguin" in the abstract, but I have little doubt that I can guess what this little guy felt like when he caught his buddy pilfering his rocks.
Back to Holmes, who himself points out that "even a dog distinguishes between being tripped over and being kicked." Penguins may lack the sophistication to formalise their intuitions for revenge, but humans do not, and Holmes makes a convincing case that this is the material origin of criminal liability. He uses this to derive the idea that a sound body of criminal law must correspond with the sensibilities of the population over which it has jurisdiction. The argument is as follows: if the law prescribes penalties for some injurious act that are considered too lenient by the population, then the prevailing urge for vengeance will induce the population to ignore the law and attempt to exact revenge extralegally. This is true by construction; if the population does not seek extralegal vengeance, then the law can be said to correspond with their sensibilities. If wide extralegal conduct occurs, then by definition there is no rule of law, and the whole exercise is rather pointless.
(N.b. this idea is certainly not original to Holmes, either. Faguet, in his Cult of Incompetence -- citing Montesquieu's Spirit of the Laws, in turn citing Plutarch's Lives and the Hebrew Bible -- points out two examples of this principle: the archaic statesman Solon as having given the Athenians "the best [laws] they would endure," and God saying to the Jews "I have given you precepts which are not good," i.e., per Montesquieu, that they had only a relative goodness. I actually couldn't find the quote that Montesquieu references, the closest seeming to be Proverbs 4:2, but I assume he more or less got it right.)
All of this implies the existence of a kind of vague convexity: the law exists because some restriction on behaviour is desired, but legislate too much, and the population will flout it as they see fit -- i.e., by failing to restrict their behaviour. There thus must exist an "optimum region" or "true" law, sitting somewhere between too little and too much, that broadly matches the sensibilities of the underlying population. This is the law that the process of the common law aims to find, adopting new conduct through binding precedent, or sloughing off existing prescriptions as they fail to any longer match the sensibilities of the population. In any case, the point is that the law is a function of the population over which it holds jurisdiction; the law itself is an external standard, but it is one that comes with a context.
The abstraction of the "reasonable and prudent man" is used to align the law with the population over which it has jurisdiction. What is considered to be in alignment with the population's sensibilities is conduct that would be justifiable to the "reasonable and prudent man," both to his intuitions and reasoned consideration of the matter in any relevant context. In practice, the reasonable and prudent man is deemed to be some hybrid of the judge (Holmes, invoking tautology: "law is practiced by reasonable men") and the jury, which is supposed to be a representative of the broader population at large. The population as a whole is required to conduct itself according to the standard of the reasonable and prudent man, and to do so at its peril. That is: a man is required to know what conduct would align with the sensibilities of a reasonable and prudent man, and moderate his conduct accordingly, or he may find himself criminally liable. This is fairly interesting, because it does not imply that the sensibilities or intuitions that the law targets are necessarily that of the average man, or the median man, or even the modal man in the population (whomever they might be); if judges tend to be of a higher moral character than the population at large, for example, then their influence on the "reasonable and prudent man" will tend to skew the standard of moral conduct accordingly. The implication, in any case, is that ignorance of the law does not limit legal liability -- a well-known property of the law (at least to reasonable and prudent men).
In his early treatment of criminal liability (as Holmes often puts it, "at common law," a terminology that I enjoy), Holmes develops the theory that the law is indifferent to acts per se, but it is the characteristics of an act that leaves an actor criminally liable. That is: an actor becomes criminally liable when he performs some action that will probably cause some harm that the law seeks to prevent (as judged by a reasonable and prudent man). The motivations of an actor, or his moral character, or whatever, are irrelevant and distracting; it is the action, in its context, that determines liability. The discussion on liability under tort proceeds similarly, with Holmes echoing an analogous sentiment: "what the law really forbids, and the only thing it forbids, is the act on the wrong side of the line, be that act blameworthy or otherwise."
In his discussion on tort, Holmes spends a fair bit of time discussing fraud, or deceit, which he asserts is used to "preserve the reference to morality" in the common law, stating that the common law "makes fraud the ground on which it goes." Holmes states that the common law does not hold that a man always speaks "at his peril." Instead, it "works out an external standard of what would be fraudulent in the average prudent member of the community, and requires every member at his peril to avoid that." Experience, in particular, is what Holmes deems useful for deciding what is prudent in a given scenario -- thus the importance of binding precedent in similar cases, a jury (ideally) representing the population as a whole, etc. Holmes states one of his many nice general principles on the law, here: "the general purpose of the law of torts is to secure a man indemnity against certain forms of harm to person, reputation, or estate, at the hands of his neighbors. [..] It is intended to reconcile the policy of letting accidents lie where they fall, and the reasonable freedom of others with the protection of the individual from injury." A discussion about the role of experience in the common law follows, and is quite good.
