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This theme of the sacrifice of individuals to the general good is overwhelming in Holmes's writing. Rules of law regularly "sacrificed" the innocent individual "as a means to an end."" It was romantic and naive to believe that the law could be tailored to individual peculiarities.
Holmes began his attack on subjective standards by challenging natural rightsbased theories of criminal law. Here was one area in which punishment had traditionally been defended in terms of the moral failings of the individual with the requirement that the criminal receive his just deserts.
Hegel, Holmes wryly observed, had argued for a "mystic bond between wrong and punishment" in his notion that there must be proportionality between the two. 15 And Kant had denounced a preventive theory of punishment as immoral because, in Holmes's words, "it treats man as a thing, not as a person; as a means, not as an end in himself." 16 In fact, Holmes argued, the "actual personal unworthiness of the criminal" 17 ought not to be determinative in inflicting punishment, as "the purpose of the criminal law is only to induce external conformity to rule." 18 Thus, the law is frequently "ready to sacrifice the individual so far as necessary in order to accomplish" its purpose. t9
But criminal law was only the first, if the most difficult, step in Holmes's argument. He further sought to demonstrate that "the general principles of criminal and civil liability are the same"20 and that the same issue of objective versus subjective standards permeated the entire law.
In tort law, for example, there were "two theories of the common-law liability for unintentional harm" 21 that divided legal thinkers along the same lines as the debate over theories of punishment in criminal law:
The first is that of [the founder of English jurisprudence, John] Austin, which is essentially the theory of a criminalist. According to him, the characteristic feature of law, properly so called, is a sanction or detriment threatened and imposed by the sovereign for disobedience to the sovereign's commands. As the greater part of the law only makes a man civilly answerable for breaking it, Austin is compelled to regard the liability to an action as a sanction, or, in other words, as a penalty for disobedience. It follows from this, according to the prevailing views of penal law, that such liability ought only to be based upon personal fault; and Austin accepts that conclusion, with its corollaries, one of which is that negligence means a state of the party's mind.22
Holmes sought to show that Austin's teaching that "personal moral shortcoming" 23 was necessary for establishing liability in tort was also erroneous. Law only "works within the sphere of the senses."24 It deals only with "the external phenomena, the manifest acts and omissions."25 "[I]t is wholly indifferent to the internal phenomena of conscience."26
Now, the question arises, why was Holmes obsessed with the issue of subjective versus objective legal standards? True, as Mark DeWolfe Howe shows so well, Holmes was bent on attacking German idealism and its philosophy of natural rights.27 In the realm of jurisprudence, Hegel, Kant, and, in much more limited ways, Austin, were clearly the enemy.
But even when analyzing so creative and cosmopolitan a legal thinker as Holmes, it would be a mistake to overlook the more immediate context of the American intellectual and legal culture in which he existed. It seems to me that it is in the more concrete realm of legal and social experience that we have failed to understand Holmes. By treating his thought almost exclusively as a jurisprudential debate with thinkers of the first rank, we have failed to see it as a response to specific dilemmas confronting American social and legal thought at the end of the nineteenth century.
To understand Holmes's significance in the history of legal thought, one must appreciate the two-front war that orthodox legal thinkers were forced to wage after the Civil War.
The integrity of private law-and of the power of common law judges-rested on the assertion that judges were not policymakers, that their sole function was the vindication of individual natural rights. In contract law, we saw, judges insisted that their only role was to carry out the intention of the parties to an agree- ment.28 To impose their own conception of desirable outcomes in a contract dispute would represent the ultimate act of judicial usurpation and political intervention.
But however often they reiterated this basic element of legitimacy, the judicial system had long been drawn into serving more or less overt policymaking functions.29 By the second half of the nineteenth century, the growth of the corporation and the increasing standardization of market transactions in a national economy put pressure on the legal community to adopt objective standards in contract law. There arose a new insistence on an objective theory of contract that would ensure the "rectitude, consistency and uniformity" 30 of results.
As law became increasingly implicated in the process of promoting economic growth, the earlier natural rights justifications for the judicial function began to be overwhelmed by the overtly instrumental use of private law to advance utilitarian objectives. From the post-revolutionary period on, but reaching a special intensity during the codification movement of the 182os and 183os, there were regular challenges to the claims that common law judges neutrally and apolitically vindicated natural rights.31
By the time Holmes began to write in the 1870s, natural rights and utilitarian justifications were approaching a head-on collision in the legal system. The process of economic growth had drawn common law judges into openly instrumental uses of private law, thereby undermining their claim to political neutrality.32 Holmes's attack on subjectivism in law was part of a more general effort of latenineteenth-century thinkers to resolve the conflict by freeing the law from its postrevolutionary ties to natural rights.33
But by insisting on personal fault as a precondition for liability, the natural rights theory had also impeded the use of private law for redistributive purposes. If a utilitarian theory permitted a society to "sacrifice individual welfare to its own existence," 34 why would it not be equally legitimate in the name of utility to redistribute wealth through the legal system?
