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Citation: 110 Harv. L. Rev 991 1996-1997
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THE PATH OF THE LAW
Oliver Wendell Holmes*
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 inci-
dence 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 hun-
dred years, and now increasing annually by hundreds. In these sibyl-
line 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 gob-
let and the sea-coal fire, is that he forsees 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 text-books, 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
* An Address delivered by Mr. Justice Holmes, of the Supreme Judicial Court of Massachu-
setts, at the dedication of the new hall of the Boston University School of Law, on January 8,
1897. Copyrighted by 0. W. Holmes, 1897.
HeinOnline -- 110 Harv. L. Rev 991 1996-1997
HARVARD LAW REVIEW
something to say in a moment, is that theory is apt to get the cart
before the horse, and to 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 re-
ports. 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 business-like 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 some-
times rises to the height of conscious theory, and more often and in-
deed 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 pur-
pose 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.
[Vol. iio:99i
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THE PATH OF THE LAW
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 im-
portance, as all mathematical distinctions vanish in presence of the in-
finite. 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 conse-
quences 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 stage
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 pre-
scribed by conscience, or by our ideal, however reached. Yet it is cer-
tain that many laws have been enforced in the past, and it is likely
that some are enforced now, which are condemned by the most en-
lightened 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 prohibi-
tions, 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 coex-
tensive 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 should
not all agree as to which were the wrong ones.
1997] 993
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HARVARD LAW REVIEW
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 Eng-
land, that it is a system of reason, that it is a deduction from princi-
ples 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 his 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 imprison-
ment or compulsory payment of money. But from his point of view,
what is the difference between being fined and being taxed a certain
sum for doing a certain thing? That his point of view is the test of
legal principles is shown 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 signifi-
cance 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 con-
sequence, 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 disadvan-
tages, or at least some further consequences, are attached to the act by
the 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 in-
significant 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
[Vol. n0:991
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THE PATH OF THE LAW
fellows. And that I believe is all. You see how the vague circumfer-
ence 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 sig-
nificance 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 con-
tract, 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 ad-
vantageous to get as much ethics into the law as they can. It was
good enough for Lord Coke, however, and here, as in many other
cases, I am content to abide with him. In Bromage v. Genning,' a
prohibition was sought in the King's 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 cove-
nantor, since he intends it to be at his election either to lose the dam-
ages or to make the lease. Sergeant Harris 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 rel-
atively few in which equity will grant an injunction, and will enforce
it by putting the defendant in prison or otherwise punishing him un-
less 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 you that it means
something different in law from what it means in morals, and also to
I i Roll. Rep. 368.
1997]
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HARVARD LAW REVIEW
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 in-
ward 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 lia-
ble, 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 ma-
levolent motive at all, for false statements manifestly calculated to in-
flict 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 at-
titude toward the future, but only signifies that the tendency of his
conduct undei the known circumstances was very plainly to cause the
plaintiff temporal harm.2
In the law of contract the use of moral phraseology has 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 con-
tract, 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 con-
tract 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 opin-
ion no one will understand the true theory of contract or be able even
to discuss some fundamental questions intelligently until he has under-
stood that all contracts are formal, that the making of a contract de-
pends 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. Fur-
thermore, as the signs may be addressed to one sense or another, - to
2 See Hanson v. Globe Newspaper Co., 159 Mass. 293, 302.
[Vol. I I0:99I
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THE PATH OF THE LAW
sight or to hearing, - on the nature of the sign will depend the mo-
ment 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 gen-
eral 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 ga
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