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rights and duties to inanimate objects could only be a development par-
allel to the in¬‚uence of the law of surrender on the development of tort
liability, indicating again the proclivity of the law to permit the “language
of personi¬cation,” drawn from primitive notions, to “cause confusion.”
This example gave still greater strength to Holmes™s historical argument

12 Id.
13 Formative Essays, 159; 3 Collected Works, 30.
14 Formative Essays, 159“60; 3 Collected Works, 30.
The General Theory of Liability 87

against any attempt to comprehend the law as a logical system: “How
comes it, then, that one who neither has possession in fact nor title, is so
far favored? The answer is to be found not in reasoning, but in a failure
to reason.”15
In tracing these multiple historical connections to seal the doom of
philosophical classi¬cation, the two-part essay on primitive notions cul-
minated a period in Holmes™s research that might be characterized as
explorative, while the later writings mainly involve extension and expo-
sition. After 1876 occurred a synthesis within the overall progression,
consolidating doubts about Austin™s static system into the evolutionary
theory of liability.
This grand theory has preoccupied critics, and is so commonly mis-
trusted that its origins are ignored. The terminology, suggesting an
inevitable shift from “moral” to “external” standards, leads to contem-
porary confusion. One aspect is the association of his ¬nal position with
Austin™s strict separation of law and morals. The fact that Holmes took no
pains to disclaim that association after early reviews of The Common Law
suggests that it was not on his agenda openly to confront the formidable
Hobbesian tradition. The better explanation is what I have cautiously
called a proto-Hegelian move “ recasting the Hobbesian ethos as a prod-
uct of history “ although in detail it was quite unlike Hegel. It was rooted
not in Zeitgeist or the innate force of ideas but in a maturation of the
process of resolving concrete and particular con¬‚icts. Compared with
Hobbes, Holmes™s theory provided a more naturalistic historical founda-
tion for the objective rule of law, without which a coherent and robust
order was inconceivable.16
Hobbes and Austin had separated law from morals for at least one
major reason sympathetic to Holmes: the removal of confusion. Yet the
nature of the confusion was quite different. We have seen that Hobbes
was troubled by individual moral notions at odds with interests of the state
(“all violence proceed[s] from controversies that arise between men con-
cerning meum and tuum, right and wrong, good and bad, and the like”),
and Austin focused on de¬nitional precision in the interest of utilitarian
reform (“In consequence of the frequent coincidence of positive law and
morality, and of positive law and the law of God, the true nature and


15 Formative Essays, 160; 3 Collected Works, 30.
16 Thus, such remarks as “If a man is on a plank in the deep sea which will only ¬‚oat one,
and a stranger lays hold of it, he will thrust him off if he can. When the state ¬nds itself
in a similar position, it does the same thing.” The Common Law, 38.
Holmes, Legal Theory, and Judicial Restraint
88

fountain of positive law is often absurdly mistaken by writers upon
jurisprudence”). For Holmes the problem lay in misreading the con-
temporary import of legal terms that had been passed down through
generations, carrying moral nuances that were no longer “ if they ever
truly had been “ in effect. This did not, as with Hobbes and Austin, draw an
inviolable barrier separating contemporary ethical standards of conduct
from law.
Such would be made plain in the ¬nal synthesis leading directly into
The Common Law. Holmes returned in 1880 to the notion of successive
approximation, and described more distinctly its historic role in the gen-
eration of legal doctrine. This early insight, having ¬rst appeared with
Mans¬eld™s description of the “business man suddenly appointed judge,”
had been irreconcilable from the outset with positivist legal analysis. Now
Holmes placed it at the center of his theory of liability, the evolution
toward “objective standards.”
By 1880, when the last of the preliminary essays, “Trespass and Negli-
gence,” was published, Holmes had returned to the problem of de¬ning
the actual grounds on which judges and juries act in tort cases. Tradi-
tional analysis, he had noted in 1873, offered but two alternatives. It was
either because, as Austin contended, the harm caused was based on the
fault of the defendant or it must be the opposing view, that the defendant
would be held strictly liable for any harm regardless of fault (“if the act
was voluntary, it is totally immaterial that the detriment which followed
from it was neither intended nor due to the negligence of the actor”).17
Holmes reaf¬rmed his earlier conclusion that this traditional di-
chotomy was a false one. Now he elaborated a third alternative: negli-
gence “does not mean the actual state of the defendant™s mind, but a
failure to act as a prudent man of average intelligence would have done.”
The test of liability was the measure of foresight. If the average reason-
able man could or should have foreseen the consequences of the act, then
the defendant would be held liable. Austin™s view was that “the guilt or
innocence of a given actor, depends upon the state of his consciousness,
with regard to those consequences, in the given instance or case.”18 This

