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.

Top 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.

• 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.

• 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.

Verified Quotes