Holmes's discourse on possession -- the legal concept of exercising one's will over a thing, while not actually owning it -- is lengthy and fascinating. The topic is deep, with Holmes himself asserting it to be the second-most important concept in the common law, after contract. Much of the commentary in this chapter is surprisingly weighty, and it quickly becomes obvious that possession is a more profound philosophical topic than it may first appear to be -- filled with notions of agency and sovereignty, the manifestation and exercise of the will in the world, and so on (on purely legal grounds, it connects naturally to other topics such as property and conveyance). Holmes points out the interesting and very "realist" fact that possession and contract are inverse concepts of a sort: "[..] while possession denotes the facts and connotes the consequence, property always, and contract with more uncertainty and oscillation, denote the consequence and connote the facts."
Holmes engages in quite a bit of comparison between the treatment of possession in different legal schools of thought, frequently citing any number of esteemed historical jurists and legal philosophers on the subject -- ancient and modern; Roman, German, and English. There are citations to the Roman law regarding hunting of wild animals and such, for example -- areas where Roman and English law agree. And there are others where American cases have been ruled contrary to that found in the Corpus Juris Civilis. There are also interesting descriptions of the German philosophy of law that was prevalent at the time -- that possession was marked by the ideas of the will to power and such. All very interesting.
In any case. To try and remedy my neophytism I have been on a bit of a legal series, reading this or that interesting-looking law text to try and suss out whatever intuition I can from it. The Common Law, by Oliver Wendell Holmes Jr., has been the latest. The book is a collection of lectures Holmes gave in Boston at some point around 1880, and is written in a somewhat informal, chatty style. It is rather easy to read, but I've found it to be a difficult work to appraise. My thought on it to has improved by mulling it over and chewing on it a bit, but I suppose I actually need to review the thing eventually, so I may as well give that a shot here.
One can't talk about The Common Law without some digression on the man behind it. Holmes was an enormously influential American legal scholar and jurist of the late 19th and early 20th centuries, notably having served as both Associate Justice and Acting Chief Justice of the U.S. Supreme Court (where he was appointed by Theodore Roosevelt), as well as a law professor at Harvard. His legacy is somewhat controversial on all sides. He has been accused by the right of perverting American jurisprudence by way of his particularly strong moral skepticism, leading to the so-called legal realism that has come to dominate modern American law. The most concentrated of these accusations came after publication of The Common Law, when Holmes was criticised heavily -- "attacked," by some accounts -- in various periodicals and legal journals by a number of Catholic lawyers who disagreed with his denouncement of (Roman Catholic) natural law. What criticism I've seen of Holmes from the the left, on the other hand, has been along the lines of claiming that he was "bad" -- i.e., not a leftist. At least one modern-day progressive, writing in the Times, called Holmes "a cold and brutally cynical man who had contempt for the masses and for the progressive laws he voted to uphold," and an "aristocratic nihilist," adding that he was supposedly quoted as saying (with some amusing literary flourish) that he "loathed the thick-fingered clowns we call the people."
(N.b. I can't help but point out that the above author in the Times condemned Holmes for who he was, rather than what he did. The criticism from the right, on the other hand, has its basis in the later American law Holmes effected.)
Another book I skimmed after reading The Common Law, Biddle's 1961 Justice Holmes, Natural Law, and the Supreme Court, corroborates much of the man's reputation. Holmes seemed a fellow of contradictions: a tremendously erudite aristocrat, elitist, and conservative, but also a stalwart defender and enabler of progressive laws. Enormously respectful of Christianity, but a hardcore religious skeptic, and strong proponent of eugenics to boot. According to Biddle, Holmes supposedly liked to say "If you do not think like a devil, you can not touch the deepest complexities of the absolute." Whether Holmes managed to scratch said complexities or not, the quote probably summarises the man rather well.
(N.b. Nassim Nicholas Taleb wrote in his recent Skin In The Game: "My heuristic is that the more pagan, the more brilliant one’s mind, and the higher one’s ability to handle nuances and ambiguity." Eh, maybe. While I quite like Taleb, I'm pretty sure his criterion is neither necessary nor sufficient for brilliance. But Holmes strikes me as being the type of character Taleb was thinking about, in any case.)
