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legally independent.51

This may be part of the answer Pollock might have found to his question
concerning Holmes™s purpose in exploring arrangement. Pollock asked
the question four years after this essay was published, having received a
copy of it along with the other papers that Holmes had sent from America.
Pollock™s puzzlement is in the movement of Holmes™s theory. Holmes
made no effort to illuminate it, or even to call attention to it in his ongoing
correspondence with Pollock. Presumably, the alternative theory that lay
at the end of his exploratory path was a suf¬cient legacy. The earlier essays
read today almost like an intellectual diary, written for himself alone as
he explored philosophical aspects of classi¬cation.
The full answer to Pollock™s question is found in context. Professor
James Herget, who in his recent study of American jurisprudence looks
back on the quest for universal legal categories, which continued long
after Austin and which he likens to the search for a “holy grail,” astutely
asks:

Are these concepts empirical generalizations or are they inherent mental struc-
tures or inherent social structures? If they are none of these, as it turns out, then
the alternative is that they are simply convenient word usages, technical termi-
nology no different from that of the plumber or the cook, and, hence, having
nothing to do with science.52

Early on in this quest, which continues today with analytical positivism,
Holmes had tested the deeper level of signi¬cance to Austin™s system
of classi¬cation, concluding that a better path to philosophical under-
standing lay in history. By 1873, classi¬cation was still useful to him as an
analytical tool, but was in the process of being downgraded to an ancillary
role. While still engaged in testing the merit of organizing the law around
duties, he would ¬nally conclude, after exploring every aspect, that an

51 Formative Essays, 125, and 1 Collected Works, 332.
52 Herget, American Jurisprudence, 116.
Holmes, Legal Theory, and Judicial Restraint
78

analytical scheme, from a philosophical standpoint, was undesirable “in
itself.”53
An irony may be found in the fact that this last exercise in solving the
problems of arrangement introduced a new principle that was to supplant
the original undertaking and gain a powerful life of its own. The principle
of evolution toward external standards of liability would tie together the
leading strands of his criticism of analytical jurisprudence and lead to
a new synthesis, emerging after he published again nearly three years
later.
The early period of his scholarship, in which Holmes tried mightily to
test various duty-based schemes of arrangement, could be re¬‚ected in his
casual comment to Pollock in 1919 that “no general proposition is worth
a damn.” In part this refers to the false sense of universality that Austin
had presumed and Holmes would deny. A further meaning would be
added as Holmes moved toward a general theory of liability and judicial
responsibility: general propositions do not decide concrete cases.
In an earlier letter from Pollock dated July 3, 1874, there appears
a comment challenging Holmes™s citation of Beadel v. Perry for the key
principle that would occupy a central place in his thought: “As to the
case which professed to lay down a mathematical rule about rights to light
and air, I think you will ¬nd that notion has been exploded by several
later decisions in the Appeal Court. (N.B. Our equity cases in courts of
¬rst impression are for various reasons to be used with great caution as
authorities on questions of pure law.)”54
Holmes chose to ignore this relevant criticism. He would go on to use
the same argument, still citing Beadel, in The Common Law.55 The report

53 That is to say, as providing self-explanatory universal categories. Herget provides an
illuminating summary of the post-Austinian quest for universal categories in American
Jurisprudence, 82“116. Much interest was inspired by the scheme advanced by Wesley N.
Hohfeld in two famous articles published in 1913 and 1917. Ironically, Holmes™s critique
of Austin years before was barely recognized and never retrieved by critics of the project
itself. As Herget notes, there is a remarkable tendency toward ignoring previous relevant
scholarship throughout the history of American jurisprudence. Id., ix. While most critics
of the project have mustered analytical reasoning against it, probing inconsistency and
incoherence, Holmes is unique in arguing from the historical derivation of legal terms
and language. One reason for ignoring Holmes™s critique of fundamental universals may
be his failure to elucidate the relevance of it to The Common Law and later writings.
54 Pollock to Holmes, July 3, 1874, in Holmes“Pollock Letters, vol. 1, p. 4.
55 Holmes, The Common Law, 128. However, Holmes now cites three additional cases, City
of London Brewery Co. v. Tennant, L. R. 9 Ch. 212, 220; Hackett v. Baiss, L. R. 20 Eq. 494;
and Theed v. Debenham, 2 Ch. D. 165.
Holmes and Legal Classi¬cation 79

of this decision, on which Holmes relied, is surprisingly bereft of sup-
port for the underlying proposition that English common law courts had
moved with deliberate consideration toward a ¬nal consensual rule. He
had nevertheless become convinced of the accuracy of his own unique
vision of the emergence and growth of speci¬c standards of liability.56

