The Common Law

Summary

The Common Law is a book of twelve lectures that Oliver Wendell Holmes Jr. delivered at the Lowell Institute in Boston in 1880 and published in 1881. It is one of the founding works of American legal thought. Holmes set out to give a general view of the common law, the body of law developed by English and American judges case by case, and to explain its rules by their history rather than by logic alone. The famous first paragraph states his method: 'The life of the law has not been logic: it has been experience.' Holmes argues that the felt needs of each age, moral and political theories and even the prejudices of judges have shaped the law more than deduction from principles. To understand a rule, one must trace its history, and often a rule survives long after the reason for it has been forgotten, finding a new reason to justify it. The first lecture traces liability back to vengeance. Early law, Holmes says, punished the thing that did harm, even an animal or an object, and only slowly came to focus on fault. The lectures on criminal law and on torts develop his best-known theory: the law judges conduct by an external standard, asking not what a particular person intended or knew, but what a prudent man of ordinary intelligence would have foreseen in the circumstances. In this way, Holmes argues, the law becomes less concerned with the inner moral state of the wrongdoer and more concerned with general rules of conduct that society can enforce. Later lectures examine bailment (the duties of those who hold another's goods), possession, contract, and succession to property after death and between the living. Throughout, Holmes draws on Roman, Germanic and early English sources to show how ancient forms were reshaped to meet new needs. The book made Holmes's reputation and led to his appointment to the Massachusetts bench. Its view of law as experience influenced later legal realism. Christian readers will want to test Holmes's view against the older tradition of natural law, in which human law is measured by a moral order not made by judges.

Plot or Argument

• Lecture I: Early forms of liability

  Liability begins in vengeance; ancient law punished animals and objects that caused harm.

• Lecture II: The criminal law

  Punishment is justified chiefly by prevention, and criminal liability is measured by an external standard.

• Lectures III–IV: Torts

  Liability for negligence and intentional wrongs depends on what a prudent person would have foreseen.

• Lectures V–VI: Bailment and possession

  The history of the duties of carriers and innkeepers and of the legal idea of possession.

• Lectures VII–IX: Contract

  The history and elements of contract, consideration, and void and voidable agreements.

• Lectures X–XI: Successions

  How rights and duties pass at death and between the living.

Lessons

• History explains law

  Holmes shows that many legal rules make sense only in light of their history. Understanding where something came from helps us judge it.

  • What does Holmes mean by saying the life of the law has been experience?
  • Can you think of a rule that makes sense only because of its history?

• The reasonable person

  Holmes argues that the law judges conduct by what a prudent person would foresee, not by private intentions. This gives a common standard for all.

  • What is the external standard?
  • Is it fair to judge someone by what an ordinary person would have known?

• Law and morality

  Holmes separates law from morality more sharply than older writers. The Christian tradition of natural law holds that human law must answer to a higher moral law.

  • How does Holmes treat the relation of law and morals?
  • Why might it matter whether law rests on a moral order or only on experience?

Context

By 1880 American law schools were beginning to teach law as a systematic science. Holmes, influenced by historians of early law such as Henry Maine, sought to explain the common law historically.

Composition

Holmes prepared the twelve lectures in 1880 while practising law and editing legal journals. He delivered them at the Lowell Institute in Boston that winter and published them in 1881.

Reception

The book was praised in England and America and helped bring Holmes appointments to the Harvard faculty and then to the Massachusetts Supreme Judicial Court in 1882. It remains a classic of American jurisprudence.

Comparisons

• Commentaries on the Laws of England

  Blackstone presents the common law as a rational system; Holmes explains it by history and experience.

• Summa Theologica

  Aquinas's treatise on law grounds human law in natural law, a view Holmes did not share.

• The Institutes of Justinian

  Holmes often compares common-law rules with Roman law.

Quotes

For Students

A reading companion for classical Christian high school students. See the student guide.

Reading Guide

Watch for

• Holmes's method of historical explanation.
• The external standard of the prudent man.
• The link between early vengeance and later liability.
• How old forms are given new reasons.

Key terms and names

Common law

Law developed by judges through decisions in individual cases.

Tort

A civil wrong, other than breach of contract, for which a court may award damages.

Liability

Legal responsibility for an act or its harm.

Bailment

Delivery of goods to someone who holds them for a purpose, such as a carrier.

Seminar Questions

1. Comprehension What does Holmes say has shaped the law more than logic?
2. Comprehension How did early law treat animals or objects that caused harm?
3. Interpretation Why does Holmes think the law uses an external standard rather than the actual state of mind of the defendant?
4. Interpretation How can a rule survive after the reason for it is forgotten?
5. Interpretation Is Holmes right that the law is mainly a product of experience?
6. Interpretation What are the strengths and dangers of judging people by what a prudent person would foresee?
7. Big Question Must law be grounded in a moral order beyond human experience?

Faith Connections

• Romans 2:14–15 (Scripture)

  The Gentiles "shew the work of the law written in their hearts": the biblical root of natural law.

• Deuteronomy 19:4–6 (Scripture)

  The law distinguishes between killing a neighbour "ignorantly" and with hatred, an early concern with intent.

• Thomas Aquinas, Summa Theologica I-II, q. 90–97 (Great Conversation)

  The classic Christian account of law as an ordinance of reason for the common good.

Logic and Rhetoric

Central argument: The common law is best understood historically, as the product of experience and social needs, and it judges conduct by external standards of what a prudent person would do.

Rhetorical device: aphorism. "The life of the law has not been logic: it has been experience."

Debate: Resolved: that law should be judged by its usefulness rather than by a higher moral law.

Memory Work

The life of the law has not been logic: it has been experience.

Writing Prompts

Essay: Explain Holmes's view of the common law and evaluate it from the standpoint of natural law.

Comparison with Commentaries on the Laws of England: Compare Blackstone's and Holmes's accounts of the common law.

Creative Prompts

• Essay

  Evaluate Holmes's claim that the life of the law has been experience rather than logic.

• Classroom

  Find a legal rule in your school or community and trace why it began.

• Dialogue

  Write a conversation between Holmes and Thomas Aquinas on whether law must be grounded in morality.

Further Reading

• The Common Law, Oliver Wendell Holmes Jr.