Customer Reviews

The Common Law

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Several others have written covering the contents of The Common Law. I will just emphasize that most of the book focuses on how contemporary (in 1881) legal doctrines and issues had originated and developed in the cases and decisions of English courts from around 1200 AD onwards. This book is of interest primarily to people who are planning to study law and want some foundation, or to individuals with unusual historical interest in often-obscure English court decisions. I fell into the former category; the effort I put into tackling this book is worthwhile because I plan to use the knowledge later ... if I didn't, it would have been pretty much a waste of time.

There is one major caveat for the average reader. If you have not already studied the law, you will pretty much need to have a legal dictionary on hand. Assumpsit, bailment, disseisin -- if you are not familiar with terms like these, you are liable to have a very tough time with Holmes. Moreover, as a rule he tends to assume that the reader (originally, listener) is aware of the current state of the law already, and then proceeds to delve into its background. So if you do not understand the role of consideration in contracts already, you will essentially be forced to deduce it.

One gripe (and this is obviously not Holmes' fault) is that it is often very difficult, or at least very inconvenient, to follow up on his well-compiled footnotes, because many of the sources he frequently refers to (Glanvill, Fleta) are out of print and found only in academic or law libraries (and even then are frequently non-circulating materials), and most of the cases he cites are either from the Year Books (likewise arcane and out of print) or from unrecognizable English reports (Moody, Cox, B&S, H&C). Even a source like Blackstone, who was so fundamental to early American judges and lawmakers, is in few libraries and only 50% in print today; and Yale's online version does not appear to be volumized or paginated in accordance with whatever edition Holmes used.

This may sound like quite a catalog of complaints, but in the end I am very glad I invested the time and effort to conquer this book. Don't be turned off, just be aware that a relatively (for law books) [inexpensive] price does not make this a "mass-market" paperback.

Current 1L here.

I read _The Common Law_ while an undergrad as part of the research for a paper on, inter alia, O.W. Holmes in a philosophy of law class. If you're planning on reading the book, you might want to reconsider. Large sections are well-nigh unreadable -- well, they're not really unreadable, just incredibly boring. (Then again, maybe incoming 1Ls should read a few chapters just to get an idea of what judicial writing was like 120 years ago -- though Holmes was far better than most of his contemporaries.) Probably the best part of the book is the introductory essay that explains the context and significance of Holmes's lectures (which he collected in the book). I can't remember who wrote the essay -- it's in the edition of the book that has a picture of Holmes on the cover (the one I always see in [local store]).

The substance of the book is a series of lectures on the various common law subjects: criminal law, property law, contracts, consideration, torts, negligence, bailments, trespass, etc. What makes this book so important is not that the lectures were a summary of the current state of the law at the time Holmes spoke in (IIRC) 1881, but rather because Holmes explains how they got to be that way -- often rather insightfully/creatively.

Let me give you an example: in ancient legal regimes, including early common law England, when a person was killed by an inanimate object, the law of deodands came into play. A deodand (again, IIRC) is an inaminate object. What would happen to this inanimate objects is that the family of the deceased would then "execute" the object as if it were a convicted felon. In explaining this, Holmes has a funny aside about an infamous case in England where a dog that killed a person was hanged "to provide an example to bad dogs everywhere." Obviously, the law of deodands has faded from the law -- or so you'd think. Holmes explains that this concept -- treating an inanimate object as a wrongdoer -- was harnessed in the law of admiralty to allow for in rem actions against ships. By this, I mean that a problem with vessels is that a ship would come into port, the vessel-owner would commit some sort of tort, then sail away. And since the ship-owner had left (or lived in a different continent and thus was never involved at all), the common law courts would never have jurisdiction over him to enforce a judgment to compensate his victims. To remedy this problem, common law courts began to allow victims of such torts to bring an action in any port into which the ship sailed -- as if the ship itself had been the one who committed the tort. (That's what an in rem action is -- a lawsuit where jurisdiction is based on a thing; as opposed to an in personam action, in which jurisddiction is based on a person.) Thus, through the legal fiction preserved in the memory of the common law from antiquity, the law of admiralty drew upon the law of deodands to fix a "modern" problem.

To all you 1Ls finishing up with contracts -- Holmes is the one you can thank for the bargain theory of consideration -- and guess where he stated it for the first time?

The point of reading the book, however, is not that Holmes was a great legal historian; rather, it is that he was an influential legal philosopher. Two tenets of early 20th century jurisprudence that Holmes propounded (and was influential in writing into law when he was later appointed to the Supreme Court of Massachussetts, and later of the United States) can be identified in this work: legal positivism and legal realism. But I think that I've probably written enough here to bore everyone to tears, so if you're curious, take a look at something in the library on the subject of jurisprudence.... or read this book.