56 In a note to Holmes™s edition of Kent™s Commentaries, written shortly after Theory of Torts,
he enlarges as follows:
Furthermore, when the facts are admitted, or capable of exact statement, it is simply a
question of policy, not here discussed, whether the function of the jury shall not cease
after a rule suggested by their ¬nding has been applied to the satisfaction of the court,
and whether that rule shall not be adopted thereafter by the court as a precedent in like
cases, on the principle mentioned at the beginning of this note, and in accordance with
the tendency of the law to work out exact lines through the region of uncertainty always
to be found between two opposite extremes, by the contact of opposite decisions. As has
been done, for instance, in the rule against perpetuities, or as to what is a reasonable
time for presenting negotiable paper, as is happening with regard to sales, by successive
decisions as to what are differences in kind, and what are only differences of quality;
as has partially taken place with regard to ancient lights, where the former rule, that
an infraction of a prescriptive right of light and air, to be illegal, must be substantial, a
question of fact for the jury (Back v. Stacey, 2 C. & P. 465), is giving place to the exact
formula that, in ordinary cases, the building complained of must not be higher than the
distance of its base from the dominant windows. Beadel v. Perry, L. R. 2 Eq. 465.
James Kent, Commentaries on American Law, vol. 2 (Boston: Little Brown, 1873, O. W.
Holmes, ed.), 561 n. 1; 2 Collected Works, 198.
6

The General Theory of Liability




If, within the bounds which I have set myself, any one should feel inclined
to reproach me for a want of greater detail, I can only quote the words of
Lehuerou, “Nous faisons une theorie et non un specilege.”
O. W. Holmes, conclusion of Preface to The Common Law (1881)
Holmes must be one of the very few theorists of modern times who have
argued for a general theory of liability embracing both the criminal and
the civil law, and the contemporary English lawyer is certain to be deeply
suspicious of his suggestion that “the general principles of criminal and
civil liability are the same.”
P. S. Atiyah, 1981 Holmes Lecturer at Harvard Law School

These two brief remarks, by Holmes and the British legal scholar P. S.
Atiyah, separated by a century, bracket the transit of what may be called
Holmes™s general theory, the historical hypothesis that he wedded to his
common law conception after an absorbing period of work in the years
1873“76.
Holmes had joined George Shattuck and William Adams Munroe in
a full-time Boston law practice, and pursued his research at night and
on weekends. The intensity of effort, leading to eventual publication
of The Common Law in 1881, is re¬‚ected in letters and later remarks.1 By
1881 Holmes™s intellectual path had gone from critique to construction “
toward “une theorie et non un specilege” “ but long before its hundredth
anniversary the theory had fallen prey to the “deep suspicion” of which
Professor Atiyah would speak in his 1981 Holmes Lecture.

