A critical analysis of Holmes's theory of contract

Notre Dame Law Review

Volumn 75, Issue 5, 2000, Pages 1681-1773

  Kelley, Patrick J ^a  

^a SOUTHERN ILLINOIS UNIVERSITY   (United States)

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EID: 0034370728     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (378)

1. JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS (1980).
2. See, e.g., Patrick J. Kelley, Who Decides? Community Safety Conventions at the Heart of Tort Liability, 38 CLEV. ST. L. REV. 315 (1991).
3. See infra Part IV.B.2.
4. Contract law was not, however, terra incognita for Holmes. In the course of preparing his edition of Kent's Commentaries, he updated the footnotes to Kent's treatment of contracts. See 2 JAMES KENT, COMMENTARIES ON AMERICAN LAW 607-763 (Oliver Wendell Holmes, Jr. ed., Boston, Little, Brown, & Co. 12th ed. 1873). In addition, Holmes had reviewed both the first and second editions of Langdell's casebook on contracts, A Selection of Cases on the Law of Contracts, adding a brief review of William Anson's treatise on contracts, Principles of the English Law of Contract, to his review of Langdell's second edition. See Book Notices, 5 AM. L. REV. 534, 539-40 (1871) (reviewing 1 C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 1st ed. 1871)); Book Notices, 6 AM. L. REV. 340, 353-54 (1872) (reviewing 2 C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 1st ed. 1871)); Book Notices, 14 AM. L. REV. 233, 233-35 (1880) (reviewing C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 2d ed. 1879), and discussing WILLIAM R. ANSON, PRINCIPLES OF THE ENGLISH LAW OF CONTRACT (Oxford, Clarendon Press 1879)); see also Harry C. Shriver, Preface to JUSTICE OLIVER WENDELL HOLMES: His BOOK NOTICES AND UNCOLLECTED LETTERS AND PAPERS at vii (Harry C. Shriver ed., 1936) (1871-72) [hereinafter JUSTICE HOLMES] (noting that Holmes wrote these unsigned Book Notices); Harry C. Shriver, A Bibliography of Selected Articles and Books Relating to Justice Oliver Wendell Holmes, in JUSTICE HOLMES, supra, at 253 (same).
5. Contract law was not, however, terra incognita for Holmes. In the course of preparing his edition of Kent's Commentaries, he updated the footnotes to Kent's treatment of contracts. See 2 JAMES KENT, COMMENTARIES ON AMERICAN LAW 607-763 (Oliver Wendell Holmes, Jr. ed., Boston, Little, Brown, & Co. 12th ed. 1873). In addition, Holmes had reviewed both the first and second editions of Langdell's casebook on contracts, A Selection of Cases on the Law of Contracts, adding a brief review of William Anson's treatise on contracts, Principles of the English Law of Contract, to his review of Langdell's second edition. See Book Notices, 5 AM. L. REV. 534, 539-40 (1871) (reviewing 1 C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 1st ed. 1871)); Book Notices, 6 AM. L. REV. 340, 353-54 (1872) (reviewing 2 C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 1st ed. 1871)); Book Notices, 14 AM. L. REV. 233, 233-35 (1880) (reviewing C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 2d ed. 1879), and discussing WILLIAM R. ANSON, PRINCIPLES OF THE ENGLISH LAW OF CONTRACT (Oxford, Clarendon Press 1879)); see also Harry C. Shriver, Preface to JUSTICE OLIVER WENDELL HOLMES: His BOOK NOTICES AND UNCOLLECTED LETTERS AND PAPERS at vii (Harry C. Shriver ed., 1936) (1871-72) [hereinafter JUSTICE HOLMES] (noting that Holmes wrote these unsigned Book Notices); Harry C. Shriver, A Bibliography of Selected Articles and Books Relating to Justice Oliver Wendell Holmes, in JUSTICE HOLMES, supra, at 253 (same).
6. Contract law was not, however, terra incognita for Holmes. In the course of preparing his edition of Kent's Commentaries, he updated the footnotes to Kent's treatment of contracts. See 2 JAMES KENT, COMMENTARIES ON AMERICAN LAW 607-763 (Oliver Wendell Holmes, Jr. ed., Boston, Little, Brown, & Co. 12th ed. 1873). In addition, Holmes had reviewed both the first and second editions of Langdell's casebook on contracts, A Selection of Cases on the Law of Contracts, adding a brief review of William Anson's treatise on contracts, Principles of the English Law of Contract, to his review of Langdell's second edition. See Book Notices, 5 AM. L. REV. 534, 539-40 (1871) (reviewing 1 C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 1st ed. 1871)); Book Notices, 6 AM. L. REV. 340, 353-54 (1872) (reviewing 2 C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 1st ed. 1871)); Book Notices, 14 AM. L. REV. 233, 233-35 (1880) (reviewing C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 2d ed. 1879), and discussing WILLIAM R. ANSON, PRINCIPLES OF THE ENGLISH LAW OF CONTRACT (Oxford, Clarendon Press 1879)); see also Harry C. Shriver, Preface to JUSTICE OLIVER WENDELL HOLMES: His BOOK NOTICES AND UNCOLLECTED LETTERS AND PAPERS at vii (Harry C. Shriver ed., 1936) (1871-72) [hereinafter JUSTICE HOLMES] (noting that Holmes wrote these unsigned Book Notices); Harry C. Shriver, A Bibliography of Selected Articles and Books Relating to Justice Oliver Wendell Holmes, in JUSTICE HOLMES, supra, at 253 (same).
7. Contract law was not, however, terra incognita for Holmes. In the course of preparing his edition of Kent's Commentaries, he updated the footnotes to Kent's treatment of contracts. See 2 JAMES KENT, COMMENTARIES ON AMERICAN LAW 607-763 (Oliver Wendell Holmes, Jr. ed., Boston, Little, Brown, & Co. 12th ed. 1873). In addition, Holmes had reviewed both the first and second editions of Langdell's casebook on contracts, A Selection of Cases on the Law of Contracts, adding a brief review of William Anson's treatise on contracts, Principles of the English Law of Contract, to his review of Langdell's second edition. See Book Notices, 5 AM. L. REV. 534, 539-40 (1871) (reviewing 1 C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 1st ed. 1871)); Book Notices, 6 AM. L. REV. 340, 353-54 (1872) (reviewing 2 C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 1st ed. 1871)); Book Notices, 14 AM. L. REV. 233, 233-35 (1880) (reviewing C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 2d ed. 1879), and discussing WILLIAM R. ANSON, PRINCIPLES OF THE ENGLISH LAW OF CONTRACT (Oxford, Clarendon Press 1879)); see also Harry C. Shriver, Preface to JUSTICE OLIVER WENDELL HOLMES: His BOOK NOTICES AND UNCOLLECTED LETTERS AND PAPERS at vii (Harry C. Shriver ed., 1936) (1871-72) [hereinafter JUSTICE HOLMES] (noting that Holmes wrote these unsigned Book Notices); Harry C. Shriver, A Bibliography of Selected Articles and Books Relating to Justice Oliver Wendell Holmes, in JUSTICE HOLMES, supra, at 253 (same).
8. Contract law was not, however, terra incognita for Holmes. In the course of preparing his edition of Kent's Commentaries, he updated the footnotes to Kent's treatment of contracts. See 2 JAMES KENT, COMMENTARIES ON AMERICAN LAW 607-763 (Oliver Wendell Holmes, Jr. ed., Boston, Little, Brown, & Co. 12th ed. 1873). In addition, Holmes had reviewed both the first and second editions of Langdell's casebook on contracts, A Selection of Cases on the Law of Contracts, adding a brief review of William Anson's treatise on contracts, Principles of the English Law of Contract, to his review of Langdell's second edition. See Book Notices, 5 AM. L. REV. 534, 539-40 (1871) (reviewing 1 C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 1st ed. 1871)); Book Notices, 6 AM. L. REV. 340, 353-54 (1872) (reviewing 2 C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 1st ed. 1871)); Book Notices, 14 AM. L. REV. 233, 233-35 (1880) (reviewing C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 2d ed. 1879), and discussing WILLIAM R. ANSON, PRINCIPLES OF THE ENGLISH LAW OF CONTRACT (Oxford, Clarendon Press 1879)); see also Harry C. Shriver, Preface to JUSTICE OLIVER WENDELL HOLMES: His BOOK NOTICES AND UNCOLLECTED LETTERS AND PAPERS at vii (Harry C. Shriver ed., 1936) (1871-72) [hereinafter JUSTICE HOLMES] (noting that Holmes wrote these unsigned Book Notices); Harry C. Shriver, A Bibliography of Selected Articles and Books Relating to Justice Oliver Wendell Holmes, in JUSTICE HOLMES, supra, at 253 (same).
9. Contract law was not, however, terra incognita for Holmes. In the course of preparing his edition of Kent's Commentaries, he updated the footnotes to Kent's treatment of contracts. See 2 JAMES KENT, COMMENTARIES ON AMERICAN LAW 607-763 (Oliver Wendell Holmes, Jr. ed., Boston, Little, Brown, & Co. 12th ed. 1873). In addition, Holmes had reviewed both the first and second editions of Langdell's casebook on contracts, A Selection of Cases on the Law of Contracts, adding a brief review of William Anson's treatise on contracts, Principles of the English Law of Contract, to his review of Langdell's second edition. See Book Notices, 5 AM. L. REV. 534, 539-40 (1871) (reviewing 1 C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 1st ed. 1871)); Book Notices, 6 AM. L. REV. 340, 353-54 (1872) (reviewing 2 C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 1st ed. 1871)); Book Notices, 14 AM. L. REV. 233, 233-35 (1880) (reviewing C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 2d ed. 1879), and discussing WILLIAM R. ANSON, PRINCIPLES OF THE ENGLISH LAW OF CONTRACT (Oxford, Clarendon Press 1879)); see also Harry C. Shriver, Preface to JUSTICE OLIVER WENDELL HOLMES: His BOOK NOTICES AND UNCOLLECTED LETTERS AND PAPERS at vii (Harry C. Shriver ed., 1936) (1871-72) [hereinafter JUSTICE HOLMES] (noting that Holmes wrote these unsigned Book Notices); Harry C. Shriver, A Bibliography of Selected Articles and Books Relating to Justice Oliver Wendell Holmes, in JUSTICE HOLMES, supra, at 253 (same).
10. Contract law was not, however, terra incognita for Holmes. In the course of preparing his edition of Kent's Commentaries, he updated the footnotes to Kent's treatment of contracts. See 2 JAMES KENT, COMMENTARIES ON AMERICAN LAW 607-763 (Oliver Wendell Holmes, Jr. ed., Boston, Little, Brown, & Co. 12th ed. 1873). In addition, Holmes had reviewed both the first and second editions of Langdell's casebook on contracts, A Selection of Cases on the Law of Contracts, adding a brief review of William Anson's treatise on contracts, Principles of the English Law of Contract, to his review of Langdell's second edition. See Book Notices, 5 AM. L. REV. 534, 539-40 (1871) (reviewing 1 C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 1st ed. 1871)); Book Notices, 6 AM. L. REV. 340, 353-54 (1872) (reviewing 2 C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 1st ed. 1871)); Book Notices, 14 AM. L. REV. 233, 233-35 (1880) (reviewing C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 2d ed. 1879), and discussing WILLIAM R. ANSON, PRINCIPLES OF THE ENGLISH LAW OF CONTRACT (Oxford, Clarendon Press 1879)); see also Harry C. Shriver, Preface to JUSTICE OLIVER WENDELL HOLMES: His BOOK NOTICES AND UNCOLLECTED LETTERS AND PAPERS at vii (Harry C. Shriver ed., 1936) (1871-72) [hereinafter JUSTICE HOLMES] (noting that Holmes wrote these unsigned Book Notices); Harry C. Shriver, A Bibliography of Selected Articles and Books Relating to Justice Oliver Wendell Holmes, in JUSTICE HOLMES, supra, at 253 (same).
11. Contract law was not, however, terra incognita for Holmes. In the course of preparing his edition of Kent's Commentaries, he updated the footnotes to Kent's treatment of contracts. See 2 JAMES KENT, COMMENTARIES ON AMERICAN LAW 607-763 (Oliver Wendell Holmes, Jr. ed., Boston, Little, Brown, & Co. 12th ed. 1873). In addition, Holmes had reviewed both the first and second editions of Langdell's casebook on contracts, A Selection of Cases on the Law of Contracts, adding a brief review of William Anson's treatise on contracts, Principles of the English Law of Contract, to his review of Langdell's second edition. See Book Notices, 5 AM. L. REV. 534, 539-40 (1871) (reviewing 1 C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 1st ed. 1871)); Book Notices, 6 AM. L. REV. 340, 353-54 (1872) (reviewing 2 C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 1st ed. 1871)); Book Notices, 14 AM. L. REV. 233, 233-35 (1880) (reviewing C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 2d ed. 1879), and discussing WILLIAM R. ANSON, PRINCIPLES OF THE ENGLISH LAW OF CONTRACT (Oxford, Clarendon Press 1879)); see also Harry C. Shriver, Preface to JUSTICE OLIVER WENDELL HOLMES: His BOOK NOTICES AND UNCOLLECTED LETTERS AND PAPERS at vii (Harry C. Shriver ed., 1936) (1871-72) [hereinafter JUSTICE HOLMES] (noting that Holmes wrote these unsigned Book Notices); Harry C. Shriver, A Bibliography of Selected Articles and Books Relating to Justice Oliver Wendell Holmes, in JUSTICE HOLMES, supra, at 253 (same).
12. Contract law was not, however, terra incognita for Holmes. In the course of preparing his edition of Kent's Commentaries, he updated the footnotes to Kent's treatment of contracts. See 2 JAMES KENT, COMMENTARIES ON AMERICAN LAW 607-763 (Oliver Wendell Holmes, Jr. ed., Boston, Little, Brown, & Co. 12th ed. 1873). In addition, Holmes had reviewed both the first and second editions of Langdell's casebook on contracts, A Selection of Cases on the Law of Contracts, adding a brief review of William Anson's treatise on contracts, Principles of the English Law of Contract, to his review of Langdell's second edition. See Book Notices, 5 AM. L. REV. 534, 539-40 (1871) (reviewing 1 C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 1st ed. 1871)); Book Notices, 6 AM. L. REV. 340, 353-54 (1872) (reviewing 2 C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 1st ed. 1871)); Book Notices, 14 AM. L. REV. 233, 233-35 (1880) (reviewing C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 2d ed. 1879), and discussing WILLIAM R. ANSON, PRINCIPLES OF THE ENGLISH LAW OF CONTRACT (Oxford, Clarendon Press 1879)); see also Harry C. Shriver, Preface to JUSTICE OLIVER WENDELL HOLMES: His BOOK NOTICES AND UNCOLLECTED LETTERS AND PAPERS at vii (Harry C. Shriver ed., 1936) (1871-72) [hereinafter JUSTICE HOLMES] (noting that Holmes wrote these unsigned Book Notices); Harry C. Shriver, A Bibliography of Selected Articles and Books Relating to Justice Oliver Wendell Holmes, in JUSTICE HOLMES, supra, at 253 (same).
13. Contract law was not, however, terra incognita for Holmes. In the course of preparing his edition of Kent's Commentaries, he updated the footnotes to Kent's treatment of contracts. See 2 JAMES KENT, COMMENTARIES ON AMERICAN LAW 607-763 (Oliver Wendell Holmes, Jr. ed., Boston, Little, Brown, & Co. 12th ed. 1873). In addition, Holmes had reviewed both the first and second editions of Langdell's casebook on contracts, A Selection of Cases on the Law of Contracts, adding a brief review of William Anson's treatise on contracts, Principles of the English Law of Contract, to his review of Langdell's second edition. See Book Notices, 5 AM. L. REV. 534, 539-40 (1871) (reviewing 1 C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 1st ed. 1871)); Book Notices, 6 AM. L. REV. 340, 353-54 (1872) (reviewing 2 C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 1st ed. 1871)); Book Notices, 14 AM. L. REV. 233, 233-35 (1880) (reviewing C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 2d ed. 1879), and discussing WILLIAM R. ANSON, PRINCIPLES OF THE ENGLISH LAW OF CONTRACT (Oxford, Clarendon Press 1879)); see also Harry C. Shriver, Preface to JUSTICE OLIVER WENDELL HOLMES: His BOOK NOTICES AND UNCOLLECTED LETTERS AND PAPERS at vii (Harry C. Shriver ed., 1936) (1871-72) [hereinafter JUSTICE HOLMES] (noting that Holmes wrote these unsigned Book Notices); Harry C. Shriver, A Bibliography of Selected Articles and Books Relating to Justice Oliver Wendell Holmes, in JUSTICE HOLMES, supra, at 253 (same).
14. See MARK DEWOLFE HOWE, JUSTICE OLIVER WENDELL HOLMES: THE PROVING YEARS, 1870-1872, at 223 (1963).
15. OLIVER WENDELL HOLMES, JR., THE COMMON LAW (Mark DeWolfe Howe ed., Harvard Univ. Press 1963) (1881).
16. SIR FREDERICK POLLOCK, PRINCIPLES OF CONTRACT AT LAW AND IN EQUITY (London, Stevens 1st ed. 1876).
17. G.C. LANGDELL, A SUMMARY OF THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 2d ed. 1880) [hereinafter LANGDELL, SUMMARY]. A Summary of the Law of Contracts was first published as a supplement to the second edition of G.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 2d ed. 1879) [hereinafter LANGDELL, SELECTION OF CASES].
18. G.C. LANGDELL, A SUMMARY OF THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 2d ed. 1880) [hereinafter LANGDELL, SUMMARY]. A Summary of the Law of Contracts was first published as a supplement to the second edition of G.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 2d ed. 1879) [hereinafter LANGDELL, SELECTION OF CASES].
19. Holmes came close to doing so only twice: First, in his article on primitive notions in modern law, he cited Edward Burnett Tylor's work Primitive Culture in such a way and with such praise as to indicate that Tylor strongly influenced his own analy-sis. See O.W.H., Jr., Primitive Notions in Modern Law, 10 AM. L. REV. 422, 428-30 (1876) [hereinafter O.W.H., Primitive Notions] (citing EDWARD BURNETT TYLOR, PRIMITIVE CULTURE 285 (New York, H. Holt 1st Am. ed. 1874)), reprinted in FREDERICK ROGERS KELLOGG, THE FORMATIVE ESSAYS OF JUSTICE HOLMES 129, 135-37 (1984). In reworking this essay into his first lecture in The Common Law, Holmes characteristically deleted this fulsome praise of Tylor, with its implication of influence. See HOLMES, supra note 6, at 5-33. Second, in his second article on primitive notions in modern law, Holmes explicitly characterized the progression in thought he had sketched in his first Primitive Notions article, in the terminology of Comte: In an earlier article, the frame of mind with which we have to deal was shown in its theological stage, to borrow Comte's well-known phraseology, as when an axe was made the object of criminal process; and also in the metaphysical, where the language of personification alone survived, but survived to cause confusion in reasoning. O.W. Holmes, Jr., Primitive Notions in Modern Law No. II, 11 AM. L. REV. 641, 654 (1877) [hereinafter Holmes, Primitive Notions II] (footnote omitted), reprinted in THE FORMATIVE ESSAYS OF JUSTICE HOLMES, supra, at 147, 160. Again, this explicit reference to Comte was deleted in The Common Law version of this article. See HOLMES, supra note 6, at 265-317.
20. Holmes came close to doing so only twice: First, in his article on primitive notions in modern law, he cited Edward Burnett Tylor's work Primitive Culture in such a way and with such praise as to indicate that Tylor strongly influenced his own analy-sis. See O.W.H., Jr., Primitive Notions in Modern Law, 10 AM. L. REV. 422, 428-30 (1876) [hereinafter O.W.H., Primitive Notions] (citing EDWARD BURNETT TYLOR, PRIMITIVE CULTURE 285 (New York, H. Holt 1st Am. ed. 1874)), reprinted in FREDERICK ROGERS KELLOGG, THE FORMATIVE ESSAYS OF JUSTICE HOLMES 129, 135-37 (1984). In reworking this essay into his first lecture in The Common Law, Holmes characteristically deleted this fulsome praise of Tylor, with its implication of influence. See HOLMES, supra note 6, at 5-33. Second, in his second article on primitive notions in modern law, Holmes explicitly characterized the progression in thought he had sketched in his first Primitive Notions article, in the terminology of Comte: In an earlier article, the frame of mind with which we have to deal was shown in its theological stage, to borrow Comte's well-known phraseology, as when an axe was made the object of criminal process; and also in the metaphysical, where the language of personification alone survived, but survived to cause confusion in reasoning. O.W. Holmes, Jr., Primitive Notions in Modern Law No. II, 11 AM. L. REV. 641, 654 (1877) [hereinafter Holmes, Primitive Notions II] (footnote omitted), reprinted in THE FORMATIVE ESSAYS OF JUSTICE HOLMES, supra, at 147, 160. Again, this explicit reference to Comte was deleted in The Common Law version of this article. See HOLMES, supra note 6, at 265-317.
