"The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, institutions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics."

From the first of twelve Lowell Lectures delivered by Oliver Wendell Holmes, Jr. on November 23, 1880, which were the basis for The Common Law.

Of all the legal thinkers produced in the New World, it can be said of Oliver Wendell Holmes, Jr. that he was one of its greatest. As proof of this assertion, one need look no further than his groundbreaking work, The Common Law. Written over the course of several years (actually, a reworking of various essays and articles, some for the American Law Review) and finally published in 1881, The Common Law remains a benchmark of legal thinking. Indeed, the noted legal historian F.W. Maitland said of the work that "For a long time to come [it] will leave its mark wide and deep on all the best thoughts of Americans and Englishmen about the history of their common law."

Holmes was, at the time of its writing, in practice at Shattuck, Holmes and Munroe, following his professorship at Harvard Law School and prior to his appointment to the Supreme Judicial Court of Massachusetts. His inducement to write came in the form of an invitation to deliver a series of lectures at the Lowell Institute in Boston, twelve lectures given over the course of six weeks. The invitation came in the winter of 1879, for the lecture series to take place the following winter. At first reluctant, Holmes nevertheless saw this as an opportunity to finally collect his various writings on the common law into one work. He accepted the invitation and began his writing that summer. On November 23, 1880 Holmes delivered his first of the twelve Lowell Lectures and a few months later, the book based on his lectures was published.

The Common Law is by no means a perfect piece of legal scholarship. Indeed, for many it is more a work of philosophy than a work of law, which is not surprising given Holmes's deep interest in philosophical thinking. The fact of its imperfections, however, has not dulled its influence. Initially received with only lukewarm praise, critics noted how large areas of law were left out (which Holmes acknowledges in his preface) including Equity, Bills & Notes, and Partnership. There was also some differentiation in tone throughout, due no doubt to the nature of the work, that is, a compilation of articles written over many years. There were also complaints about uneven handling of certain topics, a certain sense of hyperbole in others, and an aggressive disregard for viewpoints in opposition to his own.

And yet, as Sheldon Novick writes in Honorable Justice: The Life of Oliver Wendell Holmes (Little Brown, 1998), "The force of the presentation overwhelmed all these defects. Beneath its immense burden of learning and its detailed expositions of history, The Common Law was a work of art more than it was a work of scholarship. It was a coldly passionate expression of intuitions. Holmes saw the landscape of the common law illuminated by his thought as by a beacon. The force of his certainty infused every word." Novick also notes that even Holmes's harshest critic, Yosal Rogat, called the work "The most important book on law ever written by an American."

A mere twenty years later, however, Holmes himself pronounced that The Common Law was "dead", noting that the "theories and points of view that were new in it, now have become familiar to the masters and even to the middle-men and distributors of ideas -- writers of textbooks and practical works..." Was he expressing dismay, or an ironic acknowledgement that even after harsh initial criticism, ideas fostered in his work had, in fact, made their way into mainstream legal thought? Possible, considering this remark from Felix Frankfurter in Of Law and Men (Harcourt Brace, 1956), "The book is a classic in the sense that its stock of ideas has been absorbed and become part of common juristic thought ... they placed law in a perspective which legal scholarship ever since has merely confirmed." For if anything, it is this common if gradual acceptance of his precepts that has made Holmes's work a classic, even now, almost 125 years later.

For more information about The Common Law, we direct you to Mark DeWolfe Howe's excellent introduction in the 1963 edition (Belknap Press of Harvard University Press).

About This Version

The electronic version of The Common Law presented here was scanned and proofread by Stuart E. Thiel in January 2000 as part of Project Gutenberg . Please visit their site for more information on the important work they are doing to provide free e-texts of public domain materials.

The Preface was transcribed and proofread at the Harvard Law School Library. HTML coding, formatting, and further proofreading for this version were also carried out at HLSL.

Conventions

The following conventions were determined by Stuart E. Thiel during the original scanning and proofreading of this document. They have been retained in this version.

Page breaks have not been maintained as in the original, although paragraph breaks have. Page breaks are denoted, however, by numbers within brackets. For example, [8] would indicate the beginning of page 8. Within the text, footnotes are denoted by numbers between slashes, such as /4/.

In the original edition, Holmes gathered all of the footnotes at the end of the text, a convention that has been retained for this version. In the footnote section (which opens as a new window) a number such as 8/4 refers to page 8 (in the original), footnote 4. If you are interested in following the footnotes, it is recommended that you keep them open in a second window for easy reference.

As in the original, there is some Latin and Greek within the text. The Latin has been included in this version, but the Greek has not. Where Greek appears in the original it has been replaced by the expression [Greek characters] in this version. Italics and diacritics, such as accents and cedillas, are not included and are unmarked.