So, you get the picture. Holmes was an interesting character, and his legacy is complex. I will go further: Holmes's work is complex. At times I perceive it as wise or brilliant, at other times capricious or deluded. Rather than a treatise on what could be called the implementation details of the common law in any given jurisdiction -- precedent and stare decisis, equity, organisation via higher and lower courts, and so on -- The Common Law is better understood as an indirect discussion on the philosophical foundations of the law, as well as its historical evolution, as Holmes saw both in the late 19th century. The content of the book revolves around two broad, primary topics; the first is the nature of the common law -- what is it, what does it seek to do, and so on, and the second is the reality of the law -- how does it tend to evolve, what external forces is it subject to, etc.
To Holmes, the law exists to maximise the freedom of individuals while simultaneously protecting them from harm. It accomplishes this by disincentivising harmful action through the credible threat of punishment. The law is a function of the society over which it holds jurisdiction; it is to be determined, to large extent, by the abstraction of the "reasonable and prudent man." It demands that individuals in said society bring themselves up to the standard of this abstraction -- that they know the law, know the common teachings of experience, and conduct themselves to the standard of the reasonable and prudent man. A man becomes liable under the law when he acts in a way that is likely to cause harm -- again, as judged by a reasonable and prudent man. His degree of liability under the law is determined by experience, viz., to the degree, demonstrated via decisions in similar cases, to sufficiently disincentivise the harmful act under the appropriate circumstances.
As for the reality of the law, Holmes's view is best summed up by his most famous quote: that "the life of the law has not been logic: it has been experience." To Holmes, the law cannot be understood simply by looking at it in a purely formal matter. One also needs to observe the process by which the law has developed in history. The growth of the law is logical, but in practice it is also messy. It is careful and legislative, but it is also subject to "the secret root from which the law draws all the juices of life [..] considerations of what is expedient for the community concerned." To Holmes, "the law is always approaching, and never reaching, consistency. 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. It will become entirely consistent only when it ceases to grow."
You'll note that this is all a very instrumental, material view of law. Law, to Holmes (and this characterisation comes via Biddle) is "a statement of the circumstances in which the public force will be brought to bear upon men through the courts." This stands in particular contrast to the philosophy of natural law, for example, where the law is considered to be an objective, external prescription for moral conduct based on natural rights endowed by God or Nature. Holmes's approach became known as legal realism, a school of thought closely related to the legal positivism that developed in Britain in the Benthamite tradition, in which the law becomes a question of what will the courts do, rather than what ought be the case.
In the present work, Holmes develops his thought by discussing several important areas of the common law, commenting on general principles and making observations as he sees fit, but mostly confining himself to the major areas of criminal law, tort, possession, contract, and succession. Occasionally Holmes explicitly states that he will cover some otherwise minor subject at great length simply because he personally finds it interesting, such as when examining the liability of the "bailee" -- i.e. someone whom possession, but not ownership, has been transferred to -- under common law. An interesting way to proceed, and one that I can mostly get behind. But there is too much material in the book to just proceed through it linearly in a review -- I'll just comment on various areas in much the same fashion as Holmes, commenting on general principles and making observations as I see fit.
Criminal liability is discussed first, with Holmes dedicating a chapter to its history in Greek, Roman, Germanic, and English law. Holmes asserts that the origin of criminal law and the law of torts can be found in the desire for vengeance one feels upon being wronged. The law formalises vengeance; in a sufficiently mature legal system, agents must know what conduct will leave them liable for reproach under the law, and are thus incentivised to avoid such behaviour. The law is thus entirely preventative or ex-post in nature. Quoting Holmes at length:
"[..] there can be no case in which the law-maker makes certain conduct criminal without his thereby showing a wish and purpose to prevent that conduct. Prevention would accordingly seem to be the chief and only universal purpose of punishment. The law threatens certain pains if you do certain things, intending thereby to give you a new motive for not doing them. If you persist in doing them, it has to inflict the pains in order that its threats may continue to be believed."
This is certainly not a new take on law, and Holmes finds himself in the company of any other number of jurists and thinkers on the matter. Grotius, in his Rights of War and Peace, cites Plato: "justice does not inflict punishment for the evils that are done and cannot be retrieved; but to prevent the same from being done for the time to come."
