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Past-Perfect                                                                                    April 1998, vol.1, no.1

Review | Commentary | Talkback | Archive || Home
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Holmes: "Torts is Not a Proper Subject for a Law Book"

A decade before Oliver Wendell Holmes, Jr. published The Common Law and before he took a seat on the Massachusetts Supreme Judicial Court, he was a sole practitioner and co-editor of The American Law Review. In 1871, he wrote a book review for that publication that foreshadowed in some respects his thinking on the common law generally and on torts in particular. What follows is that review.

Immediately below the Holmes review, Professor Thomas Grey of Stanford Law School, a noted Holmes scholar, provides commentary on Holmes’s views on torts. Additional information on Holmes’s torts jurisprudence can be found in John Wigmore, "Justice Holmes and the Law of Torts," 29 Harvard Law Review 601 (1916) and Patrick J. Kelley, "A Critical Analysis of Holmes’s Theory of Torts," 61 Washington University Law Quarterly 681 (1983). See generally Sheldon M. Novick, Honorable Justice: The Life of Oliver Wendell Holmes (Dell, 1989).

Ronald K.L. Collins & David M. Skover, Editors, Books-on-Law

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Review

C.G. Addison, The Law of Torts (Boston, MA: Little, Brown, & Company, 1870) (abridged for use in the Law School of Harvard University)

Reviewed by Oliver Wendell Holmes, Jr.

This book is best explained by the preface. "When it was determined that special instruction should be given at the Harvard Law School in this branch of the law, Addison’s Law of Torts appeared to the person appointed to give such instruction to be the work best adapted for a text-book; but its cost was high, and a large portion of the matter which it contained (as for instance the chapters upon bailments, easements, patents, and copyrights, and much of the text relating to evidence, pleading, and practice) seemed to fall more properly within branches of instruction taught by others, while the full citation of English Statutes, and the special adjudications upon them, appeared to be almost valueless to the American student."

This indicates quite accurately what has been left out, and may convince the practising lawyer, as a comparison has convinced us, that he, as well as the students, will do better to buy this cheap little book than the bulky and costly volume from which it is abridged. All that has been omitted will be found better done in other common books.

We are inclined to think that Torts is not a proper subject for a law book. Under this title we expect to find some or all of the wrongs remedied by the actions of trespass, trespass on the case, and trover. But we cannot help believing that the cohesion or legal relationship, say, of trespass quare clausum, is closer with the duties to him in possession enforced by real actions, than with assault and battery. So, to give another example, the law of actions for deceit seems to us to be properly presented in connection with that of estoppel in pais as two forms of sanction for the same duty,—not to defraud one’s neighbor, to put it broadly. Seduction, which we find in the next chapter of this book, belongs at the other end of the corpus juris.

We long for the day when we may see these subjects treated by a writer capable of dealing with them philosophically, and self-sacrificing enough to write a treatise as if it were an integral part of a commentary on the entire body of the law. Such a result might be anticipated if the able lecturer for whose use this abridgement was prepared, and who is achieving so deserved a success at Cambridge, should apply his subtle and patient intellect to the task.

This review originally appeared in The American Law Review, vol. 5, p. 340 (1871), and thereafter reprinted in Sheldon M. Novick, ed., The Collected Works of Justice Holmes, Vol. 1, p. 237 (University of Chicago Press, 1995). We gratefully acknowledge the permission of Professor Novick to reprint the Holmes review.

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Commentary

Not a Proper Subject?
by Thomas C. Grey

The young Oliver Wendell Holmes, Jr., could not see how to make a living at his first love, philosophy. So when he mustered out of the Union Army as a thrice-wounded veteran in 1864, he reluctantly undertook the rather rudimentary course of study offered at the pre-Langdell Harvard Law School. He graduated two years later, and joined a small firm in Boston. Meantime, he had come to see the law as a worthy outlet for his intellectual ambitions—"a great anthropological document" that recorded "the moral history of the race," and at the same time a practical civilizing restraint on the kind of human savagery he had experienced on the battlefield. He would devote to it the rest of his life, two-thirds of a century.

