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  Judges might be left unconstrained to follow their personal assessments of the relative merits of the parties' claims. But, especially in labor cases, this approach "suggests a doubt whether judges with different economic sympathies" 204 will be able to avoid simply choosing between labor and capital. Likewise, in cases involving restraint of trade, "[i]t is a question of degree at what point the combination becomes large enough to be wrong. . . ."205

  So a second possibility that would restrict these dangerous tendencies toward judicial legislation presented itself. Allow the privilege to injure whenever the defendant is furthering his own interests through economic struggle, but deny the privilege where harm is inflicted simply for the purpose of injuring the plaintiff. Malice-a subjective standard-becomes an additional basis for distinguishing between legitimate and illegitimate forms of coercion.

  From the beginning, economic struggle was, for Holmes, the best example of the weakness of a theory of rights. Yet the collapse of a theory of rights, accompanied by the collapse of customary norms, eventually raised for him a more troubling question about whether objective or external judicial standards were "definite enough to stand the strain"206 of conflicting political and economic views.

  "Privilege, Malice and Intent" sought to define limits on judicial interference with the process of economic struggle by attacking theories of rights that gave courts great confidence that there were clear bright-line boundaries that could not be crossed with impunity. Holmes put forth the model of competition to demonstrate not only that public policy often permitted injury to property, but that competition was in principle no less coercive than other forms of economic strug- gle.207 Though he realized that "a line has to be drawn"208 that would distinguish theft, bribery, and intimidation from legitimate forms of economic warfare, he was not confident that this would be easy. Without a theory of rights, objective criteria might not be available or would degenerate into "unconscious prejudice" 209 based on "different economic sympathies." 2" So he returned to the traditional common law subjective tests of "malice" and "intent" as ways of compensating for the ambiguity of external standards.

  Like most of Holmes's writings, "Privilege, Malice and Intent" sought to find a middle point between two extreme legal positions. On the one hand, its analysis of rights was consistent with the general insight of The Common Law that "[tjhe absolute protection of property . . . is hardly consistent with the requirements of modern business. " 211 Competition and property were conflicting legal categories. Economic and social struggle undermined and eroded all efforts to find clear external bright-line boundaries between right and wrong. Compared to the prevailing judicial theory of rights, this approach permitted much greater scope for economic struggle, especially for labor unions, since it required a finding of actual intent or malice. Since most legal restrictions on labor unions derived from a conception of absolute property rights, Holmes deserves to be seen as the preeminent figure in dismantling the system of legal thought based on absolute rights. To that extent, he was justly a hero to the next generation of Progressive social reformers.

  On the other hand, Holmes never reached the conclusion, often intimated in his writing, that the relativity of rights meant that all non-violent forms of economic struggle were legitimate. That is what the English House of Lords finally decided in Allen v. Flood (1898).212 Instead, his purpose in writing "Privilege, Malice and Intent" was to attempt to reinstate motive as a basis for confining the scope of legitimate conflict.

  After all is said and done, the most interesting observation about "Privilege, Malice and Intent" is that Holmes felt that the disintegration of a theory of rights placed his advocacy of an external standard in jeopardy. Why did he seem to lose confidence in his long-standing view that when two rights "run against one another . . . a line has to be drawn" 213 that could be derived from external considerations of "policy"? Why should the collapse of rights theory have presented him with any more difficulty later than it did in The Common Law?

  The answer, I believe, is that in The Common Law there was something of a symbiotic relationship between the orthodox theory of rights and Holmes's advocacy of external standards. The process of line drawing first advanced in The Common Law was ultimately dependent on external criteria. For Holmes, some conception of the "average," the "normal"-in short, some conception of customlay in the background of his early thought. Natural rights conceptions, by contrast, he originally identified with the dominant Germanic emphasis on subjective theories of will. He therefore wrote The Common Law on the assumption that the shift to an external standard was equivalent to an attack on natural rights theory itself.

  But as Holmes came to see later, objective standards were by no means incompatible with all appeals to natural rights. In fact, natural rights theories of property could actually be employed to buttress a legal theory based on external standards. Indeed, during the 1870s there was a shift to objective or external standards in common law cases dealing with property rights. The argument centered on none other than the question of the place of malice in the law.

  One typical class of cases involved the problem of the "spite fence."214 The defendant had erected a fence on her own land that interfered with her neighbor's quiet enjoyment of his land. All courts agreed that without malice the defendant was entitled to build a fence within her boundaries. The only disagreement centered on whether a court could inquire into the defendant's motives. What if her only reason for building the fence was a desire to make her neighbor miserable?