1 Howe, Justice Oliver Wendell Holmes: The Proving Years, 11“25, 96; White, Justice Oliver Wendell
Holmes, 130.

80
The General Theory of Liability 81

The journal of his reading, which he kept from 1865 until the end of
his life, re¬‚ects a new focus during the three years preceding his next
publication in 1876“77, the two-part essay “Primitive Notions in Modern
Law.”2 This hiatus in writing and redirection of attention mark a major
turning point. One result was the gradual abandonment of the subject
of legal classi¬cation with its illuminating critique of defects in Austin™s
scheme and approach, a topic that appears hardly at all in The Common
Law. The book, on which scholarly attention has mainly been focused,
is missing a substantial piece of the intellectual path toward its eventual
theme, the historic shift from moral to external standards of liability.
The Common Law, following Holmes™s prefatory comment, begins with
material drawn from the essays on “Primitive Notions” and sets forth on its
journey toward a general theory of liability. The only remaining evidence
of the earlier interest in classi¬cation is the surprisingly perfunctory dis-
missal of any concern for “specilege” “ an obscure French term for taxon-
omy “ as if a good part of the past decade had not been obsessed with it.
The question posed by Pollock in 1877, and several related ques-
tions, are still relevant for anyone who has worked through the early
essays: whether Holmes was concluding that a systematic arrangement was
merely undesirable or actually impossible, and how then to explain and
interpret legal concepts in a coherent and comprehensive way. Answers
are to be found, some only by implication. But absent the context of
such fundamental questions, The Common Law, preoccupied as it is with
advancing a universal theory of liability, has been a baf¬‚ing and vulnera-
ble treatise.
Pollock should be recognized as more than a foil. Both he and Holmes
were questioning premises of analytical jurisprudence. Questions Pollock
had raised in “Law and Command,” the 1872 article in Law Magazine
and Review, prompted Holmes to stake his own claim by publishing the
notes to his course in jurisprudence.3 He would pursue them into new
territory, with an attitude perhaps less collegial than may appear from
their correspondence. Holmes has paid for the failure to explain himself
fully with a century of misreading. David Rosenberg has shown how easily
scholars have been misled regarding a key point in The Common Law “ his
analysis of liability for personal injury.4


2 Little, “The Early Reading of Justice Oliver Wendell Holmes,” 186“91.
3 See chapter 5, n. 34.
4 Rosenberg, Hidden Holmes, 8“10, 163“69. Rosenberg ¬nds it almost inexplicable that so
many scholars have strained against Holmes™s plain language or ignored a substantial part
Holmes, Legal Theory, and Judicial Restraint
82

The three 1981 Centennial Holmes lecturers, Atiyah, Benjamin
Kaplan, and Jan Vetter, declined to counter what Vetter referred to as
“the marked tendency, which has gained strength over the last genera-
tion, to revise sharply, if not to reverse, the formerly dominant appraisal
of Holmes.”5 If indeed the early work on Austin is an important part of
his legacy, he has himself to blame for burying it, or at least putting it out
of sight, with the offhand quote from Julien Marie Lehuerou, a French
historian, dismissing the import of analytical classi¬cation.6
With the turn to history there is evidence of an effort to con¬rm the
rejection of classi¬cation and reconceptualize the nature of legal classes
and concepts. The renewed drive of writing after 1876 reveals a zest for
con¬rming the historical process that trumps the search for innate rela-
tionships, a gradual process that may offer a better clue to the fundamen-
tal nature of concepts, further undermining any claim that might be made
for the permanence of any conceptual system. With this agnostic percep-
tion arrives a constructive one that ¬nally overwhelms it, the extension of
the historical insight into a general theory of liability, the theme that takes
over The Common Law and that has given rise to such broad disapproval. A
good part of that derives from confusion in interpreting the term “moral”


of his writing to ¬nd a “lax negligence standard” providing nascent American industry
with a “covert subsidy,” characteristic of a putative nineteenth-century trend. Id., 8. This
may well be connected with the widespread failure to ¬nd a connection between the
earlier focus on classi¬cation and the later theory of external standards. Without the
purpose of framing an alternative to Austin™s categories, scholars have looked for other
motives such as political or economic preference.
5 Jan Vetter, “The Evolution of Holmes: Holmes and Evolution,” in Holmes and the Common
Law: A Century Later, occasional pamphlet no. 10 (Cambridge, Mass.: Harvard Law School,
1983), 76.
6 G. Edward White, in Justice Oliver Wendell Holmes, asks perspicuously whether Holmes™s
alteration of his scholarly perspective was a “fully conscious one,” noting that his later
accounts were usually varnished and patently misleading, such as the letter to Harold
Laski in 1922:

You ask me what started my book. Of course I can™t answer for unconscious elements.
I don™t think Maine had anything to do with it except feed the philosophic passion. I
think the movement came from within “ from the passionate demand that what sounded
so arbitrary in Blackstone, for instance, should give some reasonable meaning “ that
the law should be proved, if it could be, to be worthy of the interest of an intelligent
man. . . . I don™t think of any special book that put me on the track “ though the works
that I cited such as Lehuerou helped. I rooted around and made notes until the the-
ory gradually emerged. (Holmes to Laski, June 1, 1922, in Holmes-Laski Letters, vol. 1,
pp. 429“30)
The General Theory of Liability 83

