The Hidden Holmes: His Theory of Torts in History.

• Author: Simpson, A.W. Brian

By David Rosenberg. Cambridge, Mass.: Harvard University Press. 1995. Pp. xii, 280. $.

The literature on Oliver Wendell Holmes, Jr. is very considerable; in quite recent times it has been greatly strengthened by G.E. White's biography,(1) surely a model of its kind. One might have been tempted to view it as the definitive study, but there is something elusive about Holmes, something, I expect, that rules out definitive studies. Given this elusive quality, we perhaps ought not to be surprised by the appearance of Professor Rosenberg's(2) book, nor by the fact that it has new things to say about Holmes. Its thesis is boldly revisionist: Holmes's views about the proper basis for liability in tort law, at least in relatively modern times, have been completely misunderstood and misrepresented. This is spelled out on the very first page of the introduction: "Despite the enormous literature on this preeminent legal thinker, his theory of torts is believed to be essentially the opposite of what it was in fact" (p. 1). So that the reader can more readily appreciate Rosenberg's thesis, I shall give a brief account of the elements of Holmes's theory of torts, which I think is not at all controversial.

Holmes is associated with the general thesis that the common law requires citizens to conform to external standards of conduct, and is not concerned with the "state of mind" of individuals, which, in his view, it would be if interested in individual moral culpability. "The standards of the law are standards of general application."(3) In tort law, the standard is that of "the average man, the man of ordinary intelligence and prudence."(4) Failure to conform to this standard is what is meant by negligence. "[N]egligence does not mean the actual state of the defendant's mind, but a failure to act as a prudent man of average intelligence would have done ...."(5) Hence, individuals may be legally responsible for causing harm even if they do their incompetent best. This view was put forward by Holmes, somewhat curiously, as a criticism of the views of John Austin, which were first published in 1863 -- reconstructed by his widow Sarah from lecture notes after Austin's death in 1859 -- in Lectures on Jurisprudence or the Philosophy of Positive Law.(6) Austin had last delivered his lectures in 1834, that is to say, before the first common law decision on the point, Vaughan v. Menlove,(7) had settled that the test of negligence in ton law was objective, without, of course, any reference to the views of Austin. There is no reason to suppose that Austin's views on the law of tort, or on any other branch of law, ever had the least influence.

Holmes argued that there was nevertheless a connection between legal liability and moral culpability for two reasons. One reason is that many people, indeed perhaps most, can conform to the objective standard.(8) The second is that the law always gives individuals the opportunity to chose whether to perform actions that lead to legal liability.(9)

In setting out his views, Holmes used language which indicated his appreciation that, in one sense, his theory of negligence liability was "strict"; he did not, however, use the word "strict" to make the point. Instead, he spoke of persons acting at their peril:

If, when the question of the defendant's negligence is left to a jury,

negligence does not mean the actual state of the defendant's mind,

but a failure to act as a prudent man of average intelligence would

have done, he is required to conform to an objective standard ar his

peril .... [I]f the law is wholly a standard of external conduct, a man

must always comply with that standard at his peril.(10)

He explained that accordingly his theory "is by no means opposed to the doctrine that [a man] does certain particular acts at his peril," but is "opposed to the doctrine that a man acts or exerts force at his peril."(11) The "particular acts" he spoke about are acts that cause harms, and that would not have been performed by a prudent man of average intelligence. The acts or exertions of force referred to in the second quoted passage are all acts which cause damage, and nothing more; that is, they are not necessarily acts which a prudent person, guided by foresight, would have avoided. Holmes sometimes called the second doctrine "the rule of absolute responsibility."(12)

Why did the law adopt the external negligence standard? Clearly the point was not to ensure that legal responsibility was coterminous with moral responsibility, though Holmes, in his typical way, tried to play down the point by saying that "the law does, in general, determine liability by blameworthiness."(13) Nonetheless, this is not always the case: the person who does their incompetent best is not morally blameworthy. The reason for holding individuals to an objective standard, he argued, is the fact that

[W]hen men live in society, a certain average of conduct, a sacrifice of

individual peculiarities going beyond a certain point, is necessary to

the general welfare. If, for instance, a man is born hasty and awkward,

is always having accidents and hurting himself or his neighbors,

no doubt his congenital defects will be allowed for in the courts of

Heaven, but his slips are no less troublesome to his neighbors than if

they sprang from guilty neglect.(14)

But why fix the standard as that of the average man? Harm is just as troublesome to neighbors whether it is brought about by negligence (in the sense explained) or by the most prudent person.