  In 1879 Justice Thomas Cooley published his influential Treatise on the Law of Torts, which established the orthodox proposition that in determining legal liability "the good or bad motive which influenced the action complained of is generally of no importance whatever."Z15 "One of the major themes of Cooley's treatise was that moral considerations should not determine legal relations. Spite fence cases were central to this argument. Beginning with the first pages of his treatise on torts, Cooley endeavored to separate legal and moral obligations."216

  After Cooley, the overwhelming trend in the cases was a refusal to inquire into the defendant's state of mind. One of the most important opinions supporting Cooley's views on the role of motive in spite fence cases was decided by justice Holmes in 1889. In Rideout v. Knox,217 Holmes declared:

  It has been thought by respectable authorities, that even at common law the extent of a man's rights in cases like the present might depend upon the motive with which he acted. . . . We do not so understand the common law, and we concede further, that to a large extent the power to use one's property malevolently, in any way which would be lawful for other ends, is an incident of property which cannot be taken away even by legislation.218

  Holmes thus continued to support an objective or external standard based on the view that a landowner was sovereign within the boundaries of his or her property. Indeed, there was much talk by other judges about how the right to property would be subverted if motives or states of mind could be judicially explored.219

  The crystallization of a natural rights theory of property during the second half of the nineteenth century was thus further strengthened by the turn to external standards for regulating land use. During this period the dominant tendency in English and American law was to identify natural rights with sovereignty over property. Objective bright-line boundaries actually became the basis for legal definitions of the right to property.220 But competition, whether between cartelized business or between labor and capital, subverted this bright-line definition of the natural right to property. Only in "Privilege, Malice and Intent" did Holmes begin to discover the dependence of his own conception of external standards, as developed in The Common Law, on definitions of bright-line boundaries as created by natural rights judges. Holmes took this idea to its logical conclusion in 1918 when he stated explicitly that property was no more than a "creation of law. "221

  Customary law and natural rights theories thus marched hand in hand during the late nineteenth cent
ury. When he retreated to the subjective standard of malice, Holmes acknowledged that it was because of the collapse of a believable conception of boundaries. As lie grew more skeptical about a determinate realm of custom that had established the normative framework of The Common Law, Holmes finally began to lump together customary and natural rights theories. Social struggle demonstrated that appeals either to custom or to natural rights were simply "pontifical or imperial way[s] of forbidding discussion."222 Policy was no longer derivable from customary norms but was a coercive imposition of the state.

  It is appropriate at this stage to review briefly the process by which Holmes came to occupy a position in 1894 that appeared not only to contradict the most basic tenets of orthodox legal thought, but also to reverse what he himself regarded as his own greatest contribution to legal theory.

  We have seen how, in The Common Law, Holmes advocated objective rules as a foundation for the stable and predictable legal framework necessary to support a rapidly changing economy. In espousing an objective standard, Holmes was forced to confront individual natural rights theory, which forbade the imposition of the coercive power of the state upon an individual who was personally free from blame.

  The manner in which Holmes framed his original objection to subjective rules revealed his early rejection of the notion that law could be understood as the result of judicial application of principles of natural right. He contended that any right of an individual to be assessed according to his own peculiar state of mind simply did not exist. A legal "right," insofar as it made sense to use the term at all, was no more than a legal conclusion: It was simply an expression of the practical consequences of particular rules on particular individuals. Legal rights, Holmes recognized in The Common Law, are intellectual constructs used to describe the consequences of the imposition of legal obligations. As he puts it, "legal duties are logically antecedent to legal rights."

  The transition from subjective to objective standards was replicated within natural rights theory by a parallel shift away from a concern with individual will. Orthodox legal thinkers during the late nineteenth century gradually surrendered Germanic theories of the will, substituting traditional notions of absolute property rights.223 As exemplified by the spite fence cases, the refusal to inquire into personal motives was thought to express the absolute right of an individual to control his or her property.224 The triumph of objective rules in orthodox legal thought was not, however, accompanied by a corresponding rejection of the view that legal rights were analytically prior to legal rules. Orthodox thinkers continued to regard natural rights as prior to and properly determinative of the law.225

  While Holmes was induced to reject subjective standards by the realization that legal rights took their form from legal rules, orthodox thinkers continued to view objective rules as defined by pre-existing natural rights, such as the right to the quiet enjoyment of one's property. These opposite conceptions of the proper analytic priority of rights and duties set the conceptual stage for the revolutionary change that was to occur in Holmes's thought shortly before the turn of the cen- tury.'I'he background condition was a dramatic increase in social and economic change resulting from massive immigration, corporate cartelization, economic depression, and labor unrest.