in Holmes™s hypothesis of an evolution from moral to external standards.
Where does this usage come from?
Holmes™s journal shows a burgeoning interest in historical studies of
English, French, German, and Roman law, as well as studies in the emer-
gent discipline of cultural anthropology. The ¬rst part of the essay, appear-
ing in April 1876, indicates that the early law of surrender had reached
the center of his attention. This essay concentrates on documenting the
in¬‚uence of primitive notions of vengeance on strict and vicarious liability
as well as the limitation of liability in admiralty law. In a passage near the
beginning, Holmes relates how, in developing his previous perspective
in “The Theory of Torts,” his interest became focused on the primitive
origins of modern standards of liability. This bears careful reading, as it
witnesses elation at ¬nding an interpretation of history that he believes
“has not been attempted before” and (a propos the subject of judicial
restraint) the root of his later attitude toward “policy” in law:

To lay the foundation for the discussion to which we have referred [the essay on
torts] we were led to glance incidentally at the historical origin of liability in some
cases which Austin, following the jurists of the mature period of Roman law, had
interpreted on grounds of culpability; and to point out that it sprung from the
much more primitive notion, that liability attached directly to the thing doing
the damage. This suggestion will be found to have occurred to earlier writers
who will be quoted. But we shall endeavor in this article to explain that primitive
notion more at length, to show its in¬‚uence on the body of modern law, and
to trace the development from it of a large number of doctrines which in their
actual form seem most remote from each other or from any common source;
a task which we believe has not been attempted before. If we are successful, it
will be found that the various considerations of policy [emphasis added] which
are not infrequently supposed to have established these doctrines, have, in fact,
been invented at a later period to account for what was already there, “ a process
familiar to all students of legal history.7

It should be remembered that Holmes™s use of the master-servant
example entered the essay on torts to buttress the corollary to the proposi-
tion that duty and legal sanctions are not coextensive, ¬rst demonstrated
in the lectures at Harvard College summarized in July 1872. The corollary
was that legal liability is not coextensive with culpability, an idea that
had emerged as a working assumption through the work on tort law. In
a footnote to the essay on torts we ¬nd evidence of Holmes glancing

7 Holmes, “Primitive Notions in Modern Law,” in Formative Essays, 129, 130, and in 3 Collected
Works, 4“5.
Holmes, Legal Theory, and Judicial Restraint
84

“incidentally” at the origin of liability in the primitive notion that it
“somehow attached upon the thing doing the harm.” Yet the same foot-
note refers back to Holmes™s use, in the essay preceding, of the master-
servant example to elucidate the incompleteness of the duty scheme when
applied to succession. The footnote in the essay on torts thus bears wit-
ness to the acquisition of a key piece in the puzzle from which he would
assemble an evolutionary legal philosophy.8
It was not until the ¬rst part of “Primitive Notions” that this piece
assumed its preeminent place. There, as announced in the passage just
cited, Holmes ascribed to the primitive desire for vengeance a formative
in¬‚uence on a number of doctrines, including strict and vicarious liability,
as well as to the limitation of liability in the law of admiralty. The same
examples were to be prominent in The Common Law. From Holmes™s
reading between 1873 and 1876 was drawn the original documentation
for this proposition. Here is a major clue to his meaning of “moral”:
vengeance is the primitive “moral” standard of liability, later replaced by
externality, or the prevailing community standard of prudent conduct
under the relevant circumstances.
Holmes traced various modern forms of liability back to a common
foundation in ancient systems of law “ principally drawing on early Greek,
Roman, German, and Anglo-Saxon sources, with a variety of others from
the Old Testament to recent anthropological studies of primitive tribes.
All demonstrated an interest in “getting at” the offending instrumentality,
whether person, animal, or object, as in Exodus: “If an ox gore a man or
a woman that they die, then the ox shall surely be stoned, and his ¬‚esh
shall not be eaten; but the owner of the ox shall be quit.”9 He noted that
in Plato if a slave caused harm, he was to be given up to the injured person
if the owner failed to remedy the mischief himself. In early German and
English law, even in the customs of primitive tribes, the injured party or
his relatives might seek redress against the offending animal or thing.
The rude Kukis of Southern Asia were very scrupulous in carrying out their simple
vengeance, life for life; if a tiger killed a Kuki, his family was in disgrace till they
retaliated by killing and eating this tiger, or another; but further, if a man was
killed by a fall from a tree, his relatives would take their revenge by cutting the
tree down, and scattering it in chips.10