Thus Holmes was forced to fight a two-front war. On one front, he challenged orthodox legal theory for its moralism and individualism, qualities that, he main tamed, unrealistically ignored the actual regulatory functions of law. On the other front, like his natural rights adversaries, he wished to resist the view that because an objective theory allowed liability without regard to personal blameworthiness, it thereby led inevitably to codification or permitted, on utilitarian grounds, a redistribution of wealth in the interest of the general welfare.35 It was necessary, Holmes saw, to bring about a "reconciliation of the doctrine that liability is founded on blameworthiness with the existence of liability where the party is not to blame."36
Moralism versus Amoralism in Private Law
Holmes wrote just as the question of moral fault had moved to center stage in American law. Beginning in the 185os, a debate arose about the moral foundations of private law. The issue first surfaced in connection with the question of punitive damages in tort. To the extent that punitive damages were allowable, many legal writers reasoned, the function of tort law was not merely to compensate plaintiffs for injury but to enforce more general policies of the state. If there was a clear line separating public-in this case, criminal-law from private (tort) law, it was based on the notion that only public law could legitimately pursue deterrent and regulatory goals. To the extent that plaintiffs were permitted to recover damages beyond their actual injuries, it was argued, courts were using private law to further social goals. The plaintiff's recovery then became not a matter of personal right but a utilitarian device for private enforcement of essentially public duties. The distinction between public law and private law would be eroded, leaving no theoretical barrier between tort law and the feared redistributive tendencies of regulation.37
The debate over punitive damages began in 1842 with the publication of Simon Greenleaf's Treatise on the Law of Evidence, 38 which sought to show that punitive damages were both undesirable and unprecedented. When Theodore Sedgwick published his
Treatise on the Measure of Damages39 five years later, however, he demonstrated overwhelmingly the long-standing authority behind punitive damages.40 As late as 1873, the first American treatise writer on torts, Francis Hilliard, had no difficulty in confirming Sedgwick's statement of the traditional view. "Compensation is the measure of r`dress for the legal wrong; but for the moral wrong, the recklessness of the act, the personal malice with which it is done, the violence and outrage attending it, reasonable exemplary [punitive] damages will be allowed."41
During the late 187os and 188os, however, the debate revived, and this time the theoretical issue of the true nature of public versus private law overshadowed the question of precedent. Opposition to punitive damages was widespread on the ground that it allowed private law to serve purposes thought proper only to public law. While an award of compensatory damages could be understood as vindicating the individual rights of a party, the addition of punitive damages implied regulatory and confiscatory purposes. "If the plaintiff is entitled to damages as a matter of right, let him receive them in their proper character of indemnity,"42 one legal writer argued in 1881. "If he is not so entitled, there is no power in any government which can justly deprive another of his property for [the] plaintiff's benefit. Judicial procedure ought not to be made a cover for the confiscation of private property. " 43
"[T]he State inflicts punishment, not individuals,"" another legal writer maintained. "[A]s between individuals, courts enforce rights. The law protects everyone in the enjoyment of his property, and it cannot be taken from him, under the pretext of punishment, and given to another. -45
Only a clear distinction between the punitive functions of public law and the compensatory purposes of private law could dampen the confiscatory impulse of juries. "The injured party ought not to be made the avenger of a public wrong," 46 another commentator declared in 1878:
In the gross injustice its application causes in many cases, by allowing a man ten or twenty, or sometimes fifty-fold the amount of damages he has actually sustained, it has been an instrument of mischief, encouraging a multitude of lawsuits of a speculative character., It has, in part, demoralized an honorable profession, by the prices held out to the litigious and unscrupulous, and their advocates in court, expecting to share in the promised confiscation of another man's property. Let the breaker of the public peace and the offender of the laws make his fine to the state, the duty of which it is to protect, and which pays for the administration of justice, but not to the injured person, who, when compensated liberally for his individual loss, has no further claim on his opponent. 47
When the Supreme Courts of New Hampshire (1873) and Colorado (1884) overthrew the doctrine of punitive damages, it was through a process of deduction from the supposedly different inherent functions of public and private law. "What is a civil remedy but reparation for a wrong inflicted, to the injury of the party seeking redress,-compensation for damage sustained by the plaintiff?"48 the New Hampshire court asked. "How could the idea of punishment be deliberately and designedly installed as a doctrine of civil remedies? Is not punishment out of place, irregular, anomalous, exceptional, unjust, unscientific, not to say absurd and ridiculous, when classed among civil remedies?"49
The true rule, simple and just, is to keep the civil and the criminal process and practice distinct and separate. Let the criminal law deal with the criminal, and administer punishment for the legitimate purpose and end of punishment,-namely, the reformation of the offender and the safety of the people. Let the individual, whose rights are infringed and who has suffered injury, go to the civil courts and there obtain full and ample reparation and compensation; but let him not thus obtain the "fruits" to which he is not entitled, and which belong to others. so
Public and private law, the Colorado Supreme Court announced in 1884, should be kept "separate and distinct."51 "It is not unlikely," it declared while striking down the institution of punitive damages, "that courts will in the course of time generally condemn the practice of blending the interests of the individual with those of society, and using a purely private action to redress a public wrong." 52
By i8gi, even the editor of T. Sedgwick, a Treatise on the Measure of Damages had abandoned Theodore Sedgwick's original moral defense of the doctrine of punitive damages and conceded that it was "an exceptional or anomalous doctrine, at variance with the general rule of compensation; hence that, logically, it is wrong." 53
Related to the controversy over punitive damages was another problem that consumed thousands of pages of legal writing in the late nineteenth century-the question of whether there were different "degrees of negligence."54 Purporting to rely on Roman law, British Chief Justice Holt in Coggs v. Bernard (1703)55 had elaborated a three-tier classification of negligence-gross, ordinary, and slight-in order to define the duties of various bailors. Yet it was only 150 years later that there was any widespread challenge to Holt's scheme. Led by Francis Wharton's investigations of Roman law, large numbers of legal writers in the 1870s devoted enormous energy to demonstrating that Holt had misunderstood Roman law and that there was only a single standard-that of the "ordinary and prudent man"for determining negligence. 56
In fact, the only operational significance of a category of "gross" negligence was that, by contrast to "ordinary" negligence, it would permit a jury to award punitive damages for extremely bad-hearted or anti-social conduct. Therefore, a finding of gross negligence not only required a moralistic and subjective evaluation of conduct by an unreliable jury, it also permitted an inherently discretionary assessment of punitive damages by that jury.