17 Holmes, “Trespass and Negligence,” in Formative Essays, 226, and in 3 Collected Works, 76.
18 1 Lectures, 440. Austin uses the terms “guilt” and “innocence” even in discussing liability
for negligence. He confesses some confusion: “Now a state of mind between conscious-
ness and unconsciousness “ between intention on the one side and negligence on the
other “ seems to be impossible. The party thinks, or the party does not think, of the act
or consequence. If he think of it, he intends. If he do not think of it, he is negligent or
The General Theory of Liability 89

struck Holmes as wrong because no evidence of the defendant™s mind
appeared to be requisite. The opposing view, that “a man acts at his
peril,” was equally wrong because “if the intervening events are of such
a kind that no foresight could have been expected to look out for them,
the defendant is not to blame for having failed to do so, and therefore
his act was innocent.”19
This is crucial, as it is repeated almost verbatim in The Common Law and
has been at the center of much later criticism. Its emergence in Holmes™s
writing suggests strongly that it does not derive from an attitude drawn
from personal preference or social bias regarding the distribution of costs
arising in personal injury cases. Rather, we ¬nd two old themes, successive
approximation and the problems of logical classi¬cation, joined in a new
mission. Austin™s classi¬cation project, which had led to the assumption
that negligence liability must be described as either fault or no-fault, a
form of x or not-x, was displaced ¬rst by Holmes™s tentative placement
in his own arrangement of legal duties,20 and ultimately by the observa-
tion that the term “negligence” referred to a “cause of action,” the legal
term signifying a form or class of inquiry. The legal process had as yet
no answer to the question of liability in an original case, and it would have
to seek one through a process of case-speci¬c inquiry, leading to eventual
“speci¬cation.”
The exposition of this process in The Common Law has understandably
thrown many readers off the trail. Holmes refers to negligence as a form
of not-x, that is to say, as a unique form of liability without fault, or strict
liability. What he clearly means is that the speci¬c circumstances of a new
case brought to the courts under the rubric of negligence “ say, a trolley
operated in a certain manner on a busy thoroughfare “ are bound to be
repeated with slight enough variations to the point where jury verdicts
eventually ¬nd a line where the pattern of trolley operation is deemed
unsafe enough to fail the “prudent man” standard.21 Thereafter, a rule


heedless.” Yet he concludes that “Intention is always separated from Negligence, Heed-
lessness, or Rashness, by a precise line of demarcation. The state of the party™s mind is
always determined, although it may be dif¬cult (judging from his conduct) to ascertain
the state of his mind.” Id., 441“44.
19 Holmes, “Trespass and Negligence,” in Formative Essays, 234, and in 3 Collected Works, 82.
20 Discussed in “The Theory of Torts,” which included the ¬nal table of legal duties. See
Appendix.
21 A possible origin of the “prudent man,” noted in Holmes™s reading diary for 1865“66,
is William Jones, An Essay on the Law of Bailments (London: J. Nichols, 1781), 5“6.
Holmes, Legal Theory, and Judicial Restraint
90