21. Holmes came close to doing so only twice: First, in his article on primitive notions in modern law, he cited Edward Burnett Tylor's work Primitive Culture in such a way and with such praise as to indicate that Tylor strongly influenced his own analy-sis. See O.W.H., Jr., Primitive Notions in Modern Law, 10 AM. L. REV. 422, 428-30 (1876) [hereinafter O.W.H., Primitive Notions] (citing EDWARD BURNETT TYLOR, PRIMITIVE CULTURE 285 (New York, H. Holt 1st Am. ed. 1874)), reprinted in FREDERICK ROGERS KELLOGG, THE FORMATIVE ESSAYS OF JUSTICE HOLMES 129, 135-37 (1984). In reworking this essay into his first lecture in The Common Law, Holmes characteristically deleted this fulsome praise of Tylor, with its implication of influence. See HOLMES, supra note 6, at 5-33. Second, in his second article on primitive notions in modern law, Holmes explicitly characterized the progression in thought he had sketched in his first Primitive Notions article, in the terminology of Comte: In an earlier article, the frame of mind with which we have to deal was shown in its theological stage, to borrow Comte's well-known phraseology, as when an axe was made the object of criminal process; and also in the metaphysical, where the language of personification alone survived, but survived to cause confusion in reasoning. O.W. Holmes, Jr., Primitive Notions in Modern Law No. II, 11 AM. L. REV. 641, 654 (1877) [hereinafter Holmes, Primitive Notions II] (footnote omitted), reprinted in THE FORMATIVE ESSAYS OF JUSTICE HOLMES, supra, at 147, 160. Again, this explicit reference to Comte was deleted in The Common Law version of this article. See HOLMES, supra note 6, at 265-317.
22. Holmes came close to doing so only twice: First, in his article on primitive notions in modern law, he cited Edward Burnett Tylor's work Primitive Culture in such a way and with such praise as to indicate that Tylor strongly influenced his own analy-sis. See O.W.H., Jr., Primitive Notions in Modern Law, 10 AM. L. REV. 422, 428-30 (1876) [hereinafter O.W.H., Primitive Notions] (citing EDWARD BURNETT TYLOR, PRIMITIVE CULTURE 285 (New York, H. Holt 1st Am. ed. 1874)), reprinted in FREDERICK ROGERS KELLOGG, THE FORMATIVE ESSAYS OF JUSTICE HOLMES 129, 135-37 (1984). In reworking this essay into his first lecture in The Common Law, Holmes characteristically deleted this fulsome praise of Tylor, with its implication of influence. See HOLMES, supra note 6, at 5-33. Second, in his second article on primitive notions in modern law, Holmes explicitly characterized the progression in thought he had sketched in his first Primitive Notions article, in the terminology of Comte: In an earlier article, the frame of mind with which we have to deal was shown in its theological stage, to borrow Comte's well-known phraseology, as when an axe was made the object of criminal process; and also in the metaphysical, where the language of personification alone survived, but survived to cause confusion in reasoning. O.W. Holmes, Jr., Primitive Notions in Modern Law No. II, 11 AM. L. REV. 641, 654 (1877) [hereinafter Holmes, Primitive Notions II] (footnote omitted), reprinted in THE FORMATIVE ESSAYS OF JUSTICE HOLMES, supra, at 147, 160. Again, this explicit reference to Comte was deleted in The Common Law version of this article. See HOLMES, supra note 6, at 265-317.
23. Holmes came close to doing so only twice: First, in his article on primitive notions in modern law, he cited Edward Burnett Tylor's work Primitive Culture in such a way and with such praise as to indicate that Tylor strongly influenced his own analy-sis. See O.W.H., Jr., Primitive Notions in Modern Law, 10 AM. L. REV. 422, 428-30 (1876) [hereinafter O.W.H., Primitive Notions] (citing EDWARD BURNETT TYLOR, PRIMITIVE CULTURE 285 (New York, H. Holt 1st Am. ed. 1874)), reprinted in FREDERICK ROGERS KELLOGG, THE FORMATIVE ESSAYS OF JUSTICE HOLMES 129, 135-37 (1984). In reworking this essay into his first lecture in The Common Law, Holmes characteristically deleted this fulsome praise of Tylor, with its implication of influence. See HOLMES, supra note 6, at 5-33. Second, in his second article on primitive notions in modern law, Holmes explicitly characterized the progression in thought he had sketched in his first Primitive Notions article, in the terminology of Comte: In an earlier article, the frame of mind with which we have to deal was shown in its theological stage, to borrow Comte's well-known phraseology, as when an axe was made the object of criminal process; and also in the metaphysical, where the language of personification alone survived, but survived to cause confusion in reasoning. O.W. Holmes, Jr., Primitive Notions in Modern Law No. II, 11 AM. L. REV. 641, 654 (1877) [hereinafter Holmes, Primitive Notions II] (footnote omitted), reprinted in THE FORMATIVE ESSAYS OF JUSTICE HOLMES, supra, at 147, 160. Again, this explicit reference to Comte was deleted in The Common Law version of this article. See HOLMES, supra note 6, at 265-317.
24. Letter from Oliver Wendell Holmes to Harold Laski (Sept. 15, 1916), in 1 HOLMES-LASKI LETTERS 21 (Mark DeWolf Howe ed., 1953). In his letter to Harold Laski dated September 15, 1916, Holmes criticized Laski's article, The Political Theory of Disruption, 10 AM. POL. SCI. REV. 437 (1916), reprinted in HAROLD LASKI, THE PROBLEM OF SOVEREIGNTY 27 (1917), in part as follows: I should drop pragmatic and pluralistic. Perhaps I am the more ready to say so because after honest attention I don't think there is much in either of those parts of W. James's philosophy. But in any event, though Pound also talks of pragmatism, the judging of law by its effects and results did not have to wait for W.J. or Pound for its existence, and to my mind it rather diminishes the effect, or checks the assent you seek from a reader, if you unnecessarily put a fighting tag on your thought. Letter from Oliver Wendell Holmes to Harold Laski, supra, at 20-21 (footnote omitted).
25. Letter from Oliver Wendell Holmes to Harold Laski (Sept. 15, 1916), in 1 HOLMES-LASKI LETTERS 21 (Mark DeWolf Howe ed., 1953). In his letter to Harold Laski dated September 15, 1916, Holmes criticized Laski's article, The Political Theory of Disruption, 10 AM. POL. SCI. REV. 437 (1916), reprinted in HAROLD LASKI, THE PROBLEM OF SOVEREIGNTY 27 (1917), in part as follows: I should drop pragmatic and pluralistic. Perhaps I am the more ready to say so because after honest attention I don't think there is much in either of those parts of W. James's philosophy. But in any event, though Pound also talks of pragmatism, the judging of law by its effects and results did not have to wait for W.J. or Pound for its existence, and to my mind it rather diminishes the effect, or checks the assent you seek from a reader, if you unnecessarily put a fighting tag on your thought. Letter from Oliver Wendell Holmes to Harold Laski, supra, at 20-21 (footnote omitted).
26. Letter from Oliver Wendell Holmes to Harold Laski (Sept. 15, 1916), in 1 HOLMES-LASKI LETTERS 21 (Mark DeWolf Howe ed., 1953). In his letter to Harold Laski dated September 15, 1916, Holmes criticized Laski's article, The Political Theory of Disruption, 10 AM. POL. SCI. REV. 437 (1916), reprinted in HAROLD LASKI, THE PROBLEM OF SOVEREIGNTY 27 (1917), in part as follows: I should drop pragmatic and pluralistic. Perhaps I am the more ready to say so because after honest attention I don't think there is much in either of those parts of W. James's philosophy. But in any event, though Pound also talks of pragmatism, the judging of law by its effects and results did not have to wait for W.J. or Pound for its existence, and to my mind it rather diminishes the effect, or checks the assent you seek from a reader, if you unnecessarily put a fighting tag on your thought. Letter from Oliver Wendell Holmes to Harold Laski, supra, at 20-21 (footnote omitted).
27. See Eleanor N. Little, The Early Reading of Justice Oliver Wendell Holmes, 8 HARV. LIBR. BULL. 163 (1954).
28. We even have Holmes's own notes on some of his reading. Holmes kept detailed notes on some of the books he read from before 1876 through 1897 in a bound folio-sized volume. This "Black Book," as it is called, is at the Harvard Law School Library, together with a number of facsimile copies. See Oliver Wendell Holmes, Jr., The Black Book of Oliver Wendell Holmes (1876-97) (unpublished collection on file with the Harvard Law School Library).
29. See MARK DEWOLFE HOWE, JUSTICE OLIVER WENDELL HOLMES: THE SHAPING YEARS, 1841-1870, at 210, 212-17 (1957). Howe's judgment deserves respect; he was Holmes's secretary for a time, edited volumes of Holmes's letters, and immersed himself in Holmes's life and thought before publishing the first two volumes of a projected multi-volume biography.
30. See id. at 223-44.
31. Id. at 208.
32. The seven works are John Stuart Mill, A System of Logic, Raciocinative and Inductive (1843), John Stuart Mill, An Examination of Sir William Hamilton's Philosophy (1866), John Stuart Mill, Auguste Comte and Positivism (1865), John Stuart Mill, Considerations on Representative Government (1861), John Stuart Mill, Dissertations and Discussions: Political, Philosophical, and Historical (1859), John Stuart Mill, Principles of Political Economy (1848), and John Stuart Mill, Utilitarianism (1863). See Little, supra note 11, at 169, 171, 173-74. In addition, Holmes read extensively in the contemporary critical commentary on Mill, including John Henry Bridges, The Unity of Comte's Life and Doctrine: A Reply to Strictures on Comte's Later Writings, Addressed to J.S. Mill (1866), David Masson, A Recent British Philosophy (1865), James McCosh, An Examination of Mr. J.S. Mill's Philosophy (1866), and Herbert Spencer, Mill Versus Hamilton: The Test of Truth, 1 FORT. REV. 531 (1865). For a reproduction of this reading list, see Little, supra note 11, at 171-74. Holmes's reading of Mill was accompanied by extensive reading of other English and American positivists, including George Henry Lewes, The Biographical History of Philosophy (1857), Aristotle, and Chauncey Wright's devastating, rigorously positivist review of Herbert Spencer's work. See Little, supra note 11, at 170.
33. The seven works are John Stuart Mill, A System of Logic, Raciocinative and Inductive (1843), John Stuart Mill, An Examination of Sir William Hamilton's Philosophy (1866), John Stuart Mill, Auguste Comte and Positivism (1865), John Stuart Mill, Considerations on Representative Government (1861), John Stuart Mill, Dissertations and Discussions: Political, Philosophical, and Historical (1859), John Stuart Mill, Principles of Political Economy (1848), and John Stuart Mill, Utilitarianism (1863). See Little, supra note 11, at 169, 171, 173-74. In addition, Holmes read extensively in the contemporary critical commentary on Mill, including John Henry Bridges, The Unity of Comte's Life and Doctrine: A Reply to Strictures on Comte's Later Writings, Addressed to J.S. Mill (1866), David Masson, A Recent British Philosophy (1865), James McCosh, An Examination of Mr. J.S. Mill's Philosophy (1866), and Herbert Spencer, Mill Versus Hamilton: The Test of Truth, 1 FORT. REV. 531 (1865). For a reproduction of this reading list, see Little, supra note 11, at 171-74. Holmes's reading of Mill was accompanied by extensive reading of other English and American positivists, including George Henry Lewes, The Biographical History of Philosophy (1857), Aristotle, and Chauncey Wright's devastating, rigorously positivist review of Herbert Spencer's work. See Little, supra note 11, at 170.
34. The seven works are John Stuart Mill, A System of Logic, Raciocinative and Inductive (1843), John Stuart Mill, An Examination of Sir William Hamilton's Philosophy (1866), John Stuart Mill, Auguste Comte and Positivism (1865), John Stuart Mill, Considerations on Representative Government (1861), John Stuart Mill, Dissertations and Discussions: Political, Philosophical, and Historical (1859), John Stuart Mill, Principles of Political Economy (1848), and John Stuart Mill, Utilitarianism (1863). See Little, supra note 11, at 169, 171, 173-74. In addition, Holmes read extensively in the contemporary critical commentary on Mill, including John Henry Bridges, The Unity of Comte's Life and Doctrine: A Reply to Strictures on Comte's Later Writings, Addressed to J.S. Mill (1866), David Masson, A Recent British Philosophy (1865), James McCosh, An Examination of Mr. J.S. Mill's Philosophy (1866), and Herbert Spencer, Mill Versus Hamilton: The Test of Truth, 1 FORT. REV. 531 (1865). For a reproduction of this reading list, see Little, supra note 11, at 171-74. Holmes's reading of Mill was accompanied by extensive reading of other English and American positivists, including George Henry Lewes, The Biographical History of Philosophy (1857), Aristotle, and Chauncey Wright's devastating, rigorously positivist review of Herbert Spencer's work. See Little, supra note 11, at 170.
35. The seven works are John Stuart Mill, A System of Logic, Raciocinative and Inductive (1843), John Stuart Mill, An Examination of Sir William Hamilton's Philosophy (1866), John Stuart Mill, Auguste Comte and Positivism (1865), John Stuart Mill, Considerations on Representative Government (1861), John Stuart Mill, Dissertations and Discussions: Political, Philosophical, and Historical (1859), John Stuart Mill, Principles of Political Economy (1848), and John Stuart Mill, Utilitarianism (1863). See Little, supra note 11, at 169, 171, 173-74. In addition, Holmes read extensively in the contemporary critical commentary on Mill, including John Henry Bridges, The Unity of Comte's Life and Doctrine: A Reply to Strictures on Comte's Later Writings, Addressed to J.S. Mill (1866), David Masson, A Recent British Philosophy (1865), James McCosh, An Examination of Mr. J.S. Mill's Philosophy (1866), and Herbert Spencer, Mill Versus Hamilton: The Test of Truth, 1 FORT. REV. 531 (1865). For a reproduction of this reading list, see Little, supra note 11, at 171-74. Holmes's reading of Mill was accompanied by extensive reading of other English and American positivists, including George Henry Lewes, The Biographical History of Philosophy (1857), Aristotle, and Chauncey Wright's devastating, rigorously positivist review of Herbert Spencer's work. See Little, supra note 11, at 170.
36. The seven works are John Stuart Mill, A System of Logic, Raciocinative and Inductive (1843), John Stuart Mill, An Examination of Sir William Hamilton's Philosophy (1866), John Stuart Mill, Auguste Comte and Positivism (1865), John Stuart Mill, Considerations on Representative Government (1861), John Stuart Mill, Dissertations and Discussions: Political, Philosophical, and Historical (1859), John Stuart Mill, Principles of Political Economy (1848), and John Stuart Mill, Utilitarianism (1863). See Little, supra note 11, at 169, 171, 173-74. In addition, Holmes read extensively in the contemporary critical commentary on Mill, including John Henry Bridges, The Unity of Comte's Life and Doctrine: A Reply to Strictures on Comte's Later Writings, Addressed to J.S. Mill (1866), David Masson, A Recent British Philosophy (1865), James McCosh, An Examination of Mr. J.S. Mill's Philosophy (1866), and Herbert Spencer, Mill Versus Hamilton: The Test of Truth, 1 FORT. REV. 531 (1865). For a reproduction of this reading list, see Little, supra note 11, at 171-74. Holmes's reading of Mill was accompanied by extensive reading of other English and American positivists, including George Henry Lewes, The Biographical History of Philosophy (1857), Aristotle, and Chauncey Wright's devastating, rigorously positivist review of Herbert Spencer's work. See Little, supra note 11, at 170.
37. The seven works are John Stuart Mill, A System of Logic, Raciocinative and Inductive (1843), John Stuart Mill, An Examination of Sir William Hamilton's Philosophy (1866), John Stuart Mill, Auguste Comte and Positivism (1865), John Stuart Mill, Considerations on Representative Government (1861), John Stuart Mill, Dissertations and Discussions: Political, Philosophical, and Historical (1859), John Stuart Mill, Principles of Political Economy (1848), and John Stuart Mill, Utilitarianism (1863). See Little, supra note 11, at 169, 171, 173-74. In addition, Holmes read extensively in the contemporary critical commentary on Mill, including John Henry Bridges, The Unity of Comte's Life and Doctrine: A Reply to Strictures on Comte's Later Writings, Addressed to J.S. Mill (1866), David Masson, A Recent British Philosophy (1865), James McCosh, An Examination of Mr. J.S. Mill's Philosophy (1866), and Herbert Spencer, Mill Versus Hamilton: The Test of Truth, 1 FORT. REV. 531 (1865). For a reproduction of this reading list, see Little, supra note 11, at 171-74. Holmes's reading of Mill was accompanied by extensive reading of other English and American positivists, including George Henry Lewes, The Biographical History of Philosophy (1857), Aristotle, and Chauncey Wright's devastating, rigorously positivist review of Herbert Spencer's work. See Little, supra note 11, at 170.
38. The seven works are John Stuart Mill, A System of Logic, Raciocinative and Inductive (1843), John Stuart Mill, An Examination of Sir William Hamilton's Philosophy (1866), John Stuart Mill, Auguste Comte and Positivism (1865), John Stuart Mill, Considerations on Representative Government (1861), John Stuart Mill, Dissertations and Discussions: Political, Philosophical, and Historical (1859), John Stuart Mill, Principles of Political Economy (1848), and John Stuart Mill, Utilitarianism (1863). See Little, supra note 11, at 169, 171, 173-74. In addition, Holmes read extensively in the contemporary critical commentary on Mill, including John Henry Bridges, The Unity of Comte's Life and Doctrine: A Reply to Strictures on Comte's Later Writings, Addressed to J.S. Mill (1866), David Masson, A Recent British Philosophy (1865), James McCosh, An Examination of Mr. J.S. Mill's Philosophy (1866), and Herbert Spencer, Mill Versus Hamilton: The Test of Truth, 1 FORT. REV. 531 (1865). For a reproduction of this reading list, see Little, supra note 11, at 171-74. Holmes's reading of Mill was accompanied by extensive reading of other English and American positivists, including George Henry Lewes, The Biographical History of Philosophy (1857), Aristotle, and Chauncey Wright's devastating, rigorously positivist review of Herbert Spencer's work. See Little, supra note 11, at 170.
39. The seven works are John Stuart Mill, A System of Logic, Raciocinative and Inductive (1843), John Stuart Mill, An Examination of Sir William Hamilton's Philosophy (1866), John Stuart Mill, Auguste Comte and Positivism (1865), John Stuart Mill, Considerations on Representative Government (1861), John Stuart Mill, Dissertations and Discussions: Political, Philosophical, and Historical (1859), John Stuart Mill, Principles of Political Economy (1848), and John Stuart Mill, Utilitarianism (1863). See Little, supra note 11, at 169, 171, 173-74. In addition, Holmes read extensively in the contemporary critical commentary on Mill, including John Henry Bridges, The Unity of Comte's Life and Doctrine: A Reply to Strictures on Comte's Later Writings, Addressed to J.S. Mill (1866), David Masson, A Recent British Philosophy (1865), James McCosh, An Examination of Mr. J.S. Mill's Philosophy (1866), and Herbert Spencer, Mill Versus Hamilton: The Test of Truth, 1 FORT. REV. 531 (1865). For a reproduction of this reading list, see Little, supra note 11, at 171-74. Holmes's reading of Mill was accompanied by extensive reading of other English and American positivists, including George Henry Lewes, The Biographical History of Philosophy (1857), Aristotle, and Chauncey Wright's devastating, rigorously positivist review of Herbert Spencer's work. See Little, supra note 11, at 170.
40. The seven works are John Stuart Mill, A System of Logic, Raciocinative and Inductive (1843), John Stuart Mill, An Examination of Sir William Hamilton's Philosophy (1866), John Stuart Mill, Auguste Comte and Positivism (1865), John Stuart Mill, Considerations on Representative Government (1861), John Stuart Mill, Dissertations and Discussions: Political, Philosophical, and Historical (1859), John Stuart Mill, Principles of Political Economy (1848), and John Stuart Mill, Utilitarianism (1863). See Little, supra note 11, at 169, 171, 173-74. In addition, Holmes read extensively in the contemporary critical commentary on Mill, including John Henry Bridges, The Unity of Comte's Life and Doctrine: A Reply to Strictures on Comte's Later Writings, Addressed to J.S. Mill (1866), David Masson, A Recent British Philosophy (1865), James McCosh, An Examination of Mr. J.S. Mill's Philosophy (1866), and Herbert Spencer, Mill Versus Hamilton: The Test of Truth, 1 FORT. REV. 531 (1865). For a reproduction of this reading list, see Little, supra note 11, at 171-74. Holmes's reading of Mill was accompanied by extensive reading of other English and American positivists, including George Henry Lewes, The Biographical History of Philosophy (1857), Aristotle, and Chauncey Wright's devastating, rigorously positivist review of Herbert Spencer's work. See Little, supra note 11, at 170.
41. The seven works are John Stuart Mill, A System of Logic, Raciocinative and Inductive (1843), John Stuart Mill, An Examination of Sir William Hamilton's Philosophy (1866), John Stuart Mill, Auguste Comte and Positivism (1865), John Stuart Mill, Considerations on Representative Government (1861), John Stuart Mill, Dissertations and Discussions: Political, Philosophical, and Historical (1859), John Stuart Mill, Principles of Political Economy (1848), and John Stuart Mill, Utilitarianism (1863). See Little, supra note 11, at 169, 171, 173-74. In addition, Holmes read extensively in the contemporary critical commentary on Mill, including John Henry Bridges, The Unity of Comte's Life and Doctrine: A Reply to Strictures on Comte's Later Writings, Addressed to J.S. Mill (1866), David Masson, A Recent British Philosophy (1865), James McCosh, An Examination of Mr. J.S. Mill's Philosophy (1866), and Herbert Spencer, Mill Versus Hamilton: The Test of Truth, 1 FORT. REV. 531 (1865). For a reproduction of this reading list, see Little, supra note 11, at 171-74. Holmes's reading of Mill was accompanied by extensive reading of other English and American positivists, including George Henry Lewes, The Biographical History of Philosophy (1857), Aristotle, and Chauncey Wright's devastating, rigorously positivist review of Herbert Spencer's work. See Little, supra note 11, at 170.