In purely mechanical terms, vengeance is certainly a simple and effective, if crude, solution to the problem of defection in repeated games (where here "defection" can basically be understood as instances of non-cooperation inside a mutually-understood regime of cooperation). Just using the idea of theft, for example: if I understand that we are obeying certain rules (e.g., we don't take each others' stuff), and you break those rules (e.g., you take my stuff), then I will likely feel a passionate urge to make you smart for it. This urge is primal and innate, as strong as just about any other extant human emotion. But vengeance is a general solution to defection in general repeated games -- it is by no means limited to human behaviour or society. Continuing in the spirit of theft: such behaviour, along with some concept of property rights, tends to manifest in social animals because it is plainly evolutionarily favourable. Jointly-understood property rights allow you and I use our environment to plan for the future in a mutually-beneficial and fitness-enhancing way. A credible threat of vengeance is what enforces these rights, decreasing the probability that either of us defects.
It can be striking to see the similar nature of this sort of behaviour in other animal species. I don't watch much TV, but I recently caught an episode of Blue Planet or Round Planet or something that just happened to be on one night. There was a fascinating segment where some Adelie penguins in Antarctica were busy building nests out of stones. At one point, when one little penguin plunked a fresh stone into his nest and waddled off to find another, one of his buddies snatched it, dropping it into his own nest when the other guy’s back was turned. This continued for a few iterations until the honest penguin happened to notice what was going on, proceeding in short order to open a spectacularly fierce can of penguin whoop-ass on the sneakier fellow. I may not "know what it's like to be a penguin" in the abstract, but I have little doubt that I can guess what this little guy felt like when he caught his buddy pilfering his rocks.
Back to Holmes, who himself points out that "even a dog distinguishes between being tripped over and being kicked." Penguins may lack the sophistication to formalise their intuitions for revenge, but humans do not, and Holmes makes a convincing case that this is the material origin of criminal liability. He uses this to derive the idea that a sound body of criminal law must correspond with the sensibilities of the population over which it has jurisdiction. The argument is as follows: if the law prescribes penalties for some injurious act that are considered too lenient by the population, then the prevailing urge for vengeance will induce the population to ignore the law and attempt to exact revenge extralegally. This is true by construction; if the population does not seek extralegal vengeance, then the law can be said to correspond with their sensibilities. If wide extralegal conduct occurs, then by definition there is no rule of law, and the whole exercise is rather pointless.
(N.b. this idea is certainly not original to Holmes, either. Faguet, in his Cult of Incompetence -- citing Montesquieu's Spirit of the Laws, in turn citing Plutarch's Lives and the Hebrew Bible -- points out two examples of this principle: the archaic statesman Solon as having given the Athenians "the best [laws] they would endure," and God saying to the Jews "I have given you precepts which are not good," i.e., per Montesquieu, that they had only a relative goodness. I actually couldn't find the quote that Montesquieu references, the closest seeming to be Proverbs 4:2, but I assume he more or less got it right.)
All of this implies the existence of a kind of vague convexity: the law exists because some restriction on behaviour is desired, but legislate too much, and the population will flout it as they see fit -- i.e., by failing to restrict their behaviour. There thus must exist an "optimum region" or "true" law, sitting somewhere between too little and too much, that broadly matches the sensibilities of the underlying population. This is the law that the process of the common law aims to find, adopting new conduct through binding precedent, or sloughing off existing prescriptions as they fail to any longer match the sensibilities of the population. In any case, the point is that the law is a function of the population over which it holds jurisdiction; the law itself is an external standard, but it is one that comes with a context.
The abstraction of the "reasonable and prudent man" is used to align the law with the population over which it has jurisdiction. What is considered to be in alignment with the population's sensibilities is conduct that would be justifiable to the "reasonable and prudent man," both to his intuitions and reasoned consideration of the matter in any relevant context. In practice, the reasonable and prudent man is deemed to be some hybrid of the judge (Holmes, invoking tautology: "law is practiced by reasonable men") and the jury, which is supposed to be a representative of the broader population at large. The population as a whole is required to conduct itself according to the standard of the reasonable and prudent man, and to do so at its peril. That is: a man is required to know what conduct would align with the sensibilities of a reasonable and prudent man, and moderate his conduct accordingly, or he may find himself criminally liable. This is fairly interesting, because it does not imply that the sensibilities or intuitions that the law targets are necessarily that of the average man, or the median man, or even the modal man in the population (whomever they might be); if judges tend to be of a higher moral character than the population at large, for example, then their influence on the "reasonable and prudent man" will tend to skew the standard of moral conduct accordingly. The implication, in any case, is that ignorance of the law does not limit legal liability -- a well-known property of the law (at least to reasonable and prudent men).
