the path of the law-第2章
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limit of power is not coextensive with any system of morals。 For the
most part it falls far within the lines of any such system； and in some
cases may extend beyond them； for reasons drawn from the habits of a
particular people at a particular time。 I once heard the late Professor
Agassiz say that a German population would rise if you added two cents
to the price of a glass of beer。 A statute in such a case would be
empty words； not because it was wrong； but because it could not be
enforced。 No one will deny that wrong statutes can be and are enforced；
and we would not all agree as to which were the wrong ones。
The confusion with which I am dealing besets confessedly legal
conceptions。 Take the fundamental question； What constitutes the law？
You will find some text writers telling you that it 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。 But if we take the view of our friend
the bad man we shall find that he does not care two straws for the
axioms or deductions； but that he does want to know what the
Massachusetts or English courts are likely to do in fact。 I am much of
this mind。 The prophecies of what the courts will do in fact； and
nothing more pretentious； are what I mean by the law。
Take again a notion which as popularly understood is the widest
conception which the law containsthe notion of legal duty； to which
already I have referred。 We fill the word with all the content which we
draw from morals。 But what does it mean to a bad man？ Mainly； and in
the first place； a prophecy that if he does certain things he will be
subjected to disagreeable consequences by way of imprisonment or
compulsory payment of money。 But from his point of view； what is the
difference between being fined and taxed a certain sum for doing a
certain thing？ That his point of view is the test of legal principles
is proven by the many discussions which have arisen in the courts on the
very question whether a given statutory liability is a penalty or a tax。
On the answer to this question depends the decision whether conduct is
legally wrong or right； and also whether a man is under compulsion or
free。 Leaving the criminal law on one side； what is the difference
between the liability under the mill acts or statutes authorizing a
taking by eminent domain and the liability for what we call a wrongful
conversion of property where restoration is out of the question。 In
both cases the party taking another man's property has to pay its fair
value as assessed by a jury； and no more。 What significance is there in
calling one taking right and another wrong from the point of view of the
law？ It does not matter； so far as the given consequence； the
compulsory payment； is concerned； whether the act to which it is
attached is described in terms of praise or in terms of blame； or
whether the law purports to prohibit it or to allow it。 If it matters
at all； still speaking from the bad man's point of view； it must be
because in one case and not in the other some further disadvantages； or
at least some further consequences； are attached to the act by law。 The
only other disadvantages thus attached to it which I ever have been able
to think of are to be found in two somewhat insignificant legal
doctrines； both of which might be abolished without much disturbance。
One is； that a contract to do a prohibited act is unlawful； and the
other； that； if one of two or more joint wrongdoers has to pay all the
damages； he cannot recover contribution from his fellows。 And that I
believe is all。 You see how the vague circumference of the notion of
duty shrinks and at the same time grows more precise when we wash it
with cynical acid and expel everything except the object of our study；
the operations of the law。
Nowhere is the confusion between legal and moral ideas more manifest
than in the law of contract。 Among other things； here again the so…
called primary rights and duties are invested with a mystic significance
beyond what can be assigned and explained。 The duty to keep a contract
at common law means a prediction that you must pay damages if you do not
keep itand nothing else。 If you commit a tort； you are liable to pay
a compensatory sum。 If you commit a contract； you are liable to pay a
compensatory sum unless the promised event comes to pass； and that is
all the difference。 But such a mode of looking at the matter stinks in
the nostrils of those who think it advantageous to get as much ethics
into the law as they can。 It was good enough for Lord Coke； however；
and here； as in many others cases； I am content to abide with him。 In
Bromage v。 Genning； a prohibition was sought in the Kings' Bench
against a suit in the marches of Wales for the specific performance of a
covenant to grant a lease； and Coke said that it would subvert the
intention of the covenantor； since he intends it to be at his election
either to lose the damages or to make the lease。 Sergeant Harra for the
plaintiff confessed that he moved the matter against his conscience； and
a prohibition was granted。 This goes further than we should go now； but
it shows what I venture to say has been the common law point of view
from the beginning； although Mr。 Harriman； in his very able little book
upon Contracts has been misled； as I humbly think； to a different
conclusion。
I have spoken only of the common law； because there are some cases in
which a logical justification can be found for speaking of civil
liabilities as imposing duties in an intelligible sense。 These are the
relatively few in which equity will grant an injunction； and will
enforce it by putting the defendant in prison or otherwise punishing him
unless he complies with the order of the court。 But I hardly think it
advisable to shape general theory from the exception； and I think it
would be better to cease troubling ourselves about primary rights and
sanctions altogether； than to describe our prophecies concerning the
liabilities commonly imposed by the law in those inappropriate terms。
I mentioned； as other examples of the use by the law of words drawn from
morals； malice； intent； and negligence。 It is enough to take malice as
it is used in the law of civil liability for wrongs what we lawyers call
the law of tortsto show that it means something different in law from
what it means in morals； and also to show how the difference has been
obscured by giving to principles which have little or nothing to do with
each other the same name。 Three hundred years ago a parson preached a
sermon and told a story out of Fox's Book of Martyrs of a man who had
assisted at the torture of one of the saints； and afterward died；
suffering compensatory inward torment。 It happened that Fox was wrong。
The man was alive and chanced to hear the sermon； and thereupon he sued
the parson。 Chief Justice Wray instructed the jury that the defendant
was not liable； because the story was told innocently； without malice。
He took malice in the moral sense； as importing a malevolent motive。
But nowadays no one doubts that a man may be liable； without any
malevolent motive at all； for false statements manifestly calculated to
inflict temporal damage。 In stating the case in pleading； we still
should call the defendant's conduct malicious； but； in my opinion at
least； the word means nothing about motives； or even about the
defendant's attitude toward the future； but only signifies that the
tendency of his conduct under known circumstances was very plainly to
cause the plaintiff temporal harm。
In the law of contract the use of moral phraseology led to equal
confusion； as I have shown in part already； but only in part。 Morals
deal with the actual internal state of the individual's mind； what he
actually intends。 From the time of the Romans down to now； this mode of
dealing has affected the language of the law as
