[Admin’s Note: This is a guest post by Jared, who has a tendency to drift between British and American spellings, but who has recently been trying to standardise (ha ha) on the former.]
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 nineteenth and early twentieth centuries, notably having served as both Associate Justice and Acting Chief Justice of the United States 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. (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 nineteenth 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. (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. (N.b. it is perhaps worth noting that the existence of such characteristically different, yet Western, schools of thought around law, science, philosophy, etc. seem to have died out after the early twentieth century, with almost nothing like them existing in modern day.)
On contract (again, to Holmes, the most important subject in the common law), Holmes begins by discussing its history in law, noting per Maine that any ancient analogue to contract is comparatively rudimentary and primitive in its scope. Holmes primarily cites debt, covenant, promissory oath, and surety as progenitors of contract—debt and surety are covered in some detail, with Holmes asserting that debt does the most to unveil the origin of modern contract law. Holmes goes over some of the older ways of settling debt; this winds up being surprisingly interesting, and not solely due to the fact that some of these “methods”—including so-called “witnesses” and even duels—can seem hilariously primitive to the modern reader.
At the time of Henry II, for example, a man could simply get bands of other men to swear by him (to back him up, that is) in order to assert his being in the right on some side of a debt contract. Quoting Holmes: “In those cases where a trial by witnesses was possible, if the party called on to go forward could find a certain number of men who were willing to swear in a certain form, there was an end of the matter.” Although this certainly involved having some skin in the game re: consideration of public reputation and the like, and was surely somewhat effective, one gets the sensation that he who could simply drum up a bigger mob won the dispute. In the Norman period things were even worse—the matter could be decided by literally duking it out and seeing who came out on top.
Holmes points out that both of these, uh, “techniques” seem “like a more primitive way of establishing a debt than the production of the defendant’s written acknowledgement.” And indeed, here the topic becomes even more interesting: Holmes asserts that it was the common use of seals, made e.g. in wax, that propelled the use of contract forward. Prior to seals, sans witnesses or skill with a rapier, a defendant’s handwriting was the only piece of evidence that could attest to his having formally agreed to some contract. And, handwriting being no less forgeable in the 12th century than it is today, it was not deemed to be a reliable device for establishing formal agreement. But when one was able to prove his agreement, via signature, beyond some reasonable degree of doubt—then the power and utility of contract expanded, and its use in turn. This all suggests, very intuitively, that it was the innovation of a weak form of cryptography that enabled the broader, organic flourishing of contract. Indeed, I feel like if I rooted around Nick Szabo’s blog for long enough, I’d find this proposition stated explicitly.
Holmes spends a fair bit of time ruminating on the nature and substance of contracts. The core idea is that a contract is to be viewed as a voluntary assumption of risk. The notion of consideration is dealt with in quite some detail, consideration—essentially a notion of bond or cost incurred—being a necessary determination of contract at common law. Holmes reiterates several times that something may be deemed a consideration or not in different cases, depending on the agreement of the parties. He therefore discusses some principles about “how a thing must be dealt with, in order to make it a consideration.” He asserts out that a promise “must be made and accepted as the conventional motive or inducement for furnishing the consideration,” tying together promise and consideration under mutual, reciprocal inducement.
Holmes goes on to discuss what may or may not be promised in a contract, making (in typical realist fashion) a distinction between morally and legally admissible promises. It may, for example, be immoral for a man to make a promise about something over which he has no control, but this does not make such a thing legally inadmissible. There is some interesting discussion, noting that courts do not seek to enforce contracts at common law, in terms of guaranteeing that a promisor actually fulfills his promise. Rather, in the event of a breach, they award damages for said breach, to be established via “construction,” which is essentially an arbitration process (although one performed by a court). Holmes justifies this by pointing out that, since contracts are voluntary, their consequences must also be voluntary. Before leaving the subject, he touches on the idea of void and voidable contracts—in all such cases, Holmes demonstrates that there must have been an absence of one or more elements necessary to construct a contract in the first place: “Either there is no second party, or the two parties say different things, or essential terms seemingly consistent are really inconsistent as used.” In other words, one of the requisite conditions of a contract is missing, thus the contract never really existed.
The final topic Holmes touches is succession, by way of three lectures. Much of it echoes Maine’s treatment of the subject in Ancient Law, as Holmes points out the descent via Rome of succession as the continuation of a legal fiction. In short: under ancient law, the atomic unit of society was the family, which existed as a legal fiction, somewhat akin to a modern-day corporation. The family’s patriarch was akin to a corporation sole, formalising the office of executive. Another person would receive that position upon his death, assuming the rights and obligations of his “office,” and this was the progenitor of succession as it is now known. Holmes, like Maine, asserts that succession in England in Victoria’s time was of purely Roman descent—it was obviously tweaked to match contemporary British, rather than Roman, society of the time, but its general principles were (and still are) identical to the Roman law. The first instances of succession inter vivos, i.e. between living agents, reported by Holmes are very interesting. Roman law evolved via Equity and Fiction (in Maine’s sense) to the point that the position of familias (i.e. that “office” held by the paterfamilias) could be sold to another member of the family, or eventually transferred to a trustee in the case of bankruptcy. This was, in all facts, succession between living agents. Holmes asserts that eventually the elements of succession were discretised, so that someone could succeed in title to some particular element of familias, rather than the whole package. Holmes cites this as occurring quite late, but still in Roman times, evidenced via the Corpus Juris Civilis.