In his early treatment of criminal liability (as Holmes often puts it, "at common law," a terminology that I enjoy), Holmes develops the theory that the law is indifferent to acts per se, but it is the characteristics of an act that leaves an actor criminally liable. That is: an actor becomes criminally liable when he performs some action that will probably cause some harm that the law seeks to prevent (as judged by a reasonable and prudent man). The motivations of an actor, or his moral character, or whatever, are irrelevant and distracting; it is the action, in its context, that determines liability. The discussion on liability under tort proceeds similarly, with Holmes echoing an analogous sentiment: "what the law really forbids, and the only thing it forbids, is the act on the wrong side of the line, be that act blameworthy or otherwise."
In his discussion on tort, Holmes spends a fair bit of time discussing fraud, or deceit, which he asserts is used to "preserve the reference to morality" in the common law, stating that the common law "makes fraud the ground on which it goes." Holmes states that the common law does not hold that a man always speaks "at his peril." Instead, it "works out an external standard of what would be fraudulent in the average prudent member of the community, and requires every member at his peril to avoid that." Experience, in particular, is what Holmes deems useful for deciding what is prudent in a given scenario -- thus the importance of binding precedent in similar cases, a jury (ideally) representing the population as a whole, etc. Holmes states one of his many nice general principles on the law, here: "the general purpose of the law of torts is to secure a man indemnity against certain forms of harm to person, reputation, or estate, at the hands of his neighbors. [..] It is intended to reconcile the policy of letting accidents lie where they fall, and the reasonable freedom of others with the protection of the individual from injury." A discussion about the role of experience in the common law follows, and is quite good.
Holmes's discourse on possession -- the legal concept of exercising one's will over a thing, while not actually owning it -- is lengthy and fascinating. The topic is deep, with Holmes himself asserting it to be the second-most important concept in the common law, after contract. Much of the commentary in this chapter is surprisingly weighty, and it quickly becomes obvious that possession is a more profound philosophical topic than it may first appear to be -- filled with notions of agency and sovereignty, the manifestation and exercise of the will in the world, and so on (on purely legal grounds, it connects naturally to other topics such as property and conveyance). Holmes points out the interesting and very "realist" fact that possession and contract are inverse concepts of a sort: "[..] while possession denotes the facts and connotes the consequence, property always, and contract with more uncertainty and oscillation, denote the consequence and connote the facts."
Holmes engages in quite a bit of comparison between the treatment of possession in different legal schools of thought, frequently citing any number of esteemed historical jurists and legal philosophers on the subject -- ancient and modern; Roman, German, and English. There are citations to the Roman law regarding hunting of wild animals and such, for example -- areas where Roman and English law agree. And there are others where American cases have been ruled contrary to that found in the Corpus Juris Civilis. There are also interesting descriptions of the German philosophy of law that was prevalent at the time -- that possession was marked by the ideas of the will to power and such. All very interesting.
May 31, 2009
I bought this book a year ago with the intention to read it all at once. Time constraints made that near impossible. If you're a kid interested in law, you should definitely read this. If not, well...it's pretty interesting as far as 'informational reading' goes. But then again, informational reading isn't exactly what I'd call a fun read.
June 20, 2014
law embodies story of nation’s development, history beginning with intention, recovery solutions unintended damage, bound by property rights to take care of property, law approaching consistency, spring from blame revenge malice and intent, basis of prudent man.
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June 19, 2007For school...
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September 23, 2010The Common Law by Oliver Wendell Holmes Jr. (1991)
September 25, 2011
He's way off on the law. Something to do with a hundred years of history, and a different jurisdiction.
July 22, 2014
This book is a must read, but it is dense.
May 6, 2022
As an incoming law student, I felt the need to read this book. I’m glad I did, and I intend to read it again after my 3 years of study and compare the two reading experiences.
I wish I had a law dictionary on hand as I read the book. There were a few places where I was completely lost due the legal terms being heavily used. I also experienced terms with different legal meanings than they carry in everyday parlance. The last chapter in particular was difficult in this regard.
The chapters on criminal law and contracts were particularly interesting to me, and I found myself more excited by contracts than I expected. It’s clear the author was an exact tactician with his words and took the time to be exceptionally clear in his meanings.
I wouldn’t say I enjoyed reading this book, but I do think my brain was stretched in a way that will be helpful starting my 1L year this fall. For that, I am glad I undertook the challenge of this book.