Holmes soon joined with two contemporaries, John Ropes and John Chipman Gray, in editing what soon became the nation’s best outlet for legal scholarship, The American Law Review. This meant reviewing a wide array of new law books, and keeping up with periodical literature and the latest developments in the legislatures and courts. At the same time, he undertook the annotation of a new edition of the leading general treatise on American law, Kent’s Commentaries, a labor that required him to master the whole body of the law in a way that no one could possibly manage today.

Holmes brought to bear on what soon was a very detailed knowledge of American law the focused energy of a powerful and broadly-educated mind, already equipped with extraordinary literary and rhetorical skills, and driven by a single-minded ambition for achievement and recognition. He did this at a time of transition, when under the pressure of procedural reform the old common law forms of action were disappearing; the law required a new categorization into substantive fields, each of which in turn had to be formulated in a structure of concepts and principles.

An Early Impression of the Field

The emerging primary categories of private law were contract and tort. Contract law had some tradition of doctrinal elaboration, but the law of tort was in a primitive state when Holmes began his legal career. Kent, for example, had followed Blackstone in treating tort simply as the remedy of civil damages for the violation of a right, and left the question of what rights people had to be defined by other branches of law, mostly the law of property.

The earliest torts treatises were by the American Hilliard (1859) and the Englishman Addison (1860). These were rudimentary first efforts to impose some order on the various rules of non-contractual civil liability scattered in the debris of the common law writ system. A second generation of commentary followed during the 1870s and 80s, including works by such distinguished jurists as Thomas Cooley, Sir Frederick Pollock, James Barr Ames, and Melville Bigelow. Holmes was part of this second generation, with his two pathbreaking articles "The Theory of Torts" (1873) and "Trespass and Negligence" (1879), which together formed the basis for his treatment of tort law in Lectures III and IV of his masterpiece, The Common Law (1881).

Holmes’s book review of the second edition of Addison’s treatise, reproduced above, records his earliest impression of the field, which was that "torts is not a proper subject for a law book." And as Addison presented it, it was indeed a field without any conceptual unity—a disparate collection of rules of civil liability whose only point in common seemed to be that they were not founded in contract. Within three years, though, after some vacillation, Holmes had not only accepted tort as one of the main departments of the law, but had made the fateful choice to organize the subject around negligence conceived as an external standard.

We can reconstruct at least part of the train of thought that led him from the one point to the other by attending to two additional brief book notices he wrote in 1871, reviewing two of the first books to appear on the subject of negligence. Commenting on the treatise of the Americans Shearman and Redfield, Holmes criticized the authors’ treatment of the subject, but tentatively endorsed negligence itself as a legal concept of sufficiently general application to be a promising basis for study. Then, in a review of Campbell’s Law of Negligence, he backed away from this endorsement. Campbell, following the lead of the great English legal theorist John Austin, treated negligence as a culpable state of mind, inattention to risk.

Holmes saw that if negligence was a mental state, it was simply a fact to be found (or not) by a jury. As such it served as an element of liability in a disparate collection of cases, not all tort cases. At the same time, in many other tort cases that seemed to involve similar issues to those decided by juries on the ground of negligence, liability was premised on proof of specific conduct without any reference to state of mind.

But Holmes would not let go of his original intuition that negligence was a promising starting point for tort law, and at some point he came up with the fundamental reconception that he first set out in "The Theory of Torts" (1873). Negligence was not, as ordinary usage suggested and jurisprudential tradition maintained, a state of mind, and so a fact, and so to be determined as present or not on the evidence of each case by the jury. Rather it was a complex legal conclusion, a determination that a public standard of conduct existed, that it applied to the defendant's conduct in the instant case, and that the defendant's conduct violated the standard.

