In the opening sentence of the great book Holmes spoke his objective: "to present a general view of the Common Law." He proposed a methodology: "We must alternately consult history and existing theories of legislation." And finally he stated his purpose: To understand the law, for while today "there are a great many rules which are quite sufficiently accounted for by their manifest good sense, . . . there are some which can only be understood by reference to the infancy of procedure among the German tribes, or to the social condition of Rome under the Decemvirs." In laying down these general propositions Holmes offered two caveats. "One, is that of supposing because an idea seems very familiar and natural to us, that it has always been so." The other is "the opposite of asking too much of history. We start with the man full grown. It may be assumed that the earliest barbarians whose practices are to be considered, had a good many of the feelings and passions as ourselves." Asking his listeners—and later on his readers—to bear in mind such principles Holmes proceeded to expound the common law with boldness and originality.

He first construed the early forms of liability, holding that "early English appeals for personal violence," for example, "seem to have been confined to intentional wrongs." "Intentional" character implied moral culpability, to be sure. But could an inanimate thing, a falling tree, a runaway wagon, in any way be considered morally responsible for injuries sustained in an accident? For that matter, could the ferocious dog be held responsible for biting his owner's neighbor? Moral culpability must be confined to moral agents. Yet early law took vengeance upon the offending object: the fallen tree whose chips were scattered to the wind. As civilization advanced, vengeance was replaced by compensation and liability was transferred from the agent to the responsible owner. As Holmes pointed out: "The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rules remain. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and reconcile it with the present state of things; and then the rule adapts itself to the new reasons which have been found for it, and enters on a new career." As an example Holmes suggested that in Roman legal procedures the desire for revenge applied initially to torts, a practice which sooner or later was applied to a breach of contract, because "the remedies for the two is not found ready made." Furthermore, Holmes argued for similarities between Roman law and German tribal custom, that is, vengeance developed imperceptibly toward a non-violent satisfaction for the injury committed while moral culpability replaced the animism ascribed to ships, wagons, and mad dogs.

Conclusions drawn from such considerations enabled Holmes to reject the conservative understanding of law as something fixed and final. Looked at logically, "each new decision follows syllogistically from existing precedent. . . . Precedents survive in the law long after the use they once served is at an end and the reason for them forgotten. The result of following them must often be failure and confusion from the merely logical point of view." So much for form. But what about the substance—the law? Law is made by judges on "considerations of what is expedient for the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy; most generally, to be sure, under our practice and traditions, the unconscious result of the instinctive preferences and inarticulate convictions, but none the less traceable to views of public policy in the last analysis." Law, in Holmes's own words, was administered by able and experienced men who know too much to sacrifice good sense to the syllogism. This explication of early forms of liability concluded on two notable observations: One, the law "is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off." In so saying, Holmes was stating a basically pragmatic principle as applied to the law. Two, "while the law does still and always, in a certain sense, measures legal liability by moral standards, it nevertheless, by the very necessity of its nature, is continually transmuting those moral standards into external or objective ones from which the actual guilt of the party concerned is wholly eliminated." This latter axiom he then set about to demonstrate by an examination of criminal law.

Holmes commenced his treatment of criminal law by contending that presentment was "the child of vengeance," and this desire "imparts an opinion that its object is actually and personally to blame." But the question is whether such a standard is still appropriate in contemporary society. While admitting that any form of punishment satisfied a thirst for vengeance in some way, and that criminal law had improved only gradually, still the modern view of criminal law, Holmes thought, must be punishment meted out to protect society from actions harmful to it and to its members. Punishment is not intended to reform the criminal but to deter crime. If the prisoner pays with his body, society benefits. This social reference is crucial, of course, to Holmes's understanding of all law. In criminal matters as well as in others, "the first requirement of a sound body of law is that it should correspond with the actual feelings and demands of the community, whether right or wrong." Holmes believed that the law should not encourage the passion of revenge, either in individuals or the state.