42. The seven works are John Stuart Mill, A System of Logic, Raciocinative and Inductive (1843), John Stuart Mill, An Examination of Sir William Hamilton's Philosophy (1866), John Stuart Mill, Auguste Comte and Positivism (1865), John Stuart Mill, Considerations on Representative Government (1861), John Stuart Mill, Dissertations and Discussions: Political, Philosophical, and Historical (1859), John Stuart Mill, Principles of Political Economy (1848), and John Stuart Mill, Utilitarianism (1863). See Little, supra note 11, at 169, 171, 173-74. In addition, Holmes read extensively in the contemporary critical commentary on Mill, including John Henry Bridges, The Unity of Comte's Life and Doctrine: A Reply to Strictures on Comte's Later Writings, Addressed to J.S. Mill (1866), David Masson, A Recent British Philosophy (1865), James McCosh, An Examination of Mr. J.S. Mill's Philosophy (1866), and Herbert Spencer, Mill Versus Hamilton: The Test of Truth, 1 FORT. REV. 531 (1865). For a reproduction of this reading list, see Little, supra note 11, at 171-74. Holmes's reading of Mill was accompanied by extensive reading of other English and American positivists, including George Henry Lewes, The Biographical History of Philosophy (1857), Aristotle, and Chauncey Wright's devastating, rigorously positivist review of Herbert Spencer's work. See Little, supra note 11, at 170.
43. The seven works are John Stuart Mill, A System of Logic, Raciocinative and Inductive (1843), John Stuart Mill, An Examination of Sir William Hamilton's Philosophy (1866), John Stuart Mill, Auguste Comte and Positivism (1865), John Stuart Mill, Considerations on Representative Government (1861), John Stuart Mill, Dissertations and Discussions: Political, Philosophical, and Historical (1859), John Stuart Mill, Principles of Political Economy (1848), and John Stuart Mill, Utilitarianism (1863). See Little, supra note 11, at 169, 171, 173-74. In addition, Holmes read extensively in the contemporary critical commentary on Mill, including John Henry Bridges, The Unity of Comte's Life and Doctrine: A Reply to Strictures on Comte's Later Writings, Addressed to J.S. Mill (1866), David Masson, A Recent British Philosophy (1865), James McCosh, An Examination of Mr. J.S. Mill's Philosophy (1866), and Herbert Spencer, Mill Versus Hamilton: The Test of Truth, 1 FORT. REV. 531 (1865). For a reproduction of this reading list, see Little, supra note 11, at 171-74. Holmes's reading of Mill was accompanied by extensive reading of other English and American positivists, including George Henry Lewes, The Biographical History of Philosophy (1857), Aristotle, and Chauncey Wright's devastating, rigorously positivist review of Herbert Spencer's work. See Little, supra note 11, at 170.
44. For a careful discussion of Mill's positivism, see W.M. SIMON, EUROPEAN POSITIVISM IN THE NINETEENTH CENTURY: AN ESSAY IN INTELLECTUAL HISTORY 172-201 (1963).
45. JOHN STUART MILL, Auguste Comte and Positivism, in 10 COLLECTED WORKS OF JOHN STUART MILL 261 (J.M. Robson ed., 1969).
46. See Little, supra note 11, at 169.
47. See MILL, supra note 18, at 265.
48. Id.
49. Id. at 266. Mill was not as fastidious as Comte, for Mill accepted these scientific laws of antecedence and consequence as laws of causal relationships between phenomena, although Mill agreed that ultimate or efficient (metaphysical) causes cannot be known. See id. at 292-94.
50. Austin thus shared the conception of the nineteenth-century German Pandectists that law was a positive science "in which the rules of law and how to apply them were drawn exclusively from the system, concepts, and doctrinal principles: extralegal values or aims, whether religious, social, or scientific, were denied any title to create or alter the law." FRANZ WIEACKER, A HISTORY OF PRIVATE LAW IN EUROPE 341 (Tony Weir trans., Clarendon Press 1995).
51. For a helpful attempt to distinguish the quite different philosphies that share the common label "positivism," see Nicola Abbagnano, Positivism, in 6 THE ENCYCLOPEDIA OF PHILOSOPHY 414-19 (Nina Langiulli trans. & Paul Edwards ed., 1967).
52. Many people believe that Holmes was a follower of Herbert Spencer and that Holmes, too, was a social Darwinist. A leading example of this interpretation of Holmes is Jan Vetter's 1984 article on Holmes. SeeJan Vetter, The Evolution of Holmes, Holmes and Evolution, 72 CAL. L. REV. 343 (1984). Vetter claimed that Holmes's evolutionary theory in The Common Law was a social Darwinist theory. Social Darwinists believed that the law of survival of the fittest applied to human beings, classes, societies, or cultures: thus, human evolution favored the fittest. See, e.g., HERBERT SPENCER, THE STUDY OF SOCIOLOGY 324-49 (University of Mich. Press 1961) (1873). See generally RICHARD HOFSTADTER, SOCIAL DARWINISM IN AMERICAN THOUGHT (rev. ed. 1955); DAVID WILTSHIRE, THE SOCIAL AND POLITICAL THOUGHT OF HERBERT SPENCER (1978). The weakness of Vetter's view can be seen by asking a simple question: if Holmes was a social Darwinist, what class, group, individual, or society is the beneficiary of the process of natural selection that results in the "survival of the fittest"? The question has no answer because Holmes's theory is a theory of the evolution of the human thought about law and the concomitant evolution of legal standards. Those standards, he thought, become more rational and scientific as the accumulated experience of mankind provides us with more positive knowledge. This is scientific, gnostic progressivism, not social Darwinism. Vetter nevertheless attempts to answer the question by saying that the evolution Holmes traced benefits the "supreme power in the community," the ordinary reasonable man. Vetter, supra, at 366. But this is absurd. Throughout The Common Law, Holmes recognized that the ordinary reasonable man was a fiction, used in the intermediate general standard of liability to get the jury's judgment about the teaching of experience or the community's objective standard of moral blameworthiness. See HOLMES, supra note 6, at 88-89, 119-21. No self-respecting social Darwinist would have said that natural selection favors a fictional entity. Vetter used Holmes's 1873 commentary on the Gas-Stoker's Strike to support a social Darwinist reading of Holmes. Holmes, The Gas-Stoker's Strike, 7 AM. L. REV. 583 (1873), reprinted in 44 HARV. L. REV. 795 (1931). In that commentary, Holmes stated, "the more powerful interests [in the community] must be more or less reflected in legislation; which, like every other device of man or beast, must tend in the long run to aid the survival of the fittest." Id. at 796. This seems a clear adoption of the social Darwinist position until one puts it into its full context. Holmes wrote in response to an article in The Fortnightly Review accusing the courts of implementing class legislation in jailing striking workers. Holmes used that occasion to attack Herbert Spencer's theory of legislation in Spencer's The Study of Sociology (serialized in 1872 and published in 1873). In doing so, Holmes used Spencer's own theories against him. First, Holmes pointed out that it was anomalous "that believers in the theory of evolution and in the natural development of institutions by successive adaptations to the environment, should be found laying down a theory of government intended to establish its limits once for all by a logical deduction from axioms." Id. at 795. Second, Holmes used Spencer's theory that legislation cannot eliminate burdens but can only shift them to argue against Spencer's condemnation of "class legislation." Id. All legislation is class legislation, said Holmes, as it merely shifts a burden from one class to another. Spencer cannot criticize any legislation as class legislation, then, because legislation cannot be anything else, and because all legislation necessarily furthers the survival of the fittest. Even legislation honestly intended to promote the greatest good of the greatest number is class legislation, because the greatest number is a class, and we cannot tell "for the present," id. at 796, what would be the greatest good of the greatest number in the long run. "The objection to class legislation," said Holmes, "is not that it favors a class, but either that it fails to benefit the legislators, or that it is dangerous to them, . . . or that it transcends the limits of self preference which are imposed by sympathy." Id. After going on to point out our ignorance about the long-range consequences of legislation, Holmes concludes that "the fact is that legislation in this country, as well as elsewhere, is empirical. It is necessarily made a means by which a body, having the power, put burdens which are disagreeable to them on the shoulders of somebody else." Id. Holmes's commentary on the Gas Stoker's Strike, then, was a subtle and devastating attack on Herbert Spencer, the social Darwinist guru; it was not a follower's friendly, constructive criticism.
53. Many people believe that Holmes was a follower of Herbert Spencer and that Holmes, too, was a social Darwinist. A leading example of this interpretation of Holmes is Jan Vetter's 1984 article on Holmes. SeeJan Vetter, The Evolution of Holmes, Holmes and Evolution, 72 CAL. L. REV. 343 (1984). Vetter claimed that Holmes's evolutionary theory in The Common Law was a social Darwinist theory. Social Darwinists believed that the law of survival of the fittest applied to human beings, classes, societies, or cultures: thus, human evolution favored the fittest. See, e.g., HERBERT SPENCER, THE STUDY OF SOCIOLOGY 324-49 (University of Mich. Press 1961) (1873). See generally RICHARD HOFSTADTER, SOCIAL DARWINISM IN AMERICAN THOUGHT (rev. ed. 1955); DAVID WILTSHIRE, THE SOCIAL AND POLITICAL THOUGHT OF HERBERT SPENCER (1978). The weakness of Vetter's view can be seen by asking a simple question: if Holmes was a social Darwinist, what class, group, individual, or society is the beneficiary of the process of natural selection that results in the "survival of the fittest"? The question has no answer because Holmes's theory is a theory of the evolution of the human thought about law and the concomitant evolution of legal standards. Those standards, he thought, become more rational and scientific as the accumulated experience of mankind provides us with more positive knowledge. This is scientific, gnostic progressivism, not social Darwinism. Vetter nevertheless attempts to answer the question by saying that the evolution Holmes traced benefits the "supreme power in the community," the ordinary reasonable man. Vetter, supra, at 366. But this is absurd. Throughout The Common Law, Holmes recognized that the ordinary reasonable man was a fiction, used in the intermediate general standard of liability to get the jury's judgment about the teaching of experience or the community's objective standard of moral blameworthiness. See HOLMES, supra note 6, at 88-89, 119-21. No self-respecting social Darwinist would have said that natural selection favors a fictional entity. Vetter used Holmes's 1873 commentary on the Gas-Stoker's Strike to support a social Darwinist reading of Holmes. Holmes, The Gas-Stoker's Strike, 7 AM. L. REV. 583 (1873), reprinted in 44 HARV. L. REV. 795 (1931). In that commentary, Holmes stated, "the more powerful interests [in the community] must be more or less reflected in legislation; which, like every other device of man or beast, must tend in the long run to aid the survival of the fittest." Id. at 796. This seems a clear adoption of the social Darwinist position until one puts it into its full context. Holmes wrote in response to an article in The Fortnightly Review accusing the courts of implementing class legislation in jailing striking workers. Holmes used that occasion to attack Herbert Spencer's theory of legislation in Spencer's The Study of Sociology (serialized in 1872 and published in 1873). In doing so, Holmes used Spencer's own theories against him. First, Holmes pointed out that it was anomalous "that believers in the theory of evolution and in the natural development of institutions by successive adaptations to the environment, should be found laying down a theory of government intended to establish its limits once for all by a logical deduction from axioms." Id. at 795. Second, Holmes used Spencer's theory that legislation cannot eliminate burdens but can only shift them to argue against Spencer's condemnation of "class legislation." Id. All legislation is class legislation, said Holmes, as it merely shifts a burden from one class to another. Spencer cannot criticize any legislation as class legislation, then, because legislation cannot be anything else, and because all legislation necessarily furthers the survival of the fittest. Even legislation honestly intended to promote the greatest good of the greatest number is class legislation, because the greatest number is a class, and we cannot tell "for the present," id. at 796, what would be the greatest good of the greatest number in the long run. "The objection to class legislation," said Holmes, "is not that it favors a class, but either that it fails to benefit the legislators, or that it is dangerous to them, . . . or that it transcends the limits of self preference which are imposed by sympathy." Id. After going on to point out our ignorance about the long-range consequences of legislation, Holmes concludes that "the fact is that legislation in this country, as well as elsewhere, is empirical. It is necessarily made a means by which a body, having the power, put burdens which are disagreeable to them on the shoulders of somebody else." Id. Holmes's commentary on the Gas Stoker's Strike, then, was a subtle and devastating attack on Herbert Spencer, the social Darwinist guru; it was not a follower's friendly, constructive criticism.
54. Many people believe that Holmes was a follower of Herbert Spencer and that Holmes, too, was a social Darwinist. A leading example of this interpretation of Holmes is Jan Vetter's 1984 article on Holmes. SeeJan Vetter, The Evolution of Holmes, Holmes and Evolution, 72 CAL. L. REV. 343 (1984). Vetter claimed that Holmes's evolutionary theory in The Common Law was a social Darwinist theory. Social Darwinists believed that the law of survival of the fittest applied to human beings, classes, societies, or cultures: thus, human evolution favored the fittest. See, e.g., HERBERT SPENCER, THE STUDY OF SOCIOLOGY 324-49 (University of Mich. Press 1961) (1873). See generally RICHARD HOFSTADTER, SOCIAL DARWINISM IN AMERICAN THOUGHT (rev. ed. 1955); DAVID WILTSHIRE, THE SOCIAL AND POLITICAL THOUGHT OF HERBERT SPENCER (1978). The weakness of Vetter's view can be seen by asking a simple question: if Holmes was a social Darwinist, what class, group, individual, or society is the beneficiary of the process of natural selection that results in the "survival of the fittest"? The question has no answer because Holmes's theory is a theory of the evolution of the human thought about law and the concomitant evolution of legal standards. Those standards, he thought, become more rational and scientific as the accumulated experience of mankind provides us with more positive knowledge. This is scientific, gnostic progressivism, not social Darwinism. Vetter nevertheless attempts to answer the question by saying that the evolution Holmes traced benefits the "supreme power in the community," the ordinary reasonable man. Vetter, supra, at 366. But this is absurd. Throughout The Common Law, Holmes recognized that the ordinary reasonable man was a fiction, used in the intermediate general standard of liability to get the jury's judgment about the teaching of experience or the community's objective standard of moral blameworthiness. See HOLMES, supra note 6, at 88-89, 119-21. No self-respecting social Darwinist would have said that natural selection favors a fictional entity. Vetter used Holmes's 1873 commentary on the Gas-Stoker's Strike to support a social Darwinist reading of Holmes. Holmes, The Gas-Stoker's Strike, 7 AM. L. REV. 583 (1873), reprinted in 44 HARV. L. REV. 795 (1931). In that commentary, Holmes stated, "the more powerful interests [in the community] must be more or less reflected in legislation; which, like every other device of man or beast, must tend in the long run to aid the survival of the fittest." Id. at 796. This seems a clear adoption of the social Darwinist position until one puts it into its full context. Holmes wrote in response to an article in The Fortnightly Review accusing the courts of implementing class legislation in jailing striking workers. Holmes used that occasion to attack Herbert Spencer's theory of legislation in Spencer's The Study of Sociology (serialized in 1872 and published in 1873). In doing so, Holmes used Spencer's own theories against him. First, Holmes pointed out that it was anomalous "that believers in the theory of evolution and in the natural development of institutions by successive adaptations to the environment, should be found laying down a theory of government intended to establish its limits once for all by a logical deduction from axioms." Id. at 795. Second, Holmes used Spencer's theory that legislation cannot eliminate burdens but can only shift them to argue against Spencer's condemnation of "class legislation." Id. All legislation is class legislation, said Holmes, as it merely shifts a burden from one class to
55. Many people believe that Holmes was a follower of Herbert Spencer and that Holmes, too, was a social Darwinist. A leading example of this interpretation of Holmes is Jan Vetter's 1984 article on Holmes. SeeJan Vetter, The Evolution of Holmes, Holmes and Evolution, 72 CAL. L. REV. 343 (1984). Vetter claimed that Holmes's evolutionary theory in The Common Law was a social Darwinist theory. Social Darwinists believed that the law of survival of the fittest applied to human beings, classes, societies, or cultures: thus, human evolution favored the fittest. See, e.g., HERBERT SPENCER, THE STUDY OF SOCIOLOGY 324-49 (University of Mich. Press 1961) (1873). See generally RICHARD HOFSTADTER, SOCIAL DARWINISM IN AMERICAN THOUGHT (rev. ed. 1955); DAVID WILTSHIRE, THE SOCIAL AND POLITICAL THOUGHT OF HERBERT SPENCER (1978). The weakness of Vetter's view can be seen by asking a simple question: if Holmes was a social Darwinist, what class, group, individual, or society is the beneficiary of the process of natural selection that results in the "survival of the fittest"? The question has no answer because Holmes's theory is a theory of the evolution of the human thought about law and the concomitant evolution of legal standards. Those standards, he thought, become more rational and scientific as the accumulated experience of mankind provides us with more positive knowledge. This is scientific, gnostic progressivism, not social Darwinism. Vetter nevertheless attempts to answer the question by saying that the evolution Holmes traced benefits the "supreme power in the community," the ordinary reasonable man. Vetter, supra, at 366. But this is absurd. Throughout The Common Law, Holmes recognized that the ordinary reasonable man was a fiction, used in the intermediate general standard of liability to get the jury's judgment about the teaching of experience or the community's objective standard of moral blameworthiness. See HOLMES, supra note 6, at 88-89, 119-21. No self-respecting social Darwinist would have said that natural selection favors a fictional entity. Vetter used Holmes's 1873 commentary on the Gas-Stoker's Strike to support a social Darwinist reading of Holmes. Holmes, The Gas-Stoker's Strike, 7 AM. L. REV. 583 (1873), reprinted in 44 HARV. L. REV. 795 (1931). In that commentary, Holmes stated, "the more powerful interests [in the community] must be more or less reflected in legislation; which, like every other device of man or beast, must tend in the long run to aid the survival of the fittest." Id. at 796. This seems a clear adoption of the social Darwinist position until one puts it into its full context. Holmes wrote in response to an article in The Fortnightly Review accusing the courts of implementing class legislation in jailing striking workers. Holmes used that occasion to attack Herbert Spencer's theory of legislation in Spencer's The Study of Sociology (serialized in 1872 and published in 1873). In doing so, Holmes used Spencer's own theories against him. First, Holmes pointed out that it was anomalous "that believers in the theory of evolution and in the natural development of institutions by successive adaptations to the environment, should be found laying down a theory of government intended to establish its limits once for all by a logical deduction from axioms." Id. at 795. Second, Holmes used Spencer's theory that legislation cannot eliminate burdens but can only shift them to argue against Spencer's condemnation of "class legislation." Id. All legislation is class legislation, said Holmes, as it merely shifts a burden from one class to another. Spencer cannot criticize any legislation as class legislation, then, because legislation cannot be anything else, and because all legislation necessarily furthers the survival of the fittest. Even legislation honestly intended to promote the greatest good of the greatest number is class legislation, because the greatest number is a class, and we cannot tell "for the present," id. at 796, what would be the greatest good of the greatest number in the long run. "The objection to class legislation," said Holmes, "is not that it favors a class, but either that it fails to benefit the legislators, or that it is dangerous to them, . . . or that it transcends the limits of self preference which are imposed by sympathy." Id. After going on to point out our ignorance about the long-range consequences of legislation, Holmes concludes that "the fact is that legislation in this country, as well as elsewhere, is empirical. It is necessarily made a means by which a body, having the power, put burdens which are disagreeable to them on the shoulders of somebody else." Id. Holmes's commentary on the Gas Stoker's Strike, then, was a subtle and devastating attack on Herbert Spencer, the social Darwinist guru; it was not a follower's friendly, constructive criticism.