I wish I had a law dictionary on hand as I read the book. There were a few places where I was completely lost due the legal terms being heavily used. I also experienced terms with different legal meanings than they carry in everyday parlance. The last chapter in particular was difficult in this regard.
The chapters on criminal law and contracts were particularly interesting to me, and I found myself more excited by contracts than I expected. It’s clear the author was an exact tactician with his words and took the time to be exceptionally clear in his meanings.
I wouldn’t say I enjoyed reading this book, but I do think my brain was stretched in a way that will be helpful starting my 1L year this fall. For that, I am glad I undertook the challenge of this book.
December 5, 2022
It’s hard to review this fairly. Probably if you have a better background in legal history it’s a lot more fun. If you know a little common law then it’s followable, but not exciting. The basic argument is that the law developed in ways that are at odds with the a priori arguments for their current forms. It makes that case quite well. Less impressive is the reflections on morality, about how the law doesn’t care about morals like we assume. Here he keeps sneaking in language about advancement and civilizing and whatever else without acknowledging what he’s doing.
January 16, 2019
As a layperson with respect to law, I found this book mostly interesting but at points over my head. There's a lot of vocabulary that's difficult to penetrate without a lot of background. The earlier chapters were more interesting, but it seemed to get dense when it began discussing minutiae relating to bailments, contracts, and covenants. Still wasn't a miserable read but I think a heavily annotated version would be helpful.
October 24, 2020
This is one of the most difficult books that I've read, possibly because it was written in the 1800s and I'm not familiar with all of the vocabulary. Common Law is set by precedent with decisions based on what a person could reasonably conclude. I can understand why our government has gone away from common law, too many people want to control reasonableness. I would recommend this book for reading after reading, however.
June 9, 2022
Written by one of the greatest Justices in history The Common Law provides a excellent introspective on early 20th century law as well as what Holmes considers the key points of the common law. Although definitely not an easy light read the Common Law is a must read for the history of American Jurisprudence.
June 29, 2018
I was hoping for a book about the judicial philosophy of the future Supreme Court Justice, Oliver Wendell Holmes Jr., but The Common Law is a dry series of lectures about 19th century law. I’ve attended CLEs that were more entertaining.
October 26, 2017
Like a lot of books this age, there are a few pearls interesting insights in a vast sea of boring.
October 27, 2021
Thoroughly enjoyed this read.
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July 21, 2025Worthy of note but a limited archaic.
January 26, 2022
I did not finish this book, but not because it isn't a good one. It made me wish I had gone to law school. It was very interesting, even enlightening. But it was just too dense for me to stick with it, and I found it frustrating to keep trying to find the cases and understand the verbiage. It requires really serious focus to truly understand it, and I regret leaving it so soon.
Had I had the background, I have no doubt I would have found it fascinating and fulfilling.
I absolutely should have gone to law school. Always wanted to, just never made it happen.
Had I had the background, I have no doubt I would have found it fascinating and fulfilling.
I absolutely should have gone to law school. Always wanted to, just never made it happen.
May 24, 2021
annoying, mostly. but the notion that law is more experience than reason is a sufficiently important point. we might qualify that to say that 'experience' is politics, or ideology. i doubt that holmes was arguing for what we might think of as identitarian deference--i'm not sure he was even thinking in vitalist terms--though any time someone prefers 'experience' over reason, we know that we may be in intuitionist irrationalism (cf. Lukacs in ZdV regardng the relation of far right politics and irrationalism)--though of course a traditional view would be that he tooths on the kantian distinction between a priori and a posteriori knowledge.
do we think his pithy ratio decidendi in Buck v. Bell is consistent with vitalist experientialism?
do we think his pithy ratio decidendi in Buck v. Bell is consistent with vitalist experientialism?
July 27, 2022
Entertaining listening 🎶🔰
Another will written romantic relationship family adventure thriller short story by Robert W. Chambers about a painter and his relationships successes and failures. I kept trying to connect with this novella but in the end give up. I would recommend give it a try. Enjoy the adventure of reading 👓 or listening 🎶 to Alexa as I do because of eye damage and health issues. 2022 👒🗽
Another will written romantic relationship family adventure thriller short story by Robert W. Chambers about a painter and his relationships successes and failures. I kept trying to connect with this novella but in the end give up. I would recommend give it a try. Enjoy the adventure of reading 👓 or listening 🎶 to Alexa as I do because of eye damage and health issues. 2022 👒🗽
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