The social aspect of criminal law was brought out in still another way. Taking direct issue with the Kantian proposition that the individual can never be sacrificed, can never be treated as a means to an end, Holmes asserted: "probably most English-speaking lawyers would accept the preventive theory without much hesitation." No society has ever admitted that it could not sacrifice individual welfare to its own existence, as both military conscription and the right of eminent domain demonstrate." Such a contention led Holmes to utter one of his most famous dicta: "the ultimata ratio, not only regnum, but of private persons, is force, and that at the bottom of all private relations however tempered by sympathy and all the social feelings, is justified self-preference." What Holmes was speaking in favor of was that the general principles of criminal and civil liability were the same. If the criminal were judged morally, not socially, his abnormal instincts, his want of education, his lack of intelligence, and whatever other defects he might exhibit would have to be taken into account. Yet for the most part these matters were subordinate to what was thought best by society for society as specified in laws and judicial opinions. The individual, therefore, was a means, "a tool to increase the general welfare at his own expense." Such a position, Holmes was to admit, was not an all-encompassing rule. For example, the principle of killing in selfdefense is sanctioned by society—and in the interest of society—even though the act of killing is indeed intentional. On the other hand, ignorance of the law can never be allowed to excuse its violation. Society would surely be the loser if it permitted violations of the law because the offender could plead ignorance. The social fabric would disintegrate, and society would be doomed. Without intending to deny the possible importance of "personal unworthiness," the purpose of criminal law was "to induce external conformity to rule." Even so, personal blameworthiness "was judged according to standards set by society." This was exemplified in Holmes's argument that according to current morality, a man is not so much to blame for an act done under the disturbance of great excitement, caused by a wrong done to himself, as when he is calm." The matter of house burning was another set piece employed by Holmes to illustrate his views. A man may intentionally destroy his own property. But if his house is in close proximity to others and these houses are fired in consequence, he is guilty of arson in as much as the effect of his action has had evil social results. Holmes neatly summarized his theory of criminal liability as follows: "All acts are indifferent per se. Acts are rendered criminal because they are done under circumstances in which they will probably cause some harm which the law seeks to prevent. The test of criminality in such cases is the degree of danger shown by such experience to attend that act under those circumstances." In this step by step way, the social character of criminal activity was elucidated and established.

Having delineated the social origins of law in matters relating to civil liability and crime, Holmes proceeded to apply the same yardstick to torts. The business of the law of torts, as he stated it in The Common Law, "is to fix the dividing line between those cases in which a man is liable for harm he has done, and those in which he is not." In such actions if the law requires satisfaction "the reason for doing so must be found in some general view of conduct which every one may fairly expect and demand from every other, whether that other has agreed to it or not." The law of torts admittedly abounds in moral phraseology—malice, fraud, intent, and negligence—all of which imply that a guilty person must have had some moral shortcoming. While certain authorities, like Austin, accepted such a conclusion, others insisted that man always acted at his own peril. Holmes proposed to advance an alternate theory, namely, that man acted at his own peril in so far as society would expect a prudent man to act and to foresee the consequences of his actions. And in as much as the expectations of society change, the law itself may change accordingly. Such modifications in the expectations of society were always "politic," that is according to public policy, or what the public would support. As Holmes wrote: "A man may have as bad a heart as he chooses, if his conduct is within the rules." The standards of the law were external standards. Law was wholly indifferent to the internal phenomenon of conscience. It was in his discussion of torts that Holmes offered one of his most insightful descriptions of the life of the law.

The growth of the law is very apt to take place in this way. Two widely different cases suggest a general distinction, which is a clear one when stated broadly. But as new cases cluster around the opposite poles, and begin to approach each other, the distinction becomes more difficult to trace; the determinations are made one way or the other on a very slight preponderance of feeling, rather than of articulate reason; and at last a mathematical line is arrived at by the contact of contrary decisions, which is so far arbitrary that it might equally well have been drawn a little farther to the one side or the other, but which must have been drawn somewhere in the neighborhood of where it falls.

In this way exact distinctions have been worked out upon questions in which the elements to be considered are few. For instance, what is a reasonable time for presenting negotiable paper, or what is a difference in kind and what a difference only in quality, or the rule against perpetuities.

Just as law grew in response to the needs of society so social requirements took precedence over those of the individual. The law "does not attempt to see men as God sees them." It only considers what is blameworthy in the average man, a determination made by society and not by moral theories.

The "actual wickedness of the kind described" in the use of such words as fraud or malice, "is not an element in the civil wrongs to which those words are applied," thought Holmes. The basis of liability in torts was the knowledge of what effect the actions performed would have. One example, fraud, may suffice to illustrate Holmes's viewpoint. Deceit was a necessary element in fraud and as such was a "notion drawn from the moral world, and in its popular sense distinctly imports wickedness." The "elements which make it immoral are the knowledge that the statement is false, and the intention that it shall be acted upon." But the defendant in an action involving fraud is not chargeable because he committed an immoral act but because of proof that the defendant knew the other party intended to act upon deceitful information. "The standard of what is called intention is thus really an external standard" of known circumstances. Looked at critically "we find the moral side shade away." Notwithstanding such bold assertions of the social cast of the law Holmes was prompted to state "the moral starting-point of liability in general should never be forgotten, and the law can not without disregarding it hold a man answerable for statements based on facts which would have convinced a wise and prudent man of their truth." Such a conoession to morality was indeed a qualified one, for Holmes went on to observe that "starting from the moral ground [the common law] works out an external standard of what would be fraudulent in the average prudent member of the community, and requires every member at his peril to avoid that." In such a context Holmes was led to make one of his most succinct explanations about the growth of law.

The theory of torts may be summed up very simply. At the two extremes of the law are rules determined by police without references of any kind to morality. Certain harms a man may inflict even wickedly; for certain others he must answer, although his conduct has been prudent and beneficial to the community.