may be laid down by the courts, de¬ning precisely which conduct will
thenceforth create liability “as a matter of law” “ without regard to the
state of the defendant™s mind. Once speci¬ed, the rule of liability becomes
“strict” in that conditional sense.
While it is understandable to attribute a Hobbesian character to his
emphasis on the constant seeking of an external standard, it further estab-
lishes Holmes™s kinship with traditional or “classical” common law theory.
It connects law deeply with custom and practice; indeed, it ¬nds a new
way to do so, opening a continuing “ cumulative though piecemeal “
window on custom as re¬‚ected in jury determinations. The interests of
the sovereign state bene¬t from the fact that community-derived stan-
dards are becoming externalized and objecti¬ed, though in Holmes™s
account they were the product in the ¬rst instance of a localized and
basically decentralized process.
Holmes had tried to show, with respect to negligence, that cases were
submitted for individual consideration only where a clear rule did not
exist, that the general rules were applied equally without regard to state
of mind, and that even the individual jury determination was made with-
out any need for subjective evidence of the thoughts of the party accused
but rather by comparison of his or her conduct to the hypothetical “pru-
dent man.” In close cases the issue would revolve around the degree to
which common sense would suggest that injury was likely under the cir-
cumstances “ the foreseeability of harm. Simply stated, the point was that
legal negligence, despite what Holmes considered the “moral” overtone
of the term, comprised a process developing a set of categories of action
rather than abstract logic. Defendants would be held to a community-wide
norm, and liability for injury occasioned to others would be determined
by apparent circumstances “ by the visible environment of conduct rather
than the subjective consciousness of the actor.
This generalization, focusing as it did on the requisite facts surround-
ing a cause of action in a major area of law, would soon appear applicable
across the board, even to criminal and contract law. All forms of litigation,
it would seem, are initiated by general terms that proceed toward speci-
¬cation in particular cases. This is the nature of the courtroom process,
carrying many disputes into trial and a portion of them on to appeal,
where speci¬c questions of liability must be abstracted. In moving toward
this thesis, Holmes was able to abandon his 1873 category of torts “in
which the Consciousness of the Party liable is an element” “ such as
“fraud” or “maliciously causing breach of contract” “ as the same practical
observation could be applied to the legal usage of “malice” and “fraud.”
The General Theory of Liability 91

As a general observation it ¬tted Holmes™s long-held doubt concerning
the uncertainty of fundamental legal concepts implying moral absolutes,
such as rights and duties, and tied his earlier analytical criticism with the
evolutionary theme into a uniform perspective.
As in his earlier treatment of the concept of duty, the argument applied
strict scrutiny to the moral overtones of legal terminology. The word
“malice” in ordinary language, he noted while extending the argument
to criminal law, includes something more than mere intentionality. It
means “not only that a wish for the harmful effect is the motive, but also
that the harm is wished for its own sake.”22 But in contemporary practice
intention alone was enough to constitute legal malice, and intention itself
he demonstrated to be reducible to sheer foreseeability of the likely con-
sequences of the act, not judged by any attempt to look inside the mind of
the individual offender. This was arguable even in criminal prosecutions
where one would most expect to ¬nd concern with the subjective state
of mind. “The test of foresight is not what this very criminal foresaw, but
what a man of reasonable prudence would have foreseen.” An example
made this clear:

For instance, if a workman on a house-top at mid-day knows that the space below
him is a street in a great city, he knows facts from which a man of common
understanding would infer that there were people passing below. He is therefore
bound to draw that inference, or, in other words, is chargeable with knowledge
of that fact also, whether he draws the inference or not. If then, he throws down
a heavy beam into the street, he does an act which is likely to cause death, or
grievous bodily harm, and he is dealt with as if he foresaw it, whether he does so
in fact or not. If a death is caused by the act, he is guilty of murder. But if the
workman has reasonable cause to believe that the space below is a private yard
from which every one is excluded, and which is used as a rubbish-heap, his act is
not blameworthy, and the homicide is a mere misadventure.23

Once having demonstrated the role of external standards even in criminal
and tort rules that seemed speci¬cally to impose an element of intent,24
and adding for the Lowell Lectures an argument extending objective
standards to contract, Holmes™s evolutionary philosophy was ¬rmly in
place.25

22 Holmes, The Common Law, 44.
23 Id., 55“56.
24 See Introduction to Formative Essays, 45“6.
25 For a critical view of Holmes™s extension of the external standard of liability into the
criiminal law, see Atiyah, “The Legacy of Holmes Through English Eyes,” in Holmes and
the Common Law: A Century Later, 27“73.
Holmes, Legal Theory, and Judicial Restraint
92

Unlike the analytical jurisprudence of John Austin, Holmes™s ¬nal per-
spective saw law as neither a closed nor logical system. Nor was it an
essentially static formulation: it was process-oriented, and stressed three
elements. First, that legal analysis must be guided by the fact of historical
development:

What has been said will explain the failure of all theories which consider the
law only from its formal side, whether they attempt to deduce the corpus from
a priori postulates, or fall into the humbler error of supposing the science of law
to reside in the elegantia juris, or logical cohesion of part with part. The truth is,
that law hitherto has been, and it would seem by the necessity of its being is always
approaching and never reaching consistency.26

Second, that modern rules of liability spring from vengeance, which he
sees as a “moral basis”:

My aim and purpose have been to show that the various forms of liability known
to modern law spring from the common ground of revenge. In the sphere of
contract the fact will hardly be material outside the cases which have been stated
in this Lecture. But in the criminal law and the laws of torts it is of the ¬rst
importance. It shows that they have started from a moral basis, from the thought
that some one was to blame.27

And third, that this “moral basis” has gradually been supplanted by exter-
nal standards:

While the terminology of morals is still retained, and while the law does still and
always, in a certain sense, measure legal liability by moral standards, it neverthe-
less, by the very necessity of its nature, is continuously transmuting those moral
standards into external ones, from which the actual guilt of the party concerned
is wholly eliminated.28

This, in brief, summarizes Holmes™s path through the year 1880, at
the eve of delivery of the Lowell Lectures that would become The Common
Law. The early chronology provides a context for understanding different
aspects of the overall theory, a relation that is not at all clear from his
later exposition. It demonstrates the connection between the earlier
focus on classi¬cation and the later interest in historical sources. It casts
light on the controversial move whereby the theory was extended beyond

26 Holmes, “Common Carriers and the Common Law,” in Formative Essays, 159, and in 3
Collected Works, 75“6; repeated in The Common Law, 32.
27 The Common Law, 33.
28 Id.
The General Theory of Liability 93

negligence into criminal and contract law. It demonstrates a strong con-
nection between his theory of liability and mode of textual interpreta-
tion, emphasizing “objective” meaning over subjective intent.29 Indeed,
it resolves much of the subsequent dissatisfaction with The Common Law,
considered by itself.
On the occasion of the centennial of The Common Law, Massachusetts
Supreme Judicial Court Justice Benjamin Kaplan, who followed Holmes™s
footsteps from Harvard law faculty (where he taught this writer) to
the high court of Massachusetts, found the theory unpersuasive and,
from the podium of the annual Holmes Lectures, ruled it largely irrel-
evant to the work of modern state courts.30 The second lecturer, P.
S. Atiyah, an authority on English common law, said of the evolu-
tionary hypothesis, “It is not wholly clear whether Holmes regarded
this as a contingent historical fact or as some kind of necessary truth,
but whichever alternative is taken, this position has few defenders
today.”31
In the following decade, Morton Horwitz found The Common Law
“obscure and inaccessible in addition to being rarely read,” and Holmes
biographer G. Edward White, re¬‚ecting the criticism of Albert Venn
Dicey in his 1882 review, found it to suffer from “lack of thematic and
methodological consistency,” noting that “its central theory is elusive and
cryptically rendered.”32 Patrick J. Kelley, in his painstaking 1992 study of
Holmes™s Massachusetts decisions, saw Holmes urging a quirky hypothesis
on his colleagues with mixed success, and stretching to reach unsatisfac-
tory results in order to prove the overall principle.33
There is some corroboration to all these criticisms. Rather than
addressing their grounds in detail, I have offered an alternative reading
that is, I suggest, internally consistent and manifestly relevant to the
history of legal philosophy and to the issues before us today.34

29 Holmes, “Legal Interpretation,” in Collected Legal Papers, 203.
30 Benjamin Kaplan, “Encounters with O. W. Holmes, Jr.,” in Holmes and The Common Law:
A Century Later, 16“18.
31 Atiyah, “The Legacy of Holmes through English Eyes,” 30.
32 White, Justice Oliver Wendell Holmes, 179, 195.
33 See Kelley, “Holmes on the Supreme Judicial Court: The Theorist as Judge,” in The
History of the Law in Massachusetts: The Supreme Judicial Court 1692“1992, ed. Russell K.
Osgoode (Boston: Supreme Judicial Court Historical Society, 1992), 283“84, 298“99,
302.
34 The aspect of his formulation that has undergone most criticism is not fatal to the entire
conception. The extension of Holmes™s insistence on external standards is not integral
Holmes, Legal Theory, and Judicial Restraint
94

The pattern of research as a whole conveys a distinctive view of the
nature of law and civil society. The underlying conception of society
is closer to Hobbes than the utilitarianism of Austin and Bentham. It
re¬‚ects Holmes™s exposure to the struggle of Darwinian evolution, much
discussed in the Metaphysical Club and con¬rmed in some respects by
the American Civil War, both of which reinforced doubts concerning the
prospects for law-based liberal or utilitarian reform.35

to the theory of successive approximation nor to the notion of con¬‚icts resolved through
line drawing in case-speci¬c decisions.
Nevertheless, the process of speci¬cation, by which objective rules are eventually
settled in a given class of controversy, appeared doubtful to Benjamin Kaplan:

Holmes . . . was mistaken in thinking that, after repeated jury verdicts on given fact sit-
uations, judges would feel free to hold as a matter of law that there was or was not
negligence. That was a false dream of hope. For example, the “stop, look, and listen”
rule for the grade crossing situation, laid down by Holmes in 1927, was in substance
annulled by an opinion by Cardozo in 1934. Facts have an irreducible ¬‚uidity. (Kaplan,
“Encounters With O. W. Holmes, Jr.” at 5)

In fairness to Holmes, I do not think he would have disagreed about the “¬‚uidity of
facts,” especially if that implies that economic or technological circumstances, and even
community standards of prudence, might change so as to make earlier judicial formula-
tions obsolete. Kaplan does not consider Holmes™s notion of speci¬cation in the larger
context of transgenerational community inquiry through the common law.
35 An account of the in¬‚uences leading Holmes toward an evolutionary theory is that of
Philip P. Wiener in Evolution and the Founders of Pragmatism. Wiener notes, “The linkage
of Holmes with the Metaphysical Club lies in the fact that Wright™s arguments for the
ethical neutrality of science and evolution appear in scarcely modi¬ed form in Holmes™s
separation of ethical ideals from the science of law, which uses only external standards
of social expediency and the public force.” Id. at 174. This is supported by Holmes™s
own favorable comments about Wright in later correspondence. Sheldon Novick, one of
Holmes™s biographers and editor of Holmes™s Collected Works, has suggested the appeal
of a rationalist morality that Holmes shared with other Victorian intellectuals, such as
Leslie Stephen: the call to discover a scienti¬c replacement for religion. In a 1919 letter to
Morris R. Cohen, Holmes (responding to a query about whether Voltaire had in¬‚uenced
his skepticism) emphasized the importance of science in his thinking:

My father was brought up scienti¬cally “ i.e. he studied medicine in France “ and I was
not. Yet there was with him as with the rest of his generation a certain softness of attitude
toward the interstitial miracle “ the phenomenon without phenomenal antecedents,
that I did not feel. The Origin of Species I think came out while I was in college “
H. Spencer had announced his intention to put the universe into our pockets “ I hadn™t
read either of them to be sure, but as I say it was in the air. . . .

This helps to account for Holmes™s ultimate choice of an evolutionary theory and perhaps
also his need to fortify it with some concept of a uniform natural progression toward
a single general principle, the external result. The intellectual climate a century later
became inimical to such sweeping theorizing, and the multiform growth of the law
does not lend supporting evidence to a monolithic explanation. See Holmes to Cohen,
The General Theory of Liability 95

Despite his exposure to social con¬‚ict, he was not inclined, given the
weight of historical evidence in the working of the law, to join Hobbes
or Austin in building a centralized view of law or of the state. He looked
backward to common law as the archetypal decentralized model, mod-
i¬ed in the spirit of public inquiry, parallel to the Peircean model of
scienti¬c inquiry and problem solving, balanced with a comprehensibil-
ity and predictability derived from the spread of external standards. It is
a historically based approach to the questions posed by analytical theory.
Holmes drew his historical inspiration from Henry Maine and Frederick
Maitland, as well as from his friend Frederick Pollock.36
Unlike Hobbes, Holmes™s conception does not originate from a
paradigm of man in the state of nature but draws on the operation of law
in resolving con¬‚ict. It distinguishes Holmes in this respect as an empir-
ical legal, rather than an abstract political, theorist. Both writers concur
on the prevalence of con¬‚ict, but Holmes™s depiction is rooted in inten-
sive legal research, and he provides a distinctly un-Hobbesian response,
more accepting of an implicit and ongoing set of diverse con¬‚icts and
skeptical of an overriding assumption of the Leviathan: that public safety
and civil society turn on an analytical order imposed by the sovereign.
Holmes™s order is radically opposed to the extreme forms of central-
ization conceptualized and experienced in the twentieth century. It is
decentralized, supple, and un¬nished; it is constantly under construction
and revision.37 This attitude understandably sets up a tension between
the opposing demands of freedom and order, of local and central “ a
tension that is, after all, implicit in the United States Constitution. The
centralizing pull of this tension is evident in Holmes™s emphasis on objec-
tive standards and in his deference to legislation and “sovereign prerog-
ative.”38 In the other direction, the pull of freedom is implicit in the
openness to developing and changing standards of conduct, even in the

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