The Principles of Oliver Wendell Holmes 4

This is the essence of the so-called prediction theory of the law, expressed in Holmes’s most famous essay, “The Path of the Law” (1897), by the sentence: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” Holmes was fifty-six when he wrote “The Path of the Law,” and the starkness of its realism, the thoroughness with which it dis¬misses the notion that the law can be understood by reference to some higher system of morality or rationality, has seemed to some scholars—notably Morton Horwitz—to represent a loss of faith, on Holmes’s part, in the moral cohesion, what Horwitz calls “the power of custom,” of late-nineteenth-century American society. But the prediction theory, at least, was not new to Holmes in 1897. It ap¬pears in one of his earliest essays, published in the American Law Review in 1872, where Holmes argued that it is not the law that de¬termines the outcome in a particular case, but what judges say is the law. For “a precedent may not be followed; a statute may be emptied of its contents by construction. . . . The only question for the lawyer is, how will the judges act?” From the very beginning, Holmes’s view of the law was premised on the assumption that law is simply and empirically judicial behavior. A rule may be written down, it may express the will of the sovereign, it may be justified by logic or approved by custom; but if courts will not enforce it, it is not the law, and lawyers who bet their cases on it will lose.
A second distinctive feature of Holmes’s conception of expe¬rience is that it is not individual and internal but collective and consensual; it is social, not psychological. This is the feature re¬sponsible for his most important contribution to the civil law, which is the invention of the reasonable man. The reasonable man is the fictional protagonist of modern liability theory. If you are injured as a result of an act of mine, what triggers civil liability? There are, tra¬ditionally, three ways to answer this question. The first is to say that it is enough merely to prove causation: I act at my peril, and I am therefore liable for any costs my actions incur, whether I could have foreseen them or not. The legal term for this is “strict liability.” The second way of answering it is to say that I am liable for your injury if I wickedly intended it, but I cannot fairly be held liable for injuries I never contemplated. This is the theory of mens rea—“the guilty mind.” And the third is to say that even if I neither wished for nor anticipated the possibility of your injury, I am liable to you anyway if my act was careless or imprudent. When I act without exercising due care, then I do act at my peril. This is the theory of negligence.
Holmes treated the problem of liability for injury in a series of dense and intense texts: “The Theory of Torts” (1873), “Trespass and Negligence” (1880), Lectures III and IV of Tire Common Law (1881), and “Privilege, Malice, and Intent” (1894), which is possibly his most brilliant essay. Just what Holmes is saying in these discussions is a matter of apparently endless dispute. The subject seems fraught in part because it is often hard to distinguish, in Holmes’s writing, between the descriptive and the prescriptive—between what Holmes believed the law was in practice and what he thought the law ought to be. Holmes didn’t do a lot to help his readers make this distinction, but the reason is that his favorite method of argu¬ment was to show that what the law ought to be is what it pretty much already is, only under a wrong description. In the case of tort law (the common law governing civil liability for an injury not aris¬ing out of a contract), for example, Holmes argued for answer three—liability ought to be triggered by a finding of negligence— but he did so by attempting to demonstrate that negligence was al¬ready, and more or less always had been, the rough basis for tort liability. He argued, in other words, that if in our analysis of tort cases we dropped terms like “guilt” and “fault” and replaced them with terms like “carelessness” and “recklessness,” we would find that we generally got the same results. The advantage of replacing the moral language of sin with the economic language of risk was not to punish a different class of wrongdoers or a different category of wrongs. It was simply to make explicit what moral language tends to disguise, which is that (in the words of The Common Law): “The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient”—a sentence in which, as the context makes clear, we are meant to un¬derstand “convenient” in the widest possible sense.
The problem for Holmes wasn’t, therefore, what the basis for tort liability ought to be. The problem was what the basis for decid¬ing that a particular act was negligent ought to be. Assuming that we want to make persons who act carelessly pay the cost of cleaning up their tortious messes, how do we determine what sort of behavior counts as careless? How do we distinguish a tort from an accident, or from the permissible by-product of a socially desirable activity? One way of doing this would be to devise a series of general rules for conduct, violation of which would ipso facto constitute negligence; but this solution was obviously ruled out for Holmes by his con¬tempt for the malleability of general rules. His alternative proposal was that we should do judicially what we all do anyway when we are confronted with a judgment call, which is to evaluate the conduct at issue by the lessons of experience. “Experience is the test,” as he put it in The Common Law, “by which it is decided whether the degree of danger attending given conduct under certain known circumstances is sufficient to throw the risk upon the party pursu¬ing it.”

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