The Common Law, Part 1

Justice Holmes' book is a history, really, of the common law and an attempt to analyze the values underpinning it. Even now, written a 125 years ago, the book has great relevancy and is an interesting read.

Justice Holmes examines offenses at the margin in an attempt to expose the values that gave rise to the common law. He then turns to some pretty obscure injuries -- a freeman killed by a horse, or a tree, or even a slave. In his reading, the early forms of the common law required the chattel to be turned over to the family of the dead man, to satisfy the loss. From these examples, he concludes that the common law was initially motivated by vengeance.

That's an interesting word. It's derived from the Latin verb vindicare, meaning "to lay claim to" or "to avenge." So, in Justice Holmes' estimation, the common law was concerned with buying off the blood feud. In other words, the purpose was retribution.

On a side note, Justice Holmes observes that "[t]he customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains." He then traces the evolution of these causes of action into their present form. For instance, modern law about an employer's liability for his employees actions dates back to the original requirement of the slave owner to turn the slave over to the family.

So, the bottom line for a public defender is that, every day, we are struggling against centuries of tradition.