56. Many people believe that Holmes was a follower of Herbert Spencer and that Holmes, too, was a social Darwinist. A leading example of this interpretation of Holmes is Jan Vetter's 1984 article on Holmes. SeeJan Vetter, The Evolution of Holmes, Holmes and Evolution, 72 CAL. L. REV. 343 (1984). Vetter claimed that Holmes's evolutionary theory in The Common Law was a social Darwinist theory. Social Darwinists believed that the law of survival of the fittest applied to human beings, classes, societies, or cultures: thus, human evolution favored the fittest. See, e.g., HERBERT SPENCER, THE STUDY OF SOCIOLOGY 324-49 (University of Mich. Press 1961) (1873). See generally RICHARD HOFSTADTER, SOCIAL DARWINISM IN AMERICAN THOUGHT (rev. ed. 1955); DAVID WILTSHIRE, THE SOCIAL AND POLITICAL THOUGHT OF HERBERT SPENCER (1978). The weakness of Vetter's view can be seen by asking a simple question: if Holmes was a social Darwinist, what class, group, individual, or society is the beneficiary of the process of natural selection that results in the "survival of the fittest"? The question has no answer because Holmes's theory is a theory of the evolution of the human thought about law and the concomitant evolution of legal standards. Those standards, he thought, become more rational and scientific as the accumulated experience of mankind provides us with more positive knowledge. This is scientific, gnostic progressivism, not social Darwinism. Vetter nevertheless attempts to answer the question by saying that the evolution Holmes traced benefits the "supreme power in the community," the ordinary reasonable man. Vetter, supra, at 366. But this is absurd. Throughout The Common Law, Holmes recognized that the ordinary reasonable man was a fiction, used in the intermediate general standard of liability to get the jury's judgment about the teaching of experience or the community's objective standard of moral blameworthiness. See HOLMES, supra note 6, at 88-89, 119-21. No self-respecting social Darwinist would have said that natural selection favors a fictional entity. Vetter used Holmes's 1873 commentary on the Gas-Stoker's Strike to support a social Darwinist reading of Holmes. Holmes, The Gas-Stoker's Strike, 7 AM. L. REV. 583 (1873), reprinted in 44 HARV. L. REV. 795 (1931). In that commentary, Holmes stated, "the more powerful interests [in the community] must be more or less reflected in legislation; which, like every other device of man or beast, must tend in the long run to aid the survival of the fittest." Id. at 796. This seems a clear adoption of the social Darwinist position until one puts it into its full context. Holmes wrote in response to an article in The Fortnightly Review accusing the courts of implementing class legislation in jailing striking workers. Holmes used that occasion to attack Herbert Spencer's theory of legislation in Spencer's The Study of Sociology (serialized in 1872 and published in 1873). In doing so, Holmes used Spencer's own theories against him. First, Holmes pointed out that it was anomalous "that believers in the theory of evolution and in the natural development of institutions by successive adaptations to the environment, should be found laying down a theory of government intended to establish its limits once for all by a logical deduction from axioms." Id. at 795. Second, Holmes used Spencer's theory that legislation cannot eliminate burdens but can only shift them to argue against Spencer's condemnation of "class legislation." Id. All legislation is class legislation, said Holmes, as it merely shifts a burden from one class to another. Spencer cannot criticize any legislation as class legislation, then, because legislation cannot be anything else, and because all legislation necessarily furthers the survival of the fittest. Even legislation honestly intended to promote the greatest good of the greatest number is class legislation, because the greatest number is a class, and we cannot tell "for the present," id. at 796, what would be the greatest good of the greatest number in the long run. "The objection to class legislation," said Holmes, "is not that it favors a class, but either that it fails to benefit the legislators, or that it is dangerous to them, . . . or that it transcends the limits of self preference which are imposed by sympathy." Id. After going on to point out our ignorance about the long-range consequences of legislation, Holmes concludes that "the fact is that legislation in this country, as well as elsewhere, is empirical. It is necessarily made a means by which a body, having the power, put burdens which are disagreeable to them on the shoulders of somebody else." Id. Holmes's commentary on the Gas Stoker's Strike, then, was a subtle and devastating attack on Herbert Spencer, the social Darwinist guru; it was not a follower's friendly, constructive criticism.
57. Many people believe that Holmes was a follower of Herbert Spencer and that Holmes, too, was a social Darwinist. A leading example of this interpretation of Holmes is Jan Vetter's 1984 article on Holmes. SeeJan Vetter, The Evolution of Holmes, Holmes and Evolution, 72 CAL. L. REV. 343 (1984). Vetter claimed that Holmes's evolutionary theory in The Common Law was a social Darwinist theory. Social Darwinists believed that the law of survival of the fittest applied to human beings, classes, societies, or cultures: thus, human evolution favored the fittest. See, e.g., HERBERT SPENCER, THE STUDY OF SOCIOLOGY 324-49 (University of Mich. Press 1961) (1873). See generally RICHARD HOFSTADTER, SOCIAL DARWINISM IN AMERICAN THOUGHT (rev. ed. 1955); DAVID WILTSHIRE, THE SOCIAL AND POLITICAL THOUGHT OF HERBERT SPENCER (1978). The weakness of Vetter's view can be seen by asking a simple question: if Holmes was a social Darwinist, what class, group, individual, or society is the beneficiary of the process of natural selection that results in the "survival of the fittest"? The question has no answer because Holmes's theory is a theory of the evolution of the human thought about law and the concomitant evolution of legal standards. Those standards, he thought, become more rational and scientific as the accumulated experience of mankind provides us with more positive knowledge. This is scientific, gnostic progressivism, not social Darwinism. Vetter nevertheless attempts to answer the question by saying that the evolution Holmes traced benefits the "supreme power in the community," the ordinary reasonable man. Vetter, supra, at 366. But this is absurd. Throughout The Common Law, Holmes recognized that the ordinary reasonable man was a fiction, used in the intermediate general standard of liability to get the jury's judgment about the teaching of experience or the community's objective standard of moral blameworthiness. See HOLMES, supra note 6, at 88-89, 119-21. No self-respecting social Darwinist would have said that natural selection favors a fictional entity. Vetter used Holmes's 1873 commentary on the Gas-Stoker's Strike to support a social Darwinist reading of Holmes. Holmes, The Gas-Stoker's Strike, 7 AM. L. REV. 583 (1873), reprinted in 44 HARV. L. REV. 795 (1931). In that commentary, Holmes stated, "the more powerful interests [in the community] must be more or less reflected in legislation; which, like every other device of man or beast, must tend in the long run to aid the survival of the fittest." Id. at 796. This seems a clear adoption of the social Darwinist position until one puts it into its full context. Holmes wrote in response to an article in The Fortnightly Review accusing the courts of implementing class legislation in jailing striking workers. Holmes used that occasion to attack Herbert Spencer's theory of legislation in Spencer's The Study of Sociology (serialized in 1872 and published in 1873). In doing so, Holmes used Spencer's own theories against him. First, Holmes pointed out that it was anomalous "that believers in the theory of evolution and in the natural development of institutions by successive adaptations to the environment, should be found laying down a theory of government intended to establish its limits once for all by a logical deduction from axioms." Id. at 795. Second, Holmes used Spencer's theory that legislation cannot eliminate burdens but can only shift them to argue against Spencer's condemnation of "class legislation." Id. All legislation is class legislation, said Holmes, as it merely shifts a burden from one class to another. Spencer cannot criticize any legislation as class legislation, then, because legislation cannot be anything else, and because all legislation necessarily furthers the survival of the fittest. Even legislation honestly intended to promote the greatest good of the greatest number is class legislation, because the greatest number is a class, and we cannot tell "for the present," id. at 796, what would be the greatest good of the greatest number in the long run. "The objection to class legislation," said Holmes, "is not that it favors a class, but either that it fails to benefit the legislators, or that it is dangerous to them, . . . or that it transcends the limits of self preference which are imposed by sympathy." Id. After going on to point out our ignorance about the long-range consequences of legislation, Holmes concludes that "the fact is that legislation in this country, as well as elsewhere, is empirical. It is necessarily made a means by which a body, having the power, put burdens which are disagreeable to them on the shoulders of somebody else." Id. Holmes's commentary on the Gas Stoker's Strike, then, was a subtle and devastating attack on Herbert Spencer, the social Darwinist guru; it was not a follower's friendly, constructive criticism.
58. Many people believe that Holmes was a follower of Herbert Spencer and that Holmes, too, was a social Darwinist. A leading example of this interpretation of Holmes is Jan Vetter's 1984 article on Holmes. SeeJan Vetter, The Evolution of Holmes, Holmes and Evolution, 72 CAL. L. REV. 343 (1984). Vetter claimed that Holmes's evolutionary theory in The Common Law was a social Darwinist theory. Social Darwinists believed that the law of survival of the fittest applied to human beings, classes, societies, or cultures: thus, human evolution favored the fittest. See, e.g., HERBERT SPENCER, THE STUDY OF SOCIOLOGY 324-49 (University of Mich. Press 1961) (1873). See generally RICHARD HOFSTADTER, SOCIAL DARWINISM IN AMERICAN THOUGHT (rev. ed. 1955); DAVID WILTSHIRE, THE SOCIAL AND POLITICAL THOUGHT OF HERBERT SPENCER (1978). The weakness of Vetter's view can be seen by asking a simple question: if Holmes was a social Darwinist, what class, group, individual, or society is the beneficiary of the process of natural selection that results in the "survival of the fittest"? The question has no answer because Holmes's theory is a theory of the evolution of the human thought about law and the concomitant evolution of legal standards. Those standards, he thought, become more rational and scientific as the accumulated experience of mankind provides us with more positive knowledge. This is scientific, gnostic progressivism, not social Darwinism. Vetter nevertheless attempts to answer the question by saying that the evolution Holmes traced benefits the "supreme power in the community," the ordinary reasonable man. Vetter, supra, at 366. But this is absurd. Throughout The Common Law, Holmes recognized that the ordinary reasonable man was a fiction, used in the intermediate general standard of liability to get the jury's judgment about the teaching of experience or the community's objective standard of moral blameworthiness. See HOLMES, supra note 6, at 88-89, 119-21. No self-respecting social Darwinist would have said that natural selection favors a fictional entity. Vetter used Holmes's 1873 commentary on the Gas-Stoker's Strike to support a social Darwinist reading of Holmes. Holmes, The Gas-Stoker's Strike, 7 AM. L. REV. 583 (1873), reprinted in 44 HARV. L. REV. 795 (1931). In that commentary, Holmes stated, "the more powerful interests [in the community] must be more or less reflected in legislation; which, like every other device of man or beast, must tend in the long run to aid the survival of the fittest." Id. at 796. This seems a clear adoption of the social Darwinist position until one puts it into its full context. Holmes wrote in response to an article in The Fortnightly Review accusing the courts of implementing class legislation in jailing striking workers. Holmes used that occasion to attack Herbert Spencer's theory of legislation in Spencer's The Study of Sociology (serialized in 1872 and published in 1873). In doing so, Holmes used Spencer's own theories against him. First, Holmes pointed out that it was anomalous "that believers in the theory of evolution and in the natural development of institutions by successive adaptations to the environment, should be found laying down a theory of government intended to establish its limits once for all by a logical deduction from axioms." Id. at 795. Second, Holmes used Spencer's theory that legislation cannot eliminate burdens but can only shift them to argue against Spencer's condemnation of "class legislation." Id. All legislation is class legislation, said Holmes, as it merely shifts a burden from one class to another. Spencer cannot criticize any legislation as class legislation, then, because legislation cannot be anything else, and because all legislation necessarily furthers the survival of the fittest. Even legislation honestly intended to promote the greatest good of the greatest number is class legislation, because the greatest number is a class, and we cannot tell "for the present," id. at 796, what would be the greatest good of the greatest number in the long run. "The objection to class legislation," said Holmes, "is not that it favors a class, but either that it fails to benefit the legislators, or that it is dangerous to them, . . . or that it transcends the limits of self preference which are imposed by sympathy." Id. After going on to point out our ignorance about the long-range consequences of legislation, Holmes concludes that "the fact is that legislation in this country, as well as elsewhere, is empirical. It is necessarily made a means by which a body, having the power, put burdens which are disagreeable to them on the shoulders of somebody else." Id. Holmes's commentary on the Gas Stoker's Strike, then, was a subtle and devastating attack on Herbert Spencer, the social Darwinist guru; it was not a follower's friendly, constructive criticism.
59. Many people believe that Holmes was a follower of Herbert Spencer and that Holmes, too, was a social Darwinist. A leading example of this interpretation of Holmes is Jan Vetter's 1984 article on Holmes. SeeJan Vetter, The Evolution of Holmes, Holmes and Evolution, 72 CAL. L. REV. 343 (1984). Vetter claimed that Holmes's evolutionary theory in The Common Law was a social Darwinist theory. Social Darwinists believed that the law of survival of the fittest applied to human beings, classes, societies, or cultures: thus, human evolution favored the fittest. See, e.g., HERBERT SPENCER, THE STUDY OF SOCIOLOGY 324-49 (University of Mich. Press 1961) (1873). See generally RICHARD HOFSTADTER, SOCIAL DARWINISM IN AMERICAN THOUGHT (rev. ed. 1955); DAVID WILTSHIRE, THE SOCIAL AND POLITICAL THOUGHT OF HERBERT SPENCER (1978). The weakness of Vetter's view can be seen by asking a simple question: if Holmes was a social Darwinist, what class, group, individual, or society is the beneficiary of the process of natural selection that results in the "survival of the fittest"? The question has no answer because Holmes's theory is a theory of the evolution of the human thought about law and the concomitant evolution of legal standards. Those standards, he thought, become more rational and scientific as the accumulated experience of mankind provides us with more positive knowledge. This is scientific, gnostic progressivism, not social Darwinism. Vetter nevertheless attempts to answer the question by saying that the evolution Holmes traced benefits the "supreme power in the community," the ordinary reasonable man. Vetter, supra, at 366. But this is absurd. Throughout The Common Law, Holmes recognized that the ordinary reasonable man was a fiction, used in the intermediate general standard of liability to get the jury's judgment about the teaching of experience or the community's objective standard of moral blameworthiness. See HOLMES, supra note 6, at 88-89, 119-21. No self-respecting social Darwinist would have said that natural selection favors a fictional entity. Vetter used Holmes's 1873 commentary on the Gas-Stoker's Strike to support a social Darwinist reading of Holmes. Holmes, The Gas-Stoker's Strike, 7 AM. L. REV. 583 (1873), reprinted in 44 HARV. L. REV. 795 (1931). In that commentary, Holmes stated, "the more powerful interests [in the community] must be more or less reflected in legislation; which, like every other device of man or beast, must tend in the long run to aid the survival of the fittest." Id. at 796. This seems a clear adoption of the social Darwinist position until one puts it into its full context. Holmes wrote in response to an article in The Fortnightly Review accusing the courts of implementing class legislation in jailing striking workers. Holmes used that occasion to attack Herbert Spencer's theory of legislation in Spencer's The Study of Sociology (serialized in 1872 and published in 1873). In doing so, Holmes used Spencer's own theories against him. First, Holmes pointed out that it was anomalous "that believers in the theory of evolution and in the natural development of institutions by successive adaptations to the environment, should be found laying down a theory of government intended to establish its limits once for all by a logical deduction from axioms." Id. at 795. Second, Holmes used Spencer's theory that legislation cannot eliminate burdens but can only shift them to argue against Spencer's condemnation of "class legislation." Id. All legislation is class legislation, said Holmes, as it merely shifts a burden from one class to another. Spencer cannot criticize any legislation as class legislation, then, because legislation cannot be anything else, and because all legislation necessarily furthers the survival of the fittest. Even legislation honestly intended to promote the greatest good of the greatest number is class legislation, because the greatest number is a class, and we cannot tell "for the present," id. at 796, what would be the greatest good of the greatest number in the long run. "The objection to class legislation," said Holmes, "is not that it favors a class, but either that it fails to benefit the legislators, or that it is dangerous to them, . . . or that it transcends the limits of self preference which are imposed by sympathy." Id. After going on to point out our ignorance about the long-range consequences of legislation, Holmes concludes that "the fact is that legislation in this country, as well as elsewhere, is empirical. It is necessarily made a means by which a body, having the power, put burdens which are disagreeable to them on the shoulders of somebody else." Id. Holmes's commentary on the Gas Stoker's Strike, then, was a subtle and devastating attack on Herbert Spencer, the social Darwinist guru; it was not a follower's friendly, constructive criticism.
60. Many people believe that Holmes was a follower of Herbert Spencer and that Holmes, too, was a social Darwinist. A leading example of this interpretation of Holmes is Jan Vetter's 1984 article on Holmes. SeeJan Vetter, The Evolution of Holmes, Holmes and Evolution, 72 CAL. L. REV. 343 (1984). Vetter claimed that Holmes's evolutionary theory in The Common Law was a social Darwinist theory. Social Darwinists believed that the law of survival of the fittest applied to human beings, classes, societies, or cultures: thus, human evolution favored the fittest. See, e.g., HERBERT SPENCER, THE STUDY OF SOCIOLOGY 324-49 (University of Mich. Press 1961) (1873). See generally RICHARD HOFSTADTER, SOCIAL DARWINISM IN AMERICAN THOUGHT (rev. ed. 1955); DAVID WILTSHIRE, THE SOCIAL AND POLITICAL THOUGHT OF HERBERT SPENCER (1978). The weakness of Vetter's view can be seen by asking a simple question: if Holmes was a social Darwinist, what class, group, individual, or society is the beneficiary of the process of natural selection that results in the "survival of the fittest"? The question has no answer because Holmes's theory is a theory of the evolution of the human thought about law and the concomitant evolution of legal standards. Those standards, he thought, become more rational and scientific as the accumulated experience of mankind provides us with more positive knowledge. This is scientific, gnostic progressivism, not social Darwinism. Vetter nevertheless attempts to answer the question by saying that the evolution Holmes traced benefits the "supreme power in the community," the ordinary reasonable man. Vetter, supra, at 366. But this is absurd. Throughout The Common Law, Holmes recognized that the ordinary reasonable man was a fiction, used in the intermediate general standard of liability to get the jury's judgment about the teaching of experience or the community's objective standard of moral blameworthiness. See HOLMES, supra note 6, at 88-89, 119-21. No self-respecting social Darwinist would have said that natural selection favors a fictional entity. Vetter used Holmes's 1873 commentary on the Gas-Stoker's Strike to support a social Darwinist reading of Holmes. Holmes, The Gas-Stoker's Strike, 7 AM. L. REV. 583 (1873), reprinted in 44 HARV. L. REV. 795 (1931). In that commentary, Holmes stated, "the more powerful interests [in the community] must be more or less reflected in legislation; which, like every other device of man or beast, must tend in the long run to aid the survival of the fittest." Id. at 796. This seems a clear adoption of the social Darwinist position until one puts it into its full context. Holmes wrote in response to an article in The Fortnightly Review accusing the courts of implementing class legislation in jailing striking workers. Holmes used that occasion to attack Herbert Spencer's theory of legislation in Spencer's The Study of Sociology (serialized in 1872 and published in 1873). In doing so, Holmes used Spencer's own theories against him. First, Holmes pointed out that it was anomalous "that believers in the theory of evolution and in the natural development of institutions by successive adaptations to the environment, should be found laying down a theory of government intended to establish its limits once for all by a logical deduction from axioms." Id. at 795. Second, Holmes used Spencer's theory that legislation cannot eliminate burdens but can only shift them to argue against Spencer's condemnation of "class legislation." Id. All legislation is class legislation, said Holmes, as it merely shifts a burden from one class to another. Spencer cannot criticize any legislation as class legislation, then, because legislation cannot be anything else, and because all legislation necessarily furthers the survival of the fittest. Even legislation honestly intended to promote the greatest good of the greatest number is class legislation, because the greatest number is a class, and we cannot tell "for the present," id. at 796, what would be the greatest good of the greatest number in the long run. "The objection to class legislation," said Holmes, "is not that it favors a class, but either that it fails to benefit the legislators, or that it is dangerous to them, . . . or that it transcends the limits of self preference which are imposed by sympathy." Id. After going on to point out our ignorance about the long-range consequences of legislation, Holmes concludes that "the fact is that legislation in this country, as well as elsewhere, is empirical. It is necessarily made a means by which a body, having the power, put burdens which are disagreeable to them on the shoulders of somebody else." Id. Holmes's commentary on the Gas Stoker's Strike, then, was a subtle and devastating attack on Herbert Spencer, the social Darwinist guru; it was not a follower's friendly, constructive criticism.
61. Reading those lectures in the context of all the works Holmes had read, however, suggests that Holmes borrowed some of the details of his descriptive theory from other writers. The two that Holmes seemed to have borrowed from most were the German legal scholar Rudolf von Jhering and the English historical anthropologist Edward Burnett Tylor. From Tylor's pioneering work, Primitive Culture, Holmes adopted Tylor's famous theory of survivals, the idea that primitive notions survive into later times. See supra note 9 and accompanying text. Tylor was a Comtean positivist, too, so here Holmes did not seem to be straying far from his central commitments in picking up the details to incorporate into his theory. Jhering was not a thoroughgoing positivist. Nevertheless, Holmes seems to have borrowed a number of details from Jhering's famous book, RUDOLF VONJHERING, DER GEIST DES ROMISCHEN RECHTS (1865) (partial English translation of Vol. I, Title II, Method of the Study of the History of Law on file with author and the Notre Dame Law Review, from Richard Danzig, Unpublished Teaching Materials (1975)), which Holmes read in 1879. See Little, supra note 11, at 200. The similarities between Holmes and Jhering are striking. Holmes and Jhering both advocated the following concepts: the controlling theory of the process of legal development by unarticulated implementation of social policies, the consequent superiority of the scholar in determining the "true" law hidden from those working in the legal system, the importance of "formal realisibility" or effectiveness of the law in achieving its social goals, and the acceptance and promotion of malum prohibitum crimes, consistent with the notion of law as a means to certain social welfare ends. These conceptual similarities are strong. Moreover, the hypothesis of direct borrowing finds support in comparisons of Holmes's writings before and after 1879. The basic material in the first lecture of The Common Law comes from Holmes's 1876 article Primitive Notions in Modern Law, but the additions are ideas similar to those of Jhering: the process of legal development and the notion of unarticulated legislative policy as the secret root of judicial decision. See HOLMES supra note 6, at 5-33; JHERING, supra, at 21-34; O.W.H., Primitive Notions, supra note 9. Similarly, Holmes's 1873 article, The Theory of Torts, covered much the same ground and included many of the same ideas as the third and fourth lectures of The Common Law, but the additions are again ideas similar to those of Jhering: the foreseeability test derivable from a legislative policy and the emphasis on formal realisability or the effectiveness of the law in achieving its ends. See HOLMES, supra note 6, at 63-129; JHERING, supra, at 27-34; Note, The Theory of Torts, 7 AM. L. REV. 652-63 (1873), reprinted in THE FORMATIVE ESSAYS OF JUSTICE HOLMES, supra note 9, at 117; see also HOLMES, supra note 4, at vii, 253 (noting that Holmes authored this unsigned article).