Holmes’s final discussion on succession is a long and somewhat boring lecture, far too detailed for my tastes. But sifting through the detail, the main principle that can be extracted is that, in Holmes’s words, “wherever one party steps into the rights or obligations of another, without in turn filling the situation of fact of which those rights or obligations are the legal consequences, the substitution is explained by a fictitious identification of the two individuals, which is derived from the analogy of the inheritance.” (There is really a lot of interplay with Maine on this subject. Holmes points out that it is dangerous to assume that “things were always as they are now,” i.e. that things that appear common sense to us moderns would have appeared as such to ancients. Holmes, like Maine, traces the development of succession through inheritance, detailing both the origin of the legal fiction, and the history that turned it into a “general mode of thought.”)
Right. So that’s The Common Law. How to appraise it, indeed? As a book it is a lively and mostly enthralling read, but the book itself is the least interesting thing to consider here. What is more interesting is to attempt to appraise the subject matter, and in turn, the philosophical legacy of Holmes himself.
On the one hand, there is a strong notion of legal realism that borders on the absurd. If one takes the idea of “what will the courts do?” to be the philosophical foundation of the law, the result can only be that the law is based on the caprice of judges (towards whom the characteristics of the reasonable and prudent man are inexorably skewed). Perhaps this is reasonable; under civil law, after all, the basis of the law is to be found in the caprice of the sovereign. If the lawmakers, whoever they are, are virtuous—if they consider themselves subject to a higher law, that of Truth, or Nature, or God—then it is certainly true that their actions may form a reasonable “abstraction barrier” for the purpose of analysing the law. But the actions of sovereigns or judges can never be the foundation of the law, and, barring the simplistic assumption that those agents are always reasonable (one made by Holmes re: judges, admittedly), any legal framework that limits itself to what lawmakers do must necessarily be incomplete.
But as a framework for analysis, and for thinking about the law in general, Holmes’s legal realism strikes me as a valuable tool. One simply cannot argue against Holmes’s aphorism that “the life of the law has not been logic: it has been experience,” at least seemingly without also needing to defend the idea that the law is always and everywhere perfect. It seems that taking virtue out of the equation, and looking at the law as it is, and not as it ought to be, is the productive way to use Holmes’s realism. In this way Holmes’s work on law is trivially Machiavellian, and arguably of no lesser value than Machiavelli’s own work on power (Holmes’s practical legacy, brought about by his later work in the Supreme Court, may be quite different from Machiavelli’s philosophical legacy, but I will leave this kind of thing out of scope).
Where Holmes’s work can be said to be lacking is thus on matters of ought. What ought the law be, what ought lawmakers do, etc. And this is of course a far thornier problem of moral philosophy. The oughts of the law that Holmes does propose—that it ought work to maximise liberty and minimise harm—are at least reasonable, of course, and perhaps it is even impossible to really treat the subject any better on a pragmatic level. But it is by no means clear that these aims yield law that enforces the “true” standard of conduct, whatever that is (it is precisely here, I think, that Holmes came into conflict with the Jesuit lawyers and their Catholic notion of Natural Law). Perhaps the most productive thing to do, in any case, is to simply take Holmes’s framework, as Machiavelli’s, as being a useful tool for thinking about the law, and to relegate matters of ought as simply being out of scope.
As for the common law, imagined under Holmes’s principles: I think it can be immensely useful, but is not likely to be a complete framework for law. Certainly there are parts I find to be particularly valuable; the abstraction of the reasonable and prudent man seems to make it much easier to stipulate that e.g. general manufacturers, or some class of professionals, or whoever, take a “reasonable standard of care,” and then leave it to the courts and experience to decide what “reasonable” means, exactly. In these situations it seems difficult to divine, say, the One True Minimum Warranty Specification for four-wheel-drive transmissions or whatever from God or Nature (warranties do not seem to have been a source of strong selective pressure in the ancestral environment, and I haven’t yet uncovered any laws of 4WD in Deuteronomy). The framework that Holmes discusses in The Common Law seems perfectly suited to this kind of matter, however, and it seems that the reasonable and prudent man should be able to arrive at a perfectly acceptable opinion on it.
Divine warranties are not the end goal of human affairs, however. It may be true that, per Holmes, “law is practiced by reasonable men,” but history suggests that judges are not philosopher kings, and being merely “reasonable” is not necessarily any substitute for being virtuous. Indeed, when weightier matters of power, politics, and sovereignty are at hand, judges may be subject to the same evils as the next fellow. Holmes’s treatise has been interesting to ruminate on, for sure, but it leaves me little closer to a satisfying resolution on the issue of civil versus common law. My intuition remains that it is easier to find one virtuous man than a body of them—perhaps the judges ought be subject to him.