Holmes's Conceptual Structure of Torts

This leap to a conception of objective negligence—negligence as substandard conduct, rather than a state of mind—allowed Holmes to assimilate to the negligence category the array of disparate tort rules that had previously troubled him. Rules imposing liability on the basis of objectively defined conduct alone, without a finding of negligence, could now be interpreted simply as judicial specifications of the overarching but vague standard of due care. And they could be so interpreted consistent with the jury's role as the primary finder of fact.

Holmes’s idea was that, when jurors decided whether someone had been negligent, they were not simply finding facts, at least not adjudicative facts about the party’s state of mind. Rather, they were endeavoring to "suggest a rule of law to the court" by using their knowledge of social fact. The social fact in question was "the practice of the average member of the community—what a prudent man would do under the circumstances." This set the default standard of care, applicable in the absence of any further specification of norms of safe conduct by way of statute, specialized custom, or rules derived from the judges’ own notions of public policy.

Holmes thus brought negligence in the objective sense of substandard conduct to the center of tort law. Covering "the great mass" of cases in the middle of a spectrum of tort doctrines, it faded out into "two extremes:" at one end, rules of true strict liability both ancient and modern; at the other, rules requiring for liability true moral culpability—intent to harm, or malice, or "negligence stricto sensu," meaning a culpably careless "actual condition of the defendant's consciousness." Objective negligence partook of both extremes—actual fault, and no-fault—and mediated between them. It had about it an important element of fault or blame, referring as it did to collective standards of prudent conduct. On the other hand, it was directed by policy, the forward-looking aim of preventing harm.

And this is basically the way we understand tort law today. Its main focus is the social problem of accidental personal injury. Its central concept is objective negligence, conduct that falls below what is expected of the average person. Sometimes this is specified by statute or judge-made rule, but often (more often than in Holmes’s day) it is left to the jury to determine. The central mass of tort cases that turn on objective negligence are flanked by two relatively marginal kinds of cases. On one side are those that require a showing of actual moral fault, usually intent to do wrong. On the other are the cases where liability is strict, where for reasons of policy (accident-deterrence or victim-compensation) the law imposes liability even in the absence of substandard conduct.

More than anyone else, Holmes was responsible for devising the conceptual structure that governs our present law of torts. It is a delightful irony that he did so within a few short years after concluding that "torts is not a proper subject for a law book."

Thomas C. Grey is Nathan Bowman Sweitzer and Marie B. Sweitzer Professor of Law at Stanford Law School. He has done scholarly writing in constitutional law and jurisprudence, and has written a number of articles on the legal thought of Oliver Wendell Holmes.

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JURIST: Books-on-Law is edited by Ronald K.L. Collins and David M. Skover of the Seattle University School of Law.

Board of Editorial Consultants: Miriam Galston, George Washington University Law School; Kermit Hall, Ohio State University College of Law; Yale Kamisar, University of Michigan Law School; Lisa G. Lerman, Catholic University of America School of Law; David M. O'Brien, University of Virginia Department of Government and Foreign Affairs; Judith Resnik, Yale Law School; Edwin L. Rubin, University of California at Berkeley School of Law (Boalt Hall); Steven H. Shriffrin, Cornell Law School; Nadine Strossen, New York Law School; David B. Wilkins, Harvard Law School.

Administrative Assistant for Books-on-Law: Ms. Nancy Ammons

© Ronald K.L. Collins and David Skover, 1998. 覧覧覧覧覧覧覧覧覧覧覧覧覧覧
JURIST: The Law Professors' Network is directed by Professor Bernard J. Hibbitts, Associate Dean for Communications & Information Technology, University of Pittsburgh School of Law, Pittsburgh, Pennsylvania, USA, in consultation with an international Advisory Board. E-mail JURIST at JURIST@law.pitt.edu.

© Bernard J. Hibbitts, 1998. All rights reserved. These pages may not be copied, reposted, or republished, in whole or in part, electronically or in print, without express written permission.

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