the path of the law-第3章
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dealing has affected the language of the law as to contract； and the
language used has reacted upon the thought。 We talk about a contract as
a meeting of the minds of the parties； and thence it is inferred in
various cases that there is no contract because their minds have not
met； that is； because they have intended different things or because one
party has not known of the assent of the other。 Yet nothing is more
certain than that parties may be bound by a contract to things which
neither of them intended； and when one does not know of the other's
assent。 Suppose a contract is executed in due form and in writing to
deliver a lecture； mentioning no time。 One of the parties thinks that
the promise will be construed to mean at once； within a week。 The other
thinks that it means when he is ready。 The court says that it means
within a reasonable time。 The parties are bound by the contract as it
is interpreted by the court； yet neither of them meant what the court
declares that they have said。 In my opinion no one will understand the
true theory of contract or be able even to discuss some fundamental
questions intelligently until he has understood that all contracts are
formal； that the making of a contract depends not on the agreement of
two minds in one intention； but on the agreement of two sets of external
signsnot on the parties' having meant the same thing but on their
having said the same thing。 Furthermore； as the signs may be addressed
to one sense or anotherto sight or to hearingon the nature of the
sign will depend the moment when the contract is made。 If the sign is
tangible； for instance； a letter； the contract is made when the letter
of acceptance is delivered。 If it is necessary that the minds of the
parties meet； there will be no contract until the acceptance can be
read； none； for example； if the acceptance be snatched from the hand of
the offerer by a third person。
This is not the time to work out a theory in detail； or to answer many
obvious doubts and questions which are suggested by these general views。
I know of none which are not easy to answer； but what I am trying to do
now is only by a series of hints to throw some light on the narrow path
of legal doctrine； and upon two pitfalls which； as it seems to me； lie
perilously near to it。 Of the first of these I have said enough。 I
hope that my illustrations have shown the danger； both to speculation
and to practice； of confounding morality with law； and the trap which
legal language lays for us on that side of our way。 For my own part； I
often doubt whether it would not be a gain if every word of moral
significance could be banished from the law altogether； and other words
adopted which should convey legal ideas uncolored by anything outside
the law。 We should lose the fossil records of a good deal of history
and the majesty got from ethical associations； but by ridding ourselves
of an unnecessary confusion we should gain very much in the clearness of
our thought。
So much for the limits of the law。 The next thing which I wish to
consider is what are the forces which determine its content and its
growth。 You may assume； with Hobbes and Bentham and Austin； that all
law emanates from the sovereign； even when the first human beings to
enunciate it are the judges； or you may think that law is the voice of
the Zeitgeist； or what you like。 It is all one to my present purpose。
Even if every decision required the sanction of an emperor with despotic
power and a whimsical turn of mind； we should be interested none the
less； still with a view to prediction； in discovering some order； some
rational explanation； and some principle of growth for the rules which
he laid down。 In every system there are such explanations and
principles to be found。 It is with regard to them that a second fallacy
comes in； which I think it important to expose。
The fallacy to which I refer is the notion that the only force at work
in the development of the law is logic。 In the broadest sense； indeed；
that notion would be true。 The postulate on which we think about the
universe is that there is a fixed quantitative relation between every
phenomenon and its antecedents and consequents。 If there is such a
thing as a phenomenon without these fixed quantitative relations； it is
a miracle。 It is outside the law of cause and effect； and as such
transcends our power of thought； or at least is something to or from
which we cannot reason。 The condition of our thinking about the
universe is that it is capable of being thought about rationally； or； in
other words； that every part of it is effect and cause in the same sense
in which those parts are with which we are most familiar。 So in the
broadest sense it is true that the law is a logical development； like
everything else。 The danger of which I speak is not the admission that
the principles governing other phenomena also govern the law； but the
notion that a given system； ours； for instance； can be worked out like
mathematics from some general axioms of conduct。 This is the natural
error of the schools； but it is not confined to them。 I once heard a
very eminent judge say that he never let a decision go until he was
absolutely sure that it was right。 So judicial dissent often is blamed；
as if it meant simply that one side or the other were not doing their
sums right； and if they would take more trouble； agreement inevitably
would come。
This mode of thinking is entirely natural。 The training of lawyers is a
training in logic。 The processes of analogy； discrimination； and
deduction are those in which they are most at home。 The language of
judicial decision is mainly the language of logic。 And the logical
method and form flatter that longing for certainty and for repose which
is in every human mind。 But certainty generally is illusion； and repose
is not the destiny of man。 Behind the logical form lies a judgment as
to the relative worth and importance of competing legislative grounds；
often an inarticulate and unconscious judgment； it is true； and yet the
very root and nerve of the whole proceeding。 You can give any
conclusion a logical form。 You always can imply a condition in a
contract。 But why do you imply it？ It is because of some belief as to
the practice of the community or of a class； or because of some opinion
as to policy； or； in short； because of some attitude of yours upon a
matter not capable of exact quantitative measurement； and therefore not
capable of founding exact logical conclusions。 Such matters really are
battle grounds where the means do not exist for the determinations that
shall be good for all time； and where the decision can do no more than
embody the preference of a given body in a given time and place。 We do
not realize how large a part of our law is open to reconsideration upon
a slight change in the habit of the public mind。 No concrete
proposition is self evident； no matter how ready we may be to accept it；
not even Mr。 Herbert Spencer's 〃Every man has a right to do what he
wills； provided he interferes not with a like right on the part of his
neighbors。〃
Why is a false and injurious statement privileged； if it is made
honestly in giving information about a servant？ It is because it has
been thought more important that information should be given freely；
than that a man should be protected from what under other circumstances
would be an actionable wrong。 Why is a man at liberty to set up a
business which he knows will ruin his neighborhood？ It is because the
public good is supposed to be best subserved by free competition。
Obviously such judgments of relative importance may vary in different
times and places。 Why does a judge instruct a jury that an employer is
not liable to an employee for an injury received in the course of his
employment unless he is negligent； and why do the jury generally find
for the plaintiff if the case is allowed to go to them？ It is because
the traditional policy of our law is to confine liability to cases where
a