Here Holmes ran into serious difficulty and offered a number of arguments. One was the general thesis that state interference was an evil, so that losses should be left to lie where they fall unless some good reason existed for shifting them. Accepting "the rule of absolute liability" would amount to adopting a system of insurance, and insurance could be more cheaply provided by private enterprise.(15) This is, in part, an economic argument, added to a presumption against state action, which Holmes took from the political philosophers. The second argument was moral: it would be unjust to hold a person liable for the consequences of an action unless an average person would have foreseen the possibility of harm flowing from it. In order to make this point, Holmes said that it would be like holding a person responsible for harm caused if he had fallen on a neighbor in a fit, or like requiring a person to insure against his neighbor being struck by lightning.(16) Since imposing liability for unforeseen consequences would be not at all like either of these hypotheticals, the argument is a weak one. In the case of the fit there is no voluntary human action at all, and in the second case what is in issue is a compulsory wealth transfer through contract. Although Holmes is nowhere very dear on the matter, it seems he thought that justice to those who fell below the average standard in prudence, foresight, and general ability to avoid causing harm had to be sacrificed to the general welfare, unless they possessed what he called "a clear and manifest incapacity"; the examples he gave are blindness, infancy, and perhaps insanity.(17) The only reason he gave for the view that justice to the below-average had to be sacrificed is that harm remains harm whether caused by morally culpable conduct or not. This sounds like an argument for strict liability generally, and is, therefore, not convincing as a reason for merely some strict liability.

Holmes, in all his writings on tort law, was very deferential to legal authority. He tried to make intellectual sense of the Anglo-American law as it existed in his time. Unlike, for example, J.C. Gray in his treatise on perpetuity law,(18) Holmes did not advance an analysis and then argue that cases incompatible with it were wrongly decided. Under the case law of the late nineteenth century, which Holmes took as given, there were a number of situations in which it was pretty well settled -- insofar as anything was ever settled in the common law -- that a plaintiff could recover without proof of negligence in Holmes's sense -- for example, for cattle trespass and for injuries caused by dangerous animals. Also, in 1860, there had been the House of Lords's decision in Rylands v. Fletcher,(19) which appeared to accept a common law principle of liability in the absence of negligence, in some sense a principle of "strict" or "absolute" liability, albeit of rather uncertain ambit.(20)

Holmes discussed the relevant case law in several passages in his writings, and it is these passages, Rosenberg argues, that have been misunderstood. Holmes wrongly has been thought of as an enemy of strict liability in tort law because it was incompatible with his common external standard of liability -- the negligence standard. Holmes, Rosenberg claims, actually favored a "strict liability qualified by a foresight condition (hereafter foresight-based strict liability)" (p. 6; emphasis in original), and opposed the "rule of absolute responsibility," which Rosenberg calls "cause-based strict liability" (p. 6). Neither "foresight-based strict liability" nor "cause-based strict liability" was, admittedly, actually used by Holmes; Rosenberg uses them in order to capture Holmes's ideas clearly. The distinction between the two forms of strict liability is, he claims, critical to understanding Holmes.

Rosenberg presents his case even more strongly by presenting Holmes as the pioneer of strict liability rather than its enemy: "It is fair to say that the modern understanding of strict liability as a general and independent branch of tort law was his invention" (p. 2). The mistaken idea that Holmes was hostile to strict liability and an advocate of a uniform negligence standard, Rosenberg argues, has been married to an even more mistaken notion. Holmes's supposed enthusiasm for such a standard has been thought by many scholars to have had as its main purpose the subsidization of the...