62. Reading those lectures in the context of all the works Holmes had read, however, suggests that Holmes borrowed some of the details of his descriptive theory from other writers. The two that Holmes seemed to have borrowed from most were the German legal scholar Rudolf von Jhering and the English historical anthropologist Edward Burnett Tylor. From Tylor's pioneering work, Primitive Culture, Holmes adopted Tylor's famous theory of survivals, the idea that primitive notions survive into later times. See supra note 9 and accompanying text. Tylor was a Comtean positivist, too, so here Holmes did not seem to be straying far from his central commitments in picking up the details to incorporate into his theory. Jhering was not a thoroughgoing positivist. Nevertheless, Holmes seems to have borrowed a number of details from Jhering's famous book, RUDOLF VONJHERING, DER GEIST DES ROMISCHEN RECHTS (1865) (partial English translation of Vol. I, Title II, Method of the Study of the History of Law on file with author and the Notre Dame Law Review, from Richard Danzig, Unpublished Teaching Materials (1975)), which Holmes read in 1879. See Little, supra note 11, at 200. The similarities between Holmes and Jhering are striking. Holmes and Jhering both advocated the following concepts: the controlling theory of the process of legal development by unarticulated implementation of social policies, the consequent superiority of the scholar in determining the "true" law hidden from those working in the legal system, the importance of "formal realisibility" or effectiveness of the law in achieving its social goals, and the acceptance and promotion of malum prohibitum crimes, consistent with the notion of law as a means to certain social welfare ends. These conceptual similarities are strong. Moreover, the hypothesis of direct borrowing finds support in comparisons of Holmes's writings before and after 1879. The basic material in the first lecture of The Common Law comes from Holmes's 1876 article Primitive Notions in Modern Law, but the additions are ideas similar to those of Jhering: the process of legal development and the notion of unarticulated legislative policy as the secret root of judicial decision. See HOLMES supra note 6, at 5-33; JHERING, supra, at 21-34; O.W.H., Primitive Notions, supra note 9. Similarly, Holmes's 1873 article, The Theory of Torts, covered much the same ground and included many of the same ideas as the third and fourth lectures of The Common Law, but the additions are again ideas similar to those of Jhering: the foreseeability test derivable from a legislative policy and the emphasis on formal realisability or the effectiveness of the law in achieving its ends. See HOLMES, supra note 6, at 63-129; JHERING, supra, at 27-34; Note, The Theory of Torts, 7 AM. L. REV. 652-63 (1873), reprinted in THE FORMATIVE ESSAYS OF JUSTICE HOLMES, supra note 9, at 117; see also HOLMES, supra note 4, at vii, 253 (noting that Holmes authored this unsigned article).
63. Reading those lectures in the context of all the works Holmes had read, however, suggests that Holmes borrowed some of the details of his descriptive theory from other writers. The two that Holmes seemed to have borrowed from most were the German legal scholar Rudolf von Jhering and the English historical anthropologist Edward Burnett Tylor. From Tylor's pioneering work, Primitive Culture, Holmes adopted Tylor's famous theory of survivals, the idea that primitive notions survive into later times. See supra note 9 and accompanying text. Tylor was a Comtean positivist, too, so here Holmes did not seem to be straying far from his central commitments in picking up the details to incorporate into his theory. Jhering was not a thoroughgoing positivist. Nevertheless, Holmes seems to have borrowed a number of details from Jhering's famous book, RUDOLF VONJHERING, DER GEIST DES ROMISCHEN RECHTS (1865) (partial English translation of Vol. I, Title II, Method of the Study of the History of Law on file with author and the Notre Dame Law Review, from Richard Danzig, Unpublished Teaching Materials (1975)), which Holmes read in 1879. See Little, supra note 11, at 200. The similarities between Holmes and Jhering are striking. Holmes and Jhering both advocated the following concepts: the controlling theory of the process of legal development by unarticulated implementation of social policies, the consequent superiority of the scholar in determining the "true" law hidden from those working in the legal system, the importance of "formal realisibility" or effectiveness of the law in achieving its social goals, and the acceptance and promotion of malum prohibitum crimes, consistent with the notion of law as a means to certain social welfare ends. These conceptual similarities are strong. Moreover, the hypothesis of direct borrowing finds support in comparisons of Holmes's writings before and after 1879. The basic material in the first lecture of The Common Law comes from Holmes's 1876 article Primitive Notions in Modern Law, but the additions are ideas similar to those of Jhering: the process of legal development and the notion of unarticulated legislative policy as the secret root of judicial decision. See HOLMES supra note 6, at 5-33; JHERING, supra, at 21-34; O.W.H., Primitive Notions, supra note 9. Similarly, Holmes's 1873 article, The Theory of Torts, covered much the same ground and included many of the same ideas as the third and fourth lectures of The Common Law, but the additions are again ideas similar to those of Jhering: the foreseeability test derivable from a legislative policy and the emphasis on formal realisability or the effectiveness of the law in achieving its ends. See HOLMES, supra note 6, at 63-129; JHERING, supra, at 27-34; Note, The Theory of Torts, 7 AM. L. REV. 652-63 (1873), reprinted in THE FORMATIVE ESSAYS OF JUSTICE HOLMES, supra note 9, at 117; see also HOLMES, supra note 4, at vii, 253 (noting that Holmes authored this unsigned article).
64. Reading those lectures in the context of all the works Holmes had read, however, suggests that Holmes borrowed some of the details of his descriptive theory from other writers. The two that Holmes seemed to have borrowed from most were the German legal scholar Rudolf von Jhering and the English historical anthropologist Edward Burnett Tylor. From Tylor's pioneering work, Primitive Culture, Holmes adopted Tylor's famous theory of survivals, the idea that primitive notions survive into later times. See supra note 9 and accompanying text. Tylor was a Comtean positivist, too, so here Holmes did not seem to be straying far from his central commitments in picking up the details to incorporate into his theory. Jhering was not a thoroughgoing positivist. Nevertheless, Holmes seems to have borrowed a number of details from Jhering's famous book, RUDOLF VONJHERING, DER GEIST DES ROMISCHEN RECHTS (1865) (partial English translation of Vol. I, Title II, Method of the Study of the History of Law on file with author and the Notre Dame Law Review, from Richard Danzig, Unpublished Teaching Materials (1975)), which Holmes read in 1879. See Little, supra note 11, at 200. The similarities between Holmes and Jhering are striking. Holmes and Jhering both advocated the following concepts: the controlling theory of the process of legal development by unarticulated implementation of social policies, the consequent superiority of the scholar in determining the "true" law hidden from those working in the legal system, the importance of "formal realisibility" or effectiveness of the law in achieving its social goals, and the acceptance and promotion of malum prohibitum crimes, consistent with the notion of law as a means to certain social welfare ends. These conceptual similarities are strong. Moreover, the hypothesis of direct borrowing finds support in comparisons of Holmes's writings before and after 1879. The basic material in the first lecture of The Common Law comes from Holmes's 1876 article Primitive Notions in Modern Law, but the additions are ideas similar to those of Jhering: the process of legal development and the notion of unarticulated legislative policy as the secret root of judicial decision. See HOLMES supra note 6, at 5-33; JHERING, supra, at 21-34; O.W.H., Primitive Notions, supra note 9. Similarly, Holmes's 1873 article, The Theory of Torts, covered much the same ground and included many of the same ideas as the third and fourth lectures of The Common Law, but the additions are again ideas similar to those of Jhering: the foreseeability test derivable from a legislative policy and the emphasis on formal realisability or the effectiveness of the law in achieving its ends. See HOLMES, supra note 6, at 63-129; JHERING, supra, at 27-34; Note, The Theory of Torts, 7 AM. L. REV. 652-63 (1873), reprinted in THE FORMATIVE ESSAYS OF JUSTICE HOLMES, supra note 9, at 117; see also HOLMES, supra note 4, at vii, 253 (noting that Holmes authored this unsigned article).
65. Reading those lectures in the context of all the works Holmes had read, however, suggests that Holmes borrowed some of the details of his descriptive theory from other writers. The two that Holmes seemed to have borrowed from most were the German legal scholar Rudolf von Jhering and the English historical anthropologist Edward Burnett Tylor. From Tylor's pioneering work, Primitive Culture, Holmes adopted Tylor's famous theory of survivals, the idea that primitive notions survive into later times. See supra note 9 and accompanying text. Tylor was a Comtean positivist, too, so here Holmes did not seem to be straying far from his central commitments in picking up the details to incorporate into his theory. Jhering was not a thoroughgoing positivist. Nevertheless, Holmes seems to have borrowed a number of details from Jhering's famous book, RUDOLF VONJHERING, DER GEIST DES ROMISCHEN RECHTS (1865) (partial English translation of Vol. I, Title II, Method of the Study of the History of Law on file with author and the Notre Dame Law Review, from Richard Danzig, Unpublished Teaching Materials (1975)), which Holmes read in 1879. See Little, supra note 11, at 200. The similarities between Holmes and Jhering are striking. Holmes and Jhering both advocated the following concepts: the controlling theory of the process of legal development by unarticulated implementation of social policies, the consequent superiority of the scholar in determining the "true" law hidden from those working in the legal system, the importance of "formal realisibility" or effectiveness of the law in achieving its social goals, and the acceptance and promotion of malum prohibitum crimes, consistent with the notion of law as a means to certain social welfare ends. These conceptual similarities are strong. Moreover, the hypothesis of direct borrowing finds support in comparisons of Holmes's writings before and after 1879. The basic material in the first lecture of The Common Law comes from Holmes's 1876 article Primitive Notions in Modern Law, but the additions are ideas similar to those of Jhering: the process of legal development and the notion of unarticulated legislative policy as the secret root of judicial decision. See HOLMES supra note 6, at 5-33; JHERING, supra, at 21-34; O.W.H., Primitive Notions, supra note 9. Similarly, Holmes's 1873 article, The Theory of Torts, covered much the same ground and included many of the same ideas as the third and fourth lectures of The Common Law, but the additions are again ideas similar to those of Jhering: the foreseeability test derivable from a legislative policy and the emphasis on formal realisability or the effectiveness of the law in achieving its ends. See HOLMES, supra note 6, at 63-129; JHERING, supra, at 27-34; Note, The Theory of Torts, 7 AM. L. REV. 652-63 (1873), reprinted in THE FORMATIVE ESSAYS OF JUSTICE HOLMES, supra note 9, at 117; see also HOLMES, supra note 4, at vii, 253 (noting that Holmes authored this unsigned article).
66. O.W.H., Primitive Notions, supra note 9, at 129-46.
67. HOLMES, supra note 6, at 33.
68. Id. at 32.
69. See, e.g., id. at 16 (discussing the "true reason" for liability of shipowners and innkeepers); id. at 26-27 (discussing "hidden ground[s] of policy" for holding a ship itself liable in maritime law); id. at 28 (suggesting a "plausible explanation of policy" for treating freight as "the mother of [seamen's] wages"); id. at 115 (suggesting two policies underlying an objective standard of tort liability).
70. Id. at 63 (discussing explicitly this "tendency" for the theory of torts, implicitly for criminal law); cf. id. at 5 ("The law embodies the story of a nation's development through many centuries . . . . In order to know what it is, we must know what it has been, and what it tends to become.").
71. See id. at 36.
72. This, according to Holmes, is true in both criminal and tort law. See id. at 61-62, 86-88.
73. See id. at 61-62, 119-20.
74. See id. at 42-43, 47-48, 56-57, 86-88, 115.
75. See id. at 77-78, 115.
76. See id. at 89-92, 119-21, 129.
77. See id. at 88-89.
78. See id. at 33, 42, 88-89. The general standard of average moral blameworthiness is more effective at deterring dangerous conduct because people know their personal inadequacies will not be taken into account. The hasty, awkward, and naturally imprudent are thus given greater incentive to act safely. See id. at 40, 43, 86-87. Moreover, the final fixed, definite, and certain rules are more effective than the vaguer standard of average moral blameworthiness from which they evolve, because it is easier to know the specific rules and to predict when they will be applied. See id. at 88-89.
79. See id. at 36.
80. See id.
81. See id. at 46-47, 61-62, 86-88. The achievement of this policy is limited only by the need to preserve the law's effectiveness: imposing liability for dangerous conduct that would not be morally blameworthy in the average member of the community might be "too severe for that community to bear." Id. at 42; see also id. at 62, 128-29. This practical limitation becomes less and less significant as the process of specification leads to fixed and definite liability rules, based on the teachings of experience about the danger of certain conduct under given circumstances, for those rules do not refer to moral blameworthiness in any form.
82. See id. at 42, 88.
83. See id. at 88-90.
84. See Holmes, Primitive Notiońs II, supra note 9, at 654.
85. See HOLMES, supra note 6, at 89-92, 119-21, 129.
86. See FRIEDERICH CARL VON SAVIGNY, SYSTEM DES HEUTIGEN ROMISCHEN RECHTS §§ 104-40, at 5-309 (Berlin, Veit und Comp. 1848), cited in POLLOCK, supra note 7, at 1-2, and in JAMES GORDLEY, THE PHILOSOPHICAL ORIGINS OF MODERN CONTRACT DOCTRINE 162-63 nn.3-4 (1991).
87. See FRIEDERICH CARL VON SAVIGNY, SYSTEM DES HEUTIGEN ROMISCHEN RECHTS §§ 104-40, at 5-309 (Berlin, Veit und Comp. 1848), cited in POLLOCK, supra note 7, at 1-2, and in JAMES GORDLEY, THE PHILOSOPHICAL ORIGINS OF MODERN CONTRACT DOCTRINE 162-63 nn.3-4 (1991).
88. See generally HENRY SUMNER MAINE, ANCIENT LAW: ITS CONNECTION WITH THE EARLY HISTORY OF SOCIETY, AND ITS RELATION TO MODERN IDEAS (London, J. Murray 10th ed. 1884) (containing an introduction and appendices by Frederick Pollock).
89. See 3 SAVIGNY, supra note 47, at 309.
90. See MAINE, supra note 48, at 324. Holmes read this edition of Maine's Ancient Law in 1865 or 1866, and again in 1868. See Little, supra note 11, at 169, 178.
91. MAINE, supra note 48, at 324.
92. See id. The Contract-law of all other ancient societies but the Roman is either too scanty to furnish information, or else is entirely lost . . . . From the absence, however, of everything violent, marvelous, or unintelligible in the changes I have described, it may be reasonably believed that the history of Ancient Roman Contracts is, up to a certain point, typical of the history of this class of legal conceptions in other ancient societies. Id. at 328.
93. POLLOCK, supra note 7.
94. ANSON, supra note 4.
95. LANGDELL, SUMMARY, supra note 8.
96. See ANSON, supra note 4, at v.
97. See id. at vii.
98. POLLOCK, supra note 7, at vii.
99. Cf. SIR WILLIAM JONES, ESSAY ON THE LAW OF BAILMENTS 4, 123 (London, S. Sweet 1833) (1781) (explaining law of bailment by reference to fundamental natural law principles), quoted in A.W.B. SIMPSON, Innovation in Nineteenth Century Contract Law, in LEGAL THEORY AND LEGAL HISTORY: ESSAYS ON THE COMMON LAW 176-77 (1987) [hereinafter LEGAL THEORY AND LEGAL HISTORY].
100. Cf. SIR WILLIAM JONES, ESSAY ON THE LAW OF BAILMENTS 4, 123 (London, S. Sweet 1833) (1781) (explaining law of bailment by reference to fundamental natural law principles), quoted in A.W.B. SIMPSON, Innovation in Nineteenth Century Contract Law, in LEGAL THEORY AND LEGAL HISTORY: ESSAYS ON THE COMMON LAW 176-77 (1987) [hereinafter LEGAL THEORY AND LEGAL HISTORY].
101. See POLLOCK, supra note 7, at 1-8.
102. See id. at 116-52.
103. For a careful analysis of Savigny's legal science, see WIEACKER, supra note 23, at 289-316. For the German Pandectists, see id. at 341-53.
104. Pollock concluded, [In] the ancient view no informal contract is good unless it falls within some exceptionally favoured class: the modern view to which the law of England has now long come round is the reverse, namely that no contract need be in any particular form unless it belongs to some class in which a particular form is specially required. POLLOCK, supra note 7, at 126.
105. See id. at 148-49.
106. Id. at 149.
107. Id. at 152.
108. See id. at 153, 163.
109. See id. at 152, 163-65.
110. See id. at 1-31.
111. See id. at 1-2.
112. Id. at 2.
113. Id. at 4.
114. Id. at 5.
115. See Indian Contract Act of 1872, reprinted in A.C. PATRA, THE INDIAN CONTRACT ACT 1-66 (1967).
116. See POLLOCK, supra note 7, at 6. The definitions of "proposal," "acceptance," and "promise" in that Act are as follows: (a) When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal; (b) When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal when accepted becomes a promise: Id.
117. Id. at 8.
118. See id. at 8-9.
119. See id. at 9-10.
120. See id. at 10-21.
121. Id. at 11. Thus, Pollock rejected Pothier's will-theory-based notion that revocation of a proposal is effective as soon as it is formally determined by the proposer, before its communication to the offeree. Pollock argued that this "wholly overlooks the consideration that not intention in the abstract, but communicated intention, is what we have to look to in all questions of the formation of contracts." Id. at 10. Furthermore, Pollock argued, it is "manifestly unjust" to let "a revocation take effect, though the other party has received, accepted, and acted upon the proposal without knowing anything of the proposer's intention to revoke it." Id. Pollock took a similarly practical position on the question of acceptance by mail: [I]t is plainly just and expedient that the acceptance should date from the time when the party has done all he can to accept, by putting his affirmative answer in a determinate course of transmission to the proposer. From that time he must be free to act on the contract as valid . . . . Id. at 11. Posted acceptance is neither irrevocable nor necessarily effective, however. The acceptance can be revoked if revocation reaches the proposer at or before the acceptance. And the mailed acceptance may not be effective if it is never delivered or if it is delayed in delivery past the time called for, explicitly or implicitly, by the proposal. By focusing on communicated intentions rather than some mystical coincidence of wills, Pollock was free to resolve these questions of contract formation based on commonsense notions of notice, fairness, and practical needs for legal certainty.
122. Id. at 355-442.
123. Id. at 445-69.
124. Id. at 471-99.
125. Id. at 500-43.
126. Id. at 355.
127. See id. at 355-56.
128. See id. at 356.
129. See id. at 356-57.
130. Pollock started off with the very general definition of consideration from the case of Currie v. Misa, 10 L.R.-Ex. 153, 162 (1875): "A valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility, given, suffered, or undertaken by the other." POLLOCK, supra note 7, at 147. After discussing the possible historical origins of this doctrine, Pollock went on to sketch some of the details of the common law doctrine of consideration. Pollock covered a number of specific subtopics, without elaborating any organizing, generally explanatory principles tying those subtopics together. Pollock discussed the rule that the amount of the consideration is not material: courts do not question the adequacy of the consideration. See id. at 154. In explaining this, Pollock quoted Thomas Hobbes's Leviathan: "The value of all things contracted for is measured by the appetite of the contractors, and therefore the just value is that which they be contented to give." Id. (quoting THOMAS HOBBES, LEVIATHAN 75 (London 1651)). After going through a number of cases holding that the adequacy of consideration is not material, Pollock identified the "principle of all these cases, . . . [stated] in so many words by the judges, that the promisor has got all that he bargained for." Id. at 155. Pollock recognized, however, that "inadequacy of consideration, coupled with other things," may be evidence of fraud. Id. at 156. Pollock went on to discuss reciprocal promises, which may be the consideration for each other. See id. Pollock noted that a promise is not good consideration if it is a promise to do what one is already bound to do, either by the general law or by a prior contract with the other party. See id. at 157. A promise to do what one is contractually bound to a third party to do, however, may be good consideration. Pollock recognized a good policy reason for this apparent anomaly: To allow promises to be binding if made in consideration of the promisee doing or undertaking what he is already bound generally or to the promisor to do would be to give direct encouragement to breaches of public and private duty. But where the duty is to a third person only, this reason does not apply; the encouragement to unlawful conduct, if any, is too remote and precarious to count for anything. Id. at 160. In the course of this disjointed ramble through the law related to consideration, Pollock argued in passing for a very thin purpose for the doctrine of consideration: "The main end and use of the doctrine of Consideration . . . is to furnish us with a reasonable and comprehensive set of rules which can be applied to all informal contracts without distinction of their character or subject matter." Id. at 163.
131. Indian Contract Act of 1872, reprinted in PATRA, supra note 74.
132. Christopher Columbus Langdell, Harvard Celebration Speech (Nov. 5, 1886), in 3 LAW Q. REV. 123, 124 (1887).
133. See 1 C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (Boston, Little, Brown, & Co. 1st ed. 1871).
134. See LANGDELL, SELECTION OF CASES, supra note 8.
135. See LANGDELL, SUMMARY, supra note 8.
136. Id. at 1-23.
137. Id. at 197-204.
138. Over the last 25 years, we have seen vigorous and sophisticated academic commentary on Langdell's legal science. See, e.g., GRANT GILMORE, THE AGES OF AMERICAN LAW 42-48 (1977) [hereinafter GILMORE, AMERICAN LAW] (calling Langdell's science a simple-minded formalism); GRANT GILMORE, THE DEATH OF CONTRACT 13-15 (1974) [hereinafter GILMORE, CONTRACT] (same); WILLIAM P. LAPIANA, LOGIC AND EXPERIENCE: THE ORIGIN OF MODERN AMERICAN LEGAL EDUCATION 55-78 (1994) (calling Langdell's science an amalgam of technical legal analysis of cases, a coherent classification of the law based on fundamental but technical substantive doctrines, and a loosely-understood Austinian positivism separating law and morality); Thomas Grey, Langdell's Orthodoxy, 45 U. PITT. L. REV. 1 (1983) (calling Langdell's science a curious combination of induction from the cases of principles, then used to deduce subsequent conclusions, analogous to Mill's inductive explanation of geometry, contrary to Gilmore and
139. Over the last 25 years, we have seen vigorous and sophisticated academic commentary on Langdell's legal science. See, e.g., GRANT GILMORE, THE AGES OF AMERICAN LAW 42-48 (1977) [hereinafter GILMORE, AMERICAN LAW] (calling Langdell's science a simple-minded formalism); GRANT GILMORE, THE DEATH OF CONTRACT 13-15 (1974) [hereinafter GILMORE, CONTRACT] (same); WILLIAM P. LAPIANA, LOGIC AND EXPERIENCE: THE ORIGIN OF MODERN AMERICAN LEGAL EDUCATION 55-78 (1994) (calling Langdell's science an amalgam of technical legal analysis of cases, a coherent classification of the law based on fundamental but technical substantive doctrines, and a loosely-understood Austinian positivism separating law and morality); Thomas Grey, Langdell's Orthodoxy, 45 U. PITT. L. REV. 1 (1983) (calling Langdell's science a curious combination of induction from the cases of principles, then used to deduce subsequent conclusions, analogous to Mill's inductive explanation of geometry, contrary to Gilmore and Speziale); Matthias Reimann, The Common Law and German Legal Science, in THE LEGACY OF OLIVER WENDELL HOLMES, JR. 72 (Gordon ed., 1992) (calling Langdell's science similar to, but in important ways different from, Kantian formalism of the German pandectists, thus placing Langdell halfway between Kantian formalism and a rigorously empirical, inductive, historicist legal science); Marcia Speziale, Lańgdell's Concept of Law as Science: The Beginning of Anti-Formalism in American Legal Theory, 5 VT. L. REV. 1 (1980) (calling Langdell's science empirical and dedicated to formulating working hypotheses from analysis of original sources, contrary to Gilmore).