This book is a little tedious for us non-lawyers, but it does illustrate some interesting points:
Law emerged from the need to get away from revenge/feud dynamics. And it originated during times when most people couldn't write, so the issue of proving a case (such as in a agreement) is troublesome (especially in times when plagues and such could kill witnesses at any time). The world is a fuzzy set, and yet the law needs to set a finite set of rules in place, so exceptions constantly challenge. The needs of the state can supercede the issue of fairness, such as in the rule that "ignorance is no excuse". Judges are generally friends of the wealthy and not compatriots of the commoner. If a man has large debts, and dies, how can his children, who were not party to the agreements, be held liable via the estate? Many such questions arise and Oliver Wendell Holmes, Jr. tries to address the fluid basis for our legal system.

This comment doesn't attempt to assess Holmes' classic work. I write, however, to note that the other gentleman's comment about this work being possibly an "elaborate joke" is ludicrious and disprovable. In a letter reproduced in The Essential Holmes, edited by Richard Posner, Holmes discusses giving up all pleasure for a year to write this book and of his hopes of getting some recognition from British commentators for it.

Holmes' prose is occasionally arcane, but enduring the tics of a writing style rooted in Civil War America is a small price to pay in exchange for experiencing the thoughts of one of the most formative legal minds in American history.

"The Literature of the past is a bore--when one has said that frankly to oneself then one can proceed to qualify and make exceptions." Oliver Wendell Holmes, Letter to Frederick Pollack, April 6, 1924, reproduced in The Essential Holmes, edited by Richard Posner, page 19.

If the prospective of tackling the Common Law still strikes you as momentous, reading the Essential Holmes, which has excerpts from The Common Law, is a good compromise. Holmes's many letters and opinions therein are very accessible.

In a nutshell, this famous treatise provides in-depth analysis and historical commentary of the common law as it existed in the mid- to late-19th century. The format is that of a series of lectures given at Harvard by Holmes (who at the time was just past thirty years of age) between 1870 and 1873. It is indeed a resounding work concerning the origins and development of American jurisprudence.

With that said, let me be very clear about The Common Law - I found completing it a daunting task. Even if you've been trained in the law, it is difficult to comprehend both the writing style and legal terminology of the last century (i.e., without reading in an environment of total silence, I was unable to follow Holmes for more than a page of two). Additionally, Holmes presents the material by blending stream-of-consciousness thinking with the Socratic method - a confusing experience at best. Finally, the vast amount of authority cited is English case law from the 15th through 18th centuries. While this not surprising, I found it to be very annoying (e.g., particularly when I wanted to research a case in order to place Holmes' comments in perspective).

There are, however, some extremely interesting aspects of the work. First, the hypotheticals are identical to those used in modern first-year law school courses (which, of course, conveys confidence to the reader). Next, the common law of one hundred-plus years ago is remarkably similar to the common law of today (excepting, of course, well-known refinements that have taken place throughout the years). Last, no sort of "civil libertarian" or "progressive" thinking (hallmarks of Holmes while a Supreme Court justice) is to be found in the pages of The Common Law - just law, history, hypotheticals, facts, and application.

As such, I can only recommend this work to academics who have a compelling need for this level of clarity and detail (my three star rating is given with their needs in mind). Frankly, the average lawyer will find this only mildly stimulating and the layperson should avoid it like the plague.

If you're interested in a summary of the common law, then this book is not for you. It's also written in a somewhat stilted 19th century style which is hard to follow, as well as unique to Holmes. It's very thorough up to the point of 1881 covering all essential elements of the common law

In his book, A Matter Of Interpretation, Justice Scalia recommends this title as summer reading to incoming first-year law students. The Common Law certainly covers most first-year law courses: Torts, Property, Contracts, and Criminal Law. It is invaluable both as a preview and as a reference during the academic year. Holmes' style is fluid and readable although a century old. It can't hurt to get used to his prose--it's certain to be encountered throughout one's time at law school.

Holmes is intelligent and thoughtful, but lots of his thoughts are in Latin. Since many readers, including myself, did not benefit from a Catholic or a Classical education, I confess I cannot read it. It is very frustrating to someone who spends a lot of time on footnotes when these require translation. I would very much have appreciated it if the publishers, who surely have access to translations, would provide them!

This is one of those books that deserves more than one read. Some books are to be read more than once, because the content or style is too difficult - for some The Common Law may be one of those books. But others, like this one, deserve to be read more than once because every reading brings out more depth in the material. I originally read Holmes' work in the context of trying to understand the legal background of contemporary American controversies such as gun control, abortion rights and so on. I didn't discover much about those issues, but I WAS inspired to study law. Reading The Common Law (and Blackstone's Commentaries) was one of the crucial factors in my deciding to go to law school. Though there are some who feel that the style is "stilted" or "old-fashioned" it is in many ways a style profoundly more readable and even more beautiful than is much of the writing published today, and I can only lament that there are few contemporary writers who can match the fluency and clarity of Holmes. If you are at all interested in the law or in the historical aspects of society as affected by law, and if you enjoy books written in better than average English, then this is certainly one you should read.

I am not a lawyer but I enjoy reading on the law. This book is definitely very educational. I like the way the book was set up with various sections such as liability, criminal law, and torts. If you have any interest in our laws, you will find this book to be a good read.