Just as the category of "gross" negligence signaled questions about the legitimacy of punitive damages, the category of "slight" negligence raised the possibility of strict liability. The basic idea of the three-tier classification of negligence was that different degrees of care were appropriate to different circumstances or relationships. In the context of the 1870s, the most pressing question was whether the railroads and other new forms of technology would be treated as "dangerous instrumentalities" and hence held liable even for "slight negligence" because of failure to use "the highest level of care."57
But most important, perhaps, the three-tier conception of negligence and the doctrine of punitive damages cut against the efforts of late-nineteenth-century legal thinkers to develop a clear boundary between an apolitical, anti-redistributive private law and an inherently unstable, political public law. If the functions of tort and criminal or regulatory law were overlapping-if the tort law could legitimately move beyond the realm of corrective justice into that of punishment for immoral behavior-the idea of an apolitical private law whose sole function was to vindicate private rights was threatened.
The treatise writers of the late nineteenth century were virtually unanimous in rejecting as unsound the three-tier system of negligence. S8 Yet they were constantly embarrassed not only by the repeated use of the gross negligence concept by common law courts but also by the frequent moralism of the judges in expounding the negligence standard.
It was in this setting that Oliver Wendell Holmes, Jr., began to write about the common law, especially the law of torts. More audacious than his contemporaries, he was not satisfied simply to banish moralism from the private law; he also sought to show that moralism was unsound even in criminal law. Yet it is clear that all of the central themes in Holmes's writing were prominent in American legal literature of the 1870s, especially his attack on moralism in the common law. His were not simply the abstract and disembodied speculations of the legal philosopher, but rather the effort to come to terms with a number of basic, concrete contradictions in the American legal system of the late nineteenth century,
Holmes's attack on moralism and subjective standards in tort law grew in part from a desire for stability that he shared with much of late-nineteenth-century American culture. Order, uniformity, certainty, and predictability were the main goals of legal as well as non-legal writers of the late nineteenth century.59 There were num
erous attacks on the arbitrary character of juries and on their penchant for favoring the noncorporate plaintiff.60 Natural rights individualism was seen as too personal, too idiosyncratic, too moralistic-as a threat to order.
For Holmes, subjective standards in law derived from more than one hundred years of natural rights individualism. Like many of his contemporaries, Holmes feared the anarchic and disorderly implications of all appeals to individual conscience and morality. Much of his writing was devoted to rooting out of the law all concepts that could appeal to the "idiosyncrasies" of juries or "would leave all our rights and duties . . . to the necessarily more or less accidental feelings of a jury."61 All criteria based on conscience or morality, he believed, would inevitably degenerate into personal idiosyncrasies.
As George Fredrickson shows, Holmes was marching to the same drummer as his mentor Ralph Waldo Emerson, who after the Civil War abandoned the "individualism and anarchism" of his youth. Indeed, Holmes's own "search for order" was probably connected with his youthful flirtation and eventual disillusionment with abolitionism.62 As Saul Touster has pointed out, Holmes enlisted in the Civil War "as a convinced abolitionist" but came later to identify abolitionism with fanaticism. For the later Holmes "the word `abolition' is associated not with young men of deep sympathies and generous sentiments but with communists, Christian Science, the Catholics on Calvin, Calvin on the Catholics, Trotsky on Stalin, Prohibitionists, Emma Goldman."63 The lesson Holmes seems to have derived from his own Civil War experiences is that all passionate appeals to conscience and morality invariably resulted in the destruction of a fragile social order.
But natural rights individualism represented only one of the two fronts over which orthodox legal thinkers were battling. At the other extreme was continental positivism and its American offshoot, codification. If law was not the recognition of some pre-political natural right of individuals, was it inevitably the arbitrary command of a legislative sovereign?