140. Over the last 25 years, we have seen vigorous and sophisticated academic commentary on Langdell's legal science. See, e.g., GRANT GILMORE, THE AGES OF AMERICAN LAW 42-48 (1977) [hereinafter GILMORE, AMERICAN LAW] (calling Langdell's science a simple-minded formalism); GRANT GILMORE, THE DEATH OF CONTRACT 13-15 (1974) [hereinafter GILMORE, CONTRACT] (same); WILLIAM P. LAPIANA, LOGIC AND EXPERIENCE: THE ORIGIN OF MODERN AMERICAN LEGAL EDUCATION 55-78 (1994) (calling Langdell's science an amalgam of technical legal analysis of cases, a coherent classification of the law based on fundamental but technical substantive doctrines, and a loosely-understood Austinian positivism separating law and morality); Thomas Grey, Langdell's Orthodoxy, 45 U. PITT. L. REV. 1 (1983) (calling Langdell's science a curious combination of induction from the cases of principles, then used to deduce subsequent conclusions, analogous to Mill's inductive explanation of geometry, contrary to Gilmore and Speziale); Matthias Reimann, The Common Law and German Legal Science, in THE LEGACY OF OLIVER WENDELL HOLMES, JR. 72 (Gordon ed., 1992) (calling Langdell's science similar to, but in important ways different from, Kantian formalism of the German pandectists, thus placing Langdell halfway between Kantian formalism and a rigorously empirical, inductive, historicist legal science); Marcia Speziale, Lańgdell's Concept of Law as Science: The Beginning of Anti-Formalism in American Legal Theory, 5 VT. L. REV. 1 (1980) (calling Langdell's science empirical and dedicated to formulating working hypotheses from analysis of original sources, contrary to Gilmore).
141. Over the last 25 years, we have seen vigorous and sophisticated academic commentary on Langdell's legal science. See, e.g., GRANT GILMORE, THE AGES OF AMERICAN LAW 42-48 (1977) [hereinafter GILMORE, AMERICAN LAW] (calling Langdell's science a simple-minded formalism); GRANT GILMORE, THE DEATH OF CONTRACT 13-15 (1974) [hereinafter GILMORE, CONTRACT] (same); WILLIAM P. LAPIANA, LOGIC AND EXPERIENCE: THE ORIGIN OF MODERN AMERICAN LEGAL EDUCATION 55-78 (1994) (calling Langdell's science an amalgam of technical legal analysis of cases, a coherent classification of the law based on fundamental but technical substantive doctrines, and a loosely-understood Austinian positivism separating law and morality); Thomas Grey, Langdell's Orthodoxy, 45 U. PITT. L. REV. 1 (1983) (calling Langdell's science a curious combination of induction from the cases of principles, then used to deduce subsequent conclusions, analogous to Mill's inductive explanation of geometry, contrary to Gilmore and Speziale); Matthias Reimann, The Common Law and German Legal Science, in THE LEGACY OF OLIVER WENDELL HOLMES, JR. 72 (Gordon ed., 1992) (calling Langdell's science similar to, but in important ways different from, Kantian formalism of the German pandectists, thus placing Langdell halfway between Kantian formalism and a rigorously empirical, inductive, historicist legal science); Marcia Speziale, Lańgdell's Concept of Law as Science: The Beginning of Anti-Formalism in American Legal Theory, 5 VT. L. REV. 1 (1980) (calling Langdell's science empirical and dedicated to formulating working hypotheses from analysis of original sources, contrary to Gilmore).
142. Over the last 25 years, we have seen vigorous and sophisticated academic commentary on Langdell's legal science. See, e.g., GRANT GILMORE, THE AGES OF AMERICAN LAW 42-48 (1977) [hereinafter GILMORE, AMERICAN LAW] (calling Langdell's science a simple-minded formalism); GRANT GILMORE, THE DEATH OF CONTRACT 13-15 (1974) [hereinafter GILMORE, CONTRACT] (same); WILLIAM P. LAPIANA, LOGIC AND EXPERIENCE: THE ORIGIN OF MODERN AMERICAN LEGAL EDUCATION 55-78 (1994) (calling Langdell's science an amalgam of technical legal analysis of cases, a coherent classification of the law based on fundamental but technical substantive doctrines, and a loosely-understood Austinian positivism separating law and morality); Thomas Grey, Langdell's Orthodoxy, 45 U. PITT. L. REV. 1 (1983) (calling Langdell's science a curious combination of induction from the cases of principles, then used to deduce subsequent conclusions, analogous to Mill's inductive explanation of geometry, contrary to Gilmore and Speziale); Matthias Reimann, The Common Law and German Legal Science, in THE LEGACY OF OLIVER WENDELL HOLMES, JR. 72 (Gordon ed., 1992) (calling Langdell's science similar to, but in important ways different from, Kantian formalism of the German pandectists, thus placing Langdell halfway between Kantian formalism and a rigorously empirical, inductive, historicist legal science); Marcia Speziale, Lańgdell's Concept of Law as Science: The Beginning of Anti-Formalism in American Legal Theory, 5 VT. L. REV. 1 (1980) (calling Langdell's science empirical and dedicated to formulating working hypotheses from analysis of original sources, contrary to Gilmore).
143. Over the last 25 years, we have seen vigorous and sophisticated academic commentary on Langdell's legal science. See, e.g., GRANT GILMORE, THE AGES OF AMERICAN LAW 42-48 (1977) [hereinafter GILMORE, AMERICAN LAW] (calling Langdell's science a simple-minded formalism); GRANT GILMORE, THE DEATH OF CONTRACT 13-15 (1974) [hereinafter GILMORE, CONTRACT] (same); WILLIAM P. LAPIANA, LOGIC AND EXPERIENCE: THE ORIGIN OF MODERN AMERICAN LEGAL EDUCATION 55-78 (1994) (calling Langdell's science an amalgam of technical legal analysis of cases, a coherent classification of the law based on fundamental but technical substantive doctrines, and a loosely-understood Austinian positivism separating law and morality); Thomas Grey, Langdell's Orthodoxy, 45 U. PITT. L. REV. 1 (1983) (calling Langdell's science a curious combination of induction from the cases of principles, then used to deduce subsequent conclusions, analogous to Mill's inductive explanation of geometry, contrary to Gilmore and Speziale); Matthias Reimann, The Common Law and German Legal Science, in THE LEGACY OF OLIVER WENDELL HOLMES, JR. 72 (Gordon ed., 1992) (calling Langdell's science similar to, but in important ways different from, Kantian formalism of the German pandectists, thus placing Langdell halfway between Kantian formalism and a rigorously empirical, inductive, historicist legal science); Marcia Speziale, Lańgdell's Concept of Law as Science: The Beginning of Anti-Formalism in American Legal Theory, 5 VT. L. REV. 1 (1980) (calling Langdell's science empirical and dedicated to formulating working hypotheses from analysis of original sources, contrary to Gilmore).
144. See 1 LANGDELL, supra note 92, at vi-vii. In explaining how he had prepared a selection of cases to use in teaching contract law to students, Langdell said, [Given] the great and rapidly increasing number of reported cases in every department of law . . . was there any satisfactory principle upon which such a selection [of cases] could be made? It seemed to me that there was. Law, considered as a science, consists of certain principles or doctrines. To have such a mastery of these as to be able to apply them with constant facility and certainty to the ever-tangled skein of human affairs, is what constitutes a true lawyer; and hence to acquire that mastery should be the business of every earnest student of law. Each of these doctrines has arrived at its present state by slow degrees; in other words, it is a growth, extending in many cases through centuries. This growth is to be traced in the main through a series of cases; and much the shortest and best, if not the only way of mastering the doctrine effectually is by studying the cases in which it is embodied. But the cases which are useful and necessary for this purpose at the present day bear an exceedingly small proportion to all that have been reported. The vast majority are useless and worse than useless for any purpose of systematic study. Moreover, the number of fundamental legal doctrines is much less than is commonly supposed; the many different guises in which the same doctrine is constantly making its appearance, and the great extent to which legal treatises are a repetition of each other, being the cause of much misapprehension. If these doctrines could be so classified and arranged that each should be found in its proper place, and nowhere else, they would cease to be formidable from their number. It seemed to me, therefore, to be possible to take such a branch of the law as Contracts, for example, and, without exceeding comparatively moderate limits, to select, classify, and arrange all the cases which had contributed in any important degree to the growth, development, or establishment of any of its essential doctrines; and that such a work could not fail to be of material service to all who desire to study that branch of law systematically and in its original sources. Id.
145. See Langdell, supra note 91, at 123-24. In explaining how he tried "to do [his] part towards making the teaching and the study of law . . . worthy of a university," by "placing the law school . . . in the position of the law faculties in the universities of continental Europe," Langdell said, To accomplish these objects, so far as they depended upon the law school, it was indispensable to establish at least two things - that law is a science, and that all the available materials of that science are contained in printed books. . . . But if printed books are the ultimate sources of all legal knowledge, - if every student who would obtain any mastery of law as a science must resort to these ultimate sources, and if the only assistance which it is possible for the learner to receive is such as can be afforded by teachers who have travelled the same road before him, - then a university, and a university alone, can afford every possible facility for teaching and learning law. . . . [M]y associates and myself, therefore, have constantly acted upon the view that "law is a science," and that a well-equipped university is the true place for teaching and learning that science. Accordingly, the law library has been the object of our greatest and most constant solicitude . . . . We have constantly inculcated the idea that the library is the proper workshop of professors and students alike; that it is to us all that the laboratories of the university are to the chemists and physicists, the museum of natural history to the zoologists, the botanical garden to the botanists. Id.
146. See Letter from Christopher Columbus Langdell to Theodore Dwight Woolsey (Feb. 6, 1871), in Woolsey Family Papers, ser. I, box 23, folder 433 (on file with the Yale University Library, Manuscript Division), quoted in LAPIANA, supra note 97, at 77.
147. LANGDELL, SUMMARY, supra note 8, at 197.
148. Id. at 12.
149. Id. at 15.
150. It is tempting to criticize Langdell's legal science as unscientific or incoherent or both. A number of commentators have succumbed to the temptation. See, e.g., GILMORE, AMERICAN LAW, supra note 97, at 42-48; GILMORE, CONTRACT, supra note 97, at 13-15; Grey, supra note 97, at 39-53; Edward J. Phelps, Methods of Legal Education I, 1 YALE L.J. 139, 140-42 (1892); Christopher G. Tiedeman, Methods of Legal Education III, 1 YALE L.J. 150, 152-57 (1892). Langdell's legal science seems incoherent or unscientific for at least six reasons. First, Langdell does not include in his base all the decided cases on a particular topic. The subsequent induction of the true rule or the true meaning of a legal doctrine is not an induction at all, but just reflects Langdell's preconceived notions, which leads him to include some cases in the base and exclude others. Second, Langdell on some questions, such as the effective date of acceptance by mail, includes cases reaching diametrically different results. One cannot scientifically derive by induction a single rule from diametrically opposed cases. Third, the historical contingency of current rules and doctrines recognized by Langdell's choice of cases that illustrate the development of current case law would be abolished by courts deciding cases the way Langdell proposes they do, for continued logical application of the true meaning of current doctrine would freeze the law at this stage in its development. Fourth, even within the set of cases Langdell chooses, what Langdell purports to determine scientifically from the cases is not a scientific law, or a generalized description of common characteristics of the set, but a concept of the true meaning of a legal doctrine. Fifth, because the purportedly scientifically-determined concept is not itself normative, Langdell does not purport to derive an "ought" from an "is." But there is then no apparent reason to apply the concept to decide subsequent cases. Sixth, by including in the domain of cases for scientific analysis only those illustrating or developing a particular legal doctrine, and excluding cases that recognize that the doctrine is defeasible, when an overriding normative principle applicable to the facts suggests that the ordinary application of the legal concept would be unjust, Langdell sets up a non-normative conceptual system of law radically at odds with the underlying phenomena. It may be unfair to Langdell to find his thought and work incoherent as science, when Langdell himself always explained it in pedagogical terms. One can see Langdell's thought as a coherent whole from a pedagogical perspective, as Holmes himself noted: The preceding criticism is addressed to the ideal of the final methods of legal reasoning which this Summary seems to disclose. But it is to be remembered that the book is published for use at a law school, and that for that purpose dogmatic teaching is a necessity, if any thing is to be taught within the limited time of a student's course. A professor must start with a system as an arbitrary fact, and the most which can be hoped for is to make the student see how it hangs together, and thus to send him into practice with something more than a rag-bag of details. Book Notices, 14 AM. L. REV. 233, 234 (1880); see Oliver Wendell Holmes, Speech on the Quarter-Millennial of Harvard, in 3 LAW Q. REV. 118, 121-22 (1887).
151. It is tempting to criticize Langdell's legal science as unscientific or incoherent or both. A number of commentators have succumbed to the temptation. See, e.g., GILMORE, AMERICAN LAW, supra note 97, at 42-48; GILMORE, CONTRACT, supra note 97, at 13-15; Grey, supra note 97, at 39-53; Edward J. Phelps, Methods of Legal Education I, 1 YALE L.J. 139, 140-42 (1892); Christopher G. Tiedeman, Methods of Legal Education III, 1 YALE L.J. 150, 152-57 (1892). Langdell's legal science seems incoherent or unscientific for at least six reasons. First, Langdell does not include in his base all the decided cases on a particular topic. The subsequent induction of the true rule or the true meaning of a legal doctrine is not an induction at all, but just reflects Langdell's preconceived notions, which leads him to include some cases in the base and exclude others. Second, Langdell on some questions, such as the effective date of acceptance by mail, includes cases reaching diametrically different results. One cannot scientifically derive by induction a single rule from diametrically opposed cases. Third, the historical contingency of current rules and doctrines recognized by Langdell's choice of cases that illustrate the development of current case law would be abolished by courts deciding cases the way Langdell proposes they do, for continued logical application of the true meaning of current doctrine would freeze the law at this stage in its development. Fourth, even within the set of cases Langdell chooses, what Langdell purports to determine scientifically from the cases is not a scientific law, or a generalized description of common characteristics of the set, but a concept of the true meaning of a legal doctrine. Fifth, because the purportedly scientifically-determined concept is not itself normative, Langdell does not purport to derive an "ought" from an "is." But there is then no apparent reason to apply the concept to decide subsequent cases. Sixth, by including in the domain of cases for scientific analysis only those illustrating or developing a particular legal doctrine, and excluding cases that recognize that the doctrine is defeasible, when an overriding normative principle applicable to the facts suggests that the ordinary application of the legal concept would be unjust, Langdell sets up a non-normative conceptual system of law radically at odds with the underlying phenomena. It may be unfair to Langdell to find his thought and work incoherent as science, when Langdell himself always explained it in pedagogical terms. One can see Langdell's thought as a coherent whole from a pedagogical perspective, as Holmes himself noted: The preceding criticism is addressed to the ideal of the final methods of legal reasoning which this Summary seems to disclose. But it is to be remembered that the book is published for use at a law school, and that for that purpose dogmatic teaching is a necessity, if any thing is to be taught within the limited time of a student's course. A professor must start with a system as an arbitrary fact, and the most which can be hoped for is to make the student see how it hangs together, and thus to send him into practice with something more than a rag-bag of details. Book Notices, 14 AM. L. REV. 233, 234 (1880); see Oliver Wendell Holmes, Speech on the Quarter-Millennial of Harvard, in 3 LAW Q. REV. 118, 121-22 (1887).
152. It is tempting to criticize Langdell's legal science as unscientific or incoherent or both. A number of commentators have succumbed to the temptation. See, e.g., GILMORE, AMERICAN LAW, supra note 97, at 42-48; GILMORE, CONTRACT, supra note 97, at 13-15; Grey, supra note 97, at 39-53; Edward J. Phelps, Methods of Legal Education I, 1 YALE L.J. 139, 140-42 (1892); Christopher G. Tiedeman, Methods of Legal Education III, 1 YALE L.J. 150, 152-57 (1892). Langdell's legal science seems incoherent or unscientific for at least six reasons. First, Langdell does not include in his base all the decided cases on a particular topic. The subsequent induction of the true rule or the true meaning of a legal doctrine is not an induction at all, but just reflects Langdell's preconceived notions, which leads him to include some cases in the base and exclude others. Second, Langdell on some questions, such as the effective date of acceptance by mail, includes cases reaching diametrically different results. One cannot scientifically derive by induction a single rule from diametrically opposed cases. Third, the historical contingency of current rules and doctrines recognized by Langdell's choice of cases that illustrate the development of current case law would be abolished by courts deciding cases the way Langdell proposes they do, for continued logical application of the true meaning of current doctrine would freeze the law at this stage in its development. Fourth, even within the set of cases Langdell chooses, what Langdell purports to determine scientifically from the cases is not a scientific law, or a generalized description of common characteristics of the set, but a concept of the true meaning of a legal doctrine. Fifth, because the purportedly scientifically-determined concept is not itself normative, Langdell does not purport to derive an "ought" from an "is." But there is then no apparent reason to apply the concept to decide subsequent cases. Sixth, by including in the domain of cases for scientific analysis only those illustrating or developing a particular legal doctrine, and excluding cases that recognize that the doctrine is defeasible, when an overriding normative principle applicable to the facts suggests that the ordinary application of the legal concept would be unjust, Langdell sets up a non-normative conceptual system of law radically at odds with the underlying phenomena. It may be unfair to Langdell to find his thought and work incoherent as science, when Langdell himself always explained it in pedagogical terms. One can see Langdell's thought as a coherent whole from a pedagogical perspective, as Holmes himself noted: The preceding criticism is addressed to the ideal of the final methods of legal reasoning which this Summary seems to disclose. But it is to be remembered that the book is published for use at a law school, and that for that purpose dogmatic teaching is a necessity, if any thing is to be taught within the limited time of a student's course. A professor must start with a system as an arbitrary fact, and the most which can be hoped for is to make the student see how it hangs together, and thus to send him into practice with something more than a rag-bag of details. Book Notices, 14 AM. L. REV. 233, 234 (1880); see Oliver Wendell Holmes, Speech on the Quarter-Millennial of Harvard, in 3 LAW Q. REV. 118, 121-22 (1887).
153. It is tempting to criticize Langdell's legal science as unscientific or incoherent or both. A number of commentators have succumbed to the temptation. See, e.g., GILMORE, AMERICAN LAW, supra note 97, at 42-48; GILMORE, CONTRACT, supra note 97, at 13-15; Grey, supra note 97, at 39-53; Edward J. Phelps, Methods of Legal Education I, 1 YALE L.J. 139, 140-42 (1892); Christopher G. Tiedeman, Methods of Legal Education III, 1 YALE L.J. 150, 152-57 (1892). Langdell's legal science seems incoherent or unscientific for at least six reasons. First, Langdell does not include in his base all the decided cases on a particular topic. The subsequent induction of the true rule or the true meaning of a legal doctrine is not an induction at all, but just reflects Langdell's preconceived notions, which leads him to include some cases in the base and exclude others. Second, Langdell on some questions, such as the effective date of acceptance by mail, includes cases reaching diametrically different results. One cannot scientifically derive by induction a single rule from diametrically opposed cases. Third, the historical contingency of current rules and doctrines recognized by Langdell's choice of cases that illustrate the development of current case law would be abolished by courts deciding cases the way Langdell proposes they do, for continued logical application of the true meaning of current doctrine would freeze the law at this stage in its development. Fourth, even within the set of cases Langdell chooses, what Langdell purports to determine scientifically from the cases is not a scientific law, or a generalized description of common characteristics of the set, but a concept of the true meaning of a legal doctrine. Fifth, because the purportedly scientifically-determined concept is not itself normative, Langdell does not purport to derive an "ought" from an "is." But there is then no apparent reason to apply the concept to decide subsequent cases. Sixth, by including in the domain of cases for scientific analysis only those illustrating or developing a particular legal doctrine, and excluding cases that recognize that the doctrine is defeasible, when an overriding normative principle applicable to the facts suggests that the ordinary application of the legal concept would be unjust, Langdell sets up a non-normative conceptual system of law radically at odds with the underlying phenomena. It may be unfair to Langdell to find his thought and work incoherent as science, when Langdell himself always explained it in pedagogical terms. One can see Langdell's thought as a coherent whole from a pedagogical perspective, as Holmes himself noted: The preceding criticism is addressed to the ideal of the final methods of legal reasoning which this Summary seems to disclose. But it is to be remembered that the book is published for use at a law school, and that for that purpose dogmatic teaching is a necessity, if any thing is to be taught within the limited time of a student's course. A professor must start with a system as an arbitrary fact, and the most which can be hoped for is to make the student see how it hangs together, and thus to send him into practice with something more than a rag-bag of details. Book Notices, 14 AM. L. REV. 233, 234 (1880); see Oliver Wendell Holmes, Speech on the Quarter-Millennial of Harvard, in 3 LAW Q. REV. 118, 121-22 (1887).