8 Holmes, “The Theory of Torts,” in Formative Essays, 117 n. 1, and in 1 Collected Works, 326
n. 1.
9 Holmes, “Primitive Notions in Modern Law,” in Formative Essays, 134, and in 3 Collected

Works, 7.
10 Formative Essays, 136; 3 Collected Works, 9.
The General Theory of Liability 85

Thus if early law were to intervene, it was through a cause of action
against the owner, as the instrumentality was not subject to legal process.
The only alternative to surrender lay in the payment of “composition,”
the value of the offending thing. Hence the early action was not based
on the fault of the owner. When payment of money originated as an
alternative to surrender, liability of the master or owner for the acts of
his servant or animal had been created not from the logic of fault later
ascribed to them but from these early practices to effect revenge. So also
the limitation of liability to the value of the offending instrumentality,
insofar as it remained in the law of admiralty after damages had otherwise
assumed a relation to harm, is originally explained by ancient history, not
a post hoc rationale.
Neither installment of the new essay carries any update of Holmes™s
duty scheme of classi¬cation, which has now lost its prominent focus.
What appears to account for this change of emphasis, and for the renewed
drive of his writing that would culminate in The Common Law, is the atti-
tude that there is an overriding lesson to be learned from the primitive
origins of modern standards of liability greater than the analytical doubts
Holmes had developed regarding analytical classi¬cation. This lesson is
that the framework of modern law, notwithstanding gradual accommo-
dation of considerations of public policy, is generated from origins that
must by its own standards be considered nonlogical.
Thus emerged a further argument for the elevation of experience over
abstract reason, articulated two centuries earlier by Hale. Like Hale, who
af¬rmed this insight in obscurity against the thesis of Thomas Hobbes,
Holmes reaf¬rmed it in the teeth of the Austinian project. Despite the
fanfare he gave it in 1876, its relation to Austin™s philosophy would recede
virtually out of sight as he moved toward the more distinctive destination
of his grand theory in The Common Law.
A further and parallel move can be seen in the second part of the
essay, which begins with the following statement of purpose: “The object
of the following investigation is to prove the historical truth of a general
result, arrived at analytically in the pages of this Review ¬ve years ago.”11
The result to which Holmes alludes is the explanation he developed to
account for the manner in which the law had been able to accomplish
the passage of special rights to successors to whom the original situation
of fact did not apply:

11 Holmes, “Primitive Notions in Modern Law. No. II,” in Formative Essays, 147, and in
3 Collected Works, 21.
Holmes, Legal Theory, and Judicial Restraint
86

How does this happen? How can a man who has not used a way for twenty years
acquire a right by prescription? How can a man sue or be sued on a contract
to which he was not a party? The article referred to [the October 1872 essay
on privity] furnished further examples, and the answer there given was that in
such cases there is a ¬ctitious identi¬cation of distinct persons for the purpose of
transferring or completing the right. We have now to consider what light history
will throw on the same question.12

Hereupon Holmes took pains to document the earlier point from Roman,
German, and early English sources, reaching the conclusion that “the
question propounded at the beginning of this article has now been
answered by history in a way which con¬rms the results of analysis.”13
This passage directly addresses Dicey™s confusion in 1882 over the rela-
tion of historical and analytical method. Dicey had read The Common Law
as equivocating between the two, while Holmes enlisted both in recon-
structing common law theory. There is no evidence that Holmes ever
responded to him. Clearly, he assumed that his contribution was amply
displayed in the ¬nal treatise.
Holmes now went further, tracing the intrusion of nonlogical elements
into the law of succession. Identi¬cation of the successor with the grantor
could not explain the emergence in the law of the notion that a given
right could become associated with the object of possession itself.
But, although it would be more symmetrical if the above analysis exhausted the
subject, another case will show that something still remains to be accounted for.
It has been stated above, that a disseisor would not be allowed to join the time
of his disseisee to his own. If the change of hands is wrongful, there is no room
for the analogy just explained. But, suppose a right of way had been already
acquired before the disseisin, how would it be then? Would the disseisor have an
action against a person, other than the rightful owner of the dominant estate,
for obstructing the way? Very little authority has been found in the books of the
common law; but it is believed that such an action would lie.14

The reason that had come to be given for the existence of such an action
was that the easement ran with the land. The attribution of possessory

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