  The radical social and economic conflicts of the 18gos disrupted the legal order in two related ways. First, judges were no longer able to anchor objective rules to the legitimating force of what were thought to be widely shared customary norms. Second, natural rights discourse began to lose its legitimating power as the emergence of fundamentally new problems underlined the indeterminacy of natural rights concepts. For example, natural rights constructs could not provide determinate solutions to the problems posed by economic concentration or the growing confrontation between capital and labor. In addition, as we shall see in the next chapter, the shift from landed to intangible property exposed the socially created and hence disputable character of all property boundaries.

  As these issues came to dominate legal discourse, the internal inconsistency of natural rights conceptions became visible, and orthodox legal thinkers were gradually forced to confront Holmes's question posed in "Law in Science": "Now here the reasoning starts from the vague generalization Right, and one asks himself at once whether it is definite enough to stand the strain." By the mid-189os, Holmes was gradually becoming aware that the objective standard he had advocated so forcefully in The Common Law as an alternative to the natural rights emphasis on individual will was in practice actually dependent on natural rights assumptions about property.

  Holmes thus saw his greatest contribution to The Common Law under siege on two fronts. First, the breakdown of customary norms seemed to leave judges without an external guide as to where to draw objective boundaries. Second, and perhaps even more distressing, Holmes realized that the objective standard had been co-opted by late-nineteenth-century legal thinkers as a way of defining the boundaries of pre-existing natural rights to property. As these natural rights conceptions broke apart under the strain of social and economic change and the dephysicalization of property, the objective standard was gradually sapped of its vitality.

  Holmes's solution was simply to abandon purely objective standards where they no longer served to provide determinate solutions to legal questions. Hence the unabashed consideration of motive in "Privilege, Malice and Intent" as a legitimate factor in determining the resolution of labor disputes. As the revolutionary social and economic changes of the late nineteenth century operated to deprive objective rules of their stable external anchors in custom, Holmes gradually abandoned objectivism. By 1894, he was willing to accept the uncertainty inherent in all inquiries into subjective states of mind in order to preserve the integrity of common law adjudication.

  But Holmes's reliance on the concept of malice to provide some determinancy to judicial decision making was really no more than a retreat to formalistic application of traditional common law rules of pleading. By the time Holmes wrote the "Path of the Law" three years later, he had finally abandoned any conviction that common law categories were capable of providing neutral constraints on judicial decision making.

  "The Path of the Law," written when Holmes was fifty-six, was his last serious effort at systematic legal theory. Though he lived for almost four more decades and made many contributions to legal thought as a judge, one can find within the substance of this last essay many clues about why he seems to have given up on systematic thought.

  "The Path of the Law" reflects both a new synthesis and a major stopping point in Holmes's intellectual journey. It is an important measure of how far he had traveled from a youthful rationalism marked by an earnest faith that legal contradiction could be overcome by thought and hard effort. No longer does he seek to "twist the tail of the cosmos," as he put it. Instead, we see clearly the detached olympian skepticism that was to characterize him for the rest of his life.

  With the collapse of a customary theory of law amid social and economic struggle, Holmes abandoned the search for a middle position between the state and the individual. Custom was no longer the buffer between consent and coercion. A judicial balancing test not free of economic prejudice might be impossible to construct. All of my previous efforts, he seemed to be saying, at finding a plausible and believable distinction between law and politics have collapsed. The main message of "The Path of the Law" is that there is no basis in reason for deciding which of two contradictory legal doctrines is correct.

  To elaborate this message, Holmes first turned to the distinction between law and morals. While the law-morals distinction had not been central to The Common Law, the book's contrasts between logic and experience and between subjective and objective standards did implicate the law-morals question. Yet these dichotomies were offered primarily in order to capture the divide between common law and custom, on the one hand, and natural law or natural rights, on the other. Now in "The Path of the Law" the law-morals issue is placed at center stage, and is daringly
and originally presented in terms of Holmes's "prediction theory": "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." 226 If law is prophecy, Holmes continues, we must reject the view of "text writers" who tell you that law "is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason, that it is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions."227 He provocatively introduces "the bad man" who "does not care two straws" about either the morality or the logic of the law. For, the bad man, "legal duty" signifies only "a prophecy that if he does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment of money."228 The bad man concerns himself only with "material consequences."

  "The Path of the Law" marks the first clear articulation of legal positivismthat is, an insistence on a sharp distinction between law and morals-by any American legal thinker. I do not mean that Holmes reversed himself in "The Path of the Law." His position is certainly consistent with his earliest efforts to separate law and morals even before The Common Law, reflecting the original influence of the English philosopher John Austin on his thought during the 1870s.

  Yet in "The Path of the Law" there is a new urgency to distinguish sharply between law and morals. In my view, the issue of legal positivism-indeed, of positivism in general in American thought-becomes central only after the decline of Darwinism. For Darwinism in law held out the hope that custom could merge fact and value, law and morals. Just as its demise created an unbridgeable chasm between the state and the individual, so too did it separate power and morality.