154. It is tempting to criticize Langdell's legal science as unscientific or incoherent or both. A number of commentators have succumbed to the temptation. See, e.g., GILMORE, AMERICAN LAW, supra note 97, at 42-48; GILMORE, CONTRACT, supra note 97, at 13-15; Grey, supra note 97, at 39-53; Edward J. Phelps, Methods of Legal Education I, 1 YALE L.J. 139, 140-42 (1892); Christopher G. Tiedeman, Methods of Legal Education III, 1 YALE L.J. 150, 152-57 (1892). Langdell's legal science seems incoherent or unscientific for at least six reasons. First, Langdell does not include in his base all the decided cases on a particular topic. The subsequent induction of the true rule or the true meaning of a legal doctrine is not an induction at all, but just reflects Langdell's preconceived notions, which leads him to include some cases in the base and exclude others. Second, Langdell on some questions, such as the effective date of acceptance by mail, includes cases reaching diametrically different results. One cannot scientifically derive by induction a single rule from diametrically opposed cases. Third, the historical contingency of current rules and doctrines recognized by Langdell's choice of cases that illustrate the development of current case law would be abolished by courts deciding cases the way Langdell proposes they do, for continued logical application of the true meaning of current doctrine would freeze the law at this stage in its development. Fourth, even within the set of cases Langdell chooses, what Langdell purports to determine scientifically from the cases is not a scientific law, or a generalized description of common characteristics of the set, but a concept of the true meaning of a legal doctrine. Fifth, because the purportedly scientifically-determined concept is not itself normative, Langdell does not purport to derive an "ought" from an "is." But there is then no apparent reason to apply the concept to decide subsequent cases. Sixth, by including in the domain of cases for scientific analysis only those illustrating or developing a particular legal doctrine, and excluding cases that recognize that the doctrine is defeasible, when an overriding normative principle applicable to the facts suggests that the ordinary application of the legal concept would be unjust, Langdell sets up a non-normative conceptual system of law radically at odds with the underlying phenomena. It may be unfair to Langdell to find his thought and work incoherent as science, when Langdell himself always explained it in pedagogical terms. One can see Langdell's thought as a coherent whole from a pedagogical perspective, as Holmes himself noted: The preceding criticism is addressed to the ideal of the final methods of legal reasoning which this Summary seems to disclose. But it is to be remembered that the book is published for use at a law school, and that for that purpose dogmatic teaching is a necessity, if any thing is to be taught within the limited time of a student's course. A professor must start with a system as an arbitrary fact, and the most which can be hoped for is to make the student see how it hangs together, and thus to send him into practice with something more than a rag-bag of details. Book Notices, 14 AM. L. REV. 233, 234 (1880); see Oliver Wendell Holmes, Speech on the Quarter-Millennial of Harvard, in 3 LAW Q. REV. 118, 121-22 (1887).
155. It is tempting to criticize Langdell's legal science as unscientific or incoherent or both. A number of commentators have succumbed to the temptation. See, e.g., GILMORE, AMERICAN LAW, supra note 97, at 42-48; GILMORE, CONTRACT, supra note 97, at 13-15; Grey, supra note 97, at 39-53; Edward J. Phelps, Methods of Legal Education I, 1 YALE L.J. 139, 140-42 (1892); Christopher G. Tiedeman, Methods of Legal Education III, 1 YALE L.J. 150, 152-57 (1892). Langdell's legal science seems incoherent or unscientific for at least six reasons. First, Langdell does not include in his base all the decided cases on a particular topic. The subsequent induction of the true rule or the true meaning of a legal doctrine is not an induction at all, but just reflects Langdell's preconceived notions, which leads him to include some cases in the base and exclude others. Second, Langdell on some questions, such as the effective date of acceptance by mail, includes cases reaching diametrically different results. One cannot scientifically derive by induction a single rule from diametrically opposed cases. Third, the historical contingency of current rules and doctrines recognized by Langdell's choice of cases that illustrate the development of current case law would be abolished by courts deciding cases the way Langdell proposes they do, for continued logical application of the true meaning of current doctrine would freeze the law at this stage in its development. Fourth, even within the set of cases Langdell chooses, what Langdell purports to determine scientifically from the cases is not a scientific law, or a generalized description of common characteristics of the set, but a concept of the true meaning of a legal doctrine. Fifth, because the purportedly scientifically-determined concept is not itself normative, Langdell does not purport to derive an "ought" from an "is." But there is then no apparent reason to apply the concept to decide subsequent cases. Sixth, by including in the domain of cases for scientific analysis only those illustrating or developing a particular legal doctrine, and excluding cases that recognize that the doctrine is defeasible, when an overriding normative principle applicable to the facts suggests that the ordinary application of the legal concept would be unjust, Langdell sets up a non-normative conceptual system of law radically at odds with the underlying phenomena. It may be unfair to Langdell to find his thought and work incoherent as science, when Langdell himself always explained it in pedagogical terms. One can see Langdell's thought as a coherent whole from a pedagogical perspective, as Holmes himself noted: The preceding criticism is addressed to the ideal of the final methods of legal reasoning which this Summary seems to disclose. But it is to be remembered that the book is published for use at a law school, and that for that purpose dogmatic teaching is a necessity, if any thing is to be taught within the limited time of a student's course. A professor must start with a system as an arbitrary fact, and the most which can be hoped for is to make the student see how it hangs together, and thus to send him into practice with something more than a rag-bag of details. Book Notices, 14 AM. L. REV. 233, 234 (1880); see Oliver Wendell Holmes, Speech on the Quarter-Millennial of Harvard, in 3 LAW Q. REV. 118, 121-22 (1887).
156. LANGDELL, SUMMARY, supra note 8, at 20.
157. Id. at 21. Langdell went on, "assuming it to be relevant," to make three arguments for his position, based on the understanding of the parties, substantial justice, and the need for certainty about legal obligations. Id. Langdell's argument is a model of brevity: The only cases of real hardship are where there is a miscarriage of the letter of acceptance, and in those cases a hardship to one of the parties is inevitable. Adopting one view, the hardship consists in making one liable on a contract which he is ignorant of having made; adopting the other view, it consists in depriving one of the benefit of a contract which he supposes he has made. Between these two evils the choice would seem to be clear: the former is positive, the latter merely negative; the former imposes a liability to which no limit can be placed, the latter leaves everything in statu quo. As to making provision for the contingency of the miscarriage of a letter, this is easy for the person who sends it, while it is practically impossible for the person to whom it is sent. Id. at 219 nn.3-4 (internal citations omitted).
158. See id. at 12.
159. Id. at 15.
160. Id. at 20.
161. Id. at 21.
162. Id. at 129.
163. Id. at 129-30. Langdell went on, "Still, those contracts which can be enforced only by an action of assumpsit, though they are not purely consensual, are substantially so; and they may, therefore, properly be termed consensual." Id.
164. Id. at 244.
165. Id. at 2.
166. Id.
167. Id.
168. Id. at 78-79.
169. See Book Notices, 6 AM. L. REV. 353 (1872); Book Notices, 5 AM. L. REV. 539 (1871).
170. See Book Notices, 6 AM. L. REV. 353 (1872); Book Notices, 5 AM. L. REV. 539 (1871).
171. See Book Notices, 14 AM. L. REV. 233 (1880).
172. Holmes began his review of Langdell with fulsome praise: No man competent to judge can read a page of it without at once recognizing the hand of a great master. Every line is compact of ingenious and original thought. Decisions are reconciled which those who gave them meant to be opposed, and drawn together by subtle lines which never were dreamed of before Mr. Langdell wrote. It may be said without exaggeration that there cannot be found in the legal literature of this country, such a tour de force of patient and profound intellect working out original theory through a mass of detail, and evolving consistency out of what seemed a chaos of conflicting atoms. Id. at 233-34. Holmes went on to attack Langdell's peculiar methodology, which he called "Mr. Langdell's habit of mind": But in this word "consistency" we touch what some of us at least must deem the weak point in Mr. Langdell's habit of mind. Mr. Langdell's ideal in the law, the end of all his striving, is the elegantia juris, or logical integrity of the system as a system. He is, perhaps, the greatest living legal theologian. But as a theologian he is less concerned with his postulates than to show that the conclusions from them hang together. A single phrase will illustrate what is meant. "It has been claimed that the purposes of substantial justice and the interests of contracting parties as understood by themselves will be best served . . . and cases have been put to show that the contrary view would produce not only unjust but absurd results. The true answer to this argument is that it is irrelevant . . . ." The reader will perceive that the language is only incidental, but it reveals a mode of thought which becomes conspicuous to a careful student. If Mr. Langdell could be suspected of ever having troubled himself about Hegel, we might call him a Hegelian in disguise, so entirely is he interested in the formal connection of things, or logic, as distinguished from the feelings which make the content of logic, and which have actually shaped the substance of the law. The life of the law has not been logic: it has been experience. The seed of every new growth within its sphere has been a felt necessity. The form of continuity has been kept up by reasonings purporting to reduce every thing to a logical sequence; but that form is nothing but the evening dress which the new-comer puts on to make itself presentable according to conventional requirements. The important phenomenon is the man underneath it, not the coat; the justice and reasonableness of a decision, not its consistency with previously held views. . . . As a branch of anthropology, law is an object of science; the theory of legislation is a scientific study; but the effort to reduce the concrete details of an existing system to the merely logical consequences of simple postulates is always in danger of becoming unscientific, and of leading to a misapprehension of the nature of the problem and the data. Id. at 234 (citation omitted). Here, then, in his critique of Langdell's methodology, is the first appearance of Holmes's famous aphorism about the life of the law, which was repeated virtually verbatim in the very first lecture in The Common Law. See HOLMES, supra note 6, at 1. The importance of Langdell's work to the development of Holmes's contract theory is suggested by a letter Holmes wrote to his friend Frederick Pollock after Holmes gave his lectures, in which Holmes responded to some comments on contract theory by Pollock. Holmes wrote, "I should like you to see the Appendix to the 2d Ed. of Langdell's Cases, also published separately in a small book called (I think) Elements of Contract. A more misspent piece of marvelous ingenuity I never read, yet it is most suggestive and instructive." Letter from Oliver W. Holmes to Frederick Pollock (Apr. 10, 1881), in 1 HOLMES-POLLOCK LETTERS 16, 17 (Mark DeWolfe Howe ed., 1941).
173. See Little, supra note 11, at 191-203. There are no entries in Holmes's reading list after May of 1880, and the intense work on The Common Law lectures may have interrupted Holmes's list-keeping. See id. at 167. Mark DeWolfe Howe also noted the absence of Pollock's treatise on Holmes's reading lists; he, too, concluded that Holmes must have read Pollock's treatise nevertheless. See HOWE, supra note 5, at 223 n.1.
174. Letter from Oliver W. Holmes to Frederick Pollock (June 17, 1880), in 1 HOLMES-POLLOCK LETTERS, supra note 120, at 14, 15.
175. See infra text accompanying notes 128, 140, 156-59, 178-82, 188-90, 194-95, 200, 218-21, and 242-44; see also infra text accompanying notes 258, 307, and notes 260, 277, 309 (explaining Pollock's reactions to Holmes's work).
176. The most significant event in all this was the translation of R.J. Pothier's Treatise on the Law of Obligations into English by William David Evans in 1806. See PATRICK ATIYAH, THE RISE AND FALL OF FREEDOM OF CONTRACT 399 (1979); J.H. Baker, From Sanctity of Contract to Reasonable Expectations, in 32 CURRENT LEGAL PROBLEMS 17, 20-22 (1979) (emphasizing the rise of substantive law in the late eighteenth and early nineteenth century, replacing prior purely procedural common law); SIMPSON, supra note 59, at 178-81 (1987) (emphasizing needs of early textbook writers in the nineteenth century). For an analogous proposition, see JAMES GORDLEY, THE PHILOSOPHICAL ORIGINS OF MODERN CONTRACT DOCTRINE 161 (1991) (arguing that will theory was all that was left after other scholastic elements of natural law theory had been eliminated).
177. The most significant event in all this was the translation of R.J. Pothier's Treatise on the Law of Obligations into English by William David Evans in 1806. See PATRICK ATIYAH, THE RISE AND FALL OF FREEDOM OF CONTRACT 399 (1979); J.H. Baker, From Sanctity of Contract to Reasonable Expectations, in 32 CURRENT LEGAL PROBLEMS 17, 20-22 (1979) (emphasizing the rise of substantive law in the late eighteenth and early nineteenth century, replacing prior purely procedural common law); SIMPSON, supra note 59, at 178-81 (1987) (emphasizing needs of early textbook writers in the nineteenth century). For an analogous proposition, see JAMES GORDLEY, THE PHILOSOPHICAL ORIGINS OF MODERN CONTRACT DOCTRINE 161 (1991) (arguing that will theory was all that was left after other scholastic elements of natural law theory had been eliminated).
178. The most significant event in all this was the translation of R.J. Pothier's Treatise on the Law of Obligations into English by William David Evans in 1806. See PATRICK ATIYAH, THE RISE AND FALL OF FREEDOM OF CONTRACT 399 (1979); J.H. Baker, From Sanctity of Contract to Reasonable Expectations, in 32 CURRENT LEGAL PROBLEMS 17, 20-22 (1979) (emphasizing the rise of substantive law in the late eighteenth and early nineteenth century, replacing prior purely procedural common law); SIMPSON, supra note 59, at 178-81 (1987) (emphasizing needs of early textbook writers in the nineteenth century). For an analogous proposition, see JAMES GORDLEY, THE PHILOSOPHICAL ORIGINS OF MODERN CONTRACT DOCTRINE 161 (1991) (arguing that will theory was all that was left after other scholastic elements of natural law theory had been eliminated).
179. The most significant event in all this was the translation of R.J. Pothier's Treatise on the Law of Obligations into English by William David Evans in 1806. See PATRICK ATIYAH, THE RISE AND FALL OF FREEDOM OF CONTRACT 399 (1979); J.H. Baker, From Sanctity of Contract to Reasonable Expectations, in 32 CURRENT LEGAL PROBLEMS 17, 20-22 (1979) (emphasizing the rise of substantive law in the late eighteenth and early nineteenth century, replacing prior purely procedural common law); SIMPSON, supra note 59, at 178-81 (1987) (emphasizing needs of early textbook writers in the nineteenth century). For an analogous proposition, see JAMES GORDLEY, THE PHILOSOPHICAL ORIGINS OF MODERN CONTRACT DOCTRINE 161 (1991) (arguing that will theory was all that was left after other scholastic elements of natural law theory had been eliminated).
180. HOLMES, supra note 6, at 195.
181. Id.
182. See POLLOCK, supra note 7, at 152.
183. HOLMES, supra note 6, at 200; cf. POLLOCK, supra note 7, at 152.
184. See HOLMES, supra note 6, at 200.
185. See id.
186. See id.
187. Id.
188. See id. at 200-26. Holmes's argument on this last point went like this. In the early action of debt, if the defendant denied the debt, the plaintiff had to establish his cause in one of three ways: by the duel, by "witnesses," or by a writing. Early on, "witnesses" were the transaction witnesses provided for by the early Germanic and Anglo-Saxon customary law. Customarily, a set of official witnesses were elected. From this group, two or three men were called in to every bargain of sale, to witness the voluntary delivery of property involved in the transaction and thereby protect the purchaser from subsequent charges of theft. Transaction witnesses were not used for agreements that were executory on both sides because there nothing changed hands and no later charge of theft could arise. Even after the demise of the institution of transaction witnesses, the substantive rule that debts enforced without a writing required a benefit persisted as judicial tradition. The persistence of this judicial tradition was aided by the redescription of the common law in Roman law terms by Glanville. But that redescription was never fully accurate, so attempts by later commentators like Fleta to construct legal arguments based on the Roman redescription rather than the underlying common law were doomed to failure. It was the persistence of the underlying quid pro quo model of consideration that led the common law courts to limit actions of debt to cases where the promisor received an actual benefit, and to reject the argument that detriment to the promisee alone would support an action against the promisor. See id.
189. See id. at 216.
190. See id. at 222-24.
191. Id. at 224.
192. This, of course, directly contradicts Langdell's equation of the early law of debt with the Roman real actions and Langdell's corollary assumption of a direct Roman law influence. See LANGDELL, SUMMARY, supra note 8, at 123-30.
193. See HOLMES, supra note 6, at 213.
194. Id. at 214.
195. Id. at 215.
196. Id. Compare id., with LANGDELL, SUMMARY, supra note 8, at 129-30. See also infra text accompanying note 270.
197. See HOLMES, supra note 6, at 215. Holmes argued, The only difference is, that one form is of modern introduction, and has a foundation in good sense, or at least falls in with our common habits of thought, so that we do not notice it, whereas the other is a survival from an older condition of the law, and is less manifestly sensible, or less familiar. I may add, that, under the influence of the latter consideration, the law of covenants is breaking down. In many States it is held that a mere scroll of flourish of the pen is a sufficient seal. From this it is a short step to abolish the distinction between sealed and unsealed instrument altogether, and this has been done in some of the Western States. Id.
198. See generally ATIYAH, supra note 124, at 399-448; Baker, supra note 124.
199. See Oliver Wendell Holmes, Jr., The Arrangement of the Law: Privity, 7 AM. L. REV. 46, 48 (1872), reprinted in THE FORMATIVE ESSAYS OF JUSTICE HOLMES, supra note 9, at 97.
200. See Oliver Wendell Holmes, Jr., The Arrangement of the Law: Privity, 7 AM. L. REV. 46, 48 (1872), reprinted in THE FORMATIVE ESSAYS OF JUSTICE HOLMES, supra note 9, at 97.
201. HOLMES, supra note 6, at 227.
202. Holmes recognized that the specific facts in contract cases are not always the same, and so in the field of contract the search must be for the elements common to different sets of special facts that lead to the same special consequences. Holmes identified two common elements: promise and consideration. He acknowledged that these elements had not always been common elements, that a promise was not necessary for liability in the older action for debt, that consideration was not necessary for liability in an action in covenant, and that there was an historical difference between consideration in debt and in assumpsit. Holmes proposed to analyze consideration in assumpsit, the "later and more philosophical form." Id. at 227. These brief qualifications made it clear that Holmes's descriptive theory was descriptive only of the modern common law of contract arising out of assumpsit. The cryptic reason he gives for focusing on consideration in assumpsit rather than in debt suggests an evolutionary justification for his limited focus. If the law, by "the very necessity of its nature," id. at 33, is improving, it makes sense to analyze the latest form of the law of contracts, even though that form may still coexist with remnants of the earlier forms, cf. id. at 30-33.
203. 92 Eng. Rep. 107 (K.B. 1703). Holmes had commented extensively on Coggs in his prior lecture on "The Bailee at Common Law." See HOLMES, supra note 6, at 130-62.
204. HOLMES, supra note 6, at 230.
205. See LANGDELL, SUMMARY, supra note 8, at 78; see also supra notes 115-17 and accompanying text.
206. See HOLMES, supra note 6, at 230. At this point in the analysis, Holmes subsequently annotated his copy of The Common Law with the comment, "The whole doctrine of contract is formal and external." Id. at 230 n.a.
207. See id. at 230.
208. See id. at 232.
209. See id. at 231.
210. See id. at 232.
211. Id. at 231.
212. See id. at 233-34; POLLOCK, supra note 7, at vii-viii, 6-8. After Holmes published The Common Law, Pollock relied less and less on the Indian Contract Act in the subsequent editions of his contracts treatise. Compare FREDERICK POLLOCK, PRINCIPLES OF CONTRACT AT LAW AND IN EQUITY xxii, 2-9 (3d ed. 1881) [hereinafter, POLLOCK, CONTRACTS, 3d ed.], with FREDERICK POLLOCK, PRINCIPLES OF CONTRACT 1-8 (7th ed. 1902).
213. See id. at 233-34; POLLOCK, supra note 7, at vii-viii, 6-8. After Holmes published The Common Law, Pollock relied less and less on the Indian Contract Act in the subsequent editions of his contracts treatise. Compare FREDERICK POLLOCK, PRINCIPLES OF CONTRACT AT LAW AND IN EQUITY xxii, 2-9 (3d ed. 1881) [hereinafter, POLLOCK, CONTRACTS, 3d ed.], with FREDERICK POLLOCK, PRINCIPLES OF CONTRACT 1-8 (7th ed. 1902).
214. HOLMES, supra note 6, at 233-34 (quoting POLLOCK, supra note 7, at 6).
215. HOLMES, supra note 6, at 234.
216. Id. at 235.
217. See LANGDELL, SUMMARY, supra note 8, at 2; see also supra notes 114-15 and accompanying text.
218. HOLMES, supra note 6, at 238.
219. Id.
220. See id. at 240.
221. Id.
222. Id. at 230.
223. Id. at 235.
224. Id.
225. Id.
226. Id.
227. Id.
228. See id.
229. Id.
230. Id. at 236.
231. See id.
232. Id. at 235 (emphasis added).
233. See id.
234. Holmes, The Path of the Law, supra note 25, at 458, reprinted in HOLMES, COLLECTED LEGAL PAPERS, supra note 25, at 167, 169.
