The Common Law

PDF-file by Oliver Wendell Holmes Jr.

The Common Law PDF ebook download Let's begin with a couple of biographical details. Oliver Wendell Holmes, Jr., was a weird guy. Anyone who had grown up in the home of Dr. Oliver Wendell Holmes, Sr., gone by the nickname "Wendy" as a lad, been for most of his life the smartest guy in any room by a fair margin, and been wounded three times and shell-shocked in the Civil War, is bound to be a little bit weird. Even that said, his aloofness and intellectualism was well-known during his lifetime. His tendency to take great pleasure in the harsh lacunae and limitations of the common law and the U.S. Constitution is already evident in The Common Law. Keep in mind that this is the same man who in his famous dissent in Lochner v. New York, which through subsequent legal evolution became far more prominent than the majority, pointed out (correctly) that the Constitution did not enact Herbert Spencer's Social Statics. But he was also the man who explained in Buck v. Bell, that sterilization of the mentally retarded was not unconstitutional because "three generations of imbeciles is enough." He wasn't nice, he wasn't exactly mean: He was just an extremely precise practitioner of his trade.

Holmes is probably the best stylist of any American legal writer, ever, and it shows in The Common Law. His prose is highly readable, even today. High-flown, pretty language of the type Benjamin Cardozo was so well known for does not show up; nor is his language ever imprecise—you get the feeling he agonized over every word; and it is very well-organized. You will notice a few archaisms, and you need either to know legal terminology or have a law dictionary handy, but it's all very simple, straightforward analysis of concepts any first-year law student would recognize and easily understand, and wouldn't be much of a stretch for any knowledgeable reader.

When Holmes wrote, the legal academy was dominated by Harvard Law School. Its famous dean, Christopher Columbus Langdell, had held the philosophy that the essence of the common law could be distilled from reading reported appellate cases. He took the position that there was a sort of platonic form of the law that could be inferred. He also took a normative view of the law—that it was a fundamentally moral project. His voice was fairly dominant in the law at the time. There were those who took more practical views—Chancellor Kent of New York comes to mind—but Langdell was such a dominant voice in the academy that his views were fairly dominant among appellate judges and academics in his day.

Holmes disagreed with Langdell's basic premises that there was a logical form of the law, and that this was normative. Holmes's view was that law was the product of experience and accident, and that to the extent it was normative, its normativity was a function of the state's ability to stand behind the law with force. This is the import of his twin propositions that he looked at the law as the bad man saw it: his question is not "what should the law be?"—but instead "what will the Commonwealth of Virginia punish me for?"; and that the life of the law is experience, not logic. Although Langdell's case method remains dominant in the academy, and continues to be the way that cases are briefed and sometimes how they are argued, Holmes's views on the nature of the law are certainly triumphant in our society and the academic and practical legal world, aside from a few odd natural law enthusiasts.

At any rate, Holmes traces and the history and the lacunae in the evolution of every major area of the common law, including torts, fraud, criminal law, wills and estates, bailments, and contracts. Without doing a thorough exposition of the book, he covers the development and limitations of each area. For instance, he covers how criminal law, due to the stringencies of the common law rules, could allow fairly serious wrongs to go unpunished—and other things not in themselves wrong to be punished as though they were. He also traces the growth of tort law from the old form of action for trespass vi et armis, to trespass and trespass on case, finally to the modern four element tort of (1) breach (2) of a duty (3) that causes (4) damages. He also does a very thorough exposition of the nature of contract law as it stood at the turn of the twentieth century.

This book is not an exposition of modern law. But as a sort of philosophical meditation on various aspects of the common law, it is an interesting and edifying read. Moreover, it is interesting to read it and compare it to much of the literature coming out of the legal academy today. Much that comes out of the academy today is poorly-written, jargon-ridden, and more or less rubbish. Holmes, on the other hand, is a pleasure to read and interesting to the philosophically-inclined attorney. Would that more fit that bill today.

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