But in the main the law started from those intentional wrongs which are the simplest and most pronounced cases, as well as the nearest to the feeling of revenge which leads to self-redress. It thus naturally adopted the vocabulary, and in some degree the tests, of morals. But as the law has grown, even when its standards have continued to model themselves upon those of morality, they have necessarily become external, because they have considered, not the actual condition of the particular defendant, but whether his conduct would have been wrong in the fair average member of the community, whom he is expected to equal at his peril.

For Holmes the socially external standard must always be the determining standard.

This critical approach to the law Holmes illustrated in his treatment of bailment. Admitting that the only existing theories on the subject came from Germany and that "the German philosophers who have written upon the law have known no other system than Roman," some rules which he discovered in his research lay clearly against what the German legal theorists had come to regard as first principles. At least Holmes wanted to avoid the hasty assumption that such principles were universal. He had discovered procedures which were kindred to early German folk-laws in fact. While not claiming that the law of bailment was of pure German descent, it possessed enough German elements in Holmes's judgment to challenge the German philosophers who had insisted on Roman sources. Occasionally in The Common Law the author was satisfied to question existing assumptions without offering a new thesis fully limned.

A critical attitude was sustained in Holmes's discussion of "possession." He again came out openly and unequivocally against the "a priori doctrines of Kant and Hegel" as well as those of "the speculative jurists of Germany, from Savigny to Ihering." Disagreement arose from the German claim to universal authority. To Holmes the "possessing of a right as such was intrinsically absurd." Tracing theories from Kant back to Rousseau and the Massachusetts version of the American Bill of Rights, which stressed the freedom and equality of men, he dismissed them one and all in as much as they made man an end unto himself. Thus, if an individual was in possession of a thing, the law protected him in that possession because it was an extension of the self. Absolutism of this sort was anathema to Holmes. He was "one who saw in the history of law the development of society" and who was "apt to think that the proximate ground of law must be empirical." "Law being a practical thing must found itself on actual forces." Possession was to Holmes a matter of instinct which he was prepared to argue forcefully.

It is quite enough, therefore, for the law, that man, by an instinct which he shares with the domestic dog, and of which the seal gives a most striking example, will not allow himself to be dispossessed, either by force or fraud, of what he holds, without trying to get it back again. Philosophy may find a hundred reasons to justify the instinct, but it would be totally immaterial if it should condemn it and bid us surrender without a murmur. As long as the instinct remains, it will be more comfortable for the law to satisfy it in an orderly manner, than to leave people to themselves. It if should do otherwise, it would become a matter for pedagogues, wholly devoid of reality.

In short, instinct was "that mightier body of law than the Roman."

Because Holmes was writing about "possession" at a time when property rights had taken on a sacred patina in American society, he was moved to discuss the nature of "rights" at some length in his chapter on Possession. It may be particularly useful to quote him fully, for by inference he was evaluating all rights, not excluding the "inalienable rights" of life, liberty and the pursuit of happiness as expressed in the American tradition.

A legal right is nothing but a permission to exercise certain natural powers, and upon certain conditions to obtain protection, restitution, or compensation by the aid of the public force. Just so far as the aid of the public force is given a man, he has a legal right, and this right is the same whether his claim is founded on righteousness or iniquity. Just so far as possession is protected, it is as much a source of legal rights as ownership is when it secures the same protection.

Every right is a consequence attached by the law to one or more facts which the law defines, and wherever the law gives any one special rights not shared by the body of the people, it does so on the ground that certain special facts, not true of the rest of the world, are true of him. When a group of facts thus singled out by the law exists in the case of a given person, he is said to be entitled to the corresponding rights; meaning thereby, that the law helps him to constrain his neighbors, or some of them, in a way in which it would not if all the facts in question were not true of him.

Such considerations were of course legal. "What may be their relation to moral rights if there are any, and whether moral rights are not in like manner logically the off-spring of moral duties, are questions which do not concern." Such concern was for the speculative philosopher who approached the law from outside, while the jurist came to his subject from within.

What Holmes was doing in his analysis of the law was imparting to it objectivity by reference to the rules of society and public policy. This he carried over to his discussion of contracts, one of the most sensitive and historic of all legal considerations. The common element in all contracts was a promise. One promise may be distinguished from another—for example, I promise you one hundred bales of cotton—by the degree of power possessed by the promisor over the event involved. But according to Holmes, the law does not require the promisor to have any assurance that he either can or will deliver on the promise made. In the moral world it may be an obligation to promise only what one can fulfill, but not so at law. "I take it that a man may bind himself at law that any future event shall happen." By so arguing Holmes escaped the idea that a contract was a "qualified subjection of one will to another, a kind of limited slavery."

Equally practical for contemporary social requirements, damages levied in a breach of contract were not as great as those justified in tort. Furthermore, when contracts were voided the law displayed no concern with the actual state of the party's mind. "In contract, as elsewhere, [the law] must go by externals and judge parties by their conduct." If there are distinctions which might account for voided contracts, these distinctions were "founded in experience, not in logic," an observation which leads back unerringly to the prolegomena of The Common Law.