235. Holmes, The Path of the Law, supra note 25, at 458, reprinted in HOLMES, COLLECTED LEGAL PAPERS, supra note 25, at 167, 169.
236. See POLLOCK, supra note 7, at 355-545.
237. See id. at 355-56.
238. See id. at 356.
239. See id.
240. See HOLMES, supra note 6, at 241.
241. See id. at 246.
242. Id. at 241.
243. Id.; see also POLLOCK, supra note 7, at 356-57.
244. 159 Eng. Rep. 375 (Ex. D. 1864).
245. See id. at 375.
246. See POLLOCK, supra note 7, at 373-74, 386-89.
247. HOLMES, supra note 6, at 242.
248. Id.
249. Id.
250. Id.
251. See id. (citing Gardner v. Lane, 98 Mass. 517 (1868)).
252. Id. at 243; see also POLLOCK, supra note 7, at 373-74, 391-97.
253. HOLMES, supra note 6, at 243.
254. Id. at 244.
255. Id. at 246.
256. Id.
257. See id. at 241-42, 252-54.
258. Id. at 241. The example Holmes used is a special case of fraud, however, in which the fraudulent misrepresentation concerns the authority or capacity of a party to enter into a contract on behalf of another. Holmes did not claim, either here or later in the chapter, that all fraud results in a void contract. Pollock uncharacteristically misinterpreted Holmes on this question. See POLLOCK, CONTRACTS, 3d ed., supra note 156, at xviii.
259. See HOLMES, supra note 6, at 241-42.
260. See id.
261. See id. at 242.
262. See id. at 243.
263. Id.
264. Id.
265. Id. at 246.
266. LANGDELL, SUMMARY, supra note 8, at 31.
267. HOLMES, supra note 6, at 249.
268. Later, Holmes made clear that the legal authority conferred by the event is the authority not just to treat the contract as if it had not been made, but to choose either to treat the contract as not having been made or to treat the contract as enforceable. See id. at 249.
269. Id. at 251-52.
270. See id. at 253-54.
271. See id. at 249.
272. Id. at 251-52.
273. See id. at 252-64.
274. See id.
275. See id. at 252.
276. See id.
277. See id.
278. See id.
279. Id.
280. See id. at 252.
281. Id. at 253.
282. Id. at 254.
283. Id. at 253.
284. See id. at 256.
285. Id.
286. Id. at 256-57.
287. Id. at 257.
288. Id. at 260.
289. 122 Eng. Rep. 281 (Ex. Ch. 1863).
290. See id. at 281.
291. HOLMES, supra note 6, at 259.
292. Id. at 259-60.
293. See id. at 260.
294. LANGDELL, SUMMARY, supra note 8, at 134.
295. HOLMES, supra note 6, at 261. Here, Holmes's inchoate objective general theory of construction found an appropriate field for explaining judicial decisions. It may be possible to elaborate intermediate principles of construction based on recurrent fact patterns, such as Langdell's preferred principles of equivalency or dependence, but those intermediate principles should not be treated as rules of law or overriding principles. In each case, the inquiry concerns what the parties intended or would have intended on this question in light of all the relevant circumstances. Holmes thus appropriately criticized Langdell's tendency to elevate intermediate principles of construction into overriding rules of law. Holmes's treatment of all this was right on target. For Holmes, the principles of equivalence and dependence are aids to construction, drawn from recurrent forms of agreement or words chosen, but the principles are always subordinate to the basic task of construction, which is to determine, for this contract and in this context of social custom and tradition and meaning conventions, what the parties must have intended on this question or would have intended had they focused on it.
296. See id. at 249.
297. Id. at 254.
298. Id. at 253-54.
299. Id. at 254.
300. See POLLOCK, supra note 7, at 464.
301. See id. at 464-67 (stating that Fane v. Fane, 1875 W.N. 161 (Eng. V.C.), was "distinctly decided on the principle that a material statement of that which is untrue, though innocently made, is ground for avoiding a contract").
302. See HOLMES, supra note 6, at 252.
303. See A.W.B. SIMPSON, Contract: The Twitching Corpse, in LEGAL THEORY AND LEGAL HISTORY, supra note 59, at 321, 324-25.
304. HOLMES, supra note 6, at 115.
305. Id. at 239.
306. MILL, supra note 18, at 292-94.
307. HOLMES, supra note 6, at 77.
308. Holmes's scientific characterization that the immediate consequence of a binding promise - that the promisor took on himself the risk that the assumed event would not occur - was not a description of the promisor's intentions or his conscious understanding of the consequences of his promise. Holmes made that clear at the start of the discussion of consequential damages: "[T] he statement that the effect of a contract is the assumption of the risk of a future event does not mean that there is a second subsidiary promise to assume that risk, but that the assumption follows as a consequence directly enforced by the law, without the promisor's co-operation." Id. at 237. But if that is true, any legal rule about recoverable consequential damages would be consistent with Holmes's formal theory that the immediate legal effect of a binding promise is the assumption of the risk of a future event. The Nettleship position that the extent of recovery for special consequential damages depends on the assumption of that risk somehow entering into the contract as a matter of fact, see British Columbia Saw-Mill Co. v. Nettleship, 3 L.R.-C.P. 499, 509 (1868), is not entailed in Holmes's theoretical claim that every binding promise is an assumption of the risk of the promised event. Under Holmes's theory, the risks of the event, as well as the limits of those risks, are defined by reference to the foreseeable judicially-imposed damages in the event of failure of the promised event. How can Holmes, then, go on to argue that Willes's position in Nettleship "falls in with the true theory of contract under the common law"? HOLMES, supra note 6, at 238. The answer, I think, is this: one can support the Willes test of recoverable consequential damages only by bringing in a principle that is not the same as or deducible from Holmes's scientific description of the immediate legal effect of a promise as the assumption of the risk of the promised event. And Holmes in fact brings in that principle: "As the relation of contractor and contractee is voluntary, the consequences attaching to that relationship must be voluntary." Id. at 237. This is not true as a matter of purely scientific description, and Holmes's seeming suggestion that it is true, in the immediately following analogy between "what the event contemplated by the promise is," and "what consequences of the breach are assumed," is unconvincing, for the very reason that Holmes himself recognized just a paragraph earlier: "[W]hen people make contracts, they usually contemplate the performance rather than the breach." Id. There is a plausible interpretation of all this that supports the conclusion that Holmes elaborated an internally coherent theory. That interpretation would focus on what Holmes meant by "the true theory of contract under the common law." That "true theory" may be, like Holmes's "true explanation" of tort liability, see id. at 115, a theory that focuses on the social policy that the law of contract tends to achieve. Holmes did not set that policy out explicitly, but his emphasis on the voluntary nature of contractual relationships and the conclusion of his argument here suggest he had in mind the following policy ground. The law of contract encourages productive action by making fixed, definite, and certain the consequences of a particular relationship voluntarily entered into to control the future. The purpose of that law is not to enforce the parties' wills, but to enable individuals to fulfill their personal desires through adroit use of the contract conventions. If courts determine the extent of recoverable consequential damages by construction of the parties' intentions, even when there is no specific intention on this question, contracting parties in the future will have maximum effective control over the legal consequences of their conduct. Moreover, the courts will also eliminate a potential deterrent to entering into contracts, in the form of surprising and potentially catastrophic consequential damage awards not remotely foreseeable by the promisor.
309. See ATIYAH, supra note 124, at 399-453; GORDLEY, supra note 124, at 161-213; SIMPSON, supra note 59, at 181-83.
310. Nowhere in his discussion of mutual mistake does the author of the current authoritative treatise on contract discuss Holmes's theory that mutual mistake cases are ordinarily just cases of objectively repugnant terms. 2 E. ALLAN FARNSWORTH, FARNSWORTH ON CONTRACTS § 9.3, at 569-82 (2d ed. 1998).
311. Neither in any of his extensive discussions of voidable contracts nor in
312. See 1 id. §§ 2.2-.4, at 73-80.
313. See I id. § 3.6, at 192-96.
314. Compare RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 105-14 (3d ed. 1986) (championing amoral "efficient breach" theory), with Daniel Friedmann, The Efficient Breach Fallacy, 18 J. LEGAL STUD. 1 (1989).
315. Compare RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 105-14 (3d ed. 1986) (championing amoral "efficient breach" theory), with Daniel Friedmann, The Efficient Breach Fallacy, 18 J. LEGAL STUD. 1 (1989).
316. Langdell's most consistent disciples, James Barr Ames, Samuel Williston, and Joseph Beale, are possible exceptions. Cf. Grey, supra note 97, at 32-39 (recognizing extensive influence of Langdell's "classical orthodoxy").
317. See POLLOCK, CONTRACTS, 3d ed., supra note 156, at xviii-xix.
318. MAINE, supra note 48, at 328.
319. POLLOCK, CONTRACTS, 3d ed., supra note 156, at xvi.
320. See POLLOCK, supra note 7, at 10-19.
321. See, e.g., MacPherson v. Buick Motor Co., 217 N.Y. 382 (1916) (meaning of "inherently dangerous product" exception to privity rule reinterpretted); Scott v. Shepherd, 96 Eng. Rep. 525 (K.B. 1773) (broadly recharacterizing causal relationship to fit "direct causation" requirement of trespass).
322. See KARL N. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS 62-92 (1960).
323. See Book Notices, 14 Am. L. REV. 233 (1880).
324. See HOLMES, supra note 6, at 5.
325. Id.
326. See id. at 239-40.
327. See id. at 247-48.
328. See id. at 261-64.
329. See LANGDELL, SUMMARY, supra note 8, at 129-30.
330. See HOLMES, supra note 6, at 215.
331. See LANGDELL, SUMMARY, supra note 8, at 2.
332. See id. at 243-44.
333. See id. at 82.
334. See id. at 77-79.
335. See id. at 83.
336. In his third edition, Pollock added the following two sentences at the end of a revised first paragraph in his chapter on consideration: An act or forbearance of the one party, present or promised, in [sic] the price for which the promise of the other is bought, and the promise thus given for value is enforceable. An informal and gratuitous promise, however strong may be the motives or even the moral duty on which it is founded, is not enforced by English courts of justice. POLLOCK, CONTRACTS, 3d ed., supra note 156, at 179. This formula is remarkably similar to Holmes's bargain theory of consideration, shorn of Holmes's notion that whether something is given in exchange for the promise is to be determined solely from the language of the contract itself. The only place where this bargained-for exchange idea was discussed in Pollock's first edition was in Pollock's discussion of adequacy of consideration. See POLLOCK, supra note 7, at 155. By bringing this into the first paragraph of the chapter on consideration in the third edition and adding a sentence about the unenforceability of gratuitous informal promises, Pollock elevated the idea from one of subsidiary importance in the explanation of a minor subtopic to one of the greatest importance in the very definition of consideration. Pollock's third edition was published after Pollock had read Holmes's book. Pollock wrote in the introduction to the third edition that my own chapters on Form of Contract and Consideration were already revised and in type when I read Mr. Holmes's on the history and elements of contract. Being unable, therefore, to take account of his results, otherwise than by a few notes added as an afterthought, I will say a word of them here. Id. at xi. Were the two sentences Pollock added to the first paragraph of the consideration chapter part of those "few notes added as an afterthought"? There is good reason to believe they were. Once something was in type in the days before computers, the easiest place to add something was at the very beginning or at the very end, without footnotes. Significantly, there are no changes in Pollock's chapter on consideration at the end, and these two added sentences at the beginning were not footnoted. Moreover, there is an uncharacteristic typographical error in the first added sentence. The sentence read "an act or forebearance . . . in the price," when Pollock really meant "an act or forebearance . . . is the price." This error, corrected in later editions, suggests a late, hurried addition after the book was in type. Finally, Pollock did not exactly adopt Holmes's objectively-determined bargain theory of consideration. He just brought up from his discussion of adequacy of consideration an idea that he now, perhaps as an "afterthought," saw was crucial to understanding consideration in general.
337. See, e.g., 1 FARNSWORTH, supra note 252, § 2, at 61.
338. See ATIYAH, supra note 124, at 139-54.
339. See id. at 448-54; GORDLEY, supra note 124, at 165-75.
340. See STEPHEN MARTIN LEAKE, THE ELEMENTS OF THE LAW OF CONTRACTS 10 (London, Stevens & Sons 1867).
341. See WILLIAM MARKBY, ELEMENTS OF LAW CONSIDERED WITH REFERENCE TO PRINCIPLES OF GENERAL JURISPRUDENCE 310 (Oxford, Clarendon Press 3d ed. 1885).
342. See POLLOCK, supra note 7, at 147-65.
343. 92 Eng. Rep. 107 (K.B. 1704).
344. See ATIYAH, supra note 124, at 186-89.
345. See supra note 277.
346. The only possible exception to this pattern is Holmes's theory of efficient breach, the logical corollary of his notion that "the immediate legal effect of what the promisor does" in a contract is to "take the risk of the event, within certain defined limits, as between himself and the promisee." HOLMES, supra note 6 at 235. This notion was specifically criticized by both Anson and Pollock immediately after publication of The Common Law. See WILLIAM R. ANSON, PRINCIPLES OF THE ENGLISH LAW OF CONTRACT 8-10 (Oxford, Clarendon Press 2d ed. 1882); POLLOCK, CONTRACTS, 3d ed., supra note 156, at xix-xx. The efficient breach idea gained a toehold in contract theory only after Holmes's consequences-based, public policy approach to the law itself gained a stronger following.
347. The only possible exception to this pattern is Holmes's theory of efficient breach, the logical corollary of his notion that "the immediate legal effect of what the promisor does" in a contract is to "take the risk of the event, within certain defined limits, as between himself and the promisee." HOLMES, supra note 6 at 235. This notion was specifically criticized by both Anson and Pollock immediately after publication of The Common Law. See WILLIAM R. ANSON, PRINCIPLES OF THE ENGLISH LAW OF CONTRACT 8-10 (Oxford, Clarendon Press 2d ed. 1882); POLLOCK, CONTRACTS, 3d ed., supra note 156, at xix-xx. The efficient breach idea gained a toehold in contract theory only after Holmes's consequences-based, public policy approach to the law itself gained a stronger following.
348. For a lucid critique of this methodology, see FINNIS, supra note 1, at 4-6.
349. See HOLMES, supra note 6, at 219-20.
350. See Letter from Oliver W. Holmes to Frederick Pollock (Mar. 12, 1911), in 1 HOLMES-POLLOCK LETTERS, supra note 120, at 177; Letter from Oliver W. Holmes to Frederick Pollock (May 30, 1927) in 2 HOLMES-POLLOCK LETTERS 199, 200 (Mark DeWolfe Howe ed., 1944); Letter from Oliver W. Holmes to Frederick Pollock (Dec. 11, 1928) in 2 HOLMES-POLLOCK LETTERS, supra, at 233. Holmes used this comparison as well in The Path of the Law, supra note 25, at 485.
351. See Letter from Oliver W. Holmes to Frederick Pollock (Mar. 12, 1911), in 1 HOLMES-POLLOCK LETTERS, supra note 120, at 177; Letter from Oliver W. Holmes to Frederick Pollock (May 30, 1927) in 2 HOLMES-POLLOCK LETTERS 199, 200 (Mark DeWolfe Howe ed., 1944); Letter from Oliver W. Holmes to Frederick Pollock (Dec. 11, 1928) in 2 HOLMES-POLLOCK LETTERS, supra, at 233. Holmes used this comparison as well in The Path of the Law, supra note 25, at 485.
352. See Letter from Oliver W. Holmes to Frederick Pollock (Mar. 12, 1911), in 1 HOLMES-POLLOCK LETTERS, supra note 120, at 177; Letter from Oliver W. Holmes to Frederick Pollock (May 30, 1927) in 2 HOLMES-POLLOCK LETTERS 199, 200 (Mark DeWolfe Howe ed., 1944); Letter from Oliver W. Holmes to Frederick Pollock (Dec. 11, 1928) in 2 HOLMES-POLLOCK LETTERS, supra, at 233. Holmes used this comparison as well in The Path of the Law, supra note 25, at 485.
353. See Letter from Oliver W. Holmes to Frederick Pollock (Mar. 12, 1911), in 1 HOLMES-POLLOCK LETTERS, supra note 120, at 177; Letter from Oliver W. Holmes to Frederick Pollock (May 30, 1927) in 2 HOLMES-POLLOCK LETTERS 199, 200 (Mark DeWolfe Howe ed., 1944); Letter from Oliver W. Holmes to Frederick Pollock (Dec. 11, 1928) in 2 HOLMES-POLLOCK LETTERS, supra, at 233. Holmes used this comparison as well in The Path of the Law, supra note 25, at 485.
354. See HOLMES, supra note 6, at 63, 227. This survival of Holmes's earlier work in analytical jurisprudence in the formal organization of The Common Law caused an internal inconsistency. The basis for Holmes's classification of the law was different kinds of duties. By the time Holmes wrote The Common Law, however, he was well on his way to his subsequent position, in The Path of the Law, that "legal duty" was an analytically empty metaphysical notion reducible to "a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court." Holmes, The Path of the Law, supra note 25, at 458. In fact, we have seen here that in his lectures on contract, the last-written lecture, Holmes dispensed with the notion of legal duty altogether, and simply identified in the field of contract the law of antecedence and consequence that would enable one to predict courts' decisions in contract cases.
355. See HOLMES, supra note 6, at 63.
356. A similar argument seems behind Holmes's later letters to Pollock comparing committing a tort with committing a contract. See supra note 290 and accompanying text.
357. HOLMES, supra note 6, at 240.
358. See P.S. ATIYAH, Holmes and the Theory of Contract, in ESSAYS ON CONTRACT 57, 66-67 (1988).
359. See HOLMES, supra note 6, at 254-58, 261-64.
360. For an attempt to elaborate that inchoate theory, see supra text following note 237.
361. Faced with a barrage of cases involving questions of interpretation as a judge on the Massachusetts Supreme Judicial Court, Holmes developed a more explicit objective theory of interpretation, which he reported in an 1899 article in the Harvard Law Review. See Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 HARV. L. REV. 417 (1899), reprinted in HOLMES, COLLECTED LEGAL PAPERS, supra note 25, at 203.
362. Faced with a barrage of cases involving questions of interpretation as a judge on the Massachusetts Supreme Judicial Court, Holmes developed a more explicit objective theory of interpretation, which he reported in an 1899 article in the Harvard Law Review. See Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 HARV. L. REV. 417 (1899), reprinted in HOLMES, COLLECTED LEGAL PAPERS, supra note 25, at 203.
363. Here, again, to support this reductive claim, Holmes needed what was missing from The Common Law: an objective, positivist theory of interpretation.
364. See 2 FARNSWORTH, supra note 252, § 9.3, at 569-82.
365. See HOLMES, supra note 6, at 245.
366. Id. at 246.
367. Cf. id. at 245-46. This, too, seems relevant to Holmes's inchoate theory of interpretation.
368. Here, too, however, a thoroughly objective, positivist theory of interpretation, which seems to be missing in The Common Law, might save Holmes's theory.
369. See FINNIS, supra note 1, at 3-4.
370. See id. at 298-308; Govert Den Hartogh, A Conventionalist Theory of Obligation, 17 LAW & PHIL. 351 (1998).
371. See, e.g., WILLIAM ANSON, PRINCIPLES OF THE ENGLISH LAW OF CONTRACT 10 (Oxford, Clarendon Press 2d ed. 1882).
372. POLLOCK, CONTRACTS, 3d ed., supra note 156, at xix. In the introduction to his second edition of his treatise, Anson repeated Pollock's argument, changing the coat in Pollock's example to boots: Nor again do the parties to a contract contemplate, as anything but a remote feature in the promise, the liability to pay damages in the event of breach. If I order a pair of boots to be delivered this day week and paid for on the ordinary terms of credit, I expect the boots and the bootmaker expects the price. The transaction, according to Mr. Holmes, must be taken to present itself to the parties in the following light. I bet that the boots will not be delivered, but that if delivered they will be paid for, the bootmaker bets that they will be delivered, but that I shall either not accept them or not pay for them; the stakes are, on his side, damages for non-delivery, on mine, the price plus the costs of an action in the county court. It is well to fix our minds on the legal consequences of conduct and thus to escape so far as may be from confusing law with ethical speculation; but we cannot afford to disregard altogether the aspect in which men view the transactions with which they have to do. ANSON, supra note 306, at 10.
373. John Finnis makes the case for using this focal or central case methodology in FINNIS, supra note 1, at 9-11.
374. Pollock criticized Holmes's position on this issue: "I cannot see my way to admitting as a proposition of law that contracting parties are free to condone deliberate fraud beforehand. Certainly a conventional term ne dolus praestestur would not have been good in Roman law." POLLOCK, CONTRACTS, 3d ed., supra note 156, at xviii (citing "Celsus, quoted and approved by Ulpian D. 50.17 de reg. ivris, 23").
375. John Finnis makes the case for adopting the standpoint of a practically reasonable person concerned to act within a particular social institution. See FINNIS, supra note 1, at 11-18.
376. See supra Part III.D.2.
377. Holmes himself later characterized contracting parties as "adversaries." See Holmes, supra note 298, at 419, reprinted in HOLMES, COLLECTED LEGAL PAPERS, supra note 25, at 203, 206.
378. See FINNIS, supra note 1, at 3-19; see also JOHN FINNIS, AQUINAS: MORAL, POLITICAL, AND LEGAL THEORY 20-51 (1998).