第4章

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 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 signs--not 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 another--to sight or to hearing--on 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.Ihope 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, Ioften 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.